JUDGMENT Jagdish Bhalla, J.
1. Initially, Writ Petition No. 1107 (MB) of 2003, Raghuraj Pratap Singh alias Raja Bhaiya v. State of U.P. and Ors. was filed before this Court and when the hearing was going on, Writ Petition No. 1232 (MB) of 2003 ; Dhananjay Singh v. State of U.P. and Ors. and Writ Petition No. 1206 (MB) of 2003 ; Vimla Devi and Ors. v. State of U.P. and Ors. were also filed. Since the controversy involved in the above three writ petitions was almost identical in nature, all the above mentioned writ petitions have been heard together and are being decided by a common judgment.
2. Petitioner of Writ Petition No. 1107/MB/2003, namely, Raghuraj Pratap Singh is a Member of Legislative Assembly from the Kunda Constituency, district Pratapgarh. Petitioner of Writ Petition No. 1232/MB/2003, namely, Dhananjay Singh is also a Member of Legislative Assembly from Rari Constituency, district Jaunpur. Petitioners of Writ Petition No. 1206/MB/2003, namely, Vimla Devi and others are the electorate of Kunda Constituency and are said to be eligible to cast vote for electing a Member of Legislative Assembly. They in support thereof, have annexed copy of the voter list and identity card issued by the Election Commission of India.
3. Petitioner, Raghuraj Pratap Singh, is in judicial custody under the Prevention of Terrorism Act, 2002 (hereinafter referred to P.O.T.A.) and other criminal cases including under the provisions of Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act (hereinafter referred to as the Gangsters Act). He has filed this present writ petition with the prayer that he should be allowed to participate in the State Legislative Assembly Session which is going to commence from 28.2.2003. He has further prayed that a direction be issued to opposite parties to bring the petitioner to Lucknow so as to enable him to attend the Session of the Assembly and during the continuance of the session, he should be kept in District Jail, Lucknow.
4. Similarly, petitioner-Dhananjay Singh, who has preferred this petition on 3.3.2003, has also prayed for the same relief as sought for by petitioner-Raghuraj Pratap Singh. In addition to this, he has also prayed for quashing the order dated 27.2.2003, contained in Annexure-3 to the writ petition, passed by Special Judge (Gangsters Act), Lucknow, whereby the application for permitting the petitioner to attend the Session of the Assembly w.e.f. 28.2.2003 to 7.3.2003 has been rejected.
5. At the very outset, it may be mentioned here that petitioner-Raghuraj Pratap Singh has also made similar application along with Dhananjay Singh as is evident from the order dated 27.2.2003 but the petitioner, Raghuraj Pratap Singh has not made any averment in his writ petition nor the learned counsel for the petitioner informed the Court at any stage. Further, he has not questioned the correctness of the order dated 27.2.2003. Moreover, petitioner - Raghuraj Pratap Singh has also approached the District Judge, Kanpur (Designated Court for trying the cases under P.O.T.A.) by making an application that he may be permitted to take part in the Assembly proceeding. This application of the petitioner was rejected by the designated Court on 26.2.2003 but significantly, this fact was also not brought to the knowledge of this Court by the petitioner.
6. Petitioner Raghuraj Pratap Singh has made an application addressed to Hon'ble the Chief Justice, Allahabad High Court and the Speaker of the Assembly mentioning therein his doubts that he may not be allowed to participate in the forthcoming Assembly Session which will amount to violation of his fundamental right. Besides this application dated 25.2.2003, an application was made by one, Yashvant Singh, former Minister to the Speaker of the Assembly mentioning therein that a copy of the order passed on the application of Raghuraj Pratap Stngh should be supplied.
7. Subsequently, toy an application for amendment in writ petition was filed by the petitioner praying therein that the communication dated 26.2.2003 sent by the Principal Secretary, Assembly Secretariat be also quashed. The said amendment application was allowed.
8. It is important to mention here that by the communication dated 26.2.2003 the Principal Secretary has informed one Sri Yashvant Singh, former State Minister that any Member who is detained in jail and wants to attend the Assembly Session, should make an application to the competent court.
