1. This Writ Petition raises a question of considerable importance. The question can be given two alternative formulations: Do the Government of India have an absolute and unfettered discretion to grant or refuse a passport to a citizen of India? Alternatively, does a citizen of India have no right to get a passport from the Government of India. It is common ground that the petitioner is a citizen of India. He says that he is a partner of a firm in Bombay which carries on the business of Bankers, Exporters and Importers, and also of a firm in Dubai, in the Persian Gulf, which carries on the business of Indent Agents and Importers. I am told that Dubai is part of a British protectorate. The petitioner claims, and this is not disputed, that passports were granted to him during the period from October 1952 and October 1962 to enable him to make trips to Dubai and certain ports in the Persian Gulf. The last passport issued in favour of the petitioner expired on 28th October, 1962. On 10th January, 1963 the petitioner applied to the Regional Passport Officer, who is the second respondent to this petition, for the grant of a new passport for a period of three years. That application was rejected by the second respondent on 24th May, 1963. The petitioner made some further efforts, but was informed by the Assistant Passport Officer, who is respondent No. 1 to this petition, by a letter dated 27th June, 1963 that his office had nothing to add to the previous letter of 24th May, 1963, and that the petitioner may appeal for a reconsideration of his case to the Chief Passport Officer, New Delhi. No reasons were communicated to the petitioner for the rejection of his application for a fresh passport. On these facts the petitioner filed this petition under Article 226 of the Constitution for an appropriate writ or direction to quash the order refusing to grant him a passport, and for a direction against the respondents requiring them to grant and issue to him a passport as applied for.
2. The petition is supported on three main grounds. It is alleged, firstly, that it is absolutely necessary for the petitioner to go abroad and to return to India for the purpose of his business, and that the refusal of the passport by the respondents amounts to a contravention of his fundamental right guaranteed by Article 21 of the Constitution. In this connection the petitioner says that it is not possible for him to leave India without a passport, because the Government of India have issued instructions to the Shipping and Air companies not to lake on board passengers leaving India without a valid passport, and also because, even if the petitioner were to go abroad without a passport, the entry into India without a passport is forbidden by law and involves penal consequences. The second ground of the petition is that the respondents' refusal to grant a passport to the petitioner amounts to an infringement of his right to enter India and to reside, settle and move freely in any part of India, and is, therefore, violative of the fundamental rights declared under Article 19(1)(d) and (e) of the Constitution. The petitioner claims, thirdly, that the refusal of a passport without assigning any reasons and without giving the petitioner any opportunity of being heard or of showing cause is arbitrary, that a number of passports have been given to various persons who are similarly situated as the petitioner, and that the refusal of a passport to the petitioner is a contravention of Article 14 of the Constitution, as it amounts to a discrimination against the petitioner.
3. An affidavit in reply to the petition was filed by the second respondent. He submits that by reason of the proclamation of Emergency, the petitioner is precluded by Article 358 of the Constitution from approaching the Court for an alleged breach of Article 19, lie further says that the petitioner's application for a fresh passport was rejected because he (the second respondent) received a communication from the Government of India, Ministry of External Affairs, dated 1st May, 1963, whereby he was directed to refuse passport facilities to the petitioner and to black-list his name for two years. He further says that the grant of a passport is within the absolute discretion of the Union of India, that there is no right in the petitioner to have a passport issued to him, and that there is no statutory obligation on the Union of India to issue a passport to the petitioner.
4. In view of the contents of this affidavit, the Union of India were added as the third respondents to the petition. On behalf of the third respondents an affidavit in reply to the petition has been filed by the Under Secretary to the Government of India in the Ministry of External Affairs. The affidavit says that there is no legal prohibition which prevents a citizen of India from going out of India without a passport, and that “the instructions of the Government of India to the Carriers and Travel Agencies which have been issued from time to time that they should not take on board passengers leaving India without valid passports, do not constitute any legal bar to a citizen leaving India without a passport”. The affidavit further says that the grant of a passport is within the absolute discretion of the Central Government, that there is no right in the petitioner to have a passport issued to him, and that “that refusal to grant the passport to the petitioner is a non-statutory administrative action” which is not subject to judicial review. The affidavit further says that as the refusal to grant a passport was an administrative act, no show-cause notice was required to be issued to the petitioner.
5. It is not disputed on behalf of the petitioner that the order rejecting his application for a passport was made when the Proclamation of Emergency by the President was in operation and that the provision of Article 358 of the Constitution precludes him from having recourse to Article 19 for the purpose of impugning that order Mr. Sorabjee who appeared on behalf of the petitioner, confined his arguments to the alleged contravention of Article 21 and Article 14.
6. A passport is an official document issued in the name of the head of a State, to a traveller for his safe passage to and protection in a foreign country, and is intended to be presented to a foreign Government for this purpose. R. v. Brailsford, (1905) 2 KB 730 at p. 745. It is clear that a passport is issued to a traveller by the Government of his own country. In India, a passport is now issued in the following form.
