Maneka Gandhi vs Union Of India on 25 January, 1978

    PETITIONER:

MANEKA GANDHI

 Vs.

RESPONDENT:

UNION OF INDIA

DATE OF JUDGMENT25/01/1978

BENCH:

BEG, M. HAMEEDULLAH (CJ)

BENCH:

BEG, M. HAMEEDULLAH (CJ)

CHANDRACHUD, Y.V.

BHAGWATI, P.N.

KRISHNAIYER, V.R.

UNTWALIA, N.L.

FAZALALI, SYED MURTAZA

KAILASAM, P.S.

CITATION:

 1978 AIR 597 1978 SCR (2) 621

 1978 SCC (1) 248

 CITATOR INFO :

 R 1978 SC1514 (12)

 E&R 1978 SC1548 (4,10,23)

 R 1978 SC1594 (6,15)

 E&R 1978 SC1675 (53,55,57,127,167,171,197,227, E&R 1979 SC 478 (90,91A,129,159)

 D 1979 SC 745 (20,30,36,37,52,77)

 RF 1979 SC 916 (15,54)

 R 1979 SC1360 (2,5)

 R 1979 SC1369 (6)

 R 1979 SC1628 (21)

 R 1979 SC1725 (25)

 R 1979 SC1803 (7)

 R 1979 SC1918 (14)

 E 1980 SC 470 (2,10)

 R 1980 SC 847 (4)

 R 1980 SC 882 (7)

 RF 1980 SC 898 (11,41,46,47,57,63,135,136) E 1980 SC 962 (116)

 RF 1980 SC1535 (3,21,30)

 RF 1980 SC1579 (30)

 RF 1980 SC1632 (26)

 RF 1980 SC1762 (12)

 F 1980 SC1992 (12)

 F 1980 SC2147 (39,63)

 RF 1981 SC 487 (16)

 R 1981 SC 613 (9)

 RF 1981 SC 674 (6)

 RF 1981 SC 679 (20)

 R 1981 SC 746 (3,5,8)

 R 1981 SC 814 (5,6)

 R 1981 SC 818 (19,25,37,39,92)

 RF 1981 SC 873 (10)

 R 1981 SC 917 (22,23)

 RF 1981 SC1621 (10)

 RF 1981 SC1675 (1)

 RF 1981 SC1767 (10)

 R 1981 SC1829 (96)

 RF 1981 SC2041 (8,9)

 RF 1981 SC2138 (16,27,30,31)

 R 1982 SC 710 (63)

 RF 1982 SC1315 (29)

 MV 1982 SC1325 (2,11,16,18,73,75,80)

 RF 1982 SC1413 (13,38)

 R 1982 SC1473 (11,14)

 R 1982 SC1518 (21)

 R 1983 SC 75 (7)

 R 1983 SC 130 (10,13,14)

 R 1983 SC 361 (2,12,13,14,15)

 RF 1983 SC 465 (5)

 R 1983 SC 473 (6,24,25)

 R 1983 SC 624 (8)

 D 1983 SC1073 (22,23)

 F 1983 SC1235 (6)

 RF 1984 SC1361 (19)

 RF 1985 SC 231 (2)

 RF 1985 SC 551 (35)

 E&R 1985 SC1416 (81,93,100,101,102,103,104) RF 1985 SC1737 (13)

 R 1986 SC 180 (39)

 RF 1986 SC 555 (6)

 RF 1986 SC 872 (71)

 RF 1986 SC1035 (11)

 RF 1986 SC1370 (101)

 RF 1988 SC 157 (9)

 RF 1988 SC 354 (15)

 R 1988 SC1531 (64)

 D 1988 SC1737 (87)

 F 1989 SC1038 (4)

 E&D 1989 SC1335 (52)

 F 1989 SC1642 (25)

 R 1990 SC 334 (104)

 R 1990 SC1031 (12)

 R 1990 SC1277 (46,48)

 R 1990 SC1402 (29)

 R 1990 SC1480 (109)

 R 1991 SC 101 (31,32,34,65,157,223,239,257,2 RF 1991 SC 345 (6)

 RF 1991 SC 564 (4)

 RF 1992 SC 1 (133)

 D 1992 SC1020 (23,28)

 RF 1992 SC1701 (21,26,27,28)

 F 1992 SC1858 (19)

ACT:

Constitution of India Articles 14, 19 (1) (a) and 21--Personal liberty--Whether
right to go abroad is part of personal liberty--Whether a law which Complies
with Article 21 has still to meet the challenge of Article 19--Nature and ambit
of Article 14--Judging validity with reference to direct and inevitable effect--
Whether the right under Article 19(1) (a) has any geographical limitation.
Passports Act, 1967-Ss. 3,5,6,10(3)(c), 10(5)--Whether s.10(3)(c) is violative
of Articles 14, 19(1) (a) (b) & 21--Grounds for refusing to grant 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 spelt out--
In urgent cases whether principles of natural justice can apply.

HEADNOTE:

The petitioner was issued a passport on June 1, 1976 under the Passport Act,
1967. On the 4th of July 1977, the petitioner received a 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 surrender her
passport within 7 days from the receipt of that letter. The petitioner
immediately addressed a letter to the Regional Passport Officer requesting him
to furnish a copy of the statement of reasons for making the order as provided
in s.10(5). A reply was sent by the Government of India, Ministry of External
Affairs on 6th July 1977 stating inter 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 challenging 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 Singg Sawhney's case. The position
which obtained prior to the coming into force of the Act was that there was no
law regulating the issue of passports for leaving the shores of India and going
abroad. The issue of passport was entirely within the unguided and unchannelled
discretion of the Executive. In Satwant Singh's case, this Court bell by a
majority that the expression 'personal liberty' in Article 21 takes in, the
right of locomotion and travel abroad and under Art. 21 no person can be
deprived of his right to go abroad except according to the procedure established
by law. This decision was accepted by the Parliament and the infirmity pointed
but 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. Se ction 3
provides that no person shall denart from or attempt to depart from India unless
he holds in this 'behalf a valid passport or travel document. Section 5(1)
provides for making of an application for issue of a passport or travel document
for visiting foreign country. Sub-section (2) of section 5 says that on receipt
of such application the Passport Authority, after making such enquiry, if any,
as it may consider necessary, shall, by order in writing, issue or refuse to
issue the passport or travel document or make or refuse to make that passport or
travel document endorsement in

622

-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
passport or travel document or to make any endorsement to record in writing a
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
endorsement 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 or travel document for visiting any foreign country and amongst various
grounds set out there the last is that in the opinion of the Central Government
the issue of passport or travel document to the applicant will not be in the
public interest. Sub-section (1) of section 10 empowers the Passport Authority
to vary or cancel the endorsement on a passport or travel document or to vary or
cancel it on the conditions subject to which a passport or travel document has
been issued having regard to, inter alia, the provisions of s. 6(1) or any
notification under s. 19. Sub-section (2) confers powers on the Passport
Authority to vary or cancel the conditions of the passport or travel document on
the application of the holder of the passport or travel document and with the
previous approval of the Central Government. Sub-section (3) provides that the
Passport Authority may impound or cause to be impounded or revoke a passport or
travel document on the grounds set out in cl. (a) to (h). The order impounding
the passport in the present, case, was made by the Central Government under cl.
(c) which reads as follows :-

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

Sub-section (5) requires the Passport Authority impounding or revoking a
passport or travel document or varying or cancelling an endorsement made upon it
to record in writing a brief statement of the reasons for making such order and
furnish to the holder of the passport or travel document on demand a copy of the
same, unless, in any case, the Passport Authority is of the opinion that it will
not be in the interest of the sovereignty and integrity of India, the security
of India, friendly relations of India with any foreign country, or in the
interest of the general public to furnish such a copy. The Central Government
declined to furnish a copy of this statement of reasons for impounding the
passport of the 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 right
except according to the procedure prescribed by law. There is no procedure
prescribed by the Passport Act, for impounding or revoking a Passport. Even if
some procedure can be traced in the said Act it is unreasonable and arbitrary in
as much as it does not provide for giving an opportunity to the holder of the
Passport to be heard against the making of the order. 2.Section 10(3) (c) is
violative of fundamental rights guaranteed under Articles 14,19(1) (a) and (g)
and 21. 3.The impugned order is made in contravention of the rules of natural
justice 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 a journalist conferred under Art. 19 (1) (g).

4. The impugned order could not consistently with Articles 19(1)(a) and (g)be
passed on a mere information of the Central Government that the presence of the
petitioner is likely to be required in connection with the proceedings before
the Commission of Inquiry.

623

5.In order that a passport may be impounded under s. 10 (3) (c), public interest
must actually exist in present and mere likelihood of public interest .arising
in future would be no ground for impounding 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 fight to
personal liberty. [643 G] Satwant Singh Sawhney v. D. Ramarathnam Assistant
Passport Officer, Covernment of India, New Delhi & Ors. [19671 3 SCR 525 and
Kharak Singh v. State of U.P. & Ors. [1964] 1 SCR 332 relied on.

2.Article 21 though framed as to appear as a shield operating negatively against
executive encroachment over something covered by that hield, 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] A.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. ,Cooper 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 a context
which was very different from that in which that approach was displaced by the
counter view that the constitution must be read as an integral 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 a self-contained code for laws. That observation was
the real ratio decidendi of Gopalan'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 held in A. D. M. Jabalpur's case by reference to the
decision from Gopalan's cast that the ambit of personal liberty protected by
Art. 21 is wide and comprehensive. The questions 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 detenu tion is fully covered by Art. 22 but other parts of
that field not covered by Art 22 are 'unoccupied' by its specific provisions. In
what may be called unoccu -pied 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-B]

Articles dealing with different fundamental rights contained in Part HI 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 grand flow unimpeded .and
impartial justice (social, economic and political), freedom (not only of
thought, expression, belief, faith and worship, but also of association,
movement vocation or occupation as well as of acquisition and possession 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)

624

which our Constitution visualfses. Isolation of various aspects of human
freedom, 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 irfelevantIf
we have advanced today towards higher civilization and in a more enlightened 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
personal liberty recognised by what Blackstone termed 'natural law' are embodied
in Act. 21 of the Constitution. [649 A-C, 650 H, 651 A-B] A.D. M. Jabalpur vs.
S. S. Shukla [1976] Supp. S.C.R. 172 relied on.

The natural law rights were meant to be converted into our constitutionally
recognised fundamental rights so that they are to be found within it and not
outside it. To take a contrary view would involve a conflict between natural law
and our constitutional law. A 'divorce between natural law and our
constitutional law would be disastrous. It would defeat one of the basic
purposes of our Constitution. [652 B-C]

The total effect and not the mere form of a restriction would determine which.
fundamental right is really involved in a particular case and whether a
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 law 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-C]

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 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 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
professional activity by denial of a passport. In such a case, violation of both
Arts. 21 and 19(1)(g) may be put forward making it necessary for the authorities
concerned to justify the restriction imposed by showing satisfaction of tests of
validity contemplated 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 a
passport in Public 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 a validly exercisable power. In matters such as, grant,
suspension, impounding or cancellation of passports, the possible dealing of an
individual with nationals and authorities of other States have to be considered.
The contemplated or possible activities abroad of the individual may have to be
taken into account. There may be questions of national safety and welfare which
transcend the importance of the individual's inherent right to go where he or
she pleases to go. Therefore, the grant of wide discretionary power to the exe-
cutive authorities cannot be considered as unreasonable yet there must be
procedural safeguards to ensure that the Power will not be used for purposes
extraneous to the grant of the power. The procedural proprieties must be
insisted upon. [654 A-E]

625

A 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 a satisfaction of
the Passport Authority on certain objective conditions which must exist in a
case before it passes an order to impound a passport or a travel document.
Impounding or revocation are placed side by side on the same footing in the
provisions [654 G-H] It is clear from the provisions of the Act that there is a
statutory right also acquired, on fulfilment of the prescribed conditions by the
holder of a 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 a suspension of, it for the time being. It is
true that in a proceedings. 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 that material
concerns in some cases of reasonable suspicion arising from certain credible
assertions made by reliable individuals. In an emergent situation, the
impounding of a passport may become necessary without even giving an opportunity
to be heard against such a step which could be reversed after an opportunity is
given to the holder of the passport to show why the step was unnecessary.
However, ordinarily no passport could be reasonably either impounded or revoked
without giving a prior opportunity to its holder to show cause against the
proposed action. [655 D-E]

It is well-settled that even when there is no specific provision in a statute or
rules made thereunder for showing case against action proposed to be taken
against an individual, which affects the right of that individual the duty to
give reasonable opportunity to be heard will be implied from the nature of the
function to be perform,,,' by the authority which has the power to take punitive
or damaging action. [655 G]

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

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

An order impounding a passport must be made quasi- judicially. This was not done
in the present case. It cannot be said that a good enough reason has been shown
too exist for impounding 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-G]

There were no pressing grounds with regard to the petitioner that the immediate
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
possibility of her being called to give evidence before a Commission of Inquiry.
Such a 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 any 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 a duty to proceed in
a way which is free from even the appearance of arbitrariness, unreasonableness
or unfairness. They have to act in a manner which is patently impartial and
meets the requirements of natural justice [657 A-B]

62 6

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 ground that may
exist for impounding her passport, no further action 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. [657D]

Chandrachud, J. (concurring with Bhagwati, J.) The power to refuse to disclose
the reasons for impounding a 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 a dispassionate judicial
examination of executive orders could with impunity be set at nought by an
obdurate determination to suppress the reasons. The disclosure made under the
stress of the Writ Petition that the petitioner's passport was impounded
because, her presence was likely to be required in connection with the
proceedings before a 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 Sawhney's case this Court
ruled, by majority, that the expression 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 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 guaranteed
by Art. 21 is reasonable or not has to be considered not in the abstract or on
hypothetical considerations like the provision for a full-dressed hearing as in
a 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 a law which prescribes fair and reasonable procedure for
curtailing or taking away the personal liberty granted by Art. 21 has still to
meet a possible challenge under the other provi- sions of the Constitution. In
the Bank Nationalisation case the majority held that the assumption in A. K.
Gopalan's case that certain Articles of the Constitution exclusively deal with
specific matters cannot be accepted as correct. Though the Bank Nationalisation
case was concerned with the inter-relationship of Arts. 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 provisions of the Constitution
categorically discarded the major premise of the majority judgment in Gopalan's
case. [658 D-G, 659 A-B]

The test of directness of the impugned law as contrasted with its consequence
was thought in A. K. Gopalan and Ram Singh's case to be the true approach for
determining whether a fundamental right was infringed. A 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 a witness's evidence in
a 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
evidence 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 a 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 Article 19(1)(a) of the Constitution. The culmi-

627

nation of this thought process was reached in the Bank Nationalisation case
where it was held by the majority, speaking through Shah J, that the extent of
protection against the impairment of a fundamental right is determined by the
direct operation of an action upon the individual's rights and not by the object
of the Legislature or by the form of the action. In Bennett Coleman's case the
Court reiterated the same position. 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 Art. 19(1)(a). [659F-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 in 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 Constitution 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 misplaced because 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. to form associations or unions contained in Article
19(1)(c) carried with it the right that a 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 Association.
[661 F, H, 662 A-13, 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 times and they
are calculated to protect the dignity of the individual and create conditions in
which every human being can develop his personality to the fullest extent. But
these freedoms are not and cannot be absolute, for absolute and unrestricted
freedom of one may be destructive of the freedom of another. In a 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 a narrow
interpretation 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 interpretation 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. Gopalan v. State of Madras [1950] SCR 88 and Kharak Singh v. State of U. P.
& Ors. [1964] 1 SCR 332 referred to. In Kharak Singh's case the majority of this
Court held that 'personal liberty' is used in the Article as a compendious term
to include within itself all varieties of Tights which 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 a comprehensive one and the right to move 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

628

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 independent
fundamental rights though there is a certain amountof overlapping; and there is
no question of one being carved out of another. The minority view was upheld as
correct and it was pointed out that it wouldnot be tight to read the expression
'personal liberty' in Art. 21 in a narrowand restricted sense so as to exclude
those attributes of personal liberty which are specifically 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 a process
of judicial construction. The wavelength for comprehending the scope and ambit
of the fundamental rights has been set by the Court in R. C. Cooper's case and
the approach of the Court in, the interpretation 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 a variety of rights which go to
constitute the personal liberty of man and some of them have been raised to the
status of distinct fundamental, rights and given additional protection under
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 [1973] 3 SCR 530 relied on. Shambhu Nath Sarkar
v. The State of West Bengal & Ors. applied.

Haradhan Saha v. The State of West Bengal & 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 consequently 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 regard to the impact
of Art. 14 on Art.21. [671 A, D, G-H]

The decision of the majority in A. K. Gopalan's case 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 a fundamental right
conferred by another article. This doctrine of exclusivity was overruled by a
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 categorical terms in Shambhu
Nath Sarkar's case and followed in Haradhan Saha's case and Khudi Ram Das's
case. [672 B-C, G, 673 A]

Shambhu Nath Sarkar v. State of West Bengal [1973] 1 SCR 856 referred to.

Haradhan Saha v. State of West Bengal & Ors. [1975] 1 SCR 778 and Khudiram Das
v. The State of West Bengal & Ors. [1975] 2 SCR 832 relied on.

The law must therefore be now taken to be well-settled that Article 21 does not
exclude Article 19 and that even if there is a law prescribing procedure for
depriving a person of personal liberty and there is consequently no infringe-
ment of the fundamental right conferred by Art. 21, such law ill so far as it
abridges or takes away any fundamental right under Article 19 would have to meet
the challenge 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 West 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 a founding faith of the Constitution. It is indeed the pillar on
which rests securely the foundation of our democratic republic and, therefore,
it

62 9

must not be subjected to a 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 a dynamic concept with many
aspects and dimensions and it cannot be imprisoned within traditional and
doctrinaire limits. [673 H, 674 A] E.P. Royappa v. State of Tamil Nadu & Another
[1974] 2 SCR 348 applied.

Equality and arbitrariness are sworn enemies; one belongs to the rule of law in
a republic while the other to the whim and caprice of an absolute monarch.
Article 14 strikes at arbitrariness in State action and ensures fairness and
equality ,of treatment. The principle of reasonableness which legally as well as
philosophically, is an essential element of equality or non-arbitrariness
pervades Article 14 like a brooding 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-C]

It is true that the Passports Act does not provide for giving reasonable
opportunity to the holder of the passport to be heard in advance before
impounding a passport. But that is not conclusive of the question. If the
statute make itself clear onthis point, then no more question arises but even
when statute is silent the lawmay in a given case make an implication and apply
the principle. Naturaljustice is a great humanising principle intended to invest
law with fairness and to secure justice and over the years it has grown into a
widely pervasive rule affecting large areas of administrative action. [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 a quasi-judicial function and an
administrative function for the purpose of principles of natural justice. The
aim of both administrative inquiry as well as the quasi-judicial enquiry is to
arrive at a just decision and if a 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 apply to both. It cannot be
said that the requirements of fairplay in action is any the less in an
administrative enquiry than in a quasi-judicial one. Sometimes an unjust
decision in an administrative enquiry may have far more serious consequences
than a decision in a quasi-judicial enquiry and hence rules of natural justice
must apply, equally in an administrative enquiry which entails civil
consequences. [676 G-H, 677 A] Rex v. ElectricityCommissioners [1924] 1 K.B. 171
referred to.

Rex v. LegislativeCommittee of the Church Assembly [1928] 1 K. B. 411 and Ridge
v. Baldwin[1964] A. C. 40 referred 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. [1970] 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 impact 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
administrative proceedings also the doctrine of natural justice must be held to
be applicable. [678 B-C]

In re : H. K. (An Infant) [1967] 2 Q.B. 617 and Schmidt v. Secretary of State
for Home Affairs referred to. D F.O. South Kheri v. Ram Sanehi Singh [1973] 3
S.C.C. 864 relied on

 630

The law 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 A] The power conferred on the Passport Authority is to impound
a passport and the consequence of impounding a passport would be to impair the
constitutional right of the holder of the passport to go abroad during the time
that the passport is impounded. The passport can be impounded only on certain
specified grounds set out in section 10(3) and the Passport Authority would have
to apply its mind to the facts and circumstances of a given case and decide
whether any of the specified grounds exists which would Justify impounding of
the passport. The authority is also required by s. 10(5) to record in writing a
brief statement of the reasons for making the order impounding a passport and
save in certain exceptional situations, the authority is obliged to' furnish a
copy of the statement of reasons to the holder of the passport. Where the
Passport Authority which has impounded a passport is other than the Central
Government a right of appeal against the order impounding the passport is given
by section 11. Thus, the power conferred on the Passport Authority to impound a
passport is a quasijudicial power. The rules of natural justice would in the
circumstances be applicable in the exercise of the power of impounding a
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 a 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. The
argument of the Attorney General however was that having regard to the nature of
the action involved in the impounding of a passport, the audi alteram partem
rule must be held to be excluded because if notice were to be given to the
holder of the passport and reasonable opportunity afforded to him to show cause
why his passport should not be impounded he might immediately on the strength of
the passport make good his exit from the country and the object of impounding
etc., would be frustrated. Now it is true that there may be cases where, having
regard to the nature of the action to be taken, its object and purpose and the
scheme of the relevant statutory provision, fairness in action may warrant
exclusion of the audi alteram partem rule. Indeed, there are certain
wellrecognised exceptions to the audi alteram Partem 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 a misnomer because in these exceptional cases the audi alteram partem
rule is held inapplicable not by way of an exception to fairplay in action but
because nothing unfair can be inferred by not conferring an opportunity to
present or meet a case. The life of the law is not logic but experience.
Therefore, every legal proposition must in the ultimate analysis be tested on Me
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 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 a rule of vital importance in the
field of administrative law and it must not be jettisoned save in very
exceptional circumstances where Compulsive necessity so demands. It is a
wholesome rule designed to secure the rule of law and the Court should not be
too ready to eschew it in its application to a given case. The Court must make
every effort to salvage this cardinal rule to the maximum extent permissible in
a given case. The audi alteram partem rule is not cast in a rigid mould and
judicial decisions establish that it may stiffer situational modifications. The
core of it must, however, remain, namely, that the person affected must have
reasonable opportunity' of being heard and the hearing must be a genuine hearing
and not an empty public relations exercise. It would, not therefore be right to
conclude that the audi alteram partem? rule is excluded merely because the power
to impound a 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 passport without giving any prior
opportunity to the person concerned to be heard, but as soon as the order
impounding

631

the Passport is made, an opportunity of hearing, 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 should 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 required
to be supplied by the Passport Authority after the making of the order and the
person affected would, therefore, be in a position to make a representation
setting forth his case and plead for setting aside the action impounding his
passport. A fair opportunity of being heard following immediately upon the order
impounding the Passport would satisfy the mandate of natural justice and a
provision requiring giving of such opportunity to the person concerned can and
should be read by implication in the Passports Act. If such a provision were
held to be incorporated in the Act by necessary implication the procedure
prescribed by the Act for impounding a passport would be right, fair and just
and would not suffer from arbitrainess or unreasonableness. Therefore, the
procedure established by the Passport Act for impounding a 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 impounding 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 a statement on behalf of the Government of India that the
Government was agreeable to considering any representation that may be made by
the petitioner in respect of the impounding of her passport and giving her an
opportunity in the matter, and that the representation would be dealt with
expeditiously in accordance with law. 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 comply 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 a statute vests unguided and unrestricted power in an authority to affect
the rights of a person without laying down any policy or principle which is to
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 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 a passport. [684C-D] 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" has clearly a well
defined meaning and the Courts have often been called upon to decide whether a
particular action is in the interest 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 verba from Art 19(5) and it would be
nothing short of heresay to accuse the constitution makers of vague and loose
thinking. Sufficient guidelines are provided by the Act itself and the power
conferred on the Passport Authority to impound a passport cannot be said to be
unguided or unfettered. Moreover the exercise of this power is not made
dependent on the subjective opinion of the Passport Authority as regards the
necessity of exercising it on one or more grounds stated in S.10(3)(c), but the
Passport Authority is required to record in writing a brief statement of reasons
for impounding the passport and save in certain exceptional circumstances,
supply a copy of such statement of reasons to the person affected so that the
person concerned can challenge the decision of the Passport Authority in appeal
and the Appel- late Authority can examine whether the reasons given by the
Passport Autho-

632

rity are correct and if so whether they justify the making of the order
impounding 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 a 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 a reasonable and responsible manner. When power is vested in a high
authority like the Central Government abuse of power cannot be lightly assumed
and in any event, if there is abuse if the power the arms of the Court are long
enough to reach it and to strike it down. The power conferred on the Passport
Authority to impound a passport under section 10(3) (c) cannot 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 a statute infringes a
particular fundamental right, while adjudging the constitutionality of a statute
on the touchstone of fundamental rights has undergone radical changes since the
days of A.K. Gopalan's case [1950] SCR 88, which was followed in Ram Singh and
Ors. v. State of Delhi [1951] SCR 451 and applied in Naresh Shridhar Mirajikar &
Ors. v. State of Maharashtra & 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 article of the Constitution
or touches the said article only incidentally or indirectly". The test to be
applied for determining the constitutional validity of state action 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 theory that "the extent 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 Sholapur Weaving Co. Ltd. [1954] SCR 674;
Express Newspaper (P) Ltd. JUDGMENT:

Ltd. & Ors. v. Union of India [1962] 3 SCR 842 formulating the test of direct
and inevitable effect or the doctrine of intended and real effect for the
purpose of adjudging whether a statute offends a particular fundamental right.
However, it was only in R.C. Cooper v. Union of India [1973] 3 SCR 530 that the
doctrine 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 laid
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
determining the constitutionality of legislation where there is conflict of
legislative 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 fundamental
right of the petitioner. It is possible that in a given case the pith and
substance of the State action may deal with a particular fundamental right but
its direct and inevitable effect may be on another fundamental right and in that
case, the state action would 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 Courts must consider is
the direct and inevitable consequence of the State action. Otherwise the
protection of the fundamental rights would subtly but surely eroded. [690 B-D]
A. K. Gopalan v. State of Madras [1950] 2 SCR 88; Ram Singh & Ors. V. State of
Delhi [1951] SCR 451; Naresh Sridhar Marajkar & Ors. V. State of Maharashtra &
Anr. [1966] 3 SCR 744 referred to. R. C. Cooper v. Union of India [1973] 3 SCR
530; Dwarakadass Srinivas v. the Sholapur and Weaving Co. Ltd. [1954] SCR 674;
Express Newspaper (P) Ltd. & Anr. v. Union of India, [1959] S.C.R. 12 and Sakal
Papers (P) Ltd. & Ors. v. Union of

633

India [1962] 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 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. If the test were merely of direct or
indirect effect, it would be an open-ended concept and in the absence of
operational criteria for judging "directness" it would give the Court an
unquestionable discretion to decide whether in a given case a 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
supplied by the criterion of "inevitable" consequence or effect adumbrated in
the Express Newspaper case (1959) SCR 12. This criterion helps to quantify the
extent of directness necessary to constitute infringement of a fundamental
right. Now, if the effect of State action on a fundamental right is direct and
inevitable, then a 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 described 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(1)(a) or
(g). [698 C-F] 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 a 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 a fundamental right protected by that Article. This clearly shows
that there is no underlying principle in the Constitution which, limits the
fundamental right in their operation to the territory of India. If a 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]

Satwant Singh Sawhney v. D. Ramarathnam, Asstt. Possport 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 limitations to freedom of speech and expression
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 citizens'
freedom of expression in any country in the world, it would violate Art. 19(1)
(a) as much as if it inhibited such expression within the country. This
conclusion would on a parity of reasoning apply equally in relation to
fundamental right to practise any profession or to carry on any occupation,
trade or business, guaranteed under Art. 19(1)(g). [694G-H, 695 A]

Freedom to go abroad incorporates the important function of an ultimum refunium
liberatis when other basic freedoms are refused. Freedom to go abroad has much
social value and represents a 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 a fundamental
right in Art. 19(1) of the Constitution. [696 C-D]

 Kent v. Dulles, 357 US 116 : 2 L.ed 2d, 1204 referred to. Even if a right is
not specifically named in Art. 19(1) it may still be a fundamental right covered
by some clause of that Article, if it is an integral part of a named fundamental
right or partakes of the same basic nature and character as that fundamental
right. It is not enough that a right claimed by the petitioner flows or emanates
from a named 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 a 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. 634

What is necessary to be seem is and that is the test which must be applied,
whether the right claimed by the petitioner is an, integral part of a 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 instance 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 included in
freedom of speech and expression. [697 D-G]

Kent v. Dulles, 357 US. 116. 2 L.ed 2d. 1204 : Express 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 Coleman & Co. & Ors. v. Union of India
[1973] 2 SCR 757; Ramesh Thappar v. State of Madras [1950] SCR 594 referred to.
Apthekar v. Secretary of State 378 US 500 : 12 L.ed 2d 992; Zamei v. Rusk 381
USI : 14 L.ed 2d 179 explained.

The theory that a peripheral or concomitant right which facilitates the exercise
of a named fundamental right or gives its meaning and substance or makes its
exercise effective, is itself a guaranteed right included within the named
fundamental right cannot be accepted. [701 B-C] All India Bank Employees'
Association v. National Industrial Tribunal [1962] 3 SCR 269 applied.

The right to go abroad cannot therefore be regarded as included in freedom of
speech and expression guaranteed under Art. 19(1)(a) on the theory 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 guaranteed under Art.
19(1)(g). The right to go abroad is clearly not a 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
as void as offending Article 19(1)(a) or (g), as its direct and inevitable
impact is on the right to go abroad and not 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 a statutory provision empowering an
authority to take action is constitutionally valid, action taken under it may
offend a 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 invalid as
contravening a fundamental right. The direct and inevitable effect of an order
impounding a passport may, in a given case, be to abridge or take away freedom
of speech and expression or the right to carry on a profession and where such is
the case, the order would be invalid, unless saved by Article 19(2) or Article
19(6). [702F-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), it must
nevertheless not contravene any fundamental right and if it does, it would be
void. Now, even if an order impounding a passport is made in the interests of
public order decency or morality, the restriction imposed by it may be so wide,
excessive disproportionate to the mischief or evil sought to be averted that it
may be considered unreasonable and in that event, if the direct and inevitable
consequence of the order is to abridge or take away freedom of speech and
expression, it would be violative of Article 19(1)(a) and would not be protected
by Article 19(2) and the same would, be the position where the order is in the
interests of the general public but it infringes directly and inevitably on the
freedom to carry on a profession in which case it would contravene Article 19(1)
(g) without being saved by the provision enacted ion Article 19(6). [705 D-E] 6
3 5

The impugned order, in the present case does riot 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 the 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 a journalist. The direct
and inevitable consequence of the impugned order was to impede the exercise of
her right to go abroad and not to interfere with her freedom of speech and
expression or her right to carry on her profession. [706 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 a situation where the presence of a person
is required to give evidence before a commission of Inquiry_ is plainly
erroneous as it seeks to cut down the width and amplitude of the expression
"interests of the general public," an expression which has a well recognised
legal connotation and which is found in Article 19(5) as well as Article 19(6).
It is true that that there is always a perspective within which a statute is
intended to operate, but that does not justify reading of a statutory provision
in a manner not warranted by the language or narrowing down its scope and
meaning by introducing a limitation which has no basis either in the, language
or in the context of a 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 unius exclusio ulterius has any application at all. [710-B-C]

Rohtas Industries Ltd. v. S. O. Agarwal & Anr., [1969] 3 SCR 108 @ 128 referred
to.

