Together Citation: TOGE/SC/1022/1978
Maneka Gandhi vs Union Of India on 25 January, 1978
Equivalent citations: 1978 AIR 597, 1978 SCR (2) 621
Author: M
H Beg
Bench:
Beg, M. Hameedullah (Cj), Chandrachud, Y.V., Bhagwati, P.N., Krishnaiyer, V.R.
& Untwalia, N.L., Fazalali, S.M. & Kailasam, P.S.
PETITIONER:
MANEKA GANDHI
Vs.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT25/01/1978
BENCH:
BEG, M. HAMEEDULLAH (CJ)
BENCH:
BEG, M. HAMEEDULLAH (CJ)
CHANDRACHUD, Y.V.
BHAGWATI, P.N.
KRISHNAIYER, V.R.
UNTWALIA, N.L.
FAZALALI, SYED MURTAZA
KAILASAM, P.S.
CITATION:
1978 AIR
597 1978 SCR
(2) 621
1978 SCC
(1) 248
CITATOR INFO :
R 1978 SC1514
(12)
E&R 1978 SC1548
(4,10,23)
R 1978 SC1594
(6,15)
E&R 1978 SC1675
(53,55,57,127,167,171,197,227,
E&R 1979 SC 478
(90,91A,129,159)
D 1979 SC 745
(20,30,36,37,52,77)
RF 1979 SC 916
(15,54)
R 1979 SC1360
(2,5)
R 1979 SC1369
(6)
R 1979 SC1628
(21)
R 1979 SC1725
(25)
R 1979 SC1803
(7)
R 1979 SC1918
(14)
E 1980 SC 470
(2,10)
R 1980 SC 847
(4)
R 1980 SC 882
(7)
RF 1980 SC 898
(11,41,46,47,57,63,135,136)
E 1980 SC 962
(116)
RF 1980 SC1535
(3,21,30)
RF 1980 SC1579
(30)
RF 1980 SC1632
(26)
RF 1980 SC1762
(12)
F 1980 SC1992
(12)
F 1980 SC2147
(39,63)
RF 1981 SC 487
(16)
R 1981 SC 613
(9)
RF 1981 SC 674
(6)
RF 1981 SC 679
(20)
R 1981 SC 746
(3,5,8)
R 1981 SC 814
(5,6)
R 1981 SC 818
(19,25,37,39,92)
RF 1981 SC 873
(10)
R 1981 SC 917
(22,23)
RF 1981 SC1621
(10)
RF 1981 SC1675
(1)
RF 1981 SC1767
(10)
R 1981 SC1829
(96)
RF 1981 SC2041
(8,9)
RF 1981 SC2138
(16,27,30,31)
R 1982 SC 710
(63)
RF 1982 SC1315
(29)
MV 1982 SC1325
(2,11,16,18,73,75,80)
RF 1982 SC1413
(13,38)
R 1982 SC1473
(11,14)
R 1982 SC1518
(21)
R 1983 SC
75 (7)
R 1983 SC 130
(10,13,14)
R 1983 SC 361
(2,12,13,14,15)
RF 1983 SC 465
(5)
R 1983 SC 473
(6,24,25)
R 1983 SC 624
(8)
D 1983 SC1073
(22,23)
F 1983 SC1235
(6)
RF 1984 SC1361
(19)
RF 1985 SC 231
(2)
RF 1985 SC 551
(35)
E&R 1985 SC1416
(81,93,100,101,102,103,104)
RF 1985 SC1737
(13)
R 1986 SC 180
(39)
RF 1986 SC 555
(6)
RF 1986 SC 872
(71)
RF 1986 SC1035
(11)
RF 1986 SC1370
(101)
RF 1988 SC 157
(9)
RF 1988 SC 354
(15)
R 1988 SC1531
(64)
D 1988 SC1737
(87)
F 1989 SC1038
(4)
E&D 1989 SC1335
(52)
F 1989 SC1642
(25)
R 1990 SC 334
(104)
R 1990 SC1031
(12)
R 1990 SC1277
(46,48)
R 1990 SC1402
(29)
R 1990 SC1480
(109)
R 1991 SC 101
(31,32,34,65,157,223,239,257,2
RF 1991 SC 345
(6)
RF 1991 SC 564
(4)
RF 1992 SC
1 (133)
D 1992 SC1020
(23,28)
RF 1992 SC1701
(21,26,27,28)
F 1992 SC1858
(19)
ACT:
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.
HEADNOTE:
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
622
-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.
623
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
Commission.
The respondents
denied the contentions
raised by the
petitioner.
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 pro-
tects 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 unity of the
nation)
624
which our
Constitution visualfses.
Isolation of various
aspects of human freedom, for
purposes of their protection,
is neither realistic nor beneficial but would defeat very
objects of such protection. [648
B-D]
Blackstone's theory of natural
rights cannot be rejected as
totally irfelevantIf we have advanced today towards higher
civilization and in
a more enlightened era we cannot lag
behind what, at any rate, was
the meaning given to
'personal. liberty' long ago by
Blackstone. Both the rights
of personal security and personal
liberty recognised by what
Blackstone termed 'natural law' are embodied in Act.
21 of
the Constitution. [649 A-C, 650
H, 651 A-B]
A.D. M. Jabalpur vs. S. S. Shukla [1976] Supp. S.C.R.
172
relied on.
The natural law rights were meant to be converted
into our
constitutionally recognised
fundamental rights so that they
are to be
found within it and not outside it.
To take
a
contrary view would involve a conflict between natural law
and our constitutional law. A 'divorce between natural law
and our constitutional law would be
disastrous. It would
defeat one of the basic purposes of our Constitution. [652
B-C]
The total
effect and not the mere form
of a restriction
would 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. [652
H, 653A]
If rights under Art. 19 are rights which
inhere in Indian
citizens, individuals carry these
inherent fundamental
constitutional rights with
them-wherever they go, in so far
as our
law applies to them, because they are part
of the
Indian National 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 its Diplomatic Missions
abroad. They cannot claim to be
governed abroad by their
own constitutional or personal laws which do not
operate
outside India. [653 A-C]
In order to apply the test contained in Arts. 14
and 19 of
the Constitution we have to consider the objects
for which
the exercise of inherent rights
recognised by Art. 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 the test imposed by, Arts. 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 denial
of a passport.
In such a case, violation of both Arts.
21
and 19(1)(g) may 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. [653
F-H]
The tests of reason 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. The discretion left to the authority to
impound
a
passport in Public interest
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. In matters such as, grant, suspension, impounding or
cancellation of
passports, the possible
dealing 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, the grant of wide
discretionary power to the exe-
cutive authorities cannot be
considered as unreasonable yet
there must be procedural
safeguards to ensure that the Power
will not be used for purposes
extraneous to the grant of the
power. The procedural proprieties must be
insisted upon.
[654 A-E]
625
A bare, look at the provisions.
of s. 10(3) shows. that each
of the orders which- could be
passed; under s. 10(3) (a) and
(b) requires
a satisfaction of 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
provisions [654 G-H]
It is clear from the provisions of the Act that
there is a
statutory right
also acquired, on fulfilment of
the
prescribed conditions by the
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
proceedings. under Art. 32, the
Court is concerned only with
the, enforcement of fundamental constitutional rights
and
not with
any statutory rights
apart from fundamental.
rights. Article 21 , however, makes it Clear that violation
of all law whether statutory or
of any other kind is itself
an infringement of the guaranteed
fundamental right. [655 B-
D]
The orders under s. 10(3) must be based upon
some material
even if that material concerns in some cases
of reasonable
suspicion arising from certain credible assertions
made by
reliable individuals. 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
is given
to the
holder of the passport to show
why the step was unnecessary.
However, 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. [655
D-E]
It is well-settled that even when there is no specific
provision in a statute or rules
made thereunder for showing
case against
action proposed to be taken against an
individual, which affects the right of that individual the
duty to
give reasonable opportunity to be
heard will be
implied from the nature of the
function to be perform,,,' by
the authority which has the power
to take punitive or
damaging action. [655 G]
State of Orissa v. Dr. (Miss) Binapani Dei &
Ors. AIR
[1967] SC 1269 @ 1271 relied on.
Cooper v. Wandsworth Board of
Works, [1863] 14 C.B. (N. S.)
180 quoted with approval.
An order
impounding a passport
must be made
quasi-
judicially. This
was not done in the
present case. It
cannot be said that a good enough
reason has been shown too
exist for impounding the passport of the petitioner.
The
petitioner had no opportunity of
showing that the ground for
impounding it given in this Court either does not
exist or
has no
bearing on public interest or that the
public in-
terest can be better served in
some other manner. The order
should be quashed and the respondent should be directed to
give an opportunity to the
petitioner to show cause against
any proposed action on such
grounds as may be available.
[656 E-G]
There were no pressing grounds
with regard to the petitioner
that the
immediate action of impounding her
passport was
called for. The rather cavalier fashion
in which the
disclosure of any reason for
impounding of her passport was
denied to the petitioner despite
the fact that the only
reason said to exist is the
possibility of her being called
to give evidence
before a Commission of Inquiry.
Such a
ground is not such as to be
reasonably deemed to necessitate
its concealment in public
interest. [656 G-H]
Even executive authorities when
taking administrative action
which involves any deprivation of
or restriction 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, unreasonableness or
unfairness. They have to act in a manner which is patently
impartial and meets the
requirements of natural justice [657
A-B]
62 6
As the undertaking given by the
Attorney General amounts to
an offer to deal with the
petitioner justly and fairly after
informing her of any ground that may exist for
impounding
her passport, no further action
by this Court is necessary.
[657 C-D]
The impugned order must be
quashed and Passport Authorities
be directed
to return the passport to the
petitioner.
Petition allowed with costs.
[657D]
Chandrachud, J. (concurring with
Bhagwati, J.)
The power to refuse to disclose
the reasons for impounding a
passport is of
an exceptional nature and it ought to be
exercised fairly, sparingly and
only when fully justified by
the exigencies
of an uncommon situation. The reasons
if
disclosed, being open to judicial
scrutiny for ascertaining
their nexus
with the order impounding the passport,
the
refusal to disclose the reasons would also be open to
the
scrutiny of the
court; or else the wholesome power of a
dispassionate judicial
examination of executive orders could
with impunity be set at nought by
an obdurate determination
to suppress
the reasons. The disclosure made
under the
stress of the Writ Petition that the petitioner's passport
was impounded because, her
presence was likely
to be
required in
connection with the
proceedings before a
Commission of Inquiry, could
easily have been made when the
petitioner called upon the Government to let her know
the
reasons why her passport was
impounded. [658 A-D]
In Satwant
Singh Sawhney's case
this Court ruled,
by
majority, that the expression
personal liberty which occurs
in Art. 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 mere
prescription of some kind of
procedure cannot even 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
law which
curtails or takes away
the personal liberty
guaranteed by Art.
21
is reasonable or not has
to be
considered not
in the abstract
or on hypothetical
considerations like the provision
for a full-dressed hearing
as in a court room trial but in the contest,
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 Art.
21 is not the journey's end because
a law which
prescribes fair and reasonable procedure for
curtailing or
taking away the personal liberty
granted by Art. 21
has
still to meet a possible challenge under the other
provi-
sions of the Constitution. In the Bank Nationalisation case
the majority
held that the assumption in A.
K. Gopalan's
case 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 Arts. 31 and 19 and not of Arts.
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
Gopalan's case. [658 D-G, 659
A-B]
The test
of directness of the impugned law
as contrasted
with its consequence was thought in A. K.
Gopalan and Ram
Singh's case to be the true
approach for determining whether
a fundamental right
was infringed. A
significant
application of
that test may be perceived in
Naresh S.
Mirajkar's case
where an order passed by the Bombay High
Court prohibiting the publication
of a witness's evidence in
a
defamation case was upheld by
this Court on the ground
that it was passed with the object of
affording protection
to the witness
in order to obtain true evidence and
its
impact on the right of free
speech and expression guaranteed
by Art.
19 (1) (a) was incidental. N. H.
Bhagwati J. in
Express Newspapers Case struck a modified note by evolving
the test of proximate effect and operation of
the Statute.
That test saw its fruition in Sakal Paper's case
where the
Court giving precedence to the direct and
immediate effect
of the order over the form and
object, struck down the Daily
Newspapers (Price and Page)
Order, 1960, on the ground that
it violated
Article 19(1)(a) of the
Constitution. The
culmi-
627
nation of this thought process was reached in the Bank
Nationalisation case
where it was held by the
majority,
speaking through
Shah J, that the extent
of protection
against the impairment of a
fundamental right is determined
by the direct operation of an action upon the individual's
rights and not by the object of the Legislature or by
the
form of the
action. In Bennett Coleman's case the
Court
reiterated the same
position. It struck down the newsprint
policy restricting the number of
pages of newspapers without
the option to reduce the circulation as offending
against
the provisions of Art. 19(1)(a).
[659F-H, 660 A-C]
Article 19(1)(a) guarantees to
Indian Citizens the right to
freedom of speech and expression. It does not delimit the
grant of
that right in any manner and there is
no reason
arising either out of interpretational dogmas or pragmatic
considerations why courts should
strain the language of the
Article to cut down 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. [661 A-D]
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. The
Constitution guarantees certain
fundamental freedoms except
where their exercise is
limited by territorial
considerations. Those freedoms may be exercised wheresoever
one chooses
subject to the exceptions or
qualifications
mentioned in Art. 19 itself. The right to go out of India
is not
an integral part of the right of free speech
and
expression. 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 press.
The right
to go abroad on one hand and the right
of free
speech and expression on the
other are made up basically of
constituents so different that
one cannot be comprehended in
the other.
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.
This Court rejected the
contention that the freedom. to form
associations or unions contained
in Article 19(1)(c) carried
with it the right that a workers , union could do
all that
was necessary to make that right effective in
order to
achieve the purpose for which the
union was formed. [See the
decision in All India Bank
Employees Association. [661 F, H,
662 A-13, E]
Bhagwati, J. (for himself Untwalia and Murtaza Fazal Ali,
JJ)
The fundamental
rights in Part III of the Constitution
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. But these freedoms are not and cannot
be absolute, for absolute and unrestricted
freedom of one
may be
destructive of the freedom of another.
In a well
ordered civilised society, freedom
can only be regulated
freedom. It is obvious that Article 21 though couched
in
negative language
confers fundamental right to life
and
personal liberty.
The question that
arises for
consideration on the language of Art. 21 is as to what
is
the meaning and content of the words .personal
liberty' as
used in
this Article. In A. K.
Gopalan's case a
narrow
interpretation was placed on the words 'personal liberty.'
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 Arts. 19 and 21. [667 G-H, 668 D-E,
G, H,
669 A]
A.K. Gopalan v. State of Madras
[1950] SCR 88 and Kharak
Singh v. State of U. P. & Ors.
[1964] 1 SCR 332 referred to.
In Kharak Singh's case the
majority of this Court held that
'personal liberty' is used in the Article as a compendious
term to include within itself all
varieties of Tights which
go to make up the personal
liberties of man other than those
dealt with
in several clauses
of Article 19(1). The
minority however took the view
that the expression personal
liberty is a comprehensive one
and the right to move freely
is an attribute of personal
liberty. The minority observed
that it was not right to exclude any attribute
of personal
liberty from the scope
628
and ambit of Art. 21 on the ground that it was covered
by
Art. 19(1) It was pointed out by the, minority that
both Articles 19(1)and 21
are independent fundamental
rights though there is a certain
amountof overlapping; and
there is no question of one being
carved out of another. The
minority view was upheld as correct and it was pointed out
that it wouldnot be tight to read
the expression 'personal
liberty' in Art. 21 in a
narrowand restricted sense so
as to exclude those attributes of
personal liberty which are
specifically dealt with in Art. 19(1). 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
wavelength for
comprehending the scope and ambit of the
fundamental rights
has been set by the Court in R. C.
Cooper's case and the
approach of the Court
in, the
interpretation of the fundamental
rights must now be in tune
with this wave length. The expression 'personal liberty' in
Art. 21 is of the widest amplitude and 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
Art. 19(1).
Thus Articles 19(1) and 21 are
not mutually
exclusive. [669 B-670 A-H]
R. C. Cooper v. Union of India
[1973] 3 SCR 530 relied on.
Shambhu Nath Sarkar v. The State of West Bengal
& Ors.
applied.
Haradhan Saha v. The State of
West Bengal & Ors. followed.
This Court
held in case of Satwant Singh
that personal
liberty within the meaning of Art.
21 includes with
its
ambit the right to go abroad and
consequently no person can
be deprived
of this right except
according to procedure
prescribed by law. Obviously, the procedure
cannot be
arbitary, unfair or
unreasonable. The observations in A. K.
Gopalan's case
support this view and
apart from these
observations, even on principle,
the concept of reasonable-
ness must be projected in the
procedure contemplated by Art.
21, having regard to the impact of Art. 14 on Art.21. [671
A, D, G-H]
The decision
of the majority in A. K.
Gopalan's case
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 overruled by a majority of the Court in R.
C. Cooper's
case. The ratio of the majority judgment in R.
C. Cooper's
case was explained in clear and
categorical terms in Shambhu
Nath Sarkar's case and followed
in Haradhan Saha's case and
Khudi Ram Das's case. [672 B-C,
G, 673 A]
Shambhu Nath Sarkar v. State of
West Bengal [1973] 1 SCR 856
referred to.
Haradhan Saha v. State of West Bengal & Ors.
[1975] 1
SCR
778 and Khudiram
Das v. The State of West Bengal & Ors.
[1975] 2 SCR 832 relied on.
The law must therefore be now
taken to be well-settled that
Article 21 does not exclude Article
19 and that even
if
there is a law prescribing
procedure for depriving a person
of personal liberty and there is consequently
no infringe-
ment of the fundamental right
conferred by Art. 21, such law
ill so
far as it abridges or takes away any
fundamental
right under Article 19 would have to meet the
challenge of
that Article. Equally such law would be liable to be tested
with reference to Art. 14 and the
procedure prescribed by it
would have to answer the requirement of that
Article. [673
A-G]
The State of West Bengal v. Anwar
Ali Sarkar [1952] SCR 284
and Kathi Raning Rawat v. The
State of Saurashtra [1952] SCR
435 referred to.
Article 14 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
62 9
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 magnitude. Equality is
a dynamic concept with
many aspects
and dimensions and it cannot be
imprisoned
within traditional and
doctrinaire limits. [673 H, 674 A]
E.P. Royappa v. State of Tamil Nadu & Another [1974] 2
SCR 348 applied.
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. 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 omni-presence 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.
[674 B-C]
It is true that the Passports Act does not provide for
giving reasonable opportunity to
the holder of the passport
to be heard in advance before impounding a passport.
But
that is not conclusive of the
question. If the statute make
itself clear onthis point, then
no more question arises
but even when statute is silent
the lawmay in a given case
make an implication and apply the
principle. Naturaljustice
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.
[674 F-G, 675 A-B] Wiseman v.
Borneman [1971] A.C. 297
approved.
Schmidt v. Secretary of State for Home Affairs [1968]
112
Solicitor General 690 approved.
There can be no
distinction between a
quasi-judicial
function and an administrative function for the
purpose of
principles of natural
justice. The aim
of both
administrative inquiry as well as
the quasi-judicial enquiry
is to arrive
at a just decision and if a rule
of natural
justice is calculated to
secure justice or to
put it
'negatively, to
prevent miscarriage of
justice, it is
difficult to
see why it should be applicable
to quasi-
judicial enquiry and not to
administrative enquiry. It must
logically apply
to both. It cannot
be said
that the
requirements of
fairplay in action is any the less
in an
administrative enquiry
than in a
quasi-judicial one.
Sometimes an unjust decision in an administrative enquiry
may have far more serious
consequences than a decision in a
quasi-judicial enquiry and hence rules of natural
justice
must apply,
equally in an administrative enquiry
which
entails civil consequences. [676
G-H, 677 A]
Rex v. ElectricityCommissioners
[1924] 1 K.B. 171 referred
to.
Rex v. LegislativeCommittee of
the Church Assembly [1928]
1 K. B. 411 and Ridge v.
Baldwin[1964] A. C. 40 referred
to.
Associated Cement
Companies Ltd. v. P. N.
Sharma & Anr.
[1965] 2 SCR 366, State of Orissa v. Dr. Binapani [1967] 2
SCR 625 and A. K. Kraipak & Ors. v. Union of
India & Ors.
[1970] 1 SCR 457 relied.
The duty to act judicially need
not be superadded 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. Fairplay
in action
requires that
in administrative proceedings
also the
doctrine of natural justice must be held to be applicable.
[678 B-C]
In re : H. K. (An Infant) [1967] 2 Q.B. 617 and
Schmidt v.
