sponsored ads

Environmental caselaws

Constitution of India Articles 14, 19 (1) (a) and
21--Personal liberty--Whether right to go abroad is part of
personal liberty--Whether a law which Complies with Article
21 has still to meet the challenge of Article 19--Nature
and ambit of Article 14--Judging validity with reference to
direct and inevitable effect--Whether the right under
Article 19(1) (a) has any geographical limitation.
Passports Act, 1967-Ss. 3,5,6,10(3)(c), 10(5)--Whether
s.10(3)(c) is violative of Articles 14, 19(1) (a) (b) &
21--Grounds for refusing to grant passport--Whether the
power to impound passport arbitrary--"in general public
interest" if vague.
Principles of Natural Justice--Whether applies only to quasi
judicial orders or applies to administrative orders
affecting rights of citizens--When statute silent whether
can be implied--Duty to act judicially whether can be spelt
out--In urgent cases whether principles of natural justice
can apply.
Note:- the entire case is of 154 pages so I am not giving details if you want to read the whole case than just visit supreme court of indias site and download the pdf .This will give you an outlook about the main subject of the case because it is often referred.
The petitioner was issued a passport on June 1, 1976 under
the Passport Act, 1967. On the 4th of July 1977, the
petitioner received a letter dated 2nd July, 1977, from the
Regional Passport Officer Delhi intimating to her that it
was decided by the Government of India to impound her
passport under s. 10(3)(c) of the Act "in public interest".
The petitioner was required to surrender her passport within
7 days from the receipt of that 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 s.10(5). A reply
was sent by the Government of India, Ministry of External
Affairs on 6th July 1977 stating inter alia that the
Government decided "in the interest of the general public"
not to furnish her copy of the statement of reasons for the
making of the order. The petitioner thereupon filed the
present Writ Petition challenging action of the Government
in- impounding her passport and declining to give reasons
for doing so. The Act was enacted on 24-4-67 in view of the
decision of this Court in Satwant Singg Sawhney’s case. The
position which obtained prior to the coming into force of
the Act was that there was no law regulating the issue of
passports for leaving the shores of India and going abroad.
The issue of passport was entirely within the unguided and
unchannelled discretion of the Executive. In Satwant
Singh’s case, this Court bell by a majority that the
expression ’personal liberty’ in Article 21 takes in, the
right of locomotion and travel abroad and under Art. 21 no
person can be deprived of his right to go abroad except
according to the procedure established by law. This
decision was accepted by the Parliament and the infirmity
pointed but by it was set right by the enactment of the
Passports Act, 1967. The preamble of the Act shows that it
was enacted to provide for the issue of passport and travel
documents to regulate the departure from India of citizens
of India and other persons and for incidental and ancillary matters. Se
ction 3 provides that no person shall denart
from or attempt to depart from India unless he holds in this
’behalf a valid passport or travel document. Section 5(1)
provides for making of an application for issue of a
passport or travel document for visiting foreign country.
Sub-section (2) of section 5 says that on receipt of such
application the Passport Authority, after making such
enquiry, 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 that 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 refuses to issue the passport or travel
document or to make any endorsement to record in writing a
brief statement of its reasons for making such order.
Section 6(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. Section 6(2) specifies the
grounds on which alone and on no other grounds the Passport
Authority shall refuse to issue the 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. Sub-section (1) of section 10 empowers the
Passport Authority to vary or cancel the endorsement on a
passport or travel document or to vary or cancel it on the
conditions subject to which a passport or travel document
has been issued having regard to, inter alia, the provisions
of s. 6(1) or any notification under s. 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 cl. (a) to (h).
The order impounding the passport in the present, case, was
made by the Central Government under cl. (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 the foreign country, or in the interests
of the general public."
Sub-section (5) requires the Passport Authority impounding
or revoking a passport or travel document or varying or
cancelling an endorsement made upon it 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
