Halsbury’s Laws of England, Simonds Edition, Volume 28, Articles 894 and 895:
The privileges of Parliament are based partly upon custom and precedents which are to be found in the Rolls of Parliament and the journals of the two Houses and partly upon certain statutes which have been passed from time to time for the purpose of making char particular matter wherein the privileges claimed by either House of Parliament have come in conflict either with the prerogatives of the Crown or with the rights of individuals.
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Privileges claimed by both Houses.
895. Freedom from arrest. It is claimed by resolutions of both houses that no lord of Parliament or member of the House of Commons may be imprisoned or restrained without the order or sentence of the House of Lords or House of Commons except upon a criminal charge. In order to claim privilege of Parliament a lord of Parliament must first take the oath but a person under arrest at the time he succeeds to a peerage may claim his discharge on the plea of privilege. In the case of members of the House of Commons, privilege of Parliament is of affected by the fact that a member has not yet taken the oath; and a member who is in custody on civil process may be liberated upon his election in virtue of his privilege.
The House of Commons during the last War had to consider whether detention under orders made under powers given by the Defence of the Realm Act constituted a breach of privileges and whether a member of Parliament detained under such order could not be released at the instance of Parliament. The matter was referred to a Committee of Privileges which reported that the arrest and detention of such member, namely, one Capt. Ramsay, did not amount to a breach of Parliamentary Privilege. The conclusions of the Committee of Privileges are summed up in these words
Your Committee’s conclusions are as follows:
The precedents lend no support to the view that Members of Parliament are exempted by privilege of Parliament from detention under Regulation 18B of the Defence (General) Regulations, 1939. Preventive arrest under statutory authority by executive order is not within the principle of the cases to which the privilege from arrest has been decided to extend. To claim that the privilege extends to such cases would be either the assertion of a new Parliamentary privilege or an unjustified extension of an existing one.
It is to be observed that Parliament took no action in respect of the detention of Capt. Ramsay which continued for many years. It seems to follow therefore that the English Parliament claims no privilege for its members against preventive detention or against executive order made under legislative authority. If no such privilege exists or is claimed in the United Kingdom then it follows that no such privilege exists at the present moment in India.
