RIGHT TO LIFE UNDER CONSTITUTION OF INDIA - Smt. MANEKA GANDHI CASE
Maneka Gandhi v. Union of India, (SC)
SUPREME COURT OF INDIA
(Constitutional Bench)
Before :- M.H. Beg, C.J.I., Y.V.
Chandrachud, P.N. Bhagwati, V.R. Krishna Iyer, N.L. Untwalia, S. Murtaza Fazl
Ali and P.S. Kailasam, JJ.
Writ Petn. No. 231 of 1977. D/d.
25.1.1978.
Smt. Maneka Gandhi - Petitioner
Versus
Union of India and another - Respondents
For the Petitioner :- M/s. Madan Bhatia
and Mr. D. Goburdhan, Advocates.
For the Respondent :- Sachthey and K.N.
Bhatt, Advocates.
For the Intervener :- Mr. Ram Panjwani,
Sr. Advocate, M/s. Vijay Panjwani and Raj Panjwani, Mr. S.K. Bagga and Mrs. S.
Bagga, Advocates.
A. Constitution of India,
Articles 14, 19
and 21 - Expression 'personal liberty',
meaning and content of - Whether, expression included right to go abroad -
Inter-relationship between Articles 14, 19 and 21 - Procedure Contemplated by
Article 21 must answer the test of one or more of the fundamental rights
conferred by Article 19 - Article 21 must also
answer the test of reasonableness in order to be in conformity with Article 14.
[Paras 54, 55 and 56]
B. Passport Act, 1967,
Section 10(3)(c) - Constitution of India, Articles
21, 32
and 10 - Procedure established by law -
Principles of natural justice - Rule of audi alteram partem - Whether an
essential element of the procedure - Applicability to administrative proceeding
under Section 10(3)(c) of the Passports
Act, 1967 - Procedure prescribed for impounding of passport whether the
procedure "established" in conformity with the requirement of Article
21 - Held, procedure complied with all the requirements of 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.
The power conferred under
section 10(3)(c) Passports Act, 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.
[Paras 57, 58, 61, 62, 63 and 64]
C. Passports Act, 1967,
Section 10(3)(c) - Ground of "In the
interests of the general public" - Interpretation of - Provision not fall
foul of Article 14 of the Constitution -
Power conferred on passport authority to impound a passport cannot be said to
be unguided or unfettered.
[Para 65]
D. Constitution of India,
Part 3 (Gen.) - Constitutionality of statute on the touch stone of fundamental
rights - Infringement of fundamental right - Test to be applied - Protection
against infringement determined neither by object nor the form of the state
action - Held, determination made by the direct operation upon individual's
right.
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 eroded.
[Para 66, 68]
E. Constitution of India,
Articles 19(1)(a) and 19(1)(g)
- Passports Act, 1967, Section 10(3)(c)
- Right to go abroad whether covered by Article 19(1)(a) or (g) of the
Constitution - Right not named as fundamental right or included in Article 19(1)(a) of the constitution - Held, not
included in Article 19(1)(a) or (g) - Freedom of speech and expression whether
confined to the territory of India - There are no geographical limitations to
freedom under Article 19(1)(a) - Hence this freedom is exercisable not only in
India but also outside - Constitutional requirement of an order under Section 10(3)(c) - That, the direct and inevitable
effect of the order must not be violative of freedom under 19(1)(a) or (g) of
constitution.
But that does not mean
that an order made under Section 10
(3) (c) may not violate Article 19
(1) (a) or (g). 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). Case law ref.
[Paras 70, 75 78, 83, and 84]
F. Constitution of India,
Articles 19(1)(a) and 19(1)(g)
- Passports Act, 1967, Section 10(3)(c)
- Order impounding passport passed "In the interests of the general
public" - Ground taken that the holder should be available in India to
give evidence before Commissions of Inquiry - Section 10(3)(c) contains general power - Order cannot
be passed merely on the said ground - However, presence of special
circumstances must be proved to invoke general power.
[Paras 85, 86 and 89]
G. Passports Act, 1967,
Section 10(3)(c) - Order for impounding a
passport, in the interests of the general public - When can be passed - Ground
public interest must actually exist in praesenti not in future.
Per Bhagwati, J. (jointly
with Untwalia and Murtaza Fazl Ali, JJ); rest of the Judges concurring : An
order impounding a passport under Section 10
(3) (c) 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 in the instant case, it was held that it was not
merely on the future likelihood of the interests of the general public being
advanced that the impugned order was made by the Central Government. The
impugned Order was made because, in the opinion of the Central Government, the
presence of the petitioner was necessary for giving evidence before the
Commissions of Inquiry and according to the report received by the Central
Government, she was likely to leave India and that might frustrate or impede to
some extent the inquiries which were being conducted by the Commissions of
Inquiry.
[Para 91]
Cases referred :
Satwant
Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, Government of
India, New Delhi (1967)3 SCR 525.
Kharak
Singh v. State of U.P., (1964)1 SCR 322.
A.K.
Gopalan v. State of Madras, 1950 SCR 88.
Additional
District Magistrate, Jabalpur v. S. S. Shukla (1976) Suppl. SCR 172.
Haradhan
Saha v. State of West Bengal, (1975)1 SCR 778.
Shambhu
Nath Sarkar v. State of West Bengal, (1973)1 SCC 856.
R.C.
Cooper v. Union of India, (1970)3 SCR 530.
L.C.
Golaknath v. State of Punjab, (1967)2 SCR 762.
State of
Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 Supreme Court 1269.
Cooper v. Wandsworth Board of Works :
(1863) 14 CB (NS) 180.
Kharak
Singh v. State of U. P., (1964)1 SCR 332.
Khudiram
Das v. State of West Bengal, (1975)2 SCR 832.
Mohd.
Sabir v. State of Jammu and Kashmir, AIR 1971 Supreme Court 1713.
State
of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284.
Kathi
Raning Rawat v. State of Saurashtra, 1952 SCR 435.
E.P.
Royappa v. State of Tamil Nadu, (1974)2 SCR 348.
House of Lords in Wiseman v. Borneman,
1971 AC 297.
Fontaine v. Chastarton (1968)112. Sol
Gen 690.
Rex v. Electricity Commissioners,
(1924)1 K.B. 171.
Rex v. Legislative Committee of Church
Assembly, (1928)1 K.B. 411.
Associated
Cement Companies Ltd. v. P.N. Sharma, (1965)2 SCR 366.
A.K.
Kraipak v. Union of India, (1970)1 SCR 457.
Suresh
Koshy George v. University of Kerala (1969)1 SCR 317.
D.F.O.
South Kheri v. Ram Sanehi Singh, (1971)3 SCC 864.
Russel v. Duke of Norfolk, (1949)1 All
England Reporter 109.
Pearl
Berg v. Varty, (1971)1 WLR 728.
Ram
Singh v. State of Delhi, 1951 SCR 451.
Naresh
Shridhar Mirajkar v. State of Maharashtra (1966) 3 SCR 744.
Express
News Papers (P) Ltd. v. Union of India, 1959 SCR 12.
Sakal
Papers (P) Ltd. v. Union of India, (1962)3 SCR 842.
Dwarkadas
Shrinivas v. Sholapur and Weaving Co. Ltd., 1954 SCR 674.
Bennett
Coleman and Co. v. Union of India (1973) 2 SCR 757.
Vide Best v. United States, 184 Federal
reporter (2d) 131.
Dr. S.S. Sadashiva Rao v. Union of
India, (1965)2 Mys LJ 605.
Kent v.
Dulles, (1958) 357 US 116 : 2 Law Ed 2d 1204.
Aptheker
v. Secretary of State, (1964) 378 US 500 : 12 Law Ed 2d 992.
Zemel v. Rusk, (1966)381 US 1 : 14 Law
Ed 2d 179.
Apthekar
v. Secretary of State, (1964) 378 US 500 : 12 Law Ed 2d 992.
All
India Bank Employees' Association v. National Industrial Tribunal, (1962)3 SCR
269.
Narendra
Kumar v. Union of India, (1960)2 SCR 375.
Rohtas
Industries Ltd. v. S. D. Agarwal (1969) 3 SCR 108.
D.A.P. v. Bhagwan (1972 AC 60) (74B).
Ghani v. Jones, (1970)1 QB 693, 709.
Apthekar
v. Secretary of State, (1964)378 US 500 : 12 Law Ed 2d 992.
John
v. Rees (1969)2 All England Reporter 274.
Alberta v. Huggard Assets, Ltd. (1953)
AC 420.
C.E.B. Draper and Son, Ltd. v. Edward
Turner and Son, Ltd. (1964)3 All England Reporter 148.
Niboyet v. Niboyet, (1878)48 LJP 1.
Queen v. James, on (1896)2 QB 425.
Cooke v. Charles A. Vogeler Company
(1901) AC 102.
Tomalin v. S. Pearson and Son Limited
(1909)2 KB 61.
Attorney-General for Alberta v. Huggard
Assets Ltd., (1953) AC 420.
Council
v. Raleigh Investment Co. Ltd., AIR 1944 Federal Court 51.
Co. Ltd. v. Commissioner of Income-tax,
Bombay, Sind and Baluchistan, 1945 FCR 65.
Mohammed Mohy-ud-Din v. King Emperor,
1946 FCR 94.
Virendra
v. State of Punjab, 1958 SCR 308.
H. Saha
v. State of West Bengal, (1975)1 SCR 778.
State
of Bihar v. Kameshwar Singh, 1952 SCR 889.
Hamdard
Dawakhana (Wakf) Lal Kuan v. Union of India,(1960)2 SCR 671.
Kochuni
v. State of Madras, (1960)3 SCR 887.
State
of West Bengal v. Subodh Gopal, 1954 SCR 587.
State
of Bombay v. Bhanji Munji's case (1955)1 SCR 777.
Babu
Barkya Thakur v. State of Bombay, (1961)1 SCR 128.
Smt. Sitabati Debi v. State of West Bengal,
((1967)2 SCR 949.
State
of Madhya Pradesh v. Ranojirao Shinde (1968) 3 SCR 489.
S.N.
Sarkar v. West Bengal, (1973)1 SCC 856.
Commonwealth of Australia v. Bank of
New South Wales. (1950) AC 235.
Express
Newspapers (P.) Ltd. v. Union of India, AIR 1958 Supreme Court 578.
Gallagher v. Lynn, (1937) AC 863.
Satwant
Singh v. Union of India, (1967)3 SCR 525.
Union of
India v. J.N. Sinha, (1971)1 SCR 791.
Purtabpur
Co. v. Cane Commissioner. Bihar (1969)2 SCR 807.
Schmidt
v. Secretary of State, Home Affairs, (1969)2 Ch 149.
Durayappah
v. Fernando (1967)2 AC 337.
Sugathadasa v. Jayasinghe (1958)59 NLR
457.
Minoo
Maneckshaw v. Union of India (1974) 76 Bom LR 788.
De
Verteuil v. Knaggs, (1918) AC 557.
Russell v. Duke of Narfolk, (1949)1 All
England Reporter 109.
R. v.
Gaming Board Ex. p. Benaim (1970) 2 QB 417.
Ridge
v. Baldwin (1964) AC 40.
Barium
Chemicals Ltd. v. Company Law Board (1966) Supp SCR 311.
U.P.
Electric Co. v. State of U. P. (1969) 3 SCR 865.
Chinta
Lingam v. Government of India, (1971) 2 SCR 871.
JUDGMENT
M.H. Beg, C.J. - The case before us
involves questions relating to basic human rights. On such questions I believe
that multiplicity of views giving the approach of each member of this Court is
not a disadvantage if it clarifies our not infrequently differing approaches.
It should enable all interested to appreciate better the significance of our
Constitution.
2. As I am in general agreement with my
learned brethren Bhagwati and Krishna Iyer, I will endeavour to confine my
observations to an indication of my own approach on some matters for
consideration now before us. This seems to me to be particularly necessary as
my learned brother Kailasam, who has also given us the benefit of his separate
opinion, has a somewhat different approach. I have had the advantage of going
through the opinions of each of my three learned brethren.
3. It seems to me that there can be
little doubt that the right to travel and to go outside the country, which
orders regulating issue, suspension or impounding, and cancellation of
passports directly affect, must be included in rights to "personal
liberty" on the strength of decisions of this Court giving a very wide
ambit to the right to personal liberty (see : Satwant Singh Sawhney v. D.
Ramarathnam, Assistant Passport Officer, Government of India, New Delhi (1967)3
SCR 525 : Kharak Singh v. State of U. P. (1964) 1 SCR 322.
4. Article 21 of
the Constitution reads as follows :
"Protection
of life and personal liberty - No Person shall be deprived of his
life or personal liberty except according to procedure established by
law."
5. 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, 1950 SCR 88 where, as pointed out by me in Additional
District Magistrate, Jabalpur v. S. S. Shukla (1976) Suppl. SCR 172 (at p. 327)
with the help of quotations from judgments of Patanjli Sastri, J. (from pp. 195
to 196 of 1950 SCR) Mahajan J. (pp. 229-230 of SCR) Das J. (295 and 306-307 of
SCR). I may add to the passages I 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 Article 21.
6. Kania C. J. said (at pp. 106- 107) :
(of SCR).
"Deprivation
(total loss) of personal liberty, which inter alia includes the right to eat or
sleep when one likes or to work or not to work as and when one pleases and
several such rights sought to be protected by the expression 'Personal liberty'
in Article 21, is quite different from restriction (which is only a partial
control) of the right to move freely (which is relatively a minor right of a
citizen) as safeguarded by Article 19
(1) (d). Deprivation of personal liberty has not the same meaning as
restriction of free movement in the territory of India. This is made clear when
the provisions of the Criminal Procedure Code in Chapter VIII relating to
security of peace or maintenance of public order are read. Therefore Article 19 (5) cannot apply to a substantive law
depriving a citizen of personal liberty. I am unable to accept the contention
that the word 'deprivation' includes within its scope 'restriction' when
interpreting article 21. Article 22 envisages the law of preventive detention.
So does article 246 read with Schedule Seven, List I, Entry 9, and List III,
Entry 3. Therefore, when the subject of preventive detention is specifically
dealt with in the Chapter on Fundamental Rights I do not think it is proper to
consider a legislation permitting preventive detention as in conflict with the
rights mentioned in Article 19 (1). Article 19 (1) does not purport to cover all aspects of
liberty or of personal liberty. In that article only certain phases of liberty
are dealt with. 'Personal liberty' would primarily mean liberty of the physical
body. The rights given under Article 19
(1) do not directly come under that description. They are rights which
accompany the freedom or liberty of the person. By their very nature they are
freedoms of a person assumed to be in full possession of his personal liberty.
If Article 19 is considered to be the only article
safeguarding personal liberty several well-recognised rights, as for instance,
the right to eat or drink, the right to work, play, swim and numerous other
rights and activities and even the right to life will not be deemed protected
under the Constitution. I do not think that is the intention. It seems to me
improper to read Article 19 as dealing with the
subject as Article 21. Article 19
gives the rights specified therein only to the citizens of India while Article
21 is applicable to all persons. The word citizen is expressly defined in the
Constitution to indicate only a certain section of the inhabitants of India.
Moreover, the protection given by Article 21 is very general. It is of 'law - whatever
that expression is interpreted to mean. The legislative restrictions on the
law-making powers of the legislature are not here prescribed in detail as in
the case of the rights specified in Article 19. In my opinion therefore Article
19 should be read as a separate complete
article."
7. In that case, Mukherjee 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) (of 1950 SCR) : (at p. 96 of AIR 1950 SC) 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. 263 of 1950
SCR) : (at p. 97 of AIR 1950 SC)
"It
is enough to say at this stage that if the report of the Drafting Committee is
an appropriate material upon which the interpretation of the words of the
Constitution could be based, it certainly goes against the contention of the
applicant and it shows that the words used in Article 19 (1) (d) of the Constitution do not mean the
same thing as the expression 'personal liberty' in Article 21 does. It is well
known that the word 'liberty' standing by itself has been given a very wide
meaning by the Supreme Court of the United States of America. It includes not
only personal freedom from physical restraint but the right to the free use of
one's own property and to enter into free contractual relations. In the Indian
Constitution, on the other hand, the expression 'personal liberty' has been
deliberately used to restrict it to freedom from physical restraint of person
by incarceration or otherwise."
8. Fazl Ali, J., however, said (at P.
148) (of SCR) :
"To
my mind, the scheme of the Chapter dealing with the fundamental rights does not
contemplate what is attributed to it, namely that each article is a code by
itself and is independent of the others. In my opinion, it cannot be said that
articles 19, 20, 21 and 22 do not to some extent overlap each other. The case
of a person who is convicted of an offence will come under Articles 20 and 21
and also under Article 22 so far as his arrest and detention in custody before
trial are concerned. Preventive detention, which is dealt with in Article 22,
also amounts to deprivation of personal liberty which is referred to in article
21, and is a violation of the right of freedom of movement dealt with in
Article 19 (1) (d). That there are other instances
of overlapping of articles in the Constitution may be illustrated by reference
to Article 19 (1) (f) and Article 31 both of which
deal with the right to property and to some extent overlap each other."
9. As has been pointed out by my
learned brother Bhagwati,by detailed reference to cases, such as Haradhan
Saha v. The State of West Bengal, (1975)1 SCR 778 and Shambhu
Nath Sarkar v. State of West Bengal, (1973)1 SCC 856 the view that the
Articles 19 and 21 constitute watertight 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 (1970)3 SCR 530
to be 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 overlappings of the subject matter of what is sought to be protected
by its various provisions particularly by articles relating to fundamental
rights.
10. In A. K. Gopalan's case (supra)
what was at issue was whether the tests of valid procedure for deprivation of
personal liberty by preventive detention must be found exclusively in Article 22 of the Constitution or could we gather from
outside it also elements of any "due process of law" and use them to
test the validity of law dealing with preventive detention. Our
Constitution-makers, while accepting a departure from ordinary norms, by
permitting making of laws for preventive detention without trial for special
reasons in exceptional situations also provided quite elaborately, in Article 22 of the Constitution itself, what
requirements such law, relating to preventive detention, must satisfy. The
procedural requirements of such laws separately formed parts of the guaranteed
fundamental rights. Therefore, when this Court was called upon to judge the
validity of provisions relating to preventive detention it laid down, in
Gopalan's case (supra), that the tests of "due process," with regard
to such laws, are to be found in Article 22 of
the Constitution exclusively because this article constitutes a self-contained
code for laws of this description. That was, in my view, the real ratio
decidendi of Gopalan's case (supra). It appears to me, with great respect, that
other observations relating to the separability of the subject matters of
Article 21 and 19 were mere obiter dicta. They may have appeared to the
majority of learned Judges in Gopalan's case to be extensions of the logic they
adopted with regard to the relationship between Articles 21 and 22 of
the Constitution. But, the real issue there was whether, in the face of Article
22 of the Constitution, which provides all the
tests of procedural validity of a law regulating preventive detention, other
tests could be imported from Article 19 of
the Constitution or elsewhere into "procedure established by law."
The majority view was that this could not be done. I think, if I may venture to
conjecture what opinions learned Judges of this Court would have expressed on
that occasion had other types of law or other aspects of personal liberty such
as those which confronted this Court in either Satwant Singh's case (supra) or
Kharak Singh's case (supra) were before them, the same approach or the same
language would not have been adopted by them. It seems to me that this aspect
of Gopalan's case (supra) is important to remember if we are to correctly
understand what was laid down in that case.
11. I have already referred to the
passages I cited in A.D.M. Jabalpur's case (supra) to show that, even in
Gopalan's case (supra) the majority of Judges of this Court took the view that
the ambit of personal liberty protected by Article 21 is wide and
comprehensive. It embraces both substantive rights to personal liberty and the
procedure provided for their deprivation. One can, however, say that no
question of "due process of law" can really arise, apart from
procedural requirements of preventive detention laid down by Article 22, in a
case such as the one this Court considered in Gopalan's case (supra). The clear
meaning of Article 22 is that the requirements of "due process of
law," in cases of preventive detention, are satisfied by what is provided
by Article 22 of the Constitution itself. This
article indicates the pattern of "the procedure established by law' for
cases of preventive detention.
12. Questions, however, relating to
either deprivation or restrictions of personal liberty, concerning laws falling
outside Article 22 remained really unanswered, strictly speaking, by Gopalan's
case. If one may so put it, the field to "due process" for cases of
preventive detention is fully covered by Article 22, but other parts of that
field, not covered by Article 22, are "unoccupied" by its specific
provisions. I have no doubt that, in what may be called "unoccupied"
portions of the vast sphere of personal liberty, the substantive as well as
procedural laws made to cover them must satisfy the requirements of both
Articles 14 and 19 of
the Constitution.
13. Articles dealing with different
fundamental rights contained in Part III of the Constitution do not represent
entirely separate streams of rights which do not mingle at many points. They
are all parts of an integrated scheme in the Constitution. Their waters must
mix to constitute that grand flow of unimpeded and impartial Justice (social,
economic and political). Freedom (not only of thought, expression, belief,
faith and worship, but also of association, movement, vocation or occupation as
well as of acquisition and possession of reasonable property) of equality (of
status and of opportunity, which imply absence of unreasonable or unfair discrimination
between individuals, groups, and classes), and of Fraternity (assuring dignity
of the individual and the unity of the nation), which our Constitution
visualises. Isolation of various aspects of human freedom, for purposes of
their protection, is neither realistic nor beneficial but would defeat the very
objects of such protection.
14. We have to remember that the
fundamental rights protected by Part III of the Constitution, out of which
Articles 14, 19 and 21 are the most frequently invoked, form tests of the
validity of executive as well as legislative actions when these actions are
subjected to judicial scrutiny. We cannot disable Article 14 or 19 from so functioning and hold those
executive and legislative actions to which they could apply as unquestionable
even when there is no emergency to shield actions of doubtful legality. These
tests are, in my opinion, available to us now to determine the constitutional
validity of Section 10 (3) (c) of the Act as
well as of the impugned order of 7th July, 1977, passed against the petitioner
impounding her passport "in the interest of general public" and
stating that the Government had decided not to furnish her with a copy of reasons
and claiming immunity from such disclosure under Section 10 (5) of the Act.
15. I have already mentioned some of
the authorities relied upon by me in A.D.M. Jabalpur v. S. S. Shukla (supra),
while discussing the scope of Art 21 of the Constitution, to hold that its
ambit is very wide. I will now indicate why, in my view, the particular rights
claimed by the petitioner could fall within Articles 19 and 21 and the nature
and origin of such rights.
16. Mukerji J., in the Gopalan's case
(supra) referred to the celebrated commentaries of Blackstone on the Laws of
England. It is instructive to reproduce passages from there even though
juristic reasoning may have travelled today beyond the stage reached by it when
Blackstone wrote. Our basic concepts on such matters, stated there, have
provided the foundations on which subsequent superstructures were raised. Some
of these foundations, fortunately remain intact. Blackstone said :
"This
law of nature, being coeval with mankind, and dictated by God himself, is of
course superior in obligation to any other. It is binding over all the globe in
all countries, and at all times : no human laws are of any validity, if
contrary to this, and such of them as are valid derive all their force and all
their authority, mediately or immediately, from this original."
17. 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, recognising the inalienable
and inherent rights of all men (which term includes women) as equals before the
law persists. It is I think, embodied in our own Constitution. I do not think
that we can reject Blackstone's theory of natural rights as totally irrelevant
for us today.
18. Blackstone propounded his
philosophy of natural or absolute rights in the following terms :
"The
absolute rights of man, considered as a free agent, endowed with discernment to
know good from evil, and with power of choosing those measures which appear to
him to be most desirable, are usually summed up in one general appellation, and
denominated the natural liberty of mankind. This natural liberty consists
properly in a power of acting as one thinks fit, without any restraint or
control, unless by the law of nature; being a right inherent in us by birth,
and one of the gifts of God to man at his creation, when he endued him with the
faculty of free will. But every man, when he enters into society, gives up a
part of his natural liberty, as the price of so valuable a purchase; and, in
consideration of receiving the advantages of mutual commerce, obliges himself
to conform to those laws, which the community has thought proper to establish.
And this species of legal obedience and conformity is infinitely more desirable
than that wild and savage liberty which is scarified to obtain it. For no man
that considers a moment would wish to retain the absolute and uncontrolled
power of doing whatever he pleases : the consequence of which is, that every
other man would also have the same power, and then there would be no security
to individuals in any of the enjoyments of life. Political, therefore, or civil
liberty, which is that of a number of society, is no other than natural liberty
so far restrained by human laws (and no farther) as is necessary and expedient
for the general advantage of the public.
The
absolute rights of every Englishman, (which, taken in a political and extensive
sense, are usually called their liberties), as they are founded on nature and
reasons, so they are coeval with our form of government; though subject at
times to fluctuate and change : their establishment (excellent as it is) being
still human.
***
** And these may be reduced to three principal or primary articles; the right
of personal security, the right of personal liberty, and the right of private
property, because, as there is no other known method of compulsion, or
abridging man's natural free will, but by an infringement or diminution of one
or other of these important rights, the preservation of these, inviolate, may
justly be said to include the preservation of our civil immunities in their
largest and most extensive sense.
I.
The right of personal security consists in a person's legal and uninterrupted
enjoyment of his life, his limbs, his body, his health and his reputation.
II.
Next to personal security, the law of England regards, asserts, and preserves
the personal liberty of individuals. This personal liberty consists in the
power of locomotion, of changing situation, or moving one's person to
whatsoever place one's own inclination may direct, without imprisonment or
restraint, unless by due course of law. Concerning which we may make the same
observations as upon the preceding article, that it is a right strictly
natural; that the laws of England have never abridged it without sufficient
cause; and that, in this kingdom, it cannot ever be abridged at the mere
discretion of the Magistrate, without the explicit permission of the laws.
III.
The third absolute right, inherent in every Englishman, is that of property
which consists in the free use, enjoyment, and disposal of all his
acquisitions, without any control or diminution, save only by the laws of the
land. The original of private property is probably founded in nature, as will
be more fully explained in the second book of the ensuring commentaries: but
certainly the modifications under which we at present find it, the method of
conserving it in the present owner, and of translating it from man to man, are
entirely derived from society; and are some of those civil advantages, in
exchange for which every individual has resigned a part of his natural
liberty."
19. 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 a today towards what we believe to be a higher civilisation
and 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
"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 L.C. Golaknath v. State of
Punjab, (1967)2 SCR 762 when he said (at p. 789 of SCR) :
"Now,
what are the fundamental rights? They are embodied in Part III of the
Constitution and they may be classified thus : (i) right to equality, (ii)
right to freedom, (iii) right against exploitation, (iv) right to freedom of
religion, (v) cultural and educational rights, (vi) right to property, and
(vii) right to constitutional remedies. They are the rights of the people
preserved by our Constitution, 'Fundamental rights' are the modern name for
what have been traditionally known as 'natural rights,'. As one author puts it
: 'they are moral rights which every human being everywhere at all times ought
to have simply because of the fact that in contradistinction with other beings,
he is rational and moral. They are the primordial rights necessary for the
development of human personality. They are the rights which enable a man to
chalk out his own life in the manner he likes best. Our Constitution, in
addition to the well-known fundamental rights, also included the rights of the
minorities, untouchables and other backward communities, in such rights."
20. Hidayatullah, J., in the same case
said (at p. 877 of SCR) :
"What
I have said does not mean that Fundamental Rights are not subject to change or
modification. In the most inalienable of such rights a distinction must be made
between possession of a right and its exercise. The first is fixed and the
latter controlled by justice and necessity. Take for example Article 21 :
'No
person shall be deprived of his life or personal liberty except according to
procedure established by law'.
Of
all the rights, the right to one's life is the most valuable. This article of
the Constitution, therefore, makes the right fundamental. But the inalienable
right is curtailed by a murderers conduct as viewed under law. The deprivation,
when it takes place, is not of the right which was immutable but of the
continued exercise of the right."
21. 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 of 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, at least
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.
22. The implication of what I have
indicated above is that Article 21 is also a recognition and declaration of
rights which inhere in every individual. Their existence does not depend on the
location of the individual. Indeed, it could be argued that what so inheres is
inalienable and cannot be taken away at all. This may seem theoretically
correct and logical. But, in fact, we are often met with denials of what is, in
theory, inalienable or "irrefragable". Hence we speak of
"deprivations" or "restrictions" which are really
impediments to the exercise of the "inalienable" rights. Such
deprivations or restrictions or regulations of rights may take place, within prescribed
limits, by means of either statutory law or purported actions under that law.
The degree to which the theoretically recognised or abstract right is
concretised is thus determined by the balancing of principles on which an
inherent right is based against those on which a restrictive law or orders
under it could be imposed upon it exercise. We have to decide in each specific
case, as it arises before us, what the result of such a balancing is.
23. In judging the validity or either
legislative or executive state action for conflict with any of the fundamental
rights of individuals, whether they be of citizens or non-citizens, the
question as to where the rights are to be exercised is not always material or
even relevant. If the persons concerned, on whom the law or purported action
under it is to operate, are outside the territorial jurisdiction of our
country, the action taken may be ineffective. But, the validity of the law must
be determined on considerations other than this. The tests of validity of
restrictions impose upon the rights covered by Article 19 (1) will be found in clause (2) to (6) of
Article 19. There is nothing there to suggest that restrictions on rights the
exercise of which may involve going out of the country or some activities
abroad are excluded from the purview of tests contemplated by Article 19 (2) to (6). I agree with my learned brother
Bhagwati, for reasons detailed by him, that the total effect and not the mere
form of a restriction will determine which fundamental right is really involved
in a particular case and whether a restriction upon its exercise is reasonably
permissible on the facts and circumstances of that case.
24. If rights under Article 19 are rights which inhere in Indian citizens,
individuals concerned carry these inherent fundamental constitutional rights
with them wherever they go, in so far as our law applies to them, because they
are parts of the Indian nation just as Indian ships, flying the Indian flag,
are deemed, in International law, to be floating parts of Indian territory.
This analogy, however, could not be pushed too far because Indian citizens, on
foreign territory, are only entitled, by virtue of their Indian nationality and
passports, to the protection of the Indian Republic and the assistance of is
diplomatic missions abroad. They cannot claim to be governed abroad by their
own Constitutional or personal laws which do not operate outside India. But,
that is not the position in the case before us. So far as the impugned action
in the case before us in concerned, it took place in India and against an
Indian citizen residing in India.
25. In India, at any rate, we are all
certainly governed by our Constitution. The fact that the affected petitioner
may not, as a result of particular order, be able to do something intended to
be done by her aboard cannot possibly make the Governmental action in India
either ineffective or immune from judicial scrutiny or from an attack made on
the ground of a violation of a fundamental right which inheres in an Indian
citizen. The consequences or effects upon the petitioner's possible actions or
future activities in other countries may be a factor which may be weighed,
where relevant, with other relevant facts in a particular case in judging the
merits of the restriction imposed. It will be relevant in so far as it can be
shown to have some connection with public or national interests when
determining the merits of an order passed. It may show how she has become a
"person aggrieved" with a cause of action, by a particular order
involving her personal freedom. But such consideration cannot curtail or impair
the scope or operation of fundamental rights of citizens as protections against
unjustifiable actions of their own Government. Nor can they by their own force,
protect legally unjustifiable actions of the Government of our country against
attacks in our own Courts.
26. In order to apply the tests
contained in Article 14 and 19 of the
Constitution, we have to consider the objects for which the exercise of
inherent rights recognised by Article 21 of
the Constitution are restricted as well as the procedure by which these
restrictions are sought to be imposed. Both substantive and procedural laws and
actions taken under them will have to pass tests imposed by Article 14 and 19 whenever facts justifying the
invocation of either of these articles may be disclosed. For example, an
international singer or dancer may well be able to complain of an unjustifiable
restriction on professional activity by a denial of a Passport. In such a case,
violations of both Articles 21 and 19 (1) (g) may both be put forward making it
necessary for the authorities concerned to justify the restriction imposed, by
showing satisfaction of tests of validity contemplated by each of these two
articles.
27. The tests of reasons and justice
cannot be abstract. They cannot be divorced from the needs of the nation. The
tests have to be pragmatic. Otherwise, they would cease to be reasonable. Thus,
I think that a discretion left to the authority to impound a passport in public
interests cannot invalidate the law itself. We cannot, out of fear that such
power will be misused, refuse to permit Parliament to entrust even such power
to executive authorities as may be absolutely necessary to carry out the purposes
of a validly exercisable power. I think it has to be necessarily left to
executive discretion to decide whether, on the facts and circumstances of a
particular case, public interests will or will not be served by a particular
order to be passed under a valid law subject, as it always is, to judicial
supervision. In matters such as grant, suspension, impounding or cancellation
of passports, the possible dealings of an individual with nationals and
authorities of other States have to be considered. The contemplated or possible
activities abroad of the individual may have to be taken into account. There
may be questions of national safety and welfare which transcend the importance
of the individual's inherent right to go where he or she pleases to go. Therefore,
although we may not deny the grant of wide discretionary power to the executive
authorities as unreasonable in such cases, yet, I think we must look for and
find procedural safeguards to ensure that the power will not be used for
purposes extraneous to the grant of the power before we uphold the validity of
the power conferred. We have to insist on procedural properties the observance
of which could show that such power is being used only to serve what can
reasonably and justly be regarded as a public or national interest capable of
overriding the individual's inherent right of movement or travel to wherever he
or she pleases in the modern world of closer integration in every sphere
between the people of the world and the shrunk time-space relationship.
28. The view I have taken above
proceeds on the assumption that there are inherent or natural human rights of
the individual recognised by and embodied in our Constitution. There actual
exercise, however, is regulated and conditioned largely by statutory law.
Persons upon whom these basic rights are conferred can exercise them so long as
there is no justifiable reason under the law enabling deprivations or
restrictions of such rights. But, once the valid reason if found to be there
and the deprivation or restriction takes place for that valid reason in a
procedurally valid manner, the action which results in a deprivation or
restriction becomes unassailable. If either the reason sanctioned by the law is
absent, or the procedure followed in arriving at the conclusion that such a
reason exists is unreasonable, the order having the effect of deprivation or
restriction must be quashed.
29. A bare look at the provisions of
Section 10, sub-s (3) of the Act will show that each of the orders which could
be passed under Section 10, sub-section (3) (a) to
(h) requires a "satisfaction" by the Passport Authority on certain
objective conditions which must exist in a case before it passes an order to
impound a passport or a travel document. Impounding or revocation are placed
side by side on the same footing in the provision. Section 11 of the Act provides an appeal to the Central
Government from every order passed under Section 10
sub-section (3) of the Act. Hence, Section 10,
sub- (5) makes it obligatory upon the Passport Authority to "record in
writing a brief statement of the reasons for making such order and furnish to
the holder of the passport or travel document on demand a copy of the same
unless in any case, the passport authority is of the opinion that it will not
be in the interests of the sovereignty and integrity of India, the security of
India, friendly relations of India with any foreign country or in the interest
of the general public to furnish such a copy."
30. It seems to me, from the provisions
of Sections 5, 7 and
8 of the Act, read with other provisions, that
there is a statutory right also acquired, on fulfilment of prescribed
conditions by holder of a passport, that it should continue to be effective for
the specified period so long as no ground has come into existence for either
its revocation or for impounding it which amounts to a suspension of it for the
time being. It is true that in a proceeding under Article 32 of the Constitution, we are only concerned
with the enforcement of fundamental Constitutional rights and not with any
statutory rights apart from fundamental rights. Articles 21, however, makes it
clear that violation of a law, whether statutory or of any other kind, is
itself an infringement of the guaranteed fundamental right. The basic right is
not to be denied the protection of "law" irrespective of variety of
that law. It need only be a right "established by law."
