MANEKA GANDHI versus UNION OF INDIA

MANEKA GANDHI

UNION OF INDIA

January 25, 1978

[M. H. BEG, c. J., Y. v. CHANDRACHUD, P. N. BHAGWATI, V. R. KRISHNA IYER, N. L. UNTWALIA, S. MuRTAZA FAZAL Au, AND P. S. KAILASAM, JJ.]

Constitution of India Articles 14, 19 (1) (a) and 21-Personal liberty-Whether right to go abroad is part of personal liberty-Whether law which tomplies with Article 21 has still to meet the challenge of Article 19.-Nature and ambit of Article 14-ludging validity with reference to direct and inevitable cOect-Whether the right under Article 19(1) (a) has any geographical limitation.

Pnssports Act, 1967-Ss. 3,5,6,10(3) (c), 10(5)-Whether s,lO (3 )(c)___ is violative of Articles 14, 19(1) (a) (b) & 21-Grounds for refusing to gram passport-Whether the power to impound passport arbitrary-"in general public interest" if vague.

Principles of Natural Justice-Whether applies only to quasi judicial orders or applies TO administrative orders affecting rights of citizens-When statute silent whether can be implied-Duty to act judicially whether can be spell ou~ In urgtnt cases whether principles of natural justice can apply.

The petitioner was issued passport on Juqe 1, 1976 under the Passport Act, 1967. On the 4th of July 1977, the petitioner received letter dated 2nd July, 1977, from the Regional Passport Officer Delhi intimating to her that it was decided by the Government of India to impound her passport under s. 10(3)(c) of the Act "in public interest". The petitioner was required to sum:nd.:r her pass-port within 7 days from the receipt of that letter. The petitioner immediately addressed letter to the Regional Pass port Officer requesting him to furnish copy of the statement of reasons for making the order as provided in s.10(5). reply was sent by the Government of India, Ministry of External Affairs on 6th July 1977 stating i1t1er alia that the Government decided "in the interest of the general public" not to furnish her copy of the statement of reasons for the making of the order. The petitioner thereupon filed the present Writ Petition chullenging action of the Government in impounding her passport and declining to give reasons for doing so. The Act was enacted on 24-4-67 in view of the decision of this Court in Satwant Sint<h Sawflllcy's case. The position which obtained prior to the coming into force of the Act was that there was no law regu-lating the issue of passports for leaving th<.: shores of India and going abroad. The issue of passrorl was entirely within the unguided and unchannelled discretion of the Executive. In Sat want Singh's case, this Court hdd bv majority that the expression 'personal liberty' in Article 21 takes in, the right of locomotion and travel abroad and under Art. 21 no nerson can be deprived of his right to go abroad except according to the procedure established by law. This decision was acceoted by the llarliament and the infirmity pointed out by it was set right by the enactment of the Passports Act, 1967. The preamble of the Act shows that it was enacted to provide for the issue of passport and travel documents to regulate the departure from India of citizens of India and other persons and for incidental and ancillary matters. Section 3 provides that no person shall deJ"Iart from or attempt to depart from Tndia unless he holds in this behalf valid passport or travel document. Section 5(1) provides for making of an aoplicati?n for issue of ~ passport or travel document for visiting foreign country. Suh-sectron ( 2) of sectton 5 says that on receipt of such application the Pass-port Authority. after making such enquiry, if any, as it may consider necessary, shall, by order in writing, issue or refme to issue the passport or travel document or make or refuse to make that passport or travel document endorsement in

respect of one or more of the foreign countries specified in the application. Sub-section (3) requires the Passport Authority where it refuses to issue the pass-port or travel document or to make any endorsement to record in writing brief statement of its reasons for making such order. Section 6(1) lays down the grounds on which the Passport Authority shall refuse to make an endorsement for visiting any foreign country and provides that on no other ground the endorse-ment shall be refused. Section 6 (2) specifies the grounds on which alone and on no other grounds the Passport Authority shall refuse to issue the Passport ot travel document for visiting any foreign country and amongst various ground! set out there the last is that in the opinion of the Central Government the issm of passport or travel document to the applicant will not be in the public inter_est Sub-section (1) of sectio"' 10 empowers the Passport Authority to vary or can-cel the endorsement on passport or travel document or to vary or cancel it or the conditions subject to which passport or travel document has been issuec having regard to, inter ali'a,. the provisions of s. 6 ( 1) or any notification unde · s. 19. Sub-section (2) confers powers on the Passport Authority to vary o: cancel the conditions of the passport or travel document on the application o: the holder of the passport or travel document and with the previous approval of the Central Government. Sub-section (3) provides that the Passport Autho-rity may impound or cause to be impounded or revoke passport or travel de· cument on the grounds set out in cl. (a) to (h). The order impounding th! passport in the present. case, was made by the Central Governm~nt under cl. (c) which reads as follows :-

" (c) 1f the passport authority deems it necessary so to do in the interest of the sovereignty and integrity of India, the security of India, friendly relations of India with the foreign country, or in the interests of the general public."

Sub-~;ection ( 5) requires the Passport Authority impounding or revoking pas;-port or travel document or varying or cancelling an endorsement made upon it to record in writing brief statement of the reasons for making such order :u furnish to the holder of the passJ'ort or travel document on demand copy 1 )f the same. unless, in any case, the Passport Authority is of the opinion that it wilT not be in the interest of the sovereignty and integrity of India, the securi:y of India, friendly relations of India with any foreign countrv, or in the intenst of the general public to furnish such copy. The Central Government declin :d to furnish copy of this statement of reasons for impounding the passport of t 1e petitioner on the ground that it was not in the interest of the general public to furnish such copy to the petitioner.

The petitioner contended.

1. The right to go abroad is part of "personal liberty" within the meaning of that expression as used in Art. 21 and no one can be deprived of this ri1 :ht except according to the procedure prescribed by law. There is no proced_ure prelicribed by the Passport Act, for impounding or revoking Passport. E~ en en if some procedure can be traced in the said Act it is unreasonable and arbitr;try in as much as it does not provide for giving an opportunity to the holder of he Passport to be heard against the making of the order.

E~ en en

2. Section 10(3)(c) is violative of fundamental rights guaranteed under Arti-c1es 14, 19(1) (a) and (g) and 21.

3. The impugned order is made in contravention of the rules of natural j.1s:ice and is, therefore, null and void. The impugned order has effect of placing an unreasonable restriction on the right of free speech and expression guaranteed to the petitioner under Article 19(1 )(a) as also on the right to carry on the profession of journalist conferred under Art. 19(1 )(g).

4. The impugned order could not consistently with Articles 19(1 ){a.) and (g) be passed on mere information of the Central Government that th<! ?te· sence of the· petitioner is likely to be required in connection with the proce:dmgs before the Commission of Inquiry.

Jill"

5. In order that passport may be impounded under s. 10(3)(c), public intere11t mmt actually exist in present an~ mere _likelihood of public interest .arising in future would be no ground for 1mpoundmg the passport.

6. It was not correct to say that the petitioner was likely to be required for giving evidence before the Shah Commission.

The respondents denied the contentions raised by the petitioner.

BEG, C. J., (Concurring with Bhagwati, J.)

1. The right of travel and to go outside the country is included in the right 10 personal liberty. [643 G]

Satwant Singh Sawhney v. D. Ramarathnam Assistant Passport Officer, <Jovernmelll of India, New Delhi & Ors. [19671 3 SCR .525 and Kharak SinRh v. State of U.P. & Ors. [1964] 1 SCR 332 relied on.

2. Artic1e 21 though framed as to appear as shield operating negatively against executive encroachment over something covered by that shield, is the legal recognition of both the protection or the shield as well as of what it pro-tects which lies beneath that shield. [644 B}

.. K. Gopalan v. State of Madras, [1950] SCR 88 and Additional District Magistrate, Jabalpur v. S. S. Shukla [1976] Suppl. SCR 172 @ 327 referred to.

Haradhan Saha v. The State of West Bengal & Ors. [1975] 1 SCR 778, Shambhu Nath Sarkar v. State of West Bengal [1973} 1 S.C.R. 856 and R. C. -Cooptr v. Union of India [1973] 3 SCR 530 referred to.

3. The view that Articles 19 and 21 constitute watertight compartments has been rightly over-ruled. The doctrine that Articles 19 and 21 protect or regulate flows in different channels, was laid down in A. K . Gopalan's case in context which was very different from that in which that approach was displaced by the counter view that the constitution mu~t be read as an intearal whole, with possi-ble overlappings of the subject matter of what is sought to be protected by its various provisions, particularly by articles relating to fundamental rights. The ob-servations in A. K. Gopalan's case that due process with regard to law relating to preventive detention are to be found in Art. 22 of the Constitution because it is self-contained code for laws. That observation was the real ratio decidendi of tGopalan's case. Other observations relating to the separability of the subject matters of Art. 21 and 19 were mere obiter dicta. This Court has already heid' in A. D. M. Jabalpur's case by reference to the decision from Gopalan's case that the ambit of personal liberty protected by Art. 21 is wide and com-prehensive. The <Juestions relating to either deprivation or restrictions of per· sonal liberty, concerning laws falling outside Art. 22 remain really unanswered by the Gopalan's case. The field of 'due process' for cases of preventive deten· tion is fully covered by Art. 22 but other parts of that fidd not covered by Art. 22 are 'Unoccupied' by its specific provisions. In what may be called unoccu· 1)ied portions of the vast sphere of personal liberty, the substantive as well as procedural laws made to cover them must satisfy the requirements of both Arts. 14 and 19 of the Constitution. [646 E·H, 647 B·D, 648 A-BlArticle8 dealing with different fundamental rights contained in Part III of the ·Constitution do not represent entirely separate streams of rights which do not mingle at many points. They are all parts of an integrated scheme in the Constitution. Their waters must mix to constitute that giand flow unimpeded and impartial justice (social, economic and political-), freedom (not only .of thought, expression, belief, faith and worship, but also of associa.tion, movement, vocation or occupation as well as of acquisition and pos~ession of reasonable property), or equality (of status and of opportunity, which imply absence of ·,unreasonable or unfair discrimination between individuals, groups and classes), .and of fraternity (assuring dignity of the individual and the unity of the nation)

which our Constitution visualises. Isolation of various aspects of human free-dom, for purposes of their protection, is neither realistic nor beneficial but would defeat very objects of such protection. [648 B-D]

Blackstone's theory of natural rights cannot be rejected as totally irrelevant. If we have advanced today towards higher civilization and in more enlighkned era we cannot lag behind what, at any rate, was the meaning given to 'personal liberty' long ago by Blackstone. Both the rights of personal security and perso-8 . nal liberty recognised by what Blackstone termed 'natural law' are embodied in. Art. 21 of th.e Ccmtitution. [649 A-C, 650> H, 651 :\-B]

A. D. M. Jabal pur vs. S. S. Shukla [1976] Supp. S.C.R. 172 relied on.

The natural law rights were m~ant to be converted into our constitutionally rec~gnised fundamental rights so that they are to be found within it and not outside it. To take contrary view would involve conflict between natural Jaw and our constitutional law. divorce between natural law and our consti-c tutional law would be disastrous. It would defeat one of the basic purposes of our Constitution. [652 B-CJ

The total effect and not the mere form of restriction would determine which, fundamental right is really involved in particular case and whether restriction: upon its exercise is reasonably permissible on the facts and circumstances of that case. [652 H, 653A]

If rights under Art. 19 are rights which inhere in Indian citizens, individuals carry these inherent fundamental constitutional rights with them wherever they go, in so far as our Ia w applies to them, because they are part of the Indian National just as Indian ships, flying the Indian flag are deemed in international law to be floating parts of Indian territory. This analogy, however, could not be pushed too far because Indian citizens, on foreign territory, are only entitled by virtue of their Indian Nationality and Passports to the protection of the Indian Republic and the assistance of its Diplomatic Missions abroad. They cannot claim to be governed abroad by their own constitutional or personal laws which do not operate outside India. [653 A-Cl

In order to apply the test contained in Arts. 14 and 19 of the Constitution we have to consider the objects for which the exercise of inherent rights recognised by Art. 21 of the Constitution are restricted as wel1 as the procedure by which these restrictions are sought to be imposed, both substantive and procedural laws and actions taken under them will have to pass the test imposed by Arts. 14 and 19, whenever facts justifying the invocation of either of these Articles may be disclosed, for example, an international singer or dancer may well be able to complain of an unjustifiable restriction on orofessional activity by denial of passport. In such case. violation of both Arts. 21 and J9(1)(g) may be put forward making it necessary for the authorities concerned to justify the res-triction imposed ·by showing satisfaction of tests of validity contemrlated by each of these two Articles. [653 F-H]The tests of reason and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic otherwise they would cease to be reasonable. The discretion left to the authority to impound passport in oublic interest cannot invalidate the law itself. We cannot, out of fear, that such power will be misused, refuse to permit Parliament to entrust even such power to executive authorities as may be absolutely necessary to carry out the purposes of validly exercisable power. Jn matter'\ such as, grant, sus-,'pension, impounding or cancellation of passports. the possible dealing of an individual with national~ and authorities of other States h:we to be considered. The contem!llated or po~sible activities abroad of the individual may have to be taken into account. There may be quesions of national safety and welfare which tr~t",cend the imrortance of the individual's inherent right ro go where ne or she pleases to go. Therefore, the grant of wide disC"retionary power to the exe-ll cutive authorities cannot be considered as unreasonab1e yet there must be proce-dural safeguards to ensure that the power wi11 not be used for purJ')oses extra-neous to the grant of the power. The procedural proprieties must be insisted' upon. [654 A-EJ

bare look at the provisions of s. 10(3) shows that each of the orders which could be passed under s. 10(3)(a) and (b) requires satisfaction of the Passport Authority on certain objective conditions which must exist in case before it passes an order to impound passport or travel document. Im-pounding or revocation are placed side by side on the same footing in the pro-visions. [654 G-H]

It is clear from the provisions of the Act that there is statutory right also acquired, on fulfilment of the prescribed conditions by the holder of passport, that it should continue to be effective for the specified period so long as no ground has come into existence for either its revocation or for impounding it which amounts to suspension of it for the time being. It is true that in proceeding under Art. 32, the Court is concerned only with the enforcement of fundamental constitutional rights and not with any statutory rights apart from fundamental rights. Article 21, however, makes it clear that violation of all law whether statutory or of any other kind is itself an infringement of the guaranteed fundamental right. [655 B-D]

The orders under s. 10(3) must be based upon some material even if tha material concerns in some cases of reasonable suspicion arising from certair. credible assertions made by reliable individuals. In an emergent situation, the impounding of passport may become necessary without even giving an opportu-nity to be heard against s11ch step which could be reversed after an opportunity is given to the holder of the passport to show why the step was unnecessary. However. ordinarily no passport could be reasona.bly either irnpoundect or revoked· without giving prior opportunity to its holder to show cause against the pro· posed action. [655 D·E]

It is well-settled that even when there is no specific provision in statute or rules made thereunder for showing cau«e against action nronosed to be taken against an individual. which affects the right of that individual the dutv to ~ive reasonable opportunity to be beard will be implied from the nature of the func-tion to be perfor!N'rl hy the authority which ha-. the power to take punitive or d:~maging action. [655 G]

State nf Orissa v. Dr. (Miss) Binapani Dei & Ors. AIR [1967] SC 1269 @ 1271 relied on.

Cooper v. Wand.~worth Board of Works, [1863] 14 C.B. (N. S.) 180 quoted with approval.

An order impounding passport must be made quasi-judicially. This was not done in the present case. It cannot be said that good enough reason has been shown tQI exist for impo1Jnding the passport of the petitioner. The petitioner had no opportunity of showing that the ground for impounding it given in this Court either does not exist or has no bearing on public interest or that the public in-terest can be better served in some other manner. The order should be quashed • and the respondent should be directed to give an opportunity to the petitioner to show cause against any proposed action on such grounds as may be available.

[656 E-Gl

There were no pressing grounds with regard to the petitioner that the imme· diate action of impounding her passport was called for. The rather cavalier fashion in which the disclosure of any reason for impounding of her passport was denied to the petitioner despite the fact that the only reason said to exist is the possiblity of her being called to give evidence before Commission of In-quiry. Such ground is not such as to be reasonably deemed to necessitate its concealment in public interest. [656 G-H]

Even executive authorities when taking administrative action which involves anv deprivation of or restriction on inherent fundamental rights of citizens must take care to see that justice is not only done but manifestly appears to be done. They have duty to proceed in way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in manner which is patently impartial and meets the requirements of natural justice.

[657 A-B1

As the undertaking given by the Attorney General amounts to an offer to deal with the petitioner justly and fairly after informing her of any grouRd that may exist for impounding her passport, no further acLion by this Court is-necessary. [657 C-D]

The impugned order must be quashed and Passport Authorities be directed to return the passport to the petitioner. Petition allowed with costs. [657 D]

Clumdrachud, l. (concurring with Bhagwati, J.)

The power to refuse to disclose the 'reasons for impounding passport is of an exceptional nature and it ought to be exercised fairly, sparingly and only when fully justified by the exigencies of an uncommon situation. The reasons if disclosed, being open to judicial scrutiny for ascertaining their nexus with the order impounding the passport, the refusal to disclose the reasons would also be open to the scrutiny of the court; or else the wholesome power of dispas-c sionate judicial examination of executive orders could with impunity be set at nought by an obdurate determination to suppr:ess the reasons. The disclosure made under the stress of the Writ Petition that the petiioner's passport was im-pounded because, -her presence was likely to be required in connction with the proceedings before Commission of Inquiry, could easily have been made when the petitioner called upon the Government to let her know the reasons why her passport was impounded. [658 A·D] In Satwant Singh Saw/zney's case this Court ruled, by majority, that the ex-pression personal liberty which occurs in Art. 21 of the Constitution includes the right to travel abroad and that no person can be deprived of that right except according to procedure established by law. The mere prescription of some kind of procedure cannot even meet the mandate of Article 2 t. The procedure pres-cribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbi-trary. The question whether the procedure prescribed by law which curtails or takes away the personal liberty guaranteed by Art. 21 is reasonable or not bas to be considered not in the abstract or on hypothetical considerations like the provision for full-dressed hearing as in court room trial but in the contest, primarily, of the purpose which the Act is intended to achieve and of urgent situations which those who are charged with the duty of administering the Act may be called upon to deal with. Secondly, even the fullest compliance with the requirements of Art. 21 is not the journey's end because bw which prescribes fair and reasonable procedure for curtailing or taking away the personal liberty granted by Art. 21 has still to meet possible cha11enge under the other provi· sions of the Constitution. In the Bank Natio1111lisation case the majority held that the assumption in A. K. Gopalan's case that certain Articles of the Consti-F tution exclusively deal with specific matters cannot be accepted as correct. Though • the Bank Nationalisation case was concerned with the inter-relationship of Art~ . 31 and 19 and not of Arts. 21 and 19, the basic approach adopted therein as regards the construction of fundamental rights guaranteed in the different pro-visions of the Constitution categorically discarded the major premise of the majo-rity judgment in Gopalan's case. [658 D-G, 659 A-BJ

The test of directness of the impugned law as contrasted with its consequence was thought in . K. Gopalan and &m Singh's case to be the true approach for determining whether fundamental right was infringed. significant application of that test may be perceived in Naresh S. Mirajkar's case where an order passed by the Bombay High Court prohibiting the publication of witness's evidence in defamation case was upheld by this Court on the ground that it was passed with the object of affording protection to the witness in order to obtain true evi-dence and its impact on the right of free speech and expression guaranteed by Art. 19(1) (a) was incidentaL N. H. Bhagwati J. in Express Newspapers Case struck modified note by evolving the test of proximate effect and operation of the Statute. That test saw its fruition in Sakal Paper's case where the Court giving precedence to the direct and immediate effect of the order over the form and object, struck down the Daily Newspapers (Price and Page) Order, 1960, on the ground that it violated Artic1e 19(1 )(a) of the Constitution. The culmi-

/ "' ..

nation of this thought process was reached in the Bank Nationalisation case wbere it was held by the majority, speaking through Shall J, that the extent of protection against the impairment of fundamental right is determined by the direct operation of an action upon the individual's rights and not by the object of the Legislature or by the form of the action. In Bennett Coleman's case the Court reiterated the same position. It struck down the newsprint policy struck down the newsprint policy re~tricting the number of pages of newspapers without the option to reduce the circulation as offending against the provisions of Art. 19(1) (a). (a). [659 F-H, F-H,

action. In Bennett Coleman's case It struck down the newsprint policy struck down the newsprint policy to reduce the of Art. 19(1) (a). (a). [659 F-H, F-H, 660 A-C]

Article 19{ 1) (a) guarantees to Indian Citizens the right to freedom of speech and expression. It does not delimit the grant of that right m any manner and there is no reason arising either out of interpretational dogmas or pragmatic considerations why courts should strain the language of the Article to cut down amplitude of that right. The plain meaning of the clause guaranteeing free speech and expression is that Indian citizens are entitled to exercise that right wherever they choose regardless of geographical considerations. [661 A-D]

The Comtitution does not confer any power on the executive to prevent the exercise by an Indian citizen of the right of free speech and expression on foreign soil. The Constitution guarantees certain fundamental freedoms except where their exercise is limited by territorial considerations. Those freedoms may be exercised wheresoever one chooses subject to the exceptions or qualifications mentioned in Art. 19 itself. The right to go out of India is not an integral part of the right of free speech and expression. The analogy of the freedom of press being included in the right of free speech and expression is wholly mig.. placed bt><'ause the right of free expression incontrovertibly includes the right of freedom of press. The right to go abroad on one hand and the right of free speech and expression on the other are made up basically of constituents so different that one cannot be comprehended in the other. The presence of the due process clause in the 5th and 14th amendments of the American Constitution makes significant difference to the approach of American Judges to the definition and evaluation of constitutional guarantees. This Court rejected the contention that the freedom.Jo form associations or unions contained in Article 19(1) (c) carried with it the right that workers' union could do all that was necessary to make that right effective in order to achieve the purpose for which the union was formed. [See the decision in All India Bank Employees Associ~tion].

[661 F, H, 662 A-B, E]

Bhagwati, J. (for himself Untwalia and Murtaza Fazal Ali, JJ)

The fundamental rights in Part III of the Constitution represent the basic values cherished by the people of this country since the Vedic time~ and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent. But these freedom~ are not and cannot be absolute, for absolute and unrestrict~d freedom of one may be destructive of the freedom of another In well ordered civilised society, freedom can only be regulated freedom. · It is obvious that Article 21 though couched in negative language confers fundamental right to life and personal liberty. The question that arises for consideration on the language of Art. 21 is as to what is the meaning and content of the words 'personal liberty' as used in this Article. In A. K. Gopalan's case narrow inter-pretation was placed on the words 'personal liberty.' But there was no definite pronouncement made on this point since the question before the court was not so much the internrctation of the words 'personal liberty' as the inter-· relation between Arts. 19 and 21. [667 G-H. 668 D-E, G, H, 669 A]

A. K. Copalan v. State of Madras [1950] SCR 88 and Kharak Singh v. State of U. P. & Ors. {1964] 1 SCR 332 refen:ed to.

In I<. harak Singh's case the majority of this Court held that 'personal liberty' is used in the Article as compendious term to include within itself all varieties of rights v:hich go to make up the personal liberties of man other than those dealt with in several clauses of Article 19(1). The minority however took the view that the expression personal liberty is comprehensive one arid the right to mow freely is an attribute of personal liberty. The minority observed that it was not right to exclude any attribute of personal liberty from the scope

and ambit of Art. 21 on the ground that it was covered by Art. 19(1 ). It was pointed out by the minority that both Articles 19 ( 1) and 21 are indepen· dent fandamental rights though there is certain amount of overlapping and there is no question of one being carved out of another. The minority view wa" upheld as correct and it was pointed out that it would not be light to read ti-.e expression 'personal liberty' in Art. 21 in narrow and restricted sense so as to exclude those attributes of personal liberty which are specillc:.tlly dealt with in Art. 19 (1). The attempt of the Court should be to expand the reach and ambit of the fundamental rights rather than attenuate their meaning and content by process of judicial construction. The wavelength for compre-hending the scope and ambit -of the fundamental rights has been ~et by the Court in R. C. Cooper's case and the approach of the Court in the interpre-tation of the fundamental rights must now be in tune with this wave length. The expression 'personal liberty' in Art. 21 is of the widest amplitude and covers variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Art. 19(1). Thus Articles 19(1) and 21 are not mutually exclusive. [669 B-670 A-H]

R. C. Cooper v. Union of India L1973] 3 SCR 530 relied on.

Shambhu Nath Sarkar v. The Srate of West Bengal & Ors. applied.

Haradhan Saha v. The State of West Be~gal & Ors. followed.

This Court held in case of Satwant Singh that personal liberty within the meaning of Art. 21 includes with its ambit the right to go abroad and conse-quently no person can be deprived of this right except according to procedure prescribed by law. Obviously, the procedure cannot be arbitary, unfair or unreasonable. The observations in A. K. Gopalan's case support this view and apart from these observations, even on principle, the concept of reasonable-ness must be projected in the procedure contemplated by Art. 21, having re-gard to the impact of Art. 14 on Art. 21. [671 A, D, G-Hl

The decision of the majority in A. K. Gopalan's case proceeded on the assumption that certain Articles . in the Constitution exclusively deal with Fpedfic matters and where the requirements of an article dealing with the particular matter in question are satisfied and there is no infringement of the fundamental right guaranteed by that Article, no recourse can be had to fundamental right conferred by another article. This doctrine of t:xclusivity was overruled by majority of the Court in R. C. Cooper's case. The ratio of the majority judgment in R. C. Cooper's case was explained in clear and cate.gorical terms in Shambhu Nath Sarkar's case and followed in Hartldlwrr Salta's case and Klwdi Ram Das's case. [672 B-C, G, 673 A]

Shambhu Nath Sarkar v. State of West Bengal [1 973] 1 SCR 856 referred to.

Haradhan Saha v. State of West Bengal & Ors. [1975} 1 SCR 778 and J(hudiram Das v. The State of We.rt Bengal & Ors. [19751 2 SCR 832 relied on. t

The Jaw must therefore be now taken to be well-settled that AI ttcle 21 does not exclude Article 19 and that even if there is law prescribing procedure for depriving person of personal liberty and the(e is consequently no infringe-ment of the fundamental right conferred by Art. 21, such law in so far as it abridges or takes away any fundamental right under Article 19 would have • 1o meet the chal_knge of that Article. Equally such law would be liable to be tested with reference to Art. 14 and the procedure prescribed by it would have to answer the requirement of that Article. [673 A-G]

The State of We.st Bengal v. Anwar Ali Sarkar [1952] SCR 284 and Kathi Raning Rawat v. The State of Saurashtra [1952] SCR 435 referred to.

Article 14 is founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic and, therefore, it

must not be subjected to narrow, pedantic or lexicographic approach. No .attempt should be made to truncate its all embracing scope and meaning, for to do so would be to violate its magnitude. Equality is dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional nnd doctrinaire limits .. [673 H, 674 A]

E. P. Royappa v. State of Tamil Nadu & Another [19741 2 SCR 348 applied.

Equality and arbitrariness are sworn enemies; one belongs to the rule of law in republic while the other to the whim and caprice of an absolute mo~arcb. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness which legally as well as philoso-phically, is an essential element of equality or non-arbitrariness pervades Article 14 like broQding omni-presence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be right and just and fair and not arbitrary, fanciful or oppressive.

[674 B-CJ

It is true that the Passports Act does not provide for giving reasonable oppor-tunity to the holder of the passport to be heard in advance before impounding passport. But that is not conclusive of the question. If the statute make itselt clew on this point, then no more questioo arises but even when statute is silent the law may in given case make an implication and apply the principle. Natural justice is great humanising principle intended to invest law with ta1r-ness and to secure justice and over the years it has grown into widely perva-·sive rule affecting large areas of administrative action. [674 F-G, 675 A-B]

Wiseman v. Borneman [1971] A.C. 297 approved.

Schmidt v. Secretary of State for Home Affairs [1968] 112 Solicitor General 690 approved.

There can be no distinction between quasi-judicial function and an adminis-trative function for the purpose of principles of natural justice. The aim ot both administrative inquiry as well as the quasi-judicial enquiry is to arrive at just decision and if rule of natural justice is calculated to secure justice or to put it 'negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable to quasi-judicial enquiry and not to administrative enquiry. It must logically gpply to both. It cannot be said that the requirements of fair-play in action is any the less in an administrative enquiry than in quasi-judicial one. Sometimes an unjust decision in an administrative enquiry may have far more serious consequences than decision in quasi-judicial enquiry and hence rules of natural justice must apply, equally in an administrative enquiry which entails civil consequences. [676 0-H, 677 A)

Re.x v. Electricity Commissioners [1924] 1 K.B. 171 referred to.

Re.x v. LeRislative Commiuee of the Church Assembly [1928] 1 K. B. 411 -and Ridge v. Baldwin [1964] A. C. .40 referre<t to.

Associated Cement Companies Ltd. v. P. N. Sharma & Anr. [1965) 2 SCR 366, State of Orissa v. Dr. Binapani [1967) 2 SCR 625 and A. K. Kraipak & Ors. v. Union of India & Ors. rt9701 1 SCR 457 relied.

The duty to act judicially need not be superadded but it may be spelt out from the nature of the power conferred, the manner of exercising it and its im-pact on the rights of the person affected and where it is found to exist the rules of natural justice would be attracted. Fairplay in action requires that in adminis-trative proceedings also the doctrine of natural justice must be held to be appli-cable. [678 B-C]

In re : H. K. (An Tnfa.nt) [1967] 2 Q.B. 617 and Schmidt v. S ecretary of State for Home (fairs referred to.

F. 0 . South Kheri v. Ram Sanehi Sin~h r1973] 3 S.C.C. 864 relied on 2-119 SCI/78

The Jaw is not well settled that even in an administrative proceeding which involves civil consequences the doctrine of natural justice must be held to be applicable. [680 Aj

The power conferred on the Passport Authority is to impound passport and the consequence of impounding passport would be to impair the con5titutional right .of. the holder of the passport to go a~road during the time that the pass-pott IS Impounded. The passport cart be Impounded· only on certain specified $rou~ds set out in section 1~(3) and the PasspC?rt Authority would have to apply n 1ts mmd to the facts and Circumstances of gtven case and decide whether any of the spec!fir~ grounds e?Cbts which would justify i~pou~d_ing of the passport. The authonty ts also requtred by s. 10(5) to record tn wntmg brief statement of the reasons for making the order impounding passport and save in certain exceptional situations, the authority is obhged to furnish copy of the state-ment of reasons to the holder of the passpor:t. Where the Passport Authoritv which bas impounded passport is other than the Central Government right of appeal ag:tillst the order impounding the passport is given by section 11. Thus, the pow~r conferred on the Passport Authority to impound pa~sport is ~:· quasi-c judicial power. The rules of natural justice would in the circumstances be appli-cable in the exercise of the power of impounding passport even on the orthodox view which prevailed prior to A. K. Kmipa/, 's case. The same result mu~t totTow in view of the decision in A. K. Kraipak's case, even if the power to impound passport were regarded as administrative in cha·racter, bccnuse it seriously ionterfercs with the constitutional right o1f the holder of the passport to go abroad and entails adverse civil consequences. The argument of the :\Horney General however was that having regard to the nature of the action involved in the impounding of passport, the audi {1/teram partem rule mn't b~ hdd to be excluded because if notice were to be ~iven to the holder of the pass-port and reasonable opportunity afforded to him to show cause why his pass-port sh0uld not be impounded he might immediately on the strength of the pas3port mnke good his exit from the country and the object of impoundino-etc., woLIH be frustrated. Now it is true that there may be cases where. ha.::-ing regard to the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provlsionl, fairness in action may warrant exclusion of the tmdi alteram partem mle. Indeed, there are certain well-E recognised exceptions. to the audi alteran1 pariem rule established by judicial decisions. These exceptions, do not in any way militate against the principle which requires fair play in administrative action. The word exception is really misnomer because in. these exceptional cases the audi olteram parlem rule is he1d inauplicable not by way of an exception to fRirplay in action but because nothing unfair can be inferred by not conferring an opportunity to present or meet case. The life Of the law is not logic but experience. There-fore. every legal proposition must in the ultimate analysis be t~sted on fnc touch-stone of pragmatic realism. [680 B-F, H, 681 C-F]The audi alteram partem rule may, therefore, by the experiential test, be excluded, if importing the right to be h1!ard has the effect of paralysing the administrative process or the need for promptitude or the ur_gencv of the situation so demands. But. at the same time, it must be remembered that this is rule of vital importance in the field of administrative law and it must not be jettisoned save in very exceptinnal circums~ances where compulsive necessity so demands. Tt is wholesome rule destgned to secure the rule of law and the Court should not be too ready to eschew it in its application to given case. The Court must make everY effort to salvage this cardinal rule to the maximum extent pe!missible in .giv~~ case. __ The audi .afteram partem rule is not cast in n rigtd mould and }tKhcml declstons establish t~at it may snffer situutional modifications. The core of it must, bowe_ver, rem~m, namely, that the person affected must .h<IVe re~sonable opportumty of bet~g he.ard and the hearing must be genutne heanng and not an empty publtc relations exercise. lt would, not therefore. be right to conclude t~at !he oudi aftcrani Fartem rule is excluded merel_y because the power to tmp~und passport might be frustrnted, . if prior. noti~c and hearing were to _be gwen to the person concerned before tmpoundmg hts pass~~rt. The ~assp01 t Aut~o­ritv may proceed to impound the pass\'lort without gtvlng any -~nor ~pportu':ttv to· the person concerned to be heard, but as soon as the order tmpoundm.~

the passport is made, an opportunity of hearing, remedial in aim, should be ~iven to him so that he may present his case and controvert that of the Passport Authority and point out why his passport should not be im~ pounded and the order impounding it recalled. This should not only be possible but also quite appropriate, because the reasons for impounding the passport are required to be supplied by the Passport Authority after the making of the order and the person affected would, therefore, be in position to make repre~ sentation setting forth his case and plead for setting aside the action impounding his passport. fair opportunity of being heard following immediately upon the order impounding the Passport would satisfy the mandate of natural justice nnd prov-ision requiring giving of such opportunity to the person concerned can and should be read by implication in the Passports Act. If such provision were held to be incorporated in the Passport's Act by necessary imp1ication the procedure prescribed by the Act for impounding passport would be right, fair and just and would not suffer from arbitrariness or unreasonableness. Therefore, the procedure established by the Passport Act for impounding passport must be held to be in conformity with the requirement of Art. 21 and does not fall foul of that Article. [681 G-H, 682 A-C, E-H, 683 A-B]In the present case, however. the Central Government not only did not give an opportunity of hearing of the petitioner after making the impugned order impounding her passport but even declined to furnish to the petitioner the reasons for impounding her passport despite requests made by her. The Central Government was wholly unjustified in withholding the reasons for im-pounding the passport and this was not only in breach of the statutory provisions but it also amounted to denial of opportunity of hearing to the petitioner. The order impounding the passport of the petitioner was, therefore, clearly in violation of the rule of natural justice embodied in the maxim audi alteram partem and was not in conformity with the procedure prescribed by the Act. The learned Attorney General, however, made statement on behalf of the Government of India that the Government was agreeable to considering any representation that may be made hy the petitioner in respect of the impoundin~ of her pa£sporl and giving her an opportunity in the matter, and that the re-presentation would be dealt with expeditiously in accordance with Jaw. This statement removes the vice from the order impounding the passport and it can no longer be assailed on the ground that it does not comr>lY with the audi alteram partem rule or is not in accord with the procedure prescribed by the Act. [683 C-G}

The law is well settled that when statute vests unguided and' unrestricted power in an authority to affect the rights of person/ without layin~ down any policy or principle which is to guide the authority in exercise of the power, it would be affected by the vice of discrimination since it would leave ·it open to the authority to discriminate between persons and things similarly situated. However, it is difficult to say that the discretion conferred ori the passport authority is arbitrary or unfettered. There are four grounds set out in section 10(3 )(c) which would justify the making of an order impounding passport. [684 C-DJ

The words "in the interest of the general public" cannot be characterised as vague or undefined. The expression "in the interest of the general public" ha~ clearly well defined meal\ing and the Courts have often been called upon to decide whether particular action is in the intefe~t of general public or in public interest and no difficulty has been experienced by the Courts in carrying out this exercise. These words are in fact borrowed ipsissima wrba from Art 19(5) and it would be nothing short of heresay to accnse the constitution makers of vague and loose thinking. Sufficient ,guidelines are provided by the Act it~elf and the power conferred on the Passport AuthoritY to impound n passport cannot be said to be unguided or unfettered. More· over the exercise of this power is not made dependent on the subjective opinion of the Passport Authority as regards the necessity of exercisin~ it on one or more grounds stated: in S.10(3)(c), but the Passport Authority is required to record in writing brief statement of reasons for impounding the passport and save in certain exceptional circumstances, supply copy of such statement of reasons to the person affected so that the nerson concerned can challenge the decision of the Passport Authori!Y in appeal and the Appel-late Authority can examine whether the reasons gtven: by the Passport Autho·

riiy are correct and if so whether they justify the making of the order im-pounding the passport. It is true that when the order impounding the passport is made by the Central Government there is no appeal against it. But it must be remembered that in such case the power is exercised by the Central Government itself and it can safely be assumed that the Central Govt. will exercise the power in reasonable and responsible manner. When power is vested in high authority like the Central Government abuse of power cannot be lightly assumed and in any event, if there is abuse vf the power the arms of the Co\]rt are long enough to reach it and to' strike it down. The power conferred on the PasspOrt Authority to impound passport under section 10(3) (c) cannot be regarded as discriminatory. [684-D-H, 685 A-C] )<

The law on the point viz. the proper test or yard-stick to be applied for determining whether statute infringes particular fundamental right, wnile adjudging the constitutionality o( statute on the touchstone of fundamental rights has undergone radical changes since the days of A.K. Gopalan's case [l950] SCR 88, which was followed in Ram Singh and Ors. v. Sture of Delhi [1951] SCR 451 and applied in Naresh Shridhar Mirajikar & Ors. v. State of Maltarashtra & Anr. [1966] 3 SCR 744. [685 D-G, 686-B]

According to these decisions, the theory was that the object and form of state action determine the extent of protection which may be claimed by an individual and the validity of such action has to be judged by considering whether it is "directly in respect of the subject covered by any particular arti-cle of the Constitution or touches the said article only incidentally or in-directly". The test to be applied for determining the· co•.ls!itlltional validity of state a-ction with fundamental right therefore was : what is the object of • the authority in taking the action : What is the subject matter of the action and to which fundamental right does it relate? This the()ry that "the ex-tent of protection of important guarantees, such as the liberty of persons and right to property, depend upon the form and object of the state action not upon its direct operation upon the individual's freedom" held sway, in spite of three decisions of the Supreme Court in Dwarkadass Srinivas v. The Sho!apur Weaving Co. Ltd. [1954] SCR 674; Express Newspaper (P) Ltd. & Anr. v. Union of India [1959] SCR 12; and Sakal Papers (P) Ltd. & Ors. v. Union of India [1962] 3 SCR 842 formulating the test of direct and inevit-able effect or the doctrine of intended and real effect for the purpose of ad~ judging whether statute offends particular fundamental right. However, it was only iri R.C. Cooper v. Union of India [1973] 3 SCR 530 that the doct-rine that the object and form of the State action alone determine the extent of protection that may be claimed by an individual and that the effect of the State action on the fundamental right of the individual is irrelevant as Jaid down in Gopalan's case was finally rejected. This doctrine is in substance and reality nothing else than the test of pith and substance which is applied for determin~ng the constitutionality of legislation where there is conflict of l<'gisbtive powers conferred on Federal and State legislatures with reference to legislative lists. [685 H, 686 A-B, D-H, 687 A-E, F-G]

The test applied since R.C. Cooper's case was as to what is the direct and inevitable consequence or effect of the impugned state action on the funda-mental right of the petitioner. It is possible that in given case the pith and substance of the State action may deal with particular iundame!_!!al_ ri11:ht but its direct and inevitable effect may be on another fundnmental right and in that case, the state action would hav-e to meet the challenge of the latter fundamental right. The pith and substance doctrine looks only at the obJect and subject matter of the state action, but in testing the validitY of the state action with reference to fundamenat rights, what the Courts must consider is the direct a® inevitable consequence of the State action. Otherwise the pro-tection of the fundamental rights would subtly but surely eroded. [690 B-D]

A. K. Gopafan v. State of Madras [1950] 2 SCR 88; Ram SinRh & Ors. V. Stnte of Delhi [19511 SCR 451; Naresh Sridhar Marajkar & Ors. v. State of Maharashtra & Anr. fl966] 3 SCR 744 referred to. R. C. Cooper v. Union of 1ndia T19731 3 SCR 530: Dwarakadass Srinivas v. the Sholapur and Wef!V-inrr Co. Ltd. 09541 SCR 674; Express Newspaper (P) Ltd. & Anr. v: Umon o/ lndia, [1959] S.C.R. 12 and Sakal Papers (P) Ltd. & Ors. v. Umon of

India [19621 3 SCR 842; quoted with approval, Bennet Coleman & Co. v. Union of India [1973] 2 SCR 757 applied.

The test formulated in R. C. Cooper's case merely refers to "direct opera-tion" or "direct consequence and effect" of the State action on the funcla-mental right of the petitioner and does not use the word "inevitable" in this connection. If the test were merely of direct or indirect effect, it would be an open-~·nded concept and in the absence of operational criteria for ju<fgmg "directness" it would give the Court an unquestionable discretion to decide whether in given case consequence or effect is direct or not. Some other concept-vehicle would be ~1eeded to quantify the extent of directnes" or indirect-ness in order to apply the test. And that is supplied by the .criterion of "in-evitable" consequence or effect adumbrated in the Express Newspaper case [1959] SCR 12. This criterion helpg to quantify the extent of directness necessary to constitute infringement of fundamental right. Now, if the effect of State action on fundamental right is direct and inevitable, then fortiorari it must be presumed to have been intended by the authority taking the action and hence this doctrine of direct and inevitable< effect is deBcribed aptly as the doctrine of intended and real effect. This is the test which must be applied for the purpose of determining whether section 10(3)(c), or the impugned order made under it is violated of Art. 19( 0 (a) or (g). [698 C-fl

Prima facie, the right which is sought to be restricted by s~ 10(3){c) and the impugned order is the right to go abroad and that is not named as fundamental right or included in so many words in Art. 19 (1 )(a) of the Constitution. The right to go abroad, as held in Satwant Singh Sawhney's case [1967] 3 SCR 525, is included in "personal liberty" within the meaning of Art. 21 and is thus fundamental right protected by that Article. This dearly shows that there is no underlying principle in the Constitution which limits the fundamental right in their operation to the territory of India. If fundamental right under Art. 21 can be exercisable outside India, there is no reason why freedom of speech and expression conferred under 19(1)(a) cannot be so exercisable. [690 H, 694 C-D]

restricted by s~ 10(3){c) and that is not named as in Art. 19 (1 )(a) of the in Satwant Singh Sawhney's the meaning

Satwant Singh Sawhney v. D. Ramaratlmam, Asstt. Pos.sport Officer, Govt. of India, New Delhi & Ors., [1967] 3 SCR 525; Best v. United States; 184 Federal Reporter (ed) p 131, referred to. Dr. S. S. Sadashiva Rao v. Union of India [1965] Mysore Law Journal p. 605 approved.

There are no geographical limitatioM to freedom of speech and expres-sion guaranteed under Art. 19(1) (a) and this freedom is exercisable not only in India but also outside and if State action sets up barriers to its_ citi· zens' freedoru of expression in any country in the world, it would v1olate Art. 19(1) (a) as much .as if it inhibited such expression within the country. This conclusion would on parity of reasoning apply ~qually in relation to fundamental right to practise any profession or to carry on any occupation. trade or business, guaranteed under Art. 19(1)(g). [694 G-H, 695 A)

Freedom to go . abroad incorporates the important function of an ulti-mum refunium liberatis when other basic freedoms are refused. Freedom to go abroad has much social n.lue and represents basic human right of great significance. It is in fact incorporated as in alienable human right in Article 13 of the Universal Declaration of Human Rights. But it is not specifically named as fundamental right in Art. 19(1) of the Constitution. [696 C-D]

Kent v. Dulles, 351 US 116 : 2 L.ed 2d, 1204 referred to.

Even if right is not specifically named in Art. 19(1) it may still be fundamental right covered by some clause of that Article, if it: is an integral part of named fundamental right or partakes of the same basic nature and character as that fundamental right. It is not enough that right claimed by the petitioner flows or emanates from named fundamental right or that its existence, is necessary in order to make the exercise of the nameo f1.mdamental right meaningful a<nd effective. Every activity which fac!11ta~es the exercise of named fundamental right is not necessarily comprehended in that fundamental right, nor can it be regarded as such merely because it may not be possible otherwise to effectively exercise that fundamental right.

What is necessary to be seem is and that is the test which must be applied, whether the right claimed by the petitioner is ~ n integral part of named fundamental right or partakes of the same basic nature and character as the named fundamental right is in reality and substance nothing but an in-stance of the exercise of the named fundamental right. If this be the correct test, the right to go abroad cannot in all circumstances be regarded as in-cluded in freedom of speech and expression. [697 D-G]

Kent v. Dulles, 357 US. 116. 2 L.ed 2d. 1204 : Expres.\' Newspapers (P) Ltd. & Anr. v. Union of India & Ors. [1959] SCR 12; Sakal Papers (P) Ltd. & Ors. v. Union of India [1962} 3 SCR 842; Bennet Cohman & Co. & Ors. v. Union of India' [1973] 2 SCR 757; Ramesh Thappar v. State of Madra3 [1950] SCR 594 referred to. Apthekar v. Secretary of Swte 378 US 500: 12 Led 2d 992; Zamei v. Rusk 381 US 1 : 14 Led 2d 179 expiained.

The theory that peripheral or concomitant right which facilitates the exercise of named fundamental right or gives its meaning and substance or makes its exercise effective, is itself guaranteed right included within the named fundamental right cannot be accepted. [701 B-C]

All India Bank Employees' Association v. National Industrial Tribunal {l962] 3 SCR 269 applied.