Secretary of State for Home
Affairs referred to.
D
F.O. South Kheri v. Ram Sanehi Singh [1973] 3 S.C.C. 864
relied on
630
The law is not well settled that even in an administrative
proceeding which involves civil
consequences the doctrine of
natural justice must be held to
be applicable. [680 A]
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. The passport can be impounded only on certain
specified grounds set out in section
10(3) 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 authority is also required by s. 10(5) to
record in writing a brief statement of the reasons for
making the order impounding a passport and save in certain
exceptional situations, the
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. Thus, the power conferred on
the Passport
Authority to impound a passport is a quasijudicial
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. The argument
of the Attorney General however was 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 etc.,
would be frustrated. Now it is true that there may be cases
where, having regard to the nature of the action
to be
taken, its object and purpose and
the scheme of the relevant
statutory provision, fairness in
action may warrant
exclusion of the audi alteram partem rule. Indeed,
there
are certain wellrecognised exceptions to the audi
alteram
Partem rule established by
judicial decisions. These
exceptions, do not in any way
militate against the principle
which requires fair play in
administrative action. The word
exception is really a misnomer
because in these exceptional
cases the audi alteram partem
rule is held inapplicable not
by way of
an exception to fairplay in action but because
nothing unfair can be
inferred by not
conferring an
opportunity to present or meet a
case. The life of the law
is not
logic but experience.
Therefore, every legal
proposition must in the ultimate analysis be tested on Me
touch-stone of pragmatic realism.
[680 B-F, H, 681 C-F]
The audi
alteram partem rule
may, therefore, by
the
experiential test, be excluded,
if importing the right to be
heard has
the effect of paralysing the
administrative
process or the need for promptitude or the urgency of
the
situation so
demands. But, at the same time,
it must
be
remembered that this is a rule of vital importance in
the
field of administrative law and it must not be
jettisoned
save in
very exceptional
circumstances where Compulsive
necessity so demands. It
is a wholesome rule designed to
secure the rule of law and the
Court should not be too ready
to eschew it in its application
to a given case. The Court
must make every effort to salvage
this cardinal rule to the
maximum extent
permissible in a given
case. The audi
alteram partem rule is not
cast in a rigid
mould and
judicial decisions establish that
it may stiffer situational
modifications. The
core of it must, however,
remain,
namely, that the person
affected must have
reasonable
opportunity' of
being heard and the hearing must
be a
genuine hearing and not an empty
public relations exercise.
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
631
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. If such a provision
were held
to be incorporated in the
Act by necessary
implication the
procedure prescribed by the Act
for
impounding a passport
would be right, fair and just
and
would not
suffer from arbitrainess or
unreasonableness.
Therefore, the procedure
established by the Passport Act for
impounding a passport must be
held to be in conformity with
the requirement of Art. 21 and does not fall
foul of that
Article. [681 G-H, 682 A-C, E-H,
683 A-B]
In the
present case, however, the Central
Government not
only did
not give an
opportunity of hearing
of 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 requests made by
her. The
Central Government was wholly
unjustified in
withholding the reasons for
impounding the passport and this
was not only in breach of the statutory
provisions 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 was not in conformity with the procedure
prescribed by
the Act. The
learned Attorney General, however, made a
statement on
behalf of the Government of
India that the
Government was 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, and that the
representation would be dealt with
expeditiously in
accordance with law.
This statement
removes the vice from the order
impounding the passport and
it can no longer be assailed on
the ground that it does not
comply with the audi alteram
partem rule or is not in accord
with the procedure prescribed by
the Act. [683 C-G]
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 the 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. However,
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. [684C-D]
The words "in the interest
of the general public" cannot be
characterised as vague or
undefined. The expression "in the
interest of the general public" has clearly a well defined
meaning and the Courts have often
been called upon to decide
whether a particular action is in the interest of 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 Art
19(5) and it would be nothing
short of heresay to accuse the
constitution makers of vague and
loose thinking. Sufficient
guidelines are
provided by the Act itself 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 grounds stated in
S.10(3)(c), 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,
supply a copy of such statement of
reasons to the person
affected so
that the person concerned
can challenge the
decision of the Passport
Authority in appeal and the Appel-
late Authority can examine
whether the reasons given by the
Passport Autho-
632
rity are correct and if so whether they justify
the making
of the order impounding the
passport. It is true that when
the order
impounding the 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 Govt. 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
if
the 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 be regarded as
discriminatory. [684-D-H, 685 A-C]
The law on the point viz. the proper test or
yard-stick to
be applied
for determining whether a statute infringes a
particular fundamental
right, while adjudging
the
constitutionality of a statute
on the touchstone of
fundamental rights has undergone radical changes since the
days of
A.K. Gopalan's case [1950] SCR 88,
which was
followed in Ram Singh and Ors. v.
State of Delhi [1951] SCR
451 and applied in Naresh
Shridhar Mirajikar & Ors. v. State
of Maharashtra & Anr. [1966]
3 SCR 744, [685 D-G, 686-B]
According to these decisions, the
theory was 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 fundamental right therefore was : 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 persons and
right to property, depend upon the form and
object of the
state action
not upon its
direct operation upon
the
individual's freedom" held
sway, in spite of three decisions
of the Supreme Court in Dwarkadass
Srinivas v. The Sholapur
Weaving Co. Ltd. [1954] SCR 674;
Express Newspaper (P) Ltd.
JUDGMENT:
Ltd. & Ors. v. Union of India [1962] 3 SCR
842 formulating the test of direct and inevitable effect or the doctrine of
intended and real effect for the purpose of adjudging whether a statute offends
a particular fundamental right. However, it was only in R.C. Cooper v. Union of
India [1973] 3 SCR 530 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 as laid down in Gopalan's case was finally
rejected. 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. [685 H, 686 A-B,
D-H, 687 A-E, F-G] The test applied since R.C. Cooper's case was as to what is
the direct and inevitable consequence or effect of the impugned state action on
the fundamental right of the petitioner. It is possible that in a given case
the pith and substance of the State action may deal with a particular
fundamental right but its direct and inevitable effect may be on another
fundamental right and in that case, the state action would have to meet the
challenge of the latter fundamental right. The pith and substance doctrine
looks only at the object and subject matter of the state action, but in testing
the validity of the state action with reference to fundamental rights, what the
Courts must consider is the direct and inevitable consequence of the State
action. Otherwise the protection of the fundamental rights would subtly but
surely eroded. [690 B-D] A. K. Gopalan v. State of Madras [1950] 2
SCR 88; Ram Singh & Ors. V. State of Delhi [1951] SCR 451; Naresh
Sridhar Marajkar & Ors. V. State of Maharashtra & Anr. [1966] 3 SCR 744
referred to. R. C. Cooper v. Union of India [1973] 3 SCR 530; Dwarakadass
Srinivas v. the Sholapur and Weaving Co. Ltd. [1954] SCR 674; Express
Newspaper (P) Ltd. & Anr. v. Union of India, [1959] S.C.R. 12 and Sakal
Papers (P) Ltd. & Ors. v. Union of India [1962] 3 SCR 842; quoted
with approval, Bennet Coleman & Co. v. Union of India [1973] 2
SCR 757 applied. 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. 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 unquestionable 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 case (1959) SCR 12.
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 fortiorari it must be
presumed to have been intended by the authority taking the action and hence
this doctrine of direct and inevitable effect is described aptly 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 violated of Art. 19(1)(a) or (g). [698 C-F]
Prima facie, the right which is sought to be restricted by s. 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 Art. 19(1)(a) of the
Constitution. The right to go abroad, as held in Satwant Singh Sawhney's case
[1967] 3 SCR 525, is included in "personal liberty" within the
meaning of Art. 21 and is thus a fundamental right protected by that
Article. This clearly shows that there is no underlying principle in the
Constitution which, limits the fundamental right in their operation to the
territory of India. If a fundamental right under Art. 21 can be
exercisable outside India, there is no reason why freedom of speech and
expression conferred under 19(1)(a) cannot be so exercisable. [690 H, 694 C-D]
Satwant Singh Sawhney v. D. Ramarathnam, Asstt. Possport Officer, Govt. of
India, New Delhi & Ors., [1967] 3 SCR 525; Best v. United States, 184
Federal Reporter (ed) p 131, referred to. Dr. S. S. Sadashiva Rao V. Union
of India [1965] Mysore Law Journal p. 605 approved. There are no
geographical limitations to freedom of speech and expression guaranteed
under Art. 19(1) (a) and this freedom is exercisable not only in
India but also outside and if State action sets up barriers to its citizens'
freedom of expression in any country in the world, it would violate Art.
19(1) (a) as much as if it inhibited such expression within the country.
This conclusion would on a parity of reasoning apply equally in relation to
fundamental right to practise any profession or to carry on any occupation,
trade or business, guaranteed under Art. 19(1)(g). [694G-H, 695 A]
Freedom to go abroad incorporates the important function of an ultimum refunium
liberatis when other basic freedoms are refused. Freedom to go abroad has much
social value and represents a basic human right of great significance. It is in
fact incorporated as in alienable human right in Article 13 of the
Universal Declaration of Human Rights. But it is not specifically named as a
fundamental right in Art. 19(1) of the Constitution. [696 C-D] Kent
v. Dulles, 357 US 116 : 2 L.ed 2d, 1204 referred to. Even if a right is not
specifically named in Art. 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.
What is necessary to be seem 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 is in reality and substance
nothing but an instance of the exercise of, the named fundamental right. If
this be the correct test, the right to go abroad cannot in all circumstances be
regarded as included in freedom of speech and expression. [697 D-G] Kent v.
Dulles, 357 US. 116. 2 L.ed 2d. 1204 : Express Newspapers (P) Ltd. &
Anr. v. Union of India & Ors. [1959] SCR 12; Sakal Papers (P) Ltd.
& Ors. v. Union of India [1962] 3 SCR 842; Bennet Coleman &
Co. & Ors. v. Union of India [1973] 2 SCR 757; Ramesh Thappar v.
State of Madras [1950] SCR 594 referred to. Apthekar v. Secretary of State
378 US 500 : 12 L.ed 2d 992; Zamei v. Rusk 381 USI : 14 L.ed 2d 179 explained.
The theory that a peripheral or concomitant right
which facilitates the exercise of a named fundamental right or gives its
meaning and substance or makes its exercise effective, is itself a guaranteed
right included within the named fundamental right cannot be accepted.
[701 B-C] All India Bank Employees' Association v. National Industrial
Tribunal [1962] 3 SCR 269 applied.
The right to go abroad cannot therefore be regarded
as included in freedom of speech and expression guaranteed under Art.
19(1)(a) on the theory of peripheral or concomitant right. The right to go
abroad cannot be treated as part of the right to carry on trade, business or
profession or calling guaranteed under Art. 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 right to go
abroad by impounding of passport cannot be held as void as offending Article
19(1)(a) or (g), as its direct and inevitable impact is on the right to go
abroad and not on the right of free speech and expression or the right to carry
on trade, business, profession or calling. [702 C-E] But that does not mean
that an order made under s. 10 (3) (c) may not violate Article
19(1)(a) or (g). Where a statutory provision 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 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). [702F-H] Narendra Kumar & Ors. v.
Union of India & Ors., [1960] 2 SCR 375 referred to.
Though the impugned order may be within the terms
of s. 10(3) (c), it must nevertheless not contravene any fundamental
right 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 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 infringes 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 ion Article 19(6). [705 D-E] 6 3
5 The impugned order, in the present case does riot Violate either Art.
19(1)(a) or Art. 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 impugned order was made, there is nothing to show that the
petitioner was intending to go abroad for the purpose of exercising her freedom
or 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. [706
F-G] The petitioner is not justified in seeking to limit the expression
"interests of the general public" to matters relating to foreign
affairs. The argument that the said expression could not cover a situation
where the presence of a person is required to give evidence before a commission
of Inquiry_ 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 found
in Article 19(5) as well as Article 19(6). It is true that
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 the 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 a statutory provision Clauses (d), (e) and (h) of S. 10(3) make
it clear that there are several grounds in this section which do not relate to
foreign affairs. [709 B-F] Moreover the present case is not one where the maxim
"expressio unius exclusio ulterius has any application at all. [710-B-C]
Rohtas Industries Ltd. v. S. O. Agarwal & Anr., [1969] 3 SCR 108 @ 128
referred to.
OBSERVATION It is true that the power under s.
10(3) (c) is rather a drastic power to interfere with a basic human right,
but this power has been conferred by the legislature in public interest and
there is 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 s. 10(3)(e) or sec.
10(3)(b). [710G-H] Ghani v. Jones [1970] I Q. B 693 quoted with approval. 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. 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 Govt. the presences of the
petitioner was necessary for giving evidence before the Commission 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 Com- missions of Inquiry. [711-C-D] Krishna
lyer, J. (concurring with Bhagwati, J.) British Raj has frowned on foreign
travels by Indian patriotic suspects and instances from the British Indian
Chapter may abound. In many countries the passport and visa system has
been used as potent paper curtain to inhibit illustrious writers, outstanding
statesmen, humanist churchmen and renowned scientists, if they are dissenters,
from leaving their national frontiers. Things have changed, global awareness
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. And the universal Declaration of Human Rights has
proclaimed in Article 13, that every one has the right to leave any
country including his own, and to return to his country. This human planet is
our single home, though geographically variegated, culturally diverse,
politically pluralist in science and technology competitive and co-operative in
arts and life-styles a lovely mosaic and, above all, suffused with a cosmic
unconsciousness of unity and inter- dependence. [717 B, C, D, E-F] 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. [718 B] The right of free movement is a vital element of
personal liberty. The right of free movement includes right to travel abroad.
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 Art. 21 traumatically
and the several other freedoms fade out automatically. [720 A-B] Personal
liberty makes for the worth of the human person. Travel makes liberty
worthwhile. life is a terrestrial opportunity for unfolding personality rising
to a higher scale moving to fresh woods and reaching out to reality which makes
our earthly journey a true fulfilment, not a tale told by an idiot full of
sound and fury signifying nothing, but a fine frenzy rolling between heaven and
earth. The spirit of Man is at the root of Art. 21 Absent liberty,
other freedoms are frozen. [721 C-F] 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. What is
fundamental is life and liberty. What is procedural is the manner of its
exercise. This quality of fairness in the process is emphasised by the strong
word "establish" which means 'settled firmly'," not wantonly or
whimsically. [722 H, 723 A-B] Procedure in Article 21 means fair, not
formal procedure. Law is reasonable law, not any enacted piece. As Art. 22 specifically
spells out the procedural safeguards for preventive and punitive detention, a
law providing for such detention should conform to Art. 22. It has
been rightly pointed out that for other rights forming part of personal
liberty, the procedural safeguards enshrined in Art. 21 are
available. Otherwise, as the procedural safeguards contained in Art. 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. [723 F-H] Kochunmi's case (AIR 1960 SC 1080, 1093) referred. 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. [726 D-E] 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. [726 F] Sections
5, 6 and 10 of the impugned legislation must be tested even
under Art. 21 on canons 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. [727 F-H] Article 14 has a pervasive processual potency
and versatile quality, equalitarian in its soul and allergic to discriminatory
diktats. Equality is the antithesis of arbitrariness. [728 A] As far as
question of extra-territorial jurisdiction in foreign lands is concerned, it is
a misconception. 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 in any other country
if that other country has no objection to their travelling within its
territory. [728 C] In Gopalan's case it was held that Art. 22 is a
self- contained Code, however, 'this has suffered supersession at. the hands of
R. C. Cooper. [728 D] Sakal Newspapers [1962] 3 SCR 842, Cooper [1973] 3 SCR
530. Bennet Coleman [1973] 2 SCR 759 and Shambu Nath Sarkar [1973] 1 SCR 856
referred to.
The law is now settled that no article in Part III
is an island but Part 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 Art. 21 does not, in a given
situation exclude Art. 19 if both rights are breached. 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. [728 F-G,
729 A-B] High constitutional policy has harmonised individual freedoms with
holistic community good by inscribing exceptions to Art. 19(1) in Art
19(2) to (6). Even so, what is fundamental is the freedom, not the exception.
More im- portantly, restraints are permissible only to the extent they have
nexus with the approved object. No verbal labels but real values are the
governing considerations in the exploration and adjudication of constitutional
prescriptions and proscriptions. Governments come and go, but the fundamental
rights of the people cannot be subject to the wishful value-sets of political
regimes of the passing day. [729 C-D, 730 F] Locomotion in some situation is
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 Art. 19 Free speech is feasible without
movement beyond country. [731 B] The delicate, yet difficult, phase of the
controversy arrives where free speech and free practice of profession are
inextricably interwoven with travel abroad.
One, has to view the proximate and real consequence
of thwarting transnational travel through the power of the State exercised under s.
3 of the Passport Act read with ss. 5 and 6. Associated
rights totally integrated with fundamental rights must enjoy the same immunity.
Three sets of cases might arise. First, 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. [732 H, 733 A-C] Spies, traitors,
smugglers, saboteurs of the health, wealth and survival or sovereignty of the
nation shall not be passported into hostile soil to work their vicious plan
fruitfully. But when applying the Passports Act, Over- breadth,
hyper-anxiety, regimentation complex, and political mistrust shall not
sub-consciously exaggerate, into morbid or neurotic refusal or unlimited
imponding or final revocation of passport, facts which, objectively assessed,
may prove tremendous trifles. That is why the provisions have to be read down
into constitutionality, tailored to fit the reasonableness test and humanised
by natural justice. The Act willsurvive but the order shall perish
for reasons so fully set out by Shri JusticeBhagwati. And on this construction,
the conscience of the Constitution triumphs over vagarious governmental orders.
[734 E-G-H] Kailasam, J. (Dissenting) The preamble to the Constitution provides
that the people of India have solemnly resolved to constitute India into a
sovereign, socialist, secular and 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. Article 12 defines the State as including the Government
and Parliament of India and the Government and the Legislature of each of the
States and of 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
ex- tent void. 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. In England section 3 of the Statute of Westminster
declares that Parliament has full power to make laws having extra territorial
operation. The following are the principles to determine whether the provisions
of a Constitution or a Statute have extra territorial application.
(a)An Act unless it provides otherwise applies
only to the country concerned.
(b) An Act of a Legislature will bind the
subjects of the realm both within and without if that is the intention of the
Legislature, which must be gathered from the language of the Act in question.
(c) Legislature normally restricts operation of
legislation to its own territories. However, on occasions legislation
controlling the activities of its own citizens when they are abroad may be
passed.
Niboyet v. Niboyet 48 L.J.P.I. at p. 10 and Queen
v. Jameson and Others [1896] 2 Q.B. Division 425 at 430 referred to.
(d) 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 statute to operate beyond the territorial limit of the country.
[738-E-F-H, 739 A, B, E, G-H, 740 A, B, G-H]
Governor-General in Council v. Raleigh Investment Co. Ltd. A.I.R. (31) [1944]
Federal Court 51, referred to. Wallace Brothers & Co. Ltd. v.
Commissioner of Income-Tax, Bombay, Sind and Baluchistan [1945] F.C.R. 65
and Mohammad Mohy-ud-din v. The King Emperor [1946] F.C.R. 94 referred to.
The application of Article 14 is
expressly limited to the territory of India Articles 15, 16, 17, 18, 20 and 22
by their very nature are confined to the territory of India. Articles 23 to 28
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. It is possible
that the right conferred by Article 19(1)(a) may have
extra-territorial application. It is not likely, however, that the framers of
the Constitution intended the right to 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 extra-territorial application for such rights would not- be enforced
by the State outside the Indian territory. The rights conferred under Article
19 are fundamental rights and Arts. 32 & 226 provide, that those
rights are guaranteed and can be enforced by the aggrieved person by
approaching this Court or the High Courts. These rights cannot be protected by
the State outside its territory and, therefore, there is a presumption that the
constitution makers would not have intended to guarantee any rights which the
State cannot enforce. [742 H, 743 A-D-E-F] Virendra v. The State of Punjab and
Another, [1958] SCR 308 referred to.