31. There can be no doubt whatsoever
that the orders under Section 10
(3) must be based upon some material even if that material consists, in some
cases, of reasonable suspicion arising from certain credible assertions made by
reliable individuals. It may be that, in an emergent situation, the impounding
of a passport may become necessary without even giving an opportunity to be
heard against such a step, which could be reversed after an opportunity given
to the holder of the passport to show why the step was unnecessary, but,
ordinarily no passport could be reasonably either impounded or revoked without
giving a prior opportunity to its holder to show cause against the proposed
action. The impounding as well as revocation of a passport, seem to constitute
action in the nature of a punishment necessitated on one of the grounds specified
in the Act. Hence, ordinarily, an opportunity to be heard in defence after a
show cause notice should be given to the holder of a passport even before
impounding it.
32. It is well established that even
where there is no specific provision in a statute or rules made thereunder for
showing cause against action proposed to be taken against an individual, which
affects the rights of that individual, the duty to give reasonable opportunity
to be heard will be implied from the nature of the function to be performed by
the authority which has the power to take punitive or damaging action. This
principle was laid down by this Court in the State of Orissa v. Dr.
(Miss) Binapani Dei, AIR 1967 Supreme Court 1269 in the following words
:
"The
rule that a part to whose prejudice an order is intended to be passed is
entitled to a hearing applies alike to Judicial tribunals and bodies of persons
invested with authority to adjudicate upon matters involving civil
consequences. It is one of the fundamental rules of our constitutional set-up
that every citizen is protected against exercise of arbitrary authority by the
State or its officers. Duty to act judicially would, therefore, arise from the
very nature of the function intended to be performed: it need not be shown to
be super-added. If there is power to decide and determine to the prejudice of a
person, duty to act judicially is implicit in the exercise of such power. If
the essentials of justice be ignored and an order to the prejudice of a person
is made, the order is a nullity. That is a basic concept of the rule of law and
importance thereof transcends the significance of a decision in any particular
case."
33. In England, the rule was thus
expressed by Byles J. in Cooper v. Wandsworth Board of Works : (1863) 14
CB (NS) 180 :
"The
laws of God and man both give the party an opportunity to make his defence, if
he has any. I remember to have heard it observed by a very learned man, upon
such an occasion, that even God himself did not pass sentence upon Adam before
he was called upon to make his defence. "Adam (says God), "where art
thou? Hast thou not eaten of the tree whereof I commanded the that thou
shouldest not eat;" And the same question was put to Eve also."
34. 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.
35. In my estimation, the findings
arrived at by my learned brethren after an examination of the facts of the case
before us, with which I concur, indicate that it cannot be said that a good
enough reason has been shown to exist for impounding the passport of the
petitioner by the order dated 7th July, 1977. Furthermore, the petitioner has
had no opportunity of showing that the ground for impounding it finally given
in this Court either does not exist or has no bearing on public interest or
that public interest cannot be better served in some other manner. Therefore,
speaking for myself, I would quash the order and direct the opposite parties to
give an opportunity to the petitioner to show cause against any proposed action
on such grounds as may be available.
36. I am not satisfied that there were
present any such pressing grounds with regard to the petitioner before us that
the immediate action of impounding her passport was called for. Further-more,
the rather cavaliar fashion in which disclosure of any reason for impounding
her passport wad denied to her, despite the fact that the only reason said to
exist was the possibility of her being called to given evidence before a
Commission of Inquiry and stated in the counter-affidavit filed in this Court,
is not such as to be reasonably deemed to necessitate its concealment in public
interest, may indicate the existence of some undue prejudice against the
petitioner. She has to be protected against even the appearance of such a
prejudice or bias.
37. It appears to me that even
executive authorities when taking administrative action which involves any deprivations
of or restrictions on inherent fundamental rights of citizens must take care to
see that justice is not only done but manifestly appears to be done. They have
a duty to proceed in a way which is free from even the appearance of
arbitrariness or unreasonableness or unfairness. They have to act in a manner
which is patently impartial and meets the requirements of natural justice.
38. The attitude adopted by the
Attorney General, however, shows that passport authorities realise fully that
the petitioner's case has not been justly or reasonably dealt with. As the
undertaking given by the Attorney General amounts to an offer to deal with it
justly and fairly after informing the petitioner of any ground that may exist
for impounding her passport, it seems that no further action by this Court may
be necessary. In view, however, of what is practically an admission that the
order actually passed on 7th July, 1977, is neither fair nor procedurally
proper, I would, speaking for myself, quash this order and direct the return of
the impounded passport to the petitioner. I also think that the petitioner is
entitled to her costs.
39. Y.V. Chandrachud, J. :- The
petitioner's passport dated June 1, 1976 having been impounded "in public
interest" by an order dated July 2, 1977 and the Government of India
having declined "in the interest of general public" to furnish to her
that reason for its decision, she has filed this writ petition under Article 32 of the Constitution to challenge that order.
The challenge is founded on the following grounds :
(1)
To the extent to which Section 10
(3) (c) of the Passport Ac, 1967 authorises the passport tauthority to impound
a passport "in the interests of the general public", it is violative
of Article 14 of the Constitution since it confers
vague and undefined power on the passport authority;
(2)
Section 10 (3) (c) is void as conferring an
arbitrary power since it does not provide for a hearing to the holder of the
passport before the passport is impounded;
(3)
Section 10 (3) (c) is violative of Article 21 of the Constitution since it does not
prescribe 'procedure' within the meaning of that article and since the
procedure which it prescribes is arbitrary and unreasonable; and
(4)
Section 10 (3) (c) offends against Articles 19 (1)
(a) and 19 (1) (g) since it permits restrictions to be imposed on the rights
guaranteed by these articles even though such restrictions cannot be imposed
under Articles 19 (2) and 19 (6).
At first, the passport authority
exercising its power under Section 10
(5) of the Act refused to furnish to the petitioner the reasons 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
refuseal 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.
40. In Satwant Singh Sawhney v.
D. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi,
(1967)3 SCR 525 this Court ruled by majority that the expression
'personal liberty' which occurs in Article 21 of
the Constitution includes the right to travel abroad and that no person can be
deprived of that right except according to procedure established by law. The
Passports Act which was enacted by Parliament in 1967 in order to comply with
that decision prescribes the procedure whereby an application for a passport
may be granted fully or partially, with or without any endorsement, and a
passport once granted may later be revoked or impounded. But the mere
prescription of some kind of procedure cannot ever meet the mandate of Article
21. The procedure prescribed by law has to be fair, just and reasonable, not
fanciful, oppressive or arbitrary. The question whether the procedure
prescribed by a law which curtails or takes away the personal liberty
guaranteed by Article 21 is reasonable or not has to be considered not in the
abstract or on hypothetical considerations like the provision for a full-dress
hearing as in a Court-room trial, but in the context, primarily, of the purpose
which the Act is intended to achieve and of urgent situations which those who
are charged with the duty of administering the Act may be called upon to deal
with. Secondly, even the fullest compliance with the requirements of Article 21
is not the journey's end because, a law which prescribes fair and reasonable
procedure for curtailing or taking away the personal liberty guaranteed by
Article 21 has still to meet a possible challenge under other provisions of the
Constitution like, for example, Article 14
and 19. If the holding in A.K. Gopalan v. State of Madras, 1950 SCR 88
that the freedoms guaranteed by the Constitution are mutually exclusive were
still good law, the right to travel aboard which is part of the right of
personal liberty under Article 21 could not be found and located in that
article and in no other. But in the Bank Nationalisation case (R.C.
Cooper v. Union of India) (1970)3 SCR 530 the majority held that the
assumption in A.K. Gopalan that certain articles of the Constitution
exclusively deal with specific matters cannot be accepted as correct. Though
the Bank Nationalisation case was concerned with the inter-relationship of
Articles 31 and 19 and not of Articles 21 and 19, the basic approach adopted
therein as regards the construction of fundamental rights guaranteed in the
different provisions of the Constitution categorically discarded the major
premise of the majority judgment in A.K. Gopalan as incorrect. That is how a
seven-Judge Bench in Shambhu Nath Sarkar v. State of West Bengal (1973) 1
SCR 856 assessed the true impact of the ratio of the Bank
Nationalisation case on the decision in A. K. Gopalan. In Shambhu Nath Sarkar
it was accordingly held that a law of preventive detention has to meet the
challenge not only of Articles 21 and 22 but also of Article 19 (1) (d). Later, a five-Judge Bench in Haradhan
Saha v. State of West Bengal, (1975)1 SCR 778 adopted the same approach
and considered the question whether the Maintenance of Internal Security Act,
1971 violated the right guaranteed by Article 19
(1) (d). Thus, the inquiry whether the right to travel abroad forms a part of
any of the freedoms mentioned in Article 19
(1) is not to be shut out at the threshold merely because that right is a part
of the guarantee of personal liberty under Article 21. I am in entire agreement
with Brother Bhagwati when he says:
"The
law must therefore, now be taken to be well settled that Article 21 does not
exclude Article 19 and that even if there
is a law prescribing a procedure for depriving a person of 'personal liberty'
and there is consequently no infringement of the fundamental right conferred by
Article 21, such law, in so far as it abridges or takes away any fundamental
right under Article 19 would have to meet the
challenge of that Article."
41. 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 case and Ram Singh, 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, 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 guaranted by
Article 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 Papers, case where the Court, giving precedence to the direct and immediate
effect of the order over its form and object struck down the Daily newspaper
(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 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, case 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. If 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.
42. These then are the guidelines with
the help of which one has to ascertain whether Section 10 (3) (c) of the Passports Act which
authorises the passport authority to impound a passport or the impugned order
passed thereunder violates the guarantee of free speech and expression
conferred by Article 19 (1) (a).
43. The learned Attorney General
answered the petitioner's contention in this behalf by saying firstly, that the
right to go abroad cannot be comprehended within the right of free speech and
expression since the latter right is exercisable by the Indian citizens within
the geographical limits of India only. Secondly, he contends, the right to go
abroad is altogether of a different genre from the right of free speech and
expression and is therefore not a part of it.
44. The first of these contentions
raises a question of great importance but the form in which the contention is
couched is, in my opinion, apt to befog the true issue. Article 19 confers certain freedoms on Indian citizens,
some of which by their very language and nature are limited in their exercise
by geographical considerations. The right to move freely throughout the
'territory of India' and the right to reside and settle in any part of the
'territory of India' which are contained in clauses (d) and (e) of Article 19 (1) are of this nature. The two clauses
expressly restrict the operation of the rights mentioned therein to the
territorial limits of India. Besides, by the very object and nature of those
rights, their exercise is limited to Indian territory. Those rights are
intended to bring in sharp focus the unity and integrity of the country and its
quasi-federal structure. Their drive is directed against the fissiparous theory
that 'sons of the soil' alone shall thrive, the 'soil' being conditioned by
regional and subregional considerations. The other freedoms which Article 19 (1) confers are not so restricted by their
terms but that again is not conclusive of the question under consideration. Nor
indeed does the fact that restraints on the freedoms guaranteed by Article 19 (1) can be imposed under Articles 19 (2) to
19 (6) by the State furnish any clue to that question. The State can
undoubtedly impose reasonable restrictions on fundamental freedoms under
clauses (2) to (6) of Article 19
and those restrictions, generally, have a territorial operation. But the ambit
of a freedom cannot be measured by the right of a State to pass laws imposing
restrictions on that freedom which, in the generality of cases, have a
geographical limitation.
45. Article 19
(1) (a) guarantees to Indian citizens the right to freedom of speech and
expression. It does not delimit that right in any manner and there is no
reason, arising either out of interpretational dogmas or pragmatic
considerations, why the courts should strain the language of the Article to cut
down the amplitude of that right. The plain meaning of the clause guaranteeing
free speech and expression is that Indian citizens are entitled to exercise
that right wherever they choose, regardless of geographical considerations,
subject of course to the operation of any existing law or the power of the
State to make a law imposing reasonable restrictions in the interests of the
sovereignty and integrity of India, the security of the State, friendly
relations with foreign States, public order, decency or morality, or in
relation to contempt of court,defamation or incitement to an offence, as
provided in Article 19 (2). The exercise of
the right of free speech and expression beyond the limits of Indian territory
will, of course, also be subject to the laws of the country in which the
freedom is or is intended to be exercised. I am quite clear that the
Constitution does not confer any power on the executive to prevent the exercise
by an Indian citizen of the right of free speech and expression on foreign
soil, subject to what I have just stated. In fact, that seems to me to be the
crux of the matter, for which reason I said, though with respect, that the form
in which the learned Attorney General stated his proposition was likely to
cloud the true issue The Constitution guarantees certain fundamental freedoms
and except where their exercise is limited by territorial considerations, those
freedoms may be exercised wheresoever, one chooses, subject to the exceptions
or qualifications mentioned above.
46. The next question is whether the
right to go out of India is an integral part of the right of free speech and
expression and is comprehended within it. It seems to me impossible to answer
this question in the affirmative as is contended by the petitioner's counsel.
Shri Madan Bhatia. It is possible to predicate of many a right that its
exercise would be more meaningful if the right is extended to comprehend an
extraneous facility. But such extensions do not from part of the right
conferred by the Constitution. The analogy of the freedom of press being included
in the right of free speech and expression is wholly misplaced because the
right of free expression incontrovertibly includes the right of freedom of the
press. The right to go abroad on one hand and the right of free speech and
expression on the other are made up of basically different constituents, so
different indeed that one cannot be comprehended in the other.
47. Brother Bhagwati has, on this
aspect considered at length certain American decisions like Kent (1958) 2 Law
Ed 2d 1204, Apthekar (1964) 12 Law Ed 2d 992 and Zomel (1966) 14 Law Ed 2d 179
and illuminating though his analysis is, I am inclined to think that the
presence of the due process clause in the 5th and 14th Amendments of the
American Constitution makes significant difference to the approach of American
Judges to the definition and evaluation of constitutional guarantees. The
content which has been meaningfully and imaginatively pocured into "due
process of law" may, in my view, constitute an important point of
distinction between the American Constitution and ours which studiously avoided
the use of that expression. In the Centennial volume, "The Fourteenth
Amendment" edited by Bernard Schwartz, is contained an article on
'Landmarks of Legal Liberty, by Justice William J. Brennan in which the learned
Judge quoting from Yeats's play has this to say: In the service of the age-old
dream for recognition of the equal and inalienable rights of man, the 14th
Amendment though 100 years old, can never be old.
"Like
the poor old woman in Yeat's play." Did you see an old woman going down
the path? asked Bridget. 'I did not.' replied Partick, who had come into the
house after the old woman left it, "But I saw a young girl and she had the
walk of a queen."
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 case 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 above-mentioned decision as
productive of a "grotesque result."
48. I have nothing more to add to what
Brother Bhagwati has said on the other points in the case. I share his opinion
that though the right to go abroad is not included in the right contained in
Article 19 (1) (a), if an order made under Section
10 (3) (c) of the Act does in fact violate the
right of free speech and expression, such an order could be struck down as
unconstitutional. It is well settled that a statute may pass the test of
constitutionality and yet an order passed under it may be unconstitutional. But
of that I will say no more because in this branch, one says no more than the
facts warrant and decides nothing that does not call for a decision. The fact
that the petitioner was not heard before or soon after the impounding of her
passport would have introduced a serious infirmity in the order but for the
statement of the Attorney General that the Government was willing to hear the
petitioner and further to limit the operation of the order to a period of six
months from the date of the fresh decision, if the decision was adverse to the
petitioner. The order, I agree, does not in fact offend against Article 19 (1) (a) or 19 (1) (g).
49. I, therefore, agree with the order
proposed by Brother Bhagwati.
50. Bhagwati, J. (on behalf of
himself. Untwalia and Murtaza Fazl Ali, JJ.) (Majority view):- . The petitioner
is the holder of the passport issued to her on 1st June, 1976 under the
Passports Act, 1967. On 4th July, 1977 the petitioner received a letter dated
2nd July, 1977 from the Regional Passport Officer, Delhi intimating to her that
it has been decided by the Government of India to impound her passport under
Section 10 (3) (C) of the Act in public interest
and requiring her to surrender the passport within seven days from the date of
receipt of the letter. The petitioner immediately addressed a letter to the
Regional Passport Officer requesting him to furnish a copy of the statement of
reasons for making the order as provided in Section 10
(5) to which a reply was sent by the Government of India, Ministry of External
Affairs on 6th July, 1977 stating inter alia that the Government has decided
"in the interest of the general public" not to furnish her a copy of
the statement of reasons for the making of the order. The petitioner thereupon
filed the present petition challenging the action of the Government in
impounding her passport and declining to give reasons for doing so. The action
of the Government was impugned inter alia on the ground that it was mala fide,
but this challenge was not press before us at the time of the hearing of the
arguments and hence it is not necessary to state any facts bearing on that
question. The principal challenge set out in the petition against the legality
of the action of the Government was based mainly on the ground that Section 10 (3) (c), in so far as it empowers the
Passport Authority to impound a passport "in the interests of the general
public" is violative of the equality clause contained in Article 14 of the Constitution, since the condition
denoted by the words "in the interests of the general public"
limiting the exercise of the power is vague and undefined and the power
conferred by this provision is, therefore, excessive and suffers from the vice
of "over-breadth". The petition also contained a challenge that an
order under Section 10 (3) (c) impounding a
passport could not be made by the Passport Authority without giving an
opportunity to the holder of the passport to be heard in defence and since in
the present case, the passport was impounded by the Government without
affording an opportunity of hearing to the petitioner, the order was null and
void, and, in the alternative, if Section 10
(3) (c) were read in such a manner as to exclude the right of hearing, the
section would be infected with the vice of arbitrariness and it would be void
as offending Article 14. These were the only grounds taken in the petition as
originally filed and on 20th July, 1977 the petition was admitted and rule
issued by this Court and an interim order was made directing that the passport
of the petitioner should continue to remain deposited with the Registrar of
this Court pending the hearing and final disposal of the petition.
51. The hearing of the petition was
fixed on 30th August 1977, but before that, the petitioner filed an application
for urging additional grounds and by this application, two further grounds were
sought to be urged by her. One ground was that Section 10 (3) (c) is ulta vires Article 21 since it
provides for impounding of passport without any procedure as required by that
Article, or, in any event, even if it could be said that there is some
procedure prescribed under the Passports Act, 1967, it is wholly arbitrary and
unreasonable and, therefore, not in compliance with the requirement of that
Article. The other ground urged on behalf of the petitioner was that Section 10 (3) (c) is violative of Articles 19 (1) (a)
and 19 (1) (g) inasmuch as it authorises imposition of restrictions on freedom
of speech and expression guaranted under Article 19
(1) (a) and freedom to practise any profession or to carry on any occupation or
business guaranteed under Article 19
(1) (g) and these restrictions are impermissible under Article 19 (2) and Article 19
(6) respectively. The application for urging these two additional grounds was
granted by this Court and ultimately at the hearing of the petition these were
the two principal grounds which were pressed on behalf of the petitioner.
52. Before we examine the rival
arguments urged on behalf of the parties in regard to the various questions
arising in this petition, it would be convenient to set out the relevant
provisions of the Passports Act, 1967. This Act was enacted on 24th June, 1967
in view of the decision of this Court in Satwant Singh Sawhney v. D.
Ramarathnam, Assistant Passport Officer, Government of India, New Delhi,
(1967)3 SCR 525. The position which obtained prior to the coming into
force of this Act was that there was no law regulating the issue of passports
for leaving the shores of India and going abroad. The issue of passports was
entirely within the discretion of the executive and this discretion was unguided
and unchannelled. This Court, by a majority, held that the expression
"personal liberty " in Article 21 takes in the right of locomotion
and travel abroad and under Article 21 no person can be deprived of his right
to go abroad except according to the procedure established by law and since no
law had been made by the State regulating or prohibiting the exercise of such
right, the refusal of passport was in violation of Article 21 and moreover the
discretion with the executive in the matter of issuing or refusing passport
being unchannelled and arbitrary, it was plainly violative of Article 14 and hence the order refusing passport to the
petitioner was also invalid under that Article. This decision was accepted by
Parliament and the infirmity pointed out by it was set right by the enactment
of the Passports Act, 1967. This Act, as its preamble shows, was enacted to
provide for the issue of passports and travel documents to regulate the
departure from India of citizens of India and other persons and for incidental
and ancillary matters. Section 3 provides that no person shall depart from or
attempt to depart from India unless he holds in this behalf a valid passport or
travel document. What are the different classes of passports and travel
documents which can be issued under the Act is laid down in Section 4, Section
5, sub-section (1) Provides for making of an application for issue of a
passport or travel document or for endorsement on such passport or travel
document for visiting foreign country or countries and sub-section (2) says
that on receipt of such application, the passport authority, after making such
inquiry, if any, as it may consider necessary shall, by order in writing, issue
or refuse to issue the passport or travel document or make or refuse to make on
the passport or travel document endorsement in respect of one or more of the
foreign countries specified in the application. Sub-section (3) requires the
passport authority, where it refuse to issue the passport or travel document or
to make any endorsement on the passport or travel document, to record in
writing a brief statement of its reasons for making such order Section 6,
sub-section (1) lays down the grounds on which the passport authority shall
refuse to make an endorsement for visiting any foreign country and provides
that on no other ground the endorsement shall be refused. There are four
grounds set out in this sub-section and of them, the last is that, in the
opinion of the Central Government, the presence of the applicant in such
foreign country is not in the public interest. Similarly sub-section (2) of
Section 6 specifies the grounds on which alone and on no other grounds - the
passport authority shall refuse to issue passport or travel document for visiting
any foreign country and amongst various grounds set out there, the last is
that, in the opinion of the Central Government the issue of passport or travel
document to the applicant will not be in the public interest. Then we come to
Section 10 which is the material section which
falls for consideration.
Sub-section (1) of that section
empowers the passport authority to vary or cancel the endorsement of a passport
or travel document or to vary or cancel the conditions subject to which a
passport or travel document has been issued having regard, inter alia, to the
provisions of sub-section (1) of Section 6 or any notification under Section
19. Sub-section (2) confers powers on the passport authority to vary or cancel the
conditions of the passport or travel document on the application of the holder
of the passport or travel document and with the previous approval of the
Central Government. Sub-section (3) provides that the passport authority may
impound or cause to be impounded or revoke a passport or travel document on the
grounds set out in clauses (a) to (h). The order impounding the passport in the
present case was made by the Central Government under clause (c) which reads as
follows:-
"(c)
if the passport authority deems it necessary so to do in the interest of the
Sovereignty and Integrity of India, the security of India, friendly relations
of India with any foreign country, or in the interests of the general
public;"
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 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 interests of the sovereignty and intergirty 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 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 regard 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 no 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 irrelevant, 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 interest 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
re'sume' of the relevant provisions, reference may be made to Section 11 which provides for an appeal inter alia
against the order impounding or revoking a passport or travel document under
sub-section (3) of Section 10. But there is a proviso
to this section which says that if the order impounding or revoking a passport
or travel document is passed by the Central Government, there shall be no right
of appeal. These are the relevant provisions of the Act in the light of which
we have to consider the constitutionality of sub-section (3) (c) of Section 10 and the validity of the order impounding the
passport of the petitioner.
Meaning and content of personal liberty
in Article 21.
53. The first contention urged on
behalf of the petitioner in support of the petition was that the right to go
abroad is part of 'personal liberty' within the meaning of that expression as
used in Article 21 and no one can be deprived of this right except according to
the procedure prescribed by law. There is no procedure prescribed by the
Passports Act, 1967 for impounding or revoking a passport and thereby
preventing the holder of the passport from going abroad and in any event, even
if some procedure can be traced in the relevant provisions of the Act, it is
unreasonable and arbitrary, inasmuch as it does not provide for giving an
opportunity to the holder of the passport to be heard against the making of the
order and hence the action of the Central Government in impounding the passport
of the petitioner is in violation of Article 21. This contention of the
petitioner raises a question as to the true interpretation of Article 21. What
is the nature and extent of the protection afforded by this article? What is
the meaning of 'personal liberty': does it include the right to go abroad so
that this right cannot be abridged or taken away except in accordance with the
procedure prescribed by law? What is the inter-relation between Article 14 and Article 21? Does Article 21 merely
require that there must be some semblance of procedure, howsoever arbitrary or
fanciful, prescribed by law before a person can be deprived of his personal
liberty or that the procedure must satisfy certain requisites in the sense that
it must be fair and reasonable? Article 21 occurs in Part III of the
Constitution which confers certain fundamental rights. These fundamental rights
had their roots deep in the struggle for independence and, as pointed out by
Granville Austin in 'The Indian Constitution - Cornerstone of a Nation', "they
were included in the Constitution in the hope and expectation that one day the
tree of true liberty would bloom in India". They were indelibly written in
the subconscious memory of the race which fought for well-nigh thirty years for
securing freedom from British rule and they found expression in the form of
fundamental rights when the Constitution was enacted. These fundamental rights
represent the basic values cherished by the people of this country since the
Vedic times and they are calculated to protect the dignity of the individual
and create conditions in which every human being can develop his personality to
the fullest extent. They weave a 'pattern of guarantees on the basic structure
of human right's and impose negative obligations on the State not to encroach
on individual liberty in its various dimensions. It is apparent from the
enunciation of these rights that the respect for the individual and his
capacity for individual volition which finds expression there is not a
self-fulfilling prophecy. Its purpose is to help the individual to find his own
viability, to give expression to his creativity and to prevent governmental and
other forces from 'alienating' the individual from his creative impulse. These
rights are wide ranging and comprehensive and they fall under seven heads,
namely right to equality, right to freedom, right against exploitation, right
to freedom of religion, cultural and educational rights, right to property and
right to constitutional remedies. Articles 14 to 18 occur under the heading
'Right to Equality', and of them, by far the most important is Article 14 which confers a fundamental right by
injuncting the State not to 'deny to any person equality before the law or the
equal protection of the laws within the territory of India." Articles 19
to 22, which find place under the heading "Right to freedom" provide
for different aspects of freedom. Clause (1) of Article 19 enshrines what may be described as the seven
lamps of freedom.
It provides that all citizens shall
have the right- (a) to freedom of speech and expression; (b) to assumble
peacebly and without arms; (c) to form associations or unions; (d) to move
freely throughout the territory of India; (e) to reside and settle in any part
of the territory of India; (f) to acquire, hold and dispose of property and (g)
to practise any profession or to carry on any occupation, trade or business.
But these freedoms are not and cannot be absolute, for absolute and
unrestricted freedom of one may be destructive of the freedom of another and in
a well-ordered, civilised society, freedom can only be regulated freedom.
Therefore, clauses (2) to (6) of Article 19
permit reasonable restrictions to be imposed on the exercise of the fundamental
rights guaranteed under clause (1) of that article. Article 20 need not detain
us as that is not material for the determination of the controversy between the
parties . Then comes Article 21 which provides:
"21.
No person shall be deprived of his life or personal liberty except according to
procedure established by law."
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.
54. It is obvious that Article 21,
though couched in negative language, confers the fundamental right to life and
personal liberty, So far as the right to personal liberty is concerned, it is
ensured by providing that no one shall be deprived of personal liberty except
according to procedure prescribed by law. The first question that arises for
consideration on the language of Article 21 is: what is the meaning and content
of the words 'personal liberty' as used in this Article? This question
incidentally came up for discussion in some of the judgments in A. K.
Gopalan v. State of Madras, 1950 SCR 88 and the observations made by
Patanjali Sastri, J., Mukherjee, J. and S. R. Das, J. seemed to place a narrow
interpretation on the words 'personal liberty' so as to confine the protection
of Article 21 to freedom of the person against unlawful detention. But there
was no definite pronouncement made on this point since the question before the
Court was not so much the interpretation of the words 'personal liberty' as the
inter-relation between Articles 19 and 21. It was in Kharak Singh v.
State of U. P., (1964) 1 SCR 332 that the question as to the proper
scope and meaning of the expression 'personal liberty' came up pointedly for
consideration for the first time before this Court. The majority of the Judges
took the view "that 'personal liberty, is used in the article as a
compendious term to include within itself all the varieties of rights which go
to make up the 'personal liberties' of man other than those dealt with in the
several clauses of Article 19 (1). In other words,
while Article 19 (1) deals with
particular species or attributes of that freedom, 'personal liberty' in Article
21 takes in and comprises the residue". The minority Judges, however,
disagreed with this view taken by the majority and explained their position in the
following words :
"No
doubt the expression 'personal liberty' is a comprehensive one and the right to
move freely is an attribute of personal liberty. It is said that the freedom to
move freely is carved out of personal liberty and, therefore, the expression
'personal liberty' in Article 21 excludes that attribute. In our view, this is
not a correct approach. Both are independent fundamental rights, though there
is overlapping. There is no question of one being carved out of another. The
fundamental right of life and personal liberty has many attributes and some of
them are found in Article 19. If a person's fundamental right under Article 21
is infringed, the State can rely upon a law to sustain the action, but that
cannot be a complete answer unless the said law satisfies the test laid down in
Article 19 (2) so far as the attributes covered by
Article 19 (1) are concerned."
There can be no doubt that in view of
the decision of this Court in R. C. Cooper v. Union of India, (1970) 3
SCR 530 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. Copper'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 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 overturned in R. C. Cooper's case where Shah, J., speaking on
behalf of the majority 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 alloted fields: they
do not attempt to enunciate distinct rights". The conclusion was
summarised in these terms: "In our judgment, the assumption in A. K.
Gopalan's case that certain articles in the Constitution exclusively deal with
specific matters - cannot be accepted as correct." It was held 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., Patanjal 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 freedoms 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 Article 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, AIR 1973 Supreme Court 1425 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, AIR 1974 Supreme Court 2154 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 the 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 Constitution conferring
fundamental rights. The attempt of the court should be to expand the reach and
ambit of the fundamental rights rather than attenuate their meaning and content
by a process of judicial construction. The wave length for comprehending the
scope and ambit of the fundamental rights has been set by this Court in R. C.
Cooper's case and our approach in the interpretation of the fundamental rights
must now be in tune with this wave length. We may point out even at the cost of
repetition that this Court has said in so many terms in R. C. Cooper's case
that each freedom has different dimensions and there may be overlapping between
different fundamental rights and therefore it is not a valid argument to say
that the expression 'personal liberty' in Article 21 must be so interpreted as
to avoid overlapping between that Article and Article 19 (1). The expression 'personal liberty' in
Article 21 is of the widest amplitude and it covers a variety of rights which
go to constitute the personal liberty of man and some of them have been raised
to the status of distinct fundamental rights and given additional protection
under Article 19. Now, it has been held by this Court in Satwant Singh's case
that 'personal liberty' within the meaning of Article 21 includes within its
ambit the right to go abroad and consequently no person can be deprived of this
right except according to procedure prescribed by law. Prior per to the
enactment of the Passports Act, 1967, there was no law regulating the right of
a person to go abroad and that was the reason why the order of the Passport
Officer refusing to issue passport to the petitioar in Satwant Singh's case was
struck down as invalid. It will be seen at once from the language of Article 21
that the protection it secures is a limited one. It safeguards the right to go
abroad against executive interference which is not supported by law; and law
here means 'enacted law' or 'State law.' Vide A. K. Gopalan's case. Thus, no
person can be deprived of his right to go abroad unless there is a law made by
the State prescribing the procedure for so depriving him and the deprivation is
effected strictly in accordance with such procedure. It was for this reason, in
order to comply with the requirement of Article 21, that Parliament enacted the
Passports Act, 1967 for regulating the right to go abroad. It is clear from the
provisions of the Passport Act, 1967 that it lays down the circumstances under
which a passport may be issued or refused or cancelled or impounded and also
prescribes a procedure for doing so, but the question is whether that is
sufficient compliance with Article 21, Is the prescription of some sort of
procedure enough or must the procedure comply with any particular requirements?
Obviously, the procedure cannot be arbitrary, unfair or unreasonable. This
indeed was conceded by the learned Attonrny General who with this usual candour
frankly stated that it was not possible for him to contend that any procedure
howsoever arbitrary, oppressive or unjust may be prescribed by the law. There
was some discussion in A. K. Gopalan's case in regard to the nature of the
procedure required to be prescribed under Article 21 and at least three of the
learned Judges out of five expressed themselves strongly in favour of the view
that the procedure cannot be any arbitrary, fantastic or oppressive procedure.
Fazl Ali, J., who was in a minority, went to the farthest limit in saying that
the procedure must include the four essentials set out in Prof. Willis book on
Constitutional Law, namely, notice, opportunity to be heard, impartial tribunal
and ordinary course of procedure.
Patanjali Sastri, J., did not go as far
as that but he did say that "certain basic principles emerged as the
constant factors known to all those procedures and they formed the core of the
procedure established by law." Mahajan, J., also observed that Article 21
requires that "there should be some form of proceeding before a person can
be condemned either in respect of his life or his liberty" and "it
negatives the idea of fantastic, arbitrary and oppressive forms of
proceedings." But apart altogether from these observations in A. K.
Gopalan's case, which have great weight, we find that even on principle the
concept of reasonableness must be projected in the procedure contemplated by
Article 21 having regard to the impact of Article 14 on
Article 21.
The interrelationship between Articles
14, 19 and 21.
55. We may at this stage consider the
interrelation between Article 21 on the one hand and Articles 14 and 19 on the
other. We have already pointed out that the view taken by the majority in A. K.
Gopalan's case was that so long as a law of preventive detention satisfies the
requirements of Article 22, it would be within the terms of Article 21 and it
would not be required to meet the challenge of Article 19. This view proceeded
on the assumption that "certain articles in the Constitution exclusively
deal with specific matters and where the requirements of an article dealing
with the particular matter in question are satisfied and there is no
infringement of the fundamental right guaranteed by that article. no recourse
can be had to a fundamental right conferred by another article. This doctrine
of exclusivity was seriously questioned in R. C. Cooper's case and it was
overruled by majority of the Full Court, only Ray, J., as he then was, dissenting.
The majority judges held that though a law of preventive detention may pass the
test of Article 22, it has yet to satisfy the requirements of other fundamental
rights such as Article 19. The ratio of the majority judgment in R. C. Cooper's
case was explained in clear and categorical terms by Shelat, J., speaking on
behalf of seven judges of this Court in Shambhu Nath Sarkar v. State of
West Bengal (1973) 1 SCC 856. The learned Judge there said:
"In
Gopalan's case (supra) the majority court had held that Article 22 was a
self-contained Code and therefore a law of preventive detention did not have to
satisfy the requirement of Articles 19, 14 and 21. The view of Fazl 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 Haredhan Saha v.
State of West Bengal (1975) 1 SCR 778 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 Article 19. the same view was affirmed once again by a Bench of
four judges of this Court in Khudiram Das v. The State of West Bengal,
(1975)2 SCR 832. 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, AIR 1971 Supreme Court 1713 to Article 19 (2) to justify preventive detention. 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 or more of the fundamental rights conferred under Article 19 which may be applicable in a given
situation, exhypothesi 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 Mukherjea, 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, 1952 SCR 284 and Kathi
Raning Rawat v. The State of Saurashtra, 1952 SCR 435 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 prescribed 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.
56. Now, the question immediately
arises as to what is the requirement of Article 14: What is the content and
reach of the great equalising principle enunciated in this article? There can
be no doubt that it is a founding faith of the Constitution. It is indeed the
pillar on which rests securely the foundation of our democratic republic. And,
therefore, it must not be subjected to a narrow, pedantic or lexicographic
approach. No attempt should be made to truncate its all-embracing scope and
meaning, for to do so would be to violate its activist magnitude. Equality is a
dynamic concept with many aspects and dimensions and it cannot be imprisoned
within traditional and doctrinaire limits. We must reiterate here what was
pointed out by the majority in E.P. Royappa v. State of Tamil Nadu,
(1974)2 SCR 348 namely, that "from a positivistic point of view,
equality is antithetic to arbitrariness. In fact equality and arbitrariness are
sworn enemies; one belongs to the rule of law in a republic, while the other,
to the whim and caprice of an absolute monarch. Where an act is arbitrary, it
is implicit in it that it is unequal both according to political logic and
constitutional law and is therefore violative of Article 14". Article 14 strikes at arbitrariness in State action and
ensures fairness and equality of treatment. The principle of reasonableness,
which legally as well as philosophically, is an essential element of equality
or non-arbitrariness pervades Article 14
like a brooding omnipresence and the procedure contemplated by Article 21 must
answer the test of reasonableness in order to be in conformity with Article 14.