OBSERVATION

It is true that the power under s. 10(3) (c) is rather a drastic power to
interfere with a 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 a person will not be impounded merely on the ground of his being
required in connection with a proceeding, unless the case is brought within s.
10(3)(e) or sec. 10(3)(b). [710G-H] Ghani v. Jones [1970] I Q. B 693 quoted with
approval. An order impounding a passport can be made by the Passport 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. In the present case, it was not merely on
the future likelihood of the interests of the general public being advanced that
the impugned order was made by the Central Government. The impugned order was
made because, in the opinion of the Central Govt. the presences of the
petitioner was necessary for giving evidence before the Commission of Inquiry
and according to the report received by the Central Government she was likely to
leave India and that might frustrate or impede to some extent the inquiries
which were being conducted by the Com- missions of Inquiry. [711-C-D]

Krishna lyer, J. (concurring with Bhagwati, J.) British Raj has frowned on
foreign travels by Indian patriotic suspects and instances from the British
Indian Chapter may abound. In many countries the

636

passport and visa system has been used as potent paper curtain to inhibit
illustrious writers, outstanding statesmen, humanist churchmen and renowned
scientists, 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 headway to widen freedom of
travel abroad as integral to liberty of the person. And the universal
Declaration of Human Rights has proclaimed in Article 13, that every one has the
right to leave any country including his own, and to return to his country. This
human planet is our single home, though geographically variegated, culturally
diverse, politically pluralist in science and technology competitive and co-
operative in arts and life-styles a lovely mosaic and, above all, suffused with
a cosmic unconsciousness of unity and inter- dependence. [717 B, C, D, E-F]

Viewed from another angle, travel abroad is a cultural enrichment which enables
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 a comparative scale. [718 B]

The right of free movement is a 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 a universal connotation
cardinal to a 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 a terrestrial opportunity for unfolding personality rising
to a higher scale moving to fresh woods and reaching out to reality which makes
our earthly journey a true fulfilment, not a tale told by an idiot full of sound
and fury signifying nothing, but a 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]

Procedure which deals with the modalities of regulating, restricting or even
rejecting a fundamental right falling within Article 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. What is fundamental is life and liberty. What is procedural is the
manner of its exercise. This quality of fairness in the process is emphasised by
the strong word "establish" which means 'settled firmly'," not wantonly or
whimsically. [722 H, 723 A-B]

Procedure in Article 21 means fair, not formal procedure. Law is reasonable law,
not any enacted piece. As Art. 22 specifically spells out the procedural
safeguards for preventive and punitive detention, a law providing for such
detention 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 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 happiness, dignity and worth of the
individual, will not be entitled to any procedural safeguard, save such as a
legislature's 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 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 motives and the inscrutable face of an official sphinx do not
fill the 'fairness,' bill. [726 D-E]

Article 21 clubs life with liberty and when we interpret the colour and content
of 'procedure established by law', we must be alive to the deadly peril of

637

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
circumstances' but not ritualistic and wooden. In exceptional cases and
emergency situations, interim measures may be taken, to avoid the mischief of
the passportee becoming an. escapee before the hearing begins. "Bolt the stables
after the horse has been stolen" is not a command of natural justice. But soon
after the provisional seizure, a reasonable hearing must follow, to minimise
procedural prejudice. And when a prompt final order is made against the
applicant or passport holder the reasons must be disclosed to him almost
invariably save in those dangerous cases, where irreparable injury will ensue to
the State. A government which revels in secrecy in the field of people's liberty
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 a pervasive
processual potency and versatile quality, equalitarian in 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
concerned, it is a misconception. 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 its citizens from moving within in any
other country if that other country has no objection to their travelling within
its territory. [728 C]

In Gopalan's case it was held that Art. 22 is a 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 Shambu 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 a
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 a synthesis. The proposition is
indubitable that Art. 21 does not, in a given situation exclude Art. 19 if both
rights are breached. It is a 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. [728 F-G, 729 A-B]

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 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 considerations in the
exploration and adjudication of constitutional prescriptions and proscriptions.
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 F]

Locomotion in some situation is necessarily involved in the exercise of the
specified fundamental rights as an associated or integrated right. Travel,
simpliciter, is peripheral to and not necessarily fundamental in Art. 19 Free
speech is feasible without movement beyond country. [731 B]

 The delicate, yet difficult, phase of the controversy arrives where free speech
and free practice of profession are inextricably interwoven with travel abroad.
638

One, has to view the proximate and real consequence of thwarting transnational
travel through the power of the State exercised under s. 3 of the 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 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 a foreign country may, with certainty and immediacy,
spell denial of free speech and professional practice or business. Thirdly, the
fundamental right may itself enwomb locomotion 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-consciously exaggerate, into morbid or neurotic refusal or unlimited
imponding or final revocation of passport, facts which, objectively assessed,
may prove tremendous trifles. That is why the provisions have to be read down
into constitutionality, tailored to fit the reasonableness test and humanised by
natural justice. The Act willsurvive but the order shall perish for reasons so
fully set out by Shri JusticeBhagwati. 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 a 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
Government 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 rights 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. In England section 3 of the Statute of Westminster declares that
Parliament has full power to make laws having extra territorial operation. The
following are the principles to determine whether the provisions of a
Constitution or a Statute have extra territorial application. (a)An Act unless
it provides otherwise applies only to the country concerned.

(b) An Act of a Legislature will 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 controlling the activities of its
own citizens when they are abroad may be passed.

Niboyet v. Niboyet 48 L.J.P.I. at p. 10 and Queen 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-H, 740 A, B, G-H] Governor-General in Council v.
Raleigh Investment Co. Ltd. A.I.R. (31) [1944] Federal Court 51, referred to.
Wallace Brothers & Co. Ltd. v. Commissioner of Income-Tax, Bombay, Sind and
Baluchistan [1945] F.C.R. 65 and Mohammad Mohy-ud-din v. The King Emperor [1946]
F.C.R. 94 referred to.

639

The application of Article 14 is expressly limited to the territory of India
Articles 15, 16, 17, 18, 20 and 22 by their very nature are confined to the
territory 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
possible 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 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 would not- be enforced by
the State outside the Indian territory. The rights conferred under Article 19
are fundamental rights and Arts. 32 & 226 provide, that those rights are
guaranteed and can be enforced 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 a 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 Another, [1958] SCR 308
referred to.

It is most unlikely that before the declaration of human rights was promulgated
the framers of the Constitution decided to declare that the fundamental rights
conferred on the citizens would, be available even outside India. Even in the
American Constitution there is no mention of right to freedom of speech or
expressions 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 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, section
3 and 4 specifically provides that crimes committed by citizens of India outside
India are punishable. In Article 19, however, there is no such provision
expressly or by necessary implication. Secondly, a citizen cannot enforce his
fundamental rights outside the territory 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 passport the petitioner's fundamental rights
guaranteed by Article 19 are infringed cannot 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-F] 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 life and personal 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 that Article 19 only applied where a
legislation directly hit the rights enumerated in the Article and not where the
loss of rights mentioned .in the Article was a 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 Singh v. State of Delhi.
The view was again confirmed in the State of Bihar v. kameshwar Singh.
[749C,750B-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 a direct or inevitable consequences of the measure enacted in
the impugned Act and that

640

it would not be Possible to strike down the legislation as having that effect
and operation. [751 B-C] Express Newspapers (P) Ltd. and another v. The Union of
India & Ors. [1959] 1 SCR 135 referred to.

In Hamdard Dawakhana's case it was held that it is not the form or incidental
infringement that determines the constitutionality of a statute but the reality
or the substance. [751 D]

Hamdard Dawakhana (Wakf) Lal Kuan v. Union of India [1960] 2 SCR 671 at page 691
and Kochunni v. The 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 violated Article
19(1)(a) and was not saved by Article 19(2). In that case the impact of
legislation under Article 21 on the rights guaranteed under Article 19(1) was
not in issue. [752 C-D]

Kharak Singh [1964] 1 SCR 332 relied on. Bank Nationalisation [1970] 3 SCR 530
and Bennet Coleman [1973] 2 SCR 757 distinguished.

In Bank Nationalisation 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 Articles 19 and 31
are parts of a single pattern and while Article 19(1)(f) enjoins the right to
acquire, hold and dispose of property, clause 5 of Article 19 authorises
imposition of restrictions upon the right. There must be a reasonable
restriction and Article 31 assures the right to property and grants protection
against the exercise 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 Gopalan'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 individual in general will be ignored. The entire discussion in
Bank Nationalisation case related to the inter-relation between Article 3 1 (2)
and Article 19 (1) (f) Certain passing observations have been made about the
liberty of persons. However, there is no justification for holding that the case
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 related 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; a
point not calling for decision and not obviously argued before it cannot be
taken as an authority on the proposition in 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 a complete code relating to preventive
detention the validity of an order of detention must be determined directly
according to the terms within the four corners of that Article. The said
statement is not borne out from the record of the judgment in Gopalan's case. If
the obiter dicta based on the wrong assumption is to be taken as the correct
position in law it would lead to strange results. if Articles.

641

19(1) (a) to (e) and (g) are attracted in the case of deprivation of personal
liberty under Article 21, a punitive 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 a 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-F] Chiranjit
Lal Chowdhuri [1950] SCR 869, The State of West Bengal V. Subodh Gopal [1954]
SCR 587, State of Bombay v. Bhanji Munji [1953] 1 SCR 777, Dabu Barkya Thakur v.
State of Bombay, [1961] 1 SCR 128, Smt. Sitabati Debi & Anr. v. State of We$
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 a self-
contained Code. The view taken in this case also suffers from the same
infirmities referred to in the Bank Nationalisation case. In Khudi Ram's case
also this Court erroneously stated that Gopalan's case has taken the view that
Article 22 was a complete code. [759 F-H, 760 A-B] 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 law can have separate existence
as a 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 Article 21 will also have to be considered. [760D-F-H]

In Bennet Coleman's case, the Court held that though Article 19(1) does not
mention the freedom of press it is settled view of the court that freedom of
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. Bennet Coleman's case. Express Newspapers Case, and
Sakai 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-H]

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
regulating the departure from India of citizens of India and other person. Since
the said Act complies with the requirements of Article 21 i.e. compliance with
procedure established by law, its validity cannot be challenged. If incidentally
the Act infringes on the rights of a citizen under Article 19(1) of the Act, it
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.
[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 a brief statement of his reasons which are to
be furnished to the person concerned unless the authority for reasons specified
in sub-section (3) refuses to furnish a 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 Passport authority to vary or
cancel the endorsement on a passport. Section 10(3)

642

provides the reasons for which a passport may be impounded. Again reason', 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 a 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 a person the right to be heard. Rules of natural
justice cannot be equated with the fundamental rights. Their aim is to secure
justice and to prevent miscarriage of justice. They do not supplant the law but
supplement it. If a statutory provision can be read consistently with the
principles of natural justice the court should do so but if a statutory
provision that specifically or by necessary implication excludes the application
of any rules of natural justice this Court cannot ignore the mandate of the
legislature or the statutory authority and read into the concerned provision the
principles of natural justice. To a limited extent it may be necessary to revoke
or to impound a passport without notice if 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 express 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.

A 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 a right to be heard before a final order
under section 10(3)(e) is passed. Earlier, the courts had taken a view that the
principle of natural justice is inapplicable to administrative orders. However,
subsequently, there is a 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 rigid 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 10(3)(c) is subject to a limited judicial scrutiny.
[770 A- F, H, 771 A, 772 B-D]

H. K. (An 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 followed.

The provision empowering the Government not to disclose the reasons for
impounding etc. is valid. The Government is bound to give opportunity to the
bolder of the passport before finally revoking it or impounding it. The 643

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. If
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 a
representation in respect of the impounding of passport and that the
representations would be dealt with expeditiously and that even if the imounding
of the passport is confirmed it will not exceed a 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.
Gupte, Attorney General, Soli J. Sorabjee, Additional Sol. Genl. of India, R. N.
Sachthey and K. N. Bhatt for the Respondents.

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

The following Judgments were delivered

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

As I am in general agreement with my learned brethren Bhagwati and Krishna lyer.
I will endeavour to confine my observations to an indication of my own approach
on some matters for consideration now before us. This seems to me to be
particularly necessary as my learned brother Kailasam, who has also given Us the
benefit of his separate opinion, has a somewhat different approach. I have had
the advantage of going through the opinions of each of my three learned
brethren.

It seems to me that there can be little doubt that the right to travel and to go
outside the country, which orders regulating issue, suspension or impounding,
and cancellation of passports directly affect, must be included in rights to
"personal liberty" on the strength of decisions of this Court giving a 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.,(1) Kharak Singh v. State of U.P. & Ors. (2). (1) [1967] 3S.C.R.525.

(2) [1964] 1 S.C.R. 332.

644

Article 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 a 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 protects which lies beneath that shield. It has been so
interpreted as long ago as in A. K. Gopalan v. State of Madras,(1) where, as
pointed out by me in Addi- tional District Magistrate, Jabalpur v. S . S. Shukla
and others(2) 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 cited there some from the judgment of Kania Chief Justice
who also, while distinguishing the objects and natures of articles 21 and 19,
gave a 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
'personal liberty' in article 21, is quite different from restriction (which is
only a partial control) of the right to move freely (which is relatively a minor
right of a citizen) as safeguarded by article 19(1) (d). Deprivation of personal
liberty has not the same meaning as restriction of free movement in the
territory of India. This is made clear when the provisions of the Criminal
Procedure Code in Chapter VIII relating to security of peace or maintenance of
public order are read. Therefore article 19 (5) cannot apply to a substantive
law depriving a 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
article 246 read with Schedule Seven, List I, Entry 9, and lList III, Entry 3.
Therefore, when the subject of preventive detention is specifically dealt with
in the Chapter on Fundamental Rights I do not think it is proper to consider a
legislation permitting preventive detention as in confli ct with the rights
mentioned in

       article 19(1). Article 19(1) does not purport to cover all aspects of
liberty or of personal liberty. In

       (1) [1950] SCR 88.

       (2) [1976] Suppl. SCR 172 at 327.

       645

       that article only certain phases of liberty are dealt with. 'Personal
liberty' would primarily mean liberty of the physical body. The rights given
under article 19(1) do not directly come under that description. They are rights
which accompany the freedom or liberty of the person. By their very nature they
are freedoms of a person assumed to be in full possession of his personal
liberty. If article 19 is considered to be the only article safeguarding
personal liberty several well-recognised_ rights, as for instance, the right to
eat or drink, the right to work, play, swim and numerous other rights and
activities and even the right to life will not be deemed protected under the
Constitution. I do not think that is the intention. It seems to me improper to
read 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 is expressly defined in the
Constitution to indicate only a 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 a separate complete article".

In that case, Mukherjea J., after conceding that the rights given by article
19(1) (d) would be incidentally contravened by an order of preventive detention
(see p. 261) and expressing the opinion that a 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 a narrower connotation to "personal liberty", as "freedom from
physical constraint or coercion" only. Mukherjea, J., cited Dicey for his more
restrictive view that "personal liberty" would mean : "a personal right not to
be subjected to imprisonment, arrest or other physical 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 subjected to any
form of physical restraint or coercion that constitutes 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 Committee of our Constitution
Mukherjea, J., said : (p. 963) : "It is enough to say at this stage that if the
report of the Drafting Committee is an appropriate material upon which the

       interpretation 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(1) (d) of the
Constitution do not mean the same thing as the expression

       3-119SCI/78

       646

       personal liberty' in article 21 does. It is well known that the word
'liberty' standing by itself has been given a very wide meaning by the Supreme
Court of the- United States of America. It includes not only personal freedom
from physical restraint but the right to the free use of one's own property and
to enter into free contractual relations. In the Indian Constitution, on the
other hand, the expression 'personal liberty' has been deliberately used to
restrict it to freedom from physical restraint of person by incarceration or
otherwise".

       Fazal Ali, J., however, said (at p. 148)

       "To my mind, the scheme of the Chapter dealing with the fundamental
rights does not contemplate what is attributed to it, namely, that each article
is a code by itself and is independent of the others. Inmy opinion it cannot be
said that articles 19, 20, 21 and22 do not to some extent overlap each other.
The case ofa person who is convicted of an

       offence will come under article 20 and 21 and also under article 22 so
far as his arrest and detention in custody before trial are concerned.
Preventive detention, which is dealt with in article 22, also amounts to
deprivation of personal liberty which is referred to in article 21, and is a
violation of the right of freedom of movement dealt with in article 19(1) (d).
That there are other instances of overlapping of articles in the Constitution
may be illustrated by reference to article 19(1) (f) and article 31 both of
which deal with the right to property and to some extent overlap each other".

As has been pointed out by my learned brother Bhagwati, by detailed references
to cases, such as Haradhan Saha v. The State of West Bengal & Ors(1) 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 a
result of what was held, by a larger bench of this Court in R. C. Cooper v.
Union of India(3), to be the sounder view. Therefore, we could ,neither revive
that overruled doctrine nor could we now hold that impounding or cancellation of
a 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, which certainly appears to have
found favour in this Court in A. K. Gopalan's case (supra), was laid down in a
context which was very different from that in which that approach 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) [1975] 1 SCR778.

(2) [1973] 1 SCR 856.

(3) [1973] 3 SCR 530.

647

In A. K. Gopalan's case (supra), what was at issue was whether the tests was
valid procedure for deprivation of personal liberty by preventive detention must
be found exclusively in Article 22 of the Constitutions or could we gather from
outs de it also elements of any "due process of law" and use them to test the
validity of a law dealing with preventive detention. Our Constitution-makers,
while accepting a departure, from ordinary norms. by permitting making of laws
for preventive detention without trial for special reasons in exceptional
situations also provided quite elaborately, in Article 22 of the Constitution
itself,' whit requirements such law, relating to preventive detention, must
satisfy. The procedural requirements of such laws separately formed 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 the tests of "due process", with regard to such
laws, are to be found in Article 22 of the Constitution, exclusively because
this article constitutes a self-contained code for laws of this description.
That was, in my view, the real ratio decidendi of Gopalan's case (supra). It
appears to me, with great respect, that other observations relating to the
separability of the subject matters of Articles 21 and 19 were mere obiter
dicta. They may have appeared to the majority of learned Judges in Gopalan's
case to be extensions of the logic they adopted with regard to the relationship
between Article 21 and 22 of the Constitution. But, the real issue there was
whether, in the face of Article 22 of theConstitution, which provides all the
tests of procedural validity of alaw regulating preventive detention other tests
could be im- ported from Article 19 of the Constitution or elsewhere into
"procedure established by law". The majority view was that this could not be
done. I think, if I may venture to conjecture what opinions learned Judges of
this Court would have expressed on that occasion had other types of law or other
aspects of personal liberty, such as those which confronted this Court in either
Satwant Singh's case (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 remember
if we are to correctly understand what was laid down in that case. I have
already referred to the passages I cited in A. D. M. Jabaipur's case (supra) to
show that, even in Gopalan's case (supra), the majority of judges of this Court
took the view that (the ambit of personal liberty protected by Article 21 is
wide and comprehensive. It embraces both substantive rights to personal liberty
and the procedure provided for their deprivation. One can, however, say that no
question of "due process-of law" can really arise apart from procedural
requirements of preventive detention laid down by Article 22, in a case such as
the one this Court considered in Gopalan's case (supra). The clear meaning of
Article 22 is that the requirements of "due process of law", in cases of
preventive detention, are satisfied by what is, provided by Article 22 of the
Constitution itself. This article in- dicates the pattern of "the procedure
established by law" for cases of preventive detention.

648

Questions, however, relating to either deprivation or restrictions of personal
liberty, concerning laws falling outside Article 22 remained 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 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 grand flow of unimpeded
and impartial Justice (social,economic and political), Freedom (not only of
thought, expression,belief, faith and worship, but also of association,
movement, vacationor occupation as well as of acquisition and possession of
reasonable property), of Equality (of status and of opportunity, which imply
absence of unreasonable or unfair discrimination between individuals, groups and
classes), and of Fraternity (assuring dignity of the individual and the unity of
the nation), which our Con- stitution visualises. Isolation of various aspects
of human freedom, for purposes of their protection, is neither realistic nor
beneficial but would defeat the very objects of such protection.

We have to remember that the fundamental rights protected by Part III of the
Constitution, out of which Articles 14, 19 and 21 are the most frequently
invoked, form tests of the validity of executive as well as legislative actions
when these actions are subjected to judicial scrutiny. We cannot disable Article
14 or 19 from so functioning and hold those executive and legislative actions to
which they could apply as unquestionable even when there is no emergency to
shield actions of doubtful legality. These tests are, in my opinion, available
to us now to determine the constitutional validity of Section 10 (3) (c) of the
Act as well as of the impugned order of 7th July, 1977, passed against the
petitioner impounding her passport "in the interest of general public" and
stating that the Government bad decided not to furnish her with a copy of
reasons and claiming immunity 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 fall 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 649

wrote. Our basic concepts on such matters, stated there, have provided the
foundations on which subsequent superstructures were raised. Some of these
foundations, fortunately, remain intact. Blackstone 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- tries,
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 all their authority,
mediately or immediately, from this original."

The identification of natural law with Divine will or dictates of God may have,
quite understandably, vanished at a time when men see God, if they see one
anywhere at all, in the highest qualities inherent in the nature of Man himself.
But the idea of a natural law as a morally inescapable postulate of a just
order, recognizing the inalienable 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 rights in the
following terms :

       "The absolute rights of man, considered as a 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 denominated the natural liberty of mankind. This natural
liberty consists properly in a power of acting as one thinks fit, without any
restraint or control, unless by the law of nature; being a right inherent in us
by birth,and one of the gifts of God to man at his creation, when he endued him
with the faculty of free will. But everyman, when he enters into society, gives
up a part of his natural liberty, as the price of so valuable a purchase, and,
in consideration of receiving the advantages of mutual commerce, obliges himself
to conform to those laws, which the community has thought proper to establish.
And this species of legal obedience and conformity is infinitely more desirable
than that will and savage liberty which is sacrificed to obtain it. For no man
that considers a moment would wish to retain the absolute and uncontrolled power
of doing whatever he pleases; the consequence of which is, that every other man
would also have the same power, and then there would be no security to
individuals in any of the enjoyments of life. Political, therefore, or civil
liberty, which is that of a member of society, is no other than natural liberty
so far restrained by human laws (and no farther) as is necessary and expedient
for the general advantage of the public.

       650

       The absolute rights of every Englishman, (which, taken in a 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
subject 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, as there is no other known method of compulsion, or
abridging 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 include the preservation of our civil immunities in their
largest and most extensive sense.

       I.The right of personal security consists

       in a 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 regards, asserts, and
preserves the personal liberty of individuals. This

       personal liberty consists in the power of locomotion, of changing
situation, or moving one's person to whatsoever place one's own inclination may
direct, without imprisonment or restraint, unless by due course of law.
Concerning which we may make the same observations as upon the preceding
article, that it is a right strictly natural; that the laws of England have
never abridged it without sufficient cause; and that, in this kingdom, it cannot
ever be abridged at the mere discretion of the magistrate, without the explicit
permission of the laws.

       III. The third absolute right, inherent in every Englishman, is that of
property; which consists in the free use, enjoyment, 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 the ensuing commentaries; but
certainly the modifications under which we at present find it, the method of
conserving 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 individual has resigned a part of his natural liberty."

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

651

It is found in Greek philosophy. If we have advanced today towards what we
believe to be a higher civilisation and a more enlightened era, we cannot fall
behind what, at any rate, was the meaning given to "personal liberty" long ago
by Blackstone. As indicated above, it included "the power of locomotion, of
changing situation, or moving one's person to whatsoever place one's own
inclination may direct, without imprisonment or restraint, unless by due course
of law". I think that both the rights of "personal security" and of cc personal
liberty", recognised by what Blackstone termed "natural law", are embodied in
Article 21 of the Constitution. For this proposition, I relied, in A. D. M.
Jabalpur v. S. S. Shukla (supra), and I do so again here, on a passage from
Subba Rao C.J., speaking for five Judges of this Court in I. C. Golaknath v.
State of Punjab(1) when he said (at p. 789) :

       "Now, what are the fundamental rights ? They are embodied in Part III of
the Constitution and they may be classified thus: (i) right to equality, (ii)
right to freedom, (iii) right against exploitation, (iv) right to freedom of
religion, (v) cultural and educational rights , (vi) right to property, and
(vii) right to constitutional remedies. They are the rights of the people
preserved by our Constitution, 'Fundamental rights' are the modem 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 necessary for the
development of human personality. They are the rights which enable a man to
chalk out his own life in the manner he likes best. Our Constitution, in
addition to the Well-known fundamental rights, also included the rights of the
minorities, untouchables 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 a distinction
must be made between possession of a 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 personalliberty except
according to

       procedure established by law".

    Of all the rights, the right to one's life is the most valuable. This
article of the Constitution,therefore, makes the right

       fundamental. But the inalienable right is curtailed by a murderer's
conduct as viewed under law. The deprivation, when it takes place, is not of the
right which was immutable but of the continued exercised of right.,'

       (1) [1967] 2 SCR762.

        652

It is, therefore, clear that six out of eleven Judges in Golak Nath's case
declared that fundamental rights are natural rights embodied 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 a 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 possibly take
if I were not to disregard, as I could not properly do, what had been held by
larger benches and what I myself consider to be the correct view : that natural
law rights were, meant to be converted into our Constitutionally recognised
fundamental rights, atleast so far as they are expressly mentioned, so that they
are to be found within it and not outside it. To take a contrary view would
involve a conflict between natural law and our Constitutional law. I am
emphatically of opinion that a divorce between natural law and our
Constitutional law will be disastrous. It will defeat one of the basic purposes
of our Constitution. The implication of what I have indicated above is that
Article 21 is also a recognition and declaration of rights which inhere in every
individual. Their existence does not depend on the location of the individual.
Indeed, it could be argued that what so inheres is inalienable and cannot be
taken away at all. This may seem theoretically correct and logical. But, in
fact, we are often met with denials of what is, in theory, inalienable or
"irrefragible". Hence, we speak of "deprivations" or "restrictions" which are
really impediments to the exercise of the "inalienable" rights' Such
deprivations or restrictions or regulations of rights may take place, within
prescribed limits, by means of either statutory law or purported actions under
that law. The degree to which 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 a restrictive law or orders under
it could be imposed upon its exercise. We have to decide in each specific case,
as it arises before us, what the result of such a balancing is.

In judging the validity of either legislative or executive state action 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 country, 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 ther e to suggest that restrictions on right', 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). 1 agree with my learned
brother Bhagwati, for reasons detailed by him, that the total effect and not the
mere form of a restriction will determine which fundamental right is really
involved in a 653

particular case and whether a restriction upon its exercise is reasonbly
permissible on the facts and circumstances of that case.

If rights under article 19 are rights which inhere in Indian citizens,
individuals concerned carry these inherent fundamental constitutional rights
with them wherever they go, in so far as our law applies to them, because they
are, parts of the Indian nation 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. But, that is
not the position in the case before us. So far as the impugned action in the
case before us is concerned, it took place in India and against an Indian
citizen residing in India.

In India, at any rate, we are all certainly governed by our Constitution. The
fact that the affected petitioner may not, as a result of a particular order, be
able to do something intended to be done by her abroad cannot possibly make the
Governmental action in India either ineffective or immune from judicial scrutiny
or from an attack made on the ground of a violation of a fundamental right which
inheres in an Indian citizen. The consequences or effects upon the petitioner's
possible actions or future activities in other countries may be a factor which
may be weighed, where relevant, with other relevant facts in a particular case
in judging the merits of the restriction imposed. It will be relevant in so far
as it can be shown to have some connection with public or national interests
when determining the merits of an order passed. It may show how she has become a
" person aggrieved" with a cause of action, by a particular order involving her
personal freedom. But, such considerations cannot curtail or impair the scope or
operation of fundamental rights of citizens as protections against unjustifiable
actions 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 inherent 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 singer or dancer
may well be able to complain of an unjustifiable restriction on professional
activity by a denial of a passport. In such a case, violations of both articles
21 and 19(1) (g) may both be put forward making it necessary for the authorities
concerned to justify the restriction imposed by showing satisfaction of tests of
validity contemplated by each of these two articles. 654

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. Thus, I think that a discretion left to the authority to
impound a passport in public 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 a validly exercisable power. I think it
has to be necessarily left to executive discretion to decide whether, on the
facts and circumstances of a particular case, public interest will or will not
be served by a particular order to be passed under a valid law subject, as it
always is, to judicial supervision. In matters such as grant, suspension,
impounding or cancellation of passports, the possible dealings of an individual
with nationals and authorities of other States have to be considered. The
contemplated or possible activities abroad of the individual may have to be
taken into. account. There may be questions of national safety and welfare which
transcend the importance of the individual's inherent right to go where he or
she pleases to go. Therefore, although we may not deny the grant of wide
discretionary power, to the executive authorities as un- reasonable in such
cases, yet, I think we must look for and find procedural safeguards to ensure
that the power will not be used for purposes extraneous to the grant of the
power before we uphold the validity of the power conferred. We have to insist on
procedural proprieties the observance of which could show that such a power is
being used only to serve what can reasonably and justly be, regarded as a public
or national interest capable of overriding the individual's inherent right of
movement or travel to wherever he or she pleases in the modern world of closer
integration in every sphere between the peoples of the world and the shrunk
time-space relationship.

The view I have taken above proceeds on the assumption that there are inherent
or 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 these basic rights are conferred can
exercise them so long as there is no justifiable reason under the law enabling
deprivations or restrictions 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 a procedurally valid manner, the action which results in a deprivation or
restriction becomes unassailable. If either the reason sanctioned by the law is
absent, or the procedure followed in arriving at the conclusion that such a
reason exists is unreasonable, the order having the effect of deprivation or
restriction must be quashed.

A bare look at the provisions of S. IO, sub.s. (3 ) of the Act will show that
each of the orders which could be passed under section 10, sub.s. (3) (a) to (h)
requires a "satisfaction" by the Passport Authority on certain objective
conditions which must exist in a case before it passes an order to impound a
passport or a travel document. Impounding 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 Government

655

from every order passed under section 10, sub.s. (3) of the Act. Hence, section
10, subs. s. (5) makes it obligatory upon the Passport Authority to "record in
writing a brief statement of the reasons for making such order and furnish to
the holder of the passport or travel document on, demand a 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, the security of
India, friendly relations of India with any foreign country or in the interests
of the general public to furnish such a copy".

It seems to me, from the provisions of section 5, 7 and 8 of the Act, read with
other provisions, that there is a statutory right also acquired, on fulfilment
of prescribed conditions by the holder of a 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 a
suspension of it for the time being. It is true that in a proceeding under
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 2 1, however, makes it clear That violation of a
law, whether statutory or if any other kind, is itself an infringement of the
guaranteed fundamental right. The basic right is not to be denied the protection
of "law" irrespective of variety of that law. It need only be a right
"established by law".

There can be no doubt whatsoever that the orders under section 10(3) must be
based upon some material even if that material consists, in some cases, of
reasonable suspicion arising from certain credible assertions made by reliable
individuals. It may be that, in an emergent situation, the impounding of a
passport may become necessary without even giving an opportunity to be heard
against such a step, which could be reversed after an opportunity given to the
holder of the passport to show why the step was unnecessary, but, ordinarily, no
passport could be reasonably either impounded or revoked without giving a prior
opportunity to its holder to show cause against the proposed action. The
impounding as well revocation of a passport, seem to constitute action in the
nature of a punishment necessitated on one of the grounds specified in the Act.
Hence, ordinarily, an opportunity to be heard in defence after a show cause
notice should be given to the holder of a, passport even before impounding it.

It is well established that even where there is no specific provision in a
statute or rules made thereunder for showing cause against action proposed to be
taken against an individual, which affects the rights of 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 & Ors.(1) in the following words

       "The rule that a party to whose prejudice an order is intended to be
passed is entitled to a hearing applies alike to

       (1) AIR 1967 S.C. 1269 at 1271.

       656

       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, therefore arise from the very nature of the function
intended to be performed, it need not be shown to be super- ,added. If there is
power to decide and determine to the prejudice of a 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 prejudice of a Person is made, the order
is a nullity. That is a basic concept of the rule of law and importance thereof
transcends the significance of a decision in any particular case."

In England, the rule was thus expressed by Byles J. in Cooper v. Wandsworth
Board of Works(1)

       "The laws of God and man both give the party an opportunity to make his
defence, if he has any. I remember to have heard it observed by a very learned
man, upon such an occasion, that even God himself did not pass sentence upon
Adam before be was called upon to make his defence. "Adam (says God), "where art
thou ? Hast thou ? 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 well
recognised principles, that an order impounding a passport must be made quasi-
judicially. This was not done in the case before us.

In my estimation, the findings arrived at by my learned brethren after an
examination of the facts of the case before us, with which I concur, indicate
that it cannot be said that a good enough reason has been shown to exist for
impounding the passport of the petitioner by the order dated 7th July, 1977.
Furthermore, the petitioner has bad no opportunity of showing that the ground
for impounding it finally given in this Court either does not exist or has no
bearing on public interest or that public interest cannot be better served in
some other manner. Therefore, speaking for myself, I would quash the order and
direct the opposite parties to give an opportunity to the petitioner to show-
cause against any proposed action on such grounds as may be available.

I am not satisfied that there were present any such pressing grounds with regard
to the petitioner before us that the immediate action of impounding her passport
was called for. Furthermore, the rather cavalier fashion in which disclosure of
any reason for impounding her passport was denied to her, despite the fact that
the only reason said to exist the possibility of her being called to give
evidence before a commission of 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.

657

public interest, may indicate the existence of some undue prejudice against the
petitioner. She has to be protected against even the appearance of such
prejudice or bias. It appears to me that even executive authorities when taking
administrative 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 a duty to proceed in
a way which is free from even the appearance of arbitrariness or
unreasonableness or unfairness. They have to act in a manner which is patently
impartial and meets the requirements of natural 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 impounding her passport, 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 July, 1977, is neither fair
nor procedurally 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 impounded "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 reasons. for its decision, she
has filed this writ petition 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 a passport "in the interests of the general
public", it is 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 a hearing to the holder of the passport before the passport
is, impounded;

       (3) Section 10(3)(c) is violative of article 21 of the Constitution since
it does not prescribe 'procedure' within the meaning of that article and since
the procedure which it prescribes is arbitrary and unreasonable; and (4) Section
10 (3)(c) offends against articles 19(1)(a) and 19 (1 ) (g) since it permits
restrictions to be imposed on the rights guaranteed by these articles even
though such restrictions cannot be imposed under articles 19(2) and 19(6).

