P L D 1954 Dacca 51 (PLP)

ELLIS, J.‑‑In this case a Rule was issued on the Chief Secretary to the Government of East Bengal to show cause why the two petitioners Maulvi Khairat Hossain, M. L. A., and Maulana Abdur Rashid Tarkabagish, M. L. A., should not be set at liberty. The Rule was issued on a petition which was addressed to the Chief Justice on the 21st of March, 1952, by the two petitioners who represented that they were the sitting members of the Legislative Assembly, East Bengal, for Nilphamari Rural Muhammadan Constituency and Sirajgang Central Rural Muhammadan Constituency, respectively. The petitioners after reciting the relevant dates in the body of their petition, chal lenged the order under which they have been detained as being made of malice, grudge and with ill‑motive in order to debar them from criticizing the Government and its policy on the floor of the East Bengal Legislative Assembly. The matter was taken up on the 6th of June, 1952, on which date Mr. Abdus Salaam Khan who appeared on behalf of the two petitioners, advised the Court that he proposed to raise an objection on their behalf that as members of the Legislative Assembly of East Bengal they were immune from arrest and could not be held in detention. In view of this objection we postponed the delivery of the judgment which was fixed for the 6th of June, 1952, and heard Mr. Abdus Salaam Khan on behalf of the petitioners and the learned Advocate‑General on behalf of the Government of East Bengal on the new as well as on the old objection. Mr. Abdus Salaam Khan raised the question of the privileges of members of the Legislative Assembly and their immunity from arrest. In this connection he placed before us Halsbury's Laws of England‑Second Edition‑Volume 24‑Parliament part VII‑Privileges of Parliament‑Section 2, Sub‑section 2 "Whilst Parliament is sitting, and during the time within which the privilege of Parliament extends, it is claimed by resolutions of both houses that no Peer 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 as the case may be, unless it be for treason or felony, or for refusing to give security for the peace. Neither House of Parliament claims, nor has ever claimed, freedom from arrest of any of its members who is charged with a criminal offence." The learned Advocate General relies on the case of Pillala marri Venkateswarlu (A I R (38) 1951 Mad. 269.), a detenu in the Central Jail at Cuddalore which was decided by Govinda Menon and Krishnaswami Nayudu JJ. This is the latest decision of which we are aware on the question of such privilege and the observations made by their Lordships therein must be recited at some length: "The chief ground on which we are asked to release the petitioner is that as a member of the Madras Legislative Assembly be 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 West minister. That it is so is evidence from Article 1194 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 those of the House of Commons, of the Parliament of the United Kingdom and of its members end Committees at the commence ment 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 at West minister is entitled to. It is, therefore, incumbent upon us to find out what exactly are the powers, privileges and immunities of a member of Parliament on 26th January, 1950, and that would resolve the question at issue in this, petition. Mr. Abdus Salaam Khan has pointed out that as the constitu tion for Pakistan has not yet been framed, the same condition will hold good for East Bengal and the members of the East Bengal Legislative Assembly enjoy the powers, privileges and immuni ties which the member of the House of Commons at West minister is entitled to. The ruling under report continues as follows: "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 Anson's Law and Custom of the Constitution, edited by Sir Maurice Gwyer, Vol. 1, p. 163 (1), 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 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 Kings peace. It never was held to protect members from the consequences of treason, felony or breach of the peace. In 1673 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 bad taken a ward in Chancery, his own daughter out of jurisdic tion and had been committed for contempt by the Lord Chancel lor, Lord Brougham. The Committee reported that this 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 be commenced against a member or his servant. * * * (1) Anson's Law & Custom of the Constitution. From these precedents 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 Parliament is charged with an indictable offence, but these alone would not help us in solving the problem now before us. It is difficult to say that the arrest of the petitioner was for any indict able 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 main tenance of public order in this State. We need hardly add that his arrest is not for a civil debt or a civil process. 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. A case apposite in point was that of Captain Ramsay 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 Anderson, Secretary of State for the Home Department, purporting to act under Regulation 18B of the Defence (General) Regulations, 1839. 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 Com mittee of Privileges who, after hearing Sir Anderson as well as Sir Gilbert Campion, came to the following conclusion: "The precedent lends no support to the view that members of Parliament are exempted by privilege of Parliament from detention under Regulation 18B of the Defence (General) Regulation, 1839. 