interest 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. The Central Government declined to
furnish a copy of this statement of reasons for impounding
the passport of the petitioner on the ground that it was not
in the interest of the general public to furnish such copy
to the petitioner.
The petitioner contended.
1.The right to go abroad is part of "personal liberty"
within the meaning of that expression as used in Art. 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 Passport Act, for impounding or revoking a
Passport. Even if some procedure can be traced in the said
Act it is unreasonable and arbitrary in as much as it does
not provide for giving an opportunity to the holder of the
Passport to be heard against the making of the order.
2.Section 10(3) (c) is violative of fundamental rights
guaranteed under Articles 14,19(1) (a) and (g) and 21.
3.The impugned order is made in contravention of the
rules of natural justice and is, therefore, null and void.
The impugned order has 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 Art. 19 (1) (g).
4. The impugned order could not consistently with Articles
19(1)(a) and (g)be passed on a mere information of the
Central Government that the presence of the petitioner is
likely to be required in connection with the proceedings
before the Commission of Inquiry.
5.In order that a passport may be impounded under s. 10
(3) (c), public interest must actually exist in present and
mere likelihood of public interest .arising in future would
be no ground for impounding the passport.
6. It was not correct to say that the petitioner was likely
to be required for .giving evidence before the Shah
The respondents denied the contentions raised by the
BEG, C. J., (Concurring with Bhagwati, J.)
1.The right of travel and to go outside the country is
included in the fight to personal liberty. [643 G]
Satwant Singh Sawhney v. D. Ramarathnam Assistant Passport
Officer, Covernment of India, New Delhi & Ors. [19671 3 SCR
525 and Kharak Singh v. State of U.P. & Ors. [1964] 1 SCR
332 relied on.
2.Article 21 though framed as to appear as a shield
operating negatively against executive encroachment over
something covered by that hield, is the legal recognition of
both the protection or the shield as well as of what it protects
which lies beneath that shield. [644 B]
A.K. Gopalan v. State of Madras, [1950] SCR 88 and
Additional District Magistrate, Jabalpur v. S. S. Shukla
[1976] Suppl. SCR 172 @ 327 referred to.
Haradhan Saha v. The State of West Bengal & Ors. [1975] 1
SCR 778, Shambhu Nath Sarkar v. State of West Bengal [1973]
1 S.C.R. 856 and R. C. ,Cooper v. Union of India [1973] 3
SCR 530 referred to.
3.The view that Articles 19 and 21 constitute watertight
compartments has been rightly over-ruled. The doctrine that
Articles 19 and 21 protect or regulate flows in different
channels, was laid down in A. K. Gopalan’s case in a context
which was very different from that in which that approach
was displaced by the counter view that the constitution must
be read as an integral whole, with possi, ble overlappings
of the subject matter, of what is sought to be protected by
its various provisions, particularly by articles relating to
fundamental rights. The ob. servations in A. K. Gopalan’s
case that due process with regard to law relating to
preventive detention are to be found in Art. 22 of the
Constitution because it is a self-contained code for laws.
That observation was the real ratio decidendi of Gopalan’s
case. Other observations relating to the separability of
the subject matters of Art. 21 and 19 were mere obiter
dicta. This Court has already held in A. D. M. Jabalpur’s
case by reference to the decision from Gopalan’s cast that
the ambit of personal liberty protected by Art. 21 is wide
and comprehensive. The questions relating to either
deprivation or restrictions of per sonal liberty, concerning
laws falling outside Art. 22 remain really unanswered by the
Gopalan’s case. The field of ’due process’ for cases of
preventive detenu tion is fully covered by Art. 22 but other
parts of that field not covered by Art 22 are ’unoccupied’
by its specific provisions. In what may be called unoccu
-pied 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 Arts 14 and 19 of the
Constitution. [646 E-H, 647 B-D, 648 A-B]
Articles dealing with different fundamental rights contained
in Part HI 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 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), or
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
Having regard to the majority view, and, in view of the
statement made by the learned Attorney-General to which
reference, has already been made in the judgments 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. The passport will remain
in the custody of the Registrar of this Court until further
orders. There will be no order as to costs.

No comments:

Post a Comment

sponsors ads