·~
MANEKA GANDHI
v.
UNION OF INDIA
January 25, 1978
[M. H. BEG, c. J., Y. v. CHANDRACHUD, P. N. BHAGWATI,
V. R. KRISHNA IYER, N. L. UNTWALIA, S. MuRTAZA FAZAL Au,
AND P. S. KAILASAM, JJ.]
Constitution of India Articles 14, 19 (1) (a) and 21-Personal liberty
Whether right to go abroad is part of personal liberty-Whether a law which
tomplies with Article 21 has still to meet the challenge of Article 19.-Nature
and ambit of Article 14-ludging validity with reference to direct and inevitable
cOect-Whether the right under Article 19(1) (a) has any geographical limitation.
Pnssports Act, 1967-Ss. 3,5,6,10(3) (c), 10(5)-Whether s,lO (3 )(c)___ is
violative of Articles 14, 19(1) (a) (b) & 21-Grounds for refusing to gram
passport-Whether the power to impound passport arbitrary-"in general public
interest" if vague.
A
B
c
Principles of Natural Justice-Whether applies only to quasi judicial orders D
or applies TO administrative orders affecting rights of citizens-When statute
silent whether can be implied-Duty to act judicially whether can be spell ou~
In urgtnt cases whether principles of natural justice can apply.
The petitioner was issued a passport on Juqe 1, 1976 under the Passport Act,
1967. On the 4th of July 1977, the petitioner received a letter dated 2nd
July, 1977, from the Regional Passport Officer Delhi intimating to her that it was
decided by the Government of India to impound her passport under s. 10(3)(c) E
of the Act "in public interest". The petitioner was required to sum:nd.:r her pass-
port within 7 days from the receipt of that letter. The petitioner immediately
addressed a letter to the Regional Passport Officer requesting him to furnish a
copy of the statement of reasons for making the order as provided in s.10(5).
A reply was sent by the Government of India, Ministry of External Affairs on
6th July 1977 stating i1t1er alia that the Government decided "in the interest of
the general public" not to furnish her copy of the statement of reasons for the
making of the order. The petitioner thereupon filed the present Writ Petition
chullenging action of the Government in impounding her passport and declining F
to give reasons for doing so. The Act was enacted on 24-4-67 in view of the
decision of this Court in Satwant Sint<h Sawflllcy's case. The position which
obtained prior to the coming into force of the Act was that there was no law regu
lating the issue of passports for leaving th<.: shores of India and going abroad. The
issue of passrorl was entirely within the unguided and unchannelled discretion
of the Executive. In Sat want Singh's case, this Court hdd bv a majority that
the expression 'personal liberty' in Article 21 takes in, the right of locomotion
and travel abroad and under Art. 21 no nerson can be deprived of his right to G
go abroad except according to the procedure established by law. This decision
was acceoted by the llarliament and the infirmity pointed out by it was set right
by the enactment of the Passports Act, 1967. The preamble of the Act shows
that it was enacted to provide for the issue of passport and travel documents
to regulate the departure from India of citizens of India and other persons and
for incidental and ancillary matters. Section 3 provides that no person shall
deJ"Iart from or attempt to depart from Tndia unless he holds in this behalf a
valid passport or travel document. Section 5(1) provides for making of an
aoplica ti?n for issue of ~ passport or travel document for visiting foreign country.
Suh-sectron ( 2) of sectton 5 says that on receipt of such application the Pass-H
port Authority. after making such enquiry, if any, as it may consider necessary,
shall, by order in writing, issue or refme to issue the passport or travel document
or make or refuse to make that passport or travel document endorsement in
A
B
c
D
E
F
G
B
622 SUPREME COURT REPORTS [1978) 2 S.C.R.
respect of one or more of the foreign countries specified in the application.
Sub-section
(3) requires the
Passport Authority where it refuses to issue the pass
port or travel document or to make any endorsement to record in writing a brief
statement of its reasons for making such order. Section 6(1) lays down the
grounds on which the Passport Authority shall refuse to make an endorsement
for visiting any foreign country and provides that on no other ground the endorse
ment shall be refused. Section 6 (2) specifies the grounds on which alone and
on no other grounds the Passport Authority shall refuse to issue the Passport ot
travel document for visiting any foreign country and amongst various ground!
set out there the last is that in the opinion of the Central Government the issm
of passport or travel document to the applicant will not be in the public inter_est
Sub-section (1) of sectio"' 10 empowers the Passport Authority to vary or can
cel the endorsement on a passport or travel document or to vary or cancel it or
the conditions subject to which a passport or travel document has been issuec
having
regard to, inter
ali'a,. the provisions of s. 6 ( 1) or any notification unde ·
s. 19. Sub-section (2) confers powers on the Passport Authority to vary o:
cancel the conditions of the passport or travel document on the application o:
the holder of the passport or travel document and with the previous approval
of the Central Government. Sub-section (3) provides that the Passport Autho
rity
may impound or cause to be impounded or revoke a passport or travel
de·
cument on the grounds set out in cl. (a) to (h). The order impounding th!
passport in the present. case, was made by the Central Governm~nt under cl. (c)
which reads as follows :-
" (c) 1f the passport authority deems it necessary so to do in the
interest of the sovereignty and integrity of India, the security of India,
friendly relations of India with the foreign country, or in the interests
of the general public."
Sub-~;ection ( 5) requires the Passport Authority impounding or revoking a pas;
port 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 :u d
furnish to the holder of the passJ'ort or travel document on demand a copy 1 )f
the same. unless, in any case, the Passport Authority is of the opinion that it
wilT not be in the interest of the sovereignty and integrity of India, the securi:y
of India, friendly relations of India with any foreign countrv, or in the intenst
of the general public to furnish such a copy. The Central Government declin :d
to furnish a copy of this statement of reasons for impounding the passport of t 1e
petitioner on the ground that it was not in the interest of the general public to
furnish such copy to the petitioner.
The petitioner contended.
1. The right to go abroad is part of "personal liberty" within the meaning
of that expression as used in Art. 21 and no one can be deprived of this ri1 :ht
except according to the procedure prescribed by law. There is no proced_ure
prelicribed by the Passport Act, for impounding or revoking a Passport. E~ en
if some procedure can be traced in the said Act it is unreasonable and arbitr;try
in as much as it does not provide for giving an opportunity to the holder of he
Passport to be heard against the making of the order.
2. Section 10(3)(c) is violative of fundamental rights guaranteed under Arti
c1es 14, 19(1) (a) and (g) and 21.
3. The impugned order is made in contravention of the rules of natural j.1s:ice
and is, therefore, null and void. The impugned order has effect of placing an
unreasonable restriction on the right of free speech and expression guaranteed
to the petitioner under Article 19(1 )(a) as also on the right to carry on the
profession of a journalist conferred under Art. 19(1 )(g).
4. The impugned order could not consistently with Articles 19(1 ){a.) and
(g) be passed on a mere information of the Central Government that th<! ?te·
sence of the· petitioner is likely to be required in connection with the proce:dmgs
before the Commission of Inquiry.
1
MANEKA GANDHI V. UNION 623
5. In order that a passport may be impounded under s. 10(3)(c), public A
Jill" intere11t mmt actually exist in present an~ mere _likelihood of public interest
.arising in future would be no ground for 1mpoundmg the passport.
,
I
6. It was not correct to say that the petitioner was likely to be required for
giving evidence before the Shah Commission.
The respondents denied the contentions raised by the petitioner.
BEG, C. J., (Concurring with Bhagwati, J.)
1. The right of travel and to go outside the country is included in the right
10 personal liberty. [643 G]
Satwant Singh Sawhney v. D. Ramarathnam Assistant Passport Officer,
<Jovernmelll of India, New Delhi & Ors. [19671 3 SCR .525 and Kharak SinRh
v. State of U.P. & Ors. [1964] 1 SCR 332 relied on.
2. Artic1e 21 though 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 pro
tects which lies beneath that shield. [644 B}
A
.. K. Gopalan v. State of Madras, [1950] SCR 88 and Additional District
Magistrate, Jabalpur
v.
S. S. Shukla [1976] Suppl. SCR 172 @ 327 referred to.
Haradhan Saha v. The State of West Bengal & Ors. [1975] 1 SCR 778,
Shambhu Nath Sarkar v. State of West Bengal [1973} 1 S.C.R. 856 and R. C.
-Cooptr v. Union of India [1973] 3 SCR 530 referred to.
3.
The view that Articles 19 and 21 constitute watertight compartments has
been
rightly over-ruled. The doctrine that Articles 19 and 21 protect or regulate
flows
in different channels, was laid down in A. K. Gopalan's case in a context
which was very different from that in which that approach was displaced by the
counter view that the constitution
mu~t be read as an intearal whole, with possi
ble overlappings of the subject matter of what is sought to be protected by its
various provisions, particularly by articles relating to fundamental rights. The ob
servations in A. K. Gopalan's case that due process with regard to law relating
to preventive detention are to be found in Art. 22 of the Constitution because it
is a self-contained code for laws. That observation was the real ratio decidendi of
tGopalan's case. Other observations relating to the separability of the subject
matters of Art. 21 and 19 were mere obiter dicta. This Court has already heid'
in A. D. M. Jabalpur's case by reference to the decision from Gopalan's case
that the ambit of personal liberty protected by Art. 21 is wide and com
prehensive. The <Juestions relating to either deprivation or restrictions of per·
sonal liberty, concerning laws falling outside Art. 22 remain really unanswered
by the Gopalan's case. The field of 'due process' for cases of preventive deten·
tion is fully covered by Art. 22 but other parts of that fidd not covered by Art.
22 are 'Unoccupied' by its specific provisions. In what may be called unoccu·
1)ied portions of the vast sphere of personal liberty, the substantive as well as
procedural laws made to cover them must satisfy the requirements of both Arts.
14 and 19 of the Constitution. [646 E·H, 647 B·D, 648 A-Bl
Article8 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 giand flow unimpeded
and impartial justice (social, economic and political-), freedom (not only .of
thought, expression, belief,
faith and worship, but also of associa.tion, movement,
vocation
or occupation as well as of acquisition and
pos~ession of reasonable
property), or equality (of status and of opportunity, which imply absence of
·,unreasonable or unfair discrimination between individuals, groups and classes),
.and of fraternity (assuring dignity of the individual and the unity of the nation)
B
c
D
E
F
G
H
A
624 SUPREME COURT REPORTS [1978] 2 S.C.R~
which our Constitution visualises. Isolation of various aspects of human free
dom, for purposes of their protection, is neither realistic nor beneficial but would
defeat very objects of such protection. [648 B-D]
Blackstone's theory of natural rights cannot be rejected as totally irrelevant.
If we have advanced today towards higher civilization and in a more enlighkned
era we cannot lag behind what, at any rate, was the meaning given to 'personal
liberty' long ago by Blackstone. Both the rights of personal security and perso-
8 . nal liberty recognised by what Blackstone termed 'natural law' are embodied in.
Art. 21 of th.e Ccmtitution. [649 A-C, 650> H, 651 :\-B]
c
D
E
F
G
ll
A. D. M. Jabal pur vs. S. S. Shukla [1976] Supp. S.C.R. 172 relied on.
The natural law rights were m~ant to be converted into our constitutionally
rec~gnised fundamental rights so that they are to be found within it and not
outside it. To take a contrary view would involve a conflict between natural
Jaw and our constitutional law. A divorce between natural law and our consti
tutional law would be disastrous. It would defeat one of the basic purposes of
our Constitution. [652 B-CJ
The total effect and not the mere form of a restriction would determine which,
fundamental right is really involved in a particular case and whether a restriction:
upon its exercise is reasonably permissible on the facts and circumstances of
that case. [652 H, 653A]
If rights under Art. 19 are rights which inhere in Indian citizens, individuals
carry these inherent fundamental constitutional rights with them wherever they
go, in so far as our Ia w applies to them, because they are part of the Indian
National just as Indian ships, flying the Indian flag are deemed in international
law to be floating parts of Indian territory. This analogy, however, could not
be pushed too far because Indian citizens, on foreign territory, are only entitled
by virtue of their Indian Nationality and Passports to the protection of the
Indian Republic and the assistance of its Diplomatic Missions abroad. They
cannot claim to be governed abroad by their own constitutional or personal
laws which do not operate outside India. [653 A-Cl
In order to apply the test contained in Arts. 14 and 19 of the Constitution we
have to consider the objects for which the exercise of inherent rights recognised
by Art. 21 of the Constitution are restricted as wel1 as the procedure by which
these restrictions are sought to be imposed, both substantive and procedural laws
and actions taken under them will have to pass the test imposed by Arts. 14
and 19, whenever facts justifying the invocation of either of these Articles may
be disclosed, for example, an international singer or dancer may well be able to
complain of an unjustifiable restriction on orofessional activity by denial of a
passport. In such a case. violation of both Arts. 21 and J9(1)(g) may be
put forward making it necessary for the authorities concerned to justify the res
triction imposed ·by showing satisfaction of tests of validity contemrlated by
each of these two Articles. [653 F-H]
The tests of reason and justice cannot be abstract. They cannot be divorced
from the needs of the nation. The tests have to be pragmatic otherwise they
would cease to be reasonable. The discretion left to the authority to impound
a passport in oublic interest cannot invalidate the law itself. We cannot, out of
fear, that such power will be misused, refuse to permit Parliament to entrust
even such power to executive authorities as may be absolutely necessary to carry
out the purposes of a validly exercisable power. Jn matter' such as, grant, sus
,'pension, impounding or cancellation of passports. the possible dealing of an
individual with national~ and authorities of other States h:we to be considered.
The contem!llated or po~sible activities abroad of the individual may have to be
taken into account. There may be quesions of national safety and welfare
which tr~t",cend the imrortance of the individual's inherent right ro go where ne
or she pleases to go. Therefore, the grant of wide disC"retionary power to the exe
cutive authorities cannot be considered as unreasonab1e yet there must be proce
dural safeguards to ensure that the power wi11 not be used for purJ')oses extra
neous to the grant of the power. The procedural proprieties must be insisted'
upon. [654 A-EJ
.
I
I
).
f
MANEKA GANDHI-v. UNION 625
A bare look at the provisions of s. 10(3) shows that each of the orders A
which could be passed under s. 10(3)(a) and (b) requires a satisfaction of the
Passport Authority on certain objective conditions which must exist in a case
before it passes an order to impound a passport or a travel document. Im
pounding or revocation are placed side by side on the same footing in the pro
visions. [654 G-H]
It is clear from the provisions of the Act that there is a statutory right also
acquired, on fulfilment of the prescribed conditions by the holder of a passport, 8
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 Art. 32, the Court is concerned only with the enforcement of
fundamental constitutional rights and not with any statutory rights apart from
fundamental rights. Article 21, however, makes it clear that violation of all law
whether statutory or of any other kind is itself an infringement of the guaranteed
fundamental right. [655 B-D]
The orders under s. 10(3) must be based upon some material even if tha
material concerns in some cases of reasonable suspicion arising from certair.
credible assertions
made by reliable individuals. In an emergent situation, the
impounding of a passport may become necessary without even giving
an opportu-
nity to be heard against s11ch a step which could be reversed after an opportunity
is given to the holder of the passport to show why the step was unnecessary.
However. ordinarily no passport could be reasona.bly either irnpoundect or revoked·
without giving a prior opportunity to its holder to show cause against the pro·
posed action. [655 D·E]
It is well-settled that even when there is no specific provision in a statute
or rules made thereunder for showing cau«e against action nronosed to be taken
against an individual. which affects the right of that individual the dutv to ~ive
reasonable opportunity to be beard will be implied from the nature of the func
tion to be perfor!N'rl hy the authority which ha-. the power to take punitive or
d:~maging action. [655 G]
c
D
State nf Orissa v. Dr. (Miss) Binapani Dei & Ors. AIR [1967] SC 1269 @ E
1271 relied on.
Cooper
v.
Wand.~worth Board of Works, [1863] 14 C.B. (N. S.) 180
quoted with approval.
An order impounding a passport must be made quasi-judicially. This was not
done in the present case. It cannot be said that a good enough reason has been
shown tQI exist for impo1Jnding the passport of the petitioner. T he petitio ner had F
no opportunity of showing that the ground for impounding it given in this Court
either does not exist or has no bearing on public interest or that the public in
terest can be better served in some other manner. The order should be quashed •
and the respondent should be directed to give an opportunity to the petitioner
to show cause against any proposed action on such grounds as may be available.
[656 E-Gl
There were no pressing grounds with regard to the petitioner that the imme·
diate action of impounding her passport was called for. The rather cavalier
fashion in which
the disclosure of any reason for impounding of her passport G
was denied to the petitioner despite the fact that the only reason said to exist is
the possiblity of her being called to give evidence before a Commission of
In
quiry. Such a ground is not such as to be reasonably deemed to necessitate its
concealment
in public interest. [656 G-H]
Even executive authorities when taking administrative action which involves
anv deprivation of or restriction on inherent fundamental rights of citizens must
take care to see that justice is not only done but manifestly appears to be done. H
They have a duty to proceed in a way which is free from even the appearance of
arbitrariness, unreasonableness or unfairness. They have to act in a manner
which is patently impartial and meets the requirements of natural justice.
[657 A-B1
626 SUPREME COURT REPORTS (1978] 2 S.C.R.
A
I
As the undertaking given by the Attorney General amounts to an offer to
deal with the petitioner justly and fairly after informing her of any grouRd that
may exist for impounding her passport, no further acLion by this Court is
necessary. [657 C-D]
The impugned order must be quashed and Passport Authorities be directed
to return the passport to the petitioner. Petition allowed with costs. [657 D]
B Clumdrachud, l. (concurring with Bhagwati, J.)
c
The power to refuse to disclose the 'reasons for impounding a passport is of
an exceptional nature and it ought to be exercised fairly, sparingly and only
when fully justified by the exigencies
of an uncommon situation. The reasons if
disclosed, being open to judicial scrutiny for ascertaining their nexus with
the
order impounding the passport, the refusal to disclose the reasons would also
be open to the scrutiny of the court; or else the wholesome power of a dispas
sionate judicial examination of executive orders could with impunity be set at
nought by an obdurate determination to suppr:ess the reasons. The disclosure
made under the stress
of the Writ Petition that the petiioner's passport was
im
pounded because, -her presence was likely to be required in connction with the
proceedings before a Commission of Inquiry, could easily have been made when
the petitioner called upon the Government to let her know the reasons why
her
passport was impounded. [658
A·D]
D
E
F
G
H
In Satwant Singh Saw/zney's case this Court ruled, by majority, that the ex
pression personal liberty which occurs in Art. 21 of the Constitution includes the
right to travel abroad and
that no person can be deprived of that
right except
according
to procedure established by law. The mere prescription of some kind
of procedure cannot even meet the mandate of Article 2 t. The procedure pres
cribed
by law has to be fair, just and reasonable, not
fanciful, oppressive or arbi
trary. The question whether the procedure prescribed
by law which curtails or
takes away the personal liberty guaranteed by Art. 21 is reasonable or not
bas
to be considered not in the abstract or on hypothetical considerations like the
provision
for a full-dressed hearing as in a court room trial but in the contest,
primarily,
of the purpose which the Act is intended to achieve and of urgent
situations which those who are charged with the duty
of administering the Act
may be called upon to deal with. Secondly, even the fullest
compliance with the
requirements of Art. 21 is not the journey's end because a bw which prescribes
fair and reasonable procedure
for curtailing or taking away the personal liberty
granted
by Art. 21 has still to meet a possible cha11enge under the other provi·
sions
of the Constitution. In the Bank
Natio1111lisation case the majority held
that the assumption in A. K. Gopalan's case that certain Articles of the Consti
tution exclusively deal with specific matters cannot be accepted as correct. Though
• the Bank Nationalisation case was concerned with the inter-relationship of
Art~ . 31 and 19 and not of Arts. 21 and 19, the basic approach adopted therein
as regards the construction of fundamental rights guaranteed in the different pro
visions of the Constitution categorically discarded the major premise of the majo
rity judgment in
Gopalan's case. [658 D-G, 659 A-BJ
The test of directness of the impugned law as contrasted with its consequence was thought in A. K. Gopalan and &m Singh's case to be the true approach for
determining whether a fundamental right was infringed. A significant application
of that test may be perceived in Naresh S. Mirajkar's case where an order passed
by the Bombay High Court prohibiting the publication of a witness's evidence
in a defamation case was upheld by this Co urt on the ground that it was passed
with the object
of affording protection to the witness in order to obtain true evi
dence and its impact
on the right of free speech and expression guaranteed by
Art. 19(1) (a) was incidentaL N. H. Bhagwati J. in
Express Newspapers Case
struck a modified note
by evolving the test of
proximate effect and operation of
the Statute. That test saw its fruition in Sakal Paper's case where the Court
giving precedence to the direct and immediate effect of the order over the form
and object, struck down the Daily Newspapers (Price and Page) Order, 1960,
on the ground that it violated Artic1e 19(1 )(a) of the Constitution. The culmi-
'
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/
J
....
/
MANEKA GANDHI V. UNION 627
nation of this thought process was reached in the Bank Nationalisation case
wbere it was held by the majority, speaking through Shall J, that the extent of
protection against the impairment of a fundamental right is determined by the
direct operation
of an action upon the individual's rights and not by the object
of the Legislature or by the form of the action. In Bennett Coleman's case
the
Court reiterated the same position. It struck down the newsprint policy
re~tricting the number of pages of newspapers without the option to reduce the
circulation as offending against the provisions of Art. 19(1) (a). [659 F-H,
660 A-C]
Article
19{ 1) (a) guarantees to Indian Citizens the right to freedom of
speech and expression. It does not delimit the
grant of that right m any manner
and there is no reason arising either out of interpretational dogmas or pragmatic
considerations why courts should strain the language
of the Article to cut
down amplitude of that right. The plain meaning of the clause guaranteeing
free speech
and expression is that Indian citizens are entitled to exercise that right
wherever they choose regardless
of geographical considerations. [661 A-D]
The
Comtitution does not confer any power on the executive to prevent the
exercise by an Indian citizen of the right of free speech and expression on
foreign soil. The Constitution guarantees certain fundamental freedoms except
where their exercise
is limited by territorial considerations. Those freedoms may
be exercised wheresoever one chooses subject to the exceptions or qualifications
mentioned in Art. 19 itself.
The right to go out of India is not an integral part
of the right of free speech and expression. The analogy of the freedom of
press being included in the right of free speech and expression is wholly
mig..
placed bt><'ause the right of free expression incontrovertibly includes the right
of freedom of press. The right to go abroad on one hand and the right of free
speech and expression on the other are made up basically of constituents so
different that one cannot be comprehended in the other. The presence of the
due process clause in the 5th and 14th amendments of the American Constitution
makes significant difference
to the approach of American Judges to the definition
and evaluation
of constitutional guarantees. This Court rejected the contention
that the freedom.Jo form associations or unions contained in Article 19(1) (c)
carried with it the right that a workers' union could do all that was
necessary
to make that right effective in order to achieve the purpose for which the union
was formed. [See the decision in All India Bank Employees Associ~tion].
[661 F, H, 662 A-B, E]
A
B
c
D
E
"' Bhagwati, J. (for himself Untwalia and Murtaza Fazal Ali, JJ)
..
)
The fundamental rights in Part III of the Constitution represent the basic
values cherished
by the people of
this country since the Vedic time~ and they
are calculated to protect the dignity of the individual and create conditions in
which every human being can develop his personality to the fullest extent. But F
these freedom~ are not and cannot be absolute, for absolute and unrestrict~d
freedom of one may be destructive of the freedom of another In a well ordered
civilised society, freedom
can only be regulated freedom.
· It is obvious that
Article 21 though couched in negative language confers fundamental right to
life and personal liberty. The question that arises for consideration on the
language of Art. 21 is as to what is the meaning and content of the words
'personal liberty' as used in this Article. In A. K. Gopalan's case a narrow inter
pretation
was placed on the words 'personal liberty.' But there was no definite
pronouncement made
on this point since the question before the court was G
not so much the internrctation of the
words 'personal liberty' as the inter-·
relation between Arts. 19 and 21. [667 G-H. 668 D-E, G, H, 669 A]
A. K. Copalan v. State of Madras [1950] SCR 88 and Kharak Singh v. State
of U. P. & Ors. {1964] 1 SCR 332 refen:ed to.
In I<. harak Singh's case the majority of this Court held that 'personal liberty'
is used in the Article as a compendious term to include within itself all varieties
of rights v:hich go to make up the personal liberties of man other than those
dealt with in several clauses of Article 19(1). The minority however took the H
view that the expression personal liberty is a comprehensive one arid the right
to mow freely is an attribute of personal liberty. The minority observed that
it was not right to exclude any attribute of personal liberty from the scope
A
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E
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G
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628 SUPREME CGURT REPORTS [1978] 2 S.C.R.
and ambit of Art. 21 on the ground that it was covered by Art. 19(1 ). It
was pointed out by the minority that both Articles 19 ( 1) and 21 are indepen·
dent fandamental rights though there is a certain amount of overlapping and
there is no question of one being carved out of another. The minority view
wa" upheld as correct and it was pointed out that it would not be light to read
ti-.e expression 'personal liberty' in Art. 21 in a narrow and restricted sense
so as to exclude those attributes of personal liberty which are specillc:.tlly dealt
with in Art. 19 (1). The attempt of the Court should be to expand the reach
and ambit of the fundamental rights rather than attenuate their meaning and
content by a process of judicial construction. The wavelength for compre
hending the scope and ambit -of the fundamental rights has been ~et by the
Court in R. C. Cooper's case and the approach of the Court in the interpre
tation of the fundamental rights must now be in tune with this wave length.
The expression 'personal liberty' in Art. 21 is of the widest amplitude and
covers a variety of rights which go to constitute the personal liberty of man
and some of them have been raised to the status of distinct fundamental rights
and given additional protection under Art. 19(1). Thus Articles 19(1) and
21 are not mutually exclusive. [669 B-670 A-H]
R. C. Cooper v. Union of India L1973] 3 SCR 530 relied on.
Shambhu Nath Sarkar v. The Srate of West Bengal & Ors. applied.
Haradhan Saha v. The State of West Be~gal & Ors. followed.
This
Court held in case of
Satwant Singh that personal liberty within the
meaning of Art. 21 includes with its ambit the right to go abroad and conse
quently
no person can be deprived of this right except according to procedure
prescribed
by law. Obviously, the procedure cannot be arbitary, unfair or
unreasonable. The observations in A. K. Gopalan's case support this view
and apart from these observations, even on principle, the concept of
reasonable
ness must be projected in the procedure contemplated by Art. 21, having re
gard to the impact of Art. 14 on Art. 21. [671 A, D, G-Hl
The decision of the majority in A. K. Gopalan's case proceeded on the
assumption that certain Articles . in the Constitution exclusively deal with
Fpedfic 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
t:xclusivity
was overruled by a majority of the Court in R. C. Cooper's case. The ratio
of the majority judgment in R. C. Cooper's case was explained in clear and
cate.gorical terms in Shambhu Nath Sarkar's case and followed in Hartldlwrr
Salta's case and Klwdi Ram Das's case. [672 B-C, G, 673 A]
/
Shambhu Nath Sarkar v. State of West Bengal [1 973] 1 SCR 856 referred to.
Haradhan Saha v. State of West Bengal & Ors. [1975} 1 SCR 778 and
J(hudiram Das v. The State of We.rt Bengal & Ors. [19751 2 SCR 832 relied on. t
The Jaw must therefore be now taken to be well-settled that AI ttcle 21 does
not exclude Article 19 and that even if there is a law prescribing procedure for
depriving a person of personal liberty and the(e is consequently no infringe
ment of the fundamental right conferred by Art. 21, such law in so far as
it abridges or takes away any fundamental right under Article 19 would have •
1o meet the chal_knge of that Article. Equally such law would be liable to
be tested with reference to Art. 14 and the procedure prescribed by it would
have to answer the requireme nt of that Article. [673 A-G]
The State of We.st Bengal v. Anwar Ali Sarkar [1952] SCR 284 and Kathi
Raning Rawat v. The State of Saurashtra [1952] SCR 435 referred to.
Article 14 is a founding faith
of the Constitution. It is indeed the pillar on
which rests securely the foundation of our democratic republic and, therefore, it
' -·
MANEKA GANDHI v. UNION
must not be subjected to a narrow, pedantic or lexicographic approach. No A
.attempt should be made to truncate its all embracing scope and meaning, for to
do so would be to violate its magnitude. Equality is a dynamic concept with
many aspects and dimensions and it cannot be imprisoned within traditional nnd
doctrinaire limits .. [673 H, 674 A]
E. P. Royappa v. State of Tamil Nadu & Another [19741 2 SCR 348 applied.
Equality
and arbitrariness are sworn enemies; one belongs to the rule of law B
in a republic while the other to the whim and caprice of an absolute
mo~arcb.
Article 14 strikes at arbitrariness in State action and ensures fairness and equality
of treatment. The principle of reasonableness which legally as well as philoso
phically, is
an essential element of equality or non-arbitrariness pervades Article 14 like a broQding omni-presence and the procedure contemplated by Article 21
..J must answer the test of reasonableness in order to be in conformity with Article
14. It must be right and just and fair and not arbitrary, fanciful or oppressive.
[674
B-CJ
It is true that the Passports Act does not provide for giving reasonable oppor
tunity to the holder of the passport to be heard in advance before impounding a
passport. But that is not conclusive of the question. If the statute make itselt clew on this point, then no more questioo arises but even when statute is silent
the law may in a given case make an implication and apply the principle.
Natural justice is a great humanising principle intended to invest law with ta1r
ness and to secure justice and over the years it has grown into a widely perva-
·sive rule affecting large areas of administrative action. [674 F-G, 675 A-B]
Wiseman v. Borneman [1971] A.C. 297 approved.
Schmidt v. Secretary of State for Home Affairs [1968] 112 Solicitor General
690 approved.
c
D
There can be no distinction between a quasi-judicial function and an adminis
trative function for the purpose of principles of natural justice. The aim ot
both administrative inquiry as well as the quasi-judicial enquiry is to arrive at a E
just decision and if a rule of natural justice is calculated to secure justice or to
put it 'negatively, to prevent miscarriage of justice, it is difficult to see why it
should be applicable to quasi-judicial enquiry and not to administrative enquiry.
It must logically gpply to both. It cannot be said that the requirements of fair-
play in action is any the less in an administrative enquiry than in a quasi-judicial
one. Sometimes
an unjust decision in an administrative enquiry may have far
more serious consequences than a decision in a quasi-judicial enquiry and
hence rules of natural justice must
apply, equally in an administrative enquiry
which entails civil consequences. [676 0-H, 677 A) F
Re.x v. Electricity Commissioners [1924] 1 K.B. 171 referred to.
Re.x
v.
LeRislative Commiuee of the Church Assembly [1928] 1 K. B. 411
-and Ridge v. Baldwin [1964] A. C. .40 referre<t to.
Associated
Cement Companies Ltd. v. P. N.
Sharma & Anr. [1965) 2 SCR
366, State of Orissa v. Dr. Binapani [1967) 2 SCR 625 and A. K. Kraipak & Ors.
v. Union of India & Ors. rt9701 1 SCR 457 relied. G
The duty to act judicially need not be superadded but it may be spelt out
from the nature of the power conferred, the manner of exercising it and its im
pact on the rights of the person affected and where it is found to exist the rules
of natural justice would be attracte d. Fairplay in action requires that in adminis
trative proceedings also the doctrine of natural justice must be held to be appli
cable. [678 B-C]
In re : H. K. (An Tnfa.nt) [1967] 2 Q.B. 617 and Schmidt v. Secretary of H
State for Home A (fairs referred to.
D F. 0. South Kheri v. Ram Sanehi Sin~h r1973] 3 S.C.C. 864 re lied on
2-119 SCI/78
A
n
c
D
E
F
G
H
630 SUPREME COURT REPORTS [1978] 2 S.C.R.
The Jaw is not well settled that even in an administrative proceeding which
involves civil consequences the doctrine of natural justice must be held to be
applicable. [680 Aj
The power conferred on the Passport Authority is to impound a passport and
the consequence of impounding a passport would be to impair the con5titutional
right .of. the holder of the passport to go a~road during the time that the pass
pott IS Impounded. The passport cart be Impounded· only on certain specified
$rou~ds set out in section 1~(3) and the PasspC?rt Authority would have to apply
1ts mmd to the facts and Circumstances of a gtven case and decide whether any
of the spec!fir~ grounds e?Cbts which would justify i~pou~d_ing of the passport.
The authonty ts also requtred by s. 10(5) to record tn wntmg a brief statement
of the reasons for making the order impounding a passport and save in certain
exceptional situations, the authority is obhged to furnish a copy of the state
ment of reasons to the holder of the passpor:t. Where the Passport Authoritv which
bas impounded a passport is other than the Central Government a right of appeal
ag:tillst the order impounding the passport is given by section 11. Thus, the
pow~r conferred on the Passport Authority to impound a pa~sport is ~:· quasi
judicial power. The rules of natural justice would in the circumstances be appli
cable in the exercise of the power of impounding a passport even on the orthodox
view which prevailed prior to A. K. Kmipa/, 's case. The same result mu~t totTow
in view of the decision in A. K. Kraipak's case, even if the power to impound a
passport were regarded as administrative in cha·racter, bccnuse it seriously
ionterfercs with the constitutional right o1f the holder of the passport to go
abroad and entails adverse civil consequences. The argument of the :\Horney
General however was that having regard to the nature of the action involved
in the impounding of a passport, the audi {1/teram partem rule mn't b~ hdd
to be excluded because if notice were to be ~iven to the holder of the pass
port and reasonable opportunity afforded to him to show cause why his pass
port sh0uld not be impounded he might immediately on the strength of the
pas3port mnke good his exit from the country and the object of impoundino
etc., woLIH be frustrated. Now it is true that there may be cases where. ha.::
ing regard to the nature of the action to be taken, its object and purpose and
the scheme of the relevant statutory provlsionl, fairness in action may warrant
exclusion of the tmdi alteram partem mle. Indeed, there are certain well
recognised exceptions. to the audi alteran1 pariem rule established by judicial
decisions.
These exceptions, do not in
any way militate against the principle
which requires
fair play in administrative action. The word exception is
really a misnomer because in. these exceptional cases the audi
olteram parlem
rule is he1d inauplicable not by way of an exception to fRirplay in action
but because nothing unfair can be inferred by not conferring an opportunity to
present or meet a case. The life Of the law is not logic but experience. There
fore. every legal proposition must in the ultimate analysis be t~sted on fnc
touch-stone of pragmatic realism. [680 B-F, H, 681 C-F]
The audi alteram partem rule may, therefore, by the experiential test, be
excluded, if importing the right to be h1!ard has the effect of paralysing the
administrative process or the need for promptitude or the ur_gencv of the
situation so demands. But. at the same time, it must be remembered that
this is a rule of vital importance in the field of administrative law and it must
not be jettisoned save in very exceptinnal circums~ances where compulsive
necessity
so demands. Tt is a wholesome rule destgned to secure the rule
of
law and the Court should not be too ready to eschew it in its application
to a given case. The Court must make everY effort to salvage this cardinal
rule to the maximum extent pe!missible in a .giv~~ case. __ The audi .afteram
partem rule is not cast in n rigtd mould and }tKhcml declstons establish t~at
it may snffer situutional modifications. The core of it must, bowe_ver, rem~m,
namely, that the person affected must .h<IVe re~sonable opportumty of bet~g
he.ard and the hearing must be a genutne heanng and not an empty publtc
relations exercise. lt would, not therefore. be right to conclude t~at !he
oudi aftcrani Fartem rule is excluded merel_y because the power to tmp~und
a passport might be frustrnted, . if prior. noti~c and hearing were to _be gwen
to the person concerned before tmpoundmg hts pass~~rt. The ~assp01 t Aut~o
ritv may proceed to impound the pass\'lort without gtvlng any -~nor ~pportu':ttv
to· the person concerned to be heard, but as soon as the order tmpoundm.~
J
,
J
MANEKA GANDHI V. UNION
631
the passport is made, an opportunity of hearing, remedial in aim, should
be ~iven 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 im~
pounded 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 repre~
sentation 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
nnd a prov-ision requiring giving of such opportunity to the person concerned
can and should be read by implication in the Passports Act. If such a provision
were held
to be incorporated in the
Passport's Act by necessary imp1ication
the procedure prescribed by the
Act for impounding a passport would be right,
fair and just and would not suffer from arbitrariness or unreasonableness.
Therefore,
the procedure established by the Passport Act for impounding a
passport must be held to be in conformity with the requirement of Art. 21 and
does not fall foul of that Article. [681 G-H, 682 A-C, E-H, 683 A-B]
In the present case, however. the Central Government not only did not give
an opportunity of hearing of the petitioner after
making the impugned order
impounding her passport but even declined to furnish to the petitioner the reasons
for impounding her passport despite requests made by her. The
Central Government was wholly unjustified in withholding the reasons for im
pounding the passport and this was not only in breach of the statutory provisions
but it also amounted to denial of opportunity of hearing to the petitioner. The
order impounding the passport of the petitioner was, therefore, clearly in
violation of the rule of natural justice embodied in the maxim audi alteram
partem and was not in conformity with the procedure prescribed by the Act.
The learned Attorney General, however, made a statement on behalf of the
Government of India that the Government was agreeable to considering any
representation that may be made hy the petitioner in respect of the impoundin~
of her pa£sporl and giving her an opportunity in the matter, and that the re
presentation would
be dealt with expeditiously in accordance with Jaw. 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 comr>lY with the audi
alteram partem rule or is not in accord with the procedure prescribed by the
Act. [683 C-G}
The law is well settled that when a statute vests unguided and' unrestricted
power in an authority to affect the rights of a person/ without layin~ down
any policy or principle which is to guide the authority in exercise of the
power, it would be affected by the vice of discrimination since it would leave
·it open to the authority to discriminate between persons and things similarly
situated. However,
it is difficult to say that the discretion conferred ori 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. [684 C-DJ
The words "in the interest of the general public" cannot be characterised
as vague or undefined. The expression "in the interest of the general public"
ha~ clearly a well defined meal\ing and the Courts have often been called
upon to decide whether a particular action is in the intefe~t of general public
or in public interest and no difficulty has been experienced by the Courts in
carrying out this exercise. These words are in fact borrowed ipsissima
wrba from Art 19(5) and it would be nothing short of heresay to accnse
the constitution makers of vague and loose thinking. Sufficient ,guidelines are
provided by the Act it~elf and the power conferred on the Passport AuthoritY
to impound n passport cannot be said to be unguided or unfettered. More·
over the exercise of this power is not made dependent on the subjective
opinion
of the Passport Authority as regards the necessity of
exercisin~ it on
one or more grounds stated: in S.10(3)(c), but the Passport Authority is
required to record in writing a brief statement of reasons for impounding the
passport and save in certain exceptional circumstances, supply a copy of
such statement of reasons to the person affected so that the nerson concerned
can challenge the decision of the Passport Authori!Y in appeal and the Appel
late Authority can examine whether the reasons gtven: by the Passport Autho·
A
B
c
D
E
F
G
H
A
B
c
632 SUPREME COURT REPORTS (1978] 2 S.C.R.
riiy are correct and if so whether they justify the making of the order im
pounding the passport. It is true that when the order impounding the
passport is made by the Central Government there is no appeal against it.
But it must be remembered that in such a case the power is exercised by the
Central Government itself and it can safely be assumed that the Central
Govt. will exercise the power in a reasonable and responsible manner. When
power is vested in a high authority like the Central Government abuse of power
cannot be lightly assumed and in any event, if there is abuse vf the power
the arms of the Co\]rt are long enough to reach it and to' strike it down.
The power conferred on the PasspOrt Authority to impound a passport under
section 10(3) (c) cannot be regarded as discriminatory. [684-D-H, 685 A-C]
The law on the point viz. the proper test or yard-stick to be applied for
determining whether a statute infringes a particular fundamental right, wnile
adjudging the constitutionality o( a statute on the touchstone of fundamental
rights has undergone radical changes since the days of A.K. Gopalan's case
[l950] SCR 88, which was followed in Ram Singh and Ors. v. Sture of Delhi
[1951] SCR 451 and applied in Naresh Shridhar Mirajikar & Ors. v. State of
Maltarashtra & Anr. [1966] 3 SCR 744. [685 D-G, 686-B]
According
to these decisions, the theory was that the object and form of
state action determine the extent of protection which may be claimed by an
individual and the validity of such action has to be judged by considering
whether it is
"directly in respect of the subject covered by any particular arti
cle of the Constitution or touches the said article only incidentally or in
directly". The test to be applied for determining the· co•.ls!itlltional validity
D of state a-ction with fundamental right therefore was : what is the object of
• the authority in taking the action : What is the subject matter of the action
and to which fundamental right does it relate? This the()ry that "the ex
tent of protection of important guarantees, such as the liberty of persons
and right to property, depend upon the form and object of the state action
not upon its direct operation upon the individual's freedom" held sway, in
spite of three decisions of the Supreme Court in Dwarkadass Srinivas v. The
Sho!apur Weaving Co. Ltd. [1954] SCR 674; Express Newspaper (P) Ltd.
& Anr. v. Union of India [1959] SCR 12; and Sakal Papers (P) Ltd. & Ors. v.
E Union of India [1962] 3 SCR 842 formulating the test of direct and inevit
able effect or the doctrine of intended and real effect for the purpose of ad~
judging whether a statute offends a particular fundamental right. However,
it was only iri R.C. Cooper v. Union of India [1973] 3 SCR 530 that the doct
rine that the object and form of the State action alone determine the extent
of protection that may be claimed by an individual and that the effect of the
State action on the fundamental right of the individual is irrelevant as Jaid
down in Gopalan's case was finally rejected. This doctrine is in substance
and reality nothing else than the test of pith and substance which is applied
F for determin~ng the constitutionality of legislation where there is conflict of
l<'gisbtive powers conferred on Federal and State legislatures with reference
to legislative lists. [685 H, 686 A-B, D-H, 687 A-E, F-G]
The test applied since R.C. Cooper's case was as to what is the direct and
inevitable consequence or effect of the impugned state action on the funda
mental 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 iundame!_!!al_ ri11:ht
but its direct and inevitable effect may be on another fundnmental right and
G in that case, the state action would hav-e 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 fundamenat rights, what the Courts must consider is
the direct a® inevitable consequence of the State action. Otherwise the pro
tection of the fundamental rights would subtly but surely eroded. [690 B-D]
A. K. Gopafan v. State of Madras [1950] 2 SCR 88; Ram SinRh & Ors.
H
V. Stnte of Delhi [19511 SCR 451; Naresh Sridhar Marajkar & Ors. v. State
of Maharashtra & Anr. fl966] 3 SCR 744 referred to. R. C. Cooper v. Union
of 1ndia T19731 3 SCR 530: Dwarakadass Srinivas v. the Sholapur and Wef!V-
inrr Co. Ltd. 09541 SCR 674; Express Newspaper (P) Ltd. & Anr. v: Umon
o/ lndia, [1959] S.C.R. 12 and Sakal Papers (P) Ltd. & Ors. v. Umon of
)<
I >,
l
'
MANEKA GANDHI V. UNION 633
India [19621 3 SCR 842; quoted with approval, Bennet Coleman & Co. v. A
Union of India [1973] 2 SCR 757 applied.
The test
formulated in R.
C. Cooper's case merely refers to "direct opera
tion" or "direct consequence and effect" of the State action on the funcla
mental right of the petitioner and does not use the word "inevitable" in this
connection.
If the test were merely of direct or indirect effect, it would be
an
open-~·nded concept and in the absence of operational criteria for ju<fgmg
"directness" it would give the Court an unquestionable discretion to decide
whether
in a given case a consequence or effect is direct or not. Some other B
concept-vehicle would be
~1eeded to quantify the extent of directnes" or indirect-
ness in order to apply the test. And that is supplied by the .criterion of "in
evitable" consequence or effect adumbrated in the Express Newspaper case
[1959] SCR 12. This criterion helpg to quantify the extent of directness
necessary to constitute infringement of a fundamental right. Now, if the
effect of State action on a fundamental right is direct and inevitable, then
a fortiorari it must be presumed to have been intended by the authority
taking the action and hence this doctrine of direct and inevitable< effect is C
deBcribed aptly as the doctrine of intended and real effect. This is the test
which must be applied for the purpose of determining whether section 10(3)(c),
or the impugned order made under it is violated of Art. 19( 0 (a) or (g). [698
C-fl
Prima facie, the right which is sought to be restricted by s~ 10(3){c)
and the impugned order is the right to go abroad and that is not named as
a fundamental right
or included in so many words in Art. 19 (1 )(a) of the
Constitution. The right to go abroad, as held in
Satwant Singh Sawhney's
case [1967] 3 SCR 525, is included in "personal liberty" within the meaning D
of Art. 21 and is thus a fundamental right protected by that Article. This
dearly shows that there is no underlying principle in the Constitution which
limits the fundamental right in their operation to the territory of India. If
a fundamental right under Art. 21 can be exercisable outside India, there is
no reason why freedom of speech and expression conferred under 19(1)(a)
cannot be so exercisable. [690 H, 694 C-D]
Satwant Singh Sawhney v. D. Ramaratlmam, Asstt. Pos.sport Officer, Govt.
of India, New Delhi & Ors., [1967] 3 SCR 525; Best v. United States; 184 E
Federal Reporter (ed) p 131, referred to. Dr. S. S. Sadashiva Rao v. Union
of India [1965] Mysore Law Journal p. 605 approved.
There
are no geographical
limitatioM to freedom of speech and expres
sion guaranteed under Art. 19(1) (a) and this freedom is exercisable not
only in India but also outside and if State action sets up barriers to its_ citi·
zens' freedoru of expression in any country in the world, it would v1olate
Art. 19(1) (a) as much .as if it inhibited such expression within the country.
