Judges: M. Hameedullah Beg, C.J., N.L. Untwalia, P.N. Bhagwati, P.S. Kailasam, S. Murtaza Fazal Ali, V.R. Krishna Iyer and Y.V. Chandrachud, JJ.

Facts:

In the present case, Mrs. Maneka Gandhi (petitioner) was issued a passport under the Passport Act of 1967. On 2nd July 1977, a notice was issued to the Petitioner by the Regional Passport Officer to surrender the passport. When the Petitioner tried to ask for the reasons, the Government of Indian has declined to her request stating that it is in the interest of the general public. Aggrieved by this the Petitioner approached the Hon'ble Supreme Court under Article 32 of the Constitution of Indian. Her main ground in the petition was that the confiscation of Passport by the Passport Authority violates her fundamental right under Articles 14, 19, and 21 of the Constitution.

Issues:

(i) Whether the provisions under Articles 21, 14 and 19 of Constitution of India are connected with each other or are they mutually exclusive?

(ii) Whether the procedure established by law must be tested for reasonability which in this case was the procedure laid down by the Passport Act of 1967?

(iii) Whether the right to travel outside the country is a part of Article 21 of Constitution?

(iv) What is the scope of the phrase "procedure defined by law"?

(v) Whether a legislative law that snatches away the right to life is reasonable?

(vi) Whether the challenged order of the Regional Passport officer in violation of natural justice principles.

(vii) Whether Section 10 (3) of the Passport Act, 1967 is valid or not?

Contentions:

Petitioner

(i) The 'Right to Travel Abroad' is a derivative of the right provided under 'personal liberty' and no citizen can be deprived of this right except according to the procedure prescribed by law. Also, the Passports Act, 1967 does not prescribe any procedure for confiscating or revoking or impounding a passport of its holder. Hence, it is unreasonable and arbitrary.

(ii) The Central Government has acted in violation of Article 21 of the Constitution by not giving an opportunity to the petitioner to be heard. Hence, the true interpretation of Article 21 of the Constitution, as well as its nature and protection, are required to be laid down.

Any procedure established by law is required to be free of arbitrariness and must comply with the "principles of natural justice".

(iii) To upkeep the intention of the Constituent Assembly and to give effect to the spirit of our constitution, Fundamental Rights should be read in consonance with each other and in this case, Articles 14, 19 and 21 of the Constitution must be read together.

(iv) To have a well-ordered and civilized society, the freedom guaranteed to its citizens must be in regulated form and therefore, reasonable restrictions were provided by the constitutional assembly from clauses (2) to (6) in Article 19 of the Constitution. But, the laid restrictions do not provide any ground to be executed in this case.

(v) Article 22 of the Constitution confers protection against arrest and detention in certain cases. In this case, the government by confiscating the passport of the petitioner without providing her any reasons for doing so has illegally detained her within the country.

Respondents

(i) 'Right to Travel Abroad' was never covered under any clauses of Article 19(1) and hence, Article 19 of the Constitution is independent of proving the reasonableness of the actions taken by the Central Government.

(ii) The Passport Law was not made to blow away the Fundamental Rights in any manner. Also, the Government should not be compelled to state its grounds for seizing or impounding someone's passport for the public good and national safety. Therefore, the law should not be struck down even if it overflowed Article 19.

(iii) The petitioner was required to appear before a committee for an inquiry and hence, her passport was impounded.

(iv) The word law under Article 21 of the Constitution cannot be comprehended in the light of fundamental rules of natural justice.

(v) Principles of natural justice are vague and ambiguous. Therefore, the constitution should not refer to such vague and ambiguous provisions as a part of it.

(vi) Article 21 of the Constitution of Constitution is very wide and it also contains in itself, the provisions of Articles 14 & 19 of Constitution. However, any law can only be termed unconstitutional to Article 21 of Constitution when it directly infringes Articles 14 & 19 of Constitution. Hence, the passport law is not unconstitutional.

(vii) Article 21 of Constitution in its language contains "procedure established by law" & such procedure need not pass the test of reasonability.

Law:

Passports Act, 1967 - Section 10 - Explains variation, impounding, and revocation of passports and travel documents wherein the authority can seize the passport for the reasons provided.

Constitution of India - Article 14 - Explains right to equality and equal protection of law within the territory of India.

