1. Detention of legislators under Defence of India Rules — Challenge to validity of detention rule and orders on grounds of constitutional rights and mala fides. (Para 1 , 2 )
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1965 Supreme(SC) 380
SUPREME COURT OF INDIA
P.B. Gajendragadkar, C.J.I., K.N. Wanchoo, M. Hidayatullah, R.S. Bachawat, V. Ramaswami, JJ.
Writ Petitions Nos. 47 and 61 of 1965
Decided On : 27-10-1965
Members of Parliament have no special constitutional right or privilege to be exempt from valid preventive detention orders, as the privilege of freedom from arrest applies only to civil causes, not to criminal or emergency legislation.
Headnote:(A) Constitution of India - Articles 32, 14, 19, 21, 22, 77(2), 105; Defence of India Act, 1962 - Section 3(2)(15); Defence of India Rules, 1962 - Rule 30(1)(b) - Presidential Order under Article 359(1) - Scope of suspension of fundamental rights - Where a Presidential Order suspends the right to move court for the enforcement of Articles 14, 21, and 22, such suspension is strictly construed. It does not preclude a citizen from challenging the validity of a detention order or the underlying rule on grounds other than the contravention of the specified articles, such as mala fides or excessive delegation. (Paras 4, 5, 7)
(B) Constitution of India - Article 105 - Privileges of Members of Parliament - Freedom from arrest - The privilege of freedom from arrest for legislators is limited to civil causes and does not extend to criminal justice or preventive detention under emergency legislation. (Paras 13, 14, 15)
(C) Constitution of India - Rights of Legislators - A Member of Parliament does not possess a special constitutional or fundamental right to participate in legislative business that exempts them from a valid order of preventive detention; a legislator is as much liable to be arrested and detained under a valid order as any other citizen. (Paras 16, 17, 19)
Facts of the case:
Two members of the legislature were detained under rules framed under emergency legislation to prevent acts prejudicial to national defence and public safety. The petitioners challenged the detention on the grounds that the rule permitting the detention of legislators was invalid, the detention order was passed mala fide, and the Presidential Order suspending certain fundamental rights barred the court's jurisdiction.
Findings of Court:
The court found that the Presidential Order did not bar challenges based on grounds other than Articles 14, 21, and 22. It further held that legislators have no immunity from preventive detention as such immunity is not recognized as a privilege of the foreign legislative body upon which domestic privileges are based. The detention was not found to be mala fide as the detaining authority had reached personal satisfaction.
Issues: Whether the Presidential Order under Article 359(1) bars a challenge to the validity of a detention rule on grounds other than Articles 14, 21, and 22; whether members of the legislature have a constitutional right to be exempt from preventive detention; and whether the detention orders were passed mala fide.
Ratio Decidendi: The court reasoned that the suspension of fundamental rights under Article 359 is limited to the rights specified in the Presidential Order. Regarding legislative privileges, the court held that freedom from arrest applies only to civil proceedings and not to preventive detention. It concluded that a valid detention order overrides the right of a legislator to attend sessions, as they have no status higher than an ordinary citizen in this regard.
Result: Petitions dismissed.
Legal Category Hierarchy
- constitutional law
- administrative law
Table of Contents
2. Maintainability of petitions under Presidential Order — Validity of Rule 30(1)(b) regarding legislators' constitutional rights — Allegations of mala fides and improper venue of detention. (Para 3 , 8 , 23 , 25 )
3. Presidential Orders suspending fundamental rights are strictly construed — Legislators have no special immunity from preventive detention — Personal satisfaction of detaining authority established. (Para 4 , 17 , 31 )
4. Valid preventive detention of a legislator does not violate constitutional rights to participate in Parliament — Presidential Orders under Article 359 do not bar all challenges. (Para 5 , 19 )
5. Writ petitions dismissed. (Para 32 )
6. Does a Presidential Order suspending the right to move court for enforcement of Articles 14, 21, and 22 bar all challenges to a detention order?
No. Such orders must be strictly construed. While they bar the enforcement of specified fundamental rights, they do not preclude challenges on other grounds, such as mala fides, excessive delegation, or whether the order was passed outside the delegate's authority. (Para 4 , 5 , 6 , 7 )
7. Do Members of Parliament have a constitutional right or immunity that prevents their detention under preventive detention laws?
No. Members of Parliament have no special status higher than ordinary citizens regarding valid preventive detention. Their right to participate in legislative business is not a fundamental right that overrides a valid law of detention. (Para 17 , 18 , 19 )
8. Does the parliamentary privilege of freedom from arrest extend to preventive detention under emergency legislation?
No. The privilege of freedom from arrest is limited to civil causes and does not interfere with the administration of criminal justice or emergency legislation intended for the protection of the community. (Para 13 , 14 , 15 )
9. How is the satisfaction of the detaining authority evaluated when allegations of mala fides are raised?
The court examines whether the order was passed for an ulterior purpose or without personal satisfaction. A categorical statement by the detaining authority on oath regarding personal satisfaction, supported by intelligence reports, generally suffices. (Para 28 , 29 , 31 )
JUDGMENT :
Gajendragadkar, CJI.
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 Article 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 Jail, Cuddalore, since 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 petitions are impleaded Respondent 1, the Chief Secretary, Government of Madras, Respondent 2, the Superintendent, Central Jail, Cuddalore; and Respondent 3, the Union of India.
3. 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 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 Article 352 of the Constitution. This proclamation declared that a grave emergency existed where 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 11th November, 1962, in exercise of the powers conferred by clause (1) of Article 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 Article 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 Articles 14, 21 and 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under clause (1) of Article 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 4 of 1962 later became an Act called "The Defence of India Act, 1962 (51 of 1962)". The argument is that the petitioners are admittedly detained under Rule 30(1)(b) of the DEFENCE OF INDIA RULES , and so, the said Presidential Order is inevitab
