TMI Blog1978 (1) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... . N. Bhatt, Rain Panjwani, Vijay Panjwani, Raj Panjwani, S. K. Bagga and Mrs. S. Bagga JUDGEMENT BEG, C.J . The case before us involves questions relating to basic human rights. On such questions I believe that multiplicity of views giving the approach of each member of this Court is not a disadvantage if it clarifies our not infrequently differing approaches. It should enable all interested to appreciate better the significance of our Constitution. As I am in general agreement with my learned brethren Bhagwati and Krishna lyer. I will endeavour to confine my observations to an indication of my own approach on some matters for consideration now before us. This seems to me to be particularly necessary as my learned brother Kailasam, who has also given Us the benefit of his separate opinion, has a somewhat different approach. I have had the advantage of going through the opinions of each of my three learned brethren. It seems to me that there can be little doubt that the right to travel and to go outside the country, which orders regulating issue, suspension or impounding, and cancellation of passports directly affect, must be included in rights to "personal liberty" on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... article 246 read with Schedule Seven, List I, Entry 9, and lList III, Entry 3. Therefore, when the subject of preventive detention is specifically dealt with in the Chapter on Fundamental Rights I do not think it is proper to consider a legislation permitting preventive detention as in conflict with the rights mentioned in article 19(1). Article 19(1) does not purport to cover all aspects of liberty or of personal liberty. In that article only certain phases of liberty are dealt with. 'Personal liberty' would primarily mean liberty of the physical body. The rights given under article 19(1) do not directly come under that description. They are rights which accompany the freedom or liberty of the person. By their very nature they are freedoms of a person assumed to be in full possession of his personal liberty. If article 19 is considered to be the only article safeguarding personal liberty several well-recognised rights, as for instance, the right to eat or drink, the right to work, play, swim and numerous other rights and activities and even the right to life will not be deemed protected under the Constitution. I do not think that is the intention. It seems to me improper to read a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight to the free use of one's own property and to enter into free contractual relations. In the Indian Constitution, on the other hand, the expression 'personal liberty' has been deliberately used to restrict it to freedom from physical restraint of person by incarceration or otherwise". Fazal Ali, J., however, said (at p. 148) "To my mind, the scheme of the Chapter dealing with the fundamental rights does not contemplate what is attributed to it, namely, that each article is a code by itself and is independent of the others. In my opinion it cannot be said that articles 19, 20, 21 and22 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 personal liberty which is referred to in article 21, and is a violation of the right of freedom of movement dealt with in article 19(1) (d). That there are other instances of overlapping of articles in the Constitution may be illustrated by reference to article 19(1) (f) and article 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to such laws, are to be found in Article 22 of the Constitution, exclusively because this article constitutes a self-contained code for laws of this description. That was, in my view, the real ratio decidendi of Gopalan's case (supra). It appears to me, with great respect, that other observations relating to the separability of the subject matters of Articles 21 and 19 were mere obiter dicta. They may have appeared to the majority of learned Judges in Gopalan's case to be extensions of the logic they adopted with regard to the relationship between Article 21 and 22 of the Constitution. But, the real issue there was whether, in the face of Article 22 of the Constitution, which provides all the tests of procedural validity of alaw regulating preventive detention other tests could be imported from Article 19 of the Constitution or elsewhere into "procedure established by law". The majority view was that this could not be done. I think, if I may venture to conjecture what opinions learned Judges of this Court would have expressed on that occasion had other types of law or other aspects of personal liberty, such as those which confronted this Court in either Satwant Singh's case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f reasonable property), of Equality (of status and of opportunity, which imply absence of unreasonable or unfair discrimination between individuals, groups and classes), and of Fraternity (assuring dignity of the individual and the unity of the nation), which our Constitution visualises. Isolation of various aspects of human freedom, for purposes of their protection, is neither realistic nor beneficial but would defeat the very objects of such protection. We have to remember that the fundamental rights protected by Part III of the Constitution, out of which Articles 14, 19 and 21 are the most frequently invoked, form tests of the validity of executive as well as legislative actions when these actions are subjected to judicial scrutiny. We cannot disable Article 14 or 19 from so functioning and hold those executive and legislative actions to which they could apply as unquestionable even when there is no emergency to shield actions of doubtful legality. These tests are, in my opinion, available to us now to determine the constitutional validity of Section 10 (3) (c) of the Act as well as of the impugned order of 7th July, 1977, passed against the petitioner impounding her passport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... berty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature; being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of free will. But everyman, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase, and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. And this species of legal obedience and conformity is infinitely more desirable than that will and savage liberty which is sacrificed to obtain it. For no man that considers a moment would wish to retain the absolute and uncontrolled power of doing whatever he pleases; the consequence of which is, that every other man would also have the same power, and then there would be no security to individuals in any of the enjoyments of life. Political, therefore, or civil liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tural liberty." I have reproduced from Blackstone whose ideas may appear somewhat quaint in an age of irreverence because, although, I know that modern jurisprudence conceives of all rights as-relative or as products of particular socioeconomic orders, yet, the idea that man, as man, morally has certain inherent natural primordial inalienable human rights goes back to the very origins of human jurisprudence. It is found in Greek philosophy. If we have advanced today towards what we believe to be a higher civilisation and a more enlightened era, we cannot fall behind what, at any rate, was the meaning given to "personal liberty" long ago by Blackstone. As indicated above, it included "the power of locomotion, of changing situation, or moving one's person to whatsoever place one's own inclination may direct, without imprisonment or restraint, unless by due course of law". I think that both the rights of "personal security" and of cc personal liberty", recognised by what Blackstone termed "natural law", are embodied in Article 21 of the Constitution. For this proposition, I relied, in A. D. M. Jabalpur v. S. S. Shukla (supra), and I do so again here, on a passage from Subba Rao C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shukla's case (supra) for taking what I found to be and still find as the only view I could possibly take if I were not to disregard, as I could not properly do, what had been held by larger benches and what I myself consider to be the correct view : that natural law rights were, meant to be converted into our Constitutionally recognised fundamental rights, atleast so far as they are expressly mentioned, so that they are to be found within it and not outside it. To take a contrary view would involve a conflict between natural law and our Constitutional law. I am emphatically of opinion that a divorce between natural law and our Constitutional law will be disastrous. It will defeat one of the basic purposes of our Constitution. The implication of what I have indicated above is that Article 21 is also a recognition and declaration of rights which inhere in every individual. Their existence does not depend on the location of the individual. Indeed, it could be argued that what so inheres is inalienable and cannot be taken away at all. This may seem theoretically correct and logical. But, in fact, we are often met with denials of what is, in theory, inalienable or "irrefragible". He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tue of their Indian nationality and passports, to the protection of the Indian Republic and the assistance of its diplomatic missions abroad. They cannot claim to be governed abroad by their own Constitutional or personal laws which do not operate outside India. But, that is not the position in the case before us. So far as the impugned action in the case before us is concerned, it took place in India and against an Indian citizen residing in India. In India, at any rate, we are all certainly governed by our Constitution. The fact that the affected petitioner may not, as a result of a particular order, be able to do something intended to be done by her abroad cannot possibly make the Governmental action in India either ineffective or immune from judicial scrutiny or from an attack made on the ground of a violation of a fundamental right which inheres in an Indian citizen. The consequences or effects upon the petitioner's possible actions or future activities in other countries may be a factor which may be weighed, where relevant, with other relevant facts in a particular case in judging the merits of the restriction imposed. It will be relevant in so far as it can be shown to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidual with nationals and authorities of other States have to be considered. The contemplated or possible activities abroad of the individual may have to be taken into. account. There may be questions of national safety and welfare which transcend the importance of the individual's inherent right to go where he or she pleases to go. Therefore, although we may not deny the grant of wide discretionary power, to the executive authorities as unreasonable in such cases, yet, I think we must look for and find procedural safeguards to ensure that the power will not be used for purposes extraneous to the grant of the power before we uphold the validity of the power conferred. We have to insist on procedural proprieties the observance of which could show that such a power is being used only to serve what can reasonably and justly be, regarded as a public or national interest capable of overriding the individual's inherent right of movement or travel to wherever he or she pleases in the modern world of closer integration in every sphere between the peoples of the world and the shrunk time-space relationship. The view I have taken above proceeds on the assumption that there are inherent or na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are only concerned with the enforcement of fundamental Constitutional rights and not with any statutory rights apart from fundamental rights. Article 2 1, however, makes it clear That violation of a law, whether statutory or if any other kind, is itself an infringement of the guaranteed fundamental right. The basic right is not to be denied the protection of "law" irrespective of variety of that law. It need only be a right "established by law". There can be no doubt whatsoever that the orders under section 10(3) must be based upon some material even if that material consists, in some cases, of reasonable suspicion arising from certain credible assertions made by reliable individuals. It may be that, in an emergent situation, the impounding of a passport may become necessary without even giving an opportunity to be heard against such a step, which could be reversed after an opportunity given to the holder of the passport to show why the step was unnecessary, but, ordinarily, no passport could be reasonably either impounded or revoked without giving a prior opportunity to its holder to show cause against the proposed action. The impounding as well revocation of a passport, seem t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ength of these well recognised principles, that an order impounding a passport must be made quasi-judicially. This was not done in the case before us. In my estimation, the findings arrived at by my learned brethren after an examination of the facts of the case before us, with which I concur, indicate that it cannot be said that a good enough reason has been shown to exist for impounding the passport of the petitioner by the order dated 7th July, 1977. Furthermore, the petitioner has bad no opportunity of showing that the ground for impounding it finally given in this Court either does not exist or has no bearing on public interest or that public interest cannot be better served in some other manner. Therefore, speaking for myself, I would quash the order and direct the opposite parties to give an opportunity to the petitioner to showcause against any proposed action on such grounds as may be available. I am not satisfied that there were present any such pressing grounds with regard to the petitioner before us that the immediate action of impounding her passport was called for. Furthermore, the rather cavalier fashion in which disclosure of any reason for impounding her passpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority; (2) Section 10 (3) (c) is void as conferring an arbitrary power since it does not provide for a hearing to the holder of the passport before the passport is, impounded; (3) Section 10(3)(c) is violative of article 21 of the Constitution since it does not prescribe 'procedure' within the meaning of that article and since the procedure which it prescribes is arbitrary and unreasonable; and (4) Section 10 (3)(c) offends against articles 19(1)(a) and 19 (1 ) (g) since it permits restrictions to be imposed on the rights guaranteed by these articles even though such restrictions cannot be imposed under articles 19(2) and 19(6). At first, the passport authority exercising its power under section 10(5) of the Act refused to furnish to the petitioner the reason for which it was considered necessary in the interests of general public to impound her passport. But those reasons were disclosed later in the counteraffidavit filed on behalf of the Government of India in answer to the writ petition. The disclosure made under the stress of the writ petition that the petitioner's passport was impounded because, her presence was likely to be required in connection with the proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourney's end because, a law which prescribes fair and reasonable procedure for curtailing or taking away the personal liberty guaranteed by article 21 has still to meet a possible challenge under other Provisions of the Constitution like, for example, articles 14 and 19. If the holding in A. K. Gopalan v. State of Madras [1950] SCR 88 that the freedoms guaranteed by the Constitution are mutually exclusive were still good law, the right to travel abroad which is part of the right of personal liberty under article 21 could only be found and located in that article and in no other. But in the Bank Nationalisation Case (R. C. Cooper v. Union of India) [1973] 3 SCR 530 the majority held that the assumption in A. K. Gopalan [1950] SCR 88 that certain articles of the Constitution exclusively deal with specific matters cannot be accepted as correct. Though the Bank Nationalisation case(supra) was concerned with the inter-relationship of article 31 and 19 and not ,of articles 21 and 19, the basic approach adopted therein as regards the construction of fundamental rights guaranteed in the different pro-visions of the Constitution categorically discarded the major premise of the majority judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volving the test of proximate effect and operation of the statute. That test saw its fruition in Sakal Papers [1962] 3 SCR 842 where the Court, giving precedence to the direct and immediate effect of the order over its form and object, struck down the Daily Newspapers (Price and Page) Order, 1960 on the ground that it violated article 19(1)(a) of the Constitution. The culmination of this thought process came in the Bank Nationalisation Case (supra) where it was held by the majority, speaking through Shah J., that the extent of protection against impairment of a fundamental right is determined by the direct operation of an action upon the individual's rights and not by the object of the legislature or by the form of the action. In Bennett Coleman [1973] 2 SCR 757 the Court, by a majority, reiterated the same position by saying that the direct operation of the Act upon the