It is most unlikely that before the declaration of
human rights was promulgated the framers of the Constitution decided to declare
that the fundamental rights conferred on the citizens would, be available even
outside India. Even in the American Constitution there is no mention of right
to freedom of speech or expressions as being available outside America. The law
made under Article 19(2) to 19(6) imposes restrictions on the
exercise of right of freedom of speech and expression 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, section 3 and 4 specifically
provides that crimes committed by citizens of India outside India are
punishable. In Article 19, however, there is no such provision expressly
or by necessary implication. Secondly, 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. Therefore, the contention of the petitioners
that by denying the passport the petitioner's fundamental rights guaranteed
by Article 19 are infringed cannot be accepted. [744 H, 745 A-D, 746
F-G, H, 747 A] The important question which arises, is whether an Act passed
under Article 21 should also satisfy requirements of Article 19. It
has been decided by this ,Court in Gopalan's case that the punitive detention
for offences under the Penal Code cannot be challenged on the ground
that it infringes fundamental rights under Article 19. [747 E-F] The
rights guaranteed under Article 19(1) are subject to restrictions
that may be placed by Articles 19(2) to 19(6). The right not to be deprived of
life and personal liberty is subject to its deprivation by procedure
established 'by law. In Gopalan's case it was held that Article 19 dealt
with the rights of the citizens when he was free and would not apply to person
who had ceased to be free and has been either under punitive or preventive
detention. 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. The aforesaid ratio
of Gopalan's case has been confirmed by this, Court in Ram Singh v. State
of Delhi. The view was again confirmed in the State of Bihar v. kameshwar
Singh. [749C,750B-G] Ram Singh v. State of Delhi [1951] SCR 451 and State
of Bihar v. Kameshwar 'Singh [1952] SCR 889 relied on. In Express
Newspapers, the test laid down was that there must be a direct or inevitable
consequences of the measure enacted in the impugned Act and that it would
not be Possible to strike down the legislation as having that effect and
operation. [751 B-C] Express Newspapers (P) Ltd. and another v. The Union
of India & Ors. [1959] 1 SCR 135 referred to.
In Hamdard Dawakhana's case it was held that it is
not the form or incidental infringement that determines the constitutionality
of a statute but the reality or the substance. [751 D] Hamdard Dawakhana
(Wakf) Lal Kuan v. Union of India [1960] 2 SCR 671 at page 691 and
Kochunni v. The State of Madras [1960] 3 SCR 887 referred to. Sakal Papers
(P) Ltd. and Ors. v. The Union of India [1962] 3 SCR 842 distinguished. In
Sakal Paper's Case the Court held that the order was void as it violated Article
19(1)(a) and was not saved by Article 19(2). In that case the
impact of legislation under Article 21 on the rights guaranteed
under Article 19(1) was not in issue. [752 C-D] Kharak Singh [1964] 1
SCR 332 relied on. Bank Nationalisation [1970] 3 SCR 530 and Bennet Coleman
[1973] 2 SCR 757 distinguished.
In Bank Nationalisation case the Court was only
considering the decisions that took the view that Articles 19(1)(f) and 31(2)
were mutually exclusive. The basis for the conclusion in Bank Nationalisation
case is that Articles 19 and 31 are parts of a single pattern and while Article
19(1)(f) enjoins the right to acquire, hold and dispose of property,
clause 5 of Article 19 authorises imposition of restrictions upon the
right. There must be a 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 the said action, subject to
which the right to property may be exercised. The case specifically over-ruled
the view taken in Gopalan's case that the approach and form of the State action
alone need to be considered and the fact of loss of fundamental rights of the
individual in general will be ignored. The entire discussion in Bank
Nationalisation case related to the inter-relation between Article 3 1 (2) and Article
19 (1)
(f) Certain passing observations have been made
about the liberty of persons. However, there is no justification for holding
that the case is an authority for the proposition that the legislation
under Article 21 should also satisfy all the fundamental rights
guaranteed under Article 19(1). Article 21 is related to
deprivation of life and personal liberty and it has been held that it is not
one of the rights enumerated in Article 19(1). That the decision in
Bank Nationalisation case so far as it relates to Articles 19(1) and 21 is In
the nature of obiter dicta. The Court had not applied its mind and, decided the
specific question. The observations were general and casual observations on; a
point not calling for decision and not obviously argued before it 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. The judgment proceeded on some erroneous
assumptions. It was assumed by the judgment that the majority of the Court in
Gopalan's case held that Article 22 being a complete code relating to
preventive detention the validity of an order of detention must be determined
directly according to the terms within the four corners of that Article. The
said statement is not borne out from the record of the judgment in Gopalan's
case. 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 Articles.
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 I.P.C., such as theft, cheating or assault
would be illegal, for the reasonable restrictions in the interest of public
order would not cover the said offences. There can be no distinction between
the punitive detention and preventive detention. Observation in Bank
Nationalisation case that a legislation under Article 21 should also
satisfy the requirements of Article 19 cannot be taken as correct
law. [754 G-H, 756 D-E, 757 C-E, G-H, 758 A-B, C, 759 A, E-F] Chiranjit Lal
Chowdhuri [1950] SCR 869, The State of West Bengal V. Subodh Gopal [1954]
SCR 587, State of Bombay v. Bhanji Munji [1953] 1 SCR 777, Dabu
Barkya Thakur v. State of Bombay, [1961] 1 SCR 128, Smt. Sitabati Debi
& Anr. v. State of We$ Bengal [1967] 2 SCR 940 and K. K. Kochunni
[1968] 3 SCR 887 referred to.
In S. N. Sarkar's case also, the majority held
that Article 22 was a self-contained Code. The view taken in this
case also suffers from the same infirmities referred to in the Bank
Nationalisation case. In Khudi Ram's case also this Court erroneously stated
that Gopalan's case has taken the view that Article 22 was a complete
code. [759 F-H, 760 A-B] In Additional District Magistrate, Jabalpur, Chief
Justice Ray held that Article 21 is the 'rule of law regarding life
and liberty and no other rule of law can have separate existence as a distinct
right. Justice Beg observed 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 validity of law. The question under consideration was whether
Articles 19(1)(f) and 31(2) were mutually exclusive. The learned Judge did not
understand the Cooper's case as holding that effect of deprivation of rights
outside Article 21 will also have to be considered. [760D-F-H] In
Bennet Coleman's case, the Court held that though Article 19(1) 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. In that
case also the question whether Articles 21 and 19 are mutually exclusive did
not arise for consideration. Bennet Coleman's case. Express Newspapers Case,
and Sakai Newspapers case were all concerned with the right to freedom of the
press which is held to form part of the freedom of speech and expression. [761
G-H] Commonwealth of Australia v. Bank of New South Wales [1950] A.C. 235
referred to.
The Passport Act provides for issue of
passports and travel documents for regulating the departure from India of
citizens of India and other person. Since the said Act complies with the
requirements of Article 21 i.e. compliance with procedure established
by law, its validity cannot be challenged. If incidentally the Act infringes on
the rights of a citizen under Article 19(1) of the Act, it 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. [763 A-B] 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. Section 5 of the Act provides for applying for passports or
travel documents etc. and the procedure for passing orders thereon. The
authority can either grant passport or can refuse it. In case the authority
refuses to grant it; it is required to record in writing a brief statement of
his reasons which are to be furnished to the person concerned unless the
authority for reasons specified in sub-section (3) refuses to furnish a
copy. Section 6 provides that the refusal to give an endorsement
shall be on one or other grounds mentioned in sub-sections (2) to (6). Section
10 enables the Passport authority to vary or cancel the endorsement on a
passport. Section 10(3) provides the reasons for which a passport may
be impounded. Again reason', are required to be furnished to the person
concerned on demand except if the, Passport 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
interest of the general public to furnish such a copy. Section 11 provides
for an appeal except when the order is passed by the Central Government. [764
C-E, 765 A-G] 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. Their aim is to secure justice and to prevent miscarriage
of justice. They do not supplant the law but supplement it. If a statutory
provision can be read consistently with the principles of natural justice the
court should do so but if a statutory provision that specifically or by
necessary implication excludes the application of any rules of natural justice
this Court cannot ignore the mandate of the legislature or the statutory
authority and read into the concerned provision the principles of natural
justice. 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 itself would not justify denial of an opportunity to the holder of the
passport to, state his case before the final order is passed. The legislature
has not by express provision excluded the right to be heard. [768 F- H, 769
A-B] Purtabpur v. Cane Commissioner, Bihar [1969] 2 SCR 807 and Schmidt v.
Secretary of State, Home Affairs [1969] 2 Ch. 149 referred to.
A passport may be impounded 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. The petitioner has a
right to be heard before a final order under section 10(3)(e) is
passed. Earlier, the courts had taken a view that the principle of natural
justice is inapplicable to administrative orders. However, subsequently, there
is a change in the judicial opinion. The frontier between judicial and
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 apply only to judicial and quasi-judicial acts and not to
administrative acts no longer holds the field. The court is not intended to sit
in appeal over the decision of the Government. The decision of the Government
under section 10(3)(c) is subject to a limited judicial scrutiny.
[770 A- F, H, 771 A, 772 B-D] H. K. (An infant) [1967] 2 Q.B. 617 at p.
630 Barium Chemicals Ltd. v. Company Law Board [1966] Supp. SCR
311, Rohtas Industries Ltd. v. S. D. Agarwal, [1969] 3 SCR 103 and U.P.
Electric Co. v. State of U.P. [1969] 3 SCR 865 followed.
The provision empowering the Government not to
disclose the reasons for impounding etc. is valid. The Government is bound to
give opportunity to the bolder of the passport before finally revoking it or
impounding it. The cases in which the authority declines to furnish
reasons for making an order would be extremely rare. In case where 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 pro- vided. In the present case, there is no reason in
declining to furnish to the petitioner statement of reasons for impounding the
passport. [772 H, 773 A-D, H, 774 A] In view of the statement of the Attorney
General that the petitioner might make a representation in respect of the
impounding of passport and that the representations would be dealt with
expeditiously and that even if the imounding of the passport is confirmed it
will not exceed a period of 6 months, it is not necessary to go into the merits
of the case any further. [776 B-C] & ORIGINAL JURISDICTION : Writ Petition
No. 231 of 1977. (Under Article 32 of the Constitution of India).
Madan Bhatia and D. Goburdhan for the Petitioner. S.V. Gupte, Attorney General,
Soli J. Sorabjee, Additional Sol. Genl. of India, R. N. Sachthey and K. N.
Bhatt for the Respondents.
Rain Panjwani, Vijay Panjwani, Raj Panjwani, S. K.
Bagga & Mrs. S. Bagga for the Intervener.
The following Judgments were delivered 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 Con- stitution.
As I am in general agreement with my learned
brethren Bhagwati and Krishna lyer. 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.
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 & Ors.,(1) Kharak Singh v. State of
U.P. & Ors. (2). (1) [1967] 3S.C.R.525.
(2) [1964] 1 S.C.R. 332.
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".
It, is evident that Article 21, though so
framed as to appear as a shield operating negatively against executive
encroachment over something covered by that shield, is the legal recognition of
both the protection or the shield as well as of what it protects which lies
beneath that shield. It has been so interpreted as long ago as in A. K.
Gopalan v. State of Madras,(1) where, as pointed out by me in Addi- tional
District Magistrate, Jabalpur v. S . S. Shukla and others(2) with the help
of quotations from judgments of Patanjli Sastri, J. (from p. 195 to 196),
Mahajan J. (p. 229-230), Das J. (295 and 306-307). I may add to the passages
cited there some from the judgment of Kania Chief Justice who also, while
distinguishing the objects and natures of articles 21 and 19, gave a wide
enough scope to Art. 21.
Kania CJ said (at p. 106-107) "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 lList 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 confli ct 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 (1) [1950] SCR 88.
(2) [1976] Suppl. SCR 172 at 327.
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 same 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 legis- lative
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".
In that case, Mukherjea J., after conceding that
the rights given by article 19(1) (d) would be incidentally
contravened by an order of preventive detention (see p. 261) and expressing the
opinion that a wider significance was given by Blackstone to the term "
personal liberty", which may include the right to locomotion, as Mr.
Nambiar, learned Counsel for A. K. Gopalan, wanted the Court to infer, gave a
narrower connotation to "personal liberty", as "freedom from
physical constraint or coercion" only. Mukherjea, J., cited Dicey for his
more restrictive view that "personal liberty" would mean : "a
personal right not to be subjected to imprisonment, arrest or other physical
coercion in any manner that does not admit of legal justification". He
then said "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".
After referring to the views of the Drafting
Committee of our Constitution Mukherjea, J., said : (p. 963) :
"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
3-119SCI/78 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".
Fazal
Ali, J., however, said (at p. 148) "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. Inmy opinion it cannot be said that articles 19, 20, 21 and22 do not to
some extent overlap each other. The case ofa person who is convicted of an offence
will come under article 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".
As has been pointed out by my learned brother
Bhagwati, by detailed references to cases, such as Haradhan Saha v. The
State of West Bengal & Ors(1) and Shambhu Nath Sarkar v. State of West
Bengal (2) , the view that Articles 19 and 21 constitute water tight
compartments, so that all aspects of personal liberty could be excluded
from Article 19 of the Constitution, had to be abandoned as a result
of what was held, by a larger bench of this Court in R. C. Cooper v. Union of
India(3), to be the sounder view. Therefore, we could ,neither revive that
overruled doctrine nor could we now hold that impounding or cancellation of a
passport does not impinge upon and affect fundamental rights guaranteed, by the
Constitution. I may point out that the doctrine that Articles 19 and 21 protect
or regulate flows in different channels, which certainly appears to have found
favour in this Court in A. K. Gopalan's case (supra), was laid down in a
context which was very different from that in which that approach was displaced
by the sounder view that the Constitution must be read as an integral whole,
with possible over-lappings of the subject matter of what is sought to be
protected by its various provisions par- ticularly by articles relating to
fundamental rights. (1) [1975] 1 SCR778.
(2) [1973] 1 SCR 856.
(3) [1973] 3 SCR 530.
In A. K. Gopalan's case (supra), what was at issue
was whether the tests was valid procedure for deprivation of personal liberty
by preventive detention must be found exclusively in Article 22 of
the Constitutions or could we gather from outs de it also elements of any
"due process of law" and use them to test the validity of a 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,' whit 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 Articles
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 Article 21 and 22 of
the Constitution. But, the real issue there was whether, in the face of Article
22 of theConstitution, which provides all the tests of procedural validity
of alaw regulating preventive detention other tests could be im- ported
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. I have
already referred to the passages I cited in A. D. M. Jabaipur'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
in- dicates the pattern of "the procedure established by law" for
cases of preventive detention.
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 of "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.
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, vacationor 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 Con- stitution 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.
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 bad decided not to furnish her with a copy of reasons
and claiming immunity from such disclosure under section 10(5) of the
Act.
I have already mentioned some of the authorities
relied upon by me in A. D. M. Jabalpur v. S. Shukla (Supra), while discussing
the scope of Article 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.
Mukerji J., in 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 coun- tries, 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."
The identification of natural law with Divine will
or dictates of God may have, quite understandably, vanished at a time when men
see God, if they see one anywhere at all, in the highest qualities inherent in
the nature of Man himself. But the idea of a natural law as a morally
inescapable postulate of a just order, recognizing the inalienable and inherent
rights of all men (which term includes women) as equals before the law
persists. It is, I think, embedded in our own Constitution. I do not think that
we can reject Blackstone's theory of natural rights as totally irrelevant for
us today.
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 everyman, 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 will and savage liberty which is sacrificed 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 member 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
reason, 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, involate, 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 ensuing 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."
I have reproduced from Blackstone whose ideas may
appear somewhat quaint in an age of irreverence because, although, I know that
modern jurisprudence conceives of all rights as relative or as products of
particular socioeconomic orders, yet, the idea that man, as man, morally has
certain inherent natural primordial inalienable human rights goes back to the
very origins of human jurisprudence.
It is found in Greek philosophy. If we have
advanced today towards what we believe to be a higher civilisation and a more
enlightened era, we cannot fall behind what, at any rate, was the meaning given
to "personal liberty" long ago by Blackstone. As indicated above, it
included "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". I think that both
the rights of "personal security" and of cc personal liberty",
recognised by what Blackstone termed "natural law", are embodied
in Article 21 of the Constitution. For this proposition, I relied, in
A. D. M. Jabalpur v. S. S. Shukla (supra), and I do so again here, on a passage
from Subba Rao C.J., speaking for five Judges of this Court in I. C.
Golaknath v. State of Punjab(1) when he said (at p. 789) :
"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 modem 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 right".
Hidayatullah, J., in the same case said (at p.
877)
"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 personalliberty 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 murderer's conduct as viewed under law. The deprivation, when
it takes place, is not of the right which was immutable but of the continued
exercised of right.,' (1) [1967] 2 SCR762.
It is, therefore, clear that six out of eleven
Judges in Golak Nath's case declared that fundamental rights are natural rights
embodied in the Constitution itself. This view was affirmed by the majority
Judges of this Court in Shukla's case. It was explained by me there at some
length. Khanna,, J., took a somewhat different view. Detailed reasons were
given by me in Shukla's case (supra) for taking what I found to be and still
find as the only view I could possibly take if I were not to disregard, as I
could not properly do, what had been held by larger benches and what I myself
consider to be the correct view : that natural law rights were, meant to be
converted into our Constitutionally recognised fundamental rights, atleast so
far as they are expressly mentioned, so that they are to be found within it and
not outside it. To take a contrary view would involve a conflict between
natural law and our Constitutional law. I am emphatically of opinion that a
divorce between natural law and our Constitutional law will be disastrous. It
will defeat one of the basic purposes of our Constitution. 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 "irrefragible". 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 its exercise. We have to decide in each specific
case, as it arises before us, what the result of such a balancing is.
In judging the validity of 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 imposed
upon the rights covered by article 19(1) will be found in clauses (2)
to (6) of Article 19. There is nothing ther e to suggest that
restrictions on right', the exercise of which may involve going out of the
country or some activities abroad are excluded from the purview of tests
contemplated by articles 19(2) to (6). 1 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
reasonbly permissible on the facts and circumstances of that case.
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 its 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 is concerned, it
took place in India and against an Indian citizen residing in India.
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 a particular order, be able to do something intended to be done by
her abroad 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 considerations 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.
In order to apply the tests contained in Articles
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 articles 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.
The tests of reason 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 interest
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 interest 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
un- reasonable 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 proprieties the observance of which could show that
such a 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 peoples
of the world and the shrunk time-space relationship.
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. Their 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 is 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.
A bare look at the provisions of S. IO, sub.s. (3 )
of the Act will show that each of the orders which could be passed under section
10, sub.s. (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.s. (3) of the Act. Hence, section
10, subs. s. (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 interests of the general public to furnish such a copy".
It seems to me, from the provisions of section
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 the 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. Article 2 1, however, makes it clear That violation of a law,
whether statutory or if 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".
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.
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 & Ors.(1) in the following words "The rule that a party
to whose prejudice an order is intended to be passed is entitled to a hearing
applies alike to (1) AIR 1967 S.C. 1269 at 1271.
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."
In England, the rule was thus expressed by Byles J.
in Cooper v. Wandsworth Board of Works(1) "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 be was called upon to make
his defence. "Adam (says God), "where art thou ? Hast thou ? not
eaten of the tree whereof I commanded thee that thou shouldest not eat And the
same question was put to Eve also."
I find no difficulty whatsoever in holding, on the
strength of these well recognised principles, that an order impounding a
passport must be made quasi-judicially. This was not done in the case before
us.
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 bad 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.
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. Furthermore, the rather
cavalier fashion in which disclosure of any reason for impounding her passport
was denied to her, despite the fact that the only reason said to exist the
possibility of her being called to give 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 (1) 1863 (14) C.B. (N.S.)
180.
public interest, may indicate the existence of some
undue prejudice against the petitioner. She has to be protected against even
the appearance of such prejudice or bias. 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.
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. 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 the reasons. 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 Act, 1967
authorises the passport authority 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).
At first, the passport authority exercising its
power under section 10(5) of the Act refused to furnish to the
petitioner the reason for which it was considered necessary in the interests of
general public to impound her passport. But those reasons were disclosed later
in the counter- affidavit filed on behalf of the Government of India in answer
to the writ petition. The disclosure made under the stress of the writ petition
that the petitioner's passport was impounded because, her presence was likely
to be required in connection with the proceedings before a Commission of
Inquiry, could easily have been made when the petitioner called upon the
Government to let her know the reasons why her passport was impounded. The
power to refuse to disclose the reasons for impounding a passport is of an
exceptional nature and it ought to be exercised fairly, sparingly and only when
fully justified by the exigencies of an uncommon situation. The reasons, if
disclosed being open to judicial scrutiny for ascertaining their nexus with the
order impounding the passport, the refusal to disclose the reasons would
equally be open to the scrutiny of the court; or else, the wholesome power of a
dispassionate judicial examination of executive orders could with impunity be
set at naught by an obdurate determination to suppress the reasons. Law cannot
permit the exercise of a power to keep the reasons undisclosed if the sole
reason for doing so is to keep the reasons away from judicial scrutiny. In
Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, Government
of India, New Delhi & Ors.(1) 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. 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-dressed hearing as in a Courtroom 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, articles 14 and 19. If the holding in A. K. Gopalan v. State of
Madras(2) that the freedoms guaranteed by the Constitution are (1) [1967] 3 SCR
525 (2) [1950] SCR 88.
mutually exclusive were still good law, the right
to travel abroad which is part of the right of personal liberty under article
21 could only be found and located in that article and in no other. But in
the Bank Nationalisation Case (R. C. Cooper v. Union of India) (1) the majority
held that the assumption in A. K. Gopalan(2) that certain articles of the
Constitution exclusively deal with specific matters cannot be accepted as
correct. Though the Bank Nationalisation case(1) was concerned with the
inter-relationship of article 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 pro-visions of
the Constitution categorically discarded the major premise of the majority
judgment in A. K. Gopalan (supra) as incorrect. That is how a seven-Judge Bench
in Shambhu Nath Sarkar v. State of West Bengal & Ors.(3) assessed the
true impact of the ratio of the Bank Nationalisation Case (supra) on the
decision in A. K. Gopalan (supra) in Shambhu Nath Sarkar(3) 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 & Ors.(4)
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. 1 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."
