Per Mathew J. : – The detention of members of Parliament was by
statutory authorities in the purported exercise of their statutory power. It
would be strange if a statutory authority, by an order which turns out to be
illegal, could prevent the Houses of Parliament from meeting as enjoined by
Article 85. If a statutory authority passes an illegal Order of detention and
thus prevents a member of Parliament for attending the House, how can the
proceedings of Parliament become illegal for that reason ? It is the privilege
of parliament to secure the attendance of persons illegally detained. But if
the privilege is not exercised by parliament the proceedings of parliament
would not become illegal for that reason.
(Para 378)
The President, in performing his constitutional function under Articles
352, 359 has not authorised the illegal detention of any person let alone any
member of Parliament or unconstitutionally prevented the release from
custody of any member. He has only discharged his constitutional functions.
If this be so, it is difficult to hold that the session in which the amendments
were passed was illegally convened. The challenge to the validity of the
amendments on this score must be overruled.
(Para 379)
Per Beg, J. : – Constitutional validity of the impugned Acts cannot be
challenged on the ground that as a number of members of Parliament
belonging to the opposite parties were in detention, under the Preventive
detention laws, which could not be questioned before Courts of law, because
of the declaration of the emergency by the President, there was a procedural
defect in making the impurgned enactments. Such an objection is directly
covered by the terms of Article 122 which debars every Court from examining
the propriety of proceedings ‘‘in Parliament’’. If any privileges of Members of
Parliament were involved, it was open to them to have the question raised ‘‘in
Parliament.’’
(Para 509)
As regards the validity of the detentions of the Members of Parliament,
that cannot be questioned automatically or on the bare statement by counsel
that certain Members of Parliament are illegally detained with some ulterior
object. The enforcement of fundamental rights is regulated by Articles 32 and
226 of the Constitution and the suspension of remedies under these articles is
also governed by appropriate constitutional provisions.
(Para 511)
Per chandrachud. J. : – There is no merit in the contention that the
constitutional amendment is bad because it was passed when some members
of the Parliament were in detention. The legality of the detention orders
cannot be canvassed collaterally. And from a practical point of view, the
presence of 21 members of the Lok Sabha and 10 members of the Rajya
Sabha who were in detention could not have made a difference to the passing
of the Amendment.
(Para 696)