It must be 'right and just and fair" and not arbitrary, fanciful or
oppressive; otherwise, it would be no procedure at all and the requirement of
Article 21 would not be satisfied.
How far natural justice is an essential
element of procedure established by law.
57. The question immediately arises:
does the procedure prescribed by the Passports Act, 1967 for impounding a
Passport meet the test of this requirement? Is it 'right or fair or just'? The
argument of the petitioner was that it is not, because it provides for
impounding of a passport without affording reasonable opportunity to the holder
of the passport to be heard in defence. To impound the passport of a person,
said the petitioner, is a serious matter, since it prevents him from exercising
his constitutional right to go abroad and such a drastic consequence cannot in
fairness be visited without observing the principle of audi alteram partem. Any
procedure which permits impairment of the constitutional right to go abroad
without giving reasonable opportunity to show cause cannot but be condemned as
unfair and unjust and hence, there is in the present case clear infringement of
the requirement of Article 21, Now, it is true that there is no express
provision in the Passports Act, 1967 which requires that the audi alteram
parten rule should be followed before impounding a passport, but that is not
conclusive of the question, if the statute makes itself clear on this point,
then no more question arises. But even when the statute is silent, the law may
in a given case make an implication and apply the principle stated by Byles,
J., in Cooper v. Wandsworth Board of Works, (1863)14 C.B.N.S. 180 :
"A long course of decisions, beginning with Dr. Bentley's case (1723) 1
Str 557 and ending with some very recent cases, establish that although there
are no positive words in the statute requiring that the party shall be heard,
yet the justice of the common law will supply the omission of the legislature".
The principle of audi alteram partem which mandates that no one shall be
condemned unheard, is part of the rules of natural justice. In fact, there are
two main principles in which the rules of natural justice are manifested,
namely, Nemo Judex in Sua Causa and audi alteram partem. We are not concerned
here with the former since there is no case of bias urged here. The question is
only in regard to the right of hearing, which involves the audi alteram partem
rule. Can it be imported in the procedure for impounding a passport?
58. We may commence the discussion of
this question with a few general observations to emphasis the increasing
importance of natural justice in the field of administrative law. Natural
justice is a great humanising principle intended to invest law with fairness
and to secure justice and over the years it has grown into a widely pervasive
rule affecting large areas of administrative action Lord Morris of Borth-y-Gest
spoke of this rule in eloquent terms in his address before the Bentham Club:
"We
can, I think, take pride in what has been done in recent periods and
particularly in the field of administrative law by invoking and by applying
these principles which we broadly classify under the designation of natural
justice. Many testing problems as to their application yet remain to be solved.
But I affirm that the area of administrative action is but one area in which
the principles are to be deployed. Nor are they to be invoked only when
procedural failures are shown. Does natural justice qualify to be described as
a "majestic" conception? I believe it does. Is it just a rhetorical
but vague phrase, which can be employed, when needed, to give a gloss of
assurance? I believe that it is very much more. If it can be summarised as
being fair play in action - who could wish that it would ever be out of action?
It denotes that the law is not only to be guided by reason and by logic but
that its purpose will not be fulfilled: it lacks more exalted
inspiration." (Current Legal Problems, 1973, Vol. 26, p. 16). And then
again, in his speech in the House of Lords in Wiseman v. Borneman, 1971
AC 297 the learned Law Lord said in words of inspired felicity :
"that
the conception of natural justice should at all stages guide those who
discharge judicial functions is not merely an acceptable but is an essential
part of the philosophy of the law. We often speak of the rules of natural
justice. But there is nothing rigid or mechanical about them. What they
comprehend has been analysed and described in many authorities. But any
analysis must bring into relief rather their spirit and their inspiration than
any precision of definition or precision as to application. We do not search
for prescriptions which will lay down exactly what must, in various divergent situations,
be done. The principles and procedures are to be applied which, in any
particular situation or set of circumstances, are right and just and fair.
Natural justice, it has been said, is only "fair play in action." Nor
do we wait for directions from Parliament. The common law has abundant riches:
there may we find what Byles, J., called "the justice of the common
law."' Thus, the soul of natural justice is 'fair play in action' and that
is why it has received the widest recognition throughout the democratic world.
In the United States, the right to an administrative hearing is regarded as
essential requirement of fundamental fairness. And in England too it has been
held that 'fair play in action' demands that before any prejudicial or adverse
action is taken against a person, he must be given an opportunity to be heard.
The rule was stated by Lord Denning, M. R. in these terms in Schmidt v. Secy.
of State for Home Affairs :- (1969) 2 Ch. D. 149 "Where a public officer
has power to deprive a Person of his liberty or his property, the general
principle is that it has not to be done without his being given an opportunity
of being heard and of making representations on his own behalf." The same
rule also prevails in other Commonwealth countries like Canada, Australia and
New Zealand. It has even gained access to the United Nations. Vide American
Journal of International Law, Vol. 67, page 479, Magarry, J., describes natural
justice "as a distillate of due process of law." Vide
Fontaine v.
Chastarton (1968)112 Sol Gen 690. It is the quintessence of the process
of justice inspire and guided by 'fair play in action.' If we look at the
speeches of the various Law Lords in Wiseman's case, it will be seen that each
one of them asked the question "whether in the particular circumstances of
the case, the Tribunal acted unfairly so that it could be said that their
procedure did not match with what justice demanded.," or, was the
procedure adopted by the Tribunal 'in all the circumstances unfair'? The test
adopted by every Law Lord was whether the procedure followed was "fair in
all the circumstances" and 'fair play in action' required that an
opportunity should be given to the tax payer "to see and reply to the
counter-statement of the Commissioners" before reaching the conclusion
that "there is a prima facie case against him." The inquiry must,
therefore, always be: does fairness in action demand that an opportunity to be
heard should be given to the person affected?
59. 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
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 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 as distinguished 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 quasi-judicial character
was spelt out from the following observation of Atkin, L. J. in Rex v.
Electricity Commissioners, (1924)1 K. B. 171 "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 Heward, C. J., in Rex v. Legislative Committee
of the Church Assembly, (1928)1 K.B. 411 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 Heward. C. J., on the dictum of Lord Atkin, L. J., be deviled 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 ans
sometimes in the crevices 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 1964 A. C. 40 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
super-added. This decision broadened the area of application of the rules of
natural justice and to borrow the words of Proof.
Clark in his article on 'Natural
justice, Substance and Shadow' in Public Law Journal, 1975, restored light to
an area "benighted by the narrow conceptualism of the previous
decade." This development in the law had its parallel in India in the Associated
Cement Companies Ltd. v. P.N. Sharma, (1965)2 SCR 366 where this Court
approvingly referred to the decision in Ridge v. Baldwin (supra) and, later in State
of Orissa v. Dr. Binapani, (1967)2 SCR 625 observed that: "If
there is power to decide and determine to the prejudice of a person, duty to
act judicially is implicit in the exercise of such power." This Court also
pointed out in A.K. Kraipak v. Union of India, (1970)1 SCR 457,
another historic decision in this branch of the law, that in recent years the
concept of quasi-judicial power has been under-going radical change and said:
"The dividing line between an administrative power and a quasi-judicial
power is quite thin and is being gradually obliterated. For determining whether
a power is an administrative power or a quasi-judicial power one has to look to
the nature of the power conferred, the person or persons on whom it is
conferred, the framework of the law conferring that power, the consequences
ensuing from the exercise of that power and the manner in which that power is
expected to be exercised." The net effect of these and other decisions was
that the duty to act judicially need not be super-added, but it may be spelt
out from the nature of the power conferred, the manner of exercising it and its
impact on the rights of the person affected and where it is found to exist, the
rules of natural justice would be attracted.
60. This was the advance made by the
law as a result of the decision in Ridge v. Baldwin (supra) in England and the
decisions in Associated Cement Companies's case (supra) and other cases
following upon it, in India. But that was not to be the end of the development
of the law on this subject. The proliferation of administrative law provoked
considerable fresh thinking on the subject and soon it came to be recognised
that 'fair play in action required that in administrative proceeding also, the
doctrine of natural justice must be held to be applicable. We have already
discussed this aspect of the question on principle and shown why no distinction
can be made between an administrative and a quasi-judicial proceeding for the
purpose of applicability of the doctrine of natural justice. This position was
judicially recognised and accepted and the dichotomy between administrative and
quasi-judicial proceedings vis-a-vis the doctrine of natural justice was
finally discarded as unsound by the decisions in In re : H. K. (An Infant
((1967) 2 QB 617 and Schmidt v. Secretary of State for Home Affairs (supra) in
England and, so far as India is concerned, by the memorable decision rendered
by this Court in A. K. Kraipak's case (supra). Lord Parker, C. J., pointed out
in the course of his judgment in In Re H.K. (An Infant) (supra).
"But
at the same time, I my self think that even if an immigration officer is not in
a judicial or quasi-judicial capacity, he must at any rate give the immigrant
an opportunity of satisfying him of the matters in the sub-section, and for
that purpose let the immigrant know what his immediate impression is so that
the immigrant can disabuse him. That is not, as I see it, a question of acting
or being required to act judicially, but of being required to act fairly. Good
administration and an honest or bona fide decision must, as it seems to
me require not merely impartiality, nor merely bringing one's mind to bear on
the problem, but acting fairly; and to the limited extent that the
circumstances of any particular case allow, and within the legislative
framework under which the administrator is working, only to that limited extent
do the so-called rules of natural justice apply, which in a case such as this
is merely a duty to act fairly. I appreciate that in saying that it may be said
that one is going further than is permitted on the decided cases because
heretofore at any rate the decisions of the courts do seem to have drawn a
strict line in these matters according to whether there is or is not a duty to
act judicially or quasi-judicially."
61. This Court speaking through Hedge,
J., in A. 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. Oftentimes it is not easy to draw the
line that demarcates administrative enquiries from quasi-judicial enquiries.
Enquiries, which were considered administrative at one time, are now being
considered as quasi-judicial in Character. Arriving at a just decision is the
aim of both quasi-judicial enquiries as well as administrative enquiries. An
unjust decision in an administrative enquiry may have more far reaching effect
than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh
Koshy George v. The University of Kerala (1969) 1 SCR 317 the rules of
natural justice are not embodied rules. What particular rule of natural justice
should apply to a given case must depend to a great extent on the facts and
circumstances of that case, the framework of the law under which the enquiry is
held and the constitution of the Tribunal or body of persons appointed for that
purpose. Whenever a complaint is made before a court that some principle of
natural justice had been contravened the court has to decide whether the
observance of that rule was necessary for a just decision on the facts of the
case."
This view was reiterated and
re-affirmed in a subsequent decision of this Court in D.F.O. South Kheri
v. Ram Sanehi Singh, (1971)3 SCC 864. 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.
62. Now, here, the power conferred on
the Passport Authority is to impound a passport and the consequence of
impounding a passport would be to impair the constitutional right of the holder
of the passport to go abroad during the time that the passport is impounded.
Moreover, a passport can be impounded by the Passport Authority only on certain
specified grounds set out in sub-section (3) of Section 10 and the Passport Authority would have to
apply its mind to the facts and circumstances of a given case and decide
whether any of the specified grounds exists which would justify impounding of
the passport. The Passport Authority is also required by sub-section (5) of
Section 10 to record in writing a brief statement
of the reasons for making an order impounding a passport and, save in certain
exceptional situations, the Passport Authority is obliged to furnish a copy of
the statement of reasons to the holder of the passport. Where the Passport
Authority which has impounded a passport is other than the Central Government,
a right of appeal against the order impounding the passport is given by Section
11 and in the appeal, the validity of the
reasons given by the Passport Authority for impounding the passport can be
canvassed before the Appellate Authority for impounding the passport can be
canvassed before the Appellate Authority. It is clear on a consideration of
these circumstances that the test laid down in the decisions of this Court for
distinguishing between a quasi-judicial power and an administrative power is
satisfied and the power conferred on the Passport Authority to impound a
passport is quasi-judicial power. The rules of natural justice would, in the
circumstances, be applicable in the exercise of the power of impounding a
passport even on the orthodox view which prevailed prior to A. K. Kraipak's
case. The same result must follow in view of the decision in A. K. Kraipak's
case, even if the power to impound a passport were regarded as administrative
in character, because it seriously interferes with the constitutional right of
the holder of the passport to go abroad and entails adverse civil consequences.
63. Now, as already pointed out the
doctrine of natural justice consists principally of two rules, namely, nemo
debet esse judex in propria causa no one shall be a judge in his own cause, and
audi alteram partem: no decision shall be given against a party without
affording him a reasonable hearing. We are concerned here with the second rule
and hence we shall confine ourselves only to a discussion of that rule. The
learned Attorney General, appearing on behalf of the Union of India, fairly
conceded that the audi alteram partem rule is a highly effective tool devised
by the courts to enable a statutory authority to arrive at a just decision and
it is calculated to act as a healthy check on abuse or misuse of power and
hence its reach should not be narrowed and its applicability circumscribed. He
rightly did not plead for reconsideration of the historic advances made in the
law as a result of the decisions of this Court and did not suggest that the
Court should retrace its steps. That would indeed have been a most startling
argument coming from the Government of India and for the Court to accede to
such an argument would have been an act of utter retrogression. But fortunately
no such argument was advanced by the learned Attorney General. What he urged
was a very limited contention, namely, that having regard to the nature of the
action involved in the impounding of a passport, the audi alteram partem rule
must be held to be excluded, because if notice were to be given to the holder
of the passport and reasonable opportunity afforded to him to show cause why
his passport should not be impounded, he might immediately, on the strength of
the passport, make good his exit from the country and the object of impounding
the passport would be frustrated. The argument was that if the audi alteram
partem rule were applied, its effect would be to stultify the power of
impounding the passport and it would defeat and paralyse the administration of
the law and hence the audi alteram partem rule cannot in fairness be applied
while exercising the power to impound a passport. This argument was sought to
be supported by reference to the statement of the law in A. S. de Smith,
Judicial Review of Administrative Action, 2nd Edn., where the learned author
says at page 174 that
"In
administrative law a prima facie right to prior notice and opportunity to be
heard may be held to be excluded by implication where an obligation to give
notice and opportunity to be heard would obstruct the taking of prompt action,
especially action of a preventive or remedial nature".
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 regarded 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 Edn. at pages 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 experimental 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 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 it is that in
questions of this kind a fanatical or doctrinaire approach 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 case in a rigid
mould and judicial decisions establish that it may suffer situational
modifications. The core of it must, however, remain, namely, that the person
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, (1949)1 All England
Reporter 109 that "whatever standard of natural justice is
adopted, one essential is that the person concerned should have a reasonable
opportunity 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 full-fledged 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 post-decisional remedial hearing.
The audi alteram pattern rule is
sufficiently flexible to permit modifications and variations to suit the
exigencies of myriad kinds of situations, which may arise. This circumstantial
flexibility of the audi alteram partem rule was emphasised by Lord Reid in
Wiseman v. Sorneman (supra) when he said that he would be "sorry to see
this fundamental general principle degenerate into a series of hard and fast
rules" and Lord Hailsham, L. C., also observed in Pearl Berg v.
Varty, (1971)1 WLR 728 that the courts "have taken an increasingly
sophisticated view of what is required in individual cases". It would not,
therefore, be right to conclude that the audi alteram partem rule is excluded
merely because the power to impound a passport might be frustrated, if prior
notice and hearing were to be given to the person concerned before impounding
his passport. The Passport Authority may proceed to impound the passport
without giving any prior opportunity to the person concerned to be heard, but
as soon as the order impounding the passport is made, an opportunity of
hearing, remedial in aim, should be given to him so that he may present his
case and controvert that of the Passport Authority and point out why his
passport should not be impounded and the order impounding it recalled. This should
not only be possible but also quite appropriate, because the reasons for
impounding the passport are required to be supplied by the Passport Authority
after the making of the order and the person affected would, therefore, be in a
position to make a representation setting forth his case and plead for setting
aside the action impounding his passport. A fair opportunity of being heard
following immediately upon the order impounding the passport would satisfy the
mandate of natural justice and a provision requiring giving of such opportunity
to the person concerned can and should be read by implication in the Passports
Act, 1967. If such a provision were held to be incorporated in the Passports
Act, 1967 by necessary implication, as we hold it must be, the procedure
prescribed by the Act for impounding a passport would be right, fair and just
and it would not suffer from the vice of arbitrariness of unreasonableness. We
must, therefore, hold that the procedure 'established' by the Passports Act,
1967 for impounding a passport is in conformity with the requirement of Article
21 and does not fall foul of that article.
64. But the question then immediately
arises whether the Central Government has complied with this procedure in
impounding the passport of the petitioner. Now, it is obvious and indeed this
could not be controverted, that the Central Government not only did not give an
opportunity of hearing to the petitioner after making the impugned order
impounding her passport but even declined to furnish to the petitioner the
reasons for impounding her passport despite request made by her. We have
already pointed out that the Central Government was wholly unjustified in
withholding the reasons for impounding the passport from the petitioner and
this was not only in breach of the statutory provision, but it also amounted to
denial of opportunity of hearing to the petitioner. The order impounding the
passport of the petitioner was, therefore, clearly in violation of the rule of
natural justice embodied in the maxim audi alteram partem and it was not in
conformity with the procedure prescribed by the Passports Act, 1967. Realising
that this was a fatal defect, which would void the order impounding the
passport, the learned Attorney General made a statement on behalf of the
Government of India to the following effect:
"1.
The Government is agreeable to considering any representation that may be made
by the petitioner in respect of the impounding of her passport and giving her
an opportunity in the matter. The opportunity will be given within two weeks of
the receipt of the representation. It is clarified that in the present case the
grounds for impounding the passport are those mentioned in the affidavit in
reply dated 18th August, 1977 of Shri Ghosh except those mentioned in para 2
(xi).
2.
The representation of the petitioner will be dealt with expeditiously in
accordance with law."
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 Passports Act, 1967.
Is Section 10
(3) (c) violative of Article 14?
65. That takes us to the next question
whether Section 10 (3) (c) is violative of
any of the fundamental rights guaranteed under Part III of the Constitution.
Only two articles of the Constitution are relied upon of this purpose and they
are Articles 14 and 19(1)(a) and (g). We will first dispose of the challenge
based on Article 14 as it lies in a very
narrow compass. The argument under this head of challenge was that Section 10 (3) (c) confers unguided and unfettered
power on the Passport Authority to impound a passport and hence it is violative
of the equality clause contained in Article 14. It was conceded that under
Section 10 (3) (c) the power to impound a passport
can be exercised only upon one or more of the stated grounds, but the complaint
was that the ground of "interests of the general public" was too
vague and indefinite to afford any real guidance to the Passport Authority and
the Passport Authority could, without in any way violating the terms of the
section impound the passport of one and not of another, at its discretion.
Moreover, it was said that when the order impounding a passport is made by the
Central Government, there is no appeal or revision provided by the Statute and
the decision of the Central Government that it is in public interest to impound
a passport is final and conclusive. The discretion vested in the Passport
Authority, and particularly in the Central Government, is thus unfetted and
unrestricted and this is plainly in violation of Article 14. Now, the law is
well settled that when a statute vests unguided and unrestricted power in an
authority to affect the rights of a person without laying down any policy or
principle which is to guide the authority in exercise of this power, it would
be affected by the vice of discrimination since it would leave it open to the
Authority to discriminate between persons and things similarly situated. But
here it is difficult to say that the discretion conferred on the Passport
Authority is arbitrary or unfettered. There are four grounds set out in Section
10 (3) (c), which would justify the making of
an order impounding a passport. We are concerned only with the last ground
denoted by the words "in the interests of the general public", for
that is the ground which is attacked as vague and indefinite. We fail to see
how this ground can, by any stretch of argument, be characterised as vague or
undefined. The words "in the interests of the general public" have a
clearly well defined meaning and the courts have often been called upon to
decide whether a particular action is "in the interests of the general
public" or in 'public interest' and no difficulty has been experienced by
the Courts in carrying out this exercise. These words are in fact borrowed
ipsissima verba from Article 19
(5) and we think it would be nothing short of heresy to accuse the
constitution-makers of vague and loose thinking.
The legislature performed a scissor and
paste operation in lifting these words out of Article 19 (5) and introducing them in Section 10 (3) (c) and if these words are not vague and
indefinite in Article 19 (5), it is difficult to
see how they can be condemned to be such when they occur in Section 10 (3) (c). How can Section 10 (3) (c) be said to incur any constitutional
infirmity on account of these words when they are no wider than the
constitutional provision in Article 19
(5) and adhere loyally to the verbal formula adopted in the Constitution? We
are clearly of the view that sufficient guidelines are provided by the words
"in the interests of the general public' and the power conferred on the
Passport Authority to impound a passport cannot be said to be unguided or unfettered.
Moreover, it must be remembered that the exercise of this power is not made
dependent on the subjective opinion of the Passport Authority as regards the
necessity of exercising it on one or more of the ground stated in the section,
but the Passport Authority is required to record in writing a brief statement
of reasons for impounding the passport and, save in certain exceptional
circumstances, to supply a copy of such statement to the person affected, so
that the person concerned can challenge the decision of the Passport Authority
in appeal and the appellate authority can examine whether the reasons given by
the Passport Authority are correct, and if so, whether they justify the making
of the order impounding the passport. It is true that when the order impounding
a passport is made by the Central Government, there is no appeal against it,
but it must be remembered that in such a case the power is exercised by the
Central Government itself and it can safely be assumed that the Central
Government will exercise the power in a reasonable and responsible manner. When
power is vested in a high authority like the Central Government, abuse of power
cannot be lightly assumed. And in any event, if there is abuse of power, the
arms of the court are long enough to reach it and to strike it down. The power
conferred on the Passport Authority to impound a passport under Section 10 (3) (c) cannot, therefore, be regarded as
discriminatory and it does not fall foul of Article 14. But every exercise of
such power has to be tested in order to determine whether it is arbitrary or
within the guidelines provided in Section 10
(3) (c).
Conflicting approaches for locating the
fundamental right violated direct and inevitable effect test.
66. We think it would be proper at this
stage to consider the approach to be adopted by the Court in adjudging the
constitutionality of a statute on the touchstone of fundamental rights. What is
the test or yardstick to be applied for determining whether a statute infringes
a particular fundamental right? The law on this point has undergone radical
change since the days of A. K. Gopalan's case. That was the earliest decision
of this Court on the subject, following almost immediately upon the
commencement of the Constitution. The argument which arose for consideration in
this case was that he preventive detention order results in the detection of
the applicant in a cell and hence it contravenes the fundamental rights guaranteed
under clauses (a), (b), (c), (d), (e) and (g) of Article 19 (1). This argument was negative by Kania, C.
J. who pointed out that: "The true approach is only to consider the
directness of the legislation and not what will be the result of the detention,
otherwise valid, on the mode of the detenu's life ...... Any other construction
put on the article ........ will be unreasonable." These observations were
quoted with approval by Patanjali Sastri, J., speaking on behalf of the
majority in Ram Singh v. State of Delhi, 1951 SCR 451. There, the
detention of the petitioner was ordered with a view to preventing him from
making any speeches prejudicial to the maintenance of public order and the
argument was that the order of detention was invalid as it infringed the right
of free speech and expression guaranteed under Article 19 (1) (a). The Court took the view that the
direct object of the order was preventive detention and not the infringement of
the right of freedom of speech and expression, which was merely consequential
upon the detention of the detenu and upheld the validity of the order. The
decision in A. K. Gopalan's case, followed by Ram Singh's case, gave rise to
the theory that the object and form of State action determine the extent of
protection which may be claimed by an individual and the validity of such
action has to be judged by considering whether it is "directly in respect
of the subject covered by any particular article of the Constitution or touches
the said article only incidentally or indirectly". The test to be applied
for determining the constitutional validity of State action with reference to
fundamental rights is: what is the object of the authority in taking the action:
what is the subject-matter of the action and to which fundamental right does it
relate ? This theory that "the extent of protection of important
guarantees, such as the liberty of person and right to property, depend upon
the form and object of the State action and not upon its direct operation upon
its direct operation upon the individual's freedom" held sway for a
considerable time and was applied in Naresh Shridhar Mirajkar v. State of
Maharashtra (1966) 3 SCR 744 to sustain an order made by the High Court
in a suit for defamation prohibiting the publication of the evidence of a
witness. This Court, after referring to the observations of Kania C. J. , in A.
K. Gopalan's case and noting that they were approved by the Full Court in Ram
Singh's case, pointed out that the object of the impugned order was to give
protection to the witness in order to obtain true evidence in the case with a
view to do justice between the parties and if incidentally it operated to
prevent the petitioner from reporting the proceedings of the court in the
press, it could not be said to contravene Article 19
(1) (a).
67. But it is interesting to note that
despite the observations of Kania, C. J., in A. K. Gopalan's case and the
approval of these observations in Ram Singh's case, there were two decisions
given by this Court prior to Mirajkar's case, which seemed to deviate and
strike a different note. The first was the decision in Express News
Papers (P) Ltd. v. The Union of India, 1959 SCR 12where N. H. Bhagwati,
J., speaking on behalf of the Court, referred to the observations of Kania,
C.J., in A. K. Gopalan's case and the decision in Ram Singh's case, but
ultimately formulated the test of direct and inevitable effect for the purpose
of adjudging whether a statute offends a particular fundamental right. The
learned Judge pointed out that all the consequences suggested on behalf of the
petitioner's as flowing out of the Working Journalists (Conditions of Service)
and Miscellaneous Act, 1955, namely, "the tendency to curtail circulation
and thereby narrow the scope of dissemination of information, fetters on the
petitioners' freedom to choose the means of exercising the right, likelihood of
the independence of the press being undermined by having to seek Government
aid, the imposition of penalty on the petitioners' right to chose the
instruments for exercising the freedom or compelling them to seek alternative
media etc., " would be remote and depend upon various factors which may or
may not come into play. "Unless these were the direct or inevitable
consequences of the measures enacted in the impugned Act, " said the
learned Judge, "it would not be possible to strike down the legislation as
having that effect and operation. A possible eventuality of this type would not
necessarily be the consequence which could be in the contemplation of the
Legislature while enacting a measure of this type for the benefit of the
workmen concerned." Then again, the learned Judge observed. "--if the
intention or the proximate effect and operation of the Act was such as to bring
it within the mischief of Article 19
(1) (a), it would certainly be liable to be struck down. The real difficulty,
however, in the way of the petitioners is that neither the intention nor the
effect and operation of the impugned Act is to take away or abridge the right
of freedom of speech and expression enjoyed by the petitioners." Here we
find the germ of the doctrine of direct and inevitable effect, which necessarily
must be effect intended by the legislature, or in other words, what may
conveniently and appropriately be described as the doctrine of intended and
real effect. So also in Sakal Papers (P) Ltd. v. The Union of India,
(1962)3 SCR 842 while considering the constitutional validity of the
Newspaper (Price and Page) Act, 1956 and Daily Newspaper (Price and Page)
Order, 1960, this Court applied the test of direct and immediate effect. This
Court, relying upon the decision in Dwarkadas Shrinivas v. The Sholapur
and Weaving Co. Ltd., 1954 SCR 674 pointed out that "it is the
substance and the practical result of the act of the State that should be
considered rather than its purely legal aspect" and "the correct
approach in such cases should be to enquire as to what in substance is the loss
or injury caused to the citizen and not merely what manner and method has been
adopted by the State in placing the restriction." Since "the direct
and immediate effect of the order" would be to restrain a newspaper from
publishing any number of pages for carrying its news and views, which it has a
fundamental right under Article 19
(1) (a) to do, unless it raises the selling price as provided in the Schedule
to the Order, it was held by this Court that the order was violative of the
right of the newspapers guaranteed by Article 19
(1) (a). Here again, the emphasis was on the direct and inevitable effect of
the impugned action of the State rather than on its object and form or subject
matter.
68. However, it was only in R. C.
Cooper's case that the doctrine that the object and form of the State action
alone determine the extent of protection that may be claimed by an individual
and that the effect of the State action on the fundamental right of the
individual is irrelevant, was finally rejected. It may be pointed out that this
doctrine is in substance and reality nothing else than the test of pith and
substance which is applied for determining the constitutionality of legislation
where there is conflict of legislative powers conferred on Federal and State
Legislatures with reference to legislative Lists. The question, which is asked
in such cases, is: what is the pith and substance of the legislations; if it "is
within the express powers, then it is not invalidated if incidentally it
affects matters which are outside the authorised field." Here also, on the
application of this doctrine, the question that is required to be considered
is: what is the pith and substance of the action of the State, or in other
words, what is its true nature and character; if it is in respect of the
subject covered by any particular fundamental right, its validity must be
judged only by reference to that fundamental right and it is immaterial that it
incidentally affects another fundamental right. Mathew, J., in his dissenting
judgment in Bennett Coleman and Co. v. Union of India (1973) 2 SCR 757 recognised
the likeness of this doctrine to the pith and substance test and pointed out
that "the pith and substance test, although not strictly appropriate,
might serve a useful purpose" in determining whether the State action
infringes a particular fundamental right. But in R. C. Cooper's case, which was
a decision given by the Full Court consisting of eleven judges, this doctrine
was thrown overboard and it was pointed out by Shah, J., speaking on behalf of
the majority (at pp. 596 and 597 of AIR 1970 SC):
"...........
it is not the object of the authority making the law impairing the right of a
citizen nor the form of action that determines the protection he can claim; it
is the effect of the law and of the action upon the right which attract the
jurisdiction of the Court to grant relief. If this be the true view, and we
think it is, in determining the impact of State action upon constitutional
guarantees which are fundamental, it follows that the extent of protection
against impairment of a fundamental right is determined not by the object of
the Legislature nor by the form of the action, but by its direct operation upon
the individual's right."
"We
are of the view that the theory that the object and form of the State action
determine the extent of protection which the aggrieved party may claim is not
consistent with the constitutional scheme................."
"In
our judgment, the assumption in A. K. Gopalan's case that certain articles in
the Constitution exclusively deal with specific matters and in determining
whether there is infringement of the individual's guaranteed rights, the object
and the form of the State action alone need be considered, and effect of the
laws on fundamental rights of the individuals in general will be ignored cannot
be accepted as correct."
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 inter-related 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 and real test." The decision in Bennett
Coleman's case, followed upon R. C. Cooper's case and it is an important and
significant decision, since it elaborated and applied the thesis laid down in
R. C. Cooper's case. The State action which was impugned in Bennett Coleman's
case was newsprint policy which inter alia imposed a maximum limit of ten pages
for every newspaper but without permitting the newspaper to increase the number
of pages by reducing circulation to meet its requirement even within the
admissible quota. These restrictions were said to be violative of the right of
free speech and expression guaranteed under Article 19
(1) (a) since their direct and inevitable consequence was to limit the number
of pages which could be published by a newspaper to ten. The argument of the
Government was that the object of the newsprint policy was rationing and
equitable distribution of imported newsprint, which was scarce commodity and
not abridgement of freedom of speech and expression. The subject-matter of the
import policy was "rationing of imported commodity and equitable
distribution of newsprint" and the newsprint policy did not directly and
immediately deal with the right mentioned in Article 19
(1) (a) and hence there was no violation of that Article. This argument of the
Government was negatived by the majority in the following words:
"Mr.
Palkhivala said that the test of pith and substance of the subject matter and
of direct and of incidental effect of the legislation are relevant to questions
of legislative competence but they are irrelevant to the question of
infringement of fundamental rights. In our view this is a sound and correct
approach to interpretation of legislative measures and State action in relation
to fundamental rights. the true test is whether the effect of the impugned
action is to take away or abridge fundamental rights. If it be assumed that the
direct object of the law or action has to be direct abridgement of the right of
free speech by the impugned law or action it is to be related to the directness
of effect and not to the directness of the subject matter of the impeached law
or action. The action may have a direct effect on a fundamental right although
its direct subject matter may be different. A law dealing directly with the
Defence of India or defamation may yet have a direct effect on the freedom of
speech, Article 19 (2) could not have such
law if the restriction is unreasonable even if it is related to matters
mentioned therein. Therefore, the word "direct" would go to the
quality or character of the effect and not to the subject matter. The object of
the law or executive action is irrelevant when it establishes the petitioner's
contention about fundamental right. In the present case, the object of the news
paper restrictions has nothing to do with the availability of newsprint or
foreign exchange because these restrictions come into operation after the grant
of quota. Therefore the restrictions are to control the number of pages or
circulation of dailies or newspapers. These restrictions are clearly outside
the ambit of Article 19 (2) of the
Constitution. It, therefore, confirms that the right of freedom of speech and
expression is abridged by these restrictions."
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.
69. It may be recalled that the test
formulated in R. C. Cooper's case merely refers to 'direct operation' or
'direct consequence and effect' of the State action on the fundamental right of
the petitioner and does not use the word 'inevitable' in this connection. But
there can be no doubt, on a reading of the relevant observations of Shah, J.,
that such was the test really intended to be laid down by the Court in that
case. If the test were merely of direct or indirect effect, it would be an
open-ended concept and in the absence of operational criteria for judging
'directness', it would give the Court an unquantifiable discretion to decide
whether in a given case a consequence or effect is direct or not. Some other
concept vehicle would be needed to quantify the extent of directness or
indirectness in order to apply the test. And that is supplied by the criterion
of 'inevitable' consequence or effect adumbrated in the Express Newspaper's
case. This criterion helps to quantify the extent of directness necessary to
constitute infringement of a fundamental right. Now, if the effect of State
action on a fundamental right is direct and inevitable, then a fortiori it must
be presumed to have been intended by the authority taking the action and hence
this doctrine of direct and inevitable effect has been described by some
jurists as the doctrine of intended and real effect. This is the test, which
must be applied for the purpose of determining whether Section 10 (3) (c) or the impugned order made under it
is violative of Article 19 (1) (a) or (g).
70. We may now examine the challenge
based on Article 19 (1) (a) in the light of
this background. Article 19 (1) (a) enshrines one
of the most cherished freedoms in a democracy, namely, freedom of speech and
expression. The petitioner, being a citizen has undoubtedly this freedom
guaranteed to her, but the question is whether Section 10 (3) (c) or the impugned order
unconstitutionally takes away or abridges this freedom. Now, prima facie, the
right, which is sought to be restricted by Section 10
(3) (c) and the impugned order, is the right to go abroad and that is not named
as a fundamental right or included in so many words in Article 19 (1) (a) but the argument of the petitioner
was that the right to go abroad is an integral part of the freedom of speech
and expression and whenever State action, be it law or executive fiat,
restricts or interferes with the right to go abroad, it necessarily involves
curtailment of freedom of speech and expression, and is, therefore, required to
meet the challenge of Article 19
(1) (a). This argument was sought to be answered by the Union of India by a
two-fold contention. The first limb of the constestion was that the right to go
abroad could not possibly be comprehended within freedom of speech and
expression, because the right of free speech and expression guaranteed under
Article 19 (1) (a) was exercisable only within the
territory of India and the guarantee of its exercise did not extend outside the
country and hence State action restricting or preventing exercise of the right
to go abroad could not be said to be violative of freedom of speech and
expression and be liable to be condemned as invalid on that account. The second
limb of the contention went a little further and challenged the very premise on
which the argument of the petitioner was based and under this limb, the argument
put forward was that the right to go abroad was not integrally connected with
the freedom of speech and expression, nor did it partake of the same basic
nature and character and hence it was not included in the right of free speech
and expression guaranteed under Article 19
(1) (a) and imposition of restriction on it did not involve violation of that
Article. These were broadly the rival contentions urged on behalf of the
parties and we shall now proceed to consider them.