The interplay of diverse articles of the
Constitution guaranteeing various freedoms has gone through vicissitudes which
have been elaborately traced by Brother Bhagwati. The test of directness of the
impugned law as contrasted with its consequences was thought in A. K. Gopalan
(supra) and Ram Singh(5) to be the true approach for determining whether a
fundamental right was infringed. A significant application of that test may be
perceived in Naresh S. Mirajkar(6) where an order passed by the Bombay High
Court prohibiting the publication of a witness's evidence in a defamation case
was upheld by this Court on the ground that it was passed with the object of
affording protection to the witness in order to obtain true evidence (1) [1973]
3 SCR 530.
(2) [1950] SCR 88 (3) [1973] 1 SCR 856.
(4) [1975] 1 SCR 778.
(5) [1951] SCR 451.
(6) [1966] 3 SCR 744.
and its impact on the right of free speech and
expression guaranteed by article 19(1) (a) was incidental. N. H.
Bhagwati J. in Express Newspapers(1) struck a modified note by evolving the
test of proximate effect and operation of the statute. That test saw its
fruition in Sakal Papers(2) where the Court, giving precedence to the direct
and immediate effect of the order over its form and object, struck down the
Daily Newspapers (Price and Page) Order, 1960 on the ground that it
violated article 19(1)(a) of the Constitution. The culmination of
this thought process came in the Bank Nationalisation Case (supra) where it was
held by the majority, speaking through Shah J., that the extent of protection
against impairment of a fundamental right is determined by the direct operation
of an action upon the individual's rights and not by the object of the
legislature or by the form of the action. In Bennett Coleman(3) the Court, by a
majority, reiterated the same position by saying that the direct operation of
the Act upon the rights forms the real test. It struck down the newsprint
policy, restricting the number of pages of newspapers without the option to
reduce the circulation, as offending against the provisions of article
19(1) (a). "The action may have a direct effect on a fundamental
right although its direct subject matter may be different" observed the
Court, citing an effective instance of a law dealing with the Defence of India
or with defamation and yet having a direct effect on the freedom of speech and
expression. The measure of directness, as held by Brother Bhagwati, is the
'inevitable' consequence of the impugned statute. These then are the guidelines
with the help of which one has to ascertain whether section 10(3) (c)
of the Passport Act which authorizes 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).
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.
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 oil 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.
(1) [1959] SCR 12.
(2) [1962] 3 SCR 842.
(3) [1973] 2 SCR 757.
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 sub-regional consi-
derations. 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.
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.
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 comprehended an extraneous facility. But
such extensions do not form 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 4-119SCI/78 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.
Brother Bhagwati has, on this aspect considered at
length certain American decisions like Kent(1),_Apthekar(2) and Zemel(3) 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 poured 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 Cen- tennial Volume. "The Fourteenth Amendment"
edited by Bernard Schwartz, is contained in an article on 'Landmarks of Legal Liberty'
by Justice William J. Brennan in which the learned Judge quoting from Yeat's
play has this to say : In the service of the ageold 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 women in Yeat's play, "Did you see an old woman going down
the path?" asked Bridget. "I did not," replied Patrick, 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."
Our Constitution too strides in its majesty but,
may it be remembered, without the due process clause, I prefer to be content
with a decision directly in point, All India Bank Employees' Association(4) In
which this Court rejected the contention that the freedom to form associations
or unions contained in article 19 (1 ) (c) carried with it the right
that a workers' union could do all that was necessary to make that right
effective, in order to achieve the purpose for which the union was formed. One
right leading to another and that another to still other, and so on, was
described in the abovementioned decision as productive of a "grotesque
result".
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 (1) 2 L. ed. 2d 1204.
(2) 12 L. ed. 2d 992.
(3) 14 L. ed. 2d 179.
(4) [1962] 3 SCR 269.
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).
1, therefore, agree with the order proposed by
Brother Bhagwati.
BHAGWATI, J.-The Petitioner is the holder of the
passport issued to her on 1st June, 1976 under the Passport 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 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 pressed before us at the time of the hearing
of the arguments and hence it is not necessary to state any facts hearing 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 Art. 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-breath." 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 passportto be heard in defence and
since in the present case, the passport was impounded by the Government without
affording an apportunity of hearingto the petitioner, the order was null and
void, and in the alternativeif 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 ofarbitrariness 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. 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
ultra 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 passport 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 guaranteed 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.
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 Passport
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 & Ors.(1) 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, bela 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 be
holds in (1) [1967] 3 SCR525.
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 refuses 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 foul
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 of 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 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;"
The particular ground relied upon for making the
order was that set out in the last part of clause (c), namely, that the Central
Government deems it necessary to impound the passport "in the interests of
the general public." Then follows sub-section (5) which requires
the passport authority impounding or revoking a passport or travel document
or varying or canceling 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 interests of the soveriegnty and integrity of India, the security of India,
friendly relations of India with my foreign country or in the interests of the
general public to furnish such a copy." It was in virtue of the provision
contained in the latter part of this sub-section that the Central Government
declined to furnish a copy of the statement of reasons for impounding the
passport of the petitioner on the ground that it was not in the interests of
the general public to furnish such copy to the petitioner. It is indeed a
matter of regret that the Central Government should have taken up this attitude
in reply to the request of the petitioner to be supplied a copy of the
statement of reasons, because ultimately, when the petition came to be filed,
the Central Government did disclose the reasons in the affidavit in reply to
the petition which shows that it was not really contrary to public interest and
if we look at the reasons given in the affidavit in reply, it will be clear
that no reasonable person could possibly have taken the view that the interests
of the general public would be prejudiced by the disclosure of the reasons.
This is an instance showing how power conferred on a statutory authority to act
in the, interests of the general public can sometimes be improperly exercised.
If the petitioner had not filed the petition, she would perhaps never have been
able to find out what were the reasons for which her passport was impounded and
she was deprived of her right to go abroad. The necessity of giving reasons has
obviously been introduced in sub-section (5) so that it may act as a healthy
check against abuse or misuse of power. If the reasons given are not relevant
and there is no nexus between the reasons and the ground on which the passport
has been impounded, it would be open to the holder of the passport to challenge
the order impounding it in a court of law and if the court is satisfied that
the reasons are extraneous or irrelvant, the court would strike down the order.
This liability to be exposed to judicial scrutiny would by itself act as a
safeguard against improper or mala fide exercise of power. The court would,
therefore, be very slow to accept, without close scrutiny, the claim of the passport
authority that it would not be in the interests of the general public to
disclose the reasons. The passport authority would have to satisfy the court by
placing proper material that the giving of reasons would be clearly and
indubitably against the interests of the general public and if the Court is not
so satisfied, the Court may require the passport authority to disclose the
reasons, subject to any valid and lawful claim for privilege which may be set
up on behalf of the Government. Here in the present case, as we have already
pointed out, the Central Government did initially claim that it would be
against the interests of the general public to disclose the reasons for
impounding the passport, but when it, came to filing the affidavit in reply, the
Central Government very properly abandoned this unsustainable claim and
disclosed the reasons The question whether these reasons have any nexus with
the interests of the general public or they are extraneous and irrelevant is a
matter which we shall examine when we deal with the arguments of the
parties, ,Meanwhile, proceeding further with the resume 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 to
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 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 Passport 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 Art. 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 sub-conscious 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 rights" and
impose negative obligations on the State not to encroach on indi-
vidual 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 liability, to give expression to his creativity and to prevent
governmental and other forces from 'alienating' the individual from his
creative impulses. 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 assemble
peaceably 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 Art. 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."
Article 22 confers protection against arrest
and detention in certain cases and provides inter alia safeguards in case of
preventive detention. The other fundamental rights are not relevant to, the
present discussion and we, need not refer to them.
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 con- sideration
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 incidently
came up for discussion in some of the judgments in A. K. Gopalan v. State
of Madras(1) 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 (1) [1950] S.C.R. 88.
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 Article 19 and 21. It was in Kharak Singh v. State
of U.P. & Ors.(1) 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". There can be no doubt that in view of the decision of this
Court in R. C. Cooper v. Union of India(2) the minority view must be regarded
as correct and the majority view must be held to have been overruled. We shall
have occasion to analyse and discuss the decision in R. C. Cooper's case a
little later when we deal with the arguments based on infraction of Articles
19(1) (a) and 19 (1) (g), but it is sufficient to state for the present that
according to this decision, which was a decision given by the full Court, the
fundamental rights conferred by Part III are not distinct and mutually
exclusive rights. Each freedom has different dimensions and merely because the
limits of interference with one freedom are satisfied, the .law is not freed
from the necessity to meet the challenge of another guaranteed freedom. The
decision in A. K. Gopalan's (supra) case gave rise to the theory that the
freedoms under Articles 19, 21, 22 and 31 are exclusive-each article enacting a
code relating to the protection of distinct rights, but this theory was
over-turned in R. C. Cooper's case (supra) where Shah, J., speaking on behalf
of the majo- rity pointed out that "Part III of the Constitution weaves a
pattern of guarantees on the texture of basic human: rights. The guarantees
delimit the protection of those rights in their allotted fields : they do not
attempt to enunciate distinct rights." The conclusion was summarised in
these terms : "In our judgment, the assumption in A. K. (1) [1964] 1
S.C.R. 332.
(2) [1973] 3 S.C.R. 530.
Gopalan's case that certain articles in the
Constitution exclusively deal with specific matters cannot be accepted as
correct". It was hold in R. C. Cooper's case and that is clear from the
judgment of Shah, J., because Shah, J., in so many terms disapproved of the
contrary statement of law contained in the opinions of Kania, C. J., Patanjali
Sastri, J., Mahajan, J., Mukherjee, J., and S. R. Das, J., in A. K. Gopalan's
case that even where a person is detained in accordance with the procedure
prescribed by law, as mandated by Article 21, the protection conferred by
the various clauses of Article 19(1) does not cease to be available
to him and the law authorising such detention has to satisfy the test of the
applicable freedom under Article 19, clause (1). This would clearly show
that Articles 19(1) and 21 are not mutually exclusive, for, if they were, there
would be no question of a law depriving a person of personal liberty within the
meaning of Article 21 having to meet the challenge of a fundamental
right under Article 19(1). Indeed, in that event, a law of preventive
detention which deprives a person of 'personal liberty' in the narrowest sense,
namely, freedom from detention and thus falls indisputably within Art. 21 would
not require to be tested on the touchstone of clause (d) of Article 19 (1) and
yet it was held by a Bench of seven Judges of this Court in Shambhu Nath
Sarkar v. The State of West Bengal& Ors. (1) that such a law would have to
satisfy the requirement inter alia of Article 19 (1), clause (d) and
in Haradhan Saha v. The State, of West Bengal & Ors., (2) which was a
decision given by a Bench of five judges, this Court considered the challenge
of clause (d) of Article 19(1) to the constitutional validity of the
Maintenance of Internal Security Act, 1971 and held that that Act did not
violate the constitutional guarantee embodied in that article. It is indeed
difficult to see on what principle we can refuse to give its plain natural
meaning to the expression ' personal liberty' as used in Article 21 and
read it in a narrow and restricted sense so as to exclude those attributes of
personal liberty which are specifically dealt with in Article 19. We
do not think that this would be a correct way of interpreting the provisions of
the Cons- titution 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 (1) [1973] 1
SCR 856.
(2) [1975] 1 S.C.R. 778.
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 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 petitioner in Satwant
Singh's case was struck down as invalid. It win 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 'en-. acted 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 tight to go abroad. It is clear from the provisions of the
Passports, Act, 1967 that is 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,
procedure cannot be arbitrary, unfair or unreasonable. This indeed was conceded
by the learned Attorney General who with his 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. Willi's 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 inter-relationship between articles 14, 19 and
21 We may at this stage consider the inter-relation 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 war,. 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 over-ruled by a
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(1). The learned Judge there said :
"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 require- ment 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."
Subsequently, in Haradhan Saha v. State of
West Bengal & Ors.(2) also, a Bench of five Judges of this Court, after
referring to the decisions in A. K. Gopalan's case and R. C. Cooper's case,
agreed that the Maintenance of Internal Security Act, 1971, which is a law of
preventive detention, has to be tested in regard to its reasonableness with
reference to Article 19. That decision accepted and applied the ratio
in R. C. Cooper's case and Shambhu Nath Sarkar's case and proceeded to consider
the challenge of Article 19 to the constitutional validity of the
Maintenance of Internal Security Act, 1971 and held that the Act did not
violate any of the constitutional guarantees enshrined in Art. 19. The
same view was affirmed once again by a Bench of four (1) [1973] S.C.R.856.
(1) [1975] S.C.R.778.
judges of this Court in Khudiram Das v. The
State of West Bengal & Ors.(1) Interestingly, even prior to these
decisions, as pointed out by Dr. Rajive Dhawan, in his book : "The Supreme
Court of India :" at page 235, reference was made, by this court in Mohd.
Sabir v. State of Jammu and Kashmir(2) to article 191(2) to justify
preventive; deten- tion. 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. This proposition can no longer be disputed after the
decisions in R. C. Cooper's case, Shambhu Nath Sarkar's case and Haradhan
Saha's case. Now, if a law depriving a person of 'personal liberty' and
prescribing a procedure for that purpose within the meaning of Article 21 has
to stand the test of one or more of the fundamental rights conferred
under Article 19 which may be applicable in a given situation, ex
hypothesi it must also be liable to be tested with reference to Article
14. This was in fact not disputed by the learned Attorney General and
indeed he could not do so in view of the clear and categorical statement made
by Mukharjea, J., in A. K. Gopalan's case that Article 21 "presupposes
that the law is a valid and binding law under the provisions of the
Constitution having regard to the competence of the legislature and the subject
it relates to and does not infringe any of the fundamental rights which the
Constitution provides for", including Article 14. This Court
also applied Article 14 in two of its earlier decisions,
namely, The State of West Bengal v. Anwar Ali Sarkar(3) and Kathi
Raning Rawat v. The State of Saurashtra(4) where there was a special law
providing for trial of certain offences by a speedier process which took away
some of the safeguards available to an accused under the ordinary procedure in the
Criminal Procedure Code. The special law in each of these two cases undoubtedly
pres- cribed a procedure for trial of the specified offences and this procedure
could not be condemned as inherently unfair or unjust and there was thus compliance
with the requirement of Article 21, but even so, the validity of the
special law was tested before the Supreme, Court on the touchstone of Article
14 and in one case, namely, Kathi Raning Rawat's case, the validity was
upheld and in the other, namely, Anwar Ali Sarkar's case, it was struck down.
It was held in both these cases that the procedure established by the special
law must not be violative of the equality clause. That procedure must answer
the requirement of Article 14. The nature and requirement of the
procedure under article
21. 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 (1) [1975] 2 S.C.R.832.
(2) A.I. R.1971S.C.1713.
(3) [1952] S.C.R. 284.
(4) [1952] S.C.R. 435.
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 & Another (1) 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 arbi- trariness 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; otherwise, it would be no procedure at all and the
requirement of Article 21 would not be satisfied. How far natural
justice is air essential element of procedure established by law.
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 partem 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(2). "A long course of
decision---, beginning with Dr. Bentley's case 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 (1) [1974]2S.C.R.348.
(2) [1863]14C.B.N.S.180.
the legislature". The principle of audi
alteram partem, which mandates that no one shall be condemned unheard, 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 ?
We may commence the discussion of this question
with a few general observations to emphasise 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 %,,ill not be fulfilled; it lacks more exalted
inspiration." (Current Legal Pro-
blems, 1973, Vol. 26, p. 16) And then again, in his
speech in the House of Lords in Wiseman v. Borneman(1), 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 (1) [1971]A.C.297.
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 we may 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 Henning, M.R. in these
terms in Schmidt v. Secretary of State for Home Affairs(1) :-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.
Chesterton(2). It is the quintessence of the process of justice inspired 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 ? Now, if this be the test of
applicability of the doctrine of natural justice, there can be no distinction
between a quasi-judicial function and an administrative function for this
purpose. The aim of both administrative inquiry as well as quasi-judicial
inquiry is to arrive at a just decision and if a rule of natural justice Is
calculated to secure justice, or to put it negatively, to prevent miscarriage
of justice, it is difficult to see why it should be applicable to
quasi-judicial inquiry and not to administrative inquiry. It must logically
apply to both. On what principle can distinction be made between one and the
other ? Can it be said that the requirement of 'fair play in action' is any the
(1) [1969] 2 Chancery Division 149.
(2) (1968) 112 Solicitor General 690.
less in an administrative inquiry than in a
quasi--judicial one? 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. There was, however, a
time in the early stages of the development of the doctrine of natural justice
when the view prevailed that the rules of natural justice have application only
to a quasi-judicial proceeding as distinguished from an administrative
proceeding and the distinguishing feature of a quasi-judicial proceeding is
that the authority concerned is required by the, law under which it is
functioning to act judicially. This requirement of a duty to act judicially in
order to invest the function with a quasi,judicial character was spelt out from
the following observation of Atkin, L.J. in Rex v. Electricity
Commissioners(1), "wherever any body of persons having legal authority to
determine questions affecting the rights of subjects, and having the duty to
act judicially, act in excess of their legal authority, they are subject to the
controlling jurisdiction of the King Bench Division. . . .". Lord Hewart,
C.J., in Rex V. Legislative Committee of the Church Assembly, ( 2 ) read this
observation to mean that the duty to act judicially should be an additional
requirement existing independently of the "authority to determine
questions affecting the rights of subjects"-something super added to it.
This gloss placed by Lord Hewart, C.J., on the dictum of Lord Atkin, L.J.,
bedevilled the law for a considerable time and stultified the growth of the doctrine
of natural justice. The Court was constrained in every case that came before
it, to make a search for the duty to act judicially sometimes from tenuous
material and sometimes in the services of the statute and this led to
oversubtlety and over-refinement resulting in confusion and uncertainty in the
law. But this was plainly contrary to the earlier authorities and in the
epoch-making decision of the House of Lords in Ridge v. Baldwin(3), which marks
a turning point in the history of the development of the doctrine of natural
justice, Lord Reid pointed out how the gloss of Lord Hewart, C.J., was based on
a misunderstanding of the; observations of Atkin, L.J., and it went counter to
the law laid down in the earlier decisions, of the Court. Lord Reid observed :
"If Lord Hewart meant that it is never enough that a body has a duty to
determine what the rights of an individual should be, but that there must
always be something more to impose on it a duty to act judicially, then that
appears to me impossible to reconcile with the earlier authorities". The
learned law Lord held that the duty to act judicially may arise from the very
nature of the function intended to be performed' and it need not be shown to be
superadded. This decision, broadened the area of application of the rules of
natural justice and to borrow the words of Prof. Clar 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 & Anr(4) where (1) [1924] 1 K.B.171.
(2) [1928] 1 K.B.411.
(3) [1964] A. C. 40.
(4) [1965] 2 S.C.R. 366.
5-119 SCT/78 this Court approvingly referred
to the decision in Ridge v. Baldwin (supra) and, later in State of Orissa
v. Dr. Binapani(1) 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
& Ors. v. Union of India & Ors. (2) another historic decision in this
branch of the law, that in recent years the concept of quasi-judicial power has
been undergoing radical change and said: "The dividing line between an
administrative power and a quasi- judicial power is quite thin and is being
gradually oblite- rated, 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 effected and where it is found to exist, the rules of, natural justice
would be attracted. This was the advance made by the law as a result of the
decision in Ridge v. Baldwin (supra) in England and the decision 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 principal 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 doctrine of natural justice was finally
discarded as unsound by the decisions in In re : H.K. (All Infant) (3) 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) :
"But
at the same time,, I myself 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 (1) [1967] 2 S C.R. 625.