9. Dr. L. P. Misra, the learned counsel appearing for Raghuraj Pratap Singh in Writ Petition No. 1107 (M/B) of 2003, has argued that in a Parliamentary System of Government as ours, the right of a Member of the Parliament or the State Legislature to participate in the proceeding of the House and to express his views in the House and to vote where necessary, is a most valuable constitutional right and the same cannot be denied to him, unless he has incurred any disqualification from continuing as such member. Dr. Misra has referred to the provision contained under Articles 174, 175, 189, 191 and 194, of the Constitution of India, so as to highlight his argument that right and privilege of freedom of speech, referred to in Article 194(1) are subject only to the provisions of the Constitution, rules of the procedure of the House and to no statutory law. In other words. Dr. Misra submits that such a right or privilege of the Member of State Legislature as described under Article 194, cannot be denied or curtailed by any law other than the provisions of the Constitution or the rules of procedure of the House. Realizing the difficulty that he may have from the view expressed by the Constitution Bench of the Apex Court in K. Ananda Nambiar v. Chief Secretary Government of Madras, AIR 1966 SC 657, Dr. Misra has advanced a somewhat unique argument that while a Legislator detained under a preventive law may not have a right and privilege as mentioned in Article 105 or 194, as the case may be but a Member of Legislature detained on a criminal charge pending investigation or trial cannot be prevented from participating in the proceeding of the House and exercising his right and privileges as such. According to Dr. Misra, a preventive detention partakes of the character of conviction and sentence as observed by the Apex Court in the last portion of para 19 in Nambiar's case (supra) and so is akin to disqualification. In the same context, he goes on to argue that while preventive detention is under the provision of the Constitution and is, therefore, covered by the expression 'subject to the provisions of the Constitution' appearing in Clause (1) of Article 194 but punitive detention pending any investigation or trial cannot be said to be under the Constitution.
10. Dr. L. P. Misra, submits that a Member of Parliament or Legislature of the State has also, besides the rights and privileges mentioned in Article 194, certain duties and obligations, which he can discharge only when he is able to participate in the proceedings of the House. He argues that even an ordinary person, under punitive detention on a criminal charge is permitted to attend marriage or funeral ceremony of some of his kith and kin and at times is permitted to take examination and medical treatment and so there is no reason as to why a Member of Legislature under such punitive detention, cannot be permitted to exercise his rights and privileges mentioned under Article 194 and to discharge his duties and obligations as such. He goes on to argue that rights and privileges of a Member of the House cannot be given inferior treatment in a Parliamentary democracy. Dr. Misra contends that even an ordinary citizen in detention enjoys some of his freedoms guaranteed under Article 19(1) and some of his fundamental rights guaranteed under Articles 14 and 21 of the Constitution, so the opposite parties cannot say that the Legislator cannot enjoy such rights and privileges as mentioned in Article 194, when he is under such punitive detention.
11. Learned counsel submits that the petitioner is not challenging his detention and his simple request is that his participation in the ensuing or ongoing Session of Vidhan Sabha should be facilitated and ensured by the opposite parties. He says that it is possible even without releasing the petitioner from custody. Dr. Misra has submitted with a little vehemence that in case a Legislator is prevented from participating in the session of the House, by putting him in detention, parliamentary democracy will be in great peril as the Government in power apprehending fall of the Government due to lack of requisite majority, may succeed in depriving inconvenient members from participating and voting in the House. According to him, so long as the member does not loose his membership by incurring any of the disqualification, a synthesis has to be evolved between the detention of the member and his exercise of such important constitutional rights, else democracy itself may find it difficult to survive. Dr. Misra says that at times even one vote may change the course of the history. He wants that this Court should adopt an approach which strengthens the parliamentary democracy which is the basic feature of our Constitution and should discourage the tactics that tend to weaken it.
12. Dr. L. P. Misra has tried to distinguish the ratio in Nambiar's case (supra) by saying that that was a case of preventive detention and that was a case where enforcement of the constitutional rights was sought at a time when there was an order of the President under Article 359 of the Constitution of India. He says that by virtue of the proclamation of emergency under Article 352(1) of the Constitution, the enforcement of fundamental rights under Article 19 stood suspended under Article 358 and the enforcement of the rights under Articles 14, 21 and 22 of the Constitution stood suspended because of the Presidential Order, issued under Article 359 of the Constitution. He says that whatever, has been said by the Apex Court in that case should be looked into in the light of the facts and circumstances appearing then. He has referred to Seven Judges Case of the Apex Court in Special Reference No. 1 of 1964, AIR 1965 SC 745 and has said that in paras 31 and 32, Hon'ble Supreme Court has ruled that freedom of speech of a member of the House is 'absolute and unfettered' and Is subject only to the provisions of the Constitution and to the Rules and Standing Orders regulating the procedure of the House and this right is separate to, and independent of the fight under Article 19(1)(a) of the Constitution.