This conclusion would on a parity of reasoning apply ~qually in relation to
fundamental right to practise any profession or to carry on any occupation.
trade or business, guaranteed under Art. 19(1)(g). [694 G-H, 695 A)
Freedom to go . abroad incorporates the important function of an ulti-
mum refunium liberatis when other basic freedoms are refused. Freedom to
go abroad has much social n.lue and represents a basic human right of great
significance. It is in fact incorporated as in alienable human right in Article
13 of
the
Universal Declaration of Human Rights. But it is not specifically
named as a fundamental right in Art. 19(1) of the Constitution. [696 C-D]
Kent v. Dulles, 351 US 116 : 2 L.ed 2d, 1204 referred to.
Even if a right is not specifically named in Art. 19(1) it may still be
a fundamental right covered by some clause of that Article, if it: is an integral
part of a named fundamental right or partakes of the same basic nature
F
G
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 nameo
f1.mdamental right meaningful a<nd effective. Every activity which fac!11ta~e s II
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.
634 SUPREME COURT REPORTS [1978] 2 s.c.R.
A What is necessary to be seem is and that is the test which must be applied,
whether the right claimed by the petitioner is ~ n integral part of a named
fundamental right or partakes of the same basic nature and character as
the named fundamental right is in reality and substance nothing but an in
stance of the exercise of the named fundamental right. If this be the correct
test,
the right to go abroad cannot in all circumstances be
regarded as in
cluded in freedom of speech and expression. [697 D-G]
B Kent v. Dulles, 357 US. 116. 2 L.ed 2d. 1204 : Expres.\' Newspapers (P)
Ltd. & Anr. v. Union of India & Ors. [1959] SCR 12; Sakal Papers (P) Ltd.
& Ors. v. Union of India [1962} 3 SCR 842; Bennet Cohman & Co. & Ors. v.
Union of India' [1973] 2 SCR 757; Ramesh Thappar v. State of Madra3
[1950] SCR 594 referred to. Apthekar v. Secretary of Swte 378 US 500: 12
Led 2d 992; Zamei v. Rusk 381 US 1 : 14 Led 2d 179 expiained.
The theory that a peripheral or concomitant right which facilitates the
C exercise of a named fundamental right or gives its meaning and substance or
makes its exercise effective, is itself a guaranteed right included within the
named fundamental right cannot be accepted. [701 B-C]
All India Bank Employees' Association v. National Industrial Tribunal
{l962] 3 SCR 269 applied.
The right to go· abroad cannot therefore be regarded as included in free-
D dom of speech and expression guaranteed under Art. 19 ( 1 ) (a) on the theorv
of peripheral or concomitant right. The right to go abroad cannot be treated
as
part of the right to carry on trade, business or profession or
calling guaran
teed under Art. 19 (1 )(g). The right to go abroad is clearly not a ~uarante
ed right under any clause of Article 19(1) and Section 10(3)(c) which
authorises imposition
of restrictions on the right to go abroad by
impounding
of passport cannot be held as void as offending Article 191 1 ) (a) or (g), as
its
direct and inevitable impact is on the right to go abroad and nor on the
right
of free speech and expression or the right to
carry on trade, business,
E profession or calling. [702 C-E]
F
But that does not mean that an order made under s. 10 (3) ( c} may not
violate Article 19 (1 )(a) or (g). Where a statutory provision empowerin!!
an authority to take action is constitutionally valid, action taken under' it
may offend a fundamental right and in that event, though the statutory pro
vision is valid, the action may be void. Therefore, even though section 1 0( 3) (c)
is valid, the question would always remain whether a•n order made under
it is inva1id 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 tile 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).
[702 F-H]
Narendra Kumar & Ors. v. Union of India & Ors., [1960] 2 SCR 375
referred to.
G Though the impugned order may be within the terms of s. 10 (3) (c), lt
must nevertheless not contravene any fundamental ri,ght and if it does, it
would be void. Now, even if an order imp~unding a pa~SP?rt i~ made in th~
interests of public order decency or mor~·hty, the restnctJon Imposed by 1t
may be so wide, excessive disproportionate to the mischief or evil sought
to be averted that it may be considered unreasonable and in that event, if
the direct and inevitable consequence of the order is to abridge or take awav
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
H position where the order is in the interests of the
genera! public but. it if.l
fringes directly and inevitably on the freedom to carry on a professton tn
which case it would contravene Article 19(1) (g) without being saved bv
the provision enacted in Article 19(6). [705 D-E]
MANEKA GANDHI V. UNION 635
The impugned order, in the present case does not violate either Art.
19 (1 }(a) or Art. 19 (1 )(g). What the impugned order does is to impound the
passport of the petitioner and thereby prevent her from going abroad and
at th-e date, when impugned order was made, there is nothing to show' that
the petitioner was intending to go abroad for the purpose· of exercising her
freedom or speech and expression or her right to carry on her profession as
a jon~·nalist. The direct and inevitable consequence of the impugned order
was to impede the exercise of her ri_ght to go abroad and not to interfere
with her freedom of speech and expression or her right to carry on her
profession. [7D6 F-G]
The petitioner is not justified in seeking to limit the expression "interests
of the general public" to matters relating to foreign affairs. The argument
that the said expression could not cover a situation where the presence of
a person i!'. requirep to give evidence before a commission of Jnquir.y_ is plain
lv erroneous as it seeks to cut down the width and amplitude of the ex
pression "interests of the general public," an expression which has a well
recognised legal
connotation and which is found in Article 19(5) as well as
Article 19 ( 6). It is true that that there is always a perspective within
which a statute is intended to operate, but that does not justify reading of a
statutory provision in a manner not warranted by the
langua,ge or narrow
ing down its scope and meaning by introducing a limitation which has no
basis either in the language or in the context of a statutory provision. Clauses
(d), (e) and (h) of S. 10(3) make it clear that there are several ,grounds in
this section which do not relate to foreign affairs. [709 B-F]
Moreover the present case is not one where the maxim "expressio rmius
exclusio uTterius has any application at all. [710-B-C]
Rohta.~ Industries Ltd. v. S. 0. AJ?arwal & Anr., [1969] 3 SCR 108
@ 128 referred to.
OBSERV A TlON
Tt is true that. the power under s. 10(3) (c) is rather a drastic power to
interfere with a basic human right, but this: power has been conferred by
the legislature in public interest and there is no doubt that it will be sparingly
used and that too, with great care and circumspection and as far as possible.
the passport of a person will not be impounded merely on the ground of
his being required in connection with a proceeding, unless the case is brough.t
within s. 10(3)(e) or sec. 10(3)(h). [7JOG-H).
Ghalli v. Jones [1970] 1 Q. B 693 quoted with approval.
A': <?rd_er impoun~ing a passport can be made by the Passport Authority
only 1f 1t IS actually m the mterests of the general public to do so and it is
!lot enough that the int~rests of the general public may be likely to be served
m future by the makmg of the order. Tn the present case it was not
merely on the futur7 likelihood of the interests of the general public being
adva~ced that the tmpugned order was made by the Central Govri1ment.
The 1mpugned order wa~ made because, in the opinion of the Central Govt.
the pr~s~nce· of the . petitioner was necessary for giving evidence before the
~omnnss10n of Inqmry. and according to the report received by the Central
Government she \vas ltkelv to leave India and that might frustrate ·or im
p~d~ to some e~tent the inQuiries which were being conducted by the Com
miSSIOns of Inqmry. [711-C-D]
Krishna lyer, J. (concurring with Bhagwati, J.)
• British Raj has fr<:~ned on foreign travels by Indian patriotic suspects and
mstances from the Bnt1sh Indian Chapter may abound. ln many countries the
A
B
c
D
E
F
G
H
B
c
D
F
G
B
636 SUPREME COURT REPORTS [1978) 3 S.C.R-
p~ssport ~nd visa system has been used as potent paper curtain to inhibit illus
tnous wnters, outstanding statesmen, humanist churchmen and renowned scien
tists, if they are dissenters, from leaving their national frontiers. Things have
changed, global awareness has dawned.
The European Convention on Human
Rights and bilateral understandings
have· made head\vay to widen freedom of
travel abroad as integral to liberty of the person. And the universal Declara
tion of Human Rights has proclaimed in Article 13, that every one has the nght
to leave any country including his own, and to return to his country. Thls
human planet is our single home, though geographically variegated. culturally
diverse, politically pluralist, in science and technology competitive and coopera
tive, in arts and life-styles a lovely mosaic and, above all, suffused with a cosmic
consciousness
of unity and inter-dependence. [717 B, C, D,
E-F]
Viewed from another angle, travel abroad is a cultural enrichment which en
ables one's' understanding of one's own country in better light. Thus it serves
national interest to have its citizenry see other countries and judge one's country
on a comparative scale. [718 B]
The right of free movement is a vital element of personal liberty. The right
of free movement includes right to travel abroad. Among the great guaranteed
rights life
and liberty are the first among equals, carrying a universal connota
tion cardinal to a decent human order and protected by constitutional
armour.
Truncate liberty in Art. 21 traumatically and the several other freedoms fade
out automatically. [720 A-B]
Personal liberty makes
for the worth of the human person. Travel
makes
liberty worthwhile. life is a terrestrial op):Ortunity for unfolding personality
rising to a higher scale moving to fresh woods 2.nd reaching out to reality which
makes our earthly journey a true fulfilment not a tale told by an idiot full of
sound and fury signifying nothing, but a fine frenzy rolling between heaven and
earth. The spirit of Man is at the root of Art. 21 Absent liberty, other
freedoms are frozen. [721 C-F]
Proceuure which deals with the modalities of regulating, restrictin~ 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
itse1i.
Thus, understood, 'procedure' must rule out anything arbitrary, freakish
or bizarre. What is fundamental is life and liberty. What is procedural is the
manner
6f its exercise. This quality of fairness in the process is emphasised by
the strong word "establish'' which means 'setlled firmly', not wantonly or
whimsically. [722 H, 723 A-B]
Procedure in Article 21 means fair, not formal procedure. Law is reason
able law, not any enacted piece. As Art. 22 specifically spells out the procedural
safeguards
for
pre,·entive and punitive detention. a law providing for such deten
tion
should conform to Art. 22. It has been rightly pointed out that for other
rights forming part of personal liberty, the procedural safeguards enshrined in
Art. 21 are available.
Otherwise, as the procedural safeguards contained in Art.
22 wiii be available only in cases of preventive and punitive detention the right
to ·Jife, more fundamental than any other forming part of personal liberty and
paramount to the happiness, dignity and worth of the individual, will not be en
titled to any procedur;-•.1 safeguard, save such as a legislatur~·~ mood chooses.
[723 F-H]
Kochunmi's case (AIR 1960 SC 1080, 1093) referred.
Liberty of locomotion into alien territory cannot be unjustly forbidden by the
Establishment and passport legislation must take processual provisions which ac
cord with fair norms, free from extraneous pressure and, by and large, comply
ing with natural justice. Unilateral arbitrariness, police dossiers, faceless
alliants, behind-the-back. materials oblique motives and the inscrutable face of an
official
sphinx do not fill the 'fairness,' bill. [726 D-E]
Artic1e
21 clubs life with liberty and when we interpret the colour and con
tent of 'procedure established by law', we must be alive to the deadly periL of
--~
__ ..._I
')
f
MANEKA GANDHI V. UNION 637
life being deprived without minimal processual justice, legislative callousness A
despising hearing and fair opportunities of defence. [726 F]
Sections 5, 6 and 10 of the impugned legislation must be tested even under
Art. 21 on canons of processual justice to the people outlined above. Hearing
is obligatory-meaningful hearing, flexible and realistic, according to circum
stances, but not ritualistic and wooden. In exceptional cases and emergency
situations, interim measures
may be taken, to avoid the mischief of the
pass
portee becoming a11 escapee before the hearing begins. "Bolt the stables
after the horse has been stolen·• is wt a command of natural justice. But B
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 disclos~d to him
almost invariably save in those d"ngerous cases, where irreparable mjury Will
ensue to the State. A government which revels in secrecy in the field of
people"s llberty 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. C
Public power must rarely hide its heart in an open society and system.
[727
F-H]
Article 14 has a pervasive
processu~.t potency and ver~::ltile quality, equali
tarian i:n its soul and allergic to discriminatory diktats. EQuality is the
antithesis of arbitrariness. [728 A]
As far as question of extra-territorial jurisdiction in foreign lands is con
cerned, it is a misconception. Nobody contends that India should interfere with
other countries and ·their sovereignty to ensure free movement of Indians in D
those ~Quntries. What is meant is that the Government of India should not pre-
vent by any sanctions it has over its citizens from moving within in any other
country if that other country has no objection to their travelling within it~
territory. [728 C]
In Gopalan'3 case it was held that Art. 22 is a self-contained Code, however,
this has suffered supersession at the hands of R. C. Cooper_ [728 D]
Sakal Newspapers [1962] 3 SCR 842, Cooper [1973] 3 SCR 530. Bennet
Coleman [1973] 2 SCR 759 and Slwmbu Nath Sarkar [1973] 1 SCR 856 referred E
to.
The law is now settled that no article in Part III is an island but part of a
continent, and the conspectus of the whole part gives the direction and correction
needed for interpretation of these basic provisions. Man is not dissectible into
separate limbs and, likewise, cardinal rights in an organic constitution, which
make man human have a synthesis. The proposition is indubitable that Art. 21
does not, in a given situation exclude Art. 19 if both rights are breached. It is
a salutary thought that the summit court should not interpret constitutional P
rights enshrined in Part III to choke its life-breath or chill its elan vital by pro
cesses of legalism, overruling the enduring values burning in the bosom'l of
those who · won our independence and dre• up our found.ing document.
[728 F-G. 729 A-B]
High constitutional policy has harmonised individual freedoms with holistic
community good by inscribing exceptions to Art. 19(l) in Art 19(2) to (6).
Even so, what is fundamental is the freedom, not the exception. More im-
portantly, restraints are permissible only to the extent they have nexus with the G
approved object. No verbal labels but real values are the governing consid!!ra·
tions i.n .the exploration and adjudication of constitutional prescriptions and
proscnptlons. Governments come and go, but the fundamental rights of the
people cannot be subject to the wishful value·sets of political regimes of the
passing day. [729 C-D, 730 FJ ·
~ocomotion in some situation is necessarily involved in the exercise of the
s~enfif;d fun~amental rights as an associated or integrated right. Travel, simpli-
~lfer, ~s penpheral to and not necessarily fundnmental in Art. 19 Free soeech H
JS feastble w1thout movement beyond country. [731 B]
The delicat~, yet difficult, phase of the controversy arrives where free speech
and free practice of profession are inextricably interwoven with travel abroad.
A
8
c
D
E
F
G
638 SUPREME COURT REPORTS (1978] 2 S.C.R.
One. bas to view the proximate and real consequence of thwarting trans~
national travel through the power of the State exercised under s. J of t.he
Passport Act read with ss. 5 and 6. Associated rights totally integrated
with fundamental rights must enjoy the same immunity. Three sets of cases
might arise. First, where the legislative provision or executive order ex
pressly forbids exercise in foreign lands of the fundamental ri~ht while ~rant
ing passport. Secondly, there may be cases where even if thei order is in
no<:ent on its face, the refusal of permission to go to· a foreign countrY mav,
with certainty and immediacy, spell denial of free speech and professional
practice or business. Thirdly, the fundamental right may itself enwomb loco
motion regardless of national frontiers. The second and third often are
blurred in their edges and may overlap. [732 H, 733 A-C]
Spies, traitors, smugglers, saboteurs of the health, wealth and survival or
sovereignty of the nation shall not be passported into hostile soil to work their
vicious plan fruitfully. But when applying the Passports Act, Over-breadth,
hyper-anxiety, regimentation complex, and political mistrust shall not sub-con
sciously exaggerate, into morbid or •.1eurotic refusal or unlimited impo:1ding or
;final revocation of passport, facts which, objectively assessed, may prove tre
mendous trifles. That is why the pro'-;isions have to be read down into consti
tutionality, tailored to fit the reasonableness test and humanised by natural justice.
The Act will survive but the order shall perish for reasons so fully set out by
Shri Justice Bhagwati. And on this construction, the conscience of the
Constitution triumphs over vagarious governmental orders. [734 E-G-H]
Kailasam,
J. (Dissenting)
The preamble to the Constitution provides that the people of India have
solemnly resolved to constitute India into a sovereign, socialist, secular and
democratic republic and to secure to all its citizens, justice, social, economic and
political, liberty of thought, expression, belief. faith and worship, equality of
status and of opportunity. Article 12 defines. the State as including the Govern
ment and Parliament of India and the Government and the Legislature of each
of the States and of local or other authorities within the territory of India or
under the control of the Government of India.· Article 13 provides that laws
that are inconsistent with or in derogation of fundamental ri_ghts are to that ex·
tent void. Article 245 (2) provides that no law made by Parliament shall be
deemed to be invalid on the ground that it would have extra territorial operation.
Tn England section 3 of the Statute of Westminster declares that Parliament
has full power to make laws having extra territorial operation. The following
arc the principles to determine whether the provisions of a Constitution or a
Statute have extra territorial application.
(a)
(b)
(c)
(d)
An Act unless it provides otherwise applies only to the country
concerned.
An Act of a Legislature wilt bind the subjects of the realm both
within and without if that is the intention of the Legislature, which
must be gathered from. the language of the Act in question.
Legislature
normally restricts operation of legislation to its own
territories. However. on occasions legislation
controJiing the acti~
vitics of its own citizens when they are abroad may be passed.
Niboyet v. Nihoyet 48 L.J.P.I. at p. 10 and Quew v. Jameson
and Others [1896] 2 Q.B. Division 425 at 430 referred to.
In the absence of an intention clearly expressed or to be inferred
from its language, or from the object or subject matter or history of
the enactment, the presumption is that Parliament does not design
its statute to operate beyond the territorial limit of the country.
[738-E-F-H. 739 A, B. E, G-1-T. 740 !\, B, G-H.J
Go1•erno.r-General in Council v. Raleigh Investment Co. Ltd. A.I.R. (31)
!
A
ll [1944] Federal Court 51, referred to. _....-::
Wallace Brothers & Co. Ltd. v. Commissioner of lncome-Tax, Bombay, Sind
and Baluchistan [19451 F. C. R. 65 and Molzammad Mohy-ud-din v. The King
Emperor [1946] F. C. R. 94 referred to.
-~
)
!
MANEKA GANDHI V. UNION 639
The application of Article 14 is expressly limited to the territory of India.
Articles 15, 16, 17, 18, 20 and 22 by the:r very •nature are conlined to the terri
tory of India. Articles 23 to 28 are applicable only to the territory of India.
At any rate, there is no intention in these Articles indicating extra-territorial
application. So also Articles 29 and 30 which deal with cultural and educational
rights are applicable only within the territory of India. Article 31 does not
expressly or impliedly have any extra-territorial application. It is poosible that
the right conferred by Article 19(1) (a) may have extra-territorial application.
It is not likely, however, that the framers of the Constitution intended the right
to assemble peaceably and without arms or to form associations or unions or
to a~quire, hold and dispose of property, or to ~ractise any profession or to
carry on any occupation, trade or business, to have .:~ny extra-territorial applic:; ..
tion for such rights would not be enforced by the State oubide the l•,1dian terri-.
tory.
The
r:ghts conferred under Article 19 are fundameutal rights and Arts.
32 & 226 provide that those rights are guaranteed 2.nd can be e'Jlforced by the
aggrieved person by approaching this Court or the High Courts. These rights
cannot be protected by the State outside its territory and, therefore, there is a
presumption that the constitution makers would not have intended to guarantee
any rights which the State cannot enforce. [742 H, 743 A-D-E-F]
Virendra v. The State of Punjab and Anolher, [1958] SCR 308 referred to.
A
B
c
It is most unlikely that before the declaration of human ri_ghts was pro
mulgated the framers of the Constitution decided to declare that the funda~
mental rights conferred on the citizens would, be available even outside
fndia: Even in the American Constitution there is no mention of right to D
freedom of speech or expression1 as being available outside America. The
law made under Article 19(2) to 19(6) imposes restrictions on the exercise
of right of freedom of speech and expression etc: The restrictions thus im
posed normally would apply· only within the territory of India unless the legisla~
tion expressly or by necessary implication provides for extra-territorial operation.
(n the penal code, section ~ aru:t 4 specifically provides that crimes com-·
mitted by citizens of India outside India are punishable. In Article 19, how-
ever, there is
no such provision expressly or by
nec·ess~ry implication.
Secondly, a citizen
cannot enforce his fundamental
rij!;hts outside the territorv E
of India even if it is taken that such rights are available outside the country.
Therefore, the contention of the petitioners that by denying the passt~ort the
petitioner's fundamen~al rights guaranteed by Article 19 are infrin,ged can-
not be accepted. [744 H, 745 A-D, 746 F-G, H. 747 A]
The important question which arises, is whether an Act passed under Article
21 should also satisfy requirements of Article 19. It has been decided by this
Court in Gopalan's case that the punitive detention for offences under the Penal F
Code cannot be challenged on the ground that it infringes fundamental rights
under Article 19. [747 E-F1
The rights guaranteed under Article 19 ( 1) are subject to restrictions that
may be placed by Articles 19(2) to 19{6). The right not to be deprived of
Jife and pet'sonal .liberty is subject to its deprivation by procedure established
by law. In Gopalan's case it was held that Article 19 dealt with the rights of
the citizens when he was free and would not apply to person who had ceased
to be free and has been either under punitive or preventive detention. It
was further held th21t Article1 19 only applied where a legislation directly hit
the rights enumerated in the Article and not where the loss of ri~hts mentioned
in the Article was a result of the operation of legislation relating to punitive
or preventive detention. The aforesaid ratio of Gopalan's case has been
confirmed by this· Court in Ram Sinfdl v. Srate of Delhi. The view was again
confirmed in the State of Bilzar v. Kameshwar Singh. [749 C, 750 B-G]
Ram Singh v. State of Delhi [1951] SCR 451 and State of Bihar v. Kameshwar
Singh [1952] SCR 889 relied on.
In Express Newspapers, the test laid down was that there must be a direct or
inevitable consequences of the measure enacted in the impugned Act and that
G
H
640 SUPREME COURT REPORTS [1978] 2 S.C.lt.
A it would not be possible to strike down the legislation as having that effect and
operation. [7 51 B-C]
Exvress Newspavers (P) Ltd. and another v. The Union of India & Ors.
f1959] 1 SCR 135 referred to.
B In Hamdard Dawakhana's case it was held that it is not the form or inci~
dental infringement that determines the constitutionality of a statute but the
reality or the substance. [751 D}
c
Hamdard Dawakhana (Wakf) Lal Kuan v. Union of India [1960J 2 SCR
671 at page 691 and Koclwnni v. Tf1e State of Madras [1960] 3 SCR 887 referred
to. Sakal Papers (P) Ltd. and Ors. v. The Union of India [1962] 3 SCR 842.
distinguished.
In
Sakal Paper's Case the Court held that the order was void as it viol<l•ted
Artic1~ 19_(1)(a) and ~as not saved b~ Article 19(2). In that case the impact
of Jeg1s1atton under Article 21 on the nghts guaranteed under Article 19(1) was
not in issue. [752 C-D]
D Kharak Singh [1964] 1 SCR 332 relied on; Bank Nationalisation [19.70] 3
SCR 530 and Bennet Coleman [1973] 2 SCR 757 distinguished.
In Bank Natio!Ullisation case the Court was only considering the decisions
that took the view that Articles 19(1 )(f) and 31(2) were mutually exclusive.
The basis for the conclusion in Bank Nationalisation case is that Arucks 19 and
31 are parts of a single pattern and while Article 19(l)(f) enjoins the right to
:1 acquire, hold and dispose of property, clause 5 of Article 19 authorises imposition
of restrictions upon the right. There must be a reasonable restriction and
Article 31 assures the right to property and grants protection against the exer
cise
of the authority of the
State and clause 5 of Article 19 and clauses 1 and
2 of Article 31 _prescribe restrictions upon the said action, subject to which
the right to property may· be exercised. The case specifically over-ruled the
view taken in Govalan's case that the approach and form of the State action
alone need to be considered and the fact of loss of fundamental rights of the
F
individual in general w11 be ignored. The entire discussion ioa Bank f\/ation.nli5a
tion case related to the inter-relation between Article 31(2) and Article l9(1)(f).
Certain passing observations have been made about the liberty of persons.
However. there is no justification for holding that the c2.se is an authority for
the proposition that the legislation under Article 21 should also satisfy all
the fundamental rights guaranteed under Article 19(1). Article 21 is relaf
ed to deprivation of life and personal liberty and it has been held that it is
not one of the rights enumerated in Article 19(1). That the decision in
Bank Nationalisation: case so far as it relates to Articles 19(1) and 21 is in the
G nature of obiter dicta. The Court had not applied its mind and decided the
specific question. The observations were general and casual observations on
a point not calling for decision and not obviously argued before it cannot be
taken as an authority on the proposition im question. The Court cannot be
said to have declared the law on the subject when no occasion arose for it to'
consider
and decide the question. The judgment proceeded on some erroneous
assumptions.
It was assumed by
the judgment that the majority of the Court
in Gopalan's case held that Article 22 being a compl~te code relatin~ to l?re~
ventive detention the validity or an order of detention mu"t be t!etermmed
H directly according to the terms within the four corners o~ that ~rttc!e· Th~
said statement is 't1ot borne out from the record of th~ ~udgt;nent m (rapalan s
Cl.'Re. Tf the· obiter dicta based on the wrong assumptiOn 1s to be takery as
the correct position in law it would lead to strange results. If Articles·
J
/
,
J
/
' .. "
)
MANEKA GANDHI V. UNION
641
1_9(1)(a) to (e) _and (g) arc ~t~acted in the case of de11rivation of personal
liberty under Arhcle 21, a pumt1ve detention for an offence committed under
I.P.C., such as theft, cheating or assault would be illegal. for the reasonable
restrictions
in the interest of public order would not
cover the said offences.
There can be no distinction between the punitive detention and preventive
detention. Observation in Bank Nationalisation case that a legislation under
Article 21 should also satisfy the requirements of Article 19 cannot be taken
A
as correct law. [754 G-H, 756 D-E, 757 C-E, G-H, 758 A-B, C, 759 A, E-P] B
Chiranjit Lal Chowdhuri [1950] SCR 869, The State of West BenRal v.
Subodh Gopal [19541 SCR 587, State of Bombay v. Bhanji Munji [19531 1
SCR 777, Dabu Barkya Thakur v. State of Bombay, (1961} 1 SCR 128,
Smt. Sitabari Debi & Anr. v. State of Wesr Bengal [1967] 2 SCR 940 and
K. K. Kochunni [1968] 3 SCR 887 referred to.
In S. N. Sarkar's case also, the majority held that Article 22 was a self-C
contained Code. The view taken in this case also suffers from the same infirmi-
ties referred to in the Bank Nationalisation case. In Khudi Ram's case also
this Court erroneousiy stated that Gopalan's case ha.s tak.!n the view that Article
22 was a complete
code. [759 F-H,
760 A-Bl
In Additional District Magistrate, Jabalpur, Chief Justice Ray held that
Article 21 is the rule of law regarding life and liberty and no other rule of
Jaw can have separate existence as a distinct right. Justice Beg observed that D
Gopalan's case was merely cited in Cooper's case for illustrating a. line of
reasoning which was held to be incorrect in determining validity of law. The
question under consideration was whether Articles 19(1)(f) and 31(2) were
mutually exclusive. The learned Judge did not understand the Cooper's case
as holding that effect of deprivation of rights outside Artide 21 will also have
to be considered. [760 D-F-HJ
In Bennet Coleman's case, the Court held thal though Article 19(1) does
not mention the freedom of press it is settled view of the court that freedom E
ot speech and expression includes freedom of Press and circulation. In that
case also the question whether Articles 21 and 19 are mutually exclusive did not
arise for consideration. Be1t11et Coleman's case. Express Newspapers Case, and
Sakal Newspapers case were all concerned with the right to freedom of the
press which is held to form part of the freedom of speech and expression.
[761
G-HJ
Commonwealth of
Australia v. Bank of New South Wales [1950] A.C. 235 F
referred to.
The Passport Act provides for issue of passports and travel documents for
reg1.1lating the departure from India of citizens of India and other nerson.
Since the said Act complies with the requirements of Article 21 i.e. compliance
with procedure established
by 1aw,
its validity cannot be chaUenJ,Zed. If
Hlcidentally the Act infringes on the rights of a citizen under Article 19 ( 1) of
the Act, it cannot be found to be invalid. The pith and substance rule will
have to be anplied and unless the rights are directly 3ffected, the challenge G
will fail. [763 A-B)
The procedure established by law does not mean procedure, however,
fantastic
and oppressive or arbitrary which in truth and reality is no procedure
at all. Section
5 of the Act provides for applying for passports or travel
documents etc.
and the procedure for
passing orders thereon. The authority
can either grant passport or can refuse it. In case the authority refuses to H
grant it; it is required to record in writing a brief statement of his reasons
which
are to be furnished to the nerson concerned unless the authority for
reasons specified in sub-section (3) refuses to furnish a copy. Section 6
provides
that the refusal to
give an endorsement shall be on one or other
grounds mentioned in sub-sections (2) to (6}. Section 10 enables the Pass
port authority to Tary or cancel the endorsement on a passport. Section 10(3)
642 SUPREME COURT REPORTS [1978] 2 s.c.R.
A provides the reasons for which a passport may be impounded. Again reasons
are required to be furnished to the person concerned on demand, except if
the Passport Authority is of the opinion that it will not be in the interest
of sovereignty and integrity of India, security of India, friendly relations
of India with any foreign country or in the interest of the general public
to furnish such a copy. Section 11 provides for an appeal except when the
order is passed by the Central Government. [764 C-E. 765 A-G]
B
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 funda
mental rights. Their aim is to secure justice and to prevent miscarriage of
justice. They do not supplant the law but supplement it. If a statutory
provision
can be read consistently with the principles of natural justice the court
C should do so but if a statutory provision that specifically or by necessary
implication excludes the application
of any
mles of natural justice this Court
cannot ignore the mandate of the legislature or the statutory authority and
read into the co~cerned provision the principles of natural justice. To a limited
extent
it may be necessary to revoke or to impound a passport without notice )f 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
D Authority or the Government to revoke or impound the passport but that itself
would not justify denial of an -opportunity to the holder of the passport to
state his case before the final order is passed. The legislature has not by ex
press provision excluded the right to be heard. [768 F-H, 769 A-B]
E
Purtabpur v. Cane Commissioner, Bihar (1969] 2 SCR 807 and Schmidt v.
Secretary of State, Home Affairs [1969] 2 Ch. 149 referred to.
A passport may be impounded without notice but before any final order
is passed. the rule of audi alteram partem, would apply and the holder of
the passport will have to be heard. The petitioner has a right to be heard
before a final order under section 10 ( 3 )(e) is passed. Earlier, the courts had
taken a view that the principle of natural justice is inapplicable to adminis-
F trative orders. However, subsequently, there is a change in the judicial opinion.
The frontier between judicial and quasi-judicial determination on the one hand
and an executive or administrative determination on the other has become
blurred. The rizid view that principles of natural justice apply only to
judicial and quasi-judicial acts and not to administrative acts no longer holds
the field. The court is not intended to sit in appeal over the decision of the
Government. The decision of the Government under section 1 0(3) (c) is
G subject to a limited judicial ~crutiny. [770 A-F, H, 771 A, 772 R-D]
H
H. K. (A 11 infant) [1967] 2 Q,B. 617 at p. 630 Barium Chemicals Ltd.
v Company Law Board [1966] Supp. SCR 311, Rohtas Industries Ltd. v.
S. D. Agarwal, [1969] 3 SCR 103 and U.P. Electric Co. v. State of U.P.
[1969) 3 SCR 865 fol1owed.
The provision empowering the Government not to disclose the reasons for
impounding etc. is valid. The Government is bound to give opportunity to
the holder of the passport before finally revoking it. or impounding it. The
MANEKA GANDHI V. UNION (Beg, C.J.) 643
cases in which the authority declines to furnish reasons for making an order A
~ would be extremely rare. In case where the Government itself passes an
order it should be presumed that it would have made the order after careful
scrutiny. Jf an order is passed by the Passport Authority an appeal is pro
vided. In the present case, there is no reason in declining to furnish to the
petitioner :statement of reasons for impounding the passport.
J
[772 H, 773 A-D, H, 774 A]
In view of the statement of the Attorney General that the petitioner might
make a representation in respect of the impounding of passport and that the
representations would be dealt with expeditiously and that even if the imound~
ing of the passport is confirmed it will not exceed a period of 6 months, it is
not necessary to go into the merits of the case any further. [776 B-C]
ORIGINAL JuRISDICTION : Writ Petition No. 231 of 1977.
(Under Article 32 of the Constitution of India).
Madan Bhatia and D. Goburdhan for the Petitioner.
S.
V. G'upte, Attorney General, Soli J. Sorabjee, Additional Sol.
Genl. of India, R. N. Sachthey and K. N. Bhatt for the Respondents.
Ram Panjwani, Vijay Panjwani, Raj Panjwani, S. K. Bagga &
Mrs. S. Bagga for the Intervener.
The
folio wing Judgments were delivered :
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BEG, C.J. The case
before us involves questions relating to baste
human rights. On such questions I believe that multiplicity of views E
giving the approach of each member of
this Court is not a
disadvant~
age if i( clarifies our not infrequently differing approaches. It should
enable all interested to appreciate better the significance of our Con
stitution.
As I am in general agreement
with my learned brethren Bhagwati
and Krishna Iyer. I
wi11 endeavour to confine my observations to an F
indication of
my own approach on some matters for consideration now
before us. This seems to me to be particularly necessary as my learn-
ed brother Kailasam,
who has also given
l,JS the benefit of his separate
opinion) has a somewhat different approach. I have had the advant-
age of going through the opinions of each of
my three learned brethren.
Jt seems to me that there can be little doubt that the right to travel G
and to go outside the country, which orders regulating issue, suspen-
sion or impounding, and cancellation of passports directly affect, must
be included in rights to
"personal liberty" on the strength of decisions
of
this Court
giving a very wide ambit to the right to personal liberty
(see: Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport
Officer} Government of India, New Delhi & Ors.,C) Kharak Singh v.
State of U.P. & Ors.(
2
). H
(1) [1967] 3 S. C.R. 525.
(2) [1964] l·S.CR. 332.
644 SUPREME COURT REPORTS [1978) 2 S.C.R.
A Arttcle 21 of the Constitution reads as follows :
B
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"Protection of life and personal liberty. No person shall
be deprived of his life or personal liberty except according
to
procedure
established by law".
It is evident that Article 21, though so framed as to appear
as a shield operating negatively against executive encroachment
over something covered by
that shield. is the legal recognition of both
the
pro~ection 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
lvfadras,C) where, as pointed out by me in Addi~
tional District Magistrate, Jabalpur v. S. S. Shukla and othersC) with
the help of quotations from judgments of Patanjli Sastri, J. (from p.
195
to 196), Mahajan J. (p.
229~230), Das J. (295 and 306-307).
I may add to the passages 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 Art.
21.
Kania CJ said (at p. 106-107) :
"Deprivation (total loss) of personal liberty, which inter
alia includes the right to eat or sleep when one likes or to
work or not to work as and when one pleases and several
such rights sought to be protected by the expression 'per~
sonalliberty' 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 ter
ritory
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 de
priving 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 artic1c
246 read with Schedule Seven, List I, Entry 9, and List III,
Entry 3. Therefore, when the subject of preventive deten~
tion 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 pur
port to cover all aspects of liberty or of personal liberty. In
(l)
[1950] SCR 88.
(2) {1976] Suppl. SCR 172 at 327.
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MANEKA GANDHI v. UNION (Beg, C. ], )
that article only certain phases
of liberty are dealt
wit~.
'Personal liberty' would primarily mean liberty of the physi-
cal body. The rights given _u~der article 19~1) do ~ot
directly come under that descnptlon. They are nghts whtch
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 con
sidered
to be the only article safeguarding personal liberty
several well-recognised rights, as for instance, the right
to
645
eat or drink, the right to
work, play, swim and numerous
other rights and activities and even the right
to life will not
be
deemed protected under the Constitution. I do not think
that is the intention.
It seems to me improper to read article
19 as dealing with the same subject as article 21: Article 19
gives the rights specified therein only to the citizens of India
while article
21 is applicable to all persons. The word citizen
js expressly defined in the Constitution to indicate only a
certain section of the inhabitants of India. Moreover, the
protection given, by article 21 is very general. It is of 'law'
whatever that expression is interpreted to mean. The legis-
lative restrictions
on the law-making powers of the legislature
are not here prescribed in detail as in the case
of the rights
specified in article
19. In my opinion therefore article 19
should be read as a separate complete
article".
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In that case, Mukherjea J., after conceding that the rights given
by article 19 (1 ) ( u) would be incidentally contravened by an order
of preventive detention (see p. 261) and expressing the opinion that E
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 phy
sical constraint or coercion" only. Mukherjea, J., cited Dicey for his
more restrictive view that "personal Iil~erty" would mean : "a personal
right . not to be . subjected
to imprisonment, arrest or other physical
l<
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 sub
jected
to any form of physical restraint or coercion that
con
stitutes 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 Cpmmittee of our Con
stitution Mukherjea, J., said : (p. 263) :
"It is enough to say at this stage that if the report of the
Dra~ting Com~ittee is an appropriate material upon which
the mterpretat1on
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 (I ) (d) of the
· Constitution do not mean the same thing as the expression
3--119SCI/78 .
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646 SUPREME COURT REPORTS [1978] 2 s.c.R.
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 ~ncludes not only personal freedom from physi
cal restraint but the right to the free use of one's own pro
perty and to enter into free contractual relations. In the
Indian Constitution,
on the other hand, the expression 'per
sonal liberty' has been deliberately used to restrict
it to free
dom from physical restraint of person by incarceration or
otherwise".
Fazal Ali, J., however, said (at p. 148) :
"To my mind, the scheme of the Chapter dealing with
the fundamental rights does
not contemplate what
is attri
buted
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 article 20 and 21 and also
under article 22 so far as his arrest and detention in custody
before trial
are concerned. Preventive detention, which is
dealt with in article
22, also amounts to deprivation of per
sonal liberty which is referred to in article 21,
and
is
1
a viola
tion of the right
of freedom of movement dealt with in arti
cle 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
otherH.
As has been pointed out by my learp.ed brother Bhagwati, by de·
tailed references to cases, such as Haradhan Saha v. The State of
West Bengal & Ors(l) and Shambhu Nath Sarkar v. State of West
Bengal (2), the view that Articles 19 and 21 constitute water tight
compartments, so that' all aspects of personal liberty could be excluded
from Article 19
of the Constitution, had to be abandoned as a result
of what was held, by a larger bench of this Court in R. C. Cooper v. Union of lndia(
3
), to be the sounder view. Therefore, we could
neither revive that overruled doctrine nor could we now hold that im
pounding or cance11ation
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,
whicJi certainly appears to have found fav
our 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 ap·
proach was displaced by the sounder view that the Constitution must
be read as an integral whole, with possible over-lappings of the subject
matter
of what is
sought to be protected by its various provisions par
ticularly
by articles relating to fundamental rights.
(1) [1975J 1 SCR 778.
(2) [1973] 1
SCR 856.
(3) [ 1973] 3 SCR 530.
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MANEKA GANDHI V. UNION ( ChanJrachud, ]. ) 647
In A. K. Gopalan's case (supra), what was at issue was whether A
ihe tests of valid procedure for deprivation of personal liberty by pre
-vcnth e detention must be found exclusively in Article 22 of the Con
stitution or could
we gather from outside it also
dements of any "due
process of law" and use them to test the validity of a law dealing with
~preventive detention. Our Constitution~makers, while accepting a de-
parture
from ordinary norms, by permitting making of laws for
pre
ventive detention without trial for special reasons in exceptional situa
·tions also provided quite elaborately, in Article 22 of the Constitutio~
itselfJ what requirements such Jaw, relating to preventive detention,
mulit sati!ify. The procedural requirements of such laws separately
fonned parts of the guaranteed fundamental rights. Therefore, when
.this Court
was called upon to judge the validity of provisions relating
8
to preventive detention it laid down, in Gopalan's case (supra), that C
tlle tests of "due process", with regard to such laws, are to be found
in Article 22 of the Constitution exclusively because this article con
.stitutes
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 observJ.tions relating to
the separability of the subject matters of Articles 21 and 19 were
mere
obiter dicta. They may have appeared to the majority of learned D
Judges in
Gopalan's case to be extensions of the logic they adopted
with regard to the relationship between Article
21 and 22 of the
Con~
stitution. But, the real issue there was whether, in the face of Article
22 of the Constitution, which provides all the tests of procedural vali
dity of a law regulating preventive detention, other tests could be im
ported from Article 19 of the Constitution or elsewhere into ''proce~
dure established by law". The majority view was that this could not E
be done. I think, if I may venture to conjecture what opinions lear~
ned Judges of this Court would have expressed on that occasion had
other t}pes 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
re
member if we are to correctly understand what was laid down in that
case.
F
I have already referred to the passagel) I cited in A. D. M. hbai
pur:s ~ase (~upra) to s~ow that, even in ~opalan's case (supra), the
maJOnty of JUdges of th1s Court took the vtew that (the( ambit of per·
sonal liberty protected by Article 21 is wide and comprehensive. It G
~mbraces both substantive rights to personal Jiberty and the procedure
provided for their deprivation. One can, however, say that no ques
tion .of ''due process of .law" can. really. arise, apart from procedural
reqmrements of preventive detentiOn latd down by Article 22 in a:
case such as th~ one this ~ourt c?nsidered in G~palan's case (s~pra).
The dear meanmg of Arttcle 22 Is that the reqUirements of "due pro
~ess of. law", in cases of preventive detention, are satisfied by what H
t-l provtded ·by Article 22 of the Constitution itself. This article in
dkates the pattern of "the procedure established by Jaw" for cases of
preventive detention.
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648 SUP~EME COURT REPORTS [1978] 2 S.C.R.
Questions, however, relating to either deprivation or restrictions of
personal liberty, concerning laws falling outside Article 22 remain\!d
really unanswered, strictly speaking, by Gopalan's case. If one may
so
put it, the field of. ''due
process" for cases of preventive detention
is fully covered by Article 22, but other parts of that field, not covered
by Article 22, are "unoccupied" by its specific provisions. I have no
doubt that, in what may be called "unoccupied" portions of the vast
sphere of personal liberty,
the substantive as well as procedural laws
made to cover them must satisfy the requirements of both Articles
14 and 19 of the Constitution.
Articles dealing with
different fundamental rights contained in Part
Ill of the Constitution do not represent entirely separate streams of
rights which do not mingle at many points. Th!;\y 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, ex
pression, 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 qf unreasonable or unfair discrimination bet
ween individuals, groups and classes), and of Fraternity (assuring
dignity of the individual and the unity of the nation), which
our Con
stitution visualises
.. Isolation o.f various aspects of human freedom,
for purposes of their protection,
is neither realistic nor beneficial but
would defeat the very objects of such protection.
We have
to remember that the fundamental rights protected by
Part III of the Constitution, out. of which Articles 14, 19 and
21 are
the most frequently invoked, form tests of the validity
of executive
as well as legislative actions when these actions are subjected
to· judi
cial scrutiny. We cannot disable Article 14
or 19 from so function
ing 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 validitv of Sec
tion
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 im
munity from such disclosure under section
10(5) of the Act.
I have already mentioned some of the authorities relied upon by
me in A. D. M. Jabalpur v. S. Shukla (Supra), while discussing the
scope
of Article 21 of the Constitution, to hold that its ambit is very
wide. I will now indicate why, in my view, the particular rights
claimed
by the petitioner could fan within Articles 19 and 21 and
the nature and origin of such rights. Mukerji J., in Gopalan's case (supra) referred to the celebrated
commentaries
of Blackstone on the Laws of England. It is instructive
to reproduce passages from there even though juristic reasoning may
have travelled today beyond
the stage reached by it when Blackstone
1
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MANEKA GANDHI v. UNION (Beg, C. J.) 649
wrote. Our basic concepts on such matters, stated there, have pro-A
vided the foundajons on which subsequent superstructures were rais-
ed. Some of these foundat:ons, fortunately, remain intact. Black
stone said :
"This law of nature, being coeval with mankind, and
dictated
by God himself, is of course superior in obligation
to any other.
It is binding over all the globe in all
coun-· B
tr!es, 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
alJ their authority, mediately or immedia-
tely, from this original."
The identification of natural law with Divine will or dictates of
God may have, qui·,e understandably, vanished at a time when men
see God, if they see one anywhere at all, in the highest qualities in
herent in the nature of Man himself. But the idea of a natural law
as a morally inescapable postulate of a just order, recognizing the ina
lienable and inherent rights of all men (which term includes women)
as equals before the law persists.
It is, I think, embedded in our own
Constitution. I do
not think that we can reject Blackstone's theory
of natural
rights as totally irrelevant for us today.
Blackstone propounded his philosophy of natural
or absolute
fights in the following terms :
''The absJlute rights of man, considered as .1 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 denom:nated the natural liberty of man
kind. 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 o£ 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 receiv_ing. the advantages of mutual
commerce, obliges himself
to conform
to those laws, which
the community has thought proper to establish. And this
species of legal obedience
and conformity is infinitely more
desirable than that will and savage liberty which is
sacri
ficed to obtain it. - For no man that considers a moment
would wish to retain the absolute and uncontro11ed power
of doing whatever he pleases; the consequence of which is,
that every
other man would also have the same power, and
then there would be no security
to individuals in
any of the
enjoyments of life. Political, therefore, or civil liberty, which is
that of a member of society, is no other than natura~ liberty so
far restrained by human laws (and no farther) as is neces
sary and exped!ent for the general advantage of the public.
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650 SUPREME COURT REPORTS [1978] 2 S.C.R.