rights forms the real test. It struck down the newsprint policy, restricting the number of pages of newspapers without the option to reduce the circulation, as offending against the provisions of article 19(1) (a). "The action may have a direct effect on a fundamental right although its direct subject matter may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed under Articles 19(2) to 19(6) by the State furnish any clue to that question. The State can undoubtedly impose reasonable restrictions on fundamental freedoms under clauses (2) to (6) of Article 19 and those restrictions, generally, have a territorial operation. But the ambit of a freedom cannot be measured by the right of a State to pass laws imposing restrictions on that freedom which, in the generality of cases, have a geographical limitation. Article 19(1) (a) guarantees to Indian citizens the right to freedom of speech and expression. It does not delimit that right in any manner and there is no reason, arising either out of interpretational dogmas or pragmatic considerations, why the courts should strain the language of the Article to cut down the amplitude of that right. The plain meaning of the clause guaranteeing free speech and expression is that Indian citizens are entitled to exercise that right wherever they choose, regardless of geographical considerations, subject of course to the operation of any existing law or the power of the State to make a law imposing reasonable restrictions in the interests of the sovereignty and integrity of India, the security of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pproach of American Judges to the definition and evaluation of constitutional guarantees. The content which has been meaningfully and imaginatively poured into "due process of law" may, in my view, constitute an important point of distinction between the American Constitution and ours which studiously avoided the use of that expression. In the Centennial Volume. "The Fourteenth Amendment" edited by Bernard Schwartz, is contained in an article on 'Landmarks of Legal Liberty' by Justice William J. Brennan in which the learned Judge quoting from Yeat's play has this to say : In the service of the ageold dream for recognition of the equal and inalienable rights of man, the 14th Amendment though 100 years old, can never be old. "Like the poor old women in Yeat's play, "Did you see an old woman going down the path?" asked Bridget. "I did not," replied Patrick, who had come into the house after the old woman left it, "But I saw a young girl and she had the walk of a queen." Our Constitution too strides in its majesty but, may it be remembered, without the due process clause, I prefer to be content with a decision directly in point, All India Bank Employees' Association [1962] 3 SCR 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of India, Ministry of External Affairs on 6th July, 1977 stating inter alia that the Government has decided "in the interest of the general public" not to furnish her a copy of the statement of reasons, for making of the order. The Petitioner thereupon filed the present petition challenging the action of the Government in impounding her passport and declining to give reasons for doing so. The action of the Government was impugned inter alia on the ground that it was mala fide, but this challenge was not pressed before us at the time of the hearing of the arguments and hence it is not necessary to state any facts hearing on that question. The principal challenge set out in the petition against the legality of the action of the Government was based mainly on the ground that section 10(3) (c), in so far as it empowers the Passport Authority to' impound a passport "in the interests of the general public" is violative of the equality clause contained in Art. 14 of the Constitution, since the condition denoted by the words "in the interests of the general public" limiting the exercise of the power is vague and undefined and the power conferred by this provision is, therefore, excessiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is petition, it would be convenient to set out the relevant provisions of the Passport Act, 1967. This Act was enacted on 24th June, 1967 in view of the decision of this Court in Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer. Government of India, New Delhi Ors. [1967] 3 SCR525 The position which obtained prior to the coming into force of this Act was that there was no law regulating the issue of passports for leaving the shores of India and going abroad. The issue of passports was entirely within the discretion of the executive and this discretion was unguided and unchannelled. This Court, by a majority, bela that the expression "personal liberty" in Article 21 takes in the right of locomotion and travel abroad and under Article 21 no person can be deprived of his right to go abroad except according to the procedure established by law and since no law had been made by the State regulating or prohibiting the exercise of such right, the refusal of passport was in violation of Article 21 and moreover the discretion with the executive in the matter of issuing or refusing passport being unchannelled and arbitrary, it was plainly violative of Article 14 and hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e come to section 10 which is the material section which falls for consideration. Sub-section (1) of that section empowers the passport authority to vary or cancel the endorsement of a passport or travel document or to vary or cancel the conditions subject to which a passport or travel document has been issued, having regard, inter alia, to the provisions of sub-section (1) of section 6 or any notification. under section 19, Sub-section (2) confers powers on the passport authority to vary or cancel the conditions of the passport or travel document on application of the holder of the passport or travel document and with the previous approval of the Central Government. Sub-section (3) provides that the passport authority may impound or cause to be impounded or revoke a passport or travel document on the grounds set out in clauses (a) to (h), The order impounding the passport in the present case was made by the Central Government under clause (c) which reads as follows:-- "(c) if the passport authority deems it necessary so to do in the interest of the Sovereignty and Integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exus between the reasons and the ground on which the passport has been impounded, it would be open to the holder of the passport to challenge the order impounding it in a court of law and if the court is satisfied that the reasons are extraneous or irrelvant, the court would strike down the order. This liability to be exposed to judicial scrutiny would by itself act as a safeguard against improper or mala fide exercise of power. The court would, therefore, be very slow to accept, without close scrutiny, the claim of the passport authority that it would not be in the interests of the general public to disclose the reasons. The passport authority would have to satisfy the court by placing proper material that the giving of reasons would be clearly and indubitably against the interests of the general public and if the Court is not so satisfied, the Court may require the passport authority to disclose the reasons, subject to any valid and lawful claim for privilege which may be set up on behalf of the Government. Here in the present case, as we have already pointed out, the Central Government did initially claim that it would be against the interests of the general public to disclose t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ? Does Article 21 merely require that there Must be some semblance of procedure, howsoever arbitrary or fanciful, prescribed by law before a person can be deprived of his personal liberty or that the procedure must satisfy certain requisites in the sense that it must be fair and reasonable ? Article 21 occurs in Part III of the Constitution which confers certain fundamental rights. These fundamental rights had their roots deep in the struggle for independence and, as pointed out by Granville Austin in 'The Indian Constitution-Cornerstone of a Nation', "they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India". They were indelibly written in the sub-conscious memory of the race which fought for well-nigh thirty years for securing freedom from British rule and they found expression in the form of fundamental rights when the Constitution was enacted. These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty except according to procedure established by law." Article 22 confers protection against arrest and detention in certain cases and provides inter alia safeguards in case of preventive detention. The other fundamental rights are not relevant to, the present discussion and we, need not refer to them. It is obvious that Article 21, though couched in negative language, confers the fundamental right to life and personal liberty. So far as the right to personal liberty is concerned, it is ensured by providing that no one shall be deprived of personal liberty except according to procedure prescribed by law. The first question that arises for consideration on the language of Article 21 is : what is the meaning and content of the words 'personal liberty' as used in this article ? This question incidently came up for discussion in some of the judgments in A. K. Gopalan v. State of Madras [1950] S.C.R. 88 and the observations made by Patanjali Sastri, J., Mukherjee, J., and S. R. Das, J., seemed to place a narrow interpretation on the words 'personal liberty' so as to confine the protection of Article 21 to freedom of the person against unlawful detention. But there was no definite pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fundamental rights conferred by Part III are not distinct and mutually exclusive rights. Each freedom has different dimensions and merely because the limits of interference with one freedom are satisfied, the .law is not freed from the necessity to meet the challenge of another guaranteed freedom. The decision in A. K. Gopalan's (supra) case gave rise to the theory that the freedoms under Articles 19, 21, 22 and 31 are exclusive-each article enacting a code relating to the protection of distinct rights, but this theory was over-turned in R. C. Cooper's case (supra) where Shah, J., speaking on behalf of the majority pointed out that "Part III of the Constitution weaves a pattern of guarantees on the texture of basic human: rights. The guarantees delimit the protection of those rights in their allotted fields : they do not attempt to enunciate distinct rights." The conclusion was summarised in these terms : "In our judgment, the assumption in A. K. Gopalan's case that certain articles in the Constitution exclusively deal with specific matters cannot be accepted as correct". It was hold in R. C. Cooper's case and that is clear from the judgment of Shah, J., because Shah, J., in so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court in R. C. Cooper's case and our approach in the interpretation of the fundamental rights must now be in tune with this wave, length. We may point out even at the cost of repetition that this Court has said in so; many terms in R. C. Cooper's case that each freedom has different dimensions and there may be overlapping between different fundamental rights and therefore it is not a' valid argument to say that the expression 'personal liberty' in Article 21 must be so interpreted as to avoid overlapping between that article and Article 19(1). The expression 'personal liberty' in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19. Now, it has been held by this Court in Satwant Singh's case that 'personal liberty' within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law. Prior to the enactment of the Passports Act, 1967, there was no law regulating the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved that Article 21 requires that "there should be some form of proceeding before a person can be condemned either in respect of his life or his liberty" and "it negatives the idea of fantastic, arbitrary and oppressive forms of proceedings". But apart altogether from these observations in A. K. Gopalan's case, which have great weight, we find that even on principle the concept of reasonableness must be projected in the procedure contemplated by Article 21,, having regard to the impact of Article 14 on Article 21. The inter-relationship between articles 14, 19 and 21 We may at this stage consider the inter-relation between Article 21 on the one hand and Articles 14 and 19 on the other. We have already pointed out that the view taken by the majority in A. K. Gopalan's case war,. that so long as a law of preventive detention satisfies the requirements of Article 22, it would be within the terms of Article 21 and it would not be required to meet the challenge of Article 19. This view proceeded on the assumption that "certain articles in the constitution exclusively deal with specific matters" and where the requirements of an article dealing with the particular matter in question a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 judges of this Court in Khudiram Das v. The State of West Bengal Ors. (1) [1975] 2 S.C.R.832. Interestingly, even prior to these decisions, as pointed out by Dr. Rajive Dhawan, in his book : "The Supreme Court of India :" at page 235, reference was made, by this court in Mohd. Sabir v. State of Jammu and Kashmir A.I. R.1971S.C.1713. to article 191(2) to justify preventive; detention. The law, must, therefore, now be taken to be well settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of 'personal liberty' and there is consequently no infringement of the fundamental right conferred by Article 21, such law, in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that article. This proposition can no longer be disputed after the decisions in R. C. Cooper's case, Shambhu Nath Sarkar's case and Haradhan Saha's case. Now, if a law depriving a person of 'personal liberty' and prescribing a procedure for that purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll embracing scope and meaning for, to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned Within traditional and doctrinaire limits. We must reiterate here what was pointed out by the majority in E. P. Royappa v. State of Tamil Nadu Another [1974]2S.C.R.348 namely, that "from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14". Article 14 strikes, at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the best of reasonableness in order to be in conformity with Article 14. It must be "'rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udi alteram partem rule. Can it be imported in the procedure for impounding a passport ? We may commence the discussion of this question with a few general observations to emphasise the increasing importance of natural justice in the field of administrative law. Natural justice is a great humanising principle intended to invest law with' fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. Lord Morris of Borthy-Gest spoke of this rule in eloquent terms in his address before the Bentham Club : "We can, I think, take pride in what has been done in recent periods and particularly in the field of administrative law by invoking and by applying these principles which we broadly classify under the designation of natural justice. Many testing problems as to their application yet remain to be solved. But I affirm that the area of administrative action is but one area in which the principles are to be deployed. Nor are they to be invoked only when procedural failures are shown. Does natural justice qualify to be described as a "majestic" conception ? I believe it does. Is it just a rhetorical but vague ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same rule also prevails in other Commonwealth countries like Canada, Australia and New Zealand. It has even gained access to the United Nations. Vide American Journal of International Law, Vol. 67, page 479. Magarry, J., describes natural justice "as a distillate of due process of law". Vide Fontaine v. Chesterton (1968) 112 Solicitor General 690. It is the quintessence of the process of justice inspired and guided by fair play in action'. If we look at the speeches of the various law Lords in Wiseman's case, it will be seen that each one of them asked the question "whether in the particular circumstances of the case, the Tribunal acted unfairly so that it could be said that their procedure did not match with what justice demanded", ,or, was the procedure adopted by the Tribunal 'in all the circumstances unfair'? The test adopted by every law Lord was whether the procedure followed was "fair in all the circumstances" and 'fair play in action' required that an opportunity should be given to the tax payer "to see and reply to the counter-statement of the Commissioners" before reaching the conclusion that "there is a prima facie case against him." The inquiry must, therefore, alw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s placed by Lord Hewart, C.J., on the dictum of Lord Atkin, L.J., bedevilled the law for a considerable time and stultified the growth of the doctrine of natural justice. The Court was constrained in every case that came before it, to make a search for the duty to act judicially sometimes from tenuous material and sometimes in the services of the statute and this led to oversubtlety and over-refinement resulting in confusion and uncertainty