SUPREME COURT OF INDIA
Before :- M.H. Beg, C.J.I., Y.V. Chandrachud, P.N. Bhagwati, V.R. Krishna Iyer, N.L. Untwalia, S. Murtaza Fazl Ali and P.S. Kailasam, JJ.
Writ Petn. No. 231 of 1977. D/d. 25.1.1978.
For the Petitioner :- M/s. Madan Bhatia and Mr. D. Goburdhan, Advocates.
Smt. Maneka Gandhi - Petitioner
Union of India and another - Respondents
For the Respondent :- Sachthey and K.N. Bhatt, Advocates.
For the Intervener :- Mr. Ram Panjwani, Sr. Advocate, M/s. Vijay Panjwani and Raj Panjwani, Mr. S.K. Bagga and Mrs. S. Bagga, Advocates.
M.H. Beg, C.J. - The case before us involves questions relating to basic human rights. On such questions I believe that multiplicity of views giving the approach of each member of this Court is not a disadvantage if it clarifies our not infrequently differing approaches. It should enable all interested to appreciate better the significance of our Constitution.
2. As I am in general agreement with my learned brethren Bhagwati and Krishna Iyer, I will endeavour to confine my observations to an indication of my own approach on some matters for consideration now before us. This seems to me to be particularly necessary as my learned brother Kailasam, who has also given us the benefit of his separate opinion, has a somewhat different approach. I have had the advantage of going through the opinions of each of my three learned brethren.
3. It seems to me that there can be little doubt that the right to travel and to go outside the country, which orders regulating issue, suspension or impounding, and cancellation of passports directly affect, must be included in rights to "personal liberty" on the strength of decisions of this Court giving a very wide ambit to the right to personal liberty (see : Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi (1967)3 SCR 525 : Kharak Singh v. State of U. P. (1964) 1 SCR 322.
4. Article 21 of the Constitution reads as follows :
- "Protection of life and personal liberty - No Person shall be deprived of his life or personal liberty except according to procedure established by law."
6. Kania C. J. said (at pp. 106- 107) : (of SCR) (at p. 37 of AIR).
- "Deprivation (total loss) of personal liberty, which inter alia includes the right to eat or sleep when one likes or to work or not to work as and when one pleases and several such rights sought to be protected by the expression 'Personal liberty' in Article 21, is quite different from restriction (which is only a partial control) of the right to move freely (which is relatively a minor right of a citizen) as safeguarded by article 19 (1) (d). Deprivation of personal liberty has not the same meaning as restriction of free movement in the territory of India. This is made clear when the provisions of the Criminal Procedure Code in Chapter VIII relating to security of peace or maintenance of public order are read. Therefore article 19 (5) cannot apply to a substantive law depriving a citizen of personal liberty. I am unable to accept the contention that the word 'deprivation' includes within its scope 'restriction' when interpreting article 21. Article 22 envisages the law of preventive detention. So does article 246 read with Schedule Seven, List I, Entry 9, and List III, Entry 3. Therefore, when the subject of preventive detention is specifically dealt with in the Chapter on Fundamental Rights I do not think it is proper to consider a legislation permitting preventive detention as in conflict with the rights mentioned in article 19 (1). Article 19 (1) does not purport to cover all aspects of liberty or of personal liberty. In that article only certain phases of liberty are dealt with. 'Personal liberty' would primarily mean liberty of the physical body. The rights given under article 19 (1) do not directly come under that description. They are rights which accompany the freedom or liberty of the person. By their very nature they are freedoms of a person assumed to be in full possession of his personal liberty. If article 19 is considered to be the only article safeguarding personal liberty several well-recognised rights, as for instance, the right to eat or drink, the right to work, play, swim and numerous other rights and activities and even the right to life will not be deemed protected under the Constitution. I do not think that is the intention. It seems to me improper to read Article 19 as dealing with the subject as Article 21. Article 19 gives the rights specified therein only to the citizens of India while Article 21 is applicable to all persons. The word citizen is expressly defined in the Constitution to indicate only a certain section of the inhabitants of India. Moreover, the protection given by Article 21 is very general. It is of 'law - whatever that expression is interpreted to mean. The legislative restrictions on the law-making powers of the legislature are not here prescribed in detail as in the case of the rights specified in Article 19. In my opinion therefore Article 19 should be read as a separate complete article."
- "It is in my opinion, this negative right of not being subjected to any form of physical restraint or coercion that constitutes the essence of personal liberty and not mere freedom to move to any part of the Indian territory."
- "It is enough to say at this stage that if the report of the Drafting Committee is an appropriate material upon which the interpretation of the words of the Constitution could be based, it certainly goes against the contention of the applicant and it shows that the words used in Article 19 (1) (d) of the Constitution do not mean the same thing as the expression 'personal liberty' in Article 21 does. It is well known that the word 'liberty' standing by itself has been given a very wide meaning by the Supreme Court of the United States of America. It includes not only personal freedom from physical restraint but the right to the free use of one's own property and to enter into free contractual relations. In the Indian Constitution, on the other hand, the expression 'personal liberty' has been deliberately used to restrict it to freedom from physical restraint of person by incarceration or otherwise."
- "To my mind, the scheme of the Chapter dealing with the fundamental rights does not contemplate what is attributed to it, namely that each article is a code by itself and is independent of the others. In my opinion, it cannot be said that articles 19, 20, 21 and 22 do not to some extent overlap each other. The case of a person who is convicted of an offence will come under Articles 20 and 21 and also under Article 22 so far as his arrest and detention in custody before trial are concerned. Preventive detention, which is dealt with in Article 22, also amounts to deprivation of personal liberty which is referred to in article 21, and is a violation of the right of freedom of movement dealt with in Article 19 (1) (d). That there are other instances of overlapping of articles in the Constitution may be illustrated by reference to Article 19 (1) (f) and Article 31 both of which deal with the right to property and to some extent overlap each other."
10. In A. K. Gopalan's case (supra) what was at issue was whether the tests of valid procedure for deprivation of personal liberty by preventive detention must be found exclusively in Article 22 of the Constitution or could we gather from outside it also elements of any "due process of law" and use them to test the validity of law dealing with preventive detention. Our Constitution-makers, while accepting a departure from ordinary norms, by permitting making of laws for preventive detention without trial for special reasons in exceptional situations also provided quite elaborately, in Article 22 of the Constitution itself, what requirements such law, relating to preventive detention, must satisfy. The procedural requirements of such laws separately formed parts of the guaranteed fundamental rights. Therefore, when this Court was called upon to judge the validity of provisions relating to preventive detention it laid down, in Gopalan's case (supra), that the tests of "due process," with regard to such laws, are to be found in Article 22 of the Constitution exclusively because this article constitutes a self-contained code for laws of this description. That was, in my view, the real ratio decidendi of Gopalan's case (supra). It appears to me, with great respect, that other observations relating to the separability of the subject matters of Article 21 and 19 were mere obiter dicta. They may have appeared to the majority of learned Judges in Gopalan's case to be extensions of the logic they adopted with regard to the relationship between Articles 21 and 22 of the Constitution. But, the real issue there was whether, in the face of Article 22 of the Constitution, which provides all the tests of procedural validity of a law regulating preventive detention, other tests could be imported from Article 19 of the Constitution or elsewhere into "procedure established by law." The majority view was that this could not be done. I think, if I may venture to conjecture what opinions learned Judges of this Court would have expressed on that occasion had other types of law or other aspects of personal liberty such as those which confronted this Court in either Satwant Singh's case (supra) or Kharak Singh's case (supra) were before them, the same approach or the same language would not have been adopted by them. It seems to me that this aspect of Gopalan's case (supra) is important to remember if we are to correctly understand what was laid down in that case.
11. I have already referred to the passages I cited in A.D.M. Jabalpur's case (supra) to show that, even in Gopalan's case (supra) the majority of Judges of this Court took the view that the ambit of personal liberty protected by Article 21 is wide and comprehensive. It embraces both substantive rights to personal liberty and the procedure provided for their deprivation. One can, however, say that no question of "due process of law" can really arise, apart from procedural requirements of preventive detention laid down by Article 22, in a case such as the one this Court considered in Gopalan's case (supra). The clear meaning of Article 22 is that the requirements of "due process of law," in cases of preventive detention, are satisfied by what is provided by Article 22 of the Constitution itself. This article indicates the pattern of "the procedure established by law' for cases of preventive detention.
12. Questions, however, relating to either deprivation or restrictions of personal liberty, concerning laws falling outside Article 22 remained really unanswered, strictly speaking, by Gopalan's case. If one may so put it, the field to "due process" for cases of preventive detention is fully covered by Article 22, but other parts of that field, not covered by Article 22, are "unoccupied" by its specific provisions. I have no doubt that, in what may be called "unoccupied" portions of the vast sphere of personal liberty, the substantive as well as procedural laws made to cover them must satisfy the requirements of both Articles 14 and 19 of the Constitution.
13. Articles dealing with different fundamental rights contained in Part III of the Constitution do not represent entirely separate streams of rights which do not mingle at many points. They are all parts of an integrated scheme in the Constitution. Their waters must mix to constitute that grand flow of unimpeded and impartial Justice (social, economic and political). Freedom (not only of thought, expression, belief, faith and worship, but also of association, movement, vocation or occupation as well as of acquisition and possession of reasonable property) of equality (of status and of opportunity, which imply absence of unreasonable or unfair discrimination between individuals, groups, and classes), and of Fraternity (assuring dignity of the individual and the unity of the nation), which our Constitution visualises. Isolation of various aspects of human freedom, for purposes of their protection, is neither realistic nor beneficial but would defeat the very objects of such protection.
14. We have to remember that the fundamental rights protected by Part III of the Constitution, out of which Articles 14, 19 and 21 are the most frequently invoked, form tests of the validity of executive as well as legislative actions when these actions are subjected to judicial scrutiny. We cannot disable Article 14 or 19 from so functioning and hold those executive and legislative actions to which they could apply as unquestionable even when there is no emergency to shield actions of doubtful legality. These tests are, in my opinion, available to us now to determine the constitutional validity of Section 10 (3) (c) of the Act as well as of the impugned order of 7th July, 1977, passed against the petitioner impounding her passport "in the interest of general public" and stating that the Government had decided not to furnish her with a copy of reasons and claiming immunity from such disclosure under Section 10 (5) of the Act.
15. I have already mentioned some of the authorities relied upon by me in A.D.M. Jabalpur v. S. S. Shukla (supra), while discussing the scope of Art 21 of the Constitution, to hold that its ambit is very wide. I will now indicate why, in my view, the particular rights claimed by the petitioner could fall within Articles 19 and 21 and the nature and origin of such rights.
16. Mukerji J., in the Gopalan's case (supra) referred to the celebrated commentaries of Blackstone on the Laws of England. It is instructive to reproduce passages from there even though juristic reasoning may have travelled today beyond the stage reached by it when Blackstone wrote. Our basic concepts on such matters, stated there, have provided the foundations on which subsequent superstructures were raised. Some of these foundations, fortunately remain intact. Blackstone said :
- "This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe in all countries, and at all times : no human laws are of any validity, if contrary to this, and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original."
18. Blackstone propounded his philosophy of natural or absolute rights in the following terms :
- "The absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature; being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of free will. But every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. And this species of legal obedience and conformity is infinitely more desirable than that wild and savage liberty which is scarified to obtain it. For no man that considers a moment would wish to retain the absolute and uncontrolled power of doing whatever he pleases : the consequence of which is, that every other man would also have the same power, and then there would be no security to individuals in any of the enjoyments of life. Political, therefore, or civil liberty, which is that of a number of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public.
- The absolute rights of every Englishman, (which, taken in a political and extensive sense, are usually called their liberties), as they are founded on nature and reasons, so they are coeval with our form of government; though subject at times to fluctuate and change : their establishment (excellent as it is) being still human.
- *** ** And these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property, because, as there is no other known method of compulsion, or abridging man's natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense.
- I. The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health and his reputation.
- II. Next to personal security, the law of England regards, asserts, and preserves the personal liberty of individuals. This personal liberty consists in the power of locomotion, of changing situation, or moving one's person to whatsoever place one's own inclination may direct, without imprisonment or restraint, unless by due course of law. Concerning which we may make the same observations as upon the preceding article, that it is a right strictly natural; that the laws of England have never abridged it without sufficient cause; and that, in this kingdom, it cannot ever be abridged at the mere discretion of the Magistrate, without the explicit permission of the laws.
- III. The third absolute right, inherent in every Englishman, is that of property which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land. The original of private property is probably founded in nature, as will be more fully explained in the second book of the ensuring commentaries: but certainly the modifications under which we at present find it, the method of conserving it in the present owner, and of translating it from man to man, are entirely derived from society; and are some of those civil advantages, in exchange for which every individual has resigned a part of his natural liberty."
- "Now, what are the fundamental rights? They are embodied in Part III of the Constitution and they may be classified thus : (i) right to equality, (ii) right to freedom, (iii) right against exploitation, (iv) right to freedom of religion, (v) cultural and educational rights, (vi) right to property, and (vii) right to constitutional remedies. They are the rights of the people preserved by our Constitution, 'Fundamental rights' are the modern name for what have been traditionally known as 'natural rights,'. As one author puts it : 'they are moral rights which every human being everywhere at all times ought to have simply because of the fact that in contradistinction with other beings, he is rational and moral. They are the primordial rights necessary for the development of human personality. They are the rights which enable a man to chalk out his own life in the manner he likes best. Our Constitution, in addition to the well-known fundamental rights, also included the rights of the minorities, untouchables and other backward communities, in such rights."
- "What I have said does not mean that Fundamental Rights are not subject to change or modification. In the most inalienable of such rights a distinction must be made between possession of a right and its exercise. The first is fixed and the latter controlled by justice and necessity. Take for example Article 21 :
- 'No person shall be deprived of his life or personal liberty except according to procedure established by law'.
- Of all the rights, the right to one's life is the most valuable. This article of the Constitution, therefore, makes the right fundamental. But the inalienable right is curtailed by a murderers conduct as viewed under law. The deprivation, when it takes place, is not of the right which was immutable but of the continued exercise of the right."
22. The implication of what I have indicated above is that Article 21 is also a recognition and declaration of rights which inhere in every individual. Their existence does not depend on the location of the individual. Indeed, it could be argued that what so inheres is inalienable and cannot be taken away at all. This may seem theoretically correct and logical. But, in fact, we are often met with denials of what is, in theory, inalienable or "irrefragable". Hence we speak of "deprivations" or "restrictions" which are really impediments to the exercise of the "inalienable" rights. Such deprivations or restrictions or regulations of rights may take place, within prescribed limits, by means of either statutory law or purported actions under that law. The degree to which the theoretically recognised or abstract right is concretised is thus determined by the balancing of principles on which an inherent right is based against those on which a restrictive law or orders under it could be imposed upon it exercise. We have to decide in each specific case, as it arises before us, what the result of such a balancing is.
23. In judging the validity or either legislative or executive state action for conflict with any of the fundamental rights of individuals, whether they be of citizens or non-citizens, the question as to where the rights are to be exercised is not always material or even relevant. If the persons concerned, on whom the law or purported action under it is to operate, are outside the territorial jurisdiction of our country, the action taken may be ineffective. But, the validity of the law must be determined on considerations other than this. The tests of validity of restrictions impose upon the rights covered by Article 19 (1) will be found in clause (2) to (6) of Article 19. There is nothing there to suggest that restrictions on rights the exercise of which may involve going out of the country or some activities abroad are excluded from the purview of tests contemplated by Article 19 (2) to (6). I agree with my learned brother Bhagwati, for reasons detailed by him, that the total effect and not the mere form of a restriction will determine which fundamental right is really involved in a particular case and whether a restriction upon its exercise is reasonably permissible on the facts and circumstances of that case.
24. If rights under Article 19 are rights which inhere in Indian citizens, individuals concerned carry these inherent fundamental constitutional rights with them wherever they go, in so far as our law applies to them, because they are parts of the Indian nation just as Indian ships, flying the Indian flag, are deemed, in International law, to be floating parts of Indian territory. This analogy, however, could not be pushed too far because Indian citizens, on foreign territory, are only entitled, by virtue of their Indian nationality and passports, to the protection of the Indian Republic and the assistance of is diplomatic missions abroad. They cannot claim to be governed abroad by their own Constitutional or personal laws which do not operate outside India. But, that is not the position in the case before us. So far as the impugned action in the case before us in concerned, it took place in India and against an Indian citizen residing in India.
25. In India, at any rate, we are all certainly governed by our Constitution. The fact that the affected petitioner may not, as a result of particular order, be able to do something intended to be done by her aboard cannot possibly make the Governmental action in India either ineffective or immune from judicial scrutiny or from an attack made on the ground of a violation of a fundamental right which inheres in an Indian citizen. The consequences or effects upon the petitioner's possible actions or future activities in other countries may be a factor which may be weighed, where relevant, with other relevant facts in a particular case in judging the merits of the restriction imposed. It will be relevant in so far as it can be shown to have some connection with public or national interests when determining the merits of an order passed. It may show how she has become a "person aggrieved" with a cause of action, by a particular order involving her personal freedom. But such consideration cannot curtail or impair the scope or operation of fundamental rights of citizens as protections against unjustifiable actions of their own Government. Nor can they by their own force, protect legally unjustifiable actions of the Government of our country against attacks in our own Courts.
26. In order to apply the tests contained in Article 14 and 19 of the Constitution, we have to consider the objects for which the exercise of inherent rights recognised by Article 21 of the Constitution are restricted as well as the procedure by which these restrictions are sought to be imposed. Both substantive and procedural laws and actions taken under them will have to pass tests imposed by Article 14 and 19 whenever facts justifying the invocation of either of these articles may be disclosed. For example, an international singer or dancer may well be able to complain of an unjustifiable restriction on professional activity by a denial of a Passport. In such a case, violations of both Articles 21 and 19 (1) (g) may both be put forward making it necessary for the authorities concerned to justify the restriction imposed, by showing satisfaction of tests of validity contemplated by each of these two articles.
27. The tests of reasons and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic. Otherwise, they would cease to be reasonable. Thus, I think that a discretion left to the authority to impound a passport in public interests cannot invalidate the law itself. We cannot, out of fear that such power will be misused, refuse to permit Parliament to entrust even such power to executive authorities as may be absolutely necessary to carry out the purposes of a validly exercisable power. I think it has to be necessarily left to executive discretion to decide whether, on the facts and circumstances of a particular case, public interests will or will not be served by a particular order to be passed under a valid law subject, as it always is, to judicial supervision. In matters such as grant, suspension, impounding or cancellation of passports, the possible dealings of an individual with nationals and authorities of other States have to be considered. The contemplated or possible activities abroad of the individual may have to be taken into account. There may be questions of national safety and welfare which transcend the importance of the individual's inherent right to go where he or she pleases to go. Therefore, although we may not deny the grant of wide discretionary power to the executive authorities as unreasonable in such cases, yet, I think we must look for and find procedural safeguards to ensure that the power will not be used for purposes extraneous to the grant of the power before we uphold the validity of the power conferred. We have to insist on procedural properties the observance of which could show that such power is being used only to serve what can reasonably and justly be regarded as a public or national interest capable of overriding the individual's inherent right of movement or travel to wherever he or she pleases in the modern world of closer integration in every sphere between the people of the world and the shrunk time-space relationship.
28. The view I have taken above proceeds on the assumption that there are inherent or natural human rights of the individual recognised by and embodied in our Constitution. There actual exercise, however, is regulated and conditioned largely by statutory law. Persons upon whom these basic rights are conferred can exercise them so long as there is no justifiable reason under the law enabling deprivations or restrictions of such rights. But, once the valid reason if found to be there and the deprivation or restriction takes place for that valid reason in a procedurally valid manner, the action which results in a deprivation or restriction becomes unassailable. If either the reason sanctioned by the law is absent, or the procedure followed in arriving at the conclusion that such a reason exists is unreasonable, the order having the effect of deprivation or restriction must be quashed.
29. A bare look at the provisions of Section 10, sub-s (3) of the Act will show that each of the orders which could be passed under Section 10, sub-section (3) (a) to (h) requires a "satisfaction" by the Passport Authority on certain objective conditions which must exist in a case before it passes an order to impound a passport or a travel document. Impounding or revocation are placed side by side on the same footing in the provision. Section 11 of the Act provides an appeal to the Central Government from every order passed under Section 10 sub-section (3) of the Act. Hence, Section 10, sub- (5) makes it obligatory upon the Passport Authority to "record in writing a brief statement of the reasons for making such order and furnish to the holder of the passport or travel document on demand a copy of the same unless in any case, the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interest of the general public to furnish such a copy."
30. It seems to me, from the provisions of Sections 5, 7 and 8 of the Act, read with other provisions, that there is a statutory right also acquired, on fulfilment of prescribed conditions by holder of a passport, that it should continue to be effective for the specified period so long as no ground has come into existence for either its revocation or for impounding it which amounts to a suspension of it for the time being. It is true that in a proceeding under Article 32 of the Constitution, we are only concerned with the enforcement of fundamental Constitutional rights and not with any statutory rights apart from fundamental rights. Articles 21, however, makes it clear that violation of a law, whether statutory or of any other kind, is itself an infringement of the guaranteed fundamental right. The basic right is not to be denied the protection of "law" irrespective of variety of that law. It need only be a right "established by law."
31. There can be no doubt whatsoever that the orders under Section 10 (3) must be based upon some material even if that material consists, in some cases, of reasonable suspicion arising from certain credible assertions made by reliable individuals. It may be that, in an emergent situation, the impounding of a passport may become necessary without even giving an opportunity to be heard against such a step, which could be reversed after an opportunity given to the holder of the passport to show why the step was unnecessary, but, ordinarily no passport could be reasonably either impounded or revoked without giving a prior opportunity to its holder to show cause against the proposed action. The impounding as well as revocation of a passport, seem to constitute action in the nature of a punishment necessitated on one of the grounds specified in the Act. Hence, ordinarily, an opportunity to be heard in defence after a show cause notice should be given to the holder of a passport even before impounding it.
32. It is well established that even where there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the rights of that individual, the duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. This principle was laid down by this Court in the State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269 in the following words :
- "The rule that a part to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to Judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed: it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case."
- "The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. "Adam (says God), "where art thou? Hast thou not eaten of the tree whereof I commanded the that thou shouldest not eat;" And the same question was put to Eve also."
35. In my estimation, the findings arrived at by my learned brethren after an examination of the facts of the case before us, with which I concur, indicate that it cannot be said that a good enough reason has been shown to exist for impounding the passport of the petitioner by the order dated 7th July, 1977. Furthermore, the petitioner has had no opportunity of showing that the ground for impounding it finally given in this Court either does not exist or has no bearing on public interest or that public interest cannot be better served in some other manner. Therefore, speaking for myself, I would quash the order and direct the opposite parties to give an opportunity to the petitioner to show cause against any proposed action on such grounds as may be available.
36. I am not satisfied that there were present any such pressing grounds with regard to the petitioner before us that the immediate action of impounding her passport was called for. Further-more, the rather cavaliar fashion in which disclosure of any reason for impounding her passport wad denied to her, despite the fact that the only reason said to exist was the possibility of her being called to given evidence before a Commission of Inquiry and stated in the counter-affidavit filed in this Court, is not such as to be reasonably deemed to necessitate its concealment in public interest, may indicate the existence of some undue prejudice against the petitioner. She has to be protected against even the appearance of such a prejudice or bias.
37. It appears to me that even executive authorities when taking administrative action which involves any deprivations of or restrictions on inherent fundamental rights of citizens must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness or unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirements of natural justice.
38. The attitude adopted by the Attorney General, however, shows that passport authorities realize fully that the petitioner's case has not been justly or reasonably dealt with. As the undertaking given by the Attorney General amounts to an offer to deal with it justly and fairly after informing the petitioner of any ground that may exist for impounding her passport, it seems that no further action by this Court may be necessary. In view, however, of what is practically an admission that the order actually passed on 7th July, 1977, is neither fair nor procedurally proper, I would, speaking for myself, quash this order and direct the return of the impounded passport to the petitioner. I also think that the petitioner is entitled to her costs.
39. Y.V. Chandrachud, J. :- The petitioner's passport dated June 1, 1976 having been impounded "in public interest" by an order dated July 2, 1977 and the Government of India having declined "in the interest of general public" to furnish to her that reason for its decision, she has filed this writ petition under Article 32 of the Constitution to challenge that order. The challenge is founded on the following grounds :
- (1) To the extent to which Section 10 (3) (c) of the Passport Ac, 1967 authorises the passport tauthority to impound a passport "in the interests of the general public", it is violative of Article 14 of the Constitution since it confers vague and undefined power on the passport authority;
- (2) Section 10 (3) (c) is void as conferring an arbitrary power since it does not provide for a hearing to the holder of the passport before the passport is impounded;
- (3) Section 10 (3) (c) is violative of Article 21 of the Constitution since it does not prescribe 'procedure' within the meaning of that article and since the procedure which it prescribes is arbitrary and unreasonable; and
- (4) Section 10 (3) (c) offends against Articles 19 (1) (a) and 19 (1) (g) since it permits restrictions to be imposed on the rights guaranteed by these articles even though such restrictions cannot be imposed under Articles 19 (2) and 19 (6).
40. In Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi, (1967)3 SCR 525 this Court ruled by majority that the expression 'personal liberty' which occurs in Article 21 of the Constitution includes the right to travel abroad and that no person can be deprived of that right except according to procedure established by law. The Passports Act which was enacted by Parliament in 1967 in order to comply with that decision prescribes the procedure whereby an application for a passport may be granted fully or partially, with or without any endorsement, and a passport once granted may later be revoked or impounded. But the mere prescription of some kind of procedure cannot ever meet the mandate of Article 21. The procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary. The question whether the procedure prescribed by a law which curtails or takes away the personal liberty guaranteed by Article 21 is reasonable or not has to be considered not in the abstract or on hypothetical considerations like the provision for a full-dress hearing as in a Court-room trial, but in the context, primarily, of the purpose which the Act is intended to achieve and of urgent situations which those who are charged with the duty of administering the Act may be called upon to deal with. Secondly, even the fullest compliance with the requirements of Article 21 is not the journey's end because, a law which prescribes fair and reasonable procedure for curtailing or taking away the personal liberty guaranteed by Article 21 has still to meet a possible challenge under other provisions of the Constitution like, for example, Article 14 and 19. If the holding in A.K. Gopalan v. State of Madras, 1950 SCR 88 that the freedoms guaranteed by the Constitution are mutually exclusive were still good law, the right to travel aboard which is part of the right of personal liberty under Article 21 could not be found and located in that article and in no other. But in the Bank Nationalisation case (R.C. Cooper v. Union of India) (1970)3 SCR 530 the majority held that the assumption in A.K. Gopalan that certain articles of the Constitution exclusively deal with specific matters cannot be accepted as correct. Though the Bank Nationalisation case was concerned with the inter-relationship of Articles 31 and 19 and not of Articles 21 and 19, the basic approach adopted therein as regards the construction of fundamental rights guaranteed in the different provisions of the Constitution categorically discarded the major premise of the majority judgment in A.K. Gopalan as incorrect. That is how a seven-Judge Bench in Shambhu Nath Sarkar v. State of West Bengal (1973) 1 SCR 856 assessed the true impact of the ratio of the Bank Nationalisation case on the decision in A. K. Gopalan. In Shambhu Nath Sarkar it was accordingly held that a law of preventive detention has to meet the challenge not only of Articles 21 and 22 but also of Article 19 (1) (d). Later, a five-Judge Bench in Haradhan Saha v. State of West Bengal, (1975)1 SCR 778 adopted the same approach and considered the question whether the Maintenance of Internal Security Act, 1971 violated the right guaranteed by Article 19 (1) (d). Thus, the inquiry whether the right to travel abroad forms a part of any of the freedoms mentioned in Article 19 (1) is not to be shut out at the threshold merely because that right is a part of the guarantee of personal liberty under Article 21. I am in entire agreement with Brother Bhagwati when he says:
- "The law must therefore, now be taken to be well settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of 'personal liberty' and there is consequently no infringement of the fundamental right conferred by Article 21, such law, in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that Article."
42. These then are the guidelines with the help of which one has to ascertain whether Section 10 (3) (c) of the Passports Act which authorises the passport authority to impound a passport or the impugned order passed thereunder violates the guarantee of free speech and expression conferred by Article 19 (1) (a).
43. The learned Attorney General answered the petitioner's contention in this behalf by saying firstly, that the right to go abroad cannot be comprehended within the right of free speech and expression since the latter right is exercisable by the Indian citizens within the geographical limits of India only. Secondly, he contends, the right to go abroad is altogether of a different genre from the right of free speech and expression and is therefore not a part of it.
44. The first of these contentions raises a question of great importance but the form in which the contention is couched is, in my opinion, apt to befog the true issue. Article 19 confers certain freedoms on Indian citizens, some of which by their very language and nature are limited in their exercise by geographical considerations. The right to move freely throughout the 'territory of India' and the right to reside and settle in any part of the 'territory of India' which are contained in clauses (d) and (e) of Article 19 (1) are of this nature. The two clauses expressly restrict the operation of the rights mentioned therein to the territorial limits of India. Besides, by the very object and nature of those rights, their exercise is limited to Indian territory. Those rights are intended to bring in sharp focus the unity and integrity of the country and its quasi-federal structure. Their drive is directed against the fissiparous theory that 'sons of the soil' alone shall thrive, the 'soil' being conditioned by regional and subregional considerations. The other freedoms which Article 19 (1) confers are not so restricted by their terms but that again is not conclusive of the question under consideration. Nor indeed does the fact that restraints on the freedoms guaranteed by Article 19 (1) can be imposed under Articles 19 (2) to 19 (6) by the State furnish any clue to that question. The State can undoubtedly impose reasonable restrictions on fundamental freedoms under clauses (2) to (6) of Article 19 and those restrictions, generally, have a territorial operation. But the ambit of a freedom cannot be measured by the right of a State to pass laws imposing restrictions on that freedom which, in the generality of cases, have a geographical limitation.
