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PETITIONER: K.   ANANDAN NAMBIAR AND ANOTHER

       Vs.

RESPONDENT: CHIEF SECRETARY, GOVERNMENT OF MADRAS AND  OTHERS

DATE OF JUDGMENT: 27/10/1965

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M. BACHAWAT, R.S. RAMASWAMI, V.

CITATION:  1966 AIR  657            1966 SCR  (2) 406  CITATOR INFO :  R          1966 SC 816  (1)  RF         1975 SC2299  (84,85,86,178,365)  RF         1976 SC1207  (191,264,265,474,547)

ACT: Defence  of  India  Act  and  Rules,  1962,  r.  30(1)(b)-If invalid. Constitution   of   India,  1950,  Arts  352   and   359(1)- Presidential  Order  suspending  right  to  move  Court  for enforcement  of  fundamental  rights  Petition   challenging validity of rule--Maintainability.

HEADNOTE: The  petitioners  were  members of  Parliament.   They  were detained  by orders passed by the State Government under  r. 30(1)  (b)  of  the  Defence of  India  Rules,  1962.   They challenged  the validity of the orders of detention  on  the grounds  that  : (i) rule 30(1) (b) was invalid  because,  a legislator  cannot  be detained so as to  prevent  him  from exercising  his  constitutional rights  as  such  legislator while  the  legislative chamber to which he  belongs  is  in session; and- (ii) the impugned orders were passed mala fide as  they  were  passed  for the  purpose  of  stifling  the; petitioners’ political activities which were inconvenient to the  State  Government.  It was also urged that  the  orders were  passed  by  the Chief Minister of  the  State  without satisfying  himself  of  the  necessity  of  detaining   the petitioners  merely because the Union Home Minister  thought that  the  petitioners should be detained.   The  respondent raised  a  preliminary  objection that  the  petitions  were incompetent in view of the Order issued by the President  of India under Art. 359(1), suspending the rights of any person to  move  any  court  for  the  enforcement  of  the  rights conferred by Arts. 14, 21 and 22 for the period during which the  Proclamation of Emergency issued under Art. 352 was  in force,  if such person had been deprived of any such  rights under the Defence of India Act, 1962, for any rule or  order made thereunder. HELD  :  (i)  The  last clause  of  the  Presidential  Order

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postulates  that  the Defence of India Act or  any  rule  or order made thereunder is valid.  During the pendency of  the Presidential Order, the validity of Act, rule or order  made thereunder  cannot  be questioned on the  ground  that  they contravene  Arts. 14, 21, (and 22; but this limitation  will not preclude a citizen from challenging the validity of  the Act,  rule  or order made thereunder, on any  other  ground. [410 F-G] The  petitioners contended that r. 30(1)(b) under which  the impugned orders of detention had been passed was invalid  on grounds  other than those based on Arts. 14, 19, 21 and  22. If  that  plea  was well-founded, the  last  clause  of  the Presidential  Order was not satisfied and therefore the  bar created  by it suspending the citizens’  fundamental  rights under Arts. 14, 21, and 22 could not be pressed into service by  the  respondent.   The petitions,  therefore,  were  not incompetent. [412 B] Makhan  Singh v. The State of Punjab, [1964] 4  S.C.R.  797, followed. (ii) Rule 30(1)(b) is not invalid. [421 A] Articles  79,  85,  86  and  100(1),  relied  upon  by   the petitioners cannot be said to deal with any rights which can be, described as ’constitutional  407 rights of the members of Parliament.  The totality of rights cannot  claim  the  status of  fundamental  rights  and  the freedom of speech on which reliance was placed is a part  of the privileges failing under Art. 105.  A plea that a breach has  been committed of any of these privileges could not  be raised  in  view  of  the  decision  of  the  Committee   of Privileges  of the House of Commons in the case  of  Captain Ramay, because the privileges, powers and immunities of  the members  of the Indian Legislature are the same as those  of the  members of the House of Commons as they existed at  the commencement  of the Indian Constitution.  Besides,  freedom of speech would only be available to a member of  Parliament when  he attends the session of Parliament.  If an order  of detention  validly prevents him from attending a session  of Parliament, no occasion arises for the exercise of the right of  freedom of speech and no complaint can be made that  the said right has been invalidly invaded. [415 G-H; 419 B-D] If a person who is convicted and sentenced for a period less than   two   year  such  a  conviction  would   not   entail disqualification  for  being  a  member  of   Parliament-has necessarily  to  forego his right of  participating  in  the business of the legislature to which he belongs, because  he is convicted and sentenced it would follow that a person who is detained must likewise forego his right to participate in the business of the Legislature.  Therefore, it could not be contended  that so long as the member of Parliament had  not incurred any disqualification, he was entitled to.  exercise his rights as such member. [419 H; 420 A-B] The true constitutional position, therefore, is that so  far as  a  valid order of detention is concerned,  a  member  of Parliament  can claim no special status higher than that  an ordinary  citizen and is as much liable to be  arrested  and detained under it as any other citizen. [420 E-F] (iii)     In  view  of the facts that the detention  of  the petitioners  formed"  part of a larger  question  about  the attitude  which  the  Government  of  India  and  the  State Governments should adopt in respect of the activities of the party  to which the petitioners be-longed, namely, the  pro- Peking  faction of the Communist party, and that  the  issue was  examined  by the, Union Home Minister  along  with  the Chief  Ministers  of States and only  general  decisions  in

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relation  thereto  were,  arrived at,  and  that  the  Chief Minister  of  the  State had made a  clear  and  unambiguous statement  in  his  affidavit  that  he  had  examined   the materials  in relation to the activities of the  petitioners and  was  satisfied that it was necessary  to  detain  them, there  was no substance in the grievance of the  petitioners that the impugned orders of detention were made either  mala fide  or without the. proper satisfaction of  the  detaining authority. [424 H; 425 A-D, F-G, 426 B]