(A)
Is freedom of speech and expression confined to the Territory of India?
71. 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 should 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 constitution-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 Upnishadic 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
with 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 have 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 main in the Universal Declaration of Human Rights.
Article 13 of the Universal Declaration declared that "every one has a
right to freedom of opinion and expression this right includes freedom to hold
opinions without interference and to seek, receive and import information and
ideas through any media and regardless of frontiers". (emphasis supplied).
This was the glorious declaration of the fundamental freedom of speech and
expression - noble in conception and universal in scope - which was before them
when the constitution-makers enacted Article 19
(1) (a). We have, therefore, no doubt that freedom of speech and expression
guaranteed by Article 19 (1) (a) is exercisable
not only in India but also outside.
72. It is true that the right of free
speech and expression enshrined in Article 19
(1) (a) can be enforced only if it is sought to be violated by any action of
the State and since State action cannot have any extra territorial operation,
except perhaps incidentally in case of Parliamentary legislation, it is only
violation within the territory of India that can be complained of by an
aggrieved person. But that does not mean that the right of free speech and
expression is exercisable only in India and not outside. State action taken
within the territory of India can prevent or restrict exercise of freedom of
speech and expression outside India. What Article 19
(1) (a) does is to declare freedom of speech and expression as a fundamental
right and to protect it against State action. The State cannot by any
legislative or executive action interfere with the exercise of this right,
except in so far as permissible under Article 19
(2). The State action would necessarily be taken in India but it may impair or
restrict the exercise of this right elsewhere. Take for example a case where a
journalist is prevented by a law or an executive order from sending his
despatch abroad. The law or the executive order would operate on the journalist
in India but what it would prevent him from doing is to exercise his freedom of
speech and expression abroad. Today in the modern world with vastly developed
science and technology and highly improved and sophisticated means of
communication, a person may be able to exercise freedom of speech and
expression abroad by doing something within the country and if this is
prohibited or restricted, his freedom of speech and expression would certainly
be impaired and Article 19 (1) (a) violated.
Therefore, merely because State action is restricted to the territory of India,
it does not necessarily follow that the right of free speech and expression is
also limited in its operation to the territory of India and does not extend
outside.
73. This thesis can also be
substantiated by looking at the question from a slightly different point of
view. It is obvious that the right of free speech and expression guaranteed
under Article 19 (1) (a) can be
subjected to restriction permissible under Article 19
(2). Such restriction, imposed by a statute or an order made under it, if
within the limits provided in Article 19
(2), would clearly bind the citizen not only when he is within the country but
also when he travels outside. Take for example a case where, either under the
Passports Act, 1967 or as a condition in the Passport issued under it, an
arbitrary, unreasonable and wholly unjustifiable restriction is placed upon the
citizen that he may go abroad, but he should not make any speech there. This
would plainly be a restriction which would interfere with his freedom of speech
and expression outside the country, for, if valid, it would bind him wherever
he may go. He would be entitled to say that such a restriction imposed by State
action is impermissible under Article 19
(2)and is accordingly void as being violative of Article 19 (1) (a). It would thus seem clear that
freedom of speech and expression guaranteed under Article 19 (1) (a) is exercisable not only inside the
country, but also outside.
74. There is also another
consideration, which leads to the same conclusion. The right to go abroad is,
as held in Satwant Singh Sawhney's case, included in 'personal liberty' within
the meaning of Article 21 and is thus a fundamental right protected by that
Article. When the State issues a passport and grants endorsement for one
country, but refuses for another, the person concerned can certainly go out of
India but he is prevented from going to the country for which the endorsement
is refused and his right to go to that country is taken away. This cannot be
done by the State under Article 21 unless there is a law authorising the State
to do so and the action is taken in accordance with the procedure prescribed by
such law. The right to go abroad, and in particular to a specified country, is
clearly a right to personal liberty exercisable outside India and yet it has
been held in Satwant Singh Sawhney's case to be a fundamental right protected
by Article 21. This clearly shows that there is no underlying principle in the
Constitution, which limits the fundamental rights in their operation to the
territory of India. If a fundamental right under Article 21 can be exercisable
outside India, why can freedom of speech and expression conferred under Article
19 (1) (a) be not so exercisable?
75. This view which we are taking is
completely in accord with the thinking on the subject in the United States.
There the preponderance of opinion is that the protection of the Bill of Rights
is available to United States citizens even in foreign countries. Vide
Best v. United States, 184 Federal reporter (2d) 131. There is an
interesting article on " The Constitutional Right to Travel" in 1956
Columbia Law Review where Leonard B. Boudin writes:
"The
final objection to limitations upon the right to travel is that they interfere
with the individual's freedom of expression. Travel itself is such a freedom in
the view of one scholarly jurist. But we need not go that far; it is enough
that the freedom of speech includes the right of Americans to exercise it
anywhere without the interference of their government. There are no
geographical limitations to the Bill of Rights. A Government that sets up
barriers to its citizens' freedom of expression in any country in the world
violates the Constitution as much as if it enjoined such expression in the
United States."
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,
(1965)2 Mys LJ 605 and the learned Judge there pointed out that
"there 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 action sets up barriers to its
citizens; 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 on 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)?
76. 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.
77. We may begin the discussion of this
question by first considering the nature and significance of the right to go
abroad. It cannot be disputed that there must exist a basically free sphere for
man, resulting from the nature and dignity of the human being as the bearer of
the highest spiritual and moral values. This basic freedom of the human being
is expressed at various levels and is reflected in various basic rights.
Freedom to go abroad is one of such rights, for the nature of man as a free
agent necessarily involves free movement on his part. There can be no doubt
that if the purpose and the sense of the State is to protect personality and
its development, as indeed it should be of any liberal democratic State,
freedom to go abroad must be given its due place amongst the basic rights. This
right is an important basic human right for it nourishes independent and
self-determining creative character of the individual, not only by extending
his freedom of action, but also by extending the scope of the experience. It is
a right which gives intellectual and a creative workers in particular the
opportunity of extending their spiritual and intellectual horizon through study
at foreign universities, through contact with foreign colleagues and through
participation in discussions and conferences. The right also extends to private
life : marriage, family and friendship are humanities which can be rarely
affected through refusal of freedom to go abroad and clearly show that this
freedom is a genuine human right. Moreover, this freedom would be a highly
valuable right where man finds himself obliged to flee (a) because he is unable
to serve his God as he wished at the previous place of residence, (b) because
his personal freedoms is threatened for reasons which do not constitute a crime
in the usual meaning of the word and many were such cases during the emergency,
or (c) because his life is threatened either for religious or political reasons
or through the threat to the maintenance of minimum standard of living
compatible with human dignity. These reasons suggest that freedom to go abroad
incorporates the important function of an ultimum refunium liberatatis when
other basic freedoms are refused. To quote the words of Mr. Justice Dougles in Kent
v. Dulles, (1958)357 US 116 : 2 Law Ed 2d 1204 freedom to go abroad has
much social value and represents a basic human right of great significance. It
is in fact incorporated as an inalienable human right in Article 13 of the
Universal Declaration of Human Rights. But it is not specifically named as a
fundamental right in Article 19
(1). Does it mean that on that account it cannot be a fundamental right covered
by Article 19 (1)?
78. Now, it may be pointed out at the
outset that it is not our view that a right which is not specifically mentioned
by name can never be a fundamental right within the meaning of Article 19 (1). It is possible that a right does not
find express mention in any clause of Article 19
(1) and yet it may be covered by some clause of that Article. Take for example,
by way of illustration, freedom of press. It is the most cherished and valued
freedom in a democracy: indeed democracy cannot survive without a free press.
Democracy is based essentially on free debate and open discussion, for that is
the only corrective of governmental action in a democratic set up. If democracy
means Government of the people, by the people, it is obvious that every citizen
must be entitled to participate in the democratic process and in order to
enable him to intelligently exercise his right of making a choice, free and
general discussion of public matters is absolutely essential. Manifestly, free
debate and open discussion, in the most comprehensive sense, is not possible unless
there is a free and independent press. Indeed the true measure of the health
and vigour of a democracy is always to be found in its press. Look at its
newspapers - do they reflect divensity of opinions and views, do they contain
expression of dissent and criticism against governmental policies and actions,
or do they obsequiously sing the praises of the Government or lionise or deify
the ruler. The newspapers are an index of the true character of the Government
- whether it is democratic or authoritarian. It was Mr. Justice Potter Stewart
who said: "Without an informed and free press, there cannot be an
enlightened people". Thus freedom of the press constitutes one of the
pillars of democracy and indeed lies at the foundation of democratic organisation
and yet it is not enumerated in so many terms as a fundamental right in Article
19 (1), though there is a view held by some
constitutional jurists that this freedom is to basic and fundamental not to
receive express mention in Part III of the Constitution. But it has been held
by this Court in several decisions, of which we may mention only three, namely,
Express Newspapers' case, Sakal Newspapers' case and Bennett Coleman and Co's
case, that freedom of the press is part of the right of free speech and
expression and is covered by Article 19
(1) (a). The reason is that freedom of the press is nothing but an aspect of
freedom of speech and expression. It partakes of the same basic nature and character
and is indeed an integral part of free speech and expression and perhaps it
would not be incorrect to say that it is the same right applicable in relation
to the press. So also, freedom of circulation is necessarily involved in
freedom of speech and expression and is part of it and hence enjoys the
protection of Article 19 (1) (a). Vide Romesh
Thappar V. State of Madras, 1950 SCR 594. Similarly, the right to paint or sing
or dance or to write poetry or literature is also covered by Article 19 (1) (a), because the common basic
characteristic in all these activities is freedom of speech and expression, or
to put it differently, each of these activities is an exercise of freedom of
speech and expression. It would thus be seen that even if a right is not
specifically named in Article 19
(1), it may still be a fundamental right covered by some clause of that
Article, if it is an integral part of a named fundamental right or partakes of
the same basic nature and character as that fundamental right. It is not enough
that a right claimed by the petitioner flows or emanates from a named
fundamental right or that its existence is necessary in order to make the
exercise of the named fundamental right meaningful and effective.
Every activity which facilitates the
exercise of a named fundamental right is not necessarily comprehended in that
fundamental right nor can it be regarded as such merely because it may not be
possible otherwise to effectively exercise that fundamental right. The contrary
construction would lead to incongruous results and the entire scheme of Article
19 (1) which confers different rights and
sanctions different restrictions according to different standards depending
upon the nature of the right will be upset. What is necessary to be seen is,
and that is the test which must be applied, whether the right claimed by the
petitioner is an integral part of a named fundamental right or partakes of the
same basic nature and character as the named fundamental right so that the
exercise of such right is in reality and substance nothing but an instance of
the exercise of the named fundamental right. If this be the correct test, as we
apprehend it is, the right to go abroad cannot in all circumstances be regarded
as in freedom of speech and expression. Mr. Justice Douglas said in Kent
v. Dulles (1958) 357 US 116 : (2 Law Ed 2d 1204) that "Freedom of
movement across frontiers in either direction, and inside frontiers as well,
was a part of our heritage. Travel abroad, like travel within the country, may
be necessary for livelihood. It may be as close to the heart of the individual
as the choice of what he eats, or wears, or reads. Freedom of movement is basic
in our scheme of values." And what the learned Judge said in regard to
freedom of movement in his country holds good in our country as well. Freedom
of movement has been a part of our ancient tradition which always upheld the
dignity of man and saw in him the embodiment of the Divine. The Vedic seers
knew no limitations either in the locomotion of the human body or in the flight
of the soul to higher planes of consciousness. Even in the post-Upnishadic
period, followed by the Buddhistic era and the early centuries after Christ,
the people of this country went to foreign lands in pursuit of trade and
business or in search of knowledge or with a view to shedding on others the
light of knowledge imparted to them by their ancient sages and seers. India
expanded outside her borders: her ships crossed the ocean and the fine
superfluity of her wealth brimmed over to the east as well as to the west. Her
cultural messengers and envoys spread her arts and epics South East Asia and
her religions conquered China and Japan and other far Eastern countries and
spread westward as far as Palestine and Alexendria. Even at the end of the last
and the beginning of the present century, our people sailed across the seas to
settle down in the African countries. Freedom of movement at home and abroad is
a part of our heritage and, as already pointed out, it is a highly cherished
right essential to the growth and development of the human personality and its
importance cannot be over-emphasised. But it cannot be said to be art of the
right of free speech and expression. It is not of the same basic nature and
character as freedom of speech and expression. When a person goes abroad, he
may do so for a variety of reasons and it may not necessarily and always be for
exercise of freedom of speech and expression. Every travel abroad is not an
exercise of right of free speech and expression and it would not be correct to
say that whenever there is a restriction on the right to go abroad, ex
necessitate it involves violation of freedom of speech and expression. It is no
doubt true that going abroad may be necessary in a given case for exercise of
freedom of speech and expression, but that does not make it an integral part of
the right of free speech and expression. Every activity that may be necessary
for exercise of freedom of speech and expression or that may facilitate such
exercise or make it meaningful and effective cannot be elevated to the status
of a fundamental right as if it were part of the fundamental right of free
speech and expression. Otherwise, practically every activity would became part
of some fundamental right or the other and the object of making certain rights
only as fundamental rights with different permissible restrictions would be
frustrated.
79. The petitioner, however, placed
very strong reliance on certain decisions of the United States Supreme Court.
The first was the decision in Kent v. Dulles (supra). The Supreme Court laid
down in this case that the right to travel is guaranteed by the Fifth Amendment
and held that the denial of passport by the Secretary of State was invalid
because the Congress had not, under the Passports Act, 1926, authorised the
Secretary of State to refuse passport on the ground of association with the
communist party and refusal to file an affidavit relating to that affiliation
and such legislation was necessary before the Secretary of State could refuse
passport on those grounds. This decision was not concerned with the validity of
any legislation regulating issue of passports nor did it recognise the right to
travel as founded on the first Amendment which protects freedom of speech,
petition and assembly. We fail to see how this decision can be of any help to
the petitioner.
80. The second decision on which
reliance was placed on behalf of the petitioner was Aptheker v. Secretary
of State, (1964) 378 US 500 : (12 Law Ed 2d 992). The question which
arose for determination in this case related to the constitutional validity of
Section 6 of the Subversive Activities Control Act, 1950. This section
prohibited the use of passports by communists following a final registration
order by the Subversive Activities Control Board under Section 7 and following
the mandate of this section, the State Department revoked the existing
passports of the appellants. After exhausting all administrative remedies, the
appellants sued for declarative and injunctive relief before the District Court
which upheld the validity of the section. On direct appeal, the Supreme Court
reversed the judgment by a majority of six against three and held the section
to be invalid. The Supreme Court noted first that the right to travel abroad is
an important aspect of the citizens' liberty guaranteed by the Due Process
Clause of the Fifth Amendment and Section 6 substantially restricts that right
and then proceeded to apply the strict standard of judicial review which it had
till then applied only in cases involving the so-called preferred freedoms of
the first Amendment, namely, that "a governmental purpose - may not be
achieved by means which sweep unnecessarily broadly and thereby invade the area
of protected freedoms". The Supreme Court found on application of this
test that the section was "overly broad and unconstitutional on its
face" since it omitted any requirement that the individual should have
knowledge of the organisational purpose to establish a communist totalitarian
dictatorship and it made no attempt to relate the restriction on travel to the
individual's purpose of the trip or to the security-sensitivity of the area to
be visited. This decision again has no relevance to the present argument except
for one observation made by the Court that "freedom of travel is a
constitutional liberty closely related to rights of free speech and
association". But this observation also cannot help because the right to
foreign travel was held to be a right arising not out of the first Amendment
but inferentially out of the liberty guaranteed in the Fifth Amendment and this
observation was meant only to support the extension of the strict First
Amendment test to a case involving the right to go abroad.
81. The last decision cited by the
petitioner was Zemel v. Rusk, (1966)381 US 1 : 14 Law Ed 2d 179.
This case raised the question whether the Secretary of State was statutorily
authorised to refuse to validate the passports of United States citizens for
travel to Cuba and if so, whether the exercise of such authority was
constitutionally permissible. The Court, by a majority of six against three,
held that the ban on travel to Cuba was authorised by the broad language of the
Passport Act, 1926 and that such a restriction was constitutional. Chief
Justice Warren speaking on behalf of the majority observed that having regard
to administrative practice both before and after 1926, area restrictions were
statutorily authorised and that necessitated consideration of Zemel's
constitutional objections. The majority took the view that freedom of movement
was right protected by the 'liberty' clause of the Fifth Amendment and that the
Secretary of State was justified in attempting to avoid serious international
incidents by restricting travel to Cuba and summarily rejected Zemel's
contention that the passport denial infringed his First Amendment rights by
preventing him from gathering first hand knowledge about Cuban situation. Kent
v. Dulles ((1958) 357 US 116 : 2 Law Ed 2d 1204) and Apthekar v.
Secretary of State ((1964) 378 US 500 : 12 Law Ed 2d 992) were
distinguished on the ground that "the refusal to validate appellant's
passport does not result from any expression or association on his part :
appellant is not being forced to choose between membership of an organisation
and freedom to travel". Justices Douglas, Goldberg and Black dissented in
separate opinions. Since reliance was placed only on the opinion of Justice
Douglas, we may confine our attention to that opinion. Justice Douglas followed
the approach employed in Kent v. Dulles and refused to interpret the Passports
Act, 1926 as permitting the Secretary of State to restrict travel to Cuba.
While doing so, the learned Judge stressed the relationship of the right to
travel to First Amendment rights. He pointed out: "The right to know, to
converse with others, to consult with them, to observe social, physical,
political and other phenomenons abroad as well as at home gives meaning and
substance to freedom of expression and freedom of the press. Without those
contacts First Amendment rights suffered, and added that freedom to travel
abroad is a right "peripheral to the enjoyment of the First Amendment
guarantees". He concluded by observing that "the right to travel is
at the periphery of the First Amendment" and therefore "restrictions
on the right to travel in times of peace should be so particularised that a
First Amendment right is not thereby precluded". Now, obviously, the
majority decision is of no help to the petitioner. The majority rightly pointed
out that in Kent v. Dulles and Aptheker v. Secretary of State there was direct
interference with freedom of association by refusal to validate the passport,
since the appellant was required to give up membership of the organisation if
he wanted validation of the passport. Such was not the case in Zemel v. Rusk
and that is why, said the majority it was not First Amendment right which was
involved. It appeared clearly to be the view of the majority that if the denial
of passport directly affects a First Amendment right such as freedom of
expression or association as in Kent v. Dulles and Aptheker v. Secretary of
State, it would be constitutionally invalid. The majority did not accept the
contention that the right to travel for gathering information is in itself a
First Amendment right. Justice Douglas also did not regard the right to travel
abroad as First Amendment right but held that it is peripheral to the enjoyment
of First Amendment guarantees because it gives meaning and substance to the
first Amendment rights and without it, these rights would suffer. That is why
he observed towards the end that restrictions on the right to travel should be
so particularised that a First Amendment right is not precluded or in other
words there is no direct infringement of a First Amendment right.
If there is, the restrictions would be
constitutionally invalid, but not otherwise. It is clear that Justice Douglas
never meant to lay down that a right which is at the periphery of the First
Amendment or to put it briefly. a peripheral right, is itself a guaranteed
right under the first Amendment. The learned Judge did not hold the right to
travel abroad to be a First Amendment right. Both according to the majority as
also Justice Douglas, the question to be asked in each case is: is the
restriction on the right to travel such that it directly interferes with a
First Amendment right. And that is the same test which is applied by this Court
in determining infringement of a fundamental right.
82. We cannot, therefore, accept the
theory that a peripheral or concomitant right which facilitates the exercise of
a named fundamental right or gives it meaning and substance or makes its
exercise effective, is itself a guaranteed right included within the named
fundamental right. This much is clear as a matter of plain construction, but
apart from that. there is a decision of this Court which clearly and in so many
terms supports this conclusion. That is the decision in All India Bank
Employees' Association v. National Industrial Tribunal, (1962)3 SCR 269.
The legislation which was challenged in that case was Section 34A of the Banking
Companies Act and it was assailed as violative of Article 19 (1) (c). The effect of Section 34A was that
no tribunal could compel the production and inspection of any books of account
or other documents or require a bank to furnish or disclose any statement or
information if the Banking Company claimed such documents or statement or
information to be of a confidential nature relating to secret reserves or to
provision for bad and doubtful debts. If a dispute was pending and a question
was raised whether any amount from the reserves or other provisions should be
taken into account by a tribunal, the tribunal could refer the matter to the
Reserve Bank of India whose certificate as to the amount which could be taken
into account, was made final and conclusive. Now, it was conceded that Section
34A did not prevent the workmen from forming unions or place any impediments in
their doing so, but it was contended that the right to form association
protected under Article 19 (1) (c) carried with it
a guarantee that the association shall effectively achieve the purpose for
which it was formed without interference by law except on grounds relevant to
the preservation of public order or morality set out in Article 19 (4). In other words, the argument was that
the freedom to form unions carried with it the concomitant right that such
unions should be able to fulfill the object for which they were formed. This
argument was negatived by a unanimous Bench of this Court. The Court said that
unions were not restricted to workmen, that employers' unions may be formed in
order to earn profit and that a guarantee for the effective functioning of the
unions would lead to the conclusion that restrictions on their right to earn
profit could be put only in the interests of public order or morality. Such a
construction would run basically counter to the scheme of Article 19 and to the provisions of Article 19 (1) (c) and (6). The restrictions which
could be imposed on the right to form an association were limited to
restrictions in the interest of public order and morality. The restrictions
which could be imposed on the right to carry on any trade, business, profession
or calling were reasonable restrictions in the public interest and if the
guarantee for the effective functioning of an association was a part of the
right, then restrictions could not be imposed in the public interest on the
business of an association. Again. an association of workmen may claim the
right of collective bargaining and the right to put restrictions on that right
in the public interest as is done by the Industrial Disputes Act, which restrictions
would be permissible under Article 19
(6), but not under Article 19 (4). The Court,
therefore, held that the right to form unions guaranteed by Article 19 (1) (c) does not carry with it a concomitant
right that the unions so formed should be able to achieve the purpose for which
they are brought into existence, so that any interference with such achievement
by law would be unconstitutional unless the same could be justified under
Article 19 (4).
83. The right to go abroad cannot,
therefore be regarded as included in freedom of speech and expression
guaranteed under Article 19 (1) (a) on the theory
of peripheral or concomitant right. This theory has been firmly rejected in the
All India Bank Employees' Association's case and we cannot countenance any
attempt to revive it, as that would completely upset the scheme of Article 19 (1) and to quote the words of Rajagopala
Ayyanger, J., speaking on behalf of the Court in All India Bank Employees'
Association's case "by a series of ever expanding concentric circles in
the shape of rights concomitant to concomitant rights and so on, lead to an
almost grotesque result". So also, for the same reasons, the right to go
abroad cannot be treated as part of the right to carry on trade business,
profession or calling guaranteed under Article 19
(1) (g). The right to go abroad is clearly not a guaranteed right under any
clause of Article 19 (1) and Section 10 (3) (c) which authorises imposition of restrictions
on the rights to go abroad by impounding of passport cannot be held to be void
as offending Article 19 (1) (a) or (g), as its
direct and inevitable impact is on the right of free speech and expression or
the right to carry on trade, business. profession or calling.
Constitutional Requirement of an order
under Section 10 (3) (c)
84. But that does not mean that an
order made under Section 10 (3) (c) may not violate
Article 19 (1) (a) or (g). While discussing the
constitutional validity of the impugned order impounding the passport of the
petitioner, we shall have occasions to point out that even where a statutory provisions
empowering an authority to take action is constitutionally valid, action taken
under it may offend a fundamental right and in that event. though the statutory
provision is valid, the action may be void. Therefore, even though Section 10 (3) (c) is valid, the question would always
remain whether an order made under it is invalid as contravening a fundamental
right. The direct and inevitable effect of an order impounding a passport may,
in a given case, be to abridge or take away freedom of speech and expression or
the right to carry on a profession and where such is the case, the order would
be invalid, unless saved by Article 19
(2) or Article 19 (6). Take for example,
a pilot with international flying licence. International flying is his
profession and if his passport is impounded, it would directly interfere with
his right to carry on his profession and unless the order can be justified on
the ground of public interest under Article 19
(6), it would be void as offending Article 19
(1) (g). Another example may be taken of an evangelist who has made it a
mission of his life to preach his faith to people all over the world and for
that purpose, set up institutions in different countries. If an order is made
impounding his passport, it would directly affect his freedom of speech and
expression and the challenge to the validity of the order under Article 19 (1) (a) would be unanswerable unless it is
saved by Article 19 (2). We have taken
these two examples only by way of illustrations. There may be many such cases
where the restriction imposed is apparently only on the right to go abroad but
the direct and inevitable consequence is to interfere with the freedom of
speech and expression or the right to carry on a profession. A musician may
want to go abroad to sing, a dancer to dance, a visiting professor to teach and
a scholar to participate in a conference or seminar. If in such a case his
passport is denied or impounded, it would directly interfere with his freedom
of speech and expression. If a correspondent of a newspaper is given a foreign
assignment and he is refused passport or his passport is impounded. it would be
direct interference with his freedom to carry on his profession. Examples can
be multiplied, but the point of the matter is that though the right to go abroad
is not a fundamental right, the denial of the right to go abroad may, in truth
and in effect, restrict freedom of speech and expression or freedom to carry on
a profession so as to contravene Article 19
(1) (a) or 19 (1) (g). In such a case, refusal or impounding of passport would
be invalid unless it is justified under Article 19
(2) or Article 19 (6), as the case may
be. Now, passport can be impounded under Section 10
(3) (c) if the Passport Authority deems it necessary so to do in the interests
of the sovereignty and integrity of India. the security of India, friendly
relations of India with any foreign country or in the interests of the general
public. The first three categories are the same as those in Article 19 (2) and each of them, though separately
mentioned, is a species within the broad genus of "interests of the
general public." The expression "interests of the general
public" is a wide expression which covers within its broad sweep all kinds
of interests of the general public including interests of the sovereignty and
integrity of India, security of India and friendly relations of India with
foreign States. Therefore, when an order is made under Section 10 (3) (c), which is in conformity with the
terms of that provision, it would be in the interests of the general public and
even if it restricts freedom to carry on a profession, it would be protected by
Article 19 (6). But if an order made under Section
10 (3) (c) restricts freedom of speech and
expression, it would not be enough that it is made in the interests of the
general public.
It must fall within the terms of
Article 19 (2) in order to earn the protection of
that Article. If it is made in the interests of the sovereignty and integrity
of India or in the interests of friendly relation of India with any foreign
country, it would satisfy the requirement of Article 19
(2). But if it is made for any interests of the general public save the
interests of "public order, decency or morality," it would not enjoy
the protection of Article 19 (2). There can be no
doubt that the interests of public order, decency or morality are "interests
of the general public" and they would be covered by Section 10 (3) (c), but the expression "interests
of the general public" is, as already pointed out, a much wider expression
and, therefore, in order that an order made under Section 10 (3) (c) restricting freedom of speech and
expression, may not fall foul of Article 19
(1) (a), it is necessary that in relation to such order, the expression
"interests of the general public" in Section 10 (3) (c) must be read down so as to be
limited to interests of public order, decency or morality. If an order made
under Section 10 (3) (c) restricts
freedom of speech and expression, it must be made not in the interests of the
general public in a wider sense, but in the interests of public order, decency
or morality, apart from the other three categories, namely, interests of the
sovereignty and integrity of India, the security of India and friendly
relations of India with any foreign country. If the order cannot be shown to
have been made in the interests of public order, decency or morality, it would
not only contravene Article 19 (1) (a), but
would also be outside the authority conferred by Section 10 (3) (c).
Constitutional Validity of the Impugned
order:
85. We may now consider, in the light
of this discussion, whether the impugned Order made by the Central Government
impounding the passport of the petitioner under Section 10 (3) (c) suffers from any constitutional or
legal infirmity. The first ground of attack against the validity of the impugned
order was that it was made in contravention of the rule of natural justice
embodied in the maxim audi alteram partem and was, therefore, null and void. We
have already examined this ground while discussing the constitutional validity
of Section 10 (3) (c) with reference to Article 21
and shown how the statement made by the learned Attorney General on behalf of
the Government of India has cured the impugned order of the vice of
non-compliance with the audi alteram partem rule. It is not necessary to say
anything more about it. Another ground of challenge urged on behalf of the
petitioner was that the impugned order has the effect of placing an
unreasonable restriction on the right of free speech and expression guaranteed
to the petitioner under Article 19
(1) (a) as also on the right to carry on the profession of a journalist
conferred under Article 19 (1) (g). inasmuch as it
seeks to impound the passport of the petitioner indefinitely, without any limit
of time, on the mere likelihood of her being required in connection with the
Commission of Inquiry headed by Mr. Justice J. C. Shah. It was not competent to
the Central Government, it was argued, to express an opinion as to whether the
petitioner is likely to be required in connection with the proceeding before
the Commission of Inquiry. That would be a matter within the judgment of the
Commission of Inquiry and it would be entirely for the Commission of Inquiry to
decide whether or not her presence is necessary in the proceeding before it.
The impugned order impounding the passport of the petitioner on the basis of a
mere opinion by the Central Government that the petitioner is likely to be
required in connection with the proceeding before the Commission of Inquiry
was, in the circumstances, clearly unreasonable and hence violative of Article 19 (1) (a) and (g). This ground of challenge
was vehemently pressed on behalf of the petitioner and supplemented on behalf
of Adil Sahariar who intervened at the hearing of the writ petition, but we do
not think there is any substance in it. It is true, and we must straightway
concede it, that merely because a statutory provision empowering an authority
to take action in specified circumstances is constitutionally valid as not
being in conflict with any fundamental rights, it does not give a carte blanche
to the authority to make any order it likes so long as it is within the
parameters laid down by the statutory provision. Every order made under a
statutory provision must not only be within the authority conferred by the
statutory provision, but must also stand the test of fundamental rights.
Parliament cannot be presumed to have intended to confer power on an authority
to act in contravention of fundamental rights. It is a basic constitutional
assumption underlying every statutory grant of power that the authority on
which the power is conferred should act constitutionally and not in violation
of any fundamental rights. This would seem to be elementary and no authority is
necessary in support of it, but if any were needed, it may be found in the
decision of this Court in Narendra Kumar v. The Union of India, (1960)2
SCR 375. The question which arose in that case was whether clauses (3)
and (4) of the Non-ferrous Metal Control Order, 1958 made under Section 3 of the Essential Commodities Act, 1955 were
constitutionally valid.
The argument urged on behalf of the
petitioners was that these clauses imposed unreasonable restrictions on the
fundamental rights guaranteed under Article 19
(1) (f) and (g) and in answer to this argument, apart from merits, a contention
of a preliminary nature was advanced on behalf of the Government that "as
the petitioners have not challenged the validity of the Essential Commodities
Act and have admitted the power of the Central Government to make an order in
exercise of the powers conferred by Section 3 of the Act, it is not open to the
Court to consider whether the law made by the Government in making the
Non-ferrous Metal Control Order ..... violates any of the fundamental rights
under the Constitution". It was urged that so long as the order does not
go beyond the provisions in Section 3 of the Act, it "must be held to be
good and the consideration of any question of infringement of fundamental
rights under the Constitution is wholly beside the point." This argument
was characterised by Das Gupta J., speaking on behalf of the Court as "an
extravagant argument" and it was said that "such an extravagant
argument has merely to be mentioned to deserve rejection." The learned Judge
proceeded to state the reasons for rejecting this argument in the following
words (at p. 433 of AIR 1960 SC) :
If
there was any reason to think that Section 3 of the Act confers on the Central
Government power to do anything which is in conflict with the Constitution -
anything which violates any of the fundamental rights conferred by the
Constitution. that fact alone would be sufficient and unassailable ground for
holding that the section itself is void being ultra vires the Constitution.
When, as in this case, no challenge is made that Section 3 of the Act is ultra
vires the Constitution, it is on the assumption that the powers granted thereby
do into violate the Constitution and do not empower the Central Government to
do anything which the Constitution prohibits. It is fair and proper to presume
that in passing this Act the Parliament could not possibly have intended the
words used by it, viz. "may by order provide for regulating or prohibiting
the production, supply and distribution thereof, and trade and commerce in,"
to include a power to make such provisions even though they may be in
contravention of the Constitution. The fact that the words" in accordance
with the provisions of the articles of the Constitution" are not used in
the section is of no consequence. Such words have to be read by necessary
implication in every provision and every law made by the Parliament on any day
after the Constitution came into force. It is clear therefore that when Section
3 confers power to provide for regulation or prohibition of the production,
supply and distribution of any essential commodity it gives such power to make
any regulation or prohibition in so far as such regulation and prohibition do
not violate any fundamental rights granted by the Constitution of India."
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 interest 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).
86. But we do not think that the
impugned order in the present case violates either Article 19 (1) (a) or Article 19 (1) (g). What the impugned order does is to
impound the passport of the petitioner and thereby prevent her from going
abroad and at the date when the impugned order was made there is nothing to
show that the petitioner was intending to go abroad for the purpose of
exercising her freedom of speech and expression or her right to carry on her
profession as a journalist. The direct and inevitable consequence of the
impugned order was to impede the exercise of her right to go abroad and not to
interfere with her freedom of speech and expression or her right to carry on
her profession. But we must hasten to point out that if at any time in the
future the petitioner wants to go abroad for the purpose of exercising her
freedom of speech and expression or for carrying on her profession is a
journalist and she applies to the Central Government to release the passport,
the question would definitely arise whether the refusal to release or in other
words, continuance of the impounding of the passport is in the interests of
public order, decency or morality in the first case, and in the interests of
general public in the second, and the restriction thus imposed is reasonable so
as to come within the protection of Article 19
(2) or Article 19 (6). That is, however,
not the question before us at present.
87. We may observe that if the impugned
Order impounding the passport of the petitioner were violative of her right to
freedom of speech and expression or her right to carry on her profession as a
journalist. It would not be saved by Article 19
(2) or Article 19 (6), because the
impounding of the passport for an indefinite length of time would clearly
constitute an unreasonable restriction. The Union contended that though the
period for which the impugned order was to operate was not specified in so many
terms,it was clear that it was intended to be conterminous with the duration of
the Commission of Inquiry, since the reason for impounding was that the
presence of the petitioner was likely to be required in connection with the
proceedings before the Commission of Inquiry being limited up to 31st December,
1977, the impounding of the passport could not continue beyond that date and
hence it would not be said that the impugned Order was to operate for an
indefinite period of time. Now,it is true that the passport of the petitioner
was impounded on the ground that her presence was likely to be required in
connection with the proceeding before the Commission of inquiry and the initial
time limit fixed for the Commission of Inquiry to submit its report was 31st
December, 1977, but the time limit could always be extended by the Government
and the experience of several Commissions of Inquiry set up in this country
over the last twenty-five years shows that hardly any Commission of Inquiry has
been able to complete its report within the originally appointed time. Whatever
might have been the expectation in regard to the duration of the Commission of
Inquiry headed by Mr. Justice Shah at the time when the impugned Order was
made, it is now clear that it has not been possible for it to complete its
labours by 31st December, 1977 which was the time limit originally fixed and in
fact its term has been extended up to 31st May, 1978. The period for which the
passport is impounded cannot, in the circumstances, be said to be definite and
certain and it may extend to an indefinite point of time. This would clearly make
the impugned order unreasonable and the learned Attorney General appearing on
behalf of the Central Government, therefore, made a statement that in case the
decision to impound the passport of the petitioner is confirmed by the Central
Government after hearing the petitioner, "the duration of the impounding
will not exceed a period of six months from the date of the decision that may
be taken on the petitioner's representation". It must be said in fairness
to the Central Government that this was a very reasonable stand to adopt,
because Inca democratic society governed by the rule of law, it is expected of
the Government that it should act not only constitutionally and legally but
also fairly and justly towards the citizen. We hope and trust that in future
also whenever the passport of any person is impounded under Section 10 (3) (c), the impounding would be for a
specified period of time which is not unreasobaly long, even though no
contravention of any fundamental right may be involved.
