Section 3 of the Passports Act, 1967

Section 3 of the Passports Act, 1967: Regulating Departure from India and its Constitutional Dimensions

Introduction

The Passports Act, 1967 (hereinafter "the Act") is the principal legislation in India governing the issuance of passports and travel documents, and regulating the departure of persons from India. At the heart of this regulatory framework for outbound international travel lies Section 3 of the Act. This provision mandates that no person shall depart, or attempt to depart, from India unless he or she holds a valid passport or travel document. This article seeks to provide a comprehensive analysis of Section 3, exploring its legislative intent, its interplay with fundamental rights, its relationship with other provisions of the Act, and its interpretation by the Indian judiciary. The analysis draws upon key statutory provisions and landmark judicial pronouncements that have shaped the understanding and application of this crucial section.

The Legislative Mandate of Section 3, Passports Act, 1967

Section 3 of the Passports Act, 1967, lays down the fundamental requirement for international travel from India. As articulated in Suman Sehgal v. Union Of India & Anr[1], Section 3 states:

“3. Passport or travel document for departure from India:—No person shall depart from, or attempt to depart, India unless he holds in this behalf a valid passport or travel document.
Explanation:—For the purpose of this Section- “passport” includes a passport which having been issued by or under the authority of the Government of a foreign country satisfied the conditions prescribed under the Passport (Entry into India) Act, 1920 (34 of 1920), in respect of the class of passports to which it belongs;”

The provision is unequivocal: a valid passport or travel document is a sine qua non for any person seeking to leave the territory of India. The Explanation clarifies that for the purpose of departure, a foreign-issued passport can also be considered valid if it meets the criteria under the Passport (Entry into India) Act, 1920, for entry purposes. This ensures that foreign nationals departing India are also covered, provided their travel documents are in order.

It is pertinent to distinguish Section 3 of the 1967 Act, which governs departure from India, from provisions concerning entry into India, primarily regulated by the Passport (Entry into India) Act, 1920, and the rules made thereunder. As noted in V.G. Row v. State Of Madras[2], the object of the 1920 Act was "to take power to require passports of persons entering British India," and Section 3 of that Act empowered the Central Government to make rules requiring persons entering India to possess passports. Cases like Chhanga Khan v. State[3] and Mst. Bashiran v. State[4] further clarified that Rule 3 of the Indian Passport Rules (likely made under the 1920 Act) targeted unlawful entry into India, and could not be invoked for merely overstaying in India if the passport itself was valid, even if the visa had expired. These older cases highlight the distinct regulatory spheres of entry and departure, with Section 3 of the 1967 Act specifically and unambiguously addressing the latter.

Constitutional Moorings: The Right to Travel Abroad and Section 3

The requirement stipulated in Section 3 of the Act must be understood in the context of the fundamental right to travel abroad, which has been recognized by the Supreme Court of India as an integral part of "personal liberty" under Article 21 of the Constitution. In the landmark case of Satwant Singh Sawhney v. D. Ramarathnam[5], the Supreme Court held that the right to travel abroad is a fundamental right and that the refusal to issue a passport, which is essential for such travel, infringes upon this right. The Court emphasized that personal liberty includes the right to travel abroad and that any deprivation of this right must follow a procedure established by law.[6]

Subsequently, in Maneka Gandhi v. Union Of India And Another[7], the Supreme Court expanded the horizons of Article 21, holding that the "procedure established by law" must be fair, just, and reasonable, and not arbitrary, fanciful, or oppressive. The Court reiterated that the right to travel abroad is a fundamental right. Section 3 of the Passports Act, 1967, by mandating a passport for departure, forms part of this "procedure established by law." It regulates the exercise of the right to travel abroad, ensuring that such travel is undertaken with valid documentation recognized by the Indian government and international conventions.

Thus, Section 3 does not, in itself, abrogate the fundamental right to travel abroad but provides a statutory condition for its exercise. The legitimacy of this condition is intrinsically linked to the fairness and lawfulness of the processes governing the issuance, refusal, impounding, or revocation of passports, as provided under other sections of the Act.

Interplay with Other Provisions of the Passports Act, 1967

Section 3 does not operate in isolation. Its enforcement and an individual's ability to comply with its mandate are directly dependent on several other provisions of the Passports Act, 1967:

