Maneka Gandhi v. Union of India

The Government impounded Maneka Gandhi's passport in public interest and refused to give reasons. She challenged the order under Article 32. A seven-Judge Bench delivered five opinions. Most of the Judges held that the procedure under Article 21 must be fair, just and reasonable and that Articles 14, 19 and 21 are not mutually exclusive.

Quick Revision

Read the full judgment: Supreme Court of India (sci.gov.in)

Parties

This judgment has no numbered paragraphs. Each point below names the judge whose opinion records it.

• Maneka Gandhi — petitioner. She held a passport issued on 1 June 1976. She is a journalist by profession (Kailasam, J.).
• Union of India — respondent. It ordered the impounding of her passport (Kailasam, J.).
• Regional Passport Officer — second respondent. His office issued the letter dated 2 July 1977 (Bhagwati, J.; Kailasam, J.).
• Adil Shahryar — intervener. The Court allowed the intervention. The intervener supplemented one ground of the petitioner (Bhagwati, J.; Kailasam, J.).
• Counsel for the petitioner — Madan Bhatia and D. Goburdhan. Counsel for the intervener — Ram Panjwani, Vijay Panjwani, Raj Panjwani, S.K. Bagga and Mrs. S. Bagga.
• Counsel for the respondents — S.V. Gupte, Attorney General, Soli J. Sorabjee, Additional Solicitor General of India, R.N. Sachthey and K.N. Bhatt.
• Bench — M. Hameedullah Beg, C.J., Y.V. Chandrachud, P.N. Bhagwati, V.R. Krishna Iyer, N.L. Untwalia, Syed Murtaza Fazal Ali and P.S. Kailasam, JJ.
• Opinions — Beg, C.J., Chandrachud, J., Bhagwati, J. (for himself, Untwalia and Fazal Ali, JJ.), Krishna Iyer, J. and Kailasam, J.

Procedural History

1. The petitioner filed a writ (a formal court order) petition under Article 32 of the Constitution. It is Writ Petition No. 231 of 1977. It challenges the impounding of her passport and the refusal to give her the reasons (Bhagwati, J.; Chandrachud, J.; Kailasam, J.).
2. She asked for a writ of certiorari to call for the records and quash the order dated 2 July 1977, made under section 10(3)(c) of the Passports Act (Kailasam, J.).
3. On 8 July 1977 she asked for an ex parte (on the request of one side, without hearing the other) ad interim order. She wanted the order of 2 July 1977 stayed (Kailasam, J.).
4. The Union of India filed a counter affidavit. The petitioner filed a rejoinder affidavit on 16 July 1977 (Kailasam, J.).
5. On 20 July 1977 the Court admitted the petition and issued a rule. It ordered that the passport should stay deposited with the Registrar of the Court until the petition was finally decided (Bhagwati, J.).
6. The hearing was fixed for 30 August 1977. Before that, the petitioner filed an application, Civil Miscellaneous Petition No. 6210 of 1977, to urge two more grounds. The Court granted it. The Ministry of External Affairs filed its counter to this application on 18 August 1977 (Bhagwati, J.; Kailasam, J.).
7. Adil Shahryar applied to intervene, and the Court allowed it (Kailasam, J.).
8. During the hearing the Government produced its reasons for the order. It disclosed them in the affidavit in reply (Bhagwati, J.; Kailasam, J.).
9. The petitioner did not press her challenge that the order was mala fide at the hearing (Bhagwati, J.).
10. The Attorney General made a statement on behalf of the Government of India. The judges quote it (Bhagwati, J.; Kailasam, J.).
11. The Court delivered the judgment on 25 January 1978. Five opinions were delivered (Beg, C.J.; Chandrachud, J.; Bhagwati, J.; Krishna Iyer, J.; Kailasam, J.).

Facts

Facts below come from the opinions of Bhagwati, J., Chandrachud, J. and Kailasam, J.