JUDGMENT: CRIMINAL  JURISDICTION : Writ Petitions Nos. 47 and  61  of’ 1965. Under  Article 32 of the Constitution of India for  enforce- ment of Fundamental Rights.  M.  C. Setalvad, N. C. Chatterjee, M. R. K. Pillai,  R.  K. Garg, S. C. Agarwala, D. P. Singh and M. K. Ramamurthi,  for the petitioner (in W.P. No. 47/65). R.   K. Garg, S.  C. Agarwala, D. P.  Singh and M. K.  Rama- murthi, for the petitioner (in W.P. No. 61/65). 408 N.   Krishnaswami  Reddy,  Advocate-General, Madras,  V.  P. Raman  and A. V. Rangam, for respondent no.  1 (in both  the petitions). Niren  De, Additional Solicitor General,N.  S.  Bindra,  -B. R. G. K. Achar and R. N. Sachthey, for respondent no. 2  (in ,both the petitions). L.   D.  Kaushal, Dy.  Advocate General, ’Punjab and  R.  N. Sachthey, for intervener no. 1. U.   P. Singh, for the State of Bihar and Union Territory of Tripura. R.   K.  Garg, S. C. Agarwala, D. P. Singh and M.  K.  Rama- murthi, for the intervener (Makhan Singh Tarsikka). Veerappa and Hardev Singh for the interveners (Satwant Singh and 12 ors.) All the other interveners appeared in person. The Judgment of the Court was delivered by Gajendragadkar, C.J. Mr. K. Ananda Nambiar, who is a  Member of Parliament, has been detained by the Government of Madras since the 30th December, 1964.  On the 29th December,  1964, an  order  was  passed under Rule 30(1)(b) and  (4)  of  the Defence of India Rules, 1962 in which it was stated that the Government  of  Madras were satisfied with  respect  to  the petitioner K. Ananda Nambiar that with a view to  preventing him from acting in any manner prejudicial to the defence  of India  and  the public safety, it was necessary to  make  an order  directing that he be detained The said order  further directed  that  the  petitioner should be  arrested  by  the police  wherever  found and detained in  the  Central  Jail, Tiruchirapalli.  Though this order directed the detention of the  petitioner in the Central Jail, Tiruchirapalli,  it  is common  ground  that  he has been detained in  fact  in  the Central Jail, Cuddalore.  By his present writ petition  (No. 47  of  1965) filed under Art. 32 of the  Constitution,  the petitioner  challenges  the validity of the  said  order  of detention mainly on two grounds.  He contends that Rule 30 ( 1  ) (b) under which the impugned order has been  passed  is invalid, and in the alternative, he argues that the impugned order is not valid, because it has been passed mala fide and is otherwise not justified by the relevant Rules. Mr.  R.  Umanath, who is also a Member  of  Parliament,  has ,been  similarly  detained  by  the  order  passed  by   the Government of

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409 Madras on the 29th December, 1964 and in the same terms.  He has   also   been  detained  not  in   the   Central   Jail, Tiruchirapalli,  as  mentioned  in the  order,  but  in  the Central Jail, Cuddalore, since the 30th December, 1964.   By his  writ petition (No. 61 of 1965), the petitioner  Umanath has  raised  the same points before us.   Mr.  Setalvad  has argued  the first point of law about the invalidity  of  the relevant  Rule, whereas Mr. Chatterjee has argued the  other ,point relating to the invalidity of the impugned orders, on behalf  of both the petitioners.  To these  two  petitioners are  impleaded  respondent  No.  1,  -the  Chief  Secretary, Government of Madras, respondent No. 2, the  Superintendent, Central Jail, Cuddalore; and respondent No. 3, the Union  of India. Before-proceeding  to  deal with the points  raised  by  the petitioners,  it  is necessary to consider  the  preliminary objection  which  has been urged before us  by  the  learned Additional Solicitor General who has appeared for respondent No.  3. He contends that the writ petitions are  incompetent in  view  of the Order issued by the President  on  the  3rd November,  1962.   It  will be recalled  that  on  the  26th October,  1962,  the  President  issued  a  Proclamation  of Emergency  in  exercise of the Powers conferred  on  him  by clause   (1)  of  Art.  352  of  the   Constitution.    This Proclamation declared that a grave emergency existed whereby the security of India was threatened by external aggression. Thereafter, two Orders were issued by the President, one  on the  3rd November, 1962 and the other on the  1st  November, 1962  in exercise of the powers conferred by clause  (1)  of Art. 359 of the Constitution.  The first Order as amended by the later Order reads thus               "In exercise of the powers conferred by clause               (1)  of  Art.  359 of  the  Constitution,  the               President  hereby declares that the  right  of               any   person  to  move  any  court   for   the               enforcement  of the rights conferred by  Arts.               14, 21 and 22 of the Constitution shall remain               suspended  for  the period  during  which  the               Proclamation of Emergency issued under  clause               (1)  of Art. 352 thereof on the 26th  October,               1962,  is  in force, if such person  has  been               deprived of any such rights under the  Defence               of  India Ordinance, 1962 (4 of 1962)  or  any               rule or order made thereunder". It may be added at, this stage that Ordinance No. 4 of  1962 later  became an Act called The Defence of India  Act,  1962 (No.  51 of 10.62.)’. The argument is that  the  petitioners are  admittedly detained under Rule 30(1)(b) of the  Defence of India Rules, 4 10 and so, the said Presidential Order is inevitably attracted; and  that  means that the petitioners’ right  to  move  this Court under Art. 32 is suspended during the pendency of  the Proclamation of Emergency. We  are not impressed by this argument.  In  construing  the effect of the Presidential Order, it is necessary to bear in mind  the general rule of construction that where  an  Order purports to suspend the fundamental rights guaranteed to the citizens  by  the  Constitution,  the  said  Order  must  be strictly  construed in favour of the  citizens’  fundamental rights.   It will be noticed that the sweep of the Order  is limited by its last clause.  This Order can be invoked  only in  cases where persons have been deprived of  their  rights under  Acts.  14,  21  and 22 under  the  Defence  of  India