“These are to request and require in the name of the President of the Republic of India all those whom it may concern to allow the bearer to pass freely without let or hindrance, and to afford him or her every assistance, and protection of which he or she may stand in need”.
(Basil's Commentary on the Constitution of India, 4th Edition. Volume 5, page 371).
7. It is crucial to notice that the issue of a passport by the Government of India to a citizen of India is not regulated by any statute. However, the subject of passports and visas is included in Item 19 of List I (Union List) of the Seventh Schedule of the Constitution. Item 19 of List I reads:
“Admission into, and emigration and ex pulsion from, India; passports and visas.”
8. Article 73 of the Constitution defines the extent of the executive power of the Indian Union and provides, inter alia, that the executive power of the Union shall extend “to the matters with respect to which Parliament has power to make laws”. It follows that, although the issue of passports by the Union Government is not regulated by any statute, the function of issuing passports is vested in the Indian Union.
9. A reference may next be made to the Indian Passport Act, 1920, and the Indian Passport Rules, 1950, issued thereunder. It is evident from the preamble of the Act that its purpose was to provide for a statutory requirement that persons desiring to enter India shall be in possession of valid passports. Section 3 of the Act empowers the Central Government to make rules requiring that persons entering India shall be in possession of passports and for all matters ancillary or incidental to that purpose. Section 5 of the Act empowers the Central Government to direct the removal of any person from India who, in contravention of any rule made Under S. 3 prohibiting entry into India without passport, has entered therein. Rule 3 of the Indian Passport Rules, 1950 lays down that save as provided in R. 4, no person proceeding from any place outside India shall enter, or attempt to enter, India by water, land or air unless he is in possession of a valid passport conforming to the conditions prescribed in R. 5. Rule 4 provides for classes of persons who are exempted from the necessity of having a passport. We are not concerned with those exemptions in the present case. In Abdul Rahim Ismail C. Rahimtoola v. State Of Bombay , AIR 1959 SC 1315, the Supreme Court held that Section 3 of the Indian Passport Act, 1920, and Rules 3 and 4 of the Indian Passport Rules, 1950, applied to all persons including Indian citizens. The result is that an Indian citizen cannot enter India from abroad unless he is in possession of a valid passport.
10. With the background of this legal position, I will first consider the petitioner's contention that the claim made on behalf of the Government of India of absolute discretion to grant or refuse passports to Indian citizens is inconsistent with the fundamental right guaranteed by Article 14 of the Constitution. Article 14 lays down that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. This and the subsequent four Articles have been placed in the Constitution under the heading “Right to Equality”. The word “State” as defined by Article 12 includes the Government and Parliament of India, 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 of India. It follows that the right to equality which is guaranteed by Article 14 is designed to protect all persons against discriminatory treatment irrespective of whether it results from legislative or from executive action. The claim of absolute and unfettered discretion to grant or to refuse passports is ex facie discriminatory, and, therefore, violative of Article 14 of the Constitution.
11. On behalf of the Government of India Mr. Baptista argued that the grant or the refusal of a passport was a purely administrative act, and that such an act does not fall within the ambit of Article 14. The argument implies that a purely administrative act has greater validity than a legislative act, a view which is clearly untenable. In Bidi Supply Co v. Union of India, (S) AIR 1956 SC 479, the Supreme Court considered the validity of an order by which the assessment records of the petitioner in that case, which was a registered firm, were transferred from Calcutta where the head office of the firm was situated to the office of the Income-Tax Officer, Special Circle. Rancbi, with whom the petitioner was required to correspond in future regarding its assessment proceedings. The Supreme Court held that the order was not contemplated or sanctioned by the particular provision of the Income-Tax Act under which it purported to have been made. Treating the order as a purely executive order, the Supreme Court observed:
“In the circumstances this substantial discrimination has been inflicted on the petitioner by an executive fiat which is not founded on any law and no question of reasonable classification for purposes of legislation can arise. Here “the State” which includes its Income-tax department has by an illegal order denied to the petitioner, as compared with other Bidi merchants who are similarly situate, equality before the law or the equal protection of the laws and the petitioner can legitimately complain of an infraction of his fundamental right under Article 14 of the Constitution”.
12. It is thus clear that the protection given by Article 14 extends to all discriminatory action, whether executive or legislative. If any doubt existed on this question, it was removed by the judgment of S.R Das C.J in Basheshar Nath v. Commr. of Income-tax. Delhi and Rajasthan, AIR 1959 SC 149. His Lordship observed:
“The underlying object of (Article 14) is undoubtedly to secure to all persons, citizens or non-citizens, the equality of status and of opportunity referred to in the glorious preamble of our Constitution. It combines the English doctrine of the rule of law and the equal protection clause of the 14th Amendment to the American Federal Constitution which enjoins that no State shall “deny to any person within its jurisdiction the equal protection of the laws”. There can, therefore, be no doubt or dispute that this Article is founded on a sound public policy recognised and valued in all civilised States”
13. After referring to the definition of “the State” in Article 12, his Lordship said:
“Article 14, therefore, is an injunction to both the legislative as well as the executive organs of the State and the other subordinate authorities…… It is not necessary, for the purpose of this appeal to consider whether an executive order is a “law” within the meaning of Article 13, for even without the aid of Article 13, our right to the equal protection of the law is protected against the vagaries, if any, of the executive Government also…… Thus Article 14 protects us from both legislative and executive tyranny by way of discrimination”.