       658

At first, the passport authority exercising its power under section 10(5) of the
Act refused to furnish to the petitioner the reason for which it was considered
necessary in the interests of general public to impound her passport. But those
reasons were disclosed later in the 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 petitioner's passport was impounded
because, her presence was likely to be required in connection with the
proceedings before a 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. The power to refuse to disclose the reasons for
impounding a 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 equally be open to the scrutiny of the court; or
else, the wholesome power of a dispassionate judicial examination of executive
orders could with impunity be set at naught by an obdurate determination to
suppress the reasons. Law cannot permit the exercise of a power to keep the
reasons undisclosed if the sole reason for doing so is to keep the reasons away
from judicial scrutiny. In Satwant Singh Sawhney v. D. Ramarathnam, Assistant
Passport Officer, Government of India, New Delhi & Ors.(1) 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 person can be
deprived of that right except according to procedure established by law. The
Passport Act which was enacted by Parliament in 1967 in order to comply with
that decision prescribes the procedure whereby an application for a passport may
be granted fully or partially, with or without any endorsement, and a passport
once granted may later be revoked or impounded. But the mere prescription of
some kind 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 a law which curtails or takes away the personal liberty guaranteed by article
21 is reasonable or not has to be considered not in the abstract or on
hypothetical considerations like the provision for a full-dressed hearing as in
a Courtroom trial, but in the context, 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 article 21 is not the
journey's end because, a law which prescribes fair and reasonable procedure for
curtailing or taking away the personal liberty guaranteed by article 21 has
still to meet a possible challenge under other Provisions of the Constitution
like, for example, articles 14 and 19. If the holding in A. K. Gopalan v. State
of Madras(2) that the freedoms guaranteed by the Constitution are (1) [1967] 3
SCR 525

(2) [1950] SCR 88.

659

mutually exclusive were still good law, the right to travel abroad which is part
of the right of personal liberty under article 21 could only be found and
located in that article and in no other. But in the Bank Nationalisation Case
(R. C. Cooper v. Union of India) (1) the majority held that the assumption in A.
K. Gopalan(2) that certain articles of the Constitution exclusively deal with
specific matters cannot be accepted as correct. Though the Bank Nationalisation
case(1) was concerned with the inter-relationship of article 31 and 19 and not
,of articles 21 and 19, the basic approach adopted therein as regards the
construction of fundamental rights guaranteed in the different pro-visions of
the Constitution categorically discarded the major premise of the majority
judgment in A. K. Gopalan (supra) as incorrect. That is how a seven-Judge Bench
in Shambhu Nath Sarkar v. State of West Bengal & Ors.(3) assessed the true
impact of the ratio of the Bank Nationalisation Case (supra) on the decision in
A. K. Gopalan (supra) in Shambhu Nath Sarkar(3) it was accordingly held that a
law of preventive detention has to meet the challenge not only of articles 21
and 22 but also of article 19 (1 ) (d). Later, a 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 a part of any of the freedoms mentioned in article 19(1) is
not to be shut out at the threshold merely because that right is a part of the
guarantee of personal liberty under article 21. 1 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 a law prescribing a procedure for depriving a

       person of 'personal liberty' and there is consequently no infringement of
the fundamental right conferred by article 21, such law, in so far as it
abridges or takes away any fundamental right under article 19 would have to meet
the challenge of that article."

The interplay of diverse articles of the Constitution guaranteeing various
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 consequences was thought in A. K. Gopalan (supra) and Ram Singh(5) to be the
true approach for determining whether a fundamental right was infringed. A
significant application of that test may be perceived in Naresh S. Mirajkar(6)
where an order passed by the Bombay High Court prohibiting the publication of a
witness's evidence in a 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 evidence

(1) [1973] 3 SCR 530.

(2) [1950] SCR 88

(3) [1973] 1 SCR 856.

(4) [1975] 1 SCR 778.

(5) [1951] SCR 451.

(6) [1966] 3 SCR 744.

660

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 Newspapers(1) struck a
modified note by evolving the test of proximate effect and operation of the
statute. That test saw its fruition in Sakal Papers(2) where the Court, giving
precedence to the direct and immediate effect of the order over its form and
object, struck down the Daily Newspapers (Price and Page) Order, 1960 on the
ground that it violated article 19(1)(a) of the Constitution. The culmination of
this thought process came in the Bank Nationalisation Case (supra) where it was
held by the majority, speaking through Shah J., that the extent of protection
against impairment of a fundamental right is determined by the direct operation
of an action upon the individual's rights and not by the object of the
legislature or by the form of the action. In Bennett Coleman(3) the Court, by a
majority, reiterated the same position by saying that the direct operation of
the Act upon the rights forms the real test. It struck down the newsprint
policy, restricting the number of pages of newspapers without the option to
reduce the circulation, as offending against the provisions of article 19(1)
(a). "The action may have a direct effect on a fundamental right although its
direct subject matter may be different" observed the Court, citing an effective
instance of a law dealing with the Defence of India or with defamation and yet
having a 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 statute. 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 a 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 geographical limits of India only.
Secondly, he contends, the right to go abroad is altogether of a different genre
from the right of free speech and expression and is therefore not a part of it.

The first of these contentions raises a question of great importance but the
form in which the contention is couched is, in my opinion, apt to befog the true
issue. Article 19 confers certain freedoms oil 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 reside and settle in any part of the 'territory of India' which are
contained in clauses (d) and (e) 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] SCR 12.

(2) [1962] 3 SCR 842.

(3) [1973] 2 SCR 757.

661

Those rights are intended to bring in sharp focus, the unity and integrity 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 consi- 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 restraints on the freedoms guaranteed by Article 19(1) can be imposed under
Articles 19(2) to 19(6) by the State furnish any clue to that question. The
State can undoubtedly impose reasonable restrictions on fundamental freedoms
under clauses (2) to (6) of Article 19 and those restrictions, generally, have a
territorial operation. But the ambit of a freedom cannot be measured by the
right of a State to pass laws imposing restrictions on that freedom which, in
the generality of cases, have a geographical limitation.

Article 19(1) (a) guarantees to Indian citizens the right to freedom of speech
and expression. It does not delimit that right in any manner and there is no
reason, arising either out of interpretational dogmas or pragmatic
considerations, why the courts should strain the language of the Article to cut
down the amplitude of that right. The plain meaning of the clause guaranteeing
free speech and expression is that Indian citizens are entitled to exercise that
right wherever they choose, regardless of geographical considerations, subject
of course to the operation of any existing law or the power of the State to make
a law imposing reasonable restrictions in the interests of the sovereignty and
integrity of India, the security of the State, friendly relations with foreign
States, public order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence, as provided in article 19(2). The
exercise of the right of free speech and expression beyond the limits of Indian
territory will, of course, also be subject to the laws of the country in which
the freedom is or is intended to be exercised. I am quite clear that the
Constitution 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,
subject to what I have just stated. In fact, that seems to me to be the crux of
the matter, for which reason I said, though with respect, that the form in which
the learned Attorney General stated his proposition was likely to cloud the true
issue. The Constitution guarantees certain fundamental freedoms and except where
their exercise is limited by territorial considerations, those freedoms may be
exercised wheresoever one chooses, subject to the exceptions or qualifications
mentioned above.

The next question is whether the right to go out of India is an integral part of
the right of free speech and expression and is comprehended within it. It seems
to me impossible to answer this question in the affirmative as is contended by
the petitioner's counsel, Shri Madan Bhatia. It is possible to predicate of many
a right that its exercise would be more meaningful if the right is extended to
comprehended an extraneous facility. But such extensions do not form part of the
right conferred by the Constitution. The analogy of the freedom of press being
included in the right of free speech and expression

4-119SCI/78

662

is wholly misplaced because the right of free expression incontrovertibly
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 different indeed that one cannot be
comprehended in the other.

Brother Bhagwati has, on this aspect considered at length certain American
decisions like Kent(1),_Apthekar(2) and Zemel(3) and illuminating though his
analysis is, I am inclined to think that 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. The content which has been meaningfully and
imaginatively poured into "due process of law" may, in my view, constitute an
important point of distinction between the American Constitution and ours which
studiously avoided the use of that expression. In the 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 ageold
dream for recognition of the equal and inalienable rights of man, the 14th
Amendment though 100 years old, can never be old.

       "Like the poor old women in Yeat's play,

       "Did you see an old woman going down the path?" asked Bridget. "I did
not," replied Patrick, who had come into the house after the old woman left it,
"But I saw a young girl and she had the walk of a queen."

Our Constitution too strides in its majesty but, may it be remembered, without
the due process clause, I prefer to be content with a decision directly in
point, All India Bank Employees' Association(4) In 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 a 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. One right leading to another and that another to
still other, and so on, was described in the abovementioned decision as
productive of a "grotesque result".

I have nothing more to add to what Brother Bhagwati has said on 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 19(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 a 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. ed. 2d 1204.

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

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

(4) [1962] 3 SCR 269.

663

because in this branch, one says no more than the facts warrant and decides
nothing that does not call for a decision. The fact that the petitioner was not
heard before or soon after the impounding of her passport would have introduced
a serious infirmity in the order but for the statement of the Attorney General
that the. Government was, willing to hear the petitioner and further to limit
the operation of the order to a period of six months from the date of the fresh
decision, 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).

1, 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 a letter dated 2nd July, 1977 from the Regional Passport Officer, Delhi
intimating to her that it has been decided by the Government of India to impound
her passport under section 10(3)(c) of the Act in public interest and requiring
her to surrender the passport within seven days from the date of receipt of the
letter. The petitioner immediately addressed a letter to the Regional Passport
Officer requesting him to furnish a copy of the statement of reasons for making
the order as provided in section 10(5) to which a reply was sent by the
Government of India, Ministry of External Affairs on 6th July, 1977 stating
inter alia that the Government has decided "in the interest of the general
public" not to furnish her a copy of the statement of reasons, for making of the
order. The Petitioner thereupon filed the present petition challenging the
action of the Government in impounding her passport and declining to give
reasons for doing so. The action of the Government was impugned inter alia on
the ground that it was mala fide, but this challenge was not pressed before us
at the time of the hearing of the arguments and hence it is not necessary to
state any facts hearing on that question. The principal challenge set out in the
petition against the legality of the action of the Government was based mainly
on the ground that section 10(3) (c), in so far as it empowers the Passport
Authority to' impound a passport "in the interests of the general public" is
violative of the equality clause contained in Art. 14 of the Constitution, since
the condition denoted by the words "in the interests of the general public"
limiting the exercise of the power is vague and undefined and the power
conferred by this provision is, therefore, excessive and suffers from the vice
of "over-breath." The, petition also contained a challenge that an order under
section 10(3) (c) impounding a passport could not be made by the Passport
Authority without giving an opportunity to the holder of the passportto be heard
in defence and since in the present case, the passport was impounded by the
Government without affording an apportunity of hearingto the petitioner, the
order was null and void, and in the alternativeif section 10(3) (c) were read in
such a manner as to exclude the right of hearing, the section would be infected
with the vice ofarbitrariness and it would be void as offending Article 14.
These were the only grounds taken in the Petition as originally filed and on
20th July, 1977 the petition was admitted and rule issued by this Court and an
interim order was made directing 664

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 Petition.
The hearing of the petition was fixed on 30th August 1977, but before that, the
petitioner filed an application for urging additional grounds and by this
application, two further 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 violative of Articles
19(1)(a) and 19(1)(g) inasmuch as it authorises imposition of restrictions on
freedom of Speech and expression guaranteed under Article 19 (1 ) (a) and
freedom to practise any profession or to carry on any occupation, or business
guaranteed under Article 19(1)(g) and these restrictions are 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 Satwant Singh Sawhney
v. D. Ramarathnam, Assistant Passport Officer. Government of India, New Delhi &
Ors.(1) The position which obtained prior to the coming into force of this Act
was that there was no law regulating the issue of passports for leaving the
shores of India and going abroad. The issue of passports was entirely within the
discretion of the executive and this discretion was unguided and unchannelled.
This Court, by a majority, bela that the expression "personal liberty" in
Article 21 takes in the right of locomotion and travel abroad and under Article
21 no person can be deprived of his right to go abroad except according to the
procedure established by law and since no law had been made by the State
regulating or prohibiting the exercise of such right, the refusal of passport
was in violation of Article 21 and moreover the discretion with the executive in
the matter of issuing or refusing passport being unchannelled and arbitrary, it
was plainly violative of Article 14 and hence the order refusing passport to the
petitioner was also invalid under that Article. This decision was accepted by
Parliament and the infirmity pointed out by it was set right by the enactment of
the Passports Act, 1967. This Act, as its preamble shows, was enacted 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 incidental and ancillary
matters. Section 3 provides that no person shall depart from or attempt to
depart from India unless be holds in (1) [1967] 3 SCR525.

665

this behalf a valid passport or travel document. What are the different classes
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 a passport or travel document or for endorsement on such passport
or travel document for visiting foreign country or countries and sub-section (2)
says that on receipt of such application, the passport authority, after making
such inquiry, if any, as it may consider necessary, shall, by order in writing,
issue or refuse to issue the passport or travel document or make or refuse to
make on the 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 passport or travel
document or to make any endorsement on the passport or travel document, to
record in writing a 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 an endorsement for visiting any foreign country and
provides that on no other ground the endorsement shall be refused. There are
foul grounds set out in this sub-section and 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-section (2) of section 6
specifies the grounds on which alone and on no other grounds the passport
authority shall refuse to issue passport of travel document for visiting any
foreign country and amongst various grounds set out there, the last is that, in
the opinion of the Central Government the issue of passport or travel document
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 a passport or travel document or to vary or cancel the conditions subject to
which a passport or travel document has been issued, having regard, inter alia,
to the provisions of sub-section (1) of section 6 or any notification. under
section 19, Sub-section (2) confers powers on the passport authority to vary or
cancel the conditions of the passport or travel document on application of the
holder of the passport or travel document and with the previous approval of the
Central Government. Sub-section (3) provides that the passport authority may
impound or cause to be impounded or revoke a passport or travel document on the
grounds set out in clauses (a) to (h), The order impounding the passport in the
present case was made by the Central Government under clause (c) which reads as
follows:--

       "(c) if the passport authority deems it necessary so to do in the
interest of the Sovereignty and Integrity of India, the security of India,
friendly relations of India with any foreign country, or in the interests of the
general public;"

The particular ground relied upon for making the order was that set out in the
last part of clause (c), namely, that the Central Government deems it necessary
to impound the passport "in the interests of the general public." Then follows
sub-section (5) which requires the

666

passport authority impounding or revoking a passport or travel document or
varying or canceling an endorsement made upon it to "record in writing a brief
statement of the reasons for making such order and furnish to the holder of the
passport or travel document on demand a 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 my foreign country or in the interests of the general
public to furnish such a copy." It was in virtue of the provision contained in
the latter part of this sub-section that the Central Government declined to
furnish a copy of the statement of reasons 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 a matter of regret that the
Central Government should have taken up this attitude in reply to the request of
the petitioner to be supplied a copy of the statement of reasons, because
ultimately, when the petition came to be filed, the Central Government did
disclose the reasons in the affidavit 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 no reasonable person
could possibly have taken the view that the interests of the general public
would be prejudiced by the disclosure of the reasons. This is an instance
showing how power conferred on a statutory authority to act in the, interests of
the general public can sometimes be improperly exercised. If the petitioner had
not filed the petition, she would perhaps never 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-section (5) so that it may act as a healthy check against
abuse or misuse of power. If the reasons given are not relevant and there is no
nexus between the reasons and the ground on which the passport has been
impounded, it would be open to the holder of the passport to challenge the order
impounding it in a court of law and if the court is satisfied that the reasons
are extraneous or irrelvant, the court would strike down the order. This
liability to be exposed to judicial scrutiny would by itself act as a safeguard
against improper or mala fide exercise of power. The court would, therefore, be
very slow to accept, without close scrutiny, the claim of the passport authority
that it would not be in the interests of the general public to disclose the
reasons. The passport authority would have to satisfy the court by placing
proper material that the giving of reasons would be clearly and indubitably
against the interests of the general public and if the Court is not so
satisfied, the Court may require the passport authority to disclose the reasons,
subject to any valid and lawful claim for privilege which may be set up on
behalf of the Government. Here in the present case, as we have already pointed
out, the Central Government did initially claim that it would be against the
interests of the general public to disclose 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 a matter

667

which we shall examine when we deal with the arguments of the parties,
,Meanwhile, proceeding further with the resume of the relevant provisions,
reference may be made to section 11 which provides for an appeal inter alia
against the order impounding or revoking a passport or travel document under
sub-section (3) of section 10. But there is a proviso to this section which says
that if the order impounding or revoking a passport or travel document is passed
by the Central Government, there shall be no right to appeal. These are the
relevant 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.

Meaning and content of personal liberty in article 21 The first contention urged
on behalf of the petitioner in support of the petition was that the right to go
abroad is part of 'personal liberty 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 prescribed by law. There is no procedure prescribed by the
Passport Act, 1967 for impounding or revoking a passport and thereby preventing
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 for 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 violation of Article 21. This contention of the
petitioner raises a question as to the true interpretation of Article 21, what
is the nature and extent 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 a person
can be deprived of his personal liberty or that the procedure must satisfy
certain requisites in the sense that it must be fair and reasonable ? Article 21
occurs in Part III of the Constitution which confers certain fundamental rights.
These fundamental rights had their roots deep in the struggle for independence
and, as pointed out by Granville Austin in 'The Indian Constitution-Cornerstone
of a Nation', "they were included in the Constitution in the hope and
expectation that one day the tree of true liberty would bloom in India". They
were indelibly written in the sub-conscious memory of the race which fought for
well-nigh thirty years for securing freedom from British rule and they found
expression in the form of fundamental rights when the Constitution was enacted.
These fundamental rights represent the basic values cherished by the people of
this country since the Vedic times and they are calculated to protect the
dignity of the individual and create conditions in which every human being can
develop his personality to the fullest extent. They weave a "pattern of
guarantees on the basic-structure of human rights" and impose negative
obligations on the State not to encroach on indi-

668

vidual liberty in its various dimensions. It is apparent from the enunciation of
these rights that the, respect for the individual and his capacity for
individual volition which finds expression there is not a self fulfilling
prophecy. Its purpose is to help the individual to find his own liability, to
give expression to his creativity and to prevent governmental and other forces
from 'alienating' the individual from his creative impulses. These rights are
wide ranging and comprehensive and they fall under seven heads, namely, right to
equality, right to freedom, right against exploitation, right to freedom of
religion, cultural and educational rights, right to property and right to
constitutional remedies. Articles 14 to 18 occur under the heading 'Right to,
Equality', and of them, by far the most important is Article 14 which confers a
fundamental right by injuncting the State not to "deny to any person equality
before the law or the equal protection of the laws within the territory of
India". Articles 19 to 22, which find place under the heading "Right to freedom
provide for different aspects of freedom. 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 are not and cannot be absolute, for absolute and
unrestricted freedom of one may be destructive of the freedom of another and in
a well-ordered, civilised society, freedom can only be regulated freedom.
Therefore, clauses (2) to (6) of Art. 19 permit reasonable restrictions to be
imposed 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 detention. The other
fundamental rights are not relevant to, the present discussion and we, need not
refer to them.

It is obvious that Article 21, though couched in negative language, confers the
fundamental right to life and personal liberty. So far as the right to personal
liberty is concerned, it is ensured by providing that no one shall be deprived
of personal liberty except according to procedure prescribed by law. The first
question that arises for con- sideration on the language of Article 21 is : what
is the meaning and content of the words 'personal liberty' as used in this
article ? This question incidently came up for discussion in some of the
judgments in A. K. Gopalan v. State of Madras(1) and the observations made by
Patanjali Sastri, J., Mukherjee, J., and S. R. Das, J., seemed to place a narrow
interpretation on the words 'personal liberty' so as to confine

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

669

the protection of Article 21 to freedom of the person against unlawful
detention. But there was no definite pronouncement made on this point since the
question before the Court was not so much the interpretation 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.(1) that the question as to the, proper
scope and meaning of the expression personal liberty' came up pointedly for
consideration for the first time before this Court. The majority of the Judges
took the view "that personal liberty' is used in the article as a compendious
term to include within itself all the varieties of rights which go to make up
the personal liberties' of man other than those dealt with in the several
clauses 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 expression 'personal liberty' is a comprehensive
one and the right to move freely is an attribute of personal liberty. It is said
that the freedom 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 a correct approach. Both are independent
fundamental rights, though there is overlapping. There is no question of one
being carved out of another. The fundamental right of life and personal liberty
has many attributes and some of them are found in Article 19. If a person's
fundamental right under Article 21 is infringed, the State can rely upon a law
to sustain the action, but that cannot be a 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 minority view
must be regarded as correct and the majority view must be held to have been
overruled. We shall have occasion to analyse and discuss the decision in R. C.
Cooper's case a little later when we deal with the arguments based 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 a decision given by the full
Court, the fundamental rights conferred by Part III are not distinct and
mutually exclusive rights. Each freedom has different dimensions and merely
because the limits of interference with one freedom are satisfied, the .law is
not freed from the necessity to meet the challenge of another guaranteed
freedom. The decision in A. K. Gopalan's (supra) case gave rise to the theory
that the freedoms under Articles 19, 21, 22 and 31 are exclusive-each article
enacting a code relating to the protection of distinct rights, but this theory
was over-turned in R. C. Cooper's case (supra) where Shah, J., speaking on
behalf of the majo- rity pointed out that "Part III of the Constitution weaves a
pattern of guarantees on the texture of basic human: rights. The guarantees
delimit the protection of those rights in their allotted fields : they do not
attempt to enunciate distinct rights." The conclusion was summarised in these
terms : "In our judgment, the assumption in A. K. (1) [1964] 1 S.C.R. 332.

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

670

Gopalan's case that certain articles in the Constitution exclusively deal with
specific matters cannot be accepted as correct". It was hold in R. C. Cooper's
case and that is clear from the judgment of Shah, J., because Shah, J., in so
many terms disapproved of the contrary statement of law contained in the
opinions of Kania, C. J., Patanjali Sastri, J., Mahajan, J., Mukherjee, J., and
S. R. Das, J., in A. K. Gopalan's case that even where a person is detained in
accordance with the procedure 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 has 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 mutually exclusive, for, if they were,
there would be no question of a law depriving a person of personal liberty
within the meaning of Article 21 having to meet the challenge of a fundamental
right under Article 19(1). Indeed, in that event, a law of preventive detention
which deprives a person of 'personal liberty' in the narrowest sense, namely,
freedom from detention and thus falls indisputably within Art. 21 would not
require to be tested on the touchstone of clause (d) of Article 19 (1) and yet
it was held by a Bench of seven Judges of this Court in Shambhu Nath Sarkar v.
The State of West Bengal& Ors. (1) that such a law would have to satisfy the
requirement inter alia of Article 19 (1), clause (d) and in Haradhan Saha v. The
State, of West Bengal & Ors., (2) which was a decision given by a 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 principle we can refuse to
give its plain natural meaning to the expression ' personal liberty' as used in
Article 21 and read it in a narrow and restricted sense so as to exclude those
attributes of personal liberty which are specifically dealt with in Article 19.
We do not think that this would be a correct way of interpreting the provisions
of the Cons- titution conferring fundamental rights. 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 a process of judicial construction. 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 of the fundamental rights must now be in tune with this wave,
length. We may point out even at the cost of repetition that this Court has said
in so; many terms in R. C. Cooper's case that each freedom has different
dimensions and there may be overlapping between different fundamental rights and
therefore it is not a' valid argument to say that the expression 'personal
liberty' in Article 21 must be so interpreted as to avoid overlapping between
that article and Article 19(1). The expression 'personal liberty' in Article 21
is of the widest amplitude and it covers a variety of rights which go to
constitute the personal liberty of man and some of them have been raised to the
status of distinct fundamental rights and given additional protection under
Article 19. Now, it has been

(1) [1973] 1 SCR 856.

(2) [1975] 1 S.C.R. 778.

671

held by this Court in Satwant Singh's case that 'personal liberty' within the
meaning of Article 21 includes within its ambit the right to go abroad and
consequently no person can be deprived of this right except according to
procedure prescribed by law. Prior to the enactment of the Passports Act, 1967,
there was no law regulating the right of a 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 win be seen at
once from the language of Article 21 that the protection it secures is a limited
one. It safeguards the right to go abroad against executive interference which
is not supported by law; and law here means 'en-. acted law' or 'State Law'.
Vide A. K. Gopalan's case. Thus, no person can be deprived of his right to, go
abroad unless there is a 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 regulating the
tight to go abroad. It is clear from the provisions of the Passports, Act, 1967
that is lays down the circumstances under which a passport may be issued or
refused or cancelled or impounded and also prescribes a procedure for doing so,
but the question 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 particular requirements ? Obviously, procedure cannot be arbitrary,
unfair or unreasonable. This indeed was conceded by the learned Attorney General
who with his usual candour frankly stated that it was not possible for him to
contend that any procedure howsoever arbitrary, 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,
fantastic or oppressive procedure. Fazal Ali, J., who was in a minority, went to
the farthest limit in saying that the procedure must include the four
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 principles 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 a person can be condemned either in respect of his life or his liberty"
and "it negatives the idea of fantastic, arbitrary and oppressive forms of
proceedings". But apart altogether from these observations in A. K. Gopalan's
case, which have great weight, we find that even on principle the concept of
reasonableness must be projected in the procedure contemplated by Article 21,,
having regard to the impact of Article 14 on Article 21. 672

The inter-relationship between articles 14, 19 and 21 We may at this stage
consider the inter-relation between Article 21 on the one hand and Articles 14
and 19 on the other. We have already pointed out that the view taken by the
majority in A. K. Gopalan's case war,. that so long as a law of preventive
detention satisfies the requirements of Article 22, it would be within the terms
of Article 21 and it would not be required to meet the challenge of Article

19. This view proceeded on the assumption that "certain articles in the
constitution exclusively deal with specific matters" and where the requirements
of an article dealing with the particular matter in question are satisfied and
there is no infringement of the fundamental right guaranteed by that article, no
recourse can be had to a 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 a majority of the Full Court, only Ray, J., as he then was,
dissenting. The majority judges held that though a 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 majority judgment in R.
C. Cooper's case was explained in clear and categorical terms by Shelat, J.,
speaking on behalf of seven judges of this Court in Shambhu Nath Sarkar v. State
of West Bengal(1). The learned Judge there said :

       "In Gopalan's case (supra) the majority court had held that Article 22
was a self-contained Code and therefore a 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 a direct breach of
the right under Article 19 (1) (d) and that a 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 India, (supra) the aforesaid
premise, of the majority in Gopalan's 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 West Bengal & Ors.(2) also, a Bench
of five Judges of this Court, after referring to the decisions in A. K.
Gopalan's case and R. C. Cooper's case, agreed that the Maintenance of Internal
Security Act, 1971, which is a law of preventive 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 a Bench of four

(1) [1973] S.C.R.856.

(1) [1975] S.C.R.778.

673

judges of this Court in Khudiram Das v. The State of West Bengal & Ors.(1)
Interestingly, even prior to these decisions, as pointed out by Dr. Rajive
Dhawan, in his book : "The Supreme Court of India :" at page 235, reference was
made, by this court in Mohd. Sabir v. State of Jammu and Kashmir(2) to article
191(2) to justify preventive; deten- tion. The law, must, therefore, now be
taken to be well settled that Article 21 does not exclude Article 19 and that
even if there is a law prescribing a procedure for depriving a person of
'personal liberty' and there is consequently no infringement of the fundamental
right conferred by Article 21, such law, in so far as it abridges or takes away
any fundamental right under Article 19 would have to meet the challenge of that
article. This proposition can no longer be disputed after the decisions in R. C.
Cooper's case, Shambhu Nath Sarkar's case and Haradhan Saha's case. Now, if a
law depriving a person of 'personal liberty' and prescribing a procedure for
that 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 a given situation, ex hypothesi it must also be liable to be
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 a valid and binding law under the
provisions of the Constitution having regard to the competence 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 a special law providing for trial of certain
offences by a 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 a 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 on the touchstone of Article 14 and in one case, namely,
Kathi Raning Rawat's case, the validity was upheld and in the other, namely,
Anwar Ali Sarkar's case, it was struck down. It was held in both these cases
that the procedure established by the special law must not be violative of the
equality clause. That procedure must answer the requirement of Article 14. The
nature and requirement of the procedure under article 21.

Now, the question immediately arises as to what is the requirement of Article 14
: what is the content and reach of the great equalising principle enunciated in
this article ? There can be no doubt that it is a founding faith of the
Constitution. It is indeed the pillar on which (1) [1975] 2 S.C.R.832.

(2) A.I. R.1971S.C.1713.

(3) [1952] S.C.R. 284.

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

674

rests securely the foundation of our democratic republic. And, therefore, it
must not be subjected to a 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 magnitude. Equality is a dynamic concept
with many aspects and dimensions and it cannot be imprisoned Within traditional
and doctrinaire limits. We must reiterate here what was pointed out by the
majority in E. P. Royappa v. State of Tamil Nadu & Another (1) namely, that
"from a positivistic point of view, equality is antithetic to arbitrariness. In
fact equality and arbitrariness are sworn enemies; one belongs to the rule of
law in a republic, while the other, to the whim and caprice of an absolute
monarch. Where an act is arbitrary, it is implicit in it that it is unequal both
according to political logic and constitutional law and is therefore violative
of Article 14". Article 14 strikes, at arbi- trariness in State action and
ensures fairness and equality of treatment. The principle of reasonableness,
which legally as well as philosophically, is an essential element of equality or
non-arbitrariness pervades Article 14 like a brooding omnipresence and the
procedure contemplated by Article 21 must answer the best of reasonableness in
order to be in conformity with Article 14. It must be "'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 satisfied. How far natural
justice is air essential element of procedure established by law.

The question immediately arises : does the procedure prescribed by the Passports
Act, 1967 for impounding a passport meet the, test 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 a passport without affording reasonable
opportunity to the holder of the passport to be heard in defence. To impound the
passport of a person, said the petitioner, is a serious matter, since it
prevents him from exercising his constitutional right to go abroad and such a
drastic consequence cannot in fairness be visited without observing the
principle of audi alteram partem. Any procedure which permits impairment of the
constitutional right to go abroad without giving reasonable opportunity to show
cause cannot but be condemned as unfair and unjust and hence, there is in the
present case clear infringement of the requirement 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
a passport, but that is not conclusive of the question. If the statute makes
itself clear on this point, then no more question arises. But even when the
statute is silent, the law may in a given case make an implication and apply the
principle stated by Byles, J., in Cooper v. Wandsworth Board of Works(2). "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

(1) [1974]2S.C.R.348.

(2) [1863]14C.B.N.S.180.

675

the legislature". The principle of audi alteram partem, which mandates that no
one shall be condemned unheard, 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 the procedure for impounding a
passport ?

We may commence the discussion of this question with a few general observations
to emphasise the increasing importance of natural justice in the field of
administrative law. Natural justice is a great humanising principle intended to
invest law with' fairness and to secure justice and over the years it has grown
into a widely pervasive rule affecting large areas of administrative action.
Lord Morris of Borth- y-Gest spoke of this rule in eloquent terms in his address
before the Bentham Club :

       "We can, I think, take pride in what has been done in recent periods and
particularly in the field of administrative law by invoking and by applying
these principles which we broadly classify under the designation of natural
justice. Many testing problems as to their application yet remain to be solved.
But I affirm that the area of administrative

       action is but one area in which the principles are to be deployed. Nor
are they to be invoked only when procedural failures are shown. Does natural
justice qualify to be described as a "majestic" conception ? I believe it does.
Is it just a rhetorical but vague phrase which can be employed, when needed, to
give a 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 authorities. But any
analysis must bring into relief rather their spirit and their inspiration than
any precision of definition or precision as to application. We do not search for
prescriptions which will lay down exactly what must, in various divergent
situations, be done. The principles and procedures are

       (1) [1971]A.C.297.

       676

       to be applied which, in any particular situation or set of circumstances,
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 abundant riches : there we may find what Byles, J., called "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 a person, he must be given an opportunity to be heard. The rule
was stated by Lord Henning, M.R. in these terms in Schmidt v. Secretary of State
for Home Affairs(1) :-where a public officer has power to deprive a person 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 International Law,
Vol. 67, page

479. Magarry, J., describes natural justice "as a distillate of due 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 Wiseman's case, it will be seen that each one of
them asked the question "whether in the particular circumstances of the case,
the Tribunal acted unfairly so that it could be said that their procedure did
not match with what justice demanded", ,or, was the procedure adopted by the
Tribunal 'in all the circumstances unfair'? The test adopted by every law Lord
was whether the procedure followed was "fair in all the circumstances" and 'fair
play in action' required that an opportunity should be given to the tax payer
"to see and reply to the counter-statement of the Commissioners" before reaching
the conclusion that "there is a prima facie case against him." The inquiry must,
therefore, 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 a 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 a just decision and if a 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 the

(1) [1969] 2 Chancery Division 149.

(2) (1968) 112 Solicitor General 690.