45. Article 19 (1) (a) guarantees to Indian citizens the right to freedom of speech and expression. It does not delimit that right in any manner and there is no reason, arising either out of interpretational dogmas or pragmatic considerations, why the courts should strain the language of the Article to cut down the amplitude of that right. The plain meaning of the clause guaranteeing free speech and expression is that Indian citizens are entitled to exercise that right wherever they choose, regardless of geographical considerations, subject of course to the operation of any existing law or the power of the State to make a law imposing reasonable restrictions in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court,defamation or incitement to an offence, as provided in Article 19 (2). The exercise of the right of free speech and expression beyond the limits of Indian territory will, of course, also be subject to the laws of the country in which the freedom is or is intended to be exercised. I am quite clear that the Constitution does not confer any power on the executive to prevent the exercise by an Indian citizen of the right of free speech and expression on foreign soil, subject to what I have just stated. In fact, that seems to me to be the crux of the matter, for which reason I said, though with respect, that the form in which the learned Attorney General stated his proposition was likely to cloud the true issue The Constitution guarantees certain fundamental freedoms and except where their exercise is limited by territorial considerations, those freedoms may be exercised wheresoever, one chooses, subject to the exceptions or qualifications mentioned above.
46. The next question is whether the right to go out of India is an integral part of the right of free speech and expression and is comprehended within it. It seems to me impossible to answer this question in the affirmative as is contended by the petitioner's counsel. Shri Madan Bhatia. It is possible to predicate of many a right that its exercise would be more meaningful if the right is extended to comprehend an extraneous facility. But such extensions do not from part of the right conferred by the Constitution. The analogy of the freedom of press being included in the right of free speech and expression is wholly misplaced because the right of free expression incontrovertibly includes the right of freedom of the press. The right to go abroad on one hand and the right of free speech and expression on the other are made up of basically different constituents, so different indeed that one cannot be comprehended in the other.
47. Brother Bhagwati has, on this aspect considered at length certain American decisions like Kent (1958) 2 Law Ed 2d 1204, Apthekar (1964) 12 Law Ed 2d 992 and Zomel (1966) 14 Law Ed 2d 179 and illuminating though his analysis is, I am inclined to think that the presence of the due process clause in the 5th and 14th Amendments of the American Constitution makes significant difference to the approach of American Judges to the definition and evaluation of constitutional guarantees. The content which has been meaningfully and imaginatively pocured into "due process of law" may, in my view, constitute an important point of distinction between the American Constitution and ours which studiously avoided the use of that expression. In the Centennial volume, "The Fourteenth Amendment" edited by Bernard Schwartz, is contained an article on 'Landmarks of Legal Liberty, by Justice William J. Brennan in which the learned Judge quoting from Yeats's play has this to say: In the service of the age-old dream for recognition of the equal and inalienable rights of man, the 14th Amendment though 100 years old, can never be old.
- "Like the poor old woman in Yeat's play." Did you see an old woman going down the path? asked Bridget. 'I did not.' replied Partick, who had come into the house after the old woman left it, "But I saw a young girl and she had the walk of a queen."
48. I have nothing more to add to what Brother Bhagwati has said on the other points in the case. I share his opinion that though the right to go abroad is not included in the right contained in Article 19 (1) (a), if an order made under Section 10 (3) (c) of the Act does in fact violate the right of free speech and expression, such an order could be struck down as unconstitutional. It is well settled that a statute may pass the test of constitutionality and yet an order passed under it may be unconstitutional. But of that I will say no more because in this branch, one says no more than the facts warrant and decides nothing that does not call for a decision. The fact that the petitioner was not heard before or soon after the impounding of her passport would have introduced a serious infirmity in the order but for the statement of the Attorney General that the Government was willing to hear the petitioner and further to limit the operation of the order to a period of six months from the date of the fresh decision, if the decision was adverse to the petitioner. The order, I agree, does not in fact offend against Article 19 (1) (a) or 19 (1) (g).
49. I, therefore, agree with the order proposed by Brother Bhagwati.
50. Bhagwati, J. (on behalf of himself. Untwalia and Murtaza Fazal Ali, JJ.) (Majority view):- . The petitioner is the holder of the passport issued to her on 1st June, 1976 under the Passports Act, 1967. On 4th July, 1977 the petitioner received a letter dated 2nd July, 1977 from the Regional Passport Officer, Delhi intimating to her that it has been decided by the Government of India to impound her passport under Section 10 (3) (C) of the Act in public interest and requiring her to surrender the passport within seven days from the date of receipt of the letter. The petitioner immediately addressed a letter to the Regional Passport Officer requesting him to furnish a copy of the statement of reasons for making the order as provided in Section 10 (5) to which a reply was sent by the Government of India, Ministry of External Affairs on 6th July, 1977 stating inter alia that the Government has decided "in the interest of the general public" not to furnish her a copy of the statement of reasons for the making of the order. The petitioner thereupon filed the present petition challenging the action of the Government in impounding her passport and declining to give reasons for doing so. The action of the Government was impugned inter alia on the ground that it was mala fide, but this challenge was not press before us at the time of the hearing of the arguments and hence it is not necessary to state any facts bearing on that question. The principal challenge set out in the petition against the legality of the action of the Government was based mainly on the ground that Section 10 (3) (c), in so far as it empowers the Passport Authority to impound a passport "in the interests of the general public" is violative of the equality clause contained in Article 14 of the Constitution, since the condition denoted by the words "in the interests of the general public" limiting the exercise of the power is vague and undefined and the power conferred by this provision is, therefore, excessive and suffers from the vice of "over-breadth". The petition also contained a challenge that an order under Section 10 (3) (c) impounding a passport could not be made by the Passport Authority without giving an opportunity to the holder of the passport to be heard in defence and since in the present case, the passport was impounded by the Government without affording an opportunity of hearing to the petitioner, the order was null and void, and, in the alternative, if Section 10 (3) (c) were read in such a manner as to exclude the right of hearing, the section would be infected with the vice of arbitrariness and it would be void as offending Article 14. These were the only grounds taken in the petition as originally filed and on 20th July, 1977 the petition was admitted and rule issued by this Court and an interim order was made directing that the passport of the petitioner should continue to remain deposited with the Registrar of this Court pending the hearing and final disposal of the petition.
51. The hearing of the petition was fixed on 30th August 1977, but before that, the petitioner filed an application for urging additional grounds and by this application, two further grounds were sought to be urged by her. One ground was that Section 10 (3) (c) is ulta vires Article 21 since it provides for impounding of passport without any procedure as required by that Article, or, in any event, even if it could be said that there is some procedure prescribed under the Passports Act, 1967, it is wholly arbitrary and unreasonable and, therefore, not in compliance with the requirement of that Article. The other ground urged on behalf of the petitioner was that Section 10 (3) (c) is violative of Articles 19 (1) (a) and 19 (1) (g) inasmuch as it authorises imposition of restrictions on freedom of speech and expression guaranted under Article 19 (1) (a) and freedom to practise any profession or to carry on any occupation or business guaranteed under Article 19 (1) (g) and these restrictions are impermissible under Article 19 (2) and Article 19 (6) respectively. The application for urging these two additional grounds was granted by this Court and ultimately at the hearing of the petition these were the two principal grounds which were pressed on behalf of the petitioner.
52. Before we examine the rival arguments urged on behalf of the parties in regard to the various questions arising in this petition, it would be convenient to set out the relevant provisions of the Passports Act, 1967. This Act was enacted on 24th June, 1967 in view of the decision of this Court in Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi, (1967)3 SCR 525. The position which obtained prior to the coming into force of this Act was that there was no law regulating the issue of passports for leaving the shores of India and going abroad. The issue of passports was entirely within the discretion of the executive and this discretion was unguided and unchannelled. This Court, by a majority, held that the expression "personal liberty " in Article 21 takes in the right of locomotion and travel abroad and under Article 21 no person can be deprived of his right to go abroad except according to the procedure established by law and since no law had been made by the State regulating or prohibiting the exercise of such right, the refusal of passport was in violation of Article 21 and moreover the discretion with the executive in the matter of issuing or refusing passport being unchannelled and arbitrary, it was plainly violative of Article 14 and hence the order refusing passport to the petitioner was also invalid under that Article. This decision was accepted by Parliament and the infirmity pointed out by it was set right by the enactment of the Passports Act, 1967. This Act, as its preamble shows, was enacted to provide for the issue of passports and travel documents to regulate the departure from India of citizens of India and other persons and for incidental and ancillary matters. Section 3 provides that no person shall depart from or attempt to depart from India unless he holds in this behalf a valid passport or travel document. What are the different classes of passports and travel documents which can be issued under the Act is laid down in Section 4, Section 5, sub-section (1) Provides for making of an application for issue of a passport or travel document or for endorsement on such passport or travel document for visiting foreign country or countries and sub-section (2) says that on receipt of such application, the passport authority, after making such inquiry, if any, as it may consider necessary shall, by order in writing, issue or refuse to issue the passport or travel document or make or refuse to make on the passport or travel document endorsement in respect of one or more of the foreign countries specified in the application. Sub-section (3) requires the passport authority, where it refuse to issue the passport or travel document or to make any endorsement on the passport or travel document, to record in writing a brief statement of its reasons for making such order Section 6, sub-section (1) lays down the grounds on which the passport authority shall refuse to make an endorsement for visiting any foreign country and provides that on no other ground the endorsement shall be refused. There are four grounds set out in this sub-section and of them, the last is that, in the opinion of the Central Government, the presence of the applicant in such foreign country is not in the public interest. Similarly sub-section (2) of Section 6 specifies the grounds on which alone and on no other grounds - the passport authority shall refuse to issue passport or travel document for visiting any foreign country and amongst various grounds set out there, the last is that, in the opinion of the Central Government the issue of passport or travel document to the applicant will not be in the public interest. Then we come to Section 10 which is the material section which falls for consideration.
Sub-section (1) of that section empowers the passport authority to vary or cancel the endorsement of a passport or travel document or to vary or cancel the conditions subject to which a passport or travel document has been issued having regard, inter alia, to the provisions of sub-section (1) of Section 6 or any notification under Section 19. Sub-section (2) confers powers on the passport authority to vary or cancel the conditions of the passport or travel document on the application of the holder of the passport or travel document and with the previous approval of the Central Government. Sub-section (3) provides that the passport authority may impound or cause to be impounded or revoke a passport or travel document on the grounds set out in clauses (a) to (h). The order impounding the passport in the present case was made by the Central Government under clause (c) which reads as follows:-
- "(c) if the passport authority deems it necessary so to do in the interest of the Sovereignty and Integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public;"
Meanwhile, proceeding further with the re'sume' of the relevant provisions, reference may be made to Section 11 which provides for an appeal inter alia against the order impounding or revoking a passport or travel document under sub-section (3) of Section 10. But there is a proviso to this section which says that if the order impounding or revoking a passport or travel document is passed by the Central Government, there shall be no right of appeal. These are the relevant provisions of the Act in the light of which we have to consider the constitutionality of sub-section (3) (c) of Section 10 and the validity of the order impounding the passport of the petitioner.
Meaning and content of personal liberty in Article 21.
53. The first contention urged on behalf of the petitioner in support of the petition was that the right to go abroad is part of 'personal liberty' within the meaning of that expression as used in Article 21 and no one can be deprived of this right except according to the procedure prescribed by law. There is no procedure prescribed by the Passports Act, 1967 for impounding or revoking a passport and thereby preventing the holder of the passport from going abroad and in any event, even if some procedure can be traced in the relevant provisions of the Act, it is unreasonable and arbitrary, inasmuch as it does not provide for giving an opportunity to the holder of the passport to be heard against the making of the order and hence the action of the Central Government in impounding the passport of the petitioner is in violation of Article 21. This contention of the petitioner raises a question as to the true interpretation of Article 21. What is the nature and extent of the protection afforded by this article? What is the meaning of 'personal liberty': does it include the right to go abroad so that this right cannot be abridged or taken away except in accordance with the procedure prescribed by law? What is the inter-relation between Article 14 and Article 21? Does Article 21 merely require that there must be some semblance of procedure, howsoever arbitrary or fanciful, prescribed by law before a person can be deprived of his personal liberty or that the procedure must satisfy certain requisites in the sense that it must be fair and reasonable? Article 21 occurs in Part III of the Constitution which confers certain fundamental rights. These fundamental rights had their roots deep in the struggle for independence and, as pointed out by Granville Austin in 'The Indian Constitution - Cornerstone of a Nation', "they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India". They were indelibly written in the subconscious memory of the race which fought for well-nigh thirty years for securing freedom from British rule and they found expression in the form of fundamental rights when the Constitution was enacted. These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent. They weave a 'pattern of guarantees on the basic structure of human right's and impose negative obligations on the State not to encroach on individual liberty in its various dimensions. It is apparent from the enunciation of these rights that the respect for the individual and his capacity for individual volition which finds expression there is not a self-fulfilling prophecy. Its purpose is to help the individual to find his own viability, to give expression to his creativity and to prevent governmental and other forces from 'alienating' the individual from his creative impulse. These rights are wide ranging and comprehensive and they fall under seven heads, namely right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to property and right to constitutional remedies. Articles 14 to 18 occur under the heading 'Right to Equality', and of them, by far the most important is Article 14 which confers a fundamental right by injuncting the State not to 'deny to any person equality before the law or the equal protection of the laws within the territory of India." Articles 19 to 22, which find place under the heading "Right to freedom" provide for different aspects of freedom. Clause (1) of Article 19 enshrines what may be described as the seven lamps of freedom.
It provides that all citizens shall have the right- (a) to freedom of speech and expression; (b) to assumble peacebly and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (f) to acquire, hold and dispose of property and (g) to practise any profession or to carry on any occupation, trade or business. But these freedoms are not and cannot be absolute, for absolute and unrestricted freedom of one may be destructive of the freedom of another and in a well-ordered, civilised society, freedom can only be regulated freedom. Therefore, clauses (2) to (6) of Article 19 permit reasonable restrictions to be imposed on the exercise of the fundamental rights guaranteed under clause (1) of that article. Article 20 need not detain us as that is not material for the determination of the controversy between the parties . Then comes Article 21 which provides:
- "21. No person shall be deprived of his life or personal liberty except according to procedure established by law."
54. It is obvious that Article 21, though couched in negative language, confers the fundamental right to life and personal liberty, So far as the right to personal liberty is concerned, it is ensured by providing that no one shall be deprived of personal liberty except according to procedure prescribed by law. The first question that arises for consideration on the language of Article 21 is: what is the meaning and content of the words 'personal liberty' as used in this Article? This question incidentally came up for discussion in some of the judgments in A. K. Gopalan v. State of Madras, 1950 SCR 88 and the observations made by Patanjali Sastri, J., Mukherjee, J. and S. R. Das, J. seemed to place a narrow interpretation on the words 'personal liberty' so as to confine the protection of Article 21 to freedom of the person against unlawful detention. But there was no definite pronouncement made on this point since the question before the Court was not so much the interpretation of the words 'personal liberty' as the inter-relation between Articles 19 and 21. It was in Kharak Singh v. State of U. P., (1964) 1 SCR 332 that the question as to the proper scope and meaning of the expression 'personal liberty' came up pointedly for consideration for the first time before this Court. The majority of the Judges took the view "that 'personal liberty, is used in the article as a compendious term to include within itself all the varieties of rights which go to make up the 'personal liberties' of man other than those dealt with in the several clauses of Article 19 (1). In other words, while Article 19 (1) deals with particular species or attributes of that freedom, 'personal liberty' in Article 21 takes in and comprises the residue". The minority Judges, however, disagreed with this view taken by the majority and explained their position in the following words :
- "No doubt the expression 'personal liberty' is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression 'personal liberty' in Article 21 excludes that attribute. In our view, this is not a correct approach. Both are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another. The fundamental right of life and personal liberty has many attributes and some of them are found in Article 19. If a person's fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19 (2) so far as the attributes covered by Article 19 (1) are concerned."
We do not think that this would be a correct way of interpreting the provisions of the Constitution conferring fundamental rights. The attempt of the court should be to expand the reach and ambit of the fundamental rights rather than attenuate their meaning and content by a process of judicial construction. The wave length for comprehending the scope and ambit of the fundamental rights has been set by this Court in R. C. Cooper's case and our approach in the interpretation of the fundamental rights must now be in tune with this wave length. We may point out even at the cost of repetition that this Court has said in so many terms in R. C. Cooper's case that each freedom has different dimensions and there may be overlapping between different fundamental rights and therefore it is not a valid argument to say that the expression 'personal liberty' in Article 21 must be so interpreted as to avoid overlapping between that Article and Article 19 (1). The expression 'personal liberty' in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19. Now, it has been held by this Court in Satwant Singh's case that 'personal liberty' within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law. Prior per to the enactment of the Passports Act, 1967, there was no law regulating the right of a person to go abroad and that was the reason why the order of the Passport Officer refusing to issue passport to the petitioar in Satwant Singh's case was struck down as invalid. It will be seen at once from the language of Article 21 that the protection it secures is a limited one. It safeguards the right to go abroad against executive interference which is not supported by law; and law here means 'enacted law' or 'State law.' Vide A. K. Gopalan's case. Thus, no person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure. It was for this reason, in order to comply with the requirement of Article 21, that Parliament enacted the Passports Act, 1967 for regulating the right to go abroad. It is clear from the provisions of the Passport Act, 1967 that it lays down the circumstances under which a passport may be issued or refused or cancelled or impounded and also prescribes a procedure for doing so, but the question is whether that is sufficient compliance with Article 21, Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements? Obviously, the procedure cannot be arbitrary, unfair or unreasonable. This indeed was conceded by the learned Attonrny General who with this usual candour frankly stated that it was not possible for him to contend that any procedure howsoever arbitrary, oppressive or unjust may be prescribed by the law. There was some discussion in A. K. Gopalan's case in regard to the nature of the procedure required to be prescribed under Article 21 and at least three of the learned Judges out of five expressed themselves strongly in favour of the view that the procedure cannot be any arbitrary, fantastic or oppressive procedure. Fazal Ali, J., who was in a minority, went to the farthest limit in saying that the procedure must include the four essentials set out in Prof. Willis book on Constitutional Law, namely, notice, opportunity to be heard, impartial tribunal and ordinary course of procedure.
Patanjali Sastri, J., did not go as far as that but he did say that "certain basic principles emerged as the constant factors known to all those procedures and they formed the core of the procedure established by law." Mahajan, J., also observed that Article 21 requires that "there should be some form of proceeding before a person can be condemned either in respect of his life or his liberty" and "it negatives the idea of fantastic, arbitrary and oppressive forms of proceedings." But apart altogether from these observations in A. K. Gopalan's case, which have great weight, we find that even on principle the concept of reasonableness must be projected in the procedure contemplated by Article 21 having regard to the impact of Article 14 on Article 21.
The interrelationship between Articles 14, 19 and 21.
55. We may at this stage consider the interrelation between Article 21 on the one hand and Articles 14 and 19 on the other. We have already pointed out that the view taken by the majority in A. K. Gopalan's case was that so long as a law of preventive detention satisfies the requirements of Article 22, it would be within the terms of Article 21 and it would not be required to meet the challenge of Article 19. This view proceeded on the assumption that "certain articles in the Constitution exclusively deal with specific matters and where the requirements of an article dealing with the particular matter in question are satisfied and there is no infringement of the fundamental right guaranteed by that article. no recourse can be had to a fundamental right conferred by another article. This doctrine of exclusivity was seriously questioned in R. C. Cooper's case and it was overruled by majority of the Full Court, only Ray, J., as he then was, dissenting. The majority judges held that though a law of preventive detention may pass the test of Article 22, it has yet to satisfy the requirements of other fundamental rights such as Article 19. The ratio of the majority judgment in R. C. Cooper's case was explained in clear and categorical terms by Shelat, J., speaking on behalf of seven judges of this Court in Shambhu Nath Sarkar v. State of West Bengal (1973) 1 SCC 856. The learned Judge there said (at p. 1441 of AIR):
- "In Gopalan's case (supra) the majority court had held that Article 22 was a self-contained Code and therefore a law of preventive detention did not have to satisfy the requirement of Articles 19, 14 and 21. The view of Fazal Ali, J. on the other hand, was that preventive detention was a direct breach of the right under Article 19 (1) (d) and that a law providing for preventive detention had to be subject to such judicial review as is obtained under clause (5) of that Article. In R. C. Cooper v. Union of India (supra) the aforesaid premise of the majority in Gopalan's case (supra) was disapproved and therefore it no longer holds the field. Though Cooper's case (supra) dealt with the inter-relationship of Article 19 and Article 31, the basic approach to construing the fundamental rights guaranteed in the different provisions of the Constitution adopted in this case held the major premise of the majority in Gopalan's case (supra ) to be incorrect."
56. Now, the question immediately arises as to what is the requirement of Article 14: What is the content and reach of the great equalising principle enunciated in this article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. We must reiterate here what was pointed out by the majority in E.P. Royappa v. State of Tamil Nadu, (1974)2 SCR 348 namely, that "from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14". Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be 'right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.
How far natural justice is an essential element of procedure established by law.
57. The question immediately arises: does the procedure prescribed by the Passports Act, 1967 for impounding a Passport meet the test of this requirement? Is it 'right or fair or just'? The argument of the petitioner was that it is not, because it provides for impounding of a passport without affording reasonable opportunity to the holder of the passport to be heard in defence. To impound the passport of a person, said the petitioner, is a serious matter, since it prevents him from exercising his constitutional right to go abroad and such a drastic consequence cannot in fairness be visited without observing the principle of audi alteram partem. Any procedure which permits impairment of the constitutional right to go abroad without giving reasonable opportunity to show cause cannot but be condemned as unfair and unjust and hence, there is in the present case clear infringement of the requirement of Article 21, Now, it is true that there is no express provision in the Passports Act, 1967 which requires that the audi alteram parten rule should be followed before impounding a passport, but that is not conclusive of the question, if the statute makes itself clear on this point, then no more question arises. But even when the statute is silent, the law may in a given case make an implication and apply the principle stated by Byles, J., in Cooper v. Wandsworth Board of Works, (1863)14 C.B.N.S. 180 : "A long course of decisions, beginning with Dr. Bentley's case (1723) 1 Str 557 and ending with some very recent cases, establish that although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature". The principle of audi alteram partem which mandates that no one shall be condemned unheard, is part of the rules of natural justice. In fact, there are two main principles in which the rules of natural justice are manifested, namely, Nemo Judex in Sua Causa and audi alteram partem. We are not concerned here with the former since there is no case of bias urged here. The question is only in regard to the right of hearing, which involves the audi alteram partem rule. Can it be imported in the procedure for impounding a passport?
58. We may commence the discussion of this question with a few general observations to emphasis the increasing importance of natural justice in the field of administrative law. Natural justice is a great humanising principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action Lord Morris of Borth-y-Gest spoke of this rule in eloquent terms in his address before the Bentham Club:
- "We can, I think, take pride in what has been done in recent periods and particularly in the field of administrative law by invoking and by applying these principles which we broadly classify under the designation of natural justice. Many testing problems as to their application yet remain to be solved. But I affirm that the area of administrative action is but one area in which the principles are to be deployed. Nor are they to be invoked only when procedural failures are shown. Does natural justice qualify to be described as a "majestic" conception? I believe it does. Is it just a rhetorical but vague phrase, which can be employed, when needed, to give a gloss of assurance? I believe that it is very much more. If it can be summarised as being fair play in action - who could wish that it would ever be out of action? It denotes that the law is not only to be guided by reason and by logic but that its purpose will not be fulfilled: it lacks more exalted inspiration." (Current Legal Problems, 1973, Vol. 26, p. 16). And then again, in his speech in the House of Lords in Wiseman v. Borneman, 1971 AC 297 the learned Law Lord said in words of inspired felicity :
- "that the conception of natural justice should at all stages guide those who discharge judicial functions is not merely an acceptable but is an essential part of the philosophy of the law. We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analysed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application. We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. Natural justice, it has been said, is only "fair play in action." Nor do we wait for directions from Parliament. The common law has abundant riches: there may we find what Byles, J., called "the justice of the common law."' Thus, the soul of natural justice is 'fair play in action' and that is why it has received the widest recognition throughout the democratic world. In the United States, the right to an administrative hearing is regarded as essential requirement of fundamental fairness. And in England too it has been held that 'fair play in action' demands that before any prejudicial or adverse action is taken against a person, he must be given an opportunity to be heard. The rule was stated by Lord Denning, M. R. in these terms in Schmidt v. Secy. of State for Home Affairs :- (1969) 2 Ch. D. 149 "Where a public officer has power to deprive a Person of his liberty or his property, the general principle is that it has not to be done without his being given an opportunity of being heard and of making representations on his own behalf." The same rule also prevails in other Commonwealth countries like Canada, Australia and New Zealand. It has even gained access to the United Nations. Vide American Journal of International Law, Vol. 67, page 479, Magarry, J., describes natural justice "as a distillate of due process of law." Vide Fontaine v. Chastarton (1968)112 Sol Gen 690. It is the quintessence of the process of justice inspire and guided by 'fair play in action.' If we look at the speeches of the various Law Lords in Wiseman's case, it will be seen that each one of them asked the question "whether in the particular circumstances of the case, the Tribunal acted unfairly so that it could be said that their procedure did not match with what justice demanded.," or, was the procedure adopted by the Tribunal 'in all the circumstances unfair'? The test adopted by every Law Lord was whether the procedure followed was "fair in all the circumstances" and 'fair play in action' required that an opportunity should be given to the tax payer "to see and reply to the counter-statement of the Commissioners" before reaching the conclusion that "there is a prima facie case against him." The inquiry must, therefore, always be: does fairness in action demand that an opportunity to be heard should be given to the person affected?
Clark in his article on 'Natural justice, Substance and Shadow' in Public Law Journal, 1975, restored light to an area "benighted by the narrow conceptualism of the previous decade." This development in the law had its parallel in India in the Associated Cement Companies Ltd. v. P.N. Sharma, (1965)2 SCR 366 where this Court approvingly referred to the decision in Ridge v. Baldwin (supra) and, later in State of Orissa v. Dr. Binapani, (1967)2 SCR 625 observed that: "If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power." This Court also pointed out in A.K. Kraipak v. Union of India, (1970)1 SCR 457, another historic decision in this branch of the law, that in recent years the concept of quasi-judicial power has been under-going radical change and said: "The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised." The net effect of these and other decisions was that the duty to act judicially need not be super-added, but it may be spelt out from the nature of the power conferred, the manner of exercising it and its impact on the rights of the person affected and where it is found to exist, the rules of natural justice would be attracted.
60. This was the advance made by the law as a result of the decision in Ridge v. Baldwin (supra) in England and the decisions in Associated Cement Companies's case (supra) and other cases following upon it, in India. But that was not to be the end of the development of the law on this subject. The proliferation of administrative law provoked considerable fresh thinking on the subject and soon it came to be recognised that 'fair play in action required that in administrative proceeding also, the doctrine of natural justice must be held to be applicable. We have already discussed this aspect of the question on principle and shown why no distinction can be made between an administrative and a quasi-judicial proceeding for the purpose of applicability of the doctrine of natural justice. This position was judicially recognised and accepted and the dichotomy between administrative and quasi-judicial proceedings vis-a-vis the doctrine of natural justice was finally discarded as unsound by the decisions in In re : H. K. (An Infant ((1967) 2 QB 617 and Schmidt v. Secretary of State for Home Affairs (supra) in England and, so far as India is concerned, by the memorable decision rendered by this Court in A. K. Kraipak's case (supra). Lord Parker, C. J., pointed out in the course of his judgment in In Re H.K. (An Infant) (supra): (at p. 156 of AIR).
- "But at the same time, I my self think that even if an immigration officer is not in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the sub-section, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly. Good administration and an honest or bona fide decision must, as it seems to me require not merely impartiality, nor merely bringing one's mind to bear on the problem, but acting fairly; and to the limited extent that the circumstances of any particular case allow, and within the legislative framework under which the administrator is working, only to that limited extent do the so-called rules of natural justice apply, which in a case such as this is merely a duty to act fairly. I appreciate that in saying that it may be said that one is going further than is permitted on the decided cases because heretofore at any rate the decisions of the courts do seem to have drawn a strict line in these matters according to whether there is or is not a duty to act judicially or quasi-judicially."
- "The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it........... Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Oftentimes it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries, which were considered administrative at one time, are now being considered as quasi-judicial in Character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. The University of Kerala (1969) 1 SCR 317 the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of the case."
62. Now, here, the power conferred on the Passport Authority is to impound a passport and the consequence of impounding a passport would be to impair the constitutional right of the holder of the passport to go abroad during the time that the passport is impounded. Moreover, a passport can be impounded by the Passport Authority only on certain specified grounds set out in sub-section (3) of Section 10 and the Passport Authority would have to apply its mind to the facts and circumstances of a given case and decide whether any of the specified grounds exists which would justify impounding of the passport. The Passport Authority is also required by sub-section (5) of Section 10 to record in writing a brief statement of the reasons for making an order impounding a passport and, save in certain exceptional situations, the Passport Authority is obliged to furnish a copy of the statement of reasons to the holder of the passport. Where the Passport Authority which has impounded a passport is other than the Central Government, a right of appeal against the order impounding the passport is given by Section 11 and in the appeal, the validity of the reasons given by the Passport Authority for impounding the passport can be canvassed before the Appellate Authority for impounding the passport can be canvassed before the Appellate Authority. It is clear on a consideration of these circumstances that the test laid down in the decisions of this Court for distinguishing between a quasi-judicial power and an administrative power is satisfied and the power conferred on the Passport Authority to impound a passport is quasi-judicial power. The rules of natural justice would, in the circumstances, be applicable in the exercise of the power of impounding a passport even on the orthodox view which prevailed prior to A. K. Kraipak's case. The same result must follow in view of the decision in A. K. Kraipak's case, even if the power to impound a passport were regarded as administrative in character, because it seriously interferes with the constitutional right of the holder of the passport to go abroad and entails adverse civil consequences.
63. Now, as already pointed out the doctrine of natural justice consists principally of two rules, namely, nemo debet esse judex in propria causa no one shall be a judge in his own cause, and audi alteram partem: no decision shall be given against a party without affording him a reasonable hearing. We are concerned here with the second rule and hence we shall confine ourselves only to a discussion of that rule. The learned Attorney General, appearing on behalf of the Union of India, fairly conceded that the audi alteram partem rule is a highly effective tool devised by the courts to enable a statutory authority to arrive at a just decision and it is calculated to act as a healthy check on abuse or misuse of power and hence its reach should not be narrowed and its applicability circumscribed. He rightly did not plead for reconsideration of the historic advances made in the law as a result of the decisions of this Court and did not suggest that the Court should retrace its steps. That would indeed have been a most startling argument coming from the Government of India and for the Court to accede to such an argument would have been an act of utter retrogression. But fortunately no such argument was advanced by the learned Attorney General. What he urged was a very limited contention, namely, that having regard to the nature of the action involved in the impounding of a passport, the audi alteram partem rule must be held to be excluded, because if notice were to be given to the holder of the passport and reasonable opportunity afforded to him to show cause why his passport should not be impounded, he might immediately, on the strength of the passport, make good his exit from the country and the object of impounding the passport would be frustrated. The argument was that if the audi alteram partem rule were applied, its effect would be to stultify the power of impounding the passport and it would defeat and paralyse the administration of the law and hence the audi alteram partem rule cannot in fairness be applied while exercising the power to impound a passport. This argument was sought to be supported by reference to the statement of the law in A. S. de Smith, Judicial Review of Administrative Action, 2nd Edn., where the learned author says at page 174 that
- "In administrative law a prima facie right to prior notice and opportunity to be heard may be held to be excluded by implication where an obligation to give notice and opportunity to be heard would obstruct the taking of prompt action, especially action of a preventive or remedial nature".
