IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 5th August, 2011
W.P.(C) 5367/2011
SURESH KALMADI (IN JUDICIAL CUSTODY) ….. Petitioner
Through: Mr. Ashok Desai, Mr. Neeraj Kishan Kaul Mr. Siddharth Luthra, Sr. Advs. with Ms. Shyel Trehan, Ms. Diya Kapur, Ms. Manjira Das Gupta Mr. Nikhil Pillai, Advs.
Versus
UNION OF INDIA ORS…… Respondents
Through: Mr. A.S. Chandhiok, ASG with Ms. Maneesha Dhir, Ms. Preeti Dalal,Mr. Bhagat Singh Ms. Mithu Jain,Advs. for R-1.
Mr. Dayan Krishnan with Mr. Gautam Narayan Mr. Nikhil A. Menon, Advs.for R-3.
CORAM :- HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
W.P.(C) No.5367/2011
RAJIV SAHAI ENDLAW, J.
1. The petitioner, a Parliamentarian in judicial custody has filed this writ
petition seeking direction for permission to attend the Parliament while
remaining in judicial custody. It is inter alia the case of the petitioner that
he has received summons dated 14th July, 2011 summoning him to attend the
8th Session of the 15th Lok Sabha commencing from 1st August, 2011; that
on enquiry, he has been informed that a Member who is in prison in
connection with any criminal case can be permitted by the competent Court
to attend day-to-day proceedings of the Lok Sabha; that the bail application
filed by him has been rejected vide order dated 6th June, 2011; that though he
made an application before the Special Judge before whom he is being
prosecuted for offences under Sections 120B read with Sections 420, 467,
468 and 471 of the Indian Penal Code, 1860 and under Sections 13(2) read
with Section 13(1)(d) of the Prevention of Corruption Act, 1988 but the
same was withdrawn with permission to apply to this Court for the reason
that Ministry of Home Affairs is a necessary party to the matter as security
arrangements in Parliament fall within the jurisdiction of the said Ministry.
2. It is further the case of the petitioner that the Courts have routinely in
the past permitted Members of Parliament to attend Parliament Sessions
while in custody; that Article 105(1) of the Constitution of India grants to a
Parliamentarian the freedom of speech subject only to the rules and standing
orders regulating the procedure of Parliament; that no rule, standing order or
procedure prevents the petitioner from attending Parliament and speaking
there-at while in custody; that the Constitutional right of the petitioner to
participate in Parliamentary proceedings and the right to vote in Parliament
as an elected representative is the essence and expression of Parliamentary
democracy and an expression of the Constitutional right to vote guaranteed
to every adult citizen under Article 326 of the Constitution of India and the
freedom of expression guaranteed by Article 19(1)(a) exercised in electing
the petitioner as an elected representative; that Parliamentary democracy is
the basic feature of the Constitution of India and there is no reason for
denying such participation to the petitioner when the same is possible while
remaining in custody; that because refusing participation in Parliamentary
proceedings to the petitioner would deny him the opportunity to fulfill his
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Constitutional obligations to attend the proceedings of Parliament. It is
further pleaded that the petitioner is willing to abide by any condition which
may be imposed in this regard. The petitioner seeks mandamus to the
respondents Union of India Ministry of Home Affairs, Jail Superintendent
Tihar Jail and Central Bureau of Investigation (CBI) to take appropriate
steps for allowing the petitioner to, in custody attend the Parliamentary
proceedings commencing from 1st August, 2011 and scheduled until 8th
September, 2011.
3. The petition came up first before this Court on 29th July, 2011 when
the senior counsel for the petitioner relied on the orders dated 27th
November, 2008 and 10th February, 2009 in W.P.(C) No.7548/2008 and
W.P.(C) No.854/2009 both preferred by Sh. Rajesh Ranjan @ Pappu Yadav
permitting him to attend the Sessions of Parliament. Reliance was also
placed on newspaper reports of the Jharkhand High Court having allowed
Mr. Madhu Koda to attend Parliament while in custody.
4. However, the aforesaid orders, on a reading thereof appeared to be
consensual and were not found to contain any reasoning or adjudication. It
W.P.(C) No.5367/2011 Page 4 of 21
was thus put to the senior counsel for the petitioner that the same could not
constitute a precedent.