677

less in an administrative inquiry than in a quasi--judicial one? Sometimes an
unjust decision in an administrative inquiry may have far more serious
consequences than a decision in a quasi-judicial inquiry and hence the rules of
natural justice must apply equally in an administrative inquiry which entails-
civil consequences. There was, however, a 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 a quasi-judicial proceeding as
distinguished from an administrative proceeding and the distinguishing feature
of a quasi-judicial proceeding is that the authority concerned is required by
the, law under which it is functioning to act judicially. This requirement of a
duty to act judicially in order to invest the function with a quasi,judicial
character was spelt out from the following observation of Atkin, L.J. in Rex v.
Electricity Commissioners(1), "wherever any body of persons having legal
authority to determine questions affecting the rights of subjects, and having
the duty to act judicially, act in excess of their legal authority, they are
subject to the controlling jurisdiction of the King Bench Division. . . .". Lord
Hewart, C.J., in Rex V. Legislative Committee of the Church Assembly, ( 2 ) read
this observation to mean that the duty to act judicially should be an additional
requirement existing independently of the "authority to determine questions
affecting the rights of subjects"-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
a considerable time and stultified the growth of the doctrine of natural
justice. The Court was constrained in every case that came before it, to make a
search for the duty to act judicially sometimes from tenuous material and
sometimes in the services of the statute and this led to oversubtlety and over-
refinement resulting in confusion and uncertainty in the law. But this was
plainly contrary to the earlier authorities and in the epoch-making decision of
the House of Lords in Ridge v. Baldwin(3), which marks a turning point in the
history of the development of the doctrine of natural justice, Lord Reid pointed
out how the gloss of Lord Hewart, C.J., was based on a misunderstanding of the;
observations of Atkin, L.J., and it went counter to the law laid down in the
earlier decisions, of the Court. Lord Reid observed : "If Lord Hewart meant that
it is never enough that a body has a duty to determine what the rights of an
individual should be, but that there must always be something more to impose on
it a duty to act judicially, then that appears to me impossible to reconcile
with the earlier authorities". The learned law Lord held that the duty to act
judicially may arise from the very nature of the function intended 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 "benighted by the narrow
conceptualism of the previous decade". This development in the law had its
parallel in India in the Associated Cement Companies Ltd. v. P. N. Sharma &
Anr(4) where (1) [1924] 1 K.B.171.

(2) [1928] 1 K.B.411.

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

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

5-119 SCT/78

678

this Court approvingly referred to the decision in Ridge v. Baldwin (supra) and,
later in State of Orissa v. Dr. Binapani(1) observed that : "If there is power
to decide and determine to the prejudice of a person, 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 radical change and said: "The dividing line between an
administrative power and a quasi- judicial power is quite thin and is being
gradually oblite- rated, for determining whether a power is an administrative,
power or a quasi-judicial power one has to look to the nature of the power
conferred, the person or persons on whom it is conferred, the framework of the
law conferring that power, the consequences ensuing from the exercise 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 a result of the decision in
Ridge v. Baldwin (supra) in England and the decision in Associated 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 administrative law provoked 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
a quasi-judicial proceeding for the; purpose of applicability of the doctrine of
natural justice. This position was judicially recognised and accepted and the
dichotomy between administrative and quasi-judicial proceedings vis-a-vis
doctrine of natural justice was finally discarded as unsound by the decisions in
In re : H.K. (All Infant) (3) and Schmidt v. Secretary of State for Home Affairs
(supra) in England and, so far as India is concerned, by the memorable decision
rendered by this Court in A.K. Kraipak's case (supra). Lord Parker, C.J. pointed
out in the course of his judgment in In Re : H.K. (An Infant) (supra) :

       "But at the same time,, I myself think that even if an Immigration
officer is not in a judicial or quasi-judicial capacity,

       he must at any rate give the immigrant an opportunity of satisfying him
of the matters in the sub-section, and for that purpose let the immigrant know
what his immediate impression is so that the immigrant can disabuse him. That

       (1) [1967] 2 S C.R. 625.

       (2) [1970] 1 S.C.R. 457.

       (3) [1967] 2 Q. B. 617.

        679

       is not, as I see it, a question of acting or being required to act
judicially, but of being required to act fairly. Good administration and an
honest or bonafide decision must, as it seems to me,. required not merely
impartiality, nor merely bringing one's mind to bear on the problem, but acting
fairly; and to the limited extent that the circumstances of any particular case
allow, and within the legislative framework under which the

       administrator is working, only to that limited extent do the so-called
rules of natural justice apply, which in a case such as this is merely a duty to
act fairly. I appreciate that in saying that it may be said that one is going
further than is permitted on the decided cases because heretofore at any rate
the decisions of the courts do seem to have drawn a strict line in these matters
according to whether there is or' is not a duty to act judicially or quasi-
judicially."

This Court, speaking through Hegde, J., in ,I. K. Kraipak's case quoted with
approval the above passage from the judgment 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 justice. These rules can operate only in
areas not covered by any law validly made. In other words they do not supplant
the law of the land but supplement it-Till very recently it was the opinion of
the courts that unless the authority concerned 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 questioned.
If the purpose of the rules of natural justice is to prevent miscarriage of
justice One fails to see why those rules should be made inapplicable, to
administrative enquiries. Often times it is not easy to draw the line that
demarcates administrative enquiries from quasi-judicial enquiries. Enquiries
which were considered administrative at one time are now being considered as
quasi-.judicial in character. Arriving at a just decision is the aim of both
quasi- judicial enquiries as well as administrative enquiries. An unjust
decision in an administrative enquiry may have more far reaching effect than a
decision in a 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 a given case must depend to a great extent on the facts and
circumstances of that case the framework of the law under which the enquiry is
held and the constitution of the Tribunal or body of persons appointed for that
purpose. Whenever a complaint is made before a court that some principles of
natural justice had been contravened the court has to decide whether the
observance of that rule was necessary for a just decision on the facts of the
case."

        680

       This view was reiterated and re-affirmed in a subsequent decision of this
Court in D.F.O. South Khari v. Ram Sanehi Singh(1). The law must, therefore, now
be taken to be well settled that even in an administrative proceeding, which
involves civil consequences, the doctrine of natural justice must be held to be
applicable.

       Now, here, the power conferred on the Passport Authority is to impound a
passport and the consequence of impounding a passport would be to impair the
constitutional right of the holder of the passport to go abroad during the time
that the passport is impounded. Moreover, a passport can be impounded by the
Passport Authority only on certain specified grounds set out in sub-section (3)
of section 10 and the Passport Authority would have to apply its mind to the
facts and circumstances of a 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 writing
a brief statement of the reasons for making an order impounding a passport and,
save in certain exceptional situations, the Passport Authority is obliged to
furnish a copy of the statement of reasons to the bolder of the passport. Where
the Passport Authority which has im- pounded a passport is other than the
Central Government, a 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 Authority for impounding the passport can be canvassed before the
Appellate Authority. It is clear on a consideration of these circumstances that
the test laid down in the decisions of this Court for distinguishing between a
quasi-judicial power and an administrative power is satisfied and the power
conferred on the Passport Authority to impound a passport is quasi-judicial
power. The rules of natural justice would, in the circumstances, be applicable
in the exercise of the power of impounding a 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 a
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 already pointed out, the
doctrine of natural justice consists principally of two rules, namely, nemo debt
esse judex propria cause : no one shall be a judge in his own cause, and audi
alteram partem : no decision shall be given against a party without affording
him a reasonable hearing. We are concerned here with the second rule and hence
we shall confine ourselves only to a discussion of that rule. The learned
Attorney General, appearing on behalf of the Union of India, fairly conceded
that the audi alteram partem rule is a highly effective tool devised by the
courts to enable a statutory authority to arrive at a just decision and it is
calculated to act as a healthy check on abuse or misuse of power and hence its
reach should not be narrowed and its applicability circum- scribed. He rightly
did not plead for reconsideration of the historic advances made in the law as a
result of the decisions of this Court and did

       (1) [1973] 3S.C.C.864.

       681

       not suggest that the Court should re-trace its steps. That would indeed
have been a most startling argument coming from the Government of India and for
the Court to accede to such an argument would have been so act of utter
retrogression. But fortunately no such

       argument was advanced by the learned Attorney General. What he urged was
a very limited contention, namely that having regard to the nature of the action
involved in the impounding of a passport, the audi alteram partem rule must be
held to, be excluded, because if notice were to be given to the hol- der of the
passport and reasonable opportunity afforded to him to show cause why his
passport should not be impounded, he might immediately, on the strength of the
passport, make good his exit from the country and the object of impounding the
passport would be frustrated. The argument was that if the audi alteram partem
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 a passport. This, argument was sought to be
supported by reference to the statement of the law in A.S. de Smith, Judicial
Review of Administrative Action, 2nd ed., where the learned author says at page
174 that "in administrative, law a prima facie right to prior notice and
opportunity to be heard may be held to be excluded by implication-where an
obligation to give notice and opportunity to be heard would obstruct the taking
of prompt action, especially action of a preventive 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, having regard to the nature of the action to be taken, its object and
purpose 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 168 to 179. If we analyse
these exceptions a 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 word 'exception' is really a misnomer because in these exclusionary
cases the audi alteram partem rule is held inapplicable not by way of an
exception to "fair play in action", but because nothing unfair can be inferred
by not affording an opportunity to present or meet a case. The audi alteram
partem rule is intended to inject justice into the law and it 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 partem rule 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 a
rule of vital importance in the field of administrative law and it must not be
jettisoned save in very exceptional circumstances where compulsive necessity so
demands.

       682

       It is a wholesome rule designed to- secure the rule of law and the court
should not be too ready to eschew it in its application to a given case. True
rue it is that in questions of this kind a fanatical or doctrinaire ap- proach
should be avoided, but that does not mean that merely because the traditional
methodology of a formalised hearing may have the effect of stultifying the
exercise of the statutory power, the audi alteram partem should be wholly
excluded. The court must make every effort to salvage this cardinal rule to the
maximum extent permissible in a given case. It must not be forgotten that
"natural justice is pragmatically flexible and is amenable to capsulation under
the compulsive pressure of circumstances". The audi alteram partem rule is not
cast in a rigid mould and judicial decisions establish that it may suffer
situational modifications. The core of it must, however, remain, namely, that
the per%on affected must have a reasonable opportunity of being heard and the
hearing must be a 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 of natural justice is adopted, one essential is that the
person concerned should have a 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 a sophisticated fullfledged
hearing or it may be a hearing which is very brief and minimal : it may be a
hearing prior to the decision or it may even be a post-decisional remedial
hearing. The audi alteram partem rule is sufficiently flexible to permit
modifications and variations to suit the exigencies of myriad kinds of
situations which max, arise. This circumstantial flexibility of the audi alteram
partem rule was empbasised by Lord Reid in Wiseman v. Sorneman (supra) when he
said that he would be "sorry to see this fundamental general principle
degenerate into a series of hard and fast rules" and Lord Hailsham, L.C., also
observed in Pearl-Berg V. Party(2) that the courts "have taken in increasingly
sophisticated view of what is required in individual cases". It would not,
therefore, be right to conclude that the audi alteram partem rule is excluded
merely because the power to impound a 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 passport 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 hearing, 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 should 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
required to be supplied by the Passport Authority after the making of the order
and the person affected would, therefore, be in a position to make a
representation setting forth his case and plead for setting aside the action
impounding his passport. A fair opportunity of being heard following immediately
upon the order impounding the passport would satisfy the mandate of natural
justice and a 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 Weekly Law Reports,728.

683

       implication in the Passports Act, 1967. If such a provision were held to
be incorporated in the Passports, Act, 1967 by necessary implication, as we hold
it must be, the procedure prescribed by the Act for impounding a passport would
be fight, fair and just and it would not suffer from the vice of arbitrariness
or unreasonableness. We must, therefore, hold that the procedure 'established'
by the Passports Act, 1967 for impounding a passport is in conformity with the
requirement of Article 21 and does not fall foul of that article.

       But the question then immediately arises whether the Central Government
has complied with this procedure in impounding the passport of the Petitioner.
Now, it is obvious and indeed this could not be controverted that the Central
Government not only did not give an opporgive an opportunity of hearing to 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 unjustified 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 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 it was not in conformity with the procedure prescribed by the
Passports Act, 1967. Realising that this was a fatal defect which would void the
order impounding the passport, the learned Attomey-General made a statement on
behalf of the Government of India to the following effect :

       "1. The Government is agreeable to considering any representation 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 is 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 passport and it
can no longer be assailed on the ground that it does not comply with the audi
alteram partem rule or is. not in accord with the procedure prescribed by the
Passports Act, 1967.

Is Section 10(3) (c) violative of Article 14 ? That takes us to the next
question whether section 10(3) (c) is violative of any of the fundamental rights
guaranteed under Part III of the Constitution. Only two articles of the
Constitution are relied upon for this purpose and they are Articles 14 and 19
(1) (a) and (g). We will first dispose of the challenge based on Article 14 as
it lies in a very narrow compass. The argument tinder this head of challenge,
was that

684

section 10(3) (c) confers unguided and unfettered power on the Passport
Authority to impound a passport and hence it is violative of the equality clause
contained in Article 14. It was conceded that under section 10 (3) (c) the power
to impound a passport can be exercised only upon one or more of the, stated
grounds, but the complaint was that the ground of "interests of the general
public". was too vague and indefinite to afford any real guidance to the
Passport Authority and the Passport Authority could, without in any way
violating the terms of the section, impound the passport of one and not of
another, at its discretion. Moreover, it was said that when the order impounding
a passport is made by the Central Government, there is no appeal or revision
provided by the Statute and the decision of the Central Government that it is in
public interest to impound a passport is final and conclusive. The discretion
vested in the Passport Authority, and particularly in the Central Government, is
thus unfettered and unrestricted and this is plainly in violation of Article 14.
Now, the law is well settled that when a statute vests unguided and unrestricted
power in an authority to affect the rights of a person without laying down any
policy or principle which is to 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 a passport. We
are concerned only with the last ground denoted by the words "in the interests
of the general public", for that is the ground which is attacked as vague and
indefinite. We fail to see how this ground can, by any stretch of argument, be
characterised as vague or undefined. The words "in the interests of the general
public" have a clearly well defined meaning and the courts have often been
called upon to decide whether a 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 makers of vague and loose thinking. The
legislature performed a scissor and paste operation in lifting these words out
of Article 19(5) and introducing them in section 10(3) (c) and if these words
are not vague and indefinite in Article 19(5), it is difficult to see bow they
can be condemned to be such when they occur in section 10(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 Article
19(5) and adhere loyally to the verbal formula adopted In the Constitution ? We
are clearly of the view that sufficient guidelines are provided by the, words
"in the interests of the general public" and the power conferred on the Passport
Authority to impound a passport cannot be said to be unguided or unfettered.
Moreover, it must be remembered that the exercise of this power is not made
dependent on the subjective opinion of the Passport Authority as regards the
necessity of exercising it on one or more of the grounds stated in the section,
but the Passport Authority is required to record in writing a brief statement of
reasons for impounding the passport and, save in cer- 685

tain exceptional circumstances, to supply a copy of such statement to the person
affected, so that the person concerned can challenge the decision of the
Passport Authority in appeal and the appellate authority can examine whether the
reasons given by the Passport Authority are correct, and if so, whether they
justify the making of the order impounding the passport. It is true that when
the order impounding a passport is made by the Central Government, there is no
appeal against it, but it must be remembered that in such a case the power is
exercised by the Central Government itself and it can safely be assumed that the
Central Government will exercise the power in a reasonable and responsible
manner. When power is vested in a high authority like the Central Government,
abuse of power cannot be lightly assumed. And in any event, if there is abuse of
power, the arms of the court are long enough to reach it and to strike it down.
The power conferred on the Passport Authority to impound a passport under
section 10(3) (c) cannot, therefore, be regarded as discriminatory and it does
not fall foul of Article 14. But every exercise of such power has to be tested
in order to determine whether it is arbitrary or within the guidelines provided
in Section 10(3) (c).

Conflicting approaches for locating the fundamental right violated Direct and
Inevitable effect 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 a
statute on the touchstone of fundamental rights. What is the test or yardstick
to be applied for determining whether a statute infringes a particular
fundamental right ? The law on this point has undergone radical change since the
days of A. K. Gopalan's case. That was the earliest' 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 detention order results in the detention of the applicant in a
cell and hence it contravenes the fundamental rights guaranteed under clauses
(a), (b), (c), (d), (e) and (g) of Article 19(1). This argument was negatived by
Kania, C. J., who pointed out that : "The true approach is only to consider the
directness of the legislation 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(1). There, the detention of the petitioner was ordered with a
view, to preventing him from making. any speeches 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 expression guaranteed under Article
19(1) (a). The Court took the view that the direct object of the order was
preventive detention and not-the infringement of the right of freedom of speech
and expression, which was merely consequential upon the detention of the detenu
and upheld 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)
[1951]S.C.R.451.

686

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
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 operation upon the individual's freedom" held away for a considerable
time and was applied in Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra
& Anr.(1) to sustain an order made by the High Court in a suit for defamation
prohibiting the publication of the evidence of a witness. This Court, after
referring to the observation of Kania, C.J., in A. K. Gopalan's case and noting
that they were approved by the Fill Court in Ram Singh's case, pointed out that
the object of the impugned order was to give protection to the witness in order
to obtain true evidence in the case with a view to do justice between the
parties and it incidentally it operated to prevent the petitioner from reporting
the proceedings 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, a different note. The first was the decision in
Express News Papers (P) Ltd. & Anr. V. The Union of India & Ors.(2) where N. H.
Bhagwati, 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 Rain Singh's case, but
ultimately formulated the test of direct and inevitable effect for the purpose
of ad- judging whether a statute offends a 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 curtail circulation and
thereby narrow the scope of dissemination of information, fetters on the
petitioners' freedom to choose the means of exercising the right, likelihood of
the independence of the press being undermined by having to seek government aid,
the imposition of penalty on the petitioners' right to choose the instruments
for exercising the freedom or compelling them to seek alternative media etc.",
would be remote 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. A possible
eventuality of this type would not necessarily he the consequence which could be
in the contemplation of the Legislature while enacting a measure of this type
for the benefit of the

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

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

687

workmen concerned." Then again, the learned Judge observed the intention or the
proximate effect and operation of the Act was such as to bring it within the
mischief of Article 19(1) (a), it would certainly 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 restrain a newspaper from
publishing any number of pages for carrying its news and views, which it has a
fundamental right under Article 19 (1) (a) to do, unless it raises the selling
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 effect ,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 ,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, 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 legislation where there is conflict of legislative powers
conferred on Federal 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 legislations; if it "is within the express powers, then it is
not invalidated if incidentally it effects matters which are outside the
authorised field". Here also, ,on the application of this doctrine, the question
that is required to be considered 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 respect of the subject covered by any particular fundamental right,
its validity must be judged only by reference to that fundamental right and it
is immaterial that it incidentally affects another fundamental right.

(1) [1962] 3 S.C.R. 842.

(2) [1954] S.C.R.674.

688

Mathew, J., in his dissenting judgment in Bennett Coleman & Co. & Ors. v. Union
of India & Ors.(1) recognised the likeness of this doctrine to the pith and
substance test and pointed out that "the pith and substance test, although not
strictly appropriate, might serve a useful purpose" in determining whether the
State action infringes a particular fundamental right. But in R. C. Cooper's
case, which was a decision given by the Full Court consisting of eleven judges,
this doctrine was thrown overboard and it was pointed out by Shah, J.,, speaking
on half of the majority : "-it is not the object of the authority making the law
impairing the right of a citizen, nor the form of action that determines the
protection he can claim; it is the effect of the law and of the action upon the
right which attract the jurisdiction of the Court to grant relief. If this be
the true view, and we think it is, in determining the impact of State action
upon constitutional guarantees which are fundamental, it follows that the extent
of protection against impairment of a fundamental right is determined not by the
object of the Legislature nor by the form of the action , but by its direct
operation upon the individual's rights.

       " we are of the view that the theory that the object and form of the
State action determine the extent of protection which the aggrieved party may
claim is not consistent with the constitutional scheme-"

       "In our judgment, the assumption in A. K. Gopalan's case; that certain
articles in the Constitution exclusively deal with specific matters and in
determining whether there is infringement of the individual's guaranteed rights,
the object and the form of the State action alone need be considered, and effect
of the laws on fundamental rights of the indivi- duals in general will be
ignored cannot be accepted as correct."

The decision in R. C. Cooper's case thus overturned the view taken in A. K.
Gopalan's case and, as pointed out by Ray, J., speaking on behalf of the
majority in, Bennett Coleman's case,it laid down two interrelated propositions,
namely, "First, it is not the object of the authority making the law impairing
the right of the citizen nor the form of action that determines the invasion of
the right. Secondly,, it is the effect of the law and the action upon the right
which attracts the jurisdiction of the Court to grant relief. The direct
operation of the Act upon the rights forms the real test."

The decision in Bennett Coleman's case, followed upon R. C. Cooper's case and it
is' an important and significant decision, since it elaborated and applied the
thesis laid down in R. C. Cooper's case. The State action which was impugned in
Bennett Coleman's case was newsprint (1) [1973] 2S.C.R.757.

689

policy which inter alia imposed a maximum limit of ten pages for every newspaper
but without permitting the newspaper to increase the number of pages by reducing
circulation to meet its requirement even within the admissible quota. These
restrictions were, said to be violative of the right 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 a
newspaper to ten. The argument of the Government was that the, object of the
newsprint policy was rationing and equitable distribution of imported newsprint
which was scarce commodity and not abridgement of freedom of speech and
expression. The subject-matter of the import policy was "rationing of imported
commodity and equitable distribution of newsprint" and the newsprint policy did
not directly and immediately deal with the right mentioned in Article 19(1) (a)
and hence there was no violation of that Article. This argument of the
Government was negatived by the majority in the following words :

       "Mr. Palkhivala said that the tests of pith and substance of the subject
matter and of direct and of incidental effect of the legislation are relevant to
questions of legislative competence but they are irrelevant to the question of
infringement of fundamental rights. In our view this is a sound and correct
approach to interpretation of

       legislative measures and State action in relation to fundamental rights.
The true test is whether the effect of the impugned action is to take away or
abridge fundamental rights. If it be assumed that the direct object of the law
or action has to be direct abridgement of the right of free speech by the
impugned law or action it is to be related to the directness of effect and not
to the directness of the, subject matter of the impeached law or action. The
action may have a direct effect on a fundamental right although its direct
subject matter may be different. A law dealing directly with the Defence of
India or defamation may yet have a direct effect on the freedom of speech.
Article 19(2) could not have such law if the restriction is unreasonable even if
it is related to matters mentioned therein. Therefore, the word "direct" would
go to the quality or character of the effect and not to the subject matter. The
object of the law or executive action is irrelevant when it establishes the
petitioner's contention' about fundamental right. In the present case, the
object of the newspaper restrictions has nothing to do with the availability of
newsprint or foreign exchange because these restrictions come into operation
after the grant of quota. Therefore the restrictions are to control the number
of pages or circulation of dailies or newspapers. These restrictions are clearly
outside the ambit of Article 19(2) of the Constitution. It, therefore, confirms
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 consequence or effect
upon the rights of the newspapers and since "the effect 690

and consequence of the impugned policy upon the newspapers" was direct control
and restriction of growth and circulation of newspapers, 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 a given case the pith and substance of
the State action may deal with a particular fundamental right but its direct and
inevitable effect may be on another fundamental right and in that case, the
State action would 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 consider 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 a 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 a openended concept and in the absence of operational criteria for
judging 'directness', it would give the Court an unquantifiable discretion to
decide whether in a given case a 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 necessary to
constitute infringement of a fundamental right is direct and inevitable, then a
fortiori it must be presumed to have been intended by the authority taking the
action and hence this doctrine of direct and inevitable effect has been
described by some jurists as the doctrine of intended and real effect. This is
the test which must be applied for the purpose of determining whether section
10(3) (c) or the impugned order made under it is violative of Art. 19(1) (a) or
(g). Is Section 10(3) (c) violative of Article 19 (1) (a) or (g) ?

We may now examine the challenge based on Article 19(1) (a) in the light of this
background. Article 19(1) (a) enshrines one of the most cherished freedoms in a
democracy, namely, freedom of speech and expression. The petitioner, being a
citizen, has undoubtedly this freedom guaranteed to her, but the question is
whether section 10(3) (c) or the impugned Order unconstitutionally takes away or
abridges this freedom. Now, prima facie, the right, which is sought to-be
restricted by section 10(3) (c) and the impugned Order, is the right to go
abroad and that is not named as a 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 691

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, therefore required to
meet the challenge of Article 19 (1) (a). This argument was sought to be
answered by the Union of India by a 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 expression, 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 outside the,
country and hence State action restricting or preventing exercise of the right
to go abroad could not be said to be violative of freedom of speech and
expression and be liable to be condemned as invalid on that account. The second
limb of the contention went a 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 tight of free speech
and expression guaranteed under Article 19(1) (a') and imposition of restriction
on it did not involve 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 a 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
constitution-makers to confer rights which the authority of the State could not
enforce. The argument was stressed in the form of an interrogation; how could
the fundamental rights be intended to be operative outside the territory of
India when their exercise in foreign territory could not be protected by the
State ? Were the fundamental rights intended to be mere platitudes. in so far as
territory outside India is concerned ? What was the object of conferring the
guarantee of fundamental rights outside the territory of India, if it could not
be carried out by- the State ? This argument, plausible though it may seem at
first blush, is, on closer scrutiny, unsound and must be rejected. When the
constitution-makers enacted Part III dealing with fundamental rights, they
inscribed in the Constitution certain basic rights which inhere in every human
being and which are essential for unfoldment and development of his full
personality. These rights represent the basic values of a civilised society and
the constitution-makers declared that they shall be given a place of pride in
the Constitution and elevated to the status of fundamental rights.

692

The long years of the freedom struggle inspired by the dynamic spiritualism 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 a narrow
limited sense but in their widest sweep, for the aim and objective was to build
a new social order where man will not be a mere plaything in the hands of the
State or a 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 Upnishadnic verse describes as "the children of
immortality" and his mission in life is to realise the ultimate truth. This
obviously he cannot 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 when the constitution-
makers, declared these rights, they intended to confine them only within the
territory of India. Take for example, freedom of speech and expression. Could it
have been intended by the constitution-makers that a citizen should hive 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 oneself 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 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) (a).
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 a highly
cherished fundamental right ? Let us not forget that what we are expounding is a
constitution and what we are called upon to interpret is a provision conferring
a, fundamental right. Shall we expand its reach and ambit or curtail it ? Shall
we ignore the high and noble purpose of Part III conferring fundamental rights ?
Would we not be stultifying the fundamental right of free speech and expression
by restricting it by territorial limitation. Moreover, it may be noted that only
a short while before the Constitution was brought into force and whilst the
constitutional debate was still going on, the Universal Declaration of Human
Rights was adopted by the General Assembly of the United Nations on 10th
December, 1948 and most of the fundamental rights which we find included in Part
III were recognised and adopted by the United Nations as the inalienable rights
of man in the Universal Declaration of Human Rights. Article 19 of the Universal
Declaration declared that "every one, has a right to freedom of opinion and
expression, this right includes freedom to hold opinions without interference
and to seek, receive and import information and ideas through any media and
regardless of frontiers". (emphasis supplied). This was the glorious declaration
of the: fundamental freedom of speech and expression noble in conception and
universal in scope- which was

693

before 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 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 Parliamentary 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 outside India. What Article 19(1) (a) does is to declare freedom of
speech and expression as a 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 a case where a
journalist is prevented by a law or an executive order from sending his despatch
abroad. The law or the ,executive order would operate on the, journalist in
India 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 highly improved and sophisticated means of
communication, a 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. Therefore, merely because State action is
restricted to the territory of India, it does not necessarily follow that the
right of free speech and expression is also limited in its operation to the
territory of India and does not extend outside.

This thesis can also be substantiated by looking at the question from a 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 under Article 19(2). Such restric- tion, imposed by a statute or an
order made under it, if within the limits provided in Article 19(2), would
clearly bind the citizen not only when he is within the country but also when he
travels outside. Take for example a case where, either under the Passports Act,
1967 ,or as a condition in the Passport issued under it, an arbitrary,
unreasonable and wholly unjustifiable restriction is placed upon the citizen
that he may go abroad, but he should not make any speech there. This would
plainly be a restriction which would interfere with his freedom of speech and
expression outside the country, for, if valid, it would bind him wherever he may
go. He would be entitled to say that such a restriction imposed by State action
is impermissible under Article 19(2) and is accordingly void as being violative
of Article 19(1 )(a)

6-119 SCI/78

694

It would thus seem clear that freedom of speech and expression guaranteed under
Article 19(1) (a) is exercisable not only inside the country, but also outside.
There is also another consideration which leads to the same conclusion. The
right to go abroad is, as held in Satwant Singh Sawhney's case, included in
personal liberty' within the meaning of Article 21 and is thus a fundamental
right protected by that Article. When the State issues a passport and grants
endorsement for one country, but refuses for another, the person concerned can
certainly go out of India but he is prevented from going to the country for
which the endorsement is refused and his right to go to that country is taken
away. This cannot be done by the State under Article 21 unless there is a law
authorising the State to do so and the action is taken in accordance with the
procedure prescribed by such law. The right to, go abroad, and in particular to
a specified country, is clearly right to personal liberty exercisable outs de
India and yet it has been held in Satwant Singh Sawhney's case to be a
fundamental right protected by Article 21. This clearly shows that there is no
underlying principle in the Constitution which limits the fundamental rights in
their operation to the territory of India. If a fundamental right under Article
21 can be exercisable outside India, why can freedom of speech and expression
conferred under Article 19(1) (a) be not so exercisable ?

This view which we are taking is completely in accord with the thinking on the
subject in the United States. There the preponderance of opinion is that the,
protection of the Bill of Rights is available to United States citizens even in
foreign countries. Vide Best v. United States(1). There is an interesting
article on "The Constitutional Right to Travel" in 1956 Columbia Law Review
where Leonard B. Boudin writes :

       "The final objection to limitation upon the right to travel in that they
interfere with the, individual's freedom of expression. Travel itself is such a
freedom in the view of one scholarly jurist. But we need not go that far; it is
enoughthat the freedom of speech includes the right of Americans to exercise it
anywhere without the interference of their government. There are no geographical
limitations to the Bill of Rights. A Government that sets up barriers to its
citizens' freedom of expression in any country in the world violates the
Constitution as much as if it enjoined such expression in the United States."

These observations were quoted with approval by Hegde, J., (as he then was)
speaking on behalf of a Division Bench of the Karnataka High Court in Dr. S. S.
Sadashiva Rao v. Union of India(2) and the learned Judge there pointed out that
"these observations apply in equal force to the conditions prevailing in this
country". it is obvious, therefore, that there are no geographical limitations
to freedom of speech and expression guaranteed Under Article 19(1) (a) and this
freedom is exercisable not only in India but also outside and if State

(1) 184 Federal Reporter (2d)131.

(2) 1965 Mysore Law Journal, P.605.

695

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

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

That takes us to the next question arising out of the second limb of the
contention of the Government. Is the right to go abroad an essential part of
freedom of speech and expression so that whenever there is violation of the
former, there is impairment of the latter involving 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 a fundamental right in any of the clauses
of Article 19(1), its existence is necessary in order to make the express
freedoms mentioned 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 without it, freedom
of speech and expression would be limited by geographical constraints. The
impounding of the passport of a person with a 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 the argument, that in a complex and developing society, where fast modes of
transport and communication have 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 policies is indispensable and that is part
of freedom of speech and expression which cannot be effectively implemented
without the right to go abroad. The right to go abroad, it was said, is a
peripheral right emanating from the right to freedom of speech and expression
and is, therefore, covered by Article 19(1) (a). This argument of the petitioner
was sought to be supported by reference to some recent decisions of the Supreme
Court of the United States. We shall examine these decisions a little later, but
let us first consider the question on principle.

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 a basically free sphere for man, resulting 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 a free agent necessarily involves free movement on his part.
There, can be no doubt that if the purpose and the sense of the State is to
protect personality and its development, as indeed it should be of any liberal
democratic State, freedom to go abroad must be given its due place amongst the
basic rights. This right is an important basic

696

human right for it nourishes independent and self- determining creative
character of the individual, not only by extending his freedoms of action, but
also by extending the scope of his experience. It is a right which gives
intellectual and creative workers in particular the opportu- nity of extending
their spiritual and intellectual horizon through study at foreign universities,
through contact with foreign colleagues and through participation in discussions
and conferences. The right also extends to private life : marriage, family and
friendship are humanities which can be rarely affected through refusal of
freedom to go abroad and clearly show that this freedom is a genuine human
right. Moreover, this freedom would be highly valuable right where man finds
himself obliged to flee (a) because he is unable to serve his God as he wished
at the previous place of residence, (b) because his personal freedom is
threatened for reasons which do not constitute a crime in the usual meaning of
the word and many were such cases during the emergency, or (c) because his life
is threatened either for religious or political reasons or through the threat to
the maintenance of minimum standard of living compatible with human dignity.
These, reasons suggest that freedom to go abroad incorporates the important
function of an ultimum refunium libertatis when other basic freedoms are
refused. To, quote the words of Mr. Justice Douglas in Kent v. Dulles(1) freedom
to go abroad has much social value and represents a basic human right of great
significance. It is in fact incorporated as an inalienable human right in
Article 13 of the Universal Declaration of Human Rights. But it is not
specifically named as a fundamental right in Article 19(1). Does it mean that on
that account it cannot be a fundamental right covered by Article 19(1) ? Now, it
may be pointed out at the outset that it is not our view that a right which is
not specifically mentioned by name can never be a fundamental right within the
meaning of Article 19(1). It is possible that a right does not find express
mention in any clause of Article 19(1) and yet it may be covered by some clause
of that Article. Take for example, by way of illustration, freedom of press. It
is a most cherished and valued freedom in a democracy : indeed democracy cannot
survive without a free press. Democracy is based essentially on free debate and
open discussion, for that is the only corrective of Governmental action in a
democratic set up. If democracy means government of the people by the people, it
is obvious that every citizen must be entitled to participate in the democratic
process and in order to enable him to intelligently exercise his right of making
a choice, free and general discussion of public matters is absolutely essential.
Manifestly, free debate and open discussion, in the most comprehensive sense, is
not possible unless there is a free and independent press. Indeed the true
measure of the health and vigour of a democracy is always to be found in its
press. Look at its newspapers-do they reflect diversity of opinions and views,
do they contain expression of dissent and criticism against governmental
policies and actions, or do they obsequiously sing the praises of the government
or lionize or deify the ruler. The newspapers are the index of the true
character of the Government-whether if is democratic or authoritarian. It was

(1) 357 U.S. 11 6 : 2 L. ed. 2d 1204.

