JUDGMENT
Govinda Menon, J.
1. Sri Pillalamarri Venkateswarlu, M. L. A., was a member of the Madras Legislative Assembly constituted under the Government of India Act, 1935, having been elected to that body, by the general labour constituency of the district of Krishna, Guntur and Weat Godavari in the General Elections held in or about March 1946. He continued to represent this constituency in the Madras Legislature until he was arrested in pursuance of an order issued under the provisions of the Madras Maintenance of Public Order Act. He was arrested on 7-11-1948 subsequent to the declaration as illegal, of the communist party, of which he was avowedly an active member. Since that date, it is stated by him in his affidavit, that he has been in illegal detention in the Central Jail at Cuddalore.
2. By Article 332 of the Constitution until the House of the Legislature of each State specified in Schedule I, Part A, have been duly constituted and summoned to meet for the first session under the provisions of the Constitution the House of the Legislature of the corresponding province functioning immediately before the commencement of the Constitution shall exercise the powers and perform the duties conferred by the provisions of the Constitution of the House of the Legislature of such State. Therefore it is clear that subsequent to the inauguration of the Republic of India, on 26th January this year, that body which functioned prior to that date as the Legislative assembly of the province of Madras ipso facto on the strength of Act. 382 continues to be one of the Houses of the Legislature for the State of Madras. It is, therefore, evident that every member of that Legislative Assembly straightway became a member of the new House of the Legislature, and as such Sri Venkateswarlu who was a member of the previous Legislative Assembly became on 26th, and continues to be thereafter, a member of the Madras Legislative Assembly. This fact cannot, and is not disputed for the reason that in his affidavit Sri Venkateswarlu states that he has received a notice dated 81-1 1950 setting out the agenda for the Madras State Legislative Assembly from 11-2-1950 till 13-2 1950 and issued by the Secretary of the Madras Legislature. This notice summons Sri Venkateswarlu to attend the meeting of the legislature on 11-2-1950 But it is alleged that on account of his detention he is not in a position to attend the Legislature and therefore applies to this Court under Article 226, Constitution of India, for an order direating him to be released from the unlawful custody or at least for a direction that he may be allowed to attend the Legislature after taking whatever precautions that may be necessary in the circumstances of the case.
3. This application was made on 21-7-1949 and the reasons alleged at that time were that his detention under the Madras Maintenance of Public Order Act, in force then, was illegal and that; he was entitled to be released forthwith. As the same could not be disposed of until 26th January, a freah petition Cr. M. P. No. 305 of 1950, was filed setting forth additional grounds as well, and stating that the earlier application should be expedited. We therefore, directed that Cr. M. P. No, 2059 of 1949 be expedited and heard. Though the original application was under Section 491, Criminal P. C., we are invited to dispose of it under the powers conferred on this Court under Article 226, Constitution of India as the latter provision has superseded all provisions of the Criminal Procedure Code which gave power and authority to the High Court to issue writs in the nature of habeas corpus.
4. The chief ground on which we are asked to release the petitioner is that as a member of the Madras Legislative Assembly he enjoys the privileges, rights and immunities which a member of the House of Commons of the United Kingdom enjoys in accordance with the practice and procedure obtaining in the Parliament at Westminster. That it is so is evident from Arfc. 194 of the Constitution which in Sub-clause 3 lays down that
“The powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature 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 commencement of this Constitution.”
It is conceded that the legislature has, by law not defined or laid down, anything with regard to the powers, privileges and immunities of a member of the Legislative assembly until now and that being so, according to the provisions of Sub-clause 3 we have to take it that at present every member of the legislature of the Madras State has all the powers, privileges and immunities which a member of the House of Commons all Westminster in entitled to. It is, therefore incumbent upon as to find out what exactly are the powers, privileges and immunities of a Member of Parliament on 26-1-1950 and that would resolve the question at issue in this petition.
5. At the outset there was some doubt as to whether this Court has power to issue writs such as habeas corpus etc., when the point in dispute is regarding the rights, privileges and immunities of a Member of the House of Legislature; for it was thought that matters like that should be within the sole purview and jurisdiction of the Speaker of the Legislative Assembly. We therefore, had to find out whether in the United Kingdom, the High Court of Justice ever entertained, and interfered in, matters like that where the privilege or immunity of a Member of Parliament was sou be to he disputed. The case law on the subject reveals the fact that in England the High Court of Justice has vested in it, the right of interfering when the right privilege or immunity of a Member of Parliament has been infringed.
