1967 (4) TMI 196 - SC - Indian Laws

Summary

Issues Involved:
1. Whether the right to travel abroad is a part of personal liberty under Article 21 of the Indian Constitution.
2. Whether the executive's discretion to issue or refuse a passport violates Article 14 of the Indian Constitution.
3. The nature and scope of a passport as a political document.
4. The procedural requirements for deprivation of personal liberty under Article 21.

Detailed Analysis:

1. Right to Travel Abroad as Part of Personal Liberty under Article 21:
The petitioner argued that the right to leave India, travel abroad, and return is part of personal liberty guaranteed under Article 21 of the Constitution. The refusal or withdrawal of a passport amounts to deprivation of personal liberty as it is practically impossible for a citizen to travel abroad without a passport. The deprivation of personal liberty was not in accordance with the procedure established by law, as there was no law placing any restrictions on citizens traveling abroad.

The respondents contended that a passport is an official political document issued at the government's discretion and does not confer a right to travel. They argued that the right to travel is not included in "personal liberty" guaranteed by Article 21 because a passport only provides a facility and does not confer a right. The Supreme Court held that the right to travel abroad is indeed part of personal liberty under Article 21. The court observed that the possession of a passport is a necessary condition for traveling abroad and without it, no person residing in India can travel outside India. Therefore, the deprivation of the right to travel abroad without a procedure established by law violates Article 21.

2. Executive Discretion and Article 14:
The petitioner argued that the unfettered discretion given to the respondents to issue or not issue a passport offends Article 14 of the Constitution as it enables the State to discriminate between persons similarly situated and offends the doctrine of the rule of law. The respondents claimed that the passport is issued at the pleasure of the President and is a political document, and refusal to grant a passport cannot be reviewed by a court of law.

The Supreme Court held that the arbitrary prevention of a person from traveling abroad affects him prejudicially and violates Article 14 of the Constitution. The court emphasized that every executive action that operates to the prejudice of any person must be supported by some legislative authority. The discretionary power of the State to issue a passport at its discretion without any law or guidelines is arbitrary and discriminatory, violating the doctrine of equality before the law.

3. Nature and Scope of a Passport:
The court examined the nature of a passport and its historical context, noting that a passport is a document issued by the government to enable its citizens to travel abroad and request foreign governments to allow the bearer to pass freely. It serves as a means of establishing identity and nationality and is a necessary requisite for international travel.

The court referred to various definitions and descriptions of passports from different countries, including the United Kingdom, the United States, and India, and concluded that a passport is a political document that vouches for the respectability and nationality of the holder. However, the court emphasized that the government's discretion to issue or refuse a passport must be exercised in accordance with the law and not arbitrarily.

4. Procedural Requirements under Article 21:
The court reiterated that no person can be deprived of his life or personal liberty except according to the procedure established by law. The court noted that the State had not made any law regulating or depriving persons of the right to travel abroad. Therefore, the respondents' action in refusing to issue the passport without any legal basis violated Article 21.

Dissenting Opinion:
The dissenting judges argued that there is no fundamental right to demand a passport as it is a political document issued at the government's discretion. They contended that the right to travel abroad is not part of personal liberty under Article 21 and that the government's discretion to issue or refuse a passport is necessary for national security and foreign relations. They emphasized that the executive's action must comply with the equal protection clause of the Constitution, but there is no absolute right to a passport.

Conclusion:
The majority judgment held that the right to travel abroad is part of personal liberty under Article 21 and that the arbitrary refusal to issue a passport violates Articles 21 and 14 of the Constitution. The court issued a writ of mandamus directing the respondents to withdraw and cancel the decision to refuse the passport and to forbear from depriving the petitioner of his passport facilities. The dissenting judges disagreed, emphasizing the political nature of passports and the need for executive discretion.