The absolute rights of every Englishman, (which, taken
in a political and extensive sense, are usually called their
liberties), as they are founded on nature
and reason, so
they are coeval with our form of Government; though sub
ject
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,
a3 there is no other known method of compulsion, or ab
ridging man's natural free will, but by an infringement or
diminution of one or other of these important rights, the
preservation of these, involate, may justly
be said to in
clude
the preservation of our civil immunities in their lar
gest 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 re
gards, asserts, and preserves the personal liberty of
indivi~
duals. This personal liberty consists in the power of loco
motion, of changing situation,
or moving one's person to
whatsoever place
qne's own inclination may direct, without
imprisonment
or
r~straint, 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 Jhis kingdom,
it cannot ever
be abridged
at the mere discretion of the magistrate, with
out the explicit permission of the laws.
III. The third absolute right, inherent in every English
man, is that of property; which cons:sts in the free use, en
joyment, 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 tbe ensuing commentaries; but certainly the modifica
tions under which
we at present find it, the method of con
serving 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 indi-
. vidual has resigned a part of his natural liberty."
I have reproduced from Blackstone whose ideas may appear
somewhat quaint
in an age of irreverence because, although
1 I know
that modern jurisprudence conceives
·of all rights as relative or as
products of particular socio-economic 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.
•
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MANEKA GANDHI v. 1JNION (Beg, C. /.) 651
It is found in Greek philosophy. If we have advanced today to·
wards what we believe to ·be a higher civilisation and a more enligh·
tened era, we cannot fall behind what,-at any rate, was the meaning
given to "personal fberty" 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 dlrect, 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 pro
position, 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 /. C. Golaknath v. State of Punjab (I)
when he said (at p. 789) :
"Now, what are the fundamental rights? They are ern":'
bodied in Part III of the Constitution and they may be
classified thus: (i) right to equality, (ii) right to freedom,
(iii) right against exploitation, (iy) right to freedom of re
ligion, (v) cultural and educational rights, (vi) right to pro
perty, and (vii) right to constitutional remedies. They
are
the rights of the people preserved by our Constitution,
'Fundamental rightst 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 neces
sary 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
+he
well-known fundamental rights, also inaluded the
rights of the minorities, tintouchables and other backward
communities, in such right".
Hidayatullah, J., in the same case said (at p. 877) :
"What I have said does not mean that Fundamental
Rights are not subject to change or modification. In the
most inalienable
of such rights a distinction must be made
between possession of a right and its exercise. The
first is
fixed and the latter controlled by justice and necessity. Take
for example Article
21 :
'No person shall be deprived of his life or personal
liberty except according to procedur~ established by law".
Of all the rights, the right to one's life is the most valu
able. This article of the Constitution, therefore, makes the
right fundamental. But the inalienable right is curtailed by
a murderer's conduct
as viewed under Iaw. The
depriva·
tion, when it takes place, is not of the right which was im
mutable but of the continued exercised of the right."
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It is, therefore, clear that six out of eleven Judges in Golak
Nath's
case declared that fundamental rights are
natural rights em
bodied in the Constitution itself. This view was affirmed by the
majority Judges
of this Court in Shukla's case. It was explained by
me there at some length. Khanna, J ., took a somewhat different
view. Detailed reasons were given by
me in Shukla's case (supra)
for taking what I found to be and still find as the only view I could
possibly take
if I were not to
disregard~ as I could not properly do,
what
had been held by larger benches and what I myself consider
to be the correct view : that natural law rights were meant to be
converted into our Constitutionally recognised fundamental rights,
at~
least so far as they are expressly mentioned, so that they arc to be
found within it and not outside it. To take a contrary vlew would
involve a conflict between natural law and
our Constitutional law.
I
am emphatically of opinion that a divorce between natural law and
our Constitutional law will be disastrous. It will defeat one of the
basic purposes of
our Constitution.
The implication of what I have indicated above is that Article 21
is also
a recognition and declaration of rights which inhere in every
individual. Their existence does not depend
on the location of the
individual. Indeed, it could be argued that what so inheres is
ina~
lienable and cannot be taken away at all. This mav seem theore-
tically correct and logical. But, in fact, we are ofte~ met with de~
nials of what is, in theory, inalienable or "irrefragible". Hence, we
speak
of
"deprivations" or "restrictions" which are really impedi
ments to the exercise of the "inalienable" rights. Such deprivations
or restrictions or regulations of rights may take place, within pres-
E cribed limits, by means of either statutory Jaw or purported actions
under
that law. The degree to
whkh the theoretically recognised or
abstract right is concretised is thus determined by the balancing of
principles on which an inherent right is based against those on which
a restrictive law
or orders under it could be imposed upon its exercise. We have to decide in each specific case, as it arises before us,
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what the result of such a balancing is.
In judging the validity of either legislative or executive state ac
tion 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
~ountry,
the action taken may be ineffective. But, the validity of the law
must
be determined on considerations other than this. The tests of
validity
of restrictions imposed upon the rights covered by article
19 (1) will be found in clauses (2) to ( 6) of Article 19. There is
nothing 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 articles 19(2)
to (6). I agree with my learned brother Bhagwati, for reasons de
tailed
by him, that the
total effect and not the mere form of a restric~
tion will determine which fundamental right is really involved in a
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J
MANEKA GANDHI V. UNION (Beg, C. ].) 653
particular case and whether a restric_tion upon its exercise is reason
bly permissible on the facts and circumstances of
that case.
If rights under article 19 are rights which inhere in Indian
cit~
zcns, individuals concerned carry these inherent fundamental consti
tutional rights with them wherever they go, in s~ far a.s o'!r law
applies to them, because they arc parts of the Indmn nation JUSt as
Indian ships, flying the Indian flag, are deemed,
in International law,
to
be floating parts of Indian territory. This analogy, however,
~ould
not be pushed too far because Indian citizens on foreign terntory,
are only entitled,
by virtue of their Indian nationality and passports,
to the protection of the Indian Republic and the assistance of its
diplomatic missions abroad. They cannot claim
to be governed
abroad by their own ConstiTutional or personal laws which do not
operate outside India. But,
that is not the position in the case before
us.
So far as the impugned action in the case before us is concerned,
it took place
in India and against an
ln{.lian citizen residing in India.
In India, at any rate, we are all certainly governed by our Con
stitution. The fact that the affected petitioner may not, as a result
of a particular order,
be able t9 do something intended to be done
by
her abroad cannot possibly make the Governmental action in
lndja either ineffective or immune from judicial scrutiny or from an
attack made on, the ground of a violation of a fundamental right which
inhere.,s 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 rele
vant 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
ffi(,rits of an order passed. It may show how she has bl!come a
"person aggrieved" with a cause of action, by a particular order in
volving her personal freedom. But, such considerations cannot cur
tail or impair the scope or operation of fundamental rights of citizens
as protections against unjustifia:ble action.s of their own Government.
Nor can they, by their own force, protect legally unjustifiable actions
of the Government of our country against attacks in our own Courts.
In order to apply the tests contained in Articles 14 and 19 of the
Constitution, we have
to consider the objects for which the exercise of iil.lterent rights recognised by Article 21 of the Constitution are
restricted as well
as the procedure by which these restrictions are
sought to be imposed. Both substantive and procedural laws and
actions taken under them will have to pass tests imposed
by articles
14 and 19 whenever facts justifying the invocation of either of these
articles may be disclosed. For example, an international
'iinger 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 viol~tions of both articles 21 and 19 ( 1) (g) may both be put forward
makmg it necessary for the authorities concerned to justify the restric
tion imposed, by showing satisfaction of tests of validity contemplated
by each of these two articles.
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'. The tests of reason and justice cannot be abstract. They cannot
-be divorced from the needs of the nation. The tests have to be prag
mat£. , Otherwise, th~y would ce-ase to be reasonable. Thus, I think
that a discretion left to· the authority to impound a passport in public
interest cannot invalidate the law itself. We cannot, out of fear that
such power will be misused, refuse to permit Parliament !o entrust
--even such power to executive authorities as may be absolutely neccs·
sary to carry out the purposes of a validly exercisable power. I
think it has to be necessarily left to executive discretion to decid~ whc· ·
ther, on the facts and circumstances of a particular case, public inte-
-rest 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 pJ.ss ...
ports, the possible dealings of an individual with nationals and autho-
C lities of other . States have to be considered .. · The contemplated or
-. possible activities abroad of the individual may have to be taken into
account. '-_There may be questions of national safety and welfare which
transcend ·. the importance of the individual's inherent right to go
where he or she pleases to go. Therefore, although we may not deny
the grant of wide_ discretionary power _to the executive authorities as un-
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reasonable. in such cases, yet, I think we must look for and find pro ..
cedural safeguards
to ensure that the power will not be used for pur
poses extraneous to the grant cf the
power· before we uphold the validity
of the power conferred. \Ve have to insist on procedural proprieties the
observance _of which could show that such_ a power is being used only
to serve what can reasonably· and justly be regarded as a public or
national interest capable of overriding the individual's inherent right of
movement or travel to wherever he or she pleases in the modern world
of closer integration in every sphere between the peoples of the world
and the sh~nk time-space relationship~. ..:: -·
The view I have taken above proceeds on the assumption that there ·
are inherent or natural human rights of the individual recognised by
and embodied in our Constitution. Their actual exercise, however, is
regulated and conditioned largely by statutory law. Persons upon whom
these basic rights are cvnferred can exercise them so long as there is
. no justifiable reason under the law enabling deprivations or !estrictions
of such rights._, But. once the valid reason is found to be there and the
··deprivation or restriction takes place for that valid reason in a proce
durally Vfllid manner, the action which results in a deprivation or restric
tilm becomes unassailable. If either the reason sanctioned by the law .
i~ absent, or the procedure followed in arriving at the conclusion· that ---:_-·
such a reason exists is unreasonable, the order having the effect of de-·
privation or restriction must. be quashed.
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·A bare look at the provisions of S. 10, sub.s.(3) of the Act will s})ow
that each of the orders which could be passed under section 10, sub.s.
(3)(a) to (h) requires a usatisfactiod" by the Passport Authority on
certain objective conditions which must exist in a case !Jefore it p~sses
an order to impound a passport or a travel document. Impoun.dmg 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· Governt?ent
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MANEKA GANDHI v. UNION (Beg, C. ]. ) 655
from every order passed under section 10, sub.s. (3) of the Act. Rene~,
section 10, subs. s. (5) makes it obligatory upon the Passport Authority
to "record in writing a brief statement of the reasons for making such
order
and furnish to the holder of the passport or travel document on
demand a copy of the same unless in any case, the passport
aut]¥:lrity
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
fur~
ni~h such a copy".
It seems to me, from the prpvisions of section 5, 7 and 8 of the:
Act, read with other provisions, that there is a statutory right also ac
quired, on fulfilment of prescribed conditions by the holder of a pass
port,
that it should continue to be effective for the specified period
so·
long as no ground has come into existence for either its revbcation or
for impounding it which amounts to a suspension of it for the time being.
It is true that in a proceeding t!nder article 32 of the Constitution, we
are only concerned with the enforcement of fundamental Constitutional
rights and
not with any statutory rights apart from fundamental rights.
Article 21, however, makes
it clear that
violaTion of a law, whether sta
tutory
or if any other kind, is itself an infringement
of the guaranteed
fundamental right.
The basic right is not to be denied the protection
of
"law" irrespective of variety of that law. It need only be a right
"established by law".
There can be no doubt what~ver 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 as
sertions 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
op~
portunity to its holder to show cause against the proposed action. The
impounding as well revocation of a passport, seem to constitute action
in the nature of a punishm~p.t necessitated on one of tht:J grounds speci
fied
in the Act. . Hence, ordinaJily, an opportunity to be heard in defen::e after a show cause notice should be given to the holder of a
passport even before impounding
it.
It is well established that even where there is no specific provision
in a statute
or rules made thereunder for
showing cause against action
proposed
to be taken against an individual, which affects the rights
o~
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) Binapa ni Dei & Or~. C) in the following words :
"The rule that a party to whose prejudice an order is in
tended
to be passed
is entitled to a hearing applies alike to
(l) AlR 1967 S.C. 1269 at 1271.
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656 SUPREME COURT REPORTS [1978] 2 S.C.lt.
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, there
fore arise from tb~ very nature of the function intended to be
performed, it need not be shown to be super1added. If there
is ppwer 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 pre
judice of a Person is made, the order is a nullity. That is a
basic
concept of the rule of law and importance thereof tran
scends the significance of a decision in any particular case.''
In England, the rule
\Vas thus expressed by Byles J. in Cooper v.
Wandru·orth Board of Works(!) :
"The laws of God and man both give the party an oppor
tunity to
make his defence, if he has any. I remember to have
heard it observed by a very learned
man, upon such an occa
sion,
that even God himself did not pass sentence upon Adam
before he was called upon to make his defence.
"Adam (say~
God), "where art thou? Hast thpu not eaten of the tree
whereof I commanded thee that thou shouldest not eat ?"
And the same question was put to Eve also."
I find no difficulty whatsoever in holding, on the strength of these
weU recognised principles, that an order impounding a passport must
be made quasi-judicially. This was not done in the case before us.
In my estimation, the findings arrived at by my learned brethren
after an examination of the facts of the case before us, with which I
concur, indicate
that it cannot be said that a good enough reason has
been shown to exist for impounding the passport of the petitioner by F the order dated 7th July, 1977. Furthermore, the petitioner has had no
opportunity of showing that the ground for impounding it finaJly given
in this Court either does not exist or has no bearing on public mterest
or that public interest cannot be better served in some other manner.
Therefore, speaking ~r 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 avai1ab1e.
G
I am not satisfied that there were present any such pressing grounds
with
regard to the petitioner
be(o're us that the immediate action of im
pounding her passport 'vas called for. Furthermore, the rather cava
lier fashion in which disclosure of any reason for impounding her pass
port was denied to her, despite the fact that the only reason said to
exist the possibility of hef being called to give evidence before a com
mission {)t inquiry and stated in the counter-affidavit filed in this Court,
is not such as to be reasonably deemed to necessitate its concealment in
(1) 1863 (14) C. B. (N.S.) 180.
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MANEKA GANDHI V. UNION (Chandrachud, J.) 657
public interest, may indicate the existence of some undue prejudice A
against the petitioner. She has to be protected against even the appea
rance of such prejudice or bias.
It appears to me that even executive authorities when taking ad
ministrative 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 B
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 natu-
ral justice.
The attitude adopted by the Attorney General however, shows
that
Passport authorities realize fully that the petitioner's case has not been
justly
or reasonably dealt with. As
the· undertaking given by the
Attorney General amounts to
an offer to deal with it justly and fairly
after informing the petitioner of
any ground that may exist for impound
ing her
pa·ssport, 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 Jply, 1977, is neither fair nor proce
durally proper, I would, speaking for myself, quash this order and direct
the return
of the impounded passport to the
petitioner~ I also think
that the petitioner is entitled to her costs.
CHANDRACHUD, J.-The petitioner's passport dated June 1, 1976
having been impoundr~d "in public interest" by an order dated July 2,
1977 and the Government of India having declined "in the interest of
general public" to furnish to her the reasorus for its decision, she has
filed this writ p=tition under article 32 of the Constitution to challenge
that order. The challenge is founded on the following grounds :
(1) To the extent to which section 10(3) (c) of the Passport
Act, 1967 authorises the passport authority
to impound
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"in the interests of the general public", it is r
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 hearip.g to the holder of
the passport before the passport is impounded;
(3)
(4)
Section 1 0 ( 3) (c) is violative of article 21 of the Consti
tution since it does not prescribe 'procedure' within the
meaning of that article and since the procedure which it
prescribes is arbitrary and unreasonable; and
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 eve·n though such
restrictions cannot
be imposed under articles 19(2) and
19(6).
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At first, the passport authority exercising its power under section 1 0 ( 5)
of the Act refus·~d to furnish to the petitioner the reason for which it
was considered necessary in the interests of general public to impou'nd
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 petitio'ner's passport was impounded because, her presence
was likely to be required in connectiop. with the proceedings before a
Commission
of Inquiry, could easily have been made when the pe.ti-
tioner called
upon the Government to let her know the reasons why
her passport was impounded. The power to refuse to disclose the
reasons for impou'nding a passport is of an exceptional nature and it
ought to be ~~xercised 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 impou'nding the passport, the refusal to
disclose the reasons
would equally
be open to the scrutiny of the court; or else, the whole
some
power of a dispassionate judicial examination of executive orders
could with impunity
be set at naught by an obdurate determination to
suppress the
rea-sons. Law cannot permit the exercise of a power
to keep the reasons undisclosed if the sole reason for doing so is to
keep tb~ reasons away from judicial scrutiny.
In Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport
Officer, Government of India, New Delhi & Ors.C) 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 perso'n can be deprived of that right except according to proce-
E
dure established by law. The Passport Act which was enacted by
Parliament in 1967 in
order to comp1y with that decision prescribes
the procedure whereby
an application for a passport may be granted
fully or partially, with or
witj10ut any endorsement, and a passport
once granted may later be revoked or impounded. But th~ mere
prescription
of some ki'nd of procedure cannot ever meet the mandate
of article 21. The procedure prescribed by law has to be fair, just f and reasonable, not fanciful, oppressive or arbitrary. The question
whether the . procedure prescribed by a law which curtails or takes
away
the personal liberty
guaranb:!ed by article 21 is reasonable or
not has to be considered not in the abstract or on hypothetical consi
derations like the provision for a full-dressed 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 situationiS which those who are
G charged with the duty of administering the Act may be called upon
to deal with. Sr~condly, even the fullest compliance with the require
ments of aritcle 21 is not the journey's end because, a law which pres
cribes fair
and reasonable procedure for curtailing or taking away the
personal liberty
guarante-~d by article 21 has still to meet a possible
challenge
under other provisions of the Constitution like, for example,
articles
14 and 19. If the holding in A. K. Gopalan v. State of
H Madras(2) that the freedoms guaranteed by the
Constitutldn are
( 1) [1967] 3 SCR 525
(2) [1950} SCR 88.
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MANEKA GANDHI V. UNION (Chandrachud, J.) 659
mutually exclusive were still good law, the right to travel abroad
which is part of the right of personal liberty under artic:e 21 could
only be found and located in that article and in no other. But in the
Bank Nationalisation Case (7t C. Cooper v. Union of India) C) the
majority held that the assumption in
A.
K-Gopalan(2) that certain
articles of the Constitution exclusively deal with
specific mattens can
not be accepted
as correct. Though the Bank Nationalisation
casc(l)
was concerned with the inter-relationship of article 31 and 19 and not
of articles
21 and 19, the basic approach adopted therein as
regards
'the construction of fundamental rights guaranteed in th,~ different pro
visions of the Constitution categorically discarded the major premise
of the majority judgment in
A. K. Gopalan (supra) as incorrect. That
is how a seven-Judge Bench in
Shambhu Nath Sarkar v. State of West
Bengal
&
Ors. (8) assessed the true impact of the ratio of the Ba1lk
Nationalisation Case (supra) on the dec;ision in A. K. Gopalan (supra)
in Shambhu Nath Sarkar(3) it was accordingly held that a law of
preventive detent~on has to meet the challenge not only of articles
21 and 22 but also of article 19(1)(d). Later, a five-Judge Bench
in
Haradhan
Saha v. State of West Bengal & Ors.(
4
) adopted the same
approach and considered the question whether the Maintenance of
Internal Security
Act, 1971 violated the right guaranteed by article
19 ( 1) (d). Thus, the inquiry whether the right to travel abroad forms a part of any of the freedoms mentioned in article 19 ( 1) is
not to be shut out at the threshold merely because that right i! 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
infring~ment
of the fundamental right conferred by article 21, such law,
in so far as it abridges or takes away any fundamental right
under article
19 would have to meet the challenge of that article." -
The interplay of diverse articles of the Constitution guaranteeing
varioU8 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
cons·~quences was thought in
A. K. Gopalan (supra) and Ram Singh(
5
) to be the true approach
for determining whether a fundamental right
was infringed. A signi
ficant application of that test may be perceived in Naresh
S. Miraj
kar(6)
where an order passed by the Bombay High Court prohibiting
the publication of a witness's evidence in a defamation case
was
up
held by this Court on the ground that it was passed with the object
of affording protection to the
witness in order to obtain true evidence
(1) [1973) 3 SCR
530.
(2) [1950) SCR 88
(3) [1973) l SCR 856.
(4) [1975)
1
SCR 778.
(5) P951J SCR 451.
(6) [1966J 3 SCR 744.
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860 SUPREME COURT REPORTS [1978] 2 S.C.R.
and its impact on the right of free speech and expression guaranteed
by article 19(1) (a) was incidental. N. H. Bhagwati J. in Express
NewspapersC) struck a modified note by evolving the test of proxi~
mate effect and operation of the statute. That test saw its fruition in
Sakal PapersC) where the Court, giving precedence to the direct and
imm~diate effect of the order over its form and object, struck down
the Daily Newspapers (Price and Page) Order. 1960 on the ground
that it violated article 19(1)(a) of the Constitution. The culmination
of this thought process came in the Bank Natianalisation Case (supra)
where it was held by the majority, speaking through Shah J., that the
extent of protection against impairment of a fundamental right is
determined by the direct operation of an action upon the individual's
rights
and not by the object of the
l•=gislature or by the form of the
action.
In
Bennett Coleman(
3
)
the Court, by a majority, reiterated
the
same position by saying that the direct operation of the Act upo'n
the rights forms the real test. It struck down the newsprint policy,
restricting the number
of pages of newspapers without the option to
reduce the circulation, as offending against the provisions of article
19 (1 )(a). "The action may have a direct effect on a fuhdamental
right although
i!s direct subject matter may be different" observed the
Court, citing an effective instance
of a law dealing with the
D~fence
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
stature. These then are the guidelines with the help of which one has
to ascertain whether section 10(3) (c) of the Passport Act which
authorizes the passport authority
to impound a passport or the impugned
order passed thereunder violates the guarantee of free speech and
expression conferred by article 19 ( 1 ) (a) .
The learned Attorney General answered the petitioner's contention
in
this behalf by saying firstly, that the right to go abroad cannot be
comprehended within the right of free speech and expression since
the latter right is exercisable by the Indian citizens within the geogra
phical limits
of India only. Secondly, he contends, the right to go
abroad is altogether of a different genre from the right of free speech
and expression and is therefore
not a part of it.
The first of these contentions
raises a question of great importance
but the form in which the contention i;S 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
G in their exercise by geographical considerations. The right to move
freely throughout the 'territory of India' and
the right to
resid~ and
settle in any part of the 'territory of India' which are contained in
clauses (d) and (c) 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
H
nature of those rights, their exercise is limited to Indian territory.
(1) (1959]SCR12.
(2) [ 1962] 3 SCR 842.
(3) [1973] 2 SCR 757.
I
j
J
)._
MANEKA GANDHI V. UNION (Chandrachud, J.) 661
Those rights are int,;!nded to bring in sharp focus the unity and inte-A
grity of the country and its quasi-federal structure. Their drive
is
directed against the fissiparous theory that 'sons of the soil' alone shall
thrive, the 'soil' being conditioned by regional
and sub-regional
corua
derations. The other freedoms which article 19 ( 1) confers are not
so restricted by their terms but that again
is not conclusive of the
question under consideration. Nor indeed does the fact that restraints on the freedoms guaranteed by Article 19(1) can be imposed B
under Article\S 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 th'~
ambit of a freedom cannot be measured by the right of a State to
pass laws imposing restrictions on that freedom which, in the ~nerality
of cases, have a geographical limitation. c
Article 19 (1) (a) guarantees to Indian citizens the right to free
.dom of speech and expression. It does not delimit that right in any
manner ::md there is no remson, arising either out of interpP:!tational
dogmas or pragmatic considerations, why the courts should str1fln 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 D
that Indian citizens are entitled to exercise that right wherever they
choose, regardles-s of geographical considerations, sub}~ct of course
to the operation of any existing law or the power of the State to make
a law imposing reaso'nable 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 t.a con
tempt of court, defamation or incitement to an offence, as provided
E
in article 19(2). The exercise of the right of free speech ai1d ex
pression beyond the limits of Indian territory
will, of course, also be
subject to the laws of the country in which the freedom is ot is in
tended to be exercised. I am quite clear that the Constitution does
not confer any power on the executive to prevent the exercise by <ili
Indian citizen of the right of free speech and expression on foreign
soil, subject to what I have just state~. In fact, that seems to me to F
be the crux of ~he m~tter, for w~ich reason I said, though with respect.
tha~ _the form. m which the learned Attorney General stated his pro
position
v:as
likely !O cloud the true issue. The Constitution guar:.iti
tees certam fundamental freedoms and except where their exerci~e is
1i.mited by territorial considerations, those freedoms may be exer-.
c.1sed wher~socver one chooses, subject to the exceptions or qualifica·
t1ons mentwncd above. G
. The next questio~ is whether the right to go out of India is an
mtegral part . o~ th_e nght of free speech and expression and is com
~reh~nded Wlthm 1~. Tt ~ecms to me impossible to answer this ques-
tion m the a~rmatn.:e as IS. contended by the petitioner's counsel, Shrl
Mad~n Bhatia. It JS possible . to predicate-or many a rigbt that its
e~erc1se would be more me~~mgfu1 if the right is extended to com- H
p1ehend~d an extraneous facility. But such extensions do not form part
of
the
nght con~err?d by the. Constitution. The analogy of the free
dom of press bcmg mc1uded m the right of free speech and expres~ion
4-119SCT/78
-· -----
662
SUPREME COURT REPORTS [1978] 2 s.c.R.
A is wholly misplaced because the right of free expression incontrover
tibly 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 dlfterent
indeed that one cannot be comprehended in the other.
B
c
D
E
F
G
H
Brother Bhagwati has,
on this aspect considered at length certain
American decisions like
Kent(') ,;Apthekar(
2
) and Zemel(
3
)
and illu
minating though his analysis. is, I
am inclined to think that the presence
of the due process clause in
tlie 5th and 14th Amendments of the
American Constitution makes significant difference
to the approach of
American Judges
to the definition and evaluation of constitutional
guarantees.
The content which has been meaningfully and imaginatively
poured into
"due process of law" may, in my view, constitute an impor
tant point of distinction between the American Constitution and ours
which studiously avoided the
use of that expression. In the Cen-
tennial Volume.
"The Fourteenth Amendment" edited by
Bernard Schwartz, is contained in an article on 'Landmarks of Legal
Liberty' by Justice William J. Brennan
in which the learned
Judge
quoting from Yeat's play has this to say : In the service of the 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 women in Yeat's play,
"Did you see an old woman going down the path ?"
asked Bridget. "I did not," replied Patrick, who had come
into the house after the old woman left it, "But I saw a young
girl
and she had the walk of a queen."
Our Constitution too strides in its majesty but, may it be remembered,
without the due process clause, I prefer
to be content with a decision
directly in point,
All India Bank Employees' Association(
4
)
tn 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 effp,ctive, in order to achieve the purpose for which the union was
formed. One right leading to another and that another to still other.
and so on, was described in the abovementioned decision as produc
tive of a "grotesque result".
I have nothing more to add to what Brother Bhagwati has said
en 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
1
Y ( 1 ) (a), if an order made under section 10 ( 3) (c) of the Act -does
in fact violate
the right of free speech and expression, such an order
could be struck down as unconstitutional. It is well-settled that a statute may pass the test of constitutionality and yet an order passed
under
it may be unconstitutional. But of that I will say
no ..... more
(1) 2 L. eel. 2d 1204.
(2) 12 L. ed. 2d 992.
(3) 14
L. ed. 2d 179.
(4)
[1962} 3 SCR 269.
>
I
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I
MANEKA GANDHI V. UNION (Bhagwari, /.) 663
because in this branch, one says no more than the facts warrant and
A
~ 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 find further to limit the operation ~f. the
order to a· period of six months from the date of the fresh dects1on,
B
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).
I, therefore., agree with the order proposed by Brother Bhagwati.
..
BHAGWATI, J.-The Petitioner is the holder of the passport issued
to her on 1st June, 1976 under the Passport Act, 1967. On 4th
c
July, 1977 the Petitioner received a letter dated 2nd July, 1977 from
the Regional Passport Officer, Delhi intimating to her that it has ~een
dr.dded by the Government of India to impq_und her passport under
se.ction 10 ( 3) (c) of the Act in public interest and requiring her t()
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
D
~ statement of reasons for making the order as provided in section 10(5)
to which a reply was sent by the Government of India, Minis1ry of
External Affairs
on 6th July, 1977 stating inter alia that the Govern-
ment
has decided
"in the interest of the general public" not to furnish
her a copy of the statement
of reasons, for making of the
order. The
Petitioner thereupon filed the present petition challenging the action
of the Government in impounding her passport and d~clining to give
E reasons for doing so. The action of the Government was impugned
inter alia on the ground that it was mala (ide, but this challe§S_e was
~ not pressed before us at the time of the hearing of the arguments and
'
hence it is not necessary to state any facts bearing <m 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 1 0( 3) (c)~ in so far as it em powers the Passport Authority to·
F impound a passport "in the interests of the general public" is violative
of the equality clause contained in Art. 14 of the Constitution, since
the condition denoted by the words "in the interests of the general
public" limiting the exercise of the power is vague and undefined and
"')
the power conferred by this provision is, tberefore, excessive and
, suffers from the vice of "over-breath." The petition also contamed a
{
challenge that an order under section 1 0(3) (c) impounding a passport
G couJd not be made by the Passport Authority without giving an oppor-
tumty to
the holder of the passport to be heard in defence and
since
in. the present. case, the pass~rt was impounded by the Government
Without a.ffordmg an opporturuty of hearing to the petitioner, the order
was ~ull and void, and, in the alternatjve, if section 10(3 )(c) were
-.;
read m s~ch a ma~er as t<? exclude. the .right of hearing, the section
would
be mfccted w1th the
vtce of arbttranness and it would be void as
'
~trending .~cle 14. These were the only grounds taken in llie Peti· H
tion as ongmally filed and on 20th July, 1977 the petition was admitted
and rule issued by this Court and an interim order was made directing
664 SUPREME COURT REPORTS [1978] 2 S.C.R.
A 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
Pe<tition.
B
·c
D
E
F
G
H
The hearing of the petition was fixed on
30th August 1977, but
before that, tl1e petitioner filed an application for urging additional
ground~ and by this application, two furth!!r grounds were sought to
be urged by her. One ground was that· section 10 ( 3) (c) is ultra vires
Article 21 since it provides for impounding of passport without any
procedure as required by that Article, or, in any event, even if it could
be said that there is some procedure prescribed under the passport
Act, 1967, it is wholly arbitrary and unreasonable and, therefore, not
in compliance with the requirement of that article. The other ground
urged on behalf of the petitioner was that section 10(3 )(c) is viola
tive of Articles 19 (1 )(a) and 19 (1 )(g) inasmuch as it autliorises
imposition
of restrictions on freedom of Speech and expression guar
anteed under Article 19(1)(a) and freedom to practise any profession
or to carry on any occupation, or business guaranteed under Article
1
Y (1 )(g) and these restrictions arc impermissible under ArtiCle 19 (2)
and Article 19 ( 6) respectively. The application for urging these two
additional grounds was
granted by this Court and ultimately at
the
hearing of the petition these were the two principal grounds which
were pressed on behalf of the petitioner.
Before
we examine the rival arguments urged on behalf of the
parties in
regard to the various questions arising in this petition, it
would be convenient to set out the relevant provisions of the Passport
Act, 1967. This Act was enacted on 24th June, 1967 in view of the
decision
of this Court in
SMwant Singh Sawhney v. D. Ramarathnam,
Assistant Passport O.fficer. Government of l1tdia, New Delhi & Ors.C)
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 unchanneUed. This Court. by a majority,-he1a that
the expression
"personal liberty" in Article 21 takes in the right ot
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 regu
lating or prohibiting the exercise of such right, the refusal of
pass~
port was in violation of Article 21 and moreover the discretion with
the executive
in the matter of issuing or refusing passport being un
channclled and arbitrary, it was plainly violative of Article 14 and
hence
the order refusing passport to the petitioner was also inva1id
under that Article. This decision was accepted by Parliament and the
infirmity pointed out by it was set right by the enactment of the Pass
ports Act, 1967. This Act, as its preamble shows, was en_acted to
provide for the issue of passports and travel documents to reg_t!late the
departure from India of citizens of India and other l'Crsons a1_1d for
incidental and ancillary matters. Section 3 provides that rio pers0'"
shall depart from or attempt to depart from India unless he balds in
(1) [1967] 3 SCR 52.5.
-..
' .
'
'
MANEKA GANDHI V. UNION (Bhagwati, ].) 665'
this behalf a valid passport or travel document. What are the different
c1asses 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 ·visitmg
fllreign country or countries and sub-section (2) says that on receip! Df
such application, the passport authority, after making such inquiry,
if any, as it may consider neces~ry, shall, by order in writing, issue or
rciuse to issue the passport or travel document or make _or refuse to
make on
the passpo-rt or travel document endorsement in respect of one
or more of the foreign countries specified in the application. Sub-section ( 3) requires the passport authority, where it refuses to issue the
passport
or travel document or to make any endorsement on the pass
port 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 ari
endorsement for visiting any foreign coun!ry and provides
that on no
other ground
the endorsement shall be refused. There are fout
grounds set out in· this sub-section ~nd 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-sec·
tion (2) of section 6 specifies the grounds on which alone and on no
other grounds the passport authority shall refuse to issue pa~sport or
travel document for visiting any foreign country and amongst various
wounds set out there, the last is that, in the opinion of the Central
Government the issue of passport
or travel
docul!lent 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)
ot
section 6 or any notification under section 19, Sub-section (2) confer~
powers on the passport authDrity to vary or cancel the conditions cf
thr passport or travel document on application of the holder of the
passport
or travel document and with the previous approval of the
Central
Gd,vemment. Sub-section ( 3) provides that the passpott
authority may impound
or cause to
he impounded or revoke a pass·
port 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 mterest of the Sovereignty and Integrity of Indra,
the security of India, friendly relations of India with any
foreign country,
or in the interests of the general
public;n
A
B
c
D
E
F
G
The
.partiqilar ground relied upon for making the order was that sef
out II~ the last part of clause (c), namely, that the Central Govern~ · ·H
ment' ~eem.s · it ~ec,~ssary to impou~d th~ _ passport "in. the interests of
the general pubhc. Then folfows sub-section (5) which requires the
A
B
c
D
E
F
G
H
666
SUPREME COURT REPORTS [1978] 2 s.c.R.
passport authority impounding or revoking a passport or travel docu
ment or varying or cancelling an endorsement made upon it to "re
cord in writing a brief statement of the reasons for making such order
and furnish to the holder of the p(!ssport or travel document on de
mand a copy of the same unless, in any case, the passport authority is
of
the opinion that it will not be in the interests of the soveriegnty and integrity of India, the security of India, friendly relations of India with
IWY forei~ 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 reasorn; 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
mattez
of regret that the Central Government should have taken up this attitude
m 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 affida
vit in reply to the petition which shows that it was not really contrary
to public interest and if we look
at the reasons given
in. the affidavit
in reply, it will be clear that :QO reasonable person oould possibly have
taken
the view that the interests of the general public would be pre
judiced
by the disclosure of the reasons. This
iS an instance sho,win~:
how power conferred on a statutory authority to act in the in:.. .. Tests of
toe general public can sometimes be improperly exercised. If the
petitioner had
not filed the petition, she would perhaps
11ever 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-sec
tion
(5) so that it
ntay act as a healthy check against abuse orr mis
use of power. If the reasons given are not relevant and there is no
nexus between the 1easons and the grqund on which the passport has
bten impounded, it would b~ open to the holder of the passport to
challenge the order impounding it in a court of law and if the court
is satisfied that the reasons are extraneous. or irrelvant, the court
would strike down the order. This liability
to be exposed
tO judicial
scrutiny would
by itself act as a safeguard against improper or mala
(ide 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
jnterests. O(f the general public to disclose
the reasons.
The passport authority would have to satisfy the court
by placing proper material
that the giving of reasons would
be clearly
and indubitably against the interests of the general public and if the
Court is. not sd satisfied, the Court may require the passport authority
to disclose the reasons, subject to any valid and lawful claim for privi
lege 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
init!_ally claim that it would b~ 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
I
' ,_
)
~.
•·
MANEKA GANDHI v. UNION (Bhagwati
1 J.) 667
which \Ve shall examine when we deal with the arguments of the parties.
Meanwhile, proceeding further with the resume of the relevant provi~
sions, reference may be made to sectio~ U which provides for _ an
'tppeal inter alia against the order impounding or revoking a passport
or travel document under sub-sedion (3) of section 10. But there is
a proviso to this section which says that if the order impounding or
1evoking a passport or travel document is passed by the Central Gov·
ernment, there shall be no right to appeal. These are the !e~vant
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.
Mea11ing and content of personat liberty in article 21
The first contention urged on behalf of the petitioner in support ot
the petition was that the right to go abroad is part of 'personal ~~-~erty'
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 pres
cribed by law. There is no procedure prescribed by the Passport
Act, 1967 for impounding or revoking a passport and thereby preyent·
ing 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
[or 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
Governme
nt in impounding the passport of the petitioner is in viola
tion of Article 21. This contention
of the petitioner raises a question
as to the true interpretation of Article 21, what is the nature and ex·
tent of the protection afforded by this article ? What is the meaning
of 'personal liberty' : does it include the right to go abroad so that
this right cannot be abridged or taken away except in accordance with
the procedure prescribed
by law ? What is the inter-relation between
Art. 14 and Article 21 ? Does Article 21 merely require that there
must
be some semblance of procedure, howsoever arbitrary or fanciful,
prescribed
by law before a person can be deprived
of his personal
liberty
or that
the procedure must satisfy certain requisites in the sense
that it must be fair and reasonable ? Article 21 occurs. in Part Ill of
the ConsHtution which confers certain fundamental rights. These
fundamental rights had their roots deep ~n the struggle for indepen
dence and, as pointed out by Granville Austin in 'The Indian Consti
tution-Cornerstone of a Nation', "they were included in the· Constitu
tion
in the hope and expectation that one day the tree of true lib-erty
would
bloom in India". They were indelibly written in the sub-con
scious 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
fund~mer1 tal rig~ts represent. th~ .basic values cherished by the people
of tlus country smce the V edzc times and they are calculated to protect
the dignily of the. individual and create conditions in which every
human being can develop his personality to the fullest extent. They
wea':e a 'ilpattem _of gua~ant~s on the basic-structure of human if~f'
~nd 1mpoie negative obligations on the State not to encroach on mdi~
A
B
c
D
E
F
G
B
A
B
c
D
E
F
G
H
668 SUPREME COURT REPORTS (1978] 2 S·C·R·
vidual liberty in its various dimensions. It is apparent from the enun
ciation of these rights
that the respect
for the individual and his capa
city for individual volition which finds expression there is not a self
fulfilling prophecy. Its purpose
is to help the individual to find his
own liability,
to give expression to
his creativity and to prevent gov
ernmental and other forces from 'alienating' the individual from his
creative impulses. These rights are wide ran_ging and comprehensive
and they fall under seven heads, namely, right to equality, right to
freedom, right against exploitation, right to freedom of religion, cul
tural
and educational rights, right to property and right to constitutional rer.:.ledies. Articles 14 to 18 occur under the heading 'Right to
Equality', and of them, by far the most important is Article 14 wnich
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 with
in the territory of India". Articles 19 to 22, which find place under
the heading "Right to freedom" provide for different aspects of free
dom. Clause (
1) of Article 19 enshrines what may be described as
the seven lamps of freedom. It provides that all citizens shall have
the
right-( a) to freedom of speech and expression; (b) to assemble
peaceably
and without
arms; (c) to form associations or unions;-(d)
to move freely throughout the territory of India; (e) to reside and settle
in any part of the territory of India; {f) to -acquire, hold and dispose
of property
and (g) to practise any profession or to carry on any
occupation, trade or
business·. But these freedoms arc not and cannot
be absolute, for absolute and unrestricted freedom of one may be
destructive of the freedom of another and in a well·ordered, civilised
society, freedom can only be regulated freedom. Therefore, clauses
(
2) to ( 6) of Art. 19 permit reasonable restrictions to be
imP.OSOO 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 deten
tien. The other fundamental rights are not relevant to the present
discussion
and we need not refer to them.
It is obvious that Article 21, though couched in negative
language,
confers the fundamental right to life and personal liberty. So far as
the right to personal liberty is concerned~ it is ensured by providing
that no one shall be deprived of personal liberty except according to
procedure prescribed by law. The first question that arises for con
sideration
on the language of Article 21 is : what is the meaning and
content of the words 'personal liberty' as
~sed in this article ? This
qu~stion incidently came up for discussion in some of the jud~eJ!lS
in A. K. Gopalan v. State of MadrasC) and the observations madeoy
Patanjali Sastri, J., Mukherjee, J., and S. R. Das, J., seemed to place
a narrow interpretation
on the words 'personal liberty' so as to confine
(1)
{t950J s.c.R.. ss ..
l
::i
MANEKA GANDHI v. UNION (Bhagwati, J.) 669
the protection of Article 21 to freedom of the person against unlawful A
detention. But there was no definite pronouncement made on this
point since· the question before the Cour! was not so much the inter
pretation of the words 'personal liberty' as the inter-relation between
Article
19 and 21. It was in Kharak Singh v.
State of U.P. & Ors.C)
that the question as to the proper scope and meaning of the exp~ession
'personal liberty' came up pointedly for consideration for the first time
before this Court.
The majority of the Judges took the view
"that 8
'personal liberty' is used in the article as a compendious term, to in
clude within itself all the varieties of rights which go to make ~ the
'personal liberties'
of man other than those dealt with in
tl!e several
cJauses 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 C
explained their position
in the following words :
"No doubt the ex
pr~ssion 'personal liberty' is a comprehensive one and the right to move
freely is
an attribute
of personal liberty. It is said that the Jreedom
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 funda
mental rights, though there
is overlapping. There is no question of D
one being carved out of another. The fundamental right of life and
personal liberty
bas many attributes and some of them are found in
Article 19. If a person's fundamental right under Article 21 is in
fringed, 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 E
decision of this Court in R. C. Cooper v. Union of India(2) the minO-
rity view must-be regarded as correct and the majority view must be
held to have been overruled. We shalt have occasion to analyse agd
djscuss the decision in R. C. Cooper's case a little later when we deal
with the arguments base.d 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 funda-F
mental rights conferred by Part III are not distipct arid mutually ex
dusive rights.
Each freedom has different dimensions and merely
because the' limits
of interference with one freedom are satis.fied, the
law is
not freed from the necessity to meet the challenge of another
guaranteed freedom.
The decision in A. K.
Gopalan's (supra) .case
gave rise to the theory that the freedoms under Articles 19, 21, 22
and 31 are exclusive-each article enacting a code relating to the G
pmtcction
of distinct rights, but this theory was over-turned in R.
C.
Cocper's case (supra) where Shah, J., speaking on behalf of the majo-
rity pointed
out that
"Part III of the Constitution weaves a l)attern
of guarantees on the texture of basic human rights. The guarantees
delimit the protection of those rights in their allotted fields : they do
not attempt to enunciate distinct rights.H The conclusion was sum
mari&ed in these terms : "In our judgment, the assumption in A. K. H
(1) [1964J 1 S.C.R. 332.
(2)
[1973} 3 S.C.R.
530.
.A
B
c
D
E
F
G
H
670 SUPREME COURT REPORTS [1978) 2 s.C.R·
Gopakm'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 state
ment of law contained in the opinions of Kania, c. J., Pa4tnjali 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 pro
cedure 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 lias. to
satisfy the test of the applicable freedom under Article 19, clause ( 1).
This would clearly show that Articles 19(1) and 21 are not muntally
exclusive, for, if they were, there would be no question of a law dep
riving 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
withif! Art. 21
would not require to be tested on the touchstone of clause (d) of
Article 19 ( 1) and yet it was held by a Bench of seven Judges of this
Court in Shambhu Nath Sarkar v. The State of West Bengal & Ors.(
1
)
that such a law would have to satisfy the requirement inter alia of
Article 19(1), clause (d) and in flaradhan Saha v. The State of West
Bengal & Ors., (2) which was a decision given by a Bench of five judges,
this
Court considered the challenge of clause (d) of Article
19(1) to
the constitutional validity of the Maintenance of Internal Security Act,
1971 and held that that Act did not violate the constitutional guarantee
embodied in that article. It is indeed difficult to see on what prin-·
cipk 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 spacifically dealt with in Article 19. We do not
think that
this would be a correct way of interpreting the provisions of the Cons
titution conferring fundamental rights. The atlempt of the court should
be to expand the reach and ambi' of the fundamental rights rather than
attenuate their meaning arid content by a process of judicial construc
tion.
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 o.f 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
bdween that article and Article 19 ( 1). The expression 'personal
iibertyt
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
nnd given additional protection under Article 19. Now, it has b_een
(1) [1973]1 SCR 856.
(2) [1975] 1 S.C.R. 718.
t
I
1 .
( .
-
.r '·
MANEKA GANDHI V. UNION (Bhagwati, ].) 67 1
hdd by this Court in Satwant Singh's case that 'personal liberty' with
in the meaning of Article 21 includes within its ambit the right to go
abroad and consequently no person can be deprived of this right ex.
cept according to procedure prescribed by law. Prior to the enact
ment of the Passports Act, 1967, there was no law regulating d1e
right of a person to go abroad and that was the reason why the order
of the Passport Officer refusing to issue passport to the petitioner in
Satwant Singh's case was struck down as. invalid. It 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 'en
acted Jaw' or 'State Law'. Vide A. K. Gopakm's case. Thus, no per
son 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 regu ..
lating the right to go abroad. It is clear from the provisions of the
Passports Act, 1967 that is lays down the circumstances under which a
passport may be issued or refused or cancelled or impounded and also
prescribes a procedure for doing so, but the que-stion 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 parti
r.uJar requirements'! Obviously, procedure cannot be arbitrary, un
fair or unreasonable. This indeed was conceded by the learned Attor
ney General who with his usual candour frankly stated that it _was
not possible for him to contend that any procedure howsoever arbit
rary, oppressive
or unjust may be prescribed by the law. There was
some discussion in A. K. Gopalan's case in regard
to the nature! of
the procedure required to be prescribed under Article 21 and at least
three of the learned Judges out of five 'expressed themselves strongly
in favour
of the view that the procedure cannot be any arbitrary, fantastic or oppressive procedure. Fazal Ali, J., who was in a minority,
went
to the farthest
limit in saying that the procedure must include the
fcmr essentials. set out in Prof. Willi's book on Constitutional Law,
namely, notice, opportunity to be heard, impartial tribunal and ordinary
course
of procedure. Patanjali Sastri, J. did not go as far as that
but he did say that
"certain basic principle's 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. Gopalants case, which have great weight, we find that even
oil principle the concept of reasonab1tmess must be projected in the
procedure contemplated by Article 21 ,, having regard to the impact of
Article 14 on Article 21.
