The privileges and immunities available to a legislative assembly member are as defined by the Legislature by law, and until so defined, those of a member of the House of Commons of the Parliament of the United Kingdom at the commencement of the Constitution.

1. This is a petition by a member of the Travancore-Cochin Legislative Assembly who was arrested on the 12th August 1954 in connection with P.E. No. 9 of 1954 of the Court of the Stationary First Class Magistrate, Kuzhithurai, and against whom that case and P.E. No. 10 of 1954 are pending at present. Paragraph 5 of the petitioner's affidavit states:

"An application for the issue of a writ of Habeas Corpus to this Honourable Court on my behalf and my application for bail have all been rejected by all the courts in this State. The trials in the cases have not yet commenced and I am continued in custody".

and the prayer in the petition is:

"That a writ of mandamus, privilege or other appropriate directions and orders should issue directing the respondents to enable the petitioner to attend the session of the Legislative Assembly of the Travancore Cochin State summoned to commence its sittings on 25th January 1955 and to remove the obstructions in that behalf".

2. According to the learned counsel for the petitioner his client has a paramount right to attend the proceedings of the Legislative Assembly and his detention though admittedly legal and under due process of law should be subordinated to that right and appropriate writs or directions to effectuate that right by permitting his client to take part in the proceedings of the Legislative Assembly commencing on the 25th January 1955 should be issued by us. We are unaware of the existence of any such right and our attention has not been drawn to any constitutional or statutory provision in that behalf.

3. Art. 194 deals with the powers, privileges and immunities of the Legislatures and their members in the Part A States and Art. 238 makes those powers, privileges and immunities available to the Legislatures and their members in the Part B States as well. Cl.(3) of Art.194 deals with the privileges and immunities available to the petitioner in a matter like this and they are, according to that clause "such as may from time to time be defined by the Legislature by law" and, until so defined, those of a member of the House of Commons of the Parliament of the United Kingdom at the commencement of the Constitution.

4. As stated before there is no statutory provision granting the privilege or immunity invoked by the petitioner and it is clear from May's Parliamentary Practice, (15th Edn.1950) p. 78 that "the privilege of freedom from arrest is not claimed in respect of criminal offences or statutory detention" and that the said freedom "is limited to Civil causes, and has not been allowed to interfere with the administration of criminal justice or emergency legislation".

5. It was conceded by the learned counsel for the petitioner that the claim made by his client is unavailable to a member of the House of Commons in the United Kingdom and that the petition is based on the assumption that a wider privilege exists in this country by virtue of Art.190(3)(a) and Art.191(1)(e) of the Constitution and S.7(b) of the Representation of the People Act, 1951.

6. Art. 190(3) provides that:

"If a member of a House of the Legislature of a State -

(a) becomes subject to any of the disqualifications mentioned in Cl. (1) of Art. 191; his seat shall thereupon become vacant,"

Art. 191(1):

"a person shall be disqualified for being chosen as and for being a member of the Legislative Assembly or Legislative Council of a State -

(e) if he is so disqualified by or under any law made by Parliament; and under S. 7 of the Representation of the People Act, 1951:

"A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State -

(b) if, whether before or after the commencement of the Constitution, he has been convicted by a court in India of any offence and sentenced to transportation or to imprisonment for not less than two years, unless a period of five years or such less period as the Election Commission