in the law. But this was plainly contrary to the earlier authorities and in the epoch-making decision of the House of Lords in Ridge v. Baldwin [1964] A. C. 40, which marks a turning point in the history of the development of the doctrine of natural justice, Lord Reid pointed out how the gloss of Lord Hewart, C.J., was based on a misunderstanding of the; observations of Atkin, L.J., and it went counter to the law laid down in the earlier decisions, of the Court. Lord Reid observed : "If Lord Hewart meant that it is never enough that a body has a duty to determine what the rights of an individual should be, but that there must always be something more to impose on it a duty to act judicially, then that appears to me impossible to reconcile with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame to be recognised that 'fair play in action' required that in administrative proceeding also, the doctrine of natural justice must be held to be applicable. We have already discussed this aspect of the question on principal and shown why no distinction can be made between an administrative and a quasi-judicial proceeding for the; purpose of applicability of the doctrine of natural justice. This position was judicially recognised and accepted and the dichotomy between administrative and quasi-judicial proceedings vis-a-vis doctrine of natural justice was finally discarded as unsound by the decisions in In re : H.K. (All Infant) [1967] 2 Q. B. 617 and Schmidt v. Secretary of State for Home Affairs (supra) in England and, so far as India is concerned, by the memorable decision rendered by this Court in A.K. Kraipak's case (supra). Lord Parker, C.J. pointed out in the course of his judgment in In Re : H.K. (An Infant) (supra) : "But at the same time,, I myself think that even if an Immigration officer is not in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the sub-section, and for that purpose let t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Suresh Koshy George v. The University of Kerala and Ors. (1969)1 S.C.R. 317 the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principles of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of the case." This view was reiterated and re-affirmed in a subsequent decision of this Court in D.F.O. South Khari v. Ram Sanehi Singh [1973] 3S.C.C.864.. The law must, therefore, now be taken to be well settled that even in an administrative proceeding, which involves civil consequences, the doctrine of natural justice must be held to be applicable. Now, here, the power conferred on the Passport Authority is to impound a passport and the consequence of impounding a passport would be to impair the constitutional right of the holder of the passport to go abroad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... highly effective tool devised by the courts to enable a statutory authority to arrive at a just decision and it is calculated to act as a healthy check on abuse or misuse of power and hence its reach should not be narrowed and its applicability circumscribed. He rightly did not plead for reconsideration of the historic advances made in the law as a result of the decisions of this Court and did not suggest that the Court should re-trace its steps. That would indeed have been a most startling argument coming from the Government of India and for the Court to accede to such an argument would have been so act of utter retrogression. But fortunately no such argument was advanced by the learned Attorney General. What he urged was a very limited contention, namely that having regard to the nature of the action involved in the impounding of a passport, the audi alteram partem rule must be held to, be excluded, because if notice were to be given to the holder of the passport and reasonable opportunity afforded to him to show cause why his passport should not be impounded, he might immediately, on the strength of the passport, make good his exit from the country and the object of impounding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matic realism, the audi alteram partem rule would, by the experiential test, be excluded, if importing the right to be heard has the effect of paralyzing the administrative process or the need for promptitude or the urgency of the situation so demands. But at the same time it must be remembered that this is a rule of vital importance in the field of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. It is a wholesome rule designed to secure the rule of law and the court should not be too ready to eschew it in its application to a given case. True rue it is that in questions of this kind a fanatical or doctrinaire approach should be avoided, but that does not mean that merely because the traditional methodology of a formalised hearing may have the effect of stultifying the exercise of the statutory power, the audi alteram partem should be wholly excluded. The court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case. It must not be forgotten that "natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter 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 ofnatural justice and a provision requiring giving of such opportunity to the person concerned can and should be readby implication in the Passports Act, 1967. If such a provision were held to be incorporated in the Passports, Act, 1967 by necessary implication, as we hold it must be, the procedure prescribed by the Act for impounding a passport would be fight, fair and just and it would not suffer from the vice of arbitrariness or unreasonableness. We must, therefore, hold that the procedure 'established' by the Passports Act, 1967 for impounding a passport is in conformity with the requirement of Article 21 and does not fall foul of that article. But the question then immediately arises whether the Central Government has complied with this procedure in impounding the passport of the Petitioner. Now, it is obvious and indeed this could not be controverted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to impound a passport and hence it is violative of the equality clause contained in Article 14. It was conceded that under section 10 (3) (c) the power to impound a passport can be exercised only upon one or more of the, stated grounds, but the complaint was that the ground of "interests of the general public". was too vague and indefinite to afford any real guidance to the Passport Authority and the Passport Authority could, without in any way violating the terms of the section, impound the passport of one and not of another, at its discretion. Moreover, it was said that when the order impounding a passport is made by the Central Government, there is no appeal or revision provided by the Statute and the decision of the Central Government that it is in public interest to impound a passport is final and conclusive. The discretion vested in the Passport Authority, and particularly in the Central Government, is thus unfettered and unrestricted and this is plainly in violation of Article 14. Now, the law is well settled that when a statute vests unguided and unrestricted power in an authority to affect the rights of a person without laying down any policy or principle which is to gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , to supply a copy of such statement to the person affected, so that the person concerned can challenge the decision of the Passport Authority in appeal and the appellate authority can examine whether the reasons given by the Passport Authority are correct, and if so, whether they justify the making of the order impounding the passport. It is true that when the order impounding a passport is made by the Central Government, there is no appeal against it, but it must be remembered that in such a case the power is exercised by the Central Government itself and it can safely be assumed that the Central Government will exercise the power in a reasonable and responsible manner. When power is vested in a high authority like the Central Government, abuse of power cannot be lightly assumed. And in any event, if there is abuse of power, the arms of the court are long enough to reach it and to strike it down. The power conferred on the Passport Authority to impound a passport under section 10(3) (c) cannot, therefore, be regarded as discriminatory and it does not fall foul of Article 14. But every exercise of such power has to be tested in order to determine whether it is arbitrary or within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntially or indirectly". The test to be applied for determining the constitutional validity of State action with reference to fundamental rights is : what is the object of the authority in taking the action : what is the subject-matter of the action and to which fundamental right does it relate ? This theory that "the extent of protection of important guarantees, such as the liberty of person and right to property, depend upon the form and object of the State action and not upon its direct operation upon the individual's freedom" held away for a considerable time and was applied in Naresh Shridhar Mirajkar Ors. v. State of Maharashtra Anr. [1966] 3 S.C.R. 744 to sustain an order made by the High Court in a suit for defamation prohibiting the publication of the evidence of a witness. This Court, after referring to the observation of Kania, C.J., in A. K. Gopalan's case and noting that they were approved by the Fill Court in Ram Singh's case, pointed out that the object of the impugned order was to give protection to the witness in order to obtain true evidence in the case with a view to do justice between the parties and it incidentally it operated to prevent the petitioner from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pression enjoyed by the petitioners". Here we find the gern of the doctrine of direct and inevitable effect, which necessarily must be effect intended by the legislature, or in other words, 'what may conveniently and appropriately be described as the doctrine of intended and real effect. So also in Sakal Papers (P) Ltd. Ors. v. The Union of India [1962] 3 S.C.R. 842.while considering the constitutional validity of the Newspaper (Price and Page) Act, 1956 and Daily Newspaper (Price and Page) Order, 1960, this Court applied the test of direct and immediate effect. This Court, relying upon the decision in Dwarkadas Shrinivas v. The Sholapur Weaving Co. Ltd. [1954] S.C.R.674 pointed out that "it is the substance and the practical result of the act of the State that should be considered rather than its purely legal aspect" and "the correct approach in such cases should be to enquire as to what in substance is the loss or injury caused to the citizen and not merely what manner and method has been adopted by the State in placing the restriction." Since "the direct and immediate effect of the order" would be to restrain a newspaper from publishing any number of pages for carrying its n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the right of a citizen, nor the form of action that determines the protection he can claim; it is the effect of the law and of the action upon the right which attract the jurisdiction of the Court to grant relief. If this be the true view, and we think it is, in determining the impact of State action upon constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of the Legislature nor by the form of the action , but by its direct operation upon the individual's rights. " we are of the view that the theory that the object and form of the State action determine the extent of protection which the aggrieved party may claim is not consistent with the constitutional scheme-" "In our judgment, the assumption in A. K. Gopalan's case; that certain articles in the Constitution exclusively deal with specific matters and in determining whether there is infringement of the individual's guaranteed rights, the object and the form of the State action alone need be considered, and effect of the laws on fundamental rights of the individuals in general will be ignored cannot be accepted a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the effect of the impugned action is to take away or abridge fundamental rights. If it be assumed that the direct object of the law or action has to be direct abridgement of the right of free speech by the impugned law or action it is to be related to the directness of effect and not to the directness of the, subject matter of the impeached law or action. The action may have a direct effect on a fundamental right although its direct subject matter may be different. A law dealing directly with the Defence of India or defamation may yet have a direct effect on the freedom of speech. Article 19(2) could not have such law if the restriction is unreasonable even if it is related to matters mentioned therein. Therefore, the word "direct" would go to the quality or character of the effect and not to the subject matter. The object of the law or executive action is irrelevant when it establishes the petitioner's contention' about fundamental right. In the present case, the object of the newspaper restrictions has nothing to do with the availability of newsprint or foreign exchange because these restrictions come into operation after the grant of quota. Therefore the restrictions are to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f directness or indirectness in order to apply the test. And that is supplied by the criterion of 'inevitable' consequence or effect adumbrated in the Express Newspaper's case. This criterion helps to quantify the extent of directness necessary to constitute infringement of a fundamental right is direct and inevitable, then a fortiori it must be presumed to have been intended by the authority taking the action and hence this doctrine of direct and inevitable effect has been described by some jurists as the doctrine of intended and real effect. This is the test which must be applied for the purpose of determining whether section 10(3) (c) or the impugned order made under it is violative of Art. 19(1) (a) or (g). Is Section 10(3) (c) violative of Article 19 (1) (a) or (g) ? We may now examine the challenge based on Article 19(1) (a) in the light of this background. Article 19(1) (a) enshrines one of the most cherished freedoms in a democracy, namely, freedom of speech and expression. The petitioner, being a citizen, has undoubtedly this freedom guaranteed to her, but the question is whether section 10(3) (c) or the impugned Order unconstitutionally takes away or abridges this freed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal rights guaranteed by it were available only within the territory of India, for it could never have been the intention of the constitution-makers to confer rights which the authority of the State could not enforce. The argument was stressed in the form of an interrogation; how could the fundamental rights be intended to be operative outside the territory of India when their exercise in foreign territory could not be protected by the State ? Were the fundamental rights intended to be mere platitudes. in so far as territory outside India is concerned ? What was the object of conferring the guarantee of fundamental rights outside the territory of India, if it could not be carried out by the State ? This argument, plausible though it may seem at first blush, is, on closer scrutiny, unsound and must be rejected. When the constitution-makers enacted Part III dealing with fundamental rights, they inscribed in the Constitution certain basic rights which inhere in every human being and which are essential for unfoldment and development of his full personality. These rights represent the basic values of a civilised society and the constitution-makers declared that they shall be given a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re expounding is a constitution and what we are called upon to interpret is a provision conferring a, fundamental right. Shall we expand its reach and ambit or curtail it ? Shall we ignore the high and noble purpose of Part III conferring fundamental rights ? Would we not be stultifying the fundamental right of free speech and expression by restricting it by territorial limitation.Moreover, it may be noted that only a short while before the Constitution was brought into force and whilst the constitutional debate was still going on, the Universal Declaration of Human Rights was adopted by the General Assembly of the United Nations on 10th December, 1948 and most of the fundamental rights which we find included in Part III were recognised and adopted by the United Nations as the inalienable rights of man in the Universal Declaration of Human Rights. Article 19 of the Universal Declaration declared that "every one, has a right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to seek, receive and import information and ideas through any media and regardless of frontiers". (emphasis supplied). This was the glorious declaration o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f view. It is obvious that the right of free speech and expression guaranteed under Article 19(1) (a) can be subjected to restriction permissible under Article 19(2). Such restriction, imposed by a statute or an order made under it, if within the limits provided in Article 19(2), would clearly bind the citizen not only when he is within the country but also when he travels outside. Take for example a case where, either under the Passports Act, 1967 ,or as a condition in the Passport issued under it, an arbitrary, unreasonable and wholly unjustifiable restriction