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Ordinance  or any rule or order made there under.  In  other words, if the said fundamental rights of citizens are  taken away otherwise than under the Defence of India Ordinance  or rules or orders made thereunder, the Presidential Order will not  come into operation.  The other limitation is that  the Presidential Order will remain in operation only so long  as the  Proclamation of Emergency is in force.  When these  two conditions  are satisfied, the citizen’s right to move  this Court  for the enforcement of his rights conferred by  Arts. 14, 21 and 22 is no doubt suspended; and that must mean that if the citizen wants to enforce those rights by  challenging the  validity  of the order of his detention, his  right  to move this Court would be suspended in so far as he seeks  to enforce the said rights. But  it  is  obvious  that  what  the  last  clause  of  the Presidential  Order postulates is that the Defence of  India Ordinance or any rule or order made thereunder is valid.  It is true that during the pendency of the Presidential  Order, the validity of the Ordinance, rule or order made thereunder cannot  be  questioned on the  ground  that,they  contravene Arts. 14, 21 and 22; but this limitation mill not preclude a citizen from challenging the validity of the Ordinance, rule or  order  made  thereunder on any  other  ground.   If  the petitioner   seeks  to.  challenge  the  validity   of   the Ordinance, rule or order made thereunder on any ground other than  the  contravention  of  Arts.  14,  21  and  22,   the Presidential  Order  can-not come into operation.   In  this connection,  we  ought  to add that  the  challenge  to  the Ordinance,  rule  or order made thereunder  cannot  also  be raised  on  the  ground of the  contravention  of  Art.  19, because as soon as a Proclamation of Emergency is issued  by the President, under Art. 358 the provisions of Art. 19  are automatically  suspended.  But the point still remains  that if a challenge  411 is made to the validity of the Ordinance, rule or order made thereunder on a ground other than those covered by Art. 358, or  the  Presidential  Order  issued  Art.  359(1),  such  a challenge is outside the purview of the Presidential  Order; and-if a petition is filed by a citizen under Art. 32 on the basis  of such a challenge, it cannot be said to be  barred, because such a challenge is not covered by the  Presidential Order at all. In  Makhan  Singh  Tarsikka v. The State  of  Punjab  (1)  a Special Bench of this Court has had occasion to consider the effect  of  the  Proclamation of  Emergency  issued  by  the President  and  the  Presidential Order with  which  we  are concerned  in the present writ petitions.  In that case,  it was held that the sweep of Art. 359 (1) and the Presidential Order  issued under it is wide enough to include all  claims made by citizens in any court of competent jurisdiction when it  is  shown  that the said claims  cannot  be  effectively adjudicated  upon  without  examining  the  question  as  to whether the citizen is, in substance, seeking to enforce any of  the  specified  fundamental rights and  that  means  the fundamental rights under Arts. 14, 19, 21 and 22.  Even  so, this  Court  took the precaution of pointing out that  as  a result of the issue of the Proclamation of Emergency and the Presidential  Order, a citizen would not be deprived of  his right  to  move the appropriate court for a writ  of  habeas corpus  on  the ground that his detention has  been  ordered mala  fide.  Similarly, it was pointed out that if a  detenu contends  that  the operative provisions of the  Defence  of India  Ordinance under which he is detained suffer from  the vice  of excessive delegation, the plea thus raised  by  the

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detenu cannot, at the threshold, be said to be barred by the Presidential  Order,  because, in terms, it is  not  a  plea which  is relateable to the fundamental rights specified  in the said order. Let  us refer to two other pleas which may not  fall  within the  purview of the Presidential Order.  If the detenu,  who is  detained  under  an order passed  under  Rule  30(1)(b), contends  that the said Order has been passed by a  delegate outside  the authority conferred on him by  the  appropriate Government  under S. 40 of the Defence of India Act,  or  it has  been  exercised  inconsistently  with  the   conditions prescribed  in  that behalf, a preliminary bar  against  the competance  of the detenu’s petition cannot be raised  under the  Presidential  Order,  because the last  clause  of  the Presidential  Order  would not cover such  a  petition,  and there is no doubt that unless the case falls under the  last clause of the Presi- (1)  [1964] 4 S.C.R. 797. 4 12 dential Order, the bar created by it cannot be  successfully invoked against a detenu.  Therefore, our conclusion is that the learned Additional Solicitor-General is not justified in contending that the present petitions are incompetent  under Art. 32 because of the Presidential Order.  The  petitioners contend  that  the relevant Rule under  which  the  impugned orders of detention have been passed, is invalid on  grounds other than those based on Arts. 14, 19, 21 & 22; and if that plea  is well-founded, the last clause of  the  Presidential Order is not satisfied and the bar created by it  suspending the  citizens’ fundamental rights under Articles 14, 21  and 22 cannot be press into service. That  takes  us to the merits of Mr.  Setalvad’s  contention that  Rule  30(1)  (b)  of the Defence  of  India  Rules  is invalid.   The Rule in question has been framed under  s.  3 (2) (15) of the Defence of -India Act, and in that sense  it can  be  said,  prima facie, to be  justified  by  the  said provision.   But  Mr. Setalvad argues that in so far  as  it permits  a  Member  of Parliament to be  detained,  it  con- travenes   the   Constitutional  rights,   of   Members   of Parliament.    According  to  Mr.  Setalvad,  a  Member   of Parliament, like a Member of any of the State  Legislatures, has  constitutional riots to function as such Member and  to participate  in  the  business  of the  House  to  which  he belongs.   He  is  entitled  to  attend  every  Session   of Parliament,  to take part in-the debate, and to  record  his vote.  SG long as a member of Parliament is qualified to  be such  Member,  no law can validly take. away  his  right  to function  as such Member.  The right to participate  in  the business of the-legislative chamber to which he belongs,  is described  by Mr. Setalvad as his constitutional right,  and he urges that this constitutional right of a legislator  can be  regarded as his fundamental right; and inasmuch  as  the relevant  Rule  authorises  the detention  of  a  legislator preventing  him  from  exercising such right,  the  Rule  is invalid.  In the alternative, Mr. Setalvad contends that the Rule  should be treated as valid in regard to persons  other than  those  who are Members of Legislatures,  and  in  that sense,  the  part  of  it  which  touches  the  Members   of Legislatures, should be severed from the part which  affects other  citizens and the invalid part should be struck  down. This  argument  again  proceeds on the  same  basis  that  a legislator  cannot be validly detained so as to prevent  him from  exercising  his rights as such  legislator  while  the legislative  chamber to which he belongs is in session.   On the same basis, Mr’ Setalvad has urged another argument  and