88. The last argument that the impugned
Order could not, consistently with Article 19
(1) (a) and (g), be based on a mere opinion of the Central Government that the
presence of the petitioner is likely to be required in connection with the
proceeding before the Commission of Inquiry is also without force. It is true
that ultimately it is for the Commission of Inquiry to decide whether the
presence of the petitioner is required in order to assist it in its fact
finding mission, but the Central Government which has constituted the
Commission of Inquiry and laid down its terms of reference would certainly be
able to say with reasonable anticipation whether she is likely to be required
by the Commission of Inquiry. Whether she is actually required would be for the
Commission of Inquiry to decide, but whether she is likely to be required can
certainly be judged by the Central Government. When the Central Government
appoints a commission of Inquiry, it does not act in a vacuum. It is bound to
have some material before it on the basis of which it comes to a decision that
there is a definite matter of public importance which needs to be inquired into
and appoints a Commission of Inquiry for that purpose. The Central Government
would, therefore, be in a position to say whether the petitioner is likely to
be required in connection with the proceeding before the Commission of Inquiry.
It is possible that ultimately when the Commission of Inquiry proceeds further
with the probe, it may find that the presence of the petitioner is not
required, but before that it would only be in the stage of likelihood and that
can legitimately be left to the judgment of the Central Government. The
validity of the impugned Order cannot, therefore, be assailed on this ground
and the challenge based on Article 19
(1) (a) and(g) must fail.
Whether the impugned Order is intra
vires Section 10 (3) (c)?
89. The last question which remains to
be considered is whether the impugned Order is within the authority conferred
by Section 10 (3) (c). The impugned Order is plainly,
on the face of it, purported to be made in public interest, i.e. in the
interest of the general public, and therefore, its validity must be judged on
that footing. Now it is obvious that on a plain natural construction of Section
10 (3) (c), it is left to the Passport
Authority to determine whether it is necessary to impound a passport in the
interests of the general public. But an order made by the Passport Authority
impounding a passport is subject to judicial review on the ground that the
order is mala fide, or that the reasons for making the order are extraneous or
they have no relevance to the interests of the general public or they cannot in
possibly support the making of the order in the interests of the general
public. It was not disputed on behalf of the Union, and indeed it would not be
in view of Section 10 sub-section (5) that.
save in certain exceptional cases, of which this was admittedly not one, the Passport
Authority is bound to give reasons for making an order impounding a passport
and though in the present case. the Central Government initially declined to
give reasons claiming that it was not in the interests of the general public to
do so, it realised the utter untenability of this position when it came to file
the affidavit in reply and disclosed the reasons which were recorded at the
time when the impugned order was passed. These reasons were that, according to
the Central Government the petitioner was involved in matters coming within the
purview of the Commissions of Inquiry constituted by the Government of India to
inquire into excesses committed during the emergency and in respect of matters
concerning Maruti and its associate companies and the Central Government was of
the view that the petitioner should be available in India to give evidence
before these Commissions of Inquiry and she should have an opportunity to
present her views before them and according to a report received by the Central
Government on that day, there was likelihood of her leaving India. The argument
of the petitioner was that these reasons did not justify the making of the
impugned Order in the interests of the general public, since these reasons had
no reasonable nexus with the interests of the general public within the meaning
of that expression as used in Section 10
(3) (c). The petitioner contended that the expression "interests of the
general public" must be construed in the context of the perspective of the
statute and since the power to issue a passport is a power related to foreign
affairs. the "interests of the general public" must be understood as
referable only to a matter having some nexus with foreign affairs and it could
not be given a wider meaning. So read, the expression "interests of the
general public" could not cover a situation where the presence of a person
is required to give evidence before a Commission of Inquiry. This argument is
plainly erroneous as it seeks to cut down the width and amplitude of the
expression "interests of the general public," an expression which has
a well recognised legal connotation and which is to be found in Article 19 (5) as well as Article 19 (6). It is true, as pointed out by this
Court in Rohtas Industries Ltd. v. S. D. Agarwal (1969) 3 SCR 108 at p.
128. that "there is always a perspective within which a statute is
intended to operate," but that does not justify reading of a statutory
provision in a manner not warranted by its language or narrowing down its scope
and meaning by introducing a limitation which has no basis either in the
language or in the context of the statutory provision. Moreover, it is evident
from clauses (d), (e) and (h) of Section 10
(3) that there are several grounds in this section which do not relate to
foreign affairs. Hence we do not think the petitioner is justified in seeking
to limit the expression "interests of the general public" to matters
relating to foreign affairs.
90. The petitioner then contended that
the requirement that she should be available for giving evidence before the
Commissions of Inquiry did not warrant the making of the impugned Order
"in the interests of the general public". Section 10 (3), according to the petitioner, contained
clauses (e) and (h) dealing specifically with cases where a person is required
in connection with a legal proceeding and the enactment of these two specific
provisions clearly indicated the legislative intent that the general power in
Section 10 (3) (c) under the ground
"interests of the general public" was not meant to be exercised for
impounding a passport in cases where a person is required in connection with a
legal proceeding. The Central Government was, therefore, not entitled to resort
to this general power under Section 10
(3) (c) for the purpose of impounding the passport of the petitioner on the
ground that she was required to give evidence before the Commissions of
Inquiry. The power to impound the passport of the petitioner in such a case was
either to be found in Section 10(3)
(h) or it did not exist at all. This argument is also unsustainable and must be
rejected. It seeks to rely on the maxim expression unius exclusio ulterius and
proceeds on the basis that clauses (e) and (h) of Section 10 (3) are exhaustive of cases where a person
is required in connection with a proceeding, whether before a court or a
Commission of Inquiry and no resort can be had to the general power under
Section 10 (3) (c) in cases where a person is
required in connection with a proceeding before a Commission of Inquiry. But it
must be noted that this is not a case where the maxim expression unius exclusio
ulterius has any application at all. Section 10(3)
(e) deals with a case where proceedings are pending before a criminal court
while Section (3) (h) contemplates a situation where a warrant or summons for
the appearance or warrant for the arrest, of the holder of a passport has been
issued by a court or an order prohibiting the departure from India of the
holder of the passport has been made by any such court. Neither of these two
provisions deals with a case where a proceeding is pending before a Commission
of Inquiry and the Commission has not yet issued a summons or warrant for the
attendance of the holder of the passport. We may assume for the purpose of
argument that a Commission of Inquiry is a 'court' for the purpose of Section 10 (3) (h), but even so, a case of this kind
would not be covered by Section 10
(3) (h), and Section 10 (3) (e) would in any
case not have application. Such a case would clearly fall within the general
power under Section 10 (3) (c) if it can be
shown that the requirement of the holder of the passport in connection with the
proceeding before the Commission of Inquiry is in the interests of the general
public. It is, of course, open tote Central Government to apply to the
Commission of Inquiry for issuing a summons or warrant, as the case may be, for
the attendance of the holder of the passport before the Commission and if a
summons or warrant is so issued, it is possible that the Central Government may
be entitled to impound the passport under Section 10
(3) (h). But that does not mean that before the stage of issuing a summons or
warrant has arrived, the Central Government cannot impound the passport of a person,
if otherwise it can be shown to be in the interest of the general public to do
so. Section 10 (3) (e) and (h) deals only with two
specific kinds of situations, but there may be a myriad other situations, not
possible to anticipate or categorise, where public interests may require that
the passport should be impounded and such situations would be taken care of
under the general provision enacted in Section 10
(3) (c).
It is true that this is a rather
drastic power to interfere with a basic human right, but it must be remembered
that this power has been conferred by the legislature in public interest and we
have no doubt that it will be sparingly used and that too, with great care and
circumspection and as far as possible, the passport of a person will not be
impounded merely on the ground of his being required in connection with a
proceeding, unless the case is brought within Section 10 (3) (e) or Section 10 (3) (h). We may echo the sentiment in Lord
Denning's closing remarks in Ghani v. Jones (1970) 1 QB 693 where the learned
Master of the Rolls said: "A man's liberty of movement is regarded so
highly by the law of England that it is not to be hindered or prevented except
on the severest grounds." This liberty is prised equally high in our
country and we are sure that a Government committed to basic human values will
respect it.
91. We must also deal with one other
contention of the petitioner, though we must confers that it was a little
difficult for us to appreciate it. The petitioner urged that in order that a
passport may be impounded under Section 10
(3) (c), public interest must actually exist in praesanti and mere likelihood
of public interest arising in future would be no ground for impounding a
passport. We entirely agree with the petitioner that an order impounding a
passport can be made by the Passport Authority only if it is actually in the
interests of the general public to do so and it is not enough that the
interests of the general public may be likely to be served in future by the
making of the order. But here in the present case, it was not merely on the
future likelihood of the interests of the general public being advanced that
the impugned order was made by the Central Government. The impugned Order was
made because, in the opinion of the Central Government, the presence of the
petitioner was necessary for giving evidence before the Commissions of Inquiry
and according to the report received by the Central Government, she was likely
to leave India and that might frustrate or impede to some extent the inquiries
which were being conducted by the Commissions of Inquiry.
92. Then it was contended on behalf of
the petitioner that the Minister for External Affairs who made the impugned
order on behalf of the Central Government, did not apply his mind and hence the
impugned order was bad. We find no basis or justification for this contention.
It has been stated in the affidavit in reply that the Minister for External
Affairs applied his mind to the relevant material and also to the confidential
information received from the intelligence sources that there was likelihood of
the petitioner attempting to leave the country and then only he made the
impugned order. In fact, the Ministry of Home Affairs had forwarded to the
Ministry of External Affairs as far back as 9 to May, 1977 a list of persons
whose presence, in view of their involvement or connection or position or past
antecedents, was likely to be required in connection with inquiries to be
carried out by the Commission of Inquiry and the name of the petitioner was
included in this list. The Home Ministry had also intimated to the Ministry of
External Affairs that since the inquiries were being held by the Commissions of
Inquiry in public interest, consideration of public interest would justify
recourse to Section 10 (3) (c) for impounding
the passports of the persons mentioned in this list. This note of the Ministry
of Home Affairs was considered by the Minister for External Affairs and despite
the suggestion made in this note, the passports of only eleven persons, out of
those mentioned in the list, were ordered to be impounded and no action was
taken in regard to the passport of the petitioner. It is only on 1st July, 1977
when the Minister for External Affairs received confidential information that
the petitioner was likely to attempt to leave the country that, after applying
his mind to the relevant material and taking into account this confidential
information, he made the impugned Order. It is, therefore, not possible to say
that the Minister for External Affairs did not apply his mind and mechanically
made the impugned Order.
93. The petitioner lastly contended
that it was not correct to say that the petitioner was likely to be required
for giving evidence before the Commissions of Inquiry. The petitioner, it was
said, had nothing to do with any emergency excesses nor was she connected in
any manner with Maruti or its associate concerns, and, therefore, she could not
possibly have any evidence to give before the Commissions of Inquiry. But this
is not a matter which the court can be called upon to investigate. It is not
for the court to decide whether the presence of the petitioner is likely to be
required for giving evidence before the Commissions of Inquiry. The Government,
which has instituted the Commissions of Inquiry. would be best in a position to
know, having regard to the material before it, whether the presence of the
petitioner is likely to be required. It may be that her presence may ultimately
not be required at all, but at the present stage, the question is only whether
her presence is likely to be required and so far that is concerned, we do not
think that the view taken by the Government can be regarded as so unreasonable
or perverse that we would strike down the impugned Order based upon it as an
arbitrary exercise of power.
94. We do not, therefore, see any
reason to interfere with the impugned order made by the Central Government. We,
however, wish to utter a word of caution to the Passport Authority while
exercising the power of refusing or impounding or canceling a passport. The
Passport Authority would do well to remember that it is a basic human right
recognised in Article 13 of the Universal Declaration of Human Rights with
which the Passport Authority is interfering when it refuses or impounds or
cancels a passport. It is a highly valuable right which is a part of personal
liberty, an aspect of the spiritual dimension of man, and it should not be
lightly interfered with. Cases are not unknown where people have not been
allowed to go abroad because of the views held, opinions expressed or political
beliefs or economic ideologies entertained by them. It is hoped that such cases
will not recur under a Government constitutionally committed to uphold freedom
and liberty but it is well to remember, at all times, that eternal vigilance is
the price of liberty, for history shows that it is always subtle and insidious
encroachment made ostensibly for a good cause that imperceptibly but surely
corrode the foundations of liberty.
95. In view of the statement made by
the learned Attorney General to which reference has already been made in the
judgment we do not think it necessary to formally interfere with the impugned
order. We, accordingly, dispose of the Writ Petition without passing any formal
order. There will be no order as to costs.
96. Krishna Iyer, J. (Majority
view):-. My concurrence with the argumentation and conclusion contained in the
judgment of my learned brother Bhagwati J. is sufficient to regard this
supplementary, in one sense, a mere redundancy. But in another sense not, where
the vires of a law, which arms the Central Executive with wide powers of
potentially imperiling some of the life-giving liberties of the people in a
pluralist system like ours, is under challenge; and more so, when the ground is
virgin, and the subject is of growing importance to more numbers as Indians
acquire habits of trans-national travel and realise the fruits of foreign
tours, reviving in modern terms, what our forefathers effectively did not put
Bharat on the cosmic cultural and commercial map. India is India because
Indians, our ancients, had journeyed through the wide world for commerce,
spiritual and material, regardless of physical or mental frontiers. And when
this precious heritage of free trade in ideas and goods, association and expression,
migration and home-coming, now crystallised in Fundamental Human Rights, is
alleged to be hamstrung by hubristic authority, my sensitivity lifts the veil
of silence. Such is my justification for breaking judicial lock-jaw to express
sharply the juristic perspective and philosophy behind the practical
necessities and possible dangers that society and citizenry may face if the
clause of our Constitution are not bestirred into court action when a charge of
unjustified handcuffs on free speech and unreasonable fetters on right of exit
is made through the executive power of passport impoundment. Even so, in my
separate opinion, I propose only to paint the back-drop with a broad brush,
project the high points with bold lines and touch up the portrait drawn so well
by brother Bhagwati J. if I may colourfully, yet respectfully, endorse his
judgment.
97. Remember, even democracies have
experienced executive lawlessness and eclipse of liberty on the one hand and
'subversive' use of freedoms by tycoons and saboteurs on the other, and then
the summons to judges comes from the Constitution, overriding the necessary
deference to Government and seeing in perspective, and overseeing in effective
operation the enjoyment of the 'great rights'. This Court lays down the law not
pro tempore but lastingly.
98. Before us is a legislation
regulating travel abroad. Is it void in part or over-wide in terms? 'Lawful'
illegality becomes the rule, if 'lawless' legislation be not removed. In our
jural order, if a statute is void, must the Constitution and its sentinels sit
by silently, or should the lines of legality be declared with clarity so that
adherence to valid norms becomes easy and precise?
99. We are directly concerned, as fully
brought out in Shri Justice Bhagwati's judgment, with the indefinite
immobilisation of the petitioner's passport, the reason for the action being
strangely veiled from the victim and the right to voice an answer being
suspiciously withheld from her, the surprising secrecy being labeled, 'public interest'.
Paper curtains wear ill on good governments. And, cutely to hide one's grounds
under colour of statute, is too sphinx-like an art for an open society and
popular regime. As we saw the reasons which the learned Attorney General so
unhesitatingly disclosed, the question arises: 'wherefore are these things
hid?'. The catch-all expression 'public interest' is sometimes the easy
temptation to cover up from the public when they have a right to know, which
appeals in the short run but avenges in the long run. Since the only passport
to this Court's jurisdiction in this branch of passport law is the breach of a
basic freedom, what is the nexus between a passport and a Part III right? What
are the ambience and amplitude, the desired effect and direct object of the key
provisions of the Passports Act, 1967? Do they crib or cut down
unconstitutionally, any of the guarantees under Articles 21, 19 and 14? Is the
impugned Section 10, especially Section 10 (3) (c), capable of circumscription to make
it accord with the Constitution? Is any part ultra vires, and why? Finally,
granting the Act to be good, is the impounding order bad? Such, in the Write
Petition, is the range of issues regaled at the bar, profound, far-reaching,
animated by comparative scholarship and fertilised by decisional erudition. The
frontiers and funeral of freedom, the necessities and stresses of national
integrity, security and sovereignty, the interests of the general public,
public order and the like figure on occasions as forensic issues. And, in such
situations, the contentious quiet of the court is the storm-center of the
nation. Verily, while hard cases tend to make bad cases tend to blur great law
and courts must beware.
100. The center of the stage in a legal
debate on life and liberty must ordinarily be occupied by Article 21 of our
Paramount Parchment which, with emphatic brevity and accent on legality, states
the mandate thus:
"21.
Protection of life and personal liberty,- No person shall be deprived of his
life or personal liberty except according to procedure established by
law." Micro-phrases used in National charters spread into macro-meanings
with the lambent light of basic law. For our purposes, the key concepts are
'personal liberty' and 'procedure established by law'. Let us grasp the
permissible restraints on personal liberty,one of the facets of which is the
right of exit beyond one's country. The sublime sweep of the subject of
personal liberty must come within our ken if we are to do justice to the
constitutional limitations which may, legitimately, be imposed on its exercise.
Speaking briefly, the architects of our Founding Document, (and their
fore-runners) many of whom were front-line fighters for national freedom, were
lofty humanists who were profoundly spiritual and deeply secular, enriched by
vintage values and revolutionary urges and, above all, experientially conscious
of the deadening impact of the colonial screening of Indians going abroad and historically
sensitive to the struggle for liberation being wage from foreign lands. And
their testament is our asset.
101. 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 lnd', 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 Kautilya's Arthasastra.
102. Indeed, viewing the subject from the
angle of geo-cultural and legal anthropology and current and history, freedom
of movement and its off-shoot - the institution of passport have been there
through the Hellenic, Roman, Israelite, Chinese, Persian and other
civilisations. Socrates,in his dialogue with Crito, spoke of personal liberty.
He regarded the right of everyone to leave his country as an attribute of
personal liberty. He made the laws speak thus:
"We
further proclaim to any Athenian by the liberty which we allow him, that if he
does not like us when he has become of age and has seen the ways of the city,
and made our acquaintance, he may go where he please and take his goods with
him. None of our laws will forbid him, or interfere with him. Anyone who does
not like us and the city, and who wants to emigrate to a colony or to any other
city may go where he likes, retaining his property."
(Plato,
Dialogues)
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.A. P. v. Bhagwan (1972 AC 60) (74B)
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 and
Comparative Law Quarterly, Vol. 23, July 1974, p. 646). As late as Ghani
v. Jones, (1970)1 QB 693, 709 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. and C. L. Qrly. ibid p.
646). In 'Freedom under the Law' Lord Denning has observed under the sub-head
'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 Phillips echo this liberal view. (See Into. and Comp. L. Q. ibid 646). And
Justice Douglas, in the last decade, refined and re-stated, in classic diction,
the basics of travel jurisprudence in Apthekar (1964) 12 Law Ed 2nd 992: (378
US 500):
"The
freedom of movement is the very essence of our free society, setting us apart.
Like the right of assembly and the right of association, it often makes all
other rights meaningful - knowing, studying, arguing, exploring, conversing,
observing and even thinking. Once the right to travel is curtailed, all other
rights suffer, just as when curfew or home detention is placed, on a person.
America
is of course sovereign, but her sovereignty is woven in an inter-national web
that makes her one of the family of nations. The ties with all the continent os
are close - commercially as well as culturally. Our concerns are planetary
beyond sunrises and sunsets. Citizenship implicates us in those problems and
paraplexities, as well as in domestic ones. We cannot exercise and enjoy
citizenship in world perspective without the right to travel abroad."
And, in India, Satwant, case set the
same high tone through Shri Justice Subba Rao although A. K. Gopalan case and a
stream of judicial thought since then, had felt impelled to under-score
personal liberty as embracing right to travel abroad. Tambe C. J. in A. G. Kazi
IR 1967 Bom 235) speaking for a Division Bench, made a comprehensive survey of
the law and vivified and concept thus:
"In
our opinion, the language used in the Article ( Article 21) also indicates that
the expression 'personal liberty' is not confined only to freedom from physical
restraint, i.e. but includes a full range of conduct which an individual is
free to pursue within law, for instance, eat and drink what he likes mix with
people whom he likes, read what he likes, sleep when and as long as he likes,
travel wherever he likes, go wherever he likes, follow profession, vocation or
business he likes, of course, in the manner and to the extent permitted by
law." (p. 240)
103. 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 Robeson, 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)
104. 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 country as near-communist. Earl Warren has, in
his Autobiography, recorded:
"Senator
Joseph Macarthy once said on the floor of the Senate, "I will not say that
Earl Warren is a Communist, but I will say he is the best friend of Communism
in the United States."
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.
105. Likewise, the Establishment, in
many countries has used the passport and visa system as potent paper curtain to
inhibit illustrious writers, outstanding statesmen, humanist churchmen and
renowned scientists, if they are dissenters, from leaving their national
frontiers. Absent forensic sentinels, it is not unusual for people to be
suppressed by power in the name of the people. The politics of passports has
often tried to bend the jurisprudence of personal locomotion to serve its
interests. The twilight of liberty must affect the thought-ways of judges.
106. Things have changed, global
awareness, in grey hues, has dawned. The European Convention on Human Rights
and bilateral understandings have made headway to widen freedom of travel
abroad as integral to liberty of the person (Fourth Protocol). And the
Universal Declaration of Human Rights has proclaimed in Article 13:
"(1)
Everyone has the right to freedom of movement and residence within the borders
of each State.
(2)
Everyone has the right to leave any country, including his own, and to return
to his country."
This right is yet inchoate and only
lays the base. But, hopefully, the loftiest towers rise from the ground. And,
despite destructive wars and exploitative trade, racial hatreds and creedal
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 co-operative, 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
well-spring 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.
107. Viewed from another angle, travel
abroad is a cultural enrichment, which enables one's understanding of one's own
country in better light. Thus it serves national interest to have its citizenry
see other countries and judge one's country on a comparative scale. Rudyard
Kipling, though with an imperial ring, has aptly said:
"Winds
of the World, give answer
They
are whimpering to and fro
And
what should they know of England
who
only England know ?"
(The
English Flag)
108. 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 order
more unstable and the human future more murky.
109. The Indian panorama from the
migrant yore to tourist flow is an expression of the will to explore the
Infinite, to promote understanding of the universe, to export human expertise
and development of every resource. Thus humble pride of patriotic heritage
would have been pre-emptied had the ancient kings and medieval rulers banished
foreign travel as our imperial masters nearly did. And to look at the little
letters of the text of Part III de hors the Discovery of India and the Destiny
of Bharat or the divinity of the soul and the dignity of the person highlighted
in the Preamble unduly obsessed with individual aberrations of yesteryears or
vague hunches leading to current fears, is a persilanimous (sic) exercise in
constitutional perception.
110. Thus, the inspirational
back-ground, cosmic perspective and inherited ethos of the pragmatic
visionaries and jurist-statesmen who drew up the great Title Deed of our
Republic must illumine the sutras of Articles 21, 19 and 14. The fascist horror
of World Ward II burnt into our leaders the urgency of inscribing indelibly
into our Constitution those values sans which the dignity of man suffers total
eclipse. The Universal Declaration of Human Rights, the resurgence of
international fellowship, the vulnerability of freedoms even in democracies and
the rapid development of an integrated and intimately inter-acting 'one world'
poised for peaceful and progressive intercourse conditioned their thought
processes. The bitter feeling of the British Raj trampling under foot swaraj -
the birthright of every Indian - affected their celebrations. The hidden
divinity in every human entity creatively impacted upon our founding fathers'
mentations. The mystic chords of ancient memory and the modern strands of the
earth's indivisibility, the pathology of provincialism, feudal backwardness,
glaring inequality and bleeding communalism, the promotion of tourism, of
giving and taking know-how, of studying abroad and inviting scholars from afar
- these and other realistic considerations gave tongue to those hallowed human
rights fortified by the impregnable provisions of Part III. Swami Vivekananda,
that saintly revolutionary who spanned East and West, exhorted, dwelling on the
nation's fall of the last century:
"My
idea as to the key-note of our national downfall is that we do not mix with
other nations - that is the one and sole cause. We never had the opportunity to
compare notes. We were Kupamandukas (frogs in a well)."
x
x x x
"One
of the great causes of India's misery and downfall has been that she narrowed
herself, went into her shell, as the oyster does, and refused to give her
jewels and her treasures to the other races of mankind, refused to give the
life giving truth to thirsting nations outside the Aryan fold. That has been
the one great cause, that we did not go out, that we did not compare notes with
other nations - that has been the one great cause of our downfall, and every
one of you knows that that little stir, the little life you see in India,
begins from the day when Raja Rammohan Roy broke through the walls of this
exclusiveness. Since that day, history of India has taken another turn and now
it is growing with accelerated motion. If we have had little rivulets in the past,
deluges are coming, and none can resist them. Therefore, we must go out, and
the secret of life is to give and take. Are we to take always, to sit at the
feet of the westerners to learn everything, even religion. We can learn
mechanism from them. We can learn many other things. But we have to teach them
something........... Therefore we must go out, exchange our spirituality for
anything they have to give us; for the marvels of the region of spirit we will
exchange the marvels of the region of matter........ There cannot be friendship
without equality, and there cannot be equality when one party is always the
teacher and the other party sits always at his feet................ If you want
to become equal with the Englishman or the American, you will have to teach as
well as to learn, and you have plenty yet to teach to the world for centuries
to come."
111. 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 text-book 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 provisions of our Constitutions,
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.
112. Among the great guaranteed rights,
life and liberty are the first among equals, carrying a universal connotation
cardinal to a decent human order and protected by constitutional armour.
Truncate liberty in Article 21 traumatically and the several other freedoms
fade out automatically. Justice Douglas, that most distinguished and perhaps
most 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 wee bit repetitive:
"The
right to travel is a part of 'liberty' of which the citizen cannot be deprived
without due process of law under the fifty Amendment............... In Anglo
Saxon law that right was emerging at least as early as the Magna Carta................
Travel abroad, like travel within the country, may be necessary for a
livelihood. It may be as close to the heart of the individual as the choice of
what he eats, or wears, or reads. Freedom of movement is basic in our scheme of
values."
(Kent
v. Dulles, 357 US 116 : 2 Law Ed 2d 1204, 1958)
"Freedom
of movement also has large social values. As Chafee put it: 'Foreign
correspondents and lecturers on public affairs need first-hand information.
Scientists and scholars gain greatly from consultations with colleges in other
countries. Students equip themselves for more fruitful careers in the United
States by instruction in foreign universities. Then there are reasons close to
the core of personal life - marriage, reuniting families, spending hours with old
friends. Finally travel abroad enables American citizens to understand that
people like themselves live a Europe and helps them to be well-informed on
public issues. An American who has crossed the ocean is not obliged to form his
opinions about our foreign policy merely from what he is told by officials of
our Government or by a few correspondents of numerical newspapers. Moreover,
his views on domestic questions are enriched by seeing how foreigners are
trying to solve similar problems. In many different ways direct contact with
other countries contributes to sounder decisions at home............... Freedom
to travel is, indeed, an important aspect of the citizen's 'liberty'." (Kent
v. Dulles), ((1958) 357 US 116 : 2 Law Ed 2d 1204):
"Freedom
of movement at home and abroad, is important for job and business opportunities
- for cultural, political, and social activities - for all the commingling
which gregarious man enjoys. Those with the right of free movement use it at
times for mischievous purposes. But that is true of many liberties we enjoy. We
nevertheless place our faith in them and against restraint, knowing that the
risk of abusing liberty so as to give right of punishable conduct is part of
the price we pay for this free society.
(Apthekar
v. Secretary of State, (1964)378 US 500 : 12 Law Ed 2d 992).
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).
113. The American Courts have, in a
sense, blazed the constitutional trail on that facet of liberty which relates
to untrammelled travel. Kent (1958) 2 Law Ed 2d 1204: 357 US 116 Apthekar
(1964) 12 Law Ed 2d 992: 378 US 500 and Zemel (1966) 14 Law Ed 2d 179: 381 US 1
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."
114. 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 fulfillment - 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 Article 21, Absent, liberty, other freedoms are
frozen.
115. While the issue is legal and
sounds in the constitutional, its appreciation gains in human depth given a
planetary perspective and understanding of the expanding range of travel
between the 'inner space' of Man and the 'outer space' around Mother Earth.
116. To conclude this Chapter of the
discussion on the concept of personal liberty, as a sweeping supplement to the
specific treatment by brother Bhagwati J., the Jurists' Conference in
Bangalore, concluded in 1969, made a sound statement of the Indian Law subject,
of course, to savings and exceptions carved out of the generality of that
conclusion.
"Freedom
of movement of the individual within or in leaving his own country, in traveling
to other countries and in entering his own country is a vital human liberty,
whether such movement is for the purpose of recreation education, trade or
employment, or to escape from an environment in which his other liberties are
suppressed or threatened. Moreover, in an inter-dependent world requiring for
its future peace and progress an over-growing measure of international
understanding, it is desirable to facilitate individual contacts between
peoples and to remove all unjustifiable restraints on their movement which may
hamper such contacts."
117. So much for personal liberty and
its travel facet. Now to 'procedure established by law,' the manacle clause in
Article 21, first generally, and next, with reference to A. K. Gopalan case and
after. Again I observe relative brevity because I go the whole hog with brother
Bhagwati, J.
118. If Article 21 includes the freedom
of foreign travel, can its exercise be fettered or forbidden by procedure
established by law ? Yes, indeed. So, what is 'procedure'? what do we mean by
'established' ? And what is law? Anything, formal, legislatively proceeded,
albeit absurd or arbitrary? Reverence for life and liberty must overpower this
reductio and absurdem, 'Legal interpretation, in the last analysis, is value judgment.
The high seriousness of the subject matter - life and liberty - desiderates the
need for law, not fiat. Law is law when it is legitimated by the conscience and
consent of the community generally. Not any capricious command but reasonable
mode ordinarily regarded by the cream of society as dharma or law,
approximating broadly to other standard measures regulating criminal or like
procedure in the country. Often it is a legislative act, but it must be
functional, not fatuous.
119. This line of logic alone will make
the two clauses of Article 21 concordant, the procedural machinery not
destroying the substantive fundamentally. The compulsion of constitutional
humanism and the assumption of full faith in life and liberty cannot be so
futile or fragmentary that any transient legislative majority in tantrums
against any minority by three quick reading of a bill with the requisite
quorum, can prescribe any unreasonable modality and thereby sterilise the
grandiloquent mandate. 'Procedure established by law,' civilised in its soul,
fair in its heart and fixing those imperatives of procedural protection absent
which the processual tail will wag the substantive head. Can the sacred essence
of the human right to secure which the struggle for liberation, with 'do or
die' patriotism, was launched be sapped by formalistic and pharisaic
prescriptions, regardless of essential standards? An enacted apparition is a
constitutional illusion. Processual justice is writ patently on Article 21. It
is too grave to be circumvented by a black letter ritual processed through the
legislature.
120. So I am convinced that to
frustrate Article 21 by relying on any formal adjectival statute, however
flimsy or fantastic its provisions be, is to rob what the constitution
treasures. Procedure which deals with the modalities of regulating, restricting
or even rejecting a fundamental right falling within Article 21 has to be fair,
not foolish, carefully designed to effectuate, not to subvert the substantive
right itself. Thus understood, 'procedure' must rule out anything arbitrary,
freakish or bizarre. A valuable constitutional right can be canalised only be
civilised processes. You cannot claim that it is a legal procedure if the
passport is granted or refused by taking loss, ordeal of fire or by other
strange or mystical methods. Nor is it tenable if life is taken by a crude or
summary process of enquiry. What is fundamental is life and liberty. What is
procedural is the manner of its exercise. This quality of fairness in the
process in emphasised by the strong word 'established' which means 'settled
firmly' not wantonly or whimsically. If it is rooted in the legal consciousness
of the community it becomes, 'established' procedure. And 'Law' leaves little
doubt that it is normal regarded as just since law is the means and justice is
the end.
121. Is there supportive judicial
thought for this reasoning. We go back to the vintage words of the learned
Judges in A. K. Gopalan case and zigzag through R. C. Cooper to S. N. Sarkar
case and discern attestation of this conclusion. And the elaborate
constitutional procedure in Article 22 itself fortifies the argument that 'list
and liberty' in Article 21 could not have been left to illusory legislatorial
happenstance. Even as relevant reasonableness informs Articles 14 and 19, the
component of fairness is implicit in Article 21. A close-up of the Gopalan case
is necessitous at this stage to underscore the quality of procedure relevant to
personal liberty.
122. Procedural safeguards are the
indispensable essence of liberty. In fact, the history of personal liberty is
large the history of procedural safeguards and right to a hearing has a
human-right ring. In India, because of poverty and illiteracy, the people are
unable to protect and defend there rights: observance of fundamental rights is
not regarded as good politics and their transgression as bad politics. I
sometimes pensively reflect that people's militant awareness rights and duties
is a surer constitutional assurance of governmental respect and response than
the sound and fury of 'question hour' and the slow and unsure delivery of court
writ 'Community Consciousness and the Indian Constitution' is a fascinating
subject of sociological relevance in many areas.
123. To sum up, 'procedure' in Article
21, means fair, not formal procedure. 'Law' is reasonable law, not any enacted
piece. As Article 22 specifically spells out the procedural safeguards for
preventive and punitive detention, a law providing for such detentions should
conform to Article 22. It has been rightly pointed out that for other rights
forming part of personal liberty, the procedural safeguards enshrined in
Article 21 are available. Otherwise, as the procedural safeguards contained in
Article 22 will be available only in cases of preventive and punitive
detention, the right to life, more fundamental than any other forming part of
personal liberty and paramount to the happiness, dignity and worth of the
individual, will not be entitled to any procedural safeguard save such as a
legislature's mood chooses. In Kochunni case the Court, doubting the
correctness of the Gopalan case decision on this aspect, said:
"Had
the question been res integra, some of us would have been inclined to agree
with the dissenting view expressed by Fazl Ali, J."
124. Gopalan case 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 procedure, however novel and
ineffective for affording the accused person a fair opportunity of defending
himself, it would be sufficient for depriving a person of his life or personal
liberty." (pp. 201-203)
"The
main difficulty I feel in accepting the construction suggested by the
Attorney-General is that it completely stultifies Articles 13 (2) and, indeed,
the very conception of a fundamental right ............. could it then have
been the intention of the framers of the Constitution that the most important
fundamental rights to life and personal liberty should be at the mercy of
legislative majorities as, in effect, they would if established' were to mean
merely 'prescribed'? In other words, as an American Judge said in a similar
context, does the constitutional prohibition in Article 13 (3) amount to no
more than 'your shall not take away life or personal freedom unless you choose
to take it away,' which is mere verbiage ............................. it is
said that Article 21 affords no protection against competent legislative action
in the field of substantive criminal law, for there is no provision for
judicial review, on the ground of reasonableness or otherwise, of such laws, as
in the case of the rights enumerated in Article 19. Even assuming it to be so
the construction of the learned Attorney General would have the effect of
rendering wholly ineffective and illusory even the procedural protection which
the article was undoubtedly designed to afford."