14. In view of these observations of the Supreme Court, it is not necessary to refer to the American decisions which were cited by Mr. Sorabjee to show that the equal protection clause of the 14th Amendment to the American Constitution gave protection against legislative as well as executive discrimination.
15. As stated above, the function of issuing passports vests with the Government of India by virtue of Article 73 read with List I, Item 10 of the Seventh Schedule of the Constitution. Article 14 requires that function shall be discharged by the Government of India without discrimination. The legislature has not provided any guidance for the discharge of that function. I asked Mr. Baptista whether the Government of India have framed any administrative rules for the regulation of its function of issuing passports, and Mr. Baptista told me that no such rules have been framed. Under these circumstances, it must logically follow from the fundamental right of equality guaranteed by Article 11 of the Constitution that the Government of India can adopt either of the two courses: they can refuse passports to all Indian citizens or grant passports to all Indian citizens. To grant passports to some and not to others involves the exercise of arbitrary and unregulated discretion which is repugnant to Article 14. Out of these two alternative one is clearly excluded, for it is obvious that the Government of India cannot dispense with issuing passports altogether. It is true that the right to equality guaranteed by Article 14 is available to all persons, whether Indian citizens or not, but no persons other than Indian citizens require a passport from the Government of India. The petitioner has given in Ex. D to the petition the names of six other Indians to whom passport facilities for going to Dubai were granted by the Government of India. It was not denied on behalf of the Government of India that passport facilities were granted to these persons. Since the Government of India have granted licences to some persons and since they must continue to grant licences to others, it must follow that, in the absence of any regulations which would justify;t classification between those who are and those who are not entitled to passport facilities, the Government of India must grant passports to all Indian citizens who apply for them.
16. The Government of India's claim to an absolute and unfettered discretion of granting or refusing passport facilities appears to be founded on the fart that the legislature has not made any law or regulations to the grant of those facilities. What is guaranteed by Article 14, however, is the rule of law and not equal subjection to lawless rule. Supposing the legislature had passed a law bestowing upon the executive an absolute and unfettered discretion in issuing passports, the law would have been invalid by virtue of Article 14 of the Constitution, State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284 : (AIR 1952 SC 75); State of Orissa v. Dhirendranath Das, AIR 1961 SC 1715. The fact that no such discriminatory law has been passed by the legislature cannot possibly enable the executive to claim an absolute and unfettered discretion in the matter of refusing passports.
17. A different view was expressed by a Division Bench of the Madras High Court in V.G Row v. State of Madras, AIR 1954 Mad 240. The petitioner in that case had applied for the issue of a passport for travelling to various countries, including the Soviet Union. A passport was issued to the petitioner, but his request to have it endorsed for certain countries including the Soviet Union was refused. He applied for appropriate writ or direction requiring the respondents to endorse his passport for the remaining countries including the Soviet Union. His petition was rejected by the Madras High Court. The decision of the Madras High Court is for the most part based on the view that there was no statutory provision which prevented a person from leaving India without a passport or which prevented an Indian citizen from entering India without a passport. The subsequent decision of the Supreme Court, in AIR 1959 SC 1315, which I have already referred to, shows that the view that there was no provision preventing an Indian citizen from entering India without a passport was incorrect. After stating that an Indian citizen was not precluded by any legal provision from leaving India or entering India without a passport, the Madras High Court observed:
“In this view, we do not see much substance in the contentions of the petitioner's learned counsel. Article 14 guarantees equality before the law and equal protection of the laws. Equal protection of the laws has been construed to mean the protection of equal laws. It is this Article which prohibits discriminatory legislation and arbitrary classification. But this Article can have no application to a matter like the issue of passports which consists in the exercise of a purely political function”
18. With great respect, I do not find it easy to understand what is meant by the exercise of “a purely political function” in this context, and why action taken in the exercise of a political function should be outside the ambit of Article 14 of the Constitution, liven supposing that a passport was unnecessary to an Indian citizen for either going abroad or for entering India, the fact remains that certain facilities in respect of foreign travel are available to persons who are in possession of passport. The Government cannot grant these facilities to some persons and deny them to others at their sweet will without violating Article 14 of the Constitution.
19. I must, accordingly, uphold the contention of the petitioner that the order refusing his application for a passport was made in contravention of Article 14 of the Constitution.
20. The other contention of the petitioner is that the rejection of his application for a passport amounts to a contravention of Article 21 of the Constitution. That Article lays down that no person shall be deprived of his life or personal liberty except according to procedure established by law.