Constitution of India - Article 19 - Provides freedom of speech which is the right to express one's opinion freely without any fear through oral/written/electronic/broadcasting/press. Freedom of expression includes Freedom of the Press. It covers blogs and websites too.

Constitution of India - Article 21 - No person shall be deprived of his life or personal liberty except according to a procedure established by law.

Principle of Natural Justice: It means no one shall be condemned unheard i.e. there shall be fairness on the part of the deciding authority. According to the principle, reasonable opportunity must be given to a person before taking any action against him.

Audi Alteram Partem: The literal meaning of this rule is that both parties should be given fair chances to present themselves in the court of law and a fair trial should be conducted.

Analysis:

Justice P.N. BHAGWATI (Majority)

Meaning and content of personal liberty in Article 21

(i) The expression 'personal liberty' in Article 21 of Constitution is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19 of Constitution. It has been held by this Court in Satwant Singh's case that 'personal liberty' within the meaning of Article 21 includes within its ambit the right to go abroad and consequently, no person can be deprived of this right except according to procedure prescribed by law.

Inter-relationship between Articles 14, 19 and 21 of the Constitution

(i) Article 21 of the Constitution does not exclude Article 19 of the Constitution and so, even if, there is a law prescribing a procedure for depriving a person of 'personal liberty' and there is consequently no infringement of the fundamental right conferred by Article 21 of the Constitution, such law, in so far as it abridges or takes away any fundamental right under Article 19 of the Constitution would have to meet the challenge of that article.

Nature and requirement of the procedure under Article 21 of the Constitution

(i) Moreover, Article 14 of the Constitution strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness, pervades Article 14 of the Constitution like a brooding omnipresence and the procedure contemplated by Article 21 of the Constitution must answer the best of reasonableness in order to be in conformity with Article 14 of the Constitution. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 of the Constitution would not be satisfied.

How far natural justice is essential element of procedure established by law

(i) The soul of natural justice is 'fair play in action' and that is why it has received the widest recognition, throughout the democratic world. The test of applicability of the doctrine of natural justice is that whether fairness in action demand that an opportunity to be "heard should be given to the person affected?

(ii) Now, if this be the test of applicability of the doctrine of natural justice, there can be no distinction between a quasi-judicial function and an administrative function for this purpose. The aim of both administrative inquiry as well as quasi-judicial inquiry is to arrive at a just decision and if a-rule of natural justice is calculated to secure justice, or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both.

(iii) Further, the doctrine of natural justice consists principally of two rules, namely, nemo debt esse judex propria cause : no one shall be a judge in his own cause, and audi alteram partem : no decision shall be given against a party without affording him a reasonable hearing. In present case the second rule is relevant.

(iv) The audi alteram partem rule is intended to inject justice into the law and it cannot be applied to defeat the ends of justice, or to make the law 'lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation'. Since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism,

(v) The audi alteram partem rule would, by the experiential test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands. But at the same time it must be remembered that this is a rule of vital importance in the field of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands.

(vi) Thus, in view of above rule, the Passport Authority may proceed to impound the passport without giving any prior opportunity to the person concerned to be heard, but as soon as the order impounding the passport is made, and opportunity of hearing, remedial in aim, should be given to him so that he may present his case and controvert that of the Passport Authority and point out why his passport should not be impounded and the order impounding it recalled. This should not only be possible but also quite appropriate, because the reasons for impounding the passport are required to be supplied by the Passport Authority after the making of the order and the person affected would, therefore, be in a position to make a representation setting forth his case and plead for setting aside the action impounding his passport. A fair opportunity of being heard following immediately upon the order impounding the passport would satisfy the mandate of natural justice and a provision requiring giving of such opportunity to the person concerned can and should be read by implication in the Passports Act, 1967. If such a provision were held to' be incorporated in the Passports- Act, 1967 by necessary implication, it must be, the procedure prescribed by the Act for impounding a passport would be right, fair and just and it would not suffer from the vice of arbitrariness or unreasonableness. Therefore, the procedure 'established' by the Passports Act, 1967 for impounding a passport is in conformity with the requirement of Article 21 and does not fall foul of that article.