The audi alteram pattern rule is sufficiently flexible to permit modifications and variations to suit the exigencies of myriad kinds of situations, which may arise. This circumstantial flexibility of the audi alteram partem rule was emphasised by Lord Reid in Wiseman v. Sorneman (supra) when he said that he would be "sorry to see this fundamental general principle degenerate into a series of hard and fast rules" and Lord Hailsham, L. C., also observed in PearlBerg v. Varty, (1971)1 WLR 728 that the courts "have taken an increasingly sophisticated view of what is required in individual cases". It would not, therefore, be right to conclude that the audi alteram partem rule is excluded merely because the power to impound a passport might be frustrated, if prior notice and hearing were to be given to the person concerned before impounding his passport. The Passport Authority may proceed to impound the passport without giving any prior opportunity to the person concerned to be heard, but as soon as the order impounding the passport is made, an opportunity of hearing, remedial in aim, should be given to him so that he may present his case and controvert that of the Passport Authority and point out why his passport should not be impounded and the order impounding it recalled. This should not only be possible but also quite appropriate, because the reasons for impounding the passport are required to be supplied by the Passport Authority after the making of the order and the person affected would, therefore, be in a position to make a representation setting forth his case and plead for setting aside the action impounding his passport. A fair opportunity of being heard following immediately upon the order impounding the passport would satisfy the mandate of natural justice and a provision requiring giving of such opportunity to the person concerned can and should be read by implication in the Passports Act, 1967. If such a provision were held to be incorporated in the Passports Act, 1967 by necessary implication, as we hold it must be, the procedure prescribed by the Act for impounding a passport would be right, fair and just and it would not suffer from the vice of arbitrariness of unreasonableness. We must, therefore, hold that the procedure 'established' by the Passports Act, 1967 for impounding a passport is in conformity with the requirement of Article 21 and does not fall foul of that article.
64. But the question then immediately arises whether the Central Government has complied with this procedure in impounding the passport of the petitioner. Now, it is obvious and indeed this could not be controverted, that the Central Government not only did not give an opportunity of hearing to the petitioner after making the impugned order impounding her passport but even declined to furnish to the petitioner the reasons for impounding her passport despite request made by her. We have already pointed out that the Central Government was wholly unjustified in withholding the reasons for impounding the passport from the petitioner and this was not only in breach of the statutory provision, but it also amounted to denial of opportunity of hearing to the petitioner. The order impounding the passport of the petitioner was, therefore, clearly in violation of the rule of natural justice embodied in the maxim audi alteram partem and it was not in conformity with the procedure prescribed by the Passports Act, 1967. Realising that this was a fatal defect, which would void the order impounding the passport, the learned Attorney General made a statement on behalf of the Government of India to the following effect:
- "1. The Government is agreeable to considering any representation that may be made by the petitioner in respect of the impounding of her passport and giving her an opportunity in the matter. The opportunity will be given within two weeks of the receipt of the representation. It is clarified that in the present case the grounds for impounding the passport are those mentioned in the affidavit in reply dated 18th August, 1977 of Shri Ghosh except those mentioned in para 2 (xi).
- 2. The representation of the petitioner will be dealt with expeditiously in accordance with law."
Is Section 10 (3) (c) violative of Article 14?
65. That takes us to the next question whether Section 10 (3) (c) is violative of any of the fundamental rights guaranteed under Part III of the Constitution. Only two articles of the Constitution are relied upon of this purpose and they are Articles 14 and 19(1)(a) and (g). We will first dispose of the challenge based on Article 14 as it lies in a very narrow compass. The argument under this head of challenge was that Section 10 (3) (c) confers unguided and unfettered power on the Passport Authority to impound a passport and hence it is violative of the equality clause contained in Article 14. It was conceded that under Section 10 (3) (c) the power to impound a passport can be exercised only upon one or more of the stated grounds, but the complaint was that the ground of "interests of the general public" was too vague and indefinite to afford any real guidance to the Passport Authority and the Passport Authority could, without in any way violating the terms of the section impound the passport of one and not of another, at its discretion. Moreover, it was said that when the order impounding a passport is made by the Central Government, there is no appeal or revision provided by the Statute and the decision of the Central Government that it is in public interest to impound a passport is final and conclusive. The discretion vested in the Passport Authority, and particularly in the Central Government, is thus unfetted and unrestricted and this is plainly in violation of Article 14. Now, the law is well settled that when a statute vests unguided and unrestricted power in an authority to affect the rights of a person without laying down any policy or principle which is to guide the authority in exercise of this power, it would be affected by the vice of discrimination since it would leave it open to the Authority to discriminate between persons and things similarly situated. But here it is difficult to say that the discretion conferred on the Passport Authority is arbitrary or unfettered. There are four grounds set out in Section 10 (3) (c), which would justify the making of an order impounding a passport. We are concerned only with the last ground denoted by the words "in the interests of the general public", for that is the ground which is attacked as vague and indefinite. We fail to see how this ground can, by any stretch of argument, be characterised as vague or undefined. The words "in the interests of the general public" have a clearly well defined meaning and the courts have often been called upon to decide whether a particular action is "in the interests of the general public" or in 'public interest' and no difficulty has been experienced by the Courts in carrying out this exercise. These words are in fact borrowed ipsissima verba from Article 19 (5) and we think it would be nothing short of heresy to accuse the constitution-makers of vague and loose thinking.
The legislature performed a scissor and paste operation in lifting these words out of Article 19 (5) and introducing them in Section 10 (3) (c) and if these words are not vague and indefinite in Article 19 (5), it is difficult to see how they can be condemned to be such when they occur in Section 10 (3) (c). How can Section 10 (3) (c) be said to incur any constitutional infirmity on account of these words when they are no wider than the constitutional provision in Article 19 (5) and adhere loyally to the verbal formula adopted in the Constitution? We are clearly of the view that sufficient guidelines are provided by the words "in the interests of the general public' and the power conferred on the Passport Authority to impound a passport cannot be said to be unguided or unfettered. Moreover, it must be remembered that the exercise of this power is not made dependent on the subjective opinion of the Passport Authority as regards the necessity of exercising it on one or more of the ground stated in the section, but the Passport Authority is required to record in writing a brief statement of reasons for impounding the passport and, save in certain exceptional circumstances, to supply a copy of such statement to the person affected, so that the person concerned can challenge the decision of the Passport Authority in appeal and the appellate authority can examine whether the reasons given by the Passport Authority are correct, and if so, whether they justify the making of the order impounding the passport. It is true that when the order impounding a passport is made by the Central Government, there is no appeal against it, but it must be remembered that in such a case the power is exercised by the Central Government itself and it can safely be assumed that the Central Government will exercise the power in a reasonable and responsible manner. When power is vested in a high authority like the Central Government, abuse of power cannot be lightly assumed. And in any event, if there is abuse of power, the arms of the court are long enough to reach it and to strike it down. The power conferred on the Passport Authority to impound a passport under Section 10 (3) (c) cannot, therefore, be regarded as discriminatory and it does not fall foul of Article 14. But every exercise of such power has to be tested in order to determine whether it is arbitrary or within the guidelines provided in Section 10 (3) (c).
Conflicting approaches for locating the fundamental right violated direct and inevitable effect test.
66. We think it would be proper at this stage to consider the approach to be adopted by the Court in adjudging the constitutionality of a statute on the touchstone of fundamental rights. What is the test or yardstick to be applied for determining whether a statute infringes a particular fundamental right? The law on this point has undergone radical change since the days of A. K. Gopalan's case. That was the earliest decision of this Court on the subject, following almost immediately upon the commencement of the Constitution. The argument which arose for consideration in this case was that he preventive detention order results in the detection of the applicant in a cell and hence it contravenes the fundamental rights guaranteed under clauses (a), (b), (c), (d), (e) and (g) of Article 19 (1). This argument was negative by Kania, C. J. who pointed out that: "The true approach is only to consider the directness of the legislation and not what will be the result of the detention, otherwise valid, on the mode of the detenu's life ...... Any other construction put on the article ........ will be unreasonable." These observations were quoted with approval by Patanjali Sastri, J., speaking on behalf of the majority in Ram Singh v. State of Delhi, 1951 SCR 451. There, the detention of the petitioner was ordered with a view to preventing him from making any speeches prejudicial to the maintenance of public order and the argument was that the order of detention was invalid as it infringed the right of free speech and expression guaranteed under Article 19 (1) (a). The Court took the view that the direct object of the order was preventive detention and not the infringement of the right of freedom of speech and expression, which was merely consequential upon the detention of the detenu and upheld the validity of the order. The decision in A. K. Gopalan's case, followed by Ram Singh's case, gave rise to the theory that the object and form of State action determine the extent of protection which may be claimed by an individual and the validity of such action has to be judged by considering whether it is "directly in respect of the subject covered by any particular article of the Constitution or touches the said article only incidentally or indirectly". The test to be applied for determining the constitutional validity of State action with reference to fundamental rights is: what is the object of the authority in taking the action: what is the subject-matter of the action and to which fundamental right does it relate ? This theory that "the extent of protection of important guarantees, such as the liberty of person and right to property, depend upon the form and object of the State action and not upon its direct operation upon its direct operation upon the individual's freedom" held sway for a considerable time and was applied in Naresh Shridhar Mirajkar v. State of Maharashtra (1966) 3 SCR 744 to sustain an order made by the High Court in a suit for defamation prohibiting the publication of the evidence of a witness. This Court, after referring to the observations of Kania C. J. , in A. K. Gopalan's case and noting that they were approved by the Full Court in Ram Singh's case, pointed out that the object of the impugned order was to give protection to the witness in order to obtain true evidence in the case with a view to do justice between the parties and if incidentally it operated to prevent the petitioner from reporting the proceedings of the court in the press, it could not be said to contravene Article 19 (1) (a).
67. But it is interesting to note that despite the observations of Kania, C. J., in A. K. Gopalan's case and the approval of these observations in Ram Singh's case, there were two decisions given by this Court prior to Mirajkar's case, which seemed to deviate and strike a different note. The first was the decision in Express News Papers (P) Ltd. v. The Union of India, 1959 SCR 12where N. H. Bhagwati, J., speaking on behalf of the Court, referred to the observations of Kania, C.J., in A. K. Gopalan's case and the decision in Ram Singh's case, but ultimately formulated the test of direct and inevitable effect for the purpose of adjudging whether a statute offends a particular fundamental right. The learned Judge pointed out that all the consequences suggested on behalf of the petitioner's as flowing out of the Working Journalists (Conditions of Service) and Miscellaneous Act, 1955, namely, "the tendency to curtail circulation and thereby narrow the scope of dissemination of information, fetters on the petitioners' freedom to choose the means of exercising the right, likelihood of the independence of the press being undermined by having to seek government aid, the imposition of penalty on the petitioners' right to chose the instruments for exercising the freedom or compelling them to seek alternative media etc., " would be remote and depend upon various factors which may or may not come into play. "Unless these were the direct or inevitable consequences of the measures enacted in the impugned Act, " said the learned Judge, "it would not be possible to strike down the legislation as having that effect and operation. A possible eventuality of this type would not necessarily be the consequence which could be in the contemplation of the Legislature while enacting a measure of this type for the benefit of the workmen concerned." Then again, the learned Judge observed. "--if the intention or the proximate effect and operation of the Act was such as to bring it within the mischief of Article 19 (1) (a), it would certainly be liable to be struck down. The real difficulty, however, in the way of the petitioners is that neither the intention nor the effect and operation of the impugned Act is to take away or abridge the right of freedom of speech and expression enjoyed by the petitioners." Here we find the germ of the doctrine of direct and inevitable effect, which necessarily must be effect intended by the legislature, or in other words, what may conveniently and appropriately be described as the doctrine of intended and real effect. So also in Sakal Papers (P) Ltd. v. The Union of India, (1962)3 SCR 842 while considering the constitutional validity of the Newspaper (Price and Page) Act, 1956 and Daily Newspaper (Price and Page) Order, 1960, this Court applied the test of direct and immediate effect. This Court, relying upon the decision in Dwarkadas Shrinivas v. The Sholapur and Weaving Co. Ltd., 1954 SCR 674 pointed out that "it is the substance and the practical result of the act of the State that should be considered rather than its purely legal aspect" and "the correct approach in such cases should be to enquire as to what in substance is the loss or injury caused to the citizen and not merely what manner and method has been adopted by the State in placing the restriction." Since "the direct and immediate effect of the order" would be to restrain a newspaper from publishing any number of pages for carrying its news and views, which it has a fundamental right under Article 19 (1) (a) to do, unless it raises the selling price as provided in the Schedule to the Order, it was held by this Court that the order was violative of the right of the newspapers guaranteed by Article 19 (1) (a). Here again, the emphasis was on the direct and inevitable effect of the impugned action of the State rather than on its object and form or subject matter.
68. However, it was only in R. C. Cooper's case that the doctrine that the object and form of the State action alone determine the extent of protection that may be claimed by an individual and that the effect of the State action on the fundamental right of the individual is irrelevant, was finally rejected. It may be pointed out that this doctrine is in substance and reality nothing else than the test of pith and substance which is applied for determining the constitutionality of legislation where there is conflict of legislative powers conferred on Federal and State Legislatures with reference to legislative Lists. The question, which is asked in such cases, is: what is the pith and substance of the legislations; if it "is within the express powers, then it is not invalidated if incidentally it affects matters which are outside the authorised field." Here also, on the application of this doctrine, the question that is required to be considered is: what is the pith and substance of the action of the State, or in other words, what is its true nature and character; if it is in respect of the subject covered by any particular fundamental right, its validity must be judged only by reference to that fundamental right and it is immaterial that it incidentally affects another fundamental right. Mathew, J., in his dissenting judgment in Bennett Coleman and Co. v. Union of India (1973) 2 SCR 757: (Air 1973 SC 106) recognised the likeness of this doctrine to the pith and substance test and pointed out that "the pith and substance test, although not strictly appropriate, might serve a useful purpose" in determining whether the State action infringes a particular fundamental right. But in R. C. Cooper's case, which was a decision given by the Full Court consisting of eleven judges, this doctrine was thrown overboard and it was pointed out by Shah, J., speaking on behalf of the majority (at pp. 596 and 597 of AIR 1970 SC):
- "........... it is not the object of the authority making the law impairing the right of a citizen nor the form of action that determines the protection he can claim; it is the effect of the law and of the action upon the right which attract the jurisdiction of the Court to grant relief. If this be the true view, and we think it is, in determining the impact of State action upon constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of the Legislature nor by the form of the action, but by its direct operation upon the individual's right."
- "We are of the view that the theory that the object and form of the State action determine the extent of protection which the aggrieved party may claim is not consistent with the constitutional scheme................."
- "In our judgment, the assumption in A. K. Gopalan's case that certain articles in the Constitution exclusively deal with specific matters and in determining whether there is infringement of the individual's guaranteed rights, the object and the form of the State action alone need be considered, and effect of the laws on fundamental rights of the individuals in general will be ignored cannot be accepted as correct."
- "First, it is not the object of the authority making the law impairing the right of the citizen nor the form of action that determines the invasion of the right. Secondly, it is the effect of the law and the action upon the right, which attracts the jurisdiction of the Court to grant relief. The direct operation of the Act upon the rights forms and real test." The decision in Bennett Coleman's case, followed upon R. C. Cooper's case and it is an important and significant decision, since it elaborated and applied the thesis laid down in R. C. Cooper's case. The State action which was impugned in Bennett Coleman's case was newsprint policy which inter alia imposed a maximum limit of ten pages for every newspaper but without permitting the newspaper to increase the number of pages by reducing circulation to meet its requirement even within the admissible quota. These restrictions were said to be violative of the right of free speech and expression guaranteed under Article 19 (1) (a) since their direct and inevitable consequence was to limit the number of pages which could be published by a newspaper to ten. The argument of the Government was that the object of the newsprint policy was rationing and equitable distribution of imported newsprint, which was scarce commodity and not abridgement of freedom of speech and expression. The subject-matter of the import policy was "rationing of imported commodity and equitable distribution of newsprint" and the newsprint policy did not directly and immediately deal with the right mentioned in Article 19 (1) (a) and hence there was no violation of that Article. This argument of the Government was negatived by the majority in the following words:
- "Mr. Palkhivala said that the test of pith and substance of the subject matter and of direct and of incidental effect of the legislation are relevant to questions of legislative competence but they are irrelevant to the question of infringement of fundamental rights. In our view this is a sound and correct approach to interpretation of legislative measures and State action in relation to fundamental rights. the true test is whether the effect of the impugned action is to take away or abridge fundamental rights. If it be assumed that the direct object of the law or action has to be direct abridgement of the right of free speech by the impugned law or action it is to be related to the directness of effect and not to the directness of the subject matter of the impeached law or action. The action may have a direct effect on a fundamental right although its direct subject matter may be different. A law dealing directly with the Defence of India or defamation may yet have a direct effect on the freedom of speech, Article 19 (2) could not have such law if the restriction is unreasonable even if it is related to matters mentioned therein. Therefore, the word "direct" would go to the quality or character of the effect and not to the subject matter. The object of the law or executive action is irrelevant when it establishes the petitioner's contention about fundamental right. In the present case, the object of the news paper restrictions has nothing to do with the availability of newsprint or foreign exchange because these restrictions come into operation after the grant of quota. Therefore the restrictions are to control the number of pages or circulation of dailies or newspapers. These restrictions are clearly outside the ambit of Article 19 (2) of the Constitution. It, therefore, confirms that the right of freedom of speech and expression is abridged by these restrictions."
69. It may be recalled that the test formulated in R. C. Cooper's case merely refers to 'direct operation' or 'direct consequence and effect' of the State action on the fundamental right of the petitioner and does not use the word 'inevitable' in this connection. But there can be no doubt, on a reading of the relevant observations of Shah, J., that such was the test really intended to be laid down by the Court in that case. If the test were merely of direct or indirect effect, it would be an open-ended concept and in the absence of operational criteria for judging 'directness', it would give the Court an unquantifiable discretion to decide whether in a given case a consequence or effect is direct or not. Some other concept vehicle would be needed to quantify the extent of directness or indirectness in order to apply the test. And that is supplied by the criterion of 'inevitable' consequence or effect adumbrated in the Express Newspaper's case. This criterion helps to quantify the extent of directness necessary to constitute infringement of a fundamental right. Now, if the effect of State action on a fundamental right is direct and inevitable, then a fortiori it must be presumed to have been intended by the authority taking the action and hence this doctrine of direct and inevitable effect has been described by some jurists as the doctrine of intended and real effect. This is the test, which must be applied for the purpose of determining whether Section 10 (3) (c) or the impugned order made under it is violative of Article 19 (1) (a) or (g).
Is Section 10 (3) (c) violative of Article 19 (1) (a) or (g)?
70. We may now examine the challenge based on Article 19 (1) (a) in the light of this background. Article 19 (1) (a) enshrines one of the most cherished freedoms in a democracy, namely, freedom of speech and expression. The petitioner, being a citizen has undoubtedly this freedom guaranteed to her, but the question is whether Section 10 (3) (c) or the impugned order unconstitutionally takes away or abridges this freedom. Now, prima facie, the right, which is sought to be restricted by Section 10 (3) (c) and the impugned order, is the right to go abroad and that is not named as a fundamental right or included in so many words in Article 19 (1) (a) but the argument of the petitioner was that the right to go abroad is an integral part of the freedom of speech and expression and whenever State action, be it law or executive fiat, restricts or interferes with the right to go abroad, it necessarily involves curtailment of freedom of speech and expression, and is, therefore, required to meet the challenge of Article 19 (1) (a). This argument was sought to be answered by the Union of India by a two-fold contention. The first limb of the constestion was that the right to go abroad could not possibly be comprehended within freedom of speech and expression, because the right of free speech and expression guaranteed under Article 19 (1) (a) was exercisable only within the territory of India and the guarantee of its exercise did not extend outside the country and hence State action restricting or preventing exercise of the right to go abroad could not be said to be violative of freedom of speech and expression and be liable to be condemned as invalid on that account. The second limb of the contention went a little further and challenged the very premise on which the argument of the petitioner was based and under this limb, the argument put forward was that the right to go abroad was not integrally connected with the freedom of speech and expression, nor did it partake of the same basic nature and character and hence it was not included in the right of free speech and expression guaranteed under Article 19 (1) (a) and imposition of restriction on it did not involve violation of that Article. These were broadly the rival contentions urged on behalf of the parties and we shall now proceed to consider them.
- (A) Is freedom of speech and expression confined to the Territory of India?
Shall we expand its reach and ambit or curtail it? Shall we ignore the high and noble purpose of Part III conferring fundamental rights? Would we not be stultifying the fundamental right of free speech and expression by restricting it by territorial limitation? Moreover, it may be noted that only a short while before the Constitution was brought into force and whilst the constitutional debate was still going on, the Universal Declaration of Human Rights was adopted by the General Assembly of the United Nations on 10th December, 1948 and most of the fundamental rights which we find included in Part III were recognised and adopted by the United Nations as the inalienable rights of main in the Universal Declaration of Human Rights. Article 13 of the Universal Declaration declared that "every one has a right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek, receive and import information and ideas through any media and regardless of frontiers". (emphasis supplied). This was the glorious declaration of the fundamental freedom of speech and expression - noble in conception and universal in scope - which was before them when the constitution-makers enacted Article 19 (1) (a). We have, therefore, no doubt that freedom of speech and expression guaranteed by Article 19 (1) (a) is exercisable not only in India but also outside.
72. It is true that the right of free speech and expression enshrined in Article 19 (1) (a) can be enforced only if it is sought to be violated by any action of the State and since State action cannot have any extra territorial operation, except perhaps incidentally in case of Parliamentary legislation, it is only violation within the territory of India that can be complained of by an aggrieved person. But that does not mean that the right of free speech and expression is exercisable only in India and not outside. State action taken within the territory of India can prevent or restrict exercise of freedom of speech and expression outside India. What Article 19 (1) (a) does is to declare freedom of speech and expression as a fundamental right and to protect it against State action. The State cannot by any legislative or executive action interfere with the exercise of this right, except in so far as permissible under Article 19 (2). The State action would necessarily be taken in India but it may impair or restrict the exercise of this right elsewhere. Take for example a case where a journalist is prevented by a law or an executive order from sending his despatch abroad. The law or the executive order would operate on the journalist in India but what it would prevent him from doing is to exercise his freedom of speech and expression abroad. Today in the modern world with vastly developed science and technology and highly improved and sophisticated means of communication, a person may be able to exercise freedom of speech and expression abroad by doing something within the country and if this is prohibited or restricted, his freedom of speech and expression would certainly be impaired and Article 19 (1) (a) violated. Therefore, merely because State action is restricted to the territory of India, it does not necessarily follow that the right of free speech and expression is also limited in its operation to the territory of India and does not extend outside.
73. This thesis can also be substantiated by looking at the question from a slightly different point of view. It is obvious that the right of free speech and expression guaranteed under Article 19 (1) (a) can be subjected to restriction permissible under Article 19 (2). Such restriction, imposed by a statute or an order made under it, if within the limits provided in Article 19 (2), would clearly bind the citizen not only when he is within the country but also when he travels outside. Take for example a case where, either under the Passports Act, 1967 or as a condition in the Passport issued under it, an arbitrary, unreasonable and wholly unjustifiable restriction is placed upon the citizen that he may go abroad, but he should not make any speech there. This would plainly be a restriction which would interfere with his freedom of speech and expression outside the country, for, if valid, it would bind him wherever he may go. He would be entitled to say that such a restriction imposed by State action is impermissible under Article 19 (2)and is accordingly void as being violative of Article 19 (1) (a). It would thus seem clear that freedom of speech and expression guaranteed under Article 19 (1) (a) is exercisable not only inside the country, but also outside.
74. There is also another consideration, which leads to the same conclusion. The right to go abroad is, as held in Satwant Singh Sawhney's case, included in 'personal liberty' within the meaning of Article 21 and is thus a fundamental right protected by that Article. When the State issues a passport and grants endorsement for one country, but refuses for another, the person concerned can certainly go out of India but he is prevented from going to the country for which the endorsement is refused and his right to go to that country is taken away. This cannot be done by the State under Article 21 unless there is a law authorising the State to do so and the action is taken in accordance with the procedure prescribed by such law. The right to go abroad, and in particular to a specified country, is clearly a right to personal liberty exercisable outside India and yet it has been held in Satwant Singh Sawhney's case to be a fundamental right protected by Article 21. This clearly shows that there is no underlying principle in the Constitution, which limits the fundamental rights in their operation to the territory of India. If a fundamental right under Article 21 can be exercisable outside India, why can freedom of speech and expression conferred under Article 19 (1) (a) be not so exercisable?
75. This view which we are taking is completely in accord with the thinking on the subject in the United States. There the preponderance of opinion is that the protection of the Bill of Rights is available to United States citizens even in foreign countries. Vide Best v. United States, 184 Federal reporter (2d) 131. There is an interesting article on " The Constitutional Right to Travel" in 1956 Columbia Law Review where Leonard B. Boudin writes:
- "The final objection to limitations upon the right to travel is that they interfere with the individual's freedom of expression. Travel itself is such a freedom in the view of one scholarly jurist. But we need not go that far; it is enough that the freedom of speech includes the right of Americans to exercise it anywhere without the interference of their government. There are no geographical limitations to the Bill of Rights. A Government that sets up barriers to its citizens' freedom of expression in any country in the world violates the Constitution as much as if it enjoined such expression in the United States."
- (B). Is the right to go abroad covered by Article 19 (1) (a) or (g)?
77. We may begin the discussion of this question by first considering the nature and significance of the right to go abroad. It cannot be disputed that there must exist a basically free sphere for man, resulting from the nature and dignity of the human being as the bearer of the highest spiritual and moral values. This basic freedom of the human being is expressed at various levels and is reflected in various basic rights. Freedom to go abroad is one of such rights, for the nature of man as a free agent necessarily involves free movement on his part. There can be no doubt that if the purpose and the sense of the State is to protect personality and its development, as indeed it should be of any liberal democratic State, freedom to go abroad must be given its due place amongst the basic rights. This right is an important basic human right for it nourishes independent and self-determining creative character of the individual, not only by extending his freedom of action, but also by extending the scope of the experience. It is a right which gives intellectual and a creative workers in particular the opportunity of extending their spiritual and intellectual horizon through study at foreign universities, through contact with foreign colleagues and through participation in discussions and conferences. The right also extends to private life : marriage, family and friendship are humanities which can be rarely affected through refusal of freedom to go abroad and clearly show that this freedom is a genuine human right. Moreover, this freedom would be a highly valuable right where man finds himself obliged to flee (a) because he is unable to serve his God as he wished at the previous place of residence, (b) because his personal freedoms is threatened for reasons which do not constitute a crime in the usual meaning of the word and many were such cases during the emergency, or (c) because his life is threatened either for religious or political reasons or through the threat to the maintenance of minimum standard of living compatible with human dignity. These reasons suggest that freedom to go abroad incorporates the important function of an ultimum refunium liberatatis when other basic freedoms are refused. To quote the words of Mr. Justice Dougles in Kent v. Dulles, (1958)357 US 116 : 2 Law Ed 2d 1204 freedom to go abroad has much social value and represents a basic human right of great significance. It is in fact incorporated as an inalienable human right in Article 13 of the Universal Declaration of Human Rights. But it is not specifically named as a fundamental right in Article 19 (1). Does it mean that on that account it cannot be a fundamental right covered by Article 19 (1)?
78. Now, it may be pointed out at the outset that it is not our view that a right which is not specifically mentioned by name can never be a fundamental right within the meaning of Article 19 (1). It is possible that a right does not find express mention in any clause of Article 19 (1) and yet it may be covered by some clause of that Article. Take for example, by way of illustration, freedom of press. It is the most cherished and valued freedom in a democracy: indeed democracy cannot survive without a free press. Democracy is based essentially on free debate and open discussion, for that is the only corrective of governmental action in a democratic set up. If democracy means government of the people, by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential. Manifestly, free debate and open discussion, in the most comprehensive sense, is not possible unless there is a free and independent press. Indeed the true measure of the health and vigour of a democracy is always to be found in its press. Look at its newspapers - do they reflect divensity of opinions and views, do they contain expression of dissent and criticism against governmental policies and actions, or do they obsequiously sing the praises of the government or lionize or deify the ruler. The newspapers are an index of the true character of the Government - whether it is democratic or authoritarian. It was Mr. Justice Potter Stewart who said: "Without an informed and free press, there cannot be an enlightened people". Thus freedom of the press constitutes one of the pillars of democracy and indeed lies at the foundation of democratic organisation and yet it is not enumerated in so many terms as a fundamental right in Article 19 (1), though there is a view held by some constitutional jurists that this freedom is to basic and fundamental not to receive express mention in Part III of the Constitution. But it has been held by this Court in several decisions, of which we may mention only three, namely, Express Newspapers' case, Sakal Newspapers' case and Bennett Coleman and Co's case, that freedom of the press is part of the right of free speech and expression and is covered by Article 19 (1) (a). The reason is that freedom of the press is nothing but an aspect of freedom of speech and expression. It partakes of the same basic nature and character and is indeed an integral part of free speech and expression and perhaps it would not be incorrect to say that it is the same right applicable in relation to the press. So also, freedom of circulation is necessarily involved in freedom of speech and expression and is part of it and hence enjoys the protection of Article 19 (1) (a). Vide Romesh Thappar V. State of Madras, 1950 SCR 594. Similarly, the right to paint or sing or dance or to write poetry or literature is also covered by Article 19 (1) (a), because the common basic characteristic in all these activities is freedom of speech and expression, or to put it differently, each of these activities is an exercise of freedom of speech and expression. It would thus be seen that even if a right is not specifically named in Article 19 (1), it may still be a fundamental right covered by some clause of that Article, if it is an integral part of a named fundamental right or partakes of the same basic nature and character as that fundamental right. It is not enough that a right claimed by the petitioner flows or emanates from a named fundamental right or that its existence is necessary in order to make the exercise of the named fundamental right meaningful and effective.