The right to go· abroad cannot therefore be regarded as included in free-D dom of speech and expression guaranteed under Art. 19 ( 1 ) (a) on the theorv of peripheral or concomitant right. The right to go abroad cannot be treated as part of the right to carry on trade, business or profession or calling guaran-teed under Art. 19 (1 )(g). The right to go abroad is clearly not ~uarante­ed right under any clause of Article 19(1) and Section 10(3)(c) which authorises imposition of restrictions on the right to go abroad by impounding of passport cannot be held as void as offending Article 191 1 ) (a) or (g), as its direct and inevitable impact is on the right to go abroad and nor on the right of free speech and expression or the right to carry on trade, business, profession or calling. [702 C-E]

But that does not mean that an order made under s. 10 (3) ( c} may not violate Article 19 (1 )(a) or (g). Where statutory provision empowerin!! an authority to take action is constitutionally valid, action taken under' it may offend fundamental right and in that event, though the statutory pro-vision is valid, the action may be void. Therefore, even though section 1 0( 3) (c) is valid, the question would always remain whether a•n order made under it is inva1id as contravening fundamental right. The direct and inevitable effect of an order impounding passport may, in given case, be to abridge or take away freedom of speech and expression or tile right to carry on profession and where such is the case, the order would be invalid, unless saved by Article 19(2) or Article 19(6). [702 F-H]

Narendra Kumar & Ors. v. Union of India & Ors., [1960] 2 SCR 375 referred to.

Though the impugned order may be within the terms of s. 10 (3) (c), lt must nevertheless not contravene any fundamental ri,ght and if it does, it would be void. Now, even if an order imp~unding pa~SP?rt i~ made in th~ interests of public order decency or mor~·hty, the restnctJon Imposed by 1t may be so wide, excessive disproportionate to the mischief or evil sought to be averted that it may be considered unreasonable and in that event, if the direct and inevitable consequence of the order is to abridge or take awav freedom of speech and expression, it would be violative of Article 19(1 )(a) and would not be protected by Article 19 (2) and the same would be. the position where the order is in the interests of the genera! public but. it if.l-fringes directly and inevitably on the freedom to carry on professton tn which case it would contravene Article 19(1) (g) without being saved bv the provision enacted in Article 19(6). [705 D-E]

The impugned order, in the present case does not violate either Art. 19 (1 }(a) or Art. 19 (1 )(g). What the impugned order does is to impound the passport of the petitioner and thereby prevent her from going abroad and at th-e date, when impugned order was made, there is nothing to show' that the petitioner was intending to go abroad for the purpose· of exercising her freedom or speech and expression or her right to carry on her profession as jon~·nalist. The direct and inevitable consequence of the impugned order was to impede the exercise of her ri_ght to go abroad and not to interfere with her freedom of speech and expression or her right to carry on her profession. [7D6 F-G]The petitioner is not justified in seeking to limit the expression "interests of the general public" to matters relating to foreign affairs. The argument that the said expression could not cover situation where the presence of person i!'. requirep to give evidence before commission of Jnquir.y_ is plain-lv erroneous as it seeks to cut down the width and amplitude of the ex-pression "interests of the general public," an expression which has well recognised legal connotation and which is found in Article 19(5) as well as Article 19 ( 6). It is true that that there is always perspective within which statute is intended to operate, but that does not justify reading of statutory provision in manner not warranted by the langua,ge or narrow-ing down its scope and meaning by introducing limitation which has no basis either in the language or in the context of statutory provision. Clauses (d), (e) and (h) of S. 10(3) make it clear that there are several ,grounds in this section which do not relate to foreign affairs. [709 B-F]

Moreover the present case is not one where the maxim "expressio rmius exclusio uTterius has any application at all. [710-B-C]

Rohta.~ Industries Ltd. v. S. 0. AJ?arwal & Anr., [1969] 3 SCR 108 @ 128 referred to.

OBSERV TlON

Tt is true that. the power under s. 10(3) (c) is rather drastic power to interfere with basic human right, but this: power has been conferred by the legislature in public interest and there is no doubt that it will be sparingly used and that too, with great care and circumspection and as far as possible. the passport of person will not be impounded merely on the ground of his being required in connection with proceeding, unless the case is brough.t within s. 10(3)(e) or sec. 10(3)(h). [7JOG-H).

Ghalli v. Jones [1970] 1 Q. 693 quoted with approval.

A': <?rd_er impoun~ing passport can be made by the Passport Authority only 1f 1t IS actually m the mterests of the general public to do so and it is !lot enough that the int~rests of the general public may be likely to be served m future by the makmg of the order. Tn the present case it was not merely on the futur7 likelihood of the interests of the general public being adva~ced that the tmpugned order was made by the Central Govri1ment. The 1mpugned order wa~ made because, in the opinion of the Central Govt. the pr~s~nce· of the . petitioner was necessary for giving evidence before the ~omnnss10n of Inqmry. and according to the report received by the Central Government she \vas ltkelv to leave India and that might frustrate ·or im-p~d~ to some e~tent the inQuiries which were being conducted by the Com-miSSIOns of Inqmry. [711-C-D]

Krishna lyer, J. (concurring with Bhagwati, J.)

• British Raj has fr<:~ned on foreign travels by Indian patriotic suspects and mstances from the Bnt1sh Indian Chapter may abound. ln many countries the

p~ssport ~nd visa system has been used as potent paper curtain to inhibit illus-tnous wnters, outstanding statesmen, humanist churchmen and renowned scien-tists, if they are dissenters, from leaving their national frontiers. Things have changed, global awareness has dawned. The European Convention on Human Rights and bilateral understandings have· made head\vay to widen freedom of travel abroad as integral to liberty of the person. And the universal Declara-tion of Human Rights has proclaimed in Article 13, that every one has the nght to leave any country including his own, and to return to his country. Thls human planet is our single home, though geographically variegated. culturally diverse, politically pluralist, in science and technology competitive and coopera-tive, in arts and life-styles lovely mosaic and, above all, suffused with cosmic consciousness of unity and inter-dependence. [717 B, C, D, E-F]Viewed from another angle, travel abroad is cultural enrichment which en-ables one's' understanding of one's own country in better light. Thus it serves national interest to have its citizenry see other countries and judge one's country on comparative scale. [718 B] The of free movement is vital element free movement is vital element of The

The right of free movement is vital element free movement is vital element of personal liberty. The right of free movement includes right to travel abroad. Among the great guaranteed rights life and liberty are the first among equals, carrying universal connota-tion cardinal to decent human order and protected by constitutional armour. Truncate liberty in Art. 21 traumatically and the several other freedoms fade out automatically. [720 A-B] Personal liberty makes for the worth of the human person. Travel makes liberty worthwhile. life is terrestrial op):Ortunity for unfolding personality rising to higher scale moving to fresh woods 2.nd reaching out to reality which makes our earthly journey true fulfilment not tale told by an idiot full of sound and fury signifying nothing, but fine frenzy rolling between heaven and earth. The spirit of Man is at the root of Art. 21 Absent liberty, other freedoms are frozen. [721 C-F]

Proceuure which deals with the modalities of regulating, restrictin~ or even rejecting fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itse1i. Thus, understood, 'procedure' must rule out anything arbitrary, freakish or bizarre. What is fundamental is life and liberty. What is procedural is the manner 6f its exercise. This quality of fairness in the process is emphasised by the strong word "establish'' which means 'setlled firmly', not wantonly or whimsically. [722 H, 723 A-B]

Procedure in Article 21 means fair, not formal procedure. Law is reason-able law, not any enacted piece. As Art. 22 specifically spells out the procedural safeguards for pre,·entive and punitive detention. law providing for such deten-tion should conform to Art. 22. It has been rightly pointed out that for other rights forming part of personal liberty, the procedural safeguards enshrined in Art. 21 are available. Otherwise, as the procedural safeguards contained in Art. 22 wiii be available only in cases of preventive and punitive detention the right to ·Jife, more fundamental than any other forming part of personal liberty and paramount to the happiness, dignity and worth of the individual, will not be en-titled to any procedur;-•.1 safeguard, save such as legislatur~·~ mood chooses. [723 F-H]

Kochunmi's case (AIR 1960 SC 1080, 1093) referred.

Liberty of locomotion into alien territory cannot be unjustly forbidden by the Establishment and passport legislation must take processual provisions which ac-cord with fair norms, free from extraneous pressure and, by and large, comply-ing with natural justice. Unilateral arbitrariness, police dossiers, faceless alliants, behind-the-back. materials oblique motives and the inscrutable face of an official sphinx do not fill the 'fairness,' bill. [726 D-E]

Artic1e 21 clubs life with liberty and when we interpret the colour and con-tent of 'procedure established by law', we must be alive to the deadly periL of

__ ..._I

life being deprived without minimal processual justice, legislative callousness despising hearing and fair opportunities of defence. [726 F]

Sections 5, 6 and 10 of the impugned legislation must be tested even under Art. 21 on canons of processual justice to the people outlined above. Hearing is obligatory-meaningful hearing, flexible and realistic, according to circum-stances, but not ritualistic and wooden. In exceptional cases and emergency situations, interim measures may be taken, to avoid the mischief of the pass-portee becoming a11 escapee before the hearing begins. "Bolt the stables after the horse has been stolen·• is wt command of natural justice. But soon after the . provisional seizure, reasonable hearing must follow, to minimise procedural prejudice. And when prompt final order is made against the applicant or passport holder the reasons must be disclos~d to him almost invariably save in those d"ngerous cases, where irreparable mjury Will ensue to the State. government which revels in secrecy in the field of people"s llberty not only acts against democratic decency but busies itself with its own burial. That is the writing on the wall if history were teacher, memory our mentor and decline of liberty not our unwitting endeavour. Public power must rarely hide its heart in an open society and system.

[727 F-H]

Article 14 has pervasive processu~.t potency and ver~::ltile quality, equali-tarian i:n its soul and allergic to discriminatory diktats. EQuality is the antithesis of arbitrariness. [728 A]

As far as question of extra-territorial jurisdiction in foreign lands is con-cerned, it is misconception. Nobody contends that India should interfere with other countries and ·their sovereignty to ensure free movement of Indians in those ~Quntries. What is meant is that the Government of India should not pre-vent by any sanctions it has over its citizens from moving within in any other country if that other country has no objection to their travelling within it~ territory. [728 C]

In Gopalan'3 case it was held that Art. 22 is self-contained Code, however, this has suffered supersession at the hands of R. C. Cooper_ [728 D]

Sakal Newspapers [1962] 3 SCR 842, Cooper [1973] 3 SCR 530. Bennet Coleman [1973] 2 SCR 759 and Slwmbu Nath Sarkar [1973] 1 SCR 856 referred to.

The law is now settled that no article in Part III is an island but part of continent, and the conspectus of the whole part gives the direction and correction needed for interpretation of these basic provisions. Man is not dissectible into separate limbs and, likewise, cardinal rights in an organic constitution, which make man human have synthesis. The proposition is indubitable that Art. 21 does not, in given situation exclude Art. 19 if both rights are breached. It is salutary thought that the summit court should not interpret constitutional rights enshrined in Part III to choke its life-breath or chill its elan vital by pro-cesses of legalism, overruling the enduring values burning in the bosom'l of those who · won our independence and dre• up our found.ing document.

[728 F-G. 729 A-B]

High constitutional policy has harmonised individual freedoms with holistic community good by inscribing exceptions to Art. 19(l) in Art 19(2) to (6). Even so, what is fundamental is the freedom, not the exception. More im-portantly, restraints are permissible only to the extent they have nexus with the approved object. No verbal labels but real values are the governing consid!!ra· tions i.n .the exploration and adjudication of constitutional prescriptions and proscnptlons. Governments come and go, but the fundamental rights of the people cannot be subject to the wishful value·sets of political regimes of the passing day. [729 C-D, 730 FJ ·~ocomotion in some situation is necessarily involved in the exercise of the s~enfif;d fun~amental rights as an associated or integrated right. Travel, simpli-~lfer, ~s penpheral to and not necessarily fundnmental in Art. 19 Free soeech JS feastble w1thout movement beyond country. [731 B]

The delicat~, yet difficult, phase of the controversy arrives where free speech and free practice of profession are inextricably interwoven with travel abroad.

One. bas to view the proximate and real consequence of thwarting trans~ national travel through the power of the State exercised under s. J of t.he Passport Act read with ss. 5 and 6. Associated rights totally integrated with fundamental rights must enjoy the same immunity. Three sets of cases might arise. First, where the legislative provision or executive order ex-pressly forbids exercise in foreign lands of the fundamental ri~ht while ~rant­ing passport. Secondly, there may be cases where even if thei order is in-no<:ent on its face, the refusal of permission to go to· foreign countrY mav, 8 with certainty and immediacy, spell denial of free speech and professional practice or business. Thirdly, the fundamental right may itself enwomb loco-motion regardless of national frontiers. The second and third often are blurred in their edges and may overlap. [732 H, 733 A-C]

Spies, traitors, smugglers, saboteurs of the health, wealth and survival or sovereignty of the nation shall not be passported into hostile soil to work their vicious plan fruitfully. But when applying the Passports Act, Over-breadth, hyper-anxiety, regimentation complex, and political mistrust shall not sub-con-c sciously exaggerate, into morbid or •.1eurotic refusal or unlimited impo:1ding or ;final revocation of passport, facts which, objectively assessed, may prove tre-mendous trifles. That is why the pro'-;isions have to be read down into consti-tutionality, tailored to fit the reasonableness test and humanised by natural justice. The Act will survive but the order shall perish for reasons so fully set out by Shri Justice Bhagwati. And on this construction, the conscience of the Constitution triumphs over vagarious governmental orders. [734 E-G-H]

Kailasam, J. (Dissenting)

The preamble to the Constitution provides that the people of India have solemnly resolved to constitute India into sovereign, socialist, secular and democratic republic and to secure to all its citizens, justice, social, economic and political, liberty of thought, expression, belief. faith and worship, equality of status and of opportunity. Article 12 defines. the State as including the Govern-ment and Parliament of India and the Government and the Legislature of each of the States and of local or other authorities within the territory of India or under the control of the Government of India.· Article 13 provides that laws that are inconsistent with or in derogation of fundamental ri_ghts are to that ex· tent void. Article 245 (2) provides that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra territorial operation. Tn England section 3 of the Statute of Westminster declares that Parliament has full power to make laws having extra territorial operation. The following arc the principles to determine whether the provisions of Constitution or Statute have extra territorial application.

(a) An Act unless it provides otherwise applies only to the country concerned. (b) An Act of Legislature wilt bind the subjects of the realm both within and without if that is the intention of the Legislature, which must be gathered from. the language of the Act in question. (c) Legislature normally restricts operation of legislation to its own territories. However. on occasions legislation controJiing the acti~ vitics of its own citizens when they are abroad may be passed. Niboyet v. Nihoyet 48 L.J.P.I. at p. 10 and Quew v. Jameson and Others [1896] 2 Q.B. Division 425 at 430 referred to.(d) In the absence of an intention clearly expressed or to be inferred from its language, or from the object or subject matter or history of the enactment, the presumption is that Parliament does not design its statute to operate beyond the territorial limit of the country. [738-E-F-H. 739 A, B. E, G-1-T. 740 !\, B, G-H.J

Go1•erno.r-General in Council v. Raleigh Investment Co. Ltd. A.I.R. (31) ll [1944] Federal Court 51, referred to.

Wallace Brothers & Co. Ltd. v. Commissioner of lncome-Tax, Bombay, Sind and Baluchistan [19451 F. C. R. 65 and Molzammad Mohy-ud-din v. The King Emperor [1946] F. C. R. 94 referred to.

_....-::

The application of Article 14 is expressly limited to the territory of India. Articles 15, 16, 17, 18, 20 and 22 by the:r very •nature are conlined to the terri-tory of India. Articles 23 to 28 are applicable only to the territory of India. At any rate, there is no intention in these Articles indicating extra-territorial application. So also Articles 29 and 30 which deal with cultural and educational rights are applicable only within the territory of India. Article 31 does not expressly or impliedly have any extra-territorial application. It is poosible that the right conferred by Article 19(1) (a) may have extra-territorial application. It is not likely, however, that the framers of the Constitution intended the right to assemble peaceably and without arms or to form associations or unions or to a~quire, hold and dispose of property, or to ~ractise any profession or to carry on any occupation, trade or business, to have .:~ny extra-territorial applic:; .. tion for such rights would not be enforced by the State oubide the l•,1dian terri- . tory. The r:ghts conferred under Article 19 are fundameutal rights and Arts. 32 & 226 provide that those rights are guaranteed 2.nd can be e'Jlforced by the aggrieved person by approaching this Court or the High Courts. These rights cannot be protected by the State outside its territory and, therefore, there is presumption that the constitution makers would not have intended to guarantee any rights which the State cannot enforce. [742 H, 743 A-D-E-F]

Virendra v. The State of Punjab and Anolher, [1958] SCR 308 referred to.

It is most unlikely that before the declaration of human ri_ghts was pro-mulgated the framers of the Constitution decided to declare that the funda~ mental rights conferred on the citizens would, be available even outside fndia: Even in the American Constitution there is no mention of right to freedom of speech or expression1 as being available outside America. The law made under Article 19(2) to 19(6) imposes restrictions on the exercise of right of freedom of speech and expression etc: The restrictions thus im-posed normally would apply· only within the territory of India unless the legisla~ tion expressly or by necessary implication provides for extra-territorial operation. (n the penal code, section ~ aru:t 4 specifically provides that crimes com- · mitted by citizens of India outside India are punishable. In Article 19, how-ever, there is no such provision expressly or by nec·ess~ry implication. Secondly, citizen cannot enforce his fundamental rij!;hts outside the territorv of India even if it is taken that such rights are available outside the country. Therefore, the contention of the petitioners that by denying the passt~ort the petitioner's fundamen~al rights guaranteed by Article 19 are infrin,ged can-not be accepted. [744 H, 745 A-D, 746 F-G, H. 747 A]

The important question which arises, is whether an Act passed under Article 21 should also satisfy requirements of Article 19. It has been decided by this Court in Gopalan's case that the punitive detention for offences under the Penal Code cannot be challenged on the ground that it infringes fundamental rights under Article 19. [747 E-F1

The rights guaranteed under Article 19 ( 1) are subject to restrictions that may be placed by Articles 19(2) to 19{6). The right not to be deprived of Jife and pet'sonal .liberty is subject to its deprivation by procedure established by law. In Gopalan's case it was held that Article 19 dealt with the rights of the citizens when he was free and would not apply to person who had ceased to be free and has been either under punitive or preventive detention. It was further held th21t Article1 19 only applied where legislation directly hit the rights enumerated in the Article and not where the loss of ri~hts mentioned in the Article was result of the operation of legislation relating to punitive or preventive detention. The aforesaid ratio of Gopalan's case has been confirmed by this· Court in Ram Sinfdl v. Srate of Delhi. The view was again confirmed in the State of Bilzar v. Kameshwar Singh. [749 C, 750 B-G]

Ram Singh v. State of Delhi [1951] SCR 451 and State of Bihar v. Kameshwar Singh [1952] SCR 889 relied on.

In Express Newspapers, the test laid down was that there must be direct or inevitable consequences of the measure enacted in the impugned Act and that

it would not be possible to strike down the legislation as having that effect and operation. [7 51 B-C]

Exvress Newspavers (P) Ltd. and another v. The Union of India & Ors. f1959] 1 SCR 135 referred to.

In Hamdard Dawakhana's case it was held that it is not the form or inci~ dental infringement that determines the constitutionality of statute but the-reality or the substance. [751 D}

Hamdard Dawakhana (Wakf) Lal Kuan v. Union of India [1960J 2 SCR 671 at page 691 and Koclwnni v. Tf1e State of Madras [1960] 3 SCR 887 referred to. Sakal Papers (P) Ltd. and Ors. v. The Union of India [1962] 3 SCR 842. distinguished.

In Sakal Paper's Case the Court held that the order was void as it viol<l•ted Artic1~ 19_(1)(a) and ~as not saved b~ Article 19(2). In that case the impact of Jeg1s1atton under Article 21 on the nghts guaranteed under Article 19(1) was not in issue. [752 C-D]

Kharak Singh [1964] 1 SCR 332 relied on; Bank Nationalisation [19.70] 3 SCR 530 and Bennet Coleman [1973] 2 SCR 757 distinguished.

In Bank Natio!Ullisation case the Court was only considering the decisions that took the view that Articles 19(1 )(f) and 31(2) were mutually exclusive. The basis for the conclusion in Bank Nationalisation case is that Arucks 19 and 31 are parts of single pattern and while Article 19(l)(f) enjoins the right to :1 acquire, hold and dispose of property, clause 5 of Article 19 authorises imposition of restrictions upon the right. There must be reasonable restriction and Article 31 assures the right to property and grants protection against the exer-cise of the authority of the State and clause 5 of Article 19 and clauses 1 and 2 of Article 31 _prescribe restrictions upon the said action, subject to which the right to property may· be exercised. The case specifically over-ruled the view taken in Govalan's case that the approach and form of the State action alone need to be considered and the fact of loss of fundamental rights of the tion [individual ]case related [in ][general ]to the [w11 ]inter-relation between Article [be ][ignored. ][The ][entire discussion ]31(2) and [ioa ][Bank ]Article [f\/ation.nli5a-]l9(1)(f). Certain passing observations have been made about the liberty of persons. However. there is no justification for holding that the c2.se is an authority for the proposition that the legislation under Article 21 should also satisfy all the fundamental rights guaranteed under Article 19(1). Article 21 is relaf-ed to deprivation of life and personal liberty and it has been held that it is not one of the rights enumerated in Article 19(1). That the decision in Bank Nationalisation: case so far as it relates to Articles 19(1) and 21 is in the nature of obiter dicta. The Court had not applied its mind and decided the specific question. The observations were general and casual observations on point not calling for decision and not obviously argued before it cannot be taken as an authority on the proposition im question. The Court cannot be said to have declared the law on the subject when no occasion arose for it to' consider and decide the question. The judgment proceeded on some erroneous assumptions. It was assumed by the judgment that the majority of the Court in Gopalan's case held that Article 22 being compl~te code relatin~ to l?re~ ventive detention the validity or an order of detention mu"t be t!etermmed directly according to the terms within the four corners o~ that ~rttc!e· Th~ said statement is 't1ot borne out from the record of th~ ~udgt;nent m (rapalan s Cl.'Re. Tf the· obiter dicta based on the wrong assumptiOn 1s to be takery as the correct position in law it would lead to strange results. If Articles·

1_9(1)(a) to (e) _and (g) arc ~t~acted in the case of de11rivation of personal liberty under Arhcle 21, pumt1ve detention for an offence committed under I.P.C., such as theft, cheating or assault would be illegal. for the reasonable restrictions in the interest of public order would not cover the said offences. There can be no distinction between the punitive detention and preventive detention. Observation in Bank Nationalisation case that legislation under Article 21 should also satisfy the requirements of Article 19 cannot be taken as correct law. [754 G-H, 756 D-E, 757 C-E, G-H, 758 A-B, C, 759 A, E-P]

Chiranjit Lal Chowdhuri [1950] SCR 869, The State of West BenRal v. Subodh Gopal [19541 SCR 587, State of Bombay v. Bhanji Munji [19531 1 SCR 777, Dabu Barkya Thakur v. State of Bombay, (1961} 1 SCR 128, Smt. Sitabari Debi & Anr. v. State of Wesr Bengal [1967] 2 SCR 940 and K. K. Kochunni [1968] 3 SCR 887 referred to.

In S. N. Sarkar's case also, the majority held that Article 22 was self-contained Code. The view taken in this case also suffers from the same infirmi-ties referred to in the Bank Nationalisation case. In Khudi Ram's case also this Court erroneousiy stated that Gopalan's case ha.s tak.!n the view that Article 22 was complete code. [759 F-H, 760 A-Bl

In Additional District Magistrate, Jabalpur, Chief Justice Ray held that Article 21 is the rule of law regarding life and liberty and no other rule of Jaw can have separate existence as distinct right. Justice Beg observed that Gopalan's case was merely cited in Cooper's case for illustrating a. line of reasoning which was held to be incorrect in determining validity of law. The question under consideration was whether Articles 19(1)(f) and 31(2) were mutually exclusive. The learned Judge did not understand the Cooper's case as holding that effect of deprivation of rights outside Artide 21 will also have to be considered. [760 D-F-HJ

In Bennet Coleman's case, the Court held thal though Article 19(1) does not mention the freedom of press it is settled view of the court that freedom ot speech and expression includes freedom of Press and circulation. In that case also the question whether Articles 21 and 19 are mutually exclusive did not arise for consideration. Be1t11et Coleman's case. Express Newspapers Case, and Sakal Newspapers case were all concerned with the right to freedom of the press which is held to form part of the freedom of speech and expression. [761 G-HJ

Commonwealth of Australia v. Bank of New South Wales [1950] A.C. 235 referred to.

The Passport Act provides for issue of passports and travel documents for reg1.1lating the departure from India of citizens of India and other nerson. Since the said Act complies with the requirements of Article 21 i.e. compliance with procedure established by 1aw, its validity cannot be chaUenJ,Zed. If Hlcidentally the Act infringes on the rights of citizen under Article 19 ( 1) of the Act, it cannot be found to be invalid. The pith and substance rule will have to be anplied and unless the rights are directly 3ffected, the challenge will fail. [763 A-B)

The procedure established by law does not mean procedure, however, fantastic and oppressive or arbitrary which in truth and reality is no procedure at all. Section 5 of the Act provides for applying for passports or travel documents etc. and the procedure for passing orders thereon. The authority can either grant passport or can refuse it. In case the authority refuses to grant it; it is required to record in writing brief statement of his reasons which are to be furnished to the nerson concerned unless the authority for reasons specified in sub-section (3) refuses to furnish copy. Section 6 provides that the refusal to give an endorsement shall be on one or other grounds mentioned in sub-sections (2) to (6}. Section 10 enables the Pass-port authority to Tary or cancel the endorsement on passport. Section 10(3)

provides the reasons for which passport may be impounded. Again reasons are required to be furnished to the person concerned on demand, except if the Passport Authority is of the opinion that it will not be in the interest of sovereignty and integrity of India, security of India, friendly relations of India with any foreign country or in the interest of the general public to furnish such copy. Section 11 provides for an appeal except when the order is passed by the Central Government. [764 C-E. 765 A-G]

The Legislature by making an express provision may deny person the right to be heard. Rules of natural justice cannot be equated with the funda-mental rights. Their aim is to secure justice and to prevent miscarriage of justice. They do not supplant the law but supplement it. If statutory provision can be read consistently with the principles of natural justice the court should do so but if statutory provision that specifically or by necessary implication excludes the application of any mles of natural justice this Court cannot ignore the mandate of the legislature or the statutory authority and read into the co~cerned provision the principles of natural justice. To limited extent it may be necessary to revoke or to impound passport without notice )f there is real Apprehension that the holder of the passport may leave the country if he becomes aware of any intention on the part of the Passport Authority or the Government to revoke or impound the passport but that itself would not justify denial of an -opportunity to the holder of the passport to state his case before the final order is passed. The legislature has not by ex-press provision excluded the right to be heard. [768 F-H, 769 A-B]

Purtabpur v. Cane Commissioner, Bihar (1969] 2 SCR 807 and Schmidt v. Secretary of State, Home Affairs [1969] 2 Ch. 149 referred to.

passport may be impounded without notice but before any final order is passed. the rule of audi alteram partem, would apply and the holder of the passport will have to be heard. The petitioner has right to be heard before final order under section 10 ( 3 )(e) is passed. Earlier, the courts had taken view that the principle of natural justice is inapplicable to adminis-F trative orders. However, subsequently, there is change in the judicial opinion. The frontier between judicial and quasi-judicial determination on the one hand and an executive or administrative determination on the other has become blurred. The rizid view that principles of natural justice apply only to judicial and quasi-judicial acts and not to administrative acts no longer holds the field. The court is not intended to sit in appeal over the decision of the Government. The decision of the Government under section 1 0(3) (c) is subject to limited judicial ~crutiny. [770 A-F, H, 771 A, 772 R-D]

H. K. (A 11 infant) [1967] 2 Q,B. 617 at p. 630 Barium Chemicals Ltd. v Company Law Board [1966] Supp. SCR 311, Rohtas Industries Ltd. v. S. D. Agarwal, [1969] 3 SCR 103 and U.P. Electric Co. v. State of U.P. [1969) 3 SCR 865 fol1owed.

The provision empowering the Government not to disclose the reasons for impounding etc. is valid. The Government is bound to give opportunity to the holder of the passport before finally revoking it. or impounding it. The

cases in which the authority declines to furnish reasons for making an order would be extremely rare. In case where the Government itself passes an order it should be presumed that it would have made the order after careful scrutiny. Jf an order is passed by the Passport Authority an appeal is pro-vided. In the present case, there is no reason in declining to furnish to the petitioner :statement of reasons for impounding the passport.

[772 H, 773 A-D, H, 774 A]

In view of the statement of the Attorney General that the petitioner might make representation in respect of the impounding of passport and that the representations would be dealt with expeditiously and that even if the imound~ ing of the passport is confirmed it will not exceed period of 6 months, it is not necessary to go into the merits of the case any further. [776 B-C]

ORIGINAL JuRISDICTION : Writ Petition No. 231 of 1977.

(Under Article 32 of the Constitution of India).

Madan Bhatia and D. Goburdhan for the Petitioner.

S. V. G'upte, Attorney General, Soli J. Sorabjee, Additional Sol. Genl. of India, R. N. Sachthey and K. N. Bhatt for the Respondents.

Ram Panjwani, Vijay Panjwani, Raj Panjwani, S. K. Bagga & Mrs. S. Bagga for the Intervener.

The folio wing Judgments were delivered :

BEG, C.J. The case before us involves questions relating to baste human rights. On such questions I believe that multiplicity of views giving the approach of each member of this Court is not disadvant~ age if i( clarifies our not infrequently differing approaches. It should enable all interested to appreciate better the significance of our Con-stitution.

As I am in general agreement with my learned brethren Bhagwati and Krishna Iyer. I wi11 endeavour to confine my observations to an indication of my own approach on some matters for consideration now before us. This seems to me to be particularly necessary as my learn-ed brother Kailasam, who has also given l,JS the benefit of his separate opinion) has somewhat different approach. I have had the advant-age of going through the opinions of each of my three learned brethren.

Jt seems to me that there can be little doubt that the right to travel and to go outside the country, which orders regulating issue, suspen-sion or impounding, and cancellation of passports directly affect, must be included in rights to "personal liberty" on the strength of decisions of this Court giving very wide ambit to the right to personal liberty (see: Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer} Government of India, New Delhi & Ors.,C) Kharak Singh v. State of U.P. & Ors.([2]).

(1) [1967] 3 S.C.R. 525.

(2) [1964] l·S.CR. 332.

Arttcle 21 of the Constitution reads as follows :

"Protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law".

It is evident that Article 21, though so framed as to appear as shield operating negatively against executive encroachment over something covered by that shield. is the legal recognition of both the pro~ection or the shield as well as of what it protects which lies beneath that shield. It has been so interpreted as long ago as in A. K. Gopalan v. State of lvfadras,C) where, as pointed out by me in Addi~ tional District Magistrate, Jabalpur v. S. S. Shukla and othersC) with the help of quotations from judgments of Patanjli Sastri, J. (from p. 195 to 196), Mahajan J. (p. 229~230), Das J. (295 and 306-307). I may add to the passages I cited there some from the judgment of Kania Chief Justice who also, while distinguishing the objects and natures of articles 21 and 19, gave wide enough scope to Art. 21.

Kania CJ said (at p. 106-107) :

"Deprivation (total loss) of personal liberty, which inter alia includes the right to eat or sleep when one likes or to work or not to work as and when one pleases and several such rights sought to be protected by the expression 'per~ sonalliberty' in article 21, is quite different from restriction (which is only partial control) of the right to move freely (which is relatively minor right of citizen) as safeguarded by article 19 ( 1) (d) . Deprivation of personal liberty has not the same meaning as restriction of free. movement in the ter-ritory of India. This is made clear when the provisions of the Criminal Procedure Code in Chapter VIII relating to I' security of peace or maintenance of public order are read. Therefore article 19(5) cannot apply to substantive law de-priving citizen of personal liberty. I am unable to accept the contention that the word 'deprivation' includes within its scope 'restriction' when interpreting article 21. Article 22 envisages the law of preventive detention. So does artic1c 246 read with Schedule Seven, List I, Entry 9, and List III, Entry 3. Therefore, when the subject of preventive deten~ tion is specifically dealt with in the Chapter on Fundamental Rights I do not think it is proper to consider legislation permitting preventive detention as in conflict with the rights mentioned in article 19 ( 1) . Article 19 ( 1) does not pur-port to cover all aspects of liberty or of personal liberty. In

(l) [1950] SCR 88.

~_.., c-. ''~ •

that article only certain phases of liberty are dealt wit~. 'Personal liberty' would primarily mean liberty of the physi-cal body. The rights given _u~der article 19~1) do ~ot directly come under that descnptlon. They are nghts whtch accompany the freedom or liberty of the person. By their very nature they are freedoms of person assumed to be in full possession of his personal liberty. If article 19 is con-sidered to be the only article safeguarding personal liberty several well-recognised rights, as for instance, the right to eat or drink, the right to work, play, swim and numerous other rights and activities and even the right to life will not be deemed protected under the Constitution. I do not think that is the intention. It seems to me improper to read article 19 as dealing with the same subject as article 21: Article 19 gives the rights specified therein only to the citizens of India while article 21 is applicable to all persons. The word citizen js expressly defined in the Constitution to indicate only certain section of the inhabitants of India. Moreover, the protection given, by article 21 is very general. It is of 'law'-whatever that expression is interpreted to mean. The legis-lative restrictions on the law-making powers of the legislature are not here prescribed in detail as in the case of the rights specified in article 19. In my opinion therefore article 19 should be read as separate complete article".

In that case, Mukherjea J., after conceding that the rights given by article 19 (1 ) ( u) would be incidentally contravened by an order of preventive detention (see p. 261) and expressing the opinion that wider significance was given by Blackstone to the term "personal liberty", which may include the right to locomotion, as Mr. Nambiar, learned Counsel for A. K. Gopalan, wanted the Court to infer, gave narrower connotation to ''personal liberty", as "freedom from phy-sical constraint or coercion" only. Mukherjea, J., cited Dicey for his more restrictive view that "personal Iil~erty" would mean : "a personal right . not to be . subjected to imprisonment, arrest or other physical l< coerciOn in any manner that does not admit of legal justification". He then said :

"It is, in my opinion, this negative right of not being sub-jected to any form of physical restraint or coercion that con-stitutes the essence of personal liberty and not mere freedom to move to any part of the Indian territory".

After referring to the views of the Drafting Cpmmittee of our Con-stitution Mukherjea, J., said : (p. 263) :

"It is enough to say at this stage that if the report of the Dra~ting Com~ittee is an appropriate material upon which the mterpretat1on of the words of the Constitution could be based, it certainly goes against the contention of the applicant and it shows that the words used in article 19 (I ) (d) of the · Constitution do not mean the same thing as the expression 3--119SCI/78 .

personal liberty' in article 21 does. It is well known that the word 'liberty' standing by itself has been given very wide meaning by the Supreme Court of the United States of America; It ~ncludes not only personal freedom from physi-cal restraint but the right to the free use of one's own pro-• perty and to enter into free contractual relations. In the Indian Constitution, on the other hand, the expression 'per-B sonal liberty' has been deliberately used to restrict it to free-dom from physical restraint of person by incarceration or otherwise". Fazal Ali, J., however, said (at p. 148) : --' "To my mind, the scheme of the Chapter dealing with

"To my mind, the scheme of the Chapter dealing with the fundamental rights does not contemplate what is attri-buted to it, namely, that each article is code by itself and is independent of the others. In my opinion, it cannot be said that articles 19, 20, 21 and 22 do not to some extent overlap each other. The case of person who is convicted of an offence will come under article 20 and 21 and also under article 22 so far as his arrest and detention in custody before trial are concerned. Preventive detention, which is dealt with in article 22, also amounts to deprivation of per-sonal liberty which is referred to in article 21, and is[1 ]a viola-tion of the right of freedom of movement dealt with in arti-cle 19 ( 1) (d). That there are other instances of overlapping of articles in the Constitution may be illustrated by reference to article 19 ( 1) {f) and article 31 both of which deal with the right to property and to some extent overlap each otherH.

As has been pointed out by my learp.ed brother Bhagwati, by de· tailed references to cases, such as Haradhan Saha v. The State of West Bengal & Ors(l) and Shambhu Nath Sarkar v. State of West Bengal (2), the view that Articles 19 and 21 constitute water tight compartments, so that' all aspects of personal liberty could be excluded from Article 19 of the Constitution, had to be abandoned as result of what was held, by larger bench of this Court in R. C. Cooper v. Union of lndia([3]), to be the sounder view. Therefore, we could neither revive that overruled doctrine nor could we now hold that im-pounding or cance11ation of passport does not impinge upon and affect fundamental rights guaranteed by the Constitution. I may point out that the doctrine that Articles 19 and 21 protect or regulate flows in different channels, whicJi certainly appears to have found fav-our in this Court in A. K. Gopalan's case (supra), was laid down in context which was very different from that in which that ap· proach was displaced by the sounder view that the Constitution must be read as an integral whole, with possible over-lappings of the subject matter of what is sought to be protected by its various provisions par-ticularly by articles relating to fundamental rights. (1) [1975J 1 SCR 778. (2) [1973] 1 SCR 856. (3) [ 1973] 3 SCR 530.

... __ 1

In A. K. Gopalan's case (supra), what was at issue was whether ihe tests of valid procedure for deprivation of personal liberty by pre--vcnth detention must be found exclusively in Article 22 of the Con-stitution or could we gather from outside it also dements of any "due process of law" and use them to test the validity of law dealing with ~preventive detention. Our Constitution~makers, while accepting de-parture from ordinary norms, by permitting making of laws for pre-8 ventive detention without trial for special reasons in exceptional situa-·tions also provided quite elaborately, in Article 22 of the Constitutio~ itselfJ what requirements such Jaw, relating to preventive detention, mulit sati!ify. The procedural requirements of such laws separately fonned parts of the guaranteed fundamental rights. Therefore, when .this Court was called upon to judge the validity of provisions relating to preventive detention it laid down, in Gopalan's case (supra), that tlle tests of "due process", with regard to such laws, are to be found in Article 22 of the Constitution exclusively because this article con-.stitutes self~contained code for laws of this description. That was, in my view, the real ratio decidendi of Gopalan's case (supra). It appears to me, with great respect, that other observJ.tions relating to the separability of the subject matters of Articles 21 and 19 were mere obiter dicta. They may have appeared to the majority of learned Judges in Gopalan's case to be extensions of the logic they adopted with regard to the relationship between Article 21 and 22 of the Con~ stitution. But, the real issue there was whether, in the face of Article 22 of the Constitution, which provides all the tests of procedural vali-dity of law regulating preventive detention, other tests could be im-ported from Article 19 of the Constitution or elsewhere into ''proce~ dure established by law". The majority view was that this could not be done. I think, if I may venture to conjecture what opinions lear~ ned Judges of this Court would have expressed on that occasion had other t}pes of law or other aspects of personal liberty, such as those which confronted this Court in either Satwant Singh's case (supra) .or Kharak Singh's case (supra) were before them, the same approach or the same language would not have been adopted by them. It seems to me that this aspect of Gopalan's case (supra) is important to re-F member if we are to correctly understand what was laid down in that case.

I have already referred to the passagel) I cited in A. D. M. hbai-pur:s ~ase (~upra) to s~ow that, even in ~opalan's case (supra), the maJOnty of JUdges of th1s Court took the vtew that (the( ambit of per· sonal liberty protected by Article 21 is wide and comprehensive. It ~mbraces both substantive rights to personal Jiberty and the procedure provided for their deprivation. One can, however, say that no ques-tion .of ''due process of .law" can. really. arise, apart from procedural reqmrements of preventive detentiOn latd down by Article 22 in a: case such as th~ one this ~ourt c?nsidered in G~palan's case (s~pra). The dear meanmg of Arttcle 22 Is that the reqUirements of "due pro-~ess of. law", in cases of preventive detention, are satisfied by what t-l provtded ·by Article 22 of the Constitution itself. This article in-dkates the pattern of "the procedure established by Jaw" for cases of preventive detention.

Questions, however, relating to either deprivation or restrictions of personal liberty, concerning laws falling outside Article 22 remain\!d really unanswered, strictly speaking, by Gopalan's case. If one may so put it, the field of. ''due process" for cases of preventive detention is fully covered by Article 22, but other parts of that field, not covered by Article 22, are "unoccupied" by its specific provisions. I have no doubt that, in what may be called "unoccupied" portions of the vast sphere of personal liberty, the substantive as well as procedural laws made to cover them must satisfy the requirements of both Articles 14 and 19 of the Constitution.

Articles dealing with different fundamental rights contained in Part Ill of the Constitution do not represent entirely separate streams of rights which do not mingle at many points. Th!;\y are all parts of an integrated scheme in the Constitution. Their waters must mix to constitute that· grand flow of unimpeded and impartial Justice (social, economic and political), Freedom (not only of thought, ex-pression, belief, faith and worship, but also of association, movement, vocation or occupation as well as of acquisition and possession of reasonable property), of Equality (of status and of opportunity, which imply absence qf unreasonable or unfair discrimination bet-D ween individuals, groups and classes), and of Fraternity (assuring dignity of the individual and the unity of the nation), which our Con-stitution visualises .. Isolation o.f various aspects of human freedom, for purposes of their protection, is neither realistic nor beneficial but would defeat the very objects of such protection.

We have to remember that the fundamental rights protected by I Part III of the Constitution, out. of which Articles 14, 19 and 21 are the most frequently invoked, form tests of the validity of executive as well as legislative actions when these actions are subjected to· judi-cial scrutiny. We cannot disable Article 14 or 19 from so function-ing and hold those executive and legislative actions to which they could apply as unquestionable even when there is no emergency to shield actions of doubtful legality. These tests are, in my opinion, available to us now to determine the constitutional validitv of Sec-tion 10(3) (c) of the Act as well as of the impugned order of 7th July, 1977, passed against the petitioner impounding her passport "in the interest of general public" and stating that the Government had decided not to furnish her with copy of reasons and claiming im-munity from such disclosure under section 10(5) of the Act. I have already mentioned some of the authorities relied upon by me in A. D. M. Jabalpur v. S. Shukla (Supra), while discussing the scope of Article 21 of the Constitution, to hold that its ambit is very wide. I will now indicate why, in my view, the particular rights claimed by the petitioner could fan within Articles 19 and 21 and the nature and origin of such rights.

Mukerji J., in Gopalan's case (supra) referred to the celebrated commentaries of Blackstone on the Laws of England. It is instructive to reproduce passages from there even though juristic reasoning may have travelled today beyond the stage reached by it when Blackstone

wrote. Our basic concepts on such matters, stated there, have pro-vided the foundajons on which subsequent superstructures were rais-ed. Some of these foundat:ons, fortunately, remain intact. Black-stone said :

"This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe in all coun-· tr!es, and at all times : no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force and alJ their authority, mediately or immedia-tely, from this original."

The identification of natural law with Divine will or dictates of God may have, qui·,e understandably, vanished at time when men see God, if they see one anywhere at all, in the highest qualities in-herent in the nature of Man himself. But the idea of natural law as morally inescapable postulate of just order, recognizing the ina-lienable and inherent rights of all men (which term includes women) as equals before the law persists. It is, I think, embedded in our own Constitution. I do not think that we can reject Blackstone's theory of natural rights as totally irrelevant for us today.

Blackstone propounded his philosophy of natural or absolute fights in the following terms :

''The absJlute rights of man, considered as .1 free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denom:nated the natural liberty of man-kind. This natural liberty consists properly in power of acting as one thinks fit, without any restraint or control, unless by the law of nature; being right inherent in us by birth, and one of the gifts o£ God to man at his creation, when he endued him with the faculty of free will.· But every man, when he enters into society, gives up part of his natural liberty, as the price of so valuable purchase; and, in consideration of receiv_ing. the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. And this species of legal obedience and conformity is infinitely more desirable than that will and savage liberty which is sacri-ficed to obtain it. - For no man that considers moment would wish to retain the absolute and uncontro11ed power of doing whatever he pleases; the consequence of which is, that every other man would also have the same power, and then there would be no security to individuals in any of the enjoyments of life. Political, therefore, or civil liberty, which is that of member of society, is no other than natura~ liberty so far restrained by human laws (and no farther) as is neces-sary and exped!ent for the general advantage of the public.

The absolute rights of every Englishman, (which, taken in political and extensive sense, are usually called their liberties), as they are founded on nature and reason, so they are coeval with our form of Government; though sub-ject at times to fluctuate and change; their establishment (excellent as it is) being still human.

* * * And these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property, because, a3 there is no other known method of compulsion, or ab-ridging man's natural free will, but by an infringement or diminution of one or other of these important rights, the ; preservation of these, involate, may justly be said to in-·c clude the preservation of our civil immunities in their lar-gest and most extensive sense.

I. The right of personal security consists in person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health and his reputation.

II. Next to personal security, the law of England re-gards, asserts, and preserves the personal liberty of indivi~ duals. This personal liberty consists in the power of loco-motion, of changing situation, or moving one's person to whatsoever place qne's own inclination may direct, without imprisonment or r~straint, unless by due course of law. Concerning which we .may make the same observations as upon the preceding article, that it is right strictly natural; that the laws of England have never abridged it without sufficient cause; and that, in Jhis kingdom, it cannot ever be abridged at the mere discretion of the magistrate, with-out the explicit permission of the laws.

III. The third absolute right, inherent in every English-I man, is that of property; which cons:sts in the free use, en-joyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land, The original of private property is probably founded in nature, as will be more fully explained in the second book of tbe ensuing commentaries; but certainly the modifica-tions under which we at present find it, the method of con-serving it in the present owner, and of translating it from man to man, are entirely derived from society; and are some of those civil advantages, in exchange for which every indi-. vidual has resigned part of his natural liberty."

I have reproduced from Blackstone whose ideas may appear somewhat quaint in an age of irreverence because, although1 I know that modern jurisprudence conceives ·of all rights as relative or as products of particular socio-economic orders, yet, the idea that man, as man, morally has certain inherent natural primordial inalienable human rights goes back to the very origins of human jurisprudence.

It is found in Greek philosophy. If we have advanced today to· wards what we believe to ·be higher civilisation and more enligh· tened era, we cannot fall behind what,-at any rate, was the meaning given to "personal fberty" long ago by Blackstone. "As indicated above, it included "the power of locomotion, of changing situation, or moving one's person to whatsoever place one's own inclination may dlrect, without imprisonment or restraint, unless by due course of law". I think that both the rights of "personal security" and of "personal liberty", recognised by what Blackstone termed ''natural law", are embodied in Article 21 of the Constitution. For this pro-position, I relied, in A. D. M. Jabalpur v. S. S. Shukla (supra), and I do so again here, on passage from Subba Rao C.J., speaking for five Judges of this Court in /. C. Golaknath v. State of Punjab (I) when he said (at p. 789) :

"Now, what are the fundamental rights? They are ern":' bodied in Part III of the Constitution and they may be classified thus: (i) right to equality, (ii) right to freedom, (iii) right against exploitation, (iy) right to freedom of re-ligion, (v) cultural and educational rights, (vi) right to pro-perty, and (vii) right to constitutional remedies. They are the rights of the people preserved by our Constitution, 'Fundamental rightst are the modern name for what have been traditionally known as 'natural rights'. As one author puts it : 'they are moral rights which every human being everywhere at all times ought to have simply because of the fact that in contradistinction with other beings, he is rational and moral'. They are the primordial rights neces-sary for the development of human personality. They are the rights which enable man to chalk out his own life in the manner he likes best. Our Constitution, in addition to +he well-known fundamental rights, also inaluded the rights of the minorities, tintouchables and other backward communities, in such right".