  • Section 5 (Application for passports, travel documents, etc.): This section lays down the procedure for applying for a passport or travel document. As detailed in Ravindra Nath Bhargav v. State Of U.P.[8], upon receiving an application, the passport authority, after necessary inquiry, shall issue or refuse the passport, recording reasons for refusal. The ability to obtain a passport under Section 5 is a prerequisite to fulfilling the requirement of Section 3. The Madras High Court in Venkatesh Kandasamy v. Government Of India[9] and Ashok Muthana v. Regional Passport Officer[10] also elaborated on the powers of the Passport Authority under Section 5(2)(c) to refuse a passport, which must be accompanied by a written statement of reasons as per Section 5(3).
  • Section 6 (Refusal of passports, travel documents, etc.): This section enumerates the grounds on which a passport authority shall refuse to issue a passport or travel document. These grounds include, inter alia, the applicant not being a citizen of India, potential engagement in activities prejudicial to the sovereignty, integrity, or security of India, or the pendency of criminal proceedings against the applicant (Section 6(2)(f)).[11] As discussed in C.Mathiyarasan v. The Regional Passport Officer[12], the power to refuse under Section 5(2)(c) is governed by the conditions in Section 6(2). If a passport is lawfully refused under Section 6, the individual cannot comply with Section 3. The judiciary has, however, scrutinized such refusals, as seen in Abdul Samad Wani And Another v. Union Of India And Others[13], where refusal based on the actions of a relative was deemed unjustified.
  • Section 10 (Variation, impounding and revocation of passports and travel documents): Even a validly issued passport can be impounded or revoked by the Passport Authority under certain conditions specified in Section 10, such as the pendency of criminal proceedings against the holder (Section 10(3)(e)).[14] The Supreme Court in Suresh Nanda v. Central Bureau Of Investigation[15] definitively held that the power to impound a passport vests exclusively with the Passport Authority under the Passports Act, 1967, and cannot be usurped by other agencies like the CBI using general powers under the Code of Criminal Procedure. Impoundment or revocation under Section 10 directly prevents an individual from departing India under Section 3. The Delhi High Court in Rohit Goswami Petitioner v. Ministry Of External Affairs And Anr. S[16] dealt with a challenge to passport revocation under Section 10(3)(c), emphasizing the need for adherence to due process.
  • Section 12 (Offences and penalties): Attempting to depart from India in contravention of Section 3 (i.e., without a valid passport) is an offence punishable under Section 12 of the Act. While the case of Khalil Ahmad And Anr. v. State Of U.P.[17] mentions acquittal under "section 3/12 of Passport Entry Into India Act, 1970" (likely a reference to Section 12 of the 1967 Act for contravention of its Section 3, or related entry provisions), it underscores that violations of passport regulations carry penal consequences. The power to impose penalties under Section 12 has also been a subject of judicial discussion regarding the appropriate authority.[18]

Enforcement and Restrictions on Departure

The mandate of Section 3 is primarily enforced by immigration authorities at ports of departure. Beyond the explicit provisions of the Passports Act, executive instruments like Look Out Circulars (LOCs) are also employed to prevent individuals from leaving the country. While an LOC does not invalidate a passport per se, it serves as an instruction to immigration authorities to deny departure, effectively enforcing Section 3 against persons who may be under investigation or are sought by law enforcement agencies. The Madras High Court in Karti P. Chidambaram Petitioner v. Bureau Of Immigration[19] scrutinized the issuance of an LOC, setting it aside due to the absence of prescribed conditions at the time of issuance, while clarifying that this did not impede ongoing criminal proceedings. Similarly, in Priya Parameswaran Pillai Petitioner v. Union Of India And Ors.[20], the Delhi High Court held an LOC issued to prevent an activist from travelling abroad to be illegal, reaffirming that the right to travel abroad is a fundamental right under Article 21 and restrictions must be reasonable and lawful.

These cases demonstrate that while Section 3 provides the legal basis for requiring a passport for departure, any associated measures restricting such departure must withstand judicial scrutiny for legality, fairness, and proportionality.

Judicial Interpretation and Safeguards

The Indian judiciary has played a pivotal role in interpreting Section 3 and its associated provisions, consistently balancing the state's regulatory power with individual fundamental rights. The courts have affirmed the necessity of a valid passport for international travel as mandated by Section 3. However, they have also ensured that the executive powers related to passport issuance, refusal, impounding, or revocation are exercised in conformity with the principles of natural justice, fairness, and non-arbitrariness, as enshrined in Articles 14 and 21 of the Constitution.[21]

The Supreme Court's ruling in Suresh Nanda[22] is particularly significant in establishing that the Passports Act, 1967, is a special enactment, and its provisions (specifically Section 10 regarding impoundment) override general provisions of other laws like the Code of Criminal Procedure concerning passports. This ensures that the document essential for compliance with Section 3 is not arbitrarily seized or retained outside the framework of the Act. The principle that mere pendency of a criminal case does not automatically disqualify a person from holding a passport, unless impounded under Section 10(3) of the Act, was reiterated in Rajashekar Reddy Donthula v. Government Of India And Another[23]. Courts have also directed renewal of passports for individuals facing criminal proceedings, often subject to obtaining a No Objection Certificate (NOC) from the concerned court, balancing the right to travel with the interests of justice.[24]

Conclusion

Section 3 of the Passports Act, 1967, serves as a fundamental legal checkpoint for all persons departing from India. It embodies the state's sovereign power to regulate the exit of individuals from its territory by mandating the possession of a valid passport or travel document. While this provision acts as a regulatory measure on the fundamental right to travel abroad, its application is circumscribed by the constitutional guarantees of personal liberty and equality, and the procedural safeguards embedded within the Passports Act itself. The judiciary has consistently interpreted Section 3 and its allied provisions to ensure that the executive exercise of power in granting, refusing, or impounding passports remains fair, just, and reasonable. Consequently, Section 3 stands as a critical component of India's legal framework governing international travel, balancing individual rights with national interests and public order.

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