697

Mr. Justice Potter Stewart who said : "Without an informed and free press, there
cannot be an enlightened people". Thus freedom of the press constitutes one of
the pillars of democracy and indeed lies at the foundation of democratic
Organisation and yet it is not enumerated in so many terms as a fundamental
right in Article 19(1), though there is a view held by some constitutional
jurists that this freedom is too basic and fundamental not to receive express
mention in Part III of the Constitution. But it has been held by this Court in
several decisions, of which we may mention only three, namely, Express
Newspapers' case, Sakal Newspapers case and Bennett Coleman & Co's case, that
freedom of the press is part of the right of free speech and expression and is
covered by Article 19 (1) (a). The, reason is that freedom of the press is
nothing but an aspect of freedom of speech and expression. It partakes of the
same basic nature and character and is indeed an integral part of free speech
and expression and perhaps it would not be incorrect to say that it is the same
right applicable in relation to the press. So also, freedom of circulation is
necessarily involved in freedom 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 a right is not
specifically named in Article 19(1), it may still be a fundamental right covered
by some clause of that Article, if it is an integral part of a named fundamental
right or partakes of the same basic nature and character as that fundamental
right. It is not enough that a right claimed by the petitioner flows or emanates
from a named fwidamental 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 a 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. The contrary construction would lead to incongruous
results 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 by the
petitioner is an integral part of a named fundamental right or partakes 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 a part of our heritage. Travel abroad. like
travel within the country, ay be necessary for livelihood. It may be as close to
the heart of the individual as the choice of what he eats,

(1) [1950] S.C.R. 594.

698

or wears, or reads. Freedom of movement is basic in our Scheme of values." And
what the learned Judge, said in regard to freedom of movement in his country
holds good in our country as well. Freedom of movement has been a part of our
ancient tradition which always upheld the dignity of man and saw in him the
embodiment of the Divine. The Vedic seers knew no limitations either in the
locomotion of the human body or in the flight of the soul to higher planes of
consciousness. Even in the post-Upnishadic period, followed by the Buddhistic
era and the early centuries after Christ, the people of this country went to
foreign lands in pursuit of trade and business or in search of knowledge or with
a view to shedding on others the light of knowledge imparted to them by their
ancient sages and seers. India expanded outside her borders: her ships crossed
the ocean and the fine superfluity of her wealth brimmed over to the East as
well as to the West. He cultural messengers and envoys spread her arts and epics
in South East Asia and her religious conquered China and Japan and other Far
Eastern countries and spread westward as far as Palestine 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 in the African countries. Freedom of
movement at home and abroad is a part of our heritage and, as already pointed
out, it is a 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 speech and expression. When
a person goes abroad, he may do so for a 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 a 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 a given
case for exercise of freedom of speech and expression, but that does not make it
an integral 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 a 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 permissible
restrictions would be frustrated.

The petitioner, however, placed very strong reliance on certain decisions of the
United States Supreme Court. The first was the decision in Kent v. Dulles
(supra). The Supreme Court laid down in this 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 Secretary of State to refuse passport on the ground of
association with the communist party and refusal to file an affidavit relating
to that affiliation and such legislation was necessary before the Secretary of
699

State could refuse passport on those grounds. This decision was not concerned
with the validity of any legislation regulating issue of passports nor did it
recognise the right to travel as founded on the first Amendment which protects
freedom of speech, petition and assembly. We fail to see how this decision can
be of any, help to the petitioner. The second decision on which reliance was
placed on behalf of the petitioner was Apthekar v. Secretary of State(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 prohibited the use of passports by communists following a
final registration order by the Subversive Activities Control Board under
section 7 and following the mandate of this section, the State Department
revoked the existing passports of the appellants. After exhausting all
administrative remedies, the appellants sued for declarative and injunctive
relief before the District Court which upheld the validity of the section. On
direct appeal, the Supreme Court reversed the judgment by a majority of six
against three, and 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 socalled 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 freedoms". 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 a
communist totaliatarian dictatorship and it made no attempt to relate the
restriction on travel to the individual's purpose of the trip or to the scurity-
sensitivity of the area to be visited. This decision again has no relevance to
the present argument except for one observation made by the Court that "freedom
of travel is a 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 a right arising not out of the first Amendment but
inferentially out of the liberty guaranteed in the Fifth Amendment and this
observation was meant only to support the "tension of the strict First Amendment
test to a case involving the right to go abroad. The last decision cited by the
petitioner Was Zemel . v. Rusk 2) This case raised the question whether the
Secretary of State was statutorily authorised to refuse to validate the
passports of United States citizens for travel to Cuba and if so, whether the
exercise of such authority was constitutionally permissible. The Court, by a
majority of six against three, held that the ban on travel to Cuba was
authorised by the broad language of the Passport Act, 1926 and that such a
restriction was constitutional. Chief Justice Warren speaking on behalf of

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

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

700

the majority observed that having regard to administrative practice both before
and after 1926, area restrictions were statutorily authorised and that
necessitated consideration of Zemel's constitutional objections. The majority
took the view that freedom of movement was a right protected by the 'liberty'
clause of the Fifth Amendment and that the Secretary of State was justified in
attempting to avoid serious international incidents by restricting travel to
Cuba and summarily rejected Zemel's contention that the passport denial
infringed his First Amendment rights by preventing him from gathering first band
knowledge about Cuban situation. Kent v. Dulles and Aptheker v. Secretary of
State were distinguished on the, ground that "the refusal to, validate
appellant's passport does not result from any expression or association on his
part : appellant is not being forced to choose between membership of an
Organisation and freedom to travel". Justices, Douglas, Goldberg and Black
dissented in separate opinions. Since reliance was placed only on the opinion of
Justice Douglas, we may confine our attention to that opinion. Justice Douglas
followed the approach employed in Kent v. Dulles and, refused to interpret the,
Pass.port Act, 1926 as permitting the Secretary of State to restrict travel to
Cuba. While doing so, the learned Judge stressed the relationship of the right
to travel to First Amendment rights. He pointed out : "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 freedom of the press. Without these
contacts First Amendment rights suffer", and added that freedom to travel abroad
is a 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 a 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 appellant 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 a
First Amendment right which was involved. It appeared clearly to be the view of
the, majority that if the denial of passport directly affects a 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 a First Amendment right. Justice Douglas also did not
regard the right to travel abroad as a First Amendment 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 towards the end that restrictions on the
right to travel should be so particularised that a First Amendment right is not
precluded or in other words there is no direct infringement of a First Amendment
right. If there is, the restrictions would be constitutionally invalid, but not
otherwise. It is clear that Justice Douglas never

701

meant to lay down that a 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 a First Amendment right. Both according 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 a First Amendment
right. And that is the same test which is applied by this Court in determining
infringement of a fundamental right. We cannot, therefore, accept the theory
that a peripheral or concomitant right which facilitates the exercise of a named
fundamental right or gives it meaning and substance or makes its exercise
effective, is itself a guaranteed right included within the named fundamental
right. This much is clear as a matter of plain construction, but apart from
that, there is a decision of this Court which clearly and in so many terms
supports this conclusion. That is the decision in All India Bank Employees'
Association v. National Industrial Tribunal(1). The legislation which was
challenged in that case was section 34A of the Banking Companies Act and it was
assailed as violative of Article 19(1)(c). The effect of section 34A was that no
tribunal could compel the production and inspection of any books of account or
other documents or require a bank to furnish or disclose any statement or
information if the Banking Company claimed such document or statement or
information to be of a confidential nature relating to secret reserves or to
provi- sion for bad and doubtful debts. If a dispute was pending and a question
was raised whether any amount from the reserves or other provisions should be
taken into account by a 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
protected under Article 19 (1) (c) carried with it a guarantee that the
association shall effectively achieve the purpose for which it was formed
without interference by law except on grounds relevant to the preservation 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 a unanimous Bench of this Court. The Court said
that unions were not restricted to workmen, that employers' unions may be formed
in order to earn profit and that a guarantee for the effective functioning of
the unions would lead to the conclusion that restrictions on their right to earn
profit could be put only in the interests of public order or morality. Such a
construction would run basically counter to the scheme of Article 19 and to the
provisions of Article 19(1) (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, profession or calling were reasonable
res-

(1) [1962] 3 S.C.R. 269.

702

trictions in the public interest and if the guarantee for the effective
functioning of an association was a part of the right, then restrictions could
not be imposed in the public interest on the business of an association. Again,
an association of workmen may claim the right of 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 that right in the public interest as is done
by the Industrial Disputes Act, which restrictions would be permissible under
Article 19(6), but not under Article 19(4). The Court, therefore, held that the
right to form unions guaranteed by Article 19 (1) (c) does not carry with it a
concomitant right that the unions so formed should be able to achieve the
purpose for which they are brought into existence, so that any interference with
such achievement by law would be unconstitutional unless the same could be
justified under Article 19(4). The right to go abroad cannot, therefore, be
regarded as included in freedom of speech and expression guaranteed under
Article 19(1)(a) on the theory of peripheral or concomitant right. This theory
has been firmly rejected in the All India Bank Employees Association's case and
we cannot countenance any attempt to revive it, as that would completely upset
the scheme of Article 19(1) and to quote the words of Rajagopala Ayyanger, J.,
speaking on behalf of the Court in All India Bank Employees Association's case
"by a series of ever expending concentric. circles in the shape of rights
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 a
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 right. 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
10(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 constitutional validity
of the impugned order impounding the passport of the petitioner, we shall have
occasion to point out that even where a statutory provision empowering an
authority to take action is constitutionally valid, action taken under it may
offend a 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 a fundamental right. The direct and inevitable. effect
of an order impounding a passport may, in a given case, be to abridge or take
away freedom of speech and expression or the right to carry on a profession and
where such is the case, the order would be invalid, unless saved by Article
19(2) or Article 19(6). Take for

703

example, a pilot with international flying licence. International 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 a 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
expression and the challenge to the validity of the order under, Article 19 (1)
(a) would be unanswerable unless it is saved by article 19(2). We have taken
these two examples only by way of illustration. There may be many such cases
where the restriction imposed is apparently only on the right to go abroad but
the direct and inevitable consequence is to interfere with the freedom of speech
and expression or the right to carry on a profession. A musician may want to go
abroad to sing, a dancer to dance, a visiting professor to teach and a scholar
to participate in a conference or seminar. If in such a case his passport is
denied or impounded, it would directly interfere with his freedom of speech and
expression. If a correspondent of a newspaper is given a foreign assignment and
he is refused passport or his passport is impounded, it would be direct
interference with his freedom to carry on his profession. Examples can be
multiplied, but the point of the matter is that though the right to go abroad is
not a fundamental right, the denial of the right to go abroad may, in truth and
in effect, restrict freedom of speech and expression or freedom to carry on a
profession so as to contravene Article 19 (1) (a) or 19 (1) (g). In such a 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 integrity 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 a
species within the broad genus of "interests of the general public". The
expression "interests of the, general public" is a 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 relations of India with foreign States. Therefore, when an order is
made under section 10(3) (c), which is in conformity with the terms of that
provision, it would be in the interests of the general public and even if it
restricts freedom to carry on a profession, it would be protected by Article
19(6). But if an order made under section 10(3) (c) restricts freedom of speech
and expression, it would not be enough that it is made in the interests of the
general public. It must fall 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
would satisfy the requirement of Article 19(2). But if it is made for any other
interests of the, general public save the interests of "public order, decency or
morality",

704

it would not enjoy the protection of Article 19(2). There can be no doubt that
the interests of public order, decency or morality are "interests of the general
public" and they would be covered by section 10(3) (c), but the expression
"interests of the general public" is, as already pointed out, a much wider
expression and, therefore, in order that an order made under section 10(3) (c)
restricting freedom of speech and expression, may not fall 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
limited to interests of public order, decency or morality. If an order made
under section 10(3) (c) restricts freedom of speech and expression, it must be
made not in the interests of the general public in a wider sense, but in the
interests of public order, decency or morality, apart from the other three
categories, namely, interests of the sovereignty and integrity of India, the
security of India and friendly relations of India with any foreign country. If
the order cannot be shown to have been made in the interests of public order,
decency or morality, it would not only contravene Article 19 (1) (a), but would
also be outside the authority conferred by section 10(3) (c).

Constitutional validity of the impugned Order: We may now consider, in the light
of this discussion, whether the impugned Order made by the Central Government
impounding the passport of the petitioner under section 10(3) (c) suffers from
any constitutional or legal infirmity. The first ground of attack against the
validity of the impugned Order was that it was made in contravention of the rule
of natural justice embodied in the maxim audi alteram partem and 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 of India has cured the impugned Order of the vice of non- compliance
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 expression guaranteed to the petitioner under
Article 19 (1) (a) as also on the right to carry on the profession of a
journalist conferred under Article; 19(1) (g), in as much as if seeks to impound
the passport of the petitioner idefinitely, without any limit of time, on the
mere likelihood of her being 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 proceeding before the Commission of
Inquiry. That would be a matter within the judgment of the 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
impounding the passport of the petitioner on the basis of a mere opinion by the
central Government that the petitioner is likely to be required in connection
with the proceeding before the Commission of Inquiry was, in the circumstances,
clearly unreasonable and hence violative of Article

    705

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 straiglitaway concede it, that merely because a
statutory provision empowering an authority take action in specified
circumstances is constitutionally valid as not being in conflict with any
fundamental rights, it does not give a carte blanche to the authority to make
any order it likes so long as it is within the parameters laid down by the
statutory provision. Every order made under a 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 a basic constitutional assumption underlying every statutory grant
of power that the authority on which the power is conferred should act
constitutionally and not in violation of any fundamental rights. This would seem
to be elementary and no authority is necessary in support of it, but if any were
needed, it may be found in the decision of this Court in Narendra Kumar & Ors.
v. The Union of India & Ors.(1). The question which arose in that case was
whether clauses (3) and (4) of the Non-ferrous Metal Control Order, 1958 made
under section 3 of the Essential Commodities Act, 1955 were constitutionally
valid. The argument urged on behalf of the petitioners was that these clauses
imposed unreasonable restrictions of the fundamental rights guaranteed under
Articles 19(1) (f) and (g) and in answer to this argument, apart from merits, a
contention of a prelimi- nary nature was advanced on behalf of the Government
that "as the petitioners have not challenged the validity of the Essential
Commodities Act and have admitted the power of the Central Government to 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 law made by the Government in making
the non-ferrous metal control order-violates 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
Constitution is wholly beside the point". This argument was characterised by Das
Gupta, J., speaking on behalf of the Court as "an extravagant argument" and it
was said that "such an extravagant argument has merely to be mentioned to
deserve rejection". The learned Judge proceeded 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 Constitution, that fact alone would
be sufficient and unassailable 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.

        706

       tion, it is on the assumption that the powers granted thereby do not
violate, the

       Constitution and do not empower the Central Government to do anything
which the

       Constitution prohibits. It is fair and proper to presume that in passing
'this Act the Parliament could not possibly have intended the words used by it,
viz., "may by order provide for regulating or prohibiting the production, supply
and distribution thereof, and trade and commerce in", to include a power to make
such provisions even though they may be in contravention of the Constitution.
The fact that the Words "in accordance with the provisions of the articles of
the Constitution" are not used in the section is of no consequence. Such words
have to be read by necessary implication in every provision and every law made
by the Parliament on any day after the Constitution came into force. It is clear
therefore that when section 3 confers power to provide for regulation or
prohibition of the production, supply and distribution of any essential
commodity it gives such power to make any regulation or prohibition in so far as
such regulation and prohibition do not violate any fundamental rights granted by
the Constitution of India." It would thus be clear that though the impugned
Order may be within the terms of section 10(3) (c), it must nevertheless not
contravene any fundamental rights and if it does, it would be void. Now, even if
an order impounding a passport is made in the interests of public order, decency
or morality, the restriction imposed by it may be so wide, excessive or
disproportionate to the mischief or evil sought to be averted that it may be
considered unreasonable and in that event, if the direct and inevitable
consequence,, of the Order is to abridge or take away freedom of speech and
expression, it would be violative of Article 19(1) (a) and would not be
protected by Article 19(2) and the same would be the position where the, order
is in the interests of the' general public but it impinges directly and
inevitably on the freedom to carry on a profession in which case it would
contravene Article 19 (1) (g) without being saved by the provision enacted in
Article 19(6).

But we do not think that the impugned Order in the present case violates either
Article 19(1) (a) or Article 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 the date when the impugned order was made there is nothing to show that
the petitioner was intending to go abroad for the purpose of exercising her
freedom of speech and expression or her right to carry on her profession as a
journalist. The direct and inevitable consequence of the impugned order was to
impede the exercise of her right to go abroad and not to interfere with her
freedom of speech and expression or her right to carry on her profession. But
we, must hasten to point out that if at any time in the future the petitioner
wants to go abroad for the purpose of exercising her freedom of speech and
expression or for carrying on her profession as a journalist and she applies to
the Central Government to release the passport, the question would definitely
arise whether the refusal to release or in other words, continuance of the
impounding of 707

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

We may observe that if the impugned Order impounding the passport of the
petitioner were violative, of her right to freedom of speech and expression or
her right to carry on her profession as a 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 specified 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 Shall at the time when the impugned Order was made, it is now clear that
it has not been possible for it to complete its labours by 31st December, 1977
which was the time limit originally fixed and in fact its term has been extended
upto 31st May, 1978. The period for which the passport is impounded cannot, in
the circumstances, be said to be definite and certain and it may extend to an
indefinite point of time. This would clearly make the impugned order
unreasonable and the learned Attorney General appearing on behalf of the Central
Government, therefore, made a 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 impounding will not exceed a 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 a very reasonable stand to adopt, because in a democratic society governed
by the rule of law, it is expected of the Government that it should act not only
constitutional and legally 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 a specified
period of time which is not unreasonably long, even though no contravention of
any fundamental right may be involved.

708

The last argument that the impugned Order could not, consistently with Article
19(1) (a) and (g), be based on a 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 lnquiry 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 Government which has constituted the Commission of
Inquiry and laid down its terms of reference would certainly be able, to say
with reasonable anticipation whether she is likely to be required by the
Commission of Inquiry. Whether she, is actually required would be for the
Commission of Inquiry to decide, but whether she is likely to be required can
certainly be judged by the Central Government. When the, Central Government
appoints a Commission of Inquiry, it does not act in a vacuum. It is bound to
have some material before it on the basis of which it comes of a decision that
there is a definite matter of public importance which needs to be inquired into
and appoints a Commission of Inquiry for that purpose. The Central Government
would, therefore, be in a 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 proceeds further with
the probe, it may find that the presence of the ,petitioner is not required, but
before that it would only be in the stage of likelihood and that can
legitimately be left to the judgment of the central Government. The validity of
the impugned Order cannot, ,therefor.-, be assailed on this ground, had the
challenge based on Article 19 (1) (a) and (g) must fail. Whether the impugned
Order is inter vires sec. 10(3) (c) ? The last question which remains to be
considered is whether the impugned Order is within the authority conferred by
section 10(3) (c). The impugned Order is plainly, on the face of it, purported
to be made in public interest, i.e., in the interests of the general public, and
therefore, its validity must be judged on that footing. Now it is obvious that
on a plain natural construction of section 10(3)(c), it is left to the Passport
Authority to determine whether it is necessary to impound a passport in the
interests of the general public. But an order made by the Passport Authority
impounding a passport is subject to judicial review on the ground that 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 making of the order in the interests of the general public. It was
not disputed on behalf of the Union, and indeed it could not be in view of
section 10, 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 a passport and though in the present case, the
Central Government initially declined to give reasons claiming that it was not
in the interests of the general 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 709

in matters coming within the purview of the Commissions of Inquiry constituted
by the Government of India to inquire into excesses committed 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 should have an opportunity to present her views before them and according
to, a 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 contended that the expression "interests of
the general public" must be construed in the context of the perspective of the
statute and since the power to issue a passport is a power related to foreign
affairs, the "interests of the general public," must be understood as referable
only to a matter having some nexus with foreign affairs and it would not be
given a wider meaning. So read, the expression "interests of the general public"
could not cover a situation where the presence of a person required to give
evidence before a Commission of Inquiry. This argument is plainly erroneous as
it seeks to cut down the width and amplitude of the expression " interests of
the general public", an expression which has a well recognised legal connotation
and which is to be found in Article 19(5) as well as article 19(6). It is true,
as pointed out by this Court in Rohtas Industries Ltd. v. S. D. Agarwal &
Anr.(1), that "there is always a perspective within which a statute is intended
to operate", but that does not justify reading of a statutory provision in a
manner not warranted by its language or narrowing down its scope and meaning by
introducing a limitation which has no basis either in the language or in the
context of the statutory provision. Moreover, it is evident from clauses (d),
(e) and (h) of section 10(3) that there are. several grounds in this section
which do not relate to foreign affairs. Hence we do not think the petitioner is
justified in seeking to limit the expression "interests of the general public"
to matters relating to foreign affairs.

 The petitioner then contended that the requirement that she should be available
for giving evidence before the Commissions of Inquiry did not warrant the making
of the impugned Order "in the interests of the general public". Section
10(3),according to the petitioner, contained clauses (e) and (h) dealing
specifically with cases where a person is required in connection with a legal
proceeding and the enactment of these two specific provisions clearly indicated
the legislative intent that the general power in section 10(3) (c) under the
ground "interests of the general public" was not meant to be exercised for
impounding a passport in cases where a person is required in connection with a
legal proceeding. The Central Government was, therefore, not entitled to resort
to this general power under section 10(3) (c) for the purpose of impounding the
passport of the petitioner on the ground that she was

(1) 1969] 3 S.C.R. 108 at 128.

7-119 SCI /78

710

required to give evidence before the Commissions of Inquiry. The, power to
impound the passport of the petitioner in such a case was either to be found in
section 10(3) (h) or it did not exist at all. 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 a person is required in connection
with a proceeding, whether before a court or a Commission of Inquiry, and no
resort can be had to the general power under section 10(3) (c) in cases where a
person is required in connection with a proceeding before a Commission of
Inquiry. But it must be noted that this is not a case where the maxim expressio
unius exclusio ulterius has any application at all. Section 10(3) (e) deals with
a case where proceedings are pending before a criminal court while section 10(3)
(b) contemplates a situation where a warrant or summons for the appearance or a
warrant for the arrest, of the holder of a passport has been issued by a court
or an order prohibiting the departure from India of the holder of the passport
has been made by any such court. Neither of these two provisions deals with a
case where a proceeding is pending before a Commission of Inquiry and the
Commission has not yet issued a summons or warrant for the attendance of the
holder of the passport. We may assume for the purpose of argument that a
Commission- of Inquiry is a 'court' for the purpose of section 10(3) (h), but
even so, a case of this kind would not be covered by section 10(3) (h) and
section 10(3) (e) would in any case not have application. Such a case would
clearly fall within the general power under section 10(3) (c) if it can be shown
that the requirement of the holder of the passport in connection with the
proceeding before the Commission of Inquiry is in the interests of the general
public. It is, of course, open to the Central Government to apply to the
Commission of Inquiry for issuing a summons or warrant, as the case may be, for
the attendance of the holder of the passport before the Commission and if a
summons or warrant is so issued, it is possible that the Central Government may
be entitled to impound the passport under section 10(3) (h). But that does not
mean that before the stage of issuing a summons or warrant has arrived, the
Central Government can- not impound the passport of a person, if otherwise it
can be shown to be in the, interests of the general public to do so. Section
10(3) (e) and (h) deal only with two specific kinds of situations, but there may
be a myriad other situations, not possible to anticipate or categorise, where
public interests may require that the passport should be impounded and such
situation would be taken care of under the general provision enacted in section
10(3) (c). It is true that this is a rather drastic power to interfere with a
basic human right, but it must be remembered that this power has been conferred
by the legislature in public interest and we have no doubt that it will be
sparingly used and that too, with great care and circumspection and as far as
possible, the passport of a person will not be impounded merely on the ground of
his being required in connection with a proceeding, unless the case is brought
within section 10(3) (e) or section 10(3) (b). We may echo the sentiment in Lord
Denning's closing remarks in Ghani v. Jones(1) (1) [1970] Q.B.693.

711

'where the learned Master of the Rolls said : "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 severest grounds". This liberty is prized equally high
in our country and we are sure that a Government committed to basic human values
will respect it.

We must also deal with one other contention of the petitioner, though we must
confess that it was a little difficult for us to appreciate it. The petitioner
urged that in order that a passport may be impounded under section 10(3) (c),
public interest must actually exist ill presenti and mere likelihood of public
interest arising in future, would be no ground for impoundig a passport. We
entirely agree with the petitioner that an order impounding a passport can be
made by the Passport 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
Government, the presence of the petitioner was necessary for giving evidence
before the Com- missions of Inquiry and according to the report received by the
Central 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 contended 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 confidential information received from the
intelligence sources that there was likelihood of the petitioner attempting to
leave the country and then only he made the impugned Order. In fact, the
Ministry of Home Affairs had forwarded to the Ministry of External Affairs as
far back as 9th May, 1977 a list of persons whose presence, in view of their
involvement or connection or position or past antecedents, was likely to be
required in connection with inquiries to be carried out by the Commissions of
Inquiry and the name of the petitioner was included in this list. The Home
Ministry had also intimated to the Ministry of External Affairs that since the
inquiries were being held by the Commissions of Inquiry in public interest,
consideration of public interest would justify recourse to section 10(3) (c) for
impounding the passports of the persons mentioned in this list. This note of the
Ministry of Home Affairs was considered by the Minister for External Affairs and
despite the suggestion made in this note, the passports of only eleven persons,
out of those mentioned in the list, were ordered to be impounded and no action
was taken in regard to the passport of the petitioner. It is only on 1st July,
1977 when the Minister for External Affairs received confidential information
that the petitioner was likely to attempt to leave the country that, after
applying his mind to the relevant material and taking into account confidential
information,

712

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 the
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 a matter which the court
can be called upon to investigate. It is not for the court to decide whether the
presence of the petitioner is likely to be required for giving evidence before
he Commissions of Inquiry. The Government, which has instituted the Commissions
of Inquiry, would be best in a position to know, having regard 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 is only whether her presence is likely to be
required and So Far that is concerned, we do not think that the view taken by
the Government can be regarded 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. We, however, wish to utter a word of caution to the
Passport Authority while exercising the power of refusing or impounding or
cancelling a passport. The Passport Authority would do well to remember that it
is a basic human right recognised in Article 13 of the Universal Declaration of
Human Rights with which the Passport Authority, is interfering when it refuses
or `impounds or cancels a passport. It is a highly valuable right which is a
part of personal liberty, an aspect of the spiritual dimension of man, and it
should not be lightly interfered with. Cases are not unknown where people have
not been allowed to go abroad because of the views held, opinions expressed or
political beliefs or economic ideologies entertained by them. It is hoped that
such cases will not recur under a Government constitutionally committed to
uphold freedom and liberty but it is well to remember, at all times, that
eternal vigilance is the price of liberty, for history shows that it is always
subtle and insidious encroachments made ostensibly for a good cause that
imperceptibly but surety corrode the foundations of liberty. In view of the
statement made by the learned Attorney- General to which reference has already
been made in the judgment we do not think it necessary to formally interfere
with the impugned order. We, accordingly, dispose of the Writ Petition without
passing any formal order. There will be no order as to costs.

KRISHNA IYER, J.-My concurrence with the argumentation and conclusion contained
in the judgment of 'my learned brother Bhagwati J. is sufficient to regard this
supplementary, in one sense, a mere redundancy. But in another sense not, where
the vires of a law, which arms the Central Executive with wide powers of
potentially imperilling some 713

of the life-giving liberties of the people in a pluralist system like 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 fruits of 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, regardless of physical or
mental frontiers. And when this precious heritage of free trade in ideas and
goods, association and expression, migration and home-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. for 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 Constitution are not bestirred into court action
when a charge of unjustified handcuffs 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 a
broad brush, project the high points with bold lines and touch up the portrait
drawn so well by brother Bhagwati J, if I may colourfully, yet respectfully,
endorse his judgment.

Remember, even democracies have experienced executive lawlessness and eclipse of
liberty on the one hind 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 deference 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 a legislation regulating travel 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 a statute is 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 ?. We are
directly concerned, as fully brought out in Shri Justice Bhagwati's judgment,
with the indefinite immobilisation of the petitioner's passport, the reason for
the action being strangely veiled from the victim and the right to voice an
answer being suspiciously withheld from her, the surprising secrecy being
labelled, 'public interest'. Paper curtains wear ill 'on good governments. And,
cutely to side one's grounds under colour of 'statute, is too sphinx-like an art
for an open society and popular regime. As we saw the reasons which the learned
Attorney General so unhesitatingly disclosed, the question arises : 'wherefore
are these things hid?'. The catch-all expression 'public interest' is 'sometimes
the easy temptation to cover up from the public which they have a right to know,
which appeals in the short run but avenges in the long run Since the only
passport to this Court's jurisdiction in this branch of passport law is the
breach of a basic freedom, what is the nexus between a passport and a Part Ill
right ? What are

714

the ambience and amplitude, the desired effect and direct object of them key
provisions of the Passports Act, 1967 ? Do they crib or cut down
unconstitutionally, any of the 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 impounding order bad ? Such, in the
Writ Petition, is the range of issues 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 contentious 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 a legal debate
on life and liberty must ordinarily be occupied by Art. 21 of our Paramount
Parchment which, with emphatic brevity and accent on legality, states the
mandate thus:

       "21. Protection of life and personal liberty.-

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

Micro-phrases used in National Chatters spread into macro- 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 limitations
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
revolutionary 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 wider world. This
legacy, epitomised as 'the glory that was Ind', was partly the product of
travels into India and out of India. It was the two-way traffic of which there
is testimony inside in Nalanda, and outside, even in Ulan Bator. Our literature
and arts bear immortal testimony to our thirst for travel and even our law, over
two thousand years ago, had canalised travels abroad. For instance, in the days
of Kautilya (BC 321-296) there was a Superintendent of Passports 'to issue
passes at the rate of a masha a pass'. Further details on passport law are found
in Katutilya's Arthasastra. 715

Indeed, viewing the subject from the angle of geo-cultural end legal
anthropology and current history, freedom of movement and its off-shoot-the
institution of passport-have been there through the Hellenic, Roman, Israelite,
Chinies, Persian and other civilisations. Socrates, in his dialogue with Crito,
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 a 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 man 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........... a 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 Ghani v. Jones(2) Lord 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-bead '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
persons. 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 expressed a like view.
Prof. H.W.R. Wade and Prof. Hood Philips echo this liberal view. (See Int. &
_Comp. L.O. 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 rights meaningful

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

       (2) [1970] 1 Q. B. 693 709.

       (3) 378 U. S. 500.

        716

       -knowing, studying, arguing, exploring, conversing, observing and even
thinking. Once the right to travel is curtailed, all other rights suffer, just
as when curfew or home detention is placed on a person.

       America is of course sovereign, but her sovereignty is woven in an
international web that makes her one of the family of nations. The ties with all
the continents are close- commercially as well as culturally. Our concerns are
planetary beyond sunrises and sunsets. Citizenship implicates us in those
problems and paraplexities, as well as in domestic ones. We cannot exercise and
enjoy citizenship in World perspective without the right to travel abroad."

And, in India, Satwant(1) set the same high tone through Shri Justice Subba Rao
although A. K. Gopalan(2 ) and a stream of judicial thought since then, had felt
impelled to underscore personal liberty as embracing right to travel abroad.
Tambe CJ in A. G. Kazi(3) speaking for a Division Bench, made a comprehensive
survey of the law and vivified the concept thus:

       "In our opinion, the language used in the Article (Art. 21) also
indicates that the expression 'Personal liberty' is not confined only to freedom
from physical restraint, ie. but includes a full range of conduct which a n

       individual is free to pursue within law, for instance, eat and drink what
he likes, mix with people whom he likes, read what he likes, sleep when and as
long as he likes, travel wherever he likes, go wherever he likes, follow
profession, vocation or business he likes, of course, in the manner and to the
extent permitted by law."

         (P. 240)

The legal vicissitudes of the passport story in the United States bear out the
fluctuating fortunes of fine men being denied this great right to go abroad-
Linus Pauling, the Nobel Prize-winner, Charles Chaplin, the screen super genius,
Paul Robesen, the world singer, Arthur Miller, the great author and even
Williams L. Clark, former Chief Justice of the United States Courts in occupied
Germany, among other greats. Judge Clark commented on this passport affair and
the ambassador's role :

       "It is preposterous to say that Dr. Conant can exercise some sort of
censorship on persons whom he wishes or does not wish to come to the country to
which he is accredited. This has never been held to be the function of an
Ambassador."