1. The Passports Act, 1967 was enacted on 24 June 1967. It followed the decision of this Court in Satwant Singh Sawhney v. D. Ramarathnam. Before the Act, no law regulated the issue of passports, and the executive had an unguided and unchannelled discretion (Bhagwati, J.).
2. The petitioner was issued passport No. K-869668 on 1 June 1976 under the Passports Act, 1967 (Bhagwati, J.; Kailasam, J.).
3. On 9 May 1977 the Ministry of Home Affairs sent the Ministry of External Affairs a list of persons. They were likely to be required for inquiries by the Commissions of Inquiry. The petitioner's name was on the list. Passports of only eleven persons on the list were ordered to be impounded. No action was taken on her passport (Bhagwati, J.).
4. The counter affidavit says that on 11 May 1977 the Minister of External Affairs approved impounding the passports of 11 persons. On 19 May 1977 he ordered the impounding of the passports of 8 of the 11 (Kailasam, J.).
5. On 1 July 1977 the authorities informed the Ministry of External Affairs that the petitioner and her husband had arrived at Bombay that afternoon. The Minister received confidential information that she was likely to attempt to leave the country. He approved impounding her passport that evening under section 10(3)(c) (Bhagwati, J.; Kailasam, J.).
6. On 2 July 1977 the Regional Passport Officer, Delhi, wrote to her. The letter said the Government of India had decided to impound her passport under section 10(3)(c) in public interest. It required her to surrender the passport within seven days of receiving the letter. She received it on 4 July 1977 (Bhagwati, J.; Kailasam, J.).
7. She immediately asked for a copy of the statement of reasons under section 10(5). Kailasam, J. dates her letter 5 July 1977 (Bhagwati, J.; Kailasam, J.).
8. The Ministry of External Affairs replied that the Government had decided, in the interest of the general public, not to give her a copy of the statement of reasons. Bhagwati, J. dates the reply 6 July 1977. Kailasam, J. says she received it on 7 July 1977 (Bhagwati, J.; Kailasam, J.).
9. Her petition first challenged the order on the ground that it was mala fide. It also said section 10(3)(c) violates Article 14 because "in the interests of the general public" is vague and undefined. It said the order was void because she was not heard, or else the section is arbitrary and offends Article 14. She did not press the mala fide ground (Bhagwati, J.).
10. The two additional grounds were that section 10(3)(c) is ultra vires Article 21 and that it violates Articles 19(1)(a) and 19(1)(g). Those were the two principal grounds pressed at the hearing (Bhagwati, J.).
11. The petitioner said she was a journalist. She said she intended to go to West Germany in connection with her professional duties (Kailasam, J.).
12. The Government's affidavit in reply disclosed the reasons recorded when the order was passed. In its view she was involved in matters within the purview of the Commissions of Inquiry into excesses during the emergency and into Maruti and its associate companies. It wanted her available in India to give evidence and to present her views before those Commissions. A report received that day said she was likely to leave India (Bhagwati, J.).
13. Kailasam, J. adds that the petitioner is the wife of Shri Sanjay Gandhi, so she was likely to be questioned on some aspects of the Commission's inquiry. The counter affidavit also said there was evidence abroad that could be tampered with. The Government gave up that point during the hearing because it was not taken into account when the order was passed (Kailasam, J.).
14. The Government first claimed it was against the interests of the general public to disclose the reasons. It abandoned that claim in the affidavit in reply (Bhagwati, J.; Chandrachud, J.).
15. The Commission of Inquiry headed by Mr. Justice J.C. Shah had an original time limit of 31 December 1977. It was extended to 31 May 1978 (Bhagwati, J.).
16. The Union contended that the order was meant to last as long as the Commission of Inquiry, which had an initial time limit of 31 December 1977 (Bhagwati, J.).

Issues Raised

The judgment does not list numbered issues. Chandrachud, J. lists the grounds of challenge. Bhagwati, J. frames the questions in the course of his opinion. The issues below follow those two opinions.