Is Section 10(3)(c) violative of Article 14 of the Constitution

(i) Sufficient guidelines are provided by the words "in the interests of the general public" and the power conferred on the Passport Authority to impound a passport cannot be said to be unguided or unfettered. Moreover, it must be remembered that the exercise of this power is not made dependent on the subjective opinion of the Passport Authority as regards the necessity of exercising it on one or more of the grounds stated in the section, but the Passport Authority is required to record in writing a brief statement of reasons for impounding the passport and, save in certain exceptional circumstances, to supply a copy of such statement to the person affected, so that the person concerned can challenge the decision of the Passport Authority in appeal and the appellate authority can examine whether the reasons given by the Passport Authority are correct, and if so, whether" they justify the making of the order impounding the passport. It is true that when the order impounding a passport is made by the Central Government, there is no appeal against it, but it must be remembered that in such a case the power is exercised by the Central Government itself and it can safely be assumed that the Central Government will exercise the power in a reasonable and responsible manner. When power is vested in a high authority like the Central Government, abuse of power cannot be lightly assumed. And in any event, if there is abuse of power, the arms of the court are long enough to reach it and to strike it down. The power conferred on the Passport Authority to impound a passport under Section 10(3)(c) cannot, therefore, be regarded as discriminatory and it does not fall foul of Article 14 of the Constitution. But every exercise of such power has to be tested in order to determine whether it is arbitrary or within the guidelines provided in Section 10(3)(c).

Is Freedom of speech and expression confined to the Territory of India?

(i) It is obvious, that there are no geographical limitations to freedom of speech and expression guaranteed under Article 19(1)(a) and this freedom is exercisable not only in India but also outside and if State action sets up barriers to its citizen's freedom of expression in any country in the world, it would violate Article 19(1)(a) as much as if it inhibited such expression within the country. This conclusion would on a parity of reasoning apply equally in relation to the fundamental right to practice any profession or to carry any occupation, trade or business guaranteed under Article 19(1)(g) of the Constitution.

Is the right to go abroad covered by Article 19(1)(a) or (g) of the Constitution?

(i) The right to go abroad is clearly not a guaranteed right under any clause of Article 19(1) of the Constitution and Section 10(3)(c) which authorizes 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) of the Constitution, as its direct and inevitable impact is on the right to go abroad and not on the right of free speech and expression or the right to carry on trade, business profession or calling. But that does not mean that an order made under Section 10(3)(c) may not violate Article 19(1)(a) or (g) of the Constitution.

(ii) Thus, there may be an occasion to point out that even where a statutory provision empowering an authority to take action is constitutionally valid, action taken under it may offend a fundamental right and in that event, though the statutory provision is valid, the action may be void. Therefore, even though Section 10(3)(c) is valid, the question would always remain whether an order made under it is invalid as contravening a fundamental right. The direct and inevitable effect of an order impounding a passport may, in a given case, be to abridge or take away freedom of speech and expression or the right to carry on a profession and where such is the case, the order would be invalid, unless saved by Article 19(2) of the Constitution or Article 19(6) of the Constitution.

J.M. HAMEEDULLAH BEG (CJ) (Concurring opinion) Validity of Section 10(3) of Act

(i) In order to apply the tests contained in Articles 14 and 19 of the Constitution, we have to consider the objects for which the exercise of inherent rights recognized by Article 21 of the Constitution are restricted as well as the procedure by which these restrictions are sought to be imposed.

(ii) Further, 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. Therefore, a discretion left to the authority to impound a passport in public interest cannot invalidate the law itself. One 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. It has to be necessarily left to executive discretion to decide whether, on the facts and circumstances of a particular case, public interest will or will not be served by a particular order to be passed under a valid law subject, as it always is to judicial supervision.

(iii) There are inherent or natural human rights of the individual recognised by and embodied in our Constitution. Their actual exercise, however, is regulated and conditioned largely by statutory law. Persons upon whom these basic rights are conferred can exercise them so long as there is-no justifiable reason under the law enabling deprivations or restrictions of such rights. But, once the valid reason is found to be there and the deprivation or restriction takes place for that valid reason in a procedurally valid manner, the action which results in a deprivation or restriction becomes unassailable.