Every activity which facilitates the exercise of a named fundamental right is not necessarily comprehended in that fundamental right nor can it be regarded as such merely because it may not be possible otherwise to effectively exercise that fundamental right. The contrary construction would lead to incongruous results and the entire scheme of Article 19 (1) which confers different rights and sanctions different restrictions according to different standards depending upon the nature of the right will be upset. What is necessary to be seen is, and that is the test which must be applied, whether the right claimed by the petitioner is an integral part of a named fundamental right or partakes of the same basic nature and character as the named fundamental right so that the exercise of such right is in reality and substance nothing but an instance of the exercise of the named fundamental right. If this be the correct test, as we apprehend it is, the right to go abroad cannot in all circumstances be regarded as in freedom of speech and expression. Mr. Justice Douglas said in Kent v. Dulles (1958) 357 US 116 : (2 Law Ed 2d 1204) that "Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values." And what the learned Judge said in regard to freedom of movement in his country holds good in our country as well. Freedom of movement has been a part of our ancient tradition which always upheld the dignity of man and saw in him the embodiment of the Divine. The Vedic seers knew no limitations either in the locomotion of the human body or in the flight of the soul to higher planes of consciousness. Even in the post-Upnishadic period, followed by the Buddhistic era and the early centuries after Christ, the people of this country went to foreign lands in pursuit of trade and business or in search of knowledge or with a view to shedding on others the light of knowledge imparted to them by their ancient sages and seers. India expanded outside her borders: her ships crossed the ocean and the fine superfluity of her wealth brimmed over to the east as well as to the west. Her cultural messengers and envoys spread her arts and epics South East Asia and her religions conquered China and Japan and other far Eastern countries and spread westward as far as Palestine and Alexendria. Even at the end of the last and the beginning of the present century, our people sailed across the seas to settle down in the African countries. Freedom of movement at home and abroad is a part of our heritage and, as already pointed out, it is a highly cherished right essential to the growth and development of the human personality and its importance cannot be over-emphasised. But it cannot be said to be art of the right of free speech and expression. It is not of the same basic nature and character as freedom of speech and expression. When a person goes abroad, he may do so for a variety of reasons and it may not necessarily and always be for exercise of freedom of speech and expression. Every travel abroad is not an exercise of right of free speech and expression and it would not be correct to say that whenever there is a restriction on the right to go abroad, ex necessitate it involves violation of freedom of speech and expression. It is no doubt true that going abroad may be necessary in a given case for exercise of freedom of speech and expression, but that does not make it an integral part of the right of free speech and expression. Every activity that may be necessary for exercise of freedom of speech and expression or that may facilitate such exercise or make it meaningful and effective cannot be elevated to the status of a fundamental right as if it were part of the fundamental right of free speech and expression. Otherwise, practically every activity would became part of some fundamental right or the other and the object of making certain rights only as fundamental rights with different permissible restrictions would be frustrated.
79. The petitioner, however, placed very strong reliance on certain decisions of the United States Supreme Court. The first was the decision in Kent v. Dulles (supra). The Supreme Court laid down in this case that the right to travel is guaranteed by the Fifth Amendment and held that the denial of passport by the Secretary of State was invalid because the Congress had not, under the Passports Act, 1926, authorised the Secretary of State to refuse passport on the ground of association with the communist party and refusal to file an affidavit relating to that affiliation and such legislation was necessary before the Secretary of State could refuse passport on those grounds. This decision was not concerned with the validity of any legislation regulating issue of passports nor did it recognise the right to travel as founded on the first Amendment which protects freedom of speech, petition and assembly. We fail to see how this decision can be of any help to the petitioner.
80. The second decision on which reliance was placed on behalf of the petitioner was Aptheker v. Secretary of State, (1964) 378 US 500 : (12 Law Ed 2d 992). The question which arose for determination in this case related to the constitutional validity of Section 6 of the Subversive Activities Control Act, 1950. This section prohibited the use of passports by communists following a final registration order by the Subversive Activities Control Board under Section 7 and following the mandate of this section, the State Department revoked the existing passports of the appellants. After exhausting all administrative remedies, the appellants sued for declarative and injunctive relief before the District Court which upheld the validity of the section. On direct appeal, the Supreme Court reversed the judgment by a majority of six against three and held the section to be invalid. The Supreme Court noted first that the right to travel abroad is an important aspect of the citizens' liberty guaranteed by the Due Process Clause of the Fifth Amendment and Section 6 substantially restricts that right and then proceeded to apply the strict standard of judicial review which it had till then applied only in cases involving the so-called preferred freedoms of the first Amendment, namely, that "a governmental purpose - may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms". The Supreme Court found on application of this test that the section was "overly broad and unconstitutional on its face" since it omitted any requirement that the individual should have knowledge of the organisational purpose to establish a communist totalitarian dictatorship and it made no attempt to relate the restriction on travel to the individual's purpose of the trip or to the security-sensitivity of the area to be visited. This decision again has no relevance to the present argument except for one observation made by the Court that "freedom of travel is a constitutional liberty closely related to rights of free speech and association". But this observation also cannot help because the right to foreign travel was held to be a right arising not out of the first Amendment but inferentially out of the liberty guaranteed in the Fifth Amendment and this observation was meant only to support the extension of the strict First Amendment test to a case involving the right to go abroad.
81. The last decision cited by the petitioner was Zemel v. Rusk, (1966)381 US 1 : 14 Law Ed 2d 179. This case raised the question whether the Secretary of State was statutorily authorised to refuse to validate the passports of United States citizens for travel to Cuba and if so, whether the exercise of such authority was constitutionally permissible. The Court, by a majority of six against three, held that the ban on travel to Cuba was authorised by the broad language of the Passport Act, 1926 and that such a restriction was constitutional. Chief Justice Warren speaking on behalf of the majority observed that having regard to administrative practice both before and after 1926, area restrictions were statutorily authorised and that necessitated consideration of Zemel's constitutional objections. The majority took the view that freedom of movement was right protected by the 'liberty' clause of the Fifth Amendment and that the Secretary of State was justified in attempting to avoid serious international incidents by restricting travel to Cuba and summarily rejected Zemel's contention that the passport denial infringed his First Amendment rights by preventing him from gathering first hand knowledge about Cuban situation. Kent v. Dulles ((1958) 357 US 116 : 2 Law Ed 2d 1204) and Apthekar v. Secretary of State ((1964) 378 US 500 : 12 Law Ed 2d 992) were distinguished on the ground that "the refusal to validate appellant's passport does not result from any expression or association on his part : appellant is not being forced to choose between membership of an organisation and freedom to travel". Justices Douglas, Goldberg and Black dissented in separate opinions. Since reliance was placed only on the opinion of Justice Douglas, we may confine our attention to that opinion. Justice Douglas followed the approach employed in Kent v. Dulles and refused to interpret the Passports Act, 1926 as permitting the Secretary of State to restrict travel to Cuba. While doing so, the learned Judge stressed the relationship of the right to travel to First Amendment rights. He pointed out: "The right to know, to converse with others, to consult with them, to observe social, physical, political and other phenomenons abroad as well as at home gives meaning and substance to freedom of expression and freedom of the press. Without those contacts First Amendment rights suffered, and added that freedom to travel abroad is a right "peripheral to the enjoyment of the First Amendment guarantees". He concluded by observing that "the right to travel is at the periphery of the First Amendment" and therefore "restrictions on the right to travel in times of peace should be so particularised that a First Amendment right is not thereby precluded". Now, obviously, the majority decision is of no help to the petitioner. The majority rightly pointed out that in Kent v. Dulles and Aptheker v. Secretary of State there was direct interference with freedom of association by refusal to validate the passport, since the appellant was required to give up membership of the organisation if he wanted validation of the passport. Such was not the case in Zemel v. Rusk and that is why, said the majority it was not First Amendment right which was involved. It appeared clearly to be the view of the majority that if the denial of passport directly affects a First Amendment right such as freedom of expression or association as in Kent v. Dulles and Aptheker v. Secretary of State, it would be constitutionally invalid. The majority did not accept the contention that the right to travel for gathering information is in itself a First Amendment right. Justice Douglas also did not regard the right to travel abroad as First Amendment right but held that it is peripheral to the enjoyment of First Amendment guarantees because it gives meaning and substance to the first Amendment rights and without it, these rights would suffer. That is why he observed towards the end that restrictions on the right to travel should be so particularised that a First Amendment right is not precluded or in other words there is no direct infringement of a First Amendment right.
If there is, the restrictions would be constitutionally invalid, but not otherwise. It is clear that Justice Douglas never meant to lay down that a right which is at the periphery of the First Amendment or to put it briefly. a peripheral right, is itself a guaranteed right under the first Amendment. The learned Judge did not hold the right to travel abroad to be a First Amendment right. Both according to the majority as also Justice Douglas, the question to be asked in each case is: is the restriction on the right to travel such that it directly interferes with a First Amendment right. And that is the same test which is applied by this Court in determining infringement of a fundamental right.
82. We cannot, therefore, accept the theory that a peripheral or concomitant right which facilitates the exercise of a named fundamental right or gives it meaning and substance or makes its exercise effective, is itself a guaranteed right included within the named fundamental right. This much is clear as a matter of plain construction, but apart from that. there is a decision of this Court which clearly and in so many terms supports this conclusion. That is the decision in All India Bank Employees' Association v. National Industrial Tribunal, (1962)3 SCR 269. The legislation which was challenged in that case was Section 34A of the Banking Companies Act and it was assailed as violative of Article 19 (1) (c). The effect of Section 34A was that no tribunal could compel the production and inspection of any books of account or other documents or require a bank to furnish or disclose any statement or information if the Banking Company claimed such documents or statement or information to be of a confidential nature relating to secret reserves or to provision for bad and doubtful debts. If a dispute was pending and a question was raised whether any amount from the reserves or other provisions should be taken into account by a tribunal, the tribunal could refer the matter to the Reserve Bank of India whose certificate as to the amount which could be taken into account, was made final and conclusive. Now, it was conceded that Section 34A did not prevent the workmen from forming unions or place any impediments in their doing so, but it was contended that the right to form association protected under Article 19 (1) (c) carried with it a guarantee that the association shall effectively achieve the purpose for which it was formed without interference by law except on grounds relevant to the preservation of public order or morality set out in Article 19 (4). In other words, the argument was that the freedom to form unions carried with it the concomitant right that such unions should be able to fulfill the object for which they were formed. This argument was negatived by a unanimous Bench of this Court. The Court said that unions were not restricted to workmen, that employers' unions may be formed in order to earn profit and that a guarantee for the effective functioning of the unions would lead to the conclusion that restrictions on their right to earn profit could be put only in the interests of public order or morality. Such a construction would run basically counter to the scheme of Article 19 and to the provisions of Article 19 (1) (c) and (6). The restrictions which could be imposed on the right to form an association were limited to restrictions in the interest of public order and morality. The restrictions which could be imposed on the right to carry on any trade, business, profession or calling were reasonable restrictions in the public interest and if the guarantee for the effective functioning of an association was a part of the right, then restrictions could not be imposed in the public interest on the business of an association. Again. an association of workmen may claim the right of collective bargaining and the right to put restrictions on that right in the public interest as is done by the Industrial Disputes Act, which restrictions would be permissible under Article 19 (6), but not under Article 19 (4). The Court, therefore, held that the right to form unions guaranteed by Article 19 (1) (c) does not carry with it a concomitant right that the unions so formed should be able to achieve the purpose for which they are brought into existence, so that any interference with such achievement by law would be unconstitutional unless the same could be justified under Article 19 (4).
83. The right to go abroad cannot, therefore be regarded as included in freedom of speech and expression guaranteed under Article 19 (1) (a) on the theory of peripheral or concomitant right. This theory has been firmly rejected in the All India Bank Employees' Association's case and we cannot countenance any attempt to revive it, as that would completely upset the scheme of Article 19 (1) and to quote the words of Rajagopala Ayyanger, J., speaking on behalf of the Court in All India Bank Employees' Association's case "by a series of ever expanding concentric circles in the shape of rights concomitant to concomitant rights and so on, lead to an almost grotesque result". So also, for the same reasons, the right to go abroad cannot be treated as part of the right to carry on trade business, profession or calling guaranteed under Article 19 (1) (g). The right to go abroad is clearly not a guaranteed right under any clause of Article 19 (1) and Section 10 (3) (c) which authorises imposition of restrictions on the rights to go abroad by impounding of passport cannot be held to be void as offending Article 19 (1) (a) or (g), as its direct and inevitable impact is on the right of free speech and expression or the right to carry on trade, business. profession or calling.
Constitutional Requirement of an order under Section 10 (3) (c)
84. But that does not mean that an order made under Section 10 (3) (c) may not violate Article 19 (1) (a) or (g). While discussing the constitutional validity of the impugned order impounding the passport of the petitioner, we shall have occasions to point out that even where a statutory provisions empowering an authority to take action is constitutionally valid, action taken under it may offend a fundamental right and in that event. though the statutory provision is valid, the action may be void. Therefore, even though Section 10 (3) (c) is valid, the question would always remain whether an order made under it is invalid as contravening a fundamental right. The direct and inevitable effect of an order impounding a passport may, in a given case, be to abridge or take away freedom of speech and expression or the right to carry on a profession and where such is the case, the order would be invalid, unless saved by Article 19 (2) or Article 19 (6). Take for example, a pilot with international flying licence. International flying is his profession and if his passport is impounded, it would directly interfere with his right to carry on his profession and unless the order can be justified on the ground of public interest under Article 19 (6), it would be void as offending Article 19 (1) (g). Another example may be taken of an evangelist who has made it a mission of his life to preach his faith to people all over the world and for that purpose, set up institutions in different countries. If an order is made impounding his passport, it would directly affect his freedom of speech and expression and the challenge to the validity of the order under Article 19 (1) (a) would be unanswerable unless it is saved by Article 19 (2). We have taken these two examples only by way of illustrations. There may be many such cases where the restriction imposed is apparently only on the right to go abroad but the direct and inevitable consequence is to interfere with the freedom of speech and expression or the right to carry on a profession. A musician may want to go abroad to sing, a dancer to dance, a visiting professor to teach and a scholar to participate in a conference or seminar. If in such a case his passport is denied or impounded, it would directly interfere with his freedom of speech and expression. If a correspondent of a newspaper is given a foreign assignment and he is refused passport or his passport is impounded. it would be direct interference with his freedom to carry on his profession. Examples can be multiplied, but the point of the matter is that though the right to go abroad is not a fundamental right, the denial of the right to go abroad may, in truth and in effect, restrict freedom of speech and expression or freedom to carry on a profession so as to contravene Article 19 (1) (a) or 19 (1) (g). In such a case, refusal or impounding of passport would be invalid unless it is justified under Article 19 (2) or Article 19 (6), as the case may be. Now, passport can be impounded under Section 10 (3) (c) if the Passport Authority deems it necessary so to do in the interests of the sovereignty and integrity of India. the security of India, friendly relations of India with any foreign country or in the interests of the general public. The first three categories are the same as those in Article 19 (2) and each of them, though separately mentioned, is a species within the broad genus of "interests of the general public." The expression "interests of the general public" is a wide expression which covers within its broad sweep all kinds of interests of the general public including interests of the sovereignty and integrity of India, security of India and friendly relations of India with foreign States. Therefore, when an order is made under Section 10 (3) (c), which is in conformity with the terms of that provision, it would be in the interests of the general public and even if it restricts freedom to carry on a profession, it would be protected by Article 19 (6). But if an order made under Section 10 (3) (c) restricts freedom of speech and expression, it would not be enough that it is made in the interests of the general public.
It must fall within the terms of Article 19 (2) in order to earn the protection of that Article. If it is made in the interests of the sovereignty and integrity of India or in the interests of friendly relation of India with any foreign country, it would satisfy the requirement of Article 19 (2). But if it is made for any interests of the general public save the interests of "public order, decency or morality," it would not enjoy the protection of Article 19 (2). There can be no doubt that the interests of public order, decency or morality are "interests of the general public" and they would be covered by Section 10 (3) (c), but the expression "interests of the general public" is, as already pointed out, a much wider expression and, therefore, in order that an order made under Section 10 (3) (c) restricting freedom of speech and expression, may not fall foul of Article 19 (1) (a), it is necessary that in relation to such order, the expression "interests of the general public" in Section 10 (3) (c) must be read down so as to be limited to interests of public order, decency or morality. If an order made under Section 10 (3) (c) restricts freedom of speech and expression, it must be made not in the interests of the general public in a wider sense, but in the interests of public order, decency or morality, apart from the other three categories, namely, interests of the sovereignty and integrity of India, the security of India and friendly relations of India with any foreign country. If the order cannot be shown to have been made in the interests of public order, decency or morality, it would not only contravene Article 19 (1) (a), but would also be outside the authority conferred by Section 10 (3) (c).
Constitutional Validity of the Impugned order:
85. We may now consider, in the light of this discussion, whether the impugned Order made by the Central Government impounding the passport of the petitioner under Section 10 (3) (c) suffers from any constitutional or legal infirmity. The first ground of attack against the validity of the impugned order was that it was made in contravention of the rule of natural justice embodied in the maxim audi alteram partem and was, therefore, null and void. We have already examined this ground while discussing the constitutional validity of Section 10 (3) (c) with reference to Article 21 and shown how the statement made by the learned Attorney General on behalf of the Government of India has cured the impugned order of the vice of non-compliance with the audi alteram partem rule. It is not necessary to say anything more about it. Another ground of challenge urged on behalf of the petitioner was that the impugned order has the effect of placing an unreasonable restriction on the right of free speech and expression guaranteed to the petitioner under Article 19 (1) (a) as also on the right to carry on the profession of a journalist conferred under Article 19 (1) (g). inasmuch as it seeks to impound the passport of the petitioner indefinitely, without any limit of time, on the mere likelihood of her being required in connection with the Commission of Inquiry headed by Mr. Justice J. C. Shah. It was not competent to the Central Government, it was argued, to express an opinion as to whether the petitioner is likely to be required in connection with the proceeding before the Commission of Inquiry. That would be a matter within the judgment of the Commission of Inquiry and it would be entirely for the Commission of Inquiry to decide whether or not her presence is necessary in the proceeding before it. The impugned order impounding the passport of the petitioner on the basis of a mere opinion by the Central Government that the petitioner is likely to be required in connection with the proceeding before the Commission of Inquiry was, in the circumstances, clearly unreasonable and hence violative of Article 19 (1) (a) and (g). This ground of challenge was vehemently pressed on behalf of the petitioner and supplemented on behalf of Adil Sahariar who intervened at the hearing of the writ petition, but we do not think there is any substance in it. It is true, and we must straightway concede it, that merely because a statutory provision empowering an authority to take action in specified circumstances is constitutionally valid as not being in conflict with any fundamental rights, it does not give a carte blanche to the authority to make any order it likes so long as it is within the parameters laid down by the statutory provision. Every order made under a statutory provision must not only be within the authority conferred by the statutory provision, but must also stand the test of fundamental rights. Parliament cannot be presumed to have intended to confer power on an authority to act in contravention of fundamental rights. It is a basic constitutional assumption underlying every statutory grant of power that the authority on which the power is conferred should act constitutionally and not in violation of any fundamental rights. This would seem to be elementary and no authority is necessary in support of it, but if any were needed, it may be found in the decision of this Court in Narendra Kumar v. The Union of India, (1960)2 SCR 375. The question which arose in that case was whether clauses (3) and (4) of the Non-ferrous Metal Control Order, 1958 made under Section 3 of the Essential Commodities Act, 1955 were constitutionally valid.
The argument urged on behalf of the petitioners was that these clauses imposed unreasonable restrictions on the fundamental rights guaranteed under Article 19 (1) (f) and (g) and in answer to this argument, apart from merits, a contention of a preliminary nature was advanced on behalf of the Government that "as the petitioners have not challenged the validity of the Essential Commodities Act and have admitted the power of the Central Government to make an order in exercise of the powers conferred by Section 3 of the Act, it is not open to the Court to consider whether the law made by the Government in making the Non-ferrous Metal Control Order ..... violates any of the fundamental rights under the Constitution". It was urged that so long as the order does not go beyond the provisions in Section 3 of the Act, it "must be held to be good and the consideration of any question of infringement of fundamental rights under the Constitution is wholly beside the point." This argument was characterised by Das Gupta J., speaking on behalf of the Court as "an extravagant argument" and it was said that "such an extravagant argument has merely to be mentioned to deserve rejection." The learned Judge proceeded to state the reasons for rejecting this argument in the following words (at p. 433 of AIR 1960 SC) :
- If there was any reason to think that Section 3 of the Act confers on the Central Government power to do anything which is in conflict with the Constitution - anything which violates any of the fundamental rights conferred by the Constitution. that fact alone would be sufficient and unassailable ground for holding that the section itself is void being ultra vires the Constitution. When, as in this case, no challenge is made that Section 3 of the Act is ultra vires the Constitution, it is on the assumption that the powers granted thereby do into violate the Constitution and do not empower the Central Government to do anything which the Constitution prohibits. It is fair and proper to presume that in passing this Act the Parliament could not possibly have intended the words used by it, viz. "may by order provide for regulating or prohibiting the production, supply and distribution thereof, and trade and commerce in," to include a power to make such provisions even though they may be in contravention of the Constitution. The fact that the words" in accordance with the provisions of the articles of the Constitution" are not used in the section is of no consequence. Such words have to be read by necessary implication in every provision and every law made by the Parliament on any day after the Constitution came into force. It is clear therefore that when Section 3 confers power to provide for regulation or prohibition of the production, supply and distribution of any essential commodity it gives such power to make any regulation or prohibition in so far as such regulation and prohibition do not violate any fundamental rights granted by the Constitution of India."
86. But we do not think that the impugned order in the present case violates either Article 19 (1) (a) or Article 19 (1) (g). What the impugned order does is to impound the passport of the petitioner and thereby prevent her from going abroad and at the date when the impugned order was made there is nothing to show that the petitioner was intending to go abroad for the purpose of exercising her freedom of speech and expression or her right to carry on her profession as a journalist. The direct and inevitable consequence of the impugned order was to impede the exercise of her right to go abroad and not to interfere with her freedom of speech and expression or her right to carry on her profession. But we must hasten to point out that if at any time in the future the petitioner wants to go abroad for the purpose of exercising her freedom of speech and expression or for carrying on her profession is a journalist and she applies to the Central Government to release the passport, the question would definitely arise whether the refusal to release or in other words, continuance of the impounding of the passport is in the interests of public order, decency or morality in the first case, and in the interests of general public in the second, and the restriction thus imposed is reasonable so as to come within the protection of Article 19 (2) or Article 19 (6). That is, however, not the question before us at present.
87. We may observe that if the impugned Order impounding the passport of the petitioner were violative of her right to freedom of speech and expression or her right to carry on her profession as a journalist. It would not be saved by Article 19 (2) or Article 19 (6), because the impounding of the passport for an indefinite length of time would clearly constitute an unreasonable restriction. The Union contended that though the period for which the impugned order was to operate was not specified in so many terms,it was clear that it was intended to be conterminous with the duration of the Commission of Inquiry, since the reason for impounding was that the presence of the petitioner was likely to be required in connection with the proceedings before the Commission of Inquiry being limited up to 31st December, 1977, the impounding of the passport could not continue beyond that date and hence it would not be said that the impugned Order was to operate for an indefinite period of time. Now,it is true that the passport of the petitioner was impounded on the ground that her presence was likely to be required in connection with the proceeding before the Commission of inquiry and the initial time limit fixed for the Commission of Inquiry to submit its report was 31st December, 1977, but the time limit could always be extended by the Government and the experience of several Commissions of Inquiry set up in this country over the last twenty-five years shows that hardly any Commission of Inquiry has been able to complete its report within the originally appointed time. Whatever might have been the expectation in regard to the duration of the Commission of Inquiry headed by Mr. Justice Shah at the time when the impugned Order was made, it is now clear that it has not been possible for it to complete its labours by 31st December, 1977 which was the time limit originally fixed and in fact its term has been extended up to 31st May, 1978. The period for which the passport is impounded cannot, in the circumstances, be said to be definite and certain and it may extend to an indefinite point of time. This would clearly make the impugned order unreasonable and the learned Attorney General appearing on behalf of the Central Government, therefore, made a statement that in case the decision to impound the passport of the petitioner is confirmed by the Central Government after hearing the petitioner, "the duration of the impounding will not exceed a period of six months from the date of the decision that may be taken on the petitioner's representation". It must be said in fairness to the Central Government that this was a very reasonable stand to adopt, because Inca democratic society governed by the rule of law, it is expected of the Government that it should act not only constitutionally and legally but also fairly and justly towards the citizen. We hope and trust that in future also whenever the passport of any person is impounded under Section 10 (3) (c), the impounding would be for a specified period of time which is not unreasobaly long, even though no contravention of any fundamental right may be involved.
88. The last argument that the impugned Order could not, consistently with Article 19 (1) (a) and (g), be based on a mere opinion of the Central Government that the presence of the petitioner is likely to be required in connection with the proceeding before the Commission of Inquiry is also without force. It is true that ultimately it is for the Commission of Inquiry to decide whether the presence of the petitioner is required in order to assist it in its fact finding mission, but the Central Government which has constituted the Commission of Inquiry and laid down its terms of reference would certainly be able to say with reasonable anticipation whether she is likely to be required by the Commission of Inquiry. Whether she is actually required would be for the Commission of Inquiry to decide, but whether she is likely to be required can certainly be judged by the Central Government. When the Central Government appoints a commission of Inquiry, it does not act in a vacuum. It is bound to have some material before it on the basis of which it comes to a decision that there is a definite matter of public importance which needs to be inquired into and appoints a Commission of Inquiry for that purpose. The Central Government would, therefore, be in a position to say whether the petitioner is likely to be required in connection with the proceeding before the Commission of Inquiry. It is possible that ultimately when the Commission of Inquiry proceeds further with the probe, it may find that the presence of the petitioner is not required, but before that it would only be in the stage of likelihood and that can legitimately be left to the judgment of the Central Government. The validity of the impugned Order cannot, therefore, be assailed on this ground and the challenge based on Article 19 (1) (a) and(g) must fail.
Whether the impugned Order is intra vires Section 10 (3) (c)?
89. The last question which remains to be considered is whether the impugned Order is within the authority conferred by Section 10 (3) (c). The impugned Order is plainly, on the face of it, purported to be made in public interest, i.e. in the interest of the general public, and therefore, its validity must be judged on that footing. Now it is obvious that on a plain natural construction of Section 10 (3) (c), it is left to the Passport Authority to determine whether it is necessary to impound a passport in the interests of the general public. But an order made by the Passport Authority impounding a passport is subject to judicial review on the ground that the order is mala fide, or that the reasons for making the order are extraneous or they have no relevance to the interests of the general public or they cannot in possibly support the making of the order in the interests of the general public. It was not disputed on behalf of the Union, and indeed it would not be in view of Section 10 sub-section (5) that. save in certain exceptional cases, of which this was admittedly not one, the Passport Authority is bound to give reasons for making an order impounding a passport and though in the present case. the Central Government initially declined to give reasons claiming that it was not in the interests of the general public to do so, it realised the utter untenability of this position when it came to file the affidavit in reply and disclosed the reasons which were recorded at the time when the impugned order was passed. These reasons were that, according to the Central Government the petitioner was involved in matters coming within the purview of the Commissions of Inquiry constituted by the Government of India to inquire into excesses committed during the emergency and in respect of matters concerning Maruti and its associate companies and the Central Government was of the view that the petitioner should be available in India to give evidence before these Commissions of Inquiry and she should have an opportunity to present her views before them and according to a report received by the Central Government on that day, there was likelihood of her leaving India. The argument of the petitioner was that these reasons did not justify the making of the impugned Order in the interests of the general public, since these reasons had no reasonable nexus with the interests of the general public within the meaning of that expression as used in Section 10 (3) (c). The petitioner contended that the expression "interests of the general public" must be construed in the context of the perspective of the statute and since the power to issue a passport is a power related to foreign affairs. the "interests of the general public" must be understood as referable only to a matter having some nexus with foreign affairs and it could not be given a wider meaning. So read, the expression "interests of the general public" could not cover a situation where the presence of a person is required to give evidence before a Commission of Inquiry. This argument is plainly erroneous as it seeks to cut down the width and amplitude of the expression "interests of the general public," an expression which has a well recognised legal connotation and which is to be found in Article 19 (5) as well as Article 19 (6). It is true, as pointed out by this Court in Rohtas Industries Ltd. v. S. D. Agarwal (1969) 3 SCR 108 at p. 128. that "there is always a perspective within which a statute is intended to operate," but that does not justify reading of a statutory provision in a manner not warranted by its language or narrowing down its scope and meaning by introducing a limitation which has no basis either in the language or in the context of the statutory provision. Moreover, it is evident from clauses (d), (e) and (h) of Section 10 (3) that there are several grounds in this section which do not relate to foreign affairs. Hence we do not think the petitioner is justified in seeking to limit the expression "interests of the general public" to matters relating to foreign affairs.
90. The petitioner then contended that the requirement that she should be available for giving evidence before the Commissions of Inquiry did not warrant the making of the impugned Order "in the interests of the general public". Section 10 (3), according to the petitioner, contained clauses (e) and (h) dealing specifically with cases where a person is required in connection with a legal proceeding and the enactment of these two specific provisions clearly indicated the legislative intent that the general power in Section 10 (3) (c) under the ground "interests of the general public" was not meant to be exercised for impounding a passport in cases where a person is required in connection with a legal proceeding. The Central Government was, therefore, not entitled to resort to this general power under Section 10 (3) (c) for the purpose of impounding the passport of the petitioner on the ground that she was required to give evidence before the Commissions of Inquiry. The power to impound the passport of the petitioner in such a case was either to be found in Section 10(3) (h) or it did not exist at all. This argument is also unsustainable and must be rejected. It seeks to rely on the maxim expression unius exclusio ulterius and proceeds on the basis that clauses (e) and (h) of Section 10 (3) are exhaustive of cases where a person is required in connection with a proceeding, whether before a court or a Commission of Inquiry and no resort can be had to the general power under Section 10 (3) (c) in cases where a person is required in connection with a proceeding before a Commission of Inquiry. But it must be noted that this is not a case where the maxim expression unius exclusio ulterius has any application at all. Section 10(3) (e) deals with a case where proceedings are pending before a criminal court while Section (3) (h) contemplates a situation where a warrant or summons for the appearance or warrant for the arrest, of the holder of a passport has been issued by a court or an order prohibiting the departure from India of the holder of the passport has been made by any such court. Neither of these two provisions deals with a case where a proceeding is pending before a Commission of Inquiry and the Commission has not yet issued a summons or warrant for the attendance of the holder of the passport. We may assume for the purpose of argument that a Commission of Inquiry is a 'court' for the purpose of Section 10 (3) (h), but even so, a case of this kind would not be covered by Section 10 (3) (h), and Section 10 (3) (e) would in any case not have application. Such a case would clearly fall within the general power under Section 10 (3) (c) if it can be shown that the requirement of the holder of the passport in connection with the proceeding before the Commission of Inquiry is in the interests of the general public. It is, of course, open tote Central Government to apply to the Commission of Inquiry for issuing a summons or warrant, as the case may be, for the attendance of the holder of the passport before the Commission and if a summons or warrant is so issued, it is possible that the Central Government may be entitled to impound the passport under Section 10 (3) (h). But that does not mean that before the stage of issuing a summons or warrant has arrived, the Central Government cannot impound the passport of a person, if otherwise it can be shown to be in the interest of the general public to do so. Section 10 (3) (e) and (h) deals only with two specific kinds of situations, but there may be a myriad other situations, not possible to anticipate or categorise, where public interests may require that the passport should be impounded and such situations would be taken care of under the general provision enacted in Section 10 (3) (c).