A
B
c
D
E
F
G
672 SUPREME COURT REPORTS [1978] 2 s.c.R.
A The inter-relationship between articles 14, 19 and 21
We
may at this stage consider the inter-relation between Article 21
on the one hand and Articles 14 and 19 on the other. We have al
ready pointed out that the view taken by the majority in A. K.
Gopalan's case
wa' that so long as a law of preventive detention satis
fies
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
B
19. This view proceeded on the assumption that
"certain articles in
the constitution exclusively deal with specific matters" and where the
requirements
of an article dealing with the particular matter in question
are
satisfied and there is no infringement of the fundamental right
guaranteed
by that article, no
recourse· can be had to a fundamental
right conferred
by another article. This doctrine of exclusivity was
seriously questioned in R. C. Cooper's case and it was over-ruled by
C a majority of the Full Court, only Ray, J., as he then was, dissenting.
The majority judges held that though a law of preventive detention
may pass the test of Article 22, it has yet to satisfy the requirements
of other fundamental rights such as Article 19. The ratio of
the majo
:-ity judgment in R. C. Cooper's case was explained in clear and cate
~orical term·s by Shelat, J., speaking on behalf of seven judges of this
D
Court in Shambhu Nath Sarkar v. State of West Bengal('). The learn
ed Judge there said :
E
F
"In Gopa/an's case (supra) the majority court had held
that Article 22 was a self-contained Code and therefore a
law
of preventive detention did not have to satisfy the require
ment of Articles 19, 14 and 21. The view of Fazal Ali, J., on
·
the other hand, was that preventive detention was a direct
breach of the right under Article 19 (1) (d) and that a law
providing for preventive detention
had to be
subject
to such judicial review as is obtained under clause
(5) of that Article. In R. C. Cooper v. Union of lndkl,
(supra) the aforesaid premise of the m_ajority in Gopalwls
case (supra) was disapproved and therefore it no longer
holds
the field. Though
Cooper's case (supra) dealt with
the inter-relationship of Article 19 and Article 31, the basic
approach to construing the fundamental rights guaranteed
in the different provisions of the Constitution adopted in this
case held
the major premise
of' the majority in Gopalan's
case (supra) to be incorrect."
Subsequently, in Haradhan Saha v. State of Wes: Bengal & Ors.(2)
also, a Bench of five Judges of this Court, after referring to the deci-
G sions 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 preven
tive 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
H Act did not violate any of the constitutional guarantees enshrined in
Art. 19. The same view was affirmed once again by a Bench of four
(1) [1973] t S.C.R. 856.
(1) [1975] 1 S.C.R. 778.
j
J
/
' .
'
MANEKA GANDHI V. UNION (Bhagwati, J.) 67 3
judges of this Court in Khudiram Das v. The State of West Bengal
& Ors. (1). Interestingly, even prior to these decisions~ as pointe~ out
by Dr. Rajive Dhawan,
in his book:
"The Supreme Court of Indta :"
at page 235, reference was made by this court in Mohd. Sabir v. State
of Jammu and Kashmir('2) to article 19(2) to justify preventive. deten-
tion. The law, must, therefore, now be taken to
be well settled that
Artic1e
2J docs not exclude Article 19 and tktt 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
con·
ferred 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
A
B
and Haradhan
Saha's case. Now, if a law depriving a person of
•personal liberty' and prescribing a procedure for that purpose within . C
the meaning of Article
21 has to stand the test of one or more of the
fundamental rights conferred under Article 19 which may be applicable
in
a given situation, ex hypothesi it must also
be liable to bt) tested with
reference to Article
14.
· This was in fact not disputed by the learned
Attorney General and indeed he could not do so in view of the clear
and categorical statement made by Mukharjea,
J., in A. K. Gopalan's
case that Article 21
"presupposes that the law is a valid and binding
Jaw under the provisions of the Constitution having regard to the com
petence of the legislature and the subject
it relates to and does not
infringe any of the fundamental rights which the Constitution provides for", including Article 14. This Court also applied Article 14 in two
of its earlier decisions, namely, The State of West Bengal v. Anwar Ali
Sarkar(3) and Kathi Raning Rawat v. The State of Saurashtra(
4
)
where there was a special law providing for trial of certain offences by
a speedier process which took away some of the safeguards available to
an accused under the ordinary procedure in the Criminal Procedure
Code. The special law in each
of these two cases undoubtedly pres
cribed a procedure for trial of
the specified offences and this procedure
could not be condemned
as inherently unfair or
unjust and there was
thus compliance with the requirement of Article 21, but even so the
validity of the special law was tested before the Supreme Court o~ the
touchstone of Article
14 and in one case, namely, Kathi Raning Ra!""at's c~se, the yalidity was upheld and in the other, namely, Anwar
All Sarkar s case, 1t was struck down. It was held in both these cases
that the procedure estabHshed by the special law must not be violative
of the equality clause. That procedure must artswer the requirement
of Artic1e 14.
The nature and requirement of th~ procedure under article 21.
No~, the question_ immediately !rises as to what is the requirement
of. A~ttclc 14 : .what .Is th~ con.tent and reach of the great equalising
prmc1ple enuncmted m this article ? There can be no doubt that it is
a fouudin~f~ _it~ of the Constitution. It is indeed the pil1ar oii which
0) [1975J 2 S.C.R.. 832.
(2) A.I R. 1971 S.C.l713.
(3) [1952] S.C.R. 284·
(4) [1952] S.C.R. 435. ..
D
E
F
G
H
674 SUPREME COURT REPORTS (1978] 2 S·C·R· .
A rests securely the foundation of our democratic republic. And, there
fore,
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 magni
tude. Equality is a dynamic concept with many aspects and
dimen~
sions and it cannot be imprisoned within traditional and doctrinaire
limits. We
must reiterate here what was pointed out by the majority
B in E. P. Royappa v.
State of Tamil Nadu & Another ( t) namely, that
"from a positivistic point of view, equality isr 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 abritrary, it is implicit in it
that it is unequal both according to political logic and constitutional
law
and is therefore violative of Article
14". Articie 14 strikes at arbi-
C trariness in State action and ensures fairness and equality of treatment.
The principle of reasonableness, which legally as well as philosophi~
cally, is an essential element of equality or non-arbitrariness pervades
Article
14 like a brooding omnipresence and the procedure
contem·
plated by Article 21 must answer the best of reasonableness in order to
be in conformity with Article 14. It must be ·"right and just and fair''
and not arbitrary, fanciful or oppressive; otherwise, it would be no
D procedure at all and the requirement of Article 21 would not be satis
fied.
How far natural justice is an essential element of procedure
established by law.
The question immediately arises : does the procedure prescribed
by the Passports Act, 1967 for impounding a passport meet the Lest of
E 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 princi-
F
pie of audi alteram partem. Any procedure which permits impairment
of
the constitutional right to go abroad without giving reasonable oppor
tunity
to show cause cannot but be condemned as unfair and unjust
and hence, there
is in the present case clear infringement of the
require~
ment of Article 21. Now, it is true that there is no express provision
in the Passports Act, 1967 which requires that the audi alteram partem
rule should be followed before impounding a passport, but that is not
G conclusive of the question. If the statute makes itself clear on this
point, then no
more question arises. But
e~en ':Vhe~ the statute is
silent,
the law may in a given case make an Imphcatton and apply the
principle stated by Byles, J., in
O?o_per v. JVa.ndswC?rth Board ~~
Works(2). "A long course of decisiOns, begmmng ~tth Dr. Bentley s
case and ending with some very recent cases,. ~stabhsh that, although
ther~ are no positive words in the statute req~mng that the pa.rt~ shall
H
be heard,
yet the justice of the common law wJll supply the omiSSion of
(1) {1974] 2 S.C.R. 348.
(2) [1863] 14 C.B.N.S. 180.
---J
MANEKA GANDHI V. UNION (Bhagwati, J.)
the legislature". The principle of audi alter am part em, whlch man
dates 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
ihe procedure for impounding a passport? B
We may commence the discussion of this question with a few gene
ral observations to emphasise the increasing importance of natural
justice
in the field of
administrative law. Natural justice is a great
humanising principle intended
to invest law with fairness and to
secure justice and over the years it has grown into a widely pervasive
rule affecting large areas
of administrative action. Lord Morris of C
Borth-y-Gest spoke of this
rule in eloquent terms in his address before
tl:tc 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. D
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
tl1ey to be invoked only when procedural
failures
are shown. Does natural justice qualify to be des-
cribed as a
"majestic" conception ? I believe it does. Is it
just a rhetorical but vague phrase which can be employed, E
when needed, to give a gloss of assurance ? I believe that
it is very much more. If it can be summarised as being fair
play in action-who could wish that it would ever be out of
action ? It denotes that the law is not only to be guided by
reason and by logic but that its purpose \"ill not be fulfilled;
it lacks more exalted inspiration." (Current Legal Pro-
blems, 1973, Vol. 26, p. 16) F
And then again, in his speech in the House of Lords in Wiseman v.
~ - Borneman (1), the learned Law Lord said in words of inspired felicity :
"that the conception of natural justice should at all stages
guide those who discharge judicial functions is
not merely
an acceptable but is an essential part of the philosophy of
the law. We often speak of the rules of natural justice. But
there is nothing rigid or mechanical about them. What they
comprehend
has been analysed and described in many autho
rities. But any analysis must bring into relief rather their
spirit and their inspiration
than any precision of definition or l?recisior: as t? application. We do not sear.ch for prescrip
tions whtch will lay down exactly what must, m various diver
gent situations,
be done. The principles and procedures are
---
(1) [1971) A.C. 297.
G
H
676 SUPREME COURT REPORTS {1978J 2 S C·R·
.
A to be applied which, in any particular sitdation or set of cir
cumstances, 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 abun
dant riches : there we may find what Byles, J., ca11ed
"the
justice of the common law".
B
c
D
E
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 Sdunidt v. Secretary of State for
Home Affairs(l) :-where a public officer has power to deprive a per
son
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 lnterlUltional Law, Vol. 67, page 479. Magarry,
J., describes natural justice "as a distillate of dbe process of law''.
Vide Fontaine v. Chesterton(2). It is the quintessence of the process
of justice inspired and guided by fair play in action'. If we look at
the speeches of the various law Lords in Wise1n11n'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 1he procedure adopted by the Tribunal 'in all the circumstances
unfair'
? The test adopted by every Jaw Lord was whether the proce
dure 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"
F before reaching the conclusion that "there is a prima facie case against
him." The inquiry must, therefore, always be : does fairness in action
demand
that an opportunity to be heard should be given to the person
affected?
Now,
if this be the test of applicability of the doctrine of natural
justice, there
can be no distinction between a quasi-judicial function
G and
an administrative function for this purpose. The aim of both
administrative inquiry
as well as quasi-judicial inquiry is to arrive at a
.iust 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 ?
H Can it be said that the requirement of 'fair play in action' is any thB
--------·----
(1) [1969] 2 Chancery Division 149.
(2) (1968) t 12 Solicitor General 690.
.. ../.
i
r
'
MANEKA GANDHI V. uNION (Bhagwati, J.) 677
less in an adminjstrative inquiry than in :1 quasi-.iudicia! one '? Some
times 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 adminis
trative inquiry which entails civil consequences.
There was, however,
a time in
the early stages of the development of the doctrine of natural
justice when the view prevailed that the rules of natural justice have
application only
to a quasHudicial proceeding as distinguished from an
administrative proceeding and
the distinguishing featur~ 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 fw1ction with a quasi
judicial character was spelt out from the following observation
of
Atkin, L.J. in Rex v. Electricity
Commissioners(!), "wherever any
body of persons havin·g legal authority to determine questions affect
ing the rights of subjects, and having the duty to act judicially, act in
excess of their legal authority, they are subject to the controlling juris
diction
of the King Bench Division ....
". Lord He wart, C .J., in
Rex v. Legislative Committee of the Church Asscmblye) read this
objservation to mean that the duty to act judicially should be an ad
ditional requirement existing independently
of the
"authority to deter
mine quesions affecting the rights of subjec.ts"-something super added
to it. This gloss placed by Lord Hewart, C.J., on the dictum of Lord
Atkin, L.J., bedevilled the law for a considerable time and stultified
the growth
of the doctrine of natural justice.
The Court was constrained
in every case that came before it, to make a search for the. duty to .act
judicially sometimes from tenuous material and sometimes in the servic~s
of the statute and this led to oversubtlety and over-refinement resul
ting
in confusion and uncertainty in the Jaw. Bu.t this was plainly con
trary to
the earlier authorities and in the epoch-making decision of the
House of Lords in Ridge v. Baldwin(
3
), which m:lrks a turning point
in the history of the development of the doctrine of natural justice,.
Lord Reid pointed out how the gloss of Lord He wart, 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 neve.r 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 reconci]e
with the
earlie.r
authorities". The learned law Lord held that the duty
to act jadicially may arise from the very nature of the function inten
ded to be performed and it need not be shown to be superadded. This
decision broadened the area of application of the rules of natural justice
and to borrow the words of Prof. Clar in his article on <Natural Justice,
Substance
and Shadow' in Public Law Journal, 1975, restored light to
an area
"heniphted by the narrow conceptualism of the previous de
cade". This development in the law had its parallel 'in India in the
Associated Cement Compcii1ies Ltd. v. P. N. Shanna & Anr(
4
) where
(1) (1924) 1 K.B. 171.
(2) [1928] 1 K.B. 41 t.
(3) [1964) A. C. 40.
(4) [1965] 2 S.C.R. 366.
5-119 SCI/78
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678 SUPREME COURT REPORTS [1978] 2 s.c.R.
this Court approvingly referred to the decision in Ridge v. Baldwin
(supra) and, later in State of Orissa v. Dr. BinapaniC) observed that :
"If th~re is power to decide and determine to the prejudice of a per
son, duty to act judicially is implicit in the exercise of such power''.
This Court also pointed out in A.K. Kraipak & Ors. v. Union of India &
Ors. (2) another historic decision in this branch of the law, that in recent
years
the concept
of quasi-judicial power has been undergoing radic·al
change and said: "The dividing line between an administrative power
and a quasi-judicial power is quite thin and is being gradually oblite
rated, for detem1ining whether a power is an administrative power or
a quasi-judicial power one has to look to the nature. of the power confer
red, the person or persons on whom it is conferred, the framework of
the law conferring that power, the consequences ensuing from the exer
cise of that power and the manner in which that power is expected to
be exercised". The net effect of these and other decisions was that
the duty to act judicially need not be super-added, but it may be spelt
out from the nature of the power conferred, the manner of exercising
it and its impact on the rights of the person effected and where it is
found to exist, the rules of natural justice would be attracted.
This
was the advance made by the law as. a result of the decision
in Ridge v.
Baldwin (supra) in England and t~ decision in Associ
ated 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 administrativeJ law pro
voked considerable fresh thinking on the subject and soon it came to
be recognised that 'fair play .in action' required that in administrative
proceeding also,
the doctrine of natural
justice must be held to be
applicable. We have already discussed this aspect of the question on
principal and shown why no distinction can be made between
an administrative and a quasi-judicial proceeding for the• purpose of
applicability of the doctrine of natural justic~. This position was judi
cially recognised
and accepted and the dichotomy between administra
tive
and quasi-judicial proceedings
vis-a,..vis doctrine of natural jus
tice was finally discarded as unsound by the decisions in ln re : 1-I.K. (An
Infant) (
3
) and Schrnidt v. Secretary of StQte for flgme A[ftlirs (supra)
in England and, so far as India is concerned, by the memorable deci
sion rendered by this ·Court in A.K. Kratpak's case Ompra). Lord
Parker, C.J. pointed out in the course of his judgment in ln Re : H.K ..
(An Infant) (supra) :
G "But at the same time,. I myself think that even if an
Immigration officer is not in a judicial or quasi-judicial
capacity, he must at any rate give the i:nmigra:nt an opportu
nity of &atisfying him of the matters in the sub·section, and
for that purpose let the immigrant know what his immediate
impression is so that the immigrant can disabuse him. That
(1) [1967]2 S C.R. 625.
(2) [l970] 1 S.C.R. 457.
(3) [1967] 2
Q. B. 617.
I
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MANEKA GANDHI V. UNION (Bhagwati, J.) 679
is not, as I see it, a question of acting or being~ required to
act judicially, but of being required to act fall:l~. Good ad
ministration and an honest
or
boiUlr-{ide decision must, as
it seems to me, required not merely impartiality, nor rner~ly
bringing one's mind to bear on the problem, but actmg
fairly; and to the limited extent that the circumstances of any
partic11!ar case allow, and within the legislative framc\~or~
under which the administrator is working, only to that hml
ted extent do the so-called rules of natural justice apply,
wl1ich 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 fnrther than is permitted on the decided cases because
heretofDre at any ·rate the decisions of the co-urts do seen"! to
have drawn a strict line in these matters according to whether
there is or is not a duty to act judicially or quasi--judicially."
This Court, speaking through Hegde, J., in A. K. Krcdpak's case
quoted with approval the above passage from the judg·nent 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 jus
tice.. These rules can operate only in areas not covered by
any law validly made-. In other words they do not suppbnt
the law of the land but supplement it--Till very recently it
was the opinion of the courts that tmless the authority con-
cerned 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
questiq_ned. If the purpose of the rules of natural jus
tice is to prevent miscarriage oJl justice one fails to ~ee wh.y
those rules should oo made inapplicable tQ adminishative
enquiries.
Often times it is not easy to
draw the line that
demarcates administrative enquiries from quasi-judicial en
quiries. 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-jt:dicial enquiries as
well
as administrative enquiries.
An unjust decision in an administrative eriquiry may lmYe
more far reaching effect than a decision in a quasi-judicial
enquiry. As observed by this Court in Suresh Koshy George
v. The University of Kerala and Ors. (1969)1 S.C.R. 317
the rules of natural justice are not embodied rules. What
particular
rule of natural justice should apply to a given case must depend to a great extent Ofll the facts and circum
stances of that case, the framework of the law under which
the enquiry is held and the constitution of the Tribunal or
body of persons appointed for that purpose. Whenever a
complaint
is made before a court that some principles of
natural justice had been contravened the court has
to
• .lecide
whether the observance of that rule was necessary for a just
decision on the facts of the case."
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680 SUP.RBME COURT REPORTS [1978] 2 S·C·R·
~is view . was reiterated and re-affirmed in a subsequent decision
of
th1s Court
m D.F.O. South Khari v. Ram Sanefd Singh(
1
). The
la\v must. therefore. now be taken tn be well settled that even in an
administrative proceeding, which involves civil ·consequences, the
doctrine of natural justice must
be held to be applicable.
Now, here, the power conferred
on the Passport Authority is to im
pound 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 1
0 ~rtd the Pass
port Authority would have to apply its mind to the facts and circum
stances 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 wding a brief statement of the reasons for making an order impound
ing a passport and, save in c~rtain 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 Im
pounded a passport
is other than the Central Government, a right of
appeal against the order impounding the passport is given by section 11,
and in the appeal, the validity of the reasons given by the Passport Au
thority for impounding the passport
can be canvassed before the Appel
late 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 tt;> impound a pass
port ·is quasi-judicial power. The rules of natural justice would, in the
circumstances,
be applicable in the exercise of the power of impounding
a passport even
on the orthodox view which prevailed prior to A. K.
Kraipak' s case. The same result must follow in view of the decision in
A. K. Kraipak's case, even if the power to impound a passport were
regarded as administrative in character, because
it seriously interferes
with the constitutional right of the holder of the passport to go abroad
and
entails adverse civil consequences. ·
Now, as al(eady pointed out, the doctrine of natural justice consists
principally
of two rules, namely, nemo debt esse judex propria cause :
no one shall be a judge in his own cause, and audi alteram partem : no
decision shall be given against a party without affording him a reason
able 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 con
ceded that the
audi alteram partem rule is a highly effective tool devised
by the courts to enable a statutory authority to arrive at a just decision
and
it is calculated to act as a healthy check on abuse or misuse of power
and hence its reach should not
be narrowed
and its applicability circum
scribed.
He rightly did not plead for reconsideration of the historic ad
vances made in the law as a result of the decisions of this Court and did
(1) [l973J 3
g.c.c. ~64.
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MANEKA GANDHI v. UNION (Bhagwati, J.) 6 81
not suggest that the Court should re-trace its steps. That would indeed
have been a most startling argument coming from the Governmeni. of
India and for the Court
to accede to such an argument would have been
so act of utter retrogression. But fortunately no such argument was
advanced
by the learned Attorney General. What he urged was a very
limited contention, namely that having regard
to the nature of the action
involved in the impounding of a passport, the
audi alteram partem
ru~e
must be held to' be excluded, because if notice were to be given to the hol
der of the passport and reasonable opportunity afforded
to him to show
cause why his passport should
not be impounded, he migh't 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
pattern 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 lo be sun
ported by reference to the statement of the law in A.S. de Smith, Judi
cial Review of Administrative Action, 2nd ed., where the learned authcr
says
at page 17 4 that
"in administrative law a: prima facie right to prior
notice and opportunity
to be heard may be
held to be excluded by im
plication-where an obligation to give notice and opportunity to be heard
would obstruct
the taking of prompt action, especially actio.n of a pre
ventive 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,
hav
ing regard to the nature of the action to be taken, its cb ject and pur
pose and the scheme of the relevant statutory provision, fairness in action
does not demand its implication and even warrants
its exclusion. There
are certain well recognised exceptions to the audi alteram partem
rule
established by judicial decisions and they are summarised by S.A. de
Smith in Judicial Review of Administrative Action, 2nd ed., at page
1 68 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
worrl 'excr·oticn' 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 ~ction", 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
~t 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
vartem ru1e would,
by the experiential test, be excluded, if importing the right to be heard
has the effect
of paralysing the administrative process or the need for
promptitude
or the urgency of the situation so demands. But at the
same time it must be remembered that this ·is a rule of vital importance
in
the field of administrative
law and it must not b~ jettisoned save 1n
very exceptional circumstances where compulsive necessity so demands.
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682 SUPREME COURT REPORTS [1978] 2 S·C·R·
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 ap
proach should be avoided, but that
dpes 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 par
tern should be wholly excluded. The court must make every effort to
salvage this cardinal rule to the maximum extent permiss~ble in a given
case.
It must not be forgotten that
"natural justice is pragrnat:cally
flexible and is. amenable to capsulation under the compulsive pressure
of circumstances". The audi alteram partem rule is not cast in a rigid
mould
and judicial decisions establish that it may suffer situational modi
fications.
The core of it must, however, remain, namely, that the per
son affected must have a reasonable opportunity of being heard and
the hearing must
be a genuine hearing and not an empty public relations
exercise.
That is why .Tucker, L.J., emphasised in Russel v. Duke of
Norfolk(
1
)
that
"whatever standard Qf natural justice is adopted, one
essential is that the person concerned should have a reasonable oppor-,
tunity of presenting his case". What opportunity may be regarded as
reasonable· would necessarily depend on the practical necessities of the
situation.
It may be a sophisticated fullfledged hearing or it may be
a hearing which is very brief and minimal : it may be a hearing prior
to the
decision or it may even be a post-decisiona1 remedial hearing.
The audi alteram partem rule is sufficiently flexible to pennit modifica
tions
and variations to suit the exigencies of myriad kinds
of. situations
which
may
arise. This circumstantial flexibility of the audi alteram pm·
tem rule was emphasised by Lord Reid i1t Wiseman v. Sorneman
(supra) when he said that be would be .. sorry to see this fundamental
general principle degenerate into a series of
hard and fast
rules~' and
Lord Hailsl~am, L.C., also observed in Pearl-Berg v. Party(2) that the
courts "have taken in increasingly sophisticated view of what is re
quired in individual cases". It would not, therefore, be right to con
clude
that the audi alteram partem rule is excluded
mereJy 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 pass
port without giving any prior opportunity to the person concerned to be
heard, but as soon as the order impounding the passport is made, and
opportunity of bearing, 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 ~hould 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 re
quired 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 s.etting forth his case and plead for setting aside
the action impounding his passport. A fair opportunity of being heard
following immediately
upon the order impounding the
passport would
satisfy the mandate of natural justice and a provision requiring giving
of such opportunity to the person concerned can and should be read by
(1) {1949] 1 All Eng. Reports 109.
(2) [1971] 1 We~kly Law Reports, 728.
}
MANEKA GANDHI v. (Bhagwati, J.) -. 683
implication in the Passports Act, 1967. If such a provision were held
to be incorporated in the Passports. Act, 1 967 by necessary implication,
as we hold
it must be, the procedure prescribed by the Act for impound-
-
ing a passport would be right, fair and just and it would not suffer from
the vice of arbitrariness
or unreasonableness. We must, therefore, hold
that the procedure 'established'
by the Passports Act, 1967 for
im
pounding a passport is in conformity with the requirement of Article
21 and does not falffoul of that article.
But the question then immediately arises whether the Central Gov
ernment has complied with this procedure in impounding the passport
of the Petitioner. Now,
it is obvious and indeed this could not be con
troverted, that the Central Government
not only did not give an oppor
tunity of hearing
tt;> the petitioner after making the impugned order im
pounding her passport but even declined to furnish to the petitioner the
reasons for impounding
her passport despite request made by her. We
have already pointed
out that the Central Government was wholly un
justified 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 4enial of opportunity of hearing to the petitioner.
The order impounding the passport of the• petitioner was, therefore,
clearly
in violation of the rule of
nat1,1ral justice embodied in the maxim
audi alteram partem and jt was not in conformity with the procedure
prescribed by the Passports Act, 1967. Rea·lising 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 re
presentation 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 i,s 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.
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This statement removes the voice from the order impounding the pass
port and it can no longer be assailed on the ground that it does not com-
ply
with the audi alteram partem rule or is. not in accord with
the pro-G
cedure prescribed by the Passports Act, 1967.
ls Section
10(3) (c) violative of Article 14 1
. T~a t takes us to the next question whether section 1 0 ( 3) (c) is
viOlative <?f a_ny of the fundamental rights guaranteed under Part III of
the C?nst1tut10n. Only two articl~s of the Constitution are relied upon
fo! th1s p~rpose and they are Articles 14 and 19(1)(a) and (g). We
wdl first dtspose of the challenge based on Article 14 as it lies in a very
narrow compass.
The argument under this head of challenge was that
684 SUPREME COURT REPORTS [1978] 2 S·C·R·
A section 10(~) (c) ~onfers unguided and unfettered power on the Pass
port ~uthonty to Impound a p~ssport and hence it is violative of the
equ~uty clause contained in Article 14. It was conceded that under
section 1 0( 3) (c) the power to impound a passport can be exercised
only upon one or more of the stated grounds, but the complaint was
~hat th~ ground of "interests of the general public" was too vague and
1ndefirnte to afford any real guidance
to the
Passport Authority and the
8 Passpor~ A~thority could, without in any way violating the terms of
the .section, Impound the passport of one and not of another, at its dis
cretiOn. Moreover, it was sa·id that when the order impounding a pass
port
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
C Central Government,
is tlius. unfettered and unrestricted
~nd this is
plainly in violation of Artide 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 princi
ple 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
D 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 i~ the ground which is attacked as vague and indefinite. We
fail to see how this ground can,
by any stretch of argument, be charac-
E terised as vague
or undefined. The words
"in the interests of the gene
ral 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-
F makers of vague and loose thinking. The legislature performed a sci.ssor
and paste operation in lifting these words out of Article 19(5) and in
troducing them in section
1
0 ( 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 1 0( 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
G provision in Artiole
19(5) and adhere loyally to the verbal
fo~ula
adopted ·in the Constitution ? We are clearly of the view that suffictent
guidelines are provided
by the words
"in the interests .of th~ general
public" and the power conferred on the Passport Authonty to 1mpound
a passport cannot be said to be unguided or unfettered. Moreover, it
must be remembered that the exercise of this power is not made de
pendent on .the subjective opinion of the Passport Authority as re.gards
H the necessity of exercising it on one or more of the grounds stated m the
section, but the Passport Authority is· required to record in writing a
brief statement
of reasons for impounding the passport and, save in cer-
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MANBKA GANDHI V. UNION (Bhagwati, J.) 685
tain exceptional circumstances, to supply a copy of such statement to
the person affected, so that the person concerned can challenge the ~e
cision of the Passport Authority in appeal and the appellate authonty
can examine whether the reasons
given by the Passport Authority are
correct, and if so, whether they justify the making
of the order impound~
ing the passport. It is true that when the order impounding a passport
is made by the Central Government, there is no appea1l aganst 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 calUlot 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, there~
fore, be regarded as discriminatory and it does not fall foul of Article
14. Buf every exercise of such power has to be tested in order to de~
termine whether it ·is arbitrary or within the guid~lines provided in Sec~
tion 10(3) (c).
Conflicting approaches for locating the fundamental right violated :
Direct and inevitable effect
test.
We think it would be proper at this stage to
consider the approach
to be adopted by the Court in adjudging the constitutionality of a sta
tute on the touchstone of fundamental rights. What is the test or yard
stick to
be applied for determining whether a statute infringes a
particu~
lar fundamental right ? The law on this point has undergone radical
change since the days of
A. K. Gopalan's case. That
was the earlies~
decision of this Court on the subject, following almost immediately
upon the commencement of the Constitution. The argument which
arose for consideration
in this case
·was that the preventive detc:ntion
order results in the detention of the applicant in a cell and hence it con
travenes the fundamental rights guaranteed under clauses
(a), (b), (c),
(d), (e) and (g) of
Art!cle 19 (1) . This argument was negatived by
Kania, C. J., who pointed out
that:
"The true approach is only to con~
sider the directness of the legiS>lation and not what will be the result of
the detention, otherwise valid,
on the mode of the detenu's life-Any · other construction put on the article-will be unreasonable". These
observations were quoted with approval
by Patanjali Sastri, J; speaking
on behalf of
the majority in Ram Singh and
Ors. v. State of Delhi(l).
There, the detention of the petitioner was ordered with a view,
to preventing him from maki~g any speecbes 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 expres
sion
guaranteed under Article 19 (1) (a). The Court took the view that
the direct object of the order
was preventive detention and not the
in~
fringement of the right of freedom of speech and expression, which was
merely consequential upon the detention of the detenu and uphPld the
validity of the order. The decision in
A. K. Gopalan's case, followed
by
Ram Singh's case, gave rise to the theory that the object and form
of
State action determine the extent of protection which may be claimed
·-----....
(1) rf951] S.C.R. 451.
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686 SUPREME COURT REPORTS [1978] 2 s.c.R.
by ~n i~dividual an~ t~e, v~dity of such action has to be judged by
cons1dex:ng whether It IS 'drrectly in respect of the subject cov~red by
any particular article of the Constitution or touches the said article only
incidentially
or
indirectly". The test to be applied for determining the
constitutional validity of State action with reference to fundamental
rights is : what is
the object of the authority in taking the action : what
is
the subject-matter of the action and to which fundamental right does
it relate ? This theory that
"the extent of protection of important gua
rantees, such as the liberty of person
and right to property, depend upon the form and object of the State action and not upon its direct opera
tion upon
the individual's
freedom" held away for a considerable time
and was applied in Naresh Shridhar Mirajkar & Ors. v. State of Maha
rashtra
& Anr.(
1
)
to sustain an order made by the High Court in a
suit for defamation prohibiting
the publication of the evidence of a
wit
ness. This Court, after referring to the observation of Kania, C.J ., in
A. K. Gopalan's case and noting that they were approved by the 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 evi
dence
in the case with a view to do justice between the parties and if
incidentally it operated to prevent the petitioner from reporting the pro
ceedings
of the court in the press, it could not be said to contravene
Article
19( 1) (a).
But it is interesting to note that despite the observations of Kania,
C.J.,
in A. K. Gopalan's case and the approval of these observations in
Ram Singh's case, there were two decisions given by this Court prior
to Mirajkar's case,
which seemed to deviate and strike a diiTerent note.
The first was the decision in Express News Papers (P) Ltd. & Anr. v ..
The Union of India & Ors.(2) where N. H. Bf:tagwati, 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 ad
judging whether a statute offends a particular fundamental right. The
learned Judge pointed out that all the consequences suggested on behalf
of the petitioner's as flowing out of the Working Journalists (Conditions
of Service) and Miscellaneous Act, 1955, namely, "the tendency to cur
tail circulation
and thereby narrow the scope of dissemination of infor
mation, fetters
on the petitioners' freedom to choose the means of exer
cising
the right, likelihood of the independence of the press being un
dermined
by having to seek government aid, the imposition of
penalty
on the petitioners' right to choose the instruments for exercising the free
dom
or compelling them to seek alternative media
etc::, would be re
mote
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 neces
sarily
be the consequence which could be in the contemplation of
thet
Legislature while enafting a measure of this type for the benefit of the
(1) [1966] 3 S.C.R. 744.
(2) [1959) S.C.R. 12.
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MANEKA GANDHI V. UNION (Bhagwati, J.) 687
workmen concerned." Then again, the learned Judge observed: "-if A
. the intention
or the
pro~mate effect and operation of the Act was such
as
to bring it within the mischief of Article 19(1) (a), it would
cer~
tainly be liable to be struck down. The real difficulty, however, in the
way of the petitioners is that neither the intention nor the effect and
operation of the impugned
Act is to take away or abridge the
right of
freedom of speech and expression enjoyed by the petitioners". Here
we find the gern of the doctrine of
direct
and inevitable effect, which · B
necessarily must be effect intended by the legislature, or in other words,
what may conveniently and appropriately be described as the doctrine
of intended and real effect.
So also in
Sakal Papers (P) Ltd. & Ors .
v. The Union of India(
1
) while considering the constitutional validity
·Of the Newspaper (Price and Page) Act, 1956 and Daily Newspaper
(Price and Page) Order, 1960, this Court applied the test of direct and
immediate effect. This Court, relying upon the decision in Dwarkadas
Shrinivas
v. The Sholapur & Weaving
Co. Ltd.(2) pointed out that "it
is the substance and the practical result of the act of the State that should
be considered rather than its purely legal aspect" and "the correct ap
proach in such cases should be
to enquire as to what in substance is
the loss
or injury caused to the citizen and not merely what manner
and method has been adopted by the State in placing the restriction."
Since "the direct and immediate effect of the order" would be to res
train 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
seNin.g 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 effecr
of the impugned action of the State· rather than on its object and form
or subject-matter.
c
D
E
However, it was only R. C. Cooper's case that the doctrine that the
<>bject and form of the State action alone determine the extent of pro
tection that may be claimed by an individual and that the effect of the
State action
on the fundamental right of the individual is irrelevant, F was finally rejected. It may be pointed out that this doctrine is in sub
stance
and reality nothing else than the test of pith and substance which
is applied for determining the
constitutionality of legislat-ion where there
is conflict of legislative powers conferred on Fede!al and State Legis~
latures with reference to legislative Lists. The question which is asked
in such cases is : what is the pith and substance
of the
le-gislations; if
it "is within the express po\Yers, the-n it is not invalidated if incidentally G
it effects matters which are outside the authorised field". Here also,
<>n the application of this doctrine, the question that is required to be
~onsidered 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 res~
pect of the subject covered by any particular fundamental right, its vali-
-dity must be judged only by reference to that fundamenta·l right and it is
immaterial that it incidentally affects another fundamental right. H
(1) [1962] 3 S.C.R. 842.
{2) fl954] S.C.R. 674.
A
B
D
E
F
G
688 SUPREME COURT REPORTS [1978} 2 S·C·R·
Mathew, J., in his dissenting jl]dgment in Bennett Coleman & Co. &
Ors. v. Union of India & Ors.(l) recognised the likeness of this doc·
trine 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 ever board and it was pointed out
by Shah, J., speaking on be
half of the majority :
"--it is not the obJect of the authority making the law
impairing the right of a citizen, nor the form· of action that
determines the protection he can claim; it is the effect of the
law and of the action
upon the right which attract the juris
diction of the Court
te~ 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 fol
lows
that the extent of protection against impairment of a
fundamental right is detenn.ined
not
by the object of the Legis
lature
nor by the form of the action, but by its direct opera
tion upon the individual's
rights."
"we are of the view that the theory that the object and
form
of the
State action determine the extent of protection
which the aggrieved
party may claim is not consistent with the ..:onstitutional 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 in
fringement of the individual's guaranteed rights, the object
and the form of the State action alone need be considered,
and effect of the laws on fundamental rights of the indivi
duals
in general
will -be ignored cannot be accepted as
· correct."
The decision in R. C. Cooper's case thus overturned the view taken
in A. K. Gopalan's case and, as pointed out by Ray, J., speaking on
behalf of the majority in
1 Bennett Coleman's case, it laid down two
interrelated propositions, namely,
"'First, it is not the object of the authority making the
law impairing the right of the citizen nor the· form of action
that determines the invasion of the right. Secondly, it is
the effect of the law and the action upon the right which
attracts
the jurisdiction of the Court to grant reJief. The
direct operation of the Act
upon the rights fom1s the re:1l 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
H
and
applied the thesis laid down in R. C. Cooper's case. The St~te
action which was impugned in Bennett Coleman's case was newsprmt
(1) [1973] 2 S.C.R. 757.
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MANEKA GANDHI v. UNION (Bhagwat,i, /.)
..
689
policy which inter alia imposed a maximum limit of ten pages for every
newspaper.
but without permitting the newspaper to increase the num
ber of pages by reducing circulation to meet its requirement even with
in the admissible quota. These restrictions were said to be violative
of the rjgbt 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
'''hiclr~s scarce commodity and nol abridgement of freedom of speech
and expression. The subject-matter of the import policy was "ration
ing of imported co~odity and equitable distribution of newsprint"
and the neWSJ]dnt·t)olicy did not directly and immediately deal with
the right-mentioned in Article 19( 1) (a) and hence there was no viola
tion-of that Article. This argument of the Government was negatived
by the majority in the following words :
"Mr. Palkhivala said ~hat the tests of pith and substance
of the subject matter and of direct and of incidental effect of
the legjsJation are relevant to questions of legislative comp~
tence but they are i~relevant to the question of infringement
of fundamental rights. In our view this is a sound and
correct approach to interpretation of legislative measure~ and
State action in !elation to fundamental rights. The true test
is whether
the effect of the impugned action is to take away
or abridge fundamenal 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 subiect matter of the impeached Jaw or
action. The action may have a direct effect on a funda:
mental right although its direct subject matter may be diffe
rent.
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 res
triction
is unreasonable even if it is related to matters men
tioned
therei.p.. 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 irrele
vant when it establishes the
petitione r's contention about
fundamental right. In the present case, the object of the
newspaper restrictions has nothing to do with the avilability
of newsprint or foreign exchange because these restrictions
come into operation after the grant of quota. Therefore the
restrictions are to control the numoer of pages or circulation
of dailies or newspapers. These restrictions are clearly out
srde the ambit of Article 19 (2) of the Constitution. It,
therefore, copfirms 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 conse
quence
or
effe<..t upon the rights of the newspapers and since "the effect
•
A
B
c
D
E
F
G
H
A
B
c
690 SUPREME • COURT REPORTS [1978] 2 S·C·R·
and consequence of the impugned policy upon the newspapers" was
direct control and restriction of growth and circulation of newspaper3,
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
woulc 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
considor is the
direct and inevitable consequence of the State action. Otherwise, the
protection of the fundamental rights would be subtly but surely eroded.
It may be recalled that the test formulated in R. C. Cooper's case
merely refers
to 'direct operation' or 'direct consequence and effect' of
the
State action on the fundamental right of the petitioner and does not
use the word 'inevitable' in this connection. But there can be no
D doubt, on a reading of the relevant observations of Shah, J ., that such
was the test really intended
to be laid down by the Court in that case.
If the test were merely of direct or indirect effect, it would be a
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
E directness or indirectness in order to apply the test. And that is sup
plied
by the criterion of 'inevitable' consequence or effect adumbrated
in the Express Newspaper's case. This criterion helps to quantify the
extent of 'directness
n~cessary to constitute infringement of a fundamen
tal 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
F jurists as the doctrine
of intended and real effect. This is the test
which must
be applied for the purpose of determining whether section
10(3) (c) or the impugned order made under it is violative of Art.
19(1) (a) or (g).
Is Section 10(3) (c) violative of Article 19(1) (a) or (g)?
G We may now examine the challenge based on Article 19(1) (a) in
the light o.f 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 abr.idges
this freedom. Now, prima facie, the right, which is sought to be rcs-
H tricted
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
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MANEKA GANDHI v. UNION (Bhagwati, J.) 691
speech and expression and whenever State action, be it law or executive A
fiat, restricts
or interferes with the right to go abroad, it necessarily
involves curtailment of freedom of speech and expression, and is, there-
fore required
to meet the challenge of Article 19 ( 1 )(a) . This argu
ment was sought to
be answered by the Union of India by a two-fold
contention. The first limb of the contention was that the right
to go
abroad could not possibly be comprehended within freedom of speech
and expressionJ because the right of free speech and expression
B
guaranteed under Article 19 ( 1) (a) was exercisable only within the
territory of India and
the guarantee of its exercise did not extend out-
side the country and hence State action restricting 01 preventing exer-
cise of the right to go abroad could not
be said to be violative of free-
dom 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
C
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 imposi-
tion of restriction
on it did not
invo~ve violation of that Article. These
were broadly the rival contentions urged on behalf of the parties and D
we shall now proceed to consider them.
(A) Is Freedom of speech and expression confined to the Territory of
India?
The first question that arises for consideration on these contentions
is as to what
is the scope and ambit of the right of free speech and
expression conferred under Article 19
(1) (a) . Has it any geographical
limitations
? Is its exercise guaranteed only within the territory of
India or does it also extend outside ? The Union of India contended
that
it was a basic postulate of the Constitution that the fundamental
rights guaranteed by
it were available only within the territory of India,
for it could
never have been the intention of the constltution-makers to
confer rights which the authority of the State could not eilforce. The
mgument \vas stressed in the form of an 1nterrogation; how cou1d 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
thougl:) it may seem at first blush, is, on closer scrutiny, un
sound and must be rejected. When the constitution-makers enacted
Part III dealing with fundamental rights, they inscribed in the Constitu~
tion certai~ basic rights which inher~ in every human being and which
are esse.ntlal for uBfoldment and development of his full persona.lity.
These nghts represent the basic values of a civilised societf and· file
constitution-makers declared that they shall be given a place of pride
in the Constitution and elevated t9 the status of fundamental rightS.
.E.
F
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A
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SUPREME COURT REPORTS [1978] 2 S.C.R.
The long years of the freedom struggle inspired by the dynamic spiri
tualism of Mahatma Gandhi and
in fact the entire cultural and spiritual
history of
India
formed, the: background against which these rights were
enacted and consequently, these rights were conceived
by the constitu
tion-makers
not in a narrow
lunited sense but in their widest sweep, for
the aim and objective was to build ~ new social order where man will
not be a mere plaything in the bands 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
Upnis~adnic verse descriGes
as "the children of immortality" and his mission in life is to realise the
ultimate truth. This obviously he ca1111ot 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
w·hen the constitution-makers
declared these rights, they intended to confine them only within the
territory of India.
Take for example, freedom of speech and
~xpres
sion. Could it have been intended by the canstitutiun-makers. that a
citizen should h~lVe 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 opeself 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
:E 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)(aj.
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
~xpounding is a constitution and what we are· called
F upon to interpret is a provision conferring ~ fundamental right. ShaH
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. Moreove~r, 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
-G Declaration of Human Rights was adopted by the General Assembly
of
the
United Nations on lOth December, 1948 and most of the funda
mental rights which we find included in
Part III were
recognised and
adopted
by the United Nations as the inalienable
rigMs of man in the
Universal Declaration of Human Rights.
Article 19 of the
Universal
Declaration declared that "every one has a right to freedom of opinion
. and expression. this right includes freedom to hold opinions without
',H 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 wa~
MANEKA GANDHI V. UNION (Bhagwati, J.)
693
~ l>efore them when the constitution-makers enacted Article 19 ( 1 ) (a) . 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.
It is true that the right of free speech and expression enshrined in
Article
19(1)(a) can be enforced only if
it' sought to .be violated by B
any action of the State and since State action cannot have any extra
territorial operation, except perhaps incidentally in case of Parliamen-
tary 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 out-
c
side India.
What Article 19 ( 1) (a) does is to dedare 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 D
executive order from sending his despatch abroad. The law or the exec;utive order v.:ould operate on the journaiist in lndi.l 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 higllly 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
E
this is published or restricted, his freedom of speech and expression
would certainly be impaired and Article 19 ( 1) (a) violated. There
fore, merely because State action is restricted to the territory of India,
it does not necessarily
follow that the right of free speech and expres
sion
is also limited in jts operation to the territory of India and does
not extend outside.
This
thesis can also be substantiated by looking at th~ 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 un-der 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:, p.n arbitrary, unreason
able 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 wouJd be entitled to say that such
a
restriction imposed by State action is impermissible under Article
19(2) and
is accordingly void as being violative of Article 19(1 )(a)
. 6-119 scr
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F
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694 SUPREME COURT REPORTS [1978] 2 S.C.R.
It would thus seem clear that freedom of speech and expression
guaranteed under Article 19 (
1) (a) is exercisable not only inside the
country, but also outside.
There is also another consideration which leads to the same conclu
sion.