5. It was enquired from the senior counsel for the petitioner whether the
need / duty to attend Parliament can be placed at higher pedestal than the
other duties which other persons in detention may be required to perform. It
was felt that on the same parity, every person under detention can claim that
he / she should be allowed to carry on his trade / vocation or to perform his /
her duties including as of a son / father / husband / wife etc.; every person
performing public functions would take the same plea; the Directors on
Board of Companies, the office bearers of Trusts / Charities / Clubs would
say that they too should be allowed to perform their duties – thereby making
arrest / detention farcical.
6. The senior counsel for the petitioner had then contended that unless
the petitioner is so permitted, the Parliamentary Constituency which had
elected him would go unrepresented in Parliament. It was thus contended
that public interest demands that the petitioner be permitted to attend
Parliament.
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7. In the face of the aforesaid argument, need was felt to enquire into the
past record of attendance of the petitioner in the Parliament. This Court felt
that if the petitioner in the past, without being prevented as he now is, had
not regularly attended the Parliament then he ought not be permitted to use
that as a mere excuse. The petitioner was as such called upon to file an
affidavit detailing his attendance in Parliament in the last five years.
8. Further, considering that the Parliament Sessions are now telecast
live, need of the petitioner to attend Parliament in person was also enquired
into.
9. Yet further, in view of the newspaper reports having indicated that the
petitioner was under medical examination, the petitioner was required to file
an affidavit in that regard also.
10. Though the learned ASG and the counsel for the CBI appearing on
advance notice had sought opportunity to file counter affidavits but being of
the view that the question involved was purely legal and considering the
urgency expressed, need for issuing formal notice of the petition and calling
for counter affidavits was not felt and the counsels were called upon to
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address finally on the matter.
11. The petitioner has filed an affidavit as directed. CBI has also put in a
short reply.
12. The petitioner in his affidavit has disclosed his attendance during the
Parliamentary Sessions of the 14th Lok Sabha from 2nd June, 2004 to 26th
February, 2009 as varying from a low of 42% to a high of 91%. I may
however add that except for one Session where the attendance was 42%, the
attendance in all the other Sessions was above 57%. Qua the Parliamentary
Sessions of the 15th Lok Sabha from 1st June, 2009 to 25th March, 2011
attendance has been disclosed as 100%, 85%, 48%, 75%, 12%, 4% 39%.
It is stated that the poor attendance in some of the Sessions was during the
time leading up to the Commonwealth Games and during which time the
petitioner was dedicating all his time to organization of the Games. The poor
attendance thereafter is stated to be owing to the participation in Asian
Games in China and owing to organizing the National Games at Ranchi.
13. The petitioner qua his participation in the Parliamentary Sessions has
deposed that he has frequently asked questions and participated in debates
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and has in the 15th Lok Sabha already raised 42 questions. It is further
deposed that Members of Parliament are also permitted to participate in the
discussions on the floor of the House and the petitioner intends to participate
in the discussions in the ensuing Session on issues relating to Pune Airport,
the local train network and urban development.
14. The respondent No.3 CBI in its short reply has pleaded that the
offences with which the petitioner is charged with are extremely grave and
serious causing huge wrongful pecuniary benefits to certain private parties
and consequent loss to the public exchequer; that some of the other accused
officials of the Organizing Committee for Commonwealth Games of which
the petitioner was the Chairman are still absconding; that the CBI
apprehends that the petitioner may misuse the liberty sought by way of the
present petition to influence the witnesses and tamper with the evidence.
The respondent No.3 CBI without prejudice to the said pleas has also
detailed the conditions to be imposed in the event of the petition being
allowed.
