TMI Blog1967 (4) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... w 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 passports and his passport facilities. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zen 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 of things no Costitution can confer such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 British form reads thus .lm15 The Secretary of Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 territory are required to produce a passport issued by the authorities of their country of nationality. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ign 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 State refused to issue passport to each of the two plaintiffs because of the refusal to file affidavit concerning their membership in the Communist Party. To obtain the passport ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw. 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.) says : Undoubtedly the right of locomotion,, the right to remove from one place to another according to inclination. is an attribute of personal liberty, and the right ordinarily, of free transit from or thro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;, 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 above. (1) 12 L. Ed. 992. (3) Yale Law Journal, Vol. 61 P. 171. (2) (1958) 2 L. Ed. 1204. True that this article was omitted in the final version of the Magna Carta and Article 39 only dealt with personal liberty. Article 39 read : No free man shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 generally measured in this country in terms of rupees, annas and pies, one's personal liberty depends upon the extent of his freedom of movement. But it is contended on behalf of the State that freedom of movement to which reference has been made in article 1 9 ( 1 ) (d) is not the freedom of movement to which Bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 liberty like freedom of speech or freedom of movement etc., already dealt within Art. 19(1) and the liberty guaranteed by Art. 21.............. He The same idea is elaborated thus : We............ consider that personal liberty is used in the Article as a compendious term to include within itself all the varieties of rights which go to make up the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 intended to bear the narrow interpretation of freedom from physical restraint. Tarkunde, J., of the Bombay High Court in Choithram Verhomal Jethawani v. A.G. Kazi(2) held that the compendious expression personal liberty used in Art. 21 included in its ambit the right to go abroad and a person could not be deprived of that right except according to procedure established by law as laid down' in Art. 21. On Letters Patent Appeal a division Bench of the same High Court in A. G. Kazi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. Whether the right to travel is part of personal liberty or not within the meaning of Art. 21 of the Constitution, such an arbitrary prevention of a person from travelling abroad will certainly affect him prejudicially. A person may like to go abroad for many reasons. He may like to see the world, to study abroad, to undergo medical treatment that is not available in our country, to collaborate in scientific research, to develop his mental horizon in different fields and such others. An executive arbitrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 manipulated. It was on this ground that the passport was refused to him. In Writ Petition No. 230 of 1966, the affidavit in reply states that the petitioner Satwant Singh Sawbney obtained in 1961 an import licence under the Export Promotion Scheme for import of brake liners in ribbons and brass rivets of the face value of ₹ 3 lakhs on condition that lie would export finished brake liners worth ₹ 4 lakhs to non-rupee account areas. He however sold away in Indian markets 91% of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 request and require in the name of the President of the Republic of India all those whom it may concern to allow the bearer to pass freely without let or hindrance, and to afford him or her every assistance and protection of which he or she may stand in need. This form of passport follows closely that of the English passport. The American passport is slightly different. There the passport contains the following writing : The Secretary of State requests all whom it may concern to pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 would take a passenger on board a ship bound for a foreign land unless the passenger was in possession of a passport endorsed for the foreign country and a visa (if necessary) granted by that country. The Indian Passport Act, 1920 has continued to be the only legislation on the subject. It is an extremely short Act. The long title shows its purport by stating that it is an Act by which power is taken to require passports of persons entering India. After setting out the title and the extent of the Act and giving the necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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, India. The first two mode-, are (a) passport and (b) identity certificate. The former are granted to Indian citizens and the latter to Stateless persons residing in India or to foreigners whose countries are not represented in India and who cannot obtain passports from their countries or to persons whose nationality is in some doubt. Exit from India whether by an Indian or a foreigner through the ordinary traffic lines is only on the strength of one of these two documents. Similarly, exit through customs barriers i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 person can only be deprived of according to procedure established by law. In support of the contention that foreign travel is a part of personal liberty, reliance is placed on certain observations in A. K. Gopalan v. The State of Madras([1950] S.C.R. 88) and Kharak Singh v. The State of Uttar Pradesh([1964] 1 S.C.R. 332) and some cases of the High Courts following Gopalan's case(1), and drawing support from the, cases of the Supreme Court of the United States. Reliance was placed in these Judgments upon the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ckstone 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) deals with the right of a citizen to move freely throughout the territory of India. There is no doubt that the right of motion and locomotion throughout the territory of India is Guaranteed to the Indian citizen. Does the Constitution speak again of a further right of motion or locomotion in Art. 21 for the citizen and the non-citizen ? The Indian Constitution cannot, of course, guarantee the right of motion and locomotion in foreign land. Thus in so far as an Indian citizen is concerned, if Art. 21 adds anything to the right of motion and locomotion of a citizen guaranteed un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 providing that life and liberty might be deprived only in accordance with procedure established by law, the intention was to give immunity against exercise of despotic power by the Executive. Mukherjea J. (later C.J.) thought that movement throughout the territory of India could be curtailed in the interest of the public but movement outside could only be curtailed by law. The learned Chief Justice has selected the views of Fazl Ali and Das JJ. and drawn the conclusion that personal liberty in Art. 21 is a more comprehensive concept and has a much wider [1950] C.R. 88. connot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 directly and tangibly impede either movement or personal liberty. apealing, however, with Arts. 19 (1) (d) and 21 together, it was pointed out that the right to move about was excluded from Art. 1. Article 21 represented other residuary personal liberties, not the subject of treatment in Art. 19(1). The majority stated its opinion as follows : Having regard to the terms of Art. 19(1)(d), we must take it that expression (personal liberty) is used as not to include the right to move about or rather of locomotion. The right to move about being excluded its narrowest interpretation would be that it comprehends nothing more than freedom from physical restraint or freedom. from confinement within the bounds o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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's case([1964] 1 S.C.R. 332). A similar reasoning had previously prevailed with the Chief Justice in the case of Kavalappara Kottarathil Kochuni and others v. The State of Madras and others ([1960]3 S.C.R. 887) , but there Art. 19 was held not excluded by Art. 31 after the latter ceased to be a self- contained article by reason of the fourth amendment and the addition of el. 2-A and the amendment of el. (2). The same exercise in the reverse direction i.e., extending protection to property beyond what is stated in Art. 31 by calling in aid something extra from Art. 19 was attempted. According to the learned Chief Justice there is an absolute right of property [Art. 19(1)(f)] curtailed to some extent by el. (5) and Art. 3 1. The same reasoning is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 has missed one for the other. The solution of a law of passports will not make things any better. Even if a law were to be made the position would hardly change because the utmost discretion will have to be allowed to decide upon the worth of an applicant. The only thing that can be said is that where the passport authority is proved to be wrong, a mandamus will always right the matter. In the present cases we found no valid ground for the issuance of a mandamus. We had, therefore, earlier ordered the dismissal of the petitions. ORDER In accordance with the opinion of the majority a writ of mandamus will issue directing the respondents to withdraw and cancel the decision contained in their letters dated August 31, 1966, and September 20, 1966 and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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