       (P. 275, 20 Clav. St. L.R. 2 May 1971)

Men suspected of communist leanings had poor chance of passport at one time; and
politicians in power in that country have gone to the extreme extent of
stigmatising one of the greatest Chief Justices of their

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

(2) [1950] S.C.R. 88.

(3) A.I.R. 1967 Bom. 235.

717

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 a 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 passport and visa
system as potent paper curtain to inhibit illustrious 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
thought ways of judges.

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

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

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

This right is yet inchoate and only lays the base. But, hopefully, the loftiest
towers rise from the ground. And despite destructive was and exploitative trade,
racial hatreds and credal quarrels, colonial subjections and authoritarian
spells, the world has advanced because of gregarious men adventuring forth,
taking with them their thoughts and feelings on a trans-national scale. This
human planet is our single home, though geographically variegated, culturally
diverse, politically pluralist, in science and technology competitive and
cooperative, in arts and life- styles a lovely mosaic and, above all, suffused
with a 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 confrontations and
meeting and mating of social systems; and the wellspring is the wanderlust of
man and his wondrous spirit moving towards a united human order founded on human
rights. Human advance has been promoted through periods of pre-history and
history by the flow of fellowmen, and the world owes much to exiles and emigres
for liberation, 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 survival of homo
sapiens wither away. To argue for arbitrary inhibition of travel rights under
executive directive or legislative tag is to invite

718

     and accelerate future shock. This 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 a casual facility but the core
of liberty.

Viewed from another angle, travel abroad is a cultural enrichment which enables
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 a comparative scale. Rudyard. Kipling, though with an imperial 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 a human right
and a constitutional 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 a parsimonious
exercise in constitutional perception. Thus, the inspirational background.
cosmic perspective and inherited ethos of the pragamtic visionaries and jurist-
statesmen who draw up the great Title Deed of our Republic must illumine the
sutras of Articles 21, 19 and 14. The fascist horror of World War II burnt into
our leaders the urgency of inscribing indelibly into our Constitution those
values sans which the dignity of man suffers total eclipse. The Universa l
Declaration of Human Rights, the resurgence of international fellowship, the
vulnerability of freedoms even in democracies and the rapid development of an
integrated and intimately interacting 'one world' poised for peaceful and
progressive intercourse conditioned their thought processes. The bitter feeling
of the British Raj trampling under foot swaraj the birth-right of every 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 provincialism, feudal backwardness, glaring inequality Ind bleeding
communalism, the promotion of tourism, of giving and taking know-

719

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 111. 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 a well)."

       x x x x

       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 nations-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 we have bad little rivulets in the
past, deluges are 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 religion ? 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 anything
they have to give us; for the marvels of the region of spirit we will 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 Englishman or the American, you will have, to teach as well as to learn, and
you have plenty yet to teach to the world for centuries to come."

From the point of view of comparative law too, the position is well established.
For, one of the essential attributes of citizenship, says Prof. Schwartz, is
freedom of movement. The right of free movement is a vital element of personal
liberty. The right of free movement includes the right to travel abroad. So much
is simple textbook teaching in Indian, as in Anglo-American law. Passport
legality, affecting as it does, freedoms that are 'delicate and vulnerable, as
well as supremely precious in our society', cannot but excite judicial vigilance
to obviate fragile dependency for exercise of fundamental rights upon executive
clemency. So important is this subject that the watershed between a police state
and a government by the people may partly turn on the prevailing passport
policy. Conscious, though I am, that such prolix

720

elaboration of environmental aspects is otiose, the Emergency provsions of our
Constitution, the extremes of rigour the nation has experienced (or may) and the
proneness of Power to stoop to conquer make necessitous the hammering home of
vital values expressed in terse constitutional vocabulary.

Among the great guaranteed rights, life and liberty are the first among equals,
carrying a universal connotation cardinal to a decent human order and protected
by constitutional armour. Truncate liberty in Art. 21 traumatically and the
several other freedoms fade out auto- matically. Justice Douglas, that most
distinguished and perhaps most travelled judge in the world, has in poetic prose
and with imaginative realism projected the functional essentiality of the right
to travel as part of liberty. I may quote for emphasis, what is a woe bit
repetitive "The right to travel is a part of 'liberty' of which the citizen
cannot be deprived without due process of law under the, fifth

       Amendment........ In Anglo Saxon law that right was emerging at least as
early as the Magna Carta........ Travel abroad, like travel within the country,
may be necessary for a livelihood. It may be as close to the heart of the
individual as the choice of what he eats or wears or reads. Freedom of movement
is basic in our scheme of values." (Kent v. Dulles: 357 US 116-2 L. Ed. 2d. 1204
1958). "Freedom of movement also has large social values. As Chafoe put it :
'Foreign

       correspondents on lectures on public affairs need first-hand information.
Scientists and scholars gain greatly from consultations with colleagues in other
countries. Students equip themselves for more fruitful careers in the United
States by instruction in foreign universities. Then there are reasons chose to
the core of personal life-marriage reuniting families, spending hours with old
friends. Finally travel abroad enables American citizens to understand that
people like themselves live in Europe and helps them to be well-informed on
public issues. An American who has crossed the ocean is not obliged to form his
opinions about our foreign policy merely from what he is told by officials of
our Government or by a few correspondents of American newspapers. Moreover, his
views on domestic questions are enriched by seeing how foreigners are trying to
solve similar problems. In many different ways direct contact with other
countries contributes to sounder decisions at home....

       Freedom to travel is, indeed, an important aspect of the citizen's
liberty".

       (Kent v. Dulles)

       "Freedom of movement at home and abroad, is important for job and
business opportunities- for cultural, political and social activities- for all
the commingling which gregarious man enjoys. Those with the right of free
movement use it at times for mischievous purposes. But that is true of many
liberties we, enjoy. We nevertheless place our faith in them and

        721

       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 a sense, blazed the constitutional trail on that
facet of liberty which relates to untrammelled travel. Kent, Apthekar and Zemel
are the landmark cases and American jurisprudence today holds as a fundamental
part of liberty (V Amendment) that a citizen has freedom to move across the
frontiers without passport restrictions subject, of course, to well-defined
necessitous exceptions. Basically, Blackstone is still current coin "Personal
liberty consists in the power of locomotion, of changing direction or moving
one's person to whatever place one's own inclination may desire."

To sum up, personal liberty makes for the worth of the human person. Travel
makes liberty worthwhile. Life is a terrestrial opportunity for unfolding
personality, rising to higher states, moving to fresh woods and reaching out to
reality which makes our earthly journey a true fulfilment- not a tale told by an
idiot full of 'sound and fury signi- fying nothing, but a 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 issue is legal and sounds in the constitutional, its appreciation
gains in human depth given a planetary perspective and understanding 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 discussion on the concept of personal liberty,
as a sweeping supplement to the specific treatment by brother Bhagwati J., the
Jurists' Conference in Bangalore, concluded in 1969, made a sound statement of
the Indian Law subject, of course, to savings and exceptions carved out of the
generality of that conclusion "Freedom of movement of the individual within or
in leaving his own country, in traveling to other countries and in entering his
own country is a vital human liberty, whether such movement is for the purpose
of recreation, education, trade or employment, or to escape from an environment
in

       722

       which his other liberties are suppressed or threatened. Moreover, in an
inter-dependent world requiring for its future peace and progress an ever-
growing measure of international understanding, it is desirable to facilitate
individual contacts between peoples and to remove all unjustifiable restraints
on their movement which may hamper such contacts."

So much for personal liberty and its travel facet. Now to 'procedure established
by law', the manacle clause in Art. 21, first generally and next, with reference
to A. K. Gopalan (supra) and after. Again, I observe relative brevity because I
go the whole bog with brother Bhagwati, J. If Article 21 includes the freedom of
foreign travel, can its 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
reduction an absurdem' Legal interpretation, in the last analysis, is value
judgment. The high seriousness of the subject matter-life and liberty-
desiderates the need for law, not fiat. law is law when it is legitimated by the
conscience and consent of the community generally. Not any capricious compthe
but reasonable: mode ordinarily regarded by the cream of society as dharma or
law, approximating broadly to other standard measures regulating criminal or
like, procedure in the country. Often, it is a legislative act, but it must be
functional, not fatuous. This line of logic alone will make the two clauses of
Art. 21 concordant, the procedural machinery not destroying the substantive
fundamentally. The compulsion of constitutional humanism and the assumption of
full faith in life and liberty cannot be, so futile or fragmentary that any
transient legislative majority in tantrums against any minority, by three quick
readings of a bill with the requisite quorum; can prescribe any unreasonable
modality and thereby sterilise the grandiloquent mandate. 'Procedure established
by law', with its lethal potentiality, will reduce life and liberty to a
precarious plaything if 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 by formalistic and pharisaic prescriptions, regardless of essential
standards ? An enacted apperition is a constitutional illusion. Processual
justice is writ patently on Art. 21. It is too grave to be circumvented by a
black letter ritual processed through the legislature.

So I am convinced that to frustrate Art. 21 by relying 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 a fundamental right falling within, Art. 21 has to
be fair, riot foolish, carefully

723

designed to, effectuate. not to subvert, the substantive right itself. Thus
understood, 'procedure' must rule out anything arbitrary freakish or bizarre. A
valuable constitutional right can be canalised only by civilised processes. You
cannot claim that it is a legal procedure if the passport is granted or refused
by taking loss, ordeal of fire or by other strange or mystical methods. Nor is
it tenable if life is taken by a crude or summary process of enquiry. What is
fundamental is life and liberty. What is procedural is the manner of its
exercise,. This quality of fairness in the process is 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 judicial
thought for this reasoning. We go back to the vintage words of the learned
Judges in A. K. Gopalan (supra) and zigzag through R. C. Cooper to S. N. Sarkar
and discern attestation of this conclusion. 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 legislators happenstance. Even as
relevant reasonableness informs art. 14 and 19, the component of fairness is
implicit in Art. 21. A close-up of the Gopalan case (supra) is necessitous at
this stage to underscore the quality of procedure relevant to personal liberty.

Procedural safeguards are the indispensable essence of liberty. In fact, the
history of personal liberty is large the history of procedural safeguards and
right to a hearing has a human-right ring. In India, because of poverty and
illiteracy, the people are unable to protect and defend their rights; observance
of fundamental rights is not regarded as good politics and their transgression
as had politics. I sometimes pensively reflect that people's militant awareness
of rights and duties is a surer constitutional assurance of governmental respect
and 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 a fascinating subject of sociological relevance in many areas.
To sum up, 'procedure' in Art. 21 means fair, not formal procedure. 'Law' is
reasonable law, not any enacted piece. As Art. 22 ,specifically spells out the
procedural safeguards for preventive and punitive detention, a law providing for
such detentions 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 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 happiness, dignity and worth of the
individual, will not be entitled to any procedural safeguard save such as a
legislature's mood chooses. In, Kochunni(1) the Court, doubting the correctness
of the Gopalan decision on this aspect, said : (1) A. I. R. 1960 S. C.
1080,1093.

724

.lm15

"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 established by law'.
Patanjali Sastri, J. approximated it to the prevalent norms of criminal
procedure regarded for a long time by 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 expression means nothing more than
procedure prescribed by any law made by a competent legislature is hardly more
acceptable. 'Established', according to him, means prescribed, and if Parliament
or the Legislature of a State enacted a proce- dure, however novel and
ineffective for affording the accused person a fair

       opportunity of defending himself, it would be sufficient for depriving a
person of his life of personal liberty."

       (pp. 201-203)

       "The main difficulty I feel in accepting the construction suggested by
the Attorney General is that it completely stultifies article 13(2) and, indeed,
the very conception of a fundamental right........ could it then have been the
intention of the framers of the Constitution that the most important fundamental
rights to life and personal liberty should be at the mercy of legislative
majorities as, in effect, they would if 'established' were to mean merely
prescribed ? In other words, as an American Judge said in a similar context,
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 verbiage......... It is said that article 21 affords no
protection against competent legislative action in the field of substantive
criminal law, for there is no provision for judicial review, on the ground of
reasonableness or otherwise, of such laws, as in the case of the rights
enumerated in article 19. Even assuming it to be so the construction of the
learned Attorney Genera l

       would have the effect of rendering wholly ineffective and illusory even
the procedural protection which the article was undoubtedly designed to afford."

      (p. 202) (emphasis, added)

       "After giving the matter my most careful and anxious consideration, I
have come to the conclusion that there are only two possible solutions of the
problem. In the first place, a satisfactory via media between the two extreme
positions contended for on either side may be found by stressing the word

       'established' which implies some degree of firmness, permanence and
general acceptance, while it does not exclude origination by statute. 'Procedure
esta-

        725

       blished by' may well be taken to mean what the Privy Council referred to
in King Emperor v. Bengori Lal Sharma as 'the ordinary and well established
criminal procedure', that is to say, those settled usages and normal modes of
proceeding sanctioned by the Criminal Procedure Code which is the general law of
Criminal procedure in the country.

       (p. 205)

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

       "It seems to me that there is nothing revolutionary in the doctrine that
the words 'Procedure established by law' must include the four principles set
out in Professor Willis' book, which, as I have already stated, are different
aspects of the same principle and which have no vagueness or uncertainty about
them. These principles, as the learned author points 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 been
seriously controverted that 'law' means certain definite rules of proceeding and
not something which is a mere pretence for procedure.

       (emphasis, added)

In short, fair adjectival law is the very life of the life- liberty fundamental
right (Art. 21), 'not 'autocratic supremacy of the legislature'. Mahajan J.
struck a concordant 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; in other words, it means that before a person can be
deprived of his life or liberty as a condition precedent there should exist some
substantive law conferring authority for doing so and the law should further
provide for a mode of procedure for such deprivation., This articles gives
complete immunity against the exercise of despotic power by the executive. It
further gives 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 a person can be condemned either in respect of his life
or his liberty. It negatives the idea of a fantastic arbitrary and oppressive
form of proceedings."

      (emphasis, added)

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

8-119 SCI/78

726

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

       "If there is any doubt, the applicability of the principles will be given
the benefit of doubt."

And Lord Denning, on the theme of liberty, observed in Schmidt V. Secretary of
State (2)

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

 Human rights:

It is a mark of interpretative respect for the higher norms our founding fathers
held dear in affecting the dearest rights of life and liberty so to read Art. 21
as to result in a human order lined with human justice. And running right
through Arts. 19 and 14 is present this principle of reasonable procedure in
different shades. A certain normative harmony among the, articles is thus
attained, and hold Art. 21 bears in its bosom the construction of fair procedure
legislatively sanctioned. No Passport Officer shall be mini-Caesar nor Minister
incarnate Caesar in a system where the rule of law reigns supreme. My clear
conclusion on Art. 21 is that liberty of locomotion into alien territory cannot
be unjustly forbidden by the Establishment 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 motives 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
policy are the key-stone of our Republic.

Let. us not forget that Art. 21 clubs life with liberty and when we interpret
the colour and content of 'procedure established by law' we must be alive to the
deadly peril of life being deprived without minimal processual justice,
legislative callousness 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 Declaration to
realize that human rights have but a verbal hollow if the protective armour of
audi alteram partem is deleted. 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 lips service but
the, obligatory essence of our bard-won

(1) [1969] 2 all E. R. 274.

(2) [1969] 2 Ch. 149.

727

freedom. A Republic-if you Can Keep It-is the caveat for counsel and court. And
Tom Paine, in his Dissertation on First Principles of Government, sounded the
tossin: "He that would make, his own liberty secure most guard even his enemy
from oppression; for if he violates this duty, he establishes a 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 fitter and, above all, political dissenter. The. last
category, detested as unreasonable, defies the Establish- ment's tendency to
enforce through conformity but is the resource of social change. "The reasonable
man", says G. B. Shaw;

.lm15

" adapts himself to the word; the unreasonable one persists in trying to adapt
the world to himself. Therefore, all progress depends on the unreasonable man."
(George Bernard Shaw in 'Maxims for Revolutionists').

'Passport' peevishness is a suppressive possibility, and so the words of Justice
Jackson (U.S. Supreme Court) may be apposite:

       "Freedom to differ is not limited to things that do not matter much. That
would be a mere shadow of freedom. The test of its substanc e

       is the right to differ as to things that touch the heart of the existing
order."

       (West Yirginia State Board of Education v. Barnetto 319 US 624 (1943).

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

The impugned legislation, ss. 5, 6 and 10 especially, must be tested even under
Art. 21 on canons of processual justice to the people outlined above. Hearing is
obligatory- meaningful hearing, flexible and realistic, according to
circumstances, but hot ritualistic and wooden. In exceptional cases and
emergency situations, interim measures may be taken, to avoid the mischief of
the passportee becoming an escapee before the hearing begins. 'Bolt the stables
after the horse has been stolen' is not a command of 'natural justice. But soon
after the provisional seizure, a reasonable hearing must follow, to minimise
procedural prejudice. And when a prompt final order is made against the
applicant or passport holder the reasons must be disclosed to him almost
invariably save in those dangerous cases where irreparable injury will ensue to
the State. A government which reveals in secrecy in the field of people's
liberty 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. 728

I now skip Art.14 since I agree fully with all that my learned brother Bhagwati
J.has said. That article has a Pervasive processual potency and
versatilequality, egalitarian in its soul and allergic to discriminatory
diktats.Equality is the, antithesis of arbitrariness and excathedra ipse dixit
is the ally of demagogic authoritarianism. Only knight-errants of 'executive
excesses'-if we may use a current cliche--can fall in love with the Dame, of
despotism, legislative or administrative. 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 implying the rule of law; Be you, ever so high, the law
is above you.'

A minor pebble was thrown to produce a little ripple. It was feebly suggested
that the right to travel abroad cannot be guaranteed by the State because it has
no extra- territorial jurisdiction in foreign lands. This is a 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 its 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.

A 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 a self contained code, has suffered supersession at
the hands of R. C. Cooper(1).. By way of aside, the fluctuating fortunes of
fundamental rights, when the proletarist and the proprietariat have asserted
them in Court, partially provoke sociological research and hesitantly project
the Cardozo thesis of sub- conscious forces in judicial noesis when the
cycloramic review starts from Gopalan, moves on to In re : Kerala Education Bill
and then on to All India Bank Employees Union, next to Sakai Newspapers,
crowning in Cooper(1) and followed by Bennet Coleman(2) and Sambu Nath
Sarkar(3). Be that as it may, the law is now settled, as I apprehend it, that no
article in Part III is an island but part of a continent, and the conspectus of
the whole part gives the directions and correction needed for interpretation of
these basic provisions. Man is not dissectible into separate limbs and,
likewise, cardinal rights in an organic constitution, which make man human have
a synthesis. The proposition is indubitable, that art. 21 does not, in a given
situation, exclude Art. 19 if both rights are breached. We may switch to Art. 19
very briefly and travel along another, street for a while. Is freedom of extra-
territorial travel to assure which is the primary office of an Indian passport,
a facet of the freedom of speech and expression, of profession or vocation under
Article 19? (1) [1973] 3 S.C.R. 530.

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

     (3) [1973]1 S.C.R. 856.

   729

My total consensus with Shri Justice Bhagwati jettisons from this judgment the
profusion of precedents and the mosaic of many points and confines me to some
fundamentals confusion on which, with all the clarity on details, may mar the
conclusion. It is a 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, not ad
hoc 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 a vis freedom to
travel abroad, we have to remember one spinal indicator. True, high
constitutional policy has harmonised individual freedoms with holistic community
good by inscribing exception's 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 a wide sense, 'the interests of the general public' are served by a
family planning programme but it may be constitutional impertinence to insist
that passports may be refused if sterilisation certificates were not produced.
Likewise, it is in public interest to widen streets in cities but monstrous to
impound a passport because its holder has declined to demolish his house which
projects into the street line. Sure, the security of State is a paramount
consideration but can Govemment, totalitarian fashion. cquate Part,, country and
refuse travel document because, while abroad, he may 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 go abroad
because his flowing side-bums or sartorial vagaries offend a high-placed autho-
rity's sense of decency ? The point is that liberty can be curtailed only if the
grounds listed in the saving sub- articles are directly, specifically,
substantially and imminently attracted so that the basic right may not be
stultified. Restraints are necessary and validly made by statute, but to paint
with an over-broad brush a power to blanketban travel abroad is to sweep overly
and invade illicitly. 'The law of fear' cannot reign where the proportionate
danger is containable. It is a balancing process, not over-weighted one way or
the other. Even so, the perspective is firm and fair. Courts must not interfere
where the order is not perverse, unreasonable, mala fide or supported by no
material. Under our system, court writs cannot run government, for, then,
judicial review may tend to be a judicial coup. But 'lawless' law and executive
excess must be halted by judge-power best the Constitution be subverted by
branches deriving credentials from the Constitution. An imperative guideline by
which the Court will test the soundness of legislative and executive constraint
is, in the. language of V. C. Row(1) this (1) [1952]S.C.R.597.

730

.lm15

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

What characterises the existence and eclipse of the right of, exit ? Breathes
there the man with soul so dead' who, if he leaves, will not return to his own
'native land'? Then, why restrict ? The question, presented so simplistically,
may still have overtones of security sensitivity and sovereignty complexity and
other internal and external factors, and that is why the case which we are
deciding has spread the canvas wide. I must express a pensive reflection,
sparked off by submissions at the bar, that, regardless of the 'civil liberty'
credentials or otherwise of a particular government and mindless of the finer
phraseology of a restrictive legislation, eternal vigilance by the superior
judiciary and the enlightened activists who are the catalysts of the community,
is the perpetual price of the preservation of every freedom we cherish. For, if
unchecked, 'the greater the power, the more dangerous the abuse.' To deny
freedom of travel or exit to one untenably is to deny it to any or many
likewise, and the right to say 'Aye' or 'nay' to any potential traveller should,
therefore, not rest with the minions or masters of government without being
gently and benignly censored by constitutionally sanctioned legislative norms if
the reality of liberty is not be drowned in the hysteria of the hour or the
hubris of power. It is never trite to repeat that where laws end, tyranny
begins', and law becomes. unlaw even if it is legitimated by three legislative
readings and one assent, if it is not in accord with constitutional provisions,
beyond abridgement by the two branches of government. In the context of scray
expressions like 'security' 'public order, 'public interest' and 'friendly
foreign relations', we must warn ourselves that not verbal tables but real
values are the governing considerations in the exploration and adjudication of
constitutional prescriptions and proscriptions. 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. The learned Attorney General argued that
the right to travel abroad was no part of Art. 19(1) (a), (b), (c), (f) or (g)
and so to taboo travel even unreasonably does not touch Art.

19. As a component thereof, as also by way of separate submission, it was urged
that the direct effect of the passport law (and refusal thereunder) was not a
blow on freedom of speech, of association or of profession and, therefore, it
could not be struck down even if it overflowed Art. 19(2), (4) and (6). This
presentation poses the issue, 'What is the profile 'of our free system ?' Is
freedom of speech integrally interwoven with locomotion ? Is freedom of
profession done to death if a professional, by passport refusal without
reference to Art. 19 (f ), is inhibited from taking up a job offered abroad ? is
freedom of association such a hot-house plant that membership of an
international professional or political Organisation can be cut off on
executive-legislative ipse dixit without obedience to Art. 19(4) ?

731

This renophatic touch has not been attested by the Constitution and is not
discernible in the psyche. An anti- international pathology shall not afflict
our National Charter. A Human Tomorrow on Mother Earth is our cosmic
constitutional perspective (See Art. 51

To. my mind, locomotion is, in some situation, necessarily. involved in the
exercise of the specified fundamental rights as an associated or integrated
right. Travel, simiplicter, is peripheral to and not necessarily fundamental in
Art. 19. Arguendo, free speech is feasible without movement beyond the country,
although soilequies and solo songs are not the vogue in this ancient land of
silent saints and pyrating gurus, bhajans and festivals. Again, travel may
ordinarily be 'action and only incidentally 'expression', to borrow the Zemel
diction.

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 current, 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 a scale unknown to
history. Even thoughts, ideologies and habits travel beyond. Tourists crowd out
airline services; job- seekers rush to passport offices; lecture tours, cultural
exchanges, trans-national evangelical meets, scientific and scholarly studies
and workshops and seminars escalate, and international associations abound-all
for the good of world peace and human progress, 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 Executive
and indifferent to Art. 19. Again, the core question arises, Is movement abroad
so much a crucial part of free speech, free practice of profession and the like
that denial of the first is a violation of the rest? I admit that merely because
speaking mostly involves some movement, therefore, 'free speech anywhere is dead
if free movement everywhere 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 a bell even in the Indian
system :

       "The values and functions of the freedom of expression in a democratic
polity are obvious. Freedom of expression is essentially as a means of assuring
individual self-fulfilment. The proper end of man is the realisation of his
character and potentialities as a human being. For the achievement of this self-
realisation the mind must be free." Again

        732

       "Freedom of expression is an essential process for advancing knowledge
and discovering truth. So also for participation in decision-making in a
democratic society. Indeed free expression furthers stability in the community
by reasoning together instead of battling against each other. Such being the
value and function of free speech, what are the dynamics of limitation which
will fit these values and functions without retarding social goals or injuring
social interest ? It is in this

       background that we have to view the problem of passports and the law
woven around it. There are two ways of looking at the question .... as a facet
of liberty and as an ancient of expression." Thomas Emerson comments on
passports from these dual angles :

       Travel abroad should probably be classified as 'action' rather than
"expression". In commonsense terms travel is more physical movement than
communication of ideas. It is true that travel abroad is frequently instrumental
to expression, as when it is undertaken by a reporter to gather news', a scholar
to lecture, a student to obtain information or simply an ordinary citizen in
order to expand his understanding of 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 action, it is a '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 expression in travel, abroad so that the umbrella
effect of tile first Amendment comes into play, thereby requiring the courts 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 questions."

Travel is more than speech : it is speech bridged with conduct, in the words 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 reasoning.

The delicate, yet difficult, phase of the controversy arrives where free speech
and free practice of profession are inextricably interwoven with travel abroad.
The Passport Act, in terms, does not inhibit expression and only regulates
action-to borrow the phraseology of Chief Justice Warren in Zemel. But we have
to view the proximate and real conservance of thwarting trans-national travel
through the 733

power of the State exercised under s. 3 of the Passport Act read, A with ss. 5,
6 and 10. If a right is not in express terms fundamental within the meaning of
Part III, does it escape Art. 13, read with the trammels of 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 order expressly forbids exercise in foreign lands of the
fundamental right while grunting passport. Secondly, there may be cases where
even if the order is- innocent on its face, the refusal of permission to go to a
foreign country may, with certainty and immediacy, spell denial of free speech
and professional practice or business. Thirdly, the fundamental right may itself
enwomb locomotion regard-. less of national frontiers. The second and third
often are blurred in their edges and may overlap.

The first class may be illustrated. If the passport authority specifically
conditions the permission with a direction not to address meetings abroad or not
to be a journalist or professor in a foreign country, the order violate Art.
19(1) (a) or (f) and stands voided unless Art. 19 (2) and (6) are complied with.
The second category may be exemplified and examined after the third which is of
less frequent occurrence. If 'a person is an international pilot, astronaut,
Judge. of the International Court of Justice, Secretary of the World Peace
Council, President of a body of like nature, the particular profession not only
calls for its practice travelling outside Indian territory but its core itself
is international travel. In such an area, no right of exit, no practice of
profession or vocation. Similarly, a cricketer or tennis player recruited on a
world tour. Free speech may similarly be bit by restriction on a 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 a 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. I Supposing a lawyer or doctor, expert or
exporter, missionary or guru, has to visit a foreign country profession-ally or
on a speaking assignment. He is effectively disabled from discharging his
pursuit if passport is refused. There the direct effect, the necessary
consequence, the immediate impact of the embargo on 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 part of Art. 19 (2) to (6) is complied With. In dealing with
fundamental freedom substantial justification alone will bring the law under the
exceptions. National security, sovereignty, public order and public interest
must be of such a high degree as to offer a great threat. These concepts should
not be devalued to suit

734

     the hyper-sensitivity of the executive or minimal threats to the State.
Our, nation is not so pusillanimous or precarious as to fall or founder. if some
miscreants pelt stones at its fair face from foreign countries. The dogs may
bark, but the caravan will pass. And the danger to a party in power is not the
same as rocking the security or sovereignty of the, State. Sometimes, a petulant
government which forces silence may act unconstitutionally to forbid criticism
from far, even if necessary for the good of the State. The perspective of free
criticism with its limits for free people everywhere, all true patriots will
concur, is eloquently spelt out by Sir Winston Churchill on the historic censure
motion in the Commons as Britain was reeling under defeat at the hands of
Hitlerite hordes : "This long debate has now reached its final stage. What a
remarkable example it, has been of the unbridled freedom of our Parliamentary
institutions in time of war Everything that could be thought of or raked up has
been used to weaken confidence in the Government, has been used to prove that
Ministers are incompetent and to weaken their confidence in themselves, to make
the Army distrust the backing it is getting from the civil power, to make
workmen lose confidence in the weapons they are striving so hard to, make, to
present the Government as a set of non-entities over whom the Prime Minister
towers, and then to undermine him in his own heart, and, if possible, before the
eyes of the nation. All this poured out by cable and radio to all parts of the
world, to the distress of all our friends and to the delight of all our foes I
am in favour of this freedom, which no other country would use, or dare to use,
in times of mortal peril such as those through which we are passing."

I wholly agree that spies, traitors, smugglers, saboteurs of the health, wealth
and survival or sovereignty of the nation shall not be passported into hostile
soil to work their vicious plan fruitfully. But when applying the Passports Act,
over-breadth hyper-anxiety, regimentation complex, and political mistrust shall
not sub-consciously exaggerate, into morbid or neurotic refusal or unlimited
impounding or- final revocation of passport, facts which, objectively assessed,
may prove tremendous trifles. That is why the provisions have to be read down
into constitutionality, 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. And,
indeed, the learned Attorney General (and the Additional Solicitor General who
appeared with him), with characteristic and commendable grace and perceptive and
progressive realism, agreed to the happy resolution of the present dispute in
the manner set out in my learned brother's judgment.

A concluding caveat validating my detour. Our country, its hopes, all its tears
and all its fears, must never forget that freedom is recreated year by year,
that freedom is as freedom does, that we have gained a republic 'if we can keep
it' and that the water-

735

shed between a police state and a people's raj is located partly through its
passport policy. Today, a poor man in this poor country despaire of getting a
passport because of invariable police enquiry, insistence on property
requirement and other avoidable procedural obstacles. And if a system of secret
informers, police dossiers, faceless whisperers and political tale-bearers
conceptualised 'and institutionalised 'in public interest,' comes to stay, civil
liberty is legisidally constitutionalised--a consumption constantly to be
resisted. The merits of a particular case apart, the policing of a people's
right of exit or entry is fraught with peril to liberty unless policy is
precise, operationally respectful of recognised values and harassment proof.
Bertrand Russel has called attention to a syndrome the Administration will do
well to note :

       "We are all of us a 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 also a haired of any claim to superiority, which makes
the stupid many hostile to the intelligent few. A motive such as fear of
communism affords what seems a decent moral excuse for a combination of the
heard against everything in any way exceptional. This is a recurrent phenomenon
in human history. Wherever it occurs, its results are horrible." (Foreword by
Bertrand Russel to Freedom is as Freedom Does-Civil Liberties Today-by Corliss
Lament. New York, 1956)

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 elaboration, even some men of goodwill begin to
forget the essential humanity this machinery should be serving. They are now so
busy testing, analysing, and reporting on bath water that 'they cannot remember
having thrown the baby out of the window."

       (Introduction by H. H. Wilson, Associate Professor of Political Science,
Princeton University to Freedom is as Freedom Does by Corriss Lament, ibid p.
xxi.)

I have divagated a great deal into travel constitutionality in the setting. of
the story of the human journey, even though such a diffusion is partly beyond
the strict needs of this case. But judicial travelling, like other travelling.
is almost like 'talking with men of other centuries and countries.'

I agree with Sri Justice Bhagwati, notwithstanding this supplementary.

KAILASAM, J.-This petition is filed by Mrs. Maneka Gandhi under Article 32 of
the Constitution of India against the Union of India

736

and the Regional Pass port Officer for a writ of certiorari for calling for the
records of the case including in particular the order dated July 2, 1977 made by
the Union of India under section 10(3) (c) of the Passports Act, Act 15 of 1967,
impounding the passport of the petitioner and for quashing the said order.