Hidayatullah, J., in the same case said (at p. 877) :

"What I have said does not mean that Fundamental Rights are not subject to change or modification. In the most inalienable of such rights distinction must be made between possession of right and its exercise. The first is fixed and the latter controlled by justice and necessity. Take for example Article 21 : 'No person shall be deprived of his life or personal liberty except according to procedur~ established by law". Of all the rights, the right to one's life is the most valu-able. This article of the Constitution, therefore, makes the right fundamental. But the inalienable right is curtailed by murderer's conduct as viewed under Iaw. The depriva· tion, when it takes place, is not of the right which was im-mutable but of the continued exercised of the right." ... < .. .e': .. (1) [1967] 2 SCR 762.

It is, therefore, clear that six out of eleven Judges in Golak Nath's case declared that fundamental rights are natural rights em-bodied in the Constitution itself. This view was affirmed by the majority Judges of this Court in Shukla's case. It was explained by me there at some length. Khanna, J ., took somewhat different view. Detailed reasons were given by me in Shukla's case (supra) for taking what I found to be and still find as the only view I could ·B possibly take if I were not to disregard~ as I could not properly do, what had been held by larger benches and what I myself consider to be the correct view : that natural law rights were meant to be converted into our Constitutionally recognised fundamental rights, at~ least so far as they are expressly mentioned, so that they arc to be found within it and not outside it. To take contrary vlew would involve conflict between natural law and our Constitutional law. I am emphatically of opinion that 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 recognition and declaration of rights which inhere in every individual. Their existence does not depend on the location of the individual. Indeed, it could be argued that what so inheres is ina~ lienable and cannot be taken away at all. This mav seem theore-tically correct and logical. But, in fact, we are ofte~ met with de~ nials of what is, in theory, inalienable or "irrefragible". Hence, we speak of "deprivations" or "restrictions" which are really impedi-ments to the exercise of the "inalienable" rights. Such deprivations or restrictions or regulations of rights may take place, within pres-E cribed limits, by means of either statutory Jaw or purported actions under that law. The degree to whkh the theoretically recognised or abstract right is concretised is thus determined by the balancing of principles on which an inherent right is based against those on which restrictive law or orders under it could be imposed upon its exer-cise. We have to decide in each specific case, as it arises before us, what the result of such balancing is. In judging the validity of either legislative or executive state ac-tion for conflict with any of the fundamental rights of individuals, whether they be of citizens or non-citizens, the question as to where the rights are to be exercised is not always material or even relevant. If the persons concerned, on whom the law or purported action under it is to operate, are outside the territorial jurisdiction of our ~ountry, the action taken may be ineffective. But, the validity of the law must be determined on considerations other than this. The tests of validity of restrictions imposed upon the rights covered by article 19 (1) will be found in clauses (2) to ( 6) of Article 19. There is nothing there to suggest that restrictions on rights the exercise of which may involve going out of the country or some activities abroad are excluded from the purview of tests contemplated by articles 19(2) to (6). I agree with my learned brother Bhagwati, for reasons de-tailed by him, that the total effect and not the mere form of restric~ tion will determine which fundamental right is really involved in

particular case and whether restric_tion upon its exercise is reason-bly permissible on the facts and circumstances of that case.

If rights under article 19 are rights which inhere in Indian cit~­zcns, individuals concerned carry these inherent fundamental consti-tutional rights with them wherever they go, in s~ far a.s o'!r law applies to them, because they arc parts of the Indmn nation JUSt as Indian ships, flying the Indian flag, are deemed, in International law, to be floating parts of Indian territory. This analogy, however, ~ould not be pushed too far because Indian citizens on foreign terntory, are only entitled, by virtue of their Indian nationality and passports, to the protection of the Indian Republic and the assistance of its diplomatic missions abroad. They cannot claim to be governed abroad by their own ConstiTutional or personal laws which do not operate outside India. But, that is not the position in the case before us. So far as the impugned action in the case before us is concerned, it took place in India and against an ln{.lian citizen residing in India. In India, at any rate, we are all certainly governed by our Con-stitution. The fact that the affected petitioner may not, as result of particular order, be able t9 do something intended to be done by her abroad cannot possibly make the Governmental action in lndja either ineffective or immune from judicial scrutiny or from an attack made on, the ground of violation of fundamental right which inhere.,s in an Indian citizen. The consequences or effects upon the petitioner's possible actions or future activities in other countries may be factor which may be weighed, where relevant, with other rele-vant facts in particular case in judging the merits of the restriction imposed. It will be relevant in so far as it can be shown to have some connection with public or national interests when determining the ffi(,rits of an order passed. It may show how she has bl!come "person aggrieved" with cause of action, by particular order in-volving her personal freedom. But, such considerations cannot cur-tail or impair the scope or operation of fundamental rights of citizens as protections against unjustifia:ble action.s of their own Government. Nor can they, by their own force, protect legally unjustifiable actions of the Government of our country against attacks in our own Courts. In order to apply the tests contained in Articles 14 and 19 of the Constitution, we have to consider the objects for which the exercise of iil.lterent rights recognised by Article 21 of the Constitution are restricted as well as the procedure by which these restrictions are sought to be imposed. Both substantive and procedural laws and actions taken under them will have to pass tests imposed by articles 14 and 19 whenever facts justifying the invocation of either of these articles may be disclosed. For example, an international 'iinger or dancer. may well be able to complain of an unjustifiable restriction on professional activity by denial of passport. In such case viol~tions of both articles 21 and 19 ( 1) (g) may both be put forward makmg it necessary for the authorities concerned to justify the restric-tion imposed, by showing satisfaction of tests of validity contemplated by each of these two articles.

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\ 654 --

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·' ., '. The tests of reason and justice cannot be abstract. They cannot -be divorced from the needs of the nation. The tests have to be prag-mat£. , Otherwise, th~y would ce-ase to be reasonable. Thus, I think that discretion left to· the authority to impound passport in public interest cannot invalidate the law itself. We cannot, out of fear that such power will be misused, refuse to permit Parliament !o entrust --even such power to executive authorities as may be absolutely neccs· B. sary to carry out the purposes of validly exercisable power. I think it has to be necessarily left to executive discretion to decid~ whc· · ther, on the facts and circumstances of particular case, public inte--rest will or will _ not be served by particular order to be passed under valid law subject, as it always is, .. to judicial supervision. In matters such as grant; suspension, impounding or cancellation of pJ.ss ... ports, the possible dealings of an individual with nationals and autho-C lities of other . States have to be considered .. · The contemplated or -. possible activities abroad of the individual may have to be taken into account. '-_There may be questions of national safety and welfare which transcend ·. the importance of the individual's inherent right to go where he or she pleases to go. Therefore, although we may not deny the grant of wide_ discretionary power _to the executive authorities as un-reasonable. in such cases, yet, I think we must look for and find pro .. cedural safeguards to ensure that the power will not be used for pur-poses extraneous to the grant cf the power· before we uphold the validity of the power conferred. \Ve have to insist on procedural proprieties the observance _of which could show that such_ power is being used only to serve what can reasonably· and justly be regarded as public or national interest capable of overriding the individual's inherent right of movement or travel to wherever he or she pleases in the modern world of closer integration in every sphere between the peoples of the world and the sh~nk time-space relationship~. ..:: -·

The view I have taken above proceeds on the assumption that there · are inherent or natural human rights of the individual recognised by and embodied in our Constitution. Their actual exercise, however, is regulated and conditioned largely by statutory law. Persons upon whom _F these basic rights are cvnferred can exercise them so long as there is . no justifiable reason under the law enabling deprivations or !estrictions of such rights._, But. once the valid reason is found to be there and the ··deprivation or restriction takes place for that valid reason in proce-durally Vfllid manner, the action which results in deprivation or restric-tilm becomes unassailable. If either the reason sanctioned by the law . i~ absent, or the procedure followed in arriving at the conclusion· that --- :_- · such reason exists is unreasonable, the order having the effect of de-· privation or restriction must. be quashed.

·A bare look at the provisions of S. 10, sub.s.(3) of the Act will s})ow that each of the orders which could be passed under section 10, sub.s. (3)(a) to (h) requires usatisfactiod" by the Passport Authority on ·-n certain objective conditions which must exist in case !Jefore it p~sses an order to impound passport or travel document. Impoun.dmg or revocation are placed side by side on the same footing in the provision. Section 11 of the Act provides an appeal to· the Central· Governt?ent

from every order passed under section 10, sub.s. (3) of the Act. Rene~, section 10, subs. s. (5) makes it obligatory upon the Passport Authority to "record in writing brief statement of the reasons for making such order and furnish to the holder of the passport or travel document on demand copy of the same unless in any case, the passport aut]¥:lrity is of the opinion that ·it will not be in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public to fur~ ni~h such copy".

It seems to me, from the prpvisions of section 5, 7 and 8 of the: Act, read with other provisions, that there is statutory right also ac-quired, on fulfilment of prescribed conditions by the holder of pass-port, that it should continue to be effective for the specified period so· long as no ground has come into existence for either its revbcation or for impounding it which amounts to suspension of it for the time being. It is true that in proceeding t!nder article 32 of the Constitution, we are only concerned with the enforcement of fundamental Constitutional rights and not with any statutory rights apart from fundamental rights. Article 21, however, makes it clear that violaTion of law, whether sta-tutory or if any other kind, is itself an infringement of the guaranteed fundamental right. The basic right is not to be denied the protection of "law" irrespective of variety of that law. It need only be right "established by law".

There can be no doubt what~ver that the orders under section 10(3) must be based upon some material even if that material consists, in some cases, of reasonable suspicion arising from certain credible as-sertions made by reliable individuals. It may be that, in an emergent situation, the impounding of passport may become necessary without even giving an opportunity to be heard. against such 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 prior op~ portunity to its holder to show cause against the proposed action. The impounding as well revocation of passport, seem to constitute action in the nature of punishm~p.t necessitated on one of tht:J grounds speci-fied in the Act. . Hence, ordinaJily, an opportunity to be heard in de-fen::e after show cause notice should be given to the holder of passport even before impounding it.

It is well established that even where there is no specific provision in statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the rights o~ that individual, the duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. This principle was laid down by this Court in the· State of Orissa v. Dr. (Miss) Binapani Dei & Or~. C) in the following words :

"The rule that party to whose prejudice an order is in-tended to be passed is entitled to hearing applies alike to

(l) AlR 1967 S.C. 1269 at 1271.

judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of .our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, there-fore arise from tb~ very nature of the function intended to be performed, it need not be shown to be super1added. If there is ppwer to decide and determine to the prejudice of person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the pre-judice of Person is made, the order is nullity. That is basic concept of the rule of law and importance thereof tran-scends the significance of decision in any particular case.'' In the rule rule \Vas J. in

In England, the rule rule \Vas thus expressed by Byles J. in Cooper v. Wandru·orth Board of Works(!) :

"The laws of God and man both give the party an oppor-tunity to make his defence, if he has any. I remember to have heard it observed by very learned man, upon such an occa-sion, that even God himself did not pass sentence upon Adam I) before he was called upon to make his defence. "Adam (say~ God), "where art thou? Hast thpu not eaten of the tree-whereof I commanded thee that thou shouldest not eat ?" And the same question was put to Eve also."

I find no difficulty whatsoever in holding, on the strength of these weU recognised principles, that an order impounding 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 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 had no opportunity of showing that the ground for impounding it finaJly given in this Court either does not exist or has no bearing on public mterest or that public interest cannot be better served in some other manner. Therefore, speaking ~r myself, I would quash the order' and direct the opposite parties to give an opportunity to the petitioner to show cause against any proposed action on such grounds as may be avai1ab1e.

I am not satisfied that there were present any such pressing grounds with regard to the petitioner be(o're us that the immediate action of im-pounding her passport 'vas called for. Furthermore, the rather cava-lier fashion in which disclosure of any reason for impounding her pass-port was denied to her, despite the fact that the only reason said to exist the possibility of hef being called to give evidence before com-mission {)t inquiry and stated in the counter-affidavit filed in this Court, is not such as to be reasonably deemed to necessitate its concealment in

(1) 1863 (14) C. B. (N.S.) 180.

,Jo..... ~' 'r

public interest, may indicate the existence of some undue prejudice against the petitioner. She has to be protected against even the appea-rance of such prejudice or bias.

It appears to me that even executive authorities when taking ad-ministrative action which involves any deprivations of or restrictions on inherent fundamental rights of citizens must take care to see that justice is not only done but manifestly appears to be done. They have duty to proceed in way which is free from even the appearance of arbitrariness or unreasonableness or unfairness. They have to act in manner which is patently impartial and meets the requirements of natu-ral justice.

The attitude adopted by the Attorney General however, shows that Passport authorities realize fully that the petitioner's case has not been justly or reasonably dealt with. As the· undertaking given by the Attorney General amounts to an offer to deal with it justly and fairly after informing the petitioner of any ground that may exist for impound-ing her pa·ssport, it seems that no further action by this Court may be necessary. In view, however, of what is practically an admission that the order actually passed on 7th Jply, 1977, is neither fair nor proce-durally proper, I would, speaking for myself, quash this order and direct the return of the impounded passport to the petitioner~ I also think that the petitioner is entitled to her costs.

CHANDRACHUD, J.-The petitioner's passport dated June 1, 1976 having been impoundr~d "in public interest" by an order dated July 2, 1977 and the Government of India having declined "in the interest of general public" to furnish to her the reasorus for its decision, she has filed this writ p=tition under article 32 of the Constitution to challenge that order. The challenge is founded on the following grounds :

(1) To the extent to which section 10(3) (c) of the Passport Act, 1967 authorises the passport authority to impound passport "in the interests of the general public", it is r violative of article 14 of the Constitution since it confers vague and undefined power on the passport authority;

{2) Section 10(3)(c) is void as conferring an arbitrary power since it does not provide for hearip.g to the holder of the passport before the passport is impounded;

(3) Section 1 0 ( 3) (c) is violative of article 21 of the Consti-tution since it does not prescribe 'procedure' within the meaning of that article and since the procedure which it prescribes is arbitrary and unreasonable; and

(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 eve·n though such restrictions cannot be imposed under articles 19(2) and 19(6).

At first, the passport authority exercising its power under section 1 0 ( 5) of the Act refus·~d to furnish to the petitioner the reason for which it was considered necessary in the interests of general public to impou'nd her passport. But those reasons were disclosed later in the counter-affidavit filed on behalf of the Government of India in answer to the writ petition. The disclosure made under the stress of the writ petition that the petitio'ner's passport was impounded because, her presence .8 was likely to be required in connectiop. with the proceedings before Commission of Inquiry, could easily have been made when the pe.ti-tioner called upon the Government to let her know the reasons why her passport was impounded. The power to refuse to disclose the reasons for impou'nding passport is of an exceptional nature and it ought to be ~~xercised fairly, sparingly and only when fully justified by the exigencies of an uncommon situation. The reasons, if disclosed being open to judicial scrutiny for ascertaining their nexus with the order impou'nding the passport, the refusal to disclose the reasons would equally be open to the scrutiny of the court; or else, the whole-some power of dispassionate judicial examination of executive orders could with impunity be set at naught by an obdurate determination to suppress the rea-sons. Law cannot permit the exercise of power to keep the reasons undisclosed if the sole reason for doing so is to keep tb~ reasons away from judicial scrutiny.In Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi & Ors.C) this Court ruled by majority that the expression "personal liberty" which occurs in article 21 of the Constitution includes the right to travel abroad and that no perso'n can be deprived of that right except according to proce-E dure established by law. The Passport Act which was enacted by Parliament in 1967 in order to comp1y with that decision prescribes the procedure whereby an application for passport may be granted fully or partially, with or witj10ut any endorsement, and passport once granted may later be revoked or impounded. But th~ mere prescription of some ki'nd of procedure cannot ever meet the mandate of article 21. The procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary. The question whether the . procedure prescribed by law which curtails or takes away the personal liberty guaranb:!ed by article 21 is reasonable or not has to be considered not in the abstract or on hypothetical consi-derations like the provision for full-dressed hearing as in Court-room trial, but in the context, primarily, of the purpose which the Act is intended to achieve and of urgent situationiS which those who are charged with the duty of administering the Act may be called upon to deal with. Sr~condly, even the fullest compliance with the require-ments of aritcle 21 is not the journey's end because, law which pres-cribes fair and reasonable procedure for curtailing or taking away the personal liberty guarante-~d by article 21 has still to meet 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(2) that the freedoms guaranteed by the Constitutldn are

( 1) [1967] 3 SCR 525

(2) [1950} SCR 88.

\ J / \

mutually exclusive were still good law, the right to travel abroad which is part of the right of personal liberty under artic:e 21 could only be found and located in that article and in no other. But in the Bank Nationalisation Case (7t C. Cooper v. Union of India) C) the majority held that the assumption in A. K- Gopalan(2) that certain articles of the Constitution exclusively deal with specific mattens can-not be accepted as correct. Though the Bank Nationalisation casc(l) was concerned with the inter-relationship of article 31 and 19 and not of articles 21 and 19, the basic approach adopted therein as regards 'the construction of fundamental rights guaranteed in th,~ different pro-visions of the Constitution categorically discarded the major premise of the majority judgment in A. K. Gopalan (supra) as incorrect. That is how seven-Judge Bench in Shambhu Nath Sarkar v. State of West Bengal & Ors. (8) assessed the true impact of the ratio of the Ba1lk Nationalisation Case (supra) on the dec;ision in A. K. Gopalan (supra) in Shambhu Nath Sarkar(3) it was accordingly held that law of preventive detent~on has to meet the challenge not only of articles 21 and 22 but also of article 19(1)(d). Later, five-Judge Bench in Haradhan Saha v. State of West Bengal & Ors.([4]) adopted the same approach and considered the question whether the Maintenance of Internal Security Act, 1971 violated the right guaranteed by article 19 ( 1) (d). Thus, the inquiry whether the right to travel abroad forms part of any of the freedoms mentioned in article 19 ( 1) is not to be shut out at the threshold merely because that right i! part of the guarantee of personal liberty under article 21 . I am in entire agreement with Brother Bhagwati when he says :

"The law must, therefore, now be taken to be well settled that article 21 does not exclude article 19 and that even if there is law prescribing procedure for depriving person of 'personal liberty' and there is consequently no infring~ment of the fundamental right conferred by article 21, such law, in so far as it abridges or takes away any fundamental right under article 19 would have to meet the challenge of that article." -

The interplay of diverse articles of the Constitution guaranteeing varioU8 freedoms has gone through vicissitudes which have been elaborately traced by Brother Bhagwati. The test of directness of the impugned law as contrasted with its cons·~quences was thought in A. K. Gopalan (supra) and Ram Singh([5]) to be the true approach for determining whether fundamental right was infringed. signi-ficant application of that test may be perceived in Naresh S. Miraj-kar(6) where an order passed by the Bombay High Court prohibiting the publication of witness's evidence in defamation case was up-held by this Court on the ground that it was passed with the object of affording protection to the witness in order to obtain true evidence

(1) [1973) 3 SCR 530.

(2) [1950) SCR 88

(3) [1973) l SCR 856.

(4) [1975) 1 SCR 778.

(5) P951J SCR 451.

(6) [1966J 3 SCR 744.

and its impact on the right of free speech and expression guaranteed by article 19(1) (a) was incidental. N. H. Bhagwati J. in Express NewspapersC) struck modified note by evolving the test of proxi~ mate effect and operation of the statute. That test saw its fruition in Sakal PapersC) where the Court, giving precedence to the direct and imm~diate effect of the order over its form and object, struck down the Daily Newspapers (Price and Page) Order. 1960 on the ground 8 that it violated article 19(1)(a) of the Constitution. The culmination of this thought process came in the Bank Natianalisation Case (supra) where it was held by the majority, speaking through Shah J., that the extent of protection against impairment of fundamental right is determined by the direct operation of an action upon the individual's rights and not by the object of the l•=gislature or by the form of the action. In Bennett Coleman([3]) the Court, by majority, reiterated the same position by saying that the direct operation of the Act upo'n the rights forms the real test. It struck down the newsprint policy, restricting the number of pages of newspapers without the option to reduce the circulation, as offending against the provisions of article 19 (1 )(a). "The action may have direct effect on fuhdamental right although i!s direct subject matter may be different" observed the Court, citing an effective instance of law dealing with the D~fence of India or with defamation and yet having direct effect on the freedom of speech and expression. The measure of directness, as held by Brother Bhagwati, is the 'inevitable' consequence of the impugned stature. These then are the guidelines with the help of which one has to ascertain whether section 10(3) (c) of the Passport Act which authorizes the passport authority to impound passport or the impugned order passed thereunder violates the guarantee of free speech and expression conferred by article 19 ( 1 ) (a) .

The learned Attorney General answered the petitioner's contention in this behalf by saying firstly, that the right to go abroad cannot be comprehended within the right of free speech and expression since the latter right is exercisable by the Indian citizens within the geogra-phical limits of India only. Secondly, he contends, the right to go abroad is altogether of different genre from the right of free speech and expression and is therefore not part of it.

The first of these contentions raises question of great importance but the form in which the contention i;S couched is, in my opinion, apt to befog the true issue. Article 19 confers certain freedoms on Indian citizens, some of which by their very language and nature are limited in their exercise by geographical considerations. The right to move freely throughout the 'territory of India' and the right to resid~ and settle in any part of the 'territory of India' which are contained in clauses (d) and (c) of article 19(1) are of this nature. The two clauses expressly restrict the operation of the rights mentioned therein to the territorial limits of India. Besides, by the very object and nature of those rights, their exercise is limited to Indian territory. (1) (1959]SCR12. (2) [ 1962] 3 SCR 842. (3) [1973] 2 SCR 757.

Those rights are int,;!nded to bring in sharp focus the unity and inte-A grity of the country and its quasi-federal structure. Their drive is directed against the fissiparous theory that 'sons of the soil' alone shall thrive, the 'soil' being conditioned by regional and sub-regional corua-derations. The other freedoms which article 19 ( 1) confers are not so restricted by their terms but that again is not conclusive of the question under consideration. Nor indeed does the fact that res-traints on the freedoms guaranteed by Article 19(1) can be imposed under Article\S 19(2) to 19 (6) by the State furnish any clue to that question. The State can undoubtedly impose reasonable restrictions on fundamental freedoms under clauses (2) to (6) of Article 19 and those restrictions. generally, have territorial operation. But th'~ ambit of freedom cannot be measured by the right of State to pass laws imposing restrictions on that freedom which, in the ~nerality of cases, have geographical limitation. Article 19 (1) (a) guarantees to Indian citizens the right to free-.dom of speech and expression. It does not delimit that right in any manner ::md there is no remson, arising either out of interpP:!tational dogmas or pragmatic considerations, why the courts should str1fln the language of the Article to cut down the amplitude of that right. The plain meaning of the clause guaranteeing free speech and expression is that Indian citizens are entitled to exercise that right wherever they choose, regardles-s of geographical considerations, sub}~ct of course to the operation of any existing law or the power of the State to make law imposing reaso'nable restrictions in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation t.a con-tempt of court, defamation or incitement to an offence, as provided in article 19(2). The exercise of the right of free speech ai1d ex-pression beyond the limits of Indian territory will, of course, also be subject to the laws of the country in which the freedom is ot is in-tended to be exercised. I am quite clear that the Constitution does not confer any power on the executive to prevent the exercise by <ili Indian citizen of the right of free speech and expression on foreign soil, subject to what I have just state~. In fact, that seems to me to be the crux of ~he m~tter, for w~ich reason I said, though with respect. tha~ _the form. m which the learned Attorney General stated his pro-position v:as likely !O cloud the true issue. The Constitution guar:.iti-tees certam fundamental freedoms and except where their exerci~e is 1i.mited by territorial considerations, those freedoms may be exer-. c.1sed wher~socver one chooses, subject to the exceptions or qualifica· t1ons mentwncd above.

. The next questio~ is whether the right to go out of India is an mtegral part . o~ th_e nght of free speech and expression and is com-~reh~nded Wlthm 1~. Tt ~ecms to me impossible to answer this ques-tion m the a~rmatn.:e as IS. contended by the petitioner's counsel, Shrl Mad~n Bhatia. It JS possible . to predicate-or many rigbt that its e~erc1se would be more me~~mgfu1 if the right is extended to com-p1ehend~d an extraneous facility. But such extensions do not form part of the nght con~err?d by the. Constitution. The analogy of the free-dom of press bcmg mc1uded m the right of free speech and expres~ion 4-119SCT/78

is wholly misplaced because the right of free expression incontrover-tibly includes the right of freedom of the press. The right to go abroad on one hand and the right of free speech and expression on the other are made up of basically different constituents, so dlfterent indeed that one cannot be comprehended in the other.

Brother Bhagwati has, on this aspect considered at length certain American decisions like Kent(') ,;Apthekar([2 ]) and Zemel([3 ]) and illu-minating though his analysis. is, I am inclined to think that the presence of the due process clause in tlie 5th and 14th Amendments of the American Constitution makes significant difference to the approach of American Judges to the definition and evaluation of constitutional guarantees. The content which has been meaningfully and imaginatively poured into "due process of law" may, in my view, constitute an impor-c tant point of distinction between the American Constitution and ours which studiously avoided the use of that expression. In the Cen-tennial Volume. "The Fourteenth Amendment" edited by Bernard Schwartz, is contained in an article on 'Landmarks of Legal Liberty' by Justice William J. Brennan in which the learned Judge quoting from Yeat's play has this to say : In the service of the age-old dream for recognition of the equal and inalienable rights of man, the 14th Amendment though 100 years old, can never be old. "Like the poor old women in Yeat's play, "Did you see an old woman going down the path ?" asked Bridget. "I did not," replied Patrick, who had come into the house after the old woman left it, "But I saw young girl and she had the walk of queen." Our Constitution too strides in its majesty but, may it be remembered, without the due process clause, I prefer to be content with decision directly in point, All India Bank Employees' Association([4 ]) tn which this Court rejected the contention that the freedom to form associations or unions contained in article 19 ( 1 ) (c) carried with it the right that workers' union could do all that was necessary to make that right effp,ctive, in order to achieve the purpose for which the union was formed. One right leading to another and that another to still other. and so on, was described in the abovementioned decision as produc-tive of "grotesque result".

I have nothing more to add to what Brother Bhagwati has said en the other points in the case. I share his opinion that though the right to go abroad is not included in the right contained in article 1 Y ( 1 ) (a), if an order made under section 10 ( 3) (c) of the Act -does in fact violate the right of free speech and expression, such an order could be struck down as unconstitutional. It is well-settled that statute may pass the test of constitutionality and yet an order passed under it may be unconstitutional. But of that I will say no ..... more

(1) 2 L. eel. 2d 1204.

(2) 12 L. ed. 2d 992.

(3) 14 L. ed. 2d 179.

(4) [1962} 3 SCR 269.

I .. l..

"') , { \

because in this branch, one says no more than the facts warrant and decides nothing that does not call for decision. The -fact that the petitioner was not heard before or soon after the impounding of her passport would have introduced serious infirmity in the order but for the statement of the Attorney General that the Government was. willing to hear the petitioner find further to limit the operation ~f. the order to a· period of six months from the date of the fresh dects1on, if the decision was adverse to the petitioner. The order, I agree, does not in fact offend against article 19(1) (a) or 19(1 )(g).

I, therefore., agree with the order proposed by Brother Bhagwati.

BHAGWATI, J.-The Petitioner is the holder of the passport issued to her on 1st June, 1976 under the Passport Act, 1967. On 4th July, 1977 the Petitioner received letter dated 2nd July, 1977 from the Regional Passport Officer, Delhi intimating to her that it has ~een dr.dded by the Government of India to impq_und her passport under se.ction 10 ( 3) (c) of the Act in public interest and requiring her t() surrender the passport within seven days from the date of receipt of the letter. The petitioner immediately addressed letter to the Regional Passport Officer requesting him to furnish copy of the statement of reasons for making the order as provided in section 10(5) to which reply was sent by the Government of India, Minis1ry of External Affairs on 6th July, 1977 stating inter alia that the Govern-ment has decided "in the interest of the general public" not to furnish her copy of the statement of reasons, for making of the order. The Petitioner thereupon filed the present petition challenging the action of the Government in impounding her passport and d~clining to give reasons for doing so. The action of the Government was impugned inter alia on the ground that it was mala (ide, but this challe§S_e was not pressed before us at the time of the hearing of the arguments and hence it is not necessary to state any facts bearing <m that question. The principal challenge set out in the petition against the legality of the action of the Government was based mainly on the ground that section 1 0( 3) (c)~ in so far as it em powers the Passport Authority to· impound passport "in the interests of the general public" is violative of the equality clause contained in Art. 14 of the Constitution, since the condition denoted by the words "in the interests of the general public" limiting the exercise of the power is vague and undefined and the power conferred by this provision is, tberefore, excessive and suffers from the vice of "over-breath." The petition also contamed challenge that an order under section 1 0(3) (c) impounding passport couJd not be made by the Passport Authority without giving an oppor-tumty to the holder of the passport to be heard in defence and since in. the present. case, the pass~rt was impounded by the Government Without a.ffordmg an opporturuty of hearing to the petitioner, the order was ~ull and void, and, in the alternatjve, if section 10(3 )(c) were read m s~ch ma~er as t<? exclude. the .right of hearing, the section would be mfccted w1th the vtce of arbttranness and it would be void as ~trending .~cle 14. These were the only grounds taken in llie Peti· tion as ongmally filed and on 20th July, 1977 the petition was admitted and rule issued by this Court and an interim order was made directing

that the passport of the petitioner should continue to remain deposited with the Registrar of this Court pending the hearing and final disposal of the Pe<tition.

The hearing of the petition was fixed on 30th August 1977, but before that, tl1e petitioner filed an application for urging additional ground~ and by this application, two furth!!r grounds were sought to be urged by her. One ground was that· section 10 ( 3) (c) is ultra vires Article 21 since it provides for impounding of passport without any procedure as required by that Article, or, in any event, even if it could be said that there is some procedure prescribed under the passport Act, 1967, it is wholly arbitrary and unreasonable and, therefore, not in compliance with the requirement of that article. The other ground urged on behalf of the petitioner was that section 10(3 )(c) is viola-·c tive of Articles 19 (1 )(a) and 19 (1 )(g) inasmuch as it autliorises imposition of restrictions on freedom of Speech and expression guar-anteed under Article 19(1)(a) and freedom to practise any profession or to carry on any occupation, or business guaranteed under Article 1 Y (1 )(g) and these restrictions arc impermissible under ArtiCle 19 (2) and Article 19 ( 6) respectively. The application for urging these two additional grounds was granted by this Court and ultimately at the hearing of the petition these were the two principal grounds which were pressed on behalf of the petitioner.

Before we examine the rival arguments urged on behalf of the parties in regard to the various questions arising in this petition, it would be convenient to set out the relevant provisions of the Passport Act, 1967. This Act was enacted on 24th June, 1967 in view of the decision of this Court in SMwant Singh Sawhney v. D. Ramarathnam, Assistant Passport O.fficer. Government of l1tdia, New Delhi & Ors.C) The position which obtained prior to the coming into force of this Act was that there was no law regulating the issue of passports for leaving the shores of India and going abroad. The issue of passports was entirely within the discretion of the_ executive and this discretion was unguided and unchanneUed. This Court. by majority,-he1a that the expression "personal liberty" in Article 21 takes in the right ot locomotion and travel abroad and under Article 21 no person can be deprived of his right to go abroad except according to the procedure established by law and since no law had been made by the State regu-lating or prohibiting the exercise of such right, the refusal of pass~ port was in violation of Article 21 and moreover the discretion with the executive in the matter of issuing or refusing passport being un-G channclled and arbitrary, it was plainly violative of Article 14 and hence the order refusing passport to the petitioner was also inva1id under that Article. This decision was accepted by Parliament and the infirmity pointed out by it was set right by the enactment of the Pass-ports Act, 1967. This Act, as its preamble shows, was en_acted to provide for the issue of passports and travel documents to reg_t!late the departure from India of citizens of India and other l'Crsons a1_1d for incidental and ancillary matters. Section 3 provides that rio pers0'" shall depart from or attempt to depart from India unless he balds in

this behalf valid passport or travel document. What are the different c1asses of passports and travel documents which can be issued under the Act is. laid down in section 4. Section 5, sub-section (1) provides for making of an application for issue of passport or travel document or for endorsement on such passport or travel document for ·visitmg fllreign country or countries and sub-section (2) says that on receip! Df such application, the passport authority, after making such inquiry, if any, as it may consider neces~ry, shall, by order in writing, issue or rciuse to issue the passport or travel document or make _or refuse to make on the passpo-rt or travel document endorsement in respect of one or more of the foreign countries specified in the application. Sub-sec-tion ( 3) requires the passport authority, where it refuses to issue the passport or travel document or to make any endorsement on the pass-port or travel document, to record in writing brief statement of its reasons for making such order. Section 6, sub-section ( 1) lays down the grounds on which the passport authority shall refuse to make ari endorsement for visiting any foreign coun!ry and provides that on no other ground the endorsement shall be refused. There are fout grounds set out in· this sub-section ~nd of them, the last is that, in the opinion of the Central Government, the presence of the applicant in such foreign country is not in the public interest. Similarly sub-sec· tion (2) of section 6 specifies the grounds on which alone and on no other grounds the passport authority shall refuse to issue pa~sport or travel document for visiting any foreign country and amongst various wounds set out there, the last is that, in the opinion of the Central Government the issue of passport or travel docul!lent to the applicant will not be in the public interest. Then we come to section 10 which is the material section which falls for consideration. Sub-section ( 1 ) of that section empowers the passport authority to vary or cancel the endorsement of passport or travel document or to vary or cancel the conditions subject to which passport or travel document has been issued, having regard, inter alia, to the provisions of sub-section ( 1) ot section 6 or any notification under section 19, Sub-section (2) confer~ powers on the passport authDrity to vary or cancel the conditions cf thr passport or travel document on application of the holder of the passport or travel document and with the previous approval of the Central Gd,vemment. Sub-section ( 3) provides that the passpott authority may impound or cause to he impounded or revoke pass· port or travel document on the grounds set out in clauses (a) to (h), . The order impounding the passport in the present case was made by the Central Government under clause (c) which reads as follows :-

:'(c) if. the passport authority deems it necessary so to do In the mterest of the Sovereignty and Integrity of Indra, the security of India, friendly relations of India with any foreign country, or in the interests of the general public;n

The .partiqilar ground relied upon for making the order was that sef out II~ the last part of clause (c), namely, that the Central Govern~· ment' ~eem.s · it ~ec,~ssary to impou~d th~_ passport "in. the interests of the general pubhc. Then folfows sub-section (5) which requires the

[1978] 2 s.c.R.

passport authority impounding or revoking passport or travel docu-ment or varying or cancelling an endorsement made upon it to "re-cord in writing brief statement of the reasons for making such order and furnish to the holder of the p(!ssport or travel document on de-mand copy of the same unless, in any case, the passport authority is of the opinion that it will not be in the interests of the soveriegnty and integrity of India, the security of India, friendly relations of India with IWY forei~ country or in the interests. of the general public to furnish such copy." It was in virtue of the provision contained in the latter part of this sub-section that the Central Government declined to furnish copy of the statement of reasorn; for impounding the passport of the petitioner on the ground that it was not in the interests of the general public to furnish such copy to the petitioner. It is indeed mattez of regret that the Central Government should have taken up this attitude m reply to the request of the petitioner to be supplied copy of the statement of reasons, because ultimately, when the petition came to be filed, the Central Government did disclose the reasons in the affida-vit in reply to the petition which shows that it was not really contrary to public interest and if we look at the reasons given in. the affidavit in reply, it will be clear that :QO reasonable person oould possibly have taken the view that the interests of the general public would be pre-D judiced by the disclosure of the reasons. This iS an instance sho,win~: how power conferred on statutory authority to act in the in:.. .. Tests of toe general public can sometimes be improperly exercised. If the petitioner had not filed the petition, she would perhaps 11ever have been able to find out what were the reasons for which her passport was impounded and she was deprived of her right to go abroad. The necessity of giving reasons has obviously been introduced in sub-sec-E tion (5) so that it ntay act as healthy check against abuse orr mis-use of power. If the reasons given are not relevant and there is no nexus between the 1easons and the grqund on which the passport has bten impounded, it would b~ open to the holder of the passport to challenge the order impounding it in 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 safeguard against improper or mala (ide exercise of power. The court would, therefore, be very slow to accept, without close scrutiny, the claim of the passport authority that it would not be in the jnterests. O(f the general public to disclose the reasons. The passport authority would have to satisfy the court by placing proper material that the giving of reasons would be clearly and indubitably against the interests of the general public and if the Court is. not sd satisfied, the Court may require the passport authority to disclose the reasons, subject to any valid and lawful claim for privi-lege which may be set up on behalf of the Government. Here in the present case, as we have already pointed out, the Central Government did init!_ally claim that it would b~ against the interests of the general public to disclose the reasons for impounding the passport, but when it came to filing the affidavit in reply, the 'Central Government very properly abandoned this unsustainable claim and disclosed the· reasons. The question whether these reasons have any nexus with the interests, of the general public or they are extraneous and irrelevant is matter

which \Ve shall examine when we deal with the arguments of the parties. Meanwhile, proceeding further with the resume of the relevant provi~ sions, reference may be made to sectio~ U which provides for _ an 'tppeal inter alia against the order impounding or revoking passport or travel document under sub-sedion (3) of section 10. But there is proviso to this section which says that if the order impounding or 1evoking passport or travel document is passed by the Central Gov· ernment, there shall be no right to appeal. These are the !e~vant provisions. of the Act in the light of which we have to consider the constitutionality of sub~section (3 )(c) of section 10 and the validity of the order impounding the passport of the petitioner.

Mea11ing and content of personat liberty in article 21

The first contention urged on behalf of the petitioner in support ot the petition was that the right to go abroad is part of 'personal ~~-~erty' within the meaning of that expression as used in Article 21 and no one ·can be deprived of this right except according to the procedure pres-cribed by law. There is no procedure prescribed by the Passport Act, 1967 for impounding or revoking passport and thereby preyent· ing the holder of the passport from going abroad and in any event, even if some procedure can be traced in the relevant provisions-of the: Act, it is unreasonable and arbitrary, inasmuch as it does not provide [or giving an opportunity to the holder "of the passport to be_heard against the making of the order and hence the action of the Central Government in impounding the passport of the petitioner is in viola-tion of Article 21. This contention of the petitioner raises question as to the true interpretation of Article 21, what is the nature and ex· tent of the protection afforded by this article ? What is the meaning of 'personal liberty' : does it include the right to go abroad so that this right cannot be abridged or taken away except in accordance with the procedure prescribed by law ? What is the inter-relation between Art. 14 and Article 21 ? Does Article 21 merely require that there must be some semblance of procedure, howsoever arbitrary or fanciful, prescribed by law before person can be deprived of his personal liberty or that the procedure must satisfy certain requisites in the sense that it must be fair and reasonable ? Article 21 occurs. in Part Ill of the ConsHtution which confers certain fundamental rights. These fundamental rights had their roots deep ~n the struggle for indepen-dence and, as pointed out by Granville Austin in 'The Indian Consti-tution-Cornerstone of Nation', "they were included in the· Constitu-tion in the hope and expectation that one day the tree of true lib-erty would bloom in India". They were indelibly written in the sub-con-scious memory of the race which fought for well~nigh thirty years for securing freedom from British rule and they found expression in the form of fundamental rights when the Constitution was enacted. These fund~mer1 tal rig~ts represent. th~ .basic values cherished by the people of tlus country smce the V edzc times and they are calculated to protect the dignily of the. individual and create conditions in which every human being can develop his personality to the fullest extent. They wea':e 'ilpattem _of gua~ant~s on the basic-structure of human if~f' ~nd 1mpoie negative obligations on the State not to encroach on mdi~

vidual liberty in its various dimensions. It is apparent from the enun-ciation of these rights that the respect for the individual and his capa-city for individual volition which finds expression there is not self fulfilling prophecy. Its purpose is to help the individual to find his own liability, to give expression to his creativity and to prevent gov-ernmental and other forces from 'alienating' the individual from his creative impulses. These rights are wide ran_ging and comprehensive and they fall under seven heads, namely, right to equality, right to freedom, right against exploitation, right to freedom of religion, cul-tural and educational rights, right to property and right to constitutional rer.:.ledies. Articles 14 to 18 occur under the heading 'Right to Equality', and of them, by far the most important is Article 14 wnich confers fundamental right by injuncting the State not to "deny to any person equality before the law or the equal protection of the laws with-c in the territory of India". Articles 19 to 22, which find place under the heading "Right to freedom" provide for different aspects of free-dom. Clause ( 1) of Article 19 enshrines what may be described as the seven lamps of freedom. It provides that all citizens shall have the right-( a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions;-(d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; {f) to -acquire, hold and dispose of property and (g) to practise any profession or to carry on any occupation, trade or business·. But these freedoms arc not and cannot be absolute, for absolute and unrestricted freedom of one may be destructive of the freedom of another and in well·ordered, civilised society, freedom can only be regulated freedom. Therefore, clauses ( 2) to ( 6) of Art. 19 permit reasonable restrictions to be imP.OSOO on the exercise of the fundamental rights guaranteed under clause-{ 1) of that article. Article 20 need not detain us as. that is not material for the determination of the controversy between the parties. Then comes Article 21 which provides :

"21. No person shall be deprived of his life or personal liberty except according to procedure established by law."

Article 22 confers protection against arrest and detention in certain cases and provides inter alia safeguards in case of preventive deten-tien. The other fundamental rights are not relevant to the present discussion and we need not refer to them.

It is obvious that Article 21, though couched in negative language, confers the fundamental right to life and personal liberty. So far as the right to personal liberty is concerned~ it is ensured by providing that no one shall be deprived of personal liberty except according to procedure prescribed by law. The first question that arises for con-sideration on the language of Article 21 is : what is the meaning and content of the words 'personal liberty' as ~sed in this article ? This qu~stion incidently came up for discussion in some of the jud~eJ!lS in A. K. Gopalan v. State of MadrasC) and the observations madeoy Patanjali Sastri, J., Mukherjee, J., and S. R. Das, J., seemed to place narrow interpretation on the words 'personal liberty' so as to confine (1) {t950J s.c.R.. ss ..the protection of Article 21 to freedom of the person against unlawful detention. But there was no definite pronouncement made on this l point since· the question before the Cour! was not so much the inter-pretation of the words 'personal liberty' as the inter-relation between Article 19 and 21. It was in Kharak Singh v. State of U.P. & Ors.C) that the question as to the proper scope and meaning of the exp~ession 'personal liberty' came up pointedly for consideration for the first time before this Court. The majority of the Judges took the view "that 8 'personal liberty' is used in the article as compendious term, to in-clude within itself all the varieties of rights which go to make ~ the 'personal liberties' of man other than those dealt with in tl!e several cJauses of Article 19 ( 1). In other words, while Article 19 (1) deals with particular species or attributes of that freedom, 'personal_ liberty' in Article 21 takes in and comprises the residue". The minority judges, however, disagreed with this view taken by the majority and explained their position in the following words : "No doubt the ex-pr~ssion 'personal liberty' is comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the Jreedom to move freely is carved out of personal liberty and, therefore, the expression 'personal liberty' in Article 21 excludes that attribute. In our view, this is not correct approach. Both are independent funda-mental rights, though there is overlapping. There is no question of one being carved out of another. The fundamental right of life and personal liberty bas many attributes and some of them are found in Article 19. If person's fundamental right under Article 21 is in-fringed, the State can rely upon law to sustain the action~ but that cannot be complete answer unless the said law satisfies the test laid down in Article 19 (2) so far as the attributes covered by Article 19 (1) are concerned". There can be no doubt that in view of the decision of this Court in R. C. Cooper v. Union of India(2) the minO-rity view must-be regarded as correct and the majority view must be held to have been overruled. We shalt have occasion to analyse agd djscuss the decision in R. C. Cooper's case little later when we deal with the arguments base.d on infraction of Articles 19(1) (a) and 19 ( 1 )(g), but it is sufficient to state for the present that according to this decision, which was decision given by the full Court, the funda-F mental rights conferred by Part III are not distipct arid mutually ex-dusive rights. Each freedom has different dimensions and merely because the' limits of interference with one freedom are satis.fied, the law is not freed from the necessity to meet the challenge of another guaranteed freedom. The decision in A. K. Gopalan's (supra) .case gave rise to the theory that the freedoms under Articles 19, 21, 22 and 31 are exclusive-each article enacting code relating to the pmtcction of distinct rights, but this theory was over-turned in R. C. Cocper's case (supra) where Shah, J., speaking on behalf of the majo-rity pointed out that "Part III of the Constitution weaves l)attern of guarantees on the texture of basic human rights. The guarantees delimit the protection of those rights in their allotted fields : they do ::i not attempt to enunciate distinct rights.H The conclusion was sum-\ mari&ed in these terms : "In our judgment, the assumption in A. K.

(1) [1964J 1 S.C.R. 332.

(2) [1973} 3 S.C.R. 530.

