Members of the legislature are not immune from detention under the Preventive Detention Act because the Representation of the People Acts, 1950 and 1951 do not confer any immunity from arrest or detention on members of the legislature, and the Constitution of India, Articles 21 and 22, do not exempt members of the legislature from detention.

( 1 ) MISCELLANEOUS Case No. 325 of 1951 concerns an application for a writ of habeas corpus made by one Ansumali Majumdar on behalf of Dr. Ranen Sen, who has been elected a member of the West Bengal Legislative Assembly, and Sri Bhupesh Chandra Gupta who has been elected a member of the Council of States. Both these persons are detained under orders made under the Preventive Detention Act.

( 2 ) MISCELLANEOUS Case No. 52 of 1952 concerns an application by Benoy Krishna Chowdhury, Ganesh Ghosh and Dr. Ranen Sen for a writ of habeas corpus. As I have stated earlier, Dr. Ranen Sen is a member of the West Bengal Legislative Assembly under detention and so also are Benoy Krishna, Chowdhury and Ganesh Ghosh members of that assembly.

( 3 ) THE common point in both these cases is whether persons returned as members of a State Legislative Assembly or the Council of States can be detained under the provisions of the Preventive Detention Act whilst their membership of the Assembly or the Council of States continues.

( 4 ) I wish to make it quite clear at the outset that no point was taken on behalf of anyone of these four detenus that the orders detaining them were in any way unlawful. In the petition filed by Ansumali Majumdar on behalf of Dr. Ranen Sen and Bhupesh Chandra Gupta allegations of mala fides are made. Further it is said that the grounds of detention served upon the detenus were vague and uncertain. Mr. Atul Chandra Gupta who has appeared on behalf of these petitioners did not press any of these points and in both cases he confined the whole of his argument to the question whether or not persons duly elected as members of either the Legislative Assembly or the Council of States could be detained.

( 5 ) MR. Gupta contended that persons duly elected as members of either House of the Legislature were entitled to freedom from arrest during such membership. His contention was that election as a member of either house entailed important and onerous duties. Persons elected would be unable to represent their constituents or to perform the duties which they were elected to perform unless during their membership they had at all times free access to the house and freedom to perform the manifold duties which devolved upon members of a Legislative Assembly or the Council of States.

( 6 ) THE powers, privileges and immunities of members of Parliament are dealt with in Article 105 of the constitution of India. Clause (1) of this Article provides that subject to the provisions of the Constitution and to any rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in 'parliament. Clause (2) provides that no member of Parliament shall be liable to any proceedings in any Court in respect of anything said or any vote given by him in Parliament or any committee thereof and then follows immunity in respect of certain publications of the proceedings of the house.

( 7 ) CLAUSE (3) is the most important clause for the purposes of this case which reads as follows:"in other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time 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, and of its members and committees, at the commencement of this Constitution".

( 8 ) THERE can I think be no doubt that the claim made by these detenus of freedom from arrest during their membership of either House of the Legislature is a claim to a privilege or immunity and therefore is governed by Article 105 of the Constitution.

( 9 ) AS will be seen from Clause (3) of Article 105 the powers, privileges and immunities of members may be defined by law by Parliament and until they are so defined they shall be similar to the powers, privileges and immunities of members of the British Parliament. Mr. Gupta contends tha