The tests of reason and justice cannot be abstract. They cannot be divorced from the needs of the nation.
|Case name||Maneka Gandhi vs Union Of India|
|Case number||1978 AIR 597, 1978 SCR (2) 621(Writ Petition No. 231 of 1977)|
|Court||The Supreme Court of India|
|Bench||M.H. Beg, M. Hameedullah (Cj), Chandrachud, Y.V., Bhagwati, P.N., Krishnaiyer, V.R. & Untwalia, N.L., Fazalali, S.M. & Kailasam, P.S.|
|Decided on||25 January, 1978|
|Relevant Act/Sections||Constitution of India – Articles 14, 19(1)(a) and 21, Principles of Natural Justice, Passport Act, 1967.|
Brief Facts and Procedural History:-
- The petitioner (Maneka Gandhi) was a journalist whose passport was issued on June 1, 1976, under the Passport Act, 1967. Later on July 2nd, 1977, the Regional Passport Officer, New Delhi, had ordered the petitioner to surrender her passport by a letter posted.
- Upon enquiring about the reasons for her passport confiscation, The Ministry of External Affairs declined to produce any reasons “in the interest of the general public.”
- Therefore, the petitioner had filed a writ petition under Article 32 of the Constitution of India stating the seize of her passport as the violation of her fundamental rights; specifically Article 14 (Right to Equality), Article 19 (Right to Freedom of Speech and Expression) and Article 21 (Right to Life and Liberty) guaranteed by the Constitution of India.
- The respondent stated that the petitioner was required to be present in connection with the proceedings which was going on, before a Commission of Inquiry.
Issue before the Court:
- Whether the Fundamental Rights are absolute or conditional and what is the extent of the territory of such Fundamental Rights provided to the citizens by the Constitution of India?
- Whether ‘Right to Travel Abroad’ is protected under the umbrella of Article 21.
- Whether there is a connection between the rights guaranteed under Articles 14, 19 and 21 of the Constitution of India?
- Determining the scope of ‘Procedure established by Law’.
- Whether the provision laid down in Section 10(3)(c) of the Passport Act, 1967 is violative of Fundamental Rights and if it is, whether such legislation is a concrete Law?
- Whether the Impugned order of Regional Passport Officer is in contravention of principles of natural justice?
Ratio of the Court:
- The Counsel for the petitioner contended that to maintain the spirit of our founding fathers in the Constituent Assembly and to give effect to the spirit of our constitution, Fundamental Rights should be read in consonance with each other and in this case, Articles 14, 19 and 21 of the Constitution of India must be read together. Fundamental rights are entitled to every citizen by virtue of being a human and is a guarantee against the state. To have a well-ordered and civilized society, the freedom guaranteed to its citizens must be in regulated form and therefore, reasonable restrictions were provided by the constitutional assembly from clauses (2) to (6) in Article 19 of the Constitution of India. But, the laid restrictions do not provide any ground to be executed in this case.
- The Counsel relied on the case of Kharak Singh vs The State Of U. P. [1963 AIR 1295, 1964 SCR (1) 332] where the term “personal liberty” is used in the constitution is a compendium including all the varieties of rights in relation to personal liberty. It was given a wider interpretation . The ‘Right to Travel Abroad’ is a derivative of the right provided under ‘personal liberty’ and no citizen can be deprived of this right except according to the procedure prescribed by law. The Passports Act, 1967 does not prescribe any procedure for confiscating or revoking or impounding a passport of its holder. Hence, it is unreasonable and arbitrary. “Audi Alteram Partem” is an essential constituent of Natural Justice which is a chance to be heard, was not granted to the petitioner. Any procedure established by law is required to be free of arbitrariness and must comply with the “principles of natural justice”.
- On behalf of the Union of India, the Attorney General contended before the court that the passport was impounded because the petitioner was required to appear before some committee’s for enquiry. the ‘Right to Travel Abroad’ was never covered under any clauses of article 19(1) and hence, Article 19 is independent of proving the reasonableness of the actions taken by the Central Government. Relying in the judgement in A.K. Gopalan vs The State Of Madras [1950 AIR 27, 1950 SCR 88] the respondent contended that the word ‘law’ under Article 21 cannot be comprehended in the light fundamental rules of natural justice. Further, the principles of natural justice are vague and ambiguous. Therefore, the constitution should not refer to such vague and ambiguous provisions as a part of it.