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suggested  that  we should so construe the Rule  as  not  to apply  to legislators.  It would be noticed that the  common basis of all these alternative arguments is the assump- 413 tion  that  legislators have certain  constitutional  rights which  cannot  be  validly  taken away  by  any  statute  or statutory rule. In  support of this argument, Mr. Setalvad has  referred  us to, certain constitutional provisions.  The first Article on which he relies is Art. 245(1).  This Article provides  that subject to the, provisions of this Constitution,  Parliament may make laws for the whole or any part of the territory  of India, and the Legislature of a State may make laws for  the whole  or any part of the State.  The argument is  that  the power  to  make  laws is subject to the  provisions  of  the Constitution   and   that  being  so,  if  there   are   any constitutional  rights which the legislators can  claim,  no law can be validly passed to take away the said rights.   In other  words,  just  as  the validity  of  any  law  can  be challenged on the ground that it contravenes the fundamental rights  guaranteed  by Art. 19, so can the validity  of  the impugned   Rule  be  challenged  on  the  ground   that   it contravenes the constitutional-cum-fundamental rights of the legislators. These constitutional rights, according to Mr. Setalvad,  are to  be found in several Articles of the  Constitution.   Mr. Setalvad’s argument begins with Art. 79.  This article deals with  the  constitution  of  Parliament;  it  provides  that Parliament  of the Union shall consist of the President  and two  Houses  to  be, known respectively as  the  Council  of States and the House of the People.  Article 85 (i)provides, inter  alia,  that  the President shall from  time  to  time summon  each  House of Parliament to meet at such  time  and place  as he thinks fit.  In accordance with the  provisions of this article, when the President decides to call for  the session   of  Parliament  summons  are  issued   under   his directions  asking all Members of Parliament to  attend  the ensuing-session.   The  Detitioner Ananda  Nambiar  received such a summons issued on the 9th January, 1965 Article 86(i) gives  the  President the right to address either  House  of Parliament  or  both  Houses  assembled  together,  and   it Provides that for that purpose, the President shall  require the attendance of members.  Mr. Setalvad argues that when  a summons  is issued by the President requiring the member  to attend the ensuing session of Parliament, it is not only his right,  but  his  constitutional obligation  to  attend  the session  and  hear  the speech of  the  President.   Article 100(i)  refers to the voting in the Houses, and it  provides that  save as otherwise provided in this  Constitution,  all questions at any sitting of either House or joint sitting of the Houses shall be determined by a majority of votes of the members present and voting, other than the Speaker or person acting  as  Chairman or Speaker.  Article 101  (4)  provides that if for a 414 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.  It is  common ground that if a member is detained or  otherwise prevented  from  attending  the session  of  the  House  for personal  reasons, as asks for permission of the  House  and usually,  such  permission is granted’.  Article  105  deals with the powers, privileges and immunities of Parliament and its Members.  Mr. Setalvad strongly relies on the provisions of  sub-articles (1) & (2) of Art. 105 which deal with  :the

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freedom of speech inside the House of Parliament, and confer ,absolute  immunity on the Members of Parliament in  respect of  their  speeches and votes.  If the  order  of  detention prevents a Member of Parliament from attending the,  session of  Parliament,  from participating in the debate  and  from giving  his  vote,  that  amounts  to  a  violation  of  his constitutional rights; that, in substance, is Mr. Setalvad’s argument. Mr.  Setalvad  also  relied  on the  fact  that  this  right continues  to  vest in the Member of Parliament  during  the life  of  the  Parliament unless he  is  disqualified  under Art.102 or under s.7(b) of the Representation of the  People Act,  1951  (No.  43 of 1951).  Article 84  deals  with  the qualification  for  membership  of  Parliament.   With   the provisions  of  this  article we are not  concerned  in  the present proceedings, because we are dealing with the  rights of  persons who have already been elected to the  Parliament in  ,other words, who possess the qualifications  prescribed by  Art. 84.  Article 102 prescribes  disqualifications  for membership; it provides, inter alia, that a person shall  be disqualified   for  being  a  member  of  either  House   of Parliament  if his case falls under any -of its clauses  (a) to  (e).  This disqualification applies for being chosen  or for being a member of either House of Parliament.  In ,other words, if a person incurs the disqualification prescribed by the  relevant clauses of Art.102(1) after he is  elected  to either  House  of  Parliament, he will cease to  be  such  a Member  as  a result ,of the said  disqualification.   If  a disqualification  is  not  incurred as  prescribed  by  Art. 102(1),  he  is entitled to continue to be a member  of  the House during its life.  Section 7 of the Representation  ,of the  People Act prescribes disqualifications for  membership of  Parliament  or  of a St-ate Legislature.  S.  7  (b)  is relevant  for our purpose.  It provides that a person  shall be  disqualified  for  being -chosen as, and  for  being,  a member  of either House of Parliament if, whether before  or after  the  commencement of the Constitution,  be  has  been convicted  by a Court in India of any offence and  sentenced to imprisonment for not less than two years, unless a  415 period  of five years, or such less’ period as the  Election Commission  may  allow in any particular case,  has  elapsed since his release.  The argument based on the provisions  of s 7 is the same as the -argument based on the provisions  of Art.   102.    If   a  Member   of   Parliament   incurs   a disqualification, he may cease to be such member, but if  he continues to be qualified to be a member, his constitutional rights cannot be taken away by any law or order. It  will be noticed that in substance the claim made is  one of exemption from arrest under a detention order and,  prima facie,  such  a claim would normally and  legitimately  fall under  Art. 105(3) of the Constitution.  Art.  105(3)  deals with the powers, privileges and immunities of Parliament and its  Members,  and it provides that in other  respects,  the powers,   privileges  and  immunities  of  each   House   of Parliament,  and of the members and the committees  of  each House, shall be such as may from time to time be defined  by Parliament  by law, and until so defined, shall be those  of the  House  of  Commons  of the  Parliament  of  the  United Kingdom,  and  of its members and committees,  at  the  com- mencement of this Constitution.  But Mr. Setalvad  expressly stated  before  us  that he did not rest  his  case  on  the provisions of Art. 105(3) and that obviously is for the very good reason that freedom from arrest under a detention order is  not  recognised as a privilege which can be  claimed  by

