Indian National Congress (INC) Chief Whip in the Rajya Sabha Jairam Ramesh said today on the issue of summons to the leader of the opposition (LoP) Mallikarjun Kharge in the middle of a parliamentary session. "Issuing of summons by ED or any law-enforcing agencies to any MP, much less the LoP (Mallikarjun Kharge), when the Parliament is in session, is an outright affront to the sacred institution of Parliament and Parliamentarians," the INC chief whip in Rajya Sabha said.
The INC has been protesting against the alleged misuse of agencies that report to the union government, such as the Enforcement Directorate (ED), the Central Bureau of Investigation (CBI) and the Income Tax Department, to "frame" political rivals.
On 4 August, INC MPs forced adjournments in the Upper House when Kharge said he had received a summons from the ED to appear before the agency even while the house was in session.
Priyanka Chaturvedi of the Shiv Sena too raised the issue of the arrest of member Sanjay Raut by the ED saying that the Chairman should have been apprised.
On 5 August, protests by INC members on the issue led to an adjournment by nearly 30 min.
Ramesh said that on 5 August 2022, the outgoing chairman of the Rajya Sabha had made an observation, "the thrust of which was parliamentary privileges are not available in criminal cases. Here, it is to be noted that there is no dispute whatsoever on the well-established position that privileges are not available in criminal cases, which was upheld by the Supreme Court in K Ananda Nambiar and R Umanath vs Chief Secretary to Government of Madras (AIR 1966 SC 657)."
Arguments of Jairam Ramesh
"The point of contention is not on this aspect. In the National Herald case, firstly, LoP is not the accused," Ramesh said.
The INC leader elaborated: "Furthermore, on 4 August 2022, the ED 'summoned' him, requiring that his invariable presence at the premises of YIL (Young Indian Limited) for the purpose of conducting (a) search in his presence and recording his statement. In this context, attention is also drawn to Rule 229 of the Rules of Procedure and Conduct of Business in Lok Sabha and Rule 222A of the Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha) provisions of which require that whenever a Member of Parliament is arrested on a criminal charge or for a criminal offence or is sentenced to imprisonment by a court or is detained under an executive order, the committing judge, magistrate or executive authority, an intimation in this regard has to be immediately sent to Speaker Lok Sabha or Chairman Rajya Sabha as the case may be," Ramesh wrote in the statement.
"Even though the house was in session, LoP adhered to the summons and accordingly went to the Young India office in which premises he was required to be present for as long as eight and a half hours. Notwithstanding this fact, in such matters, issuing of summons in such matters, issuing of summons by ED or any law-enforcing agencies to any MP much less the Leader of Opposition when the Parliament is in session, is an outright affront to the sacred institution of Parliament and Parliamentarians," Ramesh said.
Outgoing Rajya Sabha Chairman M Venkaiah Naidu had said on 5 August that some MPs had a wrong notion that they enjoyed a privilege from action by investigating agencies while the session is on.
Clarification by M Venkaiah Naidu
As the house assembled on Friday, 5 August, Naidu said, "Going by what has happened in the last few days, I want to clarify one thing… that there is a wrong notion among the members that they have a privilege from action by agencies while the session is on."
Naidu said he had examined all the precedents and under Article 105 of the Constitution, MPs enjoy certain privileges so that they can perform their parliamentary duties without any hindrance."One of the privileges is that a Member of Parliament cannot be arrested in a civil case, 40 days before the commencement of the Session or Committee meeting and 40 days thereafter. This privilege is already incorporated under section 135A of the Civil Procedure Code, 1908.
However, in criminal matters, MPs are not on a different footing than a common citizen. It means that an MP does not enjoy any immunity from being arrested in a criminal case during the session or otherwise, he said.
He explained there had been a number of rulings by Presiding Officers. He recounted a ruling given in 1966 by Zakir Hussain. It was said, "Members of Parliament do enjoy certain privileges so that they can perform their duties. One such privilege is freedom from arrest when the parliament is in session. This privilege of freedom from arrest is limited only to civil cases and has not been allowed to interfere in the administration of criminal proceedings."
The outgoing chairman asked the members to recall an observation made earlier by him where he said, "No member should avoid appearing before any investigating agency when she or he is called upon to do so by citing the reason of house duty. As lawmakers, it is our bounden duty to respect the law and legal procedures."
Who is right?
Contrary to the assertion by Jairam Ramesh, an aspect of the National Herald case is criminal and not civil in nature. In 2012, BJP MP Subramanian Swamy alleged criminal misappropriation by both Sonia Gandhi and Rahul Gandhi, which initiated the legal case against the ownership and functioning of the INC mouthpiece.
On 1 November 2012, Subramanian Swamy filed a private complaint in a court in Delhi alleging that both Sonia Gandhi and Rahul Gandhi have committed fraud and land grabbing worth Rs 1,600 crore by acquiring a public limited company called Associated Journals Limited (AJL) through their owned private company, Young Indian. He claimed that, through this fraud, they had got the publication rights of the National Herald and Qaumi Awaz newspapers, with real estate properties in Delhi and Uttar Pradesh. He alleged that the acquired properties were given by the government only for the purposes of publishing newspapers, but were used for running a passport office with rental income amounting to millions of rupees.
His complaint in the court further alleges that on 26 February 2011, AJL approved the transfer of an unsecured loan of Rs 90 crore from the All India Congress Committee at zero interest with all 9 crore shares of the company of Rs 10 each to Young Indian. Swamy argued that it was illegal for a political party to lend money for commercial purposes as per Section 29A to C of the Representation of the People Act, 1951, and Section 13A of Income Tax Act, 1961, and demanded an investigation by the Central Bureau of Investigation (CBI) and the de-recognition of the INC for using public money. On 2 November 2012, the party responded that the loan was given only for reviving the National Herald newspaper with no commercial interest.
The hearing in the case of the criminal proceedings was taken up by the magistrate on various dates while the defendants opposed the petition and asked the magistrate to dismiss it. The court finally observed that prima facie evidence against all the accused was found. The court issued summons to the defendants to appear in court to defend themselves against all the allegations made in Swamy's complaint.
On 7 December 2015, the Delhi High Court dismissed the appeals of Sonia Gandhi, Rahul Gandhi and five others which included Motilal Vora, Oscar Fernandes, Suman Dubey and Sam Pitroda, and ordered them to appear in person before the trial court on 9 December. The Delhi High Court in its 7 December 2015 judgment noted "criminal intent."
Now, the INC is making a hue and cry primarily not over the questioning of second-rung leaders by the ED but for that of their topmost leaders Sonia Gandhi and Rahul Gandhi, against whom the charges are criminal in nature. Venkaiah Naidu's interpretation of the law is, therefore, correct while Jairam Ramesh is trying to deflect public attention to such aspects of the case that are civil.