13. The last submission of Dr. Misra is that if the subordinate court under whose orders such Legislator is detained, can allow him to participate in proceedings of the Assembly, as is also Indicated in the communication received from the Secretary to the Legislative Assembly, then there is no reason why this Court sitting under Article 226, cannot consider the same. To a pointed query put by the Court as to what considerations should weigh with this Court to accept or reject the request of the detained Legislator, to participate in the Session of the House, Dr. Misra went too far to say that this Court or for that matter any other competent court, has no option but to accept the request. His reasoning was that the job of the Legislator was of such a vital importance in a democratic set up and Parliamentary democracy that there was no other option but to permit such member to participate in the proceedings of the House and to thwart the attempts of persons who want to remain in power by hook or by crook.
14. Sri S. P. Shukla appearing for Dhananjay Singh in Writ Petition No. 1232 (M/B) of 2003, has adopted the arguments advanced by Dr. L. P. Misra. He says that the order dated 27.2.2003 passed by the learned Special Judge (Gangster Act) by which he rejected the request of the petitioner for allowing him to participate in the ensuing session of the House, is not just and proper. He further submitted that such permission has been given to another Legislator Sri J. P. Yadav. He says that even a member convicted under T.A.D.A. has been allowed to participate in the Session of the House. He has tried to say that detention of his client is actuated by malice but he is not challenging the detention itself and he wants that his client should be permitted to participate in the proceeding of the House and for that purpose necessary directions should be issued to the opposite parties. The learned counsel has also argued that even a detained petitioner has his freedom under Article 19(1)(a)(d) of the Constitution.
15. Sri J. N. Mathur appearing for the petitioner in Writ Petition No. 1206 (M/B) of 2003, has argued that it is the constitutional right of the voters of the concerned constituency, to have their say in the House, through their elected representative and denial of participation in the proceedings of the House, is violation of their rights. He says that if a person detained in jail, can contest an election to the Assembly or Parliament and can vote in such elections, then there is no reason as to why a detained Legislator cannot be allowed to participate in the proceedings of the House. He submits that summoning under Article 174 by His Excellency the Governor, is a kind of command or order to the Member of the Legislature, to obey and the opposite parties cannot be permitted to compel the member to disobey that command. He has referred to the meaning of the words 'summon' as given in the new International Webster's and Thesaurus 2002 edn., so as to support his contention that summon means a command or order.
16. Before proceeding to deal with the arguments advanced by the learned counsel for the parties. It would be apt to refer to various Articles 174, 175, 189, 191 and 194 which deals with summoning of the House, Right of Governor to address and send messages to the House or Houses, voting in Houses, power of Houses to act notwithstanding vacancies and quorum, disqualifications for membership and certain powers, privileges, etc. of the House of Legislatures and other members and committees thereof:
Article 174. Sessions of the State Legislature, prorogation and dissolution. --(1) The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.
(2) The Governor may from time to time :
(a) prorogue the House or either House ;
(b) dissolve the Legislative Assembly.
Article 175, Right of Governor to address and send messages to the House or Houses.--(1) The Governor may address the Legislative Assembly or, in the case of a State having a Legislative Council, either House of the Legislature of the State, or both Houses assembled together, and may for that purpose require the attendance of members.
(2) The Governor may send messages to the House or Houses of the Legislature of the State, whether with respect to a Bill then pending in the Legislature or otherwise, and a House to which any message is so sent shall with all convenient dispatch consider any matter required by the message to be taken into consideration.
Article 176. Special address by the Governor.--(1) At the commencement of (the first session after each general election to the Legislative Assembly and at the commencement of the first session of each year), the Governor shall address the Legislative Assembly or, in the case of a State having a Legislative Council, both Houses assembled together and inform the Legislature of the causes of its summons.
(2) Provisions shall be made by the rules regulating the procedure of the House or either House for the allotment of time for discussion of the matters referred to in such address.
Article 189. Voting in Houses, power of Houses to act notwithstanding vacancies and quorum.--(1) Save as otherwise provided in this Constitution, all questions at any sitting of a House of the Legislature of a State shall be determined by a majority of votes of the members present and voting, other than the Speaker or Chairman, or person acting as such.
The Speaker or Chairman, or person acting as such, shall not vote in the first Instance, but shall have and exercise a casting vote in the case of an equality of votes.