6. In Goudy v. Duncombe, (1847) 1 Ex. 430: 154: E. R. 183, Pollock, C. B. had to consider a question of this nature and the learned Chief Baron decided that the privilege of a Member of Parliament from arrest on C. A. S. A. exists for forty days before and forty days after a meet ing of Parliament. The rule of privilege is the same in the case of a dissolution as in that of a prorogation. What happened in that case was that the defendant therein had been arrested in execution for default in payment of a debt secured by a Judge’s order and that defendant happened to be a Member of Parliament. On an application made by him to Williams J. the learned Judge discharged him from custody. He was arrested on 2-9-1847. On 3rd September, a summons was taken out for his discharge before Williams J. on the ground that he was privileged from arrest. It appeared that on 28-7-1847 he had been elected Member of Parliament for the borough of Finsbury. On 13th August, there appeared in the London Gazette an order of the Queen in Council by which Parliament was prorogued to 12th October. Williams J. ordered the discharge of the defendant from custody on 7th September. On an application to set aside the discharge order, Pollock C. B., reviewed the previous authorities on the subject and considered the observations contained in Blackstone’s Commentaries (vol. I, P. 165) as well as the passage in Bacon’s Abrtit. “Privileges”. He also considered various other authorities cited before the Court and the opinion of the Court was that whatever might have been the convenient period in the earlier days a period of forty days before and after the meeting of the Parliament had for about two centuries at least been considered the convenient or the actual time to be allowed. Therefore the learned Chief Baron on behalf of the Court was of opinion that Williams J. rightly ordered the discharge and the order was confirmed.
7. This decision clearly shows that when Parliamentary right, privilege or immunity is infringed by the arrest of a member of Parliament it is open to Court to interfere and set the matter aright. Article 226 of the Constitution provided us with all the powers which a High Court of Justice in England has under the Common Law for the issuing of prerogative writs. We have the power to issue, in appropriate cases, even to the Government, directions, orders or writs including writs in the nature of habeas corpus, etc., for the enforcement of any of the rights conferred by Part in, namely, Fundamental Rights, and for any other purpose. In such circumstances, if we are satisfied that the arrest and detention of the petitioner herein contravened the rights, privileges or immunities which he enjoyed as a member of the Madras Legislature, we would very unhesitatingly issue the writ and direct his release as had been done by the English Court.
8. In addition to the judgment of Pollock, C. B., to which reference has already been made, there is an earlier decision reported in Holiday Et Al’ v. Colonel Pint. 2 Strange 986 : 93 E. B. 985. There it was held that Members of Parliament have privilege of return after its dissolution. They may be discharged on motion without filing common bill. Even in that case, nobody thought of disputing the right of the High Court to enforce the rights, privileges and immunities of a Member of Parliament when justice demanded it. In view of these two authorities we have no hesitation in holding that this Court has the power to interfere when necessity suggests or occasion demands in appropriate cases.
9. The question therefore, arises as to what are the privileges and immunities of a Member of Parliament from being arrested. Useful guidance in this respect can be got from Anaon’s Law and Custom of the Constitution edited by Sir Maurice Gwyer, vol. 1, p. 163 where it is stated thus:
‘The first of these is freedom from arrest for the persons of members during the continuance of session, and for forty days before its commencement and after its conclusion.”
10. The object of the privilege was doubtless to secure the safe arrival and regular attendance of members on the scene of their Parliamentary duties the privilege itself may perhaps relate back to the Saxon rule that such persons as were on their way to the gemot were in the King’s peace. It never was held to protect members from the consequences of treason, felony, or breach of the peace. In 1763 both Houses resolved, in the case of Mr. Wilkes that it did not extend to the writing and publishing of seditious libels and since that time the rule has been considered settled that ‘Privilege is not claimable for any indictable offence.’ Nor does privilege protect a member from being committed to prison for contempt of Court. A committee of privileges was appointed to deal with the case of Mr. Long Wellesley in 1831; he had taken a ward in chancery, his own daughter, out of jurisdiction and had been committed for contempt by the Lord Chancellor, Lord Brugbam. The Committee reported that his claim of privilege ought not to be admitted. A series of cases since that day has confirmed the opinion expressed by the Committee of 1831:
“But within the limit of civil cases the privilege was made a cause of hardship to suitors, for not only was the members person protected from arrest and his property from legal process but rights of action were held in abeyance, since proceedings could not even becommenced against a member or his servant.”
11. The passage above quoted shows that immunity extends certainly to freedom from arreat for civil process or for a debt due, for forty days prior to the commencement and for the same time after the session. It is also clear that this immunity does not extend to indictable offences at all. The present extent of this immunity is discussed by the learned author at p. 165 and he quotes the authority which we have already adverted to namely Goudy v. Ducombe, (1847) 1 Ex. 430 : (154 E. R. 183).