1. Is the right to go abroad part of personal liberty in Article 21? If so, no one can be deprived of it except according to procedure established by law (the procedure Article 21 requires before life or liberty is taken away) (Bhagwati, J.)?
2. Must the procedure prescribed by law be fair, just and reasonable, and not arbitrary, fanciful or oppressive (Bhagwati, J.; Chandrachud, J.)?
3. What is the inter-relation of Articles 14, 19 and 21? Must a law that passes Article 21 also meet the challenge of Article 19 (Bhagwati, J.; Chandrachud, J.; Kailasam, J.)?
4. Does section 10(3)(c), by allowing impounding "in the interests of the general public", violate Article 14 because the power is vague, unguided and unfettered (Bhagwati, J.; Chandrachud, J.)?
5. Is the audi alteram partem rule, a rule of natural justice, part of the procedure for impounding a passport? Does the Passports Act imply it although it is silent (Bhagwati, J.; Kailasam, J.)?
6. Which test decides whether State action violates a fundamental right: the pith and substance (the true nature of the action) of the action, or its direct and inevitable effect (Bhagwati, J.)?
7. Is freedom of speech and expression under Article 19(1)(a) confined to the territory of India? Is the right to go abroad part of the right of free speech and expression? Is it part of the right to practise a profession under Article 19(1)(g) (Bhagwati, J.; Chandrachud, J.; Kailasam, J.)?
8. Is the impugned order valid? The issue covers three points (Bhagwati, J.):
   • Does it place an unreasonable restriction on the petitioner?
   • Is it within section 10(3)(c)?
   • Did the Minister apply his mind, and was the petitioner likely to be required before the Commission?
9. Is the power in section 10(5) to decline to give reasons valid, when there is no appeal against an order of the Central Government (Kailasam, J.)?

Arguments Contended

The judgment records the arguments inside the opinions. Each point names the opinion that records it.

For the petitioner (Maneka Gandhi)

1. The right to go abroad is part of personal liberty in Article 21. No one can be deprived of it except by procedure prescribed by law. The Passports Act prescribes no procedure for impounding or revoking a passport (Bhagwati, J.; Kailasam, J.).
2. If some procedure can be traced in the Act, it is unreasonable and arbitrary. It gives the holder no opportunity to be heard against the order. So the order violates Article 21 (Bhagwati, J.).
3. Impounding a passport is a serious matter because it stops the holder from exercising a constitutional right. Any procedure that allows it without a reasonable opportunity to show cause is unfair and unjust (Bhagwati, J.).
4. Section 10(3)(c) gives unguided and unfettered power. The ground "interests of the general public" is too vague to guide the Passport Authority. The authority could impound one passport and not another. The decision of the Central Government is final because there is no appeal or revision (Bhagwati, J.; Chandrachud, J.).
5. If section 10(3)(c) is read to exclude a hearing, it is arbitrary and violates Article 14 (Bhagwati, J.; Chandrachud, J.).
6. Section 10(3)(c) violates Articles 19(1)(a) and 19(1)(g). It allows restrictions on free speech and on the right to practise a profession that Articles 19(2) and 19(6) do not permit (Bhagwati, J.; Chandrachud, J.).
7. The right to go abroad is an integral part of the freedom of speech and expression. Whenever State action interferes with it, the action must meet the challenge of Article 19(1)(a) (Bhagwati, J.). Counsel Shri Madan Bhatia argued this (Chandrachud, J.).
8. A law that deprives a person of personal liberty must satisfy the requirements of Article 21 and also of Article 19 (Kailasam, J.).
9. The impugned order breaks the audi alteram partem rule, so it is null and void (Bhagwati, J.).
10. The order places an unreasonable restriction on free speech and the profession of a journalist. It impounds the passport indefinitely on the mere likelihood that she will be required before the Commission of Inquiry (Bhagwati, J.).
11. Only the Commission of Inquiry can say whether her presence is necessary. The Central Government cannot form that opinion (Bhagwati, J.).
12. An order under section 10(3)(c) cannot be made on mere information that her presence is likely to be needed before the Commission (Bhagwati, J.).
13. Public interest must exist at present, in praesenti. The mere likelihood of a public interest arising later is no ground to impound (Bhagwati, J.).
14. The expression "interests of the general public" must be read in the perspective of the statute. The power to issue a passport relates to foreign affairs. So the expression refers only to matters with a nexus to foreign affairs. It cannot cover the need for a person to give evidence before a Commission of Inquiry (Bhagwati, J.).
15. Clauses (e) and (h) of section 10(3) deal specifically with persons required in connection with a legal proceeding. So the general power in clause (c) was not meant for such cases. The petitioner relied on the maxim expressio unius exclusio ulterius (Bhagwati, J.).
16. The Minister for External Affairs did not apply his mind, so the order is bad (Bhagwati, J.).
17. She was not connected with emergency excesses or with Maruti and its associates, so she had no evidence to give. It was not correct to say she was likely to be required by the Commissions (Bhagwati, J.).
18. Section 10(5) lets the authority refuse reasons. With no appeal against an order of the Government, this amounts to a total denial of procedure and is arbitrary. If no reasons are given and no appeal lies, there is a denial of procedure established by law under Article 21 (Kailasam, J.).
19. The Ministry's notification of 14 April 1976 gave a facility to an accused in a criminal case. The petitioner said the same facility should be given to a person who may be a witness before a Commission of Inquiry. The notification exempted a citizen facing criminal proceedings from section 6(2)(f) if a court permitted departure (Kailasam, J.).
20. Intervener: Adil Shahryar supplemented the ground about the order and the Commission of Inquiry (Bhagwati, J.).