(iv) As per Section 10(3) of the Act, each orders which could be passed under Section 10, Sub-section (3)(a) to (h) requires a "satisfaction" by the Passport Authority on certain objective conditions which must exist in a case before it passes an order to impound a passport or a travel document. Impounding or revocation placed side by side on the same footing in the provision. Thus, orders under Section 10(3) of the Passports Act must be based upon some material even if that material consists, in some cases, of reasonable suspicion arising from certain credible assertions made by reliable individuals. It may be that, in an emergent situation, the impounding of a passport may become necessary without even giving an opportunity to be heard against such a step, but, ordinarily, no passport could be reasonably either impounded or revoked without giving a prior opportunity to its holder to show cause against the proposed action. It is well established that even where there is no, specific provision in a statute or rules for showing cause against action proposed to be taken against an individual, which affects the rights off 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. An order impounding a passport must be made quasi-judicially.

Justice Y.V. CHANDRACHUD (concurring)

(i) The State can undoubtedly impose reasonable restrictions on fundamental freedoms under Clauses (2) to (6) of Article 19 and those restrictions, generally, have a territorial operation. But the ambit of a freedom cannot be measured by the right of a State to pass laws, imposing restrictions on that freedom which, in the generality of-cases, have a geographical limitation.

(ii) Furthermore, Article 19(1) (a) guarantees to Indian citizens-the right to freedom of speech and expression. It does not delimit that right in any manner and there is no reason, arising either out of interpretational dogmas or pragmatic considerations, why the courts should strain the language of the Article to cut down the amplitude of that right. The plain meaning of the clause guaranteeing free speech and expression is that Indian citizens are entitled to exercise that right wherever they choose, regardless of geographical considerations, subject of course to the operation of any existing law or the power of the State to make a law imposing reasonable restrictions in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence, as provided in Article 19(2).

(iii) Thus, even though the right to go abroad is not included in the right contained in Article 19(1) (a), if an order made under Section 10(3) (c) of the Act does in fact violate the right of free speech and expression, such an order could be struck down as unconstitutional. It is well-settled that a statute may pass the test of constitutionality and yet an order passed under it may be unconstitutional.

Justice V.R. KRISHNA IYER (concurring)

(i) To frustrate Article 21 of the Constitution by relying on any formal adjectival statute, however, flimsy or fantastic its provisions be, is to rob what the Constitution treasures. Procedure which ideals with the modalities of regulating, restricting or even rejecting a fundamental right falling within, Article 21 of the Constitution has to be fair, not foolish, carefully designed to effectuate, not to' subvert, the substantive right itself. Thus understood, 'procedure' must rule out anything arbitrary, freakish or bizarre. Procedural safeguards are the indispensable essence of liberty. In fact, the history of personal liberty is large the history of procedural safeguards and right to a heating has a human-right ring.

(ii) Moreover, to sum up, 'procedure in Article 21 of the Constitution means fair, not formal procedure. 'Law' is reasonable law, not any enacted piece. As Article 22 of the Constitution specifically spells out the procedural safeguards for preventive and punitive detention, a law providing for such detentions should conform to Article 22 of the Constitution. It has been rightly pointed out that for other rights forming part of personal liberty, the procedural safeguards enshrined in Article 21 of the Constitution are available. Otherwise, as the procedural safeguards contained in Article 22 of the Constitution will be available only in cases of preventive and punitive detention, the right to life, more fundamental than any other forming part of personal liberty and paramount to the happiness, dignity and worth of the individual, will not be entitled to any procedural safeguard save such as a legislature's mood chooses.

(iii) Thus, while dealing with Article 19 of the Constitution vis a vis freedom to travel abroad, we have to remember one spinal indicator. True, high constitutional policy has harmonized individual freedoms with holistic community good by inscribing exceptions to Article 19(1) in Article 19(2) to (6). Even so, what is fundamental is the freedom, not the exception. More importantly, restraints are permissible only to the extent they have nexus with the approved object.

Justice P.S. KAILASAM (Dissenting)

(i) The rights conferred under Article 19 of the Constitution are Fundamental Rights and Articles 32 and 226 of the Constitution provide that these rights are guaranteed and can be enforced by the aggrieved person by approaching the Supreme Court or the High Courts. Admittedly, the rights enumerated in Articles 19(1)(a), (b), (c), (f) and (g) cannot be enforced by the State and in the circumstances there is a presumption that the Constitution makers would have intended to guarantee any right which the State cannot enforce and would have made a provision guaranteeing the rights and securing them by recourse to the Supreme Court and the High Courts.