12. In the well known book, Sir T. Ecakine May’s Parliamentary Practice has been devoted some space for discussion of this question. In Edn. 14 of that book edified by that great authority on Parliamentary Procedure, Sir Gilbert Campion, at p 68 it is observed at follows:
“It will be convenient to begin with the sphere in which enjoyment of freedom from arrest is unquestioned, namely, in civil suits, setting out the extent to which this privilege has been limited or defined by statutes and resolutions of either House; then similarly to define the sphere in which freedom from arrest does not exist, namely, in criminal process; and to conclude with an account of the extent to which the privilege has been extended by analogy from Members to other persons, such as witnesses, in virtue of their relations to Parliament.”
At p. 70 the case regarding the release of members from custody has bean discussed and at p. 71 the present mode of releasing arrested members as well as transition to modern practice are discussed. At p. 72 in discussing the effect of the privilege on admiasibility of membars on bail the learned author says that
“as a consequence of the immunity of a Member of Parliament, it has been held that ha cannot be admitted as bail; for not being liable to attachment, by reason of his privilege, be cannot be effectually proceeded against, in the event of the recognizances bsing forfeited,”
Then, at p. 73, the question regarding the duration of privilege is discussed and the learned author observes that :
“With regard to Members of a House of Commons “the time of privilege” has been repeatedly mentioned in the statutes, but never explained. It is stated by Blackstone and others, and has been the general opinion (founded, probably, upon the ancient law and custom, by which writs of summons for a Parliament were always Issued at least forty days before its appointed meeting), that the privilege of freedom from arrest remains with a member of the House of Commons “for forty days after every prorogation, and forty days before the next appointed meeting;” and this axtent of privilege has been allowed by the Court of Law, on the ground of usage and universal opinion.
Thus in the case of a Member who had been, by a Judge’s order, allowed hia privilege, extending to forty days the chief baron, on a motion for rescinding the order, maintained the privilege, and stated as the judgment of the Court that “the period of forty days before and after the meeting of Parliament has, for about two centuries at least, has been considered either a convenient time or the actual time to be allowed, Such has bean the usage, the universally prevailing opinion on the subject; and such, we think, is the law.”
From these precedent and authorities we have to take it that there is immunity extending for a period of forty days prior to the meeting and forty days subsequent to the conclusion of the meeting for a Member of Parliament from being arrested for a civil debt; that is, if there is a decree against him, or, if he is sought to be arrested before judgment, he can certainly claim the immunity and freedom from arrest. It is also clear that such immunity cannot extend or be contended to operate, where the Member of Parliaments charged with an indictable offence, but these alone would not help as in solving the problem now before us. It is difficult to say that the arrest of the petitioner was for any indictable offence, for, the Madras Maintenance of Public Order Act is a preventive measure and not a punitive one. There is no allegation suggesting thereby that the petitioner has committed any crime; but his detention has been necessitated by the fact that in the opinion of the Provincial Government of the State, as it now is, his being at large is dangerous to the public safety or the maintenance of public order in this State We need hardly add that his arrest is not for a civil debt or a civil process.
13. Therefore, we have to find out whether there is any precedent like this or whether any Member of the House of Commons, who had been subject to preventive detention had the privilege extended to him in such a case.
14. A case apposite in point was that of Captain Rameay who was a Member of Parliament in 1940. We have been able to secure a copy of the report submitted by the Committee of Privileges of the House of Commons to Mr. Speaker in October 1940 and very useful guidance can be got from the report of that committee. What happened there was that Captain Ramsay was detained in pursuance of an order issued by Sir John Auderson, Secretary of State for the Home Department, purporting to act under Regulation 18B of the Defence (General) Regulations, 1939. Thereafter, Captain Ramsay approached the Speaker of the House of Commons alleging that by his detention his immunity from arrest as Member of the House of Commons had been infringed. On this, the Speaker referred the matter to the Committee of Privileges who, after hearing Sir John Anderson as well as Sir Gilbert Campion, came to the following conclusion:
“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 un-justified extansion of an existing one. No question of any infringment of the privilege of freedom of speech arises.”
The committee considered the entire history of the privileges of Members of Parliament, discussed in great detail the scope of the enquiry, and then found that freedom bad been claimed from all arrest except for indictable offences on the one band, and on the other hand, as being limited to arrest in civil proceedings. Until then, the procedure was on the assumption that arrest in civil proceedings and arrest on a criminal charge for an indictable offence exhaust the possible grounds of arrant. Apart from the possibility of arrest or imprisonment for a nonindictable offence, preventive detention under Regulation 18B and under analogous powers conferred on the Executive fell into neither category. Therefore, the Committee opined that,
“it is plain that arrest in civil proceedings is a breach of privilege and that arrest on a criminal charge for an Indictable offence is not. But they further observed that these statements did not cover preventive detention by order of the executive authority which was the matter involved in the case of Captain Ramsay. The Committee further discussed the principle laid down by the House of Commons as early as 1641 and found that “Privilege of Parliament is granted in regard to the service of the Commonwealth and is not to be used to the danger of the Commonwealth.”