It is true that this is a rather drastic power to interfere with a basic human right, but it must be remembered that this power has been conferred by the legislature in public interest and we have no doubt that it will be sparingly used and that too, with great care and circumspection and as far as possible, the passport of a person will not be impounded merely on the ground of his being required in connection with a proceeding, unless the case is brought within Section 10 (3) (e) or Section 10 (3) (h). We may echo the sentiment in Lord Denning's closing remarks in Ghani v. Jones (1970) 1 QB 693 where the learned Master of the Rolls said: "A man's liberty of movement is regarded so highly by the law of England that it is not to be hindered or prevented except on the severest grounds." This liberty is prized equally high in our country and we are sure that a Government committed to basic human values will respect it.
91. We must also deal with one other contention of the petitioner, though we must confers that it was a little difficult for us to appreciate it. The petitioner urged that in order that a passport may be impounded under Section 10 (3) (c), public interest must actually exist in praesanti and mere likelihood of public interest arising in future would be no ground for impounding a passport. We entirely agree with the petitioner that an order impounding a passport can be made by the Passport Authority only if it is actually in the interests of the general public to do so and it is not enough that the interests of the general public may be likely to be served in future by the making of the order. But here in the present case, it was not merely on the future likelihood of the interests of the general public being advanced that the impugned order was made by the Central Government. The impugned Order was made because, in the opinion of the Central Government, the presence of the petitioner was necessary for giving evidence before the Commissions of Inquiry and according to the report received by the Central Government, she was likely to leave India and that might frustrate or impede to some extent the inquiries which were being conducted by the Commissions of Inquiry.
92. Then it was contended on behalf of the petitioner that the Minister for External Affairs who made the impugned order on behalf of the Central Government, did not apply his mind and hence the impugned order was bad. We find no basis or justification for this contention. It has been stated in the affidavit in reply that the Minister for External Affairs applied his mind to the relevant material and also to the confidential information received from the intelligence sources that there was likelihood of the petitioner attempting to leave the country and then only he made the impugned order. In fact, the Ministry of Home Affairs had forwarded to the Ministry of External Affairs as far back as 9 to May, 1977 a list of persons whose presence, in view of their involvement or connection or position or past antecedents, was likely to be required in connection with inquiries to be carried out by the Commission of Inquiry and the name of the petitioner was included in this list. The Home Ministry had also intimated to the Ministry of External Affairs that since the inquiries were being held by the Commissions of Inquiry in public interest, consideration of public interest would justify recourse to Section 10 (3) (c) for impounding the passports of the persons mentioned in this list. This note of the Ministry of Home Affairs was considered by the Minister for External Affairs and despite the suggestion made in this note, the passports of only eleven persons, out of those mentioned in the list, were ordered to be impounded and no action was taken in regard to the passport of the petitioner. It is only on 1st July, 1977 when the Minister for External Affairs received confidential information that the petitioner was likely to attempt to leave the country that, after applying his mind to the relevant material and taking into account this confidential information, he made the impugned Order. It is, therefore, not possible to say that the Minister for External Affairs did not apply his mind and mechanically made the impugned Order.
93. The petitioner lastly contended that it was not correct to say that the petitioner was likely to be required for giving evidence before the Commissions of Inquiry. The petitioner, it was said, had nothing to do with any emergency excesses nor was she connected in any manner with Maruti or its associate concerns, and, therefore, she could not possibly have any evidence to give before the Commissions of Inquiry. But this is not a matter which the court can be called upon to investigate. It is not for the court to decide whether the presence of the petitioner is likely to be required for giving evidence before the Commissions of Inquiry. The Government, which has instituted the Commissions of Inquiry. would be best in a position to know, having regard to the material before it, whether the presence of the petitioner is likely to be required. It may be that her presence may ultimately not be required at all, but at the present stage, the question is only whether her presence is likely to be required and so far that is concerned, we do not think that the view taken by the Government can be regarded as so unreasonable or perverse that we would strike down the impugned Order based upon it as an arbitrary exercise of power.
94. We do not, therefore, see any reason to interfere with the impugned order made by the Central Government. We, however, wish to utter a word of caution to the Passport Authority while exercising the power of refusing or impounding or canceling a passport. The Passport Authority would do well to remember that it is a basic human right recognised in Article 13 of the Universal Declaration of Human Rights with which the Passport Authority is interfering when it refuses or impounds or cancels a passport. It is a highly valuable right which is a part of personal liberty, an aspect of the spiritual dimension of man, and it should not be lightly interfered with. Cases are not unknown where people have not been allowed to go abroad because of the views held, opinions expressed or political beliefs or economic ideologies entertained by them. It is hoped that such cases will not recur under a Government constitutionally committed to uphold freedom and liberty but it is well to remember, at all times, that eternal vigilance is the price of liberty, for history shows that it is always subtle and insidious encroachment made ostensibly for a good cause that imperceptibly but surely corrode the foundations of liberty.
95. In view of the statement made by the learned Attorney General to which reference has already been made in the judgment we do not think it necessary to formally interfere with the impugned order. We, accordingly, dispose of the Writ Petition without passing any formal order. There will be no order as to costs.
96. Krishna Iyer, J. (Majority view):-. My concurrence with the argumentation and conclusion contained in the judgment of my learned brother Bhagwati J. is sufficient to regard this supplementary, in one sense, a mere redundancy. But in another sense not, where the vires of a law, which arms the Central Executive with wide powers of potentially imperiling some of the life-giving liberties of the people in a pluralist system like ours, is under challenge; and more so, when the ground is virgin, and the subject is of growing importance to more numbers as Indians acquire habits of trans-national travel and realise the fruits of foreign tours, reviving in modern terms, what our forefathers effectively did not put Bharat on the cosmic cultural and commercial map. India is India because Indians, our ancients, had journeyed through the wide world for commerce, spiritual and material, regardless of physical or mental frontiers. And when this precious heritage of free trade in ideas and goods, association and expression, migration and home-coming, now crystallised in Fundamental Human Rights, is alleged to be hamstrung by hubristic authority, my sensitivity lifts the veil of silence. Such is my justification for breaking judicial lock-jaw to express sharply the juristic perspective and philosophy behind the practical necessities and possible dangers that society and citizenry may face if the clause of our Constitution are not bestirred into court action when a charge of unjustified handcuffs on free speech and unreasonable fetters on right of exit is made through the executive power of passport impoundment. Even so, in my separate opinion, I propose only to paint the back-drop with a broad brush, project the high points with bold lines and touch up the portrait drawn so well by brother Bhagwati J. if I may colourfully, yet respectfully, endorse his judgment.
97. Remember, even democracies have experienced executive lawlessness and eclipse of liberty on the one hand and 'subversive' use of freedoms by tycoons and saboteurs on the other, and then the summons to judges comes from the Constitution, overriding the necessary deference to government and seeing in perspective, and overseeing in effective operation the enjoyment of the 'great rights'. This Court lays down the law not pro tempore but lastingly.
98. Before us is a legislation regulating travel abroad. Is it void in part or over-wide in terms? 'Lawful' illegality becomes the rule, if 'lawless' legislation be not removed. In our jural order, if a statute is void, must the Constitution and its sentinels sit by silently, or should the lines of legality be declared with clarity so that adherence to valid norms becomes easy and precise?
99. We are directly concerned, as fully brought out in Shri Justice Bhagwati's judgment, with the indefinite immobilisation of the petitioner's passport, the reason for the action being strangely veiled from the victim and the right to voice an answer being suspiciously withheld from her, the surprising secrecy being labeled, 'public interest'. Paper curtains wear ill on good governments. And, cutely to hide one's grounds under colour of statute, is too sphinx-like an art for an open society and popular regime. As we saw the reasons which the learned Attorney General so unhesitatingly disclosed, the question arises: 'wherefore are these things hid?'. The catch-all expression 'public interest' is sometimes the easy temptation to cover up from the public when they have a right to know, which appeals in the short run but avenges in the long run. Since the only passport to this Court's jurisdiction in this branch of passport law is the breach of a basic freedom, what is the nexus between a passport and a Part III right? What are the ambience and amplitude, the desired effect and direct object of the key provisions of the Passports Act, 1967? Do they crib or cut down unconstitutionally, any of the guarantees under Articles 21, 19 and 14? Is the impugned Section 10, especially Section 10 (3) (c), capable of circumscription to make it accord with the Constitution? Is any part ultra vires, and why? Finally, granting the Act to be good, is the impounding order bad? Such, in the Write Petition, is the range of issues regaled at the bar, profound, far-reaching, animated by comparative scholarship and fertilised by decisional erudition. The frontiers and funeral of freedom, the necessities and stresses of national integrity, security and sovereignty, the interests of the general public, public order and the like figure on occasions as forensic issues. And, in such situations, the contentious quiet of the court is the storm-center of the nation. Verily, while hard cases tend to make bad cases tend to blur great law and courts must beware.
100. The center of the stage in a legal debate on life and liberty must ordinarily be occupied by Article 21 of our Paramount Parchment which, with emphatic brevity and accent on legality, states the mandate thus:
- "21. Protection of life and personal liberty,- No person shall be deprived of his life or personal liberty except according to procedure established by law." Micro-phrases used in National charters spread into macro-meanings with the lambent light of basic law. For our purposes, the key concepts are 'personal liberty' and 'procedure established by law'. Let us grasp the permissible restraints on personal liberty,one of the facets of which is the right of exit beyond one's country. The sublime sweep of the subject of personal liberty must come within our ken if we are to do justice to the constitutional limitations which may, legitimately, be imposed on its exercise. Speaking briefly, the architects of our Founding Document, (and their fore-runners) many of whom were front-line fighters for national freedom, were lofty humanists who were profoundly spiritual and deeply secular, enriched by vintage values and revolutionary urges and, above all, experientially conscious of the deadening impact of the colonial screening of Indians going abroad and historically sensitive to the struggle for liberation being wage from foreign lands. And their testament is our asset.
102. Indeed, viewing the subject from the angle of geo-cultural and legal anthropology and current and history, freedom of movement and its off-shoot - the institution of passport- have been there through the Hellenic, Roman, Israelite, Chinese, Persian and other civilisations. Socrates,in his dialogue with Crito, spoke of personal liberty. He regarded the right of everyone to leave his country as an attribute of personal liberty. He made the laws speak thus:
- "We further proclaim to any Athenian by the liberty which we allow him, that if he does not like us when he has become of age and has seen the ways of the city, and made our acquaintance, he may go where he please and take his goods with him. None of our laws will forbid him, or interfere with him. Anyone who does not like us and the city, and who wants to emigrate to a colony or to any other city may go where he likes, retaining his property."
- (Plato, Dialogues)
- "Let me first define my terms. By personal freedom I mean the freedom of every law-abiding citizen to think what he will, to say what he will, and to go where he will on his lawful occasions without let or hindrance from any other persons. Despite all the great changes that have come about in the other freedoms, this freedom has in our country remained intact......."
- "The freedom of movement is the very essence of our free society, setting us apart. Like the right of assembly and the right of association, it often makes all other rights meaningful - knowing, studying, arguing, exploring, conversing, observing and even thinking. Once the right to travel is curtailed, all other rights suffer, just as when curfew or home detention is placed, on a person.
- America is of course sovereign, but her sovereignty is woven in an inter-national web that makes her one of the family of nations. The ties with all the continent os are close - commercially as well as culturally. Our concerns are planetary beyond sunrises and sunsets. Citizenship implicates us in those problems and paraplexities, as well as in domestic ones. We cannot exercise and enjoy citizenship in world perspective without the right to travel abroad."
- "In our opinion, the language used in the Article ( Article 21) also indicates that the expression 'personal liberty' is not confined only to freedom from physical restraint, i.e. but includes a full range of conduct which an individual is free to pursue within law, for instance, eat and drink what he likes mix with people whom he likes, read what he likes, sleep when and as long as he likes, travel wherever he likes, go wherever he likes, follow profession, vocation or business he likes, of course, in the manner and to the extent permitted by law." (p. 240)
- "It is preposterous to say that Dr. Conant can exercise some sort of censorship on persons whom he wishes or does not wish to come to the country to which he is accredited. This has never been held to be the function of an Ambassador."
- (p. 275, 20 Clav. St. L. R. 2 May 1971)
- "Senator Joseph Macarthy once said on the floor of the Senate, "I will not say that Earl Warren is a Communist, but I will say he is the best friend of Communism in the United States."
105. Likewise, the Establishment, in many countries has used the passport and visa system as potent paper curtain to inhibit illustrious writers, outstanding statesmen, humanist churchmen and renowned scientists, if they are dissenters, from leaving their national frontiers. Absent forensic sentinels, it is not unusual for people to be suppressed by power in the name of the people. The politics of passports has often tried to bend the jurisprudence of personal locomotion to serve its interests. The twilight of liberty must affect the thought-ways of judges.
106. Things have changed, global awareness, in grey hues, has dawned. The European Convention on Human Rights and bilateral understandings have made headway to widen freedom of travel abroad as integral to liberty of the person (Fourth Protocol). And the Universal Declaration of Human Rights has proclaimed in Article 13:
- "(1) Everyone has the right to freedom of movement and residence within the borders of each State.
- (2) Everyone has the right to leave any country, including his own, and to return to his country."
107. Viewed from another angle, travel abroad is a cultural enrichment, which enables one's understanding of one's own country in better light. Thus it serves national interest to have its citizenry see other countries and judge one's country on a comparative scale. Rudyard Kipling, though with an imperial ring, has aptly said:
- "Winds of the World, give answer
- They are whimpering to and fro
- And what should they know of England
- who only England know ?"
- (The English Flag)
109. The Indian panorama from the migrant yore to tourist flow is an expression of the will to explore the Infinite, to promote understanding of the universe, to export human expertise and development of every resource. Thus humble pride of patriotic heritage would have been pre-emptied had the ancient kings and medieval rulers banished foreign travel as our imperial masters nearly did. And to look at the little letters of the text of Part III de hors the Discovery of India and the Destiny of Bharat or the divinity of the soul and the dignity of the person highlighted in the Preamble unduly obsessed with individual aberrations of yesteryears or vague hunches leading to current fears, is a persilanimous (sic) exercise in constitutional perception.
110. Thus, the inspirational back-ground, cosmic perspective and inherited ethos of the pragmatic visionaries and jurist-statesmen who drew up the great Title Deed of our Republic must illumine the sutras of Articles 21, 19 and 14. The fascist horror of World Ward II burnt into our leaders the urgency of inscribing indelibly into our Constitution those values sans which the dignity of man suffers total eclipse. The Universal Declaration of Human Rights, the resurgence of international fellowship, the vulnerability of freedoms even in democracies and the rapid development of an integrated and intimately inter-acting 'one world' poised for peaceful and progressive intercourse conditioned their thought processes. The bitter feeling of the British Raj trampling under foot swaraj - the birthright of every Indian - affected their celebrations. The hidden divinity in every human entity creatively impacted upon our founding fathers' mentations. The mystic chords of ancient memory and the modern strands of the earth's indivisibility, the pathology of provincialism, feudal backwardness, glaring inequality and bleeding communalism, the promotion of tourism, of giving and taking know-how, of studying abroad and inviting scholars from afar - these and other realistic considerations gave tongue to those hallowed human rights fortified by the impregnable provisions of Part III. Swami Vivekananda, that saintly revolutionary who spanned East and West, exhorted, dwelling on the nation's fall of the last century:
- "My idea as to the key-note of our national downfall is that we do not mix with other nations - that is the one and sole cause. We never had the opportunity to compare notes. We were Kupamandukas (frogs in a well)."
- x x x x
- "One of the great causes of India's misery and downfall has been that she narrowed herself, went into her shell, as the oyster does, and refused to give her jewels and her treasures to the other races of mankind, refused to give the life giving truth to thirsting nations outside the Aryan fold. That has been the one great cause, that we did not go out, that we did not compare notes with other nations - that has been the one great cause of our downfall, and every one of you knows that that little stir, the little life you see in India, begins from the day when Raja Rammohan Roy broke through the walls of this exclusiveness. Since that day, history of India has taken another turn and now it is growing with accelerated motion. If we have had little rivulets in the past, deluges are coming, and none can resist them. Therefore, we must go out, and the secret of life is to give and take. Are we to take always, to sit at the feet of the westerners to learn everything, even religion. We can learn mechanism from them. We can learn many other things. But we have to teach them something........... Therefore we must go out, exchange our spirituality for anything they have to give us; for the marvels of the region of spirit we will exchange the marvels of the region of matter........ There cannot be friendship without equality, and there cannot be equality when one party is always the teacher and the other party sits always at his feet................ If you want to become equal with the Englishman or the American, you will have to teach as well as to learn, and you have plenty yet to teach to the world for centuries to come."
112. Among the great guaranteed rights, life and liberty are the first among equals, carrying a universal connotation cardinal to a decent human order and protected by constitutional armour. Truncate liberty in Article 21 traumatically and the several other freedoms fade out automatically. Justice Douglas, that most distinguished and perhaps most traveled judge in the world, has in poetic prose and with imaginative realism projected the functional essentiality of the right to travel as part of liberty. I may quote for emphasis, what is a wee bit repetitive:
- "The right to travel is a part of 'liberty' of which the citizen cannot be deprived without due process of law under the fifty Amendment............... In Anglo Saxon law that right was emerging at least as early as the Magna Carta................ Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values."
- (Kent v. Dulles, 357 US 116 : 2 Law Ed 2d 1204, 1958)
- "Freedom of movement also has large social values. As Chafee put it: 'Foreign correspondents and lecturers on public affairs need first-hand information. Scientists and scholars gain greatly from consultations with colleges in other countries. Students equip themselves for more fruitful careers in the United States by instruction in foreign universities. Then there are reasons close to the core of personal life - marriage, reuniting families, spending hours with old friends. Finally travel abroad enables American citizens to understand that people like themselves live a Europe and helps them to be well-informed on public issues. An American who has crossed the ocean is not obliged to form his opinions about our foreign policy merely from what he is told by officials of our Government or by a few correspondents of numerical newspapers. Moreover, his views on domestic questions are enriched by seeing how foreigners are trying to solve similar problems. In many different ways direct contact with other countries contributes to sounder decisions at home............... Freedom to travel is, indeed, an important aspect of the citizen's 'liberty'." (Kent v. Dulles), ((1958) 357 US 116 : 2 Law Ed 2d 1204):
- "Freedom of movement at home and abroad, is important for job and business opportunities - for cultural, political, and social activities - for all the commingling which gregarious man enjoys. Those with the right of free movement use it at times for mischievous purposes. But that is true of many liberties we enjoy. We nevertheless place our faith in them and against restraint, knowing that the risk of abusing liberty so as to give right of punishable conduct is part of the price we pay for this free society.
- (Apthekar v. Secretary of State, (1964)378 US 500 : 12 Law Ed 2d 992).
- "This travel does not differ from any other exercise of the manifold freedoms of expression.............. from the right to speak, to write, to use the mails, to public. to assemble, to petition."
- (Wyzanski, Freedom to Travel Atlantic Montaly. Oct. 1952 p. 66 at 68).
- "Personal liberty consists in the power of locomotion, of changing direction or moving one's person to whatever place one's own inclination may desire."
115. While the issue is legal and sounds in the constitutional, its appreciation gains in human depth given a planetary perspective and understanding of the expanding range of travel between the 'inner space' of Man and the 'outer space' around Mother Earth.
116. To conclude this Chapter of the discussion on the concept of personal liberty, as a sweeping supplement to the specific treatment by brother Bhagwati J., the Jurists' Conference in Bangalore, concluded in 1969, made a sound statement of the Indian Law subject, of course, to savings and exceptions carved out of the generality of that conclusion.
- "Freedom of movement of the individual within or in leaving his own country, in traveling to other countries and in entering his own country is a vital human liberty, whether such movement is for the purpose of recreation education, trade or employment, or to escape from an environment in which his other liberties are suppressed or threatened. Moreover, in an inter-dependent world requiring for its future peace and progress an over-growing measure of international understanding, it is desirable to facilitate individual contacts between peoples and to remove all unjustifiable restraints on their movement which may hamper such contacts."
118. If Article 21 includes the freedom of foreign travel, can its exercise be fettered or forbidden by procedure established by law ? Yes, indeed. So, what is 'procedure'? what do we mean by 'established' ? And what is law? Anything, formal, legislatively proceeded, albeit absurd or arbitrary? Reverence for life and liberty must overpower this reductio and absurdem, 'Legal interpretation, in the last analysis, is value judgment. The high seriousness of the subject matter - life and liberty - desiderates the need for law, not fiat. Law is law when it is legitimated by the conscience and consent of the community generally. Not any capricious command but reasonable mode ordinarily regarded by the cream of society as dharma or law, approximating broadly to other standard measures regulating criminal or like procedure in the country. Often it is a legislative act, but it must be functional, not fatuous.
119. This line of logic alone will make the two clauses of Article 21 concordant, the procedural machinery not destroying the substantive fundamentally. The compulsion of constitutional humanism and the assumption of full faith in life and liberty cannot be so futile or fragmentary that any transient legislative majority in tantrums against any minority by three quick reading of a bill with the requisite quorum, can prescribe any unreasonable modality and thereby sterilise the grandiloquent mandate. 'Procedure established by law,' civilised in its soul, fair in its heart and fixing those imperatives of procedural protection absent which the processual tail will wag the substantive head. Can the sacred essence of the human right to secure which the struggle for liberation, with 'do or die' patriotism, was launched be sapped by formalistic and pharisaic prescriptions, regardless of essential standards? An enacted apparition is a constitutional illusion. Processual justice is writ patently on Article 21. It is too grave to be circumvented by a black letter ritual processed through the legislature.
120. So I am convinced that to frustrate Article 21 by relying on any formal adjectival statute, however flimsy or fantastic its provisions be, is to rob what the constitution treasures. Procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert the substantive right itself. Thus understood, 'procedure' must rule out anything arbitrary, freakish or bizarre. A valuable constitutional right can be canalised only be civilised processes. You cannot claim that it is a legal procedure if the passport is granted or refused by taking loss, ordeal of fire or by other strange or mystical methods. Nor is it tenable if life is taken by a crude or summary process of enquiry. What is fundamental is life and liberty. What is procedural is the manner of its exercise. This quality of fairness in the process in emphasised by the strong word 'established' which means 'settled firmly' not wantonly or whimsically. If it is rooted in the legal consciousness of the community it becomes, 'established' procedure. And 'Law' leaves little doubt that it is normal regarded as just since law is the means and justice is the end.
121. Is there supportive judicial thought for this reasoning. We go back to the vintage words of the learned Judges in A. K. Gopalan case and zigzag through R. C. Cooper to S. N. Sarkar case and discern attestation of this conclusion. And the elaborate constitutional procedure in Article 22 itself fortifies the argument that 'list and liberty' in Article 21 could not have been left to illusory legislatorial happenstance. Even as relevant reasonableness informs Articles 14 and 19, the component of fairness is implicit in Article 21. A close-up of the Gopalan case is necessitous at this stage to underscore the quality of procedure relevant to personal liberty.
122. Procedural safeguards are the indispensable essence of liberty. In fact, the history of personal liberty is large the history of procedural safeguards and right to a hearing has a human-right ring. In India, because of poverty and illiteracy, the people are unable to protect and defend there rights: observance of fundamental rights is not regarded as good politics and their transgression as bad politics. I sometimes pensively reflect that people's militant awareness rights and duties is a surer constitutional assurance of governmental respect and response than the sound and fury of 'question hour' and the slow and unsure delivery of court writ 'Community Consciousness and the Indian Constitution' is a fascinating subject of sociological relevance in many areas.
123. To sum up, 'procedure' in Article 21, means fair, not formal procedure. 'Law' is reasonable law, not any enacted piece. As Article 22 specifically spells out the procedural safeguards for preventive and punitive detention, a law providing for such detentions should conform to Article 22. It has been rightly pointed out that for other rights forming part of personal liberty, the procedural safeguards enshrined in Article 21 are available. Otherwise, as the procedural safeguards contained in Article 22 will be available only in cases of preventive and punitive detention, the right to life, more fundamental than any other forming part of personal liberty and paramount to the happiness, dignity and worth of the individual, will not be entitled to any procedural safeguard save such as a legislature's mood chooses. In Kochunni case the Court, doubting the correctness of the Gopalan case decision on this aspect, said:
- "Had the question been res integra, some of us would have been inclined to agree with the dissenting view expressed by Fazal Ali, J."
- "On the other hand, the interpretation suggested by the Attorney General on behalf of the intervener that the expression means nothing more than procedure prescribed by any law made by a competent legislature is hardly more acceptable, 'Established,' according to him, means prescribed, and if Parliament or the Legislature of a State enacted a procedure, however novel and ineffective for affording the accused person a fair opportunity of defending himself, it would be sufficient for depriving a person of his life or personal liberty." (pp. 201-203)
- "The main difficulty I feel in accepting the construction suggested by the Attorney-General is that it completely stultifies Articles 13 (2) and, indeed, the very conception of a fundamental right ............. could it then have been the intention of the framers of the Constitution that the most important fundamental rights to life and personal liberty should be at the mercy of legislative majorities as, in effect, they would if established' were to mean merely 'prescribed'? In other words, as an American Judge said in a similar context, does the constitutional prohibition in Article 13 (3) amount to no more than 'your shall not take away life or personal freedom unless you choose to take it away,' which is mere verbiage ............................. it is said that Article 21 affords no protection against competent legislative action in the field of substantive criminal law, for there is no provision for judicial review, on the ground of reasonableness or otherwise, of such laws, as in the case of the rights enumerated in Article 19. Even assuming it to be so the construction of the learned Attorney General would have the effect of rendering wholly ineffective and illusory even the procedural protection which the article was undoubtedly designed to afford."
- (p. 202) (emphasis added)
- "After giving the matter my most careful and anxious consideration, I have come to the conclusion that there are only two possible solutions of the problem. In the first place, a satisfactory via media between the two extreme positions contended for on either side may be found by stressing the word 'established' which implies some degree of firmness, permanence and general acceptance, while it does not exclude origination by statute. 'Procedure established by' may well be taken to mean what the Privy Council referred to mean what the Privy Council referred to in King Emperor v. Benoari Lal Sharma AIR 1945 PC 48 as ' the ordinary and well established criminal procedure,' that is to say, those settled usages and normal modes of proceeding sanctioned by the Criminal Procedure Code which is the general law of Criminal Procedure in the country (p. 205).
- "It seems to me that there is nothing revolutionary in the doctrine that the words 'procedure established by law' must include the four principles set out in Professor Willis' book, which, as I have already stated, are different aspects of the same principle and which have no vagueness or uncertainty about them.' These principles, as the learned author points out and as the authorities show, are not absolutely rigid principles but are adaptable to the circumstances of each case within certain limits. I have only to add, that it has not been seriously controverted that 'law' means certain definite rules of proceeding and not something which is a mere presence for procedure. (emphasis added).
- "Article 21 in my opinion, lays down substantive law as giving protection to life and liberty in as much as it says that they cannot be deprived except according to the procedure established by law; in other words, it means that before a person can be deprived of his life or liberty as a condition precedent there should exist some substantive law conferring authority for doing so and the law should further provide for a mode of procedure for such deprivation. This article gives complete immunity against the exercise of despotic power by the executive. It further gives immunity against invalid laws, which contravene the Constitution. It gives also further guarantee that in its true concept there should be some form of proceeding before a person can be condemned either in respect of his life or his liberty. It negatives the idea of a fantastic, arbitrary and oppressive form of proceedings." (emphasis added)
126. In John v. Rees (1969)2 All ER 274, the true rule, as implicit in any law, is set down:
- " If there is any doubt, the applicability of the principles will be given the benefit of doubt."
- "Where a public officer has power to deprive a person of his liberty or his property, the general principle is that it is not to be done without hearing."
127. It is a mark of interpretative respect for the higher norms our founding fathers held dear in affecting the dearest rights of life and liberty so to read Article 21 as to result in a human order lined with human justice. And running right through Articles 19 and 14 is present this principle of reasonable procedure in different shades. A certain normative harmony among the articles is thus attained, and I hold Article 21 bears in his bosom the construction of fair procedure legislatively sanctioned. No Passport Officer shall be mini-Caesar nor Minister incarnate Caesar in a system where the rule of law reigns Supreme.
128. My clear conclusion on Article 21 is that liberty of locomotion into alien territory cannot be unjustly forbidden by the Establishment and passport legislation must take processual provisions which accord with fair norms, free from extraneous pressure and, by and large complying with natural justice. Unilateral arbitrariness, police dossiers, faceless affiants, behind-the-back materials, oblique motives and the inscrutable face of an official sphinx do not fill the 'fairness' bill subject, of course, to just exceptions and critical contexts. This minimum once abandoned, the Police State slowly builds up which saps the finer substance of our constitutional jurisprudence. Not party but principle and policy are the keystone of our Republic.
129. Let us not forget that Article 21 clubs life with liberty and when we interpret the colour and content of 'procedure established by law' we must be alive to the deadly peril of life being deprived without minimal processual justice legislative callousness despising 'hearing' and fair opportunities of defence. And this realization once sanctioned its exercise will swell till the basic freedom is flooded out. Mark back to Article 10 of the Universal Declaration to realize that human rights have but a verbal hollow if the protective armour of audi alteram partem is deleted. When such pleas are urged in the familiar name of pragmatism public interest or national security, courts are on trial and must prove that civil liberties are not mere rhetorical material for lip service but the obligatory essence of our hard-won freedom. A Republic - if you Can Keep It - is the caveat for counsel and court. And Tom Paine, in his Dissertation on First Principles of Government, sounded the tocsin:
- "He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself".