(2)
[1970] 1 S.C.R. 457.
(3)
[1967] 2 Q. B. 617.
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 bonafide
decision must, as it seems to me,. required 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."
This Court, speaking through Hegde, J., in ,I. K.
Kraipak's case quoted with approval the above passage from the judgment of Lord
Parker, C.J., and proceeded to add :
"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. Often times 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 and Ors.
(1969)1 S.C.R. 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 principles 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."
This view
was reiterated and re-affirmed in a subsequent decision of this Court in D.F.O.
South Khari v. Ram Sanehi Singh(1). The law must, therefore, now be taken to be
well settled that even in an administrative proceeding, which involves civil
consequences, the doctrine of natural justice must be held to be applicable.
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 bolder of the passport.
Where the Passport Authority which has im-
pounded 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. 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.
Now, as already pointed out, the doctrine of
natural justice consists principally of two rules, namely, nemo debt esse judex
propria cause : 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 circum- scribed. 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 (1) [1973] 3S.C.C.864.
not suggest that the Court should re-trace 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 so 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 hol- der 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 ed., 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".
Now, it is true that since the right to prior notice and opportunity of hearing
arises only by implication from the duty to act fairly, or to use the words of
Lord Morris of Borth-y-Gest, from 'fair play in action, it may equally be
excluded where, having regard to the nature of the action to be taken, its
object and purpose and the scheme of the relevant statutory provision, fairness
in action does not demand its implication and even warrants its exclusion.
There are certain well recognised exceptions to the audi alteram partem rule
established by judicial decisions and they are summarised by S.A. de Smith in
Judicial Review of Administrative Action, 2nd ed., at page 168 to 179. If we
analyse these exceptions a little closely, _it will be apparent that they do
not in any way militate against the principle which requires fair play in
administrative action. The word 'exception' is really a misnomer because in
these exclusionary cases the audi alteram partem rule is held inapplicable not
by way of an exception to "fair play in action", but because nothing
unfair can be inferred by not affording an opportunity to present or meet a
case. The audi alteram partem rule is intended to inject justice into the law
and it cannot be applied to defeat the ends of justice, or to make the law
'lifeless, absurd, stultifying, self-defeating or plainly contrary to the
common sense of the situation'. Since the life of the law is not logic but
experience and every legal proposition must, in the ultimate analysis, be
tested on the touchstone of pragmatic realism, the audi alteram partem rule
would, by the experiential test, be excluded, if importing the right to be
heard has the effect of paralysing the administrative process or the need for
promptitude or the urgency of the situation so demands. But at the same time it
must be remembered that this is a rule of vital importance in the field of
administrative law and it must not be jettisoned save in very exceptional
circumstances where compulsive necessity so demands.
It is a wholesome rule designed to- secure the rule
of law and the court should not be too ready to eschew it in its application to
a given case. True rue it is that in questions of this kind a fanatical or
doctrinaire ap- proach should be avoided, but that does not mean that merely
because the traditional methodology of a formalised hearing may have the effect
of stultifying the exercise of the statutory power, the audi alteram partem
should be wholly excluded. The court must make every effort to salvage this
cardinal rule to the maximum extent permissible in a given case. It must not be
forgotten that "natural justice is pragmatically flexible and is amenable
to capsulation under the compulsive pressure of circumstances". The audi
alteram partem rule is not cast in a rigid mould and judicial decisions
establish that it may suffer situational modifications. The core of it must,
however, remain, namely, that the per%on affected must have a reasonable
opportunity of being heard and the hearing must be a genuine hearing and not an
empty public relations exercise. That is why Tucker, L.J., emphasised in Russel
v. Duke of Norfolk(1) that "whatever standard of natural justice is
adopted, one essential is that the person concerned should have a reasonable
oppor- tunity of presenting his case". What opportunity may be regarded as
reasonable would necessarily depend on the practical necessities of the
situation. It may be a sophisticated fullfledged hearing or it may be a hearing
which is very brief and minimal : it may be a hearing prior to the decision or
it may even be a post-decisional remedial hearing. The audi alteram partem rule
is sufficiently flexible to permit modifications and variations to suit the
exigencies of myriad kinds of situations which max, arise. This circumstantial
flexibility of the audi alteram partem rule was empbasised 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 Pearl-Berg V. Party(2)
that the courts "have taken in 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, 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. 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 (1) [1949] 1 All Eng. Reports 109.
(2) [1971] 1 Weekly Law Reports,728.
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 fight, fair and just and it would not
suffer from the vice of arbitrariness or 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.
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 opporgive an
opportunity of hearing to the petitioner after making the impugned order im-
pounding 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 Attomey-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.
This statement removes the voice from the order
impounding the passport and it can no longer be assailed on the ground that it
does not comply with the audi alteram partem rule or is. not in accord with the
procedure prescribed by the Passports Act, 1967.
Is Section 10(3) (c) violative of Article
14 ? 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 for 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 tinder 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 unfettered 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 bow 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 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 cer-
tain 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. 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 the preventive detention order results in the detention 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 negatived 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 and Ors. v.
State of Delhi(1). 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 (1) [1951]S.C.R.451.
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 incidentially 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 gua- rantees, 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 the individual's freedom" held away for a considerable time
and was applied in Naresh Shridhar Mirajkar & Ors. v. State of
Maharashtra & Anr.(1) 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 observation of Kania, C.J., in A. K. Gopalan's
case and noting that they were approved by the Fill 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 it 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).
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. & Anr. V.
The Union of India & Ors.(2) where 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 Rain Singh's case, but ultimately formulated the test
of direct and inevitable effect for the purpose of ad- judging 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 choose 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 he the consequence
which could be in the contemplation of the Legislature while enacting a measure
of this type for the benefit of the (1) [1966] 3 S.C.R. 744.
(2) [1959] S.C.R. 12.
workmen concerned." Then again, the learned
Judge observed 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 gern 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. & Ors. v. The Union of India(1) 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 & Weaving Co. Ltd.(2) 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 ap- proach 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.
However, it was only 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 sub-stance
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 Legis- latures 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 effects 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.
(1) [1962] 3 S.C.R. 842.
(2) [1954] S.C.R.674.
Mathew, J., in his dissenting judgment in Bennett
Coleman & Co. & Ors. v. Union of India & Ors.(1) 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 half of the
majority :
"-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 rights.
" 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 indivi- duals in general will be ignored
cannot be accepted as correct."
The decision in R. C. Cooper's case thus overturned
the view taken in A. K. Gopalan's case and, as pointed out by Ray, J., speaking
on behalf of the majority in, Bennett Coleman's case,it laid down two
interrelated propositions, namely, "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
the 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 (1)
[1973] 2S.C.R.757.
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 tests 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 newspaper 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".
The majority took the view that it was not the
object of the newsprint policy or its subject matter which was determinative
but its direct consequence or effect upon the rights of the newspapers and
since "the effect and consequence of the impugned policy upon the
newspapers" was direct control and restriction of growth and circulation of
newspapers, the newsprint policy infringed freedom of speech and expression and
was hence violative of Article 19(1) (a). The pith and substance
theory was thus negatived in the clearest terms and the test applied was as to
what is the direct and inevitable consequence or effect of the impugned State
action on the fundamental right of the petitioner. It is possible that in a
given case the pith and substance of the State action may deal with a
particular fundamental right but its direct and inevitable effect may be on
another fundamental right and in that case, the State action would have to meet
the challenge of the latter fundamental right. The pith and substance doctrine
looks only at the object and subject-matter of the State action, but in testing
the validity of the State action with reference to fundamental rights, what the
Court must consider is the direct and inevitable consequence of the State
action. Otherwise, the protection of the fundamental rights would be subtly but
surely eroded.
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 a openended 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 sup- plied 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 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 Art. 19(1) (a) or
(g). Is Section 10(3) (c) violative of Article 19 (1) (a) or
(g) ?
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 contention 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 tight 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 ?
The first question that arises for consideration on
these contentions is as to what is the scope and ambit of the right of free
speech and expression conferred under Article 19(1) (a). Has it any
geographical limitations ? Is its exercise guaranteed only within the territory
of India or does it also extend outside ? The Union of India contended that it
was a basic postulate of the Constitution that the fundamental rights
guaranteed by it were available only within the territory of India, for it
could never have been the intention of the constitution-makers to confer rights
which the authority of the State could not enforce. The argument was stressed
in the form of an interrogation; how could the fundamental rights be intended
to be operative outside the territory of India when their exercise in foreign
territory could not be protected by the State ? Were the fundamental rights
intended to be mere platitudes. in so far as territory outside India is
concerned ? What was the object of conferring the guarantee of fundamental
rights outside the territory of India, if it could not be carried out by- the
State ? This argument, plausible though it may seem at first blush, is, on
closer scrutiny, unsound and must be rejected. When the constitution-makers
enacted Part III dealing with fundamental rights, they inscribed in the
Constitution certain basic rights which inhere in every human being and which
are essential for unfoldment and development of his full personality. These
rights represent the basic values of a civilised society and the
constitution-makers declared that they shall be given a place of pride in the
Constitution and elevated to the status of fundamental rights.
The long years of the freedom struggle inspired by
the dynamic spiritualism of Mahatma Gandhi and in fact the entire cultural and
spiritual history of India formed, the background against which these rights
were enacted and consequently, these rights were, conceived by the constitu-
tion-makers not in a narrow limited sense but in their widest sweep, for the
aim and objective was to build a new social order where man will not be a mere
plaything in the hands of the State or a few privileged persons but there will
be full scope and opportunity for him to achieve the maximum development of his
personality and the dignity of the individual will be fully assured. The
constitution- makers recognised the spiritual dimension of man and they were
conscious that he is an embodiment of divinity, what the great Upnishadnic
verse describes as "the children of immortality" and his mission in
life is to realise the ultimate truth. This obviously he cannot achieve unless
he has certain basic freedoms, such as freedom of thought, freedom of
conscience, freedom of speech and expression, personal liberty to move where he
likes and so on and so forth. It was this vast conception of man in society and
universe that animated the formulation of fundamental rights and it is
difficult to believe that when the constitution- makers, declared these rights,
they intended to confine them only within the territory of India. Take for
example, freedom of speech and expression. Could it have been intended by the
constitution-makers that a citizen should hive this freedom in India but not
outside ? Freedom of speech and expression carries with it the right to gather
information as also, to speak and express oneself at home and abroad and to,
exchange thoughts and ideas with others not only in India but also outside. On
what principle of construction and for what reason can this freedom be confined
geographically within the limits of India ? The constitution-makers have not
chosen to limit the extent of this freedom by adding the words "in the
territory of India" at the end of Article 19(1) (a). They have
deliberately refrained from using any words of limitation. Then, are we going
to supply these words and narrow down the scope and ambit of a highly cherished
fundamental right ? Let us not forget that what we are expounding is a
constitution and what we are called upon to interpret is a provision conferring
a, fundamental right. 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 man in the Universal Declaration of Human Rights. Article
19 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 outside. It
is true that the right of free speech and expression enshrined in Article
19 (1) (a) can be enforced only if it 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 published 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.
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
restric- tion, 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) 6-119 SCI/78 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. 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 right to personal liberty
exercisable outs de 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 ?
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(1). 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 limitation upon the right to travel in 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
enoughthat 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."
These observations were quoted with approval by
Hegde, J., (as he then was) speaking on behalf of a Division Bench of the
Karnataka High Court in Dr. S. S. Sadashiva Rao v. Union of India(2) and
the learned Judge there pointed out that "these observations apply in
equal force to the conditions prevailing in this country". it is obvious,
therefore, that there are no geographical limitations to freedom of speech and
expression guaranteed Under Article 19(1) (a) and this freedom is
exercisable not only in India but also outside and if State (1) 184 Federal
Reporter (2d)131.
(2) 1965 Mysore Law Journal, P.605.
action sets up barriers to its citizen's freedom of
expression in any country in the world, it would violate Article 19(1) (a) as
much as if ,it inhibited such expression within the country. This conclusion
would on a parity of reasoning apply equally in relation to the fundamental
right to practice any profession or to carry any occupation, trade or business
guaranteed under Article 19(1)
(g).
(B) Is the right to go abroad covered by Article
19 (1) (a) or (g) ?
That takes us to the next question arising out of
the second limb of the contention of the Government. Is the right to go abroad
an essential part of freedom of speech and expression so that whenever there is
violation of the former, there is impairment of the latter involving infraction
of Article 19 (1) (a)? The argument of the petitioner was that while
it is true that the right to go abroad is not expressly included as a
fundamental right in any of the clauses of Article 19(1), its existence is
necessary in order to make the express freedoms mentioned in Article 19(1) meaningful
and effective. The right of free speech and expression can have meaningful
content and its exercise can be effective only if the right to travel abroad is
ensured and without it, freedom of speech and expression would be limited by
geographical constraints. The impounding of the passport of a person with a
view to preventing him from going abroad to communicate his ideas or share his
thoughts and views with others or to express himself through song or dance or
other forms and media of expression is direct interference with freedom of
speech and expression. It is clear, so ran the argument, that in a complex and
developing society, where fast modes of transport and communication have
narrowed down distances and brought people living in different parts of the
world together, the right to associate with like minded persons in other parts
of the globe, for the purpose of advancing social, political or other ideas and
policies is indispensable and that is part of freedom of speech and expression
which cannot be effectively implemented without the right to go abroad. The
right to go abroad, it was said, is a peripheral right emanating from the right
to freedom of speech and expression and is, therefore, covered by Article
19(1) (a). This argument of the petitioner was sought to be supported by
reference to some recent decisions of the Supreme Court of the United States.
We shall examine these decisions a little later, but let us first consider the
question on principle.
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 is 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
freedoms of action, but also by extending the scope of his experience. It is a
right which gives intellectual and creative workers in particular the opportu-
nity 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 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 freedom 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 libertatis when
other basic freedoms are refused. To, quote the words of Mr. Justice Douglas in
Kent v. Dulles(1) 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) ? 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 a 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 diversity 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 the index of the
true character of the Government-whether if is democratic or authoritarian. It
was (1) 357 U.S. 11 6 : 2 L. ed. 2d 1204.
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 too 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 & 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 Ramesh Thappar v. State of Madras(1).
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 fwidamental 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 included in freedom of speech
and expression. Mr. Justice Douglas said in Kent v. Dulles 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, ay
be necessary for livelihood. It may be as close to the heart of the individual
as the choice of what he eats, (1) [1950] S.C.R. 594.
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. He
cultural messengers and envoys spread her arts and epics in South East Asia and
her religious 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 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 necessitae
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 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 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 Passport 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. The second decision on which reliance was placed on behalf of
the petitioner was Apthekar v. Secretary of State(1). 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 socalled 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 totaliatarian
dictatorship and it made no attempt to relate the restriction on travel to the
individual's purpose of the trip or to the scurity-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 "tension of the strict First
Amendment test to a case involving the right to go abroad. The last decision
cited by the petitioner Was Zemel . v. Rusk 2) 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 (1)
378 U. S. 500 :12 L. ed. 2d 992.
(2) 381 U. S. 1 : 14 L. ed. 2d 179.
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 a 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 band knowledge about Cuban situation. Kent
v. Dulles and Aptheker v. Secretary of State 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, Pass.port 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 phenomena
abroad as well as at home gives meaning and substance to freedom of expression
and freedom of the press. Without these contacts First Amendment rights
suffer", 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 a 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 a 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 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. 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(1). 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 document or statement or information to be of a
confidential nature relating to secret reserves or to provi- sion 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 fulfil 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 res-
(1) [1962] 3 S.C.R. 269.
trictions 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 strike, yet the right to strike
could not by implication be treated as part of the right to form association,
for, if it were so treated, it would not be possible 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). 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 expending
concentric. circles in the shape of rights concomitant to concomitant rights
and so on, lead to an almost grostesque 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 right 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. to go abroad and not
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).
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 occasion to point out that even where a
statutory provision 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 illustration. 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 the security of India or in the interests of friendly relations of. India
with any foreign country, it would satisfy the requirement of Article
19(2). But if it is made for any other 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: 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), in as much
as if seeks to impound the passport of the petitioner idefinitely, 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 straiglitaway concede it, that merely because a statutory provision
empowering an authority 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 & Ors. v. The
Union of India & Ors.(1). 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 of the fundamental rights
guaranteed under Articles 19(1) (f) and (g) and in answer to this argument,
apart from merits, a contention of a prelimi- nary 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 :
"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 Constitu- (1) [1960] 2 S.C.R. 375.
tion, it
is on the assumption that the powers granted thereby do not 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."
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 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 as 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 the 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.
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 co-terminous 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 Com- mission of Inquiry and the term of the Commission
of Inquiry being limited upto 31st December, 1977, the impoundig 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 Shall 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 upto 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 in a
democratic society governed by the rule of law, it is expected of the
Government that it should act not only constitutional 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
unreasonably long, even though no contravention of any fundamental right may be
involved.
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 lnquiry 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 of 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,
,therefor.-, be assailed on this ground, had the challenge based on Article
19 (1) (a) and (g) must fail. Whether the impugned Order is
inter vires sec. 10(3) (c) ? 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 interests 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 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 could
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 would
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
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 & Anr.(1), 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.
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 (1) 1969] 3 S.C.R. 108 at 128.
7-119 SCI /78 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 expressio 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 expressio 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 10(3) (b)
contemplates a situation where a warrant or summons for the appearance or a
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 to the 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 can- not impound the passport of a person, if
otherwise it can be shown to be in the, interests of the general public to do
so. Section 10(3) (e) and (h) deal 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 situation 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) (b). We may echo the sentiment in Lord Denning's
closing remarks in Ghani v. Jones(1) (1) [1970] Q.B.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.
We must also deal with one other contention of the
petitioner, though we must confess 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 ill presenti and mere likelihood of public interest arising in future,
would be no ground for impoundig 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 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 Com- missions 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. 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 9th 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
Commissions 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 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. 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
he 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.
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 cancelling 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 encroachments
made ostensibly for a good cause that imperceptibly but surety corrode the
foundations of liberty. 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.
KRISHNA IYER, J.-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 imperilling 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 modem terms, what
our forbears effectively did to 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 clauses 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.
Remember, even democracies have experienced
executive lawlessness and eclipse of liberty on the one hind and 'subversive'
use of freedoms by tycoons and saboteurs on the other, and then the summons to
judges comes from the Constitution, over-riding 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. 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 ?. 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 labelled, 'public interest'. Paper curtains wear ill
'on good governments. And, cutely to side 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 which 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 Ill right ? What are the
ambience and amplitude, the desired effect and direct object of them key
provisions of the Passports Act, 1967 ? Do they crib or cut down
unconstitutionally, any of the guarantees under Arts. 21, 19 and 14 ? Is the
impugned section 10, especially S. 10 (3) (c), capable of
circums- cription 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 Writ 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-centre of the nation. Verily, while hard cases tend to make bad law, bad
cases tend to blur great law and courts must beware. The centre of the stage in
a legal debate on life and liberty must ordinarily be occupied by Art. 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 Chatters 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 im- posed 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 waged from foreign
lands. And their testament is our asset. What is the history, enlivened by
philosophy, of the law of travel ? The roots of our past reach down to travels
laden with our culture and commerce and its spread-out beyond the oceans and
the mountains, so much so our history unravels exchange between India and the
wider world. This legacy, epitomised as 'the glory that was Ind', was partly
the product of travels into India and out of India. It was the two-way traffic
of which there is testimony inside in Nalanda, and outside, even in Ulan Bator.
Our literature and arts bear immortal testimony to our thirst for travel and
even our law, over two thousand years ago, had canalised travels abroad. For
instance, in the days of Kautilya (BC 321-296) there was a Superintendent of
Passports 'to issue passes at the rate of a masha a pass'. Further details on
passport law are found in Katutilya's Arthasastra.
Indeed, viewing the subject from the angle of
geo-cultural end legal anthropology and current history, freedom of movement
and its off-shoot-the institution of passport-have been there through the
Hellenic, Roman, Israelite, Chinies, Persian and other civilisations. Socrates,
in his dialogue with Crito, spoke of personal liberty. He regarded the right of
everyone to save 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 ac-
quaintance, 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) The Magna Carta, way back in
1215 A.D. on the greens of Runnymede, affirmed the freedom to move beyond the
borders of the kingdom and, by the time of Blackstone, 'by the common law,
every man may go out of the realm for whatever cause he pleaseth, without
obtaining the king's leave'. Lord Diplock in D.P.P. v. Shagwan(1) stated that
'Prior to.... 1962........... a British subject had the right at common law to
enter the United Kingdom without let or hindrance when and where he pleased and
to remain there as long as he liked' (International & Comparative Law
Quarterly, Vol. 23, July 1974, p. 646). As late as Ghani v. Jones(2) Lord
Denning asserted : '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 'surest
grounds' (I & C. L. Qrly, ibid. p. 646). In 'Freedom under the Law"
Lord Denning has observed under the sub-bead 'Personal Freedom' :
"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."