The right to go abroad is, as held in
Satwant Singh Sawhney's
case, included in personal liberty' within the meaning of Article 21
B and is thus a fundamental right protected by that Article. When the
State issues a p~ssport 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 endorse
ment 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
C with the procedure prescribed by such law. The right to/ go abroad,
and in particular to a specified country, is clearly right to personal
liberty exercisable outside India
and yet it has been held in
Satwant
Singh Sawlmey'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
D exeicisable outside India, why can freedom of speech and expression
conferred
under Article 19(1) (a) be not so exercisable?
This view which we
are taking is completely in accord with the
thinking on the subject in the United
States. There the preponderance
of opinion is that the protection of the Bill of Rights is available to
United States citizens even in foreign countries. Vide Best v. United
E States(l). There is an interesting article on tiThe Constitutional
Right to Travel" in 1956 Columbia Law Review where Leonard B.
Boudin writes :
"The final objection to limitation upon the right to travel
in that they interfere with the individual's freedom of expres
sion. Travel itself is such a freedom
in the view of one
scholarly jurist. But we need not go that far; it is enough
F
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."
G These observations were quoted with approval by flegde, J., (as he
then was) speaking on behalf of a Division Bench of the Karnataka
High Court in Dr. S. S. Sadashiva Rao v. Union of India(2) and the
learned Judge there pointed out that "these observations apply in equal
force
to the conditions prevailing in this country',. It is obvious,
therefore,
that
t_!lere are no geographical limitations to freedom of
H speech and expression guaranteed under Article 19(1) (a) and this
freedom is exercisable
not only in India but also outside and if
State
(1) 184 Federal Reporter (2d) 131.
(2) 1965 Mysore Law Journal, p. 605.
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a
MANEKA GANDHI V. UNION .(Bhagwati, !. ) 695
action sets up barriers to its citizen's freedom of cxprec:sion in any A
country in the world, it would violate Article 19 (1) (a) as much as tf
it inhibited such expression :within the country. This conclasion would
on a parity of reasoning apply equally in relati~n to the fundamental
right to practice any profession or to carry any occupation: trade or
business guaranteed under Article 19 ( 1) (g) .
(B) Is the right to go abroad covered by Article 19(1) (a) or (g) ? B
That takes us to the next question arising out ~f 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 involv
ing 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 C
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 men
tioned
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 with-
out it, freedom of speech and expression would be
limited by geographi-
cal constraints. The impounding of the passport of a person with a D
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 ~he argument, that in a complex and developing society, where fast
modes of transport and communication :h_ave narrowed down distances
and brought people living in different parts of the world together, the E
right to associate with like minded persons in other parts of the globe
for
the purpose of advancing social, political or other ideas and poli-
cies is indispensable and
that is part of freedom of speech and expres
sion
which cannot be effectively implemented without the right to go
abroa<J. The right to go abroad, it was said, is a peripheral right
emanating
from t1e right to freedom of speech and expression and is, therefore·, covered by Article 19(1) (a). This argument of the peti-F
tioner was sought
to be supported by reference to some recent deci
sions
of the Supreme Court of the
United States. We shali examine
these decisions a little later,
but let us first consider the question on
1rinciple.
We may begin the discussion of this question by first considering
the nature and significance of the right to go abroad. It cannot be G
disputed
that there must exist a basically free sphere for man,
resultina
from the.' nature and dignity of the human being as the bearer of the
highest spiritual and moral values. This basic freedom of the human
being is expressed
at various levels and is reflected in various . basic rights. Freedom to go abroad is one of such rights, for the nature of
man is a free agent necessarily involves free movement on his part.
There can be no doubt that if the purpose and the sense of tl1e State is
to protect personality and its development, as indeed it should be of H
any liberal democratic State, freedom to go abroad must be given its
due place amongst the basic rights. This right is an important basic
696 SUPREME COURT REPORTS [1978] 2 S.C.R.
A human right for it nourish~ independent and self ·determining creative
character of the individual, not only by extending his freedoms of
action, but also by extending the scope of his experience. It is a right
which gives intellectual and creative workers in particular the opportu
nity of extending their spiritual and intellectual horizon through study
at foreign universities, through ~ontact with foreign colleagues and
through participation in discussions and conferences. The right also
B 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.
More·
over, this freedom wou1d be highly valuable right where man finds
himself obliged
to flee (a) because he is unable to serve his God as he
wished at the previous place of residence, (b) because his personal
freedom
is threatened for reasons which do not constitute a crime in
C
the usual meaning of the word and many were such cases during the
emergency, or (c) because his life is threatened either for religious or
political reasons or through the threat to the maintenance of minimum
standard of living compatible with human dignity. These reasons
suggest
that freedom to go abroad incorporates the important function
of an ultimum refunium libertatis when other basic freedoms arc
refused. To quote the words of Mr. Justice Douglas in
Kent v.
D Dulles(
1
)
freedom to go abroad has much social value and represents
a basic
human right of great significance. It is in fact incorporated
as an inalienable human right in Article 13 of the Universal
DecJara·
tion of Human Rights. But it is not specifically named as a funda
mental right
in Article 19 ( 1) . Does it mean that on that account it
cannot be a fundamental right covered by Article 19 ( 1) ?
E Now, it may be pointed out at the outset that it is not our view that
a right which is not specifically mentioned by name can never be a
fundamental right within
the meaning of Article
19"( 1) . It is possible
that a right does not find express mention in any clause of Article 19(1)
and yet it may be covered by some clause of that Article. Take for
example, by way of illustration, freedom of press. It is a most
cherished and valued freedom in a democracy : indeed democracy
F cannot survive without a free press. Democtacy 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 proce~ 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.
G Manifestly, free debate and open discussion, in the most
compre·hen~
sive sense, is not possible unless there is a free and independent press.
Indeed the tn~e measure of the-health and vigour of a democracy is
always to be found in its press. Look at its ·newspapecs-do they
reflect diversity of opinions and views, do they contain expression of
dissent and criticism against governmental policies and actions, or do
they obsequiously sing the praises of the government or lionize or
H deify the ruler. The newspapers are the index of the true character
of the Government-whether it is democratic or authoritarian. It was
(1) 357 U.S. 116: 2 L. ed. 2d 1204.
..
~
-...
'
I
~
MANEKA GANDHI V. UNION (Bhagwati, ], ) 697
Mr. Justice Potter Stewart who ·said : "Without an informed and free
press, there cannot
be an enlightened
people". Thus freedom of the
press constitutes one of the pillars of democracy and indeed lies at the
foundation of democratic organisation and
yet it is not enumerated
in
so many terms as a fundamental right in Article 19 ( 1) , though there
is a view held by some constitutional jurists that this freedom
is too
basic and fundamental
not to receive express mention in
Part III of the
Constitution. But it has been held by this Court in several decisions,
of which we may mention only three, namely,
Express Newspapers'
case,
Sakal Newspapers case and Bwnett Co~ernan & Co's case, that
freedom of the press is
part
o~ 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 free
dom of speech and expression and is part of it and hence enjoys the
protection of
Article· 19(1) (a). Vide Ramesh Thappar v. State of
Madras(
1
). Similarly, the right to paint or sing or dance or to write
poetry
or literature is also covered by Article
19 (1) (a), because the
common basic characteristic in
all these activities is freedom of speech
and expression,
or to put it differently, each of these activities is an
exercise of freedom of speech and expression. It would thus be seen
that even if a right is not specifically named in Article 19 ( 1) , it may
still
be a fundamental right covered by some clause of that
Article., if
it is an integral part of a named fundamental right or partakes of the
same basic nature and character as that fundamental right. It is not
enough that a right claimed
by the petitioner flows or emanates from a narn~d 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 fundamen
tal right
nor can it be regarded as such merely because it may not be
possible otherwise to effectively exercise that fundamental right. TI1e
contrary construction would lead to incongruous
re11ults 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
br
the petitioner is an integral part of a named fundamental right or par
takes of the same basic nature and character as the named fundamental
right
so that the exercise of such
right is in reality and substance
nothing
but an instance of the exercise of the named fundamental right.
If this be the correct test, as we apprehend it is. the right to go abroad
cannot
in all circumstances be regarded as included in freedom
of
speech and expression. Mr. Justice Douglas said in Kent v. Dulles
that "freedom of movement across frontiers in either direction. and
inside frontiers
as well, was a part of our heritage. Travel abroad.
like travel within
the country, may be necessary for livelihood. It may
be as close to the heart of the individual as
the choice of what he eats,
(l) [1950J S.C.R. 594.
A
B
c
D
E
F
G
H
A
B
c
D
E
698 SUPREME COURT REPORTS [1978] 2 S·C·R·
or wearst 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 cons
ciousness. Even in the post-Upnishadic period, followed by the
Buddhistic
era and the early cen~uries after Christ, the people of this
country went to foreign lands in pursuit of trade and business or in
search of knowledge or with a view to shedding on others the light of
knowledge imparted to them by their ancient sages and seers. India
expanded outside her borders: her ships crossed the ocean and the fine
superfluity of her wealth brimmed over to the East as well as to the
West. He cultural messengers and envoys spread her arts and epics in
South East Asia and her religious conquered China and Japan and
other Far Eastern countries and spread westward as far as Palestlflc
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 tn the
African countries. Freedom of movement at home and abroad is a
p~lft of our heritage and, as already pointed out, it IS a highly cherished
right essential
to the growth and development of the human personality
and its importance cannot
be over emphasised. But it cannot be said
to
be part of the right of free speech and expression. It is not of the
same basic nature and character as freedom of
speecb and expression.
When
a person goes. abroad, he may do so for a variety of reasons and
it may not necessarily and always be for exercise of freedom of
speech
and expression. Every travel abroad is not an exercise of right of free
speech
and expression and it would 'not be correct to say that whenever
there
is a restriction on the right to go abroad, ex
necessitae it involves
violation of freedom
of speech and expression. It is no doubt true
that going abroad may
be necessary in a given case for exercise of
freedom of speech and expression, but that does not make it an inte
gral
part of the right of free speech and expression. Every activity
that may be necessary for exercise
of freedom of speech and expression
' or that may facilitate such exercise or make it meaningful and effective
cannot
be elevated to the status of
a fundamental right as if it were part
of the fundamental right of free speech and expression. Otherwise,
practically every activity would become
part of some fundamental
right or the other and the object of making certain rights only
as
fundamental rights with different permissih]e restrictions would be
G frustrated.
The petitioner, however, placed very strong reliance on certain
decisions of the United States Supreme Court. The first was the deci
sion in
Kent v. Dulles (supra). The Supreme Court laid down in thjs
case that the right to travel is guaranteed by the Fifth Amendment and
held that the denial of passport by the
Secretary of State was invalid
because the Congress
had not, under the
Passport Act, 1926, authorised
H the Secre-tary of State to refuse passport on the ground of association
with the communist party
and refusal to file
an affidavit relatin~ to that
affiliation and such legislation was necessary before the Secretary of
·--'
MANEKA GANilHI v. UNION (Bhagwati, !.) 699
State could refuse passport on those grounds. This decision was not A
concerned with the validity of any legislation regulating issue of pas,_
ports 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 sec how this decision can be of any. help to the petitioner.
The second decision on which reliance was placed on behalf of the
petitioner was
Apthekar v. Secretary of State(
1
). The question which B
arose for determination in this case related to the constitutional validity
of section 6 of the Subversive Activities Control Act,
1950. This
section t>rohibited the use qf 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 Depart
ment revoked the existing passports of the appellants. After
exhaus_t-
ing all administrative remedies, the appellants sued for declarative and G
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 D · review which it had till then applied only in cases involving the .tJo
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 E
the organisational purpose
to establish a communist totaliatarian dicta
torship and
it
made no attempt to relate the restriction on travel to tne
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 argu
ment 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 F
right to foreign travel was held to be a right arising not out of the first
Amendment but inferentiafiy out of the liberty guaranteed in the Fifth
Amendment and this observation
was meant only to support the exten-
sion
of the strict First Amendment test to a case involving the right to
go abroad.
1he last decision cited by the petitioner
was Zemel V. Rusk(2). G
This case raised the question whether the Secretary of State was statu
t?~ily authorised to refuse to validate the passports of United States
c1t1zens for travel to Cuba and if so, whether the exercise of such autho
rity. was constitutionally permiss~ble. The Court, by a majority of six
agamst three, held that the
ban on travel to Cuba was authorised by ~ the broad language of the Passport Act, 1926 and that such a restric-
tion was constitutional. Chief Justice Warren speaking
on
behalf or H
(1) 378 U.S. 500 : 12 L. ed. 2d 992.
(2) 381 U. S. 1 : 14 L. ed. 2d 179.
-------
700 SUPREME COURT REPORTS (1978] 2 s.C.R·
A the majority observed that having regard to administrative practice
both before and after 1926, area restrictions were statutorily-autho
rised and
that necessitated consideration of Zemel's
c<1nstitut10nal
objections. The majority took the view that freedom of movement
was
a right protected by the 'liberty' clause of the Fifth Amendment
and that the
Secretary of State was justified in attempting to avoid
serious international incidents by restricting travel to Cuba and summa~
B rily rejected Zemel's contention that the passport denial infringed his
First Amendment rights by preventing him from gathering first hand
knowledge about Cuban situation. Kem v. Dulles and Aptheker v.
Secretary of State were distinguished on the ground that "the refusal to
validate appellant's passport does not result from any expression or
association on his part : appellant is not being forced to· choose bet~
ween membership of an organisation and freedom to travel". Justices
Douglas, Goldberg
and Black dissented in separate opinioiJs.
Since
reliance was placed only on the opinion of Justice Douglas, we may
c
D
confine
our attention to that opinion. Justice Douglas followed the
approach employed in Kent v. Dulles and refused
to interpret the Pass··
port Act, 1926 as permitting the Secretary of State to restrict travel to
Cuba. While doing so, the learned Judge stressed the relationship oE
the right to travel to First Amendment rights. He pointed out : ''The
right to know, to converse with others, to consult with them, to observe
social, physical, political and other phenomena abroad as well as
at
home gives meaning and substance to freedom of expression and free
dom of the press. Without these contacts First Amendment
rights
suffer", and added that freedom to travel abroad is a right "peripheral
to the enjoyment of the First Amendment guarantees". He concluded
by observing that "the right to travel is at the periphery of the First
E 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 ap-
pe1Iant was required to give
up membership of the organisation if
he
wanted validation of the passport. Such was not the case in Zemel v.
F
H
Rusk and that is why, said the majority it was not a First Amendment
right which was involved.
1t appeared clearly
lo 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
DoQglas also did not regard the right to travel abroad as a First Amend
ment 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 tow~ds t~e end that r~strictions on the . rig~t to
travel should
be so parttculanscd that a
Ftrst Amendment nght ts not
precluded
or in other words there is no.
d~rect infringement of a. First
Amendment right. If there is, the restnctlons would be conshtuho
nally invalid,
but not otherwise. It is clear that Justice Doug1as never
MANEKA GANDHI V. UNION (Bhagwaci, J.) 701
meant to lay down that a right which is at the periphery of the First A
right under the First Amendment. The learned Jud ge did not hold the
right to tra
vel abroad to be a First Am endment right. Both accordmg
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 t
est
which is applied by this Court in determining infring ement of a funda-
mental right.
.B
We cannot, therc.fore, accept the lheory that a pedpheral or con
comitant rie:ht which facilitates the exerci se of a named fundamenfal
right o.r gives it meaning and substance or makes its exercise effective,
is itself a guaranteed right included within the nam ed fundamental
right. This
much is cJear 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 t
his conclusion. That is the decision in All India
Bank
Employees' Association v. National Industrial Tribunal (I). The legls
lation which was challenged in that case was section 34A of the Bank-
c
ing Companies Act and it was assailed as violative of Article 19 ( 1)
(c). The 'effect of section 34A was that no tribunal could compel tfie
production and inspection of any books of account or other documents
or require a bank to furnish or d isclose any statement or information if D
the Banking Company claimed such document or statement or
informa-
tion to be of a confidential nature relating to secret reserves or
to provi-
sion for b
ad and doubtful debts. lf a dispute was pending and a
qu~s-
tion was raised whether any amount from the re serves or other provi
sions should be t
aken into account by a tribunal, the tribunal could
refer the matter to the R
eserve Bank of India whose certificate as to
the amount
which could be taken
into account, was made final and
conclusiv
e. Now, it was
·conceded that section 34A did not pr event
the workmen from forming unions or pla
ce any impediments in their
doing so, but it was contended that the r ight to form association pro
tected under Article 19(1) (c) carried
with it a guarantee that the asso
ciation sh
all effectively achieve the purp ose for which it was formed
without interference by
law except on grounds relev ant to the preserva
tion of public order or morality
set out in Article 19 ( 4). In other
words, the argument
was that the freedom to form u nions carried with
it the concomitant right that such unions s hould be able to fulfil the
object for
which they were formed. This argument was negatived
by
a unanimous Bench of this Court. The Court said' that unions were
not restricted to workmen, that employers' unions may be formed m
order
to earn profit and that a guarant ee for the effective functioning
of the
unions would lead to the conclusion that
·restrictions on their
right
to earn profit could be
pu~ only in the interests of public order or
morality. Such a constr uction would run basically counter to the
scheme of Artic1e 19 and to the provisions of Artitlc 19 (I) (c) and
(6). The restrictions which could be imposed on the right to form
an
association were limited to restrictions in the inter est of public order
and morality. The r
estrictions, which could be
imposed on the r ight to
carry on any trade, busi
ness, pr.ofession or calling were reasonable res-
(1) [1962] 3
S.C.R. 269.
E
F
G
II
A
B
c
702 SUPREME COURT REPORTS [1978] 2 s.C.R·
trictions in the public interest and if the guarantee for the effective
functioning
of an association was a part of the right, then restrictions
could
not be imposed in the public interest on the business of an asso
ciation. Again,
an association of workmen may claim the right
or
collective bargaining and the right to strike, yet the right to strike could
not by implication be treated as part of the right to form association, for,
if it were so treated, it would not be possible to put restrictions on f.hat
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 con
comitant right that
the unions so formed should be able to achieve the
purpose for which
they are brought into existence, so that any inter-
ference with such achievement
by law would be unconstitutional unless
the same could
be justified under Article 19 ( 4) .
The right to go abroad cannot, therefore, be regarded as included
in freedom of speech and expression guaranteed under Article 19 ( 1 J -
(a) on the theory of peripheral or concomitant right. This theory has
been firmly rejected in the
All India Bank Employees Association's case apd we cannot countenance any attempt to revive it, as that wouJd
D 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 expend
ing concentric circles in the shape of rights concomitant
to concomitant
rights and so on, lead
to an almost grostesque
result". So also, for the
same reasons,
the right to go
abroad cannot be treated as part of the
E
right
to carry on trade, business, profession or calling guaranteed under
Article 19 ( 1) (g) . The right
to go abroad is clearly not a guaranteed
right under any clause of Article
19(1) and section
10(3)(c) which
authorises imposition
of restrictions on the right to go abroad by
impounding of passport cannot be held to be void as offending Article
19 (
1) (a) or (g), as its direct and inevitable impact is on the
rigltt to
go abroad and not on the right of free speech and expression or the
right to carry on trade, business profession or calling.
F
Constitutional requirement of an order under Section H) ( 3) (c).
But that does not mean that an order made under section 10(3) (c)
may not violate Article 19(1)(a) or (g). While discussing the cons
titutional validity
of the impugned order impounding
the passport of
G the petitioner, we shall have occasion to point out that even where a
statutory provision empowering an authority
to take action is constitu
tionally valid,
nction 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
H 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
.~'
MANEKA GANDHI V. UNION (Bhagwati, J.) 703
-example, a pilot with international flying licence. Inte~national 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 expres-
sion and the challenge to the validity of the: order under Articlo ~ 9 ( 1)
fa) would be unanswerable unless it is saved by article 19(2). We
have taken these two examples only by way of illustration. There may
be many such cases1 where the restriction in}posed is apparently only on
the right to go abroad but the direct and inevitable consequence is, t;..l
interfere with the fr~edom 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
impoundoo, it
would be direct interference with his freedom to carry on his profes
sion. 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 snch 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
A
B
c
D
E
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 inte
grity 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
1
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 rela
tions
of India with foreign
States. Therefore, when an order is made
under sectlon 10 ( 3) (c), which is in conformity with the tc>rms of that
provision, it would be in the interests of the general public and even if G
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) resfricts
freedom of speech and expression, it would not be enough that it is
made in the interests
of the general public. It must fa11 within the
terms of Article 19(2) in order to earn the protection of that Article.
If it is made in the interests of the sovereignty and integrity of India or
in the interests of the security of India or in the 'interests of friendly
relations
of India with any foreign country. it
v:ould satisfy the tequire
ment
of Article 19(2). But if it is made for any other interests of the general public save the interests of Hpublic order, decency or morality",
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704 SUPREME COURT REPORTS [1978] 2 S·C·R·
it would not enjoy the protection of Article 19 (2). There can be no
~~ubt that the interests of Pl!~!ic order, decency or morality are
mterests of the general public and they would be covered by section
10(3) (c),,but the expression "!nterests of the general public" is, as
already pomted out, a much
Wider expression and, therefore, in order
that an
ordr=L made under section 1 0( 3) (c) restricting freedom of
speech and expression, may not faH 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
Jimited to interests of public order, decency or morality. If an order
made under section 10 ( 3) (c) restricts freedom of speech and expres
sion,
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 out
side the authority conferred by section 10(3) (c).
ConstitutioHal rc~lidity of the impugned Order :
We may now consider, in the light of this di.)cu::;sion, 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
E 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
or
India has cured the impugned Order of the vice of non-complience
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
F
petitioner was that the impugned Order has the effect of placing an
unreasonable restriction on the right of free speech and expressrou
guaranteed to the petitioner under Article 19 ( 1) (a) as also on the right
to carry on the profession of a journalist ..;onferred under Article: 19 (1)
(g) , in as much as if seeks to impound the passport of the petitioner
indefinitely, without any limit of
.time, on the mere likelihood of her ~cing required in connection with the Commission of Inquiry headed
by Mr. Justice J. C. Shah. It was not competent to the Central
G Government, it was argued, to express an opinion as to whether the
petitioner
is likely to be required in connection with the proceedmg
before the Commission of Inquiry. That would be a matter within the
judgment of
th~ 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 impound
in()' the passport of the petitioner on the basis of a mere opinion by thG
c;ntral Government that the petitioner is likely to be required m con-
H
nection with the proceeding before the Commission ~f I~quiry was,. in
the circumstances, clearly unreasonable and hence v1olatrve of Arttcle
r---
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MANEKA GANDHI V. UNION (Bhagwati, ].) 705
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 strn ightawa y con
-cede it, that merely because a statutory provtsfon empowering an autho
rity take action in specified circumstances
is constitutionally valid
a~
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 funda·
mental rights.
This would seem to be elementary and no authority is
necessary in support of it, but if any were needed, it may be found in
the decision of this Court in Narendra
Kumar &: Ors. v. The Union of
India & Ors.e). 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 restriction:;
of the
funda
mental rights guaranteed under Articles 19( l) (f) and (g) and in
answer to this argument, apart from merits, a contention of a prelimi·
nary nature was advanced on behalf of the Government that "as the
petitioners have not challenged the validity of the Essential tommodi
ties Act and have admitted the power of the Central Government !o
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
raw made by
the Government in making the non-ferrous metal control
order-vio
lates 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
Con
stitution is wholly beside the point". This argument was characterised
by Das Gupta,
J., speaking on behalf of the Court as
"an extravagant
argumenC' and it was said that "such an extravagant argument has
merely to be mentioned to deserve rcjectionH. The learned Judge pro
ceeded to state the reasons for rejecting this argument
in the following
words:
"If there was any reason to think that section 3 of the
Act confers on the Central Government power to do anything
which
is in conflict with the constitution-anything which
violates. any of the fundamental rights conferred by
the Cons
titution, that fact alone would be sufficient and unassai1ab1e
ground for holding that the section itself is void being ultra
vires the Constitution. When, as in this case, no challenge
is made that section 3 of the Act is ultra vires the Constitu-
(1) [1960) 2 S.C.R. 375.
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706 SUPREME COURT REPORTS [1978] 2 S·C·R._.
tion, it is on the assumption that the powers granted there
by do not violate the Constitution and do not empower the
Central Government to do anything which the Constitution
prohibits.
It is fair and proper to presume that in passing
this Act the
Parliament could not possibly have intended the
words used
by it, viz., ''may by order provide for regulating
or prohibiting the production, supply and distribution thereof,
and trade and commerce
in", to include a power to make
such provisions even though they may be jn contravention of
the Constitution. The fact that tl~ words "in accordance with
the provisions of the articles of the Constitution" are not useJ
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 Constitu
tion 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 com
modity
it gives such power to make any regulation or prohibi
tion
in so far as such regulation and prohibition do not
violate any fundamental rights granted by the Constitution of
India."
It would thus be clear that though the impugned Order may be within·
the terms of section 10(3) (c), it must nevertheless not contravene any
fundamental rights and if it does, it would be void. Now, even if an
order impounding a passport is made in the interests of public order,
decency or morality, the restriction imposed by it may be so wide, exces
sive or disproportionate to the mischief or evil sought to be a-~·crted that
E it may be considered unreasonable and in that event, if the direct and
inevitable consequence· of the Order is to abridge or take away fr~dom
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) with-
out being saved by the provision enacted in Article 19(6). r
But we do not think that the impugned Order in the present case
violates either Aiticle 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
G 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
H exercising her freedom of speech and expression or for carrying on her
profession as a journalist and she applies to the Central Government to
release the passport, the question would definitely arise whether the
refusal to release or in other words, continuance of the
impJunding of
• .....
. J
MANEKA GANDHI V. UNION (BhagwatiJ J.) 707
the passport is in the interests of public order, decency or morality in
the first case, and in the interests of the general public in the second,
and the restriction thus imposed is reasonable so as to come within the
protection of Article
19(2) or Article 19(6). That
ist however, not
the question before us at present.
We may observe that if the impugned Order impounding the pass
port 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 sp<.:cified in so many terms, it was clear that it was intended to be
co·terminous with the duration of the Commission of Inquiry, since the
reason for impounding was that the presence
of the petitioner was
likely
to be required in connection with
the. proceedings before the Com
mission of Inquiry and the term of the Commission of Inquiry being
limited upto
31st December, 1977, the impoundig of the passport could
not continue beyond that date and hence it would not be said that the
impugned
Order was to operate for an indefinite period of time. Now,
it is true that the passport of the petitioner was impounded on the
ground that her presence was likely to be required in connection with
the proceeding before the Commission of Inquiry
and the initial time
limit fixed for the Commission of Inquiry to submit its report was 31st
December, 1977, but the
time. limit could always be extended by the
Government
and the experience of several Commissions of Inquiry set
up in this country over the last twenty-five years shows that hardly any
Commission
of Inquiry has been able to complete its report within the
originally appointed time. Whatever might have been the expectation
in regard to the duration of the Commission of Inquiry headed by Mr.
Justice
Shal1 at the time when
the 4npugned Order was made, it is now
clear that it has not been possible for it to complete its labours by 31st
December, 1977 which was the time limit originally fixed and in fact
its term has been extended
upto 31st May, 1978. The period for
which the passport is impounded cannot, in the circumstances, be said
to be definite and certain and it may extend to an indefinite point of
time. This would
clearly make the impugned order unreasonable and
the learned Attorney General appearing on behalf of the Central
Government, therefore, made
a statement that in case the decision to
impound the passport of the petitioner is confirmed by the Central
Government after hearing
the petitioner,
"the duration of the impound
ing will not exceed a period of six months from the date of the decision
that may
be taken on the petitioner's representation". It must be said
in fairness to the Central Government that this
was a very reasonable
stand
to adopt, because in a democratic
society governed by the rule of
law, it is expected of the Government that it should act not only cons
titutional and 1ega1ly but also fairly and justly towards the citizen. We
hope and trust that in future also whenever the passport of any person
is impounded under section
10(3) (c), the impounding would
be for a
specified period of time which is not unreasonably long even though
no contravention
of any fundamental right may be
invol~ed.
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708 SUPREME COURT REPORTS [1978] 2 S·C·R· ,
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 reason
able auticipation whether she is likely to be rcquir.;d hy the Commis
sion of Inquiry. Whether she is actually required would be for the
Commission of Inquiry to decide, but whether she is likely to be requir
ed 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 ot a decision that there is a defini tc matter of public
importance which needs t
obe inquired into and appoints a Commis
sion 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 Jegitimately be left to the judgml:nt of the
Central Government. The validity of the impugned Order cannot,
therefor~, be assailed on this ground, nad the challenge based on Arti
cle 19(1) (a) and (g) must fail.
E Whether the impugned Order is inter vires sec. 10(3) (c) ?
The last question which remains to be considered is whether the
impugned Order is within the authority conferred by section 1 0 ( 3) (c) .
The impugned Order is plainly, on the face of it, purported to be made
in public interest, i.e., in the interests of the gener!!.l public, and there
fore, its validity must be judged on that footing. Now it is .Jlwious
F that on a plain nhat~1ral codnstruc~ion ohf shection 1 0( 3) (c), it is left to
the Passport Aut onty to etenmne w et er it is necessary to impound
a passport in the interests of the general public. But an order made
by the Passport Authority impounding a passport is subject to judicial
review
on the ground that the order is mala fide} or that the reasons
·for
making the order are extraneous or they have no relevance to the
interests of the general public or they cannot possibly support the
-G making of the order in the interests of the general public. It was not
disputed on behalf of the Union, nnd indeed it could not be in view of
section lOt 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 rca
sons claiming that it was not in the interests of the genera_! public to do
H 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
.~~
·\~ ·.--
.,
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••
MANEKA GANDHI v. UNION (Rhagwati, J.) 709
in matters coming within the purview of the Commissions of Inquiry
constituted by the Government of India
to inquire into excesses
com
mitted 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
&hould have an oppor
tunity 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 contend
ed that the expression ''interests of the general public" must be cons
trued 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 '·inte
rests of the general public" must be understood as referable only to a
matter having some nexus with foreign affairs a'nd it would not be given
a wider meaning. So read, the expression "interests of the general public·'"
could not cover a ·situation) where the presence of a person required to
give evidence before a Commission of Inquiry. This argument is plainly
erroneous as
it seeks to cut down the width and amplitude of the
expres
sion "interests of the general public", an expression which has a well
recognised legal connotation and which is to be found in Article 19(5)
as
well as
artiCle 19( 6). It is true, as pointed out by this Court in·
Rohtas Industries Ltd. v. S. D. Agarwal & Anr.(l), 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
nq 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
expres
sion. "interests of the general public" to matters relating to foreign
affarrs.
The petitioner then contended that the requirement that she should
b~ available for _giving ~vidence b~fore the Commissions of Inquiry
drd not warrant the makmg of the Impugned Order "in the interests of
th~ general public". Section 1~(3), ac7ording to the petitioner, con
tam~d clau~es (e) and (~) de~lmg specifically with cases where a per
son ts reqwred m ~onnect1~~ wrth a legal proceeding and the enactment
of these
two
specific proVISIOns. dearly indicated the leoislative intent
that the general po'!V~f in section 10(3) (~) under the gr;und "interests
of the ge?eral public was not meant to be exercised for impounding a
passpor~ m cases where a person is required in connection with a {egal
proceedmg. The Central Government was, therefore not entitled to
resort to this general power under section 10(3) (c) f~r the purpose of
impounding the passport of the petitioner on the ground that she
was
(l) [1969} 3 S.C.R. 108 at 128.
7-119
SCI{78
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710 SUPREME COURT REPORTS [1978] 2 S.C·ll·
A 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
:111. This
.argument is also unsustainable and must
be rejected. It seeks to rely
on the maxim expressio unius exclusio ulterius and proceeds on the
basis that clauses (e) and (h) of section
10(3) are exhaustive of cases
B where a person is required in connection with a proceeding, whether
before a court
or a Commission of Inquiry, and no resort can be had
to the general power under section
10(3) (c) in cases where a person
is required in connection with a proceeding before a Commission of
Inquiry. But it must be noted that this is not a case where the maxim
expressio unius exclusio ulterius has any applicaton at all. Section
10(3) (e) deals with a case where proceedings are pending before a
C criminal court while section 10(3) (h) contemplates a situation where
a warrant
or summons for the appearance or a warrant for the arrest,
of the
holder of a passport has been issued hy a court or an order prohi
biting 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 o£ Inquiry
and the Commission has not yet issued a summons or warrant for the
D attendance of the holder of the passport. We may assume for the pur
pose 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 "1 0 ( 3) (h) and section 1 0 ( 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 pro-
E ceeding before the Commission of Inquiry is in the interests of the gene
ral pub lie. It is, of course, open to the Central Government to apply
to-the Commission of Inquiry for issuing a summons or warrant, as the
case may be, for
the attendance of the holder of the passport before the
Commission and if a summons
or warrant is so
issued, it is possible that
the Central Government may be entitled to impound the passport under
section 10 (3) (h). But that does not mean that before the stage of
F issuing a summons or warrant has arrived, the Central Government
cannot impound the passport of a person, if otberwis~ it can be shown
to be in the. interests of the general public to do so. Section 10 ( 3) (e)
and (h) deal only with two specific kinds of situations, but there may
be a myriad other situations, not possible to anticipate or categorise,
where public interests may require that the passport sl10uld be impound
ed and such situation would be taken care of under the gen·~ral provi-
G sian enacted in section 10(3) (c). It is true that this is a rather dras
tic power
to interfere with a basic human right, but it must be
remem
bered that this power has been conferred by the legislature in public
interest
and we have no doubt that it wi11 be sparingly used and that
too, with great care and circumspection and as far as possible, the pass
port 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
H the sentiment in
Lord Denning's closing remarks in
Ghani v. JonesU)
(l) [1970] 1 Q. B. 693.
r-
!
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MANEKA GANDHI V. UNION (Bhagwati, J.) 711
where the learned Master of the Rolls said : "A man's liberty of move- A
ment is regarded so highly by the law of England that it is not to be
hindered or prevented except on the .severest grounds". This liberty
is prized equally high in our country and we are sure that a Govern
ment committed to basic human values will respect it.
We must also deal wit~ one other contention of the petitioner,
though
we must confess that it was a little difficult for us to appreciate B
it.
The petitioner urged that in order that a passport may be impound-
ed under section
1
0( 3) (c), public interest must actually exist in pre
senti and mere likelihood of public interest arising in future would be
no ground for impoundig a passport. We entirely agree with the peti
tioner that an order impounding a passport can be made by the Pass-
port 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 C
may
be likely to be served in future by the making of the order. But
here
in the present case, it was not merely on
the future likelihood of
the interests of the general public advanced that the impugned order
was made by the Central Government. The impugned Order was
made because, in the opinion of the Central Govermfient, the presence
of the petitioner was necessary for
giving evidence before the Com-
missions of Inquiry and according to the report received
by the Cent-D
ral Government, she
was likely to leave India and that might frustrate
or impede to some extent the inquiries which were being conducted
by the
Commissions of Inquiry.
Then it was contendec'l 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 E
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 con
fidential information received from the intelligence sources that there
was likelihood of the petitioner attempting to le~ye 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 F
as 9th May, 1977 a list of persons whose presence, in view of their
involvement
or connection or position or past antecedents, was likely
to be required in connection with inquiries to be carried out by the
Commissions of Inquiry and the name of the petitioner
was included
in this list. The Home Ministry had also intimated to the Ministry of
External Affairs that since the inquiries were being held by the Com-
missions
of Inquiry in public
interest. consideration of public interest G
would justify recourse to section 10(3) (c) for impounding the pass
ports ~f the ~rsons menti(:med in this list. . 'fhis note of the Ministry
of Home Affatrs was constdered by the Mm1ster for External Affairs
and despite the suggestion made in this note, the passports of only
~Ieven persons, out of those mentioned in the list, were ordered to be
un~~unded anq no action was taken in regard to the passport of the
petitioner. It 1s only on 1st July, 1977 when the Minister for Exter-H
~al Affairs received confidential information that the petitioner was
I1kely to attempt to leave the country that, after applying his mind to
the relevant material and taking into account confidential information,
712 SUPREME COURT REPORTS [1978] 2 s.c.R.
A 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 tpe impugned Order.
The petitioner lastly contended that it was not correct to say that
the petitioner was likely to be required for giving evidence before the
Commissions of Inquiry. The petitioner, it was said, had nothing to
B 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 inv~sti
gate. It is not for the court to decide whether the presence of the
petitioner is likely
to be required for giving
evidenc.! before <he Com
missions
of Inquiry. The Government,
which has instituted the Com-
e missions of Inquiry, would be best in a position to know, having re
gard 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
~s ·mly whether
her presence is likely to be required and so Far that is concerned,
we
do not think that the view taken by the
GQvernment can be re
garded as so unreasonable or perverse that we would strike down the
D impugned Order based upon it as an arbitrary exercise of power.
We do not, therefore, see any reason to interfere with the impugned
Order made by the Central Government. \Ve, however, wish to utter
a word of caution to the Passport Authority while exercising the power
of refusing or impounding or c~ncelling a passport. The Passport
Authority would do well to remember that it is a basic human right
E recognised
in Article 13 of the
Universal Declaration of Human Rights
with which the Passport Authority, is ihterfering when it i efuses 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
F ideologies entertained
by them. It is hoped that such cases will not
recur under a Government constitutionally
committed to uphold free
dom ~nd liberty but it is well to remember. at all times, that eternal
vigilance is
the price of
liberty, for history shows that it is always
subtle
and insidious encroachments made ostensibly for a good cause
that imperceptibly but surety corrode the foundations of liberty.
G In view of the statement made by the learned Attorney-General
to which reference has already been made in the judgment we do not
think it necessary to formally interfere with the impugned order. We, accordingly, dispose of the Writ Petition without passing any formal
order. There
will be no order as to costs.
KRISHNA
lYE!~, J.-My concurrence with the argumentation and
H conclusion contained in the judgment of my learned brother Bhagwati J.
is sufficient to regard this supplementary, in one sense. a mere redund
ancy. But in another sense not, where the vires of a law, which arms
the Central Executive with wide powers of potentially imperilling some
.
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MANEKA GANDHI v. UNION (Krishna [yer, J.) 713
of the life-giving liberties of the people in a pluralift system iike 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
fmits ')f foreign tours,
reviving
in modem terms, what our forbears effectively did to put
Bharat on the
cosmic cultural and commercial map. India is India
because Indians, our ancients, had journeyed through the wide world
for commerce, spiritual and material, regardles's of physical or mental
frontiers.
And when this precious heritage of free trade in ideas and
goods, association and expression, migration and
hom~-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 f(}r breaking judicial lock-jaw to express sharply, the juristic
perspective
and philosophy behind the practical necessities and possible
dangers that society and citizenry may face
if the clauses of our
Consti
tution are not bestirred into court action when a charge of unjustified
handcuff~ 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 colourfuJly, yet
respectfuUy, endorse
his judgment.
A
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Remember, even democracies have experienced executive lawless
ness 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, over-riding the necessary defer
ence
to government and seeing in perspective, and overseeing in effective
operation
the enjoyment of the 'great rights'. This Court lays down B
the law not pro tempore but lastingly.
Before
us. is a legislation regulating
tra,vel 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 i's
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 F
norms becomes easy and precise ?
We are directly concerned, as fully brought out
in Shri
Justice
Bhagwati's judgment, with the indefinite immobili~ation of the peti
tioner'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 s.urprising secrecy being labelled, 'public interest'. Paper G
curtams wear Ill on good governments. And, cutely to side one's
grounds under colour
of statute, is too
sphinx-like an art for an open
society
and popular regime. As we saw the reasons which the learned ~ttorney General_ so !lnhesitatingly disclosed, the question arises :
. where\o~e _are t~ese things hid?'. ~e catch-all expression 'public
mt~rest IS sometunes the easy temptatiOn to cover up from the public
wh1ch they have a right to know, which appeals in the short run but H
aye~tges. in t~e long run ! Since the o~ly passport to this Court's juris
dictw~ m this branch of passport Jaw IS the breach of a basic freedom,
what 1s the nexus between a passport and a Part III right ? What are
714 SUPREME COURT REPORTS [1978] 2 s.c.R.
A the amt>ience 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
~he guarantees under Arts. 21, 19 and 14 ?
Is the impugned section 10, especially s. 10 ( 3) (c), capable of circums
cription
to make it accord with the Constitution ? Is any
part ultra
vires,
and why? Finally, granting the Act to be good, is the Impound
ing order bad ?
Such, in the Writ Petition, is the range of is'sues regaled
B 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
contentiou-s quiet of the court is the storm-centre of the nation. Verily,
while
hard cases tend to make bad law, bad cases tend to blur great
C law and courts must beware.
D
The centre of the stage in a legal debate on
life and liberty must
ordinarily be occupied by Art. 21 of our Paramount Parchment which,.
with emphatic brevity and accent
on
J'egality, states the mandate thus :
"21. Protection of life and personal l.iberty.-
No person shall be deprived of his life or personal liberty
except according to procedure established by law."
Mkro~phrasts used in National Charters spread intu rnacro-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
E
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 limitation's which may, legitimately,
be im
posed
on its exercise. Speaking briefly, the architects of our Founding
Document,
(and their fore-runners) many of whom were front-line
fighters for national freedom, were lofty humanists who were profoundly
spiritual and deeply secular, enriched by vintage values
and revolu-
F tionary urges and, above all, experientially conscious of the deadening
impact
of the colonial screening of Indians going abroad and historically
sensitive to the struggle for liberation being waged from foreign lands.
And their testament is
our asset.
What is the history, enlivened by philosophy, of the law of travel
?
The roots of our past reach down to travels laden with our culture and
G commerce
and its spread-out beyond the oceans and the mountains, so
much so our history unravels exchange between India and the
wiaer
world. This legacy,
epitomi'scd as 'the glory that was Ind', was partly
the product of travels into India and out of India. It was the two~way
traffic of wpich there is, testimpny inside in Nalanda. and outside, even
in Ulan Bator. Our' literature and arts be-ar immortal testimony to our
thirst for travel and even our law, over two thousand years ago, had
H
canalised travels abroad. For instance, in the days of Kautilya (BC
321-296) there was a Superientendent of Passport's 'to issue passes at
the rate of a masha a pass'. Further details on passport law are found
in Kautilya's A 1tha,s·itstra. ·
I
MANEKA GANDHI V. UNION (Krishna Jyer, J.) 7 I 5
Indeed, viewing the subject from the angle of geo·cultural and legal
anthmpology and current history, freedom of movement and its off
shoot-the institution of passport-have boon there through the Helle
nic, !<oman, [§raelite, Chinese, Persian and other dvilisations. Socrates,
in his dialogue with Crito, spoke of personal liberty. He regarded the
right of everyone to save his country as an attribute of personal liberty.
He made the laws speak thus :
"We further proclaim to any Athenian by the liberty which
we allow him, that if he does not like
us when he has become
of age and has seen the ways of the city, and made our
ac
quaintance, he may go where he please and take his goods
with him. None of
our laws will forbid him, or interfere with
him. Anyone who does not like us and the city, and who wants
to emigrate
to a colony or to any other city may go where he
likes, retaining his
property."
(Plato, Dialogues)
The Magna Carta, way back in 1215 A.D. on the greens of Runnymede,
affirmed the freedom
to move beyond the borders of the kingdom
and,
by the time of Blackstone, 'by the common law, every m~n may go
out of the realm for whatever cause he pleaseth, without obtaining the
king's leave'. Lord Diplock in D.P.P. v. Shagwan(
1
)
stated that 'Prior
to .... 1962 .......... ' a British subject had the right at common
law
to enter the United Kingdom without let or hindrance when and
where he pleased and
to remain there as long as
he liked' (International
& Comparative Law Quarterly, Vol. 23, July 1974, p. 646). As late
as Gharti v. Jones(
2
)
l.:ord Denning asserted : 'A man's liberty of
movement
is regarded so highly by the. Law of England that it is not
to be hindered or prevented except on the ·surest grounds' (I & C. L.
Qrly, ibid. p. 646). In 'Freedom under the Law" Lord Denning has
observed under
the sub-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 per
sons. 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 expre·ssed a
like view. Prof. H.W.R. Wade and Prof. Hood Philips echo this liberal
view. (See Int. & Cornp. 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(
3
).
''The freedom of movement is the very essence of our free
society, setting us apart. Like the right of assembly and
the
right of association, it often makes all other rights meaningful
(1) [1972] A.C. 60.
(2)
[1970] 1 Q. B. 693, 709.
3) 378 u.s. 500.
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716 SUPREME COURT REPORTS [1978) 2 S.C.R..
-knowing, studying, arguing, exploring, conversing, observ~
ing and even thinking. -Once the right to travel is curtailed,
aU other rights suffer, just as when curfew or home detention
is placed
on a person.
America is of course sovereign,
but her sovereignty is
woven
in an international web that makes her one of the
family
of nations. The ties with all the continents are
close-
commercially as well as culturally. Our concerns are plane-
tary beyond sunrises
and sunsets. Citizenship implicates us
in those problem's 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, SatwantC) set the same high tone through Shri Justice
Subba Rao although A. K. Gopalan(
2
)
and a stream of judicial thought
since then,
had felt impelled to underscore personal liberty as embrac
ing right
to tiavel abroad. Tambe CJ in A. G.
Kazi(3) speaking for a
Division Bench, made a comprehensive survey of the law and vivified
the concept
thus :
"In our opinion, the language u·sed in the Article (Art.
D 21) also indicates that the expression 'Personal liberty' is not
confined only to freedom from physical restraint, i.e. but in
cludes 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
E 1ikes, of course, in the manner and to
the· e.xtent permitted by
Jaw."
(P. 240)
The legal vicissitudes of the passport story in the United States bear
out the fluctuating fortunes of fine men being denied this great right to
go abroad-Linus Pauling, the Nobel Prize-winner, Charles Chaplin,
F the screen super genius, Paul Robesen, the world singer, Arthur Miller,
the great author and even Williams
L. Clark, former Chief Justice of
the
United States Courts in occupied Germany, among other greats.