- "Adapts himself to the word: the unreasonable one persists in trying to adapt the world to himself. Therefore, all progress depends on the unreasonable man." (George Bernard Shaw in 'Maxims for Revolutionists')
- 'Passport' peevishness is a suppressive possibility, and so the words of Justice Jackson (U. S. Supreme Court) may be apposite:
- "Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order."
- (West Virginia State Board of Education v. Barnotte 319 US 624 (1943).
131. The impugned legislation, Sections 5, 6 and 10 especially, must be tested even under Article 21 on cannons of processual justice to the people outlined above. Hearing is obligatory-meaningful hearing flexible and realistic, according to circumstances, but not ritualistic and wooden. In exceptional cases and emergency situations, interim measures may be taken, to avoid the mischief of the passportee becoming an escapee before the hearing begins, 'Bolt the stables after the horse has been stolen' is not a command of natural justice. But soon after the provisional seizure, a reasonable hearing must follow, to minimise procedural prejudice. And when a prompt final order is made against the applicant or passport holder the reasons must be disclosed to him almost invariably save in those dangerous cases where irreparable injury will ensue to the State. A government, which revels in secrecy in the field of people's liberty not only, acts against democratic decency, but busies itself with its own burial. That is the writing on the wall if history were teacher, memory our mentor and decline of liberty not our unwitting endeavour. Public power must rarely hide its heart in an open society and system.
132. I now skip Article 14 since I agree fully with all that my learned brother Bhagwati J. has said. That article has a pervasive processual potency and versatile quality, egalitarian in its soul and allergic to discriminatory diktats. Equality is the antithesis of arbitrariness and ex cathedra ipse dixit is the ally of demagogic authoritarianism. Only knight-errants of 'executive excesses' - if we may use a current cliche - can fall in love with the Dame of despotism, legislative or administrative. If this Court gives in here it gives up the ghost. And so it is that I insist on the dynamics of limitations on fundamental freedoms as implying the rule of law; 'Be you ever so high, the law is above you.'
133. A minor pebble was thrown to produce a little ripple. It was feebly suggested that the right to travel abroad cannot be guaranteed by the State because it has no extra-territorial jurisdiction in foreign lands. This is a naive misconception of the point pressed before us. Nobody contends that India should interfere with other countries and their sovereignty to ensure free movement of Indians in those countries. What is meant is that the Government of India should not prevent by any sanctions it has over its citizens from moving within any other country if that other country has no objection to their travelling within its territory. It is difficulty to understand how one can misunderstand the obvious.
134. A thorny problem debated recurrently at the bar, turning on Article 19. demands some juristic response although avoidance of overlap persuades me to drop all other questions canvassed before us. The Gopalan case verdict with the cocooning of Article 22 into a self-contained code, has suffered super-session at the hands of R. C. Cooper case. By way of aside, the fluctuating fortunes of fundamental rights, when the prolatarist and the proprietarist have asserted them in Court, partially provoke sociological research and hesitantly project the Cardozo thesis of sub -conscious forces in judicial noesis when the cycloramic review starts from Gopalan case moves on to in re: Kerala Education Bill and then on to All India Bank Employees Union, next to Sakal Newspapers case crowning in Cooper case and followed by Bennett Coleman case and Sambu Nath Sarkar case. Be that as it may, the law is now settled as I apprehend it, that no article in Part III is an island but port of a continent, and the conspectus of the whole part gives the direction and correction needed for interpretation of these basic provisions. Man is not dissectible into separate limbs and, likewise, cardinal rights in an organic constitution, which make man human, have a synthesis. The proposition is indubitable that Article 21 does not, in a given situation, exclude Article 19 if both rights are breached.
135. We may switch to Article 19 very briefly and travel along another street for a while. Is freedom of extra-territorial travel to assure which is the primary office of an Indian passport, a facet of the freedom of speech and expression, of profession or vocation under Article 19? My total consensus with Shri Justice Bhagwati jettisons from this judgment the profusion of precedents and the mosaic of many points and confines me to some fundamentals confusion on which, with all the clarity on details, may mar the conclusion. It is a salutary thought that the summit court should not interpret constitutional rights enshrined in Part III to choke its life-breath or chill its elan vital by processes of legalism overruling the enduring values burning in the bosoms of those who won our Independence and drew up our founding document. We must also remember that when this Court lays down the law, not ad hoc tunes but essential notes, not temporary tumult but transcendental truth must guide the judicial process in translating into authoritative notation the mood music of the Constitution.
136. While dealing with Article 19 vis a vis freedom to travel abroad, we have to remember one spinal indicator. True high constitutional policy has harmonised individual freedoms with holistic community good by inscribing exceptions to Article 19 (1) in Article 19 (2) to (6). Even so, what is fundamental is the freedom, not the exception. More importantly, restraints are permissible only to the extent they have nexus with the approved object. For instance, in a wide sense, 'the interests of the general public' are served by a family planning programme but it may be constitutional impertinence to insist that passport may be refused if sterlisation certificates were not produced. Likewise it is in public interest to widen streets in cities but monstrous to impound a passport because its holder has declined to demolish his houses which projects into the street line. Sure, the security of State is a paramount consideration but can Government, totalitarian fashion, equate Party with country and refuse travel document because, while abroad, he may criticise the conflicting politics of the Party-in-power or the planning economics of the government of the day? Is it conceivable that an Indian will forfeit his right to go abroad because his flowing side-burns or sartorial vagaries offend a high-placed authority's sense of decency? The point is that liberty can be curtailed only if the grounds listed in the saving sub-articles are directly, specifically, substantially and imminently attracted so that the basic right may not be stultified. Restraints are necessary and validly made by statute, but to paint with an over-broad brush power to blanket-ban travel abroad is to sweep overly and invade illicitly. The law of fear' cannot reign where the proportionate danger is containable. It is a balancing process, not over-weighted one way or the other. Even so, the perspective is firm and fair. Courts must not interfere where the order is not perverse, unreasonable, mala fide or supported by material. Under our system court writs cannot run government, for, then judicial review may tend to be a judicial coup. But 'lawless' law an executive excess must be halted by Judge-power lest the Constitution be subverted by branches deriving credentials from the Constitution. An imperative guideline by which the Court will test the soundness of legislative and executive constraint is, in the language of V. G. Row (1952 SCR 597) this:
- "The reasonableness of a restriction depends upon the values of life in a society, the circumstances obtaining at a particular point of time when the restriction is imposed, the degree and the urgency of the evil sought to be controlled and similar others."
138. The learned Attorney General argued that the right to travel abroad was no part of Article 19 (1) (a), (b), (c), (f) or (g) and so to taboo travel even unreasonably does not touch Article 19. As a component thereof, as also by way of separate submission, it was urged that the direct effect of the passport law (and refusal thereunder) was not a blow on freedom of speech, of association or of profession and, therefore, it could not be struck down even if it overflowed Article 19 (2), (4) and (6). This presentation poses the issue, 'what is the profile of our free system?' Is freedom of speech integrally interwoven with locomotion? Is freedom of profession done to death if a professional, by passport refusal without reference to Article 19 (f), is inhibited from taking up a job offered abroad? Is freedom of association such a hot-house plant that membership of an international professional or political organisation can be cut off on executive-legislative ipse dixit without obedience to Article 19 (4)? This xenophobic touch has not been attested by the Constitution and is not discernible in its psyche. An anti-international pathology shall not afflict our National Charter. A Human Tomorrow on Mother Earth is our cosmic constitutional perspeive (See Article 51).
139. To my mind, locomotion is, in some situations necessarily involved in the exercise of the specified fundamental rights as an associated or integrated right. Travel, simpliciter, is peripheral to and not necessarily fundamental in Article 19. Arguendo, free speech is feasible without movement beyond the country, although soliloquies and solo songs are not the vague in this ancient land of silent saints and gyrating gurus, bhajans and festivals. Again, travel may ordinarily be 'action' and only incidentally 'expression', to borrow the Zemel (1966) 14 Law Ed 2d 179 diction.
140. Movement within the territory of India is not tampered with by the impugned order, but that is not all. For, if our notions are en cowrrant, it is common place that the world - the family of nations - vibrates, and men - masses of men - move and 'jet' abroad and abroad, even n Concorde, on a scale unknown to history. Even thoughts, ideologies and habits travel beyond. Tourists crowd out airline services; job-seekers rush to passport offices; lecture tours, cultural exchanges, trans-national evangelical meets, scientific and scholarly studies and workshops and seminars escalate, and international associations abound - all for the good of world peace and human progress, save where are involved high risks to sovereignty, national security and other substantial considerations which Constitutions and Courts have readily recognised. Our free system is not so brittle or timorous as to be scared into tabooing citizens' trips abroad, except conducted tours or approved visits sanctioned by the Central Executive and indifferent to Article 19. Again, the core question arises: Is movement abroad so much a crucial part of free speech, free practice of profession and the like that denial of the first is a violation of the rest?
141. I admit that merely because speaking mostly involves some movement, therefore, 'free speech anywhere is dead if free movement everywhere is denied' does not follow. The constitutional lines must be so drawn that the constellation of fundamental rights does not expose the peace, security and tranquility of the community to high risk. We cannot overstretch free speech to make it an inextricable component of travel.
142. Thomas Emerson has summed the American Law which rings a bell even in the Indian system:
- "The values and functions of the freedom of expression in a democratic polity are obvious. Freedom of Expression is essentially as a means of assuring individual self-fulfillment. The proper end of man is the realisation of his character and potentialities as a human being. For the achievement of this self-realisation the mind must be free."
- "Freedom of expression is an essential process for advancing knowledge and discovering truth. So also for participation in decision-making in a democratic society. Indeed free expression furthers stability in the community by reasoning together instead of battling against each other. Such being the value and function of free speech, what are the dynamics of limitation which will fit these values and functions without retarding social goals or injuring social interest? It is in this background that we have to view the problem of passports and the law woven around it. There are two ways of looking at the question... as a facet of liberty and as an aspect of expression."
- Travel abroad should probably be classified as 'action' rather than 'expression'. In commonsense terms travel is more physical movement than communication of ideas. It is true that travel abroad is frequently instrumental to expression, is when it is a undertaken by a reporter to gather news, a scholar to lecture, a student to obtain information or simply an ordinary citizen in order to expand his understanding of the world. Nevertheless, there are so many other aspects to travel abroad and functionally it requires such different types of regulation that at least as a general proposition, it would have to be considered 'action'. An action, it is a 'liberty' protected by the due process clause of the Fifth and Fourteenth Amendments. The first amendments is still relevant in two ways: (1) There are sufficient elements of expression in travel abroad so that the umbrella effect of the first amendment comes into play, thereby requiring the courts to apply due process and other constitutional doctrines with special care; (2) conditions imposed on travel abroad based on conduct classified as expression impair freedom of expression and hence raise direct First Amendment questions."
- "Restrictions on the right to travel in times of peace should be so particularized that a First Amendment right is not precluded unless some clear countervailing national interest stands in the way of its assertion."
144. The delicate, yet difficult, phase of the controversy arrives where free speech and free practice of profession are inextricably interwoven with travel abroad. The Passports Act, in terms, does not inhibit expression and only regulates action - to borrow the phraseology of Chief Justice Warren in Zemel (1966) 14 Law Ed 2d 179. But we have to view the proximate and real consequence of thwarting trans-national travel through the power of the State exercised under Section 3 of the Passports Act read with Sections 5,6 and 10. If a right is not in express terms fundamental within the meaning of Part III, does not escape Article 13, read with the trammels of Article 19, even if the immediate impact, the substantial effect, the proximate import or the necessary result is prevention of free speech or practice of one's profession? The answer is that associated rights, totally integrated, must enjoy the same immunity. Not otherwise.
145. Three sets of cases may be thought of. Firstly, where the legislative provision or executive order expressly forbids exercise in foreign lands of the fundamental right while granting passport. Secondly, there may be cases where even if the order is innocent on its face, the refusal of permission to go to a foreign country may, with certainty and immediacy, spell denial of free speech and professional practice or business. Thirdly, the fundamental right may itself enwomb locomotion regardless of national frontiers. The second and third often are blurred in their edges and may overlap.
146. The first class may be illustrated. If the passport authority specifically conditions the permission with a direction not to address meetings abroad or not to be a journalist or professor in a foreign country, the order violates Article 19 (1) (a) or (f) and stands voided unless Article 19 (2) and (6) are complied with. The second category may be exemplified and examined after the third which is of less frequent occurrence. If a person is an international pilot, astronaut, Judge of the International Court of Justice, Secretary of the World Peace Council, President of a body of like nature, the particular profession not only calls for its practice travelling outside Indian territory but its core itself is international travel. In such an area, no right of exit, no practice of profession or vocation. Similarly, a cricketer or tennis player recruited on a world tour. Free speech may similarly be hit by restriction on a campaigner for liberation of colonial peoples or against genocide before the United Nations Organisation. Refusal in such cases is hit on the head by negation of a national passport and can be rescued only by compliance with the relevant saving provisions in Article 19 (2), (4) or (6).
147. So far is plain sailing, as I see it. But the navigation into 'the penumbral zone of the second category is not easy.
148. Supposing a lawer or doctor, expert or exporter, missionary or guru, has to visit a foreign country professionally or on a speaking assignment. He is effectively disabled from discharging his pursuit if passport is refused. There the direct effect, the necessary consequence, the immediate impact of the embargo on grant of passport (or its subsequent impounding or revocation) is the infringement of the right to expression or profession. Such infraction is unconstitutional unless the relevant part of Article 19 ( 2) to(6) is complied with. In dealing with fundamental freedom substantial justification alone will bring the law under the exceptions. National security, sovereignty, public order and public interest must be of such a high degree as to offer a great threat. These concepts should not be devalued to suit the hyper-sensitivity of the executive or minimal threats to the State. Our nation is not so pusillanimous or precarious as to fall or founder if some miscreants pelt stones at its fair face from foreign countries. The dogs may bark, but the caravan will pass. And the danger to a party in power is not the same as rocking the security or sovereignty of the State. Sometimes, a petulant government which forces silence may act unconstitutionally to forbid criticism from afar, even if necessary for the good of the State. The perspective of free critism with its limits for free people everywhere, all true patriots will concur, is eloquently spelt out by Sir Winston Churchill on the historic censure motion in the Commons as Britain was reeling under defeat at the hands of Hitlerite hordes:
- "This long debate has now reached its final stage. What a remarkable example it has been of the unbridled freedom of our Parliamentary institutions in time of war! Everything that could be thought of or raked up has been used to weaken confidence in the Government, has been used to prove that Ministers are incompetent and to weaken their confidence in themselves, to make the Army distrust the backing it is getting from the civil power, to make workmen lose confidence in the weapons they are striving so hard to make, to present the Government as a set of nonentities over whom the Prime Minister towers, and then to undermine him in his own heart, and if possible, before the eyes of the nation. All this poured out by cable and radio to all parts of the world,to the distress of all our friends and to the delight of all out foes! I am in favour of this freedom, which no other country would use, or date to use, in times of mortal peril such as those through which we are passing."
149. A concluding caveat validating my detour. Our country, with all its hopes, all its tears and all its fears, must never forget that 'freedom is recreated year by year, that 'freedom is as freedom does', that we have gained a republic 'if we can keep it' and that the watershed between a police state and a people's raj is located partly through its passport policy. Today, a poor man in this country despairs of getting a passport because of invariable police enquiry,insistence on property requirement and other avoidable procedural obstacles. And if a system of secret informers, police dossiers, faceless whisperers and political tale-bearers, conceptualised and institutionalised 'in public interest', comes to stay, civil liberty is legicidally constitutionalised - a consummation constantly to be resisted. The merits of a particular case apart, the policing of a people's right of exit or entry is fraught with peril to liberty unless policy is precise, operationally respectful of recognised values and harassment proof. Bertrand Russel has called attention to a syndrome the Administration will do well to note:
- "We are all of us a mixture of good and bad impulses that prevail in an excited crowd. There is in most men an impulse to persecute whatever is felt to be 'different'. There is also a hatred of any claim to superiority, which makes the stupid many hostile to the intelligent few. A motive such as fear of communism affords what seems a decent moral excuse for a combination of the herd against everything in any way exceptional. This is a recurrent phenomenon in human history. Wherever it occurs, its results are horrible."
- (Foreword by Bertrand Russell to Freedom is as Freedom Does - Civil Liberties Today - by Corliss Lamout. New York, 1956).
- "We do not imagine that we are the victims of plots, that bad men are doing all this. It is the machinery of power that is getting out of same control. Lost in its elaboration, even some men of goodwill begin to forget the essential humanity this machinery should be serving. They are now so busy testing, analysing, and reporting on bath water that they cannot remember having thrown the baby out of the window."
- (Introduction by H. H. Wilson, Associate Professor of Political Science, Princeton University to Freedom is as Freedom Does by Corliss Lamont, ibid p. xxi), I have divagated a great deal into travel constitutionality in the setting of the story of the human journey, even though such a diffusion is partly beyond the strict needs of this case. But judicial travelling, like other travelling, is almost like 'talking with men of other centuries and countries'.
151. Kailasam, J. (Majority view):- . This petition is filed by Mrs. Maneka Gandhi under Article 32 of the Constitution of India against the Union of India and the Regional Passport Officer for a writ of certiorari for calling for the records of the case including in particular the order dated July 2, 1977 made by the Union of India under Section 10 (3) (c) of the Passports Act, Act 15 of 1967, impounding the passport of the petitioner and for quashing the said order.
152. The petitioner received a letter dated July 2, 1977 on July 4, 1977 informing her that it had been decided by the Government of India to impound her passport. The letter read as follows:
- "You may recall that a passport No. K-869668 was issued to you by this office on 1-6-76. It has been decided by the Government of India to impound your above passport under Section 10 (3) (c) of the Passports Act, 1967 in public interest.
- You are hereby required to surrender your passport K-869668 to this office within seven days from the date of the receipt of this letter."
- The Government has decided to impound your passport in the interest of general public under Section 10 (3) (c) of the Passports Act, 1967. It has further been decided by the Government in the interest of general public not to furnish you a copy of statement of reasons for making such orders as provided for under Section 10 (5) of the Passports Act, 1967."
154. An application Civil Misc. Petition No. 6210 of 1977 was filed by the petitioner for leave to urge additional grounds in support of the writ petition and a counter to this application was filed on behalf of the Ministry of External Affairs on August 18, 1977.
155. A petition by Adil Shahryar was filed seeking permission to intervene in the writ petition and it was ordered by this Court. During the hearing of the writ petition, Government produced the order disclosing the reasons for impounding the passport. The reasons given are that it was apprehended that the petitioner was attempting or was likely to attempt to leave the country and thereby hamper the functioning of the Commissions of Inquiry. According to the Government, the petitioner being the wife of Shri Sanjay Gandhi, there was likelihood of the petitioner being questioned regarding some aspects of the Commission. In the counter-affidavit it was further alleged that there was good deal of evidence abroad and it would be unrealistic to over-look the possibility of tampering with it or making it unavailable to the Commission which can be done more easily and effectively when an interested person is abroad. So far as this allegation was concerned as it was not taken into account in passing the order it was given up during the hearing of the writ petition. The only ground on which the petitioner's passport was impounded was that she was likely to be examined by the Commission of Inquiry and her presence was necessary in India.
156. Several questions of law were raised. It was submitted that the petitioner was a journalist by profession and that she intended to proceed to West Germany in connection with her professional duties, as a journalist and that by denying her the passport not only was her right to travel abroad denied but her fundamental rights guaranteed under Article 19 (1) were infringed. The contention was that before an order passed under Article 21 of the Constitution could be valid, it should not only satisfy the requirements of that article, namely that the order should be according to the procedure established by law, but also should not in any way infringe on her fundamental rights guaranteed under Article 19 (1). In other words, the submission was that the right to personal liberty cannot be deprived without satisfying the requirements of not only Article 21, but also Article 19. In addition the provisions of Section 10 (3) (c) were challenged as being ultra vires of the powers of the legislature and that in any event the order vitiated by the petitioner not having been given an opportunity of being heard before the impugned order was passed. It was contended that the fundamental rights guaranteed under Article 19 (1) particularly the right of freedom of speech and the right to practise profession were available to Indian citizens not only within the territory of India but also beyond the Indian territory and by preventing the petitioner from travelling abroad her right to freedom of speech and right to practice profession outside the country were also infringed. The plea is that the fundamental rights guaranteed under Article 19 of India but outside the territory of India as well.
157. The question that arises for consideration is whether the Fundamental Rights conferred under Part III and particularly the rights conferred under Article 19 are available beyond the territory of India. The rights conferred under Article 19 (1) (a), (b), (c), (f) and (g) are,
- (a) freedom of speech and expression;
- (b) to assemble peaceably and without arms;
- (c) to form associations or unions;
- x x x
- (f) to acquire, hold and dispose of property; and
- (g) to practise any profession, or to carry on any occupation, trade or business;
158. In order to decide this question, I may consider the various provisions of the Constitution, which throw some light on this point. The Preamble to the Constitution provides that the people of India have solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens:
- Justice, social, economic and political; Liberty of thought, expression, belief faith and worship; Equality of status and of opportunity;
- and to promote among them all Fraternity assuring the dignity of the individual and the unity of the nation.
159. Article 12 of the Constitution defines "the State" as including the Government and Parliament of India and the Government and the Legislature of each of the States, and all local or other authorities within the territory of India or under the control of the Government of India. Article 13 provides that laws that are inconsistent with or in derogation of Fundamental Rights are to that extent void. Article 13 (1) provides that all laws in force in the territory of India immediately before the commencement of this Constitution that are referred to in the Article will have to be looked into. Before that Article 13 (2) may be noticed which provides that the State shall not make any law which takes away or abridges the rights conferred by Part III, and any law made in contravention of this clause shall, to the extent of thecontravention, be void. The word "law" in the he Article is defined as:
- (a) "law includes any Ordinance,order bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; and
- (b) "laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
160. In distributing the legislative powers between the Union and the States Article 248 provides that Parliament may make laws for the whole of any part of the territory of India and the Legislature of a State may make laws for the whole or any part of the State. Article 245 (2) provides that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. This article makes it clear that a State law cannot have any extra-territorial operation while that of the Parliament can have. The Parliament has undoubted power to enact law having extra-territorial operation while that of the Parliament can have. The Parliament has undoubted power to enact law having extra-territorial application. In England Section 3 of the Statute of West minister, 1931 (22 Geo. V. C. 4) provides:
- "It is hereby declared and enacted that the Parliament of a Dominion has full power to make laws having extra-territorial operation."
- "It has been said by the Judicial Committee of the Privy Council that: 'An Act of the Imperial Parliament today, unless it provides otherwise, applies to the whole of the United Kingdom and to nothing outside the United Kingdom: not even to the Channel islands or the Isle of Man. let alone to a remote overseas colony or possession'"
161. Craies on Statute Law (Sixth Ed.) at p. 447 states that ".... an Act of the legislature will bind the subjects of this realm, both within the kingdom and without, if such is its intention. But whether any particular Act of Parliament purports to bind British subjects abroad will always depend upon the intention of the legislature, which must be gathered from the language of the Act in question." Dicey in his Introduction to the Study of the Law of the Constitution (1964 Ed.) at page liii states the position thus: "Parliament normally restricts the operation of legislation to its own territories, British ships wherever they may be being included in the ambit of territory. - Parliament does on occasions, however, pass legislation controlling the activities of its own citizens when they are abroad." Salmond in his book on Jurisprudence (Twelfth Ed.) distinguishes between the territorial enforcement of law and the territoriality of law itself. At p. 11 the author states: "Since territoriality is not a logically necessary part of the idea of law, a system of law is readily conceivable, the application of which is limited and determined not by reference to territorial considerations, but by reference to the personal qualifications of the individuals over whom jurisdiction is exercised." According to the text-books above referred to, the position is that a law is normally applicable within the territory, but can be made applicable within the territory, but can be made applicable to its citizens wherever they may be. Whether such extra-territorial applicability is intended or not will have to be looked for in the legislation.
162. I will now refer to the decisions of courts on this subject.
163. In Niboyet v. Niboyet, (1878)48 LJP 1 (at p. 10) the Court of Appeal stated: "It is true that the words of the statute are general, but general words in a statute have never, so far as Iam aware, been interpreted so as to extend the action of the statute beyond the territorial authority of the Legislature. All criminal statutes are in their terms general; but they apply only to offences committed within the territory or by British subjects. When the Legislature intends the statute to apply beyond the ordinary territorial authority of the country, it so states expressly in the statute, as in the Merchant Shipping Acts, and in some of the Admiralty Acts." In the Queen v. James, on (1896)2 QB 425 (at p. 430), the Chief Justice Lord Russel stated the position thus: "It may be said generally that the area within which a statute is to operate, and the persons against whom it is to operate,are to be gathered from the language and purview of the particular statute. In Cooke v. The Charles A. Vogeler Company (1901) AC 102 (at p. 107), the House of Lords in dealing with the jurisdiction of the Court of Bankruptcy observed that "English legislation is primarily territorial, and it is no departure from that principle to say that a foreigner coming to this country and trading here, and here committing an act of bankruptcy, is subject to our laws and to all the incidents which those laws and to all the incidents which those laws enact in such a case; while he is here, while he is trading, even if not actually domiciled, he is liable to be made a bankrupt like a native citizen....... It is limited in its terms to England; and I think it would be impossible to suppose that if the Legislature had intended so broad a jurisdiction as is contended for here, it would not have conferred it by express enactment."
In Tomalin v. S. Pearson and Son Limited (1909)2 KB 61 the Court of Appeal dealing with the application of the Workmen's Compensation Act, 1906, quoted with approval a passage from Maxwell on Interpretation of Statutes at p. 213 wherein it was stated :
- "In the absence of an intention clearly expressed or to be inferred from its language, or from the object or subject-matter or history of the enactment, the presumption is that Parliament does not design its statutes to operate beyond the territorial limits of the United Kingdom."
- "An Act of the Imperial Parliament today, unless it provides otherwise, applies to the whole of the United Kingdom and to nothing outside the United Kingdom not even to the Channel Islands or the Isle of Man, let alone to a remote overseas colony or possession." The Court of Appeal in a later decision reported in (1964) 3 All ER 148 (C. E. B. Draper and Son Ltd. v. Edward Turner and Son Ltd.) approved of the proposition laid down in Attorney General for Alberta v. Huggard Assets Ltd., observing "Prima facie an Act of the United Kingdom Parliament, unless it provides otherwise, applies to the whole of the United Kingdom and to nothing outside the United Kingdom."
- "The passages relied on in this connection from Maxwell's Interpretation of Statutes do not go the length necessary for the appellant's case. It is true that every statute is to be so interpreted so far as its language admits, as not to be inconsistent with the comity of nations or with the established rules of Inter-national Law. Whatever may be the rule of International Law as regards the ordinary citizen, we have not been referred to any rule of International Law or principle of the comity of nations which is inconsistent with a State exercising disciplinary control over its own armed forces, when those forces are operating outside its territorial limits."
165. It is now necessary to examine the various articles of Part III of the Constitution to find out whether any intention is expressed to make any of the rights available extra-territorially. The application of Article 14 is expressly limited to the territory of India as it lays down that "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." Article 15 relates to prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and Article 16 deals with equality of opportunity in matters of public employment. By their very nature the two Articles are confined to the territory of India. So also Articles 17 and 18 which deal with abolition of untouchability and abolition of titles. Before dealing with Arts 19 and 21 with which we are now concerned the other articles may be referred to in brief. Articles 20 and 22 can have only territorial application. Articles 23 and 24 which relate to right against exploitation and Articles 25 to 28 which relate to freedom of conscience and free profession, practice and propagation of religion etc. prima facie are applicable only to the territory of India. At any rate there is no intention in these Articles indicating extra-territorial application. So also Articles 29 and 30 which deal with cultural and educational rights are applicable only within the territory of India. Article 31 does not expressly or impliedly have any extra-territorial application. In this background it will have to be examined whether any express or implied intention of extra-territorial applicability is discernible in Articles 19 and 21.
166. Article 19 (1) (a) declares the right to freedom of speech and expression. While it is possible that this right may have extra-territorial application, it is not likely that the framers of the Constitution intended the right of assemble peaceably and without arms or to form associations or unions, or to acquire, hold and dispose of property or to practise any profession, or to carry on any occupation, trade or business, to have any extraterritorial application, for such rights could not be enforced by the State outside the Indian territory. The rights conferred under Article 19 are fundamental rights and Articles 32 and 226 provide that these rights are guaranteed and can be enforced by the aggrieved person by approaching the Supreme Court or the High Courts. Admittedly, the rights enumerated in Article 19 (1) (a), (b), (c), (f) and (g) cannot be enforced by the State and in the circumstances there is a presumption that the Constitution-makers would have intended to guarantee any right which the State cannot enforce and would have made a provision guaranteeing the rights and securing them by recourse to the Supreme Court and the High Courts.
167. The restriction of the right to move freely throughout the territory of India and the right to reside and stay in any part of the territory of India is strongly relied upon as indicating that in the absence of such restrictions the other rights are not confined to the territory of India. The provisions in Article 19 (1) (d) and (e) i.e. the right to move freely throughout the territory of India and to reside and settle in any part of the territory of India have historical significance. In A.K. Gopalan v. The State of Madras, AIR 1950 SC 27, Kania C. J. said that in the right "to move freely throughout the territory India" the emphasis was not on the free movement but on the right to move freely throughout the territory of India. The intention was to avoid any restriction being placed by the State hampering free movement throughout the territory of India. It is a historical fact that there were rivalries between the various States and the imposition of restraint on movement from State to State by some States was not beyond possibility. In the two clauses 19 (1) (d) and (e) the right "to move freely throughout the territory of India" and "to reside and settle in any part of the territory of India" the "territory of India' is mentioned with the purpose of preventing the States from imposing any restraint. From the fact that the words 'territory of India ' are found in these two clauses the contention that the other freedoms are not limited to the territory of India for their operation cannot be accepted. In Virendra v. The State of Punjab, 1958 SCR 308, S. R. Das, C. J., who spoke on behalf of the Constitution Bench stated: "The point to be kept in view is that several rights of freedom guaranteed to the citizens by Article 19 (1) are exercisable by them throughout and in all parts of the territory of India". The view that the rights under Article 19 (1) are exercisable in the territory of India has not been discussed. Far from Article 19 (1) expressing any intention expressly or impliedly of extra-territorial operation the context would indicate that its application is intended to be only territorial. The right under Article 19 (1) (b) and (c) to assembly peaceably and without arms and to form associations or unions could not have been intended to have any extra-territorial application as it will not be in accordance with the accepted principles of international law. As the rights under Article 19 (1) (b) and (c) cannot be enforced outside India the inference is that no extra-territorial application was intended. So also regarding the rights conferred under Articles 19 (1) (f) and (g) i.e. to acquire, hold and dispose of property; and to practise any profession, or to carry on any occupation, trade or business, would not have been intended to be applicable outside India.