In 'Freedom, The Individual and the Law, Prof.
Street has expressed a like view. Prof. H.W.R. Wade and Prof. Hood Philips echo
this liberal view. (See Int. & _Comp. L.O. ibid 646). And Justice Douglas,
in the last decade, refined and re-stated, in classic diction, the basics of
travel jurisprudence in Apthekar(3).
"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
rights meaningful (1) [1972]A.C.60.
(2)
[1970] 1 Q. B. 693 709.
(3) 378
U. S. 500.
-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 international web
that makes her one of the family of nations. The ties with all the continents
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."
And, in India, Satwant(1) set the same high tone
through Shri Justice Subba Rao although A. K. Gopalan(2 ) and a stream of
judicial thought since then, had felt impelled to underscore personal liberty
as embracing right to travel abroad. Tambe CJ in A. G. Kazi(3) speaking for a
Division Bench, made a comprehensive survey of the law and vivified the concept
thus:
"In
our opinion, the language used in the Article (Art. 21) also indicates
that the expression 'Personal liberty' is not confined only to freedom from
physical restraint, ie.
but includes a full range of conduct which a n
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) The legal vicissitudes of the passport
story in the United States bear out the fluctuating fortunes of fine men being
denied this great right to go abroad-Linus Pauling, the Nobel Prize-winner,
Charles Chaplin, the screen super genius, Paul Robesen, the world singer,
Arthur Miller, the great author and even Williams L. Clark, former Chief
Justice of the United States Courts in occupied Germany, among other greats.
Judge Clark commented on this passport affair and the ambassador's role :
"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) Men
suspected of communist leanings had poor chance of passport at one time; and
politicians in power in that country have gone to the extreme extent of
stigmatising one of the greatest Chief Justices of their (1) [1967] 3 S.C.R.
525.
(2) [1950] S.C.R. 88.
(3) A.I.R. 1967 Bom. 235.
country as near communist. Earl Warren. has, in his
autobiography, recorded "Senator Joseph McCarthy 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."
There has been built up lovely American legal
literature on passport history to which I will later refer. British Raj has
frowned on foreign travels by Indian patriotic suspects and instances from the
British Indian Chapter may abound. 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.
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 Art. 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."
This right is yet inchoate and only lays the base.
But, hopefully, the loftiest towers rise from the ground. And despite
destructive was and exploitative trade, racial hatreds and credal quarrels,
colonial subjections and authoritarian spells, the world has advanced because
of gregarious men adventuring forth, taking with them their thoughts and
feelings on a trans-national scale. This human planet is our single home,
though geographically variegated, culturally diverse, politically pluralist, in
science and technology competitive and cooperative, in arts and life- styles a
lovely mosaic and, above all, suffused with a cosmic consciousness of unity and
inter-dependence. This Grand Canyon has been the slow product of the perennial
process of cultural interaction, intellectual cross- fertilization, ideological
and religious confrontations and meeting and mating of social systems; and the
wellspring is the wanderlust of man and his wondrous spirit moving towards a
united human order founded on human rights. Human advance has been promoted
through periods of pre-history and history by the flow of fellowmen, and the
world owes much to exiles and emigres for liberation, revolution, scientific
exploration and excellence in arts. Stop this creative mobility by totalitarian
decree and whole communities and cultures will stagnate and international
awakening so vital for the survival of homo sapiens wither away. To argue for
arbitrary inhibition of travel rights under executive directive or legislative
tag is to invite and accelerate future shock. This broader setting is
necessary if we, are to view the larger import of the right to passport in its
fundamental bearings. It is not law alone but life's leaven. It is not a casual
facility but the core of liberty.
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) Why is the right to travel all
over the world and into the beyond a human right and a constitutional freedom ?
Were it not so, the human heritage would have been more hapless, the human
family more divided, the human order more unstable and the human future more
murky.
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-empted had the ancient kings and mediaval 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 parsimonious exercise in constitutional
perception.
Thus, the inspirational background. cosmic
perspective and inherited ethos of the pragamtic visionaries and jurist-
statesmen who draw up the great Title Deed of our Republic must illumine the
sutras of Articles 21, 19 and 14. The fascist horror of World War 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 Universa l
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 interacting 'one world' poised for peaceful and
progressive intercourse conditioned their thought processes. The bitter feeling
of the British Raj trampling under foot swaraj the birth-right 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 Ind
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 111. 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 Kupa-Mandukas (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 in India has taken an- other turn and
now it is growing with accelerated motion. If we have bad 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."
From the point of view of comparative law too, the
position is well established. For, one of the essential attributes of
citizenship, says Prof. Schwartz, is freedom of movement. The right of free
movement is a vital element of personal liberty. The right of free movement
includes the right to travel abroad. So much is simple textbook teaching in
Indian, as in Anglo-American law. Passport legality, affecting as it does,
freedoms that are 'delicate and vulnerable, as well as supremely precious in
our society', cannot but excite judicial vigilance to obviate fragile
dependency for exercise of fundamental rights upon executive clemency. So
important is this subject that the watershed between a police state and a
government by the people may partly turn on the prevailing passport policy.
Conscious, though I am, that such prolix elaboration of environmental
aspects is otiose, the Emergency provsions of our Constitution, the extremes of
rigour the nation has experienced (or may) and the proneness of Power to stoop
to conquer make necessitous the hammering home of vital values expressed in
terse constitutional vocabulary.
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 Art. 21 traumatically and the several other freedoms fade out
auto- matically. Justice Douglas, that most distinguished and perhaps most
travelled 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 woe 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, fifth 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 L. Ed. 2d. 1204 1958).
"Freedom of movement also has large social
values. As Chafoe put it : 'Foreign correspondents on lectures on public
affairs need first-hand information. Scientists and scholars gain greatly from
consultations with colleagues in other countries. Students equip themselves for
more fruitful careers in the United States by instruction in foreign
universities. Then there are reasons chose 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 in 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 American 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) "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 to punishable conduct is part of the price we pay
for this free society.
(Apthekar v. Secretary of State : 378 US 500- 12
L.Ed. 2d 992 (1964).
Judge Wyzanski has said "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).
The American Courts have, in a sense, blazed the
constitutional trail on that facet of liberty which relates to untrammelled
travel. Kent, Apthekar and Zemel are the landmark cases and American
jurisprudence today holds as a fundamental part of liberty (V Amendment) that a
citizen has freedom to move across the frontiers without passport restrictions
subject, of course, to well-defined necessitous exceptions. Basically,
Blackstone is still current coin "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."
To sum up, personal liberty makes for the worth of
the human person. Travel makes liberty worthwhile. Life is a terrestrial
opportunity for unfolding personality, rising to higher states, moving to fresh
woods and reaching out to reality which makes our earthly journey a true
fulfilment- not a tale told by an idiot full of 'sound and fury signi- fying
nothing, but a fine frenzy rolling between heaven and earth. The spirit of Man
is at the root of Art. 21. Absent liberty, other freedoms are frozen.
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.
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 ever-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."
So much for personal liberty and its travel facet.
Now to 'procedure established by law', the manacle clause in Art. 21,
first generally and next, with reference to A. K. Gopalan (supra) and after.
Again, I observe relative brevity because I go the whole bog with brother
Bhagwati, J. 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 processed, albeit absurd or
arbitrary ? Reverence for life and liberty must over power this reduction an
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 compthe 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. This line of logic alone will make the two clauses
of Art. 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 readings of a bill with the requisite quorum; can
prescribe any unreasonable modality and thereby sterilise the grandiloquent
mandate. 'Procedure established by law', with its lethal potentiality, will
reduce life and liberty to a precarious plaything if we do not ex necessitate
import into those weighty words an, adjectival rule of 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 apperition is a
constitutional illusion. Processual justice is writ patently on Art. 21. It
is too grave to be circumvented by a black letter ritual processed through the
legislature.
So I am convinced that to frustrate Art. 21 by
relying on any formal adjectival statute, however, filmsy 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, Art. 21 has to be fair, riot 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 by 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 is
emphasised by the strong word ,established which means 'settled firmly not
wantonly whimsically. If it is rooted in the legal consciousness of the
community it becomes ' established' procedure. And 'Law' leaves little doubt
that it is normae, regarded as just since law is the means and justice is the
end. Is there supportive judicial thought for this reasoning. We go back to the
vintage words of the learned Judges in A. K. Gopalan (supra) and zigzag through
R. C. Cooper to S. N. Sarkar and discern attestation of this conclusion. And
the elaborate constitutional procedure in Art. 22 itself fortifies
the argument that 'life and liberty' in Art. 21 could not have been
left to illusory legislators happenstance. Even as relevant reasonableness
informs art. 14 and 19, the component of fairness is implicit
in Art. 21. A close-up of the Gopalan case (supra) is necessitous at
this stage to underscore the quality of procedure relevant to personal liberty.
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
their rights; observance of fundamental rights is not regarded as good politics
and their transgression as had politics. I sometimes pensively reflect that
people's militant awareness of rights and duties is a surer constitutional
assurance of governmental respect and res- ponse than the sound and fury of the
'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. To sum up, 'procedure' in Art. 21 means
fair, not formal procedure. 'Law' is reasonable law, not any enacted piece.
As Art. 22 ,specifically spells out the procedural safeguards for
preventive and punitive detention, a law providing for such detentions should
conform to Art. 22. It has been rightly pointed out that for other
rights forming part of personal liberty, the procedural safeguards enshrined
in Art. 21 are available. Otherwise, as the procedural safeguards
contained in Art. 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(1) the Court, doubting the
correctness of the Gopalan decision on this aspect, said : (1) A. I. R. 1960 S.
C. 1080,1093.
.lm15 "Had the question been res integra, some
of us would have been inclined to agree with the dissenting view expressed by
Fazal Ali, J."
Gopalan does contain some luscent thought on
'Procedure established by law'. Patanjali Sastri, J. approximated it to the
prevalent norms of criminal procedure regarded for a long time by Indo-Anglian
criminal law as conscionable. The learned Judge observed :
"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 proce- dure, 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 of
personal liberty."
(pp.
201-203) "The main difficulty I feel in accepting the construction
suggested by the Attorney General is that it completely stultifies article
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 more 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 Genera l 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 esta-
blished by' may well be taken to mean what the
Privy Council referred to in King Emperor v. Bengori Lal Sharma 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) Fazal Ali, J. frowned on emasculating the
procedural substantiality of Art. 21 and read into it those
essentials of natural justice which made processual law humane : The teamed
Judge argued :
"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 pretence for procedure.
(emphasis, added) In short, fair adjectival law is
the very life of the life- liberty fundamental right (Art. 21), 'not
'autocratic supremacy of the legislature'. Mahajan J. struck a concordant note
:
"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 articles
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) In sum, Fazal Ali, J. struck the
chord which does accord with a just processual system where liberty is likely
to be the victim. May be, the learned Judge stretched it a little beyond the
line but in essence his norms claim my concurrence.
8-119 SCI/78 In John v. Rees(1) 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."
And Lord Denning, on the theme of liberty, observed
in Schmidt V. Secretary of State (2) "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."
Human rights:
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 Art. 21 as to result in a human order
lined with human justice. And running right through Arts. 19 and 14 is present
this principle of reasonable procedure in different shades. A certain normative
harmony among the, articles is thus attained, and hold Art. 21 bears
in its 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. My clear conclusion on Art. 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 aban-
doned, the Police State slowly builds up which saps the finer substance of our
constitutional jurisprudence. Not party but principle and policy are the
key-stone of our Republic.
Let. us not forget that Art. 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 sanc- tioned, its
exercise will swell till the basic freedom is flooded out. Hark back to Art.
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 lips service but the, obligatory essence of
our bard-won (1) [1969] 2 all E. R. 274.
(2) [1969] 2 Ch. 149.
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 tossin:
"He
that would make, his own liberty secure most guard even his enemy from
oppression; for if he violates this duty, he establishes a precedent that will
reach to himself."
Phoney freedom is not worth the word and this
ruling of ours is not confined to the petitioner but to the hungry job- seeker,
nun and nurse, mason and carpenter, welder and fitter and, above all, political
dissenter. The. last category, detested as unreasonable, defies the Establish-
ment's tendency to enforce through conformity but is the resource of social
change. "The reasonable man", says G. B. Shaw;
.lm15 " 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 substanc e is the right to differ as to
things that touch the heart of the existing order." (West Yirginia State Board
of Education v. Barnetto 319 US 624 (1943).
Under our constitutional order, the price of daring
dissent shall not be passport forfeit.
The impugned legislation, ss. 5, 6 and 10 especially,
must be tested even under Art. 21 on canons of processual justice to
the people outlined above. Hearing is obligatory- meaningful hearing, flexible
and realistic, according to circumstances, but hot 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 reveals 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.
I now skip Art.14 since I agree fully
with all that my learned brother Bhagwati J.has said. That article has a
Pervasive processual potency and versatilequality, egalitarian in its soul and
allergic to discriminatory diktats.Equality is the, antithesis of arbitrariness
and excathedra 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 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.' 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
difficult to understand how one can misunderstand the obvious.
A thorny problem debated recurrently at the bar,
turning on Art. 19, demands some juristic response although avoidance of
overlap per- suades me to drop all other questions canvassed before us. The
Gopalan (supra) verdict, with the cocooning of Art. 22 into a self
contained code, has suffered supersession at the hands of R. C. Cooper(1).. By
way of aside, the fluctuating fortunes of fundamental rights, when the
proletarist and the proprietariat 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, moves on to In re : Kerala Education Bill and then on to All India
Bank Employees Union, next to Sakai Newspapers, crowning in Cooper(1) and
followed by Bennet Coleman(2) and Sambu Nath Sarkar(3). Be that as it may, the
law is now settled, as I apprehend it, that no article in Part III is an island
but part of a continent, and the conspectus of the whole part gives the
directions 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 art. 21 does not, in a given situation,
exclude Art. 19 if both rights are breached.
We may switch to Art. 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?
(1)
[1973] 3 S.C.R. 530.
(2)
[1973] 2 S.C.R. 757.
(3)
[1973]1 S.C.R. 856.
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.
While dealing with Art. 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
exception's to Art. 19(1) in Art. 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 passports may be refused if sterilisation
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 house which projects into the street line. Sure, the
security of State is a paramount consideration but can Govemment, totalitarian
fashion. cquate Part,, 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-bums or sartorial
vagaries offend a high-placed autho- rity'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 a power to
blanketban 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 no material. Under our
system, court writs cannot run government, for, then, judicial review may tend
to be a judicial coup. But 'lawless' law and executive excess must be halted by
judge-power best 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. C.
Row(1) this (1) [1952]S.C.R.597.
.lm15 "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 an similar others."
What characterises the existence and eclipse of the
right of, exit ? Breathes there the man with soul so dead' who, if he leaves,
will not return to his own 'native land'? Then, why restrict ? The question,
presented so simplistically, may still have overtones of security sensitivity
and sovereignty complexity and other internal and external factors, and that is
why the case which we are deciding has spread the canvas wide. I must express a
pensive reflection, sparked off by submissions at the bar, that, regardless of
the 'civil liberty' credentials or otherwise of a particular government and
mindless of the finer phraseology of a restrictive legislation, eternal
vigilance by the superior judiciary and the enlightened activists who are the
catalysts of the community, is the perpetual price of the preservation of every
freedom we cherish. For, if unchecked, 'the greater the power, the more
dangerous the abuse.' To deny freedom of travel or exit to one untenably is to
deny it to any or many likewise, and the right to say 'Aye' or 'nay' to any
potential traveller should, therefore, not rest with the minions or masters of
government without being gently and benignly censored by constitutionally
sanctioned legislative norms if the reality of liberty is not be drowned in the
hysteria of the hour or the hubris of power. It is never trite to repeat that
where laws end, tyranny begins', and law becomes. unlaw even if it is
legitimated by three legislative readings and one assent, if it is not in
accord with constitutional provisions, beyond abridgement by the two branches
of government. In the context of scray expressions like 'security' 'public
order, 'public interest' and 'friendly foreign relations', we must warn
ourselves that not verbal tables but real values are the governing
considerations in the exploration and adjudication of constitutional
prescriptions and proscriptions. Governments come and go, but the fundamental
rights of the people cannot be subject to the wishful value- sets of political
regimes of the passing day. The learned Attorney General argued that the right
to travel abroad was no part of Art. 19(1) (a), (b), (c), (f) or (g)
and so to taboo travel even unreasonably does not touch Art.
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 Art. 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 Art. 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 Art. 19(4) ?
This renophatic touch has not been attested by the
Constitution and is not discernible in the psyche. An anti- international
pathology shall not afflict our National Charter. A Human Tomorrow on Mother
Earth is our cosmic constitutional perspective (See Art. 51 To. my
mind, locomotion is, in some situation, necessarily. involved in the exercise
of the specified fundamental rights as an associated or integrated right.
Travel, simiplicter, is peripheral to and not necessarily fundamental in Art.
19. Arguendo, free speech is feasible without movement beyond the country,
although soilequies and solo songs are not the vogue in this ancient land of
silent saints and pyrating gurus, bhajans and festivals. Again, travel may
ordinarily be 'action and only incidentally 'expression', to borrow the Zemel
diction.
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 current, it is common place that the world- the family of
nations--vibrates, and men-masses of man-move and 'jet' abroad and abroad, even
in 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 Art. 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? 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 tranquillity of the community to high risk. We cannot over-stretch
free speech to make it an inextricable component of travel.
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-fulfilment. 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." Again "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 ancient of expression." Thomas Emerson comments on
passports from these dual angles : 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, as when it is 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 on
functionally it requires such different types of regulation that, at last as
the general proposition, it would have to be considered "action". As
action, it is a 'liberty' protected by the due process clause of the Fifth and
Fourteenth Amendments. The first amendment is still relevant in two ways : (1)
There are sufficient elements of expression in travel, abroad so that the
umbrella effect of tile 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."
Travel is more than speech : it is speech bridged
with conduct, in the words of Justice Douglas:
"Restrictions
on the right to travel in times of peace should be so particularized that at
First Amendment right is not precluded unless some clear countervailing
national interest stands in the way. of its assertion."
I do not take this. as wholly valid in our Part III
scheme but refer to it as kindred reasoning.
The delicate, yet difficult, phase of the
controversy arrives where free speech and free practice of profession are
inextricably interwoven with travel abroad. The Passport Act, in terms,
does not inhibit expression and only regulates action-to borrow the phraseology
of Chief Justice Warren in Zemel. But we have to view the proximate and real
conservance of thwarting trans-national travel through the power of the
State exercised under s. 3 of the Passport Act read, A with ss.
5, 6 and 10. If a right is not in express terms fundamental
within the meaning of Part III, does it escape Art. 13, read with the
trammels of Art. 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 as- sociated
rights, totally integrated, must enjoy the same immunity. Not otherwise.
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 grunting 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 regard-. less of
national frontiers. The second and third often are blurred in their edges and
may overlap.
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 violate Art. 19(1) (a) or (f) and stands voided
unless Art. 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 bit 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 Art. 19(2), (4) or (6).
So far is plain sailing, as I see it. But the
navigation into the penumbral zone of the second category is not easy. I
Supposing a lawyer or doctor, expert or exporter, missionary or guru, has to
visit a foreign country profession-ally 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 Art. 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 far, even if necessary for the good of the State. The perspective of free
criticism 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 non-entities 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 our foes I am in
favour of this freedom, which no other country would use, or dare to use, in
times of mortal peril such as those through which we are passing."
I wholly agree that spies, traitors, smugglers,
saboteurs of the health, wealth and survival or sovereignty of the nation shall
not be passported into hostile soil to work their vicious plan fruitfully. But
when applying the Passports Act, over-breadth hyper-anxiety, regimentation
complex, and political mistrust shall not sub-consciously exaggerate, into
morbid or neurotic refusal or unlimited impounding or- final revocation of
passport, facts which, objectively assessed, may prove tremendous trifles. That
is why the provisions have to be read down into constitutionality, tailored to
fit the reasonableness test and humanised by natural justice. The Act will
survive but the order shall perish for reasons so fully set out by Shri Justice
Bhagwati. And, on this construction, the conscience of the Constitution
triumphs over vagarious governmental orders. And, indeed, the learned Attorney
General (and the Additional Solicitor General who appeared with him), with
characteristic and commendable grace and perceptive and progressive realism,
agreed to the happy resolution of the present dispute in the manner set out in
my learned brother's judgment.
