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TMI Blog1967 (4) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... dia, Ministry of External Affairs, New Delhi, the 1st respondent herein, wrote to the petitioner calling upon him to return the said two passports, as the 3rd Respondent, the Union of India, had decided to withdraw the passport facilities extended to the petitioner. So too, the 2nd respondent, the Regional Passport Officer, Bombay, wrote to the petitioner a letter dated September 24, 1966, calling upon him to surrender the said two passports immediately to the Government and inti- mating him that in default action would be taken against him. Though the petitioner wrote letters to the respondents requesting them to reconsider their decision, he did not receive any reply from them. The petitioner, alleging that the said action of the respondents infringed his fundamental rights under Arts. 21 and 14 of the Constitution, filed the writ petition 'in this Court for the issuance of a writ of mandamus or other appropriate writ or writs directing the respondents to withdraw and cancel the said decision contained in the said two letters, to forbear from taking any steps or proceedings in the enforcement of the said decision and to forbear from depriving the petitioner of the said two pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally affects the rights of a citizen must be pursuant to law. And (5) the said orders offend the principles of fairplay. The learned Additional Solicitor General; presented his arguments from a different perspective. The gist of his arguments may be stated thus, (1) Passport is an official Political document to be presented to the Governments of foreign nations and n-tended to be used for the protection of the holder of the passport in foreign countries : it is only a facility provided by the Government and no person has a right to it. (2) The right to travel is not included in "personal liberty" guaranteed by Art.1 of the Constitution for the following reasons : (a) the right to travel necessitating a passport cannot be a right because a passport gives only a facility -and does not confer a right : (b) no constitution,-! guarantee of the right to travel is conferred under our Constitution for such a guarantee would obviously be ineffective outside the territories of the country governed by the said Constitution : and (c) as the right to travel depends entirely on the municipal law of the foreign country governing the right of entry into that country, in the very nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he fact that possession of passport is a necessary condition of travel in the international community, the prohibition against entry indirectly prevents the person from leaving India. The State in fact tells a person living in India "you can leave India at your pleasure without a passport, but you would not be allowed by foreign countries to enter them without it and you cannot also come back to India without it". No person in India can possibly travel on those conditions. Indeed it is impossible for him to do so. That apart, even that theoretical possibility of exit is ex- pressly restricted by executive instructions and by refusal of foreign-exchange. We have, therefore, no hesitation to hold that an Indian passport is factually a necessary condition for travel abroad and without it no person residing in India can travel outside India. If that be the factual position, it may not be necessary to consider the legal effect of the possession of a passport. But as much of the argument turned upon the question of its scope, it is as well that we noticed the law on the subject. At the outset we may extract some of the forms of passport obtaining in different countries. The Bri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h easier. For him it serves as a voucher and means of identification. But the possession of a passport by one who is not a British subject gives him rights and imposes upon the sovereign obligations which would otherwise not be given or imposed." A summary of the present law on passports is found in Halsbury' Laws of England, Volume IV, at p. 519 and it reads thus: "Passports may be granted by the Crown at any time to enable British subjects to travel with safety in foreign countries, but such passports would clearly not be available so as to permit travel in any enemy's country during war." A footnote to the above says "The possession of a passport is now almost always required by the authorities to enable a person to enter a country." P. Weis in his book "Nationality and Statelessness in International Law", after narrating briefly the earlier history of the passport system speaks of the position in the 19th Century and the beginning of the 20th Century thus : "Only since the First World War has the passport system in its modern sense been introduced in most countries, i.e., the system whereby aliens who wish to enter a foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uest that the bearer of it may pass safely and freely; and is to be considered rather in the character of a political document, by which the bearer is recognised in foreign countries as an American citizen; and which, by usage and the law of nations, is received as evidence of the fact." In Ballentine's Law Dictionary, 2nd Edition, at p. 940, the following meaning is given to "passport" : "A document issued on behalf of a citizen of the United States by the Secretary of State, addressed to foreign powers and purporting to be a request that the bearer of it many pass safely and freely. It is to be con- (1)(1835) 9 L, Ed. 275,279. sidered as a political document by which the bearer is recognized in foreign countries as an American citizen,and which by usage and the law of nations is received as evidence of the fact. This definition is 'taken from the decision in Uretiqui v. D'Arbel(1). So too, in American Jurisprudence, Vol. 40, the same description is given of a passport and it is added that it is a political document. But the Supreme Court of America for the first time had defined the scope of passport in Kent v. Dulles(2). There the Secretary of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... travel abroad ? The relevant article of the Constitution is Article 21, reads : "Art. 21 No person shall be deprived of his life or personal liberty except according to procedure established by law." If