.A Gopakm's case that certain articles in the Constitution exclusively deal with specific matters cannot be accepted as correct". It was held in R. C. Cooper's case and that is clear from the judgment of Shah, J., because Shah, J., in so many terms disapproved of the contrary state-ment of law contained in the opinions of Kania, c. J., Pa4tnjali Sastri, J., Mahajan, J., Mukherjee, J., and S. R. Das, J., in A. K. Gopalan's case that even where person is detained in accordance with the pro-B cedure prescribed by law, as mandated by Article 21, the protection conferred by. the various clauses of Article 19 (1) does not cease to be available to him and the law authorising such detention lias. to satisfy the test of the applicable freedom under Article 19, clause ( 1). This would clearly show that Articles 19(1) and 21 are not muntally exclusive, for, if they were, there would be no question of law dep-riving person of personal liberty within the meaning of Article 21 having to meet the challenge· of fundamental right under Article 19 ( 1). Indeed, in that event, law of preventive detention which deprives person of 'personal liberty' in the narrowest sense, namely, freedom from detention and thus falls indisputably withif! Art. 21 would not require to be tested on the touchstone of clause (d) of Article 19 ( 1) and yet it was held by Bench of seven Judges of this Court in Shambhu Nath Sarkar v. The State of West Bengal & Ors.(1) that such law would have to satisfy the requirement inter alia of Article 19(1), clause (d) and in flaradhan Saha v. The State of West-Bengal & Ors., (2) which was decision given by Bench of five judges, this Court considered the challenge of clause (d) of Article 19(1) to the constitutional validity of the Maintenance of Internal Security Act, 1971 and held that that Act did not violate the constitutional guarantee embodied in that article. It is indeed difficult to see on what prin-· cipk we can refuse to give its plain natural meaning to the expression 'personal liberty' as used in Article 21 and read it in narrow and restricted sense so as to exclude those attributes of personal liberty which are spacifically dealt with in Article 19. We do not think that this would be correct way of interpreting the provisions of the Cons-titution conferring fundamental rights. The atlempt of the court should be to expand the reach and ambi' of the fundamental rights rather than attenuate their meaning arid content by process of judicial construc-tion. The wave length for comprehending the scope and ambit of the fundamental rights· has been set by this Court in R. C. Cooper's case and our approach in the interpretation o.f the fundamental rights must now be in tune with this wave length. We may point out even at the cost of repetition that this Court has said in so many terms in R. C. Cooper's case that each freedom has different dimensions and there may be overlapping between different fundamental rights and therefore it is not valid argument to say that the expression 'personal liberty' in Article 21 must be so interpreted as to avoid overlapping bdween that article and Article 19 ( 1). The expression 'personal iibertyt in Article 21 is of the widest amplitude and it covers variety of rights which go to constitute the personal liberty of man and some of them have· been raised to the status of distinct fundamental rights nnd given additional protection under Article 19. Now, it has b_een (1) [1973]1 SCR 856. (2) [1975] 1 S.C.R. 718.

hdd by this Court in Satwant Singh's case that 'personal liberty' with-in the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right ex.-cept according to procedure prescribed by law. Prior to the enact-ment of the Passports Act, 1967, there was no law regulating d1e right of person to go abroad and that was the reason why the order of the Passport Officer refusing to issue passport to the petitioner in Satwant Singh's case was struck down as. invalid. It will be seen at once from the language of Article 21 that the protection it secures is limited one. · It safeguards the right to go abroad against executive interference which is not supported by law; and law here means 'en-acted Jaw' or 'State Law'. Vide A. K. Gopakm's case. Thus, no per-son can be deprived of his right to· go abroad unless there is law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure. It was for this reason, in order to comply with the requirement of Article 21, that Parliament enacted the Passports Act, 1967 for regu .. lating the right to go abroad. It is clear from the provisions of the Passports Act, 1967 that is lays down the circumstances under which passport may be issued or refused or cancelled or impounded and also prescribes procedure for doing so, but the que-stion is whether that is sufficient compliance with Article 21. Is the. prescription of some sort of procedure enough or must the procedure comply with any parti-r.uJar requirements'! Obviously, procedure cannot be arbitrary, un-fair or unreasonable. This indeed was conceded by the learned Attor-ney General who with his usual candour frankly stated that it _was not possible for him to contend that any procedure howsoever arbit-rary, oppressive or unjust may be prescribed by the law. There was some discussion in A. K. Gopalan's case in regard to the nature! of the procedure required to be prescribed under Article 21 and at least three of the learned Judges out of five 'expressed themselves strongly in favour of the view that the procedure cannot be any arbitrary, fan-tastic or oppressive procedure. Fazal Ali, J., who was in minority, went to the farthest limit in saying that the procedure must include the fcmr essentials. set out in Prof. Willi's book on Constitutional Law, namely, notice, opportunity to be heard, impartial tribunal and ordinary course of procedure. Patanjali Sastri, J. did not go as far as that but he did say that "certain basic principle's emerged as the constant factors known to all those procedures and they formed the core of the procedure established by law." Mahajan, J., also observed that Article 21 requires that "there should be some form of proceeding before person can be condemned either in respect of his life or his liberty" and "it negatives the idea of fantastic, arbitrary and oppressive forms of proceedings". But apart altogether from these observations in A. K. Gopalants case, which have great weight, we find that even oil principle the concept of reasonab1tmess must be projected in the procedure contemplated by Article 21 ,, having regard to the impact of Article 14 on Article 21.

The inter-relationship between articles 14, 19 and 21

We may at this stage consider the inter-relation between Article 21 on the one hand and Articles 14 and 19 on the other. We have al-ready pointed out that the view taken by the majority in A. K. Gopalan's case wa' that so long as law of preventive detention satis-fies the requirements of Article 22, it would be within the terms of Article 21 and it would not be required to meet the challenge of Article 19. This view proceeded on the assumption that "certain articles in the constitution exclusively deal with specific matters" and where the requirements of an article dealing with the particular matter in question are satisfied and there is no infringement of the fundamental right guaranteed by that article, no recourse· can be had to fundamental right conferred by another article. This doctrine of exclusivity was seriously questioned in R. C. Cooper's case and it was over-ruled by majority of the Full Court, only Ray, J., as he then was, dissenting. The majority judges held that though law of preventive detention may pass the test of Article 22, it has yet to satisfy the requirements of other fundamental rights such as Article 19. The ratio of the majo-:-ity judgment in R. C. Cooper's case was explained in clear and cate-~orical term·s by Shelat, J., speaking on behalf of seven judges of this Court in Shambhu Nath Sarkar v. State of West Bengal('). The learn-ed Judge there said :

"In Gopa/an's case (supra) the majority court had held that Article 22 was self-contained Code and therefore law of preventive detention did not have to satisfy the require-ment of Articles 19, 14 and 21. The view of Fazal Ali, J., on · the other hand, was that preventive detention was direct breach of the right under Article 19 (1) (d) and that law providing for preventive detention had to be subject to such judicial review as is obtained under clause (5) of that Article. In R. C. Cooper v. Union of lndkl, (supra) the aforesaid premise of the m_ajority in Gopalwls case (supra) was disapproved and therefore it no longer holds the field. Though Cooper's case (supra) dealt with the inter-relationship of Article 19 and Article 31, the basic approach to construing the fundamental rights guaranteed in the different provisions of the Constitution adopted in this case held the major premise of' the majority in Gopalan's case (supra) to be incorrect."

Subsequently, in Haradhan Saha v. State of Wes: Bengal & Ors.(2) also, Bench of five Judges of this Court, after referring to the deci-G sions in A. K. Gopalan's case and R. C. Cooper's case, agreed that the Maintenance of Internal Security Act, 1971, which is law of preven-tive detention, has to be tested in regard to its reasonableness with reference to Article 19. That decision accepted and applied the ratio ' in R. C. Cooper's case and Shambhu Nath Sarkar's case and proceeded to consider the challenge of Article 19 to the constitutional validity of the Maintenance of Internal Security Act, 1971 and held that the Act did not violate any of the constitutional guarantees enshrined in Art. 19. The same view was affirmed once again by Bench of four (1) [1973] t S.C.R. 856. (1) [1975] 1 S.C.R. 778.

judges of this Court in Khudiram Das v. The State of West Bengal & Ors. (1). Interestingly, even prior to these decisions~ as pointe~ out by Dr. Rajive Dhawan, in his book: "The Supreme Court of Indta :" at page 235, reference was made by this court in Mohd. Sabir v. State of Jammu and Kashmir('2) to article 19(2) to justify preventive. deten-tion. The law, must, therefore, now be taken to be well settled that Artic1e 2J docs not exclude Article 19 and tktt even if there· is law prescribing procedure for depriving person of 'personal liberty' and there is consequently no infringement of the fundamental right con· ferred by Article 21, such law, in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that article. This proposition can no longer be disputed after the decisions in R. C. Cooper's case, Shambhu Nath Sarkar's case and Haradhan Saha's case. Now, if law depriving person of •personal liberty' and prescribing procedure for that purpose within . the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in given situation, ex hypothesi it must also be liable to bt) tested with reference to Article 14. · This was in fact not disputed by the learned Attorney General and indeed he could not do so in view of the clear and categorical statement made by Mukharjea, J., in A. K. Gopalan's case that Article 21 "presupposes that the law is valid and binding Jaw under the provisions of the Constitution having regard to the com-petence of the legislature and the subject it relates to and does not infringe any of the fundamental rights which the Constitution provides for", including Article 14. This Court also applied Article 14 in two of its earlier decisions, namely, The State of West Bengal v. Anwar Ali Sarkar(3) and Kathi Raning Rawat v. The State of Saurashtra([4 ]) where there was special law providing for trial of certain offences by speedier process which took away some of the safeguards available to an accused under the ordinary procedure in the Criminal Procedure Code. The special law in each of these two cases undoubtedly pres-cribed procedure for trial of the specified offences and this procedure could not be condemned as inherently unfair or unjust and there was thus compliance with the requirement of Article 21, but even so the validity of the special law was tested before the Supreme Court o~ the touchstone of Article 14 and in one case, namely, Kathi Raning Ra!""at's c~se, the yalidity was upheld and in the other, namely, Anwar All Sarkar s case, 1t was struck down. It was held in both these cases that the procedure estabHshed by the special law must not be violative of the equality clause. That procedure must artswer the requirement of Artic1e 14.

The nature and requirement of th~ procedure under article 21.

No~, the question_ immediately !rises as to what is the requirement of. A~ttclc 14 : .what .Is th~ con.tent and reach of the great equalising prmc1ple enuncmted m this article ? There can be no doubt that it is fouudin~f~_it~ of the Constitution. It is indeed the pil1ar oii which

0) [1975J 2 S.C.R.. 832.

(2) A.I R. 1971 S.C.l713.

(3) [1952] S.C.R. 284·

(4) [1952] S.C.R. 435.

rests securely the foundation of our democratic republic. And, there-fore, it must not be subjected to narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning for, to do so would be to violate its activist magni-tude. Equality is dynamic concept with many aspects and dimen~ sions and it cannot be imprisoned within traditional and doctrinaire limits. We must reiterate here what was pointed out by the majority in E. P. Royappa v. State of Tamil Nadu & Another ( t) namely, that "from positivistic point of view, equality isr antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in republic, while the other, to the whim and caprice of an absolute monarch. Where an act is abritrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14". Articie 14 strikes at arbi-C trariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophi~ cally, is an essential element of equality or non-arbitrariness pervades Article 14 like brooding omnipresence and the procedure contem· plated by Article 21 must answer the best of reasonableness in order to be in conformity with Article 14. It must be ·"right and just and fair'' and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satis-fied. How far natural justice is an essential element of procedure established by law. The question immediately arises : does the procedure prescribed by the Passports Act, 1967 for impounding passport meet the Lest of this requirement ? Is it 'right or fair or just' ? The argument of the petitioner was that it is not, because it provides for impounding of passport without affording reasonable opportunity to the holder of the passport to be heard in defence. To impound the passport of person, said the petitioner, is serious matter, since it prevents him from exercising his constitutional right to go abroad and such drastic consequence cannot in fairness be visited without observing the princi-F pie of audi alteram partem. Any procedure which permits impairment of the constitutional right to go abroad without giving reasonable oppor-tunity to show cause cannot but be condemned as unfair and unjust and hence, there is in the present case clear infringement of the require~ ment of Article 21. Now, it is true that there is no express provision in the Passports Act, 1967 which requires that the audi alteram partem rule should be followed before impounding passport, but that is not conclusive of the question. If the statute makes itself clear on this point, then no more question arises. But e~en ':Vhe~ the statute is silent, the law may in given case make an Imphcatton and apply the principle stated by Byles, J., in O?o_per v. JVa.ndswC?rth Board ~~ Works(2). "A long course of decisiOns, begmmng ~tth Dr. Bentley s case and ending with some very recent cases,. ~stabhsh that, although ther~ are no positive words in the statute req~mng that the pa.rt~ shall be heard, yet the justice of the common law wJll supply the omiSSion of (1) {1974] 2 S.C.R. 348. (2) [1863] 14 C.B.N.S. 180.

the legislature". The principle of audi alter am part em, whlch man-dates that no one shall be condemned unheard, iS part of the rules of natural justice. In fact, there are two main principles in which the rules of natural justice are manifested, namely, Nemo Judex in Sua Causa and audi alteram partem. We are not concerned here with the former, since there is no case of bias urged here. The question is only in regard to the right of hearing which involves the audi alteram partem rule. Can it be imported in ihe procedure for impounding passport?

We may commence the discussion of this question with few gene-ral observations to emphasise the increasing importance of natural justice in the field of administrative law. Natural justice is great humanising principle intended to invest law with fairness and to secure justice and over the years it has grown into widely pervasive rule affecting large areas of administrative action. Lord Morris of Borth-y-Gest spoke of this rule in eloquent terms in his address before tl:tc Bentham Club : "We can, I think, take pride in what has been done in recent periods and particularly in the field of administrative law by invoking and by applying these principles which we broadly classify under the designation of natural justice. Many testing problems as to their application yet remain to be solved. But I affirm that the area of administrative action is but one area in which the principles are to be deployed. Nor are tl1ey to be invoked only when procedural failures are shown. Does natural justice qualify to be des-cribed as "majestic" conception ? I believe it does. Is it just rhetorical but vague phrase which can be employed, when needed, to give gloss of assurance ? I believe that it is very much more. If it can be summarised as being fair play in action-who could wish that it would ever be out of action ? It denotes that the law is not only to be guided by reason and by logic but that its purpose \"ill not be fulfilled; it lacks more exalted inspiration." (Current Legal Pro-blems, 1973, Vol. 26, p. 16)

And then again, in his speech in the House of Lords in Wiseman v. Borneman (1), the learned Law Lord said in words of inspired felicity :

"that the conception of natural justice should at all stages guide those who discharge judicial functions is not merely an acceptable but is an essential part of the philosophy of the law. We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analysed and described in many autho-rities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or l?recisior: as t? application. We do not sear.ch for prescrip-tions whtch will lay down exactly what must, m various diver-gent situations, be done. The principles and procedures are

---gent situations, (1) [1971) A.C. 297.

to be applied which, in any particular sitdation or set of cir-cumstances, are right and just and fair. Natural justice, it has been said, is only "fair play in action." Nor do we wait for directions from Parliament. The common law has abun-dant riches : there we may find what Byles, J., ca11ed "the justice of the common law".

Thus, the soul of natural justice is ' fair play in aCtion' and that is why it has received the widest recognition throughout the democratic world. In the United States, the right to an administrative hearing is regarded as essential requirement of fundamental fairness. And in England too it has been held that 'fair play in action' demands that before any prejudicial or adverse action is taken against person, he must be given an opportunity to be heard. The rule was stated by Lord Denning, M.R. in these terms in Sdunidt v. Secretary of State for Home Affairs(l) :-where public officer has power to deprive per-son of his liberty or his property, the general principle is that it has not to be done without his being given an opportunity of being heard and of making representations on his own behalf". The same rule also prevails in other Commonwealth countries like Canada, Australia and New Zealand. It has even gained access to the United Nations. Vide American Journal of lnterlUltional Law, Vol. 67, page 479. Magarry, J., describes natural justice "as distillate of dbe process of law''. Vide Fontaine v. Chesterton(2). It is the quintessence of the process of justice inspired and guided by fair play in action'. If we look at the speeches of the various law Lords in Wise1n11n's case, it will be seen that each one of them asked the question "whether in the particular circumstances of the case, the Tribunal acted unfairly so that it could be said that their procedure did not match with what justice demanded", or, was 1he procedure adopted by the Tribunal 'in all the circumstances unfair' ? The test adopted by every Jaw Lord was whether the proce-dure followed was "fair in all the circumstances" and 'fair play in action' required that an opportunity should be given to the tax payer "to see and reply to the counter-statement of the Commissioners" before reaching the conclusion that "there is prima facie case against him." The inquiry must, therefore, always be : does fairness in action demand that an opportunity to be heard should be given to the person affected?

Now, if this be the test of applicability of the doctrine of natural justice, there can be no distinction between quasi-judicial function and an administrative function for this purpose. The aim of both administrative inquiry as well as quasi-judicial inquiry is to arrive at .iust decision and if rule of natural justice is calculated to secure justice, or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both. On what principle can distinction be made between one and the other ? Can it be said that the requirement of 'fair play in action' is any thB -------- ·---

(1) [1969] 2 Chancery Division 149.

(2) (1968) t 12 Solicitor General 690.

less in an adminjstrative inquiry than in :1 quasi-.iudicia! one '? Some-times an unjust decision in an administrative inquiry may have far more serious consequences than decision in quasi-judicial inquiry and hence the rules of natural justice must apply equally in an adminis-trative inquiry which entails civil consequences. There was, however, time in the early stages of the development of the doctrine of natural justice when the view prevailed that the rules of natural justice have application only to quasHudicial proceeding as distinguished from an administrative proceeding and the distinguishing featur~ of quasi-judicial proceeding is that the authority concerned is required by the law under which it is functioning to act judicially. This requirement of duty to act judicially in order to invest the fw1ction with quasi-judicial character was spelt out from the following observation of Atkin, L.J. in Rex v. Electricity Commissioners(!), "wherever any body of persons havin·g legal authority to determine questions affect-ing the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling juris-diction of the King Bench Division .... ". Lord He wart, .J., in Rex v. Legislative Committee of the Church Asscmblye) read this objservation to mean that the duty to act judicially should be an ad-ditional requirement existing independently of the "authority to deter-mine quesions affecting the rights of subjec.ts"-something super added to it. This gloss placed by Lord Hewart, C.J., on the dictum of Lord Atkin, L.J., bedevilled the law for 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 search for the. duty to .act judicially sometimes from tenuous material and sometimes in the servic~s of the statute and this led to oversubtlety and over-refinement resul-ting in confusion and uncertainty in the Jaw. Bu.t this was plainly con-trary to the earlier authorities and in the epoch-making decision of the House of Lords in Ridge v. Baldwin([3]), which m:lrks turning point in the history of the development of the doctrine of natural justice,. Lord Reid pointed out how the gloss of Lord He wart, C.J., was based on misunderstanding of the observations of Atkin, L.J., and it went counter to the law laid down in the earlier decisions of the Court. Lord Reid observed : "If Lord Hewart meant that it is neve.r enough that body has duty to determine what the rights of an individual should be, but that there must always be something more to impose on it duty to act judicially, then that appears to me impossible to reconci]e with the earlie.r authorities". The learned law Lord held that the duty to act jadicially may arise from the very nature of the function inten-ded to be performed and it need not be shown to be superadded. This decision broadened the area of application of the rules of natural justice and to borrow the words of Prof. Clar in his article on <Natural Justice, Substance and Shadow' in Public Law Journal, 1975, restored light to an area "heniphted by the narrow conceptualism of the previous de-cade". This development in the law had its parallel 'in India in the Associated Cement Compcii1ies Ltd. v. P. N. Shanna & Anr([4 ]) where

(1) (1924) 1 K.B. 171.

(2) [1928] 1 K.B. 41 t.

(3) [1964) A. C. 40.

(4) [1965] 2 S.C.R. 366.

5-119 SCI/78

this Court approvingly referred to the decision in Ridge v. Baldwin (supra) and, later in State of Orissa v. Dr. BinapaniC) observed that : "If th~re is power to decide and determine to the prejudice of per-son, duty to act judicially is implicit in the exercise of such power''. This Court also pointed out in A.K. Kraipak & Ors. v. Union of India & Ors. (2) another historic decision in this branch of the law, that in recent years the concept of quasi-judicial power has been undergoing radic·al change and said: "The dividing line between an administrative power and quasi-judicial power is quite thin and is being gradually oblite-rated, for detem1ining whether power is an administrative power or quasi-judicial power one has to look to the nature. of the power confer-red, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exer-c cise of that power and the manner in which that power is expected to be exercised". The net effect of these and other decisions was that the duty to act judicially need not be super-added, but it may be spelt out from the nature of the power conferred, the manner of exercising it and its impact on the rights of the person effected and where it is found to exist, the rules of natural justice would be attracted.

This was the advance made by the law as. result of the decision in Ridge v. Baldwin (supra) in England and t~ decision in Associ-ated Cement Companies's case (supra) and other cases- following upon it, in India. But that was not to be the end of the development of the law on this subject. The proliferation of administrativeJ law pro-voked considerable fresh thinking on the subject and soon it came to be recognised that 'fair play .in action' required that in administrative proceeding also, the doctrine of natural justice must be held to be applicable. We have already discussed this aspect of the question on principal and shown why no distinction can be made between an administrative and quasi-judicial proceeding for the• purpose of applicability of the doctrine of natural justic~. This position was judi-cially recognised and accepted and the dichotomy between administra-tive and quasi-judicial proceedings vis-a,..vis doctrine of natural jus-tice was finally discarded as unsound by the decisions in ln re : 1-I.K. (An Infant) ([3]) and Schrnidt v. Secretary of StQte for flgme A[ftlirs (supra) in England and, so far as India is concerned, by the memorable deci-sion rendered by this ·Court in A.K. Kratpak's case Ompra). Lord Parker, C.J. pointed out in the course of his judgment in ln Re : H.K .. (An Infant) (supra) :

"But at the same time,. I myself think that even if an Immigration officer is not in judicial or quasi-judicial capacity, he must at any rate give the i:nmigra:nt an opportu-nity of &atisfying him of the matters in the sub·section, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That

(1) [1967]2 S C.R. 625. (2) [l970] 1 S.C.R. 457. (3) [1967] 2 Q. B. 617.

is not, as I see it, question of acting or being~ required to act judicially, but of being required to act fall:l~. Good ad-ministration and an honest or boiUlr-{ide decision must, as it seems to me, required not merely impartiality, nor rner~ly bringing one's mind to bear on the problem, but actmg fairly; and to the limited extent that the circumstances of any partic11!ar case allow, and within the legislative framc\~or~ under which the administrator is working, only to that hml-ted extent do the so-called rules of natural justice apply, wl1ich in case· such as this is merely duty to act fairly. I appreciate that in saying that it may be said that one is going fnrther than is permitted on the decided cases because heretofDre at any ·rate the decisions of the co-urts do seen"! to have drawn strict line in these matters according to whether there is or is not duty to act judicially or quasi--judicially."

This Court, speaking through Hegde, J., in A. K. Krcdpak's case quoted with approval the above passage from the judg·nent of Lord Parker, C.J., and proceeded to add :

"The aim of the rules· of natural justice is to secure justice or to put it negatively to prevent miscarriage of jus-D tice.. These rules can operate only in areas not covered by any law validly made-. In other words they do not suppbnt the law of the land but supplement it--Till very recently it was the opinion of the courts that tmless the authority con--cerned was required by the law under which it functioned to act judicially there was no room for the, application .of the rules of natural justice. The validity of that limitation is now questiq_ned. If the purpose of the rules of natural jus-tice is to prevent miscarriage oJl justice one fails to ~ee wh.y those rules should oo made inapplicable tQ adminishative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial en-quiries. Enquiries which were considered administrative at one time are now being considered as quasi .. judicial in character. Arriving at just decision is the aim of both quasi-jt:dicial enquiries as well as administrative enquiries. An unjust decision in an administrative eriquiry may lmYe more far reaching effect than decision in quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. The University of Kerala and Ors. (1969)1 S.C.R. 317 the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to given case must depend to great extent Ofll the facts and circum-stances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever complaint is made before court that some principles of natural justice had been contravened the court has to • .lecide whether the observance of that rule was necessary for just decision on the facts of the case."

~is view . was reiterated and re-affirmed in subsequent decision of th1s Court m D.F.O. South Khari v. Ram Sanefd Singh( 1). The la\v must. therefore. now be taken tn be well settled that even in an administrative proceeding, which involves civil ·consequences, the doctrine of natural justice must be held to be applicable.

8 Now, here, the power conferred on the Passport Authority is to im-pound passport and the consequence of impounding passport would · be to impair the constitutional right of the holder of the passport to go abroad during the time that the passport is impounded. Moreover, passport can be impounded by the Passport Authority only on certain specified grounds set out in sub-section ( 3) of section 1 0 ~rtd the Pass-port Authority would have to apply its mind to the facts and circum-c stances of given case and decide whether any of the specified grounds exists which would justify impounding of the passport The Passport Authority is also required by sub-section (5) of section 10 to record in wding brief statement of the reasons for making an order impound-ing passport and, save in c~rtain exceptional situations, the Passport Authority is obliged to furnish copy of the statement of reasons to the holder of the passport. Where the Passport Authority which has Im-pounded passport is other than the Central Government, right of appeal against the order impounding the passport is given by section 11, and in the appeal, the validity of the reasons given by the Passport Au-thority for impounding the passport can be canvassed before the Appel-late Authority. It is clear on consideration of these circumstances that the test laid down in the decisions of this Court for distinguishing between quasi-judicial power and an administrative power is satisfied and the power conferred on the Passport Authority tt;> impound pass-port ·is quasi-judicial power. The rules of natural justice would, in the circumstances, be applicable in the exercise of the power of impounding passport even on the orthodox view which prevailed prior to A. K. Kraipak' s case. The same result must follow in view of the decision in A. K. Kraipak's case, even if the power to impound passport were regarded as administrative in character, because it seriously interferes with the constitutional right of the holder of the passport to go abroad and entails adverse civil consequences. ·

Now, as al(eady pointed out, the doctrine of natural justice consists principally of two rules, namely, nemo debt esse judex propria cause : no one shall be judge in his own cause, and audi alteram partem : no decision shall be given against party without affording him reason-able hearing. We are concerned here with the second rule and hence we shall confine ourselves only to discussion of that rule. The learned Attorney General, appearing on behalf of the Union of India, fairly con-ceded that the audi alteram partem rule is highly effective tool devised by the courts to enable statutory authority to arrive at just decision and it is calculated to act as healthy check on abuse or misuse of power and hence its reach should not be narrowed and its applicability circum-scribed. He rightly did not plead for reconsideration of the historic ad-vances made in the law as result of the decisions of this Court and did

(1) [l973J 3 g.c.c. ~64.

' ' ' "r--

not suggest that the Court should re-trace its steps. That would indeed have been most startling argument coming from the Governmeni. of India and for the Court to accede to such an argument would have been so act of utter retrogression. But fortunately no such argument was advanced by the learned Attorney General. What he urged was very limited contention, namely that having regard to the nature of the action involved in the impounding of passport, the audi alteram partem ru~e must be held to' be excluded, because if notice were to be given to the hol-der of the passport and reasonable opportunity afforded to him to show cause why his passport should not be impounded, he migh't immediately, on the strength of the passport, make good his exit from the country and the object of impounding the passport would be frustrated. The argument was that if the audi alteram pattern rule were applied, its effect would be to stultify the power of impounding the· passport and it would defeat and paralyse the administration of the law and hence the audi alteram partem rule cannot in fairness be applied while exercising the power to impound passport. This argument was sought lo be sun-ported by reference to the statement of the law in A.S. de Smith, Judi-cial Review of Administrative Action, 2nd ed., where the learned authcr says at page 17 4 that "in administrative law a: prima facie right to prior notice and opportunity to be heard may be held to be excluded by im-plication-where an obligation to give notice and opportunity to be heard would obstruct the taking of prompt action, especially actio.n of pre-ventive or remedial nature". Now, it is true that since the right to prior notice and opportunity of hearing arises only by implication from the duty to act fairly, or to use the words of Lord Morris of Borth-y-Gest, from 'fair play in action', it may equally be excluded where, hav-ing regard to the nature of the action to be taken, its cb ject and pur-pose and the scheme of the relevant statutory provision, fairness in action does not demand its implication and even warrants its exclusion. There are certain well recognised exceptions to the audi alteram partem rule established by judicial decisions and they are summarised by S.A. de Smith in Judicial Review of Administrative Action, 2nd ed., at page 1 68 to 179. If we analyse these exceptions little closely, it will be apparent that they do not in any way militate against the principle which requires fair play in administrative action. The worrl 'excr·oticn' is really misnomer because in these exclusionary cases, the audi alteram partem rule is held inapplicable not by way of an exception to "fair play in ~ction", but because nothing unfair can be inferred by not affording an opportunity to present or meet case. The audi alteram partem rule is intended to inject justice into the law and ~t cannot be applied to defeat the ends of justice, or to make the law 'lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation'. Since the >life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram vartem ru1e would, by the experiential test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands. But at the same time it must be remembered that this ·is rule of vital importance in the field of administrative law and it must not b~ jettisoned save 1n very exceptional circumstances where compulsive necessity so demands.

It is wholesome rule designed to secure the rule of law and the court should not be too ready to eschew it in its application to given case. True it is that in questions of this kind fanatical or doctrinaire ap-proach should be avoided, but that dpes not mean that merely because the traditional methodology of formalised hearing may have the effect of stultifying the exercise of the statutory power, the audi alteram par-tern should be wholly excluded. The court must make every effort to B· salvage this cardinal rule to the maximum extent permiss~ble in given case. It must not be forgotten that "natural justice is pragrnat:cally flexible and is. amenable to capsulation under the compulsive pressure of circumstances". The audi alteram partem rule is not cast in rigid mould and judicial decisions establish that it may suffer situational modi-fications. The core of it must, however, remain, namely, that the per-son affected must have reasonable opportunity of being heard and the hearing must be genuine hearing and not an empty public relations exercise. That is why .Tucker, L.J., emphasised in Russel v. Duke of Norfolk([1]) that "whatever standard Qf natural justice is adopted, one essential is that the person concerned should have reasonable oppor- , tunity of presenting his case". What opportunity may be regarded as reasonable· would necessarily depend on the practical necessities of the situation. It may be sophisticated fullfledged hearing or it may be hearing which is very brief and minimal : it may be hearing prior to the decision or it may even be post-decisiona1 remedial hearing. The audi alteram partem rule is sufficiently flexible to pennit modifica-tions and variations to suit the exigencies of myriad kinds of. situations which may arise. This circumstantial flexibility of the audi alteram pm·-tem rule was emphasised by Lord Reid i1t Wiseman v. Sorneman (supra) when he said that be would be .. sorry to see this fundamental general principle degenerate into series of hard and fast rules~' and Lord Hailsl~am, L.C., also observed in Pearl-Berg v. Party(2) that the courts "have taken in increasingly sophisticated view of what is re-quired in individual cases". It would not, therefore, be right to con-clude that the audi alteram partem rule is excluded mereJy because the power to impound passport might be frustrated, if prior notice and hearing were to be given to the person concerned before impounding his passport. The Passport Authority may proceed to impound the pass-port without giving any prior opportunity to the person concerned to be heard, but as soon as the order impounding the passport is made, and opportunity of bearing, remedial in aim, should be given to him so that he may present his case and controvert that of the Passport Authority and point out why his passport ~hould not be impounded and the order impounding it recalled. This should not only be possible but also quite appropriate, because the reasons for impounding the passport· are re-quired to be supplied by the Passport Authority after the making of the order and the person affected would, therefore, be in position to make representation s.etting forth his case and plead for setting aside the action impounding his passport. fair opportunity of being heard following immediately upon the order impounding the passport would satisfy the mandate of natural justice and provision requiring giving of such opportunity to the person concerned can and should be read by

(1) {1949] 1 All Eng. Reports 109. (2) [1971] 1 We~kly Law Reports, 728.

implication in the Passports Act, 1967. If such provision were held to be incorporated in the Passports. Act, 1 967 by necessary implication, as we hold it must be, the procedure prescribed by the Act for impound- -ing passport would be right, fair and just and it would not suffer from the vice of arbitrariness or unreasonableness. We must, therefore, hold that the procedure 'established' by the Passports Act, 1967 for im-pounding passport is in conformity with the requirement of Article 21 and does not falffoul of that article.

But the question then immediately arises whether the Central Gov-ernment has complied with this procedure in impounding the passport of the Petitioner. Now, it is obvious and indeed this could not be con-troverted, that the Central Government not only did not give an oppor-tunity of hearing tt;> the petitioner after making the impugned order im-pounding her passport but even declined to furnish to the petitioner the reasons for impounding her passport despite request made by her. We have already pointed out that the Central Government was wholly un-justified in withholding the reasons for impounding the passport from the petitioner and this was not only in breach of the statutory provision, but it also amounted to 4enial of opportunity of hearing to the petitioner. The order impounding the passport of the• petitioner was, therefore, clearly in violation of the rule of nat1,1ral justice embodied in the maxim audi alteram partem and jt was not in conformity with the procedure prescribed by the Passports Act, 1967. Rea·lising that this was fatal defect which would void the order impounding the passport, the learned Attorney-General made statement on behalf of the Government of India to the following effect :

"1. The Government is agreeable to considering any re-presentation that may be made by the petitioner in respeCt of the impounding of her passport and giving her an opportunity in the matter. The opportunity will be given within two weeks of the receipt of the representation. It i,s clarified that in the present case the grounds for impounding the passport are those mentioned in the affidavit in reply dated 18th August, 1977 of Shri Ghosh except those mentioned in para 2(xi).

2. The representation of the petitioner will be dealt with expeditiously in accordance with law.

This statement removes the voice from the order impounding the pass-port and it can no longer be assailed on the ground that it does not com-ply with the audi alteram partem rule or is. not in accord with the pro-cedure prescribed by the Passports Act, 1967.

ls Section 10(3) (c) violative of Article 14 1

. T~a t takes us to the next question whether section 1 0 ( 3) (c) is viOlative <?f a_ny of the fundamental rights guaranteed under Part III of the C?nst1tut10n. Only two articl~s of the Constitution are relied upon fo! th1s p~rpose and they are Articles 14 and 19(1)(a) and (g). We wdl first dtspose of the challenge based on Article 14 as it lies in very narrow compass. The argument under this head of challenge was that

section 10(~) (c) ~onfers unguided and unfettered power on the Pass-port ~uthonty to Impound p~ssport and hence it is violative of the equ~uty clause contained in Article 14. It was conceded that under section 1 0( 3) (c) the power to impound passport can be exercised only upon one or more of the stated grounds, but the complaint was ~hat th~ ground of "interests of the general public" was too vague and 1ndefirnte to afford any real guidance to the Passport Authority and the 8 Passpor~ A~thority could, without in any way violating the terms of the .section, Impound the passport of one and not of another, at its dis-cretiOn. Moreover, it was sa·id that when the order impounding pass-port is made by the Central Government, there is no appeal or revision provided by the Statute and the decision of the Central Government that it is in public interest to impound passport is final and conclusive. The discretion vested in the Passport Authority, and particularly in the Central Government, is tlius. unfettered and unrestricted ~nd this is plainly in violation of Artide 14. Now, the law is well settled that when statute vests unguided and unrestricted power in an authority to affect the rights of person without laying down any policy or princi-ple which is to guide the authority in exercise of this power, it would be affected by the vice of discrimination since it would leave it open to · the Authority to discriminate between persons and things similarly situated. But here it is difficult to say that the discretion conferred on the Passport Authority is arbitrary or unfettered. There are four grounds set out in section 10 ( 3) (c) which would justify the making of an order impounding passport. We are concerned only with the last ground denoted by the words ''in the interests of the general public", for that i~ the ground which is attacked as vague and indefinite. We fail to see how this ground can, by any stretch of argument, be charac-E terised as vague or undefined. The words "in the interests of the gene-ral public" have clearly well defined meaning and the courts have often been called upon to· decide whether particular action is "in the interests of the general public~' or in "public interest" and no difficulty has been experienced by the Courts in carrying out this exercise. These words are in fact borrowed ipsissima verba from Article 19 (5) and we think it would be nothing short of heresy to accuse the constitution-F makers of vague and loose thinking. The legislature performed sci.ssor and paste operation in lifting these words out of Article 19(5) and in-troducing them in section 1 0 ( 3) (c) and if these words are not vague and indefinite in Article 19 ( 5) , it is difficult to see how they can be condemned to be such when they occur in section 1 0( 3) (c). How can section 10(3) (c) be said to incur any constitutional infirmity on account of these words when they are no wider than the constitutional provision in Artiole 19(5) and adhere loyally to the verbal fo~ula adopted ·in the Constitution ? We are clearly of the view that suffictent guidelines are provided by the words "in the interests .of th~ general public" and the power conferred on the Passport Authonty to 1mpound passport cannot be said to be unguided or unfettered. Moreover, it must be remembered that the exercise of this power is not made de-pendent on .the subjective opinion of the Passport Authority as re.gards the necessity of exercising it on one or more of the grounds stated m the section, but the Passport Authority is· required to record in writing brief statement of reasons for impounding the passport and, save in cer-

..J-,. \ '

I, "'"""! .I

tain exceptional circumstances, to supply copy of such statement to the person affected, so that the person concerned can challenge the ~e­cision of the Passport Authority in appeal and the appellate authonty can examine whether the reasons given by the Passport Authority are correct, and if so, whether they justify the making of the order impound~ ing the passport. It is true that when the order impounding passport is made by the Central Government, there is no appea1l aganst it, but it must be remembered that in such 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 reasonable and responsible manner. When power is vested in high authority like the Central • Government, abuse of power calUlot be lightly assumed. And in any event, if there is abuse of power, the arms of the court are long enough to reach it and to strike it down. The power conferred on the Passport Authority to impound passport under section 10(3) (c) cannot, there~ fore, be regarded as discriminatory and it does not fall foul of Article 14. Buf every exercise of such power has to be tested in order to de~ termine whether it ·is arbitrary or within the guid~lines provided in Sec~ tion 10(3) (c).

Conflicting approaches for locating the fundamental right violated : Direct and inevitable effect test. test.

Direct and inevitable effect test. test. We think it would be proper at this stage to consider the approach to be adopted by the Court in adjudging the constitutionality of sta-tute on the touchstone of fundamental rights. What is the test or yard-stick to be applied for determining whether statute infringes particu~ lar fundamental right ? The law on this point has undergone radical change since the days of A. K. Gopalan's case. That was the earlies~ E. decision of this Court on the subject, following almost immediately upon the commencement of the Constitution. The argument which arose for consideration in this case ·was that the preventive detc:ntion order results in the detention of the applicant in cell and hence it con-travenes the fundamental rights guaranteed under clauses (a), (b), (c), (d), (e) and (g) of Art!cle 19 (1) . This argument was negatived by Kania, C. J., who pointed out that: "The true approach is only to con~ sider the directness of the legiS>lation and not what will be the result of the detention, otherwise valid, on the mode of the detenu's life-Any · other construction put on the article-will be unreasonable". These observations were quoted with approval by Patanjali Sastri, J; speaking on behalf of the majority in Ram Singh and Ors. v. State of Delhi(l). There, the detention of the petitioner was ordered with view, to preventing him from maki~g any speecbes prejudicial to the maintenance of public order and the argument was that the order of detention was invalid as it infringed the right of free speech and expres-sion guaranteed under Article 19 (1) (a). The Court took the view that the direct object of the order was preventive detention and not the in~ fringement of the right of freedom of speech and expression, which was merely consequential upon the detention of the detenu and uphPld the validity of the order. The decision in A. K. Gopalan's case, followed by Ram Singh's case, gave rise to the theory that the object and form of State action determine the extent of protection which may be claimed ·-----(1) rf951] S.C.R. .... 451.

by ~n i~dividual an~ t~e, v~dity of such action has to be judged by cons1dex:ng whether It IS 'drrectly in respect of the subject cov~red by any particular article of the Constitution or touches the said article only incidentially or indirectly". The test to be applied for determining the constitutional validity of State action with reference to fundamental rights is : what is the object of the authority in taking the action : what is the subject-matter of the action and to which fundamental right does it relate ? This theory that "the extent of protection of important gua-rantees, such as the liberty of person and right to property, depend upon the form and object of the State action and not upon its direct opera-tion upon the individual's freedom" held away for considerable time and was applied in Naresh Shridhar Mirajkar & Ors. v. State of Maha-rashtra & Anr.([1]) to sustain an order made by the High Court in suit for defamation prohibiting the publication of the evidence of wit-c ness. This Court, after referring to the observation of Kania, C.J ., in A. K. Gopalan's case and noting that they were approved by the Full Court in Ram Singh's case, pointed out that the object of the impugned order was to give protection to the witness in order to obtain true evi-dence in the case with view to do justice between the parties and if incidentally it operated to prevent the petitioner from reporting the pro-ceedings of the court in the press, it could not be said to contravene Article 19( 1) (a).

But it is interesting to note that despite the observations of Kania, C.J., in A. K. Gopalan's case and the approval of these observations in Ram Singh's case, there were two decisions given by this Court prior to Mirajkar's case, which seemed to deviate and strike diiTerent note. The first was the decision in Express News Papers (P) Ltd. & Anr. v .. The Union of India & Ors.(2) where N. H. Bf:tagwati, J., speaking on behalf of the Court, referred to the observations of Kania, C.J., in A. K. Gopalan's case and the decision in Ram Singh's case, but ultimately formulated the test of direct and inevitable effect for the purpose of ad-judging whether statute offends particular fundamental right. The learned Judge pointed out that all the consequences suggested on behalf of the petitioner's as flowing out of the Working Journalists (Conditions of Service) and Miscellaneous Act, 1955, namely, "the tendency to cur-tail circulation and thereby narrow the scope of dissemination of infor-mation, fetters on the petitioners' freedom to choose the means of exer-cising the right, likelihood of the independence of the press being un-dermined by having to seek government aid, the imposition of penalty on the petitioners' right to choose the instruments for exercising the free-G dom or compelling them to seek alternative media etc::, would be re-mote and depend upon various factors which may or may not come into play. "Unless these were the direct or inevitable consequences of the measures enacted in the impugned Act", said the learned Judge, "it would not be possible to strike down the legislation as having that effect and operation. possible eventuality of this type would 'not neces-sarily be the consequence which could be in the contemplation of thet Legislature while enafting measure of this type for the benefit of the

(1) [1966] 3 S.C.R. 744.

(2) [1959) S.C.R. 12.

workmen concerned." Then again, the learned Judge observed: "-if . the intention or the pro~mate effect and operation of the Act was such as to bring it within the mischief of Article 19(1) (a), it would cer~ tainly be liable to be struck down. The real difficulty, however, in the way of the petitioners is that neither the intention nor the effect and operation of the impugned Act is to take away or abridge the right of freedom of speech and expression enjoyed by the petitioners". Here we find the gern of the doctrine of direct and inevitable effect, which · necessarily must be effect intended by the legislature, or in other words, what may conveniently and appropriately be described as the doctrine of intended and real effect. So also in Sakal Papers (P) Ltd. & Ors . v. The Union of India([1]) while considering the constitutional validity ·Of the Newspaper (Price and Page) Act, 1956 and Daily Newspaper (Price and Page) Order, 1960, this Court applied the test of direct and immediate effect. This Court, relying upon the decision in Dwarkadas Shrinivas v. The Sholapur & Weaving Co. Ltd.(2) pointed out that "it is the substance and the practical result of the act of the State that should be considered rather than its purely legal aspect" and "the correct ap-proach in such cases should be to enquire as to what in substance is the loss or injury caused to the citizen and not merely what manner and method has been adopted by the State in placing the restriction." Since "the direct and immediate effect of the order" would be to res-train newspaper from publishing any number of pages for carrying its news and views, which it has fundamental right under Article 19 ( 1) (a) to do, unless it raises the seNin.g price as provided in the Schedule to the Order, it was held by this Court that the order was violative of the right of the newspapers guaranteed by Article 19 ( 1) {a). Here again, the emphasis was on the direct and inevitable effecr of the impugned action of the State· rather than on its object and form or subject-matter.

However, it was only R. C. Cooper's case that the doctrine that the <>bject and form of the State action alone determine the extent of pro-tection that may be claimed by an individual and that the effect of the State action on the fundamental right of the individual is irrelevant, was finally rejected. It may be pointed out that this doctrine is in sub-stance and reality nothing else than the test of pith and substance which is applied for determining the constitutionality of legislat-ion where there is conflict of legislative powers conferred on Fede!al and State Legis~ latures with reference to legislative Lists. The question which is asked in such cases is : what is the pith and substance of the le-gislations; if it "is within the express po\Yers, the-n it is not invalidated if incidentally it effects matters which are outside the authorised field". Here also, <>n the application of this doctrine, the question that is required to be ~onsidered is : what is the pith and substance of the action of the State, or in other words, what is its true nature and character; if it is in res~ pect of the subject covered by any particular fundamental right, its vali--dity must be judged only by reference to that fundamenta·l right and it is immaterial that it incidentally affects another fundamental right.

(1) [1962] 3 S.C.R. 842. {2) fl954] S.C.R. 674.

(1) [1973] 2 S.C.R. 757.

policy which inter alia imposed maximum limit of ten pages for every newspaper. but without permitting the newspaper to increase the num-ber of pages by reducing circulation to meet its requirement even with-in the admissible quota. These restrictions were said to be violative of the rjgbt of free speech and expression guaranteed under Article 19{1) (a) since their direct and inevitable consequence was to limit the number of pages which could be published by newspaper to ten. The argument of the Government was that the· object of the newsprint policy __ was rationing and equitable distribution of imported newsprint '''hiclr~s scarce commodity and nol abridgement of freedom of speech and expression. The subject-matter of the import policy was "ration-ing of imported co~odity and equitable distribution of newsprint" and the neWSJ]dnt·t)olicy did not directly and immediately deal with the right-mentioned in Article 19( 1) (a) and hence there was no viola-tion-of that Article. This argument of the Government was negatived by the majority in the following words :

"Mr. Palkhivala said ~hat the tests of pith and substance of the subject matter and of direct and of incidental effect of the legjsJation are relevant to questions of legislative comp~ tence but they are i~relevant to the question of infringement of fundamental rights. In our view this is sound and correct approach to interpretation of legislative measure~ and State action in !elation to fundamental rights. The true test is whether the effect of the impugned action is to take away or abridge fundamenal rights. If it be assumed that the direct object of the law or action has to be direct abridge-ment· of the right of free speech by the impugned law or action it is to be related to the directness of effect and not to the directness of the subiect matter of the impeached Jaw or action. The action may have direct effect on funda:-mental right although its direct subject matter may be diffe-rent. law dealing directly with the Defence of India or defamation may yet have direct effect on the freedom of speech. Article 19 (2) could not have such law if the res-triction is unreasonable even if it is related to matters men-tioned therei.p.. Therefore, the word "direct" would go to the quality or character of the effect and not to the subject matter. The object of the law or executive action is irrele-vant when it establishes the petitioner's contention about fundamental right. In the present case, the object of the newspaper restrictions has nothing to do with the avilability of newsprint or foreign exchange because these restrictions come into operation after the grant of quota. Therefore the restrictions are to control the numoer of pages or circulation of dailies or newspapers. These restrictions are clearly out-srde the ambit of Article 19 (2) of the Constitution. It, therefore, copfirms that the right of freedom of speech and expression is abridged by these restrictions".