The petitioner received a letter dated July 2, 1977 on July 4, 1977 informing
her that it had been decided by the Government of India to impound her passport.
The letter read as follows

       "You may recall that a passport no. K-869668 was issued to you by this
office, on 1-6-76. 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 a letter to the second respondent,
Regional Transport Officer, requesting him to furnish her a 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 10(3)(c) of the Passport Act, 1967. It has further
been decided by the Government in the interest of general public not to furnish
you a 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 jurisdiction and not 'in the
interests of general public.' The validity of the order was challenged on
various grounds. It was submitted that there was contravention of Art. 14 of the
Constitution, that principles of natural justice were violated; that no
opportunity of hearing as implied in section 10(3) of the Act was given and that
the with-holding of the reasons for the order under section 10(5) is 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
and for making the order of stay absolute after hearing the respondents. On
behalf of the Union of India, Shri N. K. Ghose, I.F.S., Director (P.V.) Ministry
of External Affairs, filed a counter affidavit. It was stated in the counter
affidavit that on May 11, 1977, the Minister of External Affairs approved the
impounding of the passport of 11 persons and on May 19, 1977 an order was passed
by the Minister impounding the passports of 8 persons out of 11 persons that on
July 1, 1977 the authorities concerned informed the Ministry of- Ex- ternal
Affairs that the petitioner and her husband had arrived at Bombay on the after-
noon of July 1, 1977 and that information bad been received that there was
likelihood of the petitioner leaving the country. The authorities contacted the
Ministry of External Affairs

737

and Minister after going through the relevant papers approved the impounding of
the passport of the petitioner on the evening of July 1, 1977 in the interests
of general public under Section 10(3)(c) of the Passports Act, 1967. On July 2,
1977 Regional Transport Officer on instructions from the Government of India
informed the- petitioner about the Central Government's decision to impound her
passport in public interest and requested her to surrender her passport. In the
counter affidavit various allegations made in the petition were denied and it
was stated that the order was perfectly justified and that the petition is
without merits and should be dismissed. The rejoinder 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 a
counter to this application was filed on behalf of the Ministry of External
Affairs on August 18, 1977.

A petition by Adil Shahryar was filed seeking permission to intervene ill the
writ petition and it was ordered by this Court. During the hearing of the writ
petition, Government produced the order disclosing the reasons for impounding
the passport. The reasons given are that it was apprehended that the petitioner
was attempting or was likely to attempt to leave the country and thereby hamper
the functioning of the Commissions of Inquiry. According to the Government, 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 unrealistic to over-look the possibility of tampering
with it or making it unavailable to the Commission, which can be done more
easily and effectively when an interested person is 'abroad. So far as this
allegation was concerned as it was not taken into account in passing the order
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 the petitioner was a
journalist by profession and that she intended to proceed to West Germany in
connection with her professional duties, as a journalist and that by denying her
the passport not only was her right to travel abroad denied but her fundamental
rights guaranteed under Article 19(1) were infringed. The contention was that
before an order passed under Article 21 of the Constitution could be valid, it
should not only satisfy the requirements of that article, namely that the order
should be according to the procedure established by law, but also should not in
any way infringe on her fundamental rights guaranteed under Article 19(1). In
other words, the submission was that the right to personal liberty cannot be
deprived without satisfying the requirements of not only Art. 21, but also
Article 19. In addition the provisions of Section 10(3)(c) were challenged 'as
being ultra vires of the powers of the legislature and that in any event

738

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

The question that arises for consideration is whether the Fundamental Rights,
conferred under Part III and particularly the rights conferred under Article 19
are available beyond the territory of India. the rights conferred under Article
19 (1) (a), (b), (c), (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 property; and

        (g) to practise any profession, or to carry on any occupation, 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 extraterritorial
application does not arise.

In order to decide this question, I may consider the various provisions of the
Constitution, which throw some light on this point. The preamble to the
Constitution provides that the people, of India have solemnly resolved to
constitute India into a Sovereign Socialist Secular Democrative Republic and to
secure to all 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 of the nation.

By the article, India is constituted as a Democratic republic and its citizens
secured certain rights. While- a reading of the article would indicate that the
articles are applicable within the territory of 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 authorities within the territory of India or under
the control of the Government

   739

of India. 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 shall, 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 provides that
the 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 clause shall,
to the extent of the contravention, be void. The word "law" in the Article is
defined as:

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

       (b) "laws in force" includes laws passed or made by a Legislature or
other competent authority in the territory of India before the commencement of
this Constitution and not previously repealed, notwithstanding that any such law
or any part thereof may not be then in operation either at all or in particular
areas.

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

In distributing the legislative powers between the Union and the 'States Article
248 provides that Parliament may make laws for the whole or any part of the
territory of India and the Legislature of a 'State may make laws for the whole
or any part of the State. Article 245(2) provides that no law made by parliament
shall be deemed to be invalid on the ground that it would have extra-territorial
operation. This article makes it clear that a State law cannot have any extra-
territorial operation while that of the parliament can have. The Parliament has
undoubted power to enact law having extra-territorial 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 a Dominion has
full power to make laws having extraterritorial operation." But in determining
whether the provisions of a Constitution or a ,statute have extra-territorial
application certain principles are laid down. Maxwell on The Interpretation of
Statutes Twelfth 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

       740

       Kingdom not even to the Channel Islands or the Isle of Man, let alone to
a 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 Kingdom and not to transactions
outside." These two extracts are from two decisions (1) Att. Gen. for Alberta
vs. Huggard Assets, Ltd., (1953) A.C. 420 and C.E.B. Draper & Son, Ltd. vs.
Edward Turner & Son. Ltd. (1964) 3 All. E.R. 148 at p. 150 Maxwell comments on
the above passages thus "These statements, however, perhaps oversimplify the
position." The decisions cited will be referred to in due course.

Craies on Statute Law (Sixth Ed.) at p. 447 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 subjects 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
(1964 Ed.) at page lin states the position thus : "Parliament normally restricts
the operation of legislation to its own territories, British ships wherever they
may be being included in the ambit of territory.-Parliament does on occasions,
however, pass legislation controlling the activities of its own citizen when
they are abroad." Salmond in his book on Jurisprudence (Twelfth Ed.)
distinguishes between the territorial enforcement of law and the territoriality
of law itself. At p. 11 the author states : "Since territoriality is not a
logically necessary part of the idea of law, a system of law is readily
conceivable the application of which is limited and determined not by reference
to territorial considerations, but by reference to the personal qualifications
of the individuals over whom jurisdiction is exercised." According to the text-
books above referred to, the position is that a law is normally applicable
within the territory, but can be made applicable to its citizens wherever they
may be. Whether such extra- territorial applicability is intended or not will
have to be looked for in the legislation.

I will now refer to the decisions of courts an this subject. In Niboyet v.
Niboyet(1) the Court of Appeal stated: "It is true that the words of the statute
are general, but general word,,, in a statute have never, so far as I am aware,
been interpreted so as to extend the action of the statute beyond the
territorial authority of the Legislature. All criminal statutes are in their
terms general; but they apply only to offences committed within the territory or
by British subjects. When the Legislature intends the statute to apply beyond
the ordinary territorial authority of the country, it so states expressly in the
statute as in the Merchant Shippina Acts, and in some of the Admiralty Acts." In
the Queen v. Jameson and Others (2) the Chief Justice Lord Russet

(1) 48 L. J. P. I at p. 10.

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

741

stated the position thus : "It may be said generally that the area within. which
a statute is to operate, and the persons against whom it is to operate, are to
be gathered from the language and purview of the particular statute. In Cooke v.
The Charles A. Vogeler Company(1), the House of Lords in dealing with the
jurisdiction of the Court of Bankruptcy observed that "English legislation is
primarily territorial, and it is no departure from that principle to say that a
foreigner coming to this country and trading here, and here committing an act of
bankruptcy, is subject to our laws and to, all the incidents which those laws
enact in such a case; while he is here, while he is trading, even if not
actually domiciled, he is liable to be made a bank- rupt like a native
citizen........ It is limited in its terms to England; and I think it would be
impossible to suppose that if the Legislature had intended so broad a
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 a passage from Maxwell on Interpretation of Statutes at p.
213 where in 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
history 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 a contrary intention is expressed or could be
inferred from its language. The decision of the Privy Council in Att.-Gen. for
Alberta v. Huggard Assets, Ltd. (8), has already been referred to as a quotation
from Maxwell's Interpretation of Statutes. The Privy Council in that case held
that "An Act of the Imperial Parliament today unless it provides otherwise,
applies to the whole of the United Kingdom and to nothing outside the 'United
Kingdom: not even to the Channel Islands or the Isle of Man, let alone to a
remote overseas colony or possession." The Court of Appeal in a later decision
reported in (1964) 3 All. E.R. p. 148 (C.E.B. Draper & Son, Ltd. vs. Edward
Turner & Son, Ltd.) approved of the proposition laid down in Att. Gen. for
Alberta vs. Huggard Assets, Ltd., observing "Prima facie an Act of the United
Kingdom Parliament, unless it provides otherwise, applies to the whole of the
United Kingdom and to nothing outside the United Kingdom".

The cases decided by the Federal Court and the Supreme Court of India may be
taken note of. Dealing with the extra- territorial application of the provisions
of the Income-tax Act, the Federal Court in Governor--General in Council v.
Raleigh Investment Co. Ltd. (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 tile Indian Legislature by the
Constitution Act. After discussing the case-law 'on the subject at p. 61
regarding the making of laws for the (1) [1901] A. C. 102 at p. 107.

(2) [1909] 2 K. B. 61.

(3) [1953] A. C. 420.

(4) A. I. R. (31) 1944 Federal Court 51.

9-119 SCI/78

742

whole or any part of British India on topics in Lists I and 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, Bombay, Sind and Baluchistan(1),- the Federal Court
held that there was no element of extraterritoriality in the impugned provisions
of the Indian Income-tax Act, and even if the provisions were in any measure
extraterritorial in their effect, that was not a ground for holding them to be
ultra vires the Indian Legislature. In Mohammad Mohy-ud-din v. The King
Emperor(2), the Federal Court was considering the validity of the Indian Army
Act, 191 1. In this case a person who was not a British subject but had
accepted, a commission in the Indian Army was arraigned before a 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, 191 1, conferred
jurisdiction on the courtmartial to try non-British subjects for offences
committed by them beyond British India. On a 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." Repelling
the contention that there was a presumption against construing 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 Maxwell's Interpretation of Statutes do not go
the length necessary for the appeIlant'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 the ordinary citizen,
we have not been referred to any rule of International Law or principle of the
comity of nations which is inconsistent with a State exercising dis- ciplinary
control over its own armed forces, when those forces are operating outside its
territorial limits". The law as laid down by the Courts may now be summarised.
Parliament normally restricts the operation of the legislation to its own
territories. Parliament may pass legislation controlling the activities of the
citizens abroad. An intention to have extra territorial operation should be
expressed or necessarily implied from the language of the Statute. The Statute
should be so interpreted as not to be inconsistent with the comity of nations or
with the established rules of international law.

It is now necessary to examine the various articles of Part III of the
Constitution to find out whether any intention is expressed to make any of the
rights available extra- territorially. The application of Article 14 is
expressly limited to the territory of India as, it lays down that "The (1)
[1945] F.C.R. 65.

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

743

State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India". Article 15 relates to
prohibition of discrimination on grounds of religion, race, caste, sex or place
of birth, and Art. 16 deals with equality of opportunity in matters of public
employment. By their very nature the two 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 other articles may be referred to in brief. Articles 20
and 22 can have only territorial application. Articles 23 and 24 which relate to
right against exploitation and Articles 25 to 28 which relate to freedom of
conscience and free profession, practice and propagation of religion etc. prima
focie 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 appli- cation. In this background it will
have to be examined whether any express or implied intention of extra-
territorial applicability is discernible in Articles 19 and 21.

Article 19(1) (a) declares the right to freedom of speech and expression. While
it is possible that this right may have extra-territorial 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 unions, 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 territory. The
rights conferred under Art. 19 are Fundamental Rights and Articles 32 and 226
provide that these rights are guaranteed and can be enforced by the aggrieved
person by approaching the Supreme Court or the High Courts. Admittedly, the
rights enumerated in Art. 19(1) (a), (b), (c), (f) and (g) cannot be enforced by
the State and in the circumstances there is a presumption that the Constitution-
makers would have intended to guarantee any right which the State cannot enforce
and would have made a provision guaranteeing 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 confined to
the, territory of India. The provisions in Art. 19 (1) (d) and (e) i.e. the
right to move freely throughout the territory of India and to reside and settle
in any part of the territory of India have historical significance. In A. K.
Gopalan vs. The State of Madras,(1) 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.

744

throughout the territory of India. It is a historical fact that there were
rivalries between the various States and the imposition of restraint on movement
from State to State by some States was not beyond possibility. In the two
clauses 19 (1) (d) and (e) the right "to move freely throughout the territory of
India" and "to reside and settle in any part of the territory of India" the
"territory of India" is mentioned with the purpose of preventing the States from
imposing any restraint. From 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 v. The State of Punjab and Another,(1) 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 guaranteed to the citizens by Article 19(1) are
exercisable by them throughout and in all parts of 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 impliedly of extra territorial operation the context would indicate that its
application is intended to be only territorial. The right under Art. 19(b) and
(c) to assemble peaceably and without arms and to form associations or unions
could not have been intended to have any extraterritorial application as it will
not be in accordance with the accepted principles of international law. As the
rights under 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 conferred 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
occupation, trade or business, would not have been intended to be applicable
outside India.

It was submitted that when the Constitution was framed the founding fathers were
influenced by the United Nations' Universal Declaration 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- 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
: a short declaration of principles and an elaborate treaty or covenant
enforcing those principles so far as practicable. The Universal Declaration of
Human Rights was not intended to be binding as law but to present the main
ideals of human rights and freedoms in order to inspire everybody, whether in or
out of governments, to work for their progressive realization. The Commission
finished the Declaration and it was promulgated by the UN Assembly on December
10, 1948. The discussion about the Draft Indian Constitution took place between
February and October, 1948 and the Articles relating to the Fundamental Rights
were discussed in October, 1948, i.e. before the Universal Declaration of Human
Rights was promulgated by the UN Assembly on December 10, 1948. It is most
unlikely that before the Declaration of Human Rights was promulgated '

(1) [1958]S.C.R.308.

745

the framers of the Indian Constitution decided to declare that the Fundamental
Rights conferred on the citizens would have application even outside India. The
Universal Declaration of Human Rights was not binding as law but was only a
pious hope for achieving a common standard for all peoples and all nations.
Article 13 of the Declaration which is material for our discussion runs as
follows : Paragraph 1. Everyone has the right to freedom of movement and
residence with in the borders of each state. Paragraph 2. Everyone has the right
to leave any country, including 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 second, paragraph aims at 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 outside the country of origin. Even in the American Constitution there
is no mention of right to freedom of speech or expression as being available
outside America. Regarding the right of movement within the borders of the State
it is not mentioned as one of the freedoms guaranteed 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 a citizen to leave any country and to return to his country is
recognised in the United States. While there is no restriction 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 outside the United States is not unrestricted. A
passport is a request by the Government which grants it to a foreign Government
that the bearer of the passport may pass safely and freely. The passport is
considered as a licence for leaving a country and an exit permit rather than a
letter of introduction. Even in America the State Department when it issues a
passport specifies that they are not valid for travel to countries in-which the
United States have no diplomatic representation as the position of the
Government is that it will not facilitate overseas 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 assurance to protection. 'The right
of the American citizen to travel abroad as narrated above shows that even the
right to travel outside the country is not unfettered.

In vain one looks to the American law to find whether the citizens are granted
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 circulate words. But this freedom of expression would be meaningless if
people were not permitted to gather in groups to discuss mutual

746

     problems and communicate their feelings and opinions to governmental
officers. The First Amendment therefore provides that the people have the right
to assemble peaceably and petition the government for redress of grievances.
The- petition for redress can only be confined to the United States of America.
In a recent address on Human Rights Warren Christopher, U.S. Deputy Secretary of
State reproduced in Shan, October 1977, stated before the American Bar
Association in Chicago that the promotion of human rights has become a
fundamental tenet of the foreign policy of the Carter Administration. In
explaining the conception of human rights and its practice in America the Deputy
Secretary stated that the efforts should be directed to the most fundamental and
important human rights all of which are internationally recognised in the
Universal Declaration of Human Rights which the United Nations approved in 1948.
While emphasing 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 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 subject to reasonable restrictions
Provided for in the Constitution itself. The restrictions imposed are to be by
operation of any existing law or making of a 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 restrictions 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 rights under Art. 19(2) is there any provision expressly or by
necessary implication providing for extra-territorial application. A citizen
cannot enforce his Fundamental Rights outside the territory of India even if it
is taken that such rights are available outside the country. 747

In the view that a citizen is not entitled to the Fundamental Rights guaranteed
under Art. 19 outside the territorial limits of India,- the contention of the
learned counsel for the petition that by denying him the passport to travel
outside India, his Fundamental Rights like freedom of speech and expression, to
assemble peaceably, to 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
Commission may be necessary and in the interest of public it was necessary to do
so. The impugned order does not place any restrictions on the petitioner while
she is away from India. Hence the question whether the State could impose such
restraint does not arise in this case. As the contention was that by impounding
the, passport the petitioner's fundamental right of freedom of speech etc.
outside the country was infringed, it became necessary to consider whether the
citizen had any such right.

It was strenuously contended that the Legislature by involving powers under Art.
21 cannot deprive the Fundamental Rights guaranteed under Art. 19 at any rate
within the territory of India. It win 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 a law in force at the time of the commission of the act
charged as an offence, nor be subjected to a 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's(1) 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 specified under Art. 19(a) to (e) and (g) of the
Constitution of India. Kania C.J. held : "If there is a legislation directly
attempting to control a 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 a 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 application of Article 19 does not arise."

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

748

Fazal Ali J., though he dissented from the majority view regarding the
application of Article 19 to punitive detention observed follows

       "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
a law imposing restrictions on the right to move freely. Its primary object is
to punish crime and not to restrict movement...... But if it (the Punishment)
consists in imprisonment there is a restriction on movement. This restraint is
imposed not under a law imposing restrictions on movement but under a law
defining crime and making it punishable. The punishment is correlated directly
With the violation of some other person's right and not with the right of
movement possessed by the offender himself. In my opinion, therefore, the Indian
Penal Code does not come within the ambit of the words 'law' imposing
restrictions on the right to move freely."

The learned Judge, Justice Fazal Ali, took a different view regarding preventive
detention on the basis that it did not admit of a trial but the order of
detention rested on an apprehended and not actual danger. Regarding punitive
detention, the decision of a Bench of five Judges in H. Saha v. State of West
Bengal,(1) expressed the same view. Chief Justice Ray observed :

       "It is not possible to think that a person who is detained will yet be
free to move or assemble or form association or unions or have the right to
reside in any part of India or have the freedom of speech or expression.
Suppose, a person is prosecuted of an offence of cheating and convicted after
trial, it is not open to him to say that the imprisonment should be tested with
reference to Art. 19 for its reasonableness. A law which attracts Article 19,
therefore, must be such as is capable of being tested to be reasonable under
clauses (2) to (5) of Article 19."

In the case of punitive detention, it will be open to the accused to raise all
defences that are open to him in law, such as that there have been no violation
of any law in force. Regarding punitive detention this Court in Saha case has
held that as the Constitution has conferred rights under Art. 19 and also
adopted the preventive detention to prevent the greater evil by imperilling
security, the safety of the State and the welfare of the nation, it is not
possible to think that a person who is detained will yet be free to move or
assemble or form associations etc.

Applying the same reasoning, it is contended on behalf of the state that when a
person is deprived of his life or personal liberty in accordance with the
procedure established by law, he cannot invoke to his aid any of the rights
guaranteed under Art. 19 of the Constitution of India. Whether this contention
could be accepted (1) [1975] 1 S.C.R. 778.

749

or not will be examined with reference to the provisions of the Constitution and
the decisions rendered by this Court. Article 19 to 22 appear under the title
"Right to freedom". Article 19 confers freedoms on the citizens whereas Aft. 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 a 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
a 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. 19(1) are subject to restrictions that may be
placed by Articles 19 (2) to (6), the right not to be deprived of life and
personal liberty is subject to its deprivation by pro- cedure established by
law. The scope of the words "personal liberty" was considered by Mukherjea, J.
in Gopalan's case (supra.) The learned Judge observed : "Article 19 gives a 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 conflict 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 re-strain and coercion of any
sort, are the inherent birth right-. of a man. The essence of these rights
consists in restraining others from interfering with them and hence they cannot
be described in terms of "freedom" to do particular things. . . ." The words
"personal liberty" take their colour from the words "deprivation of rifle'. It
means liberty of the person, that is freedom from personal restraint. Article 21
is one of the Articles along with Articles 20 and 22 which deal with restraint
on the person. According to Dicey : "The right to personal liberty as understood
in England means in substance a person's right not to be subjected to
imprisonment, arrest or other physical coercion in any manner that does not
admit of legal justification."

       (Dicey's Laws of Constitution 10th 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 Constitution thought that the
word "liberty" should be qualified by the insertion of the word "personal"
before it for otherwise it might be construed very widely so as to include even
the freedoms already dealt with under Art. 19, 30 (which corresponds to Art. 19
in the Constitution). The word "personal liberty" in Article 21 is, therefore,
confined to freedom from restraint of person and is different from other rights
enumerated in Article 19 of the Constitution.

750

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
procedure 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
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 a person who had ceased to be free and
had been either under punitive or preventive legislation. It was further held
that Art. 19 only applied where a legislation directly hit the rights enumerated
in the Article and not where the loss of rights mentioned in the Article was a
result of the operation of legislation relating to punitive or preventive
detention. It was also stated by Justice Mukherjea that a law depriving the
personal liberty must be a valid law which the legislature is competent 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,, learned Judge
explained that the reasonableness of a law coming under Art. 21 could not be
questioned with reference to anything in Art. 19 though a law made under Art. 21
must conform 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
Delhi(1) where it was held :

       "Although personal liberty has a 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 civil
liberties as distinct from fundamental rights and made separate provisions in
Art. 19 and Arts. 21 and 22 as to the limitations and conditions subject to
which alone they could be taken away or abridged ... The interpretation of these
Articles and their correlation was elaborately dealt with by the full court in
Gopalan's case.

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

This view was again affirmed in State of Bihar v. Kameshwar Singh,(2) where Das,
J. in approving the law laid down in Gopalan's case observed as follows

       "As I explained in Gopalan's case and again in Chiranjit LaPs case 1950
SCR 869 our Constitution protects the freedom of the citizen by article 19 (1)
(a) to

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

(2) [1952] S.C.R 889.

751

       (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
incompatible 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
provisions of Art. 22.

In Express Newspapers (P) Ltd. & another v. The Union of India, & Others, (1)
the test laid down was that there must be a direct or inevitable consequence of
the measures enacted in the impugned Act, it would not be possible to strike
down the legislation as having that effect and operation. A possible eventuality
of this type would not necessary be the consequence which could be in the
contemplation of the legislature while enacting a 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 India,(2) after citing with
approval the case of Ram Singh and Express Newspapers case, it was observed :

       "It is not the form or Incidental infringement that determine the
constitutionality of a statute in a reference to the rights

       guaranteed in Art. 19(1) but the reality and the substance........ Viewed
in this way, it does not select any of the elements or attributes of freedom of
speech falling within Art. 19 (1) (a) of the Constitution."

Reality and substance test was laid 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 affirmed in Ram
Singh's case was doubted by Subba Rao, J. in Kochuni v. The State of Madras(3).
The learned Judge after referring to the dissenting view of Fazal Ali, J. in
Gopalan's case rejecting the plea that a law under Art. 21 shall not infringe
Art. 19(1) observed :

"The question being integrated 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 5 60A

(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) [1962] 3 S.C.R. 842.

752

Part where it was held that "the correct approach ; in such cases should be to
enquire as to what in substance is the loss or injury caused to a citizen and
not merely what manner and method has been adopted by ,,he State in placing the
restriction and, therefore, the right to freedom, of speech cannot be taken away
with the object of taking away the business activities of the citizen. Reference
was also made to another passage at 867 where it 'was held that the "legitimacy
of the result intended to be achieved does not necessarily imply that every
means to achieve it is permissible; for even if the end is desirable and
permissible, the means employed must not transgress the limits laid down by the
constitution if they directly impinge on any of the fundamental rights
guaranteed by the Constitution. It is no answer when the constitutionality of
the measure is challenged that apart from the fundamental right infringed the
provision is otherwise legal. The above observations relied on by the learned
counsel were made in a petition where the validity of Delhi Newspapers (Price
and Page) Order, 1960 which fixed the maximum number of pages that might be
published by a newspaper according to the price charged was questioned. The
order was challenged as contravening Art. 19(1) (a) of the Constitution. The
court held that the order was void as it violated Art. 19 (I) (a) of the
Constitution and was not saved by Article 19 (2). The court held that the right
extended not merely to the method which is employed to circulate but also to the
volume of circulation, and the impugned Act and order placed restraints on the
latter aspect of the right as the very object of the Act was directly against
circulation and thus, interfered with the freedom of speech and expression. At
page 866, the Court observed :

       "The impugned law far from being one, which merely interferes with the
right of freedom of speech incidently, does so directly though it seeks to
achieve the end by purporting to regulate the business aspect to a
newspaper........ Such a course is not permissible and the courts must be ever
vigilant in guarding perhaps the most precious of all the freedom guaranteed by
our Constitution."

This decision does not help us in resolving the point at issue in this case for
the court was concerned with the question whether the right of freedom of speech
was directly affected by the impugned order. The impact of legislation under
Art. 21 on the rights guaranteed under Art. 19(1) was not in issue in the case.

The two cases which were strongly relied on by the learned counsel for the
petitioner as having over-ruled the view of Gopalan's case as affirmed in Ram
Singh's case are Bank Nationalisation Case(2) and Bennet Colomon's case.(2) In
Kharak Singh's(3) case the majority took the view that the word 'liberty' in
Art. 21 is qualified by the word 'personal' and there its content is narrower
and the qualifying adjective has been employed in order (1) [1970] 3 S.C.R. 530.

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

(3) [1964] 1 S.C.R. 332.

753

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(1) and the
liberty guaranteed by Art. 21 and particularly in the context of the difference
between the permissible restraints or restrictions which might be imposed by sub
clauses (2) to (6) of the, Article of the several species of liberty dealt with
in a several clauses of Article 19(1). The minority view as expressed by Subba
Rao, J. is that if a person's fundamental right under Art. 21 is infringed, the
State can rely upon a law to sustain the action; but that cannot be a complete
answer unless the State laws satisfy the test laid down in Article 19(2) as far
the attributes covered by Article 19(1) are concerned. In other words, the State
must satisfy that petitioners fundamental rights are not infringed by showing
that the law only imposes reasonable restrictions within the meaning of Art.
19(2) of the Constitution. The submission of the learned counsel for the
petitioner is that the view as ,expressed by Subba Rao, J. has been affirmed by
the subsequent decisions in the Bank Nationalisation(1) 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
petitioners 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 Constitution 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 dealing 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
Gopalan's case was extended to the protection of the freedom 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 pretty. After mentioning
the two divergent lines of authority, the court held that "the guarantee under
Art. 31 (1) and (2) arises out of the limitations imposed on the authority of
the State,

(1) [1970] 3 S.C.R. 530.

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

754

by law, to take over the individual's property. The true character of the
limitation of the two provisions is not different. Clause (1) of Article 19 and
clause (1) and (2) of Art. 31 are part of the similar article 19(1) (f)
enunicating the object specified and Article 19(1) and 31 deal with the
limitation which may be placed by law subject to which the rights may be
exercised. Formal compliance with the conditions of Art. 31(2) is not sufficient
to negative protection of guarantee to the rights to property. The validity of
law which authorises deprivation of property and the law which authorises
compulsory acquisition of the property for a public purpose must be adjudged by
the application of the same test. Acquisition must be under the authority of a
law and the expression law means a law which is within the competence of the
legislature and does not impair the guarantee of the rights in Part 111. The
learned counsel for the petitioner submitted that on similar reasoning it is
necessary that an enactment under Art. 21 must also satisfy the requirements of
Article 19 and should be by a law which is within the competence of the
legislature and does not impair the guarantee of the rights in part III
including those conferred under Art. 19 of the Constitution of India. The
important question that arises for consideration is whether the decision in the
Bank Nationalisation case has over-ruled the decision of Gopalan's case and is
an authority for the proposition and an act of the legislature relating to
deprivation of life and personal liberty should also satisfy the other
fundamental rights guaranteed under Art. 19(1) of the Constitution.

In order to determine what exactly is the law that has been laid down in Bank
Nationalisation Case, it is necessary to closely examine the decision
particularly from pages 570 to 578 of 1970(3) SCR. After holding that :

       "Impairment of the right of the individual and not the object of the
State in taking the impugned action, is the measure of protection. To
concentrate merely on power of the State and the object of the State action in
exercising that power Is therefore to ignore the true intent of the
Constitution."

the Court proceeded to observe that "the conclusion in our judgment is
inevitable that the validity of the State action must be adjudged in the light
of its operation upon rights of individual and groups of individuals in all
their dimensions." Having thus held the Court proceeded to state : "But this
Court has held in some cases to be presently noticed that Art. 19 (1) (f) and
Art. 31 (2) are mutually exclusive."

It is necessary at this stage to emphasize that the Court was only considering
the decisions that took the view that Article 19 (1 ) (f) and 31(2) were
mutually exclusive. After referring to passages in A. K. Gopalan's case at pages
571 to 573 noted at page 574 :

       "The view expressed in A. K. Gopalan's case was reaffirmed in Ram Singh
and others v. State of Delhi(1)".

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

755

Having thus dealt with the passages in the judgment in Gopalan's case the Court
proceeded to consider its effect and observed that the principle underlying the
judgment of the majority was extended to the protection of freedom in respect of
property and it was held that-Article 19(1) (f) and. Art. 31(2) were mutually
exclusive in their operation. While observations in judgment of Gopalan's case
as regards the application 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 respect 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 lawful 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,(1) 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 deprived of such
property by authority of law."

Das, J. reiterated the same view in The State of West Bengal v. Subodh Gopal,
(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 retains his property over or with respect
to which alone that right may be exercised.

Thus the observation in Gopalan's case extending the principle laid down in the
majority judgment to. freedom in respect of property was reiterated by Das, J.
in Chiranjit Lal Chowduri's case (supra) and Subodh Gopal's case. The principle
was given more concrete shape in State of Bombay v. Bhanjit Munji(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 restrictions of the exercise of those rights it must follow that the
Article postulates the existence of property over which the rights are to be
exercised." This view was accepted in the later cases Dabu Barkya Thakur v.
State of Bombay(4) and Smt. Sitabati Debi and Anr. v. State of West Bengal.(5)
The Court proceeded further after referring to some cases to note that. "With
the decision in K. K. Kochuni's case(6) 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 bold 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 guarantee of Art. 19(1) (f) in so far as it imposes substantive
restrictions

(1) [1950] 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) [1967] 2 S.C.R. 940.

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

756

though it may be tested on the ground of impairment of other guarantees." Later
in the decision of State of Madhya Pradesh. v. Ranoiro Shinde(1) the Supreme
Court opined that the validity of law in cl. (2-) of 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 interrelation of
Art. 31 (2) and Art. 19 (1) (f) the Court proceeded to express its view that
"the theory that the object and form of the State action determine the extent of
protection which the aggrieved party may claim is not consistent with the
constitutional scheme. Each freedom has different dimensions." Having so stated
the Court considered the inter-relation of Art. 31 (2) and Art. 19 (1) (f) and
held :

       "The true character of the limitations under the two provisions is not
different. Clause (5) of Art. 19 and cls. (1) & (2) of Art. 31 are parts of a
single pattern; Art. 19(1) (f) enunciates the basic right to property of the
citizens and Art. 19(5) and cls. (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 a 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 the
exercise of the authority of the State and cl. (5) of Art. 19 and cls. (1) and
(2) of Art. 31 prescribe restrictions upon State action, subject to which the
right to property may be exercised. The fact that right to property guaranteed
under Art. 19(1) (f) is subject to restrictions under Art. 19(5) and 31 and
thereby relate to the right to property closely inter-related cannot be
overlooked for that formed the basis for the conclusion. After referring to the
various Articles of the Constitution the Court observed :

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

It proceeded

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

757

under a law with characterstics set out in that Articles. Formal compliance 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 which just fies this apparently-
inconsistent development of the law. While stating that in its judgment the
assumption in A. K. Gopalanan's case that certain articles exclusively deal with
specific matters and in determining whether 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 be 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
compulsory acquisition of property for public purpose must be adjudged by the
application of the same tests." It will 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 consider the extension of the, principle underlying the
majority judgment to the protection of the freedom in respect of property,
particularly, the judgment of Justice Das. After stating that two views arose
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 form of State action has to be considered was over ruled
and it was laid down that it is the effect and action: upon the right of the
person that attracts the jurisdiction of the Court to grant relief. It is no
doubt true that certain passing observations have been made regarding the
liberty of persons, such as at page 576 :

       "We have carefully considered the weighty pronouncements 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 operation upon the
individual's freedom."

Though the liberty of person is incidentally mentioned there is no further
discussion on the subject. While undoubtedly Bank Nationalisation case settles
the law that Art. 19(1) (f) and Art. 31(2) are not mutually exclusive there is
no justification for holding that the case. is authority for the proposition
that the legislation under Art. 21 should also satisfy all the fundamental
rights guaranteed under Art.. 19(1) of the Constitution. As emphasised earlier
Art. 19 (1) (f) and Art. 31 (2) form a single pattern and deal with right to
property. The fundamental right under Art. 19(1) (f) is restricted under Art.
19(5) or Art. 31 (2) and as the article refer to right to property they are so
closely interlinked, and cannot be held to be mutually exclusive. But Art. 21 is
related to deprivation of life and personal liberty and it has been held

758

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

The decision in Bank Nationalisation case so far as it relates to Articles 19(1)
and 21, is in the nature of obiter dicta. Though it is a decision of a Court of
11 Judges and is entitled to the highest regard, as the Court had not applied
its mind and decided the specific question and as is in the nature of a general,
casual observation-on a point not calling for decision and not obviously argued
before it, the case cannot be taken as an authority on the proposition in
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.