(2) A House of the Legislature of a State shall have power to act notwithstanding any vacancy in the membership thereof, and any proceedings in the Legislature of a State shall be valid notwithstanding that it is discovered subsequently that some person who was not entitled so to do sat or vote or otherwise took part in the proceedings.
(3) Until the Legislature of the State by law otherwise provides, the quorum to constitute a meeting of a House of the Legislature of a State be ten members, or one-tenth of the total number of members of the House, whichever is greater.
(4) If at any time during a meeting of the Legislative. Assembly or the Legislative Council of a State there is no quorum, it shall be the duty of the Speaker or Chairman, or person acting as such, either to adjourn the House or to suspend the meeting until there is a quorum.
Article 191. Disqualifications for membership.--(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 :
(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder ;
(b) if he is of unsound mind and stands so declared by a competent court ;
(c) if he is an un-discharged insolvent ;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State ;
(e) if he is so disqualified by or under any law made by Parliament.
Article 194. Powers, privileges, etc., of the House of Legislatures and of the members and committees thereof.--(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State.
(2) No member of the Legislature of a State shall be liable to any proceedings in any Court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings.
(3) In other respect, 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 that House and of its members and committees immediately before the coming into force of Section 26 of the Constitution (Forty-fourth Amendment).
(4) The provisions of Clauses (1), (2) and (3) shall apply in relation to persons who by virtue of the Constitution have the right to speak in, and otherwise to take part in the proceedings of a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature.
17. Sri S.C. Mishra, learned Advocate General appearing for the State of U.P. has argued that neither the two Legislators, namely, Raghuraj Pratap Singh and Dhananjay Singh nor the voters-petitioners of Writ Petition No, 1206 (MB) of 2003 have any fundamental right or constitutional rights of the type claimed in their respective writ petitions. He says that the Apex Court has already ruled in Nambiar's case (supra) that the rights and privileges of a Member of Parliament or the State Legislature to participate in the proceedings of the House as referred to under Article 105 or 194 as the case may be, or under other Articles of the Constitution, are not fundamental rights and so they cannot claim privilege from arrest or detention on a criminal charge. Learned Advocate General goes on to argue that the Apex Court has categorically held that the privilege of the Member of Parliament or the State Legislature from arrest or detention, at any time when the House is in session or at any time when the House is to come in the session, is confined only to a civil arrest or detention and does not extend to preventive detention or punitive detention on certain criminal charge. Learned Advocate General referred to Section 135A of the Code of Civil Procedure as amended in 1976 so as to say that the privilege of a Member of the House from arrest and detention near or during the session is expressly prohibited in civil matters but no such express provision exist in any law which may save a member from such arrest and detention on a criminal charge or under preventive law. He submits that the detention in the very nature of it, deprives the detenu from exercising some of his freedoms and rights, which a free man may exercise. He says that the freedom of speech referred to under Article 194(1) or the right to vote referred to under Article 194(2) are the rights inside the House and cannot be claimed outside the House or outside the Committee of the House. In other words, submission of the learned Advocate General is that special right to speech, given to a Member of the House under Article 194(1) is a right to be exercised only in the House as has been reiterated by the Apex Court in Nambiar's case and also in special reference case (popularly known as Keshav Singh's case). He says that there can be no debate on the proposition that in a parliamentary democracy as ours, right or liberty of the Legislator to speak in the House is unfettered and unrestricted but to say that such Legislator will have the same privilege while in preventive detention under the process of law, will not be correct.
18. Sri S.C. Misra has also contended that the two Legislators are in punitive detention under the orders of the respective Courts, pending investigation into a criminal charge and so the prayer of the petitioners that the State Government or its officers should be directed to facilitate or ensure their participation in the ensuing or ongoing session of Vidhan Sabha, is totally misconceived. He says that the State Government or its Officers cannot vary the term of detention and if any thing can be done, the same is to be done by the Court concerned and as a matter of fact the two Legislators have already approached the Court concerned but have not succeeded. He has also contended that no distinction can be made in between the 'preventive detention' and 'punitive detention', in the context of the claim of a detained legislators to participate in the session of the House and both will stand on same footing and from that point of view the cases of the two Legislators are fully covered by the ratio in Nambiar's case (supra).