168. It was submitted that when the Constitution was framed the founding fathers were influenced by the United Nations' Universal Declaration of Human Rights which was made in December, 1948 and they thought it fit to make the fundamental rights available to the Indian citizens throughout the world. The history of the conception of human rights may be shortly traced. The main task of the Human Rights' Commission which was set up by the United Nations was to draw an International Bill of Rights. The Commission split this task into two documents: a short declaration of principles and an elaborate treaty or covenant enforcing those principles so far as practicable. The Universal Declaration of Human Rights was not intended to be binding as law but to present the main ideals of human rights and freedoms in order to inspire everybody, whether in or out of governments, to work for their progressive realization. The Commission finished the Declaration and it was promulgated by the U. N. Assembly on December 10, 1948. The discussion about the Draft Indian Constitution took place between February and October, 1948 and the Articles relating to the Fundamental Rights were discussed in October, 1948, i.e. before the Universal Declaration of Human Rights was promulgated by the U. N. Assembly on December 10, 1948. It is most unlikely that before the Declaration of Human Rights was promulgated the framers of the Indian Constitution decided to declare that the Fundamental Rights conferred on the citizens would have application even outside India. The Universal Declaration of Human Rights was not binding as law but was only a pious hope for achieving a common standard for all peoples and all nations. Article 13 of the Declaration which is material for our discussion runs as follows:
- Paragraph 1. Everyone has the right to freedom of movement and residence within the borders of each State.
- Paragraph 2. Everyone has the right to leave any country. including his own, and to return to his country.
- Paragraph 1 restricts the right of movement and residence specifically within the borders of the country. The second paragraph aims at securing the right to leave any country including his own and to return to his country. The Declaration at that stage did not have any idea of conferring on the citizens of any country right of movement beyond borders of the State or to freedom of speech or right to assemble outside the country of origin. Even in the Americal Constitution there is no mention of right to freedom of speech or expression as being available outside America. Regarding the right of movement within the borders of the State it is not mentioned as one of the freedoms guaranteed in the American Constitution but everyone in the country takes it for granted that one can roam at will throughout the United States.
170. In vain one looks to the American law to find whether the citizens are granted any right of freedom of speech and expression beyond the territory of the United States. The First Amendment provides for freedom of speech and press along with freedom of religion. Liberty of speech and liberty of press are substantially identical. They are freedom to utter words orally and freedom to write, print and circulate words. But this freedom of expression would be meaningless if people were not permitted to gather in groups to discuss mutual problems and communicate their feelings and opinions to governmental officers. The First Amendment therefore provides that the people have the right to assemble peaceably and petition the government for redress of grievances. The petition for redress can only be confined to the United States of America. In a recent address on Human Rights Warren Christopher, U. S. Deputy Secretary of State reproduced in Shan. October 1977, stated before the American Bar Association in Chicago that the promotion of Human rights has become a fundamental tenet of the foreign policy of the Carter Administration. In explaining the conception of human rights and its practice in America the Deputy Secretary stated that the efforts should be directed to the most fundamental and important human rights all of which are internationally recognised in the Universal Declaration of Human Rights which the United Nations approved in 1948. While emphasising the three categories of human rights (1) the right to be free from the governmental violation of the integrity of the person; (2) the right to fulfilment of such vital needs as food, shelter, health care and education; and (3) the right to enjoy civil and political liberties, he stated that the freedom of thought, of religion, of assembly, of speech, of the press, freedom of movement within and outside one's own country; freedom to take part in government, were liberties which Americans enjoy so fully, and too often take for granted, are under assault in many places. It may be noted that while freedom of movement is referred to as both within and outside one's own country the other rights such as freedom of thought., of religion, of assembly, of speech, of press, are not stated to be available outside one's own country. It is thus seen that except the right to movement outside one's own country other rights are not available extraterritorially even in America.
171. The fundamental rights under Article 19 (1) of the Constitution are subject to the restrictions that may be placed under Article 19 (2) to (6) of the Constitution. The fundamental rights are not absolute but are subject to reasonable retrictions provided for in the Constitution itself. The restrictions imposed are to be by operation of any existing law or making of a law by the Legislature imposing reasonable restrictions. The scheme of the Article, thus it while conferring fundamental rights on the citizens is to see that such exercise does not affect the rights of other persons or affect the society in general. The law made under Article 19 (2) to (6), imposes restriction on the exercise of right of freedom of speech and expression, to assemble peaceably without arms etc. The restrictions thus imposed, normally would apply only within the territory of India unless the legislation expressly or by necessary implication provides for extra-territorial operation. In the Penal Code, under Secs. 3 and 4, the Act is made specifically applicable to crimes that are committed outside India by citizens of India. Neither in Article 19 of the Constitution nor in any of the enactments restricting the rights under Article 19 (2) is there any provision expressly or by necessary implication providing for extra-territorial application. A citizen cannot enforce his fundamental rights outside the territory of India even if it is taken that such rights are available outside the country.
172. In the view that a citizen is not entitled to the fundamental rights guaranteed under Article 19 outside the territorial limits of India the contention of the learned counsel for the petitioner that by denying him the passport to travel outside, India, his fundamental rights like freedom of speech and expression, to assemble peaceably, to practice profession or to carry on occupation, trade or business are infringed, cannot be accepted. The passport of the petitioner was impounded on the ground that her presence in connection with the Inquiry Commission may be necessary and in the interest of public it was necessary to do so. The impugned order does not place any restrictions on the petitioner while she is away from India. Hence the question whether the State could impose such restraint does not arise in this case. As the contention was that by impounding the passport the petitioner's fundamental right of freedom of speech etc. outside the country was infringed, it became necessary to consider whether the citizen had any such right.
173. It was strenuously contended that the Legislature by invoking powers under Article 21 cannot deprive the fundamental rights guaranteed under Article 19 at any ate within the territory of India. It will now be considered whether an Act passed under Article 21 should also satisfy the requirements of Article 19.
174. The submission was that Article 19 applies to laws made under Articles 20, 21 and 22 and the citizen is entitled to challenge the validity of an Act made under Article 21 on the ground that it affects the rights secured to him under Clause (1) of Article 19. Article 20 (1) provides that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. Article 22 deals with protection against arrest and detention in certain cases, that is, in respect of preventive detention.
175. It has been decided by this Court in Gopalan's case, that in the case of punitive detention for offences under the Penal Code, it cannot be challenged on the ground that it infringes the rights specified under Article 19 (a) to (e) and (g) of the Constitution of India. Kania C. J. held (at p. 35 of AIR):
- "If there is a legislation directly attempting to control a citizen's freedom of speech or expression, or his right to assemble peaceably and without arms etc; the question whether that legislation is saved by the relevant saving clause or Article 19 will arise. If, however, the legislation is not directly in respect of any of these subjects, but as a result of the operation of other legislation, for instance, for punitive or preventive detention, his right under any of these sub-clauses is abridged the question of the application of Article 19 does not arise."
- "The Indian Penal Code does not primarily or necessarily impose restrictions on the freedom of movement and it is not correct to say that it is a law imposing restrictions on the right to move freely. Its primary object is to punish crime and not to restrict movement) ...... But if it (the punishment) consists in imprisonment there is a restriction on movement. This restraint is imposed not under a law imposing restrictions on movement but under a law defining crime and making it punishable. The punishment is correlated directly with the violation of some other person's right and not with the right of movement possessed by the offender himself. In my opinion, therefore, the Indian Penal Code does not come within the ambit of the word 'law' imposing restrictions on the right to move freely."
- "It is not possible to think that a person who is detained will yet be free to move or assemble or form association or unions or have the right to reside in any part of India or have the freedom of speech or expression. Suppose a person is prosecuted of an offence of cheating and convicted after trial, it is not open to him to say that the imprisonment should be tested with reference to Article 19 for its reasonableness. A law which attracts Article 19, therefore, must be such as is capable of being tested to be reasonable under clauses (2) to (5) of Article 19."
176. Applying the same reasoning, it is, contended on behalf of the State that when a person is deprived of his life or personal liberty in accordance with the procedure established by law, he cannot invoke to his aid any of the rights guaranteed under Article 19 of the Constitution of India. Whether this contention could be accepted or not will be examined with reference to the provisions of the Constitution and the decisions rendered by this Court.
177. Articles 19 to 22 appear under the title "Right to freedom." Article 19 confers freedoms on the citizens whereas Articles 20 to 22 are not limited to citizens but apply to all persons. Article 19 does not deal with the right to life which is dealt with under Article 21. While Article 19 provides for freedoms which a citizen is entitled to, Articles 20 to 22 restrain the State from doing certain things. Though the right to life and personal liberty is not dealt with under Article 19, as it is mentioned in Article 21 though in a negative form, the right to life and personal liberty is secured and the State can deprive it only according to the procedure established by law. While the rights guaranteed under Article 19 (1) are subject to restrictions that may be placed by Article 19 (2) to (6), the right not be deprived of life and personal liberty is subject to its deprivation by procedure established by law. The scope of the words "personal liberty" was considered by Mukherjea, J. In Gopalan's case. The learned Judge observed:
- "Article 19 gives a list of individual liberties and prescribes in the various clauses the restrictions that may be placed upon them by law so that they may not conflict with the public welfare or general morality. On the other hand Articles 20, 21 and 22 are primarily concerned with penal enactments or other law under which personal safety or liberty of persons would be taken away in the interests of society and they set down the limits within which the State control should be exercised .... the right to the safety of one's life and limbs and to enjoyment of personal liberty, in the sense of freedom from physical restraint and coercion of any sort, are the inherent birth rights of a man. The essence of these rights consist in restraining others from interfering with them and hence they cannot be described in terms of "freedom" to do particular things .... The words "personal liberty"take their colour from the words "deprivation of life." It means liberty of the person. that is freedom from personal restraint. Article 21 is one of the Articles along with Articles 20 and 22 which deal with restraint on the person. According to Dicey:
- "The right to personal liberty as understood in England means in substance a person's right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification."
- (Dicey's Laws of Constitution 10th Edn. page 207).
179. It is contended on behalf of the petitioner that after the decision of the Bank Nationalisation case and Bennett Coleman's case the view taken earlier by the Supreme Court that in construing whether the deprivation of personal liberty is valid or not the enquiry should only be confined to the validity of the procedure prescribed without any reference to the rights conferred under Article 19 (1) is no longer good law. The decisions bearing on this question may now be examined.
180. In Gopalan's case it was held that Article 19 dealt with the rights of the citizens when he was free, and did not apply to a person who had ceased to be free and had been either under punitive or preventive legislation. It was further held that Article 19 only applied where a legislation directly hit the rights enumerated in the Article and not where the loss of rights mentioned in the Article was a result of the operation of legislation relating to punitive or preventive detention. It was also stated by Justice Mukherjea that a law depriving the personal liberty must be a valid law which the legislature is competent to enact within the limits of the powers assigned to it and which does not transgress any of the Fundamental Rights the Constitution lays down. The learned Judge explained that the reasonableness of a law coming under Article 21 could not be questioned with reference to anything in Article 19 though a law made under Article 21 must conform to the requirements of Articles 14 and 20. It cannot be said that it should conform to the requirements of Article 19. The view, thus expressed in Gopalan's case, was affirmed by the Supreme Court in Ram Singh v. State of Delhi, 1951 SCR 451 where it was held (at p. 272 of AIR):
- "Although personal liberty has a content sufficiently comprehensive to include the freedoms enumerated in Article 19 (1), and its deprivation would result in the extinction of the those freedoms, the Constitution has treated these civil liberties as distinct from fundamental rights and made separate provisions in Article 19 and Articles 21 and 22 as to the limitations and conditions subject to which alone they could be taken away or abridged ....... The interpretation of these Articles and their correlation was elaborately dealt with by the full court in Gopalan's case.
181. This view was again affirmed in State of Bihar v. Kameshwar Singh, 1952 SCR 889 where Das. J. in approving the law laid down in Gopalan's case observed as follows (at p. 290 of AIR 1952 SC):
- "As I explained in Goplan's case and again in Chiranjit Lal's case 1950 SCR 869 our Constitution protects the freedom of the citizen by Article 19 (1) (a) to (e) and (g) but empowers the State, even while those freedoms last, to impose reasonable restrictions on them in the interest of the State or of public order or morality or of the general public as mentioned in clauses (2) to (6). Further, the moment even this regulated freedom of the individual becomes incompatible with and threatens the freedom of the community the State is given power by Article 21, to deprive the individual of his life and personal liberty in accordance with procedure established by law, subject of course, to the provisions of Article 22.
183. In Hamdard Dawakhana (Wakf) Lal Kuan v. Union of India,(1960)2 SCR 671 (at p. 691) after citing with approval the case of Ram Singh, and Express Newspapers Case, AIR 1958 SC 578 it was observed:
- "It is not the form or incidental infringement that determines the constitutionality of a statute in a reference to the rights guaranteed in Article 19 (1) but the reality and the substance ..... Viewed in this way, it does not select any of the elements or attributes of freedom of speech falling within Article 19 (1) (a) of the Constitution."
184. The correctness of the view as laid down in Gopalan's case, and affirmed in Ram Singh's case, was doubted by Subba Rao, J., in Kochuni v. The State of Madras, (1960)3 SCR 887 The learned Judge after referring to the dissenting view of Fazal Ali, J. in Gopalan's case rejecting the plea that a law under Article 21 shall not infringe Article 19 (1) observed:
- "The question being integra with the dissenting view expressed by Fazal Ali, j., we are bound by this judgment."
186. The above observations relied on by the learned counsel were made in a petition where the validity of Delhi Newspapers (Price and Page) Order, 1960 which fixed the maximum number of pages that might be published by a newspaper according to the price charged was questioned. The order was challenged as contravening Article 19 (1) (a) of the Constitution. The court held that the order was void as it violated Article 19 (1) (a) of the Constitution and was not saved by Article 19 (2). The court held that the right extended not merely to the method which is employed to circulate, but also to the volume of circulation, and the impugned Act and order placed restraints on the latter aspect of the right as the very object of the Act was directly against circulation and thus. interfered with the freedom of speech and expression. At page 866. the Court observed:
- "The impugned law far from being one, which merely interferes with the right of freedom of speech incidentally, does so directly though it seeks to achieve the end by purporting to regulate the business aspect of a newspaper .............. Such a course is not permissible and the courts must be ever vigilant in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution." This decision does not help us in resolving the point at issue in this case for the court was concerned with the question whether the right of freedom of speech was directly affected by the impugned order. The impact of legislation under Article 21 on the rights guaranteed under Article 19 (1) was not in issue in the case.
188. In Kharak Singh's case the majority took the view that the word 'liberty' in Article 21 is qualified by the word 'personal,' and there its content is narrower and the qualifying adjective has been employed in order to avoid overlapping between those elements or incidents of liberty like freedom of speech or freedom of movement etc. already dealt with in Article 19 (1) and the liberty guaranteed by Article 21 and particularly in the context of the difference between the permissible restraints or restrictions which might be imposed by sub-clauses (2) to (6) of the Article of the several species of liberty dealth with in several clauses of Article 19 (1). The minority view as expressed by Subba Rao, J. is that if a person's fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action; but that cannot be a complete answer unless the State laws satisfy the test laid down in Article 19 (2) as far the attributes covered by Article 19 (1) are concerned. In other words, the State must satisfy that petitioners fundamental rights are not infringed by showing that the law only imposes reasonable restrictions within the meaning of Article 19 (2) of the Constitution. The submission of the learned counsel for the petitioner is that the view as expressed by Subba Rao, J. has been affirmed by the subsequent decisions in the Bank Nationalisation case and Bennett Coleman's case.
189. On 19th July, 1969, the acting President promulgated an ordinance No. 8 of 1969 transferring to and vesting the undertaking of 14 named commercial banks in the corresponding new bank under the ordinance. Subsequently, the Parliament, enacted Banking Companies (Acquisition of Transfer of Undertaking) Act, 1969. The object of the Act was to provide for the acquisition and transfer of the undertakings of certain banking companies in conformity with the national policy and objectives and for matters corrected therewith and incidental thereto. The petitioners before the Supreme Court who held shares in some of the named banks or had accounts current or fixed deposits in the banks challenged the validity of the enactment. In the petitions under Article 32 of the Constitution the validity of the Ordinance and the Act was questioned on various grounds. I am concerned with ground No. 3 which runs as follows:
190. Article 19 (1) (f) and Article 31 (2) are not mutually exclusive and the law providing for acquisition of property for public purpose could be tested for its validity on the ground that it imposes limitation on the right to property which were not reasonable; so tested, the provision of the Act transferring undertaking of the named banks and prohibiting practically from carrying banking business violates the guarantee under Article 19 (1) (f) and (g). In dealing with this contention, the court held that Articles 19 (1) (f) and Article 31 (2) are not mutually exclusive. The court observed that the principle underlying the opinion of the majority in Gopalan's case was extended to the protection of the freedom in respect of property and it was held that Articles 19 (1) (f) and 31 (2) were mutually exclusive in their operation and that substantive provisionas of law relating to acquisition of property were not liable to be challenged on the ground that it imposes unreasonable restrictions on the right to hold property. After mentioning the two divergent lines of authority, the court held that "the guarantee under Article 31 (1) and (2) arises out of the limitations imposed on the authority of the State, by law, to take over the individual's property. The true character of the limitation of the two provisions is not different. Clause (1) of Article 19 and Clauses (1) and (2) of Article 31 are part of the similar Article 19 (1) (f) enunciating the object specified and Articles 19 (1) and 31 deal with the limitation which may be placed by law subject to which the rights may be exercised. Formal compliance with the conditions of Article 31 (2) is not sufficient to negative protection of guarantee to the rights to property. The validity of law which authorises deprivation of property and the law which authorises compulsory acquisition of the property for a public purpose must be adjudged by the application of the same test. Acquisition must be under the authority of a law and the expression law means a law which is within the competence of the legislature and does not impair the guarantee of the rights in Part III.
191. The learned counsel for the petitioner submitted that on similar reasoning it is necessary that an enactment under Article 21 must also satisfy the requirements of Article 19 and should be by a law which is within the competence of the legislature and does not impair the guarantee of the rights in part III including those conferred under Article 19 of the Constitution of India. The important question that arises for consideration is whether the decision in the Bank Nationalisation case has overruled the decision of Gopalan's case and is an authority for the proposition that an act of the legislature relating to deprivation of life and personal liberty should also satisfy the other fundamental rights guaranteed under Article 19 (1) of the Constitution.
192. In order to determine what exactly is the law that has been laid down in Bank Nationalisation Case it is necessary to closely examine the decision particularly from pages 570 to 578 of 1970 (3) SCR: (at pp. of 593 to 597 of AIR 1970 SC). After holding that :
- "Impairment of the right of the individual and not the object of the State in taking the impugned action, is the measure of protection. To concentrate merely on power of the State and the object of the State action in exercising that power is therefore to ignore that true intent of the Constitution."
- the Court proceeded to observe that "the conclusion in our judgment is inevitable that the validity of the State action must be adjudged in the light of its operation upon rights of individual and groups of individuals in all their dimensions."Having thus held the Court proceeded to state:
- "But this Court has held is some cases to be presently noticed that Article 19 (1) (f) and Article 31 (2) are mutually exclusive."
- "The view expressed in A. K. Gopalan's case was reaffirmed in Ram Singh v. State of Delhi, 1951 SCR 451
- ".... the right to property guaranteed by Article 19 (1) (f) would ... continue until the owner was under Article 31 deprived of such property by authority of law."
- " Article 19 (1) (f) read with Article 19 (5) presupposes that the person to whom the fundamental right is guaranteed retains his property over or with respect to which alone that right may be exercised."
193. In considering the various decisions referred to regarding the interrelation of Article 31 (2) and Article 19 (1) (f) the Court proceeded to express its view that "the theory that the object and form of the State action determine the extent of protection which the aggrieved party may claim is not consistent with the constitutional scheme. Each freedom has different dimensions." Having so stated the Court considered the inter-relation of Article 31 (2) and Article 19 (1) (f) and held:
- "The true character of the limitations under the two provisions is not different. Clause (5) of Article 19 and clauses (1) and (2) of Article 31 are parts of a single pattern: Article 19 (1) (f) enunciates the basic right to property of the citizenes and Article 19 (5) and clauses (1) and (2) of Article 31 deal with limitations which may be placed by law, subject to which the rights may be exercised." It must be noted that basis for the conclusion is that Article 19 and clauses (1) and (2) of Article 31 are parts of a single pattern and while Article 19 (1) (f) enunciates the right to acquire, hold and dispose of property; clause (5) of Article 19 authorises imposition of restrictions upon the right. There must be reasonable restriction and Article 31 assures the right to property and grants protection against the exercise of the authority of the State and clause (5) of Article 19 and clauses (1) and (2) of Article 31 prescribe restrictions upon State action, subject to which the right to property may be exercised. The fact that right to property guaranteed under Article 19 (1) (f) is subject to restrictions under Articles 19 (5) and 31 and thereby relate to the right to property closely inter-related cannot be overlooked for that formed the basis for the conclusion. After referring to the various Articles of the Constitution the Court observed:
- "The enunciation of rights either express or by implication does not follow uniform pattern. But one thread runs through them; they seek to protect the rights of the individual or group of individuals against infringement of those rights within specific limits. Part III of the Constitution weaves a pattern of guarantees delimit the protection of those rights in their allotted fields: they do not attempt to enunciate distinct rights."
- "We are therefore unable to hold that the challenge to the validity of the provisions for acquisition is liable to be tested only on the ground of non-compliance with Article 31 (2). Article 31 (2) requires that property must be acquired for a public purpose and that it must be acquired under a law with characteristics set out in that Article. Formal compliance of the condition of Article 31 (2) is not sufficient to negative the protection of the guarantee of the right to property."
- "We have carefully considered the weighty pronouncements of the eminent judges who gave shape to the concept that the extent of protection of important guarantees such as the liberty of person, and right to property, depends upon the form and object of State action and not upon its direct operation upon the individual's freedom."
196. The decision in Bank Nationalisation case so far as it relates to Articles 19 (1) and 21, is in the nature of obiter dicta. Though it is a decision of a Court of 11 Judges and is entitled to the highest regard, as the Court had not applied its mind and decided the specific question and as is in the nature of a general, casual observation on a point not calling for decision and not obviously argued before it, the case cannot be taken as an authority on the proposition in question, The Court cannot be said to have declared the law on the subject when no occasion arose for it to consider and decide the question.
197. It may also be noted that as the Court ruled that the impugned Act violated Article 31 (2) by not laying down the necessary principles, the decision of the inter-relationship between Article 19 (1) (f) and Article 31 (2) was not strictly necessary for the purpose of giving relief to the petitioner. We are not concerned in this case as to whether the decision in Bank Nationalisation case is in the nature of obiter dicta so far as it held that Articles 19 (1) and 31 (2) are inter-related. But it is necessary to state that the decision proceeded on some erroneous assumptions. At page 571 of Bank Nationalisation case (supra) it was assumed "The Majority of the Court (Kania, C. J. and Patanjali Sastri, Mahajan, Mukherjea and Das JJ.) held that Article 22 being a complete code relating to preventive detention the validity of an order of detention must be determined strictly according to the terms and within the four corners of that articles." This statement is not borne out from the text of the judgments in Gopalan's case. At p. 115 of Gopalan's case (supra) Kania C. J. has stated: "The learned Attorney General contended that the subject of preventive detention does not fall under Article 21 at all and is covered wholly by Article 22. According to him, Article 22 is a complete code, I am unable to accept that contention." Patanjail Sastri J. at page 207 of the judgment said: "The learned Attorney General contended that Article 22 clauses (4) to (7) formed a complete code of constitutional safeguards in respect of preventive detention, and, provided only these provisions are conformed to. the validity of any law relating to preventive detention could not be challenged. I am unable to agree with this view." Das J. in referring to the Attorney General's argument at page 324 stated: "that Article 21 has nothing to do with preventive detention at all and that preventive detention is wholly covered by Article 22 (4) to (7) which by themselves constitute a complete code. I am unable to accede to this extreme point of view also." Mukherjea J. at p. 229 of that judgment observed: "It is also unnecessary to enter into a discussion on the question raised by the learned Attorney-General as to whether Article 22 by itself is a self-contained Code with regard to the law of preventive detention and whether or not the procedure it lays down is exhaustive." Justice Mahajan at page 226 held that "I am satisfied on a review of the whole scheme of the Constitution that the intention was to make Article 22 self contained in respect of the laws on the subject of preventive detention." It is thus seen that the assumption in Bank Nationalisation's case that the majority of the Court held that Article 22 is a complete code is erroneous and the basis of the decision stands shaken. If the obiter dicta based on the wrong assumption is to be taken as the correct position in law, it would lead to strange results. If Article 19 (1) (a) to (e) and (g) are attracted in the case of deprivation of personal liberty under Article 21, a punitive detention for an offence committed under the India Penal Code such as theft, cheating or assault would be illegal as pointed out in Gopalan's case by Kania C. J. and Patanjali Sastri J. for the reasonable restriction in the interest of public order would not cover the offences mentioned above. As held in Gopalan's case and in Saha's case, there can be no distinction between punitive detention under the Penal Code and preventive detention. As pointed out earlier even though Fazal Ali J. dissented in Gopalan's case, the same view was expressed by His Lordship so far as punitive detention was concerned.
He said "The Indian Penal Code does not primarily or necessarily impose restrictions on the freedom of movement and it is not correct to say that it is a law imposing restrictions on the right to move freely." The conclusion that Article 19 (1) and Article 21 were mutually exclusive was arrived at on an interpretation of language of Article 19 (1) (d) read with Article 19 (5) and not on the basis that Articles 19 (1) and 21 are exclusive and Article 21 a complete code. The words "personal liberty" based on the Draft Committee report on Article 15 (now Article 21) was added to the word 'personal' before the word 'liberty' with the observation that the word 'liberty' should be qualified by the word 'personal' before it for otherwise it may be construed very wide so as to include even the freedoms already dealt with in Article 13 (now Article 19). In Gopalan's case it was also pointed out by the Judges that Article 19 (1) and 21 did not operate on the same field as Articles 19 (1) and 31 (2) of the Constitution operate. The right under Article 21 is different and does not include the rights that are covered under Article 19. Article 19 (1) confers substantive rights as mentioned in clauses (a) to (g) on citizen alone and does not include the right of personal liberty covered in Article 21. For the reasons stated above obiter dicta in Bank Nationalisation's case that a legislation under Article 21 should also satisfy the requirements of Article 19 (1) cannot be taken be taken as correct law. The Court has not considered the reasoning in Gopalan's case and overruled it.
198. Before proceeding to consider the test of validity of a legislation as laid down in Bennett Coleman's case following the Bank Nationalisation case the decisions which followed the Bank Nationalisation case holding on the erroneous premises that the majority in Gopalan's case held that Article 22 was a self-contained code, may be shortly referred to. In S.N. Sarkar v. West Bengal, (1973)1 SCC 856 the Supreme Court held that in Gopalan's case the majority Court held that Article 22 was a self-contained Code and, therefore, the law or preventive detention did not have to satisfy the requirement of Articles 19, 14 and 20. In the Bank Nationalisation case the aforesaid premise in Gopalan was disapproved and, therefore , it no longer holds the field. Though the Bank Nationalisation case dealt with in relation to Articles 19 and 31, the basic approach considering the fundamental rights guaranteed in the different provisions of the Constitution adopted in this case held the major premises of the majority in the Gopalan case was erroneous. The view taken in this case also suffers from the same infirmities referred to in Bank Nationalisation case. Later, in the case of Khudiram v. West Bengal, (1975)2 SCC 81 a Bench of four Judges again erroneously stated that Gopalan's case had taken the view that Article 22 was a complete Code. After referring to Bank Nationalisation case and S. N. Sarkar's and to the case of H. Saha v. State of West Bengal, (1975)1 SCR 778 the Court regarded the question as concluded and a final seal put on this controversy and held that in view of the decision, it is not open to any one now to contend that the law of preventive detention which falls in Article 22 does not have to meet the requirement of Article 14 or Article 19."
199. In Additional District Magistrate v. S. S. Shukla, 1976 Supp SCR 172 the locus standi to move a habeas corpus petition under Article 226 of the Constitution of India while the Presidential order dated 27th June, 1975 was in force fell to be considered. The Court while holding that the remedy by way of writ petition to challenge the legality of an order of detention under the Maintenance of Internal Security Act is not open to a detenu during the emergency, had occasion to consider the observations made by the majority in Bank Nationalisation case regarding the application of Article 21 of the Constitution of India. Chief Justice Ray. at page 230 (of SCR): (at p. 1229 of AIR) held:
- "Article 21 is our rule of law regarding life and liberty. No other rule of law can have separate existence as a distinct right. The negative language of fundamental right incorporated in Part III imposes limitations on the power of the State and declares the corresponding guarantee of the individual to that fundamental right. The limitation and guarantee are complementary. The limitation of State action embodied in a fundamental right couched in negative form is the measure of the protection of the individual."
- "It seems to me that Gopalan's case was merely cited in Cooper's case for illustrating a line of reasoning which was held to be incorrect in determining the validity of 'law' for the acquisition of property solely with reference to the provisions of Article 31. The question under consideration in that case was whether Articles 19 (1) (f) and 31 (2) are mutually exclusive."
200. Next to Bank Nationalisation case strong reliance was placed on Bennett Coleman;s case by the petitioner for the proposition that the direct effect of the legislation of the fundamental rights is the test.
201. In the case the petitioners impugned the new newsprint policy on various grounds. The Court held that though Article 19 (1) (a) does not mention the freedom of press, it is settled view of the Court that freedom of speech and expression includes freedom of press and circulation. Holding that the machinery of import control cannot be utilised to control or curb circulation or growth of freedom on newspapers it was held that Newspaper Control Policy is ultra vires of the Import Control Act and the Import Control Order. The Court after referring to the two tests laid down in Bank Nationalisation case observed: "direct operation of the Act upon the right forms the real test". The question that was raised in the case was whether the impugned newsprint policy is in substance a newspaper control. The Court held that the Newsprint Control Policy is found to be Newspaper Control Order in the guise of framing an import control policy for newsprint. As the direct operation of the Act was to abridge the freedom of speech and expression, the Court held that the pith and substance doctrine does not arise in the present case. On the facts of the case there was no need to apply the doctrine of pith and substance.