15. The senior counsel for the petitioner has urged that Parliamentary
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representation is essential in a democracy and basic feature of the
Constitution; the people / citizens are represented in the Parliament through
their elected representatives as the petitioner is; that after the 44 th
amendment to the Constitution of India, Article 21 cannot be suspended; that
Article 105 prevails over Article 19; that the guilt of the petitioner has not
been established as yet and the petitioner is but an accused; that the
apprehension expressed by the CBI of the petitioner upon being so allowed
to attend Parliament, influencing witnesses can be allayed by imposing
appropriate conditions; that Members of Parliament are the live link which
connect the people to their Government; that the elected representative has a
duty under the Constitution to his electorate and which entails a
corresponding obligation to attend Parliament; that there is a need for
balancing the said functions of the petitioner with his detention; that for the
petitioner to exercise the right of freedom of speech as a Parliamentarian, he
needs to have access to the Parliament and without such access there can be
no such freedom. It is further stated that Mr. Madhu Koda who has been
allowed by the concerned Court to attend Parliament is also presently lodged
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in Tihar Jail and arrangements have already been made for his transit to and
fro Parliament and it will be travesty that while one Parliamentarian lodged
in the same jail is allowed to attend Parliament, other is not.
16. The senior counsel for the petitioner during the course of hearing has
referred to:
(i) P.V. Narasimha Rao Vs. State (CBI/SPE) (1998) 4 SCC 626
in para 47 whereof it was held that Parliamentary democracy is
a part of the basic structure of the Constitution; in paras 162
165, that in a democratic form of Government, it is the Member
of Parliament who represents the people of his Constituency in
the highest law making bodies at the Centre and performs a
public duty.
(ii) People’s Union for Civil Liberties (PUCL) Vs. Union of India
(2003) 4 SCC 399 para 94 whereof details the duties and
responsibilities of a Member of Parliament.
(iii) Pandit M.S.M. Sharma Vs. Sh. Sri Krishna Sinha AIR 1959
SC 395 in paras 24 25 whereof it was laid down that the
freedom of speech under Article 194(1) cannot be cut down in
any way by any law contemplated by Article 19(2).
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17. The arguments as raised by the senior counsel for the petitioner were
raised before the Constitution Bench of the Apex Court also as far back as in
K. Ananda Nambiar Vs. Chief Secretary, Government of Madras AIR
1966 SC 657. The legendary Mr. Setalvad appearing for the Member of
Parliament then under detention had also contended that a Member of
Parliament has Constitutional rights to function as such Member and to
participate in the business of the House to which he belongs – that he is
entitled to attend every Session of Parliament, to take part in the debate, and
to record his vote and no law can validly take away his right to function as
such Member. It was thus the contention before the Apex Court also that the
legislators have certain Constitutional rights which cannot validly be taken
away by any statute or statutory rule.
18. Of course, the senior counsel here, has not pegged the right of the
petitioner so high. Nevertheless, an exception to the principle of detention,
of the person under detention being deprived from access to his family,
friends, work, vocation etc., is sought to be carved out in the case of
Members of Parliament.
W.P.(C) No.5367/2011 Page 11 of 21
19. Before adverting to what was held by the Constitution Bench on the
contentions aforesaid of Mr. Setalvad, I may humbly observe that the
argument as raised before this Court amounts to placing Members of
Parliament at a pedestal higher than their electorate. The argument assumes
that the work of a Member of Parliament is more sacred and important than
the work / vocation in which the citizens who have elected the said
Parliamentarian may be engaged in. Such an argument is archaic and creates
two classes of citizens as in a monarchy i.e. the King and the Subject and is
alien to our Constitution. The legal luminary of our times, Mr. Nani A.
Palkhivala in his book “Our Constitution Defaced and Defiled” has
explained the essence of our Constitution as under:-
“Our Constitution is primarily shaped and moulded for the
common man. It takes no account of “the portly presence of the
potentates, goodly in girth”. It is a Constitution not meant for
the ruler but the ranker, the tramp of the road, the slave with the
sack on his shoulders pricked on with the goad, the man with
too weighty a burden, too weary a load.”