19. Learned Advocate General has also referred to A. Kunjan Nadar v. State, AIR 1955 TC 154 and Indira Nehru Gandhi v. Raj Narain, 1975 Suppl (SCC) 1, in support of his arguments referred to above. He says that so long as a Legislator is in detention under a valid order, he cannot claim any right or privilege, to participate in the proceedings of the House and unless he has any such right to participate even while in custody, he cannot come to this Court requesting for permission to participate in the session in custody. During the course of arguments, Sri Satlsh Chandra Mishra has also brought to our notice that there are as many as thirty five criminal cases against Raghuraj Pratap Singh alias Raja Bhaiya. Perhaps learned Advocate General wanted to say that if any such request is to be considered or can be considered by the Court, such matter as involvement of a person in a number of heinous cases, cannot be kept aside and such permission is not to be given in a routine way. He has also contended that this Court should be slow enough in interfering in the matter when such request has already been considered and turned down by the Courts concerned.
20. Sri S. C. Misra has drawn our attention towards the relevant paragraphs of the U.P. Jail Manual (Chapter XXXIX) so as to say that there is an elaborate scheme for medical treatment of the prisoner and for shifting of the ailing prisoner to a hospital concerned. He says that the same cannot be pressed into service to as to say that if a prisoner in custody can be taken for operation or for other treatment, then why the detained Legislator cannot be taken to the House for participating in the session of the Vidhan Sabha.
21. Learned Advocate General has also commented that the averments made in paragraph 5 onwards in the writ petition of Dhananjay Singh in so far as they relate to opposite party No. 2 have not been properly verified as the person filing affidavit is not himself a Legislator and he had no basis to know the alleged facts, which he has stated in the writ petition. According to him, the writ petition of Dhananjay Singh deserves to be rejected on this ground alone. He has further stated that though the designated Court at Kanpur had refused permission to Raghuraj Pratap Singh, but this fact was also not disclosed in the writ petition filed by him. He has also stated that so far as one M.L.A., namely, J.P. Yadav is concerned, his detention had already been revoked and therefore, it was not correct to say that he was permitted to participate in the House while in detention. He further says that so far as Mukhtar Ansari, M.L.A. is concerned, the orders have been passed by the Court at Lucknow and the Government is proposing to challenge the same by way of appeal or revision.
22. In A.K. Gopalan v. State of Madras, AIR 1950 SC 27, it has been held that freedoms as guaranteed under Article 19 of the Constitution are to be enjoyed while the citizens are free and a citizen who loses the freedom of his person by being lawfully detained whether as a result of conviction for an offence or as a result of preventive detention, loses his capacity to exercise those rights and, therefore, has none of the rights which Sub-sections (a) to (e) and (g) may protect. In other words, the view taken was that none of the seven rights enumerated in Article 19(1) was absolute because each of those rights is liable to be curtailed by laws made or to be made by the State to the extent mentioned in Clauses (2) to (6) of that Article.
23. In State of Maharashtra v. Prathuran Padurang, AIR 1966 SC 424, the Constitutional Bench of the Apex Court struck a different note when it held that refusal by the State Government to the detenu to send manuscript of his book out of Jail for its publication was bad in law. The Court said that refusal on the part of the State Government infringed the personal liberty of the detenu as no restriction except as provided in Sub-rule (4) of Rule 30 of the Defence of India Rules can be imposed. The Court observed that the view expressed by Das, J., in Gopalan's case that the detenu loses all rights was not a last word on the subject. Subsequently, in Charles Sobhraj v. Supdtt. Central Jail, Tihar, AIR 1978 SC 1514, the Court said that :
"Imprisonment does not spell farewell to fundamental rights although, by a realistic reappraisal. Courts will refuse to recognize the full panoply of Part III enjoyed by a free citizen. Article 21 read with Article 19(1)(d) and (5), is capable of wider application than the imperial mischief, which gave its birth and must draw its meaning from the evolving standard of decency and dignity that mark the progress of a mature society."
That was the case where the detenu had complained against putting of unreasonable iron fetters while in jail. Likewise, a Constitutional Bench in Sunil Batra v. Delhi Administration, AIR 1978 SC 1675, stated as under :
"It is no more open to debate that convicts are not wholly denuded of their fundamental rights. However, a prisoner's liberty is in the very nature of things circumscribed by the very fact of his confinement. His interest in the limited liberty left to him is then all the more substantial. Conviction for a crime does not reduce the person into a non-person whose rights are subject to whim of the prison administration and, therefore, the imposition of any major punishment within the prison system is conditional upon observance of procedural safeguards."
In the aforesaid case, the petitioner had challenged his solitary confinement in jail. The Apex Court conceded some of the rights to the prisoner such as meeting with co-prisoners, enjoying basic rights necessary for human existence. It however, acknowledged the reality that the detenu was not free to enjoy fully liberty as the same was curtailed by the very fact of his confinement.