202. It may be noted that in Bennett Coleman's case the question whether Articles 21 and 19 are mutually exclusive or not did not arise for consideration and the case cannot be taken as an authority for the question under consideration in the case. Bennett Coleman's case, Express Newspaper's case, Sakal Newspapers case were all concerned with the right to freedom of the press which is held to form part of freedom of speech and expression.
203. Whether the pith and substance doctrine is relevant in considering the question of infringement of fundamental rights, the Court observed at page 780 of the Bank Nationalisation case "Mr. Palkhivala said that the tests of pith and substance of the subject matter and of direct and of incidental effect of the legislation are relevant to question of legislative competence but they are irrelevant to the question of infringement of fundamental rights. In our view this is a sound and correct approach to interpretation of legislative measures and State action in relation to fundamental rights." It is thus clear, that the test of pith and substance of the subject-matter and of direct and incidental effect of legislation is relevant in considering the question of infringement of fundamental right.
204. The Court at page 781 said: "by direct operation is meant the direct consequence or effect of the Act upon the rights and quoted with approval the test laid down by the Privy Council in Commonwealth of Australia v. Bank of New South Wales. (1950) AC 235.
205. In deciding whether the Act has got a direct operation of any rights upon the fundamental rights, the two tests are, therefore, relevant and applicable. These tests have been applied in several cases before the decision in Bank Nationalisation case. A reference has been made to the decision of Express Newspapers (P.) Ltd. v. Union of India, AIR 1958 SC 578, where the test laid down was that there must be a direct and inevitable consequence of the legislation. In Hamdard Dawakhana v. Union of India, (1960)2 SCR 671 this Court followed the test laid down in express Newspapers case. The Court expressed its view that it is not the form or incidental infringement that determines constitutionality of a statute but reality and substance. In Sakal Papers (P.) Ltd. v. Union of India, (1962)3 SCR 842 it was held that the "Correct approach in such cases should be to enquire as to what in substance is the loss or injury caused to the citizen and not merely what manner and method have been adopted by the State in placing the restriction. The Supreme Court in some cases considered whether the effect of the operation of the legislation is direct and immediate or not. If it is remote, incidental or indirect, the validity of the enactment will not be effected. The decision in Cooper's case has not rejected the above test. The test laid down in Cooper's case is the direct operation on the rights of the person.
206. The test was adopted and explained in Bennett Coleman's case as pointed above.
207. The view that pith and substance rule is not confined in resolving conflicts between legislative powers is made clear in the decision of the Federal Court in Subramaniam Chettiar's case, where Varadachariar, J. after referring briefly to the decision of Gallagher v. Lynn, (1937) AC 863 held that "They need not be limited to any special system of federal constitution is made clear by the fact that in Gallagher v. Lynn, Lord Atkin applied pith and substance rule when dealing with a question arising under the Government of Ireland Act which did not embody a federal system at all."
208. The Passport Act provides for issue of passports and travel documents for regulating the departure from India of citizens of India and other persons. If the provisions comply with the requirements of Article 21, that is, if they comply with the procedure established by law the validity of the Act cannot be challenged. If incidentally the Act infringes on the rights of a citizen under Article 19 (1) the Act cannot be found to be invalid. The pith and substance rule will have to be applied and unless the rights are directly affected, the challenge will fail. If it is meant as being applicable in every case however remote it may be where the citizen's rights under Article 19 (1) are affected punitive detention will not be valid.
209. The result of the discussion, therefore, is that the validity of the Passports Act will have to be examined on the basis whether it directly and immediately infringes on any of the fundamental right of the petitioner. If a passport is refused according to procedure established by law, the plea that his other fundamental rights are denied cannot be raised if they are not directly infringed.
210. The decisions of the Supreme Court wherein the right of person to travel abroad has been dealt with may be noticed. In Satwant Singh v. Assistant Passport Officer, Delhi, (1967)3 SCR 525 the Court held that though a passport was not required for leaving, for practical purposes no one can leave or enter into India without a passport. Therefore, a passport is essential for leaving and entering India. The Court held the right to travel is part of personal liberty and a person could not be deprived of it except according to the procedure laid down by law. The view taken by the majority was that the expression 'personal liberty' in Article 21 only excludes the ingredients of liberty enshrined in Article 19 of the Constitution and the expression 'personal liberty' would take in the right to travel abroad. This right to travel abroad is not absolute and is liable to be restricted according to the procedure established by law. The decision has made it clear that 'personal liberty' is not one of the rights secured under Article 19 and, therefore, liable to be restricted by the legislature according to the procedure established by law. The right of an American citizen to travel is recognised. In Kent v. Dulles, (1958) 357 US 116 (at p. 127), the Court observed that the right to travel is a part of the 'liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment. "The freedom of movement across the frontiers in either direction, and inside frontiers as well, is a part of our heritage. Travel abroad, like travel within the country...... may be as close to the heart of the individual as the choice of what he eats. or wears, or reads. Freedom of movement is basic in our scheme of values." In a subsequent decision - Zemel v. Rusk (1966) 381 US 1 at p. 14 the Court sustained against due process attack the Government's refusal to issue passports for travel to Cuba because the refusal was grounded on foreign policy considerations affecting all citizens. 'The requirements of due process are a function not only of the extent of the governmental restriction imposed, but also of the extent of the necessity for the restriction."
- (The Constitution of the United States of America - Analysis and Interpretation - at page 1171)
212. The Procedure established by law does not mean procedure. however, fantastic and oppressive or arbitrary which in truth and reality is no procedure at all [(A. K. Gopalan v. State of Madras) 1950 SCR 88 (at p. 230) observations of Mahajan, J.]. There must be some procedure and at least it must confirm to the procedure established by the law must be taken to mean as the ordinary and well established criminal procedure, that is to say, those settled usages and normal modes of proceedings, sanctioned by the Criminal Procedure Code which is a general law of Criminal Procedure in the country. But as it is accepted that procedure established by law refers to statute law and as the legislature is competent to change the procedure the procedure as envisaged in the criminal procedure cannot be insisted upon as the legislature can modify the procedure. The Supreme Court held in Kartar Singh's case that Regulation 236 clause (b) of the U. P. Police Regulation which authorises domiciliary visits when there was no law on such a regulation, violated Article 21.
213. I will now proceed to examine the provisions of Passports Act, Act 15 of 1967 to determine whether the provisions of the Act are in accordance with the procedure established by law.
214. The Preamble states that the Act is to provide for the issue of passports and travel documents to regulate the departure from India of citizens of India and other persons and for matters incidental or ancillary thereto. It may be remembered that this Act. was passed after the Supreme Court had held in Satwant Singh v. Union of India, (1967)3 SCR 525 that the right to travel abroad is a part of persons's personal liberty of which he could not be deprived except in accordance with the procedure established by law in terms of Article 21 of the constitution. The legislature came forward with this enactment prescribing the procedure for issue of passports for regulating the departure from India of citizens and others.
215. Section 5 of the Act provides for applying for passports or travel documents etc. and the procedure for passing orders thereon. On receipt of an application under Sub-section (2) the passport authority may issue a passport or a travel document with endorsement in respect of the foreign countries specified in the application or issue of a passport or travel document with endorsement in respect of some foreign countries and refuse to make an endorsement in respect of other countries or to refuse to issue a passport or travel document and to refuse to make on the passport or travel document any endorsement. In the event of the passport authority refusing to make an endorsement as applied for or refusal to issue a passport or a travel document or refusal of endorsement, the authority is required to record in writing a brief statement of its reasons and furnish to that person, on demand, a copy thereof unless the authority for reasons specified in sub-section (3) refuses to furnish a copy. Section 6 provides that the refusal to make an endorsement shall be on one or other grounds mentioned in sub-sections (2) to (6). Section 8 provides that every passport shall be renewable for the same period for which the passport was originally issued unless the passport authority for reasons to be recorded in writing otherwise determines.
216. Section 10 is most important as the impounding of the passport of the petitioner was ordered under Section 10 (3) (c) of the Act. Section 10 (1) enables the passport authority to vary or cancel the endorsements on a passport or travel document or may with the previous approval of the Central Government, vary or cancel the conditions subject to which a passport or travel document has been issued, and require the holder of a passport or a travel document by notice in writing, to deliver up the passport or travel document to it within such time as may be specified in the notice. Sub-section (2) enables the holder of a passport or a travel document to vary or cancel the conditions of the passport.
217. Section 10 (3) with which we are concerned runs as follows:
- 10 (3):- The passport authority may impound or cause to be impounded or revoke a passport or travel document,-
- (a) If the passport authority is satisfied that the holder of the passport or travel document is in wrongful possession of;
- (b) If the passport or travel document was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the passport or travel document or any other person on his behalf;
- (c) If the passport authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public.
- (d) If the holder of the passport or travel document has at any time after the issue of the passport or travel document, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years;
- (e) If proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India;
- (f) If any of the conditions of the passport or travel document has been contravened;
- (g) If the holder of the passport or travel document has failed to comply with a notice under sub-section (1) requiring him to deliver up the same.
- (h) If it is brought to the notice of the passport authority that a warrant or summons for the appearance or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made."
218. Section 10 (5) requires the passport authority to record in writing a brief statement of the reasons for making an order under sub-section (1) or (3) and to furnish the holder of the passport on demand a copy of the same unless in any case the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public to furnish such a copy. Section 11 provides for an appeal by the aggrieved person against any order passed by the passport authority under several clauses mentioned is sub-section (1) of that section. It is also provided that no appeal shall lie against any order passed by the Central Government. Section 11 (5) provides that in disposing of an appeal, the appellate authority shall follow such procedure as may be prescribed and that no appeal shall be disposed of unless the appellant has been given a reasonable opportunity of representing his case. Rule 14 of the Passport Rules, 1967 prescribes that the appellate authority may call for the records of the case from the authority who passed the order appealed against and after giving the appellant a reasonable opportunity of representing his case pass final orders.
219. To sum up under Section 10 (3) (c) if the passport authority deems it necessary so to do for reasons stated in the sub-section, he may impound a passport. he is required to record in writing a brief statement of the reasons for making such order and to furnish a copy of the order on demand unless in any case he thinks for reasons mentioned in sub-section (5) that a copy should not be furnished. Except against an order passed by the Central Government the aggrieved person has a right of appeal. The appellate authority is required to give a reasonable opportunity to the aggrieved person of representing his case.
220. It was submitted on behalf of the petitioner that on a reading of Section 10 (3) observance of rules of natural justice, namely the right to be heard, is implied and as the Government had failed to give an opportunity to the petitioner to explain her case the order is unsustainable. In the alternative it was submitted that if Section 10 (3) (c) is construed as denying the petitioner an opportunity of being heard and by the provisions of Section 11 a right of appeal against an order passed by the Central Government is denied the provisions will not be procedure as established by a law under Article 21 and the relevant sections should be held ultra vires of the powers of the legislature. It was contended that the power conferred on the authority to impound a passport in the interests of general public is very vague and in the absence of proper guidance an order by the authority impounding the passport "in the interests of general public" without any explanation is not valid. The last ground may easily be disposed of. The words 'in the interests of general public' no doubt are of a wide connotation but the authority in construing the facts of the case should determine whether in the interests of public the passport will have to be impounded. Whether the reasons given have a nexus to the interests of general public would depend upon the facts of each case. The plea that because of the vagueness of the words 'interests of the general public' in the order, the order itself is unsustainable, cannot be accepted.
221. The submission that in the context the rule of natural justice, that is, the right to be heard has not been expressly or by necessary implication taken away deserves careful consideration. Under Section 10 (3) the passport authority is authorised to impound or revoke a passport on any of the grounds specified in clauses (a) to (h) of sub-section (3). Sub-section 3 (a) enables the authority to impound a passport if the holder of the passport is in wrongful possession thereof. Under sub-section 3 (b) the authority can impound a passport if it was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the passport. Under clause (d) a passport can be impounded if the holder had been convicted by a Court of India for any offence involving normal turpitude and sentenced to imprisonment for not less than two years. Under clause (e) the passport can be impounded where proceedings in respect of an offence alleged to have been committed by the holder of a passport is pending before a criminal court in India. Clause (f) enables the authority to impound the passport if any of the conditions of the passport have been contravened. Under clause (g) the passport authority can act if the holder of the passport had failed to comply with a notice under sub-section (1) requiring him to deliver up the same. Under sub-clause (h) a passport may be impounded if it is brought to the notice of the passport authority that a warrant or summons for appearance of the holder of the passport has been issued by any court or if there is an order prohibiting departure from India of the holder of the passport has been made by a court. It will be noticed that when action is contemplated under any of the clauses (a), (b), (d), (e), (f) and (h), it is presumed that the authority will give notice, for the passport authority cannot be satisfied under subclause (a) that the holder is in wrongful possession thereof or under clause (b) that he obtained the passport by suppression of material information. Similarly under clause (d) whether a person has been convicted by a court in India for any offence involving moral turpitude and sentenced to imprisonment for not less than two years, can only be ascertained after hearing the holder of the passport. Under clause (e) the fact whether proceedings in respect of an offence alleged to have been committed by the holder of the passport are pending before a criminal court can only be determined after notice to him. Equally whether a condition of passport has been contravened under sub-clause (f) or whether he has failed to comply with a notice under sub-section (1) can be ascertained only after hearing the holder of the passport. Under clause (h) also a hearing of the holder of the passport is presumed. Reading clause (c) in juxtaposition with other sub-clauses, it will have to be determined whether it was the intention of the legislature to deprive a right of hearing to the holder of the passport before it is impounded or revoked. In this connection, it cannot be denied that the legislature by making an express provision may deny a person the right to be heard. Rules of natural justice cannot be equated with the Fundamental Rights. As held by the Supreme Court in Union of India v. J.N. Sinha, (1971)1 SCR 791 that "Rules of natural justice are not embodied rules nor can they be elevated to the position of Fundamental Rights. Their aim is to secure justice or to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. They do not supplant the law but supplement it. If a statutory provision can be read consistently with the principles of natural justice, the courts should do so.
But if a statutory provision either specifically or by the necessary implication excludes the application of any rules of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice." So also the right to be heard cannot be presumed when in the circumstances of the case there is paramount need for secrecy or when a decision will have to be taken in emergency or when promptness of action is called for where delay would defeat the very purpose or where it is expected that the person affected would take an obstructive attitude. To a limited extent it may be necessary to revoke or to impound a passport without notice if there is real apprehension that the holder of the passport may leave the country if he becomes aware of any intention on the part of the passport authority or the Government to revoke or impound the passport. But that by itself would not justify denial of an opportunity to the holder of the passport to state his case before a final order is passed. It cannot be disputed that the legislature has not by express provisions excluded the right to be heard. When the passport authority takes action under Section 10 (5) he is required to record in writing a brief statement of reasons and furnish a copy to the holder of the passport on demand unless he for sufficient reasons considers it not desirable to furnish a copy. An order thus passed is subject to an appeal where an appellate authority is required to give a reasonable opportunity to the holder of the passport to put forward his case. When an appeal has to be disposed of after giving an opportunity to the aggrieved person it cannot to do so without hearing the aggrieved person. Further when a passport is given for a specified period the revocation or impounding during the period when the passport is valid can only be done for some valid reason. There is a difference between an authority revoking or modifying an order already passed in favour of a person and initially refusing to grant a licence. In Purtabpur Co. v. Cane Commissioner. Bihar (1969)2 SCR 807 the Supreme Court held that "it would not be proper to equate an order revoking or modifying a licence with a decision not to grant a licence." In Schmidt v. Secretary of State, Home Affairs, (1969)2 Ch 149 Lord Denning observed that 'If his permit (alien) is revoked before the time limit expires he ought, I think, to be given an opportunity of making representation; for he would have a legitimate expectation of being allowed to stay for the permitted time."
Lord Denning extended the application of the rule of audi alteram partem even in the case of a foreign alien who had no right to enter the country. When a permit was granted and was subsequently sought to be revoked it has to be treated differently from that of refusing permission at the first instance. As in the present case the passport which has been granted is sought to be impounded the normal presumption is that the action will not be taken without giving an opportunity to the holder of the passport. Section 10(3) in enumerating the several grounds on which the passport authority may impound a passport has used the words like 'if the authority is satisfied,' "the authority deems it necessary to do so." The Privy Council in Durayappah v. Fernando (1967)2 AC 337 after referring to an earlier decision in Sugathadasa v. Jayasinghe (1958) 59 NLR 457 disagreed with the decision holding "As a general rule that words such as 'where it appears to....' or: 'if appears to the satisfaction of ......' or 'if the .... is satisfied that .... standing by themselves without other words or circumstances of qualification, exclude a duty to act judicially." The Privy Council in disagreeing with this approach observed that these various formulae are introductory of the matter to be considered and are given little guidance upon the question of audi alteram partem. The statute can make itself clear on this point and if it does cadit quaestio. If it does not then the principle laid down in Cooper v. Wardsworth Board of Works (1863) 14 CB (NS) 180 where Byles, J. stated "A long course of decision, beginning with Dr. Bentley's case (1723) 1 Str 557: 8 Mod 148 and ending with some very recent cases, establish, that although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the ommission of the legislature." In the circumstances, their is no material for coming to the conclusion that the right to be heard has been taken away expressly or by necessary implication by the statute.
222. I may at this stage refer to the stand taken by the learned Attorney-General on this question. According to him 'on a true construction, the rule audi alteram partem is not excluded in ordinary cases and that the correct position is laid down by the Bombay High Court in the case of Minoo Maneckshaw v. Union of India (1974) 76 Bom LR 788. The view taken by Tulzapurkar, J. is that the rule of audi alteram partem is not excluded in making an order under Section 10 (3) (c) of the Act. But the Attorney General in making the concession submitted that the rule will not apply when special circumstances exist such as need for taking prompt action due to the urgency of the situation or where the grant of opportunity would defeat the very object for which the action of impounding is to be taken. This position is supported by the decision of Privy Council in De Verteuil v. Knaggs, (1918) AC 557 wherein it was stated 'it must, however be borne in mind that there may be special circumstances which would satisfy a Governor, acting in good faith, to take action even if he did not give an opportunity to the person affected to make any relevant statement, or to correct or controvert any relevant statement brought forward to his prejudice."
This extraordinary step can be taken by the passport authority for impounding or revoking a passport when he apprehends that the passport holder may leave the country and as such prompt action is essential. These observations would justify the authority to impound the passport without notice but before any final order is passed the rule of audi alteram partem would apply and the holder of the passport will have to be heard. I am satisfied that the petitioner's claim that she has a right to be heard before a final order under Section 10 (3) (c) is passed is made out. In this view the question as to whether Section 10 (3) (c) is ultra vires or not does not arise.
223. It was submitted on behalf of the State that an order under section 10 (3) (C) is on the subjective satisfaction of the passport authority and that as the decision is purely administrative in character it cannot be questioned in a court of law except on very limited grounds. Though the courts had taken the view that the principle of natural justice is inapplicable to administrative orders, there is a change in the judicial opinion subsequently. The frontier between judicial or quasi judicial determination on the one hand and an executive or administrative determination on the other has become blurred. The rigid view that principles of natural justice applied only to judicial and quasi judicial acts and not to administrative acts no longer holds the field. The views taken by the courts on this subject are not consistent, while earlier decisions were in favour of administrative convenience and efficiency at the expense of natural justice, the recent view is in favour of extending the application of natural justice and the duty to act fairly with a caution that the principle should not be extended to the extreme so as to affect adversely the administrative efficiency. In this connection it is useful to quote the oft-rpeated observations of Lord Justice Tucker in Russell v. Duke of Narfolk, (1949)1 All ER 109 (at p. 118) "The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject mater that it being dealt with, and so forth..... but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case." In R. v. Gaming Board Ex. p. Benaim (1970) 2 QB 417 Lord Denning held that the view that the principle of natural justice applied only to judicial proceedings and not to administrative proceedings has been overruled in Ridge v. Baldwin (1964) AC 40. The guidance that was given to the Gaming Board' was that they should follow the principles laid down in the case of immigrants namely that they have no rights to come in, but they have a right to be heard. The Court held in construing the words the Board "shall have regard only" to the matter specified, the Board has a duty to act fairly and it must give the applicant an opportunity of satisfying them of the matter specified in the section. They must let him know what their impressions are so that he can disabuse them. The reference to the cases of immigrants is to the decisions of Chief Justice Parker in the Re H. K. (An infant) (1967) 2 QB 617 (at p. 630). In cases of immigrants though they had no right to come into the country it was held that they have a right to be heard. These observations apply to the present case and the plea of the petitioner that the authority should act fairly and that they must let her know what their impressions are so that, if possible, she can disabuse them, is sound.
224. In American law also the decisions regarding the scope of judicial review is not uniform. So far as constitutional rights are involved due process of law imports a judicial review of the action of administrative or executive officers. This proposition is undisputed so far as the question of law are concerned but the extent to which the Court should go and will go in reviewing determinations of fact has been a highly controversial issue. (Constitution of the United States of America. P. 1152, 1973 Ed.)
225. On a consideration of various authorities it is clear that where the decision of the authority entails civil consequences and the petitioner prejudicially affected he must be given an opportunity to be heard and present his case. This Court in Barium Chemicals Ltd. v. Company Law Board (1966) Supp SCR 311 and Rohtas Industries Ltd. v. S. D. Agrawal (1969) 3 SCR 108 has held that a limited judicial scrutiny of the impugned decision on the point of rational and reasonable nexus was open to a court of law. An order passed by an authority based on subjective satisfaction is liable to judicial scrutiny to a limited extent has been laid down in U.P. Electric Co. v. State of U. P. (1969) 3 SCR 865 wherein construing the provisions of Section 3 (2) (e) of the Indian Electricity Act 9 of 1910 as amended by the U.P. Act 30 of 1961, where the language used is similar to Section 10 (3) (c) of the Passport Act, this Court held that when the Government exercises its power on the ground that it "deems such supply necessary in public interest" if challenged, the Government must make out that exercise of the power was necessary in the public interest. The Court is not intended to sit in appeal over the satisfaction of the Government. If there is prima facie evidence on which a reasonable body of persons may hold that it is in the public interest to supply energy to consumers the requirement of the statute are fulfilled. "In our judgment, the satisfaction of the Government that the supply is necessary in the public interests is in appropriate cases not excluded from judicial review." The decisions cited are clear authority for the proposition that the order passed under Section 10 (3) (c) is subject to a limited judicial scrutiny. An order under Section 10 (3) (c) though it is held to be an administrative order passed on the subjective satisfaction of the authority cannot escape judicial scrutiny. The Attorney-General fairly conceded that an order under Section 10 (3) (c) is subject to a judicial scrutiny and that it can be looked into by the court to the limited extent of satisfying itself whether the order passed has a rational and reasonable nexus to the interests of the general public.
226. It was next contended on behalf of the petitioner that the provisions of Section 10 (5) of the Act which empowers the passport authority or the Government to decline furnishing the holder of the passport a brief statement of the reasons for making an order if the authority is of the opinion that it will not be in the interest of sovereignty and integrity of India, security of India, friendly relations of India with any foreign country, or in the interests of the general public is unsustainable in law. It was submitted that along with the right to refuse to furnish a copy of the order made by the Government, as a right of appeal is denied against an order made by the Central Government the provisions should be regarded as total denial or procedure and arbitrary. In view of the construction which is placed on Section 10 (3) (c) that the holder of the passport is entitled to be heard before the passport authority deems it necessary to impound a passport, it cannot be said that there is total denial of procedure. The authority under Section 10 (5) is bound to record in writing a brief statement of the reasons for making an order and furnish to the holder of the passport or travel document on demand a copy of the same, unless in any case, the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity of India, the security of India, friendly relation of India with any foreign country or in the interests of general public to furnish such a copy. The grounds on which the authority may refuse to furnish the reasons are the same as provided in Section 10 (3) (c) for impounding a passport but the two powers are exercisable in totally different contexts. Under Section 10 (3), the question that has to be considered is whether the passport has to be impounded in the interests of sovereignty and integrity of India etc. or in the interests of general public. In passing an order under Section 10 (5) it has to be considered whether in the interests of the sovereignty and integrity of India etc. or in the interests of general public, furnishing of a copy of the reasons for the order, should be declined. Though the same grounds are mentioned for impounding a passport as well as for refusing to furnish the reasons for making an order, it would not mean that when an order under Section 10 (3) (c) is passed it would automatically apply to Section 10 (5) and for the same reason the authority can decline to furnish the reasons for the order. Section 10(5) says that the authority shall furnish to the holder of the passport on demand a copy unless in any case the authority is of opinion that it will not be in the interest of sovereignty and integrity of India etc. The expression "unless in any case" would indicate that it is not in every case that the authority can decline to furnish reasons for the order. There may be some cases and I feel that it can be only in very rare cases, that a copy containing the reasons for making such order can be refused. Though rare there may be some cases in which it would be expedient for the authority to decline to furnish a copy of the reasons for making such order. But that could only be an exception is indicated from the fact that the aggrieved persons has a right of appeal under Section 11 which has to be decided after giving a reasonable opportunity of representing his case. A reasonable opportunity cannot ordinarily be given without disclosing to that person that reasons for the order. In those rare cases in which a copy for the reasons of the order is declined by the passport authority and is not furnished during the hearing of the appeal, it would furnish sufficient justification for the courts to have a close look into the reasons for the order and satisfy itself whether it has been properly made. But I am unable to say that a provision which empowers the authority to decline to furnish reasons for making the order is not within the competence of the legislature. The learned counsel for the petitioner, with some justification, submitted that if no reasons are furnished by the Government and no appeal is provided against the order of the Government it would virtually amount to denial of procedure established by law as contemplated under Article 21 of the Constitution of India.
Though there is considerable force in this submission. I am unable to accept this plea for two reasons. Firstly the Government is bound to give an opportunity to the holder of the passport before finally revoking or impounding it. I expect the case in which the authority declines to furnish reasons for making such an order would be extremely rare. In such cases it should be borne in mind that when the Government itself passes an order it should be presumed that it would have made the order after careful scrutiny. If an order is passed by the passport authority, an appeal is provided. If the Government passes an order, though no appeal is provided for, but as the power is vested in the highest authority the section is not unconstitutional - (Chinta Lingam v. Government of India, (1971) 2 SCR 871 at p. 876) for the order would be subject to judicial scrutiny by the High Court and the Supreme Court. I feel that in the circumstances there is no justification for holding that Section 10 (5) of the Act is ultra vires of the power of the legislature. We have taken note of the fact that in the present case there is no reason in declining to furnish to the petitioner the statement of reasons for impounding the passport but such a lapse by the authority would not make Section 10 (5) ultra vires of the powers of the legislature.
227. It was next contended that in the present case the passport was impounded under Section 10 (3) (c) of the Act on the ground that (a) it is in the public interest that Smt. Maneka Gandhi should be able to give evidence before the Commission of Inquiry and, (b) that Smt. Maneka Gandhi should have an opportunity to present her views before the Commission of Inquiry and according to a report received there is likelihood of Smt. Maneka Gandhi leaving India. It was submitted that impounding of the passport on the ground stated above is unjustified. Referring to Section 10 (3) (h) where it is provided that when it is brought to the notice of the passport authority that a warrant or summons for appearance or a warrant for the arrest of the holder of the passport has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made, impound the passport. For application of this clause there must be a warrant or summons from the court or an order by the Court prohibiting the departure from India. It was submitted that it is not certain whether the Commission would require the presence of the petitioner at all and if required when her presence will be necessary. There had been no summons or any requisition from the Commission of Inquiry requiring the petitioner's presence and in such circumstances it was submitted that the order is without any justification. A notification issued by the Ministry of External Affairs under Section 22 (a) of the Passports Act on 14-4-1976 was brought to our notice. By that notification the Central Government considered that it is necessary in the public interest to exempt citizens of India against whom proceedings in respect of an offence alleged to have been committed by them are pending before a criminal court in India and if they produce orders from the Court concerned permitting them to depart from India from the operations of the provisions of clause (f) of sub-section (2) of Section 6 of the Act subject to the condition that the passport will be issued to such citizen only for a period specified in such order of the Court and if no period is specified the passport shall be issued for a period of six months and may be renewed for a further period of six months if the order of the court is not cancelled or modified. The citizen is also required to give an undertaking to the passport authority that he shall, if required by the court concerned, appear before it at any time during the continuance in force of the passport so issued. It was submitted that when such facility is provided for a person who is being tried for an offence in a criminal court the same facility at least should be given to a person who may be required to give evidence before a Commission of Inquiry. It is unnecessary for me to go into the questions as to whether in the circumstances the impounding of the passport is justified or not for the learned Attorney General submitted that the impounding was for the purpose of preventing the petitioner from leaving the country and that a final decision as to whether the passport will have to be impounded and if so for what period will be decided later. On behalf of the Government a statement was filed which is as follows :-
- "1. The Government is agreeable to considering any representation that may be made by the petitioner in respect of the impounding of her passport and giving her an opportunity in the matter. The opportunity will be given within two weeks of the receipt of the representation. It is clarified that in the present case, the grounds for impounding the passport are those mentioned in the affidavit in reply dated 18th August, 1977 of Shri Ghosh except those mentioned in para 2 (xi).
- 2. The representation of the petitioner will be dealt with expeditiously in accordance with law.
- 3. In the event of the decision of impounding the passing having confirmed, it is clarified that the duration of the impounding will not exceed a period of six months from the date of the decision that may be taken on the petitioner's representation.
- 4. Pending the consideration of the petitioner's representation and until the decision of the Government of India thereon, the petitioner's passport shall remain in custody of this Honourable Court.
- 5. This will be without prejudice to the power of the Government of India to take such action as it may be advised in accordance with the provisions of the Passport Act in respect of the petitioner's passport."
228. In the result, I hold that the petitioner is not entitled to any of the fundamental rights enumerated in Article 19 of the Constitution and that the Passport Act complies with the requirements of Article 21 of the Constitution and is in accordance with the procedure established by law. I construe Section 10 (3) (c) as providing a right to the holder of the passport to be heard before the passport authority and that any order passed under Section 10 (3) is subject to a limited judicial scrutiny by the High Court and the Supreme Court.
229. In view of the statement made by the learned Attorney General to which reference has already been made in judgment, I do not think it necessary to formally interfere with the impugned order. I accordingly dispose of the writ petition without passing any formal order. There will be no order as to costs.
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