It is unnecessary for us to elaborate in great detail the exhaustive discussion of this topic by that committee. We cannot resist the temptation to quote Sir Gilbert Campion’s words to the following effect:
“It is certain that during this period, (the last two hundred years) privilege from arrest has not been successfully claimed except in civil cases.”
15. Therefore applying the principle set out above the Committee came to the conclusion that the arrear of Captain Ramsay was not a breach of privilege. The Committee further considered the question of the absence of precedents in matters litre this. They also adverted to a Statute passed by the British Parliament in 1831, namely, the Protection of Person and Property (Ireland) Act, 1881, which gave the Irish Executive power to arrear and detain persons suspected of high treason, felony etc., or of acts tending to interfere with or disturb the maintenance of law and order in Ireland, Section 3, Sub-section (3) of the Act provided that
“if any member of either House of Parliament be arrested under this Act the fact shall be immediately communicated to the House of which he is a member, if Parliament is sitting at the time, or if Parliament be not sitting, then immediately after Parliament; resembles in like manner as if he had been arrested on a criminal charge.”
The Committee was of opinion that the arrest of a Member of Parliament in order to effect preventive detention would be lawful and not a breach of privilege. We do not think it necessary to elaborate this aspect of case in detail because the conclusions of the Committee based upon Regulation 18B are apposite to the facts of the present case.
16. But Mr. Ramachandran for the petitioner contends that the conditions that were obtaining in England in 1940 cannot be said to be analogous to the state of our country at the present juncture and that the decision under Regulation 18B or the cirsumstances under which that Regulation was in force in England cannot be used as analogy in our country now. We are unable to accept this contention because this Court has held in Narayanaswami v. Inspector of Police, Wayavaram, I. L. K. (1949) Mad, 377 : (A. I. R (36) 1949 Mad. 307 : 50 Cr. L. J. 405 S. B.) that considerable light on matters like this can be obtained from the decision of the House of Lords in Liversidge v. Anderson, (1942) A. C. 206 : (110 L. J. K. B, 724) where the Law Lords discussed the applicability of Regulation 18B regarding the detention of Liversidge. The basis of the judgment of the Pull Bench in Narayanaswami v. Inspector of Police, Mayava-ram, I. L. B. (1949) Mad. 377 : (A. I. R. (36) 1949 Mad. 307 : 50 Cr. L. J. 406 F. B.) is founded upon the observations of the House of Lords in Liversidge’s case and this Court was of opinion that the words of Regulation 18B and the inter-pretation thereon can be applied to the interpretation of Section 2 (1) (a), Madras Maintenance of Public Order Act, under which the petitioner is detained. We, therefore, do not think that the arguments of the learned counsel that the situation created under Regulation 18B in England cannot be applied here should be accepted to. Therefore, it seems to us that, if on 26-1-1950 a member of the House of Commons of the United Kingdom at Westminster has no immunity as a result of Parliamentary privilege from being arrested and detained under a preventive detention regulation (Rule 18B) the provisions of which are somewhat analogous to the provisions of the Madras Maintenance of Public Order Act it follows that under Article 194 Clause (3), a Member of a State Legislature cannot have that privilege. So long as the legislature of the State has not provided by law and declared the rights, immunities and privileges of its members, we have to take it that the English system prevails here and if under the English system there is no immunity from arrest in the case of a preventive detention order, a member of the Legislature here too cannot have it. It seems to us, therefore, that the petitioner cannot claim any immunity from arrest; and that on this ground we cannot issue a writ of habeas corpus directing the Superintendent of the Central Jail, Cuddalore, to produce the petitioner or to direct his release.
17. Mr. Ramachandran, however, contends that the general question as to how far the Madras Maintenance of Public Order has become void on 26-1-1950 by reason of part III of the Constitution of India Will have to be decided. That matter is the subject of our consideration, and as the judgment has been reserved in a similar case, it is conceded that our decision in that will govern this also. We, therefore, decide to adjourn this petition until the disposal of that application.
18. In our judgment in Criminal Misc. petn. no. 283 of 1950, In re Venkataraman, we have held that Sections 2, 3, 4, 4 (a) and is of Madras Act XXIII [23] of 1949 are repugnant to and inconsistent with the Fundamental Eights provision is part in of the Constitution and on that ground we de-sided that to petitioner there was entitled to be released. The same order would apply to this case. As in that case, our attention has been drawn to G. O. Ms. no. 1314, public (General R.) Department of the Government of Madras dated 27-2-1950 by which the Government of Madras has detained the petitioner under Sub-section (1) of Section 3, Preventive Detention Act, 1960 (Central Act No. IV [4] of 1950) and therefore he is no longer being detained under the Madras Maintenance of Public Order Act. As in the other case, we express no opinion regarding the validity or otherwise of this datention. Our order will not affect the detention under G. O. Ms. N. 1314 dated 27-2-1950.