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Members of House of Commons in England.  It is because  such a  claim  cannot be based on the provisions of  Art.  105(3) that  Mr.  Setalvad has been driven to adopt  the  ingenious course  of  suggesting  that the rights of  the  Members  of Parliament to participate in the business of Parliament is a constitutional and even a fundamental right which cannot  be contravened  by  any law.  The narrow  question  which  thus falls  to be considered on this contention is : if  a  claim for  freedom  from  arrest by a detention  order  cannot  be sustained under the privileges of the Members of Parliament, can   it   be  sustained  on  the  ground  that  it   is   a constitutional  right which cannot be contravened  ?  Before dealing with this point, it is necessary to indicate broadly the  position  about the privileges of the  members  of  the Indian Legislatures, because they will materially assist  us in determining the validity of the contention raised  before us   by  Mr.  Setalvad.   It  is  common  ground  that   the privileges,  powers  and immunities of the  members  of  the Indian Legislatures are the same as those of the members  of the House of Commons as they existed at the commencement  of the  Indian Constitution.  Let us, therefore, see  what  was the  position  about the privileges of the  members  of  the House  of  Commons  in regard to freedom from  arrest  by  a detention order ? Sup.CI./66-13 416 The  position  about the privileges of the  Members  of  the House  of Commons in regard to preventive detention is  well settled.   In this connection, Erskine May observes  :  "The privilege of freedom from arrest is limited to civil causes, and   has   not   been  allowed  to   interfere   with   the administration    of   criminal   justice    or    emergency legislation."(1) In   early  times  the  distinction  between   "civil"   and "criminal" was not clearly expressed.  It was only to  cases of  "treason,  felony and breach (or surety) of  the  peace" that privilege was explicitly held not to apply.  Originally the  classification may have been regarded  as  sufficiently comprehensive.   But  in the case of misdemeanours,  in  the growing  list of statutory offences, and,  particularly,  in the case of preventive detention under emergency legislation in times of crisis, there was a debatable region about which neither House had until recently expressed a definite  view. The development of privilege has shown a tendency to confine it  more  narrowly  to cases of a  civil  character  and  to exclude not only every kind of criminal case, but also cases which,  while  not  strictly criminal,  partake  more  of  a criminal than of a civil character.  This development is  in conformity with the principle laid down by the Commons in  a conference with the Lords in 1641 : "Privilege of Parliament is granted in regard of the service of the Commonwealth  and is not to be used to the danger of the Commonwealth". The last statement of May is based on the report of the Com- mittee  of  Privileges of the House of Commons  which  dealt with  the  case  of the detention of  Captain  Ramsay  under Regulation  18B of the Defence (General) Regulations,  1939. Cap.    Ramsay  who  had  been  detained  under   the   said Regulation, urged before the Committee of Privileges that by reason of the said detention, a breach of the privileges  of the House had been committed.  This plea was rejected by the Committee of Privileges.  The Committee found that Reg.  18B under  which Cap.  Ramsay had been detained, had  been  made under section 1(2)(a) of the Emergency Powers (Defence) Act, 1939.  It examined the question as to whether the arrest and detention  of  Cap.  Ramsay were within the  powers  of  the

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Regulation and in accordance with its provisions; and it was satisfied that they were within the powers of the Regulation and  in accordance with its provisions.  The Committee  then examined  several precedents on which Cap.   Ramsay  relied, and  it found that whereas arrest in civil proceedings is  a breach  of  privilege, arrest on a criminal  charge  for  an indictable (1)  Erskine May’s Parliamentary Practice, 7th Ed. p. 78.  417 offence  is not.  The Committee then examined the  basis  of the  privilege  and the reason for the  distinction  between arrest in a civil suit and arrest on a criminal charge.   It appeared to the Committee that the privilege of freedom from arrest  originated at a time when English Law made free  use of imprisonment in civil proceedings as a method of coercing debtors  to  pay  their debts; and in order  to  enable  the Members   of   Parliament  to  discharge   their   functions effectively,  it  was  thought  necessary  to,  grant   them immunity  from such arrest, because they were  doing  King’s business  and should not be hindered in carrying  out  their business  by  arrest at the suit of another subject  of  the King.   Criminal  acts, however, were offences  against  the King,  and  the privilege did not apply to arrest  for  such acts.  In this connection, the Committee emphasised the fact that  consideration of the general history of the  privilege showed that the tendency had been to narrow its scope.   The Committee recognised that there was a substantial difference between  arrest  and subsequent imprisonment on  a  criminal charge and detention without trial by executive order  under the  Regulation or under analogous provisions in  the  past. It, however, observed that they have this in common that the purpose  of  both was the protection of the community  as  a whole,  and  in that sense, arrest in the  course  of  civil proceedings, on principle, was wholly different from  arrest on a criminal charge or arrest for the purpose of detention. It  is  on  these grounds that the  Committee  came  to  the conclusion that the detention of Cap.  Ramsay did not amount to any infringement of his privilege of freedom of speech. A similar question had arisen in India in 1952.  It  appears that  in  the early hours of the morning of  the  27th  May, 1952,  Mr.  V.  G.  Deshpande, who  was  then  a  Member  of Parliament,. was arrested and detained under the  Preventive Detention  Act,  1950 the House was then in session;  and  a question  was raised that the said arrest and  detention  of Mr. Deshpande, when the House was in session, amounted to  a breach  of  the privilege of the House.  The  question  thus raised  was referred to the Committee of Privileges for  its report.  On the 9th July, 1952, the report made by the  said Committee was submitted to the House.  The majority view  of the  Committee was that the arrest of’ Mr.  Deshpande  under the Preventive Detention Act did not constitute a breach  of the  privilege of the House.  In coming to this  conclusion, the majority view rested itself primarily on the decision of the  Committee of Privileges of the House of Commons in  the case of Cap.  Ramsay.  It is thus plain that the validity of the  arrest  of the petitioners in the  present  proceedings cannot be 418 provisions of Art. 105.  That is why Mr. Setalvad  naturally did not and could not press his case under the said Article. What  then  is  the true legal character of  the  rights  on which’ Mr. Setalvad has founded his argument ? They are  not rights  which  can be properly described  as  constitutional rights of the Members of Parliament at all.  The Articles on which  Mr.  Setalvad has rested his case clearly  bring  out