the right to travel is a part of the personal liberty of person he cannot be deprived of his right except according... the procedure established by law. This court in Gopolan case((1950) S.C.R. 88) has held that law in that article means enacted law and it is conceded that the State has not made any law depriving or regulating the right of a person to travel abroad. Before we advert to the Indian decisions on the subject it may be useful to consider the American law on the subject. The 5th and 14th amendments embody a constitutional guarantee that no person shall be deprived of his liberty without due process of law. In American Jurisprudence, 2nd Ed. at page 359, it is stated that "Personal liberty largely consists of the, right of locomotion-to go where and when one pleases only so far restrained as the rights of others may make it necessary for the welfare of all other citizens." Chief Justice Fuller in R. A. Williams v. Edgar Fears & Anr. (45 L. Ed. 186. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... content of the word 'Liberty' in the Fifth Amendment was described as "not a static conception" but I broad and pervasive view adaptable to the changing circumstances of American life and it was expressed that the right of locomotion', the right to move from one place to another according to inclination is an attitude of personal liberty. "Freedom, to leave one's country temporarily for travel abroad was considered to be important to an individual, national and international well-being". It is, therefore, clear that in America the right to travel is considered to be an integral part of personal liberty. In England the right to go abroad was recognised as an attribute of personal liberty as early as in the year 1915 in Article 42 of the Magna Carta. The said article reads "42. It shall be lawful to any person, for the future. to go out of our kingdom, and to return, safely and securely, by land or by water, saving his allegiance to us, unless it be in time of war, for some short space, for the common good of the kingdom : excepting prisoners and outlaws according to the laws of the land, and of the people of the us and merchants who shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ground that the said Act contravened the provisions of Arts. 13, 19, 21 and 22 of the Constitution and in consequence it was (1) [1950] S.C.R. 88. ultra vires and that his detention was, therefore, illegal. This Court, by majority, held that Art. 19 of the Constitution has no application to a law which relates directly to the preventive detention even though as a result of an order of detention the rights referred to in Art. 19 are restricted or abridged. This Court was not directly concerned with the question whether the expression 'personal liberty' in Art. 21 takes in the right to travel abroad. Some of the observations made in regard to the limits of the right to move throughout the territory of India in Art. 19 (1) (d) of the Constitution are not of much relevance as the limits of the movement are circumscribed by the said clause itself. But we are concerned in this case with the question whether the right to travel abroad falls within the scope of personal liberty in Art. 21. At page 138, Fazal Ali J., says "There can therefore be no doubt that freedom of movement is in the last analysis the essence of personal liberty, and just as a man's wealth is genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree movement under Art. 19(1)(d). In Kochunni's case([1960]3 S.C.R. 887) this Court pointed out that personal liberty in Alt. 21, is a more comprehensive concept and has a much wider connotation than the right conferred under Art. 19(1)(d). In Kharak Singh v. The State of U.P. ([1964] 1 S.C.R. 332, 345, 347) the question was whether +,lie State by placing the petitioner under surveillance infringed his fundamental right under Art. 21 of the Constitution. This Court, adverting to the expression "personal liberty", accepted the meaning put upon the expression 'liberty' in the 5th and 14th Amendments to the U.S. Constitution by Field, J., in Munn v. Illinois([1877] 94U.S. 1130) but pointed out that the ingredients of the said expression were placed in two articles, viz., Arts. 21 and 19, of the Indian Constitution. This Court expressed thus "It is true that in Art. 21 as contrasted with the 4th and 14th Amendments in the U.S., the word 'Liberty' is qualified by the word 'personal' and therefore its content is narrower. But the qualifying adjective has been employed in order to avoid overlapping between those element or incidents of "li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avel to foreign countries except with a passport. On the basis of that finding the Court held on. the assumption that Art. 19(1) (d) would apply to foreign travel, that there was no restriction on that right. It may also be noticed that no argument was advanced before the Bench oil the basis of Art. 21 of the Constitution. "This decision does not help the respondents. A full Bench of the Kerala High Court in Francis Manjooran v. Government of India, Ministry of External Affairs, New (1) [1954] S.C.R. 399, Delhi(1) held that the expression "personal liberty" took in the right to travel. M. S. Menon, C.J., observed "The right to travel, except to the extent provided in Article 19(1) (d), is within the ambit of the expression "personal liberty" as used in Art. 21.......... Raman Nayar, J., held that the right of free movement whether within the country or across its frontiers, either in going out or in coming in, was a personal liberty within the meaning of Art. 21. Gopalan Nambiyar, J., observed that the right to travel beyond India, or at least to cross its frontiers was within the purview of Art. 21 and that personal liberty in Art. 21 was, ,not inten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted that no law was made by the State regulating ,or depriving persons of such a right. The next question is whether the act of the respondents in refusing to issue the passport infringes the petitioner's fundamental right under Art. 14 of the Constitution. Article 14 says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. This doctrine of equality before the law is a necessary corollary to the high concept of the rule of law accepted by our Constitution. One of the aspects of rule of law is that every executive action, if it is to operate to L the prejudice of any