24. In Smt. Maneka Gandhi v. Union of India, AIR 1978 SC 597, the Apex Court ruled that Article 21 did not, in a given Situation, exclude Article 19. In this case, the right to go abroad was under consideration.
25. From the above, this much is clear that the detenu does not lose all his fundamental rights but is also not free to enjoy all those rights, which a free citizen does enjoy. Detention in law presupposes or implies curtailment of some rights and if rights are not to be curtailed, it is difficult to conceive of the detention. It is altogether a different point as to which curtailment or restriction is reasonable and is permissible in law.
26. Dr. L. P. Misra has rightly argued that freedom given to the citizen under Article 19(1) is separate to, and independent of, the rights and privileges of the Members of the House referred to under Article 105 or 194 of the Constitution. This has also been said in so many words by the Apex Court in Keshav Singh's case (supra). While examining the tenability or otherwise of the request of the petitioners, for permitting the two detained Legislators to participate in the ongoing session of the Vidhan Sabha, the freedom guaranteed under Article 19(1), to our mind, will not be in the context. Two Legislators are not claiming any freedom under Article 19(1) but are claiming their rights and privileges as Legislators. After the verdict of the Apex Court in Nambiar's case, there is hardly any scope for the argument that the rights of a person as Member of Parliament or the Stale Legislature are fundamental rights. That argument was negatived by the Apex Court. Whatever rights of speech have been guaranteed under Article 194(1) or under Article 105(1), the same is to be exercised by the Member, inside the respective House and this has also been clearly said in Nambiar's case. In fact that is the plain language of those Articles and it is for this reason that protection has been given to the member from any criminal or civil liability for anything said in the House. No such protection as referred to in Clause (2) of Article 194, is available to a citizen enjoying the freedom of speech and expression under Article 19(1)(a).
27. We find it difficult to agree with Dr. Mishra on the point that Nambiar's case is not relevant is the context. It is true that the case came at a time when a proclamation of emergency was in force and the Presidential Order under Article 359 of the Constitution suspending the enforcement of Articles 14, 21 and 22 was there but Apex Court did examine the correctness or otherwise of the contention that a Member of Parliament enjoy certain rights and privileges under Articles 100(1), 105(1) from being detained at the time when session was going on and also examined the correctness or otherwise of the contention whether such rights were constitutional or fundamental rights. It would be useful to reproduce the relevant paragraphs of the said judgment :
"(17) What then is the true legal character of the rights on which Mr. Setalvad has founded his argument? They are not rights which can be properly described as constitutional rights of the Members of Parliament at all. The Articles on which Mr. Setalvad has rested his case clearly bring out this position. Article 79 deals with the constitution of Parliament and it has nothing to do with the individual rights of the Members of Parliament after they are elected. Articles 85 and 86 confer on the President the power to issue summons for the ensuing session of Parliament and to address either House of Parliament or both Houses as therein specified. These Articles cannot be construed to confer any right as such on individual members or impose any obligation on them. It is not as if a Member of Parliament is bound to attend the session, or is under an obligation to be present in the House when the President addresses it. The context in which these Articles appears shows that the subject-matter of these articles is not the individual rights of the Member of Parliament, but they refer to the right of the President to issue a summons for the ensuing session of Parliament or to address the House or Houses."
"(18) "Then as to Article 100(1) ; what it provides is the manner in which questions will be determined ; and it is not easy to see how the provision that all questions shall be determined by a majority of votes of members present and voting, can give rise to a constitutional right as such. The freedom of speech on which Mr. Setalvad lays considerable emphasis by reference to Article 105(1) and (2), is a part of the privileges of the Members of the House. It is no doubt a privilege of very great importance and significance, because the basis of democratic form of Government is that Members of Legislatures must be given absolute freedom of expression when matters brought before the Legislatures are debated. Undoubtedly, the Members of Parliament have the privilege of freedom of speech, but that is only when they attend the session of the House and deliver their speech within the chamber itself. It will be recalled that in Cap. Ramsay's case, what had been urged before the Committee of Privileges was that the detention of Cap. Ramsay had caused a breach of privilege of his freedom of speech, and this plea was rejected by the committee. We are, therefore, satisfied that on a close examination of the articles on which Mr. Setalvad has relied, the whole basis of his argument breaks down, because the rights which he calls constitutional rights are rights accruing to the Members of Parliament after they are elected, but they are not constitutional rights in the strict sense, and quite clearly, they are not fundamental rights at all. It may be that sometimes in discussing the significance or importance of the right of freedom of speech guaranteed by Article 105(1) and (2) it may have been described as a fundamental right ; but the totality of rights on which Mr. Setalvad relies cannot claim the status of fundamental rights at all, and the freedom of speech on which so much reliance is placed, is a part of the privileges falling under Article 105, and a plea that breach has been committed of any of these privileges cannot, of course, be raised in view of the decision of the Committee of Privileges of the House of Commons to which we have just referred. Besides, the freedom of speech to which Article 105(1) and (2) refer, would be available to a Member of Parliament when he attends the session of the Parliament. If the order of detention validly prevents him from attending a session of Parliament, no occasion arises for the exercise of the right of freedom of speech and no complaint can be made that the said right has been invalidly invaded."