21. The first question which arises in this connection is whether the expression “personal liberty” in Article 21 includes the freedom to go abroad. The meaning of that expression was considered by the Supreme Court in A.K Gopalan v. State Of Madras., 1950 SCR 88 : (AIR 1950 SC 27). There was some difference in that case between Fazl Ali J. and the other learned Judges on whether the right to freedom from arrest and detention was or was not guaranteed by Article 19(1)(d), but there was no difference between them on the scope of the expression “personal liberty” as used in Article 21. They all agreed that the expression “personal liberty” in Article 21 was not confined to the mere freedom from arrest and detention. Mr. Das J. observed in his judgment that besides the rights mentioned in the several sub-clauses of Article 19(1), there, are many other personal liberties which a free man may exercise, and these personal liberties are included in the expression “personal liberty” used in Article 21. He Quoted with approval a passage from a Full Bench decision of the Calcutta High Court in which it was stated:
“For example, a free man can not what he likes subject to rationing laws, work as much as he likes or idle as much as he likes. He can drink anything he likes subject to the licensing laws and smoke and do a hundred and one things which are not included in Article 19. If freedom of person was the result of Article 19, then a free man would only have the seven rights mentioned in that article. But obviously the free man in India has far greater rights”.
22. His Lordship added:
“Indeed, I regard it as a merit of our Constitution that it does not attempt to enumerate exhaustively all the personal rights but uses the compendious expression “personal liberty” in Article 21 and protects all of them”. His Lordship observed that the expression “personal liberty” did not mean, only liberty of the person, but meant liberty or the rights attached to the person, i.e, jus personarum, and went on to say:
“In my judgment, Article 19 protects some of the important attributes of personal liberty as independent rights and the expression “personal liberty” has been used in Article 21 as a compendious term including within its meaning all the varieties, of right which go to make up the personal liberties of man”
23. The scope of the expression “personal liberty” in Article 21 was again considered by the Supreme Court in Kharak Singh v. State of U.P, (1964) 1 SCR 332 : (AIR 1963 SC 1295). The petitioner in that case had challenged the constitutional validity of a certain police regulation in Uttar Pradesh which provided for five kinds of surveillance by the police over persons suspected of offences. The Supreme Court found that the impugned police regulation did not have any statutory basis and consisted of executive or departmental instruction framed for the guidance of police officers. One mode of surveillance provided by the impugned police regulation was to pay domiciliary visits of the suspect, and this involved the knocking at his door at night and the consequent disturbance to his sleep and rest. The majority of the Judges held that the part of the police regulation which allowed domiciliary visits was violative of Article 21, while the minority was of the view that the whole regulation inclusive of all the five kinds of surveillance violated that Article. In the course of his judgment, for the majority. Ayyangar, J. observed:
“We shall now proceed with the examination of the width, scope and content of the expression “personal liberty” in Article 21. Having regard to the terms of Article 19(1)(d), we must take it that expression is used as not to include the right to move about or rather of locomotion. The right in move about being excluded, its narrowest interpretation would be that it comprehends nothing more than freedom from physical restraint or freedom from confinement within the bounds of a prison; in other words, freedom from arrest and detention, from false imprisonment or wrongful confinement. We feel unable to hold that the term was intended to bear only this narrow interpretation but on the other hand consider 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” His Lordship further said:
“Is then the word “personal liberty” to be construed as excluding from its purview an invasion on the part of the police of the sanctity of a man's home and an intrusion into his personal security and his right to sleep which is the normal comfort and a dire necessity for human existence even as an animal.? It might not be inappropriate to refer here to the words of the preamble to the Constitution that it is designed to “assure the dignity of the individual” and therefore of those cherished human value as the means of ensuring his full development and evolution. We are referring to these objectives of the framers merely to draw attention to the concepts underlying the Constitution which would point to such vital words as “personal liberty” having to be construed in a reasonable manner and to be attributed that sense which would promote and achieve those objectives and by no means to stretch the meaning of the phrase to square with any preconceived notices or doctrinaire constitutional theories”
24. The minority view in that case did not attach to the expression “personal liberty” a less comprehensive connotation. They were of the view however, that the expression “personal liberty” in Article 21 did not exclude those aspects of personal liberty which have received a separate treatment in Article 19. Subba Rao, J., who delivered the judgment of the minority, said:
“At this stage it will be convenient to ascertain the scope of the said two provisions (Articles 19 and 21) and their relation inter se in the context of the question raised. Both of them are distinct fundamental rights. 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 have 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 in other words, the State must satisfy that both the fundamental rights are not infringed by showing that there is a law and that it does amount to a reasonable restriction within the meaning of Article 19(2) of the Constitution.”
25. It must follow that the compendious expression “personal liberty” used in Article 21 includes in its ambit the right to go abroad, and that a person cannot be deprived of this right “except according to procedure established by law” as laid down in Article 21. Mr. Baptista, however, argued that it can be gathered from the majority judgment in the above case that the right to go abroad was excluded from the expression “personal liberty” used in Article 21. For this argument Mr. Baptista relied on the following sentence which occurs in a part of the majority judgment of Ayyangar, J. quoted above:
“Having regard to the terms of Article 19(1)(d), we must lake it that expression (i.e “personal liberty”) is used as not to include the right to move about or rather of locomotion.”