The majority took the view that it was not the object of the newsprint policy or its subject matter which was determinative but its direct conse-quence or effe<..t upon the rights of the newspapers and since "the effect

and consequence of the impugned policy upon the newspapers" was direct control and restriction of growth and circulation of newspaper3, the newsprint policy infringed freedom of speech and expression and was hence violative of Article 19(1) (a). The pith and substance theory was thus negatived in the clearest terms and the test applied was as to what is the direct and inevitable consequence or effect of the impugned State action on the fundamental right of the petitioner. It is possible that in given case the pith and substance of the State action may deal with particular fundamental right but its direct and inevitable effect may be on another fundamental right and in that case, the State action woulc have to meet the challenge of the latter fundamental right. The pith and substance doctrine looks only at the object and subject-matter of the State action, but in testing the validity of the State action with reference to fundamental rights, what the Court must considor is the direct and inevitable consequence of the State action. Otherwise, the protection of the fundamental rights would be subtly but surely eroded.

It may be recalled that the test formulated in R. C. Cooper's case merely refers to 'direct operation' or 'direct consequence and effect' of the State action on the fundamental right of the petitioner and does not use the word 'inevitable' in this connection. But there can be no doubt, on reading of the relevant observations of Shah, J ., that such was the test really intended to be laid down by the Court in that case. If the test were merely of direct or indirect effect, it would be open-ended concept and in the absence of operational 'criteria for judging 'directness', it would give the Court an unquantifiable discretion to decide whether in given case consequence or effect is direct or not. Some other concept-vehicle would be needed to quantify the extent of directness or indirectness in order to apply the test. And that is sup-plied by the criterion of 'inevitable' consequence or effect adumbrated in the Express Newspaper's case. This criterion helps to quantify the extent of 'directness n~cessary to constitute infringement of fundamen-tal right is direct and inevitable, then 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 o.f this background. Article 19 ( 1) (a) enshrines one of the most cherished freedoms in .democracy, namely, freedom of speech and expression. The petitioner~· being citizen, has undoubtedly this freedom guaranteed to her, but the question is whether section 10(3) (c) or the Impugned Order unconstitutionally takes away or abr.idges this freedom. Now, prima facie, the right, which is sought to be rcs-H tricted by section 10(3) (c) and the impugned Order, is the right to go abroad and that is not named as' fundamental right or included in so many words in Article 19 (1) (a) , but the argument of the petitioner was that the right to go abroad is an integral part of the freedom of

\ / .. _

speech and expression and whenever State action, be it law or executive fiat, restricts or interferes with the right to go abroad, it necessarily involves curtailment of freedom of speech and expression, and is, there-fore required to meet the challenge of Article 19 ( 1 )(a) . This argu-ment was sought to be answered by the Union of India by two-fold contention. The first limb of the contention was that the right to go abroad could not possibly be comprehended within freedom of speech and expressionJ because the right of free speech and expression guaranteed under Article 19 ( 1) (a) was exercisable only within the territory of India and the guarantee of its exercise did not extend out-side the country and hence State action restricting 01 preventing exer-cise of the right to go abroad could not be said to be violative of free-dom of speech and expression and be liable to be condemned as invalid on that account. The second limb of the contention went little further and challenged the very premise on which the argument of the petitioner was based and under this limb~ the argument put forward was that the right to go abroad was not integrally connected with the freedom of speech and expression, nor did it partake of the same basic nature and character and hence it was not included in the right of free speech and expression guaranteed under Article 19(1) (a) and imposi-tion of restriction on it did not invo~ve violation of that Article. These were broadly the rival contentions urged on behalf of the parties and we shall now proceed to consider them.

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

The first question that arises for consideration on these contentions is as to what is the scope and ambit of the right of free speech and expression conferred under Article 19 (1) (a) . Has it any geographical limitations ? Is its exercise guaranteed only within the territory of India or does it also extend outside ? The Union of India contended that it was basic postulate of the Constitution that the fundamental rights guaranteed by it were available only within the territory of India, for it could never have been the intention of the constltution-makers to confer rights which the authority of the State could not eilforce. The mgument \vas stressed in the form of an 1nterrogation; how cou1d the fundamental rights be intended to be operative outside the territory of India when their exercise in foreign territory could not be protected by the State? Were the fundamental rights intended to be mere platitudes in so far as territory outside India is concerned ? What was the object of conferring the guarantee of fundamental rights outside the territory of India, if it could not be carried out by the State ? This argument, plausible thougl:) it may seem at first blush, is, on closer scrutiny, un-sound and must be rejected. When the constitution-makers enacted Part III dealing with fundamental rights, they inscribed in the Constitu~ tion certai~ basic rights which inher~ in every human being and which are esse.ntlal for uBfoldment and development of his full persona.lity. These nghts represent the basic values of civilised societf and· file constitution-makers declared that they shall be given place of pride in the Constitution and elevated t9 the status of fundamental rightS.

The long years of the freedom struggle inspired by the dynamic spiri-tualism of Mahatma Gandhi and in fact the entire cultural and spiritual history of India formed, the: background against which these rights were enacted and consequently, these rights were conceived by the constitu-tion-makers not in narrow lunited sense but in their widest sweep, for the aim and objective was to build ~ new social order where man will not be mere plaything in the bands of the State or few privileged persons but there will be full scope and opportunity for him to achieve the maximum development of his personality and the dignity of the individual will be fully assured. The constitution-makers recognised the spiritual dimension of man and they were conscious that he is an embodiment of divinity, what the great Upnis~adnic verse descriGes as "the children of immortality" and his mission in life is to realise the ultimate truth. This obviously he ca1111ot achieve unless he has certain basic freedoms, such as freedom of thought, freedom of conscience, freedom of speech and expression, personal liberty to move where he likes and so on and so forth. It was this vast conception of man in society and universe that animated the formulation of fundamental rights and it is difficult to believe that w·hen the constitution-makers declared these rights, they intended to confine them only within the territory of India. Take for example, freedom of speech and ~xpres­D sion. Could it have been intended by the canstitutiun-makers. that citizen should h~lVe this freedom in India but not outside ? Freedom of speech and expression carries with it the right to gather information as also to speak and express opeself at home and' abroad and to exchange thoughts and ideas with others not only in India but also outside. On what principle of construction and for what reason can this freedom be :E confined geographically within the limits of India? The constitution-makers have not chosen to limit the extent of this freedom by adding the words "in the territory of India"' at the end of Article 19(1)(aj. They have deliberately refrained from using any words of limitation. Then, are we going to supply these words and narrow down the scope and ambit of highly cherished fundamental right ? Let us not forget that what we are ~xpounding is constitution and what we are· called upon to interpret is provision conferring ~ fundamental right. ShaH we expand its reach and ambit or curtail it.? Shall we ignore the high and noble purpose of Part III conferring fundamental rights ? Would we not be stultifying the fUndamental right of free speech and expression by restricting it by territorial limitation. Moreove~r, it may be noted that only short while before. the Constitution was brought into force and whilst the constitutional debate was still going on, the Universal -G Declaration of Human Rights was adopted by the General Assembly of the United Nations on lOth December, 1948 and most of the funda-mental rights which we find included in Part III were recognised and adopted by the United Nations as the inalienable rigMs of man in the Universal Declaration of Human Rights. Article 19 of the Universal Declaration declared that "every one has right to freedom of opinion . and expression. this right includes freedom to hold opinions without ',H interference and to seek, receive and import information and ideas through any media and regardless of frontiers". (emphasis supplied). · This was the glorious declaration of the fundamental freedom of speech and expression noble in conception and universal in scope--which wa~

~ l>efore them when the constitution-makers enacted Article 19 ( 1 ) (a) . ~--. We have, therefore, no doubt that freedom of speech and expression _guaranteed by Article 19(1) (a) is exercisable not only in India but also outside.

It is true that the right of free speech and expression enshrined in Article 19(1)(a) can be enforced only if it' sought to .be violated by any action of the State and since State action cannot have any extra territorial operation, except perhaps incidentally in case of Parliamen-tary legislation, it is only violation within the territory of India that can be complained of by an aggrieved person. But that does not mean that the right of free speech and expression is exercisable only in India and not outside. State action taken within the territory of India can prevent or restrict exercise of freedom of speech and expression out- side India. What Article 19 ( 1) (a) does is to dedare freedom of speech and expression as fundamental right and to protect it against State action. The State cannot by any legislative or executive action interfere with the exercise of this right, except in so far as permissible under Article 19 (2). The State action would necessarily be taken in India but it may impair or restrict the exercise of this right elsewhere. Take for example case where journalist is prevented by law or an executive order from sending his despatch abroad. The law or the exec;utive order v.:ould operate on the journaiist in lndi.l but what it would prevent him from doing is to exercise his freedom of speech and expression abroad. Today in the modern world with vastly developed science and technology and higllly improved and sophisticated means of communication, person may be able to exercise freedom of speech and expression abroad by doing something within the country and if this is published or restricted, his freedom of speech and expression would certainly be impaired and Article 19 ( 1) (a) violated. There-fore, merely because State action is restricted to the territory of India, it does not necessarily follow that the right of free speech and expres-sion is also limited in jts operation to the territory of India and does not extend outside.

This thesis can also be substantiated by looking at th~ question from slightly different point of view. It is obvious that the right of free speech and expression guaranteed under Article 19(1) (a) can be subjected to restriction permissible un-der Article 19 (2). Such restric-tion, imposed by 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 case where, either under the Passports Act, 1967 or as condition in the Passport issued under it:, p.n arbitrary, unreason-able and wholly unjustifiable restriction is placed upon the citizen that he may go abroad, but he should not 'make any speech there. This would plainly be restriction which would interfere with his freedom of speech and expression outside the country, for, if valid, it would bind him wherever he may go. He wouJd be entitled to say that such restriction imposed by State action is impermissible under Article 19(2) and is accordingly void as being violative of Article 19(1 )(a) . 6-119 scr /78

- ___ _....

action sets up barriers to its citizen's freedom of cxprec:sion in any country in the world, it would violate Article 19 (1) (a) as much as tf it inhibited such expression :within the country. This conclasion would on parity of reasoning apply equally in relati~n to the fundamental right to practice any profession or to carry any occupation: trade or business guaranteed under Article 19 ( 1) (g) .

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

That takes us to the next question arising out ~f the second limb of the contention of the Government. Is the right to go abroad an essential part of freedom of speech and expression so that whenever there is violation of the former, there is impairment of the latter involv-ing infraction of Article 19 (1) (a)? The argument of the petitioner was that while it is true that the right to go abroad is not expressly included as fundamental right in any of the clauses of Article 19 ( 1) , its existence is necessary in order to make the express freedoms men-tioned in Article 19(1) meaningful and effective. The right of free speech and expression can have meaningful content and its exercise can be effective only if the right to travel abroad is ensured and with-out it, freedom of speech and expression would be limited by geographi-cal constraints. The impounding of the passport of person with view to preventing him from going abroad to communicate his ideas or share his thoughts and views with others or to express himself through song or dance or other forms and media of expression is direct interference with freedom of speech and expression. It is clear, so ran ~he argument, that in complex and developing society, where fast modes of transport and communication :h_ave narrowed down distances and brought people living in different parts of the world together, the right to associate with like minded persons in other parts of the globe for the purpose of advancing social, political or other ideas and poli-cies is indispensable and that is part of freedom of speech and expres-sion which cannot be effectively implemented without the right to go abroa<J. The right to go abroad, it was said, is peripheral right emanating from t1e right to freedom of speech and expression and is, therefore·, covered by Article 19(1) (a). This argument of the peti-tioner was sought to be supported by reference to some recent deci-sions of the Supreme Court of the United States. We shali examine these decisions little later, but let us first consider the question on 1rinciple.

We may begin the discussion of this question by first considering the nature and significance of the right to go abroad. It cannot be disputed that there must exist basically free sphere for man, resultina from the.' nature and dignity of the human being as the bearer of the highest spiritual and moral values. This basic freedom of the human being is expressed at various levels and is reflected in various . basic rights. Freedom to go abroad is one of such rights, for the nature of man is free agent necessarily involves free movement on his part. There can be no doubt that if the purpose and the sense of tl1e State is to protect personality and its development, as indeed it should be of any liberal democratic State, freedom to go abroad must be given its due place amongst the basic rights. This right is an important basic

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 fundamental right in Article 19 ( 1) , though there is view held by some constitutional jurists that this freedom is too basic and fundamental not to receive express mention in Part III of the Constitution. But it has been held by this Court in several decisions, of which we may mention only three, namely, Express Newspapers' case, Sakal Newspapers case and Bwnett Co~ernan & Co's case, that freedom of the press is part o~ the right of free speech and expression and is covered by Article 19(1) (a). The reason is that freedom of the press is nothing but an aspect of freedom of speech and expression. It partakes of the same basic· nature and character and is indeed an · integral part of free speech and expression and perhaps it would not be incorrect to say that it is the same right applicable in relation to the press. So also, freedom of circulation is necessarily involved in free-dom of speech and expression and is part of it and hence enjoys the protection of Article· 19(1) (a). Vide Ramesh Thappar v. State of Madras([1]). Similarly, the right to paint or sing or dance or to write poetry or literature is also covered by Article 19 (1) (a), because the common basic characteristic in all these activities is freedom of speech and expression, or to put it differently, each of these activities is an exercise of freedom of speech and expression. It would thus be seen that even if right is not specifically named in Article 19 ( 1) , it may still be fundamental right covered by some clause of that Article., if it is an integral part of named fundamental right or partakes of the same basic nature and character as that fundamental right. It is not enough that right claimed by the petitioner flows or emanates from narn~d fundamental right or that its existence is necessary in order to make the exercise of the named fundamental right meaningful and effective. Every activity which facilitates the exercise of named fundamental right is not necessarily comprehended in that fundamen-tal right nor can it be regarded as such merely because it may not be possible otherwise to effectively exercise that fundamental right. TI1e contrary construction would lead to incongruous re11ults and the entire scheme of Article 19 ( 1) which confers different rights and sanctions different restrictions according to different standards depending upon the nature of the right will be upset. What is necessary to be seen is, and that .is the test which must be applied. whether the right claimed br the petitioner is an integral part of named fundamental right or par-takes of the same basic nature and character as the named fundamental right so that the exercise of such right is in reality and substance nothing but an instance of the exercise of the named fundamental right. If this be the correct test, as we apprehend it is. the right to go abroad cannot in all circumstances be regarded as included in freedom of speech and expression. Mr. Justice Douglas said in Kent v. Dulles that "freedom of movement across frontiers in either direction. and inside frontiers as well, was part of our heritage. Travel abroad. like travel within the country, may be necessary for livelihood. It may be as close to the heart of the individual as the choice of what he eats,

(l) [1950J S.C.R. 594.

or wearst or reads. Freedom of movement is basic in our scheme of values." And what the learned Judge said in regard to freedom of movement in his country holds good in our country as well. Freedom of movement has been part of our ancient tradition which always upheld the dignity of man and saw in him the embodiment of the Divine. The Vedic seers knew no limitations either in the locomotion of the human body or in-the flight of the soul to higher planes of cons-B ciousness. Even in the post-Upnishadic period, followed by the Buddhistic era and the early cen~uries after Christ, the people of this country went to foreign lands in pursuit of trade and business or in search of knowledge or with view to shedding on others the light of knowledge imparted to them by their ancient sages and seers. India expanded outside her borders: her ships crossed the ocean and the fine superfluity of her wealth brimmed over to the East as well as to the West. He cultural messengers and envoys spread her arts and epics in South East Asia and her religious conquered China and Japan and other Far Eastern countries and spread westward as far as Palestlflc and Alexendria. Even at the end of the last and the beginning of the present century, our people sailed across the seas to settle down tn the African countries. Freedom of movement at home and abroad is p~lft of our heritage and, as already pointed out, it IS highly cherished right essential to the growth and development of the human personality and its importance cannot be over emphasised. But it cannot be said to be part of the right of free speech and expression. It is not of the same basic nature and character as freedom of speecb and expression. When person goes. abroad, he may do so for variety of reasons and it may not necessarily and always be for exercise of freedom of speech and expression. Every travel abroad is not an exercise of right of free speech and expression and it would 'not be correct to say that whenever there is restriction on the right to go abroad, ex necessitae it involves violation of freedom of speech and expression. It is no doubt true that going abroad may be necessary in given case for exercise of freedom of speech and expression, but that does not make it an inte-gral part of the right of free speech and expression. Every activity that may be necessary for exercise of freedom of speech and expression ' or that may facilitate such exercise or make it meaningful and effective cannot be elevated to the status of fundamental right as if it were part of the fundamental right of free speech and expression. Otherwise, practically every activity would become part of some fundamental right or the other and the object of making certain rights only as fundamental rights with different permissih]e restrictions would be frustrated.

The petitioner, however, placed very strong reliance on certain decisions of the United States Supreme Court. The first was the deci-sion in Kent v. Dulles (supra). The Supreme Court laid down in thjs case that the right to travel is guaranteed by the Fifth Amendment and held that the denial of passport by the Secretary of State was invalid because the Congress had not, under the Passport Act, 1926, authorised the Secre-tary of State to refuse passport on the ground of association with the communist party and refusal to file an affidavit relatin~ to that affiliation and such legislation was necessary before the Secretary of

State could refuse passport on those grounds. This decision was not concerned with the validity of any legislation regulating issue of pas,_ ports nor did it recognise the right to travel as founded on the first Amendment which protects freedom of speech, petition and assembly. We fail to sec how this decision can be of any. help to the petitioner.

The second decision on which reliance was placed on behalf of the petitioner was Apthekar v. Secretary of State([1]). The question which arose for determination in this case related to the constitutional validity of section 6 of the Subversive Activities Control Act, 1950. This section t>rohibited the use qf passports by communists following final registratiOn order by the Subversive Activities Control Board under section 7 and following the mandate of this section, the State Depart-ment revoked the existing passports of the appellants. After exhaus_t-ing all administrative remedies, the appellants sued for declarative and injunctive relief before the District Court which upheld the validity of the section. On direct appeal, the Supreme Court reversed the judgment by majority of six against three and held the section to be invalid. The Supreme Court noted first that the right to travel abroad is an important aspect of the citizens' liberty guaranteed by the Due Process Clause of the Fifth Amendment and section 6 substantially restricts that right and then proceeded to apply the strict standard of judicial · review which it had till then applied only in cases involving the .tJo-called preferred freedoms of the first Amendment, namely, that "a governmental purpose-may not be achieved by means which sweep unnecessarily broadly and thereby invade the area· of protected free-doms". The Supreme Court found on application of this test that the section was "overly broad and unconstitutional on its face" since it omitted any requirement that the individual should have knowledge of the organisational purpose to establish communist totaliatarian dicta-torship and it made no attempt to relate the restriction on travel to tne individual's purpose of the trip or to the security-sensitivity of the area to be visited. This decision again has no relevance to the present argu-ment except for one observation made by the Court that "freedom of travel is constitutional liberty closely related to rights of free· speech and association". But this observation also cannot help because the right to foreign travel was held to be right arising not out of the first Amendment but inferentiafiy out of the liberty guaranteed in the Fifth Amendment and this observation was meant only to support the exten-sion of the strict First Amendment test to case involving the right to go abroad.

1he last decision cited by the petitioner was Zemel V. Rusk(2). This case raised the question whether the Secretary of State was statu-t?~ily authorised to refuse to validate the passports of United States c1t1zens for travel to Cuba and if so, whether the exercise of such autho-rity. was constitutionally permiss~ble. The Court, by majority of six agamst three, held that the ban on travel to Cuba was authorised by the broad language of the Passport Act, 1926 and that such restric-tion was constitutional. Chief Justice Warren speaking on behalf or

(1) 378 U.S. 500 : 12 L. ed. 2d 992.

(2) 381 U. S. 1 : 14 L. ed. 2d 179.

the majority observed that having regard to administrative practice both before and after 1926, area restrictions were statutorily- autho-rised and that necessitated consideration of Zemel's c<1nstitut10nal objections. The majority took the view that freedom of movement was right protected by the 'liberty' clause of the Fifth Amendment and that the Secretary of State was justified in attempting to avoid serious international incidents by restricting travel to Cuba and summa~ rily rejected Zemel's contention that the passport denial infringed his First Amendment rights by preventing him from gathering first hand knowledge about Cuban situation. Kem v. Dulles and Aptheker v. Secretary of State were distinguished on the ground that "the refusal to validate appellant's passport does not result from any expression or association on his part : appellant is not being forced to· choose bet~ ween membership of an organisation and freedom to travel". Justices Douglas, Goldberg and Black dissented in separate opinioiJs. Since reliance was placed only on the opinion of Justice Douglas, we may confine our attention to that opinion. Justice Douglas followed the approach employed in Kent v. Dulles and refused to interpret the Pass·· port Act, 1926 as permitting the Secretary of State to restrict travel to Cuba. While doing so, the learned Judge stressed the relationship oE the right to travel to First Amendment rights. He pointed out : ''The right to know, to converse with others, to consult with them, to observe social, physical, political and other phenomena abroad as well as at home gives meaning and substance to freedom of expression and free-dom of the press. Without these contacts First Amendment rights suffer", and added that freedom to travel abroad is right "peripheral to the enjoyment of the First Amendment guarantees". He concluded by observing that "the right to travel is at the periphery of the First Amendment" and therefore "restrictions on the right to travel in times of peace should be so particularised that First Amendment right is not thereby precluded". Now, obviously, the majority decision is of no help to the petitioner. The majority rightly pointed out that in Kent v. Dulles and Aptheker v. Secretary of State there was direct interference with freedom of association by refusal to validate the passport, since the ap-pe1Iant was required to give up membership of the organisation if he wanted validation of the passport. Such was not the case in Zemel v. Rusk and that is why, said the majority it was not First Amendment right which was involved. 1t appeared clearly lo be the view of the majority that if the denial of passport directly affects First Amendment right such as freedom of expression or association as in Kent v. Dulles and Aptheker v. Secretary of State, it would be constitutionally invalid. The majority did not accept the contention that the right to travel for gathering information is in itself First Amendment right. Justice DoQglas also did not regard the right to travel abroad as First Amend-ment right but held that it is peripheral to the enjoyment of First Amendment guarantees because it gives meaning and substance to the First Amendment rights and without it, these rights would suffer. That is why he observed tow~ds t~e end that r~strictions on the . rig~t to travel should be so parttculanscd that Ftrst Amendment nght ts not precluded or in other words there is no. d~rect infringement of a. First Amendment right. If there is, the restnctlons would be conshtuho-nally invalid, but not otherwise. It is clear that Justice Doug1as nevermeant to lay down that right which is at the periphery of the First right under the First Amendment. The learned Judge did not hold the right to travel abroad to be First Amendment right. Both accordmg to the majority as also Justice Douglas, the question to be asked in each case is : is the restriction on the right to travel such that it directly interferes with First Amendment right. And that is the same test which is applied by this Court in determining infringement of funda-mental right.

We cannot, therc.fore, accept the lheory that pedpheral or con-comitant rie:ht which facilitates the exercise of named fundamenfal right o.r gives it meaning and substance or makes its exercise effective, is itself guaranteed right included within the named fundamental right. This much is cJear as matter of plain construction, but apart from that, there is 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 (I). The legls-lation which was challenged in that case was section 34A of the Bank-ing Companies Act and it was assailed as violative of Article 19 ( 1)-(c). The 'effect of section 34A was that no tribunal could compel tfie production and inspection of any books of account or other documents or require bank to furnish or disclose any statement or information if the Banking Company claimed such document or statement or informa-tion to be of confidential nature relating to secret reserves or to provi-sion for bad and doubtful debts. lf dispute was pending and qu~s-tion was raised whether any amount from the reserves or other provi-sions should be taken into account by tribunal, the tribunal could refer the matter to the Reserve Bank of India whose certificate as to the amount which could be taken into account, was made final and conclusive. Now, it was ·conceded that section 34A did not prevent the workmen from forming unions or place any impediments in their doing so, but it was contended that the right to form association pro-tected under Article 19(1) (c) carried with it guarantee that the asso-ciation shall effectively achieve the purpose for which it was formed without interference by law except on grounds relevant to the preserva-tion of public order or morality set out in Article 19 ( 4). In other words, the argument was that the freedom to form unions carried with it the concomitant right that such unions should be able to fulfil the object for which they were formed. This argument was negatived by unanimous Bench of this Court. The Court said' that unions were not restricted to workmen, that employers' unions may be formed m order to earn profit and that guarantee for the effective functioning of the unions would lead to the conclusion that ·restrictions on their right to earn profit could be pu~ only in the interests of public order or morality. Such construction would run basically counter to the-scheme of Artic1e 19 and to the provisions of Artitlc 19 (I) (c) and (6). The restrictions which could be imposed on the right to form an association were limited to restrictions in the interest of public order and morality. The restrictions, which could be imposed on the right to carry on any trade, business, pr.ofession or calling were reasonable res-

trictions in the public interest and if the guarantee for the effective functioning of an association was part of the right, then restrictions could not be imposed in the public interest on the business of an asso-ciation. Again, an association of workmen may claim the right or collective bargaining and the right to strike, yet the right to strike could not by implication be treated as part of the right to form association, for, if it were so treated, it would not be possible to put restrictions on f.hat right in the public interest as is done by the Industrial Disputes Act, which restrictions would be permissible under Article 19 ( 6) , but not under Article 19 ( 4) . The Court, therefore, held that the right to form unions guaranteed by Article 19 ( 1) (c) does not carry with it con-comitant right that the unions so formed should be able to achieve the purpose for which they are brought into existence, so that any inter-ference with such achievement by law would be unconstitutional unless the same could be justified under Article 19 ( 4) .

The right to go abroad cannot, therefore, be regarded as included in freedom of speech and expression guaranteed under Article 19 ( 1 J -(a) on the theory of peripheral or concomitant right. This theory has been firmly rejected in the All India Bank Employees Association's case apd we cannot countenance any attempt to revive it, as that wouJd 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 series of ever expend-ing concentric circles in the shape of rights concomitant to concomitant rights and so on, lead to an almost grostesque result". So also, for the same reasons, the right to go abroad cannot be treated as part of the right to carry on trade, business, profession or calling guaranteed under Article 19 ( 1) (g) . The right to go abroad is clearly not guaranteed right under any clause of Article 19(1) and section 10(3)(c) which authorises imposition of restrictions on the right to go abroad by impounding of passport cannot be held to be void as offending Article 19 ( 1) (a) or (g), as its direct and inevitable impact is on the rigltt to go abroad and not on the right of free speech and expression or the right to carry on trade, business profession or calling.

Constitutional requirement of an order under Section H) ( 3) (c).

But that does not mean that an order made under section 10(3) (c) may not violate Article 19(1)(a) or (g). While discussing the cons-titutional validity of the impugned order impounding the passport of the petitioner, we shall have occasion to point out that even where statutory provision empowering an authority to take action is constitu-tionally valid, nction taken under it may- offend fundamental right and in that event, though the statutory provision is valid, the action may be void. Therefore, even though section 10(3) (c) is valid, the question would always remain whether an order made under it is invalid as contravening fundamental right. The direct and inevitable effect of an order impounding passport may, in given case, be to abridge or take away freedom of speech and expression or the right to carry on profession and where such is the case, the order would be invalid, unless saved by Article 19(2) or Article 19(6). Take for-example, pilot with international flying licence. Inte~national flying is his profession and if his passport is impounded, it would directly interfere with his right to carry on his profession and unless the order can be justified on the ground of public interest under Article 19(6) it would be void as offending Article 19 ( 1) (g) . Another example may be taken of an evangelist who has made it mission of his life to preach his faith to people all over the world and for that purpose, set up institutions in different countries. If an order is made impounding his passport, it would directly affect his freedom of speech and expres-sion and the challenge to the validity of the: order under Articlo ~ 9 ( 1) fa) would be unanswerable unless it is saved by article 19(2). We have taken these two examples only by way of illustration. There may be many such cases1 where the restriction in}posed is apparently only on the right to go abroad but the direct and inevitable consequence is, t;..l interfere with the fr~edom of speech and expression or the right to carry on profession. musician may want to go abroad to sing, dancer to dance, visiting professor to teach and scholar to participate in conference or seminar. If in such case his passport is denied or impounded, it would directly interfere with his freedom of speech and expression. If correspondent of newspaper is given foreign assignment and he is refused passport or his passport is impoundoo, it would be direct interference with his freedom to carry on his profes-sion. Examples can be multiplied, but the point of the matter is that though the right to go abroad is not 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 profession so as to contravene Article 19(1) (a) or 19(1) (g). In snch case, refusal or impounding of passport would be invalid unless it is justified under Article 19(2) or Article 19(6), as the case may be. Now, passport .~' can be impounded under section 10(3) (c) if the Passport Authority deems it necessary so to do in the interests of the sovereignty and inte-grity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public. The first three categories are the same as those in Article 19(2) and each of them, though separately mentioned, is species within the broad genus of 1 "interests of the general public". The expression- "interests of the general public" is wide expression which covers within its broad sweep all kinds of interests of the general public including interests of the sovereignty and integrity of India, security of India and friendly rela-tions of India with foreign States. Therefore, when an order is made under sectlon 10 ( 3) (c), which is in conformity with the tc>rms of that provision, it would be in the interests of the general public and even if it restricts freedom to carry on profession, it would be protected by Article 19(6). But if an order made under section 10(3) (c) resfricts freedom of speech and expression, it would not be enough that it is made in the interests of the general public. It must fa11 within the terms of Article 19(2) in order to earn the protection of that Article. If it is made in the interests of the sovereignty and integrity of India or in the interests of the security of India or in the 'interests of friendly relations of India with any foreign country. it v:ould satisfy the tequire-ment of Article 19(2). But if it is made for any other interests of the general public save the interests of Hpublic order, decency or morality",

it would not enjoy the protection of Article 19 (2). There can be no ~~ubt that the interests of Pl!~!ic order, decency or morality are mterests of the general public and they would be covered by section 10(3) (c),,but the expression "!nterests of the general public" is, as already pomted out, much Wider expression and, therefore, in order that an ordr=L made under section 1 0( 3) (c) restricting freedom of speech and expression, may not faH foul of Article 19(1) (a), it is necessary that in relation to such order,. the expression "interests of the-general public" in section 10 ( 3) (c) must be read down so· as to be Jimited to interests of public order, decency or morality. If an order made under section 10 ( 3) (c) restricts freedom of speech and expres-sion, it must be made not in the interests of the general public in wider sense, but in the interests of public order, decency or morality, apart from the other three categories, namely, interests of the sovereignty and integrity of India, the security_ of India and friendly relations of India with any foreign country. If the order cannot be shown to have been made in the interests of public order, decency or morality, it would not only contravene Article 19(1) (a), but would also be out-side the authority conferred by section 10(3) (c).

ConstitutioHal rc~lidity of the impugned Order : We may now consider, in the light of this di.)cu::;sion, whether the· impugned Order made by the Central Government impounding the passport of the petitioner under section 10(3) (c) suffers from any constitutional or legal infirmity. The first ground of attack against the validity of the impugned Order was that it was made in contravention of the. rule of natural justice embodied in the maxim audi alteram partem and was, therefore, null and void. We have already examined this ground while discussing the constitutional validity of section 10(3) (c) with reference to Article 21 and shown how the statement made by the learned Attorney General on behalf of the Government or India has cured the impugned Order of the vice of non-complience with the audi alteram partem rule. It is not necessary to say anything more about it. Another ground of challenge urged on behalf of the petitioner was that the impugned Order has the effect of placing an unreasonable restriction on the right of free speech and expressrou guaranteed to the petitioner under Article 19 ( 1) (a) as also on the right to carry on the profession of journalist ..;onferred under Article: 19 (1) (g) , in as much as if seeks to impound the passport of the petitioner indefinitely, without any limit of .time, on the mere likelihood of her ~cing required in connection with the Commission of Inquiry headed by Mr. Justice J. C. Shah. It was not competent to the Central Government, it was argued, to express an opinion as to whether the petitioner is likely to be required in connection with the proceedmg before the Commission of Inquiry. That would be matter within the judgment of th~ Commission of Inquiry and it would be entirely for the Commission of Inquiry to decide whether or not her presence is necessary in the proceeding before it. The impugned Order impound-H in()' the passport of the petitioner on the basis of mere opinion by thG-c;ntral Government that the petitioner is likely to be required m con-nection with the proceeding before the Commission ~f I~quiry was,. in the circumstances, clearly unreasonable and hence v1olatrve of Arttcle

I _,..__'

__ .A,... ..

19(1) (a) and (g). This ground of challenge was vehemently pressed -on behalf of the petitioner and supplemented on behalf of Adil Sahariar who intervened at the hearing of the writ petition, but we do not think there is any substance in it. It is true, and we must strn ightawa y con--cede it, that merely because statutory provtsfon empowering an autho-rity take action in specified circumstances is constitutionally valid a~ not being in conflict with any fundamental rights, it does not give carte blanche to the authority to make any order it likes so long as it 8 is within the parameters laid down by the statutory provision. Every order made under statutory· provision must not only be within the authority conferred by the statutory provision, but must also stand the test of fundamental rights. Parliament cannot be presumed to have intended to confer power on an authority to act in contravention of fundamental rights. It is basic constitutional assumption underlying every statutory grant of power that the authority on which the power is conferred should act constitutionally and not in violation of any funda· mental rights. This would seem to be elementary and no authority is necessary in support of it, but if any were needed, it may be found in the decision of this Court in Narendra Kumar &: Ors. v. The Union of India & Ors.e). The question which arose in that case was whether clauses (3) and ( 4) of the Non-ferrous Metal Control Order, 1958 made under section 3 of the Essential Commodities Act, 1955 were constitutionally valid. The argument urged on: behalf of the petitioners was that these clauses imposed unreasonable restriction:; of the funda-mental rights guaranteed under Articles 19( l) (f) and (g) and in answer to this argument, apart from merits, contention of prelimi· nary nature was advanced on behalf of the Government that "as the petitioners have not challenged the validity of the Essential tommodi-ties Act and have admitted the power of the Central Government !o make an order in exercise of the powers conferred by section 3 of the Act, it is not open to the Court to consider whether the raw made by the Government in making the non-ferrous metal control order-vio-lates any of the fundamental rights under the Constitution". It was urged that so long as the Order does not go beyond the provisions in section 3 of the Act, it "must be held to be good and the consideration of any question of infringement of fundamental rights under the Con-p stitution is wholly beside the point". This argument was characterised by Das Gupta, J., speaking on behalf of the Court as "an extravagant argumenC' and it was said that "such an extravagant argument has merely to be mentioned to deserve rcjectionH. The learned Judge pro-ceeded to state the reasons for rejecting this argument in the following words:

"If there was any reason to think that section 3 of the Act confers on the Central Government power to do anything which is in conflict with the constitution-anything which violates. any of the fundamental rights conferred by the Cons-titution, that fact alone would be sufficient and unassai1ab1e ground for holding that the section itself is void being ultra vires the Constitution. When, as in this case, no challenge is made that section 3 of the Act is ultra vires the Constitu-

(1) [1960) 2 S.C.R. 375.

the passport is in the interests of public order, decency or morality in ..... • the and first case, and the restriction thus imposed is reasonable in the interests of the general public so as to come within the in the second, protection of Article 19(2) or Article 19(6). That ist however, not the question before us at present.

We may observe that if the impugned Order impounding the pass-port of the petitioner were violative of her right to freedom of speech and expression or her right to carry on her profession as journalist, it would not be saved by Article 19 ( 2) or Article 19 ( 6) , because the impounding of the passport for an indefinite length of time would clearly constitute an unreasonable restriction. The Union contended that though the period for which the impugned Order was to operate was not sp<.:cified in so many terms, it was clear that it was intended to be co·terminous with the duration of the Commission of Inquiry, since the reason for impounding was that the presence of the petitioner was likely to be required in connection with the. proceedings before the Com-mission of Inquiry and the term of the Commission of Inquiry being limited upto 31st December, 1977, the impoundig of the passport could not continue beyond that date and hence it would not be said that the impugned Order was to operate for an indefinite period of time. Now, it is true that the passport of the petitioner was impounded on the ground that her presence was likely to be required in connection with the proceeding before the Commission of Inquiry and the initial time limit fixed for the Commission of Inquiry to submit its report was 31st December, 1977, but the time. limit could always be extended by the Government and the experience of several Commissions of Inquiry set up in this country over the last twenty-five years shows that hardly any Commission of Inquiry has been able to complete its report within the originally appointed time. Whatever might have been the expectation in regard to the duration of the Commission of Inquiry headed by Mr. Justice Shal1 at the time when the 4npugned Order was made, it is now clear that it has not been possible for it to complete its labours by 31st December, 1977 which was the time limit originally fixed and in fact its term has been extended upto 31st May, 1978. The period for which the passport is impounded cannot, in the circumstances, be said to be definite and certain and it may extend to an indefinite point of time. This would clearly make the impugned order unreasonable and the learned Attorney General appearing on behalf of the Central Government, therefore, made statement that in case the decision to impound the passport of the petitioner is confirmed by the Central Government after hearing the petitioner, "the duration of the impound-ing will not exceed period of six months from the date of the decision that may be taken on the petitioner's representation". It must be said in fairness to the Central Government that this was very reasonable stand to adopt, because in democratic society governed by the rule of law, it is expected of the Government that it should act not only cons-titutional and 1ega1ly but also fairly and justly towards the citizen. We hope and trust that in future also whenever the passport of any person is impounded under section 10(3) (c), the impounding would be for specified period of time which is not unreasonably long even though no contravention of any fundamental right may be invol~ed.

The last argument that the impugned Order could- not, consistently with Article 19 ( 1) (a) and (g), be based on mere opinion of the Central Government that the presence of the petitioner is likely to be required in connection with the proceeding before the Commission of Inquiry is also without force. It is true that ultimately it is for the Commission of Inquiry to decide whether the presence of the petitioner is required in order to assist it in its fact finding mission, but the Central :B Government which has constituted the Commission of Inquiry and laid down its terms of reference would certainly be able to say with reason-able auticipation whether she is likely to be rcquir.;d hy the Commis-sion of Inquiry. Whether she is actually required would be for the Commission of Inquiry to decide, but whether she is likely to be requir-ed can certainly be judged by the Central Government. When the Central Government appoints Commission of Inquiry, it does not act in vacuum. It is bound to have some material before it on the basis of which it comes ot decision that there is defini tc matter of public importance which needs t obe inquired into and appoints Commis-sion of Inquiry for that purpose. The Central· Government would, therefore, be in position to say whether the petitioner is likely to be .required in connection with the proceeding before the Commission of Inquiry. It is possible that ultimately when the Commission of Inquiry 'D proceeds further with the probe, it may find that the presence of the petitioner is not required, but before that it would only be in the stage of likelihood and that can Jegitimately be left to the judgml:nt of the Central Government. The validity of the impugned Order cannot, therefor~, be assailed on this ground, nad the challenge based on Arti-cle 19(1) (a) and (g) must fail.

Whether the impugned Order is inter vires sec. 10(3) (c) ?

The last question which remains to be considered is whether the impugned Order is within the authority conferred by section 1 0 ( 3) (c) . The impugned Order is plainly, on the face of it, purported to be made in public interest, i.e., in the interests of the gener!!.l public, and there-fore, its validity must be judged on that footing. Now it is .Jlwious that on plain nhat~1ral codnstruc~ion ohf shection 1 0( 3) (c), it is left to the Passport Aut onty to etenmne w et er it is necessary to impound passport in the interests of the general public. But an order made by the Passport Authority impounding passport is subject to judicial review on the ground that the order is mala fide} or that the reasons ·for making the order are extraneous or they have no relevance to the interests of the general public or they cannot possibly support the -G making of the order in the interests of the general public. It was not disputed on behalf of the Union, nnd indeed it could not be in view of section lOt sub-section (5) that, save in certain exceptional cases, of which this was admittedly not one, the Passport Authority is bound to give reasons for making an order impounding passport and though in the present case, the Central Government initially declined to give rca-sons claiming that it was not in the interests of the genera_! public to do so, it realised the utter untenability of this position when it came to file the affidavit in reply and disclosed the reasons which were recorded at the time when the impugned order was passed. These reasons were that, according to the Central Government, the petitioner was involved

.~~ ·\~ ·.--. ,

in matters coming within the purview of the Commissions of Inquiry constituted by the Government of India to inquire into excesses com-mitted during the emergency and in respect of matters concerning Maruti and its associate companies and the Central Government was of the view that the petitioner should be available in India to give evidence before these Commissions of Inquiry and she &hould have an oppor-tunity to present her views before them and according to report received by the Central Government on that day, there was likelihood of her leaving India. The argument of the petitioner was that these reasons did not justify the making of the impugned Order in the interests of the general public, since these reasons had no reasonable nexus with the interests of the general public within the meaning of that expression as used in section 10(3) (c). The petitioner contend-ed that the expression ''interests of the general public" must be cons-trued in the context of the perspective of the statute and since the power to issue passport is a. power related to foreign affairs, the '·inte-rests of the general public" must be understood as referable only to matter having some nexus with foreign affairs a'nd it would not be given wider meaning. So read, the expression "interests of the general public·'" could not cover ·situation) where the presence of person required to give evidence before Commission of Inquiry. This argument is plainly erroneous as it seeks to cut down the width and amplitude of the expres-sion "interests of the general public", an expression which has well recognised legal connotation and which is to be found in Article 19(5) as well as artiCle 19( 6). It is true, as pointed out by this Court in· Rohtas Industries Ltd. v. S. D. Agarwal & Anr.(l), that "there is always perspective within which statute is intended to operate", but that does not justify reading of statutory provision in 'manner not warranted by its language or narrowing down its scope and meaning by introducing limitation which has nq basis either in the language or in the context of the statutory provision. Moreover, it is evident from clauses (d), (e) and (h) of section 10(3) that there are several grounds in this section which do not relate to foreign affairs. Hence we do not think the petitioner is justified in seeking to limit the expres-sion. "interests of the general public" to matters relating to foreign affarrs.

The petitioner then contended that the requirement that she should b~ available for _giving ~vidence b~fore the Commissions of Inquiry drd not warrant the makmg of the Impugned Order "in the interests of th~ general public". Section 1~(3), ac7ording to the petitioner, con-tam~d clau~es (e) and (~) de~lmg specifically with cases where per-son ts reqwred m ~onnect1~~ wrth legal proceeding and the enactment of these two specific proVISIOns. dearly indicated the leoislative intent that the general po'!V~f in section 10(3) (~) under the gr;und "interests of the ge?eral public was not meant to be exercised for impounding passpor~ m cases where person is required in connection with {egal proceedmg. The Central Government was, therefore not entitled to resort to this general power under section 10(3) (c) f~r the purpose of impounding the passport of the petitioner on the ground that she was

(l) [1969} 3 S.C.R. 108 at 128.

7-119 SCI{78

required to give evidence before the Commissions of Inquiry. The power to impound the passport of the petitioner in such case was either to be found in section 10(3) (h) or it did not exist at :111. This .argument is also unsustainable and must be rejected. It seeks to rely on the maxim expressio unius exclusio ulterius and proceeds on the basis that clauses (e) and (h) of section 10(3) are exhaustive of cases where person is required in connection with proceeding, whether before court or Commission of Inquiry, and no resort can be had to the general power under section 10(3) (c) in cases where person is required in connection with proceeding before Commission of Inquiry. But it must be noted that this is not case where the maxim expressio unius exclusio ulterius has any applicaton at all. Section 10(3) (e) deals with case where proceedings are pending before criminal court while section 10(3) (h) contemplates situation where warrant or summons for the appearance or warrant for the arrest, of the holder of passport has been issued hy court or an order prohi-biting the departure from India of the holder of the passport has been made by any such court. Neither of these two provisions deals with case where proceeding is pending before Commission o£ Inquiry and the Commission has not yet issued summons or warrant for the attendance of the holder of the passport. We may assume for the pur-pose of argument that Commission of Inquiry is 'court' for the purpose of section 10(3) (h), but even so, case of this kind would not be covered by section "1 0 ( 3) (h) and section 1 0 ( 3) (e) would in any case not have application. Such case would clearly fall within the general power under section 10(3) (c) if it can be shown that the requirement of the holder of the passport in connection with the pro-E ceeding before the Commission of Inquiry is in the interests of the gene-ral pub lie. It is, of course, open to the Central Government to apply to- the Commission of Inquiry for issuing summons or warrant, as the case may be, for the attendance of the holder of the passport before the Commission and if 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 summons or warrant has arrived, the Central Government cannot impound the passport of person, if otberwis~ it can be shown to be in the. interests of the general public to do so. Section 10 ( 3) (e) and (h) deal only with two specific kinds of situations, but there may be myriad other situations, not possible to anticipate or categorise, where public interests may require that the passport sl10uld be impound-ed and such situation would be taken care of under the gen·~ral provi-G sian enacted in section 10(3) (c). It is true that this is rather dras-tic power to interfere with basic human right, but it must be remem-bered that this power has been conferred by the legislature in public interest and we have no doubt that it wi11 be sparingly used and that too, with great care and circumspection and as far as possible, the pass-port of person will not be impounded merely on the ground of his being required in connection with proceeding. unless the case is brought within section 10(3) (e) or section 10(3) (h). We may echo the sentiment in Lord Denning's closing remarks in Ghani v. JonesU)

The This

(l) [1970] 1 Q. B. 693.

where the learned Master of the Rolls said : "A man's liberty of move-ment is regarded so highly by the law of England that it is not to be hindered or prevented except on the .severest grounds". This liberty is prized equally high in our country and we are sure that Govern-ment committed to basic human values will respect it.

We must also deal wit~ one other contention of the petitioner, though we must confess that it was little difficult for us to appreciate it. The petitioner urged that in order that passport may be impound-ed under section 1 0( 3) (c), public interest must actually exist in pre-senti and mere likelihood of public interest arising in future would be no ground for impoundig passport. We entirely agree with the peti-tioner that an order impounding passport can be made by the Pass-port Authority only if it is actually in the interests of the general public to do so and it is not enough that the interests of the general public may be likely to be served in future by the making of the order. But here in the present case, it was not merely on the future likelihood of the interests of the general public advanced that the impugned order was made by the Central Government. The impugned Order was made because, in the opinion of the Central Govermfient, the presence of the petitioner was necessary for giving evidence before the Com-missions of Inquiry and according to the report received by the Cent-ral Government, she was likely to leave India and that might frustrate or impede to some extent the inquiries which were being conducted by the Commissions of Inquiry.