"(19) There is another aspect of this problem to which we would like to refer at this stage. Mr. Setalvad has urged that Member of Parliament is entitled to exercise all his constitutional rights as such member, unless he is disqualified and for the relevant disqualifications, he has referred to the provisions of Article 102 of the Constitution and Section 7 of the Representation of the People Act. Let us take a case falling under Section 7(b) of this Act. It will be recalled that Section 7(b) provides that if a person is convicted of any offence and sentenced to imprisonment for not less than two years, he would be disqualified for membership, unless a period of five years, or such less period as the Election Commission may allow in any particular case, has elapsed since his release. If a person is convicted of an offence and sentenced to less than two years' clearly such conviction and sentence would not entail disqualification. Can it be said that person has been convicted of an offence and sentenced to suffer imprisonment for less than two years, is entitled to claim that notwithstanding the said order of conviction and sentence, he should be permitted to exercise his rights as a Legislator, because his conviction and sentence do not involve disqualification? It is true that the conviction of a person at the end of a trial is different from the detention of a person without a trial ; but so far as their impact on the alleged constitutional rights of the Member of Parliament is concerned, there can be no distinction. If a person who is convicted and sentenced has necessarily to forego his right of participating in the business of the Legislature to which he belongs, because he is convicted and sentenced it would follow that a person who is detained must likewise forego his right to participate in the business of the Legislature. Therefore, the argument that so long as the Member of Parliament has not incurred any disqualification, he is entitled to exercise his rights as such member cannot be accepted."
"(20) Besides, if the right on which the whole argument is based is not a fundamental right, it would be difficult to see how the validity of the rule can be challenged on the ground that it permits an order of detention in respect of a Member of Parliament and as a result of the said order the Member of Parliament cannot participate in the business of Parliament. It appears that a similar question had arisen before the Madras and the Calcutta High Courts, and the decision of these High Courts are in accord with the view, which we are inclined to take in the present proceedings. In Venkateswarlu v. District Magistrate, Guntur, ILR (1951) Mad 135 : AIR 1951 Mad 269, it was held by a Division Bench of the Madras High Court that a Member of the State Legislature cannot have immunity from arrest in the case of a preventive detention order. Similarly, in the case of In re, Ananda Nambiar, ILR (1953) Mad 93 : AIR 1952 Mad 117, it was held by the Madras High Court that once a Member of a Legislative Assembly is arrested and lawfully detained, though without actual trial, under any Preventive Detention Act, there can be no doubt that under the law as it stands, he cannot be permitted to attend the sittings of the House. The true constitutional position, therefore, is that so far as a valid order of detention is concerned, a Member of Parliament can claim no special status higher than that of any ordinary citizen and is as much liable to be arrested and detain under it as any other citizen."
28. Similar question was also raised in A. Kunjan Nadar v. State, AIR 1955 TC 154 and while observing that when a member is detained under due process of law, he cannot claim that his decision should be subordinated to his right to attend the proceedings of the Legislative Assembly the Court held that :
"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 for 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."
29. The attempt of Dr. Mishra to make a distinction between the 'preventive detention' and 'punitive detention' in the context of the claim of the detained Legislators to participate in the session of the House, does not appear to be well founded. Though he had drawn our attention towards the following sentences of paragraph 19 of Nambiar's case so as to say that preventive detention amounts to conviction and consequent disqualification, but we have not been able to persuade ourselves to accept his reasoning and to find anything in those sentences which may support his line of arguments. Relevant lines of paragraph 19 run as under :
"It is true that the conviction of a person at the end of a trial is different from the detention of a person without a trial ; but so far as their impact on the alleged constitutional rights of the Member of Parliament is concerned, there can be no distinction. If a person who is convicted and sentenced has necessarily to forego his right of participating in the business of the Legislature to which he belongs, because he is convicted and sentenced it would follow that a person who is detained must likewise forego his right to participate in the business of the Legislature".