26. According to Mr. Baptista, this sentence implies that the right to go abroad is not part of the “personal liberty” guaranteed in Article 21. The argument is clearly untenable, because what the majority judgment has done is to exclude from the ambit of “personal liberty”, as the expression occurs in Article 21, the right which is specified in Article 19(1)(d), namely, the right “to move freely throughout the territory of India”. The right to go abroad being not covered by Article 19(1)(d), is not excluded from Article 21.
27. It was then urged by Mr. Baptista that the Constitution can be deemed to have protected only such rights as can be exercised within the territory of India, that the right to go abroad is not such a right, and that, therefore, it cannot be deemed to have been included in the “personal liberty” protected by Article 21. This argument also has no substance, because the right to go abroad as claimed by the petitioner consists of his right to cross the Indian border, and it is the petitioner's case that, although this right is protected by Article 21, the respondents have deprived him of this right without resort to any procedure established by law.
28. The right to go abroad has always been regarded as an important aspect of “personal liberty”. The right was recognised as early as the Magna Carta. Article 42 of the Magna Carta says:
“It shall be lawful to any person, for the future, to go out of our kingdom, and to return, safely and securely, by land or by water, saving his allegiance to us, unless it be in time of war, for some short space, for the common good of the kingdom: excepting prisoners and outlaws, according to the laws of the land, and of the people of the nation at war against us, and Merchants who shall be treated as it is said above”.
29. In recent times, the right was recognised and included in the Declaration of Human Rights adopted by the United Nations. Article 13, paragraph 2 of the Declaration runs thus:
“Everyone has the right to leave any country, including his own, and to return to his country”.
30. There is no reason why this important right of personal freedom should be held to have been excluded from the expression “personal liberty” in Article 21 of the Constitution.
31. Considerable support for this view can be derived from a recent decision of the Federal Supreme Court of the United States in Rockwell Kent and Walter Briehl v. John Foster Dulles, Secy. of State, (1958) 357 US 116 : 2 Law (2nd Series) 1204, A federal statute of the United States of 1952 provides that it is “unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid passport”. The petitioners in the above case had applied for passports, but they were called upon to file affidavits concerning their membership in the Communist Party, and on their failure to file such affidavits, passport facilities were denied to them. The Supreme Court held by a majority vote that the petitioners were entitled to passports, and that the pertinent statutes did not authorise the Secretary of State to withhold passports for the reasons stated above in delivering the opinion of the Court. Douglas, J. observed:
“A passport not only is of great value—indeed necessary—abroad; it is also an aid in establishing citizenship for purposes of re-entry into the United States”.
32. With reference to the Fifth Amendment to the American Federal Constitution which provides, in so far as it is relevant for the present purpose, that no person shall “be deprived of …… liberty…… without due process of law”, the learned Judge observed;
“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. So much is conceded by the Solicitor General……. 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, 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”.
33. It must be added that the minority in that case did not take a different view from the majority with regard to the scope of the “liberty” guaranteed by the Fifth Amendment.
34. If the petitioner's right to go abroad, being part of his personal liberty, is protected by Article 21, it follows that he is entitled, as of right, to a passport provided, firstly, that a passport is necessary for going abroad, and secondly, he is not deprived of that right by some procedure established by law. It is the case of the respondents that there is no legal prohibition which prevents the petitioner from going out of India without a passport. The respondents admit that the Government of India have issued instructions to Carriers and Travel Agencies that they should not take on board passengers leaving India without valid passports, but the respondents claim that these instructions do not constitute a legal bar to a citizen leaving the country without a passport. Even supposing, however, that the petitioner can leave India without a passport, it is clear that he has no right to re-enter India without a passport. That is the result of Rule 3 of the Indian Passport Rules, 1950, made under the Indian Passport Act, 1920. Now, it is obvious that an Indian citizen, unless he intends to give up his nationality, can exercise right of going abroad only if he does not lose thereby the right to return to his country. It is clear, therefore, that the restriction on the right to re-enter which has been imposed by Rule 3 of the Indian Passport. Rules operates at the same time as restriction on the right to go abroad. It must, therefore, follow that, in the absence of any law to the contrary, the right to go abroad which is protected by Article 21 carries with the right to receive a passport which is essential for the enjoyment of that right.
35. It is the case of the respondents that the Government of India are not subject to any lawful obligation to issue a passport to an Indian citizen. This contention implies, in the last analysis, that the Government of India's right to issue passports is not coupled with any responsibility—a view which I find very difficult to accept. The better view is that the right is coupled with an obligation, and the obligation is to issue passports to those who have a right to receive them. As shown above, in the absence of a law to the contrary, all Indian citizens have that right.
