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TMI Blog1965 (10) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... ained 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. 2. Mr. R. Umanath, who is also a Member of Parliament, has been similarly detained by the order passed by the Government of 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, Cuddalore, since the 30th December, 1964. By his writ petition (No. 61 of 1965), the petition 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Arts. 14, 21 and 22 under the Defence of India 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. 6. But it is obvious that what the last clause of the Presidential Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 detenu cannot, at the threshold, be said to be barred by the Presidential Order, because, in terms, it is not a plea which is relatable to the fundamental rights specified in the said order. 8. Let us refer to two other pleas which may not fall within the purview of the Presidential Order. If the detenu, who 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 competence 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeds 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 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 assumption that legislators have certain constitutional rights which cannot be validly taken away by any statutory rule. 10. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 12. 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 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 of 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. 19. Then as to Art. 100(1) : what it provides is the manner in which questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of speech and no complaint can be made that the said right has been invalidly invaded. 20. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any other citizen. 22. In Ansumali Majumdar v. The State I.L.R. [1954] I. Ca;. 272., 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 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 criminal 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. 23. 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. Chatterje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment of Madras had changed the venue of the petitioners' detention; and so, there is no substance in the argument that their detention in the Central Jail, Cuddalore, is illegal. 27. 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 substanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments 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. 30. 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 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 per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Communist Party of India, whereas different orders of detention have been passed by different State Government against members of the Left Communist Party in their respective States. It is in the background of this position ..... X X X X Extracts X X X X X X X X Extracts X X X X
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