30. There is nothing in Keshav Singh's case which may help Dr. L. P. Misra or Sri Shiv P. Shukla or Sri Mathur to say that a person under preventive detention or a Legislator under detention can enjoy the privilege of participating in the session of the House or he has a right to do so. In fact, Nambiar's case is an authority on the point and the privilege from arrest and detention is confined to civil arrest and civil detention and does not extend to arrest or detention under preventive law or on a criminal charge. For saying so, their Lordships referred to various cases and the view of the committees constituted in the context of British Parliament. This Court need not go in detail on that point. Learned Advocate General has rightly pointed out Section 135A of the Code of Civil Procedure, which gives freedom to a Member of the House from arrest or detention in the contingencies mentioned therein. No like provision could be shown to us in the Code of Criminal Procedure or in any other law on the basis of which it can be said that a Member of the House could not be arrested or detained on a criminal charge in those contingencies as mentioned in Section 135A of the Code of Civil Procedure.
31. But then the argument of the learned counsel for the petitioners is that the two Legislators are not claiming any privilege from arrest or detention on a criminal charge nor are they challenging their detention but they are simply seeking permission of the Court for participating in the session of the House in custody. In other words, the precise argument is that even while in detention under a valid order, the two Legislators have a right or privilege to participate in the House and can exercise the right or privilege under Article 194 of the Constitution. It is said that they are under duty and under oath to do so and they should be allowed to discharge their duties and obligation.
32. We are of the view that the arguments advanced in this connection are not well placed. Unless the two Legislators convince us that they have any enforceable right to participate in the session of the House even they are lawfully detained under orders of the Courts. The rights and obligation are being referred to by the learned counsel for the petitioners are the rights and privileges inside the House and, if they are detained by a valid order, it is implied that they cannot enjoy those privileges and rights so long as they are under detention.
33. Dr. Misra argues even an ordinary citizen in jail is often permitted to participate in the marriage or funeral of some of his kith and kin or to take the examination, then why the detenu-legislator cannot be permitted to participate in the session of the House. He has also said that if right to participate in the House will be not conceded to a detained Legislator, the democracy will be put in peril as the Government in minority, may put the inconvenient Legislators behind the bar, at the nick of time and prevent them from participating and voting in the House.
34. These questions are to be considered by the other Wings of the State and not by this Court. This Court is not sitting to legislate. No doubt often during the process of interpretation of laws, some Judge made laws come in the light but that is not to say that this Court should frame a law so as to meet any such contingency. It is not necessary to refer or answer each and every argument advanced during the course of hearing as the point in controversy stand well answered by the Constitutional Bench in Nambiar's case. Further, the law laid down in the Nambiar's case (supra) was reaffirmed in famous Indira Nehru Gandhi v. Raj Narain case (supra).
35. We are of the view that so long as the two Legislators are detained under valid detention order, they have no right or privilege to participate in the session of the House. We do not agree with Dr. Mishra on the point that this Court is bound to permit any such Legislator to participate in the session. Power under Article 226 of the Constitution is discretionary one and no one can say that this Court will have no option but to act in a particular manner.
36. Arguments of the learned counsel for the petitioners that if a detained person can contest election, can cast vote and if elected can take oath, then why the detained Legislator cannot participate in the session of the House does not appeal to us because the logic does not work in every case. Right to vote, right to contest election of the Assembly or Parliament or right to take oath as Legislator or a Parliamentarian, are different rights. Right to vote and right to contest elections are the statutory rights and are governed by the statutes. There may be provision where person in jail may file nomination without being present before the authority concerned and there may be provision where a person can cast his vote in the manner given in the law and rules. Therefore, those are not the arguments, which help the two Legislators or Vimla Devi and others to say that these two detained Legislators should be permitted to participate in the House.
37. In view of the discussions made above and the fact that it is beyond the domain of this Court to interpret the law laid down by the Supreme Court or to distinguish the same merely on the ground that the factual aspects of the case differ slightly or otherwise and, therefore, we are unable to record our concurrence with the submissions made by the learned counsel for the petitioners.
38. Accordingly, all the above writ petitions are dismissed but in the circumstances of the case without any order as to costs.