Then it was contendec'l on behalf of the petitioner that the Minister for External Affairs, who made the impugned Order on behalf of the Central Government, did not apply his mind and hence the impugned Order was bad. We find no basis or justification for this contention. It has been stated in the affidavit in reply that the Minister for External Affairs applied his mind to the relevant material and also to the con-fidential information received from the intelligence sources that there was likelihood of the petitioner attempting to le~ye the country and then only he made the impugned Order. In fact, the Ministry of Home Affairs had forwarded to the Ministry of External Affairs as far back as 9th May, 1977 list of persons whose presence, in view of their involvement or connection or position or past antecedents, was likely to be required in connection with inquiries to be carried out by the Commissions of Inquiry and the name of the petitioner was included in this list. The Home Ministry had also intimated to the Ministry of External Affairs that since the inquiries were being held by the Com-missions of Inquiry in public interest. consideration of public interest would justify recourse to section 10(3) (c) for impounding the pass-ports ~f the ~rsons menti(:med in this list. . 'fhis note of the Ministry of Home Affatrs was constdered by the Mm1ster for External Affairs and despite the suggestion made in this note, the passports of only ~Ieven persons, out of those mentioned in the list, were ordered to be un~~unded anq no action was taken in regard to the passport of the petitioner. It 1s only on 1st July, 1977 when the Minister for Exter-~al Affairs received confidential information that the petitioner was I1kely to attempt to leave the country that, after applying his mind to the relevant material and taking into account confidential information,

he made the impugned Order. It is, therefore, not possible to say that the Minister for External Affairs did not apply his mind and mechanically made tpe impugned Order.

The petitioner lastly contended that it was not correct to say that the petitioner was likely to be required for giving evidence before the Commissions of Inquiry. The petitioner, it was said, had nothing to do with any emergency excesses nor was she connected in any manner with Maruti or its associate concerns, and, therefore, she could not possibly have any evidence to give before the Commissions of Inquiry. But this is not matter which the court can be called upon to inv~sti­gate. It is not for the court to decide whether the presence of the petitioner is likely to be required for giving evidenc.! before <he Com-missions of Inquiry. The Government, which has instituted the Com-e missions of Inquiry, would be best in position to know, having re-gard to the material before it, whether the presence of the petitioner is likely to be required. It may be that her presence may ultimately not be required at all. but at the present stage, the question ~s ·mly whether her presence is likely to be required and so Far that is concerned, we do not think that the view taken by the GQvernment can be re-garded as so unreasonable or perverse that we would strike down the impugned Order based upon it as an arbitrary exercise of power.

We do not, therefore, see any reason to interfere with the impugned Order made by the Central Government. \Ve, however, wish to utter word of caution to the Passport Authority while exercising the power of refusing or impounding or c~ncelling passport. The Passport Authority would do well to remember that it is basic human right recognised in Article 13 of the Universal Declaration of Human Rights with which the Passport Authority, is ihterfering when it i efuses or impounds or cancels passport. It is highly valuable right which is 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 Government constitutionally committed to uphold free-dom ~nd liberty but it is well to remember. at all times, that eternal vigilance is the price of liberty, for history shows that it is always subtle and insidious encroachments made ostensibly for 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 lYE!~, J.-My concurrence with the argumentation and conclusion contained in the judgment of my learned brother Bhagwati J. is sufficient to regard this supplementary, in one sense. mere redund-ancy. But in another sense not, where the vires of law, which arms the Central Executive with wide powers of potentially imperilling some

of the life-giving liberties of the people in pluralift system iike ours, is under challenge; and more so, when the ground is virgin, and the subject is of growing importance to more numbers as Indians acquire habits of trans-national travel and realise the fmits ')f foreign tours, reviving in modem terms, what our forbears effectively did to put Bharat on the cosmic cultural and commercial map. India is India because Indians, our ancients, had journeyed through the wide world for commerce, spiritual and material, regardles's of physical or mental frontiers. And when this precious heritage of free trade in ideas and goods, association and expression, migration and hom~-coming, now crystallised in Fundamental Human Rights, is alleged to be hamstrung by hubristic authority, my sensitivity lifts the veil of silence. Such is my justification f(}r breaking judicial lock-jaw to express sharply, the juristic perspective and philosophy behind the practical necessities and possible dangers that society and citizenry may face if the clauses of our Consti-tution are not bestirred into court action when charge of unjustified handcuff~ on free speech and unreasonable fetters on right of exit is made through the executive power of passport impoundment. Even so, in my separate opinion, I propose only to paint the back-drop with broad brush, project the high points with bold lines and touch up the portrait drawn so well by brother Bhagwati J, if I may colourfuJly, yet respectfuUy, endorse his judgment.

Remember, even democracies have experienced executive lawless-ness and eclipse of liberty on the one hand and · 'subversive' use of freedoms by tycoons and saboteurs on the other, and then the summons to judges comes from the Constitution, over-riding the necessary defer-ence to government and seeing in perspective, and overseeing in effective operation the enjoyment of the 'great rights'. This Court lays down the law not pro tempore but lastingly.

Before us. is legislation regulating tra,vel abroad. Is it void in part or over-wide in terms ? 'Lawful' illegality becomes the rule, if 'lawless' legislation be not removed. In our jural order if statute i's void, must the Constitution and its sentinels sit by silently, or should the lines of legality be declared with clarity so that adherence to valid norms becomes easy and precise ?

Is it void in

We are directly concerned, as fully brought out in Shri Justice Bhagwati's judgment, with the indefinite immobili~ation of the peti-tioner's passport, the reason for the action being strangely veiled from the victim and the right to voice an answer being suspiciously withheld from. her~ the s.urprising secrecy being labelled, 'public interest'. Paper curtams wear Ill on good governments. And, cutely to side one's grounds under colour of statute, is too sphinx-like an art for an open society and popular regime. As we saw the reasons which the learned ~ttorney General_ so !lnhesitatingly disclosed, the question arises : . where\o~e _are t~ese things hid?'. ~e catch-all expression 'public mt~rest IS sometunes the easy temptatiOn to cover up from the public wh1ch they have right to know, which appeals in the short run but aye~tges. in t~e long run ! Since the o~ly passport to this Court's juris-dictw~ m this branch of passport Jaw IS the breach of basic freedom, what 1s the nexus between passport and Part III right ? What are

the amt>ience and amplitude, the desired effect and direct object of the key provisions of the Passports Act, 1967 ? Do they crib or cut down unconstitutionally, any of ~he guarantees under Arts. 21, 19 and 14 ? Is the impugned section 10, especially s. 10 ( 3) (c), capable of circums-cription to make it accord with the Constitution ? Is any part ultra vires, and why? Finally, granting the Act to be good, is the Impound-ing order bad ? Such, in the Writ Petition, is the range of is'sues regaled at the bar, profound, far-reaching, animated by comparative scholarship and fertilised by decisional erudition. The frontiers and funeral of freedom, the necessities and stresses of national integrity, security and sovereignty, the interests of the general public, public order and the· like figure on occasions as forensic issues. And, in such situations, the contentiou-s quiet of the court is the storm-centre of the nation. Verily, while hard cases tend to make bad law, bad cases tend to blur great law and courts must beware.

The centre of the stage in legal debate on life and liberty must ordinarily be occupied by Art. 21 of our Paramount Parchment which,. with emphatic brevity and accent on J'egality, states the mandate thus :

"21. Protection of life and personal l.iberty.-

No person shall be deprived of his life or personal liberty except according to procedure established by law."

Mkro~phrasts used in National Charters spread intu rnacro-meanings with the lambent light of basic law. For our purposes, the key concepts are 'personal liberty' and 'procedure established by law'. Let us grasp the permissible restraints on personal liberty, one of the facets of which is the right of exit beyond one's country. The sublime sweep of the-subject of personal liberty must come within our ken if we are to do justice to the constitutional limitation's which may, legitimately, be im-posed on its exercise. Speaking briefly, the architects of our Founding Document, (and their fore-runners) many of whom were front-line fighters for national freedom, were lofty humanists who were profoundly spiritual and deeply secular, enriched by vintage values and revolu-F tionary urges and, above all, experientially conscious of the deadening impact of the colonial screening of Indians going abroad and historically sensitive to the struggle for liberation being waged from foreign lands. And their testament is our asset.

What is the history, enlivened by philosophy, of the law of travel ? The roots of our past reach down to travels laden with our culture and commerce and its spread-out beyond the oceans and the mountains, so much so our history unravels exchange between India and the wiaer world. This legacy, epitomi'scd as 'the glory that was Ind', was partly the product of travels into India and out of India. It was the two~way traffic of wpich there is, testimpny inside in Nalanda. and outside, even in Ulan Bator. Our' literature and arts be-ar immortal testimony to our thirst for travel and even our law, over two thousand years ago, had canalised travels abroad. For instance, in the days of Kautilya (BC 321-296) there was Superientendent of Passport's 'to issue passes at the rate of masha pass'. Further details on passport law are found in Kautilya's 1tha,s·itstra. ·

Indeed, viewing the subject from the angle of geo·cultural and legal anthmpology and current history, freedom of movement and its off-shoot-the institution of passport-have boon there through the Helle-nic, !<oman, [§raelite, Chinese, Persian and other dvilisations. Socrates, in his dialogue with Crito, spoke of personal liberty. He regarded the right of everyone to save his country as an attribute of personal liberty. He made the laws speak thus :

"We further proclaim to any Athenian by the liberty which we allow him, that if he does not like us when he has become of age and has seen the ways of the city, and made our ac-quaintance, he may go where he please and take his goods with him. None of our laws will forbid him, or interfere with him. Anyone who does not like us and the city, and who wants to emigrate to colony or to any other city may go where he likes, retaining his property."

(Plato, Dialogues)

The Magna Carta, way back in 1215 A.D. on the greens of Runnymede, affirmed the freedom to move beyond the borders of the kingdom and, by the time of Blackstone, 'by the common law, every m~n may go out of the realm for whatever cause he pleaseth, without obtaining the king's leave'. Lord Diplock in D.P.P. v. Shagwan([1]) stated that 'Prior to .... 1962 .......... ' British subject had the right at common law to enter the United Kingdom without let or hindrance when and where he pleased and to remain there as long as he liked' (International & Comparative Law Quarterly, Vol. 23, July 1974, p. 646). As late as Gharti v. Jones([2]) l.:ord Denning asserted : 'A man's liberty of movement is regarded so highly by the. Law of England that it is not to be hindered or prevented except on the ·surest grounds' (I & C. L. Qrly, ibid. p. 646). In 'Freedom under the Law" Lord Denning has observed under the sub-head 'Personal Freedom' :

"Let me first define my terms. By personal freedom I mean the freedom of every law-abiding citizen to think what he will, to say what he will, and to go where he will on his lawful occasions without let or hindrance from any other per-sons. Despite all the great changes that have come about in the other freedoms, this freedom has in our country remained intact."

In 'Freedom, The Individual and the Law', Prof. Street has expre·ssed like view. Prof. H.W.R. Wade and Prof. Hood Philips echo this liberal view. (See Int. & Cornp. L.Q. ibid 646). And Justice Douglas, in the last decade, refined and re-stated, in classic diction, the basics of travel jurisprudence in Apthekar([3]).

''The freedom of movement is the very essence of our free society, setting us apart. Like the right of assembly and the right of association, it often makes all other rights meaningful

(1) [1972] A.C. 60.

(2) [1970] 1 Q. B. 693, 709. 3) 378 u.s. 500.

country as near communist. Earl Warren has, in his autobiography, recorded :

"Senator Joseph McCarthy once said on the floor of the Senate, 'I will not say that Earl Warren is Communist, but I will ·say he is the best friend of Communism in the United States." '

There has been built up lovely American legal literature on passport history to which I will later refer. British Raj has frowned on foreign travels by Indian patriotic suspects and instances from the British Indian Chapter may abound.

Likewise, the Establishment, in many countries has used the pass-port and visa system as potent paper curtain to inhibit mu·strious writers, outstanding statesmen, humanist churchmen and renowned scientists, if they are dissenters', from leaving their national frontiers. Absent forensic sentinels, it is not unusual for people to be suppressed by power in the name of the people. The politics of passports has often tried to bend the jurisprudence of personal locomotion .to serve its interests. The twilight of liberty must affect the thoughtways of judges.

Things have changed, global awareness, in grey hues, has dawned. The European Convention on Human Rights and bilateral understand-ings have made headway to widen freedom of travel abroad as inte-gral to liberty of the person (Fourth Protocol). AnJ the Universal Declaration of Human Rights bas proclaimed in Art. 13 :

" ( 1) Everyone has the right to freedom of movement and residence within the borders of each State.

(2) Everyone has the right to leave any country, includ-ing his own, and to return to his country."

This right is yet inchoate and only lays the base. But, hopefully, the loftiest towers rise from the ground. And descite desfrtJctive v1ars and exploitative trade, racial hatreds and credal quarrels, colonial sub-jections and authoritarian spells, the world has advanced because of gregarious men adventuring forth, taking with them their thoughts and fee1ings on trans-national scale. This human planet is our single home, though geographically variegated, culturaiiy diverse, politically pluralist, in science and technolqgy competitive and cooperative, in arts and life-styles lovely mosaic and, above all, suffused with cosmic consciousness of unity and inter-dependence. This· Grand Canyon has been the slow product of the perennial process of cultural interaction, intellectual cross-fertilization, ideological and religious con-frontations and meeting and mating of social systems; and the well-spring i~ the wanderlust of man and his wondrous spirit moving towards united human order founded on human rights. Human advance has been promoted through periods of pre-history and hi'story by the flow of fe11owmen, and the world owes much to exiles and emigres for libera-tion, revolution, scientific exploration and excellence in arts. Stop this creative mobility by totalitarian decree and whole communities and cultures will stagnate and international awakening so vital for the sur-vival of honw sapiens wither away. ·To argue for arbitrary inhibition of travel rights under executive directive or legislative tag i's to invite

and accelerate future shock. Thi's broader setting is necessary if we are to view the larger import of the right to passport in its fundamental bearings. It is not law alone but life's leaven. It is not casual facility but the core of liberty.

Viewed .f!rom another angle, travel abroad is cultural enrich-ment which enables one's understanding of one's own country in better 8 light. Thus it serves national interest to have its citizenry ·see other countries and judge one's country on comparative scale. Rudyard KipFng, though with an impe·rial ring, has aptly said :

"Winds of the World, give answer They are whimpering to and fro And what should they know of England Who only England know ?"

(The English Flag)

Why is the right to travel all over the world and into the beyond human right and con~titutional freedom ? Were it not so, the human heritage would have been more hapless, the human family more divided, the human order more unstable and the human future more murky.

The Indian panorama from the migrant yore to tourist flow is an expression of the will to explore the Infinite, to promote understanding of the universe, to export human expertise and development of every resource. Thus humble pride of patriotic heritage would have been pre-empted had the ancient kings and mediaval rulers banished foreign travel as our imperial masters nearly did. And to look at the little letters of the text of Part III de hors the Discovery of India and the Destiny of Bharat or the divinity of the ·soul and the dignity of the person highlighted in the Preamble unduly obsessed with individual aberrations of yesteryears or vague hunches leading to current fears, is parsimonious exercise in constitutional percepticn.

Thus, the inspirational background, co'smic perspective and inherit-ed ethos of the pragmatic. visionaries and jurist-statesmen. whO' draw up the great Title Deed of our Republic must illumine the sutras of Articles 21, 19 and 14. The fascist horror of 'Norld War II burnt into· our leaders the urgency of inscribing indelibly into our Constitution those values sans which the dignity of man suffers total eclipse. The Uni-G versal Declaration of Human Rights, the resurgence of international fellowship, the vulnerability of freedoms even in democracies and the rapid development of an integrated and intimately interacting 'one world' poised for peaceful and progressive intercour'se conditioned their thought processes. The bitter feeling of the British Raj trampling u~der foot s'!-varaj -the birtb-right of every Indian- affected their celebrations. The hidden divinity in every human entity creatively impacted upon our founding fathers' mentations. The mystic chords of ancient memory and the modern strands of the earth's indivisibility, the pathology of provindalism. feudal backwardness, glaring inequality :md bleeding communalism, the promotion of tourism, of giving and taking know-

how, of studying abroad, and inviting scholars from afar-these and other realistic considerations gave tongue to those hallowed human rights fortified by the impregnable provisions of Part III. Swami Vivekananda, that saintly revolutionary who spanned East and West, exhorted, dwelling on the nation's fall of the last century :

"My idea as to the key-note of our national downfall is that we do not mix with other nations-that is the one and sole cause. We never had the opportunity to compare notes. We were Kupa-Mandukas (frogs in well).''

One of the great causes of India's misery and downfall has been that she narrowed herself, went into her shell, as the oyster does, and refused to give her jewels and her treasures to the other races of mankind, refused to give the life giving truth to thirsting nations outside the Aryan fold. That has been the one great cause, that we did not go out, that we did not compare notes with other nation·s-that has been the one great cause of our downfall, and every one of you knows that that little stir, the little life you see in India, begins from the day when Raja Rammohan Roy broke through the walls of this exclusiveness. Since that day, history in India has taken an-other turn and now it is growing with accelerated motion. If \Ve have had little rivulets in the past, ~.kluges a.re coming, and none can resist them. Therefore, we must go out, and the secret of life is to give and take. Are we to take always, to sit at the feet of the westerners to learn everything, even reli-gion ? We can learn mechanism from them. We can learn many other things. But we have to teach them something .... Therefore we must go out, exchange our spirituality for any-thing they. have to give us; for the marvels of the region of spirit we \vill exchange the marvels of the region of matter .... There cannot be friendship without equality, and there cannot be equality when one party is always the teacher and the other party sits always at his feet .... If you want to become equal with the lc'nglishman or the American, you will have to teach as well as to learn, and you have plenty yet to teach to the world fc•r centuries to come."From the point of view of comparative law too, the position is well established. For, one of the essential attributes of citizenship, says Prof. Schwartz, is freedom of movement. The right of free movement is vital element of personal liberty. The right of free movement in-cludes the right to travel abrmid. So much is simple textbook teaching in Indian, as in Anglo-American law. Passport legality, affecting as it does, freedoms that are 'delicate and vulnerable, as well as supremely precious in our society', cannot but excite judicial vigilance to obviate fragile dependency for exercise of fundamental rights upon executive clemency. So important is this subject that the watershed between police state and government by the people may partly turn on the prevailing passport policy. Consciou·s, though I am, that such prolix

against restraint, knowing that the risk of abusing liberty so as to give right to punishable conduct is part of the price we pay for this free society.

(Apthekar v. Secretary of State : 378 US 500-12 L.Ed. 2d 992

(1964).

Judge Wyzanski has said :

'This travel does not differ from any other exercise of the manifold freedoms of expression. . . . . . from the right to speak, to write, to use the mails, to public, to assemble, to petition."

(Wyzanski, Freedom to Travel, Atlantic Montaly. Oct. 1952, p. 66 at 68).

The American Courts have, in sense, blazed the constitutional trail on that facet of liberty which relates to untrammelled travel. Kent, Apthekar and Zemel are the landmark cases and American jurispru~ dence today hold's as fundamental part of liberty (V Amendment) that citizen has freedom to move across the frontiers without passport restrictions subject, of course, to well~defined necessitous exceptions. BasicaUy, Blackstone is still current coin :

"Personalliberiy consists in the power of locomotion, of changing direction or moving one's person ~o whatever place one's own i-nclination may desire."

To sum up, personal liberty makes for the worth of the human person. Travet makes liberty worthwhile. Life is terrestrial oppor~ tunity for unfolding personality, rising to higher states, moving to fresh woods and reaching out to reality which makes our earthly journey true fulfilment-not tale told by an idiot full of sound and fury signi-fying nothing, but fine frenzy rolling between heaven and earth. The spirit of Man is at the root of Art. 21. Absent liberty, other freedoms are frozen.

While the i~sue is legal and sounds in the constitutional, its appre-ciation gains in human depth given planetary perspective and under-standing of the expanding range of travel between the 'inner space' of Man and the 'outer space' around :Mother Earth.

To conclude this Chapter of the discu:ssion on the concept of per-sonal liberty~ as sweeping supplement to the specific treatment by brother Bhagwati J., the Jurists' Conference in Bangalore, concluded in 1969~ made sound statement of the Indian Law subject, of course, to savings and exceptions carved out of the generality of that con-clusion:

"Freedom of movement of the individual within or in leaving his own country, in travelling to other countries and in entering his own country is vital human liberty, whether such movement is for the purpose of recreation, education, trade or employment~ or to escape from an environment in

which his other liberties are suppre:s!:ied or threatened. More-over, in an inter-dependent world requiring for its future peace and progress an ever-growing measure of international under-standing, it is desirable to facilitate individual contacts bet-ween peoples and to remove all unjustifiable restraints on their movement which may hamper such contacts." 8 So much for personal liberty and its travel facet. Now to 'proce-dure established by law', the manacle clause in Art. 21, first generaMyJ and next, with reference to A. K. Gopalan (supra) and after. Again, I observe relative brevity because I go the whole hog with brother Bhagwati, J. If Article 21 includes the freedom of foreign travel, can irs exercise be fettered or forbidden by procedure established by law ? Yes, indeed. So, what is 'procedure' ? What do we mean by 'established' ? And What is law? Anything, formal, legislatively processed, albeit absurd or arbitrary ? Reverence for life and liberty must over power this reductio an ab~urdem.' Legal interpretation, in the la~t analysis, is wlue judgment. The high seriousness of the subject matter-life and liberty-d~iderates the need for law, not fiat. Law is law when it is legitimated by the conscience and consent of the community generally. Not any capricious compthe but reasonable mode ordinari:-Jy regarded by the cream of society as dharma or law, approximating broadly to other standard measures regulating criminal or Jike procedure in the country. Often, it is legislative act, but it must be functional, not fatuous.

This line of logic alone will make the two clauses of Art. 21 con-E cordant, the procedural machinery not destroying the substantive fundamentally. The compulsion of constitutional humanism and the assumpion of full faih in life and liberty cannot be so futile or fragmen-tary that any transient legislative majority in tantrums against any minority~ by three quick readings of. bill with the requisite quorum; can prescribe any unreasonable modality and thereby sterilise the grandiloquent mandate. 'Procedure established by law'. with its lethal potentiality, will reduce life and liberty to precarious p1aytb1ng jf we ' do not ex necessitate import into those weighty words an adjectival rule of law, civilised in its soul, fair in its heart and fixing those imperatives of procedural protection absent which the processual tail will wag the substantive head. Can the sacred essence of the human right to secure which the struggle for liberation, with 'do or die' patriotism, was launched be sapped hy formalistic and phariscic prescriptions, regardless of essential standards ? An enacted apperition is consti~ tutional illusion. Processual justice is writ patently on Art. 21. It is too grave to be circumvented by black letter ritual processed through the legislature.

So I am convinced that to frustrate Art. 1 t by r.elying on any formal adjectival statute, however, filmsy or fantastic its provisions be, is to rob what the constitution treasures. Procedure which deals with the modalities of regulating, restricting or even rejecting funda-mental right falling within Art. 21 has to be fair, not foolish, carefully

designed to effectuate. not to subvert, the substantive right itself. Thus understood, 'procedure' must rule out anything arbitrary, freakish or bizarre. valuable constitutional right can be canalised only by civilised processes. You cannot claim that it is legal procedure1 if the passport is granted or refused by taking loss, ordeaJ of fire or by other strange or mystical methods. Nor is it. tenable if life is taken by crude or summary process of enquiry. What is fundamental is life and liberty. What is procedural is the manner of its exercis~. This. quality of fairness in the process it; emphasised by the strong word 'established which means 'settled firmly' not wantonly whimsically. If it is rooted in the legal consciousness of the community it becomes 'established' procedure. And 'Law' leaves little doubt that it is normae, regarded as just since law is the means and justice is the end.

Is there supportive judici~1l thought for this reasoning. We go back to the vintag~ words of the learned Judges in A. K. Gopalan (supra) and zigzag through R. C. Cooper to S. N. Sarkar and discern attesta-tion of this conclusio·n. And the elaborate constitutional' procedure in Art. 22 itself fortifies the argument that 'life and liberty' in Art. 21 could not have been left to illusory legislatorial happenstance. Even as relevant reasonableness informs art. 14 and 19, the component of fairness is impl;cit in Art. 21. close-up of the Gopalan case ;supra) is necessitous at this stage to underscore the quality of procedure rele-vant 1o personal liberty.

Procedural safeguards are the indispensable essence of liberty. In fact, the history of personal lib;rty is large the history of procedural safeguards a'nd right to hearing has human-right ring. In India, because of poverty and illiteracy, the people are unable to protect and defend their rights; observanc·~ of fundamental rights is not regarded as good politics and their transgression aiS had politics. I sometimes pensively reflect that people's militant awareness of rights and duties is surer constitutional assurance of governmental respect and res-ponse than the sound and fury of the 'question hour' and the slow and unsure delivery of court writ 'Community Consciousness and the Indian Constitution· is fascinating subject of sociological relevance in many areas.

To sum up, 'proq:dure' in Art. 21 m~ans fair, not formal proce-dure. 'Law' is reasonable law, not any enacted piece. As Art. 22 specifically spells out the procedural safeguards for preventive and punitive d~~tention, law providing for such detentions sfiould con-form to Art. 22. It has been rightly pointed out that for other rights forming part of personal liberty, the procedural safeguards enshrined in Art. 21 are available. Otherwise, as the procedural saf·~guards contained in Art. 22 will be available only in cases of preventive and punitive detention, the right to life, more fundamental than any other forming part of personal liberty and paramount to the happi'ness, dignity and worth of the individual, will not be entitled to any proce-dural safeguard save such as legislature's mood chooses. In KochzmniC) the Court, doubting the correctness of the Gopalan deci-H sion on this aspect, said :

(1) A. I. R. 1960 S.C. 1080, 1093.

"Had the question been res integra, some of us would have been inclined to agree with the dissenting view expressed by Fazal Ali, J."

Gopalan does contain some luscent thought on 'procedure esta-blished by law'. Patanjali Sastri, J. approximated it to the prevalent norms of crimfual procedure regarded for long time bv Indo-Anglian criminal law as conscionable. The learned Judge observed :

"On the other hand, the interpretation suggested by the Attorney General on behalf of the intervener that the expres-sion means nothi'ng more than procedure prescribed by any law made by competent legislature is hardly more accept-able. 'Established', according to him, means prescribed, and if Parliament or the Legislature of State enacted proce-dure, however novel and ineffi~ctive for affording the accused person fair opportunity of defending himself, it would· be sufficient for depriving person of hi:s life of personal liberty."

(pp. 201-203)

uThe main difficulty I feel in accepting the construction suggested by the Attorney General is that it completely stulti-fies article 13(2) and, indeed, the very cmzc.:eption of fundamental right . ....... could it then have been the inten-tion of the framers of the Constitution that the most impor-tant fundamental rights to life and personal liberty should be at the mercy of legislative majorities as, in effect, they would tf 't.'Stablished' were to mean merely prescribed' ? In other words, as an American Judge said in similar con-text, does the constitutional prohibition in article 13 (3) amount to 'no more. than 'your shall not take away life or personal freedom unless you choose to take it away', which is more verbiag~ ........ It is said that article 21 affords no protection against competent legislative action in the field of substantive criminal law, for there is no provision for judi-cial review, on the ground of reasonableness or oth~rv.rise, of such laws, as i'n the case of the rights enumerated in article 19. Even assuming it to be so the construction of the learned Attorney General would have the effect of render-ing wholly ineffective and illusory even the procedural pro-tection which the article was undoubtedly designed to afford."

(p. 202) (emphasis, added)

"After giving the matter my most careful and anxious consideration, I have come to the conclusion that there are only two possible solutions of the problem. In the first place, satisfactory via media bet:veen the two extp~me positions contended for on either stde may be found by stressing the word 'established' which implies some de_gree of firmness, permanence and general acceptance, while it does not exclude origination by statute. 'Proo~dure esta-

blished by' may ·well be tah~n to mean what the Privy Council referred to in King Emperor v. Bengori Lal Sharma as "the ordinary and wellestablish,~d criminal procedure', that is to say, those settled usages and normal modes of pro~ed-ing sanctioned by the Criminal Procedure Code which i~ the general law of Criminal pro<x-:dure in the country.

(p. 205)

Fazal Ali, J. frowned on emasculating the procedural substantia-lity .of Art. 21 and read into it those essentials of natural justice which made processual law humane : The learned Judge argued:

"If S'.:!cms to me that there is nothtng revolutionary in the doctrine that the words 'proc~~dure established by law' must include the four principles set out in Professor Willis' book, which, as I have already stated, 3:re different aspects of th.: same principle ·and which have no vagueness or uncertainty about them. These principles., as the l•:!arned author pointb out and as the authorities show, are not absolutely rigid principles but are adaptable to the circumstances of each case within certain limits. I have only to add, that it has not b~en serious~y controverted that 'law' means certain defi-nite rules of proceeding and not something which is mere pretence for procedure.

(emphasis, added)

In short, fair adjectival law is the very life of the life-liberty funda-mental right (Art. 21), hot 'autocratic supremacy of the legislature'. Mahajan J. struck <:oncordant note :

"Article 21 in my opinion, lays down substantive law as giving proteCtion to life and liberty in as much as it says that they cannot be deprived except according to the procedure established by law; m other words, it means that before a· person can be .deprived of his-life or liberty as condition precedent there should exist some substantive law c_gnferring authority for doing so and the law should further provide for mode <lf procedure for such deprivation. This article gives complete immunity against the exercise of despotic power by the executive. It further giV~~s immunity against invalid laws which contravene the Constitution. It gives also further guarantee that in its true concept there should be some form of proceeding before person can be condemned either in respect of his life or his liberty. It negatives the idea of fantasttc, arbitrary and oppressive form of proceedirtgS.'1

(emphasis, added)

In sum, Fazal Ali, J. struck the chord which does accord with just processual system where liberty is likely to be the victim. May ll be, the learn~d Judge stretched it little beyond the line but in essence his norms cJaim my concurrence.

In John v. Rees( [1]) the true rule, as implicit in any law, is set down :

"If there i~ any doubt, the applicability of the princip1es wiH be given the bendl.t of doubt.''

And Lord Denning, on the theme of liberty, observed in Schmidt v. Secretary of State{~) : ·

"Where public officer has power to deprive person of his liberty or his property, the general principle is that it is not to be done without hearin.g.''

Human rights : It is

It is 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 human order lined with human justice. And running right through Arts. 19 and 14 is present this principle of reasonable procedure in different shades. certain nonnative harmony among the articles is thus attained, and 1 hold Art. 21 bears in its bosom the construction of fair procedure legis-D latively sanctioned. No Passport Officer shall be mini-Caesar nor Minister incarnate Caesar in system where the rule of law reigns supreme.

certain .

My clear conc1usio'n on Art. 21 is that liberty of locomotion into alien territory cannot be unjustly forbidden by the Establishm~nt and passport legislation must take processual provisions which accord with fair norms, free from extraneous pressure and, by and large, complying with natural justice. Unilateral arbitrariness, police dossiers, faceless affiants, behind-the-back materials, oblique motJves and the inscrutable face of an official sphinx do not fill the 'fairness' bill-subject, of course, to just exceptions and critical· contexts. This minimum once. aban-doned, the Police State slowly builds up which saps the finer substance of our constitutional jurisprudence. Not party but principle and pclicy are the key-stone of our Republic.

Let us not forget that Art. 21 clubs life with liberty and wh~n we interpret the colour and content of 'procedure established by law' we mHst be alive to the deadly peril of life being deprived. without minimal processual justice. legislat\ve callous'ncss despising 'hearing' and fair opportunities of defence. And this realization once sanc-tioned, its exercise will swell till the basic freedom is flooded out. Hark back to Art. 10 of the Universal Dec1aratio'n to realize that_ human rights have but verbal hollow if the protective armour of audi alteram partem is delt~ted. When such pleas are urged in the _ familiar name of pragmatism public interest or national security, courts are on trial and must prove that civil liberties are not mere rhetorical material for lip service but the obligatory essence of our hard-won

(1) [1969]2 \I E. R. 274.

(2) [1969] 2 Ch. 149.

freedom. Republic--if you Can Keep It-is the caveat for counsel .and court. And Tom Paine, in his Dissertation on First Prihciples of Government, sounded the tossin :

"He that would make his own liberty secure must guard even hi-s enemy from oppression; for if he violates this duty, he establishes precedent that will reach to himself.''

"Phoney freedom is not worth the word and this ruling of ours is not ,confined to the petitioner but to the hungry job--seeker, nun and nurse, ·mason and carpenter, welder and fitt,~r a'nd, above all, political dissen-ter. Th~ last category, detested as unreasonable, defies the Establish-ment's tendency to enforce through conformity but is the .r~source of .social change. "The reasonable, man'\ says G. B. Shaw; ..

"adapts himself to the word; the unreaiSonable one per-sists i'n trying to adapt the world to himself. Therefore, aU progress depends on · the unreasonable man." (George Bernard Shaw in 'Maxims for Revolutionists').

"Passport' peevishness is 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 mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order."

(West Virginia State Board of Education v. Barnetto 319 us 624 (1943 ).

Under our constitutional order, the price of daring dissent shall not be passport forfeit. .

The impugned legislation, ss. 5, 6 and 10 e~pecially, must be tesr~d .even under Art. 21 on canons of processual justice to the people out· lined above. Hearing is obligatory-meaningful hearing, flexible and rea1istic, according to circumstances, but hot ritualistic and wooden. In exceptional cases and -emergency situations, interim measures may be taken, to avoid the mischid of the passportee becoming an escapee before the hearing begins. 'Bolt the stables after the horse has been stolen' is not command of 'natural justice. But soon after the pro-G visional seizure, reasonable hearing must follow, to minimise proce~ .dural prejudice. And when prompt final order is made against the applicant or passport holder the reasons must b~ disclosed to him aJmost invariably save in those dangerous cases where irreparable injury will ensue to the State. governme-nt which reveals in secrecy in the field of people's liberty not only acts ~gainst democratic decency but busies itself with its own burial. That is the writing on th·~. wall if history were teacher, memory our mentor and decline of liberty not onr unwittjng endeavour. Public power I~mst rarely hid~ its heart in an {)pen society and system.

I now skip Art. 14 since I agree fully with all that my learned brother Bhagwati J. has said. That article has pervasive processual potency and versatile quality, egalitarian in its soul and allergic to dis-criminatory diktats. Equality is the antithesis of arbitrariness and ex-cathedra ipse dixit is the ally of demagogic authoritarianism. Only knight-errants of 'executive excesses'-if we may use current cliche--can fall in love with the Dame of despotism, legislative or administra-B tive. If this Court gives in here it gives up the. ghost. And so it that I insist on the dynamics of limitations on fundamental freedoms as im-plying the rule of law; Be you ever so high, the law is above you.'

minor pebble was thrown to produce little ripple. It was feebly suggestt-d that the right to travel abroad cannot be guaranteed by the StatQ. because it has no extra-territorial jurisdiction in foreign lands. ·This is naive misconception of the point pressed before us. Nobody contends that India should interfere with other countries and their sovereignty to ensure free movement of Indians in those countries. What is meant is that the Government of India should not prevent by any sanctions it has over jts citizens from moving within - any -other -country if that other country has no· objection to their travelling within its territory. It is difficult to understand how one can misunderstand the . obvious. ·

/.....___

/--...f.

thorny problem debated recurrently at the bar, turning on Art. 19, demands some juristic response although avoidance of overlap per-suades me to drop all other questions canvassed before us. The Gopalan (supra) verdict, with the cocooning of Art. 22 into self con-E tained code, has suffered supersession at the hands of R. C. Cooper('). By way of aside, tpe fluctuating fortunes of fundamental rights, when the proletarist and the proprietariat have asserted them in Court, par-tially provoke sociological research a~d hesitantly project the Cardozo thesis of sub-conscious forces in judicial noesis when the cycloramk review starts from Gopalan, moves on to ln re: Kerala Education Bill and then on to Alllndi'a Bank Employees Union, next to Sakal News-F papers, crowning in Cooper C) and followed by Bennet Coleman(!) and Sambu Nath Sarkar(3). Be that as. it may, the law is now settled, as l apprehend it, that no article in Part III _is an island but part of conti-nent, and the conspectus of . the' whole part gives the directions and correction needed for interpretation of these basic provisions. Man is not dissectible into separate limbs and, likewise, cardinal rights in an organic constitution, which make man human have synthesis. The proposition is indubitable that art. 21 does not, in given situation, exclude Art. 19 if both rights are breached.

We may switch to Art. 19 very briefly and trave] along another street for while. Is freedom of extra-territorial travel to assure which is the primary office of an Indian passport, facet of the freedom of speech and expression, of profession or vocation under Article 19·?

(1) [1973] 3 S.C.R. 530. (2) [197~) 2 S.C.R. 757. (3) [1973] 1 S.C.R. 856.

My total consensus with Shri Justice Bhagwati jettisons from this judg-A ment the profusion. of precedents and the mosaic of many poirits and confines me to some fundamentals confusion on which, with all the clarity oJ} details, may mar the conclusion. It is salutary thought that the summit court should not interpret constitutional rights enshrined in Part III to choke its life--breath or chill its elan 'vital by processes of legalism, overruling the enduring values burning in the bosoms of those · who won our Independence and drew up our founding document. We must also remember that when this Court lays down the law, 1iot ad [we tunes but essential notes, not temporary tumult but transcendental truth, must guide the judicial process in translating into authoritative notation the mood music of the Constitution. ·

While dealing with Art. 19 vis vis freedom· to travel abmad, we have to remember one spinal indicator. True, high constitutional policy has harmonised individual freedoms with holistic community good by inscribing exceptions to Art. 19 ( 1) in Art. 19 (2) to ( 6). Even so, what is fundamental is the freedom, not the exception. More importantly, restraints are permissible only to the extent they have nexus with the approved object. For instance,.:'in wide sense, 't':c. interests of the general public' are served by family planning pro-D gramme but it may be constitutional impertinence to insist that pass-ports may be refused if sterilisation certificates were not produced. Likewise, it is in public interest to widen streets in cities but monstrous to impound passport because its holder has declined to demolish his house which projects into the street line. Sure, the security of State is paramount cof!<deration but can Government, totalitarian fashion. equate Part:/ w~t:1 country and refuse. travel document because, while abroad, he ~-_1uY criticise the conflicting politics of the Party-in-power or the planning economics of the government of the day ? Is it conceivable that an Indian will forfeit his right to ~o abroad because his flowing side--bums or sartorial vagaries offend high-placed autho-rity's sense of decency? The point is. that liberty can be curtailed onJy if the grounds listed in the saving sub-articles are directly, speci-F fically, substantially and imminently attracted so that the basic right may not be stultified. Restraints are necessary and validly made by statute, but to paint with an over-broad brush power to blanket-ban travel abroad is to sweep overly and invade illicitly. 'The law of fear' cannot reign where the proportionate danger is containable. It is balancing process, not over-weighted one way or the other. Even so, the perspective is firm and fair. Courts must not interfere where the or_der is not perverse, unreasonable, mala fide or supported by no matenal. Under our system, court writs cannot run aovern-me.nt. for. then. judicial review may tend to be judicial couP. But 'lawless' Jaw ~nd_ executive excess must be halted. ~y judge-eo~er lest the ConstitutiOn be subverted by branches denvmg cretlenttals fr~nn the Constitution. An imperative guideline by which the Court w11l test the soundness of legislative and executive constraitit is in the language of v. C. Row(!) this: · '

(I) [1952] S.C.R. 597.

.. The reasonableness of restriction depends upon the values of life in society, the circumstances obtam-ing at particular point of time when the restriction is imposed, the degree and the urgency of the evil sought to be controlled and similar others.."

This renophatic touch has not been attested by the Constitution and is 110t discernible m the psyche. An anti-inte;rnational pathology shall 110t afflict our National Charter. 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 to and not neces-sarily fundamental in Art. 19. Arguendo, free speech is feasible without movement beyond the country, although solilequies and solo . songs are not the vogue in this ancient land of silent saints and p)rrat-ing gurus, bhajans and festivals. Again, travel may ordinarily be 'action' and only incidentally 'expression', to bvrrow the Zemel <lic-tion.Movement within the territory of India is not tampered with by the impugned order, but that is not all. For, if our notions are en courrent, it is common place that the world-the family of nations-vibrates, and men-masses of man-move and 'jet' abroad and abroad, even in Concorde, on scale unknown to history. Even thoughts, ideologies and habits travel beyond. Tourists crowd out airlin~ ser-vices; job-seekers rush to passport offices; lecture tours, cultural ex-changes, trans-national evangelical meets, scientific and scholarly studies and workshops and seminars escalate, and international asso-ciations abound-all for the good of world peace and human pro-gress, save where are involved high risks to sovereignty, national security and other substantial considerations which Constitutions and Courts have readily recognised. Our free system is not so brittle or timorous as to be scared into tabooing citizens' trips abroad, except conducted tours or approved visits sanctioned by the Central Execu-tive and indifferent to Art. 19. Again, the core question arises : [s movement abroad so much crucial part of free speech, free prac-tice of profession and the like that denial of the first is violation of the rest?

I admit that merely because spe~king mostly involves some move-ment, therefore, 'free speech anywhere is dead if free movement every-where is denied', does not follow; The Constitutional lines must be so drawn that the constellation of fundamental rights does not expose the peace, security and tranquillity of the community to high risk. We cannot over-stretch free speech to make it an inextricable component of travel. ·

Thomas Emerson has summed the American Law which rings bell even in the Indian system :

"The values and functions of the freedom of expression in democratic pooty are obvious. Freedom of expression is essentiaUy as means of assuring individual self-fulfil[4 ]ment. The proper end of man is the realisation of his character and potentialities as. human being. For the achievement of this self-realisation the mind must be free." Again

[1978] 2 S.C.J..

SUPREME COURT :REPORTS

•'Freedom of expression is an essential process for i • advancing knowledge and discovering truth. So also for ·~ participation in decision-making in 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 facet of liberty and as an ancient of expression." Thomas Emerson comments on passpo~s from these dual angles : Travel abroad should probably be .classified as 'action' rather than "expression". In commonsense terms travel is more physical movement than communication of ideas. It is true that travel abroad is frequently instrumental to expres-sion, as when it is undertaken by reporter to gather news, scholar to lecture, student to obtain information or simply an ordinary citizen in order to expand his understanding of 0 the world. Nevertheless, there are so many other aspects to travel abroad on functionally it requires such different types of regulation that, at last as the general proposition, it would have to be considered "action". As aclion, it is 'liberty' protected by the due process clause of the Fifth and Fourteenth Amendments. The first amendment is still relevant in two ways : ( 1) There are sufficient elements of expre5sion in travel abroad so that the umbrella eHect of the first Amendment comes into play, thereby requiring the c0urts to apply -due process and other constitutional doctrines with special care; (2) conditions imposed on. travel abroad based on conduct classified as expression impair freedom of expression and hence raise direct first Amendment ques-tions." Travel is more than speech : it is speech bridgdcd with conduct, m the wcrds of Justice Douglas : "Restrictions on the right to travel in times of peace should be so particularized that at First Amendment right is not precluded unless some clear countervailing national interest stands in the way of its assertion." I do not take this as wholly valid in our Part III scheme but refer to it as kindred reason1ng. The delicate, yet difficult, phase cf the controversy arrives where free speech and free practice of profession are inextricab1y inter-woven with travel abroad. The Passport Act, jn terms, does not in-H hibit exp1:ession and only regulates action-to borrow the phJasc~logy of Chief Justice Warren in Zemel. But we have to view the proximate -and real conservance of thwarting trans-national trave1 through the

power of tbe State exercised under s. 3 of the. Passport Ac~ read with ss. 5, 6 and· 10. If right is not in express terms fundamental within the meaning of Part III, does it escape Art. 13, read with the trammels o.f Art. 19, even if the immediate impact, the substantial .effect, the proximate import or the necessary result is prevention of free speech or practice of one's profession ? The answer is that as-sociated rights, totally integrated, must enjoy the same immunity. Not ·Otherwise.

Three sets of cases may be thought of. Firstly, where the legislative provision or executive crder expressly forbids exercise in foreign lands of the fundamental right while granting passport. Secondly, there may be cases where even if the order is innocent on its face, the refusal of permission to go to foreign country· may, with certainty and imme-diacy, spell denial of free speech and professional practice or bu.siness. Thirdly, the fundamental right may itself cnwomb locomotion regard-less of national frontiers. The second and third often are blurred in their edges- and may overlap. • .

The first class may be illustrated. If the passport authority speci-fically conditions the permission with direct! on not to ad,.lress meet-ings abroad or not to b~ journalist or professor in foreign country, the order viotate Art. 19( 1) (a) or (f) and stands vc!ded unless Art. 19 (2) and (6) are complied with. The second category may be exemplified and examined after the third which is of less frequent occurrence. If person is an international pilot astronaut, Judge of . the International Court of Justice, Secretary of the Wor]d Peace · Council, President of body of like nature, the particular profession not only cal1s for its practice travelling outside Indian territory but its core itself is international travel. In such an area, no right of exit, no practice of profession or vocation. Similarly, cricketer or tennis player recruited on world tour. Free speech may similarly be ,hit by restriction on campaigner for liberation of colonial peoples or against genocide before the United Nations Organisation. Refusal in such cases is hit on the head by negation of national passport and can be rescued only by compliance with the relevant saving provisions in Art. 19(2), (4) or (6).

So far is plain sailing, as I see it. But the navigation into the penumbral zone of the second category is not easy.

Supposing lawyer or doctor, expert or exporter, missionary or guru, has to. visit. foreign country professionoaHy or on speaking assignment. He is effectively disabled from discharging his pursuit if passport i~; r~fused. There the direct effect, the necessary conse-quence, the immediate impact of the embargo an· grant of passport (or its subsequent impounding or revocation) is the infringement of the right to expression or profession. Such infraction is unconstitutional unless the relevant p-art of Art. 19 (2) to (6) is complied with. In deal:ng with fundamental freedom substanjial justification alone will bring the law under .the exceptions. National security, sovereignty, public order and public interest must be of such high degree as to ()ffer g~eat threat. These concepts should not be devalued to suit

_,.) . .

shed between police state and people's raj is located partly tfrrough its passport policy. Today~ poor man in this. poor country despaue .of getting passport because of invariable police enquiry, insistance on property requirement and other avoidable procedural obstacles. And if system of secret informers, police\ dossiers, facelcs~ whisperef3 an_d political tale-bearer:::; conceptualised , and institutionalised 'in pubhc i,rtterest,' comes to stay, civil liberty is legisidally constituti~nalised­a consumption constantly to be resisted. The merits of particu~ar caso apart, the policing of people's right Of exit or entry is fraught w1th peril to liberty unless policy is precise, operationally respectful of recognised values and harassment proof. Bertrand Russel has called attention to syndrome the Administration will do \\'ell to note :

"We are all of us mixture of good and bad impulses that prevail in an excited crowd. There is in most men an impulse to persecute whatever is felt to be 'different'. There is a1sn hatred of any claim to superiority, _which make~ the stupid many hostile to the intelligent few. motive such as fear of communism affords what seems decent moral excuse for combination o.f the heard agaim.t everything in any way exceptional. This is recurrent phenomenon in human history. Wherever it occurs, its results are horrible.n

(Foreword by Bertrand Russel to Freedom is oas Freedom Does-Civil Liberties Today-by Corliss Lament. New York, 19~6)

While interpreting and implementing the words of Art. 14, 19 and 21, 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 elabora-tion, even some men of goodwill beg:in to forget the essen-tial humanity this machinery should be serving. They are now so bus·y testing, analysing, and reporting on bath w-ater that they cannot remember haVing thrown the baby out of the window."