For the respondents (Union of India, argued by the Attorney General)

1. The Attorney General conceded that the procedure under Article 21 cannot be arbitrary, oppressive or unjust. He did not dispute that Article 14 applies to such a law (Bhagwati, J.).
2. He accepted that the audi alteram partem rule is a highly effective tool. He did not ask the Court to retrace its steps on natural justice (Bhagwati, J.).
3. His limited contention was that the audi alteram partem rule must be excluded in impounding a passport. If notice were given, the holder might leave the country on the passport, and the object of impounding would be defeated. He relied on S.A. de Smith's statement that a right to prior notice may be excluded where it would obstruct prompt action (Bhagwati, J.).
4. On a true construction the rule audi alteram partem is not excluded in ordinary cases. He relied on Minoo Maneckshaw v. Union of India in the Bombay High Court. But the rule does not apply where there is urgency or where a hearing would defeat the object of impounding. He relied on De Verteuil v. Knaggs (Kailasam, J.).
5. An order under section 10(3)(c) is subject to a limited judicial scrutiny for a rational and reasonable nexus to the interests of the general public. The Attorney General conceded this (Kailasam, J.).
6. The right to go abroad cannot be part of free speech and expression. That right is exercisable by Indian citizens only within the geographical limits of India (Chandrachud, J.; Bhagwati, J.).
7. Fundamental rights are available only within the territory of India. The constitution-makers could not have meant to confer rights that the State cannot enforce abroad. The Union asked how fundamental rights could operate outside India when the State cannot protect their exercise in foreign territory (Bhagwati, J.).
8. The right to go abroad is altogether of a different genre from free speech and expression. It is not integrally connected with it, so it is not a part of it (Chandrachud, J.; Bhagwati, J.).
9. The right to travel abroad is no part of Article 19(1)(a), (b), (c), (f) or (g). The direct effect of the passport law is not a blow on free speech, association or profession. So it could not be struck down even if it overflowed Articles 19(2), 19(4) and 19(6) (Krishna Iyer, J.).
10. The State argued that when a person is deprived of life or personal liberty by procedure established by law, she cannot invoke Article 19 (Kailasam, J.).
11. The order does not impound the passport indefinitely. It was intended to last as long as the Commission of Inquiry, and the Commission's term was limited to 31 December 1977 (Bhagwati, J.).
12. The Government said the decision on whether the petitioner is likely to be required before the Commission is for the Central Government. The Court cannot investigate it (Bhagwati, J.).
13. The Minister applied his mind. The affidavit in reply says he considered the relevant material and the confidential information from intelligence sources (Bhagwati, J.).
14. The Attorney General said the impounding was to prevent the petitioner leaving the country, and that the final decision on the passport would be taken later (Kailasam, J.).
15. The Attorney General made a statement. The Government will consider any representation by the petitioner and give her an opportunity within two weeks. The grounds are those in the affidavit in reply dated 18 August 1977 of Shri N.K. Ghose, except item 2(xi). If impounding is confirmed, it will not exceed six months from the decision on her representation. Pending that, the passport stays in the custody of the Court, without prejudice to the Government's powers under the Passports Act (Bhagwati, J.; Kailasam, J.; Chandrachud, J.).