is placed upon the citizen that he may go abroad, but he should not make any speech there. This would plainly be a restriction which would interfere with his freedom of speech and expression outside the country, for, if valid, it would bind him wherever he may go. He would be entitled to say that such a restriction imposed by State action is impermissible under Article 19(2) and is accordingly void as being violative of Article 19(1 )(a) It would thus seem clear that freedom of speech and expression guaranteed under Article 19(1) (a) is exercisable not only inside the country, but also outside. There is also another con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J.,(as he then was) speaking on behalf of a Division Bench of the Karnataka High Court in Dr. S. S. Sadashiva Rao v. Union of India 1965 Mysore Law Journal, P.605 and the learned Judge there pointed out that "these observations apply in equal force to the conditions prevailing in this country". it is obvious, therefore, that there are no geographical limitations to freedom of speech and expression guaranteed Under Article 19(1) (a) and this freedom is exercisable not only in India but also outside and if State action sets up barriers to its citizen's freedom of expression in any country in the world, it would violate Article 19(1) (a) as much as if ,it inhibited such expression within the country. This conclusion would on a parity of reasoning apply equally in relation to the fundamental right to practice any profession or to carry any occupation, trade or business guaranteed under Article 19(1) (g). (B) Is the right to go abroad covered by Article 19 (1) (a) or (g) ? That takes us to the next question arising out of the second limb of the contention of the Government. Is the right to go abroad an essential part of freedom of speech and expression so that whenever there is vio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovement on his part. There, can be no doubt that if the purpose and the sense of the State is to protect personality and its development, as indeed it should be of any liberal democratic State, freedom to go abroad must be given its due place amongst the basic rights. This right is an important basic human right for it nourishes independent and self-determining creative character of the individual, not only by extending his freedoms of action, but also by extending the scope of his experience. It is a right which gives intellectual and creative workers in particular the opportunity of extending their spiritual and intellectual horizon through study at foreign universities, through contact with foreign colleagues and through participation in discussions and conferences. The right also extends to private life : marriage, family and friendship are humanities which can be rarely affected through refusal of freedom to go abroad and clearly show that this freedom is a genuine human right. Moreover, this freedom would be 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent or lionize or deify the ruler. The newspapers are the index of the true character of the Government-whether if is democratic or authoritarian. It was Mr. Justice Potter Stewart who said : "Without an informed and free press, there cannot be an enlightened people". Thus freedom of the press constitutes one of the pillars of democracy and indeed lies at the foundation of democratic Organisation and yet it is not enumerated in so many terms as a fundamental right in Article 19(1), though there is a view held by some constitutional jurists that this freedom is too basic and fundamental not to receive express mention in Part III of the Constitution. But it has been held by this Court in several decisions, of which we may mention only three, namely, Express Newspapers' case, Sakal Newspapers case and Bennett Coleman Co's case, that freedom of the press is part of the right of free speech and expression and is covered by Article 19 (1) (a). The, reason is that freedom of the press is nothing but an aspect of freedom of speech and expression. It partakes of the same basic nature and character and is indeed an integral part of free speech and expression and perhaps it would not be inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ravel within the country, ay be necessary for livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our Scheme of values." And what the learned Judge, said in regard to freedom of movement in his country holds good in our country as well. Freedom of movement has been a part of our ancient tradition which always upheld the dignity of man and saw in him the embodiment of the Divine. The Vedic seers knew no limitations either in the locomotion of the human body or in the flight of the soul to higher planes of consciousness. Even in the post-Upnishadic period, followed by the Buddhistic era and the early centuries after Christ, the people of this country went to foreign lands in pursuit of trade and business or in search of knowledge or with a view to shedding on others the light of knowledge imparted to them by their ancient sages and seers. India expanded outside her borders: her ships crossed the ocean and the fine superfluity of her wealth brimmed over to the East as well as to the West. He cultural messengers and envoys spread her arts and epics in South East Asia and her religious conquered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etary of State could refuse passport on those grounds. This decision was not concerned with the validity of any legislation regulating issue of passports nor did it recognise the right to travel as founded on the first Amendment which protects freedom of speech, petition and assembly. We fail to see how this decision can be of any, help to the petitioner. The second decision on which reliance was placed on behalf of the petitioner was Apthekar v. Secretary of State 378 U. S. 500 :12 L. ed. 2d 992. The question Which arose for determination in this case related to the constitutional validity 'of section 6 of the Subversive Activities Control Act, 1950. This section prohibited the use of passports by communists following a final registration order by the Subversive Activities Control Board under section 7 and following the mandate of this section, the State Department revoked the existing passports of the appellants. After exhausting all administrative remedies, the appellants sued for declarative and injunctive relief before the District Court which upheld the validity of the section. On direct appeal, the Supreme Court reversed the judgment by a majority of six against three, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew that freedom of movement was a right protected by the 'liberty' clause of the Fifth Amendment and that the Secretary of State was justified in attempting to avoid serious international incidents by restricting travel to Cuba and summarily rejected Zemel's contention that the passport denial infringed his First Amendment rights by preventing him from gathering first band knowledge about Cuban situation. Kent v. Dulles and Aptheker v. Secretary of State were distinguished on the, ground that "the refusal to, validate appellant's passport does not result from any expression or association on his part : appellant is not being forced to choose between membership of an Organisation and freedom to travel". Justices, Douglas, Goldberg and Black dissented in separate opinions. Since reliance was placed only on the opinion of Justice Douglas, we may confine our attention to that opinion. Justice Douglas followed the approach employed in Kent v. Dulles and, refused to interpret the, Pass.port Act, 1926 as permitting the Secretary of State to restrict travel to Cuba. While doing so, the learned Judge stressed the relationship of the right to travel to First Amendment rights. He pointed out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the majority as also Justice Douglas, the question to be asked in each case is : is the restriction on the right to travel such that it directly interferes with a First Amendment right. And that is the same test which is applied by this Court in determining infringement of a fundamental right. We cannot, therefore, accept the theory that a peripheral or concomitant right which facilitates the exercise of a named fundamental right or gives it meaning and substance or makes its exercise effective, is itself a guaranteed right included within the named fundamental right. This much is clear as a matter of plain construction, but apart from that, there is a decision of this Court which clearly and in so many terms supports this conclusion. That is the decision in All India Bank Employees' Association v. National Industrial Tribunal [1962] 3 S.C.R. 269. The legislation which was challenged in that case was section 34A of the Banking Companies Act and it was assailed as violative of Article 19(1)(c). The effect of section 34A was that no tribunal could compel the production and inspection of any books of account or other documents or require a bank to furnish or disclose any statement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reated, it would not be possible to put restrictions on that right in the public interest as is done by the Industrial Disputes Act, which restrictions would be permissible under Article 19(6), but not under Article 19(4). The Court, therefore, held that the right to form unions guaranteed by Article 19 (1) (c) does not carry with it a concomitant right that the unions so formed should be able to achieve the purpose for which they are brought into existence, so that any interference with such achievement by law would be unconstitutional unless the same could be justified under Article 19(4). The right to go abroad cannot, therefore, be regarded as included in freedom of speech and expression guaranteed under Article 19(1)(a) on the theory of peripheral or concomitant right. This theory has been firmly rejected in the All India Bank Employees Association's case and we cannot countenance any attempt to revive it, as that would completely upset the scheme of Article 19(1) and to quote the words of Rajagopala Ayyanger, J., speaking on behalf of the Court in All India Bank Employees Association's case "by a series of ever expending concentric. circles in the shape of rights concomitan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge to the validity of the order under, Article 19 (1) (a) would be unanswerable unless it is saved by article 19(2). We have taken these two examples only by way of illustration. There may be many such cases where the restriction imposed is apparently only on the right to go abroad but the direct and inevitable consequence is to interfere with the freedom of speech and expression or the right to carry on a profession. A musician may want to go abroad to sing, a dancer to dance, a visiting professor to teach and a scholar to participate in a conference or seminar. If in such a case his passport is denied or impounded, it would directly interfere with his freedom of speech and expression. If a correspondent of a newspaper is given a foreign assignment and he is refused passport or his passport is impounded, it would be direct interference with his freedom to carry on his profession. Examples can be multiplied, but the point of the matter is that though the right to go abroad is not a fundamental right, the denial of the right to go abroad may, in truth and in effect, restrict freedom of speech and expression or freedom to carry on a profession so as to contravene Article 19 (1) (a) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 10(3) (c) must be read down so as to be limited to interests of public order, decency or morality. If an order made under section 10(3) (c) restricts freedom of speech and expression, it must be made not in the interests of the general public in a wider sense, but in the interests of public order, decency or morality, apart from the other three categories, namely, interests of the sovereignty and integrity of India, the security of India and friendly relations of India with any foreign country. If the order cannot be shown to have been made in the interests of public order, decency or morality, it would not only contravene Article 19 (1) (a), but would also be outside the authority conferred by section 10(3) (c). Constitutional validity of the impugned Order: We may now consider, in the light of this discussion, whether the impugned Order made by the Central Government impounding the passport of the petitioner under section 10(3) (c) suffers from any constitutional or legal infirmity. The first ground of attack against the validity of the impugned Order was that it was made in contravention of the rule of natural justice embodied in the maxim audi alteram partem and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the authority conferred by the statutory provision, but must also stand the test of fundamental rights. Parliament cannot be presumed to have intended to confer power on an authority to act in contravention of fundamental rights. It is a basic constitutional assumption underlying every statutory grant of power that the authority on which the power is conferred should act constitutionally and not in violation of any fundamental rights. This would seem to be elementary and no authority is necessary in support of it, but if any were needed, it may be found in the decision of this Court in Narendra Kumar Ors. v. The Union of India Ors. [1960] 2 S.C.R. 375. The question which arose in that case was whether clauses (3) and (4) of the Non-ferrous Metal Control Order, 1958 made under section 3 of the Essential Commodities Act, 1955 were constitutionally valid. The argument urged on behalf of the petitioners was that these clauses imposed unreasonable restrictions of the fundamental rights guaranteed under Articles 19(1) (f) and (g) and in answer to this argument, apart from merits, a contention of a preliminary nature was advanced on behalf of the Government that "as the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the production, supply and distribution of any essential commodity it gives such power to make any regulation or prohibition in so far as such regulation and prohibition do not violate any fundamental rights granted by the Constitution of India." It would thus be clear that though the impugned Order may be within the terms of section 10(3) (c), it must never the less not contravene any fundamental rights and if it does, it would be void. Now, even if an order impounding a passport is made in the interests of public order, decency or morality, the restriction imposed by it may be so wide, excessive or disproportionate to the mischief or evil sought to be averted that it may be considered unreasonable and in that event, if the direct and inevitable consequence,, of the Order is to abridge or take away freedom of speech and expression, it would be violative of Article 19(1) (a) and would not be protected by Article 19(2) and the same would be the position where the, order is in the interests of the' general public but it impinges directly and inevitably on the freedom to carry on a profession in which case it would contravene Article 19 (1) (g) without being saved by the provision e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be said that the impugned Order was to operate for an indefinite period of time. Now, it is true that the passport of the petitioner was impounded on the ground that her presence was likely to be required in connection with the proceeding before the Commission of Inquiry and the initial time limit fixed for the Commission of Inquiry to submit its report was 31st December, 1977, but the time limit could always be extended by the Government and the experience of several Commissions of Inquiry set up in this country over the last twenty-five years shows that hardly any Commission of Inquiry has been able to complete its report within the originally appointed time. Whatever might have been the expectation in regard to the duration of the Commission of Inquiry headed by Mr. Justice Shall at the time when the impugned Order was made, it is now clear that it has not been possible for it to complete its labours by 31st December, 1977 which was the time limit originally fixed and in fact its term has been extended upto 31st May, 1978. The period for which the passport is impounded cannot, in the circumstances, be said to be definite and certain and it may extend to an indefinite point of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Commission of Inquiry. It is possible that ultimately when the Commission of Inquiry proceeds further with the probe, it may find that the presence of the ,petitioner is not required, but before that it would only be in the stage of likelihood and that can legitimately be left to the judgment of the central Government. The validity of the impugned Order cannot, therefore.