Maneka Gandhi case: The one on the right to travel abroad

Background :    

The Supreme Court in the case of  Satwant Singh Sawhney vs D. Ramarathnam[1] held that the right to travel abroad was well within the ambit of Article 21 of the Constitution of India. Therefore, to combat the above laid down law the Parliament enacted Passports Act 1967.

Passport Act, 1967 empowers the authorities to impound the passport of certain

individual if such action is necessary in the interest of sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or general public.[2]  The reasons of such impoundment are also to be communicated the affected party however in the interests of the general public these reasons can be withheld.[3]

In the present case, Maneka Gandhi, the petitioner, was issued a passport on 1st July, 1976 under the Passport Act 1967. The regional passport officer, New Delhi, issued a letter on 2nd July 1977 addressed to the petitioner, in which she was asked to surrender her passport under section 10(3)(c)of the Act in Public Interest, within seven days from the date of receipt of the letter. The petitioner immediately reverted back to the authorities seeking in return a copy of the statement of reasons for such order. However, the Government of India, Ministry of External Affairs refused to produce any such reason in the interest of general public. Later, a writ petition was filed by the petitioner under Article 32 of the Constitution in the Supreme Court challenging the order as violating her fundamental rights guaranteed under Article 21 of the Constitution.

Issues:

  1. Whether right to go abroad is a part of Right to Personal Liberty under Article 21.
  2. Whether the Passport Act prescribes a ‘procedure’ as required by Article 21 before depriving a person from the right guaranteed under the said article.
  • Whether section 10(3)(c) of the Passport Act violates Article 14,19(1) (a) and 21of the Constitution.
  • Whether the impugned order of the Regional passport officer is in contravention of the principle of natural justice.

Judgments :

  • To the extent to which Section 10(3)(c) of the Passport Act, 1967 authorises the passport authority to impound a passport “in the interest of the general public”, it does violate Article 14 of the Constitution since it confers vague and undefined power on the passport authority.
  • 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.
  • Section 10(3)(c) violates Article 21 of the Constitution since it does not prescribe ‘procedure’ within the meaning of that article and the procedure practiced is worst.
  • Section 10(3)(c) is 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).
  • A new doctrine of post decisional theory was evolved.

The court held that though the phrase used in Article 21 is “procedure established by law” instead of “due process of law” however, the procedure must be free from arbitrariness and irrationality. The court also managed to respect and protect the sanctity of the Constitution makers by this black stain that the legislature was trying to portray. The procedure established by law must satisfy certain requisites in the sense of being reasonable and just and it cannot be arbitrary depriving the citizens the Fundamental rights. The court also for once and for all rested the debate by holding that each Fundamental Rights are not distinct from each other whereas they are mutually dependent on each other.

Conclusion:

The court in Maneka Gandhi adopted the dissenting view of Justice Fazal Ali in A.K. Gopalan v. State of Madras[4] . It was overruled by stating that there is a unique relationship between the provisions of Article 14, 19 & 21 and every law must pass the tests of the said provisions. Therefore, the court held that the while the procedure established by law should be reasonable, just and fair it shall be free from any unreasonableness and arbitrariness.

The judgment saved the citizens from unquestionable actions of Executive, the sanctity of Parliamentary law when it did not strike down Section 10(3)(c) & 10(5) of 1967 Act. The court also reminded the authorities to only rarely use the prerogative of Section 10(5) so as to satisfy that their actions were rational and well thought. The court held that Section 10(3)(c) & 10(5) is an administrative order therefore, open to challenge on the grounds of malafide, unreasonable, denial of natural justice and ultra vires.

One of the significant interpretation in this case is the discovery of inter-connections between the three Articles- Article 14, 19 and 21. A law which prescribes a procedure for depriving a person of  “personal liberty” has to fulfill the requirements of Articles 14 and 19 also.

It was finally held by the court that the right to travel and go outside the country is included in the Right to Personal liberty guaranteed under Article 21. The Court ruled that the mere existence of an enabling law was not enough to restrain personal liberty. Such a law must also be “just, fair and reasonable”.

The judgment’s importance can be seen today also because the way in which the bench construed Article 21 and expanded its horizons has given way for the resolving of problems left unsolved by the Parliament. It’s quite evident that this judgment has played an imperative role in construing Right to clean Air, Right to Clean Water, Right to freedom from Noise Pollution, Speedy Trial, Standard Education, Fair Trial, Legal Aid, Right to Livelihood, Right to Food, Right to Medical Care, Right to Clean Environment etc., as a part of Right to Life & Personal liberty mentioned under Article 21.


[1] Satwant Singh Sawhney vs D. Ramarathnam,(1967) 3 S.C.R. 525

[2] Passport Act,1967, No. 15, Acts of Parliament, 1967 (India)

[3] Passport Act,1967, No. 15, Acts of Parliament, 1967 (India)

[4] A.K. Gopalan v. State of Madras,A.I.R. 1950 S.C. 27