(ii) The law made under Article 19(2) to (6), impose restrictions on the exercise of right of freedom of speech and expression, to assemble peaceably without arms etc. The restrictions thus imposed, normally would apply only within the territory of India unless the legislation expressly or by necessary implication provides for extra-territorial operation. In the Penal Code, under Sections 3 and 4, the Act is made specifically applicable to crimes that are committed outside India by citizen of India. Neither in Article 19 of the Constitution nor in any of the enactments restricting the rights under Article 19(2) of the Constitution is there any provision expressly or by necessary implication providing for extra-territorial application. A citizen cannot enforce his Fundamental Rights outside the territory of India even if it is taken that such rights are available outside the country.

(iii) Further, the passport Act provides for issue of passports and travel documents for regulating the departure from India of citizens of India and other persons. If the provisions comply with the requirements of Article 21 of the Constitution, that is, if they comply with the procedure established by law the validity of the Act cannot be challenged. If incidentally the Act infringes on the rights of a citizen under Article 19(1) of the Constitution cannot be found to be invalid. The pith and substance rule will have to be applied and unless the rights are directly affected, the challenge will fail. If it is meant as being applicable in every case however remote it may be where the citizen's rights under Article 19(1) of the Constitution are affected, punitive detention will not be valid. Thus, the validity of the Passport Act will have to be examined on the basis whether it directly and immediately infringes on any of the fundamental right of the petitioner. If a passport is refused according to procedure established by law, the plea that his other fundamental rights are denied cannot be raised if they are not directly infringed.

(iv) Further, under Section 10(3)(c) if the passport authority deems it necessary so to do for reasons stated in the sub-section, he may impound a passport. He is required to record in writing a brief statement of the reasons for making such order and to furnish a copy of the order on demand unless in any case he thinks for reasons mentioned in Sub-section (5) that a copy should not be furnished. Except against an order passed by the Central Government the aggrieved person has a right of appeal. The appellate authority is required to give a reasonable opportunity to the aggrieve person of representing his case. Thus, if a statutory provision either specifically or by necessary implication excludes the application of any rules of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice." So also the right to be heard cannot be presumed when in the circumstances of the case, there is paramount need for secrecy or when a decision will have to be taken in emergency or when promptness of action is called for where delay would" defeat the very purpose or where it is expected that the person affected would take an obstructive attitude. To a limited extent it may be necessary to revoke or to impound a passport without notice if there is real apprehension that the holder of the passport may leave the country if he becomes aware of any intention on the part of the passport authority or the Government to revoke or impound the passport. But that by itself would not justify denial of an opportunity to the holder of the passport to state his case before a final order is passed.

CONCLUSION:

(i) It cannot be said that a good enough reason has been shown to exist for impounding the passport of the petitioner. Furthermore, the petitioner has not given the opportunity to prove her case. Therefore, the order has been quashed and opposite parties has been directed to give an opportunity to the petitioner to show cause against any proposed action on such grounds as may be available.

(ii) Fundamental rights provided in the Constitution are neither distinctive in nature nor they are mutually exclusive. Therefore, any law under any statute which deprives the personal liberty of any person must stand the test of one or more of the fundamental rights provided under Art 19 of the Constitution. Thus, reasonableness shall be provided in the procedure and while referring to Article 14 ex-hypothesis should also be tested.

(iii) Under Article 21 of the Constitution it has been provided a procedure that is established by law and not due process which conveys that procedures should be those that are not arbitrary and should not be irrational. The act of the authorities clearly violates one of the basic principles of natural justice known as "audi alteram partem" and therefore it is unfair and unjust on the part of the authorities that without giving any opportunity to the petitioner they have taken such action.

(iv) Therefore, even executive authorities when taking administrative action which involves any deprivations of or restrictions on inherent fundamental rights of citizens must take care to see that justice is not only done But manifestly appears to be done. They have a duty to proceed in a way that is free from even the appearance of arbitrariness or unreasonableness or unfairness. They have to act in a manner that is patently impartial and meets the requirements of natural justice.

(v) Thus, the impugned order impounding the passport of the petitioner were violative of her right to freedom of speech and expression or her right to carry on her profession as a journalist, it would not be saved by Article 19(2) or Article 19(6), because the impounding of the passport for an indefinite length of time would clearly constitute an unreasonable restriction.