Judge Clark commented
on this passport affair and the ambassador's
role :
G
H
"It i's 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
Ambas~
sador."
(P. 275, 20 Clav. St. L.R. 2 May 1971)
Men suspected of communist leanings had poor chance of pa'ssport
at one time; and politicians in power in that country have gone to the
extreme extent
of stigmatising one of the greatest Chief Justices of their
(1) [1967] 3
S.C.R. 525.
(2) [1950] S.C.R. 88.
(3)
A.I.R. 1967 Bom.
235.
I
sA.
MANEKA GANDHI v. UNION (Krishna lyer, J.) 717
country as near communist. Earl Warren has, in his autobiography,
recorded :
"Senator Joseph McCarthy once said on the floor of the
Senate,
'I will not say that Earl Warren is a
Communist, but I
will ·say he is the best friend of Communism in the United
States." '
There has been built up lovely American legal literature on passport
history to which
I
will later refer. British Raj has frowned on foreign
travels by Indian patriotic suspects and instances from the British Indian
Chapter
may abound.
Likewise, the Establishment,
in many countries has used the pass
port and visa system as potent paper curtain to inhibit mu·strious
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 thoughtways of
judges.
Things have changed, global awareness,
in grey hues, has dawned.
The European Convention on Human Rights and bilateral understand
ings have made headway
to widen freedom of travel abroad as inte
gral
to liberty of the person (Fourth Protocol). AnJ the Universal
Declaration of Human Rights bas proclaimed in Art. 13 :
" ( 1) Everyone has the right to freedom of movement and
residence within the borders of each State.
(2) Everyone has the right to leave any country, includ-
ing 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 descite desfrtJctive v1ars
and exploitative trade, racial hatreds and credal quarrels, colonial sub
jections and authoritarian spells, the world has advanced because of
gregarious men adventuring forth, taking with them their thoughts and
fee1ings on a trans-national scale. This human planet is our single
home, though geographically variegated, culturaiiy diverse, politically
pluralist,
in science and technolqgy competitive and cooperative, in
arts and life-styles a lovely mosaic and, above all, suffused with a
cosmic consciousness of unity and inter-dependence.
This· Grand
Canyon has been the slow product of the perennial process of cultural
interaction, intellectual cross-fertilization, ideological and religious con
frontations and meeting and mating of social systems; and
the well
spring
i~ 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 hi'story by the flow
of fe11owmen, and the world owes much to exiles and emigres for libera
tion, 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 honw sapiens wither away. ·To argue for arbitrary inhibition
of travel rights under executive directive or legislative tag i's to invite
A
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718 SUPREME COURT REPORTS [l978J 2 S.C.I..
and accelerate future shock. Thi's broader setting is necessary if we are
to view
the larger import of the right to passport in its fundamental
bearings.
It is not law alone but life's leaven. It is not a casual facility
but the core
of liberty.
Viewed
.f!rom another angle, travel abroad is a cultural enrich
ment
which enables one's understanding of one's own country in better
8
light.
Thus it serves national interest to have its citizenry
·see other
countries and judge one's country on a comparative scale. Rudyard
KipFng, though with an impe·rial ring, has aptly said :
c
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'
"Winds of the World, give answer
They are whimpering
to and fro
And what should they know of England
Who only England know
?"
(The English Flag)
Why is the right to travel all over
the world and into the beyond
a human
right and a con~titutional freedom ? Were it not so, the
human heritage would have been more hapless, the human family
more divided, the human order more unstable and the human future
more murky.
The Indian panorama from the migrant yore to tourist flow is
an
expression
of the will to explore the Infinite, to promote understanding
of the universe, to export human expertise and development of every
resource. Thus humble pride
of patriotic heritage would have been
pre-empted
had the ancient kings and mediaval
rulers banished foreign
travel
as our imperial masters nearly did. And to look at the little
letters of the text of
Part III de hors the Discovery of India and the
Destiny of Bharat or the divinity of the ·soul and the dignity of the
person highlighted in the Preamble unduly obsessed with individual
aberrations of yesteryears
or vague hunches leading to
current fears,
is a parsimonious exercise in constitutional percepticn.
Thus, the inspirational background, co'smic perspective and inherit
ed ethos of the pragmatic. visionaries and jurist-statesmen. whO' draw up
the great Title Deed of our Republic must illumine the sutras of Articles
21, 19 and 14. The fascist horror of 'Norld War II burnt into· our
leaders the urgency
of inscribing indelibly into our Constitution
those
values sans which the dignity of man suffers total eclipse. The Uni-
G versal Declaration of Human Rights, the resurgence of international
fellowship,
the vulnerability of freedoms even in democracies and the
rapid development
of an integrated and intimately interacting 'one
world' poised for peaceful and progressive
intercour'se conditioned their
thought processes.
The bitter feeling of
the British Raj trampling u~der
foot s'!-varaj -the birtb-right of every Indian-affected their celebrations.
The hidden divinity in every human entity creatively impacted upon our
H founding fathers' mentations. The mystic chords of ancient memory
and the modern strands of the earth's indivisibility, the pathology of
provindalism. feudal backwardness, glaring inequality :md bleeding
communalism, the promotion of tourism, of giving and taking know-
---'
MANEKA GANDHI V. UNfON (Krishna /yer, J.) 719
how, of studying abroad, and inviting scholars from afar-these and A
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 B
sole cause. We never had the opportunity to compare notes.
We were Kupa-Mandukas (frogs in a well).''
X X X X
One of the great causes of India's misery and downfall has
been
that she narrowed herself, went into her shell, as the
oyster does,
and refused to give her jewels and her
treasures
to the other races of mankind, refused to give the life giving
truth
to thirsting nations outside the Aryan fold. That has been
the one great cause, that we did not go out, that we did not
compare notes with other nation·s-that has been the one great
cause
of our downfall, and every one of you knows that that
little stir,
the little life you see in India, begins from the day
when Raja Rammohan Roy broke through the walls of this
exclusiveness.
Since that day, history in India has taken an
other turn and now it is growing with accelerated motion. If
\Ve have had little rivulets in the past, ~.kluges a.re 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 reli
gion
? 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 any
thing they. have
to give us; for the marvels of the region of
spirit we \vill 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
lc'nglishman or the American, you will have to teach
as well
as to learn, and you have plenty yet to teach to the world fc•r centuries to come."
From the point of view of comparative law too, the position is well
established.
For, one of the essential attributes of citizenship, says
Prof. Schwartz, is freedom
of movement. The right of free movement
is a vital element
of personal liberty. The right of
free movement in
cludes the right to travel abrmid. So much is simple textbook teaching
in Indian,
as in Anglo-American law. Passport legality, affecting as it
does, freedoms that are 'delicate and vulnerable,
as well as supremely
precious
in our society', cannot but excite judicial vigilance to obviate
fragile dependency
for exercise of fundamental rights upon executive
clemency.
So important is this subject that the watershed between
a police state
and a government by the people may partly turn on the
prevailing passport policy.
Consciou·s, though I am, that such prolix
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720
SUPilEME COUllT llEPORTS [1978] 2 S.C.lt.
A elaboration of environmental aspects is otiose, the Emergency provisions
of our Constitution, the extremes of rigour the nation has experienced >-
(or may) and t_he proneness of Power to stoop to conquer make neces-
sitous
the hammering home of vital values expressed in terse consti-
tutional vocabulary.
Among the great guaranteed rights,
life and liberty
a-re the first
• among equals, carrying a universal connotation cardinal w a decent
human order and protected
by constitutional armour.
Trun;ate liberty
in Art. 21 traumatically and the several other freedoms fad•:: out auto
matically. Justice Douglas,
that most distinguished and perhaps most
travelled judge in the world, has in poetic prose
and with llll.aginative
realism projected the functional essentiality of the right to travel as part
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of liberty. I may quote for emphasis, what is a woe bit repetitive
"The right to travel is a part of 'liberty' of whkh the
citizen cannot be deprived without due process of law under
the fifth Amendment. ....... In Anglo Saxon law that right
was emerging
at least as early as the Magna Carta ....... .
Trave1 abroad, like travel within the country, may
be
neces
sary 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 valm:s."
(Kent v. Dulles : 357 US 116-2 L. Ed. 2d. 1204 1958).
"Freedom of movement also has large social values. As
Chafoe put it : 'Foreign correspondents on lectur~ on public
affairs need fir'st-hand information. Scientists and s(:holars
gain greatly from consultations with colleagues in other coun
tries. Students equip themselves for more fruitful careers
in
the
United States by instruction in foreign universities. Then
there are reasons chose to the core of personal Jife-rn arriage
reuniting families, spending hours with old friends. F1nally
travel abroad enables American citizens to understa:1d that
people like themselves live in Europe and helps them to be
well-informed on public issues. An American who ha'; ~ross
ed the ocean is not obliged to form his opinions about our
foreign policy merely from what he is told by ufficials of our
Go'liernment or by a few correspondents of American news
papers. 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 deci'sions at home
....
Freedom to travel is, indeed, an important aspect of the
citizen's liberty".
(Kent v. Dulles)
''Freedom of movement at home and abroad, is important
for job and business
opportunities-for cultural, political and
social
activities-for alJ the commingling which gregarious
man
enjoys. Those with the right of free movement use it at
time's for mischievous purposes.
But tbat
js true of many
liberties we enjoy. We nevertheless place
our
faith in them and
I
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I
~ .
MANEKA GANDHI V. UNION (Krishna /yer, J.) 7 21
against restraint, knowing that the risk of abusing liberty so
as to give right to punishable conduct is part of the price we
pay for this free society.
(Apthekar v. Secretary of State : 378 US 500-12 L.Ed. 2d 992
(1964).
Judge Wyzanski has said :
'This travel does not differ from any other exercise of the
manifold freedoms
of expression. . . . . . from the right to
speak, to write, to use the
mails, to public, to assemble, to
petition."
A
B
(Wyzanski, Freedom to Travel, Atlantic Montaly. Oct. 1952,
p. 66 at 68). C
The American Courts have, in a sense, blazed the constitutional
trail on that facet of liberty which relates to untrammelled travel. Kent,
Apthekar and Zemel are the landmark cases and American jurispru~
dence today hold's 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. D
BasicaUy, Blackstone is still current coin :
"Personalliberiy consists in the power of locomotion, of
changing direction or moving one's person ~o whatever place
one's own i-nclination may desire."
To sum up, personal liberty makes for the worth of the human
person. Travet makes liberty worthwhile. Life is a terrestrial oppor~ E
tunity for unfolding personality, rising to higher states, moving to fresh
woods
and reaching out to reality which makes our earthly journey a
true fulfilment-not a tale told by an idiot full of sound and fury signi
fying nothing,
but a fine frenzy rolling between heaven and earth. The
spirit of Man is at the root of Art. 21. Absent liberty, other freedoms
are frozen.
While the i~sue is legal and sounds in the constitutional, its appre
ciation
gains in human depth given a planetary perspective and under
standing
of the expanding range of travel between the 'inner space' of
Man and the 'outer space' around :Mother Earth.
,
To conclude this Chapter of
the discu:ssion on the concept of per
sonal liberty~ as a sweeping supplement to the specific treatment by G
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 con
clusion:
"Freedom of movement of the individual within or in
leaving his own country, in travelling 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
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722 SUPllEME COURT llEPORTS [1978) 2 S.C.R.
which his other liberties are suppre:s!:ied or threatened. More
over, in
an inter-dependent world requiring for its future peace
and progress an ever-growing measure of international under
standing,
it is desirable to facilitate individual contacts bet
ween peoples and
to remove
all unjustifiable restraints on
their movement which may hamper such contacts."
So much for personal liberty and its travel facet. Now to 'proce
dure established by law', the manacle clause in Art. 21, first generaMyJ
and next, with reference to A. K. Gopalan (supra) and after. Again,
I observe relative brevity because I go the whole hog with brother
Bhagwati,
J.
If Article 21 includes the freedom of foreign travel, can
irs exercise
be fettered or forbidden by procedure established by law ? Yes, indeed.
So,
what is 'procedure' ? What do we mean by 'established' ? And
What is law? Anything, formal, legislatively processed, albeit absurd
or arbitrary ? Reverence for life and liberty must over power this
reductio an
ab~urdem.' Legal interpretation, in the la~t analysis,
is wlue judgment. The high seriousness of the subject matter-life
and liberty-d~iderates the need for law, not fiat. Law is law when
it is legitimated by the conscience and consent of the community
generally.
Not any capricious compthe but reasonable mode
ordinari:
Jy regarded by the cream of society as dharma or law, approximating
broadly
to other standard measures regulating criminal or Jike procedure
in the country. Often, it is a legislative act, but it must be functional,
not fatuous.
This line of
logic alone will make the two clauses of Art. 21 con
cordant, the procedural machinery not destroying the substantive
fundamentally.
The compulsion of constitutional humanism and the
assumpion
of full faih in life and liberty cannot be so futile or fragmen
tary that any transient legislative majority in tantrums against any
minority~ by three quick readings of. a bill with the requisite quorum;
can prescribe
any unreasonable modality and thereby
sterilise the
grandiloquent mandate. 'Procedure established by law'. with its lethal
potentiality, will reduce life and liberty to a precarious p1aytb1ng jf we
do not ex necessitate import into those weighty words an adjectival rule
of law, civilised in its soul, fair in its heart and fixing those imperatives
of procedural protection absent which the processual tail will wag
the substantive head. Can the sacred essence of the human right to
secure which the struggle for liberation, with 'do or die' patriotism,
was launched be sapped hy formalistic and phariscic prescriptions,
regardless of essential standards ? An enacted apperition is a consti~
tutional illusion. Processual justice is writ patently on Art. 21. It is
too grave
to be circumvented by a black letter ritual processed through
the legislature.
So I am convinced that to frustrate Art. 1 t by r.elying on any
formal adjectival statute, however, filmsy or fantastic its provisions
be, is to rob what the constitution treasures. Procedure which deals
with the modalities of regulating, restricting or even rejecting a funda
mental right falling within Art.
21 has to be fair, not foolish, carefully
'
MAN.EKA GANDHI V. UNION (Krishna lyer} J.) 723
designed to effectuate. not to subvert, the substantive right itself. Thus
understood, 'procedure' must rule out anything arbitrary, freakish or
bizarre. A valuable constitutional right can be canalised only by
civilised processes. You cannot claim that it is a legal procedure 1 if
the passport is granted or refused by taking loss, ordeaJ 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 exercis~. This.
quality of fairness in the process it; emphasised by the strong word
'established which means 'settled firmly' not wantonly whimsically.
If it is rooted in the legal consciousness of the community it becomes
'established' procedure. And
'Law' leaves little doubt that it is normae,
regarded as just since law is the means and justice
is the end.
Is there supportive
judici~1l thought for this reasoning. We go back
to the vintag~ words of the learned Judges in A. K. Gopalan (supra)
and zigzag through
R. C. Cooper to S. N. Sarkar and discern attesta
tion of this
conclusio·n. And the elaborate constitutional' procedure
in Art.
22 itself fortifies the argument that 'life and liberty' in Art. 21
could not have
been left to illusory legislatorial happenstance. Even
as relevant reasonableness informs art.
14 and 19, the component of
fairness
is impl;cit in Art. 21. A close-up of the Gopalan case
;supra)
is necessitous at this stage to underscore the quality of procedure rele
vant 1o personal liberty.
Procedural safeguards are the indispensable essence of liberty. In
fact, the history of personal lib;rty is large the history of procedural
safeguards
a'nd right to a hearing has a human-right ring. In India,
because of poverty and illiteracy, the people are unable
to protect and
defend their rights;
observanc·~ of fundamental rights is not regarded
as good politics and their transgression aiS had politics. I sometimes
pensively reflect that people's militant awareness of rights and duties
is a surer constitutional assurance of governmental respect and res
ponse than the sound and fury of the 'question hour' and the slow and
unsure delivery of court writ 'Community Consciousness and the
Indian Constitution· is a fascinating subject of sociological relevance in
many areas.
To sum up,
'proq:dure' in Art. 21 m~ans fair, not formal proce
dure. 'Law'
is reasonable law, not any enacted piece. As Art. 22 specifically spells out the procedural safeguards for preventive and
punitive d~~tention, a law providing for such detentions sfiould con
form
to Art. 22. It has been rightly pointed out that for other rights
forming part of personal liberty, the procedural safeguards enshrined in Art. 21 are available. Otherwise, as the procedural saf·~guards
contained in Art. 22 will be available only in cases of preventive and
punitive detention, the right to life, more fundamental than any other
forming part of personal liberty and paramount to the happi'ness,
dignity and
worth of the individual,
will not be entitled to any proce
dural safeguard save such as a legislature's mood chooses. In
KochzmniC) the Court, doubting the correctness of the Gopalan deci
sion on this aspect, said :
(1) A. I. R. 1960 S.C. 1080, 1093.
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724 SUPREME COURT REPORTS (1978] 2 S·C·R·
"Had the question been res integra, some of us would have
been inclined to agree with the dissenting view expressed
by Fazal Ali, J."
Gopalan does contain some luscent thought on 'procedure esta
blished
by law'. Patanjali Sastri, J. approximated it to the prevalent
norms
of
crimfual procedure regarded for a long time bv 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 expres
sion
means nothi'ng more than procedure prescribed by any
law made by a competent legislature is hardly
more accept
able. 'Established', according to him, means prescribed, and
if Parliament or the Legislature of a State enacted a proce
dure, however
novel and
ineffi~ctive for affording the accused
person a fair opportunity of defending himself, it would· be
sufficient for depriving a person of hi:s life of personal
liberty."
(pp. 201-203)
uThe main difficulty I feel in accepting the construction
suggested
by the Attorney General is
that it completely stulti
fies article 13(2) and, indeed, the very cmzc.:eption of a
fundamental right ........ could it then have been the inten-
tion of the framers of the Constitution that the most impor
tant fundamental rights to life and personal liberty should
be at
the mercy of legislative majorities as, in effect, they
would
tf 't.'Stablished' were to mean merely prescribed' ? In
other words, as an American Judge said in a similar con
text, does the constitutional prohibition in article 13 (3)
amount to 'no more. than 'your shall not take away life or
personal freedom unless you choose to take it away', which
is
more
verbiag~ ........ 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 judi
cial review, on the ground of reasonableness or oth~rv.rise,
of such laws, as i'n 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 render
ing wholly ineffective and illusory even the procedural pro
tection 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
bet:veen the two extp~me
positions contended for on either stde may be found by
stressing the word 'established' which implies some de_gree
of firmness, permanence and general acceptance, while it
does not exclude origination by statute. 'Proo~dure esta-
~
'
MANEKA GANDHI V. l:NION (Krishna /yer, ].) 725
blished by' may ·well be tah~n to mean what the Privy A
Council referred to in King Emperor v. Bengori Lal Sharma
as "the ordinary and wellestablish,~d criminal procedure', that
is to say, those settled usages and normal modes of pro~ed-
ing sanctioned by the Criminal Procedure Code which i~ the
general law of Criminal pro<x-:dure in the country.
(p. 205) B
Fazal Ali, J. frowned on emasculating the procedural substantia
lity .of Art. 21 and read into it those essentials of natural justice
which made processual law humane : The learned Judge argued:
"If S'.:!cms to me that there is nothtng revolutionary in the
doctrine that the words 'proc~~dure established by law' must
include the four principles set out in Professor Willis' book,
which, as I have already stated, 3:re different aspects of th.:
same principle ·and which have no vagueness or uncertainty
about them. These principles., as the l•:!arned author pointb
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
b~en serious~y controverted that 'law' means certain defi
nite rules of proceeding and not something which is a mere
pretence
for procedure.
(emphasis, added)
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mental right
(Art. 21),
hot 'autocratic supremacy of the legislature'. E
Mahajan J. struck a <:oncordant 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; m other words, it means that before a·
person can be .deprived of his-life or liberty as a condition F
precedent there should exist some substantive law c_gnferring
authority for doing so and the law should further provide
for a mode <lf procedure for such deprivation. This article
gives complete immunity against the exercise of despotic
power by the executive. It further giV~~s immunity against
invalid laws which contravene the Constitution.
It gives also
further guarantee that in its true concept there should be some G
form of proceeding before a person can be condemned either
in respect of his life
or his liberty. It negatives the idea of
a
fantasttc, arbitrary and oppressive form of proceedirtgS.'
1
(emphasis, added)
In sum, Fazal Ali, J. struck the chord which does accord with
a just processual system where liberty is likely to be the victim. May ll
be, the learn~d Judge stretched it a little beyond the line but in essence
his norms
cJaim my concurrence.
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726 SUPREME COURT REPORTS [1978] 2 s.c.R.
A In John v. Rees(
1
)
the
true rule, as implicit in any law, is set down :
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"If there i~ any doubt, the applicability of the princip1es
wiH be given the bendl.t of doubt.''
And Lord Denning, on the theme of liberty, observed in Schmidt v.
Secretary of State{~) : ·
"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 hearin.g.''
Human rights : "'·
It is a mark of interpretative respect for the higher norms our
founding
fathers held dear in affecting the dearest rights of life and
liberty so to read Art. 21 as to result in a human order lined with
human justice. And running right through Arts. 19 and 14 is present
this principle of reasonable procedure in different shades. A certain . nonnative harmony among the articles is thus attained, and 1 hold
Art. 21 bears in its bosom the construction of fair procedure legis
latively sanctioned. No Passport Officer shall be mini-Caesar nor
Minister incarnate Caesar in a system where the rule of law reigns
supreme.
My clear conc1usio'n on Art. 21 is that liberty of locomotion into
alien territory cannot be unjustly forbidden by the Establishm~nt 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 motJves and the inscrutable
face
of an official sphinx do not fill the 'fairness' bill-subject, of course,
to
just exceptions and critical· contexts. This minimum once. aban
doned, the Police State slowly builds up which saps the finer substance
of our constitutional jurisprudence. Not party but principle and
pclicy are the key-stone of our Republic.
....
Let us not forget that Art. 21 clubs life with liberty and wh~n
we interpret the colour and content of 'procedure established by law'
we mHst be alive to the deadly peril of life being deprived. without
minimal processual justice. legislat\ve callous'ncss despising 'hearing'
G and fair opportunities of defence. And this realization once sanc
tioned, its exercise will swell till the basic freedom is flooded out.
Hark back to Art. 10 of the Universal Dec1aratio'n to realize that_
human rights have but a verbal hollow if the protective armour of
audi alteram partem is delt~ted. 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
H material for lip service but the obligatory essence of our hard-won
(1) [1969]2 A \I E. R. 274.
(2) [1969] 2 Ch. 149.
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MANEKA GANDHI v. UNION (Krishna /yer, J.) 727
freedom. A Republic--if you Can Keep It-is the caveat for counsel
.and court. And Tom Paine, in his Dissertation on First Prihciples of
Government, sounded the tossin :
"He that would make his own liberty secure must guard
even hi-s 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 fitt,~r a'nd, above all, political dissen
ter. Th~ last category, detested as unreasonable, defies the Establish
ment's tendency to enforce through conformity but is the .r~source of
A
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.social change. "The reasonable, man' says G. B. Shaw; .. c
"adapts himself to the word; the unreaiSonable one per
sists i'n trying to adapt the world to himself. Therefore, aU
progress depends on · the unreasonable man." (George
Bernard Shaw in 'Maxims for Revolutionists').
"Passport' peevishness is a suppressive possibility, and so the words D
.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. Barnetto 319
us 624 (1943 ).
Under our constitutional order, the price of daring dissent shall
not be passport forfeit. .
The impugned legislation,
ss. 5, 6 and
10 e~pecially, must be tesr~d
.even under Art. 21 on canons of processual justice to the people out·
lined above. Hearing is obligatory-meaningful hearing, flexible and
rea1istic, according to circumstances, but hot ritualistic and wooden.
In exceptional cases and -emergency situations, interim measures may
be taken, to avoid the mischid 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 pro
visional seizure, a reasonable hearing must follow, to minimise proce~
.dural prejudice. And when a prompt final order is made against the
applicant
or passport holder the reasons must
b~ disclosed to him
aJmost invariably save in those dangerous cases where irreparable
injury will ensue to the State. A governme-nt which reveals in secrecy
in the
field of people's liberty not only acts
~gainst democratic decency
but busies itself with its own burial. That is the writing on th·~. wall
if history were teacher, memory our mentor and decline of liberty
not onr unwittjng endeavour. Public power I~mst rarely hid~ its
heart in an {)pen society and system.
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I now skip Art. 14 since I agree fully with all that my learned
brother Bhagwati J. has said. That article has a pervasive processual
potency
and versatile
quality, egalitarian in its soul and allergic to dis
criminatory 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 administra
tive. If this Court gives in here it gives up the. ghost. And so it that I
insist on the dynamics of limitations on fundamental freedoms as im
plying the
rule of law; Be you ever so high, the law is
above you.'
A minor pebble was thrown to produce a little ripple. It was feebly /.....___
suggestt-d that the right to travel abroad cannot be guaranteed by the
StatQ. because it has no extra-territorial jurisdiction in foreign lands.
C ·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 jts citizens from moving within - any -other -
country if that other country has no· objection to their travelling within
D
its territory. It is difficult to understand how one can misunderstand
the . obvious. · /--...f.
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thorny problem debated recurrently at the bar, turning on Art.
19,
demands some juristic response although avoidance of overlap per
suades me to drop all other questions canvassed before us.
The
Gopalan (supra) verdict, with the cocooning of Art. 22 into a self con
tained code, has suffered supersession at the hands of R. C. Cooper(').
By way of aside, tpe fluctuating fortunes of fundamental rights, when
the proletarist and the proprietariat have asserted them in Court, par
tially provoke sociological research a~d hesitantly project the Cardozo
thesis of sub-conscious forces in judicial noesis when the cycloramk
review starts from Gopalan, moves on to ln re: Kerala Education Bill
and then on to Alllndi'a Bank Employees Union, next to Sakal News
papers,
crowning in Cooper
C) and followed by Bennet Coleman(!) and
Sambu Nath Sarkar(3). Be that as. it may, the law is now settled, as l
apprehend it, that no article in Part III _is an island but part of a conti
nent, and the conspectus of . the' whole part gives the directions and
correction needed for interpretation of these basic provisions. Man is
not dissectible into separate limbs and, likewise, cardinal rights in an
organic constitution, which make man human have a synthesis. The
proposition is indubitable that art. 21 does not, in a given situation,
exclude
Art. 19 if both rights are breached.
We may switch to Art. 19 very briefly and trave] along another
street for a while. Is freedom of extra-territorial travel to assure which
is the
primary office of an Indian passport, a facet of the freedom of
speech and expression, of profession or vocation under Article 19·?
(1) [1973] 3
S.C.R. 530.
(2) [197~) 2 S.C.R. 757.
(3) [1973] 1
S.C.R. 856.
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MANEKA GANDHI V. UNION (Krishna [yerJ !.) 7 29
My total consensus with Shri Justice Bhagwati jettisons from this judg-A
ment
the profusion. of precedents and the mosaic of many poirits and
confines me to some fundamentals confusion on which, with all the clarity oJ} 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 · B
who won our Independence and drew up our founding document. We
must also remember that when this Court lays down the law, 1iot ad [we
tunes but essential notes, not temporary tumult but transcendental
truth,
must guide the judicial process in translating into authoritative notation the mood music of the Constitution. ·
While dealing with Art. 19 vis a vis freedom· to travel abmad, we
have to remember one spinal indicator. True, high constitutional
policy has harmonised individual freedoms with holistic community
good by inscribing exceptions to Art. 19 ( 1) in Art. 19 (2) to ( 6).
Even so, what is fundamental is the freedom, not the exception. More
importantly, restraints are permissible only to the extent they have
nexus with the approved object. For instance,.:'in a wide sense, 't':c.
interests of the general public' are served by a family planning pro
gramme but it may be constitutional impertinence to insist that pass
ports may be refused if sterilisation certificates were not produced.
Likewise,
it
is in public interest to widen streets in cities but monstrous
to impound a passport because its holder has declined to demolish his
house which projects into the street line. Sure, the security of State is
a paramount cof!<deration but can Government, totalitarian fashion.
equate Part:/ w~t:1 country and refuse. travel document because, while
abroad,
he
~-_1uY 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 ~o abroad because
his flowing side--bums or sartorial vagaries offend a high-placed autho
rity's sense of decency? The point is. that liberty can be curtailed
onJy if the grounds listed in the saving sub-articles are directly, speci
fically, substantially
and imminently attracted so that the basic right
may
not be stultified. Restraints are
necessary and validly made by
statute, but to paint with an over-broad brush a power to 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
or_der is not perverse, unreasonable, mala fide or supported
by no matenal. Under our system, court writs cannot run aovern
me.nt.
for.
then. judicial review may tend to be a judicial couP. But
'lawless' Jaw ~nd_ executive excess must be halted. ~y judge-eo~er
lest the ConstitutiOn be subverted by branches denvmg cretlenttals
fr~nn the Constitution. An imperative guideline by which the Court
w11l test the soundness of legislative and executive constraitit is in
the language of v. C. Row(!) this: · '
(I) [1952] S.C.R. 597.
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730 SUPREME COURT REPORTS [1978] 2 s.c.a.
.. The reasonableness of a restriction depends upon
the values of life in a society, the circumstances obtam
ing 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.."
What characterises the existence and eclipse of the right of exit?
'Breathes there the man with soul so dead' who, if he: leaves, will
not return to his own 'native land' ? Then, why restrict ? The ques
tion, presented
so simplistically, may still
have. overtones of security
sensitivity
and sovereignty complexity and other internal and
ex
ternal factors, and that is why the case which we are deciding has
spread the canvas wide. I must express a pensive retlection, spark
ed off by submissions at the bar, that, regardless of the. 'civil liberty'
credentials
or otherwise of a particular government and mindless of
the fin.er phraseology of a restrictive legislation, eternal vigilance by
the superior judiciary and the enlightened activists who are the cata
lysts 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, there--
fore, not rest with the minions or masters of government without
being gently and benignly censored by constitutionally sanctioned
legislative nQifiils if the reality of liberty is not be drowned in the
hysteria of the hour or the hubris of power. It is never trite to
repeat that where laws end, tyranny begins', and 1aw becomes un
law even if it is legitimated by three legislative readings and one
assent, if it is not in accord with constitutional provisions. beyond
abridgement by the
two branches
of government. In the conkxt of
scray expressions like 'security' 'public order'~ 'public interesC and
'friendly foreign relations', we must warn ourselves that not verbal
lables
but real values are the governing considerations in the ex
ploration
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 politkal
regimes of the passing day.
The leanied Attorney General argued that the right to travel
abroad was no part o£ Art. 19(1) (a), (b), (c), (f) or (g) and so to
taboo travel even unreasonably does not touch Art. 19. As a
component thereof, as also by way of separate submission, it was
urged
that the direct effect of the passport law (and refusal there·
under) was not a blew on freedom of speech, of association or of
profession and, therefore, it could not be struck
down even if it
overflowed Art. 19(2), (4) and (6). This presentation poses the
issue, 'What is the profile of our free system ?' Is freedom of spe~ch
integrally interwoven with locomotion ? Is freedom of professiOn
done to death if a professional, by passport refusal without refer~nce
to Art. 19 (f), is inhibited from taking up a job offered abroad ? Is
freedom of association such ~ hot-house plant that membership of
an international professional or political organ~sation can be cut off
on executive-legislative ipse dixit without obedtence to Art. 19 ( 4) 7
...
MANEKA GANDHI V. UNION (Krishna /yer, J.) 731
This renophatic touch has not been attested by the Constitution and is
110t discernible m the psyche. An anti-inte;rnational pathology shall
110t afflict our National Charter. A Human Tomorrow on Mother
Earth is our cosmic constitutional perspective (See Art. 51).
A
To my mind, locomotion is, in some situation, necessarily involved
in the exercise of the specified fundamental rights as an associated or
integrated right. Travel, simiplicter, is peripheral to and not neces-B
sarily fundamental in Art. 19. Arguendo, free speech is feasible
without movement beyond
the country, although solilequies and solo . songs are not the vogue in this ancient land of silent saints and p)rrat
ing gurus, bhajans and festivals. Again, travel may ordinarily be
'action' and only incidentally 'expression', to bvrrow the Zemel <lic
tion.
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
courrent, it is common place that the world-the family of nations
vibrates, and men-masses of man-move and 'jet' abroad and abroad,
even
in Concorde, on a scale unknown to history. Even thoughts,
ideologies and habits travel beyond. Tourists crowd out
airlin~ ser
vices; job-seekers rush to passport offices; lecture tours, cultural ex
changes, trans-national evangelical meets, scientific and scholarly
studies
and workshops and seminars escalate, and international
asso
ciations abound-all for the good of world peace and human pro
gress, 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 Execu
tive
and indifferent to Art. 19. Again, the core question arises :
[s movement abroad so much a crucial part of free speech, free
prac
tice of profession and the like that denial of the first is a violation of
the rest?
I admit that merely because spe~king mostly involves some move
ment, therefore, 'free speech anywhere is dead if free movement every
where is denied', does not follow; The Constitutional lines must be
so drawn that the constellation of fundamental rights does not expose
the peace, security and tranquillity
of the community to high risk. We
cannot over-stretch
free speech to make it an inextricable component
of travel. ·
Thomas Emerson has summed the American Law which rings a
bell even in the Indian system :
"The values and functions of the freedom of expression
in a democratic pooty are obvious. Freedom of expression
is essentiaUy as a means of assuring individual self-fulfil
4
ment. 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
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732 SUPREME COURT :REPORTS [1978] 2 S.C.J..
•'Freedom of expression is an essential process for
advancing knowledge and discovering truth. So also for
participation
in decision-making in a democratic' society.
Indeed
free. expression furthers stability in the community
by reasoning together instead of battling against each
other. Such being the value and function of free speech,
what are the dynamics of limitation which will fit these values
and functions without retarding social goals or injuring social
interest
? It is in this background that we have to view the
problem of passports
and the law woven around it. There
are two ways of looking at the question .... as a facet of
liberty
and as an ancient of
expression." Thomas Emerson
comments
on
passpo~s from these dual angles :
Travel abroad should probably
be .classified as 'action'
rather than
"expression". In commonsense terms travel is
more physical movement than communication of ideas.
It
is true that travel abroad is frequently instrumental to expression, as when it is undertaken by a reporter to gather news,
a scholar
to lecture, a student to obtain information or simply an ordinary citizen in order to expand his understanding of
the world. Nevertheless, there are so many other aspects
to travel abroad on functionally
it requires such different
types of regulation that, at last as the general proposition,
it would have to be considered
"action". As aclion, it is
a 'liberty' protected by the due process clause of the Fifth
and Fourteenth Amendments. The first amendment is still
relevant
in two ways : ( 1) There are sufficient elements of expre5sion in travel abroad so that the umbrella eHect of the
first Amendment comes
into play, thereby requiring the c0urts 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 ques
tions."
Travel is more than speech : it is speech bridgdcd with conduct, m
the wcrds of Justice Douglas :
"Restrictions on the right to travel in times of peace
should be
so particularized that at First Amendment right
is
not precluded unless some clear countervailing national
interest stands
in the way of its
assertion."
I do not take this as wholly valid in our Part III scheme but refer
to it as kindred reason1ng.
The delicate, yet difficult, phase cf the controversy arrives where
free speech and free practice
of profession are inextricab1y interwoven with travel abroad. The Passport Act, jn terms, does not in
hibit exp1:ession and only regulates action-to borrow the phJasc~logy
of Chief Justice Warren in Zemel. But we have to view the proximate
-and real conservance of thwarting trans-national trave1 through the
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MANEKA GANDHI V. UNION (Krishna Jyer, ].) 733
power of tbe State exercised under s. 3 of the. Passport Ac~ read
with ss. 5, 6 and· 10. If a right is not in express terms fundamental
within the meaning of Part III, does it escape Art. 13, read with the
trammels o.f Art. 19, even if the immediate impact, the substantial
.effect, the proximate import or the necessary result is prevention of
free speech or practice of one's profession
? The answer is that
as
sociated rights, totally integrated, must enjoy the same immunity. Not
·Otherwise.
Three sets of cases may be thought of. Firstly, where the legislative
provision or executive crder 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 imme
diacy, spell denial of free speech and professional practice or bu.siness.
Thirdly, the fundamental right may itself cnwomb locomotion regard
less of national frontiers. The second and third often are blurred in
their edges-and may overlap. •
.
The first class may be illustrated. If the passport authority speci
fically conditions the permission with a direct! on not to ad,.lress meet
ings abroad or not to b~ a journalist or professor in a foreign country,
the order viotate Art. 19( 1) (a) or (f) and stands vc!ded unless Art.
19 (2) and (6) are complied with. The second category may be
exemplified and examined after the third which is of less frequent
occurrence.
If a person is an international pilot astronaut, Judge of . the International Court of Justice, Secretary of the Wor]d Peace
· Council, President of a body of like nature, the particular profession
not only
cal1s 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
Art. 19(2), (4) or (6).
So far is plain sailing, as I see it. But the navigation into the
penumbral zone of the second category
is not easy.
Supposing a lawyer or doctor, expert or exporter, missionary or
guru, has to. visit. a foreign country professionoaHy or on a speaking
assignment.
He is effectively disabled from discharging his pursuit if
passport
i~; r~fused. There the direct effect, the necessary conse
quence, the immediate impact of the embargo an· 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
p-art of Art. 19 (2) to (6) is complied with. In
deal:ng with fundamental freedom substanjial 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
()ffer a g~eat threat. These concepts should not be devalued to suit
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734 SUPREME COURT REPORTS (1978) 2 S.C.lt
the hyper-sensitivity of the executive or minimal threats to the State.
Our:nat~on is not so pusillanimous or precarious as to. fall or founder if
some nuscreants P.elt stones at its fair face. from foreign countries. The
?ogs may .bad~, but the caravan ~ill pass. A~d the danger to a party
m
power
IS n?t the same as rocking the secunty or sovereignty of the
State. ~O!l~ttm1es, a petu!ant ~<;>~emment \\~hich forces silence m~y Jet
unccnstttuttonally to forbtd cntlcism from far, even if . necessary foc
the good of the State. The perspective of free criticism with its limits
for free people ey~rywhere, all ~rue patrio~s w~ll concur, is eloquently
spelt
out by
Sn Wmston Churchrll on the htstonc censure motion in the
Commons
as
Brituin 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 Parliamentoary institutions in time of war! Everything
that could be thought of or raked up has been used to weaken
conhdence
in
th,e Government, has been used to prove tlmt
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 confi
dence in the weapons they are striving so hard to make, to
present the Government as a set of non-entitles 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
th1s poured out by. cable and radio tc
all parts of the world,
to the distress of all our friends and to the de1ight of all
our foes ! I am in favour of this freedom. which no other
country would use, or dare t'O use, in times of mortal peril
such as those through which we are passing."
I wholly agree that spies, traitors, smugglers, saboteurs o[ the hea1th~
wealth and survival or sovereignty of the nation shall not be passported
into hostile soil to work their vicious plan fruitfully. But when apply
ing
the Passports Act,
over-bre·adth, hyper-anxiety, regimentation
complex,
and
political mistrust shall not sub-c·onsciously exaggerate~
into morbid or neurotic refusal or unlimited impounding or final re··
vocation of passport, facts which, objectively assessed ~ may prove
tremendous trifles. That is why the provis:ions have to be read down
into constitutionality, tailored to fit the reasonableness test and
humanised by natural justice. The Acd will survive but the order
shall perish for reasons so fully set out by Shri Justice Bhagwati. And,
on this construction, the conscience of the Constitution triumphs over
vagarious governmental orders. And, indeed, the learned Attorney
General
(and the Additional
Solicitor General who appeared with
him), with characteristic and commendable grace and perceptive and
progressive realism, agreed to the happy resolution of the present dispute
in the manner set out in my learned brother's judgment. ·
A condudinf! 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. dots;',
that we have gained a republic 'if we can keep it' and that the water-
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MANBKA GANDHI v. UNION (Kailasam, J.) 735
shed between a police state and a people's raj is located partly tfrrough
its passport policy. Today~ a poor man in this. poor country despaue
.of getting a passport because of invariable police enquiry, insistance
on property requirement and other avoidable procedural obstacles. And
if a system of secret informers, police dossiers, facelcs~ whisperef3 an_d
political tale-bearer:::; conceptualised , and institutionalised 'in pubhc
i,rtterest,' comes to stay, civil liberty is legisidally constituti~nalised
a consumption constantly to be resisted. The merits of a particu~ar
caso apart, the policing of a people's right Of exit or entry is fraught w1th
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
\'ell 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 a1sn a hatred of any claim to superiority, _which make~ 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 o.f the heard agaim.t everything in
any way exceptional. This is a recurrent phenomenon in
human history. Wherever it occurs, its results are horrible.n
(Foreword by Bertrand Russel to Freedom is oas Freedom
Does-Civil Liberties Today-by Corliss Lament.
New York, 19~6)
While interpreting and implementing the words of Art. 14, 19 and 21,
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we may keep J. B. Preistley's caution: E
"We do not imagine that we are the victims of plots,
that bad men are doing all this. It is the machinery of
power that is getting out of sane control. Lost in its elabora
tion, even some men
of goodwill
beg:in to forget the essen
tial humanity this machinery should
be serving. They are now
so
bus·y testing, analysing, and reporting on bath w-ater that F
they cannot remember haVing thrown the baby out of the
window."
(Introduct:ion by H. H. Wilson, Associate Professor of
Political SCience, Princeton Universitv to Freedom i~
as Freedom Does by Corliss Lament, ibid p. xxi.)
I
have divagated a great
deal into travel constitutionality in tho setting G
of the story of the human journey, even though such a diffusion is
l?artly beyond ~~e st~ict needs. of ~his _case. . But judicial travelling,
l1ke other travedmg. IS ahnost hke talkmg wtth men of other rentnries
and countries.'
1 -agree with Sri Justice Bhagwati, notwithstanding this supplemen
tary.
KAI~ASAM, J.-Thls petition is filed by Mrs. Maneka Gandhi un
der Artlcle 32 of the Constitution of India against the Union of India .
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736 SUPREME COURT REPORTS [1978] 2 S·C·R·
•
and the Regional Passpo!t Offi.cer for a writ of certiorari for caning for
the !ecords of the case _mcJudmg in particular the order dated Tuly 2,
197, made by the Umon of Jndia under section 10(3)(c) of the
~assports Act, Act 15 of 1967, impounding the passport of the peti-
uoner and fOir 9uashing the said order. ·
~,Th.e peti?oner receive.d a letter date~ July 2,_ 1977 on July 4,
19 i 7 mformmg her that It had been decided by the Government of
India to impound her passport. The Jetter read as follows :
"You may recall that a passport no. K-869668 was issu
ed to you by this office on 1-6-7 6. It has been decided by
the Government of India to impound your above passport
under section 10(3) (c) of the Passport Act, 1967 in
public interest.
You are hereby required to surrender your passport
K-869668 to this office within seven days from the date of
the receipt of this
letter."
On July 5, 1977 the petitioner addressed a letter to the second res
pondent,
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 1 0( 3 )(c) of
the Passport Act, 19(i7. It has further been decided by
the Government in the interest of general public not to fur
nish you a copy of statement of reasons for making such
orders as provided for under section 10(5) of the Passports
Act, 1967."
The petitioner submitted that the order is without jurisd1ctlon and
not 'in the interests of general public.' The validity of the order
was challenged on various grounds. It was submitted that rhere was
contravcntio~ of Art. 14 pf the Constitution, that principles of natu
ral justice were violated; that no opportunity of hearing as !mplied
in section 10 (3) of the Act was given and that the with-holding of
the reasons for the order under section 10(5) i~ not justified in law.
On July 8, 1977 the petitioner prayed for an exparte ad interim order
staying the operation of the order of the respondents dated July 2,
1977 'al1d for making the order of stay absolute after bearing the res
pondents. On behalf of the Union of India, Shri N. K. Ghosc., 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. t1le Minis
ter of External Affairs approved the impounding of the passport of
I1 persons and on May 19, 19 77 an order was passed by the Minister
imp-ounding the passports of 8 persons out of 11 perscns that on
Julv 1, 1977 the authorities concerned informed the Ministry of h'x
ten1al Affairs that the petitioner and her husband had anived at
Bombay on the after-noon of July 1, 1977 and that information had
been received that there was likelihood of the petitioner leaving the
country. The authorities contacted the Ministry of External Affairs
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I
MANEKA GANDHI V. UNION (Kaila.wm, J.) 7 3 7
and Minister. after going through the relevant papers approved the
impounding of the passport of the petitioner on the evening of July
l, 1977 in the interests of general public under Section 10(3 )_(c) of
the Passports Act, 1967. On July 2, 1977 Regional Trapsport Offi
cer on instructions from the Government of India informed the peti
timier about the Central Government's decision to impound her pass
port in public interest and requested 'her to surrender her passport.
In the counter affidavit various allegations made in the petitio1_1 were
den1cd and it was stated that the order was perfectly justified and
that the petition is without merits and should be dismissed. The re
joinder affidavit was filed by the petitioner on July 16, 1977.
An application Civil Misc. Petition No. 6210 of _1977 was filed by
the petitioner for leave to urge additional grounds in support of the
writ petition and a counter to this application was filed on behalf of
the Ministry of
External Affairs on August 18, 1977.
A petition by Adil
Shahryar was filed seeking permission to m
tervene in the writ petitio! and it was ordered by this Court. Dming.
the hearing of the writ petition, Government produced the order dis
closing the reasons for impounding the passport. The reasons given
are that it was apprehended that the petitioner was attempting or wa':i
Jikcly to attempt to leave the country and thereby hamper the func
tioning of.the ·Commissions of Inquiry. According to the Govern
m~nt, 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 unrealis
tic
to over-look the possibility of tampering with it or
m~king it un~
available to the Commission which can be done more easily and effec
tively
when an interested person is abroad.
So far as this-a1legation
was coricerne"-as it was not taken into account in passing the 0rder
it was given up during the hearing of the writ petition. ·The only
ground on which the petitioner's passport was impounding was that
she was likely to be examined. by the Commission of Inquiry and her
presence was necessary in India.