-, be assailed on this ground, had the challenge based on Article 19 (1) (a) and (g) must fail. Whether the impugned Order is inter vires sec. 10(3) (c)? The last question which remains to be considered is whether the impugned Order is within the authority conferred by section 10(3) (c). The impugned Order is plainly, on the face of it, purported to be made in public interest, i.e., in the interests of the general public, and therefore, its validity must be judged on that footing. Now it is obvious that on a plain natural construction of section 10(3)(c), it is left to the Passport Authority to determine whether it is necessary to impound a passport in the interests of the general public. But an order made by the Passport Authority impounding a passport is subject to judicial review on the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s argument is plainly erroneous as it seeks to cut down the width and amplitude of the expression " interests of the general public", an expression which has a well recognised legal connotation and which is to be found in Article 19(5) as well as article 19(6). It is true, as pointed out by this Court in Rohtas Industries Ltd. v. S. D. Agarwal Anr. 1969] 3 S.C.R. 108 at 128, that "there is always a perspective within which a statute is intended to operate", but that does not justify reading of a statutory provision in a manner not warranted by its language or narrowing down its scope and meaning by introducing a limitation which has no basis either in the language or in the context of the statutory provision. Moreover, it is evident from clauses (d), (e) and (h) of section 10(3) that there are. several grounds in this section which do not relate to foreign affairs. Hence we do not think the petitioner is justified in seeking to limit the expression "interests of the general public" to matters relating to foreign affairs. The petitioner then contended that the requirement that she should be available for giving evidence before the Commissions of Inquiry did not warrant the makin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any case not have application. Such a case would clearly fall within the general power under section 10(3) (c) if it can be shown that the requirement of the holder of the passport in connection with the proceeding before the Commission of Inquiry is in the interests of the general public. It is, of course, open to the Central Government to apply to the Commission of Inquiry for issuing a summons or warrant, as the case may be, for the attendance of the holder of the passport before the Commission and if a summons or warrant is so issued, it is possible that the Central Government may be entitled to impound the passport under section 10(3) (h). But that does not mean that before the stage of issuing a summons or warrant has arrived, the Central Government cannot impound the passport of a person, if otherwise it can be shown to be in the, interests of the general public to do so. Section 10(3) (e) and (h) deal only with two specific kinds of situations, but there may be a myriad other situations, not possible to anticipate or categorise, where public interests may require that the passport should be impounded and such situation would be taken care of under the general provision en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly his mind and hence the impugned Order was bad. We find no basis or justification for this contention. It has been stated in the affidavit in reply that the Minister for External Affairs applied his mind to the relevant material and also to the confidential information received from the intelligence sources that there was likelihood of the petitioner attempting to leave the country and then only he made the impugned Order. In fact, the Ministry of Home Affairs had forwarded to the Ministry of External Affairs as far back as 9th May, 1977 a list of persons whose presence, in view of their involvement or connection or position or past antecedents, was likely to be required in connection with inquiries to be carried out by the Commissions of Inquiry and the name of the petitioner was included in this list. The Home Ministry had also intimated to the Ministry of External Affairs that since the inquiries were being held by the Commissions of Inquiry in public interest, consideration of public interest would justify recourse to section 10(3) (c) for impounding the passports of the persons mentioned in this list. This note of the Ministry of Home Affairs was considered by the Minister f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds or cancels a passport. It is a highly valuable right which is a part of personal liberty, an aspect of the spiritual dimension of man, and it should not be lightly interfered with. Cases are not unknown where people have not been allowed to go abroad because of the views held, opinions expressed or political beliefs or economic ideologies entertained by them. It is hoped that such cases will not recur under a Government constitutionally committed to uphold freedom and liberty but it is well to remember, at all times, that eternal vigilance is the price of liberty, for history shows that it is always subtle and insidious encroachments made ostensibly for a good cause that imperceptibly but surety corrode the foundations of liberty. In view of the statement made by the learned Attorney-General to which reference has already been made in the judgment we do not think it necessary to formally interfere with the impugned order. We, accordingly, dispose of the Writ Petition without passing any formal order. There will be no order as to costs. KRISHNA IYER, J .-My concurrence with the argumentation and conclusion contained in the judgment of 'my learned brother Bhagwati J. is suffi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution and its sentinels sit by silently, or should the lines of legality be declared with clarity so that adherence to valid norms becomes easy and precise ?. We are directly concerned, as fully brought out in Shri Justice Bhagwati's judgment, with the indefinite immobilisation of the petitioner's passport, the reason for the action being strangely veiled from the victim and the right to voice an answer being suspiciously withheld from her, the surprising secrecy being labelled, 'public interest'. Paper curtains wear ill 'on good governments. And, cutely to side one's grounds under colour of 'statute, is too sphinx-like an art for an open society and popular regime. As we saw the reasons which the learned Attorney General so unhesitatingly disclosed, the question arises :'wherefore are these things hid?'. The catch-all expression 'public interest' is 'sometimes the easy temptation to cover up from the public which they have a right to know, which appeals in the short run but avenges in the long run Since the only passport to this Court's jurisdiction in this branch of passport law is the breach of a basic freedom, what is the nexus between a passport and a Part Ill right ? What ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r testament is our asset. What is the history, enlivened by philosophy, of the law of travel ? The roots of our past reach down to travels laden with our culture and commerce and its spread-out beyond the oceans and the mountains, so much so our history unravels exchange between India and the wider world. This legacy, epitomised as 'the glory that was Ind', was partly the product of travels into India and out of India. It was the two-way traffic of which there is testimony inside in Nalanda, and outside, even in Ulan Bator. Our literature and arts bear immortal testimony to our thirst for travel and even our law, over two thousand years ago, had canalized travels abroad. For instance, in the days of Kautilya (BC 321-296) there was a Superintendent of Passports 'to issue passes at the rate of a masha a pass'. Further details on passport law are found in Katutilya's Arthasastra. Indeed, viewing the subject from the angle of geo-cultural end legal anthropology and current history, freedom of movement and its off-shoot-the institution of passport-have been there through the Hellenic, Roman, Israelite, Chinies, Persian and other civilisations. Socrates, in his dialogue with Crito, spo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of association, it often makes all rights meaningful knowing, studying, arguing, exploring, conversing, observing and even thinking. Once the right to travel is curtailed, all other rights suffer, just as when curfew or home detention is placed on a person. America is of course sovereign, but her sovereignty is woven in an international web that makes her one of the family of nations. The ties with all the continents are close-commercially as well as culturally. Our concerns are planetary beyond sunrises and sunsets. Citizenship implicates us in those problems and paraplexities, as well as in domestic ones. We cannot exercise and enjoy citizenship in World perspective without the right to travel abroad." And, in India, Satwant [1967] 3 S.C.R. 525. set the same high tone through Shri Justice Subba Rao although A. K. Gopalan [1950] S.C.R. 88 and a stream of judicial thought since then, had felt impelled to underscore personal liberty as embracing right to travel abroad. Tambe CJ in A. G. Kazi A.I.R. 1967 Bom. 235 speaking for a Division Bench, made a comprehensive survey of the law and vivified the concept thus: "In our opinion, the language used in the Article (Art. 21) also ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to bend the jurisprudence of personal locomotion to serve its interests. The twilight of liberty must affect the thought ways of judges. Things have changed, global awareness, in grey hues, has dawned. The European Convention on Human Rights and bilateral understandings have made headway to widen freedom of travel abroad as integral to liberty of the person (Fourth Protocol). And the Universal Declaration of Human Rights has proclaimed in Art. 13 : "(1) Everyone has the right to freedom of movement and residence within the borders of each State. (2) Everyone has the right to leave any country, including his own, and to return to his country." This right is yet inchoate and only lays the base. But, hopefully, the loftiest towers rise from the ground. And despite destructive was and exploitative trade, racial hatreds and credal quarrels, colonial subjections and authoritarian spells, the world has advanced because of gregarious men adventuring forth, taking with them their thoughts and feelings on a trans-national scale. This human planet is our single home, though geographically variegated, culturally diverse, politically pluralist, in science and technology competitive and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letters of the text of Part III de hors the Discovery of India and the Destiny of Bharat or the divinity of the 'soul and the dignity of the person highlighted in the Preamble unduly obsessed with individual aberrations of yesteryears or vague hunches leading to current fears, is a parsimonious exercise in constitutional perception. Thus, the inspirational background. cosmic perspective and inherited ethos of the pragamtic visionaries and jurist-statesmen who draw up the great Title Deed of our Republicmust illumine the sutras of Articles 21, 19 and 14. The fascist horror of World War II burnt into our leaders the urgency of inscribing indelibly into our Constitution those values sans which the dignity of man suffers total eclipse. The Universa l Declaration of Human Rights, the resurgence of international fellowship, the vulnerability of freedoms even in democracies and the rapid development of an integrated and intimately interacting 'one world' poised for peaceful and progressive intercourse conditioned their thought processes. The bitter feeling of the British Raj trampling under foot swaraj the birth-right of every Indianaffected their celebrations. The hidden divinity in e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teach as well as to learn, and you have plenty yet to teach to the world for centuries to come." From the point of view of comparative law too, the position is well established. For, one of the essential attributes of citizenship, says Prof. Schwartz, is freedom of movement. The right of free movement is a vital element of personal liberty. The right of free movement includes the right to travel abroad. So much is simple textbook teaching in Indian, as in Anglo-American law. Passport legality, affecting as it does, freedoms that are 'delicate and vulnerable, as well as supremely precious in our society', cannot but excite judicial vigilance to obviate fragile dependency for exercise of fundamental rights upon executive clemency. So important is this subject that the watershed between a police state and a government by the people may partly turn on the prevailing passport policy. Conscious, though I am, that such prolix elaboration of environmental aspects is otiose, the Emergency provsions of our Constitution, the extremes of rigour the nation has experienced (or may) and the proneness of Power to stoop to conquer make necessitous the hammering home of vital values expressed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... social activities for all the commingling which gregarious man enjoys. Those with the right of free movement use it at times for mischievous purposes. But that is true of many liberties we, enjoy. We nevertheless place our faith in them and against restraint, knowing that the risk of abusing liberty so as to give right to punishable conduct is part of the price we pay for this free society. (Apthekar v. Secretary of State : 378 US 50012 L.Ed. 2d 992 (1964). Judge Wyzanski has said "This travel does not differ from any other exercise of the manifold freedoms of expression....... from the right to speak, to write, to use the mails, to public, to assemble, to petition." (Wyzanski, Freedom to Travel, Atlantic Montaly. Oct. 1952, p. 66 at 68). The American Courts have, in a sense, blazed the constitutional trail on that facet of liberty which relates to untrammelled travel. Kent, Apthekar and Zemel are the landmark cases and American jurisprudence today holds as a fundamental part of liberty (V Amendment) that a citizen has freedom to move across the frontiers without passport restrictions subject, of course, to well-defined necessitous exceptions. Basically, Blackstone is sti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed' ? And What is law ? Anything, formal, legislatively processed, albeit absurd or arbitrary ? Reverence for life and liberty must over power this reduction an absurdem' Legal interpretation, in the last analysis, is value judgment. The high seriousness of the subject matter-life and liberty-desiderates the need for law, not fiat. law is law when it is legitimated by the conscience and consent of the community generally. Not any capricious compthe but reasonable: mode ordinarily regarded by the cream of society as dharma or law, approximating broadly to other standard measures regulating criminal or like, procedure in the country. Often, it is a legislative act, but it must be functional, not fatuous. This line of logic alone will make the two clauses of Art. 21 concordant, the procedural machinery not destroying the substantive fundamentally. The compulsion of constitutional humanism and the assumption of full faith in life and liberty cannot be, so futile or fragmentary that any transient legislative majority in tantrums against any minority, by three quick readings of a bill with the requisite quorum; can prescribe any unreasonable modality and thereby sterilise the grandil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21 could not have been left to illusory legislators happenstance. Even as relevant reasonableness informs art. 14 and 19, the component of fairness is implicit in Art. 21. A close-up of the Gopalan case (supra) is necessitous at this stage to underscore the quality of procedure relevant to personal liberty. Procedural safeguards are the indispensable essence of liberty. In fact, the history of personal liberty is large the history of procedural safeguards and right to a hearing has a human-right ring. In India, because of poverty and illiteracy, the people are unable to protect and defend their rights; observance of fundamental rights is not regarded as good politics and their transgression as had politics. I sometimes pensively reflect that people's militant awareness of rights and duties is a surer constitutional assurance of governmental respect and response than the sound and fury of the 'question hour' and the slow and unsure delivery of court writ 'Community Consciousness and the Indian Constitution is a fascinating subject of sociological relevance in many areas. To sum up, 'procedure' in Art. 21 means fair, not formal procedure. 'Law' is reasonable law, not any enacted pi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our shall not take away life or personal freedom unless you choose to take it away, which is more verbiage......... It is said that article 21 affords no protection against competent legislative action in the field of substantive criminal law, for there is no provision for judicial review, on the ground of reasonableness or otherwise, of such laws, as in the case of the rights enumerated in article 19. Even assuming it to be so the construction of the learned Attorney General would have the effect of rendering wholly ineffective and illusory even the procedural protection which the article was undoubtedly designed to afford." (p. 202) (emphasis, added) "After giving the matter my most careful and anxious consideration, I have come to the conclusion that there are only two possible solutions of the problem. In the first place, a satisfactory via media between the two extreme positions contended for on either side may be found by stressing the word 'established' which implies some degree of firmness, permanence and general acceptance, while it does not exclude origination by statute. 