The powers, privileges and immunities of Parliament and its members as provided in Article 105 are that they shall be such as may 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.
78. In Special Reference No. 1 of 1964 (1965) 1 SCR 413 = (AIR 1965 SC 745 ) it was held that the court could entertain a petition under Article 226 on the ground that the imposition of penalty by the legislature on a person who is not a member of the legislature or issuing process against such person for its contempt committed outside the four walls of the House.
The scope of the parliamentary privilege of freedom from arrest has been defined positively and negatively. The positive aspect of the privilege is expressed in the claim of the Commons to freedom from arrest in all civil actions or suits during the time of Parliament and during the period when a member was journeying or returning from Parliament. The privilege has been defined negatively in the claim of the Commons which specifically excepted treason, felony and breach of surety of the peace.
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. (See May’s Parliamentary Practice 18th Ed. at page No. 100). In early times the distinction between “civil” and “criminal” was not clearly expressed. The development of the 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 service of the Commonwealth and is not to be used to the danger of the Commonwealth”.
81. In Wilkes’ case 19 State Tr., 981 it was resolved by both Houses on 29th November, 1763 that the privilege of Parliament does not extend to the case of writing and publishing seditious libels, nor ought to be allowed to obstruct the ordinary course of the laws in the speedy and effectual prosecution of so heinous and dangerous an offence. “Since that time” the Committee of Privileges said in 1831 “it has been considered as established generally, that privilege, is not claimable for any indictable offence.”
These being the general declarations of the law of Parliament, the House will not allow even the sanctuary of its walls to protect a Member from the process of criminal law, although a service of a criminal process on a Member within the precincts of Parliament, whilst the House is sitting without obtaining the leave of the House, would be a breach of privilege.
The committal of a Member in England for high treason or any criminal offence is brought before the House by a letter addressed to the Speaker by the committing judge or magistrate. Where a Member is convicted but released on bail pending an appeal, the duty of the Magistrate to communicate with the Speaker does not arise. No duty of informing the Speaker arises in the case of a person who while in prison under sentence of a court is elected as a Member of Parliament. In the case of detention of Members under Regulation 14-B of the Defence of Realm Regulations in England, the communication was made to the Speaker by a letter from the Chief Secretary to the Lord Lieutenant of Ireland which was read to the House by the Speaker. The detention of a Member under Regulation 18-B of the Defence (General) Regulations 1939, made under the Emergency Powers (Defencc) Acts, 1939 and 1940, led to the Committee of Privileges being directed to consider whether such detention constituted a breach of the privileges of the House; the Committee reported that there was no breach of privilege involved. In the case of a member deported from Northern Rhodesia for non-compliance with an order declaring him to be a prohibited immigrant, the Speaker held there was no prima facie case of breach of privilege. (See May’s Parliamentary Practice 18th Ed, p. 103).
In K. Anandan Nambiar v. Chief Secretary Government of Madras, (1966) 2 SCR 406 the petitioners who were members of Parliament and detained by orders passed by the State Government under R. 30 (1) (b) of the Defence of India Rules, 1962 challenged the validity of the orders of detention on the ground that Rule 30(1)(b) was not valid 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.” The State raised a preliminary objection that the petitions were incompetent in view of the order issued by the President under Article 359(1) suspending the rights of any person to move any Court for the enforcement of rights conferred by Articles 14, 21 and 22. This Court held that the validity of the Act, Rule or order made under the Presidential Order could not be questioned on the ground that they contravene Articles 14, 21 and 22.
The petitioners also contended in Nambiar’s case (supra) that Rule 30 (1) (b) under which the orders of detention had been passed was invalid on grounds other than those based on Articles 14, 19, 21 and 22. The Court held that if that plea was well founded, the last clause of the Presidential Order was not satisfied, and, therecould fore, the bar created by it suspending the citizens’ fundamental rights under Articles 14, 21 and 22 not be pressed into service by the respondent.
Articles 79, 85, 86, 100 (1) and 105(3) were considered in Nambiar’s case (supra) in relation to rights of Members of Parliament, and it was held that the totality of rights cannot claim the status of fundamental rights and freedom of speech on which reliance was placed is a part of the privileges falling under Article 105. The reason is 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. This Court then posed the question that if a claim for freedom from arrest by a detention order could not be sustained under the privileges of the Members of Parliament whether it could be sustained on the ground that it is a constitutional right which could not be contravened. The statement in May’s Parliamentary Practice 7th Ed. at page No. 78 which is to be found in the 18th Edition at page No. 100 that 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 was accepted as the basis of two propositions laid down in Nambiar’s case (supra), First, Articles 79, 85, 86, 100 and 105 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. Second, the freedom of speech to which Article 105 refers 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.