36. Whether such a right and such an obligation do or do not exist can be tested by raising the questions whether an Indian citizen, who happens to be abroad without a passport, is not entitled to get a passport from the Government of India in order to enter the country—Can the Government of India in such a case claim an absolute discretion to grant or refuse a passport to the Indian citizen? Article 19(1)(e) guarantees to all Indian citizens the right “to reside and settle in any part of the territory of India”, and this right necessarily carries with it the right to receive a passport in order that an Indian citizen, who happens to be abroad without a passport, may be able to enter the country and reside and settle in its territory. Such a question did in fact arise in two cases decided by the Supreme Court, and both the cases were decided on the assumption that an Indian citizen in such circumstances was entitled as of right to get a permit or a passport to enter India.
37. In Embrahim Vazir Mavat v. State of Bombay, 1954 SCR 933 : (AIR 1954 SC 229), the Supreme Court dealt with the case of several persons who were assumed to be Indian citizens and who had entered India in contravention of Section 3 of the Influx from Pakistan (Control) Act, being Act XXIII of 1949. Section 3 of that Act provided, in so far as it is relevant, that no person shall enter India from any place in Pakistan, whether directly or indirectly, unless he was in possession of a permit or a valid passport. Section 4 of the Act empowered the Central Government to make rules in regard to the manner in which permits may be applied for and obtained. Section 5 provided, inter alia, that whoever entered India in contravention of the provisions of S. 3 shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. Section 7 of the Act was material to the case before the Supreme Court, and it empowered the Central Government to direct the removal from India of any person who had committed, or against whom a reasonable suspicion existed that he had committed, an offence under the Act. The question before the Supreme Court was whether S. 7 of the Act, in so far as it authorised the removal from India of Indian citizens who had committed an offence under the Act or were reasonably suspected of having committed such an offence, was in the nature of a reasonable restriction on the citizens right to reside and settle in any part of the territory of India guaranteed by Article 19(1)(e) of the Constitution. The Supreme Court held by majority that s. 7 of that act contravened the said fundamental right, and not being a reasonable restriction thereof, was void in coming to that conclusion, Ghulam Hasan J., who delivered the majority Judgment, observed, in the first place, that the provision in S. 3 of the Act requiring an Indian citizen to have a permit or a passport to be able to enter India from Pakistan could be regarded as a reasonable restriction upon his right to enter the country. His Lordship observed:
“That an Indian citizen visiting Pakistan for any purpose whatsoever and returning to India may be required to produce a permit or passport as the case may be before he can be allowed to enter the country, may well be regarded as a proper restriction upon entry but to say that if he enters the country without a permit or on an invalid permit or commits a breach of any of the conditions of the permit he may, on conviction for such offence, be ordered to be removed from the country is tantamount to taking away his fundamental right guaranteed under article 19(1)(e), “to reside and settle in any part of the territory of India”.
38. In a later part of the judgment, his Lordship observed with reference to S. 7 of the Act:
“A law which subjects a citizen to the extreme penalty of a virtual forfeiture of his citizenship upon conviction for a mere breach of the permit Regulations or upon a reasonable suspicion of having committed such a breach can hardly be justified upon the ground that it imposes a reasonable restriction upon the fundamental right to reside and settle in the country in the interest of the pubilc”.
39. It is clear from these observations that, according to the Supreme Court, it was permissible to prevent an Indian citizen from entering the country unless he produced a permit or passport, but that it was not permissible, if he did enter the country without such a permit or passport, to remove him from the country for the breach committed by him. In this connection the Supreme Court considered what the duty would be of the sentry on guard at the check-post on the frontier, in case an Indian citizen tried to enter the country without having secured a permit or passport. On this point. Ghulam Hasan J. said in his judgment:
“If any person claims to have the right to enter, the sentry's duty would be to hand him over to the Commander of the Guard and normally it would be the duly of that Commander to hand him over to the proper authority empowered to determine the right which he claims”.
40. It is obvious from these remarks that, according to the Supreme Court, an Indian citizen had a right to get a permit to enter India, that his failure to get such a permit was “a mere breach of the permit Regulations”, and that, therefore, although such a citizen could be prevented from entering the country unless he had secured a permit, he could not be lawfully expelled from the country if he effected an entry in breach of the permit regulations.
41. It must be observed that normally an Indian citizen wanting to enter India from Pakistan would have required a permit issued under Section 4 of the Influx from Pakistan (Control) Act and not a passport, and that, therefore, the above case related rather to the right of an Indian citizen to gel a permit under S. 4 of that Act than to his right to get a passport from the Government of India. The latter question, however, was more clearly involved in the subsequent decision of the Supreme Court in AIR 1959 SC 1315, which I have already referred to in another connection. The appellant in that case was an Indian citizen and he had admittedly entered India without a passport, and thereby committed a breach of Rule 3 of the Indian Passport Rules, 1950. For that breach, he was convicted under R. 6(a) and was sentenced to a nominal fine. He challenged the order of conviction and sentence, and one of the grounds of the challenge was that R. 3 of the Indian Passport Rules and Section 3 of the Indian Passport Act were ultra vires of the Constitution in so far as they purported to affect the right of an Indian citizen to enter India without a passport. After observing that the fundamental right “to reside and settle in any part of the territory of India” was subject to reasonable restrictions under Cl. (5) of Article 19, Imam J., who delivered the Judgment of the Court, said:
“In the case of 1954 SCR 933 : (AIR 1954 SC 229), (referred to above), the majority judgment of this Court held that an Indian citizen visiting Pakistan for any purpose whatsoever and returning to India may be required to produce a permit or a passport as the case may be before he can be allowed to enter India, and this requirement may well be regarded as proper restriction upon entry. This Court, however, held that it was quite a different matter to say that if he enters India without a permit he may on conviction for such offence be ordered to be removed from India. It was the order directing his removal from India which was held by this Court to be tantamount to taking away his fundamental right guaranteed under article 19(1)(e), “to reside and settle in any part of the territory of India”. It is clear, therefore, that so far as this Court is concerned it has already decided that to require an Indian citizen to produce a passport before he can be allowed to enter India may be regarded as a proper restriction upon entering India. This decision is binding on us and we must follow Die decision of this Court in the case referred to.”