person, must be supported by some legislative authority : see The State of Madhya Pradesh v. Thakur Bharat Singh([1967]12 S.C.R. 454). Secondly, such a law would be void, if it discriminates or enables an authority to discriminate between persons without just classification. What a legislature could not do, the executive could not obviously do. But in the present case the executive claims a right to issue a passport at its discretion; that is to say, it can at its discretion prevent a person from leaving India on foreign travel. Whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half of the Union of India it is clearly stated why the passports had been withdrawn or cancelled. As the learned Chief Justice has not mentioned these facts, they need to be mentioned, before our appraisal of the so- called fundamental right to travel can be appreciated. In Writ Petition No. 30 of 1967, Mr. R. D. Chakravarti, UnderSecretary to the Government of India in the Ministry of External Affairs states on affidavit that Om Prakash Kapur was a member of a gang of passport racketeers and had got many students stranded in foreign countries, because, as a travel agent he had arranged for their travel with a company which did not exist. In another instance he countermanded the emigration laws of a foreign power. He was once refused a passport, but in a subsequent application he suppressed this fact and a passport was issued to him. The proposed journey was to visit his mother stated to be seriously ill in London. An attempt to impound his passport failed as he had already left India. In proof of the objectionable activities of the petitioner, the Union of India filed a photostat copy of his letter in which the petitioner had written in his own handwriting how tickets were to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... express our opinion on the general question. What is a passport is the first question. It is not necessary to go into the history of passports which have become very common from the days of the First World War. The character of the passports, however, has not changed and the classic definition of Alverstone, C.J. in R. v. Brailsford-(1) has been generally quoted and applied in cases dealing with passports. It says that a passport .lm15 responsibility of a Minister of the Crown to a named individual, intended to be presented to the Governments of foreign nations and to be used for that individual's protection as a British subject in foreign countries, and it depends for its validity upon the fact that (1) [1951] 2.K.B.703. the Foreign Office in an official document vouches the respectability of the person named." In essence this document serves as a means of establishing identity and nationality. See Weis : Nationality and Statelessness in International Law p. 226, Harry Street: Freedom, the Individual and the Law p. 271, The Grotius Society-Vol. 32(1946) Passports and Protection in International Law by Kenneth Diplock. In.India the passport reads : "These are to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... marising the law on the subject says "Passports may be granted by the Crown at any time to enable British subjects to travel with safety in foreign countries but such passports would clearly not be available so as to permit travel in an enemy's country during- war." NOTE : "The possession of a passport is now almost always required by the authorities to enable a person to enter a country." (Halsbury's Laws of England, Vol. IV, p. 519). The history of passports in India is a chequered one. Before the First World War, passports were not so common. During the First World War, the necessity for a passport arose because several countries began to insist on the possession of a passport before allowing entry. The Indian Passport Rules of 1917 created a double obligation. There was an obligation to obtain passports to leave India and an obligation to obtain passports to enter India. In 1920, the Indian Passport Act was passed. The obligation to -obtain a passport to leave India was abandoned. This, however, ,made no practical difference because almost all the countries of the world had begun to insist on the possession of a passport and no shipping company wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession of a valid passport, because if it did so, the agency would expose itself to the burden of bringing back such person to the place from where he started. No foreign country (except Nepal) today accepts an Indian citizen who is not in possession of a valid passport. The necessity for a passport also arises indirectly, because a citizen who leaves India needs a passport to re-enter his own country. This is true of most of the countries of the world. France did attempt to exempt French citizens from the requirement of a passport to enter their own country but it was found that such persons were delayed considerably because they had to establish the fact of their French nationality independently. This was a very arduous process. In fact foreigners found it easier to enter France than a national, because every foreigner who possessed a passport issued by his country with a visa for entering into France could walk in whereas every national had to establish his nationality. It is however not to be thought that a passport is the only means by which a person can be enabled to leave or to enter India. There exist two modes in which persons can leave, and three in which they can enter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of Government. Subject to this there arises a qualified right. A person refused a passport may ask that his case be considered by a court of law. But what is there the document on which one can found an absolute right ? Is the State compelled to grant a document pledging its honour to all kinds of person and must it vouch for the respectability of every one going abroad ? The considerations which must enter in the appraisal of a person's worth, before his respectability can be vouched, are so numerous and varied that they can never be the subject of a successful enumeration and categorisation. If a person is wrongfully refused a passport, he can complain that he has been discriminated against and the courts would right the matter unless the State gives a valid reason. There is thus no absolute right that the State must grant a passport to whomsoever applies for it and subject to a question of arbitrariness