Court's Reasoning

The judgment has no numbered paragraphs, so the steps cite the opinion, not a paragraph. Beg, C.J., Chandrachud, J., Bhagwati, J. (for himself, Untwalia and Fazal Ali, JJ.) and Krishna Iyer, J. agree on the law. Fair procedure is required, Articles 14, 19 and 21 are not exclusive, and audi alteram partem applies. They differ on the order. Bhagwati, J. and Chandrachud, J. dispose of the petition without a formal order because of the Attorney General's statement. Beg, C.J. would quash the order. Kailasam, J. differs on the Article 19 and Article 21 questions. The Court's order at the end follows the majority view.

Beg, C.J. (concurring with Bhagwati, J.)

1. Noted: The case involves basic human rights. Many views, each giving a member's own approach, help readers understand the Constitution. Beg, C.J. generally agrees with Bhagwati, J. and Krishna Iyer, J. He states his own approach because Kailasam, J. takes a somewhat different one.
2. Held: The right to travel and to go outside the country is part of personal liberty. Orders that regulate, suspend, impound or cancel passports directly affect it. He relies on Satwant Singh Sawhney v. D. Ramarathnam and Kharak Singh v. State of U.P.
3. Noted: Article 21 is framed as a shield against executive encroachment. It is also the legal recognition of both the shield and what lies beneath it. A.K. Gopalan v. State of Madras read it so. He earlier showed this in Additional District Magistrate, Jabalpur v. S.S. Shukla with passages from Patanjali Sastri, Mahajan and Das, JJ.
4. Noted: He quotes Kania, C.J. in Gopalan. Deprivation of personal liberty includes rights such as eating, sleeping and working as one pleases. Kania, C.J. held that Article 19 must be read as a separate complete article. He notes that Article 19 protects citizens, but Article 21 protects all persons.
5. Noted: Mukherjea, J. in Gopalan gave personal liberty a narrower meaning, freedom from physical restraint. He relied on Dicey and on the report of the Drafting Committee. Fazal Ali, J. said each article is not a code by itself and the articles overlap. He used the example of preventive detention (detention without trial to prevent a future harm).
6. Held: The idea that Articles 19 and 21 are watertight compartments had to be abandoned. This follows R.C. Cooper v. Union of India, as Bhagwati, J. shows through Haradhan Saha v. State of West Bengal and Shambhu Nath Sarkar v. State of West Bengal. The Court cannot revive the overruled doctrine. It cannot hold that impounding a passport does not affect fundamental rights.
7. Held: Gopalan was decided in a different context. The issue was whether tests for a valid preventive detention procedure are found only in Article 22. Article 22 is a self-contained code for such laws. That was the real ratio decidendi (the reason for the decision) of Gopalan. Other remarks on the separateness of Articles 19 and 21 were obiter dicta (remarks not needed for the decision).
8. Noted: Even in Gopalan the majority took the view that Article 21 is wide and comprehensive. It covers substantive rights and the procedure for depriving them. Questions about laws outside Article 22 remained unanswered.
9. Held: The field of due process for preventive detention is fully covered by Article 22. Other parts of personal liberty are unoccupied by its provisions. In those parts, substantive and procedural laws must satisfy both Articles 14 and 19.
10. Noted: The articles on fundamental rights do not represent separate streams that never mingle. They form an integrated scheme. Their waters must mix to give justice, freedom, equality and fraternity. Isolating aspects of human freedom for protection is neither realistic nor beneficial.
11. Held: Articles 14, 19 and 21 are tests of the validity of executive and legislative action. The Court cannot stop them from working or treat such actions as unquestionable when there is no emergency. So they apply to section 10(3)(c). They also apply to the order of 7 July 1977. That order impounded her passport in the interest of the general public and refused reasons under section 10(5).
12. Noted: He relies on Blackstone's account of natural liberty and of personal security, personal liberty and private property. The idea that man has inherent natural rights goes back to Greek philosophy. He rejects the view that Blackstone is irrelevant today. The powers of locomotion and of moving anywhere without restraint, except by due course of law, are in Article 21.
13. Noted: He relies on I.C. Golaknath v. State of Punjab. Subba Rao, C.J. said fundamental rights are the modern name for natural rights. Hidayatullah, J. said possession of a right is fixed and its exercise is controlled by justice and necessity. Six of eleven Judges took this view, and the majority in Shukla affirmed it.
14. Held: Natural law rights were meant to be converted into constitutionally recognised fundamental rights. They are found within the Constitution and not outside it. A divorce between natural law and constitutional law would be disastrous and would defeat a basic purpose of the Constitution.
15. Held: Article 21 recognises and declares rights that inhere in every individual. Their existence does not depend on where the individual is. The actual concretisation of a right depends on balancing the principles behind the right against those of a restrictive law. The Court decides this in each case.
16. Held: In judging state action for conflict with fundamental rights, the place where the right is exercised is not always material. The tests for restrictions on Article 19(1) rights are in clauses (2) to (6). Nothing suggests that restrictions on rights exercised abroad are outside those tests. The total effect, not the mere form, of a restriction decides which fundamental right is involved.