(Introduct:ion by H. H. Wilson, Associate Professor of Political SCience, Princeton Universitv to Freedom i~ as Freedom Does by Corliss Lament, ibid p. xxi.)

I have divagated great deal into travel constitutionality in tho setting of the story of the human journey, even though such diffusion is l?artly beyond ~~e st~ict needs. of ~his _case. . But judicial travelling, l1ke other travedmg. IS ahnost hke talkmg wtth men of other rentnries and countries.'

1 -agree with Sri Justice Bhagwati, notwithstanding this supplemen-tary.

KAI~ASAM, J.-Thls petition is filed by Mrs. Maneka Gandhi un-der Artlcle 32 of the Constitution of India against the Union of India .

and the Regional Passpo!t Offi.cer for writ of certiorari for caning for the !ecords of the case _mcJudmg in particular the order dated Tuly 2, 197, made by the Umon of Jndia under section 10(3)(c) of the ~assports Act, Act 15 of 1967, impounding the passport of the peti-uoner and fOir 9uashing the said order. ·

~,Th.e peti?oner receive.d letter date~ July 2,_ 1977 on July 4, 8 19 i 7 mformmg her that It had been decided by the Government of India to impound her passport. The Jetter read as follows :

"You may recall that passport no. K-869668 was issu-ed to you by this office on 1-6-7 6. It has been decided by the Government of India to impound your above passport under section 10(3) (c) of the Passport Act, 1967 in public interest.

You are hereby required to surrender your passport K-869668 to this office within seven days from the date of the receipt of this letter."

On July 5, 1977 the petitioner addressed letter to the second res-pondent, Regional Transport Officer, requesting him to furnish 'her copy of the statement of the reasons for making the impugned order. On July 7, 1977 the petitioner received the following communication from the Ministry of External Affairs :

"The Government has decided to impound your passport in the interest of general public under section 1 0( 3 )(c) of the Passport Act, 19(i7. It has further been decided by the Government in the interest of general public not to fur-'E nish you copy of statement of reasons for making such orders as provided for under section 10(5) of the Passports Act, 1967."

The petitioner submitted that the order is without jurisd1ctlon and not 'in the interests of general public.' The validity of the order was challenged on various grounds. It was submitted that rhere was contravcntio~ of Art. 14 pf the Constitution, that principles of natu-E ral justice were violated; that no opportunity of hearing as !mplied in section 10 (3) of the Act was given and that the with-holding of the reasons for the order under section 10(5) i~ not justified in law. On July 8, 1977 the petitioner prayed for an exparte ad interim order staying the operation of the order of the respondents dated July 2, 1977 'al1d for making the order of stay absolute after bearing the res-pondents. On behalf of the Union of India, Shri N. K. Ghosc., I.F.S:, .G Director (P.V.) Ministry of External Affairs, filed counter affidavit. It was stated in the counter affidavit that on May 11, 1977. t1le Minis-ter of External Affairs approved the impounding of the passport of I1 persons and on May 19, 19 77 an order was passed by the Minister imp-ounding the passports of 8 persons out of 11 perscns that on Julv 1, 1977 the authorities concerned informed the Ministry of h'x-ten1al Affairs that the petitioner and her husband had anived at Bombay on the after-noon of July 1, 1977 and that information had been received that there was likelihood of the petitioner leaving the country. The authorities contacted the Ministry of External Affairs

and Minister. after going through the relevant papers approved the impounding of the passport of the petitioner on the evening of July l, 1977 in the interests of general public under Section 10(3 )_(c) of the Passports Act, 1967. On July 2, 1977 Regional Trapsport Offi-cer on instructions from the Government of India informed the peti-timier about the Central Government's decision to impound her pass-port in public interest and requested 'her to surrender her passport. In the counter affidavit various allegations made in the petitio1_1 were den1cd and it was stated that the order was perfectly justified and that the petition is without merits and should be dismissed. The re-joinder affidavit was filed by the petitioner on July 16, 1977.

An application Civil Misc. Petition No. 6210 of _1977 was filed by the petitioner for leave to urge additional grounds in support of the writ petition and counter to this application was filed on behalf of the Ministry of External Affairs on August 18, 1977.

petition by Adil Shahryar was filed seeking permission to m-tervene in the writ petitio!\ and it was ordered by this Court. Dming. the hearing of the writ petition, Government produced the order dis-closing the reasons for impounding the passport. The reasons given are that it was apprehended that the petitioner was attempting or wa':i Jikcly to attempt to leave the country and thereby hamper the func-tioning of.the ·Commissions of Inquiry. According to the Govern-m~nt, the petitioner being the wife of Shri Sanjay Gandhi, there was likelihood of the petitioner being questioned regarding some aspects of the Commission. In the counter affidavit it was further- alleged that there was good deal of evidence abroad and it would be unrealis-tic to over-look the possibility of tampering with it or m~king it un~ available to the Commission which can be done more easily and effec-tively when an interested person is abroad. So far as this- a1legation was coricerne"- as it was not taken into account in passing the 0rder it was given up during the hearing of the writ petition. ·The only ground on which the petitioner's passport was impounding was that she was likely to be examined. by the Commission of Inquiry and her presence was necessary in India.

Several questions of law were raised. It was submitted that th~ petitioner was journalist by profession and that she intend~d to proceed to West Germany in connection with her profession'al duties, as journalist and that by denying her the passport not only was her right to travel abroad denied but her fundamental rights guarapteed under Article 19 (1) were infringed. The contention was that be-fore an order passed under Article 21 of· the Constitution could be valid, it should not only satisfy the requirements of that article, name-ly that the order should be according to the procednre established bv law, but also should not in any way infringe on her fundamental rigl1ts guaranteed under Article 19 (1). In other words, the submis~ · sian was that the right to personal liberty cannot be deprived without satisfying the requirements of not only Art. 21, but also Article 19. rn. addition ~he provisions of Section 1~(3)(c) were challenged as bemg ultra vtres of the powers of the legtslature and that in any event

the order vitiated by the petitioner not having been given an oppor-tunity of being heard before the impugned order was passed. It was contended that the fundamental rights guaranteed under Article 19(1) particuJarJy the right of freedom of speech and the right to practise profession was available to Indian citizens not only within the terri-tory of India but also beyond the· Indian territory and by preventing the petitioner from travelling abroad her right to freedom of speech and right to practise profession outside the country were also infring-ed. The plea is that the fundamental rights guaranteed under artlcle 19 are available not only within territory of India but outside the territory of India as well.

The question that arises for consid,cration is whether the Funda-mental Rights conferred under_ Part III and particularly the ri~hts conferred under Article 19 are available beyond the territory of India. The rights conferred under Article 19 ( 1) (a), (b), (c), (f) and (g) are

(a) to freedom of speech and expression;

(b) to assemble peacebly and without arms;

(c) to form associations or unions;

X X X X

(f) to· acquire, hold and dispose of propeqy; and

(g) to practise any ptofession, or to carry on any occupa-tion, trade or business;

The rights conferred under Article 19 ( 1) (d) and (e) being limited in its operation to the territory of India the question of their extra~ territorial application does not arise.

In order to decide this question, I may consider the various pro-visions of the Constitut!on, which throw some light. on this point. The preamble to the Constitution provides that the people of Ind1a have solemnly resolved to constitute India into Sovereign Socialist Secular Democrative Republic and to secure to a11 its ciitzens :

Justice, social, economic and political;

Liberty of thought, expression, belief faith and

worship;

Equality of status and of opportunity;

and to promote among them all.

Fraternity assuring the dignity of the individual and the unity or the nation.

By the article, India is constituted as Democratic republic and its citizens secured certain rights. While reading of the article would indicate that •the articles are applicable within: the territory o£ India, the question arises whether they are available beyond the territorial limits of India.

Article 12 of the Constitution defines "the State" as including the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other · authorit es within the territory of India or undet the control of the Governmtnt

--· ......... __

of l11dia. Article 13 provides that laws that are inconsistent with or in derogation of Fundamental Rights are to that extent void. Article 13 (1) provides that all laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of Part III shaH, to the extent of such inconsistency, be void. What are the laws in force in the territory of 'India immediately before the commencement of the Constitution that are referred to in the Article will have to be looked into. Before that Article 13 (2) may be noticed which pro-vldes that theJ State shall not make any law which takes away or .abridges the rights. conferred by Part III, and any law made in con-travention of this c1ause shall, to the extent of the contravention, be void. The word "law" in the Article is defined as :

(a) "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; and

(b) "laws in force" includes laws passed or made by Legislature or other competent authority in the ter~ ritory of India be.forc the commencement of this Constitution and not previously repealed, notwith-standing that any such law or any part thereof may not be then in operatio·ri either at all or in particular areas.

While the applicability of .the custom and usage is restricted to the ierritory of India "law" may have an extra-territorial app1ication.

In distributing the legislative powers between the Union and the li" States Article 248 provides that Parliament may make laws for the whole or any part of the tc.'rritory cf India and the Legislature of State may make laws f<t the whole or any part of the State. Article 245 (2) provides that no law made by parliament shall be deemed to be invalid on the ground that it would have extra-territorial opera-tion. This article makes it clear that State law cannot have any extra-territorial operation while that of the parliament can have. The Parliament has undoubted power to enact law having cxtra-territo-F rial application. In England section 3 of the Statute of Westminster, 1931 (22 Geo. V.C.4) provides:

"It is hereby declared and enacted that the Parliament of Dominion has full power to make Jaws having extra-territorial operation."

But in detennining whether the provisions of Constitution or statute have extra-territorial application certain principles are laid down. Maxwell on The Interpretation of Statute's, Twe1fth Edition, at p. 169, while dealing with the territorial application of British legislation has stated :

"It has been said by the Judicial Committee of the Privy Council that : 'An Act of the Imperial Parliament today, unless it .provides. otherwise, applies to the whole of the United Kingdom and to nothing outside the United

Kingdom : not even to the Channel Islands or the Isle of Man, let alone to remote overseas colony of possession'."

Lord Denning M. R. has said that the general rule is "that an Act of Parliament only applies to transactions within the United Kin!~dom and not to transactions outside." These two extracts arc from tw'o decisions (1) Att. Gen. for Alberta vs. Huggard Assets, Ltd., ( 1953) 8 A.C. 420 and C.E.B. Draper & Son, LtcT. vs. Edward Turner & Son. Ltd. (1964) 3 AIL E.R. 148 at p. 150 Maxwell comments on-the above passages thus ''These statements, however, perhaps oversim-plify the position." The decisions cited will be referred to in due course. Craies on Statute Law (Sixth Ed.) at p. 44 7 states that " .... an Act of the legislature will bind the subjects of this realm, both within the kingdom and without, if such is its intention. But whether any particular Act .of parliament purports to bind British subjeds abroad will always depend upon the intention of the legislature which must be gathered from the language of the Act in question." Dicey in his Introduction to the Study of the Law of the Constitution ( 19 64 Ed.) at page liii states the position thus : "Par1iament normally re:;tricts the operation of legislaticn to its own territories, British ships where-ver they may be being included in the ambit of territory.~Parllament does on occasions, however, pass legislation controlling the activties of its own citizen when they are abroad." Salmond in his b01)k on Jurisprudence (Twelfth Ed.) distinguishes between the territorial en-forcement of law and the territoriality of law itself. At p. 11 the author states : "Since territoriality is not logically necessary \?art of the idea o{ law, system of law is -readily conceivable, the appli-cation of which is limited and determin~d not by reference to terri-torial considerations.. but by reference to the personal qualifications y--1 of the individuals oyer whom jurisdiction is exercised." Acc,)rding to the text-books above referred to, the position is that law is normally applicable within the territory, but can be made applicable to its citizens wherever they may be. Whether such extra-territorial applicability is 1ntended or not will have to be looked for in the legislation.

I will now refer to the decisions of courts on this subject.

\ ..I.._. . .

In Niboyet v. Niboyet(') the Court of Appeal stated: "It [s true that the words of the statute are general, but general word~, in statute have never. so far as I am aware, been interpr~ted so as to extend the action of the statute beyond the territorial authority of the Legislature. All criminal statutes are in their terms general; but they apply c-nly to offences committed within the territory or by British subjects. When the Legislature intends the statute to apply beyond the ordinary terri-torial authority of the country, it so states expressly in the statute as in the Merchant Shipping Acts, and in some of the Admiralty Ac.t:~." In the Queen v. Jameson and Others(2), the Chief Justice LorJ Rmsel

(1) 48 L J. P- 1 at D. 10.

(2) [1896] 2 Q. B. Division 425 at 430.

•stated the position thus : "It may be said generally that the area with-. ;. in 'Nhich statute is to operate, and the persons against whom it is to operate, are to be gathered from t11e language: and purview of the particular statute. In Cooke v. The Charles A. Vogeler Company(')~ the House{ of Lords in dealin~ with the jurisdic-tion of the Court of Bankruptcy observed that "English lcgisl~tion is primarily territorial, and it is no departure from that principle to say that foreigner coming to this country and trading here, and here com-• mitting an act of 'bankruptcy, is subject to our Jaws and to all the inci--dents which,those laws enact in such case; while he is here, while he is trading, even if not actually domiciled, he is liable to be made bank-rupt like native citizen ........ It is limited in its terms to Engiand; and I think it would be impossible to suppose that if the Legislature had intended so broad )3. jurisdiction as is contended for here, it would not have conferred it by express enactment." In Tomalin v. S. Pearson & Son, Limited([2]) the Court of appeal dealing with the application of the Workmen's Compensation Act, 1906, quoted with approval pas. sage from Maxwell on Interpretation of Statutes at p. 213 whreein it was stated: "In the absence of an intention clearly expressed or to be inferred from its language, or from the object or subject-matter or his-tory of the enactment, the presumption is that Parliament does not design its statutes to operate beyond the territorial limits of the United Kingdom". The law that is. applicable in the United Kingdom is fairly summed up in the above passage. The presumption is that the statute is not intended to operate beyond the territorial limits unless contrary intention is expressed or could be inferred from its language. The deci-sion of the Privy Council in Att.-Gen. for Alberta v. Huggard Assets, Ltd. ([3]), has already been referred to as quotation from Maxwell's Interpretation of Statutes. The Privy Council iq.. that case heJd that "An Act of the Imperial Parliament today unless it provides otherwise, applies to the whole of the United IGngdom and to nothing outside the United Kingdom: not even t01 the Channel Islands or the Isle of Man, let alone to remote overseas colony or possession." The Court o! Appeal in later decision reported in (1964) 3 All. E.R. p. 148 (C.E.B. Draper & Son, Ltd. vs. Edward Turner & Son, Ltd.) approved of the proposition laid down in Att. Gen. for Alberta vs. Huggard Assets, Ltd., observing "Prima facie an Act of the United Kingdom Paflliament, unless it provides otherwise, applies to the whoJe of the United King-dom and to nothing outside the United Kingdom".

The cases decided by the Federal Court and the Supreme Court of -~ India may be taken note of. Dealing with the extra-territorial application • of the provisions of the Income-tax Act, the Federal Court in Governor-General in Council v. Raleigh Investment Co. Ltd. ([4]) after finding that there was no territorial operation of the Act observed that if there was any extra territorial operation it is within the legislative powers given to the Indian Legislature by the Constitution Act. After discussing the case-law on the subject at p. 61 regarding the making of laws for the --(I) [1901] A. C. 102 at p. 107. (2) [1909J2 K. B. 61 K. B. 61 B. 61 61 •

(2) [1909J2 K. B. 61 K. B. 61 B. 61 61 • (3) [1953] A. C. 420. ( 4) A. I. R. (31) 1944 Federal Court ~ 1.

'9-119 SCI/78

whole or any part of British India on topics in Lists I and [1 ]III of Sch. 7 and holding that the Federal Legislature's powers for extra-territorial legislation is not limited to the cases specified in clauses (a) to (e) of sub-section (2) of section 99 of the Government of India Act, 1935, concluded by stating that the extent, if any, of extra-territorial operation which is to be found in the impugned provisions is within the legislative powers given to the Indian Legislature by the Constitution Act. Again in Wallace Brothers & Co. Ltd. v. Commissioner of Income-tax, Bom-bay, Sind and BaluchistanC), the Federal Court held that there was no element of extra-territoriality in the impugned provisions of the Indian Income-tax Act, and even if the provisions were in any measure extra· territorial in their effect, that was not ground for holding them to be ultra vires the Indian Legislature. In Mohammad Mohy-ud-din v. The King Emperor(Z), the Federal Court was considering the validity of the Indian Army Act, 1911. In this case person who was not Bri ... tish subject but had accepted commission in the Indian Army was arraigned before court martial for trial for offences alleged to have been committed by him outside British India. It was held that section 41 of the Indian Army Act, 1911, conferred juri~diction on the court-martial to try non-British subjects for offences committed by them beyond British India. On construction of section 43 of the Act the Court held that the court-martial has powers "over all the native officers and soldiers in the said military service to whatever Presidency such officers and soldiers may belong or wheresoever they may be serving.n Repelling the contention that there was ,presumption against constru-ing even general words in an Act of Parliament as intended to have extra-territorial effect or authorising extra-territorial legislation the Court observed: "The passages relied on in this connection from Maxweu~s Interpretation of Statutes do not go the length necessary for the· appel~ lant's case. It is true that every statute is to be interpreted so far as its language admits, as not to be inconsistent with the comity of nations or with the established rules of International Law. Whatever may be the rule of International Law as regards th~ ordinary citizen, we have not been referred to any rule of International Law or principle of the comity of nations which is inconsistent with State exercising dis-ciplinary control over its own armed forces, when those forces are opera-ting outside its territorial limits". The law as laid down by the Courts may now be summarised. Parliament normaNy restricts the operation of the legislation to its own territories. Parliamer1t may p.1;ss legislation controlling the activities of the citizens -abroad. An intention to have extra territorial operation should be expressed or necessarily implied from the language of the Statute. The Statute should be so interpreted as not to be inconsistent with the comity of nations or with the estab-lished rules of international law.

It is now necessary to examine the various articles of Part Ill o~ the Constitution to find out whether any intention is expressed to make any of the rights available extra-territorially. The application of_ Article 1 4 is expressly limited to the territory of India as it fays down that "The

(1) [1945] F.C.R. 65.

(2) [1946] F.C.R. 94.

Srate shall not deny to any person equality before the law or the equal protection of the laws within the territory ofl India". Article 15 relates to prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and Art. 16 d~als with equality of opportunity in mat-ters of public employment. By their very nature the t~o Articles are confined to the territory of India. So also Articles 17 and 18 which deal with abolition of untouchability and abolition of titles. Before . dealing with Articles 19 and 21 with which we are now concerned the othor articles may be referred to in brief. Articles 20 :.md 22 can have only territorial application. Articles 23 and 24 which relate to right against exploita~on and Articles 25 t_o 28 which relate to freedom of conscience and free profession, practice and propagation of religion etc. prima facie are app-licable only to the terri~ory of India At any rate there is no intention in these Articles indicating extra-territorial application. So also articles 29 and 30 which deal with cultural and educational rights are applicable only within the territory of India. Arti-cle 31 does not expressly or impliedly have any extra territorial appli-cation. In this background it will have to he: examined whether any express or implied intention of extra-territorial applicability 1s discernible in Articles 19 and 21.

Article 19 ( 1) (a) declal:es the right ~o freedom uf spec~: and expression. While it is possible that this right may have extra-terri-torial application, it is not likely that the framers of the Constitution intended the right to assemble peaceably and without arms or to form associations or union;s, or to acquire, hold and dispose of property. or to practise any profession, or to carry on any occupation, trade or business, to have any extra territorial application, for such rights could not be enforced by the State outside the Indian rerritory. The rights conferred under Art. 19 are Fundamental Rights and Articles 32 a'nd 226 provide that these rights are guaranteed and can be enforced by the aggrieved pemon by approaching the Supreme Court or the High Courts. Admittedly, the rights enumerated in Art. 19 (1) (a), (b), (c), (f) and (g) cannot b~ enforced by the State a'nd in the circums-tances there is presumption that the Constitution-makers would have F' intended to guarantee any right which the State cannot enforce and would have made provision guara'nteeing the rights and securing them by recourse to the Supreme Court and the High Courts. The restriction of the right to move freely throughout the territory of India and the right to reside and stay in any part of the territory of India is strongly relied upon as indicating that in the absence of such restrictions the other rights are not co'nfined to the territory of India. The provisions in Art 19 ( l) (d) and (e) i.e. the right to move freely throughout the territory of India and to reside and settle in any part of the territory of India have historical significance. In A. K. Gopalan vs. The State of Madras, C) Kania C.J., said that in the right "to move freely throughout the territory of India" the emphasis was not on the free movement but on the right to move freely throughout the territory of India. The intention was to avoid any restriction being placed by the States hampering free movement

(1) [1950] S.C.R. 88.

throughout the territory of India. It is historical fact that there were I ,.-' rivalries between the various States and the imposition of restraint on movement from State to State by some States was not beyond ·possibility. In the two clauses 19 ( 1) (d) and ('~) the right ''to move freely through-out the territory of India" and "to reside and settle in any part of the territory of India" the "territory of India'' is mentioned with the purpose of preventing th~ States from imposing any restraint. From 8 the fact that the words "territory of India" are found in these two clauses the contention that the other freedoms are not limited to the territory of India for their operation cannot be accepted. In Virendra 1v. The State of Punjab and Another, ( ) S. R. Das, C. J ., who spoke on behalf of the Constitution Bench stated : "The point to be kept in view is that several rights of freedom guarante,~d to the citizens by Article 19 ( 1) are exercisable by them throughout and in all parts ot the territory of India". The view that the rights under Art. 19 ( 1) is exercisable in the territory of India has not been discussed. Far from Art. 19 ( 1) expressing any intention expressly or imp1iedl y of extra territorial operation the context would indicate that its applica-tion is intended to be only territorial. The right under Art. 19 (b) and (c) to assemble ~aceably and witho~t arms and to form asso-ciations or unions could not have been intended to have any extra-D territorial application as it will not be in accordance with the accepted principles of international law. As the rights und~r Articles 19 (b) and (c) cannot be enforced outside India the inference is that no extra-territorial application was intended. So also regarding the rights con-ferred under Articles 19(f) and (g) i.e. to acquire, hold and dispose of property; and to practise any profession, or to carry on any occu-pation, trade or business, would not have been intended to be apph-E cable outside India. It was submitted that when the Constitution w•as framed the found-ing fathers were influenced by the United Nations' Universal Declara~ tion of Human Rights which was made in December, 1948 and they thought it fit to make the Fundamental Rights available to the Indian citizens throughout the world. The history of the conception of hu-F man rights may be shortly traced. The main task of the Human Rights' Commission which was set up by the United Nations was to draw an International Bill of Rights. The Commission split this task into two documents : short declaration of principles and an elaborate trea'ij' or covenant enforcing those principles so far as practicable. The Universal Declaration of Human Rights wa~. not intended to be binding as law but to present the ma~n ideals of human rights and freedoms in order to inspire everybody, whether in or out of govern-ments, to work for their progressive realization. The Commission finished the Declaration and it was promulgated by the UN Assembly on December 10, 1948. The discussion about the Draft Indian Consti-tution took place between February and October, 1948 and the Arti-cles relating to the Fundamental Rights were discussed in October, L __ 1948, i.e. before the Univensal Declaration of Human Rights was pro-r -H mulgated by the UN Assembly on December 10, 1948. It is most I unlikely that b~fore the Declaration of Human Rights was promulgated ; (1) [19S,8J S.C.R. 308.

the framers of the Indian Constitution decided to declare that the Fundamental Right-s conferred on the citizens would have application even outside India. The Universal Declaration of Human Rights was not binding as law but was only pious hope for achieving common standard for all peoples and all nations. Artic~e 13 of the Declaration which is material for our discussion runs as folloWt') :

Paragraph 1. Everyone has the right to freedom of movement and rzsidence with in the borders of each state.

Paragraph 2. Everyone has the right to leave any country, includ-ing his own, and to return to his country.

.Paragraph 1 restricts the right of movement and residence specifically within the borders of the country. The s•2cond paragraph aims a1 securing the right to leave any country including his own and to return to his country. The Declaration at that stage did not have any idea of conferring on the citizens of any country right of movement beyond borders of the State or to freedom of speech or right to assemble out-side the country of origin. Even in the American Constitution there is 'no mention of right to freedom of speech or expression as being avail-able outside America. Regarding the right of movement within the borders of the· State it is not m~ntioned as one of the freedoms guaran-D teed in the American Constitution but everyone in the country takes it for granted that one can roam at will throughout the United States.

The right of citizen to leave any country and to return to his country is recognised in the United States. While there is no restric-tion on the citizen to return to his own country the Government of the United States does place certain restrictions for leaving the country, such as obtaining of the passports etc. Even the right to travel out-side the United States is not unrestricted. passport is f'~quest by the Government which grants it to foreign Government that the. bearer of the passport may pass safely and freely. The passport is considered as licence for leaving cou'ntry and an exit permit rather than letter of introduction. Even in. America the State Department when it issues passport ~Specifies that they are not valid for travel to countries in_ which the United States have no diplomatic representa-tion as the position of the Government is that it will not facilitate over-seas travel where it is unable to afford any protection to the traveller. The American public particularly the news reporters are claiming that they should be allowed to travel wherever they wish if need be without · their Government's ass'!fance to protection. The right of the Am~ri-can citizen to travel abroad as narrated above shows that e\~n the right to travel outside the country is not u'nfettered.

In vain one looks to the American law to find whether the citizens are gro.nted any right of freedom of speech and expression beyond the territory of the United States. The First Amendment provides for freedom of speech and press along with freedom of religion. Liberty of speech and liberty of press are substantially identical. They are freedom to utter words orally and freedom to write, print and circu-late words. But this freedom of expression would be meaningless if peopJe were not permitted to gather in groups to discuss mutual

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 recent. address on Human Rights Warren Christopher, U.S. Deputy Secretary of State reproduc-ed in Shan, October 1977, stated before the American Bar Associa-B tion in Chicago that the promotion of human rights has become fundamental tenet of the foreign policy of the Carter Administration. In explaining the conception of human rights. and its practice in America the Deputy Secretary stated that the efforts should be direct-ed to the most fundamt}ntal and important human rights all of which are internationally recognised in the Universal Declaration of Human Rights which the United Nations approved in 1948. While emphas-c ing the three categories of human rights ( 1) the right to be free from the governmental violation of the integrity of the. person; (2) the right to fulfilment of such vital needs as food, shelter, health care and education, and ( 3) the right to enjoy civil and political liberties, he stated that the freedom of thought, of religion, of assembly, of speech, of the press, freedom of movement within the outside one's own country; freedom to take part in government, were liberties which American enjoy so fully, and too often take for granted, are under assault in many places. It may be noted that while freedom of movement is referred to as both within and outside one's own country the other rights such as freedom of thought, of religion, of assembly of speech, of press, are not stated to be available outside one's own country. It is thus seen that except the right to movement outside one's own country other rights are not available extra-territorially even in America.

The fundamental rights under Art. 19 (1) of the Constitution are subject to the restrictions that may be placed under Art. 19(2) to (6) of the Constitution. The Fundamental Rights are not absolute but are subect to reasonable restrictions prov~ded for in the Constitution itself. The restrictions imposed are to be by operation of any exist-ing law or making of law by the Legislature imposing reasonable restrictions. The scheme of the Article, thus it while conferring Fundamental Rights on the citizens is to see that such exercise does not affect the rights of other persons or affect the society in general. The law made under Art. 19 ( 2) to ( 6), impose r;estrlctions on the exercise of right of freedom of speech and expression, to assemble peaceably without arms etc. The restrictions thus imposed, normally would apply only within the territory of India unless the legislation expressly or by necessary implication provides for extra-territorial operation. In the Penal Code, under sections 3 and 4, the Act is made specifically applicable to crimes that are committed outside India by citizen of India. Neither in Art. 19 of the Constitution nor in any of the enactments restricting the rigl1ts under Art. 19(2) is there any provision expressly or by necessary implication providing for extra-territorial application. citizen cannot enforce his Funda-mental Rights outside the territory of India evmt if it is taken that such rights are available outside the country.

In the view that citizen is not entitled to the Fundamental Rights guaranteed under Art. 19 outside the territorial limits of India, the contention of the learned counsel for the petition that by denying him the passport to travel outside India, his Fundamental Rights like freedom of speech and expression, to assemble peaceably, to practise profession or to carry on occupation, trade or business are infringed, cannot be accepted. The passport of the petitioner was _impounded on the ground that her presence in connection with the Inquiry Com-mission may be necessary and in the interest of public i~ was neces-sary to do so. The impugned order does not place any restrictions on the petitioner while she is away from India. Hence the question whether the State could impose such restraint does not arise in this. case. As the contention was that by impounding the passport the petitioner's fundamental right of freedQm of speech etc. outside the country was infringed, it became necessary to consider whether the citizen bad any such right.

It was strenuously contended that the Legislature by involving powers under Art. 21 cannot deprive the Fundamental Rights guaran-teed under Arl 19 at any rate within the territory of India. It will now be considered whether an Act passed under Art. 21 should also .satisfy the requirements of Art. 19.

·. ~ 'The submission was that Art. 19 applies to laws made under Articles 20, 21 and 22 and the citizen is entitled to challenge the validity of an Act made under Art. 21 on the ground that it affects the rights secured to him under cl. (1) of Art. 19. Article 20(1) provides that no person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence, nor be subjected to penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. Article 22 deals with protection against arrest and detention in certain cases, that is, in respect of preventive detention.

It has been decided by this Court in Gopalan'sC) case that in the case of punitive detention for offences under the Penal Code, it cannot be challenged on the ground that it infringes the right specijied under Art. 19(a) to (e) and (g) of the Constitution of India. Kania C.J. held:

."~f there is legislation directly attempting to control citizen's freedom of speech or expression, or his right to assemble peaceably and without arms etc.; the question whether that legislation is saved by the relevant saving clause of Art. 19 will arise. If, however, the legisation is not directly in respect of any of these subjects, but as result of the operation of other legislation, for instance, for punitive or preventive detention, his right under any of these sub-clauses is abridged the question of the applica~ tion of Article 19 does not arise."

{1) [1950J S.C.R. 88.

or not will be examined with reference to the provisions of the Consti· tution and the decisions rendered by this Court.

Article 19 to 22 appear under the title "Right to freedom". Article 19 confers freedoms on the dtizens whereas Art. 20 to 22 are not limited to citizens but apply to all persons. Article 19 does not deal with the right to life which is dealt with under Art. 21. While Art 19 provides for freedoms- which citizen is entitled to, Articles 20 to 22 restrain the State from doing certain things. Though the right to life and personal liberty is not dealt with under Art. 19, as it is mentioned in Art. 21 though in negative form, the right to life and personal liberty is secured and the State can deprive it only according to the procedure established by law. While the rights guaranteed under Art. I 9 ( 1) are subject to restrictions that may be placed by Articles 19(2) to (6), the right not to be depriv-ed of life and personal liberty is subject to its deprivation by pro-cedure established by law. The scope of the words "personal 1iberty" was considered by Mukherjea, J. in Gopalan's case (supra.) The learned Judge observed : "Article 19 gives list of individual liberties and prescribes in the various clauses the restrictions that may be placed upon. them by law so that they may not confiict with the public welfare or general morality. On the other hand, Articles 20, 21 and 22 are primarily concerned with penal enactments or other law under which personal safety or liberty of persons would be taken away in the ·interest of society and the set down the limits within which the State control should be exercised. . . . . . the right to the safety of one's life and limbs and to enjoyment of personal liberty, in the sense of freedom from physical restrain and coercion of any sort. are the inherent birth rights of 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 life". It means liberty of the person, that is freedom from personal restraint. Article 21 is one of t1Ie Articles along with Articles 20 and 22 which deal with restraint on the person. According tn Dicey :

''The right to personal liberty as understood in England means in substance person's right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification."

(Dicey's Laws of Constitution lOth Edn. page 207)

In the debates relating to the drafting of the Constitution, in Art. 15 the word that was used was "liberty". The framers of the Consti~ tution thought that the word "1iberty" should be qualified by the insertion of the word "personal" before it for otherwise it might be construed very wide1y so as to include even the freedoms already deatt witb under Art. 19, 30 (which corresponds to Art. 19 in the Constitution). The word "personal liberty" in Article 21 is, there-fore, confined to freedom from restraint of person and is different from other rights enumerated in Article 19 of the Constitution.

.A It is contended on behalf of the petitioner that after the decision of the Bank Nationalisation case and Bennet Colomon's case the view taken earlier by the Supreme Court that in construing whether the deprivation of personal liberty is valid or not the enquiry should only be confined to the validity of the procedw~e prescribed without any reference to the rights conferred under Art.. 19 ( 1) is no longer good law. The decisions bearing on this question may now be .B examined.

In Gopalan's case it was held that Art. 19 dealt with the rights of the citizens when he was free, and did not apply to person who had ceased to be free and had been either under punitive or preven~ tive legislation. It was further held that Art. 19 only applied where legislation directly hit the rights enumerated in the Article and not where the loss of rights mentioned in the Article was result of the operation of legislation relating to punitive or preventive detention. It was also stated by Justice Mukherjea that law depriving the personal liberty must be valid law which the legislature is compe-tent to enact within the limits of the powers assigned to it and which does not transgress any of the Fundamental Rights the Constitution lays dawn. The 1earned Judge explained that the reasonableness of law coming under Art. 21 could not be questioned with refer-ence to anything in Art. 19 though law mad1! under Art. 21 must .confonn to the requirements of Articles 14 and 20. It cannot be said that 'it should conform to the requirements of Article 19. The view, thus expressed in Gopalan's case, was affirmed by the Supreme .Court in Ram Singh v. State of DelhiC) where it was held :

"Although personal liberty has content sufficiently comprehensive to include the freedoms enumerated in Art. 19 ( 1) , and its deprivation would result in the extinction of those freedoms, the Constitution has treated these civi1 liberties a~ distinct from fundamental rights and made sepa-rate provisions in Art. 19 and Arts. 21 and 22 as to the limitations and conditions subject to which alone they could be ~aken away or abridged ... The interpretation of these Artic]es and their correlation was elaborately dealt with by the full court in Gopalan's case.

Approving the interpretation of the Articles in Gopalan's case it was held that law which authorises deprivation of personal liberty did not fall within the purview of Art. 19 and its validity was not to ·G be judged by the criteria indicated in that Article but depended on its compliance with the requirements of Arts. 21 to 22.

This view was again affinned in State of Bihar v. Kameshwar Singh,(Z) where Das, J. in approving the law ·Jaiu down in Gopalan's case ob-served as follows : · "As I explained in Gopalan's case and again in Chiranjit Lal's case 1950 SCR 869 our Constitution pro-tects the freedom of the citizen by article 19 ( 1) (a) to (1) [1951] S.C.R. 451 (2) [1952] S.C.R 889.

--...,_

(e) and (g) but empowers the State, even while those freedoms last, to impose reasonable restrictions on them in the interest of the State or of public order or morality or of the general public as mentioned in clauses (2) to (6). Further, the moment even this regulated freedom of the individual becomes incompiil.tible with and threatens the freedom of the community the State is given power by article 21, to deprive the individual of his life and personal liberty in accordance with procedure established by law, subject of course, to the provision~ of Art. 22.In Express Newspapers (P) Ltd. & another vi. The Union of India & Others,C) the test laid down was that there must be direct or inevitable consequence of the measures enacted in the impugned Act, it would J10t be1 possible to strike down the legislation as having that effect and operation. possible eventuality of this type vmuld not necessary be the consequence which could be in the coQtemplation \1f the legislature while enacting measure of this type for the benefit of the workmen concerned. The test, thus applied, is whether the consequences were "direct and inevitable" '!

In Hamdard Dawakhana (Wakf) Lal Kuan v. Union of lndia,(2) after citing with apprpval the case of Ram Singh and Express News-papers case, it was observed :

"It is p.ot th~ form or :incidental infringement that determine the constitutionality of statute in roference to the rights guaranteed in Art. 19 ( 1) but the reality and the substance ........ Viewed in this way, it does not select any of ihe elements or attributes of freedom of speech fall· ing 'flithin Art. 19(1) (a) of the Constitution."

Reality and substance test was lrud down in this case while approving of the earlier decisions when the court was considering the question whether the ban on advertisement would affect the rights conferred under Art. 19(1) (a).

The correctness of the view as laid down in Gopalan's case and affinned in Ram Singh's case was doubted by Subba Rao, J. in Kochuni v. The State of Madras([3]). The learned Judge after referr-ing to the dissenting view of Fazal Ali, J. in Go pal an's case rejecting the plea that law under Art. 21 shall not infringe Art. 19(1) observed:

"The question being integra with the dissenting view expressed by Fazal Ali, J. we are bound by this judgment."

Reliance was placed by the learned counsel for the petitioner on the decision by this Court in Sakal Papers (P) Ltd. and Ors. v. The Union of India. ( [4]) The learned counsel referred to the passage at page .S60A

(1) [1959] 1 S.C.R.135.

(2) [1960] 2 S.C.R. 671 at page 691.

(3) [1960)3 S.C.R. 887.

(4) [1 962] 3 S.C.R. 842.

In Kharak Singh's (3) case the majority took the view that the word 'liberty' in Art. 21 is qualified by the word 'personar and there its con-tent is narrower and the qualifying adjective bas been employed in order

(1) [1970] 3 S.C.R 530. (2) [1973] 2 S.C.R. 757. (3) [1964] 1 S.C.R. ~32.

to avoid overlapping between those elements or incidents of liberty like freedom of speech or freedom of movement etc. already dealt with in Art. 19 (I) and the liberty guaranteed by Art. 21 and particularly in the context of the difference between the permissible restraints or res-trictions which might be imposed by sub clauses (2) to (6) of the Arti-cle of the several species of liberty dealt w:th in several clauses of Article 19 (I) . The minority view as expressed by Subba Rao, J. is that if person's fundamental right under Art. 21 is infringed, the State can rely upon law to sustain the action; but that cannot be com-p·lete answer unless the State laws satisfy the test laid down in Article 19 (2) as far the attributes covered by Article 19 (1) are concerned. In other words, the State must satisfy that petitioners fundamental rights are not infringed by showil)g that the law only imposes reasonable restrictions within the meaning of Art. 19 ( 2) of the Constitution. The submission of the learned counsel for the petitioner is that the view as expressed by Subba Rao, J. has been affirmed by the subsequent deci-sions in the Bank Nationalisation(l) case and Bennet Colomon([2 ]) case.On 19th July, 1969, the acting President promulgated an ordinance No. 8 of 1969 transferring to and vesting the undertaking of 14 names commercial banks in the corresponding new bank under the ordinance. Subsequently, the Parliament, enacted Banking Companies (Acquisition of Transfer of Undertaking) Act, 1969. The object of the Act was to provide for the acquisition and transfer of the undertakings of certain banking companies in conformity with the national policy and objectives and for matters corrected therewith and incidental thereto. The peti-tioners before the Supreme Court who held shares in some of the named banks or had accounts current or fixed_ deposits in the banks challenged the validity of the enactment. In the petitions under Art. 32 of the Cotl-stitution the validity of the Ordinance and the Act was questioned on various grounds. I am concerned with ground no. 3 which runs as follows :

Article 19(1) (f) and Art. 31 (2) are not mutually exclusive and the law providing for acquisition of property for public purpose could be tested for its validity on the ground that it imposes limitation on the right to property which were not reasonable; so tested the provision of the Act transferring undertaking of the named banks and prohibiting practically from carrying banking business violates the guarantee under Art. 19(1) (f) and (g). In de-aling with this contention, the court held that Articles 19(1) (f) and Article 31 (2) are not mutually exclusive. The court observed that the principle underlying the opinion of the majority in Go pal an's case was extended to the protection· of the free-dom in respect of property and it was held that Art. 19 ( 1) (f) and 31 (2) were mutually exclusive in their operation and that substantive provisions of law relating to acquisition of property were not liable to be challenged on the ground that it imposes unreasonable restrictions on the right to hold property. After mentioning the two divergent lines of authority, the coun held that "the guarantee under Art. 31 (1) and (2) arises out of the limitations imposed on the authority of the StAte,

r (1) {1970] 3 S.C.R. 530. ((2) [1973J 2 S.C.R. 757.~

(1) (1951] S.C.R. 451.

Having thus dealt with the passages in the judgment in Gopalan's case the Court proceeded to consider its effect and observed that the princi-ple underlying the judgment of the majority was exteQded to t~e pro-tection of freedom in respect of property and it was held that Article 19(1) (f.) anrl Art. 31 (2) were mutually exclusive in their operation. While observations in judgment of Gopalan's case as regards the ap-plication of Art. 19 ( 1) (f) in relation to Art. 21 were not referred to, the Court proceeded to deal with the correctness of the principle in Gopalan's case being extended to the protection of the freedom in res-pect of property. In A. K. Gopalan's case (supra) Das, J., :-stated that if the capacity to exercise the right to property was lost, because of law-ful compulsory acquisition of the subject of that right, the owner ceased to have that right for the duration of the incapacity. In Chiranjit Lal Chowduri's case,(l) Das, J. observed at page 919 :

" .... the right to property guaranteed by Art. 19 ( 1) (f) would ...... continue until the owner was under Art. 31 de-prived of such property by authority of law.,

Das, J. reiterated the same view in The State of West Bengal v. Subodh Go pal, (2) where he observed :

"Art. 19(1) (f) read with Art. 19(5) pre-supposes that the person to whom the fundamental right is guaranteed re-tains his property over or with respect to which alone that right may be exercised.

Thus the observation in Gnpalan's case extending the principle laid down in the majority judgment to freedom in respect of property was reite-rated by Das, J. in Chiranjit Lal CJwwduri's case (supra) and Subodh Gopal's case. The principle was given more concrete shape in State of Bombay v. Bhanjit Munji(3) case wherein it was held that "if there is no property which can be acquired held or disposed of, no restriction can be placed on the exercise of the right to acquire, hold or dispose it of, and as clause (5) contemplates the placing of reasonable restric-tions of the exercise of those rights it must follow that the Article postu-lates the existence of property over which the rights are to be exercised. •• This viw was accepted in the later cases Dabu Barkya Thakur v. State of Bom1Jay([4 ]) and Smt. Sitabati Debi and Anr. v. State of West Ben-f!al. ([5]) The Court proceeded further after referring to some cases to note that. "With the decision in K. K. Kochuni's case(G) there arose two divergent lines of authority ( 1) "authority of law" in Art. 31 (1) is liable to be tested on the ground that it violates other fundamental rights and freedoms including the right to hold property guaranteed by Art. 19(1) (f) and (2) "authority of law" within the meaning of Art. 31(2) is not liable to be tested on the ground that it impairs the gua-rantee of Art. 19 ( 1 ) (f) 1n so far as it imposes substantive restrictions

(l) [1950J S.C.R. 869.

(2) [1954] S.C.R. 587.

(3) [1955] (1) S.C.R. 777.

(4) [1961} 1 S.C.R. 128.

(5) H967] 2 S.C.R. 940.

(6) [1960} 3 S.C.R. 887.

. ___ ...

though it may be tested on the ground of impairment of other guaran-tees." Later in the decision of State of Madhya Pradesh v. Ranoiro ShindeC) the Supreme Court opined that the! validity of law in cl. (2) o.f Art. 31 may be adjudged in the light of Art. 19 (1 )(f). But the Court in that case did not consider the previous catena of authorities which related to the inter-relation between .Art. 31 (2) and Art. 19(1 )(f) .

In considering the various decisions referred to regarding the inter-relation of Art. 31 (2) and Art. 19(1) (f) the Court proceeded to ex-press its view that "the theory that the object and form of the State action determine the extent of protection which che aggrieved party ma.y claim is not consistent with the constitutional scheme. Each freedom has difierent dimensions." Having so stated the Court considered the inter-r~lation of Art. 31 (2) and Art. 19(1) (f) and held :

"The true character of the limitations under the two pro-visions is not different. Clause (5) of Art. 19 and cls. (1) & (2) of Art. 31 are parts of single pattern; Art. 19 ( 1) (f) enunciates the basic right to property of the citizens and Art. 19(5) and cis. (1) & (2) of Art. 31 deal with limitations which may be placed by law, subject to which the rights may be exercised/,

It must be noted that basis for the conclusion is that Art. 19 and cl. ( 1) and ( 2) of Art. 31 are parts of single pattern and while Art. 19 ( 1) (f) enunciates the right to acquire, hold and dispose of property; cl. (5) of Art. 19 authorise imposition of restrictions upon the right. There must be reasonable restriction and Art. 31 assures the right to property and grants protection against tb_e exercise of the authority of the State and cl. (5) of Art. 19 and cis. (1) and (2) of Art. 31 prescribe res-trictions upon State action, subject to which the right to property rna y \ ~­be exercised. The fact that right to property guaranteed under Art. [ 19(1) (f) is subject to restrictioJ:!s under Art. 19(5) and 31 and thereby relate to the right to property closely inter-related cannot be overlooked for that formed the basis for the conclusion. Mter referring to the various Articles of the Constitution the Court observed :

~'The enunciation of rights either express or by implication does not follow uniform pattern. But one thread runs through them; they seek to protect the rights of the individual or group of individuals against infringement of those rights within specific limits. Part III of the Constitution weaves pattern of guarantees delimit the protection of those-rights in their allotted fields; they do not attemptl to enunciate distinct rights."

It proceeded

"We are therefore unable to hold that the challenge to the validity of the provisions for acquisition is liable to be t~~sted only on the ground of non-compliance with Art. 31(2). Article 31(2) requires that pro-perty must be acquired for public purpose and that it must be acquired (1) [1968] 3 S.C.R. 489.

under law with characterstics set out in th_at Articles. -Formal com-pliance of the condition of Art. 31 (2) is not sufficient to negative the protection of the guarantee of the right to property."