'Procedure established by' may well be taken to mean what the Privy Council referred to in King E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be the victim. May be, the learned Judge stretched it a little beyond the line but in essence his norms claim my concurrence. In John v. Rees [1969] 2 all E. R. 274 the true rule, as implicit in any law, is set down "If there is any doubt, the applicability of the principles will be given the benefit of doubt." And Lord Denning, on the theme of liberty, observed in Schmidt V. Secretary of State (supra) "Where a public officer has power to deprive a person of his liberty or his property, the general principle is that it is not to be done without hearing." Human rights: It is a mark of interpretative respect for the higher norms our founding fathers held dear in affecting the dearest rights of life and liberty so to read Art. 21 as to result in a human order lined with human justice. And running right through Arts. 19 and 14 is present this principle of reasonable procedure in different shades. A certain normative harmony among the, articles is thus attained, and hold Art. 21 bears in its bosom the construction of fair procedure legislatively sanctioned. No Passport Officer shall be mini-Caesar nor Minister incarnate Caesar in a system where the rule of law reigns supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rying to adapt the world to himself. Therefore, all progress depends on the unreasonable man." (George Bernard Shaw in 'Maxims for Revolutionists'). 'Passport' peevishness is a suppressive possibility, and so the words of Justice Jackson (U.S. Supreme Court) may be apposite: "Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order." (West Yirginia State Board of Education v. Barnetto 319 US 624 (1943).Under our constitutional order, the price of daring dissent shall not be passport forfeit. The impugned legislation, ss. 5, 6 and 10 especially, must be tested even under Art. 21 on canons of processual justice to the people outlined above. Hearing is obligatorymeaningful hearing, flexible and realistic, according to circumstances, but hot ritualistic and wooden. In exceptional cases and emergency situations, interim measures may be taken, to avoid the mischief of the passportee becoming an escapee before the hearing begins. 'Bolt the stables after the horse has been stolen' is not a command of 'natural justice. But soon aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er(1).. By way of aside, the fluctuating fortunes of fundamental rights, when the proletarist and the proprietariat have asserted them in Court, partially provoke sociological research and hesitantly project the Cardozo thesis of subconscious forces in judicial noesis when the cycloramic review starts from Gopalan, moves on to In re : Kerala Education Bill and then on to All India Bank Employees Union, next to Sakai Newspapers, crowning in Cooper [1973] 3 S.C.R. 530 and followed by Bennet Coleman [1973] 2 S.C.R. 757 and Sambu Nath Sarkar [1973]1 S.C.R. 856. Be that as it may, the law is now settled, as I apprehend it, that no article in Part III is an island but part of a continent, and the conspectus of the whole part gives the directions and correction needed for interpretation of these basic provisions. Man is not dissectible into separate limbs and, likewise, cardinal rights in an organic constitution, which make man human have a synthesis. The proposition is indubitable, that art. 21 does not, in a given situation, exclude Art. 19 if both rights are breached. We may switch to Art. 19 very briefly and travel along another, street for a while. Is freedom of extra-territorial t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re directly, specifically, substantially and imminently attracted so that the basic right may not be stultified. Restraints are necessary and validly made by statute, but to paint with an over-broad brush a power to blanketban travel abroad is to sweep overly and invade illicitly. 'The law of fear' cannot reign where the proportionate danger is containable. It is a balancing process, not over-weighted one way or the other. Even so, the perspective is firm and fair. Courts must not interfere where the order is not perverse, unreasonable, mala fide or supported by no material. Under our system, court writs cannot run government, for, then, judicial review may tend to be a judicial coup. But 'lawless' law and executive excess must be halted by judge-power best the Constitution be subverted by branches deriving credentials from the Constitution. An imperative guideline by which the Court will test the soundness of legislative and executive constraint is, in the. language of V. C. Row [1952]S.C.R.597 this .lm15 "The reasonableness of a restriction depends upon the values of life in a society, the circumstances obtaining at a particular point of time when the restriction is imposed, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged that the direct effect of the passport law (and refusal thereunder) was not a blow on freedom of speech, of association or of profession and, therefore, it could not be struck down even if it overflowed Art. 19(2), (4) and (6). This presentation poses the issue, 'What is the profile 'of our free system ?' Is freedom of speech integrally interwoven with locomotion? Is freedom of profession done to death if a professional, by passport refusal without reference to Art. 19 (f ), is inhibited from taking up a job offered abroad ? is freedom of association such a hot-house plant that membership of an international professional or political Organisation can be cut off on executive-legislative ipse dixit without obedience to Art. 19(4) ? This renophatic touch has not been attested by the Constitution and is not discernible in the psyche. An antiinternational pathology shall not afflict our National Charter. A Human Tomorrow on Mother Earth is our cosmic constitutional perspective (See Art. 51 To. my mind, locomotion is, in some situation, necessarily. involved in the exercise of the specified fundamental rights as an associated or integrated right. Travel, simiplicter, is peripheral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealisation the mind must be free." Again "Freedom of expression is an essential process for advancing knowledge and discovering truth. So also for participation in decision-making in a democratic society. Indeed free expression furthers stability in the community by reasoning together instead of battling against each other. Such being the value and function of free speech, what are the dynamics of limitation which will fit these values and functions without retarding social goals or injuring social interest ? It is in this background that we have to view the problem of passports and the law woven around it. There are two ways of looking at the question .... as a facet of liberty and as an ancient of expression." Thomas Emerson comments on passports from these dual angles : Travel abroad should probably be classified as 'action' rather than "expression". In commonsense terms travel is more physical movement than communication of ideas. It is true that travel abroad is frequently instrumental to expression, as when it is undertaken by a reporter to gather news', a scholar to lecture, a student to obtain information or simply an ordinary citizen in order to expand his understand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to go to a foreign country may, with certainty and immediacy, spell denial of free speech and professional practice or business. Thirdly, the fundamental right may itself enwomb locomotion regard-. less of national frontiers. The second and third often are blurred in their edges and may overlap. The first class may be illustrated. If the passport authority specifically conditions the permission with a direction not to address meetings abroad or not to be a journalist or professor in a foreign country, the order violate Art. 19(1) (a) or (f) and stands voided unless Art. 19 (2) and (6) are complied with. The second category may be exemplified and examined after the third which is of less frequent occurrence. If 'a person is an international pilot, astronaut, Judge. of the International Court of Justice, Secretary of the World Peace Council, President ofa body of like nature, the particular profession not only calls for its practice travelling outside Indian territory but its core itself is international travel. In such an area, no right of exit, no practice of profession or vocation. Similarly, a cricketer or tennis player recruited on a world tour. Free speech may similarly be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce in themselves, to make the Army distrust the backing it is getting from the civil power, to make workmen lose confidence in the weapons they are striving so hard to, make, to present the Government as a set of non-entities over whom the Prime Minister towers, and then to undermine him in his own heart, and, if possible, before the eyes of the nation. All this poured out by cable and radio to all parts of the world, to the distress of all our friends and to the delight of all our foes I am in favour of this freedom, which no other country would use, or dare to use, in times of mortal peril such as those through which we are passing." I wholly agree that spies, traitors, smugglers, saboteurs of the health, wealth and survival or sovereignty of the nation shall not be passported into hostile soil to work their vicious plan fruitfully. But when applying the Passports Act, over-breadth hyper-anxiety, regimentation complex, and political mistrust shall not sub-consciously exaggerate, into morbid or neurotic refusal or unlimited impounding orfinal revocation of passport, facts which, objectively assessed, may prove tremendous trifles. That is why the provisions have to be read down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the words of Art. 14, 19and 21, we may keep J. B. Preistley's caution : "We do not imagine that we are the victims of plots, that bad men are doing all this. It is the machinery of power that is getting out of sane control. Lost in its elaboration, even some men of goodwill begin to forget the essential humanity this machinery should be serving. They are now so busy testing, analysing, and reporting on bath water that 'they cannot remember having thrown the baby out of the window." (Introduction by H. H. Wilson, Associate Professor of Political Science, Princeton University to Freedom is as Freedom Does by Corriss Lament, ibid p. xxi.)I have divagated a great deal into travel constitutionality in the setting. of the story of the human journey, eventhough such a diffusion is partly beyond the strict needs of this case. But judicial travelling, like other travelling. is almost like 'talking with men of other centuries and countries.' I agree with Sri Justice Bhagwati, notwithstanding this supplementary. KAILASAM, J.- This petition is filed by Mrs. Maneka Gandhi under Article 32 of the Constitution of India against the Union of India and the Regional Pass port Officer fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n May 11, 1977, the Minister of External Affairs approved the impounding of the passport of 11 persons and on May 19, 1977 an order was passed by the Minister impounding the passports of 8 persons out of 11 persons that on July 1, 1977 the authorities concerned informed the Ministry ofExternal Affairs that the petitioner and her husband had arrived at Bombay on the after-noon of July 1, 1977 and that information bad been received that there was likelihood of the petitioner leaving the country. The authorities contacted the Ministry of External Affairs and Minister after going through the relevant papers approved the impounding of the passport of the petitioner on the evening of July 1, 1977 in the interests of general public under Section 10(3)(c) of the Passports Act, 1967. On July 2, 1977 Regional Transport Officer on instructions from the Government of India informed thepetitioner about the Central Government's decision to impound her passport in public interest and requested her to surrender her passport. In the counter affidavit various allegations made in the petition were denied and it was stated that the order was perfectly justified and that the petition is without merits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prived without satisfying the requirements of not only Art. 21, but also Article 19. In addition the provisions of Section 10(3)(c) were challenged 'as being ultra vires of the powers of the legislature and that in any event the order vitiated by the petitioner not having been given an opportunity of being heard before the impugned order was passed. It was contended that the fundamental rights guaranteed under Article 19(1) particularly the right of freedom of speech and the right to practise profession was available to Indian citizens not only within the territory of India but, also beyond the Indian territory and by preventing the petitioner from travelling abroad her right to freedom of speech and right to practise profession outside the country were also infringed. The plea is that the fundamental rights guaranteed under article 19 are available not only within territory of India but outside the territory of India as well. The question that arises for consideration is whether the Fundamental Rights, conferred under Part III and particularly the rights conferred under Article 19 are available beyond the territory of India. the rights conferred under Article 19 (1) (a), (b), (c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se shall, to the extent of the contravention, be void. The word "law" in the Article is defined as: (a) "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; and (b) "laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. While the applicability of the custom and usage is restricted to the territory of India "law" may have an extra-territorial application. In distributing the legislative powers between the Union and the 'States Article 248 provides that Parliament may make laws for the whole or any part of the territory of India and the Legislature of a 'State may make laws for the whole or any part of the State. Article 245(2) provides that no law made by parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. This article makes it clear that a State law cannot have any extra-territor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the territorial enforcement of law and the territoriality of law itself. At p. 11 the author states : "Since territoriality is not a logically necessary part of the idea of law, a system of law is readily conceivable the application of which is limited and determined not by reference to territorial considerations, but by reference to the personal qualifications of the individuals over whom jurisdiction is exercised." According to the text-books above referred to, the position is that a law is normally applicable within the territory, but can be made applicable to its citizens wherever they may be. Whether such extra-territorial applicability is intended or not will have to be looked for in the legislation.I will now refer to the decisions of courts an this subject. In Niboyet v. Niboyet 48 L. J. P. I at p. 10 the Court of Appeal stated: "It is true that the words of the statute are general, but general word,,, in a statute have never, so far as I am aware, been interpreted so as to extend the action of the statute beyond the territorial authority of the Legislature. All criminal statutes are in their terms general; but they apply only to offences committed within the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l in that case held that "An Act of the Imperial Parliament today unless it provides otherwise, applies to the whole of the United Kingdom and to nothing outside the 'United Kingdom: not even to the Channel Islands or the Isle of Man, let alone to a remote overseas colony or possession." The Court of Appeal in a later decision reported in (1964) 3 All. E.R. p. 148 (C.E.B. Draper Son, Ltd. vs. Edward Turner Son, Ltd.) approved of the proposition laid down in Att. Gen. for Alberta vs. Huggard Assets, Ltd., observing "Prima facie an Act of the United Kingdom Parliament, unless it provides otherwise, applies to the whole of the United Kingdom and to nothing outside the United Kingdom". The cases decided by the Federal Court and the Supreme Court of India may be taken note of. Dealing with the extra-territorial application of the provisions of the Income-tax Act, the Federal Court in Governor--General in Council v. Raleigh Investment Co. Ltd. A. I. R. (31) 1944 Federal Court 51. after finding that there was no territorial operation of the Act observed that if there was any extra territorial operation it is within the legislative powers given to tile Indian Legislature by the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of International Law as regards the ordinary citizen, we have not been referred to any rule of International Law or principle of the comity of nations which is inconsistent with a State exercising disciplinary control over its own armed forces, when those forces are operating outside its territorial limits". The law as laid down by the Courts may now be summarised. Parliament normally restricts the operation of the legislation to its own territories. Parliament may pass legislation controlling the activities of the citizens abroad. An intention to have extra territorial operation should be expressed or necessarily implied from the language of the Statute. The Statute should be so interpreted as not to be inconsistent with the comity of nations or with the established rules of international law. It is now necessary to examine the various articles of Part III of the Constitution to find out whether any intention is expressed to make any of the rights available extraterritorially. The application of Article 14 is expressly limited to the territory of India as, it lays down that "The State shall not deny to any person equality before the law or the equal protection of the laws wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court and the High Courts. The restriction of the right to move freely throughout the territory of India and the right to reside and stay in any part of the territory of India is strongly relied upon as indicating that in the absence of such restrictions the other rights are not confined to the, territory of India. The provisions in Art. 19 (1) (d) and (e) i.e. the right to move freely throughout the territory of India and to reside and settle in any part of the territory of India have historical significance. In A. K. Gopalan vs. The State of Madras, [1950] S.C.R. 88. 