17. Noted: Rights under Article 19 inhere in Indian citizens, who carry them wherever they go, so far as Indian law applies. He uses the analogy of Indian ships as floating parts of Indian territory. The analogy is not to be pushed too far. Abroad, citizens are entitled only to the protection of the Republic and its missions, not to Indian constitutional or personal laws.
18. Held: Here the action took place in India against an Indian citizen residing in India. That she may not be able to do something abroad does not make the Governmental action ineffective or immune from judicial review (the court's power to examine State action). Effects on her possible activities abroad may be weighed on the merits if they connect to public or national interests. They cannot cut down fundamental rights.
19. Held: To apply Articles 14 and 19, the Court looks at the objects for which Article 21 rights are restricted and at the procedure. Both substantive and procedural laws and the actions under them must pass the tests when the facts justify. An international singer or dancer may complain of a restriction on professional activity, and both Articles 21 and 19(1)(g) may be put forward.
20. Held: The tests of reason and justice cannot be abstract. They must be pragmatic and cannot be divorced from the needs of the nation. A discretion left to the authority to impound a passport in public interest cannot invalidate the law. Parliament may give the executive necessary powers, subject to judicial supervision.
21. Noted: In passport matters, the possible dealings of a person with foreign nationals and authorities and possible activities abroad may be considered. National safety and welfare may transcend a person's right to go where he pleases. Wide discretion is not unreasonable, but procedural safeguards must ensure the power is not used for extraneous purposes.
22. Held: Rights are exercised as regulated by statute. Once a valid reason exists and the restriction follows in a procedurally valid manner, the action is unassailable. If the reason sanctioned by law is absent, or the procedure to reach the conclusion is unreasonable, the order must be quashed.
23. Noted: Each order under section 10(3)(a) to (h) needs satisfaction of the Passport Authority on objective conditions. Impounding and revocation are on the same footing. Section 11 gives an appeal to the Central Government from every order under section 10(3). Section 10(5) requires a brief statement of reasons and a copy on demand, unless the authority is of the opinion that giving it is against the stated interests.
24. Held: Under sections 5, 7 and 8 the holder acquires a statutory right that the passport stays effective for its period unless a ground for revocation or impounding arises. Under Article 32 the Court enforces fundamental rights, not statutory rights alone. But Article 21 makes violation of a law of any kind an infringement of the guaranteed right.
25. Held: Orders under section 10(3) must rest on some material, such as reasonable suspicion from credible assertions by reliable individuals. In an emergent situation a passport may be impounded without hearing, and the step reversed after hearing. Ordinarily no passport should be impounded or revoked without a prior opportunity to show cause. Impounding or revocation is action in the nature of a punishment.
26. Held: Where a statute is silent on showing cause, the duty to give a reasonable opportunity to be heard is implied. It comes from the nature of the function of an authority that can take punitive or damaging action. State of Orissa v. Dr. (Miss) Binapani Dei says the duty to act judicially is implicit in the power to decide to a person's prejudice. If the essentials of justice are ignored the order is a nullity.
27. Noted: In Cooper v. Wandsworth Board of Works, Byles, J. said even God did not pass sentence on Adam before calling on him to make his defence. Beg, C.J. finds no difficulty in holding that an order impounding a passport must be made quasi-judicially. That was not done here.
28. Held: Concurring in the findings of the other Judges, Beg, C.J. holds that a good enough reason is not shown for the order of 7 July 1977. The petitioner had no opportunity to show three things. The ground given in this Court does not exist, or it has no bearing on public interest. Or public interest can be better served in another way. He would quash the order and direct that she be given an opportunity to show cause on grounds available.
29. Held: There were no pressing grounds for immediate impounding. Disclosure of any reason was denied to her in a cavalier fashion, although the only reason later stated was the possibility of her giving evidence before a Commission of Inquiry. That is not a reason to be reasonably kept secret. The denial may indicate undue prejudice, and she must be protected against even its appearance.
30. Held: Executive authorities must see that justice is not only done but manifestly appears to be done when they act in ways that deprive or restrict fundamental rights. They must act free from the appearance of arbitrariness, unreasonableness or unfairness. They must act in a patently impartial manner that meets natural justice.
31. Noted: The Attorney General's attitude shows that the Passport authorities realise the case was not justly or reasonably dealt with. His undertaking is an offer to deal with her fairly after informing her of any ground. Yet it is practically an admission that the order of 7 July 1977 is not fair or procedurally proper.
32. Held: Speaking for himself, Beg, C.J. would quash the order and direct the return of the passport to the petitioner. He holds she is entitled to her costs.