It may also be noted that as the Court ruled that the impugned 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 are 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 flank Nationalisation case (supra) it was assumed. "The Majority of
the Court (Kania, C.J. and Patanjali Sastri, Mahajan, Mukherjea & Das JJ.) held
that Art. 22 being a complete code relating to preventive detention the validity
of an order of detention must be determined strictly according to the terms and
within the four comers of that articles." This statement is not borne out from
the text of the judgment$ in Gopalan's case. At p. 115 of Gopalan's case (supra)
Kania C.J. has stated : "The learned Attorney General contended that the-
subject of preventive detention does not fall under article 21 at au and is
covered wholly by article 22. According to him, article 22 is a complete 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) formed a complete code of constitutional safeguards in respect of
preventive detention, and, provided 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 with
preventive detention at all and that preventive detention is wholly covered by
article 22(4) to (7) which by themselves constitute a complete code. I am unable
to accede to this extreme point of view also." Mukherjea J. at p. 229 of that
judgment observed : "1t is also unnecessary to enter into a discussion on the
question raised by the learned Attorney- General as to whether article 22 by
itself is a self- contained Code, with regard to the law of preventive detention
and whether or not the procedure it lays down is exhaustive." Justice Mahajan at
page 226 held that "I am satisfied on a review of the whole scheme of the Con-
stitution that the intention was to make article 22 self- contained in respect
of the laws on the subject of preventive detention." It is thus seen that the
assumption in Bank Nationalisation's case that the majority of the Court held
that article 22 is a complete code is erroneous and the basis of the decision
stands shaken. If the obiter dicta based

759

on the wrong assumption is to be taken as the correct position in law, it would
lead to strange results. If arts. 19(1) (a) to (e) and (g) are attracted in the
case of deprivation of personal liberty under art. 21, a punitive detention for
an offence committed under the Indian Penal Code such as theft, cheating or
assault would be illegal as pointed out in Gopalan's case by Kania C.J. and
Patan ' jali Sastri J. for the reasonable restriction in the interest of public
order would not cover the offences mentioned above. As held in Gopalan"s case
and in Saha'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 a law imposing restrictions on
the right to 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 a 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 freedoms 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 different 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 include the right
of personal liberty covered in Art.

21. For the reasons stated above obiter dicta in Bank Nationalisation's case
that a legislation 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 a legislation as laid down in Bennet Colomon's case following the
Bank Nationalisation ,case the decisions which followed the Bank Nationalisation
case holding on the erroneous premises that the majority in Gopalan's case held
that Article 22 was a self-contained Code. may be shortly- referred to. In S. N.
Sarkar v. West Bengal(1), the Supreme Court held that in Gopalan's case the
majority Court held that Article 22 was a self-contained Code and, therefore,
the law or preventive detention did not have to satisfy the requirement of
Articles 19, 14 and 20. In the Bank Nationalisation case the aforesaid premise
in Gopalan was disapproved and; therefore, it no longer holds the field. Though
the Bank Nationalisation case dealt with in relation to Article 19 and 31, the
basic approach considering the fundamental rights guaranteed in-the different
provisions of the Constitution adopted in this case held the major 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.

760

Bank Nationalisation case. Later, in the case of Khundiran v. West Bengal(1), a
Bench of four Judges again erroneously stated that Gopalan's case had taken the
view that Article 22 was a complete Code. After referring to Bank
Nationalisation case and S. N. Sarkar's and to the case of H. Saha v. State of
West Bengal(2) the Court regarded the question as concluded and a final seal put
on this controversy and hold'that in view of the decision, it is not open to any
one now to contend that the law of preventive detention which falls in Article
22 does not have to meet the requirement of Art. 14 or Art. 19."

In Additional District Magistrate v. S. S. Shukla,(3) the locus standi to move a
habeas corpus petition under Article 226 of the Constitution of India while the
Presidential order dated 27th June, 1975 was in force fell to be considered. The
Court while holding that the remedy by way of writ petition to challenge the
legality of an order of detention under the Maintenance of Internal Security Act
is not open to a detenu during the emergency, had occasion to consider the
observations made by the majority in Bank Nationalisation case regarding the
application of Art. 21 of the Constitution of India. Chief Justice Ray, at page
230 held :

       "Article 21 is our rule of law regarding life and liberty. No, other rule
of law can have separate existence as a distinct right. The negative language of
fundamental right incorporated in Part III imposes limitations on the power of
the State and declares the corresponding guarantee of the individual to that
fundamental right. The limitation and guarantee are complimentary. The
limitation of State action embodied in a fundamental right couched in negative
form is the measure of the protection of the individual."

After quoting with approval the view held in Kharak Singh's case that ,personal
liberty in Art. 21 includes all varieties of rights which go to make personal
liberty other than those in Art. 19(1), the learned Judge observed that the Bank
Nationalisation case merely brings in the concept of reasonable restriction in
the law. Justice Beg, as he then was, considered this aspect a little more
elaborately at page 322. After referring to the passage in Bank Nationalisation
case the learned Judge observed : "It seems to me 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 the validity of 'law' for the acquisition of property
solely with reference to the provisions of Art. 31. The question under
consideration in that case was whether Articles 19 (1) (f) and 31 (2) are
mutually exclusive."

The learned Judge did not understand the Cooper's case as holding that effect of
deprivation of rights outside Art. 21 will also have to

(1) [1975] 2 S.C.C. 81.

(2) [1975] 1 S.C.R. 778.

(3) [1976] Supp. S.C.R. 172.

761

be considered. Justice Chandrachud understood the decision in Bank
Nationalisation case as holding that Art. 21 and Art. 19 cannot be treated as
mutually exclusive. Justice Bhagwati at page 433 of the reports took the view
that in view of the decision of this Court in Cooper's case the minority view in
Kharak Singh's case that the law under Art. 21 must also satisfy the test laid
down in Art. 19(1) so far the attributes covered by Art. 19(1) are concerned was
approved. It is seen that the view taken in the Bank Nationalisation case that a
law relating to deprivation of life and personal liberty falling under Art. 21
has to meet the requirements of Art. 19 is due to an error in proceeding on the
basis that the majority Court in Gopalan's case held that Article 22 was a self
contained code. The decisions which followed Bank Nationalisation case, namely,
the case of S. N. Sarkar v. West Bengal and Khundiram v. West Bengal, H. Saha v.
West Bengal, suffer from the same infirmity. With respect I agree with the view
expressed by Chief Justice Ray and Justice Beg, as be then was, in Shukla's
case.

Next to Bank Nationalisation case 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 and circulation. Holding that the machinery
of import control cannot be utilised to control or curb circulation or growth of
freedom of newspapers 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 a newspaper control. The, Court held that the Newsprint Control Policy
is found to be Newspaper Control Order in the, guise of framing an import
control policy fog newsprint. As the direct operation 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 and substance It may be noted that in
Bennet Colomon's case the question whether Articles 21 and 19 are mutually
exclusive or not did not arise for consideration 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 expression.

Whether the pith and substance doctrine is relevant in considering the question
of infringement 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 subject matter and of direct 762

and of incidental effect of the legislation are relevant to question of
legislative competence but they are irrelevant to the question of infringement
of fundamental rights. In our view this is a 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 the question of infringement of fundamental right.

The Court at page 781 said : "by direct operation is meant the direct
consequence or effect of the Act upon the rights and quoted with approval the
test laid down by the Privy Council in Commonwealth of Australia v. Bank of New
South Wales.(1)

In deciding whether the Act has got a direct operation of any rights upon the
fundamental rights, the two tests are, therefore, relevant and applicable. These
tests have been applied in several cases before the decision in Bank
Nationalisation case. A reference has been made to the decision of Express
Newspapers (P) Ltd. and Anr. V. Union of India,(2) where the test laid down was
that there must be a direct and inevitable consequence of the legislation. In
Hamdard Dawakhana v. Union of, India(3) this Court followed the test laid down
in Express Newspapers case. The Court expressed its view that it is not the form
or incidental infringement that determine constitutionality of a statute but
reality and substance' In Sakal Papers (P) Ltd. v. Union of India(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 manner
and 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 the 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's case as pointed above.

The view that pith and substance rule is not confined in resolving conflicts
between legislative powers is made clear in the decision of the Federal Court in
Subramaniam Chettiar's case,(5) where Vardachariar, J. after referring briefly
to the decision of Gallagher V. Lynn,(6) held that "They need not be limited to
any special system of federal constitution is made clear by the fact hat in
Gallagher V. Lynn, Lord Atkin applied pith and substance rule when dealing with
a question arising under the Government of Ireland Act which did not embody a
federal system at all." (1) [1950] 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 Court Reports 188.

(6) [1937] A. C. 863.

763

The passport Act provides for issue of passports and travel documents for
regulating the departure from India of citizens of India and other persons. If
the provisions comply with the requirements of Article 2 1, that is, if they
comply with the procedure established by law the validity of the Act cannot be
challenged. If incidentally the Act infringes on the rights of a 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 detention 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
whether it directly and immediately infringes on any of the fundamental right of
the petitioner. If a passport is refused according to procedure established by
law, the plea that his other fundamental rights are denied cannot be raised if
they are not directly infringed.

The decisions of the Supreme Court wherein the right of person to travel abroad
has been dealt with may be noticed. In Satwant Singh v. Assistant Passport
Officer, Delhi(1) the Court held that though a passport was not required for
leaving, for practical purposes no one can leave or enter into India without a
passport. Therefore, a passport is essential for leaving and entering India. The
Court held the right to travel is part of personal liberty and a person could
not be deprived of it except according to the procedure laid down by law. The
view taken by the majority was that the expression "personal liberty" in Article
21 only excludes the ingredients of liberty enshrined in Art. 19 of the
Constitution and the exression 'personal liberty' would take in the right to
travel abroad. This right to travel abroad is not absolute and is liable to be
restricted according to the procedure established by law. The decision has made
it clear that "personal liberty" is 'not one of the rights secured under Article
19 and, therefore, liable to be restricted by the legislature according to the
procedure established by law. The right of an American citizen to travel is
recognised. In Kent v. Dulles,(2) the Court observed that the right to travel is
a part of the 'liberty' of which the citizen cannot be deprived without due
process of law under the Fifth Amendment. "The freedom of movement across the
frontiers in either direction, and inside frontiers as well, as a 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 movement is basic in our scheme of values." In a subsequent decision
--Zemel v. Rusk(3) the Court sustained against due process attacks the
Government's refusal to issue passports for travel to Ouba because the refusal
was grounded on foreign policy considerations affecting all citizens. "The
requirements of due process are a function not only of the extent of the
governmental restriction imposed, but also of the extent of the necessity for
the restriction."

(1) [1967] 2 S.C.R. 525.

(2) 357 U. S. page 116, at page 127 (1958). (3) 381 U.S. (1) at page 14.

764

       (The Constitution of the United States of America-Analysis and
interpretation-at page 1171)

In Herbert Aptheker etc. v. Secretary of State,(1) the Court struck down a
congressional prohibition of international travel by members of the Communist
Party. In a subsequent decision the Court upheld the Government's refusal to
issue passports for travel to Cuba, because the refusal was on foreign policy
consideration affecting all citizens [Zenel 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 established by law'. It will be necessary to consider whether the
impugned Act, Passport Act satisfies the requirements of procedure established
by law. 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 [(A. K. Gopalan v. State of Madras) (1) observations of Mahajan, J.].
There must be some procedure and at least it must confirm to the procedure
established by law must be taken to mean as the ordinary and well established
criminal procedure, that is to say, those settled usages and normal modes of
proceedings, sanctioned by the Criminal Procedure Code which is a general law of
Criminal procedure in the Country. But as it is accepted that procedure
established by law refers to statute law and as the legislature is competent to
change the procedure the procedure as envisaged in the criminal procedure cannot
be insisted upon as the legislature can modify the procedure. The Supreme Court
held in Kartar Singh's case(3) that Regulation 236 clause (b) of the U.P. Police
Regulation which authorises domiciliary visits when 'there was no law on such a
regulation, violated Article 21. I will not proceed to examine the provisions of
Passport Act, Act 15 of 1967, to determine whether the Provisions of the Act are
in accordance with the procedure established by law.

The Preamble states that the Act is to provide for the issue of passports and
travel documents to regulate the departure from India of citizens of India and
other persons and for matters incidental or ancillary thereto. It may be
remembered that this Act was passed after the Supreme Court had held in Satwant
Singh V. Union of India'(1) that the right to tavel abroad is a part of person's
personal liberty of which he could not be deprived except in accordance with the
procedure established by law in terms of Article 21 of the Constitution. The
legislature came forward with this enactment prescribing the procedure for issue
of passports for regulating the departure from India of citizens and others.

(1) 378 U.S. 500.

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

(3) [1963] 1 S.C.R. 332.

(4) [1967] 3 S.C.R. 525.

765

Section 5 of the Act provides for applying for passports or travel documents
etc. and the procedure for passing orders thereon. On receipt of an application
under sub-section (2) the passport authority may issue a passport or a travel
document with endorsement in respect of the foreign countries specified in the
application or issue of a pass- port or travel document with endorsement in
respect of some foreign countries and refuse to make an endorsement in respect
of other countries or to refuse to issue a 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 a passport or a travel document or refusal of endorsement, the
authority is required to record in writing a brief statement of its reasons and
furnish to that person, on demand, a copy thereof unless the authority for
reasons specified in sub- section (3) refuses to furnish a 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 provides that every
passport shall be renewable for the same period for which the passport was
originally issued unless the passport authority for reasons to be recorded in
witing otherwise determines.

Section 10 is most important as the impounding of the passport ,of the
petitioner was ordered under section 10(3) (c) of the Act. Section 10(1) enables
the passport authority to vary or cancel the endorsement on a passport or travel
document or may with the previous approval of the Central Government, vary or
cancel the conditions subject to which a passport or travel document has been
issued, and require- the holder of a passport or a travel document by notice in
writing, 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 bolder of a passport
or a travel document to vary or cancel the conditions 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 a passport or travel document,-

       (a) If the passport authority is satisfied that the holder of the
passport or travel document is in wrongful possession of;

       (b) If the passport or travel document was obtained by the suppression of
material information or on the basis of wrong information provided by the holder
of the passpot or travel document or any other person on his behalf;

       (c) If the passport authority deems it necessary so to do in the
interests of the sovereignity and integrity of India, the security of India,
friendly relations of India with any foreign country, or in the interests of the
general public;

766

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

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

       (f) If any of the conditions of the passport or travel document has been
contravened;

       (g) If the holder of the passport or travel document has failed to comply
with a notice under sub-section (1)requiring him to deliver up the same.

       (b) If it is brought to the notice of the passport authority that a
warrant or summons for the appearance or a warrant for the arrest, of the holder
of the passport or travel document has been issued by a 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 authority is satisfied that a 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 public.

Section 10(5) requires the passport authority to record in writing a brief
statement of the reasons for making an order under sub-section (1) or(3) and to
furnish the holder of the passport on demand a 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, the, security of India,
friendly relations of India with any foreign country or in the interests of the
general public to furnish such a copy. Section 11 provides for an appeal by the
aggrieved person against any order passed by the passport authority under
several clauses mentioned in sub- section (1) of that section. It is also
provided that no appeal shall lie against any order passed by the Central
Government. Section 11(5) provided that in disposing of an appeal, the appellate
authority shall follow such procedure as may be prescribed and that no appeal
shall be disposed of unless the appellant has been given a reasonable
opportunity of representing his case. Rue 14 of the Passport Rules, 1967
prescribes that the appellate authority may call for the records of the case
from the authority who passed the order

767

appealed against and after giving the appellant a reasonable opportunity of
representing his case pass final orders. To sum up under section 10(3) (c) if
the passport authority deems it necessary so to do for reasons stated in the
subsection, he may impound a passport. He is required to record in writing a
brief statement of 'the reasons for making such order and to furnish a copy of
the order on demand unless in any case he thinks for reasons mentioned in sub-
section (5) that a copy should not be. furnished. Except against an order passed
by the Central Government the aggrieved person has a right of appeal. The
appellate authority is required to give a reasonable opportunity to the
aggrieved person of representing his case. It was submitted on behalf of the
petitioner that on a reading of section 10(3) observance of rules of natural
justice, namely the right to be heard, is implied and as the Government had
failed to give an opportunity to the petitioner to explain her case the order is
unsustainable. In the alternative it was submitted that if section 10(3) (c) is
construed as denying the petitioner an opportunity of being heard and by the
provisions of section 11 a right of appeal against an order passed by the
Central Government is denied the provisions will not be procedure as established
by law under Article 21 and the 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 a passport in the interests of general public is very
vague and in the absence of proper guidance an order by the authority impounding
the passport "in the interests 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 a 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 reasons given have
annexus to the interests of general public would depend upon the facts of each
case. The plea that because of the vagueness of the words 'interests of the
general public' in the order, the order itself is unsustainable, cannot be
accepted.

The submission that in the context the rule of natural justice, that is, the
right to be beard has not been expressly or by necessary implication taken away
deserves careful consideration. Under Section 10(3) the passport authority is
authorised to impound or revoke a passport on any of the grounds specified in
clauses (a) to (h) of sub- section (3). Sub-section 3(a) enables the authority
to impound a passport if the bolder of the passport is in wrongful possession
thereof. Under sub-section 3(b) the authority can impound a passport if it was
obtained by the suppression of material information or on the basis of wrong
information provided by the holder of the passport. Under clause (d) a passport
can be impounded if the holder bad been convicted by a Court of India for any
offence involving moral turpitude and sentenced to imprisonment for not less
than two years. Under clause (e) the passport can be impounded where

768

proceedings in respect of an offence alleged to have been committed by the
holder of a passport is pending before a criminal court in India. Clause (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 a notice under sub-
section (1) requiring him to deliver up the same. Under sub-clause (h) a
passport may be impounded if it is brought to the notice of the passport
authority that a warrant or summons for appearance of the holder of the passport
has been issued by any court or if there is an order prohibiting departure from
India of the holder of the passport has been made by a court. It will be noticed
that when action is contemplated under any of the clauses (a), (b), (d), (e),
(f) and (h), it is presumed that the authority will give notice, for the
passport authority cannot be satisfied under sub-clause (a) that the holder is
in wrongful possession thereof or under clause (b) that he obtained the passport
by suppression of material information. Similarly under clause (d) whether a
person has been convicted by a court in India for any offence involving moral
turpitude and sentenced to imprisonment for not less than two years, can only be
ascertained after hearing the holder of the passport. Under clause (e) the fact
whether proceedings in respect of an offence alleged to have been committed by
the holder of the passport are pending before a criminal court can only be
determined after notice to him. Equally whether a condition of passport has been
contravened under sub-clause (f) or whether he has failed to comply with a
notice under sub- section (1) can be ascertained only after hearing the holder
of the passport. Under clause (h) also a hearing of the holder of the passport
is presumed. Reading clause (c) in juxtaposition with other 'Sub-clauses, it
will have to determined whether it was the intention of the legislature to
deprive a 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 a person the right to be heard. Rules of
natural justice cannot be equated with the Fundamental Rights. As held by the
Supreme Court in Union of India v. J. N. Sinha,(1) that "Rules of natural
justice are not embodied rules nor can they be elevated to the position of
Fundamental Rights. Their aim is to secure justice or to prevent miscarriage of
justice.These rules can operate only in areas not covered by any law validly
made. They do not supplant the law but supplement it. If a statutory provision
can be read consistently With the principles of natural justice, the courts
should do 'so. But if a statutory provision either specifically 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 concerned provision the principles of natural justice." So
also the right to be heard cannot be presumed when in the circumstances of the
case there is paramount need for secrecy or when a decision will have to be
taken in emergency or when promptness of action is called for where delay would
defeat the very purpose or where it is expected (1) [1971] 1 S.C.R. 791.

769

that the person affected would take an obstructive attitude. To a limited extent
it may be necessary te rovoke or to impound a passport without notice if 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 by itself would not
justify denial of an opportunity to the holder of the passport to state his case
before a 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 a
brief statement of reasons and furnish a copy to the holder of the passport on
demand unless he for sufficient reasons considers it not desirable to furnish a
copy. An order thus passed is subject to an appeal where an appellate authority
is required to give a reasonable opportunity to the holder of the passport to
put forward his case. When an appeal has to be disposed of after given for a
specified period the revocation or impounding during the without hearing the
aggrieved person. Further when a passport is given for a specified period the
revocation or impounding during the period when the passport is valid can only
be done for some valid reason. There is a difference between an authority
revoking or modifying an order already passed in favour of a person and
initially refusing to grant a licence. In Purtabpur Co. v. Cane Commissioner,
Bihar,(1) the Supreme Court held that "it would not be proper to equate an order
revoking or modifying a licence with, a decision not to grant a licence." In
Schmidt v. Secretary of State, Home Affairs,(2) Lord Denning observed that "If
his permit (alien) is revoked before the time limit expires he ought, I think,
to be given an opportunity of making representation; for he would have a
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 a foreign alien who had no right to enter the country. When a 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 the
normal presumption is that the action will not be taken without giving a
opportunity to the holder of the passport. Section 10(3) in enumerating the
several grounds on which the passport authority may impound a passport has used
the words like 'if the authority is satisfied', "the authority deems it
necessary to do so." The Privy Council in Durav- appah V. Fernando(3) after
referring to an earlier decision in Sugathadasa v. Jayasinghe(4) disagreed with
the decision holding "As a general rule that words such as 'where it appears to
. . . .' or 'if 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 a duty
to act judicially." The Privy Council in disagreeing with this approach observed

(1) [1960] 2 S.C.R. 807.

(2) [1969] 2 Ch. 149.

(3) [1967] 2 A. C. 337,

(4) [1958] 59 N.L.R. 457.

770

that these various formulae are introductory of the matter to be considered and
are given little guidance upon the question of audi alteram 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(1) 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 expressly or by necessary implication by the
statute. I may at this stage refer to the stand taken by the learned Attorney-
General on this question. According to him "on a true construction, the rule
audi alteram partenm is not excluded in ordinary cases and that the correct
position is laid down by the Bombay High Court in the case of Minoo Maneckshaw
v. Union of India.( 2 ) The view taken by Tulzapurkar, J. is that the rule of
audi alteram partem is not excluded in making an order under sec. 10(3) (c) of
the Act. But the Attorney General in making the concession submitted that the
rule will not apply when special circumstances exist such as need for taking
prompt action due to the urgency of the situation or where the grant of
opportunity would defeat the very object for which the action of impounding is
to be taken. This position is supported by the decision of Privy Council in De
Verteuil v. Knaggs,(3) wherein it was stated 'it must, however, be borne in mind
that there may be special circumstances which would satisfy a Governor, acting
in good faith, to take action even if be did not give an opportunity to the
person affected to make any relevant statement, or to correct or controvert any
relevant statement brought forward to his prejudice." This extraordinary step
can be taken by the passport authority for impounding or revoking a passport
when he apprehends that the passport holder may leave the country and as such
prompt action is essential. These observations would justify the authority to
impound the passport 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 beard. I am satisfied that the petitioner's claim that she has a right to
be heard before a 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 subclause 10(3) (c)
is on the subjective satisfaction of the passport authority and that as the
decision is purely 'administrative in character it cannot be questioned in a
court of law except on very limited grounds. Though the courts had taken the
view that the principle of natural justice is inapplicable to administrative
orders, there 'is a change in the judicial opinion subsequently. The frontier
between judicial or

(1) 1723 1 Str. 557 ; Mod. Rep. 148.

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

(3) [1918] A. C 557

771

quasi judicial determination on the one hand and an executive or administrative
determination on the other has become blurred. The rigid view that 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 convenience 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 a caution that the principle 'should not be 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 Norfolk(1) "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 a 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-ruled 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 tight to come in, but they have a right to be heard. The Court held in
construing the words the Board "Shall have regard only" to the matter specified,
the Board has a duty to act fairly and it must give the applicant an opportunity
of satisfying them of the matter specified in the section. They must let him
know what their impressions are so that he can disabuse them. The reference to
the cases of immigrants is to the decisions of Chief Justice Parker in Re H. K.
(An infant)(1). In cases of immigrants though they had no right to come into the
country it was held that they have a right to be heard. These observations apply
to the present case and the plea of the petitioner that the authority should act
fairly and that they must let her know what their impressions are so that, if
possible, she can disabuse them, is sound. In American law also the decisions
regarding the scope of judicial review is not uniform. So far as constitutional
rights are involved due process of law imports a judicial review of the action
of administrative or executive officers. This proposition 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 a highly
controversial issue. (Constitution of the United States of America, P. 1152,
1973 Ed.)

On a consideration of various authorities it is clear that where the decision of
the authority entails civil consequences and the petition is

(1) [1949] 1 All E.R.109,118.

(2) [1970] 2 Q.B. 417.

(3) [1964] A.C. 40

(4) [1967] 2 Q.B.617, at 630.

772

prejudicially affected he must be given an opportunity to, be heard and present
his case. This Court in Barium Chemicals Ltd. v. Company Law Board(1) and Rohtas
Industries Ltd. v. S. D. Agrawal,(2) has held that a limited judicial scrutiny
of the impugned decision on the point of rational and reasonable nexus was open
to a court of law. An order passed by an authority based on subjective
satisfaction is liable to judicial scrutiny to a limited extent has been laid
down in U.P. Electric Co. v. State of U.P.(3) wherein construing the provisions
of s. 3(2)(e) of the Indian Electricity Act 9 of 1910 as amended by the U.P. Act
30 of 1961, where the language used 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 "deems such supply necessary in public interest" if challenged, the
Government must make out that exercise of the power was necessary in the public
interest. The Court is not intended to sit in appeal over the satisfaction of
the Government. If there is prima facie evidence on which a 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 are clear authority for the proposition that the order passed
under s. 10(3) (c) is subject to a 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 authority cannot escape judicial scrutiny. The
Attorney General fairly conceded that an order under S. 10 (3) (c) is subject to
a judicial scrutiny and that it can be looked into by the court to the limited
extent of satisfying itself whether the order passed has a rational and
reasonable nexus to the interests of the general public.

It was next contended on behalf of the petitioner that the provisions of s.
10(5) of the Act which empowers the Passport authority or the Government to
decline furnishing the holder of the passport a brief statement of the reasons
for making an order if the authority is of the opinion that it will not be in
the interest of sovereignty and integrity of India, security of India, friendly
relations of India with any foreign country, or in the interests of the general
public is unsustainable in law. It was submitted that along with the right to
refuse to furnish a copy of the order made by the Government, as a right of
appeal is denied against an order made by the Central Govt. the provisions
should be regarded as. total denial or procedure and arbitrary. In view of the
construction which is placed on S. 10(3) (c) that the holder of the passport is
entitled to be heard before the passport authority deems it necessary to impound
a passport, it cannot be said that there is total denial of procedure. The
authority under s. 10(5) is bound to record in writing a brief statement of the
reasons for making an order and furnish to the holder of the passport or travel
docu-

(1) [1966] Sup. S.C.R. 31 1.

(2) [1969] 3 S.C.R. 108

(3) [1969] 3 S.C.R. 865.

773

ment on demand a 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, the security of India, friendly relation of India with any
foreign country or in the interests of general public to furnish such a copy.
The grounds on which the authority may refuse to furnish the reasons are the
same as provided in s. 10 (3)(c) for impounding a passport but the two powers
are exercisable in totally different contexts. Under sec. 10(3), the question
that has to be considered is whether the passport has to be impounded in the
interests of sovereignty and integrity of India etc. or in the interests of
general public. In passing an order under sec. 10(5) it has to be considered
whether in the interests of the sovereignty and integrity of India etc. or in
the interests of general public, furnishing of a copy of the reasons for the
order, should be declined. Though the same grounds are mentioned for impounding
a passport as well as for refusing to furnish the reasons for making an order,
it would 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
decline to furnish the reasons for the order. S. 10(5) says that the authority
shall furnish to the holder of the passport on demand a copy unless in any case
the authority it 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 authority can decline to furnish reasons
for the order. There may be some, cases, and I feel that it can be only in very
rare cases, that a copy containing the reasons for making such order can be
refused. Though rare there may be some cases in which: it would be, expedient
for the authority to decline to furnish a copy of the reasons for making such
order. But that could only be an exception is indicated from the fact that the
aggrieved person has a right of appeal under s. 1 1 which has to be decided
after giving a reasonable opportunity of representing his case. A reasonable
opportunity cannot Ordinarily be given without disclosing to that person the
reasons for the order. In those rare ,cases in which a copy for the reasons of
the order is declined by the passport authority and is not furnished during the
hearing of the appeal, it would furnish sufficient justification for the courts
to have a close look into the reasons for the order and satisfy itself whether
it has been properly made. But I am unable to, say that a provision which
empowers the authority to decline to furnish reasons for making the order is not
within the competence of the legislature. The learned counsel for the
petitioner, with some justification, submitted that if no reasons we furnished
by the Govt. and no appeal is provided against the order of the Govt. it would
virtually amount to denial of procedure established by law as contemplated under
Art. 21 of the ,Constitution of India. Though there is considerable force in
this submission. I am unable to accept this plea for two reasons. Firstly, the
Govt. is bound to give an opportunity to the holder of the passport before
finally revoking or impounding it. I expect the case in which the authority
declines to furnish reasons for making such an order would be extremely rare. In
such cases it should be born in mind that when the Govt. itself passes an order
it should be presumed that it would have made the order after careful scrutiny.
If an order is passed

11-119 SCI/79

774

by the passport authority, an appeal is provided. If the Govt. passes an order,
though no appeal is provided for, but as the power is vested in the highest
authority the section is not unconstitutional--(Chinta Lingam and Ors. v.
Government of India & ors.(1) for the order would be subject to judicial
scrutiny by the High Court and the Supreme Court. I feel that in the
circumstances there is no justification for holding that S. 10(5) of the Act is
ultra vires of the powers of the legislature. We have taken note of the fact
that in the present case there is no reason in declining to furnish to the
petitioner the statement of reasons for impounding the passport but such a lapse
by the authority would not make sec. 10(5) ultra vires of the powers of the
legislature.

It was next contended that in the present case the passport was impounded under
S. 10(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. Maneka Gandhi should have an opportunity to present
her views before the Commission of Inquiry and according to a report received
there is likelihood of Smt. Maneka Gandhi leaving India. It was submitted that
impounding of the passport on the ground stated above is unjustified. Referring
to S. 10(3) (h) where it is provided that when it is brought to the notice of
the passport authority that a warrant or summons for appearance or a warrant for
the arrest of the holder of the passport has been issued by a 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 authority is satisfied that a warrant or summons
has been so issued or an order has been so made, impound the passport. For
application of this clause there must be a warrant or summons from the court or
an order by the Court prohibiting the departure from India. It was submitted
that it is not certain whether the Commission would require the presence of the
petitioner at all and if required. when her. presence will be necessary. There
had been no summons or any requisition from the Commission of Inquiry requiring
'the petitioner's presence and in such circumstances it was submitted that the
order is without any justification. A notification issued by the Ministry of
External Affairs under s. 22(a) of the Passports Act on 14-4-76 was brought to
our notice. By that notification the Central Govt. considered that it is
necessary in the public interest to exempt citizens of India against whom
proceedings in respect of an offence alleged to have been committed by them are
pending before a criminal court in India and if they produce orders from the
Court concerned permitting them to depart from India from the operations of the
provisions of clause (f) of sub-section (2) of s. 6 of the Act subject to the
condition that the passport will be issued to such citizen only for, a period
specified in such order of the Court and if no period is.specified the passport
shall be issued for a period of six months and may be renewed for a further
period of six months if the order of the

(1) [1971] 2 S.C.R. 871 at p. 876.

775

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 continuance in force of the
passport so issued. It was submitted that when such facility is provided for a
person who is being tried for an offence in a criminal court the same facility
at least should be given to a 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 justified or not
for the' learned Attorney General submitted that the im- pounding was for the
purpose of preventing the petitioner from leaving the country and that a final
decision-as to whether the passport will have to be impounded and if so for what
period will be decided later. On behalf of the Government a statement was filed
which is as follows "1. The Government is agreeable to considering any
representation 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 is clarified that in th e

       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.

       3. In the event of the decision of impounding the passing having
confirmed, it is clarified that the duration of the impounding will not exceed a
period of six months from the date of the decision that may be taken on the
petitioner's representation.

       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 provisions of
the Passport Act in respect of the petitioner's passport."

In view of the statement that the petitioner may make a representation 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 a period of six months from the date, of the decision that
may be taken on the petitioner's repre- sentation, it is not necessary for me to
go into the merits of the case any further. The Attorney General assured us that
all the grounds

776

urged before us by the petitioner and the grounds that may be urged before the
authority will be properly considered by the authority and appropriate orders
passed. In the result, I hold that the petitioner is not entitled to any of the
fundamental rights enumerated-in Article 19 of the Constitution and that the
Passport Act complies with the requirements of Art. 21 of the Constitution and
is in accordance with the procedure established by law. I construe section
10(3)(c) as providing a right to the holder of the passport to be heard before
the passport authority and that any order passed under section 10(3) is subject
to a limited judicial scrutiny by the, High Court and the Supreme Court.

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

      ORDER

Having regard to the majority view, 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, accor