366. The question which fell for consideration in that case was whether,
when a member of parliament was convicted for a criminal offence and was
undergoing a sentence in pursuance thereof, he has an unconditional right to
attend a session of parliament. This Court held that he had no privilege
which obliged the court to release him from custody in order to enable him to
attend the session. The decision has no relevance to the point in controversy
here.
367. In England, a member of parliament who is convicted of a criminal
offence and is undergoing sentence in pursuance to his conviction has no
right or privilege to be released from custody for attending parliament. The
very same principle will apply in the case of a detention under an emergency
regulation. *
368. In England, it was taken as settled that parliamentary roll is
conclusive of the question that a bill has been passed by both houses of
parliament and has received royal assert and no court can look behind the
roll as such an inquiry would be an interference with the privilege of
parliament. Lord Campbell said in Edinburgh & Dalkeith Ry. v. Wauchope,
(1842) 8 Cl & F 710 at p. 724:
"I think it right to say a word or two upon the point that has been raised
with regard to an Act of Parliament being held inoperative by a court of
justice because the forms prescribed by the two House to be observed in the
passing of a Bill have not been exactly followed......I cannot but express my
surprise that such a notion should have prevailed. There is no foundation for
it. All that a court of justice can do is to look to the Parliamentary Roll: If
from that it should appear that a Bill has passed both Houses and received
the Royal Assent, no court of justice can inquire into the mode in which it was
introduced in Parliament, nor into what was done previous to its
introduction, or what passed in Parliament during its progress in its various
stages through both Houses."
369. It has since been said that Parliamentary Roll is not conclusive, that
when the jurisdiction of a court is invoked, it has power to determine whether
everything necessary has been done for the production of a valid statute, that
rule of law requires that the court should determine legal questions raised
before it and if its jurisdiction is properly invoked, it has to answer the
question whether the document is a statute duly by a parliament. The view
as propounded has been summarized as follows:
"(1) Sovereignty is a legal concept: the rules which identify the sovereign
and prescribe its composition and functions are logically prior to it.
(2) There is a distinction between rules which govern, on the one hand, (a)
the composition, and (b) the procedure, and on the other hand (c) area of
power, of a sovereign legislature.
(3) The court have jurisdiction to question the validity of an alleged Act of
Parliament on grounds 2(a) and 2(b), but not on ground 2(c).† The reasons for
the view are these: When the purported sovereign is a any one but a single
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