42. The Supreme Court have, thus held that the provision which requires an Indian citizen to produce a passport before he can be allowed to enter India is a reasonable restriction on his right to enter India. No such view could possibly have been taken if an Indian citizen wanting to enter India from abroad had no right to obtain a passport and if his application for a passport could be rejected at the absolute discretion of the Government of India. The above decision necessarily implies that an Indian citizen, having his right to enter India guaranleed in the Constitution, has also the right to receive from his Government a passport which is necessary for the exercise of that right. On what is essentially the same ground, I hold that the petitioner, having the right to go abroad as provided by Article 21 of the Constitution, which includes the right to return to his country, has also the right to receive from his Government the passport necessary for the exercise of his right to go abroad.
43. Mr. Baptista argued that the above decision of the Supreme Court (AIR 1959 SC 1315) is not inconsistent with the absolute discretion claimed by the Government of India in the matter of issuing passports to Indian citizens. According to Mr. Baptista, the above decision means that, if an Indian citizen succeeds in entering India without a passport, he can be lawfully punished under R. 6(a) of the Indian Passport Rules but cannot be deported as provided in Section 5 of the Indian Passport Act. In my view, Mr. Baptista's argument amounts to putting a premium on the ability of an Indian citizen to hoodwink the sentries whose duty is to prevent any person from entering India, without a passport. Under R. 3 of the Indian Passport Rules, an Indian citizen can be lawfully prevented from entering India, if he is Enable to produce a passport, and the constitutional validity of that provision is based on the assumption that an Indian citizen wishing to enter India is entitled to a passport. The further conclusion that he cannot be deported if he enters India without a passport, which receives support from the earlier decision of the Supreme Court, in 1954 SCR 933 : (AIR 1954 SC 229), goes to reinforce the view that the Government of India do not have an absolute and unfettered discretion to refuse a passport to an Indian citizen.
44. I have already referred to a decision of the Madras High Court in AIR 1954 Mad 240. It was there held that no contravention of the right under Article 19(1)(d) occurs when passport facilities are denied to an Indian citizen. That conclusion was based on the view, which was subsequently held to be incorrect by the Supreme Court in the case of Abdul Rahim Ismail, AIR 1959 SC 1315, that the refusal of a passport does not amount to a restriction of an Indian citizen's right to leave and re-enter India.
45. My conclusion that an Indian citizen is entitled to a passport, in the absence of any statutory provision which disables him from obtaining it, finds support in certain observations of Mr. Justice Shelat in his judgment in Misc. Petn. No. 167 of 1959, dated 16-6-1959 (Bom). A passport of the petitioner in that case was taken charge of by the Customs Authorities. The Customs Authorities handed over the passport to the Regional Passport officer on, demand made by the Police, and the Regional Passport Officer detained the passport pending orders from the Government of India. Mr. Justice Shelat held that the Regional Passport Officer was not entitled to detain the passport, and directed that the passport be returned to the petitioner. After observing that the term “personal liberty” in Article 21 includes freedom of movement the learned Judge said:
“That being so, prima facie a citizen of this country is entitled to a passport unless there is some statutory provision disabling him to obtain it…….Now, assuming that there is no law debarring exit without a passport, as I have already pointed out there are rules made under the Passport Act which debar a person from making his re entry into this country unless he is equipped with a passport. Even if he were to be able to go abroad without a passport, there can be no doubt that it would be depriving him of his freedom of movement if he is not allowed to come back to his own country”
46. The learned Judge, however, went on to say that it was not necessary for the purpose of the case before him to go into the question whether the Government have the right to refuse a passport on the ground of its absolute discretion. It is clear that the learned Judge himself treated the observations quoted above as obiter dicta.