- In the present case, the SC overruled the judgement in A.K. Gopalan (Supra) .The Court observed and elevated the Right to Life and Personal Liberty enshrined in our constitution. The phrase used in Article 21 is “procedure established by law” instead of “due process of law”, meaning the procedure must be free from arbitrariness and irrationality. The procedure established by law must satisfy certain requisites in the sense of being reasonable and just and it cannot be arbitrary depriving the citizens the Fundamental rights. The Court clearly stated that each Fundamental Right is not distinct from each other whereas it is mutually dependent on each other.
In this regard ,
- Justice Iyer has very well opined that no Article in the Constitution is an island in itself. Justice Bhagwati held that the procedural law has to meet the requirements of Articles 14 & 19 to be a valid law under Article 21.
- In context of travelling and its position in terms of liberty, the court observed that “Travel makes liberty worthwhile” therefore no person can be deprived of his right to travel abroad. Reliance was placed on Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer , Government of India, New Delhi & Ors. (1967 3 SCR 525) where 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 Passport 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.
- In the present facts of the case, the Central Government never did disclose any reasons for impounding the petitioner’s passport rather she was told that the act was done in “the interests of the general public” whereas it was found out that her presence was felt required by the respondents for the proceedings before a commission of inquiry. 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 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. The Central Government was unjustified in withholding reasons for impounding passport from petitioner and this was not only in breach of statutory provision, but it also amounted to denial of opportunity of hearing to petitioner.
- Order impounding passport of petitioner was, therefore, clearly in violation of rule of natural justice embodied in maxim ‘audi alteram partem’ and it was not in conformity with procedure prescribed by Passports Act, 1967. If an order impounding a passport is made in interests of public order, decency or morality, restriction imposed by it may be so wide, excessive or disproportionate to mischief or evil sought to be averted that it may be considered unreasonable and in that event, if direct and inevitable consequence of Order is to abridge or take away freedom of speech and expression, it would be violative of Art. 19(1)(a) and would not be protected by Art. 19(2) and same would be position where the order is in interests of the general public but it impinges directly and inevitably on freedom to carry on a profession in which case it would contravene Art. 19(1)(g) without being saved by provision enacted in Art. 19(6). Impugned Order in present case does not violate either Art. 19(1)(a) or Art. 19(1) (g).The direct and inevitable consequence of impugned order was to impede 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. Furthermore, procedure ‘established’ by Passports Act, 1967 for impounding a passport is in conformity with requirement of Article 21 and does not fall foul of that article.
- Although, it is not for court to decide whether presence of petitioner is likely to be required for giving evidence before the Commissions of Inquiry ,Government, which has instituted Commissions of Inquiry, would be best in a position to know, having regard to material before it, whether presence of petitioner is likely to be required .It may be that her presence may ultimately not be required at all, but at present stage, question is only whether her presence is likely to be required and so far that is concerned, view taken by Government cannot be regarded as so unreasonable or perverse.
- Moreover, power is exercised by Central Government itself and it can safely be assumed that Central Government will exercise power in a reasonable and responsible manner. Thus, power conferred on Passport Authority to impound a passport under section 10(3)(c) cannot, therefore, be regarded as discriminatory and it does not fall foul of Art. 14. Section 10(3)(c) of the Passports Act 1967, is not violative of any fundamental rights. The petitioner is not discriminated in any manner under Article 14 because the statute provided unrestricted powers to the authorities. the ground of “in the interests of the general public” is not vague and undefined, rather it is protected by certain guidelines which can be borrowed from Article 19.
- Adding on, it is true that fundamental rights are sought in case of violation of any rights of an individual and when the State had violated it. But that does not mean, Right to Freedom of Speech and Expression is exercisable only in India and not outside. Merely because the state’s action is restricted to its territory, it does not mean that Fundamental Rights are also restricted in a similar manner.
- The judges mandated that any law which deprives a person of his personal liberty should stand the test of Article 21, 14 as well as 19 of the constitution. Also, principles of natural justice are sheltered under article 21.
Having regard to the majority view, and in view of the statement made by the learned Attorney-General to which reference has already has been made in the judgements we do not think it is 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.