A concluding caveat validating my detour. Our
country, 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 water-
shed between a police state and a people's raj is
located partly through its passport policy. Today, a poor man in this poor
country despaire 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 legisidally constitutionalised--a
consumption 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 haired 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
heard against everything in any way exceptional. This is a recurrent phenomenon
in human history. Wherever it occurs, its results are horrible."
(Foreword by Bertrand Russel to Freedom is as
Freedom Does-Civil Liberties Today-by Corliss Lament. New York, 1956) While
interpreting and implementing the words of Art. 14, 19 and 21,
we may keep J. B. Preistley's caution :
"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 sane 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
Corriss Lament, 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.' I agree with Sri Justice Bhagwati,
notwithstanding this supplementary.
KAILASAM, J.-This petition is filed by Mrs. Maneka
Gandhi under Article 32 of the Constitution of India against the
Union of India and the Regional Pass port 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.
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 Passport 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."
On July 5, 1977 the petitioner addressed a letter
to the second respondent, Regional Transport Officer, requesting him to furnish
her a copy of the statement of the reasons for making the impugned order. On
July 7, 1977 the petitioner received the following communication from the
Ministry of External Affairs:
"The
Government has decided to impound your passport in the interest of general
public under section 10(3)(c) of the Passport 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."
The petitioner submitted that the order is without
jurisdiction and not 'in the interests of general public.' The validity of the
order was challenged on various grounds. It was submitted that there was
contravention of Art. 14 of the Constitution, that principles of
natural justice were violated; that no opportunity of hearing as implied
in section 10(3) of the Act was given and that the with-holding of
the reasons for the order under section 10(5) is not justified in law
On July 8, 1977 the petitioner prayed for an exparte ad interim order staying
the operation of the order of the respondents dated July 2, 1977 and for making
the order of stay absolute after hearing the respondents. On behalf of the
Union of India, Shri N. K. Ghose, I.F.S., Director (P.V.) Ministry of External
Affairs, filed a counter affidavit. It was stated in the counter affidavit that
on May 11, 1977, the Minister of External Affairs approved the impounding of
the passport of 11 persons and on May 19, 1977 an order was passed by the
Minister impounding the passports of 8 persons out of 11 persons that on July
1, 1977 the authorities concerned informed the Ministry of- Ex- ternal Affairs
that the petitioner and her husband had arrived at Bombay on the after-noon of
July 1, 1977 and that information bad been received that there was likelihood
of the petitioner leaving the country. The authorities contacted the Ministry
of External Affairs and Minister after going through the relevant papers approved
the impounding of the passport of the petitioner on the evening of July 1, 1977
in the interests of general public under Section 10(3)(c) of the
Passports Act, 1967. On July 2, 1977 Regional Transport Officer on instructions
from the Government of India informed the- petitioner about the Central
Government's decision to impound her passport in public interest and requested
her to surrender her passport. In the counter affidavit various allegations made
in the petition were denied and it was stated that the order was perfectly
justified and that the petition is without merits and should be dismissed. The
rejoinder affidavit was. filed by the petitioner on July 16, 1977.
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.
A petition by Adil Shahryar was filed seeking
permission to intervene ill 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 impounding was that she was likely to be examined by the
Commission of Inquiry and her presence was necessary in India.
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 Art. 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 was
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 practise profession outside the
country were also infringed. The plea is that the fundamental rights guaranteed
under article 19 are available not only within territory of India but
outside the territory of India as well.
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) to freedom of speech and expression;
(b) to assemble peacebly and without arms;
(c) to form associations or unions;
x 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;
The rights conferred under Article 19(1) (d) and (e) being
limited in its operation to the territory of India the question of their
extraterritorial application does not arise.
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
Democrative Republic and to secure to all its ciitzens:
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.
By the article, India is constituted as a
Democratic republic and its citizens secured certain rights. While- a reading
of the article would indicate that the articles are applicable within the
territory of India, the question arises whether they are available beyond the
territorial limits of India.
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, in so far as
they are inconsistent with the provisions of Part III shall, to the extent of
such inconsistency, be void. What are the laws in force in the territory of
India immediately before the commencement ,of the 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 con- travention of this clause shall, to the extent of the
contravention, be void. The word "law" in the 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.
While the applicability of the custom and usage is
restricted to the territory of India "law" may have an
extra-territorial application.
In distributing the legislative powers between the
Union and the 'States Article 248 provides that Parliament may make
laws for the whole or 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 application. In England section 3 of the Statute of
Westminster, 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 extraterritorial operation."
But in determining whether the provisions of a
Constitution or a ,statute have extra-territorial application certain
principles are laid down. Maxwell on The Interpretation of Statutes Twelfth
Edition, at p. 169, while dealing with the territorial application of British
legislation has stated :-
"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 of possession."
Lord Denning M. R. has said that the general rule
is "that an Act of Parliament only applies to transactions within the
United Kingdom and not to transactions outside." These two extracts are
from two decisions (1) Att. Gen. for Alberta vs. Huggard Assets, Ltd., (1953) A.C.
420 and C.E.B. Draper & Son, Ltd. vs. Edward Turner & Son. Ltd. (1964)
3 All. E.R. 148 at p. 150 Maxwell comments on the above passages thus
"These statements, however, perhaps oversimplify the position." The
decisions cited will be referred to in due course.
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 lin 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 citizen 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 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.
I will now refer to the decisions of courts an this
subject. In Niboyet v. Niboyet(1) the Court of Appeal stated: "It is true
that the words of the statute are general, but general word,,, in a statute
have never, so far as I am 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 Shippina
Acts, and in some of the Admiralty Acts." In the Queen v. Jameson and
Others (2) the Chief Justice Lord Russet (1) 48 L. J. P. I at p. 10.
(2) [1896] 2 Q. B. Division 425 at 430.
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(1), 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 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 bank- rupt 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 & Son, Limited(2) 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 where in 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". The law that is
applicable in the United Kingdom is fairly summed up in the above passage. The
presumption is that the statute is not intended to operate beyond the
territorial limits unless a contrary intention is expressed or could be
inferred from its language. The decision of the Privy Council in Att.-Gen. for
Alberta v. Huggard Assets, Ltd. (8), has already been referred to as a
quotation from Maxwell's Interpretation of Statutes. The Privy Council in that
case held 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." The Court of
Appeal in a later decision reported in (1964) 3 All. E.R. p. 148 (C.E.B. Draper
& Son, Ltd. vs. Edward Turner & Son, Ltd.) approved of the proposition
laid down in Att. Gen. for Alberta vs. 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 cases decided by the Federal Court and the
Supreme Court of India may be taken note of. Dealing with the extra-
territorial application of the provisions of the Income-tax Act, the
Federal Court in Governor--General in Council v. Raleigh Investment Co. Ltd.
(4) after finding that there was no territorial operation of the Act observed
that if there was any extra territorial operation it is within the legislative
powers given to tile Indian Legislature by the Constitution Act. After
discussing the case-law 'on the subject at p. 61 regarding the making of laws
for the (1) [1901] A. C. 102 at p. 107.
(2) [1909] 2 K. B. 61.
(3) [1953] A. C. 420.
(4) A. I. R. (31) 1944 Federal Court 51.
9-119 SCI/78 whole or any part of British
India on topics in Lists I and III of Sch. 7 and holding that the Federal
Legislature's powers for extra-territorial legislation is not limited to the
cases specified in clauses (a) to (e) of sub-section (2) of section 99 of the
Government of India Act, 1935, concluded by stating that the extent, if any, of
extra- territorial operation which is to be found in the impugned provisions is
within the legislative powers given to the Indian Legislature by the Constitution
Act. Again in Wallace Brothers & Co. Ltd. v. Commissioner of
Income-tax, Bombay, Sind and Baluchistan(1),- the Federal Court held that there
was no element of extraterritoriality in the impugned provisions of the Indian
Income-tax Act, and even if the provisions were in any measure extraterritorial
in their effect, that was not a ground for holding them to be ultra vires the
Indian Legislature. In Mohammad Mohy-ud-din v. The King Emperor(2), the Federal
Court was considering the validity of the Indian Army Act, 191 1. In this
case a person who was not a British subject but had accepted, a commission in
the Indian Army was arraigned before a court martial for trial for offences
alleged to have been committed by him outside British India. It was held
that section 41 of the Indian Army Act, 191 1, conferred jurisdiction
on the courtmartial to try non-British subjects for offences committed by them
beyond British India. On a construction of section 43 of the Act the
Court held that the court-martial has powers "over all the native officers
and soldiers in the said military service to whatever Presidency such officers
and soldiers may belong or wheresoever they may be serving." Repelling the
contention that there was a presumption against construing even general words
in an Act of Parliament as intended to have extra- territorial effect or
authorising extra-territorial legislation the Court observed: "The
passages relied on in this connection from Maxwell's Interpretation of Statutes
do not go the length necessary for the appeIlant's case. It is true that every
statute is to be interpreted, so far as its language admits, as not to be
inconsistent with the comity of nations or with the established rules of International
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 dis- ciplinary control over its own armed forces, when those forces
are operating outside its territorial limits". The law as laid down by the
Courts may now be summarised. Parliament normally restricts the operation of
the legislation to its own territories. Parliament may pass legislation
controlling the activities of the citizens abroad. An intention to have extra
territorial operation should be expressed or necessarily implied from the
language of the Statute. The Statute should be so interpreted as not to be
inconsistent with the comity of nations or with the established rules of
international law.
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 (1) [1945] F.C.R. 65.
(2) [1946] F.C.R. 94.
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 Art. 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 Articles 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 focie 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 appli- cation. 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. 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 to 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 extra territorial application, for such rights could not be enforced
by the State outside the Indian territory. The rights conferred under Art.
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 Art. 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. 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 Art.
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 vs. The State of
Madras,(1) Kania C.J., said that in the right "to move freely throughout
the territory of 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 States hampering free movement (1)
[1950] S.C.R. 88.
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 and Another,(1) 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 Art. 19 (1) is
exercisable in the territory of India has not been discussed. Far from Art.
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 Art. 19(b) and (c) to
assemble peaceably and without arms and to form associations or unions could
not have been intended to have any extraterritorial application as it will not
be in accordance with the accepted principles of international law. As the
rights under Articles 19(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(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.
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 hu- man 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 UN 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 UN
Assembly on December 10, 1948. It is most unlikely that before the Declaration
of Human Rights was promulgated ' (1) [1958]S.C.R.308.
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 with in 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 American 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.
The right of a citizen to leave any country and to
return to his country is recognised in the United States. While there is no
restriction on the citizen to return to his own country the Government of the
United States does place certain restrictions for leaving the country, such as
obtaining of the passports etc. Even the right to travel outside the United
States is not unrestricted. A passport is a request by the Government which
grants it to a foreign Government that the bearer of the passport may pass
safely and freely. The passport is considered as a licence for leaving a
country and an exit permit rather than a letter of introduction. Even in
America the State Department when it issues a passport specifies that they are
not valid for travel to countries in-which the United States have no diplomatic
representation as the position of the Government is that it will not facilitate
overseas travel where it is unable to afford any protection to the traveller.
The American public particularly the news reporters are claiming that they
should be allowed to travel wherever they wish if need be without their
Government's assurance to protection. 'The right of the American citizen to
travel abroad as narrated above shows that even the right to travel outside the
country is not unfettered.
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 emphasing 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 the outside one's
own country; freedom to take part in government, were liberties which American
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 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 extra-territorially
even in America.
The fundamental rights, under Art. 19(1) of
the Constitution are subject to the restrictions that may be placed under Art.
19(2) to (6) of the Constitution. The Fundamental Rights are not absolute
but are subject to reasonable restrictions 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 Art. 19(2) to (6), impose
restrictions 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 sections 3 and 4, the Act is made specifically
applicable to crimes that are committed outside India by citizen of India.
Neither in Art. 19 of the Constitution nor in any of the enactments
restricting the rights under Art. 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.
In the view that a citizen is not entitled to the
Fundamental Rights guaranteed under Art. 19 outside the territorial
limits of India,- the contention of the learned counsel for the petition that
by denying him the passport to travel outside India, his Fundamental Rights
like freedom of speech and expression, to assemble peaceably, to practise
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.
It was strenuously contended that the Legislature
by involving powers under Art. 21 cannot deprive the Fundamental
Rights guaranteed under Art. 19 at any rate within the territory of
India. It win now be considered whether an Act passed under Art. 21 should
also satisfy the requirements of Art. 19.
The submission was that Art. 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 Art. 21 on the ground
that it affects the rights secured to him under cl. (1) of Art. 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. It has
been decided by this Court in Gopalan's(1) 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 right specified under Art. 19(a) to
(e) and
(g) of the Constitution of India. Kania C.J. held :
"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
of Art. 19 will arise. If, however, the, legisation 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."
(1) [1950] S.C.R. 88.
Fazal Ali J., though he dissented from the majority
view regarding the application of Article 19 to punitive detention
observed follows "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 words 'law' imposing restrictions on the right to move freely."
The learned Judge, Justice Fazal Ali, took a
different view regarding preventive detention on the basis that it did not
admit of a trial but the order of detention rested on an apprehended and not
actual danger. Regarding punitive detention, the decision of a Bench of five
Judges in H. Saha v. State of West Bengal,(1) expressed the same view. Chief
Justice Ray observed :
"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 Art.
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."
In the case of punitive detention, it will be open
to the accused to raise all defences that are open to him in law, such as that
there have been no violation of any law in force. Regarding punitive detention
this Court in Saha case has held that as the Constitution has conferred rights
under Art. 19 and also adopted the preventive detention to prevent
the greater evil by imperilling security, the safety of the State and the
welfare of the nation, it is not possible to think that a person who is
detained will yet be free to move or assemble or form associations etc.
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 Art. 19 of the Constitution of India. Whether this
contention could be accepted (1) [1975] 1 S.C.R. 778.
or not will be examined with reference to the
provisions of the Constitution and the decisions rendered by this Court. Article
19 to 22 appear under the title "Right to freedom". Article
19 confers freedoms on the citizens whereas Aft. 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 Art. 21. While Art.
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 Art. 19, as it is mentioned
in Art. 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 Art. 19(1) are
subject to restrictions that may be placed by Articles 19 (2) to (6), the right
not to be deprived of life and personal liberty is subject to its deprivation
by pro- cedure established by law. The scope of the words "personal
liberty" was considered by Mukherjea, J. in Gopalan's case (supra.) 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 interest of society and the 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 re-strain and coercion of any
sort, are the inherent birth right-. of a man. The essence of these rights
consists 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 rifle'. 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) In the debates relating to the drafting of the
Constitution, in Art. 15 the word that was used was
"liberty". The framers of the Constitution thought that the word
"liberty" should be qualified by the insertion of the word
"personal" before it for otherwise it might be construed very widely
so as to include even the freedoms already dealt with under Art. 19, 30
(which corresponds to Art. 19 in the Constitution). The word
"personal liberty" in Article 21 is, therefore, confined to
freedom from restraint of person and is different from other rights enumerated
in Article 19 of the Constitution.
It is contended on behalf of the petitioner that
after the decision of the Bank Nationalisation case and Bennet Colomon'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 Art. 19(1) is no longer good law. The decisions
bearing on this question may now be examined.
In Gopalan's case it was held that Art. 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 Art. 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 dawn. The,, learned Judge explained that the reasonableness
of a law coming under Art. 21 could not be questioned with reference
to anything in Art. 19 though a law made under Art. 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(1) where it was held :
"Although
personal liberty has a content sufficiently comprehensive to include the
freedoms enumerated in Art. 19(1), and its deprivation would result in the
extinction of those freedoms, the Constitution has treated these civil
liberties as distinct from fundamental rights and made separate provisions
in Art. 19 and Arts. 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.
Approving the interpretation of the Articles in
Gopalan's case it was held that law which authorises deprivation of personal
liberty did not fall within the purview of Art. 19 and its validity
was not to be judged by the criteria indicated in that Article but depended on
its compliance with the requirements of Arts. 21 to 22.
This view was again affirmed in State of Bihar
v. Kameshwar Singh,(2) where Das, J. in approving the law laid down in
Gopalan's case observed as follows "As I explained in Gopalan's case and
again in Chiranjit LaPs case 1950 SCR 869 our Constitution protects the freedom
of the citizen by article 19 (1) (a) to (1) [1951] S.C.R. 451 (2)
[1952] S.C.R 889.
(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 Art. 22.
In Express Newspapers (P) Ltd. & another v. The
Union of India, & Others, (1) the test laid down was that there must be a
direct or inevitable consequence of the measures enacted in the impugned Act,
it would not be possible to strike down the legislation as having that effect
and operation. A possible eventuality of this type would not necessary 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. The
test, thus applied, is whether the consequences were "direct and
inevitable" ?
In Hamdard Dawakhana (Wakf) Lal Kuan v. Union of
India,(2) after citing with approval the case of Ram Singh and Express
Newspapers case, it was observed :
"It
is not the form or Incidental infringement that determine the constitutionality
of a statute in a reference to the rights guaranteed in Art. 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 Art.
19 (1) (a) of the Constitution."
Reality and substance test was laid down in this
case while, approving of the earlier decisions when the court was considering
the question whether the ban on advertisement would affect the rights conferred
under Art. 19(1) (a). 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(3). The learned Judge after referring to
the dissenting view of Fazal Ali, J. in Gopalan's case rejecting the plea that
a law under Art. 21 shall not infringe Art. 19(1) observed
:
"The question being integrated with the
dissenting view expressed by Fazal Ali, J. we are bound by this judgment."
Reliance was placed by the learned counsel for the petitioner on the decision
by this Court in Sakal Papers (P) Ltd. and Ors. v. The Union of India. (4)
The learned counsel referred to the passage at page 5 60A (1) [1959] 1 S.C.R.
135.
(2) [1960] 2 S.C.R. 671 at page 691.
(3) [1960] 3 S.C.R. 887.
(4) [1962] 3 S.C.R. 842.
Part where 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 a citizen and not merely what manner and method has
been adopted by ,,he State in placing the restriction and, therefore, the right
to freedom, of speech cannot be taken away with the object of taking away the
business activities of the citizen. Reference was also made to another passage
at 867 where it 'was held that the "legitimacy of the result intended to
be achieved does not necessarily imply that every means to achieve it is
permissible; for even if the end is desirable and permissible, the means
employed must not transgress the limits laid down by the constitution if they
directly impinge on any of the fundamental rights guaranteed by the
Constitution. It is no answer when the constitutionality of the measure is
challenged that apart from the fundamental right infringed the provision is
otherwise legal. 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 Art. 19(1) (a) of the Constitution. The court held
that the order was void as it violated Art. 19 (I) (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 incidently, does so directly though it seeks to achieve the
end by purporting to regulate the business aspect to a newspaper........ Such a
course is not permissible and the courts must be ever vigilant in guarding
perhaps the most precious of all the freedom 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 Art. 21 on the rights
guaranteed under Art. 19(1) was not in issue in the case.
The two cases which were strongly relied on by the
learned counsel for the petitioner as having over-ruled the view of Gopalan's
case as affirmed in Ram Singh's case are Bank Nationalisation Case(2) and
Bennet Colomon's case.(2) In Kharak Singh's(3) case the majority took the view
that the word 'liberty' in Art. 21 is qualified by the word
'personal' and there its content is narrower and the qualifying adjective has
been employed in order (1) [1970] 3 S.C.R. 530.
(2) [1973] 2 S.C.R. 757.
(3) [1964] 1 S.C.R. 332.
to avoid overlapping between those elements or
incidents of liberty like freedom of speech or freedom of movement etc. already
dealt with in Art. 19(1) and the liberty guaranteed by Art. 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 dealt with in a several clauses
of Article 19(1). The minority view as expressed by Subba Rao, J. is
that if a person's fundamental right under Art. 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 Art. 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(1)
case and Bennet Colomon(2) case.
On 19th July, 1969, the acting President
promulgated an ordinance No. 8 of 1969 transferring to and vesting the
undertaking of 14 names 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 Art. 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 : Article 19(1) (f) and Art.
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 Art. 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 Art. 19(1) (f) and 31(2) were
mutually exclusive in their operation and that substantive provisions 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 pretty.
After mentioning the two divergent lines of authority, the court held that
"the guarantee under Art. 31 (1) and (2) arises out of
the limitations imposed on the authority of the State, (1) [1970] 3 S.C.R. 530.
(2) [1973] 2S.C.R.757.
