with the person ordered to be detained or his friends and relatives. It would
plainly be hazardous to record a finding without such material and a court of
law, in my opinion, should decline to record such a finding in collateral
proceedings. Till such time as a finding is recorded in appropriate
proceedings about the validity of the detention of the members of Parliament,
the court would have to proceed upon the assumption that the detention has
not been shown to be invalid.
181. According to clause (3) of Article 105 of the Constitution, to which a
short reference has been made earlier, 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. No law contemplated by clause (3)
has been made by the Parliament in India and as such we have to find out
the powers, privileges and immunities of the House of Commons in the
United Kingdom at the relevant time. In the case of Bradlaugh v. Gossett,
(1884) 12 QBD 271 the plaintiff, having been returned as member for the
borough of Northampton, required the Speaker of the House of Commons to
call him to the table for the purpose of taking oath. In consequence of
something which had transpired on a former occasion the Speaker declined to
do so. The House of Commons then upon motion resolved “that the Sergeantat-Arms do exclude Mr. Bradlaugh (the plaintiff) from the House until he
shall engage not further to disturb the proceedings of the House. In an action
against the Sergeant-at Arms praying for an injunction to rstrain him from
carrying out the resolution, the court held that this being a matter relating to
the internal management of the procedure of the House of Commons, the
court had not power to interfere. Dealing with the rights to be exercised
within the wall of the House Stephen J. observed that those rights must be
dependent upon the resolutions of the House. He also added that there was
no appeal from the decision of the House of Commons. Stephen J. in the
course of the judgment also observed.
“.....for the purpose of determing on a right to be exercised within the
House itself. and in particular the right of sitting and voting, the House and
the House alone could interprinted the statute but...as regarded right to be
exercised out of and independently of the House, such as the right of suing for
a penalty for having and voted the statute must be interpreted by this Court
independently of the House.”
The above passage has been cited page 83 in Erskine May's Parliamentary
Practice, 18th Ed. with a view to show that it is a right of House of
Parliament to be the sole judge of the lawfulness of its own proceedings. It
would follow from the above that the courts cannot go into the lawfulness of
the proceedings of the Houses of Parliament.
182. The act of detaining a person is normally that of an outside agency
and not that of the House of Parliament. It would certainly look anomalous if
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