20. The senior counsels for the petitioner did not address on the query
posed to them as aforesaid on 29th July, 2011, i.e. as to how the work of a
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Parliamentarian can be placed on a higher pedestal. A Member of
Parliament cannot tell the citizens who have elected him that the sweat of his
brow is dearer or that the work performed by him is more important. The
argument, of a Parliamentarian being entitled to continue attending
Parliament notwithstanding his arrest and when the citizen who has elected
him, inspite of holding position, be that of a Director in a public limited
Company or of an office bearer in a Society or a Club or having the duty
towards spouse, parents and children, being not so entitled, runs contrary to
the principle of equality enshrined in our Constitution. The duty of a father
to a growing child or of a son to an ailing parent cannot be held to be any
less important. If the arguments as raised were to be accepted, it will be
difficult for the Courts to refuse the same concession to others under
detention. They will also claim that they, while remaining under custody
should be allowed to continue with their vocation to prevent their dependent
family members from starving or suffering. I find, a practicing Advocate
under detention to have similarly claimed that he should, while in custody,
be allowed to conduct the cases of clients who had earlier engaged him; he
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had also contended that his clients will go unrepresented and will file
consumer complaints against him. The said claim was negatived by the
Division Bench in Daljit Singh Rajput Vs. Chandigarh Administration
MANU/PH/0047/1998. It was held that the arrest and judicial custody being
in accordance with the established criminal law of the country, he could not
exercise the rights of personal liberty, so long as deprived thereof in
accordance with the procedure prescribed by law. The same holds good for
the petitioner herein.
21. The senior counsel for the petitioner himself had invited attention to
Section 135A of the Civil Procedure Code carving out an exception for a
Parliamentarian when Parliament is in Session, from civil arrest. The
Legislature has not made any such exception qua arrest for criminal offences
or where the Member of Parliament is charged with an indictable offence
and rightly so, for the House cannot be expected to allow even the sanctuary
of its walls to protect a member from the process of criminal law.
22. Coming back to the Constitution Bench judgment in K. Ananda
Nambiar (supra), it was held that the Constitution does not impose any
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obligation on individual Members of Parliament – they are neither bound to
attend the Session nor under an obligation to be present in the House when
the President addresses it; subject-matter of the various Articles of the
Constitution is not the individual rights of the Members of Parliament, but
they refer to the right of the President to issue a summon for the ensuing
Session of Parliament or to address the House. It was further held that
though the basis of democratic form of Government is that Members of
Legislatures must be given absolute freedom of expression when matters
brought before the Legislature are debated but that is only when they attend
the Session of the House. The argument that it is the Constitutional and
fundamental right of a Parliamentarian to attend the Session of the House
was negatived. It was held that if the order of detention validly prevents a
Parliamentarian from attending a Session of Parliament, no occasion arises
for exercise of the right of freedom of speech and no complaint can be made
that the said right has been invalidly invaded. Similarly, the argument that
so long as the Member of Parliament has not incurred any disqualification,
he is entitled to exercise his rights as such Member was also negatived and it
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was held that a person who is detained, himself foregoes his right to
participate in the business of the Legislature. It was yet further held that so
far as a valid order of detention is concerned, a Member of Parliament can
claim no special status higher than that of an ordinary citizen and is as much
liable to be arrested and detained under it as any other citizen.
23. Though the senior counsel for the petitioner contended that
K. Ananda Nambiar was pronounced in the background of emergency when
Articles 19 to 21 were suspended and dealt with a case of preventive
detention which has an element of adjudication of guilt as compared to the
arrest in the present case and was in the context of challenge to the law of
preventive detention, but in my opinion the said factors have no bearing on
the ratio as culled out herein above of the judgement of the Constitution
Bench.
24. The counsel for the respondent No.3 CBI has contended that the
present also cannot be said to be a case of non application of mind by the
Court in whose judicial custody the petitioner is inasmuch as the charge
sheet has been filed and cognizance has been taken. He further contends
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that even in Indira Nehru Gandhi Vs. Raj Narain 1975 (Supp) SCC 1 the
same principles as in K. Ananda Nambiar were reiterated and the principle
laid down by Commons in a conference with the Lords in 1641 that
“privilege of Parliament is granted in regard to the service of the
Commonwealth and, is not to be used to the danger of the Commonwealth”
was held to be applicable. He has also drawn attention to (i) Raja Ram Pal
Vs. Hon’ble Speaker, Lok Sabha (2007) 3 SCC 184 also laying down that
the privilege of a Member of Parliament from arrest has never been allowed
to interfere with the administration of criminal justice; (ii) passages in Sir
Thomas Erskine May‟s “Treatise on The Law, Privileges, Proceedings and
Usage of Parliament” Twenty-fourth Edition; and (iii) passages in
M.N. Kaul and S.L. Shakdher‟s “Practice and Procedure of Parliament”
Fifth Edition, and contends that it is not as if non-attendance of the
Parliamentary Session of the petitioner would lead to forfeiture of his
membership.