47. A contrary view is found expressed by Mr. Justice K.K Desai in his judgment in Misc. Appln. No. 299 of 1959 dated 8-7-1960 (Bom). The petitioner in that case had a passport which was valid up to 15th May, 1959 He applied for the extension of the validity of the passport for a further period of one year (i.e till 15th May, 1960). But the Regional Passport Officer rejected his application and returned his passport, after cancelling the same. The petitioner applied to this Court under Article 226 of the Constitution and prayed that the cancellation of his passport should be quashed, and further that the respondent should be directed to replace the old passport wrongfully cancelled by a fresh one, or in the alternative, to issue a new passport. In dismissing this application the learned Judge pointed out that, by the time of his judgment, the period for which the petitioner had asked for the extension of his passport had already expired. The Learned Judge said:
“The complaint is that the respondent has not acceded to his (Petitioner) application for renewal of passport for one year which period of course has expired on May 16, 1960. Having regard to the fact that the period of the application for renewal has expired, the application for renewal is now not outstanding and cannot be ordered to be considered, once again. The cancellation of his exhausted passport cannot create any rights in the petition or to issue of a new passport.”
48. It was thus held by the learned Judge that in view of the expiry of one year's period mentioned in the Petitioner's application, it was not possible to grant him any relief, irrespective of the merits of the case and that the petition under Article 226 of the Constitution had become infrucluous. The learned Judge, however, went on to deal with the various arguments which were advanced before him during the hearing of the petition. It was urged before him that in view of the fundamental rights guaranteed by Article 21 as well of the Article 19(1)(d) and (e) of the Constitution, there was an obligation on the President (the Government of India) to issue a passport to the petitioner. With reference to the Article, the learned Judge said:
“To me it is obvious that the Articles 21 and 19(1)(d) and (e) have no relation to statutory obligation making if incumbent on the-President to issue a passport. The argument appears to me to be prima facie not sustainable.”
49. Towards the end of the judgment, the learned Judge quoted some passages from the judgment in AIR 1954 Mad 240, including a passage where it was stated that no person had any legal right to obtain a passport to any particular country, and after these quotations the learned Judge said
“I find it unnecessary in this case to discuss the above observations”
50. Having carefully gone through the judgment of the learned judge. I have come to the conclusion that his observations on Articles 21 and 19(1)(d) and (e) of the Constitution and his statement that there is no statutory obligation making it incumbent on the President to issue a passport are in the nature of obiter dicta. Before he made these observations, the learned Judge had already held that the petition had become infructuous on the expiry of the one year's period mentioned by the petitioner in his application for renewal of his passport. Moreover, the learned Judge himself has described his view as being “prima facie”. Mr. Baptista pointed out that at one place in the judgment the learned Judge has stated that he had “already held” that it did not appear to him that there was any statutory obligation cast on the President to issue a passport in favour of the petitioner. This is, however, followed by the observations quoted from the Madras case and the final statement of the learned Judge that he found it necessary to discuss those observations. One of the observations which he found it unnecessary to discuss was that “no person has any legal right to obtain a passport to any particular country”. It appears to me that the learned Judge dismissed the application as it had become infructuous, and since he was the Court of first instance, he also dealt with the arguments which were addressed to him on the merits.
51. Treating the views of the learned Juitye as obiter dicta, I must further observe, with great respect, that I cannot accept his view that the Government of India have no obligation to issue a passport in favour of an Indian citizen. In the first place, Article 14 of the Constitution is expressly directed to the “State” (which includes the Government of India) and its effect is that, in the absence of any regulations in regard to the issue of passports, the Government of India must issue passports to all Indian citizens who ask for them, or none at all. Secondly, Article 21 recognises and protects the right of every person to “personal liberty”, of which he cannot be deprived “except according to procedure established by law”. An Indian citizen has, therefore, the right, in the absence of any law to the contrary, to obtain it passport which is necessary for the exercise of his right to go abroad, which right is clearly a part of the “personal liberty”
52. Mr. Baptista drew my attention to the following statement which is contained in the affidavit in reply, which was filed by the Under Secretary, Ministry of External Affairs, on behalf of the Government of India:
“I say that on the basis of the communications received in official confidence and for which reasons, it is considered, should not be disclosed in the public interest, the Government of India decided that in the interest of the State and the Public, the Petitioner should not be granted further passport facilities”
53. This statement does not even touch the contention of the petitioner that by virtue of Article 21, he is entitled to a passport, in the alienee of any legal provision to the contrary. The statement does not also affect the petitioner's contention under Article 14 of the Constitution. So long as no rules have been formulated for guiding the exercise of discretion in the matter of issuing passports, any refusal of a passport to an Indian citizen, when passports are granted to other Indian citizens, must be held to be discriminatory.
54. The conclusion to which I have reached does not imply that every Indian citizen must have an absolute and unrestricted right to receive a passport. It implies that, in the absence of any legislative provision to guide the exercise of the discretion in the matter of issuing passports, the Government of India have no alternative but to issue passports to all Indian citizens who apply for them. Accordingly, the order of the first respondent dated 24th May, 1963 refusing passport facilities to the petitioner is set aside, and the respondents are directed to grant and issue to the petitioner a passport as applied for by him by his application dated 10th January, 1963. The passport to be issued within two weeks, from today. The respondents will pay the petitioner the costs of this petition as taxed.
KI/D.R.R
55. Petition allowed.