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this  position.  Article 79 deals with the  constitution  of Parliament  and  it has nothing to ,do with  the  individual rights of the Members of Parliament after they are  elected. Articles  85  and 86 confer on the President  the  power  to issue  summons for the ensuing session of Parliament and  to address either House of Parliament or both Houses as therein specified.  These Articles cannot be construed to confer any right   -as  such  on  individual  Members  or  impose   any obligation on them.  It is not as if a Member of  Parliament is bound to attend the session, or is under an obligation to be  present  in the House when the President  addresses  it. The  context in which these Articles appear shows  that  the subject-matter  of  these  articles is  not  the  individual rights  of the Members of Parliament, but they refer to  the right  of the President to issue a summons for  the  ensuing session of Parliament or to address the House or Houses. Then  as to Art. 100(1) : what it provides is the manner  in which  questions will be determined; and it is not  easy  to see how the provision that all questions shall be determined by  a majority of votes of Members present and  voting,  can give  rise to -a constitutional right as such.  The  freedom of  speech on which Mr. Setalvad lays considerable  emphasis by  reference  to  Art.  105(1) & (2),  is  a  part  of  the privileges,  of the Members of the House.  It is no doubt  a privilege of very great importance and significance, because 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. Undoubtedly, the Members of Parliament have the privilege of freedom  of  speech, but that is only when they  attend  the session  of  the House and deliver their speech  within  the chamber itself.  It will be recalled that in Cap.   Ramsay’s case, what had been urged before the Committee of Privileges was  that the detention of Cap.  Ramsay had caused a  breach of  privilege  of his freedom of speech, and this  plea  was rejected  by  the Committee.  We are,  therefore,  satisfied that  on  a close examination of the articles on  which  Mr. Setalvad has relied, the whole basis of his argument  breaks down,  because  the  rights which  he  calls  constitutional rights are rights accruing to the Members of Parliament  419 after  they  are elected, but they  are  not  constitutional rights  in, the. strict sense, and quite clearly,  they  are not fundamental rights at all.  It may be that sometimes  in discussing  the significance or importance of the  right  of freedom  of speech guaranteed by Art. 105 (1) & (2), it  may have been described as a fundamental right; but the totality of  rights  on which Mr. Setalvad relies  cannot  claim  the status  of  fundamental rights at all, and  the  freedom  of speech on which so much reliance is placed, is a part of the privileges falling under Art. 105, and a plea that a  breach has  been  committed of any of these privileges  cannot,  of course,  be raised in view of the decision of the  Committee of Privileges of the House of Commons to which we have  just referred.  Besides, the freedom of speech to which Art.  105 (1)  and  (2)  refer,  would be available  to  a  Member  of Parliament  when he attends the session of  the  Parliament. If  the  order  of  detention  validly  prevents  him   from attending  a session of Parliament, no occasion  arises  for the  exercise  of  the right of freedom  of  speech  and  no complaint can be made that the said right has been invalidly invaded. There  is another aspect of this problem to which  we  would like to refer at this stage.  Mr. Setalvad has urged that  a Member  of  Parliament  is  entitled  to  exercise  all  his

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constitutional   rights  as  such  Member,  unless   he   is disqualified and for the relevant disqualifications, he  has referred  to the provisions of Art. 102 of the  Constitution and  S. 7 of the Representation of the People Act.   Let  us take  a case falling under S. 7(b) of this Act.  It will  be recalled that S. 7(b) provides that if a person is convicted of  any offence and sentenced to imprisonment for  not  less than  two  years, he would be disqualified  for  membership, unless  a period of five years, or such less period  as  the Election  Commission may allow in any particular  case,  has elapsed  since his release.  If a person is convicted of  an offence  and sentenced to less than two years, clearly  such conviction  and sentence would not entail  disqualification. Can  it be said that, a person who has been convicted of  an offence  and sentenced to suffer imprisonment for less  than two  years,  is entitled to claim that  notwithstanding  the said  order  of  conviction  and  sentence,  he  should   be permitted to exercise his right as a legislator, because his conviction and sentence do not involve disqualification ? It is  true  that the conviction of a person at the  end  of  a trial is different from the detention of a person without  a trial;   but  so  far  as  their  impact  on   the   alleged constitutional  rights  of  the  Member  of  Parliament   is concerned, there can be no distinction.  If a person who  is convicted and sentenced, has necessarily to forgo. his right of participating in the business of the Legislature to which he belongs, 4 2 0 because he is convicted and sentenced, it would follow  that a  person who is detained must likewise forgo his  right  to participate in the business of the Legislature.   Therefore, 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, cannot be accepted. Besides,  if the right on which the whole argument is  based is not a fundamental right, it would be difficult to see how the  validity  of the Rule can be challenged on  the  ground that it permits an order of detention in respect of a Member of  Parliament and as a result of the said order the  Member of   Parliament  cannot  participate  in  the  business   of Parliament.   It appears that a similar question had  arisen before  the  Madras and the Calcutta High  Courts,  and  the decisions  of these High Courts are in accord with the  view which  we are inclined to take in the  present  proceedings. In  Pillalamarri Venkateswarlu v. The  District  Magistrate, Guntur  and Another(1), it was held by a Division  Bench  of the Madras High Court that a Member of the State Legislature cannot  have  immunity  from  arrest  in  the  case  of,   a preventive  detention order.  Similarly, in the case  of  K. Ananda Nambiar(1), it was held by the Madras High Court that once  a  Member of a Legislative Assembly  is  arrested  and lawfully  detained, though without actual trial,  under  any Preventive  Detention Act, there can be no doubt that  under the  law as it stands, he cannot be permitted to attend  the sittings  of the House.  The true  constitutional  position, therefore,  is 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. In  Ansumali  Majumdar v. The State(3),  the  Calcutta  High Court  has  elaborately considered this point and  has  held that  a  member  of  the  House  of  the  Central  or  State Legislature  cannot claim as such Member any  immunity  from arrest under the Preventive-Detention Act.  Dealing with the

