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Mrs. Maneka Gandhi Vs. Union of India (UOI) and Anr.
AIR 1978 SC 597, (1978) 1 SCC 248, [1978] 2 SCR 621
Hon’ble Judges/Coram: P.N. Bhagwati, M. Hameedullah Beg, C.J., N.L. Untwalia, P.S. Kailasam, S. Murtaza Fazal Ali, V.R. Krishna Iyer and Y.V. Chandrachud, JJ.
Date of Decision: 25.01.1978
FACTS: –
The Petitioner is the holder of the passport issued to her under the Passport Act, 1967. Petitioner received a letter 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 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 making of the order.
ISSUES: –
- Whether section 10(3)(c) of the Passport Act is violative of Article 14, 19(1)(a) and (g) and 21 of the Indian Constitution?
- Whether the impugned rule is in contravention of Principles of natural justice?
- Whether impugned order is constitutionally valid or not?
JUDGMENT: –
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 to appeal. These are the relevant provisions of the Act to determine the constitutionality of Sub-section (3)(c) of Section 10 and the validity of the order impounding the passport of the petitioner.
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”. 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.’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.
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. Provisions of the Passports Act, 1967 lay 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, procedure cannot be arbitrary, unfair or unreasonable. 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. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. This court in the case of E. P. Royappa v. State of Tamil Nadu and Anr. (1974) ILLJ 172 SC observed 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 best 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.
Sometimes an unjust decision in an administrative inquiry may have far more serious consequences than a decision in a quasi-judicial inquiry and hence the rules of natural justice must apply equally in an administrative inquiry which entails civil consequences. Principles of Natural Justice have application in case of quasi-judicial actions. It is clear on a consideration of these circumstances that 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 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. 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, and 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. 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, 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 or unreasonableness. Therefore, 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.
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. 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 alterant partem and it was not in conformity with the procedure prescribed by the Passports Act, 1967.
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. The words “in the interests of the general public” in the section 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. It would be nothing short of heresy to accuse the constitution- makers of vague and loose thinking. 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, 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 grounds 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 right to go abroad cannot in all circumstances be regarded as included in freedom of speech and expression. Freedom of movement at home and abroad is a part of our heritage and 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 part 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. Otherwise, practically every activity would become 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. 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. So also, for the aforementioned 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).
It would thus be clear that though the impugned Order may be within the terms of Section 10(3)(c), it must nevertheless not contravene any fundamental rights and if it does, it would be void. Now, even if an order impounding a passport is made in the interests of public order, decency or morality, the restriction imposed by it may be so wide, excessive or disproportionate to the mischief or evil sought -to be averted that it may be considered unreasonable and in that event, if the direct and inevitable consequence of the Order is to abridge or take away freedom of speech and expression, it would be violative of Article 19(1)(a) and would not be protected by Article 19(2) and the same would be the position where the order is in the interests of the general public but it impinges directly and inevitably on the freedom to carry on a. profession in which case it would contravene Article 19(1)(g) without being saved by the provision enacted in Article 19(6). But the impugned Order in the present case does not violate either Article 19(1)(a) or Article 19(1)(g). The impugned Order is plainly, on the face of it, purported to be made in public interest, i.e., in the interests of the general public. 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 possibly support the making of the order in the interests of the general public.
HELD: –
Court clearly held that right to go abroad is part of Article 21 of the Indian constitution and passport authority does not have wide unguided and untrammelled discretionary powers with regard to impounding of passports. The impugned section of the Passport Ac does not fall foul of Article 14 and 19 of the Indian Constitution. But decision of Passport Authority in the instant case denying the opportunity of hearing to the petitioner after impounding of the passport cannot be accorded judicial assent, and therefore, is invalid.
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