(p.
202) (emphasis added)
"After
giving the matter my most careful and anxious consideration, I have come to the
conclusion that there are only two possible solutions of the problem. In the
first place, a satisfactory via media between the two extreme positions
contended for on either side may be found by stressing the word 'established'
which implies some degree of firmness, permanence and general acceptance, while
it does not exclude origination by statute. 'Procedure established by' may well
be taken to mean what the Privy Council referred to mean what the Privy Council
referred to in King Emperor v. Benoari Lal Sharma AIR 1945 Privy Council 48 as
' the ordinary and well established criminal procedure,' that is to say, those
settled usages and normal modes of proceeding sanctioned by the Criminal
Procedure Code which is the general law of Criminal Procedure in the country
(p. 205).
Fazl Ali, J. frowned on emasculating
the procedural substantiality of Article 21 and read into it those essentials
of natural justice which made processual law humane. The learned 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 presence for procedure. (emphasis added).
In short, fair adjectival law is the
very life of the life-liberty fundamental right ( Article 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 article
gives complete immunity against the exercise of despotic power by the
executive. It further gives immunity against invalid laws, which contravene the
Constitution. It gives also further guarantee that in its true concept there
should be some form of proceeding before a person can be condemned either in
respect of his life or his liberty. It negatives the idea of a fantastic,
arbitrary and oppressive form of proceedings." (emphasis added)
125. In sum, Fazl Ali, J., struck the
chord, which does accord with a just processual system where liberty is likely
to be the victim. Maybe, the learned Judge stretched it a little beyond the
line but in essence his norms claim my concurrence.
126. In John v. Rees (1969)2 All
England Reporter 274, the true rule, as implicit in any law, is set
down:
"
If there is any doubt, the applicability of the principles will be given the
benefit of doubt."
And Lord Denning on the theme of
liberty, observed in Schmidt v. Secy. of State (1969) 2 Ch 149:
"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:
127. It is a mark of interpretative
respect for the higher norms our founding fathers held dear in affecting the
dearest rights of life and liberty so to read Article 21 as to result in a
human order lined with human justice. And running right through Articles 19 and
14 is present this principle of reasonable procedure in different shades. A
certain normative harmony among the articles is thus attained, and I hold Article
21 bears in his bosom the construction of fair procedure legislatively
sanctioned. No Passport Officer shall be mini-Caesar nor Minister incarnate
Caesar in a system where the rule of law reigns Supreme.
128. My clear conclusion on Article 21
is that liberty of locomotion into alien territory cannot be unjustly forbidden
by the Establishment and passport legislation must take processual provisions
which accord with fair norms, free from extraneous pressure and, by and large
complying with natural justice. Unilateral arbitrariness, police dossiers,
faceless affiants, behind-the-back materials, oblique motives and the
inscrutable face of an official sphinx do not fill the 'fairness' bill subject,
of course, to just exceptions and critical contexts. This minimum once
abandoned, the Police State slowly builds up which saps the finer substance of
our constitutional jurisprudence. Not party but principle and policy are the
keystone of our Republic.
129. Let us not forget that Article 21
clubs life with liberty and when we interpret the colour and content of
'procedure established by law' we must be alive to the deadly peril of life
being deprived without minimal processual justice legislative callousness
despising 'hearing' and fair opportunities of defence. And this realisation
once sanctioned its exercise will swell till the basic freedom is flooded out.
Mark back to Article 10 of the Universal Declaration to realise that human
rights have but a verbal hollow if the protective armour of audi alteram partem
is deleted. When such pleas are urged in the familiar name of pragmatism public
interest or national security, courts are on trial and must prove that civil
liberties are not mere rhetorical material for lip service but the obligatory
essence of our hard-won freedom. A Republic - if you Can Keep It - is the
caveat for counsel and court. And Tom Paine, in his Dissertation on First
Principles of Government, sounded the tocsin:
"He
that would make his own liberty secure must guard even his enemy from oppression;
for if he violates this duty, he establishes a precedent that will reach to
himself".
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 Establishment's tendency to enforce through conformity but is the resource
of social change. "The reasonable man", says G. B. Saw;
"Adapts
himself to the word: the unreasonable one persists in trying to adapt the world
to himself. Therefore, all progress depends on the unreasonable man."
(George Bernard Shaw in 'Maxims for Revolutionists')
'Passport'
peevishness is a suppressive possibility, and so the words of Justice Jackson
(U. S. Supreme Court) may be apposite:
"Freedom
to differ is not limited to things that do not matter much. That would be a
mere shadow of freedom. The test of its substance is the right to differ as to
things that touch the heart of the existing order."
(West
Virginia State Board of Education v. Barnotte 319 US 624 (1943).
130. Under our constitutional order,
the price of daring dissent shall not be passport forfeit.
131. The impugned legislation, Sections
5, 6 and
10 especially, must be tested even under
Article 21 on cannons of processual justice to the people outlined above.
Hearing is obligatory-meaningful hearing flexible and realistic, according to
circumstances, but not ritualistic and wooden. In exceptional cases and
emergency situations, interim measures may be taken, to avoid the mischief of
the passportee becoming an escapee before the hearing begins, 'Bolt the stables
after the horse has been stolen' is not a command of natural justice. But soon
after the provisional seizure, a reasonable hearing must follow, to minimise
procedural prejudice. And when a prompt final order is made against the
applicant or passport holder the reasons must be disclosed to him almost
invariably save in those dangerous cases where irreparable injury will ensue to
the State. A government, which revels in secrecy in the field of people's
liberty not only, acts against democratic decency, but busies itself with its
own burial. That is the writing on the wall if history were teacher, memory our
mentor and decline of liberty not our unwitting endeavour. Public power must
rarely hide its heart in an open society and system.
132. I now skip Article 14 since I agree fully with all that my learned
brother Bhagwati J. has said. That article has a pervasive processual potency
and versatile quality, egalitarian in its soul and allergic to discriminatory
diktats. Equality is the antithesis of arbitrariness and ex cathedra ipse dixit
is the ally of demagogic authoritarianism. Only knight-errants of 'executive
excesses' - if we may use a current cliche - can fall in love with the Dame of
despotism, legislative or administrative. If this Court gives in here it gives
up the ghost. And so it is that I insist on the dynamics of limitations on
fundamental freedoms as implying the rule of law; 'Be you ever so high, the law
is above you.'
133. A minor pebble was thrown to
produce a little ripple. It was feebly suggested that the right to travel
abroad cannot be guaranteed by the State because it has no extra-territorial
jurisdiction in foreign lands. This is a naive misconception of the point
pressed before us. Nobody contends that India should interfere with other
countries and their sovereignty to ensure free movement of Indians in those
countries. What is meant is that the Government of India should not prevent by
any sanctions it has over its citizens from moving within any other country if
that other country has no objection to their travelling within its territory.
It is difficulty to understand how one can misunderstand the obvious.
134. A thorny problem debated
recurrently at the bar, turning on Article 19. demands some juristic response
although avoidance of overlap persuades me to drop all other questions
canvassed before us. The Gopalan case verdict with the cocooning of Article 22
into a self-contained code, has suffered super-session at the hands of R. C.
Cooper case. By way of aside, the fluctuating fortunes of fundamental rights,
when the prolatarist and the proprietarist have asserted them in Court,
partially provoke sociological research and hesitantly project the Cardozo
thesis of sub -conscious forces in judicial noesis when the cycloramic review
starts from Gopalan case moves on to in re: Kerala Education Bill and then on
to All India Bank Employees Union, next to Sakal Newspapers case crowning in
Cooper case and followed by Bennett Coleman case and Sambu Nath Sarkar case. Be
that as it may, the law is now settled as I apprehend it, that no article in
Part III is an island but port of a continent, and the conspectus of the whole
part gives the direction and correction needed for interpretation of these
basic provisions. Man is not dissectible into separate limbs and, likewise,
cardinal rights in an organic constitution, which make man human, have a
synthesis. The proposition is indubitable that Article 21 does not, in a given
situation, exclude Article 19 if both rights are
breached.
135. We may switch to Article 19 very briefly and travel along another street
for a while. Is freedom of extra-territorial travel to assure which is the
primary office of an Indian passport, a facet of the freedom of speech and
expression, of profession or vocation under Article 19? My total consensus with
Shri Justice Bhagwati jettisons from this judgment the profusion of precedents
and the mosaic of many points and confines me to some fundamentals confusion on
which, with all the clarity on details, may mar the conclusion. It is a
salutary thought that the summit court should not interpret constitutional
rights enshrined in Part III to choke its life-breath or chill its elan vital
by processes of legalism overruling the enduring values burning in the bosoms
of those who won our Independence and drew up our founding document. We must
also remember that when this Court lays down the law, not ad hoc tunes but
essential notes, not temporary tumult but transcendental truth must guide the
judicial process in translating into authoritative notation the mood music of
the Constitution.
136. While dealing with Article 19 vis a vis freedom to travel abroad, we have
to remember one spinal indicator. True high constitutional policy has
harmonised individual freedoms with holistic community good by inscribing
exceptions to Article 19 (1) in Article 19 (2) to (6). Even so, what is fundamental is
the freedom, not the exception. More importantly, restraints are permissible
only to the extent they have nexus with the approved object. For instance, in a
wide sense, 'the interests of the general public' are served by a family
planning programme but it may be constitutional impertinence to insist that
passport may be refused if sterlisation certificates were not produced.
Likewise it is in public interest to widen streets in cities but monstrous to
impound a passport because its holder has declined to demolish his houses which
projects into the street line. Sure, the security of State is a paramount
consideration but can Government, totalitarian fashion, equate Party with
country and refuse travel document because, while abroad, he may criticise the
conflicting politics of the Party-in-power or the planning economics of the
Government of the day? Is it conceivable that an Indian will forfeit his right
to go abroad because his flowing side-burns or sartorial vagaries offend a
high-placed authority's sense of decency? The point is that liberty can be
curtailed only if the grounds listed in the saving sub-articles are directly,
specifically, substantially and imminently attracted so that the basic right
may not be stultified. Restraints are necessary and validly made by statute,
but to paint with an over-broad brush power to blanket-ban travel abroad is to
sweep overly and invade illicitly. The law of fear' cannot reign where the
proportionate danger is containable. It is a balancing process, not
over-weighted one way or the other. Even so, the perspective is firm and fair.
Courts must not interfere where the order is not perverse, unreasonable, mala
fide or supported by material. Under our system court writs cannot run
government, for, then judicial review may tend to be a judicial coup. But
'lawless' law an executive excess must be halted by Judge-power lest the
Constitution be subverted by branches deriving credentials from the
Constitution. An imperative guideline by which the Court will test the
soundness of legislative and executive constraint is, in the language of V. G.
Row (1952 SCR 597) this:
"The
reasonableness of a restriction depends upon the values of life in a society,
the circumstances obtaining at a particular point of time when the restriction
is imposed, the degree and the urgency of the evil sought to be controlled and
similar others."
137. What charaterises 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 to 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 not
in accord with constitutional provisions, beyond abridgment by the two branches
of government. In the context of scary expressions like 'security', 'public
order', 'public interest' and 'friendly foreign relations', we must warn
ourselves that not 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.
138. The learned Attorney General
argued that the right to travel abroad was no part of Article 19 (1) (a), (b), (c), (f) or (g) and so to
taboo travel even unreasonably does not touch Article 19. As a component
thereof, as also by way of separate submission, it was urged that the direct
effect of the passport law (and refusal thereunder) was not a blow on freedom
of speech, of association or of profession and, therefore, it could not be
struck down even if it overflowed Article 19
(2), (4) and (6). This presentation poses the issue, 'what is the profile of
our free system?' Is freedom of speech integrally interwoven with locomotion?
Is freedom of profession done to death if a professional, by passport refusal
without reference to Article 19
(f), is inhibited from taking up a job offered abroad? Is freedom of
association such a hot-house plant that membership of an international
professional or political organisation can be cut off on executive-legislative
ipse dixit without obedience to Article 19
(4)? This xenophobic touch has not been attested by the Constitution and is not
discernible in its psyche. An anti-international pathology shall not afflict
our National Charter. A Human Tomorrow on Mother Earth is our cosmic
constitutional perspeive (See Article 51).
139. To my mind, locomotion is, in some
situations necessarily involved in the exercise of the specified fundamental
rights as an associated or integrated right. Travel, simpliciter, is peripheral
to and not necessarily fundamental in Article 19. Arguendo, free speech is
feasible without movement beyond the country, although soliloquies and solo
songs are not the vague in this ancient land of silent saints and gyrating
gurus, bhajans and festivals. Again, travel may ordinarily be 'action' and only
incidentally 'expression', to borrow the Zemel (1966) 14 Law Ed 2d 179 diction.
140. Movement within the territory of
India is not tampered with by the impugned order, but that is not all. For, if
our notions are en cowrrant, it is common place that the world - the family of
nations - vibrates, and men - masses of men - move and 'jet' abroad and abroad,
even n Concorde, on a scale unknown to history. Even thoughts, ideologies and
habits travel beyond. Tourists crowd out airline services; job-seekers rush to
passport offices; lecture tours, cultural exchanges, trans-national evangelical
meets, scientific and scholarly studies and workshops and seminars escalate,
and international associations abound - all for the good of world peace and
human progress, save where are involved high risks to sovereignty, national
security and other substantial considerations which Constitutions and Courts
have readily recognised. Our free system is not so brittle or timorous as to be
scared into tabooing citizens' trips abroad, except conducted tours or approved
visits sanctioned by the Central Executive and indifferent to Article 19.
Again, the core question arises: Is movement abroad so much a crucial part of
free speech, free practice of profession and the like that denial of the first
is a violation of the rest?
141. I admit that merely because
speaking mostly involves some movement, therefore, 'free speech anywhere is
dead if free movement everywhere is denied' does not follow. The constitutional
lines must be so drawn that the constellation of fundamental rights does not
expose the peace, security and tranquility of the community to high risk. We
cannot overstretch free speech to make it an inextricable component of travel.
142. Thomas Emerson has summed the
American Law which rings a bell even in the Indian system:
"The
values and functions of the freedom of expression in a democratic polity are
obvious. Freedom of Expression is essentially as a means of assuring individual
self-fulfillment. The proper end of man is the realisation of his character and
potentialities as a human being. For the achievement of this self-realisation
the mind must be free."
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 aspect 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, is when
it is a undertaken by a reporter to gather news, a scholar to lecture, a
student to obtain information or simply an ordinary citizen in order to expand
his understanding of the world. Nevertheless, there are so many other aspects
to travel abroad and functionally it requires such different types of
regulation that at least as a general proposition, it would have to be considered
'action'. An action, it is a 'liberty' protected by the due process clause of
the Fifth and Fourteenth Amendments. The first amendments is still relevant in
two ways: (1) There are sufficient elements of expression in travel abroad so
that the umbrella effect of the first amendment comes into play, thereby
requiring the courts to apply due process and other constitutional doctrines
with special care; (2) conditions imposed on travel abroad based on conduct
classified as expression impair freedom of expression and hence raise direct
First Amendment questions."
Travel is more than speech: it is
speech brigaded with conduct, in the words of Justice Douglas:
"Restrictions
on the right to travel in times of peace should be so particularized that a First
Amendment right is not precluded unless some clear countervailing national
interest stands in the way of its assertion."
143. I do not take this as wholly valid
in our Part III scheme but refer to it as kindred reasoning.
144. The delicate, yet difficult, phase
of the controversy arrives where free speech and free practice of profession
are inextricably interwoven with travel abroad. The Passports Act, in terms,
does not inhibit expression and only regulates action - to borrow the
phraseology of Chief Justice Warren in Zemel (1966) 14 Law Ed 2d 179. But we
have to view the proximate and real consequence of thwarting trans-national
travel through the power of the State exercised under Section 3 of the Passports Act read with Sections 5, 6 and
10. If a right is not in express terms
fundamental within the meaning of Part III, does not escape Article 13, read
with the trammels of Article 19, even if the immediate impact, the substantial
effect, the proximate import or the necessary result is prevention of free
speech or practice of one's profession? The answer is that associated rights,
totally integrated, must enjoy the same immunity. Not otherwise.
145. Three sets of cases may be thought
of. Firstly, where the legislative provision or executive order expressly
forbids exercise in foreign lands of the fundamental right while granting
passport. Secondly, there may be cases where even if the order is innocent on
its face, the refusal of permission to go to a foreign country may, with
certainty and immediacy, spell denial of free speech and professional practice
or business. Thirdly, the fundamental right may itself enwomb locomotion
regardless of national frontiers. The second and third often are blurred in
their edges and may overlap.
146. The first class may be
illustrated. If the passport authority specifically conditions the permission
with a direction not to address meetings abroad or not to be a journalist or
professor in a foreign country, the order violates Article 19 (1) (a) or (f) and stands voided unless
Article 19 (2) and (6) are complied with. The
second category may be exemplified and examined after the third which is of
less frequent occurrence. If a person is an international pilot, astronaut,
Judge of the International Court of Justice, Secretary of the World Peace
Council, President of a body of like nature, the particular profession not only
calls for its practice travelling outside Indian territory but its core itself
is international travel. In such an area, no right of exit, no practice of profession
or vocation. Similarly, a cricketer or tennis player recruited on a world tour.
Free speech may similarly be hit by restriction on a campaigner for liberation
of colonial peoples or against genocide before the United Nations Organisation.
Refusal in such cases is hit on the head by negation of a national passport and
can be rescued only by compliance with the relevant saving provisions in
Article 19 (2), (4) or (6).
147. So far is plain sailing, as I see
it. But the navigation into 'the penumbral zone of the second category is not
easy.
148. Supposing a lawer or doctor,
expert or exporter, missionary or guru, has to visit a foreign country
professionally or on a speaking assignment. He is effectively disabled from discharging
his pursuit if passport is refused. There the direct effect, the necessary
consequence, the immediate impact of the embargo on grant of passport (or its
subsequent impounding or revocation) is the infringement of the right to
expression or profession. Such infraction is unconstitutional unless the
relevant part of Article 19 ( 2) to(6) is complied
with. In dealing with fundamental freedom substantial justification alone will
bring the law under the exceptions. National security, sovereignty, public
order and public interest must be of such a high degree as to offer a great
threat. These concepts should not be devalued to suit the hyper-sensitivity of
the executive or minimal threats to the State. Our nation is not so
pusillanimous or precarious as to fall or founder if some miscreants pelt
stones at its fair face from foreign countries. The dogs may bark, but the
caravan will pass. And the danger to a party in power is not the same as
rocking the security or sovereignty of the State. Sometimes, a petulant
Government which forces silence may act unconstitutionally to forbid criticism
from afar, even if necessary for the good of the State. The perspective of free
critism with its limits for free people everywhere, all true patriots will
concur, is eloquently spelt out by Sir Winston Churchill on the historic
censure motion in the Commons as Britain was reeling under defeat at the hands
of Hitlerite hordes:
"This
long debate has now reached its final stage. What a remarkable example it has
been of the unbridled freedom of our Parliamentary institutions in time of war.
Everything that could be thought of or raked up has been used to weaken
confidence in the Government, has been used to prove that Ministers are
incompetent and to weaken their confidence in themselves, to make the Army
distrust the backing it is getting from the civil power, to make workmen lose
confidence in the weapons they are striving so hard to make, to present the
Government as a set of nonentities over whom the Prime Minister towers, and
then to undermine him in his own heart, and if possible, before the eyes of the
nation. All this poured out by cable and radio to all parts of the world,to the
distress of all our friends and to the delight of all out foes. I am in favour
of this freedom, which no other country would use, or date to use, in times of
mortal peril such as those through which we are passing."
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 vagorous 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.
149. A concluding caveat validating my
detour. Our country, with all its hopes, all its tears and all its fears, must
never forget that 'freedom is recreated year by year, that 'freedom is as
freedom does', that we have gained a republic 'if we can keep it' and that the
watershed between a police state and a people's raj is located partly through
its passport policy. Today, a poor man in this country despairs of getting a
passport because of invariable police enquiry,insistence on property
requirement and other avoidable procedural obstacles. And if a system of secret
informers, police dossiers, faceless whisperers and political tale-bearers,
conceptualised and institutionalised 'in public interest', comes to stay, civil
liberty is legicidally constitutionalised - a consummation constantly to be
resisted. The merits of a particular case apart, the policing of a people's
right of exit or entry is fraught with peril to liberty unless policy is
precise, operationally respectful of recognised values and harassment proof.
Bertrand Russel has called attention to a syndrome the Administration will do
well to note:
"We
are all of us a mixture of good and bad impulses that prevail in an excited
crowd. There is in most men an impulse to persecute whatever is felt to be
'different'. There is also a hatred of any claim to superiority, which makes
the stupid many hostile to the intelligent few. A motive such as fear of
communism affords what seems a decent moral excuse for a combination of the
herd against everything in any way exceptional. This is a recurrent phenomenon
in human history. Wherever it occurs, its results are horrible."
(Foreword
by Bertrand Russell to Freedom is as Freedom Does - Civil Liberties Today - by
Corliss Lamout. New York, 1956).
While interpreting and implementing the
words of Articles 14, 19 and 21, we may keep J. B. Priestley'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 same control. Lost in
its elaboration, even some men of goodwill begin to forget the essential
humanity this machinery should be serving. They are now so busy testing,
analysing, and reporting on bath water that they cannot remember having thrown
the baby out of the window."
(Introduction
by H. H. Wilson, Associate Professor of Political Science, Princeton University
to Freedom is as Freedom Does by Corliss Lamont, ibid p. xxi), I have divagated
a great deal into travel constitutionality in the setting of the story of the
human journey, even though such a diffusion is partly beyond the strict needs
of this case. But judicial travelling, like other travelling, is almost like
'talking with men of other centuries and countries'.
150. I agree with Sri Justice Bhagwati,
notwithstanding this supplementary.
151. Kailasam, J. (Majority
view):- . This petition is filed by Mrs. Maneka Gandhi under Article 32 of the Constitution of India against the
Union of India and the Regional Passport Officer for a writ of certiorari for
calling for the records of the case including in particular the order dated
July 2, 1977 made by the Union of India under Section 10 (3) (c) of the Passports Act, Act 15 of
1967, impounding the passport of the petitioner and for quashing the said
order.
152. The petitioner received a letter
dated July 2, 1977 on July 4, 1977 informing her that it had been decided by
the Government of India to impound her passport. The letter read as follows:
"You
may recall that a passport No. K-869668 was issued to you by this office on
1-6-76. It has been decided by the Government of India to impound your above
passport under Section 10 (3) (c) of the
Passports Act, 1967 in public interest.
You
are hereby required to surrender your passport K-869668 to this office within
seven days from the date of the receipt of this letter."
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
Passports Act, 1967. It has further been decided by the Government in the
interest of general public not to furnish you a copy of statement of reasons
for making such orders as provided for under Section 10
(5) of the Passports Act, 1967."
153. The petitioner submitted that the
order is without jurisdiction and not 'in the interest of general public.' The
validity of the order was challenged on various grounds. It was submitted that
there was contravention of Article 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 withholding of the reasons for the order
under Section 10 (5) is not justified in
law. On July 8, 1977 the petitioner prayed for an ex parte 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 External Affairs that the petitioner and her husband had arrived at
Bombay on the afternoon of July 1, 1977 and that information had been received
that there was likelihood of the petitioner leaving the country. The
authorities contacted the Minister of External Affairs and the 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.
154. An application Civil Misc.
Petition No. 6210 of 1977 was filed by the petitioner for leave to urge
additional grounds in support of the writ petition and a counter to this
application was filed on behalf of the Ministry of External Affairs on August
18, 1977.
155. A petition by Adil Shahryar was
filed seeking permission to intervene in the writ petition and it was ordered
by this Court. During the hearing of the writ petition, Government produced the
order disclosing the reasons for impounding the passport. The reasons given are
that it was apprehended that the petitioner was attempting or was likely to
attempt to leave the country and thereby hamper the functioning of the
Commissions of Inquiry. According to the Government, the petitioner being the
wife of Shri Sanjay Gandhi, there was likelihood of the petitioner being
questioned regarding some aspects of the Commission. In the counter-affidavit
it was further alleged that there was good deal of evidence abroad and it would
be unrealistic to over-look the possibility of tampering with it or making it
unavailable to the Commission which can be done more easily and effectively
when an interested person is abroad. So far as this allegation was concerned as
it was not taken into account in passing the order it was given up during the
hearing of the writ petition. The only ground on which the petitioner's
passport was impounded was that she was likely to be examined by the Commission
of Inquiry and her presence was necessary in India.
156. Several questions of law were
raised. It was submitted that the petitioner was a journalist by profession and
that she intended to proceed to West Germany in connection with her
professional duties, as a journalist and that by denying her the passport not
only was her right to travel abroad denied but her fundamental rights
guaranteed under Article 19 (1) were infringed. The
contention was that before an order passed under Article 21 of the Constitution could be valid, it
should not only satisfy the requirements of that article, namely that the order
should be according to the procedure established by law, but also should not in
any way infringe on her fundamental rights guaranteed under Article 19 (1). In other words, the submission was that
the right to personal liberty cannot be deprived without satisfying the
requirements of not only Article 21, but also Article 19. In addition the
provisions of Section 10 (3) (c) were challenged
as being ultra vires of the powers of the legislature and that in any event the
order vitiated by the petitioner not having been given an opportunity of being
heard before the impugned order was passed. It was contended that the
fundamental rights guaranteed under Article 19
(1) particularly the right of freedom of speech and the right to practise
profession were available to Indian citizens not only within the territory of
India but also beyond the Indian territory and by preventing the petitioner
from travelling abroad her right to freedom of speech and right to practice
profession outside the country were also infringed. The plea is that the
fundamental rights guaranteed under Article 19 of
India but outside the territory of India as well.
157. The question that arises for
consideration is whether the Fundamental Rights conferred under Part III and
particularly the rights conferred under Article 19
are available beyond the territory of India. The rights conferred under Article
19 (1) (a), (b), (c), (f) and (g) are,
(a)
freedom of speech and expression;
(b)
to assemble peaceably and without arms;
(c)
to form associations or unions;
x
x x
(f)
to acquire, hold and dispose of property; and
(g)
to practise any profession, or to carry on any occupation, trade or business;
The rights conferred under Article 19 (1) (d) and (e) being limited of India the
question of their extra-territorial application does not arise.
158. In order to decide this question,
I may consider the various provisions of the Constitution, which throw some
light on this point. The Preamble to the Constitution provides that the people
of India have solemnly resolved to constitute India into a Sovereign Socialist
Secular Democratic Republic and to secure to all its citizens:
Justice,
social, economic and political; Liberty of thought, expression, belief faith
and worship; Equality of status and of opportunity;
and
to promote among them all Fraternity assuring the dignity of the individual and
the unity of the nation.
By the Preamble, India is constituted
as a Democratic republic and its citizens secured certain rights. While a
reading of the Preamble 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.
159. Article 12 of
the Constitution defines "the State" as including the Government and
Parliament of India and the Government and the Legislature of each of the
States, and all local or other authorities within the territory of India or
under the control of the Government of India. Article 13 provides that laws
that are inconsistent with or in derogation of Fundamental Rights are to that
extent void. Article 13 (1) provides that all laws in force in the territory of
India immediately before the commencement of this Constitution that are
referred to in the Article will have to be looked into. Before that Article 13
(2) may be noticed which provides that the State shall not make any law which
takes away or abridges the rights conferred by Part III, and any law made in
contravention of this clause shall, to the extent of thecontravention, be void.
The word "law" in the he Article is defined as:
(a)
"law includes any Ordinance,order bye-law, rule, regulation, notification,
custom or usage having in the territory of India the force of law; and
(b)
"laws in force" includes laws passed or made by a Legislature or
other competent authority in the territory of India before the commencement of
this Constitution and not previously repealed, notwithstanding that any such
law or any part thereof may not be then in operation either at all or in
particular areas.
While the applicability of the custom
and usage is restricted to the territory of India "law" may have an
extra-territorial application.
160. In distributing the legislative
powers between the Union and the States Article 248 provides that Parliament
may make laws for the whole of any part of the territory of India and the
Legislature of a State may make laws for the whole or any part of the State.
Article 245 (2) provides that no law made by Parliament shall be deemed to be
invalid on the ground that it would have extra-territorial operation. This
article makes it clear that a State law cannot have any extra-territorial
operation while that of the Parliament can have. The Parliament has undoubted
power to enact law having extra-territorial operation while that of the
Parliament can have. The Parliament has undoubted power to enact law having
extra-territorial application. In England Section 3 of the Statute of West
minister, 1931 (22 Geo. V. C. 4) provides:
"It
is hereby declared and enacted that the Parliament of a Dominion has full power
to make laws having extra-territorial operation."
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 or 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 Att. Gen. for Alberta v. Huggard Assets,
Ltd. (1953) AC 420 and C.E.B. Draper and Son, Ltd. v. Edward
Turner and Son, Ltd. (1964)3 All England Reporter 148 at p. 150:
Marwell comments on the above passages thus "These statements, however,
perhaps oversimplify the position." The decisions cited will be referred
to in due course.
161. Craies on Statute Law (Sixth Ed.)
at p. 447 states that ".... an Act of the legislature will bind the
subjects of this realm, both within the kingdom and without, if such is its intention.
But whether any particular Act of Parliament purports to bind British subjects
abroad will always depend upon the intention of the legislature, which must be
gathered from the language of the Act in question." Dicey in his
Introduction to the Study of the Law of the Constitution (1964 Ed.) at page
liii states the position thus: "Parliament normally restricts the
operation of legislation to its own territories, British ships wherever they
may be being included in the ambit of territory. - Parliament does on
occasions, however, pass legislation controlling the activities of its own
citizens when they are abroad." Salmond in his book on Jurisprudence
(Twelfth Ed.) distinguishes between the territorial enforcement of law and the
territoriality of law itself. At p. 11 the author states: "Since
territoriality is not a logically necessary part of the idea of law, a system
of law is readily conceivable, the application of which is limited and
determined not by reference to territorial considerations, but by reference to
the personal qualifications of the individuals over whom jurisdiction is
exercised." According to the text-books above referred to, the position is
that a law is normally applicable within the territory, but can be made
applicable within the territory, but can be made applicable to its citizens
wherever they may be. Whether such extra-territorial applicability is intended
or not will have to be looked for in the legislation.
162. I will now refer to the decisions
of courts on this subject.
163. In Niboyet v. Niboyet,
(1878)48 LJP 1 (at p. 10) the Court of Appeal stated: "It is true
that the words of the statute are general, but general words in a statute have
never, so far as Iam aware, been interpreted so as to extend the action of the
statute beyond the territorial authority of the Legislature. All criminal
statutes are in their terms general; but they apply only to offences committed
within the territory or by British subjects. When the Legislature intends the
statute to apply beyond the ordinary territorial authority of the country, it
so states expressly in the statute, as in the Merchant Shipping Acts, and in
some of the Admiralty Acts." In the Queen v. James, on (1896)2 QB
425 (at p. 430), the Chief Justice Lord Russel stated the position
thus: "It may be said generally that the area within which a statute is to
operate, and the persons against whom it is to operate,are to be gathered from
the language and purview of the particular statute. In Cooke v. The
Charles A. Vogeler Company (1901) AC 102 (at p. 107), the House of
Lords in dealing with the jurisdiction of the Court of Bankruptcy observed that
"English legislation is primarily territorial, and it is no departure from
that principle to say that a foreigner coming to this country and trading here,
and here committing an act of bankruptcy, is subject to our laws and to all the
incidents which those laws and to all the incidents which those laws enact in
such a case; while he is here, while he is trading, even if not actually
domiciled, he is liable to be made a bankrupt like a native citizen....... It
is limited in its terms to England; and I think it would be impossible to
suppose that if the Legislature had intended so broad a jurisdiction as is
contended for here, it would not have conferred it by express enactment."
In Tomalin v. S. Pearson and Son
Limited (1909)2 KB 61 the Court of Appeal dealing with the application
of the Workmen's Compensation Act, 1906, quoted with approval a passage from
Maxwell on Interpretation of Statutes at p. 213 wherein it was stated :
"In
the absence of an intention clearly expressed or to be inferred from its
language, or from the object or subject-matter or history of the enactment, the
presumption is that Parliament does not design its statutes to operate beyond
the territorial limits of the United Kingdom."
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 Attorney-General for
Alberta v. Huggard Assets Ltd., (1953) AC 420, 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 England Reporter 148 (C. E. B. Draper and Son Ltd. v. Edward
Turner and Son Ltd.) approved of the proposition laid down in Attorney General
for Alberta v. Huggard Assets Ltd., observing "Prima facie an Act of the
United Kingdom Parliament, unless it provides otherwise, applies to the whole
of the United Kingdom and to nothing outside the United Kingdom."
164. 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., AIR 1944 Federal Court 51, 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 the
Indian Legislature by the Constitution Act. After discussing the case-law on
the subject at p. 61 regarding the making of laws for the whole or any part of
British India on topics in Lists I and III of Schedule 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 and Co. Ltd. v.
Commissioner of Income-tax, Bombay, Sind and Baluchistan, 1945 FCR 65,
the Federal Court held that there was no element of extra-territoriality in the
impugned provisions of the Indian Income Tax Act, and even if the provisions
were in any measure extra-territorial in their effect, that was not a ground
for holding them to be ultra vires the Indian Legislature. In Mohammed Mohy-ud-Din
v. The King Emperor, 1946 FCR 94, the Federal Court was considering the
validity of the Indian Army Act, 1911. 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,
1911, conferred jurisdiction on the court-martial to try non-British subjects
for offenses 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 appellant's case. It is true that every
statute is to be so interpreted so far as its language admits, as not to be
inconsistent with the comity of nations or with the established rules of
Inter-national Law. Whatever may be the rule of International Law as regards
the ordinary citizen, we have not been referred to any rule of International
Law or principle of the comity of nations which is inconsistent with a State
exercising disciplinary control over its own armed forces, when those forces
are operating outside its territorial limits."
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.
165. It is now necessary to examine the
various articles of Part III of the Constitution to find out whether any
intention is expressed to make any of the rights available extra-territorially.
The application of Article 14 is expressly limited to
the territory of India as it lays down that "The State shall not deny to
any person equality before the law or the equal protection of the laws within
the territory of India." Article 15 relates to prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth, and
Article 16 deals with equality of opportunity in matters of public employment.
By their very nature the two Articles are confined to the territory of India.
So also Articles 17 and 18 which deal with abolition of untouchability and
abolition of titles. Before dealing with Arts 19 and 21 with which we are now
concerned the other articles may be referred to in brief. Articles 20 and 22
can have only territorial application. Articles 23 and 24 which relate to right
against exploitation and Articles 25 to 28 which relate to freedom of
conscience and free profession, practice and propagation of religion etc. prima
facie are applicable only to the territory of India. At any rate there is no
intention in these Articles indicating extra-territorial application. So also
Articles 29 and 30 which deal with cultural and educational rights are
applicable only within the territory of India. Article 31 does not expressly or
impliedly have any extra-territorial application. In this background it will
have to be examined whether any express or implied intention of
extra-territorial applicability is discernible in Articles 19 and 21.