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 clause (1) and (2) of Art. 31 are
part of the similar article 19(1) (f) enunicating the object
specified and Article 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 Art. 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 111. The
learned counsel for the petitioner submitted that on similar reasoning it is
necessary that an enactment under Art. 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 Art. 19 of the
Constitution of India. The important question that arises for consideration is
whether the decision in the Bank Nationalisation case has over-ruled the
decision of Gopalan's case and is an authority for the proposition and an act
of the legislature relating to deprivation of life and personal liberty should
also satisfy the other fundamental rights guaranteed under Art. 19(1) of
the Constitution.
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. 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 the 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 in some cases to be presently noticed that Art. 19 (1)
(f) and Art. 31 (2) are mutually exclusive."
It is necessary at this stage to emphasize that the
Court was only considering the decisions that took the view that Article
19 (1 ) (f) and 31(2) were mutually exclusive. After referring
to passages in A. K. Gopalan's case at pages 571 to 573 noted at page 574 :
"The
view expressed in A. K. Gopalan's case was reaffirmed in Ram Singh and
others v. State of Delhi(1)".
(1) [1951] S.C.R. 451.
Having thus dealt with the passages in the judgment
in Gopalan's case the Court proceeded to consider its effect and observed that
the principle underlying the judgment of the majority was extended to the
protection of freedom in respect of property and it was held that-Article 19(1)
(f) and. Art. 31(2) were mutually exclusive in their operation.
While observations in judgment of Gopalan's case as regards the application
of Art. 19(1) (f) in relation to Art. 21 were not referred
to, the Court proceeded to deal with the correctness of the principle in
Gopalan's case being extended to the protection of the freedom in respect of
property. In A. K. Gopalan's case (supra) Das, J., stated that if the capacity
to exercise the right to property was lost, because of lawful compulsory
acquisition of the subject of that right, the owner ceased to have that right
for the duration of the incapacity. In Chiranjit Lal Chowduri's case,(1) Das,
J. observed at page 919 :
". .
. the right to property guaranteed by Art. 19 (1) (f) would......
continue until the owner was under Art. 31 deprived of such property
by authority of law."
Das, J. reiterated the same view in The State
of West Bengal v. Subodh Gopal, (2) where he observed :
"Art.
19(1) (f) read with Art. 19(5) pre- supposes 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.
Thus the observation in Gopalan's case extending
the principle laid down in the majority judgment to. freedom in respect of
property was reiterated by Das, J. in Chiranjit Lal Chowduri's case (supra) and
Subodh Gopal's case. The principle was given more concrete shape in State
of Bombay v. Bhanjit Munji(3) case wherein it was held that "if there is
no property which can be acquired held or disposed of,. no restriction can be
placed on the exercise of the right to acquire, hold or dispose it of, and as
clause (5) contemplates the placing of reasonable restrictions of the exercise
of those rights it must follow that the Article postulates the existence of
property over which the rights are to be exercised." This view was
accepted in the later cases Dabu Barkya Thakur v. State of Bombay(4)
and Smt. Sitabati Debi and Anr. v. State of West Bengal.(5) The Court
proceeded further after referring to some cases to note that. "With the
decision in K. K. Kochuni's case(6) there arose two divergent lines of
authority (1) "authority of law" in Art. 31 (1) is liable
to be tested on the ground that it violates other fundamental rights and
freedoms including the right to bold property guaranteed by Art. 19(1) (f) and (2)
"authority of law" within the meaning of Art. 31(2) is not
liable to be tested on the ground that it impairs the guarantee of Art. 19(1)
(f) in so far as it imposes substantive restrictions (1) [1950] S.C.R.
869.
(2) [1954] S.C.R. 587.
(3) [1955] (1) S.C.R. 777.
(4) [1961] 1 S.C.R. 128.
(5) [1967] 2 S.C.R. 940.
(6) [1960] 3 S.C.R. 887.
though it may be tested on the ground of impairment
of other guarantees." Later in the decision of State of Madhya Pradesh. v.
Ranoiro Shinde(1) the Supreme Court opined that the validity of law in cl. (2-)
of Art. 31 may be adjudged in the light of Art. 19 (1) (f). But
the Court in that case did not consider the previous catena of authorities
which related to the inter--relation between Art. 31(2) and Art.
19 (1) (f).
In considering the various decisions referred to
regarding the interrelation of Art. 31 (2) and Art. 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 Art. 31 (2) and Art. 19 (1) (f) and held
:
"The
true character of the limitations under the two provisions is not different.
Clause (5) of Art. 19 and cls. (1) & (2) of Art. 31 are
parts of a single pattern; Art. 19(1) (f) enunciates the basic right
to property of the citizens and Art. 19(5) and cls. (1) & (2)
of Art. 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 Art. 19 and cl. ( 1 and (2) of Art. 31 are parts of a
single pattern and while Art. 19(1) (f) enunciates the right to
acquire, hold and dispose of property; cl. (5) of Art. 19 authorise
imposition of restrictions upon the right. There must be reasonable restriction
and Art. 31 assures the right to property and grants protection
against the exercise of the authority of the State and cl. (5) of Art. 19 and
cls. (1) and (2) of Art. 31 prescribe restrictions upon State action,
subject to which the right to property may be exercised. The fact that right to
property guaranteed under Art. 19(1) (f) is subject to restrictions
under Art. 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 allot fields; they
do not attempt to enunciate distinct rights."
It proceeded "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 Art. 31(2). Article
31(2) requires that property must be acquired for a public purpose and
that it must be acquired (1) [1968] 3 S.C.R. 489.
under a law with characterstics set out in that
Articles. Formal compliance of the condition of Art. 31(2) is not
sufficient to negative the protection of the guarantee of the right to
property."
After expressing its conclusion, the Court proceeded
to state that it is found necessary to examine the rationale of the two lines
of authority and determine whether there is anything in the Constitution which
just fies this apparently-inconsistent development of the law. While stating
that in its judgment the assumption in A. K. Gopalanan's case that certain
articles exclusively deal with specific matters and in determining whether
there is infringement of the individual's guaranteed rights, the ob- ject and
the form of State action alone need be considered, and effect of laws on
fundamental rights of the individuals in general will be ignored cannot be
accepted as correct. To this extent the Court specifically over ruled the view
that the object and form of the State action alone need be considered. It proceeded
"We hold the validity "of law" which authorities deprivation of
property and "a low" which authorises compulsory acquisition of
property for public purpose must be adjudged by the application of the same
tests." It will thus be seen that the entire discussion by the Court in
Bank Nationalisation case related to the inter- relation between Art.
31(2) and Art. 19(1) (f). In dealing with the question the Court
has no doubt extracted passages from the judgments of learned Judges in
Gopalan's case but proceeded only to consider the extension of the, principle
underlying the majority judgment to the protection of the freedom in respect of
property, particularly, the judgment of Justice Das. After stating that two
views arose after Kochuni's case the Court concerned itself only in determining
the rationale of the two lines of authority. The view taken in Gopalan's case
that the objection and the form of State action has to be considered was over
ruled and it was laid down that it is the effect and action: upon the right of
the person that attracts the jurisdiction of the Court to grant relief. It is
no doubt true that certain passing observations have been made regarding the
liberty of persons, such as at page 576 :
"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."
Though the liberty of person is incidentally
mentioned there is no further discussion on the subject. While undoubtedly Bank
Nationalisation case settles the law that Art. 19(1)
(f) and Art. 31(2) are not mutually
exclusive there is no justification for holding that the case. is authority for
the proposition that the legislation under Art. 21 should also
satisfy all the fundamental rights guaranteed under Art.. 19(1) of the
Constitution. As emphasised earlier Art. 19 (1) (f) and Art. 31
(2) form a single pattern and deal with right to property. The fundamental
right under Art. 19(1) (f) is restricted under Art. 19(5) or Art.
31 (2) and as the article refer to right to property they are so closely
interlinked, and cannot be held to be mutually exclusive. But Art. 21 is
related to deprivation of life and personal liberty and it has been
held that it is not one of the rights enumerated in Art. 19(1) and
refers only to personal rights as are not covered by Article 19.
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.
It may also be noted that as the Court ruled that
the impugned Act violated Art. 31 (2) by not laying down the
necessary principles, the decision of the inter-relationship between Art.
19(1) (f) and 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 Arts. 19(1) and 31(2) are interrelated. But it is
necessary to state that the decision proceeded on some erroneous assumptions.
At page 571 of flank Nationalisation case (supra) it was assumed. "The
Majority of the Court (Kania, C.J. and Patanjali Sastri, Mahajan, Mukherjea
& Das JJ.) held that Art. 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 comers of that
articles." This statement is not borne out from the text of the judgment$
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 au and is covered wholly
by article 22. According to him, article 22 is a complete
code. I am unable to accept that contention." Patanjali 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 : "1t 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 Con- stitution 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 arts. 19(1) (a) to (e) and (g) are attracted in the case of
deprivation of personal liberty under art. 21, a punitive detention for an
offence committed under the Indian Penal Code such as theft, cheating
or assault would be illegal as pointed out in Gopalan's case by Kania C.J. and
Patan ' jali 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 art. 19 (1) and Art. 21 were mutually exclusive was
arrived at on an interpretation of language of art. 19 (1) (d) read
with art. 19(5) and not on the basis that art. 19(1) and 21 are
exclusive and Art. 21 a complete code. The words "Personal
liberty" based on the Draft Committee report on Art. 15 (now Art.
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 Art. 13 (now Art. 19). In Gopalan's
case it was also pointed out by the Judges that art. 19(1) and 21 did
not operate on the same field as Art. 19(1) and 31(2) of
the Constitution are. The right under Art. 21 is different and does
not include the rights that are covered under art. 19. Art. 19(1) confers
substantive right as mentioned in clauses. (a) to (g) on citizen alone and does
not include the right of personal liberty covered in Art.
21. For the reasons stated above obiter dicta in
Bank Nationalisation's case that a legislation under art. 21 should
also satisfy the requirements of Art. 19(1) cannot be taken as
correct law. The Court has not considered the reasoning in Gopalan's case and
over-ruled it. Before proceeding to consider the test of validity of a
legislation as laid down in Bennet Colomon'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(1), 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 Article
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 pre- mises of the majority in the Gopalan case was erroneous.
The view taken in this case also suffers from the same infirmities referred to
in (1) [1973] 1 S.C.C. 856.
Bank Nationalisation case. Later, in the case of
Khundiran v. West Bengal(1), 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(2) the Court regarded the question
as concluded and a final seal put on this controversy and hold'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 Art. 14 or Art. 19."
In Additional District Magistrate v. S. S. Shukla,(3)
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 Art. 21 of the
Constitution of India. Chief Justice Ray, at page 230 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 complimentary. The
limitation of State action embodied in a fundamental right couched in negative
form is the measure of the protection of the individual."
After quoting with approval the view held in Kharak
Singh's case that ,personal liberty in Art. 21 includes all varieties
of rights which go to make personal liberty other than those in Art. 19(1),
the learned Judge observed that the Bank Nationalisation case merely brings in
the concept of reasonable restriction in the law. Justice Beg, as he then was,
considered this aspect a little more elaborately at page 322. After referring
to the passage in Bank Nationalisation case the learned Judge observed :
"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 Art. 31. The question under consideration in that
case was whether Articles 19 (1) (f) and 31 (2) are mutually exclusive."
The learned Judge did not understand the Cooper's
case as holding that effect of deprivation of rights outside Art. 21 will
also have to (1) [1975] 2 S.C.C. 81.
(2) [1975] 1 S.C.R. 778.
(3) [1976] Supp. S.C.R. 172.
be considered. Justice Chandrachud understood the
decision in Bank Nationalisation case as holding that Art. 21 and Art.
19 cannot be treated as mutually exclusive. Justice Bhagwati at page 433
of the reports took the view that in view of the decision of this Court in
Cooper's case the minority view in Kharak Singh's case that the law under Art.
21 must also satisfy the test laid down in Art. 19(1) so far the
attributes covered by Art. 19(1) are concerned was approved. It is
seen that the view taken in the Bank Nationalisation case that a law relating
to deprivation of life and personal liberty falling under Art. 21 has
to meet the requirements of Art. 19 is due to an error in proceeding
on the basis that the majority Court in Gopalan's case held that Article
22 was a self contained code. The decisions which followed Bank
Nationalisation case, namely, the case of S. N. Sarkar v. West Bengal and
Khundiram v. West Bengal, H. Saha v. West Bengal, suffer from the same
infirmity. With respect I agree with the view expressed by Chief Justice Ray
and Justice Beg, as be then was, in Shukla's case.
Next to Bank Nationalisation case strong reliance
was placed on Bennet Colomon's case by the, petitioner for the proposition that
the direct effect of the legislation of the fundamental rights is the test.
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 of newspapers it was held that
Newspapers 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 fog 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 It may be noted that in Bennet Colomon'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. Bennet Colomon's case, Express
Newspapers 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.
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.
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.(1) 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. and
Anr. V. Union of India,(2) 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(3) 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 determine constitutionality of a statute but
reality and substance' In Sakal Papers (P) Ltd. v. Union of India(4) 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 Copper'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.
The test was adopted and explained in Bennet
Colomon's case as pointed above.
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,(5) where
Vardachariar, J. after referring briefly to the decision of Gallagher V.
Lynn,(6) held that "They need not be limited to any special system of
federal constitution is made clear by the fact hat 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." (1) [1950] A. C. 235.
(2) [1959] 1 S.C.R. 235.
(3) [1960] 2 S.C.R. 671.
(4) [1962] 3 S.C.R. 842.
(5) [1940] Federal Court Reports 188.
(6) [1937] A. C. 863.
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 2 1, 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 Art. 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 Art. 19(1) are affected, punitive detention
will not be valid. The result of the discussion, therefore, is that the
validity of the Passport 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. 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(1) 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 Art. 19 of the
Constitution and the exression '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,(2) 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, as 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(3) the Court sustained against due process attacks the
Government's refusal to issue passports for travel to Ouba 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."
(1) [1967] 2 S.C.R. 525.
(2) 357 U. S. page 116, at page 127 (1958).
(3) 381 U.S. (1) at page 14.
(The Constitution of the United States of
America-Analysis and interpretation-at page 1171) In Herbert Aptheker etc. v.
Secretary of State,(1) the Court struck down a congressional prohibition of
international travel by members of the Communist Party. In a subsequent
decision the Court upheld the Government's refusal to issue passports for
travel to Cuba, because the refusal was on foreign policy consideration
affecting all citizens [Zenel v, Rusk (supra)]. Thus an American's citizen's
right to travel abroad may also be restricted under certain conditions. Our
Constitution provides for restriction of the rights by 'procedure established
by law'. It will be necessary to consider whether the impugned Act, Passport
Act satisfies the requirements of procedure established by law. 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) (1) observations of Mahajan, J.]. There must be
some procedure and at least it must confirm to the procedure established by 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(3) 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. I will not proceed
to examine the provisions of Passport Act, Act 15 of 1967, to determine
whether the Provisions of the Act are in accordance with the
procedure established by law.
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'(1) that the right to
tavel abroad is a part of person'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.
(1) 378 U.S. 500.
(2) [1950] S.C.R. 88 at page 230.
(3) [1963] 1 S.C.R. 332.
(4) [1967] 3 S.C.R. 525.
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 pass- port
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 witing otherwise
determines.
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 endorsement 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 bolder of a
passport or a travel document to vary or cancel the conditions of the passport.
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 passpot 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 sovereignity 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 passpot or travel document
has, at any time after the issue of the passort 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;
(c) 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.
(b) 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."
Section 10(3) (c) enables the passport
authority to impound or revoke a passport 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.
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 in 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) provided 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. Rue 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. To sum up under section 10(3) (c) if the
passport authority deems it necessary so to do for reasons stated in the
subsection, 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. 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 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 im-
pound 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
annexus 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.
The submission that in the context the rule of
natural justice, that is, the right to be beard 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 bolder 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 bad been convicted by a Court of India for any offence involving moral
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 sub-clause (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 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,(1) 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 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 (1) [1971] 1 S.C.R. 791.
that the person affected would take an obstructive
attitude. To a limited extent it may be necessary te rovoke 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 provision 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 given for a specified period the revocation
or impounding during the 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,(1) 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,(2) 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 a 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 Durav- appah
V. Fernando(3) after referring to an earlier decision in Sugathadasa v.
Jayasinghe(4) disagreed with the decision holding "As a general rule that
words such as 'where it appears to . . . .' or 'if it appears to the
satisfaction of..... or 'if the considers it expedient that. . . .' 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 (1) [1960] 2 S.C.R.
807.
(2) [1969] 2 Ch. 149.
(3) [1967] 2 A. C. 337, (4) [1958] 59 N.L.R. 457.
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(1) where Byles, J. stated "A long course of
decision, beginning with Dr. Bentley's case, 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." In the circumstances, there 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. 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 partenm 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.(
2 ) The view taken by Tulzapurkar, J. is that the rule of audi alteram partem
is not excluded in making an order under sec. 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,(3) 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 be 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 beard. I am satisfied that the petitioner's claim that she has a
right to be heard before a final order under s. 10(3) (c) is passed
is made out. In this view the question as to whether sec. 10(3) (c) is ultra
vires or not does not arise.
it was submitted on behalf of the state that an
order under subclause 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 (1) 1723 1 Str.
557 ; Mod. Rep. 148.
(2) 76 B.L.R.(1974) 788.
(3) [1918] A. C 557 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 con- sistent. 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-repeated
,observations of Lord Justice Tucker in Russell v. Duke of Norfolk(1) "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 matter that is 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,(2) Lord Denning held that the view that the principle of natural
justice applied only to judicial proceedings and not to administrative proceedings
has been over-ruled in Ridge v. Baldwin.(3) 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 tight 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 Re H. K. (An infant)(1). 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. 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 questions 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.) On a
consideration of various authorities it is clear that where the decision of the
authority entails civil consequences and the petition is (1) [1949] 1 All
E.R.109,118.
(2) [1970] 2 Q.B. 417.
(3) [1964] A.C. 40 (4) [1967] 2 Q.B.617, at 630.
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(1) and Rohtas Industries Ltd. v. S. D.
Agrawal,(2) 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.(3) wherein construing the provisions of s. 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 s. 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, requirements of the statute are fulfilled. "In
our judgment, the satisfaction of the Government that the supply is necessary
in the public interest is in appropriate cases not excluded from judicial
review." The decisions cited are clear authority for the proposition that
the order passed under s. 10(3) (c) is subject to a limited judicial
scrutiny. An order under s. 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 S. 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.
It was next contended on behalf of the petitioner
that the provisions of s. 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 Govt. the provisions should be regarded as. total denial or
procedure and arbitrary. In view of the construction which is placed on S.
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 s. 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 docu-
(1) [1966] Sup. S.C.R. 31 1.
(2) [1969] 3 S.C.R. 108 (3) [1969] 3 S.C.R. 865.
ment 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 s. 10 (3)(c) for
impounding a passport but the two powers are exercisable in totally different
contexts. Under sec. 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
sec. 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 s. 10(3) (c) is passed it would automatically apply to s.
10(5) and for the same reason the authority can decline to furnish the
reasons for the order. S. 10(5) says that the authority shall furnish to the
holder of the passport on demand a copy unless in any case the authority it of
opinion that it will not be in the interests 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 person has a right of appeal under s. 1 1 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 the 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 we
furnished by the Govt. and no appeal is provided against the order of the Govt.
it would virtually amount to denial of procedure established by law as
contemplated under Art. 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 Govt. 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 born in mind that
when the Govt. itself passes an order it should be presumed that it would have
made the order after careful scrutiny. If an order is passed 11-119
SCI/79 by the passport authority, an appeal is provided. If the Govt.
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
and Ors. v. Government of India & ors.(1) 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 S. 10(5) of
the Act is ultra vires of the powers 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 sec. 10(5) ultra vires of the powers of
the legislature.
It was next contended that in the present case the
passport was impounded under S. 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 S. 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 s. 22(a) of the Passports Act on 14-4-76 was brought to
our notice. By that notification the Central Govt. 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 s. 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 (1) [1971] 2
S.C.R. 871 at p. 876.
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 if 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 question as to whether in the circumstances the
impounding of the passport is justified or not for the' learned Attorney
General submitted that the im- pounding 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 th e
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
represen- tation 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."
In view of the statement that the petitioner may
make a representation in respect of impounding of passport and that the
representations will be dealt with expeditiously and that even if the
impounding of the passport is confirmed it will not exceed a period of six
months from the date, of the decision that may be taken on the petitioner's
repre- sentation, it is not necessary for me to go into the merits of the case
any further. The Attorney General assured us that all the grounds urged
before us by the petitioner and the grounds that may be urged before the
authority will be properly considered by the authority and appropriate orders
passed. 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 Art. 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.
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.
ORDER 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.
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