Subhas Chandra Pattanayak
Should the High Court allow itself to be hoodwinked by an under-trial prisoner, who is a ruling party member of the Lok Sabha? This question needs cogitation, because judiciary is the last hope for the people when compradors and criminals rule the roost in politics and, hence, must not be the lost hope.
Orissa’s Ruling party has many such members, who, if cases were not limping in courts, would have been branded as criminals.
Ramchandra Hansada, ruling party member of Lok Sabha from Mayurbhanj Constituency is in Jail as an under-trial-prisoner in a case of chit fund scam. He was arrested on 04 November 2014 and the Central Bureau of Investigations (CBI) is prosecuting him in connection with R.C.No.50/S/2014-SCB/KOL.
In jail custody, he has failed to attend the sessions of the Lok Sabha. He has not taken permission of the Lok Sabha to remain absent. So his absence is unauthorized and voluminous enough to threaten him with disqualification under Article 101 (4) of the Constitution of India.
Article 101 (4)
The Article stipulates, “If for a period of sixty days a member of either House of Parliament is without permission of the House absent from all meetings thereof, the House may declare his seat vacant:
Provided that in computing the said period of sixty days no account shall be taken of any period during which the House is prorogued or is adjourned for more than four consecutive days”.
Using this Article as a ploy, he tried to hoodwink the Judiciary for bail, but failed.
Orders of the lower Courts
On 12.February 2-15, the Special CJM, CBI rejected his petition dated 6 February 2015 on the ground that, Article 101 (4) of the Constitution “shall not come to his rescue”, as “his detention in the judicial custody under criminal charges is lawful” when the offenses allegedly committed by him “are not within the due discharge of his lawful function as a sitting member of Parliament”.
The Sessions Judge, Khurda at Bhubaneswar also refused his petition for bail – B.A.No.183 of 2015 – on 21 Februaary 2015, relying upon a ruling of the Apex Court reported in 1966 SCR (2) 406 that rights of a member of Parliament to attend the session of Parliament to participate in the debate “are not constitutional rights in the strict sense of the term and quite clearly, they are not fundamental rights at all”. Refusing to be misled to accept a general Notice of Secretary-General of Parliament to a member for attending the Parliament session as a Summon from the President which Hansada was insisting to be, the Sessions Judge refused him bail, as to him, “nature of the offenses committed, particularly seriousness of economic offense” are too severe for enlarging him on bail; and when “further investigation is in progress” it would not be in consonance with “the larger interest of society and state”.
Writ Petition in the High Court
The High Court of Orissa was moved thereafter in W.P. ( C ) No. 3715 of 2015 seeking “release” of Hansada from jail to enable him to attend the Parliament, as otherwise his membership would collapse under Article 101 (4) of the Constitution necessitating a fresh election in his constituency of Mayurbhanj which would denude the exchequer of huge money. The High Court, in a ruling on Misc. Case No. 3722 of 2015 arising out of the Writ case, has rendered Article 101 (4) of the Constitution inconsequential in his case and helped him retain his membership by releasing him from the jail to attend the ensuing session of the Lok Sabha for a day on 20 March 2015.
Orissa in embarrassment
In this ruling, the CBI is directed to receive him from the jail as an accused under custody and hand him over to the Security officer of the Parliament who in turn shall return him to CBI after he joins the Lok Sabha session for a day. March 23 has been stipulated as the day of his reproduction before the CBI Court at Bhubaneswar to be remanded to the jail again. We consider such presentation of the MP to the Lok Sabha very embarrassing to Orissa.
Was this order necessary? Had Hansada not been judicially helped to overcome the mischief of Article 101 (4), was he sure to forfeit his membership? We would like to seek the answer.
Peculiarity of Article 101 (4)
The peculiarity of this article is that it has an inbuilt remedial provision that a member may resort to in order to avoid disqualification due to absence for a period of sixty days or more. He/she has to seek permission to stay absent for a long period under unavoidable circumstances. Hansada was never debarred from applying for permission. He has told the High Court that he has applied for leave of absence, which has not been denied. This means, mischief of Article 101 (4) was not to hit him with termination of his membership. The very thinking of termination of his membership while his application for leave of absence is pending in the Parliament is itself an affront to dignity of Parliament, being suggestive of possible contravention of the law of natural justice in the highest law making House of India.
Lest the law of natural justice gets contravened in matter of Article 101(4), provisions are made for notice to the member found absent for 40 days, so that the member shall apply for leave of absence before the Article gets activated against him or her. This is as per recommendation of the Committee on Absence of Members on 13 March 1956, when founding fathers of our Constitution were members of this Committee. On 24 March 1975, 11 April 1975 and 25 July 1975, CAM further prescribed that reminder would be sent to a member when his/her continuous absence amounts to fifty days. Hansada has not revealed whether or not he was reminded by the Lok Sabha Secretariat of his absence. If he was not reminded of his absence in time, the Lok Sabha was in such fault that termination of his membership on absence of sixty days (in fact 55 days by the day the High Court issued the order in question) would have been impossible, because, all the members in the current CAM are supposed to have expertise in handling leave of absence of members.
Moreover, there are provisions in practice for condonation of absence without permission, even when the period exceeds sixty days. Condonation of absence of B. Shiva Rao without permission for 68 days [3R (CAM-1 LS)] is one of many instances.
The House Committee
The Lok Sabha has a Committee to deal with absence of Members from the sittings of the House, created under Rule 325.
This Committee, under Rule 326 (1) (i) and (ii) is empowered to consider all applications from members for leave of absence from the sittings of the House and to examine and report every case where a member has been absent for a period of 60 days or more, without permission, from the sittings of the House.
Practice and Procedure
So, even if Hansda was to be hit with Article 101 (4) by not joining the sessions of the Lok Sabha for more than 60 days his membership was not to be terminated on ground of absence. The Court has recorded that the CBI has already informed the Speaker about the arrest of Hansada and his detention jn jail as an under-trial prisoner. So the Parliament is aware of his absence due to detention in jail. Detention in Jail is a recognized ground for condonation of absence beyond sixty days. (Leave of Absence of Members; Practice and Procedure of Parliament, p.409).
Without travesty of repetition, it can, therefore, be said that even if he would have stayed away from the sittings for more than 60 days, it should have been wrong to assume that by such absence he was to forfeit his membership. The Committee on absence of members might have recommended in his favor as “detention in jail” could never have been considered as willful absence. Might be, the Committee could have recommended for “condonation” of his absences on the ground of “detention in jail” in view of precedences created by the CAM, one of which is cited supra.
Direction should have been different
Orissa High Court should have taken this constitutional provision, invigorated with Rules and Procedures of the Parliament into consideration and should have directed Hansda to avail the constitutional facility prescribed for members of Parliament who remain absent around or beyond the permissible period of 60 days, instead of allowing him to attend the Lok Sabha session for a day under judicial custody.
But the role of the CAM, and the remedies available to him under the scheme of CAM and Parliamentary precedences were not placed before the High Court by Hansada. Obviously the High Court was hoodwinked.