After expressing its conclusion, the Court proceeded to state that it is found necessary to examine the rationale of the two lines of authority and determine whether there is anything in the Constitution wltich just fies this apparentliinconsistent development of the law. While stating that in its judgment the assumption in A. K. Gopulan' s case that certain articles exolusively deal with specific matters and in determining whe~ ther there is infringement of the individual's guaranteed rights, the ob-ject and the form of State action alone need be considered, and effect of laws on fundamental rights of the individuals in general will pe ignored cannot be accepted as correct. To this extent the Court specifically over ruled the view that the object and form of the State action alone need be considered. It proceeded "We hold the validity "of law" which authorities deprivation of property and "a low" which authorises com-pulsory acquisition of property for public purpose must be adjudged by the application of the same tests." It wlll thus be seen that the entire discussion by the Court in Bank Nationalisation case related to the inter-relation between Art. 31( 2) and Art. 19 (1) (f) . In dealing with the question the Court has no doubt extracted passages from the judgments of learned Judges in Gopalan's case but proceeded only to ;;onsider the extension of the principle underlying the majority judgment to the pro-tection of the freedom in respect of property, particularly, the judgment of Justice Das. After stating that two vi~s aros~ after Kochuni's case the Court concerned itself only in determining the rationale of the two lines of authority. The view taken in Gopalan's case that the objection and the fonn of State action has to be considered was over ruled and it was laid down thatl it is the effect and action: upon the right of the per-son that attracts the jurisdiction of the Court to grant relief. It is no doubt true that certain passing observations ha vc been made regarding the Jiberty of persons, such as at page 576 :

"We have carefully considered the weighty pronounce-ments of the eminent judges who: gave shape to the concept that the extent of protection of important guarantees such as the liberty of person, and right to property, depends upon the form and object of State action and not upon its direct opera-tion upon the individual's freedom."

Though the liberty of person is incidentally mentioned there is no further discussion on the subject. While undoubtedly Bank Nationa-lisation case settles the law that Art. 19(1) (f) ~nd Art. 31 (2) are not mutually exclusive there is no justification for holding that the case is authority for the proposition that the legislation under Art. 21 should a·lso satisfy all the fundamental rights guaranteed under Art. 19 ( 1) of the Constitution. As emphasised earlier Art. 19 ( 1) (f) and Art. 31 (2) form 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 ns the article refer to right to property they are so closely inter~ linked and cannot be held to be mutually exclusive. But Art. 21 is related to deprivation of life and personal liberty and it has been held 10--119 SCI/78

that it is not one of the rights enumerated in Art. 19 (1) and refers only to personal right~ as are not covered by Article 19.

The decision in Bank Nationalisation case so far as it relates to Articles 19(1) and 21, is in the nature of obiter dicta. Though it is decision ot Court of 11 Judges and is entitled to the highest regard, as the Court had not applied its mind and dedded tht: specific question and as is in the nature of general, casual observation on point not calUng for decisiq_n and not obviously argued before it, the case cannot be taken as an authority on the proposition in question.. The Court can-not be said to have declared the law on the subject when no occasion arose for it to consider and dec_ide the question.

It may also be noted that as the Court ruled that the jmpugned Act violated Art. 31 (2) by not laying down the necessary principles, the decision of the inter-relationship between Art. 19(1) (f) and 31(2) was not strictly necessary for the purpose of giving relief to the petitioner. We arc not concerned in this case as to whether the decision in Bank Nationalisation case is in the nature of Obiter dicta so far as it held that Arts. 19 ( 1) and 31 (2) are interrelated. But it is necessary to state that the decision proceeded on some erroneous assumptions. At page 571 of Bank Nationalisation case (supra)' it was assumed. "The Majo-rity of the Court (Kania, C.J. and Patanjali Sastri, Mahajan, Mukherjea & Das JJ.) held that Art. 22 being complete code relating to preven-tive detention the validity of an .order of detention must be determined strictly according to the terms and within the four comers of that arti-cles." This statement is not borne out fi:om the text of the judgments in Gopalan's case. At p. 115 of Gopalan's case (supra) Kania C.J. has stated : "The learned Attorney General contended that the sub-ject of preventive detention does not fall under article 21 at all. and is covered wholly by article 22. According to him, article 22 is com~ plete code. I am unable to accept that contention." Patanjali Sastri J. at page 207 of the judgment said : "The learned Attorney General contended that article 22 clauses ( 4) to (7) fmmed complete code of constitutional safeguards in respect of preventive detention, and, pro-F vided only these provisions are conformed to. the validity of any law relating to preventive detention could not be challenged. I am .unable to agree with this view". Das J. in referring to the Attorney General's argument at page 324 stated : "that article 21 has nothing to do wlth preventive detention at all and that preventive detention is wholly cover-ed by article 22 ( 4) to (7) which by themselves constitute complete code. I am unable to accede to this extreme point of view also." Mukherjea J. at p. 229 of that judgment observed : "It is also unneces-sary to enter into discussion OQ the question raised by the learned At-terney-General as to whether article 22 by itself is self-contained Code with regard to the law of preventive detention and whether or not tbc procedure it lays down is exhaustive." Justice Mahajan at page 226 held that "I am satisfied on review of the whole scheme of the Con-stitution that the intention was to make article 22 self-contained in res-H pect of the laws on the subject of preventive detention.u It is thus seen that the assumption in Bank Natiooalisation's case that the majo-rity of the Court held that articJe 22 is complete code is erroneous and the basis of the decision stands shaken. If the obiter dicta based

\. ''--r-.

on the wrong assumption is to be taken as the correct position in law,. il would lead to strange results. If arts. 19 (1) (a) to (e) and (g) are attracted in the case of deprivation of personal liberty under art. 21, punitive detention for an offence committed under the Indian Penal Code such as theft, cheating or assault would be illegal as pointed out in Gopalan's case by Kania C.J. and Patanjali Sastrl J. for the rcason--·able restriction in the: interest of public order would not cover the offences mentioned above. As held in Gopalan's case and in Salta's case there can be no distinction between punitive detention under the Penal Code and preventive detention. As pointed out earlier even though Fazal Ali J. dissented in Gopalan's case, the same view was expressed by His Lordship so far as punitive detention was concerned. He said : "The Indian Penal Code does not primarily or necessarily impose restrictions on the freedom of movement and it is not correct to say that it is law imposing restrictions on the rightto move freely." The conclusion that art. 19(1) and Art. 21 were mutually exclusive was _ arrived at on an interpretation of language of art. 19 (1 )(d)_ read with art. 19(5) and not on the basis that art. 19(1) and 21 are exclusive and Art. 21 complete code. The words "personal liberty" based on the Draft Committee report on Art. _15 (now Art. 21) was added to the word 'personal' before the word 'liberty' with the observation that the word 'liberty' should be qualified by the word 'personal' before it for otherwise .it may be construed very wide so as to include even the free· doms already dealt with in Art. 13 (now Art. 19). In Gopalan's case it was also pointed out by the Judges that art. 19(1) and 21 did not operate on the same field as Art. 19 ( 1) and 31 (2) of the Constitution are. The right under Art. 21 is dierent and does not include the rights that are covered under art. 19. Art. 19 (1) confers substantive right as mentioned in clauses. (a) to (g) on citizen alone and does not in-clude the right of personal liberty covered in Art. 21. For the reasons stated above obiter dicta in Bank Nationalisation's case that legisla-tion under art. 21 should also satisfy the reqUirements of Art. 19 ( 1) cannot be taken as correct law. The Court has not considered the reasoning in Gopalan' s case and over-ruled it.

Before proceeding to consider the test of validity of legislation as laid down in Bennet Colomon's case following the Bank Nationalisation case the decisions which followed the Bank Nationalisation case hold-ing on the erroneous premises that the majority in Gopalan's case held that Article 22 was self·contained Code, may be shortly referred to. In S, N. Sarkar v. West Bengal(l), the Supreme Court held that in Gopalan' s case the majority Court held that Article 22 was self·con-tained Code and, therefore, the law or preventive detention did not have to satisfy the requirement of Articles 19, 14 and 20. In the Bank Nationalisation case the aforesaid premise in Gopalan was disapproved and, therefore, it no longer holds the field. Though the Bank Nationa-lisation case dealt with in relation to Article 19 and 31, the basic ap· proach considering the fundamental rights guaranteed in the different provisions of the Constitution adopted in this case held the major pre-mises of the majority in the Gopalan case was erroneous. The view taken in this case also suffers from the same·infirmities referred to in (1) [1973] 1 s.c.c. 856.

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 js seen that the view taken in the Bank Nationalisation case that 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 self contained Code. The decisions which followed Bank Nationalisation case, namely, the case of S. N. Sarkar v. West Bengal and Khundiram v. West Bengal, H. Saha v. West Ben-gal, suffer from the same infirmity. With respect I agree with the view expressed by Chief Justice Ray and Justice Beg, as he then was, in Shukla's case.

Next to Bank Nationalisation case strong reliance was placed on Bennet Colomon's case by the petitioner for the proposition that. the direct effect of the legislation of the ~fundamental rights is the test.

In the case the petitioners impugned the new newsprint policy on various grounds. The Court held that though Article 19 ( 1) (a) does not mention the freedom of press, it is settled view of the Court that freedom of speech and expression includes freedom of press a'nd cir-. culation. Holding that the machinery of import control cannot be utilised to control or curb circulattion or growth of freedom of news-papers it was held that Newspapers Control Policy is ultra-vires of the Import Control Act and the Import Control Order. The Court after referring to the two tests laid down in Bank Nationalisation case observed : "Direct operation of the Act upon the .right forms the real test". The question that was raised in the case was whether the impugned newsprint policy is in substance newspaper control. The Court held. that the Newsprint Control Policy is found to be News-paper Control Order in. the guise of framing an import control policy fot newsprint. As the direct ope_ration of the Act was to abridge the freedom of speech and expression, the Court held that the pith and substance doctrine does not arise in the present case. On the facts of the case there was no need to apply the doctrine of pith a'nd subs-tance. It·may be noted that in Bennet Colomon's case the question whether Articles 21 and 19 are mutua1ly exclusive or not did not arise for consi-deration and the case cannot be taken as an authority for the question under consideration in the case. Bennet Colomon's case, Express Newspapers case, Sakal Newspapers case were all concerned with the right to freedom of. the press which is held to form part of freedom of • speech and express1on.

Whet~er the. pit.h and substance doctrine is relevant in considering the question of mfrmgement of fundamental rights, the Court observed at page 780 of the Bank Nationalisation case "Mr. Palkhivala said that the tests of pith and substance of the subect matter and of direct

an~ of. incide'ntal effect of the legisla~on are relevant to question of ~eg1~lativc competence but thc.y are Irrelevant to the qucsti,)n of mfnngement of fundamental nghts. In our view this is sound and correct approach to interpretation of legislative measures and State action in relation to fundamental rights." It is thus clear, that the test of pith and substance of the subject matter and of direct and incidental effect of legislation is relevant in considering tht:! question of irfringe-B ment of fundamental right. •The Court at page 781 said : ··by direct operation is meant th~ direct consequence or effect of the Act upon the rights and quoted with approval the test laid down by the Privy Council in Commonwealth of Australia v. Bank of New South Wales.C) -In deciding whether the Act has got direct operation of any rights upo'n the fundamental rights, the two tests are, therefore, rele-· vant and applicable. These tests have been applied in severd cases before the decision in Bank Nationalisation ca~,e. reference has: been made to the decision of Express Newspapers (P) Ltd. and Anr. v~ Union of India,(2) where the test laid down was that there nust be direct and inevitable consequenc-e of 1he legislation. In amdard Dawakhana v. Union of .India([3]) this Court foHowed the te:;t laid down in Express Newspapers case. The Court expressed it:; view that it is not the form or incidental infringement that determine co'nsti~ tutionality of statute but reality and substance. In Sakal Papers (P) Ltd. v. Union of lnd~a([4]) it was held that the "Correct approach . in such cases should be to enquire as to what in substance is the loss or injury caused to the citizen and not merely what ma'Jmer ana method have been adopted by the State in placing the restriction. The Supreme Court in some cases considered whether the effect of the operation of the legislation is direct and immediate or not. If it is remote, incidental or indirect, the validity of the enactment will not be effected. The decision in Copper's case has not rejected tte above test. The test laid down in cooper's case is the direct operation on the rights of the person. ' The test was adopted and explained in Bennet Colomon'J' case as poihted above. The view that pith and substance rule is not confined in resolving conflicts between legislative powers is made dear in the decision of the Federal Court in Subramaniam Chettiar's case,(5) where Varda· chariar, J. after referring briefly to the decision of Gaf,'agher v. Lynn,([0 ]) held that "They need not be limited to any t.pecial system of federal constitution is made clear by the fact hat in Gallc.qher . v. Lynn, Lord Atkin applied pith and substance rule when d~alm~ wtth question arising under the Government of Ireland Ac;t wh1ch dtd not •embody federal system at all." (1) [l950J A. C. 235. (2) [1959]1 S.C.R. 235. (3) [1960] 2 S.C.R. 671, (4) [1962] 3 S.C.R. 842. (5) [1940] Federal Cont Reports 188. (6} [1937] A. C. 863.

The passport. Act provides for issue ot passports and travel docu~ ments for regulating the departure from India of citizens of India and other persons. If the provisions comply with t~e requirements of Arti-cle 21, that is, if they comply with the procedure established by law the validity of the Act cannot be challe'nged. If incidentally the Act infringes on the rights of citizen under Art. 19 ( 1 ) the Act cannot be found to be invalid. The pith and substance rule will have to be applied and unless the rights are directly affected, the challenge will fail. If it is meant as being applicable in every case however remote it may be where the citizen's rights under Art. 19 ( 1) are affected, punitive ~etention will not be valid.

The result of the discussion, therefore, is that the validity of the Passport Act will have to be examined on the basis wh~ther it directly and immediately infringes on any of the fundamental right of the petitioner. If passport is refus~d according to procedure estabJished by law, the plea that his other fundamental rights are denied cannot lJe raised if they are not directly infringed. ·

The decisions of the Supreme Court wherein the right of person to travel abroad has been dealt with may be noticed. In Satwant Singh v. Assistant Passport Officer, Delhi ) the Court held that though passport was not required for leaving, for practical purposes no one can leave or enter into India without passport. Therefore, pass-port is essential for leaving and entering India. The Court held the right to travel is part of personal liberty and person coqld not be deprived of it except according to the procedure laid down by law. The view taken by the majority was that the expression "personal liberty" in Article 21 only excludes the ingredients of liberty enshrined in Art. 19 of the Constitution and the exression 'personal liberty' would take in the right to travel abroad. This right to travel abro.a~ is not absolute and is liable to be restricted according to the procedure. established by law. The decision has made it clear that "personal liberty" is not one of the rights -secured under Article 19 and, there-fore, liable to be restricted by the legislature according to the proce-dure establish~d by law. The right of an American citize~ to travel is recognised. In Kent v. Dull~s, (2) the Court observed that the right to travel is part of the 'liberty' of which the citizen cannot be deprived withO'Ut due process of law under the Fifth Amendment. . "The free-dom of movement across the frontiers in either direction, a'nd inside· frontiers as well, as part of our heritage, Travel abroad, like travel. within the country ...... may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of move· ment is basic in our scheme of values., In subsequent d~cision­Zemel v. Rusk([3]) the Court sustained against due process attacks the Government's refusal to issue passports for travel to Quba because the refusal was grou'nded on foreign policy considerations affecting all citizens. "The requirements of due process are function not only. of the. extent of the governmental restriction imposed, but also of the extent of tho~ necessity for the restriction."

O) £1967] 2 s.c.R. 525.

(2) 357 U.S. page 116, at page 127 (1958).

{3) 381 U.S. (1) at page 14.

(The Constitution of the United States of A.merica-Analysis and interpretation-at page 1171)

In Herbert Aptheker etc. v. Secretary of Stcue,(l) the Court struck down congres.sional prohibition of international travel by members of the Commumst Party. In subsequent decision the Court upheld the Go"~~r·nment's refusal to issue passports for travel to Cuba, because the refusal was on foreign policy consideration affecting all citizens [Zemel v. Rusk (supra)]. Thus an American's citizen's right to travel abroad may also be restricted under certain conditions. Our Constitution provides for restriction of the rights by 'procedure esta-blished by law•. It will be necessary to consider whether th'e impugned Act) Passport Act satisfies the requirements of procedure establish~d by 1aw. · The procedure established by law does not mean procedure, how-ever, fantastic and oppressive or arbitrary which in truth and reality is no procedure at all [(A. K. Gopalan v. State of Madras)(') obser-vations of Mahajan, J.J. There must be some procedure and at least it must confirm to the procedure established by law must be ta~~n to mean as the ordinary and well estabished criminal procedure, that is to say, those settled usages and normal modes of proc·~edings, sanctioned by the Criminal Procedure Code which is general Jaw of Criminal procedure in the Country. But as it is accepted that pro-cedure established by law refers to statute law and as the legislature is competent to change the procedure the procedure as envisaged in the cri_minal procedure cannot be insisted upon as the l·~gislature can modify the procedure. The Supreme Court· held in Kartar Singh's case(3) that Regulation 236 clause (b) of the U.P. Police Regulation • which authorises domiciliary visits when there was no law on such regulation, violated Article 21.

I will not proceed to examine the provisions of Passport Act, Act 15 of 1967, to det>~rmine whether the provisions of the Act are in accordance with the procedure established by law.

The Preamble states that the Act is to provide for the iSsue of passports and travel documents to regulate the departure from· India of citizens of India and other persons and for mattt~rs. incidental or ancillary thereto. It may be remembered that this Act was passed ~fter the Supreme Court had held in SaD,want Sl'ngh V. Union of lndiar) that the right to tavel abroad is .a part of person's persobal liberty of which he could not be deprived except in accordance with the proce-dure established by law in terms of Article 21 of the Constitution. 1he legislature came forward with this enactment prescribing the procedure· for issue of passports for regulating the departure from India of citizens and others.

(I) 378 u.s. 500-.

(2) [1950J S.C.R. 88 at page 230.

(3) [1963] I S.C.R. 332.

{4) [1967J 3 S.C.R. 525.

/ ~- r ("'

Section 5 of the Act provides for applying for passports or travel documents etc. a'nd the procedure for passing ord~rs thereon. On receipt of an application under sub-section (2) the passport authority may issue passport or travel document with endorsement in respect of the foreign countries specified in the application or issue of pass- -port or travel documr.;nt with endorseme'nt in respect of some foreign countries and refuse to make an endorsemen{ in respect of other countries or to refuse to issue passport or travel document and to refuse to make on the passport or travel document any endorsement. In the event of the passport authority refusing to make an endorsement as applied for or refusal to issue passport or travel document or refusal of endorsem:::nt, the authority is required to record in writing brief statement of its reasons. and rurnish to that person, on demand, copy thereof unless the authority for reasons specified ·in sub-section (3) refuses to fur'nish copy. Section 6 provides that the refusal to make an endorsement shall be on one or other grounds mentioned in· sub-sections ( 2) to ( 6) . Section 8 provido.es that every passport shaH be renewable for the same period for which the passport was originally issued unless the passport authority for reasons to be recor-ded in witing otherwise determines.

Section 10 is most important as the impounding of the passport of the petitioner was ordered under section 1 0 ( 3) (c) of the Act. Se<!tion 10(1) enables the passport authority to vary or cancel the endorsement on passport or travel d,ocument or may with the previous approval of the Central Government, vary or cance) the conditions subject to which passport or travel document has been issued, and require the holder of passport or travel document by notice in wnting, to deliver up the passport or travel document to it within such time as may be specified in the notice. Sub-section (2) enables the holder of passport or travel document to vary or cancel the condi-tions of the passport. .

Section 10(3) with which we are concerned runs as follows :

10(3).--.The passport authority may impound or cause to be

impounded or revoke passport or travel document,-

(a) If the passport authority is satisfied that the holder of the passport or traveJ document is in wrongful po~sesston of;

(b) If tho~ passport or travel document was obtained by the suppressio'n of material information or on the basis of wrong information provided by the holder of the pass pot or· travel document or any other person on his behalf; , (c) If the passport authority deems it necessary so to do in the interests of the sovereignity and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public;

(d) If the holder of the passpot or travel document has, at any time after the issue of the passort or traw~l document, been convicted by court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not k~ss than two years;

(c) If proceedings in. respect of an offence alleged to have. been committed by the holder of the passport or travel document are pending before criminal court in India;

(f) If any of the conditions of the passport or travel document has been contravened; (g) If the holder of tho:! passport or travel document has failed to· comply with notice under sulJ-section ( 1) requiring liim to deliver up the same. (b) If it is brought to the notice of the passport autho~ rity that warrant or summons for the appearance · or warrant for the aw~st, of the holder of the pass~ port or travel document has been issued by court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document .has been made by any such court and the passport autho-rity is satisfied that warrant or summons has been so issued or an order has been so made."

Section 10(3) (c) enables the passport authority to impound or revoke-a passport if the passport authority deems it necessary so to do in the-interests of the sovereignty and integrity of India, the security of India,. friendly relations of India with any foreign country, or in the interests. of the general pub11c.

Section 10(5) requires the passport authority to record in writing brief statement of the reasons for making an order under sub-section· ( 1) or ( 3) and to furnish the holder of th~ passport on demand copy of the same unless in any case the passport authority is of the opinion that it will 'not be in the interests of the sovereignty and integrity of India, th~ security of India, friendly relations of India with any foreign country or in the interests of the general public to furnish sucb copy. ·section 11 provides for an appeal by the aggrieved person against any order passed by the passport authority under several clauses men ... tioned icy sub-section ( 1) of that section. It is also provided that ho appeal shall lie against any order passed by the Central Government. Section 11 ( 5) provided that in disposing of an app~a 1, the appellate authority shall follow such procedure as may be prescribed and that no appeal shall be disposed of un~ess the appellant has been given 'a reasonable opportunity of representing his case. Rue 14 of the Pass-port Rules, 1967 prescribes that the appellate authority may call for the records of the case from the authority who passed the order

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appealed against and aft~r giving the appellant reasonable opportu~ nity of representing his case pass final orders. ·

To sum up under section 10(3) (c) if the passport aut~ority deems it necessary so to do for reasons stC\ted in the suh-&;:ctwn, he may impound passport. He is required to record in writing_ brief state-: ment of the reasons for making ~uch order and to furmsh copy of the order on demand unless in any case he thinks for reasons mentioned in sub-section ( 5) that copy should not be furnished. Except against an order passed by the Central Governmt;:nt .the ag~ieved p~r­son has right of appeal. The appellate authonty IS reqmred to gt~e reasonable opportunity to the aggrieved person of representing h1s case.

Jt was submitted on behalf of the petitioner that on reading of section 10(3) observance of rule"s of natural justice, namely the right to be heard, is implied and as the Government had failed to give an opportunity to the petitioner to explain her case the order is unsus-tainable. In the alternative it was submitted that if section 10(3) (c)· is construed as denying the petitioner an opportunity of being heard and by the provisions of section 11 right of appeal against an order pas·sed by the Central Government is denied the provisions will not be procedure as established by law under Article 21 and the relevant sections should be held· ultra vires of the powers of the legislature. It was contended that the power conferred on the authority to im-pound passport in the interests of general public is very vague and in the absence of proper guidance an order by the authority impound-ing the passport "in the intere'sts of general public" without any explanation is not valid. The last ground may easily be disposed of. The words 'in the interests of general public' no doubt are of wide connotation but the authority in construing the facts of the case should determine whether in the interests of public the passport will have to be impounded. Whether the reason's given have annexus to the interests of general public would depend upon the facts of each case. The p1ea that because of the vagueness of the words 'interests of the treneral public' in the order, the order itself is unsustainable, cannot be accepted... The .submission that in the context the rule of natural justice, that 1s,_ th~ nght to be heard has not been expr.essly or by necessary im-plication taken away deserves careful constderation. Under Section 10 ( 3) the passport authority is authorised to impound or revoke passpor~ on any of the g~ounds specified in clauses (a) to (h) of sub-sectiOn ~3). Sub-section 3 (a) enables the authority to impound passport If the holde~ of the pa·ssport is . in wrongful possession there? f.. Under su.b-sectiOn 3 (b) the 3:uthonty can impound pass-port 1f 1t was obtamed by the suppression of material information or on the basis of wrong information provided by the holder of the pass-port. Under c~ause (d) ·a passport can be impounoed if the holder had been conVIcted by Court of India for any offence involving moral turpitude and sentenced to imprisonment for not Jess than two y~ars! T}nder clause (e) the passport can be impounded where:

proceedings in respect of an offence alleged to have been committed by the holder of passport is pending before criminal court in India. ~lause (f) enables the authority to impound the passport if any of the conditions of the passport have been contravened. Under clause (g) the passport authority can act if the holder of the passport had failed to comply with notice under sub-section ( 1) requiring him to deliver up the same. Under sub-clause (h) passport may be impounded if i! is brought to the notice of the passport authority that warrant or summons for appearance of the holder of the passport has been issued by any court or if there is an order prohibiting de-parture Jrom India of the holder of the pa·ssport has been made by 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 person has been convicted by .a court in India for any offence involving moral turpitude and sentenced to imprisonment for not less than two years, can only be ascertained after hearing the holder of the passport Under clause (e) the fact whether proceedings in respect- of an offence· alleged to have been commit~ed by the holder of the passport are pending before criminal court cn.n only be determined after notice to him. Equally whether condition of pass~ . port has been contravened under sub-clause (f) or whether he has failed to comply with notice under sub-section ( 1) can be ascer-tained only after hearing the holder of the passport. Under clause (h) also hearing of the holder of the passport is presumed. Reading clau'se (c) in juxtaposition with other sub-clauses, it will ha,ve to determined wh~ther it was the intention of the legislature to depr.tve right of hearing to the holder of the passport before it is impounded or revoked. In this connection, it cannot be denied that the legislature by making an express provision may deny person the right to be heard. Rules of natural justice cannot be equated with the Funda-,. mental Rights. As held by the Supreme Court in Union of India v. J. N. Sinha,C) that "Rules of natural justice are not embodied rules nor can they be elevated to the position of Fundap1ental Rights. Their aim is .... to secure justice or to prevent miscarriage of jus~ice. These rules can operate only in areas not covered by any law valtdly made. They do not supplant the law but supplement it. If statu-tory provision can be read consistently with the principles of natural justice, the courts should do so. But if statutory provision either specificaUy or by necessary implication excludes the .application of any rules of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read into the concern-ed provision the principles of natural justice." So also the right to be heard cannot be presumed when in the circumst~r:tces ~f the case there is paramount need. for secrecy or when dec1~1on .wtll have to be taken in eme~ency or when promptness of achon 1s cal1ed for where delay would defeat the very purpose or where it is expected

(1) . [1971] 1 S.C.R. 791.

~ \ .. ---

that the person affected would take an obstructive attitude. To limited extent it may be necessary te rovoke or to impound passport without notice if there is real apprehension that the holder of the pass-port may leave the country if he becomes aware of any intention on the part of the passport authority or the Government to revoke or impound the passport. But that by itself would not justify denial of an opportunlty to the holder of the passport to state his case before final order is passed. It cannot be disputed that the legislature has not by express provision excluded the right to be heard. When the passport authority takes action under section 10 ( 5) he is required to record in writing brief statement of reasons and furnish copy to the holder of the passport on demand unless he for sufficient rea-sons considers it not desirable to .furnish copy. An order thus passed is subject to an appeal where an appellate authority is required to give reasonable opportunity to the holder of the passport to put forward his case. When an aappeal has to be disposed of after given for ~ specified period ·the revocation or impounding during the without hearing the aggrieved person. Further when passport is given for specified period the revocation or impounding during the period when the passport is valid can only be done for some valid reason. There is difference between an authority revoking or modi-fying an order already passed in favour of person and initia]]y re-D fusing to grant licence. In Purtabpur Co. v. Cane Commissioner, Bihar,(!) the Supreme Court held that "it would not be proper to equate an order revoking or modifying licence with decision not to grant licence." In Schmidt v. Secretary of State, Home Afjairs,(2) Lord Denning observed that "If his permit (alien) is re-voked before the time limit expires he ought, I think, to be given an opportunity of making representation; for he would have legitimate expectation of being allowed to stay for the permitted time." Lord Denning extended the application of the rule of audi alteram partem even in the case of foreign alien who had no right to enter the country. Wh~ permit was granted and was subsequently sought to be revoked it has to be treated differently from that of refusing permission at the first instance. As in the present case the passport which has been granted is sought to be impounded th.e normal presum- 1 ption is that the action will not be taken without .giving opportunity to the holder of the passport. Section 10 (3) in enumerating the several grounds on which the passport authority may impound passport bas used the words like 'if the authority is satisfied', "the authority deems it necessary to do so." The Privy Council in Duravappah v. Fernando([3 ]) after referring to an earlier decision in Sugathadasa v. layaslnghe([4 ]) disag~eed '!i!h _flle ~ecision holding :'As general rule that words such as where Jt appears to .... ' or '1f it appears to the satisfaction of .... ' or 'if the .... considers it expedient that .... ' or 'if the .... is satisfied that .... ' standing by themselves without other words or circumstances of qualification, exclude duty to act judicial-ly." · The Privy Council in disagreeing with this approach observed

(1) {1969] 2 S.C.R. 807. {2) {196912 Cb. 149. (3) fl967J 2 A. C. 337. (4) [1958} S9 N.L.R. 451.

that these various formulae are introductory of the matter to be con-sidered and are given little guidance upon the qu~stion of audi alteraril partem. The statute can make itself clear on this point and if it does cadit quaestio. If it does not then the principle laid down in Cooper v. Wardsworth Board of Works(') where Byles, J. stated "A long course of decision, beginning with Dr. Bentley's case, and ending with some very recent cases, establish, that although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature." In the circumstances, there is no material for coming to the conclusion that the right to be heard has been taken away expre·ssly or by necessary implication by the statute.

I may at this stage refer to the stand taken by the learned Attor-c ney-General on this question. According to him "on true construc-tion, the rule audi altermn partem is not excluded in .xdinary cases and that the correct position is laid down by the Bombay High Court in the case of Minoo Maneckshaw v. Union of lndia.C) The view taken by Tulzapurkar,, J. is that the ru1c of mtdi alteram partem is not excluded in making an order under sec. 1 0( 3) (c) of the Act. But the Attorney General in making the concession submitted that the rule will not apply when special circumstances exist such as need for taking prompt action due to the urgency of the situation or where the grant of opportunity would defeat the very object for which the action of impounding is to be taken. This position is supported by the decision of Privy Council in De Verteuil v. Knaggs, C) wherein it was ·stated 'it must, however, be borne in mind th'\-t there may be special circumstances which would satisfy Governor, acting in good faith, to take action even if he did not give an oppotunity to the person affected to make any relevant statement, or to correct or controvert any relevant statement brought forward to his prejudice." This ex-traordinary step can be taken by the passport authority for impounding or revoking passport when he apprehends that the passport holder may leave the country and as such prompt action is essential. These observations would justify the authority to impound the passport without notice bat before any final order is passed the rule of audi alteram partem would apply and the holder of the passport will have to be heard. I am sati'sfied that the petitioner's claim that she has right to be heard before final order under s. 10(3) (c) is passed is made out. In this view the question as to whether sec. 10(3) (c) is ultra vires or not does not arise.

It was submitted on behalf of the state that an order under sub-clause 10 (3) (c) i's on the subjective satisfaction of the passport autho-rity and that as the decision is purely administrative in character it cannot be questioned in court of law except on very limited grounds. Thou~h the courts had taken the view that the principle of natural justice is inapplicab1e to administrative orders,_ there is chan~e in the judicial opinion subsequently. The frontier between judieial or

(1) 1723. 1 Str. 55i ; Mod. Rep. 148.

(2) 76 B.L.R. (1974) 788.

(3) {1918} A. 557

quasi judicial determination on the one ha.1d and an executive or - " administrative determination on the other has become blurred. The rigid view tha~ principles of natural justice applied only to judicial and quasi judicial acts and not to administrative acts no longer holds the field. The views taken by- the courts on this subject are not con-sistent. While earlier decisions were in favour of administrative con-; venience and efficiency at the expense of natural justice, the recent • view is in favour of extending the application of natural justice and • the duty to act fairly with caution that the principle 'should not be t extended to the extreme so as to affect adversely the administrative ! efficiency. In this connection . it is useful to quote the oft-repeated • observations of Lord Justice Tucker in Russell v. Duke of NorfolkC) / "The requirements of natural justice must depend on the circumstances _- ./ of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth .... but, whatever standard is adopted, one essential is that the person concerned should have reasonable opportunity of presenting his case." In R. v. Gaming Board Ex .. p. Benaim} (2) Lord Denning held that the view that the principle of natural justice applied only to judicial proceedings and not to administrative -proceedings has been over-ru1ed in Ridge v. Baldwin.([3 ]) The guidance that was . given to the Gaming Board was that they should follow the principles laid down in the case of immigrants namely that they have no right to come in, but they have ·a right to be heard. The Court held in con-struing the words the Board "Shall have regard only" . to the matter specified, the Board has duty to act fairly and it must give the appli-cant an opportunity of satisfying them of the matter specified in the section. They must let him know what their impressions are so that he can disabuse them. The reference to the cases of immigrants is to the decisions of Chief Justice Parker in Re H. K. (An infant) C). In cases of immigrants though they had no right to come into the country it was held that they have right to be heard. These obser-vations apply to the present case and the plea of the petitioner that the authority should act fairly and that they must let her ]\;now what their impressions are so that, if possible, she can disabuse them, is sound.

In American law also the decisions regarding the scope of· judicial review is not uniform. So far as· _constitutional rights are involved due process of law imports judicial review of the action of administrative or executive officers. This propositron is undisputed so far as the questions of law are concerned but the extent to which the. Court should go and will go in reviewing determinations of fact has been highly controversial issue .

(Constitution of the United State's of America, P. 1152, 1973 Ed.)

On consideration of various authorities it is clear that where the decision of the authority entails civil consequence·~ and the pet!tion is

(t) {l949]1Al1E.R.109,118. (2) 11970] 2 Q.B. 417. (3) [19641 A.C. 40 (4) [1967] 2 Q.B.617, at 630.

prejudicially affected he must be given an opportunity to be heard and present his case. This Court in Barium Chemicals Ltd. v. Company Law Buard(~) and Rohtas Industries Ltd. v. S. D. Agrawal,C) has he~d that limited judicial scrutiny of the impugned decision on• the pomt of rational and reasonable nexus was open to court of law. An order passed by an authority based on subjective satisfac-tion is liable to judicial scrutiny to limited extent has been laid down m U.P. Electric Co. v. State of U.P.([3 ]) wherein construing the pro-visions of s. 3(2) (e) of the Indian Electrici~y Act 9 of 1910 a~ amended by the U.P. Act 30 of 1961, where the language us_ed is similar to s. 10(3)(c) of the Passport Act, this Court held that when the Government exercises its power on the ground that it "deem's such supply necessary in public interest" if challenged, the Government must make out that exercise of the power was ne.:essary in the public interest. The Court is not intended to sit in appeal over the satisfac-tion of the Government. If there is prima facie evidence on which reasonable body of persons may hold that it is in the public interest to supply energy to consumers the requirements of the statute are fulfilled. "In our judgment, the satisfaction of the Government that the supply is necessary in the public interest is in appropriate cases not excluded from judicial review." The decisions cited oare clear autho-D rity for the proposition that the order passed under s. 10(3)(c) is subject to limited judicial scrutiny. An order under s. 10(3)(c) though it is held to be. an administrative order passed on the subjective satisfaction of the author1ty cannot escape judiCial scrutiny. The Attorney General fairly conceded thoat: an order under s. 10(3) (c) is subject to judici'al scrutiny and that it can be looked into by the court to the limited extent of satisfying itself whether the. order passed has rational and reasonable nexus to the interests of the general public.

It was next contended on behalf of the petitioner that the provi-sions of s. 10{5) of the Act which empowers the Pa~sport at1thority or the Government to decline furnishing the holder of the passport brief statement of the reasons. for making an order if the authority is of the opinion thatl it will not be in the interest of sovereignty and integrity of India, security of India, friendly relations of India with any foreign country, or in the interests of the general public. is unsus-minable in law. It waS! submitted that alongwith the right to refuse to furnish copy of the order made by the Government, as right of appeal is denied against anr order made by the Central Govt: the provisions should be regarded as total denial or procedure and arbitrary, In view of the construction which is placed on s. 10 ( 3) (c) that the holder of the passport is entitled to be heard before the passport authority deems it necessary to impound passport, i~ cannot be said tlrat there is total denial of procedure. The auhority under s. 10(5) is bound to record in writing brief statement of the reasons for mak-ing an ·order and furnish to the holder of the passport or travel docu-

(1) [1966] Supp. S.C.R. 311. (2) [1969] 3 S.C.R.t08 (3) [1969] 3 S.C.R. 865.

rocnt on demand copy of the same unless in any case th · · · th · · 1 · · ' , passport aut ~r:1ty JS o .c opt~Ion t mt ~t will not ~ in the interests of the sovcre.gnty .and .mtcgnty of }ndi'a, the sccunty of India, friendly rcla'-tion .of Indta .w•th any fore1gn country or in the interests of general public to furn1sh s~ch copy. The grounds on whkh the authority may refuse .to furn:s~1 the reasons are the same as provided in s. 10 (3){c) for.•mpoundmg passport but £he two powers arc exercisable in totally d;trcrent. contexts. Under sec. 10(3), the question that h-as ~o be cons1dcrcd 1~ whether ~he p~ssport has to be impounded in the mterests of soveretgnty and mtcgnty of India etc. or in the interests of general public. Jn passing an order under sec. 10(5) it has to be ~on~idered w~cther !n the interests of the s?vcrcignty and integrity of Ind1a etc. or m the mtercsts of general pubhc, furnic;hin~ of copy of the reason~ for the order, should be declined. Thouoh the same grounds arc mentioned for impounding oa pa5sport as o wcU as for refusing to furnish the reasons for making an order, it wouid not mean that when an order under s. 10(3)(c) is passed it would automatically • apply to s. 10(5) and for the same reason the authority can d~o.'Clinc to furnish the reasons for the order. S. 10(5) says that the authority shall furni!'h to the holder of the passport on demand. copy unless itr .any case the authority is of opinion that it will not be in the interests of sovereignty and integrity of India etc. The expression "unless .in :any case" would indicate that it is not in every case that the authonty ·can decline to furnish reasons for the order. There may be some -cases, and I feel that it can be only in very rar~ cases, that copy ~ontaining the reasons for making such order can be rcfus~d. TI1ough rare there may be some cases in which it would bo expcdtcnt. for the authority to d!!cline to furnish copy of the reasons for makmg such order. But that could only be an exception is indicated from t~c fact that the aggrieved person h:1s right of appeal under s. 1 1 whtch l!as lo be decided after oiving n:asonabtc opportunity of ~cpres~ntmg 0" • d' ·1 u v •n wtthout his case. reasonable opportunity cannot or man Y . .} t.: -disclosing to that person the reasons for the ord~r. ~ thobe• r~~ ~ases in which copy for the reasons of the o~dcr lS dccl!.n~~ 'J -11passpC'rt . authority and . is not furnished . · · . ·r. t. dunng n for the courts to thl.! h\,;.mng1o 1ave t apnPal Jt would furm:>h suOJcrent JUSt! Jca [10 ]· • • lf 1 •t clc:;c ,..... k,ok into the ·reasons • for t or t.:r ~ ~·,.. 1 1d satisfy • • tts~ w ct •• 1cr • 1 I 1 unable to say that pro\ L~ton as been properly made. ut an . n· ·h r•asons for mak-~hkh empowers the authority to d~chnc [10 ]tr th'~e ~~~L~tature. The 1ng the order is not within ~~c comp~tcn~~n~e ·u$tificatioJl, submitted learned counsel for the p~tlttOncr, 1[wt~ ]0[· ][t ][nnt./ ][no appeal ][is ][provided ]that. if no reasons nrc furmshcd ~y t lC ld ~;tuatly amount to dcnia~ of ag"IOst the order of the Govt. lt wou 1[. ted ][und~r ][Art ][21 ][of the ]procedure cstabli~hcd by con!:m~~~idcrablc force in this sub· ·~n~titution of India. Though law as1 t 1~~c 1~.c fo~ two reasons. Firstly, the mtssJOn. I om unable to accept thts pl :.\th .. ltol•Jcr of the passport Govt. is bound to .sivc n~ opport.Uilllft 1 0 e:q.1~ct the ca~c in which the before finally rcvoktng or unpoundmg · making such an order would authority decline~ to furnish reason.~ b~uld be borne in mind that be eJttremcly rare. ln such cases [1 5 ]~should be presumed that it 1 wh,~n the Govt. itself pa-.scs an ordc~ ; scrutiny. lf an order is passed 'WtJuld have m;ule the order after care u lf-JJI~ SC"It7R ---- .. ... ------·,.._..--

~ .I !. . . ; · . i ' J ! l! ' ·,

· SUPREME COURT REPORTS

the passport authority, a~ appe~l is provided. If the Gov~. passes . Y der 1~-.0uoh no appeal IS provided for, but as the power lS .vested ., an tlle or highest authority the section , ·~ · · IS no · uncons t ft t ut10na · 1 -(Chinta ringam and Ors. v: G_o~ermnen_t of India & Ors.([1]) for · the order would be subject to JUdtcJal sc.rutmy by the High <=:ourt a!ld t.he S~preme Court. I feel that in th~ ctrcumstances th~re Js no JUStification for holding that s. 10(5) of the Ac~ is ultra vzres o~ the powers of the ! ' ' legislature. We have take~ note of !he fact that .lf! the present case ' there is no reason in dcclimng to furmsh to the petitiOner the statem..:nt of reasons for impounding the passport. but such lapse by the autho-rity \VOU]d not make SCC. 10(5) ultra Vires Of the powers of the Jcgis-}ature.

I It was next contended that in the present case the passport was im-' pounded under s. 1 0 ( 3) (c) of the Act on the ground that (a) it is in · the public interest that Smt. Maneka Gandhi should be able to give evidence before the Commission of 'Inquiry and, (b) that Smt. :Maneb Gandhi shouJd have an opportunity to present her views before the Commission of fnquiry and according to report received there is likelihood of Smt. Maneka Gandhi leaving India. It was submitted ·' :.o that impounding of. the passport on the ground ~latctl above is unjusti-' r fied. Referring to s. 10(3) (h) where it is provided that when it is brought to the notice of the passport authority that warrant or sum-mons for appearance or warrant ;for the arrest of the holder of the passport has been issued by court under any law for the time being in force. or if an order prohibiting the departure from India of the · holder of the passport or other travel document has been made by ·E any sue court and the passport authority is satisfied ·that warrant or summons lm.s been so issued or an order ha<t been so made. im-pound the passport. For application of this clause there must be ~arrant or summons from t~e court or an order by the Court prohib~t­lng the departure from Ind1a. lt was submitted that it is not certam whether t~e Co"'!mission would require the presence or" the petitioner ·. at an .and 1f rcqu1rcd when her presence will be necessary. There ~1d ht!CJ~ -!lO summon~. or any requisition from the Commission of Inqutry . reqm:mg the petitioner's pr~scncc and in such circumstances it was . ~~?rruued that t~e. order is without any justification. 'A notification tssued by the Mm1stry of External Affairs lmd~r s. 22(a) of the P~ss­po~ts Act on 14-:4-76 ~a.~ hrought to our not ice. By thnt nolificanon the Central ~ovt. cons1dered that it i~ necessary in the public interest to . exempt cllJzens or India agajnst whom procceuirh!-; in rcsrcct of an UITt<~C~ alleged to have been committed by them nre pending before ~ocr~~1w.a1 court. i!l JoJi~l and if they produce onkr~ from the C~urt · tu.:crn~:d r:e~mltllng th~.-·m to depart from India from the operat1ons of bt.he provJsron~ of clause (f) of sub-section (2) of s 6 of the Act ~t:1[j;e~~rto ][th~ ][.conditio!"! ][tha.t ][the passport ][will ][be ][issued 'to such ][cit~en ]·. Y . ·'fi r>enod ~pecJfied m such order of the Court aml if no pertod U ~~;fb' ltd the das~portshall be issued for p~riod of six months and ___ - ·· _ --~~-"~~<: for further pcrk'<l. of six months if the order of tile

(I) llf[1]7l.l 2 s.c.R. sn at r. 8-,.6.

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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 concerned,. appear before if at any time during the con-tinuance in force of the passport so issued. U was submitted that when such facility is provided for person who is being tried for an offence in criminal court the same facility at loost should be given to person who may be required to give evidence before a_ Commission of Inquiry. It is unnecessary for me to go into the question as to whether in the circumstances the impounding of the passport is justi-fied or not for the learned Attorney General submitted that the im-pounding was for the purpose of preventing the petitioner from le-av-ing· the country and that final decision as to whether the passport wiH have to be impounded and if so for what period will be decided later. On behalf of the Government statement was filed which is as follows :-

"1. The Government is agreeable to considering any repre-sentation that may be made by the petitioner in res-pect of the impounding of her passport and giving her an opportunity in the matter. The opportunity will be given within two weeks of the receipt of the :.. representation. It is clarified that in the present case, the grounds for impounding the passport are those mentioned in the affidavit in reply dated l8th August, 1977 of Shri Ghosh except those mentioned in para 2(xi). . . 2. The representation of the petitioner will be dealt with expeditiously in accordance with law. 3. In the event of the decision of impounding the pass-iDR; having confirmed, it is clarified that the duration ()f the impounding will not exceed period of six months from the date of the decision that may be taken on the petitioner's representati:on. 4. Pending the consideration of the petitioner's represen-tation and until the decision of the Government of India thereon, the petitioner's passport shall remain in custody of this Honourable Court. 5. This will be without prejudice to the power of the Government of India to take such action as it may be advised in accordance with the provi~ions of the Passpon Act in respect of the petitioner's passport."

In view of the statement that the petitioner may make repres~ntation in respect of impounding of passport and that the representations will ( -be dealt with expeditiously and that even if the impounding of the ·-passport is confirmed it will not exceed period of six months from the date of the decision that may be faken on the petitioner's repre-sentation, it is not necessary for ms to go into the merits of the case any further. The Attorney General assured us that all the groundS

urged before us by the petiNoner and the grounds that may be urged bdore the authority will be properly considered by the authority and appropriate orders passed.

In the result, I hold that the petitioner is not enti!led to any o[ the fundamental rights enumerated in Article 19 of the Constitution and that the Passport Act complies with the requirements of Art. 21 of the Constitution and is in accordance with the procedure established by law. I construe section 10(3) (c) as providing right to the holder of the passport tg be heard before the passport authority and tlrat any order passed under section 10(3) is subject to limited judicial scrutiny by the High Court and the Supreme Court.

In view of the statement made by the learned Attorney General to which reference has already been made in judgment, I do not think it necessary to formally interfere with the impugned order. I accord-ingly dispose of the Writ Petition without .passing any formal order. There will be no order as to costs.

ORDER

Having regard to the majority view, and, in view of the statement made by the learned Attorney-General to which reference has already been made in the judgments we do not think it necessary to formally interfere with the impugned order. We, accordingly, dispose of the Writ Petition without passing oany formal order. The passport 'Nill remain in the custody of the Registrar of this Court until further orders. There will be no order as to costs.