Facts in Brief

The Petitioner was the holder of a passport issued to her under the Passports Act, 1967. She later received a letter from the Regional Passport Officer, Delhi, intimating that the Government of India had decided to impound her passport under Section 10(3)(c) of the Act in the public interest, and requiring her to surrender the passport. In reply, the Petitioner requested the Officer to furnish a copy of the statement of reasons for making the said order. The Ministry of External Affairs responded that the Government had decided “in the interest of the general public” not to furnish her a copy of the statement of reasons. The Petitioner thereupon filed the present petition, challenging the Government’s action in impounding her passport and declining to give reasons for doing so.

Arguments

The Government’s action was impugned on several grounds:

• The order passed against her was actuated by mala fides.
• Section 10(3)(c), insofar as it empowered the Passport Authority to impound a passport “in the interests of the general public,” was violative of the equality clause enshrined in Article 14 of the Constitution, as the condition “in the interests of the general public” limiting the exercise of the power was vague and undefined, and was therefore excessive and suffered from the vice of “over-breadth.”
• An order under Section 10(3)(c) impounding a passport could not be made without giving an opportunity to the holder of the passport to be heard in defence; since this was not done in the instant case, the order was null and void. Further, if 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 of arbitrariness and would be void as offending Article 14.
• The impounding of the passport was violative of the fundamental rights enshrined in Article 19(1)(a) and (g), insofar as the right to go abroad is read into the freedom of speech and expression, and the freedom of occupation or business, respectively.

Judgment

The conjoined reading of fundamental rights was upheld in the present case, as had been declined in Gopalan’s case, AIR 1950 SC 27. It was held that each Fundamental Right did not form a separate code, and thus a mere sufficing of an express right did not relax the test on other rights supplementing the case. Hence, mere satisfaction of procedure was not sufficient; rather, the principle of reasonableness — which, legally as well as philosophically, was an essential element of equality or non-arbitrariness — pervaded Article 14 like a brooding omnipresence. The procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14, and this led to the significance of the enshrinement of natural justice in such procedure. The Court went further to lay down the law that, as regards the test of applicability of the doctrine of natural justice, there could be no distinction between a quasi-judicial function and an administrative function for that purpose.

The Court held that as the law under Section 10(3) allowed the Central Government: (a) to take such action having no right of appeal; and (b) to curtail the right to seek reasons, under the law which provided for the passport authority to do so if it was of the opinion that it would 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 — hence, having followed the procedure established by law without any deviance, the implementation by the administrative body could not be challenged.

As regards the allegation of mala fides, it was held that as she was to be inquired before Commissions of Inquiry, and the Ministry had acted on confidential information of her leaving the country, such an order had to be moved. Discussing the concept further, the law enunciated was that merely because a statutory provision empowering an authority to 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 the 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.

The Court held that the right to go abroad was not covered by the rights guaranteed under Article 19(1)(a) and (g). The Court observed that the test to be applied in such cases was the “doctrine of direct and inevitable effect.” Thus, what was necessarily to be seen was:

“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.”

This being not established in the instant case, the Court held that the right to go abroad could not in all circumstances be regarded as included in the freedom of speech and expression.

For the Common Man

This judgment re-establishes that arbitrariness is the antithesis of the fundamental right of equality (under Article 14). It also establishes that the procedure spoken of in Article 21 ought to 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.