25. Ld. ASG has also opposed the grant of relief to the petitioner. He has
invited attention to the application filed by the petitioner in July, 2011 before
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the Special Judge in whose judicial custody the petitioner is, where the
petitioner has stated that he is sick and infirm, suffering from various
ailments resulting inter alia in forgetfulness. It has been suggested that the
petitioner in such state of health cannot be expected to make any
contribution to the Parliament and is using the excuse of attending
Parliament to get away from the rigours of imprisonment after he has been
unsuccessful in obtaining bail. Reliance is also placed on Raghu Raj Pratap
Singh @ Raja Bhaiya Vs. State of U.P. MANU/UP/0237/2003 where a
Division Bench of the Allahabad High Court also held that the Legislators
have no enforceable right to participate in the Session of the House so long
as they are under detention and carved out a distinction between the right to
attend Parliament and the right to vote, right to contest election or right to
take oath as a Parliamentarian. It was held that right to vote and right to
contest election are statutory rights; while a person in jail can cast his vote
and contest election but there is no such provision regarding the right to
attend Parliament.
26. I find similar view to have been taken in Kameshwar Baitha Vs. State
W.P.(C) No.5367/2011 Page 18 of 21
of Jharkhand MANU/JH/1070/2009 and in Shekhar Tiwari Vs. State of
UP MANU/UP/0553/2009. The Apex Court in Raja Ram Pal (supra) also
held that expulsion of a Member from Parliament does not violate the
democratic principles and the challenge to expulsion on the ground that the
Constituency would go unrepresented in Parliament was not sustained. The
same ground urged here to seek a special right in favour of the petitioner,
thus has no merit.
27. What thus follows is that merely because the petitioner is a
Parliamentarian does not entitle him to claim any exception from the effect
of being in detention. Else, the petitioner has not made out any case
necessitating him to attend the Parliament. It is not the case that the vote of
the petitioner on any aspect is vital or that without such participation the
citizens of his Constituency would suffer. Though the need for participation
on issues relating to Pune Airport, the local train network and urban
development is mentioned but no particulars have been given. It cannot also
be lost sight of that the petitioner in the past, as per his convenience has been
missing Sessions of Parliament. It was not the mandate of his electorate that
W.P.(C) No.5367/2011 Page 19 of 21
he should take up the Chairmanship of the Organizing Committee for
Commonwealth Games or spend time on National Games or participate in
the Games at China. When the petitioner could afford to miss Parliament
then, his desire / keenness to attend now can only be understood as an
attempt for fresh air outside the prison walls. What the American publisher
William Randolph Hearst said, “a politician will do anything to keep his job
– even become a patriot” seems apposite.
28. Allowing the petitioner to attend the Parliament, even if in judicial
custody, would certainly provide the petitioner respite from imprisonment. I
see no reason to carve out an exception in favour of the petitioner when his
fellow prisoners are not provided such respite. Sophocles said “Nobody has
a more sacred obligation to obey the law than those who make the law”. The
Parliamentary privileges which the Members of Parliament enjoy are
intended to facilitate their work as representatives of people and should not
be mistaken as indicative of rank or creating a separate class different from
the other citizens. The Apex Court in Vineet Narain Vs. Union of India
(1998) 1 SCC 226 held that the law does not classify offenders differently
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for treatment thereunder, including investigation of offences and prosecution
for offences, according to their status in life – every person accused of
committing the same offence is to be dealt with in the same manner in
accordance with law, which is equal in its application to everyone.
29. Though during the hearing, I had enquired whether any provision in
the guidelines relating to parole / furlough exists qua Parliamentarians but
the senior counsel for the petitioner has stated and it has been so observed in
Lok Sabha Debates dated 24th November, 1965 at page 3615 also that a
Parliamentarian on parole is not entitled to attend the House. Moreover,
parole is post conviction. No other instances under which a person while in
custody can be permitted to perform his duties has been cited.
30. The petitioner is thus not found entitled to the relief claimed. There is
no merit in the petition. The same is dismissed with costs of `1,00,000/- to
the Prime Minister‟s National Relief Fund.
RAJIV SAHAI ENDLAW, J
th
AUGUST 5 , 2011
„gsr‟
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