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argument  that a Member of Parliament cannot, by  reason  of his  detention, be prevented from exercising his  rights  as such Member, Harries, C.J. observed that if this argument is sound,  it  follows  that  persons  convicted  ,of   certain offences  and duly elected must be allowed to perform  their duties and cannot be made to serve their sentence during the life  of  a Parliament.  We ought to add that in  all  these cases,  the  learned  Judges took notice of  the  fact  that freedom from crimi- (1)  I.L.R. [1951] Mad. 135              (2)  I.L.R.  [1953] Mad. 93 (3)  I.L.R. [1954] I.Cal. 272  421 nal  arrest was not treated as constituting a  privilege  of the members of the House of Commons-in England.   Therefore, we  are  satisfied  that  Mr.  Setalvad  is  not  right   in contending that R.30(1)(b) is invalid. It  now remains to consider the other grounds on  which  Mr. Chatterjee  has  challenged  the validity  of  the  impugned orders  of  detention.  The first contention raised  by  Mr. Chatterjee is that the Presidential Order itself is invalid. This Order has been issued in accordance with the provisions of Art. 77(2) of the Constitution.  Mr. Chatterjee, however, contends that the Order issued by the President by virtue of the  power  conferred  on  him by  Art.  359(1)  is  not  an executive  action  of the Government of India and  as  such, Art.  77  would  not apply.  We are not  impressed  by  this argument.  In our opinion, Art. 77(2) which refers to orders and  other instruments made and executed in the name of  the President is wide enough to include the present Order. Besides, it is significant that Art. 359(3) itself  requires that every order made under clause (1) shall, as soon as may be  after  it  is  made,  be  laid  before  each  House   of Parliament;  ’and it is not alleged that this has  not  been done.  In fact, Mr. Chatterjee did not seriously press  this point. The  next  contention raised by Mr. Chatterjee is  that  the present detention of the two petitioners is invalid inasmuch as the orders of detention passed in both the cases directed that the petitioners should be detained in the Central Jail, Tiruchinapalli,  whereas  both of them  have  been  detained throughout in the Central Jail, Cuddalore.  Mr. Chatterjee’s grievance  is that it is not shown that a proper  order  had been   passed  changing  the  place  of  detention  of   the petitioners from Tiruchinapalli to Cuddalore. This  plea  has been met by the counter-affidavit  filed  on behalf  of the Government of Madras on the ground  that  the original orders of detention indicating that the petitioners should be detained in the Central fail, Tiruchinapalli, were modified by Government by a later Order fixing the venue  of detention  as  the Central Jail, Cuddalore, for  reasons  of security.   The counter:affidavit did not indicate the  date on which this Order was passed, and that left an element  of ambiguity.  At the hearing of these petitions, however,  the learned  counsel appearing for the Government of Madras  has produced  before us an abstract from the  Madras  Government Gazette giving all the details about this order.  It appears that  this later Order was passed on December 30, 1964,  and it  purported  to  modify  all  the  orders  stated  in  the preamble; 422 amongst  these  orders are the orders  of  detention  passed against both the petitioners.  Therefore, -it is clear  that by  virtue of the powers conferred on it by Rule 30(4),  the Government   of  Madras  had  changed  the  venue   of   the

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petitioners’ detention; and so, there is no substance in the argument   that  their  detention  in  the   Central   Jail, Cuddalore, is illegal. Mr. Chatterjee’s main contention against the validity of the orders  of detention, however, is in regard to  the  alleged mala fides in the said orders.  He argues that the  impugned orders  have  been passed by the Government of  Madras  mala fide for the purpose of stifling the political activities of the  petitioners which appeared to the Government of  Madras to be inconvenient.  These orders have been passed for  that ulterior  purpose  and not for the purpose set  out  in  the orders  of detention.  Besides, it is urged that  the  Chief Minister  of Madras passed these orders  without  satisfying himself  that  it  was  necessary to  issue  them.   He  was influenced  by  what  the Union Home  Minister  had  already decided in regard to the petitioners.  It is not as a result of  the satisfaction of the Chief Minister himself that  the petitioners had been detained; the orders of detention  have been passed against the petitioners solely because the Union Home  Minister was satisfied that they should  be  detained. That,  in substance, is the grievance made before us by  Mr. Chatterjee  against the validity of the impugned  orders  of detention. It appears that the Union Home Minister made certain  state- ments  in  his broadcast to the Nation from  the  All  India Radio,  on January 1, 1965, and in reply to a debate on  the Budget  Demands of the Ministry of Home Affairs in  the  Lok Sabha  on  April  27, 1965.  This is  what  the  Union  Home Minister is reported to have said in his broadcast :-               "As  you  are aware, a number of  leaders  and               active workers of the Left Communist Party  of               India have been detained during the last three               days.   We  have  had to take  this  step  for               compelling  reasons for internal and  external               security of the country.  It is painful to  us               to deprive any citizen of this free country of               his  liberty  and it is only  after  the  most               careful  thought  that  we  have  taken   this               action."               "This  very  disagreeable decision  was  taken               after  giving the most serious thought to  all               that was at stake".               ’We  came to the conclusion that we  would  be               taking  a serious risk with the  external  and               internal security of the country if we did not               act immediately".                423               This  is  what  the  Union  Home  Minister  is               reported to have               id in the Lok Sabha :-               "It  is a matter of regret to me that  I  have               had  to make myself responsible  for  throwing               into prison a fairly large number of  citizens               of this country".               "I look into the cases personally.  I may  say               that  it  may  be that  some  error  may  have               occurred  here and there; that test has to  be               satisfied.   We have to make sure that  it  is               because  of  our  clear  appreciation  of  the               activities  which  we  may  call  pro-Chinese,               disloyal  activities, subversive  activities,,               one way or another, that we have to resort  to               this  kind of action.  If on any  person,  any               detenu on his part, it can be said that  there               was  a mistake made, that he actually  is  not