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 throughout the territory of India. It is a historical fact that there were rivalries between the various States and the imposition of restraint on movement from State to State by some States was not beyond possibility. In the two clauses 19 (1) (d) and (e) the right "to move freely throughout the territory of India" and "to res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but to present the main ideals of human rights and freedoms in order to inspire everybody, whether in or out of governments, to work for their progressive realization. The Commission finished the Declaration and it was promulgated by the UN Assembly on December 10, 1948. The discussion about the Draft Indian Constitution took place between February and October, 1948 and the Articles relating to the Fundamental Rights were discussed in October, 1948, i.e. before the Universal Declaration of Human Rights was promulgated by the UN Assembly on December 10, 1948. It is most unlikely that before the Declaration of Human Rights was promulgated ' the framers of the Indian Constitution decided to declare that the Fundamental Rights conferred on the citizens would have application even outside India. The Universal Declaration of Human Rights was not binding as law but was only a pious hope for achieving a common standard for all peoples and all nations. Article 13 of the Declaration which is material for our discussion runs as follows : Paragraph 1. Everyone has the right to freedom of movement and residence witin the borders of each state. Paragraph 2. Everyone has the right to leave an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r freedom of speech and press along with freedom of religion. Liberty of speech and liberty of press are substantially identical. They are freedom to utter words orally and freedom to write, print and circulate words. But this freedom of expression would be meaningless if people were not permitted to gather in groups to discuss mutual problems and communicate their feelings and opinions to governmental officers. The First Amendment therefore provides that the people have the right to assemble peaceably and petition the government for redress of grievances. The petition for redress can only be confined to the United States of America. In a recent address on Human Rights Warren Christopher, U.S. Deputy Secretary of State reproduced in Shan, October 1977, stated before the American Bar Association in Chicago that the promotion of human rights has become a fundamental tenet of the foreign policy of the Carter Administration. In explaining the conception of human rights and its practice in America the Deputy Secretary stated that the efforts should be directed to the most fundamental and important human rights all of which are internationally recognised in the Universal Declaration of H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... damental Rights outside the territory of India even if it is taken that such rights are available outside the country. In the view that a citizen is not entitled to the Fundamental Rights guaranteed under Art. 19 outside the territorial limits of India,the contention of the learned counsel for the petition that by denying him the passport to travel outside India, his Fundamental Rights like freedom of speech and expression, to assemble peaceably, to practice profession or to carry on occupation, trade or business are infringed, cannot be accepted. The passport of the petitioner was impounded on the ground that her presence in connection with the Inquiry Commission may be necessary and in the interest of public it was necessary to do so. The impugned order does not place any restrictions on the petitioner while she is away from India. Hence the question whether the State could impose such restraint does not arise in this case. As the contention was that by impounding the, passport the petitioner's fundamental right of freedom of speech etc. outside the country was infringed, it became necessary to consider whether the citizen had any such right. It was strenuously contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions on movement but under a law defining crime and making it punishable. The punishment is correlated directly With the violation of some other person's right and not with the right of movement possessed by the offender himself. In my opinion, therefore, the Indian Penal Code does not come within the ambit of the words 'law' imposing restrictions on the right to move freely." The learned Judge, Justice Fazal Ali, took a different view regarding preventive detention on the basis that it did not admit of a trial but the order of detention rested on an apprehended and not actual danger. Regarding punitive detention, the decision of a Bench of five Judges in H. Saha v. State of West Bengal, [1975] 1 S.C.R. 778 expressed the same view. Chief Justice Ray observed : "It is not possible to think that a person who is detained will yet be free to move or assemble or form association or unions or have the right to reside in any part of India or have the freedom of speech or expression. Suppose, a person is prosecuted of an offence of cheating and convicted after trial, it is not open to him to say that the imprisonment should be tested with reference to Art. 19 for its reasonableness. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... general morality. On the other hand, Articles 20, 21 and 22 are primarily concerned with penal enactments or other law under which personal safety or liberty of persons would be taken away in the interest of society and the set down the limits within which the State control should be exercised...... the right to the safety of one's life and limbs' and to enjoyment of personal liberty, in the sense of freedom from physical re-strain and coercion of any sort, are the inherent birth right-. of a man. The essence of these rights consists in restraining others from interfering with them and hence they cannot be described in terms of "freedom" to do particular things. . . ." The words "personal liberty" take their colour from the words "deprivation of rifle'. It means liberty of the person, that is freedom from personal restraint. Article 21 is one of the Articles along with Articles 20 and 22 which deal with restraint on the person. According to Dicey : "The right to personal liberty as understood in England means in substance a person's right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification." (Dicey's L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comprehensive to include the freedoms enumerated in Art. 19(1), and its deprivation would result in the extinction of those freedoms, the Constitution has treated these civil liberties as distinct from fundamental rights and made separate provisions in Art. 19 and Arts. 21 and 22 as to the limitations and conditions subject to which alone they could be taken away or abridged ... The interpretation of these Articles and their correlation was elaborately dealt with by the full court in Gopalan's case. Approving the interpretation of the Articles in Gopalan's case it was held that law which authorises deprivation of personal liberty did not fall within the purview of Art. 19 and its validity was not to be judged by the criteria indicated in that Article but depended on its compliance with the requirements of Arts. 21 to 22. This view was again affirmed in State of Bihar v. Kameshwar Singh, [1952] S.C.R 889 where Das, J. in approving the law laid down in Gopalan's case observed as follows "As I explained in Gopalan's case and again in Chiranjit LaPs case 1950 SCR 869 our Constitution protects the freedom of the citizen by article 19 (1) (a) to (e) and (g) but empowers the State, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner on the decision by this Court in Sakal Papers (P) Ltd. and Ors. v. The Union of India. [1962] 3 S.C.R. 842 The learned counsel referred to the passage at page 5 60A Part where it was held that "the correct approach ; in such cases should be to enquire as to what in substance is the loss or injury caused to a citizen and not merely what manner and method has been adopted by ,,he State in placing the restriction and, therefore, the right to freedom, of speech cannot be taken away with the object of taking away the business activities of the citizen. Reference was also made to another passage at 867 where it 'was held that the "legitimacy of the result intended to be achieved does not necessarily imply that every means to achieve it is permissible; for even if the end is desirable and permissible, the means employed must not transgress the limits laid down by the constitution if they directly impinge on any of the fundamental rights guaranteed by the Constitution. It is no answer when the constitutionality of the measure is challenged that apart from the fundamental right infringed the provision is otherwise legal. The above observations relied on by the learned counsel were ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt with in a several clauses of Article 19(1). The minority view as expressed by Subba Rao, J. is that if a person's fundamental right under Art. 21 is infringed, the State can rely upon a law to sustain the action; but that cannot be a complete answer unless the State laws satisfy the test laid down in Article 19(2) as far the attributes covered by Article 19(1) are concerned. In other words, the State must satisfy that petitioners fundamental rights are not infringed by showing that the law only imposes reasonable restrictions within the meaning of Art. 19(2) of the Constitution. The submission of the learned counsel for the petitioner is that the view as ,expressed by Subba Rao, J. has been affirmed by the subsequent decisions in the Bank Nationalisation [1970] 3 S.C.R. 530 case and Bennet Colomon ) [1973] 2S.C.R.757 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 acqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublic purpose must be adjudged by the application of the same test. Acquisition must be under the authority of a law and the expression law means a law which is within the competence of the legislature and does not impair the guarantee of the rights in Part 111. The learned counsel for the petitioner submitted that on similar reasoning it is necessary that an enactment under Art. 21 must also satisfy the requirements of Article 19 and should be by a law which is within the competence of the legislature and does not impair the guarantee of the rights in part III including those conferred under Art. 19 of the Constitution of India. The important question that arises for consideration is whether the decision in the Bank Nationalisation case has over-ruled the decision of Gopalan's case and is an authority for the proposition and an act of the legislature relating to deprivation of life and personal liberty should also satisfy the other fundamental rights guaranteed under Art. 19(1) of the Constitution. In order to determine what exactly is the law that has been laid down in Bank Nationalisation Case, it is necessary to closely examine the decision particularly from pages 570 to 57 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e he observed : "Art. 19(1) (f) read with Art. 19(5) presupposes that the person to whom the fundamental right is guaranteed retains his property over or with respect to which alone that right may be exercised. Thus the observation in Gopalan's case extending the principle laid down in the majority judgment to. freedom in respect of property was reiterated by Das, J. in Chiranjit Lal Chowduri's case (supra) and Subodh Gopal's case. The principle was given more concrete shape in State of Bombay v. Bhanjit Munji [1955] (1) S.C.R. 777 case wherein it was held that "if there is no property which can be acquired held or disposed of,. no restriction can be placed on the exercise of the right to acquire, hold or dispose it of, and as clause (5) contemplates the placing of reasonable restrictions of the exercise of those rights it must follow that the Article postulates the existence of property over which the rights are to be exercised." This view was accepted in the later cases Dabu Barkya Thakur v. State of Bombay [1961] 1 S.C.R. 128 and Smt. Sitabati Debi and Anr. v. State of West Bengal. [1967] 2 S.C.R. 940 The Court proceeded further after referring to some cases to note that. "W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y may be exercised. The fact that right to property guaranteed under Art. 19(1) (f) is subject to restrictions under Art. 19(5) and 31 and thereby relate to the right to property closely inter-related cannot be overlooked for that formed the basis for the conclusion. After referring to the various Articles of the Constitution the Court observed : "The enunciation of rights either express or by implication does not follow uniform pattern. But one thread runs through them; they seek to protect the rights of the individual or group of individuals against infringement of those rights within specific limits. Part III of the Constitution weaves a pattern of guarantees delimit the protection of those rights in their allot fields; they do not attempt to enunciate distinct rights." It proceeded "We are therefore unable to hold that the challenge to the validity of the provisions for acquisition is liable to be tested only on the ground of non-compliance with Art. 31(2). Article 31(2) requires that property must be acquired for a public purpose and that it must be acquired (1) [1968] 3 S.C.R. 489. under a law with characterstics set out in that Articles. Formal compliance of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e form and object of State action and not upon its direct operation upon the individual's freedom." Though the liberty of person is incidentally mentioned there is no further discussion on the subject. While undoubtedly Bank Nationalisation case settles the law that Art. 19(1) (f) and Art. 31(2) are not mutually exclusive there is no justification for holding that the case. is authority for the proposition that the legislation under Art. 21 should also satisfy all the fundamental rights guaranteed under Art.. 19(1) of the Constitution. As emphasised earlier Art. 19 (1) (f) and Art. 31 (2) form a single pattern and deal with right to property. The fundamental right under Art. 19(1) (f) is restricted under Art. 19(5) or Art. 31 (2) and as the article refer to right to property they are so closely interlinked, and cannot be held to be mutually exclusive. But Art. 21 is related to deprivation of life and personal liberty and it has been held that it is not one of the rights enumerated in Art. 19(1) and refers only to personal rights as are not covered by Article 19. The decision in Bank Nationalisation case so far as it relates to Articles 19(1) and 21, is in the nature of obiter d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... article 22(4) to (7) which by themselves constitute a complete code. I am unable to accede to this extreme point of view also." Mukherjea J. at p. 229 of that judgment observed : "1t is also unnecessary to enter into a discussion on the question raised by the learned AttorneyGeneral as to whether article 22 by itself is a self-contained Code, with regard to the law of preventive detention and whether or not the procedure it lays down is exhaustive." Justice Mahajan at page 226 held that "I am satisfied on a review of the whole scheme of the Constitution that the intention was to make article 22 self-contained in respect of the laws on the subject of preventive detention." It is thus seen that the assumption in Bank Nationalisation's case that the majority of the Court held that article 22 is a complete code is erroneous and the basis of the decision stands shaken. If the obiter dicta based on the wrong assumption is to be taken as the correct position in law, it would lead to strange results. If 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hortly-referred to. In S. N. Sarkar v. West Bengal [1973] 1 S.C.C. 856, the Supreme Court held that in Gopalan's case the majority Court held that Article 22 was a self-contained Code and, therefore, the law or preventive detention did not have to satisfy the requirement of Articles 19, 14 and 20. In the Bank Nationalisation case the aforesaid premise in Gopalan was disapproved and; therefore, it no longer holds the field. Though the Bank Nationalisation case dealt with in relation to Article 19 and 31, the basic approach considering the fundamental rights guaranteed in-the different provisions of the Constitution adopted in this case held the major