166. Article 19
(1) (a) declares the right to freedom of speech and expression. While it is
possible that this right may have extra-territorial application, it is not
likely that the framers of the Constitution intended the right of assemble
peaceably and without arms or to form associations or unions, or to acquire,
hold and dispose of property or to practise any profession, or to carry on any occupation,
trade or business, to have any extraterritorial application, for such rights
could not be enforced by the State outside the Indian territory. The rights
conferred under Article 19 are fundamental rights
and Articles 32 and 226 provide that these rights are guaranteed and can be
enforced by the aggrieved person by approaching the Supreme Court or the High
Courts. Admittedly, the rights enumerated in Article 19
(1) (a), (b), (c), (f) and (g) cannot be enforced by the State and in the
circumstances there is a presumption that the Constitution-makers would have
intended to guarantee any right which the State cannot enforce and would have
made a provision guaranteeing the rights and securing them by recourse to the
Supreme Court and the High Courts.
167. The restriction of the right to
move freely throughout the territory of India and the right to reside and stay
in any part of the territory of India is strongly relied upon as indicating
that in the absence of such restrictions the other rights are not confined to
the territory of India. The provisions in Article 19
(1) (d) and (e) i.e. the right to move freely throughout the territory of India
and to reside and settle in any part of the territory of India have historical
significance. In A.K. Gopalan v. The State of Madras, AIR 1950 Supreme
Court 27, Kania C. J. said that in the right "to move freely
throughout the territory India" the emphasis was not on the free movement
but on the right to move freely throughout the territory of India. The
intention was to avoid any restriction being placed by the State hampering free
movement throughout the territory of India. It is a historical fact that there
were rivalries between the various States and the imposition of restraint on
movement from State to State by some States was not beyond possibility. In the
two clauses 19 (1) (d) and (e) the right "to move freely throughout the
territory of India" and "to reside and settle in any part of the
territory of India" the "territory of India' is mentioned with the
purpose of preventing the States from imposing any restraint. From the fact
that the words 'territory of India ' are found in these two clauses the
contention that the other freedoms are not limited to the territory of India
for their operation cannot be accepted. In Virendra v. The State of
Punjab, 1958 SCR 308, S. R. Das, C. J., who spoke on behalf of the
Constitution Bench stated: "The point to be kept in view is that several
rights of freedom guaranteed to the citizens by Article 19 (1) are exercisable by them throughout and
in all parts of the territory of India". The view that the rights under
Article 19 (1) are exercisable in the territory of
India has not been discussed. Far from Article 19
(1) expressing any intention expressly or impliedly of extra-territorial
operation the context would indicate that its application is intended to be
only territorial. The right under Article 19
(1) (b) and (c) to assembly peaceably and without arms and to form associations
or unions could not have been intended to have any extra-territorial
application as it will not be in accordance with the accepted principles of
international law. As the rights under Article 19
(1) (b) and (c) cannot be enforced outside India the inference is that no
extra-territorial application was intended. So also regarding the rights
conferred under Articles 19 (1) (f) and (g) i.e. to acquire, hold and dispose
of property; and to practise any profession, or to carry on any occupation,
trade or business, would not have been intended to be applicable outside India.
168. It was submitted that when the
Constitution was framed the founding fathers were influenced by the United
Nations' Universal Declaration of Human Rights which was made in December, 1948
and they thought it fit to make the fundamental rights available to the Indian
citizens throughout the world. The history of the conception of human rights
may be shortly traced. The main task of the Human Rights' Commission which was
set up by the United Nations was to draw an International Bill of Rights. The
Commission split this task into two documents: a short declaration of
principles and an elaborate treaty or covenant enforcing those principles so
far as practicable. The Universal Declaration of Human Rights was not intended
to be binding as law but to present the main ideals of human rights and
freedoms in order to inspire everybody, whether in or out of governments, to
work for their progressive realization. The Commission finished the Declaration
and it was promulgated by the U. N. Assembly on December 10, 1948. The
discussion about the Draft Indian Constitution took place between February and
October, 1948 and the Articles relating to the Fundamental Rights were
discussed in October, 1948, i.e. before the Universal Declaration of Human
Rights was promulgated by the U. N. Assembly on December 10, 1948. It is most
unlikely that before the Declaration of Human Rights was promulgated the
framers of the Indian Constitution decided to declare that the Fundamental
Rights conferred on the citizens would have application even outside India. The
Universal Declaration of Human Rights was not binding as law but was only a
pious hope for achieving a common standard for all peoples and all nations.
Article 13 of the Declaration which is material for our discussion runs as
follows:
Paragraph
1. Everyone has the right to freedom of movement and residence within the
borders of each State.
Paragraph
2. Everyone has the right to leave any country. including his own, and to
return to his country.
Paragraph
1 restricts the right of movement and residence specifically within the borders
of the country. The second paragraph aims at securing the right to leave any
country including his own and to return to his country. The Declaration at that
stage did not have any idea of conferring on the citizens of any country right
of movement beyond borders of the State or to freedom of speech or right to
assemble outside the country of origin. Even in the Americal Constitution there
is no mention of right to freedom of speech or expression as being available
outside America. Regarding the right of movement within the borders of the
State it is not mentioned as one of the freedoms guaranteed in the American
Constitution but everyone in the country takes it for granted that one can roam
at will throughout the United States.
169. 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 State 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.
170. In vain one looks to the American
law to find whether the citizens are granted any right of freedom of speech and
expression beyond the territory of the United States. The First Amendment
provides for freedom of speech and press along with freedom of religion.
Liberty of speech and liberty of press are substantially identical. They are
freedom to utter words orally and freedom to write, print and circulate words.
But this freedom of expression would be meaningless if people were not
permitted to gather in groups to discuss mutual problems and communicate their
feelings and opinions to governmental officers. The First Amendment therefore
provides that the people have the right to assemble peaceably and petition the
Government for redress of grievances. The petition for redress can only be
confined to the United States of America. In a recent address on Human Rights
Warren Christopher, U. S. Deputy Secretary of State reproduced in Shan. October
1977, stated before the American Bar Association in Chicago that the promotion
of Human rights has become a fundamental tenet of the foreign policy of the
Carter Administration. In explaining the conception of human rights and its practice
in America the Deputy Secretary stated that the efforts should be directed to
the most fundamental and important human rights all of which are
internationally recognised in the Universal Declaration of Human Rights which
the United Nations approved in 1948. While emphasising the three categories of
human rights (1) the right to be free from the governmental violation of the
integrity of the person; (2) the right to fulfilment of such vital needs as
food, shelter, health care and education; and (3) the right to enjoy civil and
political liberties, he stated that the freedom of thought, of religion, of
assembly, of speech, of the press, freedom of movement within and outside one's
own country; freedom to take part in government, were liberties which Americans
enjoy so fully, and too often take for granted, are under assault in many
places. It may be noted that while freedom of movement is referred to as both
within and outside one's own country the other rights such as freedom of
thought., of religion, of assembly, of speech, of press, are not stated to be
available outside one's own country. It is thus seen that except the right to
movement outside one's own country other rights are not available
extraterritorially even in America.
171. The fundamental rights under
Article 19 (1) of the Constitution are subject to
the restrictions that may be placed under Article 19
(2) to (6) of the Constitution. The fundamental rights are not absolute but are
subject to reasonable retrictions provided for in the Constitution itself. The
restrictions imposed are to be by operation of any existing law or making of a
law by the Legislature imposing reasonable restrictions. The scheme of the
Article, thus it while conferring fundamental rights on the citizens is to see
that such exercise does not affect the rights of other persons or affect the
society in general. The law made under Article 19
(2) to (6), imposes restriction on the exercise of right of freedom of speech
and expression, to assemble peaceably without arms etc. The restrictions thus
imposed, normally would apply only within the territory of India unless the
legislation expressly or by necessary implication provides for
extra-territorial operation. In the Penal Code, under Sections 3 and 4, the Act
is made specifically applicable to crimes that are committed outside India by
citizens of India. Neither in Article 19 of
the Constitution nor in any of the enactments restricting the rights under
Article 19 (2) is there any provision expressly or
by necessary implication providing for extra-territorial application. A citizen
cannot enforce his fundamental rights outside the territory of India even if it
is taken that such rights are available outside the country.
172. In the view that a citizen is not
entitled to the fundamental rights guaranteed under Article 19 outside the territorial limits of India the
contention of the learned counsel for the petitioner that by denying him the
passport to travel outside, India, his fundamental rights like freedom of
speech and expression, to assemble peaceably, to practice profession or to
carry on occupation, trade or business are infringed, cannot be accepted. The
passport of the petitioner was impounded on the ground that her presence in
connection with the Inquiry Commission may be necessary and in the interest of
public it was necessary to do so. The impugned order does not place any
restrictions on the petitioner while she is away from India. Hence the question
whether the State could impose such restraint does not arise in this case. As
the contention was that by impounding the passport the petitioner's fundamental
right of freedom of speech etc. outside the country was infringed, it became
necessary to consider whether the citizen had any such right.
173. It was strenuously contended that
the Legislature by invoking powers under Article 21 cannot deprive the
fundamental rights guaranteed under Article 19 at
any ate within the territory of India. It will now be considered whether an Act
passed under Article 21 should also satisfy the requirements of Article 19.
174. The submission was that Article 19 applies to laws made under Articles 20, 21
and 22 and the citizen is entitled to challenge the validity of an Act made
under Article 21 on the ground that it affects the rights secured to him under
Clause (1) of Article 19. Article 20 (1) provides that no person shall be
convicted of any offence except for violation of a law in force at the time of
the commission of the act charged as an offence, nor be subjected to a penalty
greater than that which might have been inflicted under the law in force at the
time of the commission of the offence. Article 22 deals with protection against
arrest and detention in certain cases, that is, in respect of preventive
detention.
175. It has been decided by this Court
in Gopalan's case, that in the case of punitive detention for offences under
the Penal Code, it cannot be challenged on the ground that it infringes the
rights specified under Article 19
(a) to (e) and (g) of the Constitution of India. Kania C. J. held:
"If
there is a legislation directly attempting to control a citizen's freedom of
speech or expression, or his right to assemble peaceably and without arms etc;
the question whether that legislation is saved by the relevant saving clause or
Article 19 will arise. If, however, the
legislation is not directly in respect of any of these subjects, but as a
result of the operation of other legislation, for instance, for punitive or
preventive detention, his right under any of these sub-clauses is abridged the
question of the application of Article 19
does not arise."
Fazl Ali J., though he dissented from
the majority view regarding the application of Article 19 to punitive detention observed as 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 word 'law' imposing restrictions on
the right to move freely."
The learned Judge, Justice Fazl 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, (1975) 1 SCR 778
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 Article 19 for its reasonableness. A law which attracts
Article 19, therefore, must be such as is capable of being tested to be
reasonable under clauses (2) to (5) of Article 19."
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 Article 19
and also adopted the preventive detention to prevent the greater evil by
imperiling 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.
176. Applying the same reasoning, it
is, contended on behalf of the State that when a person is deprived of his life
or personal liberty in accordance with the procedure established by law, he
cannot invoke to his aid any of the rights guaranteed under Article 19 of the Constitution of India. Whether this
contention could be accepted or not will be examined with reference to the
provisions of the Constitution and the decisions rendered by this Court.
177. Articles 19 to 22 appear under the
title "Right to freedom." Article 19
confers freedoms on the citizens whereas Articles 20 to 22 are not limited to
citizens but apply to all persons. Article 19
does not deal with the right to life which is dealt with under Article 21.
While Article 19 provides for freedoms
which a citizen is entitled to, Articles 20 to 22 restrain the State from doing
certain things. Though the right to life and personal liberty is not dealt with
under Article 19, as it is mentioned in Article 21 though in a negative form,
the right to life and personal liberty is secured and the State can deprive it
only according to the procedure established by law. While the rights guaranteed
under Article 19 (1) are subject to
restrictions that may be placed by Article 19
(2) to (6), the right not be deprived of life and personal liberty is subject
to its deprivation by procedure established by law. The scope of the words
"personal liberty" was considered by Mukherjea, J. In Gopalan's case.
The learned Judge observed:
"Article
19 gives a list of individual liberties and prescribes in the various clauses
the restrictions that may be placed upon them by law so that they may not
conflict with the public welfare or general morality. On the other hand
Articles 20, 21 and 22 are primarily concerned with penal enactments or other law
under which personal safety or liberty of persons would be taken away in the
interests of society and they set down the limits within which the State
control should be exercised .... the right to the safety of one's life and
limbs and to enjoyment of personal liberty, in the sense of freedom from
physical restraint and coercion of any sort, are the inherent birth rights of a
man. The essence of these rights consist in restraining others from interfering
with them and hence they cannot be described in terms of "freedom" to
do particular things .... The words "personal liberty"take their
colour from the words "deprivation of life." It means liberty of the
person. that is freedom from personal restraint. Article 21 is one of the
Articles along with Articles 20 and 22 which deal with restraint on the person.
According to Dicey:
"The
right to personal liberty as understood in England means in substance a
person's right not to be subjected to imprisonment, arrest or other physical coercion
in any manner that does not admit of legal justification."
(Dicey's
Laws of Constitution 10th Edn. page 207).
178. In the debates relating to the
drafting of the Constitution, in Article 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 Articles 19, 30
(which corresponds to Article 19 in
the Constitution). The words "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.
179. It is contended on behalf of the
petitioner that after the decision of the Bank Nationalisation case and Bennett
Coleman's case the view taken earlier by the Supreme Court that in construing
whether the deprivation of personal liberty is valid or not the enquiry should
only be confined to the validity of the procedure prescribed without any
reference to the rights conferred under Article 19 (1)
is no longer good law. The decisions bearing on this question may now be
examined.
180. In Gopalan's case it was held that
Article 19 dealt with the rights of the citizens
when he was free, and did not apply to a person who had ceased to be free and
had been either under punitive or preventive legislation. It was further held
that Article 19 only applied where a legislation
directly hit the rights enumerated in the Article and not where the loss of
rights mentioned in the Article was a result of the operation of legislation
relating to punitive or preventive detention. It was also stated by Justice
Mukherjea that a law depriving the personal liberty must be a valid law which
the legislature is competent to enact within the limits of the powers assigned
to it and which does not transgress any of the Fundamental Rights the
Constitution lays down. The learned Judge explained that the reasonableness of
a law coming under Article 21 could not be questioned with reference to
anything in Article 19 though a law made under
Article 21 must conform to the requirements of Articles 14 and 20. It cannot be
said that it should conform to the requirements of Article 19. The view, thus
expressed in Gopalan's case, was affirmed by the Supreme Court in Ram
Singh v. State of Delhi, 1951 SCR 451 where it was held:
"Although
personal liberty has a content sufficiently comprehensive to include the
freedoms enumerated in Article 19
(1), and its deprivation would result in the extinction of the those freedoms,
the Constitution has treated these civil liberties as distinct from fundamental
rights and made separate provisions in Article 19
and Articles 21 and 22 as to the limitations and conditions subject to which
alone they could be taken away or abridged ....... The interpretation of these
Articles and their correlation was elaborately dealt with by the full court in
Gopalan's case.
Approving the interpretation of the
Article in Gopalan's case it was held that law which authorises deprivation of
personal liberty did not fall within the purview of Article 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 Articles 21 to 22.
181. This view was again affirmed in State
of Bihar v. Kameshwar Singh, 1952 SCR 889 where Das. J. in approving
the law laid down in Gopalan's case observed as follows (at p. 290 of AIR 1952
SC):
"As
I explained in Goplan's case and again in Chiranjit Lal's case 1950 SCR 869 our
Constitution protects the freedom of the citizen by Article 19 (1) (a) to (e) and (g) but empowers the
State, even while those freedoms last, to impose reasonable restrictions on
them in the interest of the State or of public order or morality or of the
general public as mentioned in clauses (2) to (6). Further, the moment even
this regulated freedom of the individual becomes incompatible with and
threatens the freedom of the community the State is given power by Article 21,
to deprive the individual of his life and personal liberty in accordance with
procedure established by law, subject of course, to the provisions of Article
22.
182. In Express Newspapers (P) Ltd. v.
The Union of India AIR 1958 Supreme Court 578 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
necessarily be the consequence which could be in the contemplation of the
Legislature while enacting a measure of this type for the benefit of the
workmen concerned. The test, thus applied, is whether the consequence were
"direct and inevitable"?
183. In Hamdard Dawakhana (Wakf)
Lal Kuan v. Union of India,(1960)2 SCR 671 (at p. 691) after citing
with approval the case of Ram Singh, and Express Newspapers Case, AIR 1958
Supreme Court 578 it was observed:
"It
is not the form or incidental infringement that determines the
constitutionality of a statute in a reference to the rights guaranteed in
Article 19 (1) but the reality and the substance
..... Viewed in this way, it does not select any of the elements or attributes
of freedom of speech falling within Article 19
(1) (a) of the Constitution."
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 Article 19
(1) (a).
184. The correctness of the view as
laid down in Gopalan's case, and affirmed in Ram Singh's case, was doubted by
Subba Rao, J., in Kochuni v. The State of Madras, (1960)3 SCR 887
The learned Judge after referring to the dissenting view of Fazl Ali, J. in
Gopalan's case rejecting the plea that a law under Article 21 shall not
infringe Article 19 (1) observed:
"The
question being integra with the dissenting view expressed by Fazl Ali, j., we
are bound by this judgment."
185. Reliance was placed by the learned
counsel for the petitioner on the decision by this court in Sakal Papers
(P) Ltd. v. The Union of India, AIR 1962 Supreme Court 305. The learned
counsel referred to the passage at page 560-A Part I 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 the State is 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.
186. The above observations relied on
by the learned counsel were made in a petition where the validity of Delhi
Newspapers (Price and Page) Order, 1960 which fixed the maximum number of pages
that might be published by a newspaper according to the price charged was
questioned. The order was challenged as contravening Article 19 (1) (a) of the Constitution. The court held
that the order was void as it violated Article 19
(1) (a) of the Constitution and was not saved by Article 19 (2). The court held that the right extended
not merely to the method which is employed to circulate, but also to the volume
of circulation, and the impugned Act and order placed restraints on the latter
aspect of the right as the very object of the Act was directly against
circulation and thus. interfered with the freedom of speech and expression. At
page 866. the Court observed:
"The
impugned law far from being one, which merely interferes with the right of
freedom of speech incidentally, does so directly though it seeks to achieve the
end by purporting to regulate the business aspect of a newspaper ..............
Such a course is not permissible and the courts must be ever vigilant in
guarding perhaps the most precious of all the freedoms guaranteed by our
Constitution." This decision does not help us in resolving the point at
issue in this case for the court was concerned with the question whether the
right of freedom of speech was directly affected by the impugned order. The
impact of legislation under Article 21 on the rights guaranteed under Article 19 (1) was not in issue in the case.
187. The two cases which were strongly
relied on by the learned counsel for the petitioner as having overruled the
view of Gopalan's case as affirmed in Ram Singh's case are Bank Natiosalisation
case and Bennett Coleman's case.
188. In Kharak Singh's case the
majority took the view that the word 'liberty' in Article 21 is qualified by
the word 'personal,' and there its content is narrower and the qualifying
adjective has been employed in order to avoid overlapping between those
elements or incidents of liberty like freedom of speech or freedom of movement
etc. already dealt with in Article 19
(1) and the liberty guaranteed by Article 21 and particularly in the context of
the difference between the permissible restraints or restrictions which might
be imposed by sub-clauses (2) to (6) of the Article of the several species of
liberty dealth with in several clauses of Article 19
(1). The minority view as expressed by Subba Rao, J. is that if a person's
fundamental right under Article 21 is infringed, the State can rely upon a law
to sustain the action; but that cannot be a complete answer unless the State
laws satisfy the test laid down in Article 19
(2) as far the attributes covered by Article 19
(1) are concerned. In other words, the State must satisfy that petitioners
fundamental rights are not infringed by showing that the law only imposes
reasonable restrictions within the meaning of Article 19 (2) of the Constitution. The submission of
the learned counsel for the petitioner is that the view as expressed by Subba
Rao, J. has been affirmed by the subsequent decisions in the Bank
Nationalisation case and Bennett Coleman's case.
189. On 19th July, 1969, the acting
President promulgated an ordinance No. 8 of 1969 transferring to and vesting
the undertaking of 14 named commercial banks in the corresponding new bank
under the ordinance. Subsequently, the Parliament, enacted Banking Companies
(Acquisition of Transfer of Undertaking) Act, 1969. The object of the Act was
to provide for the acquisition and transfer of the undertakings of certain
banking companies in conformity with the national policy and objectives and for
matters corrected therewith and incidental thereto. The petitioners before the
Supreme Court who held shares in some of the named banks or had accounts
current or fixed deposits in the banks challenged the validity of the
enactment. In the petitions under Article 32 of
the Constitution the validity of the Ordinance and the Act was questioned on
various grounds. I am concerned with ground No. 3 which runs as follows:
190. Article 19
(1) (f) and Article 31 (2) are not mutually exclusive and the law providing for
acquisition of property for public purpose could be tested for its validity on
the ground that it imposes limitation on the right to property which were not
reasonable; so tested, the provision of the Act transferring undertaking of the
named banks and prohibiting practically from carrying banking business violates
the guarantee under Article 19 (1) (f) and
(g). In dealing with this contention, the court held that Articles 19 (1) (f)
and Article 31 (2) are not mutually exclusive. The court observed that the
principle underlying the opinion of the majority in Gopalan's case was extended
to the protection of the freedom in respect of property and it was held that
Articles 19 (1) (f) and 31 (2) were mutually exclusive in their operation and
that substantive provisionas of law relating to acquisition of property were
not liable to be challenged on the ground that it imposes unreasonable
restrictions on the right to hold property. After mentioning the two divergent
lines of authority, the court held that "the guarantee under Article 31
(1) and (2) arises out of the limitations imposed on the authority of the
State, by law, to take over the individual's property. The true character of
the limitation of the two provisions is not different. Clause (1) of Article 19 and Clauses (1) and (2) of Article 31 are
part of the similar Article 19 (1) (f)
enunciating the object specified and Articles 19 (1) and 31 deal with the
limitation which may be placed by law subject to which the rights may be
exercised. Formal compliance with the conditions of Article 31 (2) is not
sufficient to negative protection of guarantee to the rights to property. The
validity of law which authorises deprivation of property and the law which
authorises compulsory acquisition of the property for a public purpose must be
adjudged by the application of the same test. Acquisition must be under the
authority of a law and the expression law means a law which is within the
competence of the legislature and does not impair the guarantee of the rights
in Part III.
191. The learned counsel for the
petitioner submitted that on similar reasoning it is necessary that an
enactment under Article 21 must also satisfy the requirements of Article 19 and should be by a law which is within the
competence of the legislature and does not impair the guarantee of the rights
in part III including those conferred under Article 19 of
the Constitution of India. The important question that arises for consideration
is whether the decision in the Bank Nationalisation case has overruled the
decision of Gopalan's case and is an authority for the proposition that an act
of the legislature relating to deprivation of life and personal liberty should
also satisfy the other fundamental rights guaranteed under Article 19 (1) of the Constitution.
192. In order to determine what exactly
is the law that has been laid down in Bank Nationalisation Case it is necessary
to closely examine the decision particularly from pages 570 to 578 of 1970 (3)
SCR: (at pp. of 593 to 597 of AIR 1970 SC). After holding that :
"Impairment
of the right of the individual and not the object of the State in taking the
impugned action, is the measure of protection. To concentrate merely on power
of the State and the object of the State action in exercising that power is
therefore to ignore that true intent of the Constitution."
the
Court proceeded to observe that "the conclusion in our judgment is
inevitable that the validity of the State action must be adjudged in the light
of its operation upon rights of individual and groups of individuals in all
their dimensions."Having thus held the Court proceeded to state:
"But
this Court has held is some cases to be presently noticed that Article 19 (1) (f) and Article 31 (2) are mutually
exclusive."
It is necessary at this stage to
emphasise that the Court was only considering the decisions that took the view
that Articles 19 (1) (f) and 31 (2) were mutually exclusive. After referring to
passages in A. K. Gopalan's case noted at page 574 (of (1970) 3 SCR): (at pp.
593 to 595 of AIR 1970 SC):
"The
view expressed in A. K. Gopalan's case was reaffirmed in Ram Singh v.
State of Delhi, 1951 SCR 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 freedoms in respect of property and it was held
that Article 19 (1) (f) and Article 31 (2) were
mutually exclusive in their operation. While observations in judgment of
Gopalan's case as regards the application of Article 19
(1) (f) in relation to Article 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 ceases to have that right for the duration of the incapacity.
In Chiranjit Lal Chowduri's case, Das J. observed at page 919 :
"....
the right to property guaranteed by Article 19
(1) (f) would ... continue until the owner was under Article 31 deprived of
such property by authority of law."
Das, J. reiterated the same view in the
State of West Bengal v. Subodh Gopal, 1954 SCR 587 where he
observed:
"
Article 19 (1) (f) read with Article 19 (5) presupposes that the person to whom the
fundamental right is guaranteed retains his property over or with respect to
which alone that right may be exercised."
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. Bhanji Munji's case (1955)1 SCR 777 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 Babu Barkya
Thakur v. State of Bombay, (1961)1 SCR 128 and Smt. Sitabati Debi
v. State of West Bengal, ((1967)2 SCR 949). The Court proceeded further
after referring to some cases to note that "with the decision in K.K.
Kochuni's case there arose two divergent lines of authority (1) "authority
of law" in Article 31 (1) is liable to be tested on the ground that it
violates other fundamental rights and freedoms including the right to hold
property guaranteed by Article 19
(1) (f) and (2) "authority of law" within the meaning of Article 31
(2) is not liable to be tested on the ground that it impairs the guarantee of
Article 19 (1) (f) in so far as it imposes
substantive restrictions though it may be tested on the ground of impairment of
other guarantees." Later in the decision of State of Madhya Pradesh
v. Ranojirao Shinde (1968) 3 SCR 489 the Supreme Court opined that the
validity of law in clause (2) of Article 31 may be adjudged in the light of
Article 19 (1) (f), But the Court in that case did
not consider the previous catena of authorities which related to the
inter-relation between Article 31 (2) and Article 19
(1) (f).
193. In considering the various
decisions referred to regarding the interrelation of Article 31 (2) and Article
19 (1) (f) the Court proceeded to express its
view that "the theory that the object and form of the State action
determine the extent of protection which the aggrieved party may claim is not
consistent with the constitutional scheme. Each freedom has different
dimensions." Having so stated the Court considered the inter-relation of
Article 31 (2) and Article 19 (1) (f) and held:
"The
true character of the limitations under the two provisions is not different.
Clause (5) of Article 19 and clauses (1) and (2)
of Article 31 are parts of a single pattern: Article 19
(1) (f) enunciates the basic right to property of the citizenes and Article 19 (5) and clauses (1) and (2) of Article 31
deal with limitations which may be placed by law, subject to which the rights
may be exercised." It must be noted that basis for the conclusion is that
Article 19 and clauses (1) and (2) of Article 31
are parts of a single pattern and while Article 19
(1) (f) enunciates the right to acquire, hold and dispose of property; clause
(5) of Article 19 authorises imposition
of restrictions upon the right. There must be reasonable restriction and
Article 31 assures the right to property and grants protection against the
exercise of the authority of the State and clause (5) of Article 19 and clauses (1) and (2) of Article 31
prescribe restrictions upon State action, subject to which the right to
property may be exercised. The fact that right to property guaranteed under
Article 19 (1) (f) is subject to restrictions
under Articles 19 (5) and 31 and thereby relate to the right to property
closely inter-related cannot be overlooked for that formed the basis for the
conclusion. After referring to the various Articles of the Constitution the
Court observed:
"The
enunciation of rights either express or by implication does not follow uniform
pattern. But one thread runs through them; they seek to protect the rights of
the individual or group of individuals against infringement of those rights
within specific limits. Part III of the Constitution weaves a pattern of
guarantees delimit the protection of those rights in their allotted fields:
they do not attempt to enunciate distinct rights."
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 Article 31 (2). Article 31 (2) requires that property must
be acquired for a public purpose and that it must be acquired under a law with
characteristics set out in that Article. Formal compliance of the condition of
Article 31 (2) is not sufficient to negative the protection of the guarantee of
the right to property."
194. 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 justifies this apparently inconsistent development of
the law. While stating that in its judgment the assumption in A. K. Gopalan's
case that certain articles exclusively deal with specific matters and in
determining whether there is infringement of the individual's guaranteed
rights, the object and the from 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
overruled the view that the object and form of the State action alone need be
considered. It proceeded "We hold the validity "of law" which
authorises deprivation of property and "a law" 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
Article 31 (2) and Article 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 object and the form of State action
has to be considered was overruled 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 : (of
(1970) 3 SCR): (at p. 596 of AIR 1970 SC).
"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."
195. 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 Article 19 (1) (f) and Article 31 (2) are not mutually
exclusive there is no justification for holding that the case is authority for
the proposition that the legislation under Article 21 should also satisfy all
the fundamental rights guaranteed under Article 19
(1) of the Constitution. As emphasised earlier Article 19 (1) (f) and Article 31 (2) form a single
pattern and deal with right to property. The fundamental right under Article 19 (1) (f) is restricted under Article 19 (5) or Article 31 (2) and as the articles
refer to right to property they are so closely inter-linked and cannot be held
to be mutually exclusive. But 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) and refers only to
personal rights as are not covered by Article 19.
196. The decision in Bank
Nationalisation case so far as it relates to Articles 19 (1) and 21, is in the
nature of obiter dicta. Though it is a decision of a Court of 11 Judges and is
entitled to the highest regard, as the Court had not applied its mind and
decided the specific question and as is in the nature of a general, casual
observation on a point not calling for decision and not obviously argued before
it, the case cannot be taken as an authority on the proposition in question,
The Court cannot be said to have declared the law on the subject when no
occasion arose for it to consider and decide the question.
197. It may also be noted that as the
Court ruled that the impugned Act violated Article 31 (2) by not laying down
the necessary principles, the decision of the inter-relationship between Article
19 (1) (f) and Article 31 (2) was not strictly
necessary for the purpose of giving relief to the petitioner. We are not
concerned in this case as to whether the decision in Bank Nationalisation case
is in the nature of obiter dicta so far as it held that Articles 19 (1) and 31
(2) are inter-related. But it is necessary to state that the decision proceeded
on some erroneous assumptions. At page 571 of Bank Nationalisation case (supra)
it was assumed "The Majority of the Court (Kania, C. J. and Patanjali
Sastri, Mahajan, Mukherjea and Das JJ.) held that Article 22 being a complete
code relating to preventive detention the validity of an order of detention
must be determined strictly according to the terms and within the four corners
of that articles." This statement is not borne out from the text of the
judgments in Gopalan's case. At p. 115 of Gopalan's case (supra) Kania C. J.
has stated: "The learned Attorney General contended that the subject of
preventive detention does not fall under Article 21 at all and is covered
wholly by Article 22. According to him, Article 22 is a complete code, I am
unable to accept that contention." Patanjail Sastri J. at page 207 of the
judgment said: "The learned Attorney General contended that Article 22
clauses (4) to (7) formed a complete code of constitutional safeguards in
respect of preventive detention, and, provided only these provisions are
conformed to. the validity of any law relating to preventive detention could
not be challenged. I am unable to agree with this view." Das J. in
referring to the Attorney General's argument at page 324 stated: "that
Article 21 has nothing to do with preventive detention at all and that
preventive detention is wholly covered by Article 22 (4) to (7) which by
themselves constitute a complete code. I am unable to accede to this extreme
point of view also." Mukherjea J. at p. 229 of that judgment observed:
"It is also unnecessary to enter into a discussion on the question raised
by the learned Attorney-General as to whether Article 22 by itself is a
self-contained Code with regard to the law of preventive detention and whether
or not the procedure it lays down is exhaustive." Justice Mahajan at page
226 held that "I am satisfied on a review of the whole scheme of the
Constitution that the intention was to make Article 22 self contained in
respect of the laws on the subject of preventive detention." It is thus
seen that the assumption in Bank Nationalisation's case that the majority of
the Court held that Article 22 is a complete code is erroneous and the basis of
the decision stands shaken. If the obiter dicta based on the wrong assumption
is to be taken as the correct position in law, it would lead to strange
results. If Article 19 (1) (a) to (e) and (g)
are attracted in the case of deprivation of personal liberty under Article 21,
a punitive detention for an offence committed under the Indian Penal Code such
as theft, cheating or assault would be illegal as pointed out in Gopalan's case
by Kania C. J. and Patanjali Sastri J. for the reasonable restriction in the
interest of public order would not cover the offences mentioned above. As held
in Gopalan's case and in Saha's case, there can be no distinction between
punitive detention under the Penal Code and preventive detention. As pointed
out earlier even though Fazl Ali J. dissented in Gopalan's case, the same view
was expressed by His Lordship so far as punitive detention was concerned.
He said "The Indian Penal Code
does not primarily or necessarily impose restrictions on the freedom of
movement and it is not correct to say that it is a law imposing restrictions on
the right to move freely." The conclusion that Article 19 (1) and Article 21 were mutually exclusive
was arrived at on an interpretation of language of Article 19 (1) (d) read with Article 19 (5) and not on the basis that Articles 19
(1) and 21 are exclusive and Article 21 a complete code. The words
"personal liberty" based on the Draft Committee report on Article 15
(now Article 21) was added to the word 'personal' before the word 'liberty'
with the observation that the word 'liberty' should be qualified by the word
'personal' before it for otherwise it may be construed very wide so as to
include even the freedoms already dealt with in Article 13 (now Article 19). In
Gopalan's case it was also pointed out by the Judges that Article 19 (1) and 21 did not operate on the same field
as Articles 19 (1) and 31
(2) of the Constitution operate. The right under Article 21 is different and
does not include the rights that are covered under Article 19. Article 19 (1) confers substantive rights as mentioned
in clauses (a) to (g) on citizen alone and does not include the right of
personal liberty covered in Article 21. For the reasons stated above obiter
dicta in Bank Nationalisation's case that a legislation under Article 21 should
also satisfy the requirements of Article 19
(1) cannot be taken be taken as correct law. The Court has not considered the
reasoning in Gopalan's case and overruled it.
198. Before proceeding to consider the
test of validity of a legislation as laid down in Bennett Coleman's case
following the Bank Nationalisation case the decisions which followed the Bank
Nationalisation case holding on the erroneous premises that the majority in
Gopalan's case held that Article 22 was a self-contained code, may be shortly
referred to. In S.N. Sarkar v. West Bengal, (1973)1 SCC 856 the
Supreme Court held that in Gopalan's case the majority Court held that Article
22 was a self-contained Code and, therefore, the law or preventive detention
did not have to satisfy the requirement of Articles 19, 14 and 20. In the Bank
Nationalisation case the aforesaid premise in Gopalan was disapproved and,
therefore , it no longer holds the field. Though the Bank Nationalisation case
dealt with in relation to Articles 19 and 31, the basic approach considering
the fundamental rights guaranteed in the different provisions of the
Constitution adopted in this case held the major premises of the majority in
the Gopalan case was erroneous. The view taken in this case also suffers from
the same infirmities referred to in Bank Nationalisation case. Later, in the
case of Khudiram v. West Bengal, (1975)2 SCC 81 a Bench of four
Judges again erroneously stated that Gopalan's case had taken the view that
Article 22 was a complete Code. After referring to Bank Nationalisation case
and S. N. Sarkar's and to the case of H. Saha v. State of West Bengal,
(1975)1 SCR 778 the Court regarded the question as concluded and a
final seal put on this controversy and held that in view of the decision, it is
not open to any one now to contend that the law of preventive detention which
falls in Article 22 does not have to meet the requirement of Article 14 or Article 19."