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 extend to such cases would be either the assertion of a new Parliamentary privilege or an unjustified extension of an existing one. No question of any infringement of the privilege of freedom of speech 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 had been claimed from all arrest except for indictable offences on the one hand, 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 arrest. Apart from the possibility of arrest or imprisonment for a non‑indictable offence, preventive detention under Regulation 18B and under analogous powers con ferred on the Executive fell into neither category. Therefore the Committee opined that: "It is plain that arrest in civil the 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 ex haustive 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. Therefore applying the principle set out above the Committee came to the conclusion that the arrest of Captain Ramsay was not a breach of privilege. The Committee further considered the question of the absence of precedents in matters like this. They also adverted td a Statute passed by the British Parliament in 1881, namely, the Protection of Person and Property (Ireland) Act, 1881, which gave the Irish Executive Power to arrest 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 Houses 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 reassembles in like manner as if he had been arrested on 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. The present petitioners are held in detention under the East Bengal Public Safety Ordinance, 1951 (East Bengal Ordinance No. XXI of 1951) as enacted and continued in operation by the East Bengal Act, XXXVIII of 1951. They are being held under detention under a provision which is analogous to that in the case under report, and in agreement with what has been stated by their Lordships in the case under report we cannot accept Mr. Abdus Salaam Khan's argument that the two petitioners are protected from arrest by reason of the privilege they enjoy as being members of the East Bengal Legislative Assembly. The second line of argument taken by Mr. Salaam Khan is that the detention of the two petitioners cannot be justified because the orders passed in their cases have been passed mala fide. In this connection he draws our attention to the fact that they received notice from His Excellency the Governor of East Bengal to attend a sitting of the East Bengal Legislative Assembly on or from the 20th of February, 1952. They reached Dacca on the 19th of Febru ary, 1952, and thereafter stayed in a house in Simpson Road reserved by Government for the accommodation of members of the Assembly. They attended the sitting of the Assembly on the 20th 21st and 22nd of February, 1952. On the 21st of February 1952, in the Legislative Assembly they criticized the policy of the East Bengal Government and its action regarding the firing which took place by the Police at Dacca on the 21st of February, 1952, and walked out of the Assembly as a protest. On the 22nd of February, 1952, they moved an adjournment motion in the Assembly in order to raise a discussion regarding the Police firing on the 21st of February, 1952. On the 22nd of February 1952, the Assembly was ad journed by the Speaker and it was to resume its sitting at 3‑30 p. m. on the 25th of February; 1952. On the 24th of February 1952, the Assembly was prorogued and in the early hours of the morning of the 25th of February, 1952, the two petitioners were arrested by the Dacca Police from their lodging at 2, Simpson Road, Dacca, and thereafter detained in the Dacca Central Jail until 28th of February, 1952, whence they were removed to the Bogra District Jail where they are at present under detention. It has been argued by Mr. Abdus Salaam Khan on behalf of the two petitioners that the recital of the dates shows that the action of the Government of East Bengal was mala fide and was de signed to stifle the motion of no‑confidence which bad been tabled on the 22nd of February, 1952. It was, therefore, argued that the action of the Government being mala fide could not be upheld by this court. On behalf of the Government of East Bengal, the learned Advocate‑General has filed the usual affidavit showing that the petitioners have been detained under the East Bengal Public Safety Ordinance, 1951 (East Bengal Ordinance No. XXI of 1951) as enacted and continued in operation by the East Bengal Act XXXVIII of 1951. He has also claimed that the order was passed by the Government of East Bengal bona fide on the basis of credible information and material evidence in possession of the Government of East Bengal at the time of the order and the grounds of the detention were communicated to the petitioners in sufficient detail to enable them submit a representation to the Government if they were so advised. The submission of any further detail could not be disclosed as in the opinion of the Government it was not in the public interest to do so. The learned Advocate -General has argued that in these cases the rights of society conflict with the rights of the individual", and when the rights of society require the detention of the individual, the individual must be so held in detention. He has further argued that it is a sufficient answer to the charge of mala fides for the Government to produce the relevant order showing that it has been passed because the Governor was satisfied that it was necessary to do so in order to prevent the petitioner from acting in a manner prejudicial to the general safety. It has been held by this Court in a series of decisions that this Court is no longer competent to enter into the question of the satisfaction of the Governor and if the order B is on record as being made on his satisfaction then that is the valid answer to a Rule such as the present. For these reasons we cannot hold that Mr. Abdus Salaam Khan has been able to make out any case for the release of the two petitioners. The Rule is accordingly discharged ISPAHANI, J.‑

I agree. A. H Rule discharged