Delhi High Court Grants Limited Custody Parole to Detained MP for Lok Sabha Session Amid Jurisdictional Deadlock on Bail, Reaffirms No Absolute Right to Attend Parliament

Court’s Decision:

The Delhi High Court granted custody parole to the petitioner, a sitting Member of Parliament (MP), for two days—February 11 and 13, 2025—to attend the ongoing Fourth Parliamentary Session of the 18th Lok Sabha. The court ruled that while MPs do not have an enforceable right to attend Parliament while under detention, the uncertainty over the jurisdiction of the Special NIA Court in deciding the petitioner’s bail application justified limited custody parole. The order was made with strict conditions to prevent misuse, including round-the-clock security custody, prohibition on communication devices, and restriction on interactions beyond parliamentary responsibilities.

Facts:

1. Background of the Case:
   • The petitioner was arrested on August 9, 2019, in connection with a National Investigation Agency (NIA) case (RC-10/2017/NIA/DLI dated May 30, 2017).
   • He was charged under Sections 120B, 121, 121A of the Indian Penal Code (IPC) and Sections 13, 16, 17, 18, 20, 38, 39, and 40 of the Unlawful Activities (Prevention) Act, 1967 (UAPA).
2. Allegations Against the Petitioner:
   • The NIA alleged that separatist leaders in Jammu and Kashmir, including Hurriyat Conference members, were involved in a criminal conspiracy to raise funds for terrorist activities through illegal channels, including hawala transactions.
   • The petitioner was accused of collaborating with terrorist organizations, including Hizb-ul-Mujahideen (HM), Lashkar-e-Taiba (LeT), Dukhtaran-e-Millat, and Jammu Kashmir Liberation Front (JKLF), to fund separatist activities in Kashmir.
   • The prosecution contended that Pakistan and its agencies financed these activities to wage war against India.
3. Bail Application and Jurisdictional Uncertainty:
   • The petitioner filed a second regular bail application on August 20, 2024, before the Special NIA Court, Patiala House Courts, New Delhi.
   • On November 21, 2024, the Special NIA Court referred the matter to the Principal District and Sessions Judge, citing the Supreme Court’s ruling in Ashwini Kumar Upadhyay v. Union of India, which mandates that cases involving MPs/MLAs be transferred to designated courts.
   • This created a jurisdictional deadlock, preventing the Special NIA Court from pronouncing judgment on the petitioner’s bail application.
   • On December 23, 2024, the Special NIA Court declined to decide the bail plea, ruling that it was not a “miscellaneous application” and could only be decided after the Supreme Court clarified the jurisdictional issue.
4. Interim Bail and Custody Parole Requests:
   • The petitioner sought custody parole to attend the parliamentary session but was denied bail twice by the Special NIA Court on July 2 and July 29, 2024.
   • His previous application for interim bail to attend the Third Parliamentary Session was also rejected due to the same jurisdictional uncertainty.
   • Given that his right to seek bail remained in limbo, he approached the Delhi High Court seeking custody parole.

Issues:

1. Whether the petitioner’s bail plea could be heard despite jurisdictional uncertainty over the Special NIA Court’s authority to decide MP cases.
2. Whether an MP, while under detention, has the right to attend Parliament under Article 105 of the Constitution.
3. Whether denying the petitioner a legal forum for bail consideration violated his fundamental rights under Article 21.
4. Whether custody parole should be granted under these special circumstances.

Petitioner’s Arguments:

1. Denial of Forum Violates Article 21 (Right to Personal Liberty and Access to Justice):
   • The petitioner argued that he was remediless as no legal forum was available to hear his bail plea.
   • He contended that the delay in deciding his bail application, solely due to jurisdictional uncertainty, violated his fundamental right to speedy trial under Article 21 of the Constitution.
   • The Supreme Court’s ruling in Ashim v. NIA (2022) 1 SCC 695 was cited, which held that deprivation of personal liberty without a speedy trial violates constitutional rights.
2. Right to Attend Parliament as an Elected MP:
   • The petitioner claimed that he was duly elected from the Baramulla constituency and had a constitutional duty to represent his constituents in Lok Sabha.
   • He relied on a summons from the President of India, directing his presence in Parliament.
   • Since his previous interim bail (September 10, 2024) was granted without objection from the NIA, he argued that a temporary release for parliamentary duties was reasonable.
3. Precedents Supporting Custody Parole for MPs:
   • The petitioner cited Rajesh Ranjan @ Pappu Yadav v. UOI (Delhi HC, 2008 & 2009), where custody parole was granted to an MP to attend Parliament.
   • He emphasized that he was willing to comply with all security restrictions.

Respondent’s Arguments (NIA’s Stand):

1. MPs Have No Statutory Right to Attend Parliament While in Custody:
   • The NIA argued that MPs do not have an absolute right to participate in parliamentary sessions while in detention.
   • Suresh Kalmadi v. UOI (2011) and Shekhar Tiwari v. State of UP (2009) were cited to support the claim that judicial custody overrides parliamentary privileges.
2. Repeated Rejections of Similar Requests:
   • The NIA pointed out that the Special NIA Court had already denied interim bail twice, and the petitioner never challenged these rejections.
   • Therefore, raising the same issue before the High Court was impermissible.
3. Security Concerns and Past Misuse of Privileges:
   • The petitioner’s jail phone facilities were restricted due to past misuse.
   • The NIA argued that custody parole posed a security risk, requiring extensive security arrangements.

Analysis of the Law:

1. MPs’ Rights Under the Constitution (Article 105):
   • Article 105 grants freedom of speech to MPs but does not guarantee them a right to attend Parliament if legally detained.
   • In K. Ananda Nambiar v. Govt. of Madras (1965), the Supreme Court held that a detained MP loses the right to parliamentary privileges.
2. Judicial Precedents Against Custody Parole:
   • The Delhi HC in Suresh Kalmadi (2011) and the Allahabad HC in Raghu Raj Pratap Singh (2003) ruled that an MP’s right to vote and contest elections is statutory, but the right to attend Parliament is not.
3. Fundamental Right to Access Justice (Article 21):
   • In Anita Kushwaha v. Pushap Sudan (2016) 8 SCC 509, the Supreme Court ruled that denial of a forum for legal redress amounts to a violation of fundamental rights.

Court’s Reasoning:

1. Jurisdictional Delay Denies Justice:
   • Since August 2024, the petitioner’s bail application has remained undecided due to jurisdictional uncertainty.
   • The High Court acknowledged that the inability to seek bail due to a lack of jurisdictional clarity amounted to a violation of the petitioner’s rights.
2. Limited Custody Parole With Strict Conditions:
   • The court ruled that custody parole should not become a precedent.
   • Restrictions included:
     • No use of mobile phones or internet.
     • No media interaction.
     • Constant security custody.
     • The petitioner could only attend Parliament and not meet others.

Conclusion:

The Delhi High Court granted limited custody parole but reaffirmed that MPs do not have an inherent right to attend Parliament while under detention.

Implications:

1. Clarity Needed on Bail Jurisdiction for MPs in NIA Cases.
2. Custody Parole for Legislators Will Be Rare.
3. Precedent Set for Handling Similar Cases in the Future.

Also Read – Delhi High Court Grants Bail to Attempted Murder Accused: “Absence of Grievous Injuries, Lack of Weapon Recovery, and Prolonged Incarceration Without Trial Progress Justify Release Under Article 21 of the Constitution”