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             pro-Chinese  and he is a loyal citizen of  the               country,  I  am personally  prepared  to  look               into  each case and again satisfy myself  that               no  wrong  has been done or no  injustice  has               been done". For  the purpose of dealing with the present  petitions,  we are  assuming that the petitioners can rely upon  these  two statements.   The  learned Additional  Solicitor-General  no doubt contended that the statements were not admissible  and relevant and had not been duly proved; besides, according to him,  some of the statements produced were also  inaccurate; even so, he was prepared to argue on the basis that the said statements  can be considered by us, and so,,,, we have  not thought  it  necessary  to decide  the  question  about  the relevance  or admissibility or proof of these statements  in the present proceedings. In  appreciating the effect of these two statements,  it  is necessary  to refer to the statements made on  affidavit  by the Chief Minister of Madras and the Chief Secretary to  the Government  of Madras respectively.  This is what the  Chief Minister of Madras has stated on oath :-               "Consequent  upon the outbreak of  hostilities               between  China  and India and  declaration  of               Emergency it was necessary for the  Government               of  India  and  the various  States  to  watch               carefully  the  movements  and  activities  of               those  persons, who either individually or  as               part  of any group, were acting or  likely  to               act  in a manner prejudicial to the safety  of               India  and  the maintenance of  public  order.               The Communist Party of               424               India  was  rift  into two  factions  and  the               faction  known as the Left Communist Party  of               India,  which  came to be known  as  the  Pro-               Peking   faction,  had  particularly   to   be               watched.   The question of  detaining  persons               belonging  to this faction and who  were  also               active,  was  engaging the  attention  of  the               Governments  and  was also  discussed  at  the               Chief Ministers’ Conference.  Our sources  ,of               intelligence  continued  to maintain  a  watch               over  the  movements and activities  of  these               individuals.   The  Communist Party  of  India               being  an All-India Organisation with  a  wide               net  work,  the  question  of  detention   had               necessarily  to  be considered on  a  National               level,  so  that a coordinated  and  concerted               action  may be taken.  It was in this  context               that the Central Government communicated  with               the State Government".               "I  submit that I ordered the  petitioners  in               the  above petitions to be detained,  on  29th               December,  1964.   The  petitioners  are  also               known to me and their detention was ordered on               my   personal   satisfaction   that   it   was               necessary.   My satisfaction was both  on  the               general question as to the need for  detaining               persons   like  the  petitioner  and  on   the               individual   question   namely   whether   the               petitioner  was one such, whose detention  was               necessary". The Chief Secretary’s affidavit is on the same lines. On these statements, the question which falls to be  decided is  :  is  it shown, by the petitioners  that  the  impugned

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orders of detention were passed for an ulterior purpose,  or they  have  been  passed by the  Chief  Minister  of  Madras without  satisfying himself, merely because the  Union  Home Minister  thought that the petitioners should  be  detained. It is not disputed that if the Union Home Minister wanted to make an order detaining the petitioners, he could have  made the  order himself.  But the contention is that the  orders, in fact, have been made by the Government of Madras, and  it is,  therefore,  necessary  to consider  whether  the  Chief Minister of Madras satisfied himself or not. In dealing with these pleas, we cannot ignore the fact  that the question about detaining the petitioners formed part  of a larger question about the attitude which the Government of India  and the State Governments should adopt in respect  of the activities of the Party to which the petitioners belong. This Party is known  425 as the Left Communist Party of India which came to be  known as  the Pro-Peking faction of the Communist Party.   It  is, therefore, not surprising that this larger issue should have been  examined  by the Union Home Minister  along  with  the Chief  Ministers  of the States in India.   The  sources  of intelligence available to the Government of India had  given it  the  relevant information.  Similarly,  the  sources  of information available to the Governments of different States had  supplied  to  their  respective  States  the   relevant information  about  the  political activities  of  the  Left Communist Party of India.  Having considered these  reports, the  Union  Home Minister and the Chief  Ministers  came  to certain decisions in regard to the approach which should  be adopted  by them in respect of the Left Communist  Party  in view  of  the  Emergency prevailing in  the  country.   This general  decision  naturally had no direct relation  to  any particular  individuals as such.  The decision in regard  to the  individual  members  of the Left  Communist  Party  had inevitably to be left to the State Governments or the  Union Government  according to their discretion.  It  is  conceded that  the  Union  Government has in fact  issued  orders  of detention  against as many as 140 members of the, Left  Com- munist Party of India, whereas different orders of detention have  been  passed by different  State  Governments  against members  of  the Left Communist Party  in  their  respective States.   It is in the background of this position that  the statements  of the Union Home Minister as well as  those  of the Chief Minister of Madras have to be considered. Thus  considered,  we do not see any justification  for  the assumption that the detention of the petitioners was ordered by  the  Chief Minister of Madras  without  considering  the matter  himself.   Indeed, it is not denied that  the  Chief Minister  knows  both  the petitioners  and  he  has  stated categorically that he examined the materials in relation  to the activities of the petitioners and he was satisfied  that it was necessary to detain them.  We see no reason  whatever why  this clear and unambiguous statement made by the  Chief Minister  of Madras should not be treated as true.   As  the Chief Minister states in his affidavit, his satisfaction was both  on the general question as to the need  for  detaining persons like the petitioners, and on the individual question of each one of them.  In this connection, it is obvious that when  the  Union  Home Minister spoke in  the  first  person plural,  he  was speaking for the Union Government  and  the State  Governments as well, and when he spoke in  the  first person singular, he was referring to cases with which he was concerned as the Union Home Minister, and that would take in cases of persons whose detention has been

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42 6 ordered  by the Union Government.  There is,  therefore,  no inconsistency  or  conflict between the  statements  of  the Union Home Minister and the affidavit of the Chief  Minister of Madras.  That being so, we are satisfied that there is no substance  in the grievance made by Mr. Chatterjee that  the impugned orders of detention passed against the  petitioners were   made   either  mala  fide  or  without   the   proper satisfaction of the detaining authority. In  the  result,  both  the  writ  petitions  fail  and  are dismissed. Petition dismissed. 427