or discrimination no one can really be said to possess a right enforceable at law. It is however contended that the right to travel abroad is a fundamental right because it is a part of the personal liberty of a person guaranteed by Art. 21 of the Constitution, which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ison." Mr. Justice Field was merely reaffirming Blackstone's definition in relation to the word 'life' in the 5th and 14th amendments of the U.S. Constitution. It may be pointed out that the American decisions on the subject of passports accept also Blackstone's definition of "personal liberty" and this has led to the acceptance of travel abroad as more than a privilege and as a right. These cases are mentioned in the judgment of the learned Chief Justice. The question, however, is whether this Court has accepted the definition of Blackstone to interpret the expression "personal liberty" in Art. 21 so that foreign travel or the right to leave India can be said to be included in the expression. The American cases cannot of course be used to establish a fundamental right to travel or aliter to a fundamental right to leave India. The claim of such a right must be established strictly on the terms of our own Fundamental Law. The difference between the American and the Indian Constitutions arises because of the existence of certain specified fundamental rights in Art. 19 guaranteed to a citizen of which sub-cl. (d) of cl. (1) read with cl. (5) d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t could be guaranteed by our Constitution." (Italics added). Patanjali Sastri, J. (later C.J.) thought that personal liberty in Art. 21 was used in a sense which excluded freedoms dealt with in Art. 19, that is to say, personal liberty in the context of Part III of the Constitution was something distinct from the freedom to move freely throughout the territory of India. Das, J. (later C.J.) dealing with Art. 19 observed at p. 301 : "Its purpose, as I read it, is not to provide protection for the general right of free movement but to secure a specific and special right of the Indian citizen to move freely throughout the territories of India regarded as an independent additional right apart from the 'general right of locomotion emanating from the freedom of the person. It is a guarantee against unfair discrimination in the matter of free movement of the Indian citizen throughout the Indian Union. In short, it is a protection against provincialism. It has nothing to do with the freedom of the person as such. That is guaranteed to every person, citizen or otherwise, in the manner and to the extent formulated by article 21." Mahajan J. (later C.J.) thought that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; by the 5th and 14th Amendments to the U.S. Constitution and the expression "personal liberty" in Art. 21 only excludes the ingredients of 'liberty' enshrined in Art. 19 of the Constitution. In other words, the expression "personal liberty" in Art. 21 takes in the right of locomotion and to travel abroad, but the right to move throughout the territories of India is not covered by it inasmuch as it is specially provided in Art. 19." In our Judgment, these remarks, with due respects, involve a misreading of Kharak Singh's case. They are rather -the minority (1) [1964] 1. S.C.R. 332. view expressed in the same case by the learned Chief Justice. They are not the views of the majority. In Kharak Singh's case(1), the concept of personal liberty was considered in connection with surveillance by the police under the police Regulations. The expression "life" in Art. 21 was interpreted according to Mr. Justice Field's definition already quoted earlier Domiciliary visits were considered violative of Art. 21 in the absence of a valid law. Other modes of surveillance such is secret picketing etc. were considered valid as they did not dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as the specific rights in Art. 19(1)(3) are concerned. In other words, the State must satisfy that both the fundamental rights are not infringed by showing that there is a law and that it does not amount to an unreasonable restriction within the meaning of Art. 19(2) of the Constitution. As in that case there was no law, fundamental rights, both under Art. 19(1)(d) and Art. 21 were held to be infringed. The learned Chief Justice has read into the decision of the Court a meaning which it does not intend to convey. He excludes from Art. 21 the right to free motion and locomotion within the territories of India and puts the right to travel abroad in Art. 21. He wants to see a law and if his earlier reasoning were to prevail, the law should stand the test of Art. 19(2). But since el. (2) deals with matters in Art. 19(1) already held excluded, it is obvious that it will not apply. The law which is made can only be tested on the ground of articles other than Art. 19 such as Arts. 14, 20 and 22 which alone bears upon this matter. In other words, the majority decision of the Court in this case has rejected Ayyangar J.'s view and accepted the view of the minority in Kharak Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons. A system of passports is thus essential and requires a wide discretion. The Universal declaration of human rights-"Everyone has the right to leave any country including his own" is applicable to normal persons. It does not apply to criminals avoiding penalties or political agitators, etc. likely to create international tensions or persons who may disgrace our country abroad. To conclude : whatever the view of countries like the U.S.A. where travel is a means of spending one's wealth, the better view in our country is that a person is ordinarily entitled to a passport unless, for reasons which can be established to the satisfaction of' the Court, the passport can be validly refused to him. Since an aggrieved party can always ask for a mandamus if he is treated unfairly, it is not open, by straining the Constitution, to create an absolute and fundamental right to a passport where none exists in the Constitution. There is no doubt a fundamental right to, equality in the matter of grant of passports (subject to reasonable classifications) but there is no fundamental right to travel abroad or to the grant of a passport. With all due respect we say that the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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