KAMESHWAR BAITHA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THIS writ application has been filed for issuance of a writ in the nature of Mandamus directing the respondents authorities to make arrangement for facilitating the petitioner to participate in the proceeding of the Lok Sabha which has commenced from 19th November, 2009.

(2.) LEARNED counsel appearing for the petitioner submits that the petitioner, Kameshwar Baitha while was in custody in connection with some cases was elected as Member of the Parliament from 13 -Palamau (S.C) Constituency in the Lok Sabha Election held this year. On being elected, he was required under law to take oath but as the petitioner was in custody in connection with some cases pending at Sasaram, writ application was filed before the Patna High Court for a prayer to direct the authorities to make arrangement for his presence in the Special Session of the Parliament for taking oath. That prayer was allowed and the petitioner was taken to Parliament where he was administered with oath and then was brought back and was sent to jail. Presently, the petitioner has been in custody in some of the cases at Garhwa. While the petitioner was in custody in connection with some cases pending at Garhwa, Her Excellency the President summons each Houses of Parliament to meet for the Sessions commencing from 19th November, 2009 and, accordingly, the petitioner being Member of the Parliament was requested to attend the Session and, as such, the petitioner moved before the court below for the prayer that the petitioner be taken to Parliament for attending its Session but that prayer was refused and hence, the petitioner has moved this Court.

(3.) HAVING heard learned counsel appearing for the parties, it does appear that earlier the petitioner on being elected as Member of Parliament, moved before the Patna High Court for taking him to Parliament for taking oath and for participation in the proceeding. His prayer was allowed to take oath and to participate in the proceeding only on that day on the basis of decision of the Hon'ble Supreme Court rendered in similar situation in the case of Rajesh Ranjan v/s. State of Bihar & Ors [2000 (9) SCC 222]. Therefore, it is obvious that the petitioner did not participate for rest of the Session of the Parliament. Nothing was placed to establish that the petitioner does have vested right to participate in the proceeding of the Parliament. However, the provision as enshrined under Article 101(4) of the Constitution of India was referred to but that speaks about the disqualification in a case where Member of either House of the Parliament without permission of the House absents from all the meeting for a period of 60 days. But this question presently does not arise as no factual fact was brought on the record that 60th day of the absence of the petitioner from the Session of the Parliament would be falling during this Session and as such, invoking of such provision by the competent authority does not arise for the present and, therefore, the petitioner does not seem to be entitled to relief as claimed. However, petitioner would be at liberty to move for appropriate relief if his membership would be under threat of its termination as contemplated under Article 101(4) of the Constitution.