Several questions
of law were raised. It was submitted that
th~
petitioner was a journalist by profession and that she intend~d to
proceed to West Germany in connection with her profession'al duties,
as a journalist and that by denying her the passport not only was her
right to travel abroad denied but her fundamental rights guarapteed
under Article 19 (1) were infringed. The contention was that be
fore an order passed under Article 21 of· the Constitution could be
valid, it should not only satisfy the requirements of that article, name-
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ly that the order should be according to the procednre established
bv law, but also should not in any way infringe on her fundamental
rigl1ts guaranteed
under Article 19 (1). In other words, the
submis~ · H
sian was that the right to personal liberty cannot be deprived without
satisfying
the requirements of not only Art. 21, but also Article 19. rn. addition ~he provisions of Section 1~(3)(c) were challenged as
bemg ultra vtres of the powers of the legtslature and that in any event
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738 SUPREME COURT REPORTS [1978] 2 S·C·R·
the order vitiated by the petitioner not having been given an oppor
tunity
of being heard before the impugned order was passed. It was
contended
that the fundamental rights guaranteed under Article 19(1)
particuJarJy the right of freedom of speech and the right
to practise
profession was available
to Indian citizens not only within the terri
tory of India but also beyond
the· Indian territory and by preventing
the petitioner
from travelling abroad her right to freedom of speech
and right to
practise profession outside the country were also infring
ed.
The plea is that the fundamental rights guaranteed under artlcle
19
are
available not only within territory of India but outside the
territory of India as well.
The question that arises for consid,cration is whether the Funda
mental Rights conferred under_ Part III and particularly the ri~hts
conferred under Article 19 are available beyond the territory of India.
The rights conferred under Article 19 ( 1) (a), (b), (c), (f) and (g)
are
(a) to freedom of speech and expression;
(b) to assemble peacebly and without arms;
(c) to form associations or unions;
X X X X
(f) to· acquire, hold and dispose of propeqy; and
(g) to practise any ptofession, or to carry on any occupa
tion, trade
or business;
The rights conferred under Article 19 ( 1) (d) and (e) being limited
in its operation to
the territory of India the question of their extra~
E territorial application does not arise.
In order to decide this question, I may consider the various pro
visions of the Constitut!on, which throw some light. on this point.
The preamble to the Constitution provides that the people of Ind1a
have solemnly resolved to constitute India into a Sovereign Socialist
Secular Democrative Republic and to secure to a11 its ciitzens :
f Justice, social, economic and political;
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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 or the
nation.
By the article, India is constituted as a Democratic republic and its
citizens secured certain rights. While a reading of the article would
indicate that •the articles are applicable within: the territory o£ India,
the question arises whether they are available beyond the territorial
limits
of India.
Article
12 of the Constitution defines
"the State" as including the
Government and Parliament of India and the Government and the
Legislature of each of the States and all local or other · authorit es
within the territory of India or undet the control of the Governmtnt
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MANEKA GANDHI v. UNION (Kailasam, J.) 739
of l11dia. Article 13 provides that laws that are inconsistent with A
or in derogation of Fundamental Rights are to that extent void.
Article
13 (1) provides that all laws in force in the territory of India
immediately before the commencement of this Constitution, in so far
as they are inconsistent with the provisions of
Part III shaH, to the
extent of such inconsistency, be void. What are the laws in force in
the territory of 'India immediately before the commencement
of the Constitution that are referred to in the Article will have to be B
looked into. Before that Article 13 (2) may be noticed which pro
vldes that theJ State shall not make any law which takes away or
.abridges the rights. conferred by Part III, and any law made in con
travention of this c1ause shall, to the extent of the contravention, be
void. The word "law" in the Article is defined as :
(a) "law" includes any Ordinance, order, bye-law, rule,
regulation, notification,
custom or usage having in
the territory of India the force of law; and
c
(b)
"laws in force" includes laws passed or made by a
Legislature
or other competent authority in the
ter~
ritory of India be.forc the commencement of this
Constitution
and not previously repealed, notwith
standing
that any such law or any part thereof may
not be then in
operatio·ri either at all or in particular
areas.
While the applicability of .the custom and usage is restricted to the
ierritory of India "law" may have an extra-territorial app1ication.
In distributing the legislative powers between the Union and the li"
States Article 248 provides that Parliament may make laws for the D
whole or any part of the tc.'rritory cf India and the Legislature of a
State
may make laws
f<t 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 opera
tion. 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 cxtra-territo-F
rial application. In England section 3 of the Statute of Westminster,
1931
(22 Geo.
V.C.4) provides:
"It is hereby declared and enacted that the Parliament
of a Dominion has full power to make Jaws having extra
territorial operation."
But in detennining whether the provisions of a Constitution or a
statute have extra-territorial application certain principles are laid
down. Maxwell on The Interpretation of Statute's, Twe1fth 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
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740 SUPREME COURT REPORTS [1978] 2 S-C·R·
Kingdom : not even to the Channel Islands or the Isle of
Man, let alone to a remote overseas colony of possession'."
Lord Denning M. R. has said that the general rule is "that an Act of
Parliament only applies to transactions within the United Kin!~dom
and not to transactions outside." These two extracts arc from tw'o
decisions (1) Att. Gen. for Alberta vs. Huggard Assets, Ltd., ( 1953)
A.C.
420
and C.E.B. Draper & Son, LtcT. vs. Edward Turner & Son.
Ltd. (1964) 3 AIL E.R. 148 at p. 150 Maxwell comments on-the
above passages thus ''These statements, however, perhaps oversim
plify the position." The decisions cited will be referred to in due
course.
Craies on Statute Law (Sixth Ed.) at p. 44 7 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 subjeds 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 ( 19 64 Ed.)
at page liii states the position thus : "Par1iament normally re:;tricts
the operation of legislaticn to its own territories, British ships where
ver they may be being included in the ambit of territory.~Parllament
does on occasions, however, pass legislation controlling the activties
of its own citizen when they are abroad." Salmond in his b01)k on
Jurisprudence (Twelfth Ed.) distinguishes between the territorial en
forcement of law and the territoriality of law itself. At p. 11 the
author states : "Since territoriality is not a logically necessary \?art
of the idea o{ law, a system of law is -readily conceivable, the appli
cation of which is limited and determin~d not by reference to terri-
torial considerations.. but by reference to the personal qualifications
of the individuals oyer whom jurisdiction is exercised." Acc,)rding
to the text-books above referred to, the position is that a law is
normally applicable within
the territory, but can be made
applicable
to its citizens wherever they may be. Whether such extra-territorial
applicability is 1ntended or not will have to be looked for in the
legislation.
I
will now refer to the
decisions of courts on this subject.
In Niboyet v. Niboyet(') the Court of Appeal stated: "It [s true
that the words of the statute are general, but general word~, in a statute
G have never. so far as I am aware, been interpr~ted 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
c-nly to
offences committed within the territory or by British subjects. When
the Legislature intends the statute to apply beyond the ordinary terri
torial authority
of the country, it so states expressly in the statute as in
the Merchant Shipping Acts, and in some of the Admiralty
Ac.t:~." In
H the Queen v. Jameson and Others(2), the Chief Justice LorJ Rmsel
(1) 48 L J. P-1 at D. 10.
(2) [1896] 2 Q. B. Division 425 at 430.
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MANEKA GANDHI V. UNION (Kailasam, !.) 7 41
•stated the position thus : "It may be said generally that the area with
in 'Nhich a statute is to operate, and the persons against
whom it is to operate, are to be gathered from t11e language:
and purview of the particular statute. In Cooke v. The Charles A.
Vogeler Company(')~ the House{ of Lords in dealin~ with the jurisdic
tion of the Court of Bankruptcy observed that "English lcgisl~tion 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 com-
• mitting an act of 'bankruptcy, is subject to our Jaws and to all the inci
-dents which,those laws enact in such a case; while he is here, while he
is trading, even if not actually domiciled, he is liable to be made a bank-
rupt like a native citizen
........ It is
limited in its terms to Engiand;
and I think
it would be impossible to suppose that if the Legislature
had intended so broad
)3. jurisdiction as is contended for here, it would
not have conferred
it by express enactment." In Tomalin v.
S. Pearson
& Son, Limited(
2
)
the
Court of appeal dealing with the application of
the Workmen's Compensation Act, 1906, quoted with approval a pas.
sage from Maxwell on Interpretation of Statutes at p. 213 whreein 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 his
tory 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 deci
sion
of the
Privy Council in Att.-Gen. for Alberta v. Huggard Assets,
Ltd. (
3
), has already been referred to as a quotation from Maxwell's
Interpretation of Statutes. The
Privy Council
iq.. that case heJd that
"An Act of the Imperial Parliament today unless it provides otherwise,
applies to the whole of the United IGngdom and to nothing outside the
United Kingdom: not even t01 the Channel Islands or the Isle of Man,
let alone
to a remote overseas colony or
possession." The Court o!
Appeal in a later decision reported in (1964) 3 All. E.R. p. 148 (C.E.B.
Draper & Son, Ltd. vs. Edward Turner & Son, Ltd.) approved of the
proposition laid down in
Att. Gen. for Alberta vs.
Huggard Assets, Ltd.,
observing "Prima facie an Act of the United Kingdom Paflliament,
unless it provides otherwise, applies to the whoJe of the United King
dom and
to nothing outside the United Kingdom".
The cases decided by the Federal Court and the
Supreme Court of
India may be taken note of. Dealing with the extra-territorial application
of the provisions of the Income-tax Act, the Federal Court in Governor
General in Council
v. Raleigh Investment Co. Ltd. (
4
)
after finding that
there was
no territorial operation of the Act observed that if there was
any extra territorial operation it is within the legislative powers given
to 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
(I) [1901] A. C. 102 at p. 107.
(2) [1909J2 K. B. 61 •
(3) [1953] A. C. 420.
( 4) A. I. R. (31) 1944 Federal Court ~ 1.
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SUPREME COURT REPORTS [1978] 2 S·C·R·
whole or any part of British India on topics in Lists I and
1 III of Sch. 7
and holding that the Federal Legislature's powers for extra-territorial
legislation is not limited
to the cases specified in clauses (a) to (e) of
sub-section (2) of section 99 of the Government of India
Act, 1935,
concluded
by stating that the extent, if any, of extra-territorial operation
which is to
be found in the impugned provisions is within the legislative
powers given to the Indian Legislature by the Constitution Act. Again
in
Wallace Brothers & Co. Ltd. v. Commissioner of
Income-tax, Bom
bay, Sind and BaluchistanC), 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 Mohammad Mohy-ud-din v. The
King Emperor(Z), the Federal Court was considering the validity of
the Indian Army Act, 1911. In this case a person who was not a Bri ...
tish 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 juri~diction on the court
martial to try non-British subjects for offences committed
by them
beyond British India.
On a construction of section 43 of the Act the
Court held that the court-martial has powers "over all the native officers
and soldiers in the said military service
to whatever Presidency such
officers and soldiers
may belong or wheresoever they may be
serving.n
Repelling the contention that there was a ,presumption against constru
ing 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 Maxweu~s
Interpretation of Statutes do not go the length necessary for the· appel~
lant's case. It is true that every statute is to be interpreted so far
as its language admits, as not to be inconsistent with the comity of
nations or with the established rules of International Law. Whatever may
be the rule of International Law as regards th~ ordinary citizen, we
have
not been referred to any rule of International Law or principle of
the comity of nations which is inconsistent with a State exercising dis
ciplinary control over its own armed forces, when those forces are opera
ting outside
its territorial limits". The law as laid down by the Courts
may now
be summarised. Parliament
normaNy restricts the operation of
the legislation to its own territories. Parliamer1t may p.1;ss 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 estab
lished rules of international law.
It is now necessary to examine the various articles of Part Ill o~
the Constitution to find out whether any intention is expressed to make
any of
the rights available extra-territorially. The application
of_ Article
1 4 is expressly limited to the territory of India as it fays down that "The
(1) [1945] F.C.R. 65.
(2) [1946] F.C.R. 94.
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MANEKA GANDHI V. UNION (Kailasam, ]. ) 7 4 3
Srate shall not deny to any person equality before the law or the equal
protection of the laws within the territory ofl India". Article 15 relates
to prohibition of discrimination on grounds of religion, race, caste, sex
or place of birth, and Art. 16 d~als with equality of opportunity in mat
ters
of
public employment. By their very nature the t~o Articles are
confined to the territory of India. So also Articles 17 and 18 which
deal with abolition of untouchability and abolition of titles. Before
dealing with Articles 19
and 21 with which we are now concerned
the
othor articles may be referred to in brief. Articles 20 :.md 22 can have
only territorial application.
Articles 23 and 24 which relate to right against exploita~on and Articles 25 t_o 28 which relate to freedom of
conscience and free profession, practice and propagation of religion
etc.
prima
facie are app-licable only to the terri~ory 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. Arti
cle 31 does not expressly or impliedly have any extra territorial
appli
cation. In this background it will have to he: examined whether any
express or implied intention of extra-territorial applicability 1s discernible
in Articles 19 and 21.
Article 19 ( 1) (a) declal:es the right ~o freedom uf spec~: h and
expression. While it is possible that this right may have extra-terri
torial application,
it is not
likely that the framers of the Constitution
intended the right to assemble peaceably and without arms or to form
associations or union;s, or to acquire, hold and dispose of property.
or to practise any profession, or to carry on any occupation, trade or
business,
to have any extra territorial application, for such rights could
not be enforced by the
State outside the Indian rerritory. The rights
conferred under Art. 19 are Fundamental Rights and Articles
32 a'nd
226 provide that these rights are guaranteed and can be enforced by
the aggrieved
pemon by approaching the Supreme Court or the High
Courts. Admittedly, the rights enumerated in Art. 19 (1) (a), (b),
(c), (f) and (g) cannot b~ enforced by the State a'nd in the circums
tances 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 guara'nteeing the rights and securing them
by recourse to the Supreme Court and the High Courts.
The restriction of the right to move freely throughout the territory
of India and the right to reside and stay in any part of the territory
of India is strongly relied upon as indicating that in the absence of
such restrictions the other rights are
not
co'nfined to the territory of
India. The provisions in Art 19 ( l) (d) and (e) i.e. the right to
move freely throughout the territory of India and to reside and settle
in any
part of the territory of India have historical significance. In
A. K. Gopalan vs. The
State of Madras, C) Kania C.J., said that in the
right "to move freely throughout the territory of India" the emphasis
was
not on the free
movement but on the right to move freely
throughout the territory
of India. The intention
was to avoid any
restriction being placed
by the States hampering free movement
(1) [1950] S.C.R. 88.
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SUPREME COURT REPORTS [1978J 2 S·C·R·
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 ('~) the right ''to move freely through
out 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
th~ States from imposing any restraint. From
the fact that the words "territory of India" are found in these two
clauses the contention that the other freedoms are
not limited to the
territory
of India for their operation cannot be accepted. In Virendra
v. The State of Punjab and Another, (
1
)
S. R. Das, C. J ., who spoke
on behalf of the Constitution Bench stated : "The point to be kept
in view is that several rights of freedom guarante,~d to the citizens by
Article 19 (
1) are exercisable by them throughout and in all parts ot
the territory of
India". The view that the rights under Art. 19 ( 1)
is exercisable in the territory of India has not been discussed. Far
from Art. 19 ( 1) expressing any intention expressly or imp1iedl y of
extra territorial operation the context would indicate that its applica
tion is intended to be only territorial.
The right under Art. 19 (b)
and (c) to
assemble ~aceably and witho~t arms and to form asso
ciations
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
und~r Articles 19 (b)
and (c) cannot be enforced outside India the inference is that no extra
territorial application was intended. So also regarding the rights con
ferred under Articles
19(f) and (g) i.e. to acquire, hold
and dispose
of property; and to practise any profession, or to carry on any occu
pation, trade
or
business, would not have been intended to be apph
cable outside India.
It was submitted that when the Constitution
w•as framed the found
ing fathers were influenced
by the United
Nations' Universal Declara~
tion of Human Rights which was made in December, 1948 and they
thought
it fit to
make the Fundamental Rights available to the Indian
citizens throughout the world. The history of the conception of hu
man rights may
be shortly traced. The main
task of the Human
Rights' Commission which was set up
by the
United Nations was to
draw
an International Bill of Rights. The Commission split this task
into two
documents : a short declaration of principles and an elaborate
trea'ij' or covenant enforcing those principles so far as practicable.
The Universal Declaration of Human Rights wa~. not intended to be
binding as law but to present the ma~n ideals of human rights and
freedoms
in order to inspire everybody, whether in or out of govern
ments,
to work for their progressive realization. The
Commission
finished the Declaration and it was promulgated by the UN Assembly
on December 10, 1948. The discussion about the Draft Indian Consti
tution took place between February and October, 1948 and the
Arti
cles relating to the Fundamental Rights were discussed in October,
1948, i.e. before the
Univensal Declaration of Human Rights was pro
mulgated
by the UN Assembly on December
10, 1948. It is most
unlikely that b~fore the Declaration of Human Rights was promulgated
; (1) [19S,8J S.C.R. 308.
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MANEKA GANDHI v. UNION (Kailasam, J.) 745
the framers of the Indian Constitution decided to declare that the
Fundamental Right-s 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. Artic~e 13 of the Declaration
which is material for our discussion runs as folloWt') :
Paragraph 1. Everyone has the right to freedom of movement and
rzsidence with in the borders of each state.
Paragraph 2. Everyone has the right to leave any country, includ
ing his own, and to return to his country.
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within the borders of the country. The s•2cond paragraph aims a1
securing the right to leave any country including his own and to return c
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 out-
side the country
of origin. Even in the American Constitution
there
is 'no mention of right to freedom of speech or expression as being avail-
able outside America. Regarding the
right of movement within
the
borders of the· State it is not m~ntioned as one of the freedoms guaran- D
teed in the American Constitution but everyone in the country takes it
for granted that one can roam at will throughout the United States.
The right of a citizen to leave any country and to return to his
country is recognised in the United States. While there is no restric-
tion on the citizen to return to his own country the Government of the
United States does place certain restrictions for leaving the country, E
such as obtaining of the passports etc. Even the right to travel out-
side
the
United States is not unrestricted. A passport is a f'~quest 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 cou'ntry
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 F
to countries in_ which the United States have no diplomatic representa-
tion as the position of the Government is that it will not facilitate over-
seas 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 ass'!fance to protection. The right of the Am~ri-
can citizen to travel abroad as narrated above shows that e\~n the right G
to travel outside the country is not u'nfettered.
In vain one looks to the American law to find whether the citizens
are gro.nted 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 H
freedom to utter words orally and freedom to write, print and circu-
late words. But this freedom of expression would be meaningless
if peopJe were not permitted to gather in
groups to discuss mutual
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SUPREME COURT REPORTS [ 1978] 2 S·C·R·
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 reproduc
ed in Shan, October 1977, stated before the American Bar Associa
tion
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 direct
ed to the most fundamt}ntal 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 emphas
ing
the three categories
of human rights ( 1) the right to be free from
the governmental violation of the integrity of the. person; (2) the
right to fulfilment of such vital needs as food, shelter, health care and
education, and ( 3) the right to enjoy civil and political liberties, he
stated that the freedom of thought, of religion, of assembly, of speech,
of the press, freedom
of movement within the outside one's own
country; freedom
to take part in government, were liberties which
American enjoy
so fully, and too often take for granted, are under
assault in many places.
It may be noted that while freedom of
movement
is referred to as both within and outside one's
own country
the other rights such as freedom 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 extra-territorially
even in America.
The fundamental rights under
Art. 19 (1) of the
Constitution are
subject
to the restrictions that may be placed under Art. 19(2) to (6)
of the Constitution. The Fundamental Rights are not absolute but
are subect to reasonable restrictions
prov~ded for in the Constitution
itself.
The restrictions imposed are to be by operation of any exist
ing law
or making of a law by the Legislature imposing reasonable
restrictions.
The scheme of the Article, thus it while conferring
Fundamental Rights
on the citizens is to see that such
exercise does
not affect the rights of other persons
or affect the society in general.
The law made under Art. 19 ( 2) to ( 6), impose
r;estrlctions on the
exercise
of right of freedom of speech and expression, to
assemble
peaceably without arms etc. The restrictions thus imposed, normally
would apply only within the territory
of India unless the legislation
expressly
or by necessary implication
provides for extra-territorial
operation.
In the Penal Code, under sections 3 and 4, the Act is
made specifically applicable to crimes that are committed outside
India
by citizen of India. Neither in Art.
19 of the Constitution
nor in any of the enactments restricting the rigl1ts under Art. 19(2)
is there any provision expressly or by necessary implication providing
for extra-territorial application. A citizen cannot enforce his
Funda
mental Rights outside the territory of India
evmt if it is taken that
such rights are available outside the country.
1
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MANEKA GANDHI V. UNION (Kailasam, 1.) 747
In the view that a citizen is not entitled to the Fundamental Rights
guaranteed under Art.
19 outside the territorial limits of India, the
contention
of the learned counsel for the petition that by denying him
the passport
to travel outside India, his Fundamental Rights like
freedom of speech and expression, to assemble peaceably,
to practise
profession
or to carry on occupation, trade or business are infringed,
cannot be accepted. The passport
of
the petitioner was _impounded
on the ground that her presence in connection with the Inquiry Com
mission
may be necessary and in the interest of public
i~ was neces
sary 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 freedQm of speech etc. outside the
country was infringed, it became necessary to consider whether the
citizen
bad any such right.
It was strenuously contended that the Legislature by involving
powers under Art. 21 cannot deprive the Fundamental Rights guaran
teed under
Arl 19 at any rate within the territory of India. It will
now be considered whether
an Act passed
under Art. 21 should also
.satisfy the requirements of Art. 19.
·. ~ 'The submission was that Art. 19 applies to laws made under
Articles 20, 21 and 22 and the citizen is entitled to challenge the
validity of an Act made under Art. 21 on the ground that it affects
the rights secured to him under cl. (1) of Art. 19. Article 20(1)
provides that no person shall be convicted of any offence except for
violation of a law in force at the time of the commission of the act
charged as an offence, nor be subjected to a penalty greater than that
which might have been inflicted under the law in force at the time of the
commission
of the offence. Article 22 deals
with protection against
arrest and detention in certain cases, that is, in respect of preventive
detention.
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It has been decided by this Court in Gopalan'sC) case that in
the case of punitive detention for offences under the Penal Code, it F
cannot be challenged on the ground that it infringes the right
specijied
under Art. 19(a) to (e) and (g) of the Constitution of India. Kania
C.J. held:
."~f there is a legislation directly attempting to control
a citizen's freedom of speech or expression, or his right to
assemble peaceably and without arms etc.; the question
whether
that legislation is saved by the relevant saving
clause
of Art. 19 will arise. If, however, the
legisation is
not directly in respect of any of these subjects, but as a
result
of the operation of other legislation, for instance, for
punitive
or preventive detention, his right under any of
these sub-clauses is abridged the question of the
applica~
tion of Article 19 does not arise."
{1) [1950J S.C.R. 88.
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748 SUPREME COURT REPORTS [1978] 2 S·C·R·
Fazal 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 restric
tions
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 puiLishable. Tho
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
Clpinion, there
fore, the Indian Penal Code does not comt! within the
ambit (}f the words 'law' imposing restrictions on the right
to move freely."
The learned Judge, Justice Fazal Ali, took a diJlerent view regard
ing preventive detention on the basis that it did not admi~ 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,(') expressed the
same view. Chief Justice Ray observed :
''It is not possible to think that a person who is detain
ed 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 tria], it is
not open to him to say that the imprison
ment should be tested with reference to Art. 19 for its
reasonableness. A law which attracts Article
19, therefore,
must be such as is capable of being tested to be reasonable
under clauses ( 2) to ( 5) of Article 19."
In the case of punitive detention, it will be open to the accused to
raise alJ defences that are open to him in law, such as that there have
been
no
violation of any law in force. Regarding punitive deten
tion this
Court in
Saha case has held that as the Constitution has
conferred rights under Art. 19 and also adopted the preventive deten
tion to prevent the greater evil by imperilling security, the safety
of the State and the welfare of the nation, it is not possible to think
that a person who is detained will yet be free to move or ass~mble
or form associations etc.
Applying
the
same· reasoning,, it is co~ten~ed on behalf o~ the
state that when a person is depnved of h1s life or personal hberty
in accordance with the procedure established
by law, he cannot
invoke
to his aid any of the rights guaranteed under Art. 1 9 of the
Constitution of India. Whether this contention could be accepted
(1) [1975] 1 S.C.R. 778.
MANEKA GANDHI v. UNION (Kailamm, !.)' 749
or not will be examined with reference to the provisions of the Consti· A
tution and the decisions rendered
by this Court.
Article
19 to 22 appear under the title
"Right to freedom".
Article 19 confers freedoms on the dtizens whereas Art. 20 to 22
are
not limited to citizens but apply to all persons. Article 19 does
not deal with the right to life which is dealt with under Art. 21.
While
Art 19 provides for freedoms-which a citizen is entitled to, B
Articles
20 to 22 restrain the State from doing certain things. Though
the right to life and personal liberty
is not dealt with under Art. 19,
as it is mentioned
in Art. 21 though in a negative form, the right
to life and personal liberty is secured and the State can deprive it
only according to the procedure established by law. While the
rights guaranteed under Art. I 9 (
1) are subject to restrictions that
may be placed by Articles 19(2) to (6), the right not to be depriv-C ed of life and personal liberty is subject to its deprivation by pro
cedure established by law. The scope of the words "personal
1iberty" was considered by Mukherjea, J. in Gopalan's case (supra.)
The learned Judge observed : "Article 19 gives a list of individual
liberties and prescribes
in the various clauses the restrictions that
may be placed upon. them by law so that they may not confiict with
the public welfare
or general morality. On the other hand, Articles
D
20, 21 and 22 are primarily concerned with penal enactments or
other law under which personal safety or liberty of persons would
be taken away in the ·interest of society and the set down the limits
within which the State control should
be exercised. . . . . . the right
to the safety of one's life and limbs and to enjoyment of personal
liberty, in the sense of freedom from physical restrain and coercion
of any sort. are the inherent birth
rights of a man. The essence E.
of these rights consists in restraining others from interfering with
them and hence they cannot
be described in terms of
"freedom" to
do particular things . . . . " The words "personal liberty" take their
colour from the words "deprivation of life".
It means liberty of the
person,
that is freedom from personal restraint. Article 21 is one
of
t1Ie Articles along with Articles 20 and 22 which deal with
restraint on the person. According tn Dicey : F
''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 lOth Edn. page 207)
In the debates relating to the drafting of the Constitution, in Art.
15 the word that was used was "liberty". The framers of the Consti~
tution thought that the word "1iberty" should be qualified by the
insertion of the word "personal" before it for otherwise it might be
construed very wide1y so as to include even the freedoms already
deatt witb under Art. 19, 30 (which corresponds to Art. 19 in the
Constitution). The word "personal liberty" in Article 21 is, there
fore, confined to freedom from restraint of person and is different
from other rights enumerated in Article 19
of the Constitution.
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750 SUPREME COURT REPORTS (1978] 2 S·C·R·
It is contended on behalf of the petitioner that after the decision
of
the
Bank Nationalisation case and Bennet Colomon's case the
view taken earlier by the Supreme Court that in construing whether
the deprivation of personal liberty is valid or not the enquiry should
only
be confined to the validity of the
procedw~e prescribed without
any reference
to the rights conferred under Art.. 19 ( 1) is no longer
good law. The decisions bearing on this question may now be
examined.
In Gopalan's case it was held that Art. 19 dealt with the rights
of the citizens when he was free, and did not apply to a person who
had ceased
to be free and had been either
under punitive or preven~
tive legislation. It was further held that Art. 19 only applied where
a legislation directly
hit the rights enumerated
in the Article and not
where
the loss of rights mentioned
in the Article was a result of the
operation of legislation relating to punitive or preventive detention.
It was also stated by Justice Mukherjea that a law depriving the
personal liberty must
be a valid law which the legislature is compe
tent
to enact within the limits of the powers assigned to it and which
does not transgress any of the Fundamental Rights the
Constitution
lays dawn. The 1earned Judge explained that the reasonableness
of a law coming under Art. 21 could not be questioned with refer
ence to anything in Art. 19 though a law mad1! under Art. 21 must
.confonn 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 DelhiC) where it was held :
"Although personal liberty has a content sufficiently
comprehensive
to include the freedoms enumerated in Art.
19 (
1) , and its deprivation would result in the extinction
of those freedoms, the Constitution has treated these civi1 -
·
liberties a~ distinct from fundamental rights and made sepa-
rate provisions in Art. 19
and Arts. 21 and 22 as to the
limitations and conditions subject
to which alone they could
be
~aken away or abridged ... The interpretation of these
Artic]es and their correlation was elaborately dealt with
by the full court in Gopalan's case.
Approving the interpretation
of the Articles in Gopalan's case
it was
held that law which authorises deprivation
of personal liberty did
not fall within the purview of Art. 19 and its
validity was not to
be judged by the criteria indicated in that Article but depended on
its compliance with the requirements of Arts. 21 to 22.
This view was again affinned in
State of Bihar v. Kameshwar
Singh,(Z) where Das, J. in approving the law ·Jaiu down in Gopalan's
case ob-served as follows : ·
"As I explained in Gopalan's case and again in
Chiranjit Lal's case 1950 SCR 869 our Constitution pro
tects the freedom
of the citizen by article 19 ( 1)
(a) to
(1) [1951] S.C.R. 451
(2) [1952] S.C.R 889.
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MANEKA GANDHI V. UNION (Kai/asam, J.) 751
(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 incompiil.tible 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
provision~ of Art. 22.
In Express Newspapers (P) Ltd. & another vi. The Union of India
& Others,C) the test laid down was that there must be a direct or
inevitable consequence of the measures enacted in the impugned Act,
it would J10t be1 possible to strike down the legislation as having that
effect and operation. A possible eventuality of this type vmuld not
necessary be the consequence which could be in the coQtemplation
\1f the legislature while enacting a measure of this type for the benefit
of the workmen concerned. The test, thus applied, is whether the
consequences were "direct and inevitable" '!
In Hamdard Dawakhana (Wakf) Lal Kuan v. Union of lndia,(2)
after citing with apprpval the case of Ram Singh and Express News
papers
case, it was observed :
"It is p.ot th~ form or :incidental infringement that
determine the constitutionality of a statute in a roference
to the rights guaranteed in Art. 19 ( 1) but the reality and
the substance ........ Viewed in this way, it does not select
any of ihe elements or attributes of freedom of speech fall·
ing 'flithin Art. 19(1) (a) of the Constitution."
--...,_ Reality and substance test was lrud down in this case while approving
of
the earlier decisions when the court was considering the question
whether the
ban on advertisement would affect the rights conferred
under Art.
19(1) (a).
I
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The correctness of the view as laid down in Gopalan's case and
affinned
in Ram
Singh's case was doubted by Subba Rao, J. in
Kochuni v. The State of Madras(
3
). The learned Judge after referr-
ing
to the dissenting view of Fazal Ali, J. in Go pal
an's case rejecting
the plea that a law under Art. 21 shall not infringe Art. 19(1)
observed:
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"The question being integra with the dissenting view G
expressed by Fazal Ali, J. we are bound by this judgment."
Reliance was placed by the learned counsel for the petitioner on the
decision by
this Court in
Sakal Papers (P) Ltd. and Ors. v. The Union
of India. (
4
) The learned counsel referred to the passage at page .S60A
(1) [1959] 1 S.C.R.135.
(2) [1960] 2 S.C.R. 671 at page 691.
(3) [1960)3 S.C.R. 887.
(4) [1 962] 3 S.C.R. 842.
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752 SUPREME COURT REPORTS [1978] 2 S·C·R·
Part I w!H're it was held that "the correct approach tn such cases should
be .to enquire as to what in substance is the loss or injun' caused to a
citizen and not merely what manner and method has been adopted by
the State in placing the restriction and, therefore, the right to freedom
of speech cannot be taken away with the object of taking away Lhe
business activities of the citizen. Reference was also made to another
passage at 867 where it was held that the "legitimaey of the result in
tended
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 confititution if they directly impinge on any of the fundamental rights gua
ranteed
by the Constitution. It is no answer when the constitutionality
of the measure is challenged that apart from the
fundamental right in-
fringed the provision is otherwise legal.
The above observations relied on by the learned counsel were made
in a petition where the validity of Delhi Newspapers (Price and Page)
Order, 1960 which fixed the max,imum number of pages. that might be
published by a newspaper according to the price charged was ques-·
tioned. The order was challenged as contravening Art. 19(1) (a) of
the Constitution. The court held that the order was. void as it violated
Art. 19(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 incidently,
does so directly though it seeks
to achieve the end by Puwor-
ting to regulate the business aspect to a newspaper ....... .
Such a course is not permissible and the courts must be ever
vigilant
in guarding perhaps the most precious of all the
freedom guaranteed by our
Constitution."
This decision does not help us in reso~ving the point at issue in this case
for the court was concerned with the question whether the right of free
dom of speech was directly affected by the impugned order. The impact
of legislation under Art. 21 on the: rights guaranteed under Art. 19 ( 1)
was not in issue in the case.
G
The two cases which were strongly relied on by the learned counsel
H
for the petitioner as having over-ruled the view of Gopalan's case as
affirmed in Ram Singh's case are Bank Nationalisation Case(
1
)
and
Bennet
Colomon's case.(2)
In Kharak Singh's (3) case the majority took the view that the word
'liberty' in Art. 21 is qualified by the word 'personar and there its con
tent is narrower and the qualifying adjective bas been employed in order
(1) [1970] 3 S.C.R 530.
(2) [1973] 2 S.C.R. 757.
(3) [1964] 1 S.C.R. ~32.
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. MANEKA GANDHI v. UNION (Kailasc1nl, J.) 7 53
to avoid overlapping between those elements or incidents of liberty like
freedom
of speech or freedom of movement etc. already dealt with in
Art. 19 (I) and the liberty guaranteed by Art. 21 and particularly in
the context of the difference between the permissible restraints or res
trictions which might be imposed by sub clauses (2) to (6) of the Arti
cle of the several species of liberty dealt
w:th in a several clauses of
Article 19 (I) . The minority view as expressed by Subba Rao, J. is
that if a person's fundamental right under Art. 21 is infringed, the State
can rely upon a law to sustain the action; but that cannot be a com
p·lete 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
showil)g that the law only imposes reasonable
restrictions within the meaning
of Art. 19 ( 2) of the Constitution. The
submission of the learned counsel for the petitioner is that the view as
expressed by
Subba Rao, J. has been affirmed by the subsequent deci
sions in the
Bank Nationalisation(l) case and Bennet Colomon(
2
)
case.
On 19th July, 1969, the acting President promulgated an ordinance
No.
8 of 1969 transferring to and vesting the
undertaking of 14 names
commercial banks in the corresponding new
bank under the ordinance.
Subsequently,
the Parliament, enacted Banking Companies (Acquisition
of Transfer
of Undertaking) Act, 1969. The object of the Act was to
provide for the acquisition and transfer of the undertakings of certain
banking companies
in conformity with the national policy and objectives
and for matters corrected therewith and incidental thereto. The peti
tioners before the Supreme
Court who held shares in some of the named
banks or had accounts current or fixed_ deposits in the banks challenged
the validity of the enactment. In the petitions under Art. 32 of the Cotl
stitution the validity of the Ordinance and the Act was questioned on
various grounds. I am concerned with ground no. 3 which runs as
follows :
Article
19(1) (f) and Art. 31 (2) are not mutually exclusive
and
the law providing for acquisition of property for public purpose could
be tested for its validity on the ground that it imposes limitation on the
right to property which were not reasonable; so tested the provision of
the Act transferring undertaking of the named banks and prohibiting
practically from carrying banking business violates
the guarantee under
Art. 19(1) (f) and (g). In
de-aling 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 Go pal
an's case was extended to the protection· of the free
dom in respect of property and it was held that Art. 19 ( 1) (f) and
31
(2) were mutually exclusive in their operation and that substantive
provisions
of law relating to acquisition of property were not liable to
be challenged on the ground that it imposes unreasonable restrictions
on the right to hold property. After mentioning the two divergent lines
of authority, the coun held that
"the guarantee under Art. 31 (1) and
(2) arises out of the limitations imposed on the authority of the StAte,
r (1) {1970] 3 S.C.R. 530.
((2) [1973J 2 S.C.R. 757.~
/
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754 SUPREME COURT REPORTS (1978] 2 S·C·R·
by law, to take over the individual's property. The true character of
the
limi1 ation of the two provisions is not different. Clause ( 1) of Arti
cle 19 and clause (1) and ( 2)
Qf Art. 31 are part of the similar article
19(1) (f) enunicating the object specified and Article 19 (I) and 31
deal with the limitation which may be placed by law subject to which
the rights may
be exercised. Formal compliance with the conditions of
Art. 31 (2) is not sufficient to negative protection of guarantee to the
rights
to property. The validity of law which authorises deprivation of
property and the law which authorises compulsory acquisition of the
property for a public
purpose must be adjudged by the application of
the same test. Acquisition must be under the authority of a law and
the expression law means a law which is within the competence of the
legislature
and does not impair the guarantee of the rights in Part III.
C The learned counsel for the petitioner submitted that on similar rea-
soning
it is necessary that an enactment under Art. 21 must also satisfy
the requirements
of Article 19 and should be by a law which is within
the competence of the legislature and does not impair
the guarantee of
the rights in part III including those conferred under Art. 19 of the
Constitution
of India. The
important question that arises for consi
deration
is whether the decision in the Bank Nationalisation case has
D over-ruled the decision of Gopalan's case and is an authority for the
proposition and
an act of the legislature relating to deprivation of life
and personal liberty should
also satisfy the other fundamental rights
guaranteed under Art.
19 ( 1) of the Constitution.
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In order to determine what exactly is the law that has been laid
down in Bank Nationalisation Case, it is necessary to closely examine
the decision particularly from pages 570 to 578 of 1970(3) SCR. After
holding_that :
"Impairment of the right of the. individual and not the ob
je..ct 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 1s
therefore to ignore the true intent of the Constitution."
the Court proceeded to obserfe 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 ind_ividual and
groups of individuals
in all their dimensions." Haying thus held the Court proceeded to
state :
"But this Court has held in some cases to be presently
noticed
that Art. 19(1)(£) and Art. 31(2) are mutually
ex
clusive."
It is necessary at this stage to emphasize that the Court was only con
sidering the decisions
that took the view that Article 19 ( 1) (f) and
31
(2) were mutually exclusive. After referring to passages in A. K.
Gopalan's case at pages 571 to 573 noted at page 574 :
"The view expressed in A. K. Gopalan's case was reaffir
med
in Ram
Singh and others v. State of Del.hi(
1
) '.'.
(1) (1951] S.C.R. 451.
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MANEKA GANDHI v. UNION (Kailasam, J.) 75 5
Having thus dealt with the passages in the judgment in Gopalan's case A.
the Court proceeded to consider its effect and observed that the princi-
ple underlying the judgment of the majority was exteQded to t~e pro
tection of freedom in respect of property and it was held that Article
19(1) (f.) anrl Art. 31 (2) were mutually exclusive in their operation.
While observations in judgment
of Gopalan's case as regards the ap
plication of Art. 19 ( 1) (f) in relation to Art. 21 were not referred to,
the Court proceeded to deal with the correctness of the principle in
Gopalan's case being extended to the protection
of the freedom in res
pect 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 law-
ful compulsory acquisition
of the subject of that right, the owner ceased
to have that right for the duration of the incapacity. In Chiranjit Lal
Chowduri's case,(l) Das, J. observed at page 919 :
" .... the right to property guaranteed by Art. 19 ( 1) (f)
would ...... continue until the owner was under Art. 31 de-
prived of such property by authority of law.,
Das, J. reiterated the same view in The State of West Bengal v. Subodh
Go pal, (2) where he observed :
"Art. 19(1) (f) read with Art. 19(5) pre-supposes that
the person to whom the fundamental right is guaranteed re
tains his property over or with respect to which alone that
right may be exercised.
G
D·
Thus the observation in Gnpalan's case extending the principle laid down
in the majority judgment to freedom in respect of property was reite
rated by Das, J. in Chiranjit Lal CJwwduri's case (supra) and Subodh
Gopal's case. The principle was given more concrete shape in State of E
Bombay v. Bhanjit Munji(3) case wherein it was held that "if there is
no property which can be acquired held or disposed of, no restriction
can be placed on the exercise of the right to acquire, hold or dispose it
of, and as clause (5) contemplates the placing of reasonable restric-
tions
of the exercise of those rights it must follow that the Article postu-lates the existence of property over which the rights are to be exercised. •• p·
This viw was accepted in the later cases Dabu Barkya Thakur v. State
of Bom1Jay(
4
) and Smt. Sitabati Debi and Anr. v. State of West Ben-
f!al. (
5
)
The Court
proceeded further after referring to some cases to
note that. "With the decision in K. K. Kochuni's case(G) there arose
two divergent lines of authority ( 1) "authority of law" in Art. 31 (1)
is liable to be tested on the ground that it violates other fundamental
rights
and freedoms
including the right to hold property guaranteed by
Art. 19(1) (f) and (2) "authority of law" within the meaning of Art. G
31(2) is not liable to be tested on the ground that it impairs the gua
rantee of Art. 19 ( 1 ) (f) 1n so far as it imposes substantive restrictions
(l) [1950J S.C. R. 869.
(2) [1954] S.C. R. 587.
(3) [1955]
(1) S.C.R. 777.
(4)
[1961} 1 S.C.R. 128.
(5) H967] 2 S.C.R. 940.
(6) [1960}3 S.C.R. 887.
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756 SUPREME COURT REPORTS [1978] 2 S·C·R·
though it may be tested on the ground of impairment of other guaran
tees." Later in the decision of State of Madhya Pradesh v. Ranoiro
ShindeC) the Supreme Court opined that the! validity of law in cl. (2)
o.f Art. 31 may be adjudged in the light of Art. 19 (1 )(f). But the
Court
in that case did not consider the previous catena of authorities
which related to the inter-relation between
.Art. 31 (2) and Art.
19(1 )(f).
In considering the various decisions referred to regarding the inter
relation of
Art. 31 (2) and Art. 19(1) (f) the
Court proceeded to ex
press its view that "the theory that the object and form of the State
action determine the extent of protection which c
he
aggrieved party ma.y
claim is not consistent with the constitutional scheme. Each freedom
has difierent dimensions." Having so stated the Court considered the
inter-r~lation of Art. 31 (2) and Art. 19(1) (f) and held :
"The true character of the limitations under the two pro
visions
is not different. Clause (5) of Art. 19 and cls. (1) & (2) of Art. 31 are parts of a single pattern; Art. 19 ( 1) (f)
enunciates the basic right to property of the citizens and Art.
19(5) and cis. (1) & (2) of Art. 31 deal with limitations
which
may be placed by law, subject to which the rights may
be
exercised/,
It must be noted that basis for the conclusion is that Art. 19 and cl. ( 1)
and ( 2) of Art. 31 are parts of a single pattern and while Art. 19 ( 1) (f)
enunciates the right to acquire, hold and dispose of property; cl. (5)
of Art. 19 authorise imposition of restrictions upon the right. There
must
be reasonable restriction and Art. 31 assures the right to property
and grants protection against
tb_e exercise of the authority of the State
and cl.
(5) of Art. 19 and
cis. (1) and (2) of Art. 31 prescribe res-
trictions upon State action, subject
to which the right to property rna y
be exercised. The fact that right to property guaranteed under Art.
19(1) (f) is subject to
restrict ioJ:!s under Art. 19(5) and 31 and thereby
relate
to the right to property closely inter-related cannot be overlooked
for that formed
the basis for the conclusion. Mter 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 attemptl 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 t~~sted only on the ground
H of non-compliance with Art.
31(2). Article
31(2) requires that pro
perty must be acquired for a public purpose and that it must be acquired
(1) [1968] 3 S.C.R. 489.
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MANEKA GANDHI v. UNION (Kailasam, /.) 7 57
under a law with characterstics set out in th_at Articles. -Formal com-A ·
pliance of the condition of Art. 31 (2) is not sufficient to negative the
protection of
the guarantee of the right to
property."
After expressing its conclusion, the Court proceeded to state that it
is found necessary to examine the rationale of the two lines of authority
and determine whether there is anything in the Constitution wltich just
fies this apparentliinconsistent development of the law. While stating B
that in its judgment the assumption in A. K. Gopulan' s case that certain
articles exolusively deal with specific matters and in determining whe~
ther there is infringement of the individual's guaranteed rights, the ob-
ject and the form of State action alone need be considered, and effect of
laws on fundamental rights of the individuals in general will pe ignored
cannot
be accepted as correct. To this extent the Court specifically
over ruled the view that the object and form of the
State action alone C
need be considered.
It proceeded
"We hold the validity "of law" which
authorities deprivation of property and "a low" which authorises com
pulsory acquisition
of property for public purpose must be adjudged by
the application of the same
tests." It wlll thus be seen that the entire
discussion by the Court in
Bank Nationalisation
case related to the inter
relation between Art.
31( 2) and Art. 19 (1) (f) . In dealing with the
question the Court has no doubt extracted passages from the judgments
D
of learned Judges in Gopalan's case but proceeded only to
;;onsider the
extension of the principle underlying the majority judgment
to the pro
tection
of the freedom in respect of property, particularly, the judgment
of Justice Das. After stating that two vi~s aros~ after Kochuni's case
the Court concerned itself only in determining the rationale of the two
lines of authority. The view taken in Gopalan's case that the objection
and
the fonn of
State action has to be considered was over ruled and it E
was laid down thatl it is the effect and action: upon the right of the per-
son that attracts the jurisdiction of the Court to grant relief. It is no
doubt true that certain passing observations ha vc been made regarding
the Jiberty of persons, such as at page 576 :
"We have carefully considered the weighty pronounce-
ments of the eminent judges who: gave shape to the concept F
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 opera-
tion upon the individual's
freedom."