199. In Additional District
Magistrate v. S. S. Shukla, 1976 Supp SCR 172 the locus standi to move
a habeas corpus petition under Article 226
of the Constitution of India while the Presidential order dated 27th June, 1975
was in force fell to be considered. The Court while holding that the remedy by
way of writ petition to challenge the legality of an order of detention under
the Maintenance of Internal Security Act is not open to a detenu during the
emergency, had occasion to consider the observations made by the majority in
Bank Nationalisation case regarding the application of Article 21 of the Constitution of India. Chief Justice
Ray. at page 230 (of SCR) held:
"Article
21 is our rule of law regarding life and liberty. No other rule of law can have
separate existence as a distinct right. The negative language of fundamental
right incorporated in Part III imposes limitations on the power of the State
and declares the corresponding guarantee of the individual to that fundamental
right. The limitation and guarantee are complementary. The limitation of State
action embodied in a fundamental right couched in negative form is the measure
of the protection of the individual."
After quoting with approval the view
held in Kharak Singh's case that personal liberty in Article 21 includes all
varieties of rights which go to make personal liberty other than those in
Articles 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
(of SCR). 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 Article 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
Article 21 will also have to be considered. Justice Chandrachud understood the
decision in Bank Nationalisation case as holding that Article 21 and Article 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 Article 21 must also satisfy the test laid down in
Article 19 (1) so far the attributes covered by
Article 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 Article 21 has to
meet the requirements of Article 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 Khudiram 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 he then was, in Shukla's case.
200. Next to Bank Nationalisation case
strong reliance was placed on Bennett Coleman;s case by the petitioner for the
proposition that the direct effect of the legislation of the fundamental rights
is the test.
201. In the case the petitioners
impugned the new newsprint policy on various grounds. The Court held that
though Article 19 (1) (a) does not
mention the freedom of press, it is settled view of the Court that freedom of
speech and expression includes freedom of press and circulation. Holding that
the machinery of import control cannot be utilised to control or curb
circulation or growth of freedom on newspapers it was held that Newspaper
Control Policy is ultra vires of the Import Control Act and the Import Control
Order. The Court after referring to the two tests laid down in Bank
Nationalisation case observed: "direct operation of the Act upon the right
forms the real test". The question that was raised in the case was whether
the impugned newsprint policy is in substance a newspaper control. The Court
held that the Newsprint Control Policy is found to be Newspaper Control Order
in the guise of framing an import control policy for newsprint. As the direct
operation of the Act was to abridge the freedom of speech and expression, the
Court held that the pith and substance doctrine does not arise in the present
case. On the facts of the case there was no need to apply the doctrine of pith
and substance.
202. It may be noted that in Bennett
Coleman's case the question whether Articles 21 and 19 are mutually exclusive
or not did not arise for consideration and the case cannot be taken as an
authority for the question under consideration in the case. Bennett Coleman's
case, Express Newspaper's case, Sakal Newspapers case were all concerned with
the right to freedom of the press which is held to form part of freedom of
speech and expression.
203. Whether the pith and substance
doctrine is relevant in considering the question of infringement of fundamental
rights, the Court observed at page 780 of the Bank Nationalisation case
"Mr. Palkhivala said that the tests of pith and substance of the subject
matter and of direct and of incidental effect of the legislation are relevant
to question of legislative competence but they are irrelevant to the question
of infringement of fundamental rights. In our view this is a sound and correct
approach to interpretation of legislative measures and State action in relation
to fundamental rights." It is thus clear, that the test of pith and
substance of the subject-matter and of direct and incidental effect of
legislation is relevant in considering the question of infringement of
fundamental right.
204. The Court at page 781 said:
"by direct operation is meant the direct consequence or effect of the Act
upon the rights and quoted with approval the test laid down by the Privy
Council in Commonwealth of Australia v. Bank of New South Wales. (1950)
AC 235.
205. In deciding whether the Act has
got a direct operation of any rights upon the fundamental rights, the two tests
are, therefore, relevant and applicable. These tests have been applied in
several cases before the decision in Bank Nationalisation case. A reference has
been made to the decision of Express Newspapers (P.) Ltd. v. Union of
India, AIR 1958 Supreme Court 578, where the test laid down was that
there must be a direct and inevitable consequence of the legislation. In Hamdard
Dawakhana v. Union of India, (1960)2 SCR 671 this Court followed the
test laid down in express Newspapers case. The Court expressed its view that it
is not the form or incidental infringement that determines constitutionality of
a statute but reality and substance. In Sakal Papers (P.) Ltd. v. Union
of India, (1962)3 SCR 842 it was held that the "Correct approach
in such cases should be to enquire as to what in substance is the loss or
injury caused to the citizen and not merely what manner and method have been
adopted by the State in placing the restriction. The Supreme Court in some
cases considered whether the effect of the operation of the legislation is
direct and immediate or not. If it is remote, incidental or indirect, the
validity of the enactment will not be effected. The decision in Cooper's case
has not rejected the above test. The test laid down in Cooper's case is the
direct operation on the rights of the person.
206. The test was adopted and explained
in Bennett Coleman's case as pointed above.
207. The view that pith and substance
rule is not confined in resolving conflicts between legislative powers is made
clear in the decision of the Federal Court in Subramaniam Chettiar's case,
where Varadachariar, J. after referring briefly to the decision of
Gallagher v. Lynn, (1937) AC 863 held that "They need not be
limited to any special system of federal constitution is made clear by the fact
that in Gallagher v. Lynn, Lord Atkin applied pith and substance rule when
dealing with a question arising under the Government of Ireland Act which did
not embody a federal system at all."
208. The Passport Act provides for
issue of passports and travel documents for regulating the departure from India
of citizens of India and other persons. If the provisions comply with the
requirements of Article 21, that is, if they comply with the procedure
established by law the validity of the Act cannot be challenged. If
incidentally the Act infringes on the rights of a citizen under Article 19 (1) the Act cannot be found to be invalid.
The pith and substance rule will have to be applied and unless the rights are
directly affected, the challenge will fail. If it is meant as being applicable
in every case however remote it may be where the citizen's rights under Article
19 (1) are affected punitive detention will not
be valid.
209. The result of the discussion,
therefore, is that the validity of the Passports Act will have to be examined
on the basis whether it directly and immediately infringes on any of the
fundamental right of the petitioner. If a passport is refused according to
procedure established by law, the plea that his other fundamental rights are
denied cannot be raised if they are not directly infringed.
210. The decisions of the Supreme Court
wherein the right of person to travel abroad has been dealt with may be
noticed. In Satwant Singh v. Assistant Passport Officer, Delhi, (1967)3
SCR 525 the Court held that though a passport was not required for
leaving, for practical purposes no one can leave or enter into India without a
passport. Therefore, a passport is essential for leaving and entering India.
The Court held the right to travel is part of personal liberty and a person
could not be deprived of it except according to the procedure laid down by law.
The view taken by the majority was that the expression 'personal liberty' in
Article 21 only excludes the ingredients of liberty enshrined in Article 19 of the Constitution and the expression
'personal liberty' would take in the right to travel abroad. This right to
travel abroad is not absolute and is liable to be restricted according to the
procedure established by law. The decision has made it clear that 'personal
liberty' is not one of the rights secured under Article 19 and, therefore, liable to be restricted by
the legislature according to the procedure established by law. The right of an
American citizen to travel is recognised. In Kent v. Dulles, (1958) 357 US 116
(at p. 127), the Court observed that the right to travel is a part of the
'liberty' of which the citizen cannot be deprived without due process of law
under the Fifth Amendment. "The freedom of movement across the frontiers
in either direction, and inside frontiers as well, is a part of our heritage.
Travel abroad, like travel within the country...... may be as close to the
heart of the individual as the choice of what he eats. or wears, or reads.
Freedom of movement is basic in our scheme of values." In a subsequent
decision - Zemel v. Rusk (1966) 381 US 1 at p. 14 the Court sustained against
due process attack the Government's refusal to issue passports for travel to
Cuba because the refusal was grounded on foreign policy considerations
affecting all citizens. 'The requirements of due process are a function not
only of the extent of the governmental restriction imposed, but also of the
extent of the necessity for the restriction."
(The
Constitution of the United States of America - Analysis and Interpretation - at
page 1171)
211. In Herbert Aptheker etc. v.
Secretary of State, (1964)378 US 500, 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 [Zemel v. Rusk (supra): Thus an American
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, Passports Act satisfies the requirements of procedure established
by law.
212. The Procedure established by law
does not mean procedure. however, fantastic and oppressive or arbitrary which
in truth and reality is no procedure at all [(A. K. Gopalan v. State of
Madras) 1950 SCR 88 (at p. 230) observations of Mahajan, J.]. There
must be some procedure and at least it must confirm to the procedure
established by the law must be taken to mean as the ordinary and well
established criminal procedure, that is to say, those settled usages and normal
modes of proceedings, sanctioned by the Criminal Procedure Code which is a
general law of Criminal Procedure in the country. But as it is accepted that
procedure established by law refers to statute law and as the legislature is
competent to change the procedure the procedure as envisaged in the criminal
procedure cannot be insisted upon as the legislature can modify the procedure.
The Supreme Court held in Kartar Singh's case that Regulation 236 clause (b) of
the U. P. Police Regulation which authorises domiciliary visits when there was
no law on such a regulation, violated Article 21.
213. I will now proceed to examine the
provisions of Passports Act, Act 15 of 1967 to determine whether the provisions
of the Act are in accordance with the procedure established by law.
214. The Preamble states that the Act
is to provide for the issue of passports and travel documents to regulate the
departure from India of citizens of India and other persons and for matters
incidental or ancillary thereto. It may be remembered that this Act. was passed
after the Supreme Court had held in Satwant Singh v. Union of India,
(1967)3 SCR 525 that the right to travel abroad is a part of persons's
personal liberty of which he could not be deprived except in accordance with
the procedure established by law in terms of Article 21 of
the Constitution. The legislature came forward with this enactment prescribing
the procedure for issue of passports for regulating the departure from India of
citizens and others.
215. Section 5 of
the Act provides for applying for passports or travel documents etc. and the
procedure for passing orders thereon. On receipt of an application under
Sub-section (2) the passport authority may issue a passport or a travel
document with endorsement in respect of the foreign countries specified in the
application or issue of a passport or travel document with endorsement in
respect of some foreign countries and refuse to make an endorsement in respect
of other countries or to refuse to issue a passport or travel document and to
refuse to make on the passport or travel document any endorsement. In the event
of the passport authority refusing to make an endorsement as applied for or
refusal to issue a passport or a travel document or refusal of endorsement, the
authority is required to record in writing a brief statement of its reasons and
furnish to that person, on demand, a copy thereof unless the authority for
reasons specified in sub-section (3) refuses to furnish a copy. Section 6 provides that the refusal to make an
endorsement shall be on one or other grounds mentioned in sub-sections (2) to
(6). Section 8 provides that every passport shall be
renewable for the same period for which the passport was originally issued
unless the passport authority for reasons to be recorded in writing otherwise
determines.
216. Section 10 is
most important as the impounding of the passport of the petitioner was ordered
under Section 10 (3) (c) of the Act.
Section 10 (1) enables the passport authority to
vary or cancel the endorsements on a passport or travel document or may with
the previous approval of the Central Government, vary or cancel the conditions
subject to which a passport or travel document has been issued, and require the
holder of a passport or a travel document by notice in writing, to deliver up
the passport or travel document to it within such time as may be specified in
the notice. Sub-section (2) enables the holder of a passport or a travel
document to vary or cancel the conditions of the passport.
217. Section 10
(3) with which we are concerned runs as follows:
10
(3):- The passport authority may impound or cause to be impounded or revoke a
passport or travel document,-
(a)
If the passport authority is satisfied that the holder of the passport or
travel document is in wrongful possession of;
(b)
If the passport or travel document was obtained by the suppression of material
information or on the basis of wrong information provided by the holder of the
passport or travel document or any other person on his behalf;
(c)
If the passport authority deems it necessary so to do in the interests of the
sovereignty and integrity of India, the security of India, friendly relations
of India with any foreign country, or in the interests of the general public.
(d)
If the holder of the passport or travel document has at any time after the
issue of the passport or travel document, been convicted by a court in India
for any offence involving moral turpitude and sentenced in respect thereof to
imprisonment for not less than two years;
(e)
If proceedings in respect of an offence alleged to have been committed by the
holder of the passport or travel document are pending before a criminal court
in India;
(f)
If any of the conditions of the passport or travel document has been
contravened;
(g)
If the holder of the passport or travel document has failed to comply with a
notice under sub-section (1) requiring him to deliver up the same.
(h)
If it is brought to the notice of the passport authority that a warrant or
summons for the appearance or a warrant for the arrest, of the holder of the
passport or travel document has been issued by a court under any law for the
time being in force or if an order prohibiting the departure from India of the
holder of the passport or other travel document has been made by any such court
and the passport authority is satisfied that a warrant or summons has been so
issued or an order has been so made."
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.
218. Section 10
(5) requires the passport authority to record in writing a brief statement of
the reasons for making an order under sub-section (1) or (3) and to furnish the
holder of the passport on demand a copy of the same unless in any case the
passport authority is of the opinion that it will not be in the interests of
the sovereignty and integrity of India, the security of India, friendly
relations of India with any foreign country or in the interests of the general
public to furnish such a copy. Section 11
provides for an appeal by the aggrieved person against any order passed by the
passport authority under several clauses mentioned is sub-section (1) of that
section. It is also provided that no appeal shall lie against any order passed
by the Central Government. Section 11
(5) provides that in disposing of an appeal, the appellate authority shall
follow such procedure as may be prescribed and that no appeal shall be disposed
of unless the appellant has been given a reasonable opportunity of representing
his case. Rule 14 of the Passport Rules, 1967 prescribes that the appellate
authority may call for the records of the case from the authority who passed
the order appealed against and after giving the appellant a reasonable
opportunity of representing his case pass final orders.
219. To sum up under Section 10 (3) (c) if the passport authority deems it
necessary so to do for reasons stated in the sub-section, he may impound a
passport. he is required to record in writing a brief statement of the reasons
for making such order and to furnish a copy of the order on demand unless in
any case he thinks for reasons mentioned in sub-section (5) that a copy should
not be furnished. Except against an order passed by the Central Government the
aggrieved person has a right of appeal. The appellate authority is required to
give a reasonable opportunity to the aggrieved person of representing his case.
220. It was submitted on behalf of the
petitioner that on a reading of Section 10
(3) observance of rules of natural justice, namely the right to be heard, is
implied and as the Government had failed to give an opportunity to the
petitioner to explain her case the order is unsustainable. In the alternative
it was submitted that if Section 10
(3) (c) is construed as denying the petitioner an opportunity of being heard
and by the provisions of Section 11 a
right of appeal against an order passed by the Central Government is denied the
provisions will not be procedure as established by a law under Article 21 and
the relevant sections should be held ultra vires of the powers of the
legislature. It was contended that the power conferred on the authority to
impound a passport in the interests of general public is very vague and in the
absence of proper guidance an order by the authority impounding the passport
"in the interests of general public" without any explanation is not
valid. The last ground may easily be disposed of. The words 'in the interests
of general public' no doubt are of a wide connotation but the authority in
construing the facts of the case should determine whether in the interests of
public the passport will have to be impounded. Whether the reasons given have a
nexus to the interests of general public would depend upon the facts of each
case. The plea that because of the vagueness of the words 'interests of the
general public' in the order, the order itself is unsustainable, cannot be
accepted.
221. The submission that in the context
the rule of natural justice, that is, the right to be heard has not been
expressly or by necessary implication taken away deserves careful
consideration. Under Section 10
(3) the passport authority is authorised to impound or revoke a passport on any
of the grounds specified in clauses (a) to (h) of sub-section (3). Sub-section
3 (a) enables the authority to impound a passport if the holder of the passport
is in wrongful possession thereof. Under sub-section 3 (b) the authority can
impound a passport if it was obtained by the suppression of material information
or on the basis of wrong information provided by the holder of the passport.
Under clause (d) a passport can be impounded if the holder had been convicted
by a Court of India for any offence involving normal turpitude and sentenced to
imprisonment for not less than two years. Under clause (e) the passport can be
impounded where proceedings in respect of an offence alleged to have been
committed by the holder of a passport is pending before a criminal court in
India. Clause (f) enables the authority to impound the passport if any of the
conditions of the passport have been contravened. Under clause (g) the passport
authority can act if the holder of the passport had failed to comply with a
notice under sub-section (1) requiring him to deliver up the same. Under
sub-clause (h) a passport may be impounded if it is brought to the notice of
the passport authority that a warrant or summons for appearance of the holder
of the passport has been issued by any court or if there is an order
prohibiting departure from India of the holder of the passport has been made by
a court. It will be noticed that when action is contemplated under any of the
clauses (a), (b), (d), (e), (f) and (h), it is presumed that the authority will
give notice, for the passport authority cannot be satisfied under subclause (a)
that the holder is in wrongful possession thereof or under clause (b) that he
obtained the passport by suppression of material information. Similarly under
clause (d) whether a person has been convicted by a court in India for any
offence involving moral turpitude and sentenced to imprisonment for not less
than two years, can only be ascertained after hearing the holder of the
passport. Under clause (e) the fact whether proceedings in respect of an
offence alleged to have been committed by the holder of the passport are
pending before a criminal court can only be determined after notice to him.
Equally whether a condition of passport has been contravened under sub-clause
(f) or whether he has failed to comply with a notice under sub-section (1) can
be ascertained only after hearing the holder of the passport. Under clause (h)
also a hearing of the holder of the passport is presumed. Reading clause (c) in
juxtaposition with other sub-clauses, it will have to be determined whether it
was the intention of the legislature to deprive a right of hearing to the
holder of the passport before it is impounded or revoked. In this connection,
it cannot be denied that the legislature by making an express provision may
deny a person the right to be heard. Rules of natural justice cannot be equated
with the Fundamental Rights. As held by the Supreme Court in Union of
India v. J.N. Sinha, (1971)1 SCR 791 that "Rules of natural
justice are not embodied rules nor can they be elevated to the position of
Fundamental Rights. Their aim is to secure justice or to prevent miscarriage of
justice. These rules can operate only in areas not covered by any law validly
made. They do not supplant the law but supplement it. If a statutory provision
can be read consistently with the principles of natural justice, the courts
should do so.
But if a statutory provision either
specifically or by the necessary implication excludes the application of any
rules of natural justice then the court cannot ignore the mandate of the
legislature or the statutory authority and read into the concerned provision
the principles of natural justice." So also the right to be heard cannot
be presumed when in the circumstances of the case there is paramount need for
secrecy or when a decision will have to be taken in emergency or when
promptness of action is called for where delay would defeat the very purpose or
where it is expected that the person affected would take an obstructive
attitude. To a limited extent it may be necessary to revoke or to impound a
passport without notice if there is real apprehension that the holder of the
passport may leave the country if he becomes aware of any intention on the part
of the passport authority or the Government to revoke or impound the passport.
But that by itself would not justify denial of an opportunity to the holder of
the passport to state his case before a final order is passed. It cannot be
disputed that the legislature has not by express provisions excluded the right
to be heard. When the passport authority takes action under Section 10 (5) he is required to record in writing a
brief statement of reasons and furnish a copy to the holder of the passport on
demand unless he for sufficient reasons considers it not desirable to furnish a
copy. An order thus passed is subject to an appeal where an appellate authority
is required to give a reasonable opportunity to the holder of the passport to
put forward his case. When an appeal has to be disposed of after giving an
opportunity to the aggrieved person it cannot to do so without hearing the
aggrieved person. Further when a passport is given for a specified period the
revocation or impounding during the period when the passport is valid can only
be done for some valid reason. There is a difference between an authority
revoking or modifying an order already passed in favour of a person and
initially refusing to grant a licence. In Purtabpur Co. v. Cane
Commissioner. Bihar (1969)2 SCR 807 the Supreme Court held that
"it would not be proper to equate an order revoking or modifying a licence
with a decision not to grant a licence." In Schmidt v. Secretary of
State, Home Affairs, (1969)2 Ch 149 Lord Denning observed that 'If his
permit (alien) is revoked before the time limit expires he ought, I think, to
be given an opportunity of making representation; for he would have a
legitimate expectation of being allowed to stay for the permitted time."
Lord Denning extended the application
of the rule of audi alteram partem even in the case of a foreign alien who had
no right to enter the country. When a permit was granted and was subsequently
sought to be revoked it has to be treated differently from that of refusing
permission at the first instance. As in the present case the passport which has
been granted is sought to be impounded the normal presumption is that the
action will not be taken without giving an opportunity to the holder of the
passport. Section 10(3) in enumerating the
several grounds on which the passport authority may impound a passport has used
the words like 'if the authority is satisfied,' "the authority deems it
necessary to do so." The Privy Council in Durayappah v. Fernando
(1967)2 AC 337 after referring to an earlier decision in Sugathadasa
v. Jayasinghe (1958) 59 NLR 457 disagreed with the decision holding
"As a general rule that words such as 'where it appears to....' or: 'if
appears to the satisfaction of ......' or 'if the .... is satisfied that ....
standing by themselves without other words or circumstances of qualification,
exclude a duty to act judicially." The Privy Council in disagreeing with
this approach observed that these various formulae are introductory of the
matter to be considered and are given little guidance upon the question of audi
alteram partem. The statute can make itself clear on this point and if it does
cadit quaestio. If it does not then the principle laid down in Cooper v.
Wardsworth Board of Works (1863) 14 CB (NS) 180 where Byles, J. stated
"A long course of decision, beginning with Dr. Bentley's case (1723) 1 Str
557: 8 Mod 148 and ending with some very recent cases, establish, that although
there are no positive words in the statute requiring that the party shall be
heard, yet the justice of the common law will supply the ommission of the
legislature." In the circumstances, their is no material for coming to the
conclusion that the right to be heard has been taken away expressly or by
necessary implication by the statute.
222. I may at this stage refer to the
stand taken by the learned Attorney-General on this question. According to him
'on a true construction, the rule audi alteram partem is not excluded in
ordinary cases and that the correct position is laid down by the Bombay High
Court in the case of Minoo Maneckshaw v. Union of India (1974) 76 Bom LR
788. The view taken by Tulzapurkar, J. is that the rule of audi alteram
partem is not excluded in making an order under Section 10 (3) (c) of the Act. But the Attorney General
in making the concession submitted that the rule will not apply when special
circumstances exist such as need for taking prompt action due to the urgency of
the situation or where the grant of opportunity would defeat the very object
for which the action of impounding is to be taken. This position is supported
by the decision of Privy Council in De Verteuil v. Knaggs, (1918) AC 557
wherein it was stated 'it must, however be borne in mind that there may be special
circumstances which would satisfy a Governor, acting in good faith, to take
action even if he did not give an opportunity to the person affected to make
any relevant statement, or to correct or controvert any relevant statement
brought forward to his prejudice."
This extraordinary step can be taken by
the passport authority for impounding or revoking a passport when he apprehends
that the passport holder may leave the country and as such prompt action is
essential. These observations would justify the authority to impound the
passport without notice but before any final order is passed the rule of audi
alteram partem would apply and the holder of the passport will have to be
heard. I am satisfied that the petitioner's claim that she has a right to be
heard before a final order under Section 10
(3) (c) is passed is made out. In this view the question as to whether Section 10 (3) (c) is ultra vires or not does not
arise.
223. It was submitted on behalf of the
State that an order under section 10
(3) (C) is on the subjective satisfaction of the passport authority and that as
the decision is purely administrative in character it cannot be questioned in a
court of law except on very limited grounds. Though the courts had taken the
view that the principle of natural justice is inapplicable to administrative
orders, there is a change in the judicial opinion subsequently. The frontier
between judicial or quasi judicial determination on the one hand and an
executive or administrative determination on the other has become blurred. The
rigid view that principles of natural justice applied only to judicial and
quasi judicial acts and not to administrative acts no longer holds the field.
The views taken by the courts on this subject are not consistent, while earlier
decisions were in favour of administrative convenience and efficiency at the
expense of natural justice, the recent view is in favour of extending the application
of natural justice and the duty to act fairly with a caution that the principle
should not be extended to the extreme so as to affect adversely the
administrative efficiency. In this connection it is useful to quote the
oft-rpeated observations of Lord Justice Tucker in Russell v. Duke of
Narfolk, (1949)1 All England Reporter 109 (at p. 118) "The
requirements of natural justice must depend on the circumstances of the case,
the nature of the inquiry, the rules under which the tribunal is acting, the
subject matter that it being dealt with, and so forth..... but, whatever
standard is adopted, one essential is that the person concerned should have a
reasonable opportunity of presenting his case." In R. v. Gaming
Board Ex. p. Benaim (1970) 2 QB 417 Lord Denning held that the view
that the principle of natural justice applied only to judicial proceedings and
not to administrative proceedings has been overruled in Ridge v. Baldwin
(1964) AC 40. The guidance that was given to the Gaming Board' was that
they should follow the principles laid down in the case of immigrants namely
that they have no rights to come in, but they have a right to be heard. The
Court held in construing the words the Board "shall have regard only"
to the matter specified, the Board has a duty to act fairly and it must give
the applicant an opportunity of satisfying them of the matter specified in the
section. They must let him know what their impressions are so that he can
disabuse them. The reference to the cases of immigrants is to the decisions of
Chief Justice Parker in the Re H. K. (An infant) (1967) 2 QB 617 (at p. 630).
In cases of immigrants though they had no right to come into the country it was
held that they have a right to be heard. These observations apply to the present
case and the plea of the petitioner that the authority should act fairly and
that they must let her know what their impressions are so that, if possible,
she can disabuse them, is sound.
224. In American law also the decisions
regarding the scope of judicial review is not uniform. So far as constitutional
rights are involved due process of law imports a judicial review of the action
of administrative or executive officers. This proposition is undisputed so far
as the question of law are concerned but the extent to which the Court should
go and will go in reviewing determinations of fact has been a highly
controversial issue. (Constitution of the United States of America. P. 1152,
1973 Ed.)
225. On a consideration of various
authorities it is clear that where the decision of the authority entails civil
consequences and the petitioner prejudicially affected he must be given an
opportunity to be heard and present his case. This Court in Barium
Chemicals Ltd. v. Company Law Board (1966) Supp SCR 311 and Rohtas
Industries Ltd. v. S. D. Agrawal (1969) 3 SCR 108 has held that a
limited judicial scrutiny of the impugned decision on the point of rational and
reasonable nexus was open to a court of law. An order passed by an authority
based on subjective satisfaction is liable to judicial scrutiny to a limited
extent has been laid down in U.P. Electric Co. v. State of U. P. (1969) 3
SCR 865 wherein construing the provisions of Section 3 (2) (e) of the Indian Electricity Act 9 of
1910 as amended by the U.P. Act 30 of 1961, where the language used is similar
to Section 10 (3) (c) of the Passport Act, this Court
held that when the Government exercises its power on the ground that it
"deems such supply necessary in public interest" if challenged, the
Government must make out that exercise of the power was necessary in the public
interest. The Court is not intended to sit in appeal over the satisfaction of
the Government. If there is prima facie evidence on which a reasonable body of
persons may hold that it is in the public interest to supply energy to
consumers the requirement of the statute are fulfilled. "In our judgment,
the satisfaction of the Government that the supply is necessary in the public
interests is in appropriate cases not excluded from judicial review." The
decisions cited are clear authority for the proposition that the order passed
under Section 10 (3) (c) is subject to a
limited judicial scrutiny. An order under Section 10
(3) (c) though it is held to be an administrative order passed on the
subjective satisfaction of the authority cannot escape judicial scrutiny. The
Attorney-General fairly conceded that an order under Section 10 (3) (c) is subject to a judicial scrutiny
and that it can be looked into by the court to the limited extent of satisfying
itself whether the order passed has a rational and reasonable nexus to the
interests of the general public.
226. It was next contended on behalf of
the petitioner that the provisions of Section 10
(5) of the Act which empowers the passport authority or the Government to
decline furnishing the holder of the passport a brief statement of the reasons
for making an order if the authority is of the opinion that it will not be in
the interest of sovereignty and integrity of India, security of India, friendly
relations of India with any foreign country, or in the interests of the general
public is unsustainable in law. It was submitted that along with the right to
refuse to furnish a copy of the order made by the Government, as a right of
appeal is denied against an order made by the Central Government the provisions
should be regarded as total denial or procedure and arbitrary. In view of the
construction which is placed on Section 10
(3) (c) that the holder of the passport is entitled to be heard before the
passport authority deems it necessary to impound a passport, it cannot be said
that there is total denial of procedure. The authority under Section 10 (5) is bound to record in writing a brief
statement of the reasons for making an order and furnish to the holder of the
passport or travel document on demand a copy of the same, unless in any case,
the passport authority is of the opinion that it will not be in the interests
of the sovereignty and integrity of India, the security of India, friendly relation
of India with any foreign country or in the interests of general public to
furnish such a copy. The grounds on which the authority may refuse to furnish
the reasons are the same as provided in Section 10
(3) (c) for impounding a passport but the two powers are exercisable in totally
different contexts. Under Section 10
(3), the question that has to be considered is whether the passport has to be
impounded in the interests of sovereignty and integrity of India etc. or in the
interests of general public. In passing an order under Section 10 (5) it has to be considered whether in the
interests of the sovereignty and integrity of India etc. or in the interests of
general public, furnishing of a copy of the reasons for the order, should be
declined. Though the same grounds are mentioned for impounding a passport as
well as for refusing to furnish the reasons for making an order, it would not
mean that when an order under Section 10
(3) (c) is passed it would automatically apply to Section 10 (5) and for the same reason the authority
can decline to furnish the reasons for the order. Section 10(5) says that the authority shall furnish to
the holder of the passport on demand a copy unless in any case the authority is
of opinion that it will not be in the interest of sovereignty and integrity of
India etc. The expression "unless in any case" would indicate that it
is not in every case that the authority can decline to furnish reasons for the
order. There may be some cases and I feel that it can be only in very rare
cases, that a copy containing the reasons for making such order can be refused.
Though rare there may be some cases in which it would be expedient for the
authority to decline to furnish a copy of the reasons for making such order.
But that could only be an exception is indicated from the fact that the aggrieved
persons has a right of appeal under Section 11
which has to be decided after giving a reasonable opportunity of representing
his case. A reasonable opportunity cannot ordinarily be given without
disclosing to that person that reasons for the order. In those rare cases in
which a copy for the reasons of the order is declined by the passport authority
and is not furnished during the hearing of the appeal, it would furnish
sufficient justification for the courts to have a close look into the reasons
for the order and satisfy itself whether it has been properly made. But I am
unable to say that a provision which empowers the authority to decline to
furnish reasons for making the order is not within the competence of the
legislature. The learned counsel for the petitioner, with some justification,
submitted that if no reasons are furnished by the Government and no appeal is
provided against the order of the Government it would virtually amount to
denial of procedure established by law as contemplated under Article 21 of the Constitution of India.
Though there is considerable force in
this submission. I am unable to accept this plea for two reasons. Firstly the
Government is bound to give an opportunity to the holder of the passport before
finally revoking or impounding it. I expect the case in which the authority
declines to furnish reasons for making such an order would be extremely rare.
In such cases it should be borne in mind that when the Government itself passes
an order it should be presumed that it would have made the order after careful
scrutiny. If an order is passed by the passport authority, an appeal is
provided. If the Government passes an order, though no appeal is provided for,
but as the power is vested in the highest authority the section is not
unconstitutional - (Chinta Lingam v. Government of India, (1971) 2 SCR
871 at p. 876) for the order would be subject to judicial scrutiny by
the High Court and the Supreme Court. I feel that in the circumstances there is
no justification for holding that Section 10
(5) of the Act is ultra vires of the power of the legislature. We have taken
note of the fact that in the present case there is no reason in declining to
furnish to the petitioner the statement of reasons for impounding the passport
but such a lapse by the authority would not make Section 10 (5) ultra vires of the powers of the
legislature.
227. It was next contended that in the
present case the passport was impounded under Section 10 (3) (c) of the Act on the ground that (a) it
is in the public interest that Smt. Maneka Gandhi should be able to give
evidence before the Commission of Inquiry and, (b) that Smt. Maneka Gandhi
should have an opportunity to present her views before the Commission of
Inquiry and according to a report received there is likelihood of Smt. Maneka
Gandhi leaving India. It was submitted that impounding of the passport on the
ground stated above is unjustified. Referring to Section 10 (3) (h) where it is provided that when it is
brought to the notice of the passport authority that a warrant or summons for
appearance or a warrant for the arrest of the holder of the passport has been
issued by a court under any law for the time being in force or if an order
prohibiting the departure from India of the holder of the passport or other
travel document has been made by any such court and the passport authority is
satisfied that a warrant or summons has been so issued or an order has been so
made, impound the passport. For application of this clause there must be a
warrant or summons from the court or an order by the Court prohibiting the
departure from India. It was submitted that it is not certain whether the
Commission would require the presence of the petitioner at all and if required
when her presence will be necessary. There had been no summons or any
requisition from the Commission of Inquiry requiring the petitioner's presence
and in such circumstances it was submitted that the order is without any
justification. A notification issued by the Ministry of External Affairs under
Section 22 (a) of the Passports Act on 14-4-1976
was brought to our notice. By that notification the Central Government
considered that it is necessary in the public interest to exempt citizens of
India against whom proceedings in respect of an offence alleged to have been
committed by them are pending before a criminal court in India and if they
produce orders from the Court concerned permitting them to depart from India
from the operations of the provisions of clause (f) of sub-section (2) of
Section 6 of the Act subject to the condition that
the passport will be issued to such citizen only for a period specified in such
order of the Court and if no period is specified the passport shall be issued
for a period of six months and may be renewed for a further period of six
months if the order of the court is not cancelled or modified. The citizen is
also required to give an undertaking to the passport authority that he shall,
if required by the court concerned, appear before it at any time during the
continuance in force of the passport so issued. It was submitted that when such
facility is provided for a person who is being tried for an offence in a
criminal court the same facility at least should be given to a person who may
be required to give evidence before a Commission of Inquiry. It is unnecessary
for me to go into the questions as to whether in the circumstances the
impounding of the passport is justified or not for the learned Attorney General
submitted that the impounding was for the purpose of preventing the petitioner
from leaving the country and that a final decision as to whether the passport
will have to be impounded and if so for what period will be decided later. On
behalf of the Government a statement was filed which is as follows :-
"1.
The Government is agreeable to considering any representation that may be made
by the petitioner in respect of the impounding of her passport and giving her
an opportunity in the matter. The opportunity will be given within two weeks of
the receipt of the representation. It is clarified that in the present case,
the grounds for impounding the passport are those mentioned in the affidavit in
reply dated 18th August, 1977 of Shri Ghosh except those mentioned in para 2
(xi).
2.
The representation of the petitioner will be dealt with expeditiously in
accordance with law.
3.
In the event of the decision of impounding the passing having confirmed, it is
clarified that the duration of the impounding will not exceed a period of six
months from the date of the decision that may be taken on the petitioner's
representation.
4.
Pending the consideration of the petitioner's representation and until the
decision of the Government of India thereon, the petitioner's passport shall
remain in custody of this Honourable Court.
5.
This will be without prejudice to the power of the Government of India to take
such action as it may be advised in accordance with the provisions of the
Passport Act in respect of the petitioner's passport."
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
representation, 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.
228. In the result, I hold that the
petitioner is not entitled to any of the fundamental rights enumerated in Article
19 of the Constitution and that the Passport
Act complies with the requirements of Article 21 of
the Constitution and is in accordance with the procedure established by law. I
construe Section 10 (3) (c) as providing a
right to the holder of the passport to be heard before the passport authority
and that any order passed under Section 10
(3) is subject to a limited judicial scrutiny by the High Court and the Supreme
Court.
229. In view of the statement made by
the learned Attorney General to which reference has already been made in
judgment, I do not think it necessary to formally interfere with the impugned
order. I accordingly dispose of the writ petition without passing any formal
order. There will be no order as to costs.
ORDER
230. 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.
Order accordingly.
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