premises of the majority in the Gopalan case was erroneous. The view taken in this case also suffers from the same infirmities referred to in Bank Nationalisation case. Later, in the case of Khundiran v. West Bengal [1975] 2 S.C.C. 81, a Bench of four Judges again erroneously stated that Gopalan's case had taken the view that Article 22 was a complete Code. After referring to Bank Nationalisation case and S. N. Sarkar's and to the case of H. Saha v. State of West Bengal [1975] 1 S.C.R. 778.the Court regarded the question as concluded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eprivation of rights outside Art. 21 will also have to be considered. Justice Chandrachud understood the decision in Bank Nationalisation case as holding that Art. 21 and Art. 19 cannot be treated as mutually exclusive. Justice Bhagwati at page 433 of the reports took the view that in view of the decision of this Court in Cooper's case the minority view in Kharak Singh's case that the law under Art. 21 must also satisfy the test laid down in Art. 19(1) so far the attributes covered by Art. 19(1) are concerned was approved. It is seen that the view taken in the Bank Nationalisation case that a law relating to deprivation of life and personal liberty falling under Art. 21 has to meet the requirements of Art. 19 is due to an error in proceeding on the basis that the majority Court in Gopalan's case held that Article 22 was a self contained code. The decisions which followed Bank Nationalisation case, namely, the case of S. N. Sarkar v. West Bengal and Khundiram v. West Bengal, H. Saha v. West Bengal, suffer from the same infirmity. With respect I agree with the view expressed by Chief Justice Ray and Justice Beg, as be then was, in Shukla's case. Next to Bank Nationalisation case st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o fundamental rights." It is thus clear, that the test of pith and substance of the subject matter and of direct and incidental effect of legislation is relevant in considering the question of infringement of fundamental right. The Court at page 781 said : "by direct operation is meant the direct consequence or effect of the Act upon the rights and quoted with approval the test laid down by the Privy Council in Commonwealth of Australia v. Bank of New South Wales. [1950] A. C. 235 In deciding whether the Act has got a direct operation of any rights upon the fundamental rights, the two tests are, therefore, relevant and applicable. These tests have been applied in several cases before the decision in Bank Nationalisation case. A reference has been made to the decision of Express Newspapers (P) Ltd. and Anr. V. Union of India, [1959] 1 S.C.R. 235 where the test laid down was that there must be a direct and inevitable consequence of the legislation. In Hamdard Dawakhana v. Union of, India [1960] 2 S.C.R. 671. this Court followed the test laid down in Express Newspapers case. The Court expressed its view that it is not the form or incidental infringement that determine constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used according to procedure established by law, the plea that his other fundamental rights are denied cannot be raised if they are not directly infringed. The decisions of the Supreme Court wherein the right of person to travel abroad has been dealt with may be noticed. In Satwant Singh v. Assistant Passport Officer, Delhi [1967] 2 S.C.R. 525 the Court held that though a passport was not required for leaving, for practical purposes no one can leave or enter into India without a passport. Therefore, a passport is essential for leaving and entering India. The Court held the right to travel is part of personal liberty and a person could not be deprived of it except according to the procedure laid down by law. The view taken by the majority was that the expression "personal liberty" in Article 21 only excludes the ingredients of liberty enshrined in Art. 19 of the Constitution and the exression 'personal liberty' would take in the right to travel abroad. This right to travel abroad is not absolute and is liable to be restricted according to the procedure established by law. The decision has made it clear that "personal liberty" is 'not one of the rights secured under Article 19 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled usages and normal modes of proceedings, sanctioned by the Criminal Procedure Code which is a general law of Criminal procedure in the Country. But as it is accepted that procedure established by law refers to statute law and as the legislature is competent to change the procedure the procedure as envisaged in the criminal procedure cannot be insisted upon as the legislature can modify the procedure. The Supreme Court held in Kartar Singh's case [1963] 1 S.C.R. 332 that Regulation 236 clause (b) of the U.P. Police Regulation which authorises domiciliary visits when 'there was no law on such a regulation, violated Article 21. I will not proceed to examine the provisions of Passport Act, Act 15 of 1967, to determine whether the Provisions of the Act are in accordance with the procedure established by law. The Preamble states that the Act is to provide for the issue of passports and travel documents to regulate the departure from India of citizens of India and other persons and for matters incidental or ancillary thereto. It may be remembered that this Act was passed after the Supreme Court had held in Satwant Singh V. Union of India'[1967] 3 S.C.R. 525. that the right to tavel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10(3) with which we are concerned runs as follows 10(3).-The passport authority may impound or cause to be impounded or revoke a passport or travel document,- (a) If the passport authority is satisfied that the holder of the passport or travel document is in wrongful possession of; (b) If the passport or travel document was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the passpot or travel document or any other person on his behalf; (c) If the passport authority deems it necessary so to do in the interests of the sovereignity and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public; (d) If the holder of the passpot or travel document has, at any time after the issue of the passort or travel document, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years; (c) If proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) if the passport authority deems it necessary so to do for reasons stated in the subsection, he may impound a passport. He is required to record in writing a brief statement of 'the reasons for making such order and to furnish a copy of the order on demand unless in any case he thinks for reasons mentioned in sub-section (5) that a copy should not be furnished. Except against an order passed by the Central Government the aggrieved person has a right of appeal. The appellate authority is required to give a reasonable opportunity to the aggrieved person of representing his case. It was submitted on behalf of the petitioner that on a reading of section 10(3) observance of rules of natural justice, namely the right to be heard, is implied and as the Government had failed to give an opportunity to the petitioner to explain her case the order is unsustainable. In the alternative it was submitted that if section 10(3) (c) is construed as denying the petitioner an opportunity of being heard and by the provisions of section 11 a right of appeal against an order passed by the Central Government is denied the provisions will not be procedure as established by law under Article 21 and the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r summons for appearance of the holder of the passport has been issued by any court or if there is an order prohibiting departure from India of the holder of the passport has been made by a court. It will be noticed that when action is contemplated under any of the clauses (a), (b), (d), (e), (f) and (h), it is presumed that the authority will give notice, for the passport authority cannot be satisfied under sub-clause (a) that the holder is in wrongful possession thereof or under clause (b) that he obtained the passport by suppression of material information. Similarly under clause (d) whether a person has been convicted by a court in India for any offence involving moral turpitude and sentenced to imprisonment for not less than two years, can only be ascertained after hearing the holder of the passport. Under clause (e) the fact whether proceedings in respect of an offence alleged to have been committed by the holder of the passport are pending before a criminal court can only be determined after notice to him. Equally whether a condition of passport has been contravened under sub-clause (f) or whether he has failed to comply with a notice under subsection (1) can be ascertained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... py to the holder of the passport on demand unless he for sufficient reasons considers it not desirable to furnish a copy. An order thus passed is subject to an appeal where an appellate authority is required to give a reasonable opportunity to the holder of the passport to put forward his case. When an appeal has to be disposed of after given for a specified period the revocation or impounding during the without hearing the aggrieved person. Further when a passport is given for a specified period the revocation or impounding during the period when the passport is valid can only be done for some valid reason. There is a difference between an authority revoking or modifying an order already passed in favour of a person and initially refusing to grant a licence. In Purtabpur Co. v. Cane Commissioner, Bihar, [1960] 2 S.C.R. 807 the Supreme Court held that "it would not be proper to equate an order revoking or modifying a licence with, a decision not to grant a licence." In Schmidt v. Secretary of State, Home Affairs, [1969] 2 Ch. 149 Lord Denning observed that "If his permit (alien) is revoked before the time limit expires he ought, I think, to be given an opportunity of making represe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinary cases and that the correct position is laid down by the Bombay High Court in the case of Minoo Maneckshaw v. Union of India. 76 B.L.R.(1974) 788 The view taken by Tulzapurkar, J. is that the rule of audi alteram partem is not excluded in making an order under sec. 10(3) (c) of the Act. But the Attorney General in making the concession submitted that the rule will not apply when special circumstances exist such as need for taking prompt action due to the urgency of the situation or where the grant of opportunity would defeat the very object for which the action of impounding is to be taken. This position is supported by the decision of Privy Council in De Verteuil v. Knaggs, [1918] A. C 557 wherein it was stated 'it must, however, be borne in mind that there may be special circumstances which would satisfy a Governor, acting in good faith, to take action even if be did not give an opportunity to the person affected to make any relevant statement, or to correct or controvert any relevant statement brought forward to his prejudice." This extraordinary step can be taken by the passport authority for impounding or revoking a passport when he apprehends that the passport holder m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proceedings has been over-ruled in Ridge v. Baldwin. [1964] A.C. 40. The guidance that was given to the Gaming Board was that they should follow the principles laid down in the case of immigrants namely that they have no tight to come in, but they have a right to be heard. The Court held in construing the words the Board "Shall have regard only" to the matter specified, the Board has a duty to act fairly and it must give the applicant an opportunity of satisfying them of the matter specified in the section. They must let him know what their impressions are so that he can disabuse them. The reference to the cases of immigrants is to the decisions of Chief Justice Parker in Re H. K. (An infant) [1967] 2 Q.B.617, at 630 . In cases of immigrants though they had no right to come into the country it was held that they have a right to be heard. These observations apply to the present case and the plea of the petitioner that the authority should act fairly and that they must let her know what their impressions are so that, if possible, she can disabuse them, is sound. In American law also the decisions regarding the scope of judicial review is not uniform. So far as constitutional rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it can be looked into by the court to the limited extent of satisfying itself whether the order passed has a rational and reasonable nexus to the interests of the general public. It was next contended on behalf of the petitioner that the provisions of s. 10(5) of the Act which empowers the Passport authority or the Government to decline furnishing the holder of the passport a brief statement of the reasons for making an order if the authority is of the opinion that it will not be in the interest of sovereignty and integrity of India, security of India, friendly relations of India with any foreign country, or in the interests of the general public is unsustainable in law. It was submitted that along with the right to refuse to furnish a copy of the order made by the Government, as a right of appeal is denied against an order made by the Central Govt. the provisions should be regarded as. total denial or procedure and arbitrary. In view of the construction which is placed on S. 10(3) (c) that the holder of the passport is entitled to be heard before the passport authority deems it necessary to impound a passport, it cannot be said that there is total denial of procedure. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to that person the reasons for the order. In those rare ,cases in which a copy for the reasons of the order is declined by the passport authority and is not furnished during the hearing of the appeal, it would furnish sufficient justification for the courts to have a close look into the reasons for the order and satisfy itself whether it has been properly made. But I am unable to, say that a provision which empowers the authority to decline to furnish reasons for making the order is not within the competence of the legislature. The learned counsel for the petitioner, with some justification, submitted that if no reasons we furnished by the Govt. and no appeal is provided against the order of the Govt. it would virtually amount to denial of procedure established by law as contemplated under Art. 21 of the ,Constitution of India. Though there is considerable force in this submission. I am unable to accept this plea for two reasons. Firstly, the Govt. is bound to give an opportunity to the holder of the passport before finally revoking or impounding it. I expect the case in which the authority declines to furnish reasons for making such an order would be extremely rare. In such cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmons or any requisition from the Commission of Inquiry requiring 'the petitioner's presence and in such circumstances it was submitted that the order is without any justification. A notification issued by the Ministry of External Affairs under s. 22(a) of the Passports Act on 14-4-76 was brought to our notice. By that notification the Central Govt. considered that it is necessary in the public interest to exempt citizens of India against whom proceedings in respect of an offence alleged to have been committed by them are pending before a criminal court in India and if they produce orders from the Court concerned permitting them to depart from India from the operations of the provisions of clause (f) of sub-section (2) of s. 6 of the Act subject to the condition that the passport will be issued to such citizen only for, a period specified in such order of the Court and if no period is specified the passport shall be issued for a period of six months and may be renewed for a further period of six months if the order of the court is not cancelled or modified. The citizen is also required to give an undertaking to the passport authority that he shall, if required by the court concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresentation, it is not necessary for me to go into the merits of the case any further. The Attorney General assured us that all the grounds urged before us by the petitioner and the grounds that may be urged before the authority will be properly considered by the authority and appropriate orders passed. In the result, I hold that the petitioner is not entitled to any of the fundamental rights enumerated-in Article 19 of the Constitution and that the Passport Act complies with the requirements of Art. 21 of the Constitution and is in accordance with the procedure established by law. I construe section 10(3)(c) as providing a right to the holder of the passport to be heard before the passport authority and that any order passed under section 10(3) is subject to a limited judicial scrutiny by the, High Court and the Supreme Court. In view of the statement made by the learned Attorney General to which reference has already been made in judgment, I do not think it necessary to formally interfere with the impugned order. I accordingly dispose of the Writ Petition without passing any formal order. There will be no order as to costs. ORDER Having regard to the majority view, an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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