Though the liberty of person is incidentally mentioned there is no
further discussion on the subject. While undoubtedly
Bank Nationa-G
lisation case settles the law that Art. 19(1) (f)
~nd Art. 31 (2) are not
mutually exclusive there is no justification for holding that the case is
authority for the proposition that the legislation under Art. 21 should
a·lso satisfy all the fundamental rights guaranteed under Art. 19 ( 1) of
the Constitution. As emphasised earlier Art. 19 ( 1) (f) and Art. 31 (2)
form a single pattern and deal with right to property. The fundamental
right under Art.
19(1) (f) is restricted under Art. 19(5) or Art. 31 (2) H
and
ns the article refer to right to property they are so closely inter~
linked and cannot be held to be mutually exclusive. But Art. 21 is
related to deprivation of life and personal liberty and it has been held
10--119 SCI/78
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758 SUPREME COURT REPORTS [1978] 2 S.C.R.
that it is not one of the rights enumerated in Art. 19 (1) and refers only
to personal right~ as are not covered by Article 19.
The decision in
Bank Nationalisation case
so far as it relates to
Articles 19(1) and 21, is in the nature of obiter dicta. Though it is a
decision ot a Court of 11 Judges and is entitled to the highest regard, as
the Court had not applied its mind and dedded tht: specific question and
as is in the nature of a general, casual observation on a point not calUng
for decisiq_n and not obviously argued before it, the case cannot be
taken as an authority on the proposition in question.. The Court can
not be said to have declared the law on the subject when no occasion
arose for
it to consider and
dec_ide the question.
It may also be noted that as the Court ruled that the jmpugned Act
violated Art.
31 (2) by not laying down the necessary principles, the
decision
of the inter-relationship between Art. 19(1) (f) and 31(2) was
not strictly necessary for the purpose of giving relief to the petitioner.
We arc
not concerned in this case as to whether the decision in Bank
Nationalisation case is in the nature of
Obiter dicta so far as it held that
Arts. 19 ( 1) and 31 (2) are interrelated. But it is necessary to state
that the decision proceeded on some erroneous assumptions.
At page
571 of
Bank Nationalisation case
(supra)' it was assumed. "The Majo
rity
of the Court (Kania,
C.J. and Patanjali Sastri, Mahajan, Mukherjea
& Das JJ.) held that Art. 22 being a complete code relating to preven
tive detention the validity
of an .order of detention must be determined
strictly according to the terms and within
the four comers of that
arti
cles." This statement is not borne out fi:om 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 sub
ject 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 com~
plete code. I am unable to accept that contention." Patanjali Sastri
J. at page 207 of the judgment said : "The learned Attorney General
contended
that article 22 clauses ( 4) to (7)
fmmed 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 wlth
preventive detention
at all and that preventive detention is wholly
cover
ed 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 unneces
sary to enter into a discussion OQ the question raised by the learned At
terney-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 tbc
procedure
it lays down is
exhaustive." Justice Mahajan at page 226
held that "I am satisfied on a review of the whole scheme of the Con
stitution that the intention was to make article 22 self-contained in res
pect of the laws on the subject of preventive detention.u It is thus
seen
that the assumption in Bank
Natiooalisation's case that the majo
rity of the
Court held that articJe 22 is a complete code is erroneous
and
the basis of the decision stands shaken. If the obiter
dicta based
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MANEKA GANDHI V. UNION (Kai/asan1} /.) 7 59
on the wrong assumption is to be taken as the correct position in law,.
il would lead to strange results. If arts. 19 (1) (a) to (e) and (g) are
attracted in the case
of deprivation of personal liberty under art. 21,
a
punitive detention for an offence committed under the Indian Penal
Code such as theft, cheating or assault would be illegal as pointed out
in Gopalan's case by Kania C.J. and Patanjali Sastrl J. for the rcason-
·able restriction in the: interest of public order would not cover the
offences mentioned above. As held in Gopalan's case and in Salta's
case there can be no distinction between punitive detention under the
Penal Code and preventive detention. As pointed out earlier even
though Fazal Ali
J. dissented in Gopalan's
case, the same view was
expressed by His Lordship so far as punitive detention was concerned.
He said :
"The Indian Penal Code does not primarily or necessarily
impose restrictions
on the freedom of movement and it is not correct to say that it is a law imposing restrictions on the rightto move freely."
The conclusion that art. 19(1) and Art. 21 were mutually exclusive was
_ arrived at on an interpretation of language of art. 19 (1 )(d)_ read with
art.
19(5) and not on the basis that art. 19(1) and 21 are exclusive
and Art.
21 a complete code. The words
"personal liberty" based on
the Draft Committee report on Art. _15 (now Art. 21) was added to the
word 'personal' before the word 'liberty' with the observation that
the
word 'liberty' should be qualified by the word 'personal' before it
for
otherwise .it may be construed very wide so as to include even the free·
doms already dealt with in Art. 13 (now Art. 19). In Gopalan's case
it was also pointed out by the Judges that art. 19(1) and 21 did not
operate
on the same field as Art. 19 ( 1) and 31 (2) of the Constitution
are.
The right under Art. 21 is dierent and does not include the rights
that are covered under art. 19. Art. 19
(1) confers substantive right
as mentioned in clauses.
(a) to (g) on citizen alone and does not
in
clude the right of personal liberty covered in Art. 21. For the reasons
stated above
obiter dicta in Bank
Nationalisation's case that a legisla
tion under art. 21 should also satisfy the reqUirements of Art. 19 ( 1)
cannot be taken as correct law. The Court has not considered the
reasoning in
Gopalan' s case and over-ruled it.
Before proceeding to consider the test of validity of a legislation as
laid down in
Bennet Colomon's case following the Bank Nationalisation
case the decisions which followed the Bank Nationalisation case hold
ing
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(l), the Supreme Court held that in
Gopalan' s case the majority Court held that Article 22 was a self·con
tained 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 Nationa
lisation
case dealt with in relation to Article 19 and 31, the basic
ap·
proach considering the fundamental rights guaranteed in the different
provisions of the Constitution adopted in this case held the major pre
mises of the majority in the Gopalan case was erroneous. The view
taken in this case also suffers from the same·infirmities referred to in
(1) [1973] 1 s.c.c. 856.
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A Bank Nationalisation case. Later, in the case of Khundiram v. West
BengalC),
a Bench of four Judges again erroneously stated
thnt Gopa
lan's case had taken the view that Article 22 wa~; a complete Code. After
referring to BarJk Nationalisation case and S. N. Sarkar's and to the case
of H. Saha v. State of West Bengal(2). the Court regarded the question
as concluded and a final seal put on this controvery and hek that in
view of the decision, it is not open to any one now to contend that·tbe
B law
of preventive detention which falls in
Artide 22 does not have to
meet the requiremcn t of Art. 14 or Art. 19."
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In Additional District Magistrate v. S. S. Shukla, (
3
) th~ locus
standi to move a habeas corpus petition under Article 226 of the Con
stitution of India while the Presidential order dated 27th June, 1975
was
in force fell to be considered. The Court while holding that
t11e
remedy by way of writ petition to challenge the legality of an iJrder of
detention under the Maintenance of Internal Security Act is not open
to a detenu during the emergency, had occasion to consider the observa
tio'llS made by the majority in Bank Nationalisation case regatding the
application of Art. 21 of the Constitution of India. Chief Justice Ray,
at page 230 held :
"Article 21 is our rule of law regar&ng life and liberty.
No other rule of law can have separate existence as a distln.ct
right. The negative language of fundamen~al right incmpo
rated in Part III imposes limitations on thG power of the State
and declares the corresponding guarantee of the individual to
that fundamental right. The limitation and guarantee are
complimentary. The limitation of State action embodied .n a
fundamental right couched in negative
fonn is the
measur~ of
the protection of the individual."
After quoting with approval the view held in Kharak Singh's ::ase that
personal liberty in Art. 21 includes all varieties of rights which go to
make personal lib~rty other than those i'n .Art. 19 (1), the learned
Judge observed
that the Bank Nationalisation case merely brings in
the concept of reasonable restriction in the law. Justice
B(:g, as he
then was, considered this aspect a little more elaborately at f•age 322.
After referring
to the passage in Bank Nationalisation case
th~~ learned
. Judge observed :
"It seems to me that Gopalan's case wa~ merely cited
in Cooper's case for illustrating a line of reasoning which
was held to
be incorrect in determining the validity of
'law'"
for the acquisition of property solely with reference to the
provisions
of Art. 31. The question under consideration in
that case was whether Articles 19(1) (f) and 31 (2) are
mutually
exclusive."
The learned Judge did not understand the. Cooper's case a!: holding
that effect of deprivation of rights outside Art. 21 will also have to
(1) [1975] 2 s.c.c. 81.
(2)
[19751 1 s.c.R. 778.
(3)
[1976J Supp. S.C.R.172.
MANEKA GANDHI V. UNION (Kailasam, !.) 761
be considered. Justice Chandrachud understood the decision in Bank A
Nationalisation case as holding that Art. 21 and Art. 19 cannot be
treated as mutually exclusive. Justice Bhagwati at page 433 of the
· reports took the view that in view of the decision of this Court in
Cooper's case the minority view in Kharak Singh's case that the law
under
Art. 21 must also satisfy the test laid down in Art. 19(1) so
far the attributes covered by Art. 19 ( 1) are concerned was approved.
It js seen that the view taken in the Bank Nationalisation case that B
a law relating to deprivation of life and personal liberty falling under
Art. 21
has to meet the requirements of Art. 19 is due to an error
in proceeding on the basis that the majority Court in Gopalan's case
held
that Article 22 was a self contained Code. The decisions which
followed
Bank Nationalisation case, namely, the case of S. N. Sarkar
v. West Bengal and Khundiram v. West Bengal, H. Saha v. West Ben-
gal,
suffer from the same infirmity. With respect I agree with the view C
expressed by
Chief Justice Ray and Justice Beg, as he then was, in
Shukla's case.
Next
to Bank Nationalisation case strong reliance was placed on
Bennet
Colomon's case by the petitioner for the proposition that. the
direct effect of the legislation of the ~fundamental rights is the test.
In the case the petitioners impugned the new newsprint policy on
various grounds. The Court held that though Article 19 ( 1) (a) does
not mention the freedom of press, it is settled view of the Court that
freedom of speech and expression includes freedom of press a'nd cir-
. culation. Holding that the machinery of import control cannot be
utilised to control or curb circulattion or growth of freedom of news
papers
it
was held that Newspapers Control Policy is ultra-vires of
the Import Control Act and the Import Control Order. The Court
after referring to the two tests laid down in Bank Nationalisation case
observed : "Direct operation of the Act upon the .right forms the real
test". The question that was raised in the case was whether the
impugned newsprint policy is in substance a newspaper control. The
Court
held. that the Newsprint Control
Policy is found to be News
paper Control Order in. the guise of framing an import control policy
fot newsprint. As the direct ope_ration 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 a'nd subs
tance.
It·may be noted that in Bennet Colomon's case the question whether
Articles
21 and 19 are mutua1ly exclusive or not did not arise for
consi
deration and the case cannot be taken as an authority for the question
under consideration in
the case. Bennet
Colomon's case, Express
Newspapers
case, Sakal Newspapers case were all concerned with the
right to freedom of. the press which is held to form part of freedom of
•
speech and express1on.
Whet~er the. pit.h and substance doctrine is relevant in considering
the question of mfrmgement 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 subect matter and of direct
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762 SUPREME COURT REPORTS [1978] 2 s.c.R·
an~ of. incide'ntal effect of the legisla~on are relevant to question of
~eg1~lativc competence but thc.y are Irrelevant to the qucsti,)n of
mfnngement of fundamental nghts. 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 tht:! question of irfringe-
ment
of fundamental right.
•
The Court at page 781 said : ··by direct operation is meant th~
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.C) -
In deciding whether the Act has got a direct operation of any
rights upo'n the fundamental rights, the two tests are, therefore, rele-·
vant and applicable. These tests have been applied in severd cases
before the decision in
Bank Nationalisation
ca~,e. A reference has:
been made to the decision of Express Newspapers (P) Ltd. and Anr. v~
Union of India,(2) where the test laid down was that there nust be
a direct and inevitable consequenc-e of 1he legislation. In H amdard
Dawakhana v. Union of .India(
3
)
this Court foHowed the te:;t laid
down in
Express Newspapers case. The Court expressed it:; view
that it is not the form or incidental infringement that determine
co'nsti~
tutionality of a statute but reality and substance. In Sakal Papers
(P) Ltd. v. Union of lnd~a(
4
) it was held that the "Correct approach .
in such cases should be to enquire as to what in substance is the loss
or injury caused to the citizen and not merely what ma'Jmer ana method
have been adopted
by the State in placing the restriction. The
Supreme Court in some cases considered whether the effect of the
operation of the legislation is direct and immediate or not. If it is
remote, incidental or indirect, the validity of the enactment will not
be effected. The decision in Copper's case has not rejected
tte above
test. The test laid down in
cooper's case is the direct operation on
the rights of the person.
'
The test was adopted and explained in Bennet
Colomon'J' case as
poihted above.
The view that pith and substance rule is not confined in resolving
conflicts between legislative powers is made
dear in the decision of
the Federal Court in Subramaniam Chettiar's case,(5) where Varda·
chariar, J. after referring briefly to the decision of Gaf,'agher v.
Lynn,(
0
) held that "They need not be limited to any t.pecial system
of federal constitution is made clear by the fact hat in Gallc.qher . v.
Lynn, Lord Atkin applied pith and substance rule when d~alm~ wtth
a question arising under the Government of Ireland Ac;t wh1ch dtd not
embody a federal system at all."
•
(1) [l950J A. C. 235.
(2) [1959]1 S.C.R. 235.
(3) [1960] 2 S.C.R. 671,
(4) [1962] 3 S.C.R. 842.
(5) [1940] Federal Cont Reports 188.
(6} [1937] A. C. 863.
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MANEKA GANDHI V. UNION (Kailasam, ].)
763
The passport. Act provides for issue ot passports and travel docu~
ments for regulating the departure from India of citizens of India and
other persons. If the provisions comply with t~e requirements of Arti
cle 21, that is,
if they comply with the procedure established by law the validity of the Act cannot be challe'nged. If incidentally the Act
infringes on the rights of a citizen under Art. 19 ( 1 ) the Act cannot
be found to be invalid. The pith and substance rule will have to be
applied and unless
the rights are directly affected, the challenge will
fail. If it is meant as
being applicable in every case however remote
it may be where the citizen's rights under Art. 19 ( 1) are affected,
punitive ~etention will not be valid.
The result of the discussion, therefore, is that the validity of the
Passport Act will have to be examined on the basis wh~ther it directly
and immediately infringes on any of the fundamental right of the
petitioner. If a passport is refus~d according to procedure estabJished
by law, the plea that his other fundamental rights are denied cannot
lJe raised if they are not directly infringed. ·
The decisions of the Supreme Court wherein the right of person
to travel abroad has been dealt with may be noticed. In Satwant Singh
v. Assistant Passport Officer, Delhi C ) 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 pass
port is essential for leaving and entering India. The Court held the
right to travel is part of personal liberty and a person coqld not be
deprived of it except according to the procedure laid down by law.
The view taken by the majority was that the expression "personal
liberty" in Article 21 only excludes the ingredients of liberty enshrined
in Art. 19 of the Constitution and the exression 'personal liberty'
would take in the right to travel abroad. This right to travel abro.a~
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, there
fore, liable
to be restricted by the legislature according to the proce
dure
establish~d by law. The right of an American citize~ to travel
is recognised. In Kent v. Dull~s, (2) the Court observed that the right
to travel is a part of the 'liberty' of which the citizen cannot be deprived
withO'Ut due process of law under the Fifth Amendment. . "The free
dom of movement across the frontiers in either direction, a'nd inside·
frontiers as well, as a part of our heritage, Travel abroad, like travel.
within the country
...... may be as close to
the heart of the individual
as the choice of what he eats, or wears, or reads. Freedom of move·
ment is basic in our scheme of values., In a subsequent d~cision
Zemel v. Rusk(
3
)
the Court sustained against
due process attacks the
Government's refusal to issue passports for travel to Quba because
the refusal was grou'nded 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 tho~ necessity for the restriction."
O) £1967] 2 s.c.R. 525.
(2) 357 U.S. page 116, at page 127 (1958).
{3) 381 U.S. (1) at page 14.
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76. SUPREME COURT REPORTS [1978] 2 S.C.R.
A (The Constitution of the United States of A.merica-
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Analysis and interpretation-at page 1171)
In Herbert Aptheker etc. v. Secretary of Stcue,(l) the Court struck
down a congres.sional prohibition of international travel by members
of the Commumst Party. In a subsequent decision the Court upheld
the Go"~~r·nment'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's citizen's right to
travel abroad may also be restricted under certain conditions. Our
Constitution provides for restriction of the rights by 'procedure esta
blished by law•. It will be necessary to consider whether th'e impugned
Act) Passport Act satisfies the requirements of procedure establish~d
by 1aw. ·
The procedure established by law does not mean procedure, how
ever, fantastic and oppressive or arbitrary which in truth and reality
is
no procedure at all [(A. K. Gopalan v.
State of Madras)(') obser
vations
of Mahajan, J.J. There must be some procedure and at least
it must confirm to the procedure established by law must be
ta~~n
to mean as the ordinary and well estabished criminal procedure, that
is to say, those settled usages and normal modes of proc·~edings,
sanctioned by the Criminal Procedure Code which is a general Jaw
of Criminal procedure in the Country. But as it is accepted that pro
cedure established by law refers to statute law and as the legislature
is competent to change the procedure the procedure as envisaged in
the cri_minal procedure cannot be insisted upon as the l·~gislature can
modify the procedure. The Supreme Court· held in Kartar Singh's
case(3) that Regulation 236 clause (b) of the U.P. Police Regulation
which authorises domiciliary visits when there was
no law on such a
regulation, violated Article
21.
I will not proceed to examine the
provisions of Passport Act, Act
15 of 1967, to det>~rmine whether the provisions of the Act are in
accordance with the procedure established by law.
The Preamble states that the Act is to provide for the iSsue of
passports and travel documents to regulate the departure from· India
of citizens of India and other persons and for mattt~rs. incidental or
ancillary thereto. It may be remembered that this Act was passed ~fter
the Supreme Court had held in SaD,want Sl'ngh V. Union of lndiar)
that the right to tavel abroad is .a part of person's persobal liberty of
which he could not be deprived except in accordance with the proce
dure established by law in terms of Article 21 of the Constitution. 1he
legislature came forward with this enactment prescribing the procedure·
for issue
of passports for regulating the departure from India of citizens
and
others.
(I) 378 u.s. 500-.
(2) [1950J S.C.R. 88 at page 230.
(3) [1963] I S.C.R. 332.
{4) [1967J 3 S.C.R. 525.
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MANEKA GANDHI V. UNION (Kailasam) J.) 7 65
Section 5 of the Act provides for applying for passports or travel
documents etc.
a'nd the procedure for passing
ord~rs thereon. On
receipt of an application under sub-section (2) the passport authority
may issue a passport or
a travel document with endorsement in respect
of the foreign countries specified in the application or issue of a pass-
-
port or travel documr.;nt with endorseme'nt in respect of some foreign
countries and refuse to make an endorsemen{ 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 endorsem:::nt, the authority is required to record in writing
a brief statement of its reasons. and rurnish to that person, on demand,
a copy thereof unless the authority for reasons specified ·in sub-section
(3) refuses to fur'nish 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 provido.es that every passport
shaH be renewable for the same period for which the passport was
originally issued unless the passport authority for reasons to be recor-
ded in witing otherwise determines.
Section 10 is most important as the impounding of the passport
of the petitioner was ordered under section 1 0 ( 3) (c) of the Act.
Se<!tion 10(1) enables the passport authority to vary or cancel the
endorsement on a passport or travel d,ocument or may with the previous
approval of the Central Government, vary or cance) 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
wnting, 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 condi
tions of the passport. .
Section 10(3) with which we are concerned runs as follows :
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impounded or revoke a passport or travel document,-
(a) If the passport authority is satisfied that the holder
of the passport or traveJ document is in wrongful
po~sesston of;
(b) If tho~ passport or travel document was obtained by
the suppressio'n of material information or on the
basis of wrong information provided by the holder of
the pass pot or· travel document or any other person
on his behalf;
, (c) If the passport authority deems it necessary so to do
in the interests of the sovereignity and integrity of
India, the security of India, friendly relations
of India with any foreign country, or in the interests of
the general public;
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766 SUPREME COURT REPORTS [1978] 2 S·C·R·
(d) If the holder of the passpot or travel document has,
at any time after the issue of the passort or traw~l
document, been convicted by a court in India for any
offence involving moral turpitude and sentenced in
respect thereof to imprisonment for not k~ss than two
years;
(c) If proceedings in. respect of an offence alleged to have.
been committed by the holder of the passport or travel
document are pending before
a criminal
court in
India;
(f) If any of the conditions of the passport or travel
document has been contravened;
(g)
(b)
If the holder of
tho:! passport or travel document has
failed to· comply with a notice under sulJ-section ( 1)
requiring liim to deliver up the same.
If it is brought to the notice of the passport autho~
rity that a warrant or summons for the appearance ·
or a warrant for the aw~st, of the holder of the pass~
port 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 autho
rity 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
pub11c.
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 th~ 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,
th~ security of India, friendly relations of India with any foreign
country or in the interests of the general public
to furnish sucb a copy. ·section 11 provides for an appeal by the aggrieved person against any
order passed
by the passport authority
under several clauses men ...
tioned icy sub-section ( 1) of that section. It is also provided that ho
appeal shall lie against any order passed by the Central Government.
Section 11 ( 5) provided that in disposing of an app~a 1, the appellate
authority shall
follow such procedure as may be prescribed and that
no appeal
shall be disposed of un~ess the appellant has been given
'a reasonable opportunity of representing his case. Rue 14 of the Pass
port Rules, 1967 prescribes that the appellate authority
may call for
the records of the case from the authority
who passed the order
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MANEKA GANDHI V. UNION (Kaifamm, J.} 767
appealed against and aft~r giving the appellant a reasonable opportu~
nity of representing his case pass final orders. ·
To sum up under section 10(3) (c) if the passport aut~ority deems
it necessary so to do for reasons stC ed in the suh-&;:ctwn, he may
impound a passport. He is required
to record in writing_ a brief
state-:
ment of the reasons for making ~uch order and to furmsh 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 Governmt;:nt .the ag~ieved p~r
son has a right of appeal. The appellate authonty IS reqmred to gt~e
a reasonable opportunity to the aggrieved person of representing h1s
case.
Jt was submitted on behalf of the petitioner that on a reading of
section
10(3) observance of
rule"s 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 unsus
tainable.
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 pas·sed by the Central Government is denied the provisions will not
be procedure as established by law under Article 21 and the relevant
sections should be held· ultra vires of the powers of the legislature.
It was contended that the power conferred on the authority to im
pound a passport in the interests of general public is very vague and
in the absence of proper guidance
an order by the authority impound
ing the passport
"in the intere'sts 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 reason's given have annexus to
the interests of general public would depend upon the facts of each
case.
The p1ea that because of the vagueness of the words 'interests
of the
treneral public' in the order, the order itself is unsustainable,
cannot
be
accepted.
.. The .submission that in the context the rule of natural justice, that
1s,_ th~ nght to be heard has not been expr.essly or by necessary im
plication taken away deserves careful constderation. Under Section
10 ( 3) the passport authority is authorised to impound or revoke a
passpor~ on any of the g~ounds specified in clauses (a) to (h) of
sub-sectiOn ~3). Sub-section 3 (a) enables the authority to impound
a passport
If the
holde~ of the pa·ssport is . in wrongful possession
there?
f.. Under
su.b-sectiOn 3 (b) the 3:uthonty can impound a pass
port
1f 1t was obtamed by the suppression of material information or
on the basis of wrong information provided by the holder of the pass
port. Under
c~ause (d) ·a passport can be impounoed if the holder
had been conVIcted
by a Court of India for any offence involving
moral turpitude and sentenced
to imprisonment for not Jess than two
y~ars! T}nder clause (e) the passport can be impounded where:
B·
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A
B
c
D
E
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768
SUPREME COURT REPORTS [1978] 2 S·C·R·
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. ~lause (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 i! 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 de
parture
Jrom India of the holder of the pa·ssport has been made by
a court. It will be noticed that when action is contemplated under
any of the clauses (a), (b), (d), (e), (f) and (h), it is presumed
that the authority will give notice, for the passport authority cannot
be satisfied under sub-clause (a) that the holder is in wrongful
possession thereof
or under clause (b) that he obtained the passport
by suppression of material information·. Similarly under clause
(d)
whether a person has been convicted by
.a court in India for any
offence involving moral turpitude
and sentenced to imprisonment for
not less than two years,
can only be ascertained after hearing the
holder of the
passport Under clause (e) the fact whether proceedings
in respect-of an offence· alleged to have been commit~ed by the holder
of the passport are pending before a criminal court cn.n only be
determined after notice to him. Equally whether a condition of pass~
. port has been contravened under sub-clause (f) or whether he has
failed to comply with a notice under sub-section (
1) can be ascer
tained only after hearing the holder of the passport. Under clause
(h) also a hearing of the holder of the passport is presumed. Reading
clau'se
(c) in juxtaposition with other sub-clauses, it will
ha,ve to
determined wh~ther it was the intention of the legislature to depr.tve
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 Funda-
mental Rights. As held
by the
Supreme Court in Union of India v.
J. N. Sinha,C) that "Rules of natural justice are not embodied rules
nor can they be elevated to the position of Fundap1ental Rights.
Their aim is .... to secure justice or to prevent miscarriage of jus~ice.
These rules can operate only in areas not covered by any law valtdly
made. They
do not supplant the law but supplement it. If a statu-
tory provision
can be read consistently with the
principles of natural
justice, the courts should
do
so. But if a statutory provision either
specificaUy or by necessary implication excludes the .application of
any rules of natural justice then the court cannot ignore the mandate
of the legislature
or the statutory authority and read into the concern
ed provision the principles of natural
justice." So also the right to
be heard cannot be presumed when in the circumst~r:tces ~f the case
there is paramount need. for secrecy or when a dec1~1on .wtll have to
be taken in eme~ency or when promptness of achon 1s cal1ed for
H where delay would defeat the very purpose
or where it is expected
(1). [1971] 1
S.C.R. 791.
~
..
---
MANEKA GANDH£ v. UNION (Kailasam, !.) 769
that the person affected would take an obstructive attitude. To a
limited extent
it may be necessary te rovoke or to impound a passport
without notice
if there is real apprehension that the holder of the pass-
port 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 opportunlty to the holder of the passport to state his case before
a final order is passed. It cannot be disputed that the legislature has
not by express provision excluded the right to be heard. When the
passport authority takes action under section 10 ( 5) he is required
to record in writing a brief statement of reasons and furnish a copy
to the holder of the passport on demand unless he for sufficient rea-
sons 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 aappeal has to be disposed of after
given for ~ specified period ·the revocation or impounding during the
without hearing the aggrieved person. Further when a passport
is
given for a specified period the revocation or impounding during the
period when the passport
is valid can only be done for some valid
reason. There
is a difference between an authority revoking or
modi
fying an order already passed in favour of a person and initia]]y re
fusing to grant a licence.
In Purtabpur Co. v. Cane Commissioner, Bihar,(!) 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
Afjairs,(2) Lord Denning observed that "If his permit (alien) is re
voked 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
A
B
c
D
E
even in the case of a foreign alien who had no right to enter the
country. Wh~ 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 th.e normal presum-
1 F
ption is that the action will not be taken without .giving a opportunity
to the holder of the passport. Section 10 (3) in enumerating the several
grounds on which the passport authority may impound a passport bas
used the words like
'if the authority is satisfied',
"the authority deems
it necessary to do so." The Privy Council in Duravappah v.
Fernando(
3
) after referring to an earlier decision in Sugathadasa v.
layaslnghe(
4
) disag~eed '!i!h _flle ~ecision holding :'As a general rule
that words such as where Jt appears to .... ' or '1f it appears to the
satisfaction
of ....
' or 'if the .... considers it expedient that .... ' or
'if the .... is satisfied that .... ' standing by themselves without other
words or circumstances
of qualification, exclude a duty to
act judicial-
ly." · The Privy Council in disagreeing with this approach observed
(1) {1969] 2 S.C.R. 807.
{2) {196912 Cb. 149.
(3) fl967J 2 A. C. 337.
(4) [1958} S9 N.L.R. 451.
G
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770 SUPREME COURT REPORTS [1978] 2 S·C·R·
that these various formulae are introductory of the matter to be con
sidered and are given little guidance upon the qu~stion of audi alteraril
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(') where Byles, J. stated
"A long course of decision, beginning with Dr. Bentley's case, and
ending with some very recent cases, establish,
that although there are
no positive words in the statute requiring that the party shall be heard,
yet
the justice of the common law will supply the omission of the
legislature." In the circumstances, there is no material for coming to
the conclusion that the right to be heard has been taken away expre·ssly
or by necessary implication by the statute.
I may
at this stage refer to the stand taken by the learned Attor
ney-General
on this question. According to him
"on a true construc
tion, the rule
audi
altermn partem is not excluded in .xdinary cases
and that the correct position is laid down by the Bombay High Court
in the case of Minoo Maneckshaw v. Union of lndia.C) The view
taken
by Tulzapurkar,, J. is that the ru1c of
mtdi alteram partem is
not excluded in making an order under sec. 1 0( 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, C) wherein it was
·stated 'it must, however, be borne in mind th'\-t there may be special
circumstances which would satisfy a Governor, acting in good faith,
to
take action even if he did not give an oppotunity to the person
affected to make
any relevant statement, or to correct or controvert
any relevant statement brought forward
to his
prejudice." This ex
traordinary 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 bat 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 sati'sfied that the petitioner's claim that she has a
right
to be heard before a final order under s.
10(3) (c) is passed is
made out.
In this view the question as to whether sec.
10(3) (c) is
ultra vires
or not does not arise.
It was submitted on behalf of the state that an order under subclause 10 (3) (c) i's on the subjective satisfaction of the passport autho
rity and that as the decision is purely administrative in character
it
cannot be questioned
in a court of law except on very limited grounds.
Thou~h the courts had taken the view that the principle of natural
justice is inapplicab1e to administrative orders,_ there is a chan~e in
the judicial opinion subsequently. The frontier between judieial or
(1) 1723. 1 Str. 55i ; Mod. Rep. 148.
(2) 76 B.L.R. (1974) 788.
(3) {1918} A. C 557
•
MANEKA GANDHI V. UNION (Kai/a.mm_. f.) 7 71
quasi judicial determination on the one ha.1d and an executive or
-" administrative determination on the other has become blurred. The
rigid view tha~ 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 con-
; venience 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
t extended to the extreme so as to affect adversely the administrative
! efficiency. In this connection . it is useful to quote the oft-repeated
• observations of Lord Justice Tucker in Russell v. Duke of NorfolkC)
/ "The requirements of natural justice must depend on the circumstances
_-./ of the case, the nature of the inquiry, the rules under which the
tribunal is acting, the subject matter that is being dealt with, and so
forth
.... but, whatever standard is adopted, one essential is that the
person concerned should have a reasonable opportunity
of presenting
his
case." In R. v. Gaming Board Ex .. p. Benaim} (2) Lord Denning
held that the view
that the principle of natural justice applied only to
judicial proceedings
and not to administrative
-proceedings has been
over-ru1ed in
Ridge v. Baldwin.(
3
)
The guidance that was
. given
to the Gaming Board was that they should follow
the principles laid
down
in the case of immigrants namely that they have no right to
come in, but they have
·a right to be heard. The Court held in con
struing 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 appli
cant an opportunity of satisfying them of the matter specified in the
section. They must let him know what their impressions are so that
he
can
disabuse them. The reference to the cases of immigrants is
to the decisions of Chief Justice Parker
in Re H. K. (An infant)
C).
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 obser
vations apply to the present case and the plea
of the petitioner that
the authority should act fairly and
that they
must let her ]\;now what
their impressions
are so that, if possible, she can disabuse them, is
sound.
In American law also the decisions regarding the scope
of· judicial
review is
not uniform.
So far as· _constitutional rights are involved due
process of law imports a judicial review of the action
of administrative
A
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F
or executive officers. This
propositron is undisputed so far as the
questions of law are concerned but the extent to which the. Court
should go and
will go in reviewing determinations of fact has been
a G
highly controversial issue .
(Constitution
of the United
State's of America, P. 1152, 1973 Ed.)
On a consideration of various authorities it is clear that where the
decision
of the
authority entails civil consequence·~ and the pet!tion is
(t) {l949]1Al1E.R.109,118. H
(2) 11970] 2 Q.B. 417.
(3) [19641 A.C. 40
(4) [1967] 2 Q.B.617, at 630.
A
B
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772
SUPREME COURT REPORTS [1978] 2 s.c.lt.
prejudicially affected he must be given an opportunity to be heard and
present his case. This Court in Barium Chemicals Ltd. v. Company
Law Buard(~) and Rohtas Industries Ltd. v. S. D. Agrawal,C)
has he~d that a limited judicial scrutiny of the impugned decision on•
the pomt of rational and reasonable nexus was open to a court of
law.
An order
passed by an authority based on subjective satisfac
tion is liable
to judicial scrutiny to a limited extent has
been laid down
m U.P. Electric Co. v. State of U.P.(
3
) wherein construing the pro
visions of s. 3(2) (e) of the Indian Electrici~y Act 9 of 1910 a~
amended by the U.P. Act 30 of 1961, where the language us_ed is
similar to s. 10(3)(c) of the Passport Act, this Court held that when
the Government exercises its power
on the ground that it
"deem's
such supply necessary in public interest" if challenged, the Government
must make
out that exercise of the power was ne.:essary in the public
interest.
The Court is not intended to sit in appeal over the satisfac
tion of the Government.
If there is prima facie evidence on which
a reasonable body of persons may hold that it is in the public interest
to supply energy
to consumers the requirements of the statute are
fulfilled. "In our judgment, the satisfaction of the Government that
the supply is necessary in the public interest is in appropriate cases not
excluded from judicial review." The decisions cited oare clear autho
rity for
the proposition that the order passed under s.
10(3)(c) is
subject to a limited judicial scrutiny. An order under s. 10(3)(c)
though it is held to be. an administrative order passed on the subjective
satisfaction
of the author1ty cannot escape
judiCial scrutiny. The
Attorney General fairly conceded thoat: an order under s. 10(3) (c) is
subject to
a
judici'al scrutiny and that it can be looked into by the
court to the limited extent of satisfying itself whether the. order passed
has a rational and reasonable nexus to the interests of the general
public.
It
was next contended on behalf of the petitioner that the provi
sions of s. 10{5) of the Act which empowers the Pa~sport at1thority
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 thatl 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
unsus
minable in law. It waS! submitted that alongwith the right to refuse
to furnish a copy of the order made by the Government, as a right of
appeal is denied against anr order made by the Central Govt: the
provisions should
be regarded as total denial or procedure and
arbitrary,
In view of the construction which is placed on s. 10 ( 3) (c) that the
holder of the passport is entitled to be heard before the passport
authority deems
it necessary to impound a passport,
i~ cannot be said
tlrat there is total denial of procedure. The auhority under s. 10(5)
is bound to record in writing a brief statement of the reasons for mak
ing an ·order and furnish to the holder of the passport or travel docu-
(1) [1966] Supp. S.C.R. 311.
(2) [1969] 3 S.C.R.t08
(3) [1969] 3 S.C.R. 865.
I
..
MANEKA GANDHI v. UNlO:-i (Kai!a:w.Jm
1
J.)
773
rocnt on demand a copy of the same unless in any case th
· h · · f th · · 1 · · ' , e passport
aut ~r:1ty JS o .c opt~Ion t mt ~t will not ~ in the interests of the
sovcre.gnty .and
.mtcgnty of
}ndi'a, the sccunty of India, friendly rcla'
tion .of Indta .w•th any fore1gn country or in the interests of general
public to furn1sh s~ch a copy. The grounds on whkh the authority
may refuse .to furn:s~1 the reasons are the same as provided in s. 10
(3){c) for.•mpoundmg a passport but £he two powers arc exercisable
in totally d;trcrent. contexts. Under sec. 10(3), the question that h-as
~o be cons1dcrcd 1~ whether ~he p~ssport has to be impounded in the
mterests of soveretgnty and
mtcgnty of India etc. or in the
interests
of general public. Jn passing an order under sec. 10(5) it has to be
~on~idered w~cther !n the interests of the s?vcrcignty and integrity of
Ind1a etc. or m the mtercsts of general pubhc, furnic;hin~ of a copy of
the reason~ for the order, should be declined. Thouoh the same
grounds arc mentioned for impounding oa pa5sport as o wcU as for
refusing to furnish the reasons for making an order, it wouid not mean
that when an order under s. 10(3)(c) is passed it would automatically •
apply to s. 10(5) and for the same reason the authority can d~o.'Clinc
to furnish the reasons for the order. S. 10(5) says that the authority
shall furni!'h to the holder of the passport on demand. a copy unless itr
.any case the authority is of opinion that it will not be in the interests
of
sovereignty and
integrity of India etc. The expression "unless .in
:any case" would indicate that it is not in every case that the authonty
·can decline to furnish reasons for the order. There may be some
-cases, and I feel that it can be only in very rar~ cases, that a copy
~ontaining the reasons for making such order can be rcfus~d. TI1ough
rare there may be some cases in which it would bo expcdtcnt. for the
authority to d!!cline to furnish a copy of the reasons for makmg such
order. But that could only be an exception is indicated from t~c fact
that the aggrieved person h:1s a right of appeal under s. 1 1 whtch l!as
lo be decided after oiving a n:asonabtc opportunity of ~cpres~ntmg
0" • d' ·1 b u v •n wtthout
his case. A reasonable opportunity cannot or man Y e . .} t.:
-disclosing to that person the reasons for the ord~r. ~ thobe• r~~
~ases in which a copy for the reasons of the o~dcr lS dccl!.n~~ 'J f
11
-
passpC'rt authority and is not furnished dunng thl.! h\,;.mng
1
o t e
. . . · · . ·r. t. n for the courts to 1ave a
apnPal Jt would furm:>h suOJcrent JUSt! Jca
10
· • • lf h 1 •t
,..... • h d ~ ,..
1d satisfy tts~ w ct 1cr 1
clc:;c k,ok into the ·reasons for t e or t.:r ~·
1
• • •• •
b B
I 1 unable to say that a pro L~ton
as been properly made. ut an . f n· ·h r•asons for mak-
~hkh empowers the authority to d~chnc
10 tr th'~e ~~~L~tature. The
1ng the order is not within ~~c comp~tcn~~n~e ·u$tificatioJl, submitted
learned counsel for the p~tlttOncr,
1
wt~ · t nnt./ no appeal is provided
that. if no reasons nrc furmshcd ~y t lC ld
0
~;tuatly amount to dcnia~ of
ag"IOst the order of the Govt. lt wou
1
. ted und~r Art 21 of the
procedure cstabli~hcd by law as
1 con!:m~~~idcrablc
force in this sub·
·~n~titution of India. Though t
1
~~c
1
~.c fo~ two reasons. Firstly, the
mtssJOn. I om unable to accept thts pl :.\
0
th .. ltol•Jcr of the passport
Govt. is bound to .sivc n~ opport.Uilllft
1
e:q. 1~ct the ca~c in which the
before finally rcvoktng or unpoundmg f · making such an order would
authority decline~ to furnish reason.~ b~uld be borne in mind that
be eJttremcly rare. ln such cases
1 5
~
1
should be presumed that it
wh,~n the Govt. itself pa-.scs an ordc~ ; scrutiny. lf an order is passed
'WtJuld have m;ule the order after care u
lf-JJI~ SC"It7R
---.. -... ------·,.._..--
A
B
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E
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!. ;
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J !
l!
' ·,
'
! '
'
I
'
·'
'
r
.A
B
"17"4
· SUPREME COURT REPORTS . (1978j 2 S.C-R.
b the passport authority, a~ appe~l is provided. If the Gov~. passes
Y der 1
~-.0
uoh no appeal IS provided for, but as the power lS .vested
an
or ,
·~ e · · t ft · 1
., tlle highest authority the section IS no· uncons t ut10na -(Chinta
ringam and Ors. v: G_o~ermnen_t of India & Ors.(
1
)
for·
the order
would be subject to JUdtcJal sc.rutmy by the High <=:ourt a!ld t.he S~preme
Court. I feel that in th~ ctrcumstances th~re Js no JUStification for
holding that s.
10(5) of the
Ac~ is ultra vzres o~ the powers of the
legislature.
We have
take~ note of !he fact that .lf! the present case
there
is no reason in dcclimng to furmsh to the
petitiOner the statem..:nt
of reasons for impounding the passport. but such a lapse by the autho
rity \VOU]d not make SCC. 10(5) ultra Vires Of the powers of the Jcgis
}ature.
C
It was next
contended that in the present case the passport was im-
pounded under s. 1 0 ( 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. :Maneb
Gandhi shouJd have an opportunity to present her views before the
Commission of fnquiry and according to a report received there is
likelihood of Smt. Maneka Gandhi leaving India. It was submitted
:.o that impounding of. the passport on the ground ~latctl above is unjusti
fied. Referring to s. 10(3) (h) where it is provided that when it is
brought to the notice of the passport authority that a warrant or sum
mons 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
·E h
any sue court and the passport authority is satisfied ·that a warrant
or summons lm.s been so issued or an order ha<t been so made. im
pound the passport.
For application of
this clause there must be a
~arrant or summons from t~e court or an order by the Court prohib~t
lng the departure from Ind1a. lt was submitted that it is not certam
whether t~e Co"'!mission would require the presence or" the petitioner
·. F at an .and 1f rcqu1rcd when her presence will be necessary. There ~1d
ht!CJ~ -!lO summon~ . or any requisition from the Commission of Inqutry
. reqm:mg the petitioner's pr~scncc and in such circumstances it was
. ~~?rruued that t~e. order is without any justification. 'A notification
tssued by the Mm1stry of External Affairs lmd~r s. 22(a) of the P~ss
po~ts Act on 14-:4-76 ~a.~ hrought to our not ice. By thnt nolificanon
the Central ~ovt. cons1dered that it i~ necessary in the public interest
G to. exempt cllJzens or India agajnst whom procceuirh!-; in rcsrcct of an
UITt<~C~ alleged to have been committed by them nre pending before
~ocr~~
1
w.a1 court. i!l JoJi~l and if they produce onkr~ from the C~urt
· tu.:crn~:d r:e~mltllng th~.-·m to depart from India from the operat1ons
of bt.he provJsron~ of clause (f) of sub-section (2) of s 6 of the Act
~t:
1
j;e~~rto th~ .conditio!"! tha.t the passport will be issued 'to such cit~en
·. Y . ·'fi a r>enod ~pecJfied m such order of the Court aml if no pertod
U ~~;fb' ltd the das~portshall be issued for a p~riod of six months and
___ -·· _ e --~~-"~~<: for a further pcrk'<l. of six months if the order of tile
(I) llf
17l.l 2 s.c.R. sn at r.
8
-,.
6
.
\___
. ·. . .
. .
j
l
l
.1
. . ~~
--~ .,
•,.•
j
~
' ' . '
:..
(
·-
MANEKA GANDHIV. UNION (Kailasam, J.) 775
court is not cancelled or modified. The citizen is also required to A
give an undertaking to the passport authority that he shall, if required
by the court concerned,. appear before if at any time during the con
tinuance in force of the passport so issued. U 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
loost should be given to
a person who may be required to give evidence before a_ Commission B
of Inquiry. It is unnecessary for me to go into the question as to
whether in the circumstances the impounding of the passport is justi-
fied
or not for the learned Attorney General submitted that the
im
pounding was for the purpose of preventing the petitioner from le-av-
ing· the country and that a final decision as to whether the passport
wiH 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 :-
c
"1. The Government is agreeable to considering any repre
sentation that may be made by the petitioner in res
pect 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
l8th August,
1977 of Shri Ghosh except those mentioned
in para
2(xi).
. .
D
2. The representation of the petitioner will be dealt with
expeditiously in accordance with law.
E
3. In the event of the decision of impounding the
pass
iDR; having confirmed, it is clarified that the duration
()f the impounding will not exceed a period of six
months from the date
of the decision that may be
taken on the petitioner's representati:on.
4. Pending the consideration of the petitioner's represen
tation and until the decision of the Government
of
India thereon, the petitioner's passport shall remain
in custody
of this Honourable Court.
F
5. This will be without prejudice to the power of the
Government
of India to take such action as it may be G
advised in accordance
with the provi~ions of the
Passpon Act
in respect of the petitioner's
passport."
In view of the statement that the petitioner may make a repres ~ntation
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 faken on the petitioner's repre
sentation, it is not necessary for ms to go into the merits of the case
any further. The Attorney General assured
us that all the
groundS
H
A
B
c
776
SUPREME COURT REPORTS (1978] 2 S.C.R.
urged before us by the petiNoner and the grounds that may be urged
bdore the authority will be properly considered by the authority and
appropriate orders passed.
In the result, I hold that the petitioner is not enti!led to any o[
the fundamental rights enumerated in Article 19 of the Constitution
and that the Passport Act complies with the requirements of Art. 21
of the Constitution and is in accordance with the procedure established
by law. I construe section 10(3) (c) as providing a right to the
holder
of the passport
tg be heard before the passport authority and
tlrat any order passed under section 10(3) is subject to a limited
judicial scrutiny by the High Court and the Supreme Court.
In view of the statement made by the learned Attorney General to
which reference has already been made in judgment, I do not think it
necessary to formally interfere with the impugned order. I accord
ingly dispose
of the Writ
Petition without .passing any formal order.
There will be no order as to costs.
ORDER
Having regard to the majority view, and, in view of the statement
D 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
oany formal order. The passport 'Nill
remain in the custody of the Registrar of this Court until further
orders. There will be no order as to costs.
P.H.P.
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