Chandrachud, J. (concurring with Bhagwati, J.)

1. Noted: Her passport dated 1 June 1976 was impounded in public interest by an order dated 2 July 1977. The Government declined, in the interest of the general public, to give her reasons. She filed the writ petition under Article 32.
2. Noted: He lists four grounds. Section 10(3)(c) violates Article 14 because it gives vague and undefined power. It is void because it gives arbitrary power without a hearing. It violates Article 21 because it prescribes no procedure or an arbitrary and unreasonable one. It violates Articles 19(1)(a) and 19(1)(g) by allowing restrictions not permitted under Articles 19(2) and 19(6).
3. Noted: The passport authority first refused the reason under section 10(5). The reasons came later in the counter-affidavit. They were that her presence was likely to be required before a Commission of Inquiry.
4. Held: The power to refuse to disclose reasons for impounding a passport is exceptional. It must be exercised fairly, sparingly and only when the exigencies of an uncommon situation fully justify it. If the reasons are open to judicial scrutiny for their nexus with the order, the refusal to disclose is also open to scrutiny. The power cannot be used only to keep reasons away from judicial scrutiny.
5. Noted: The disclosure made under the stress of the petition could easily have been made when she first asked the Government for the reasons.
6. Noted: Satwant Singh Sawhney held by majority that personal liberty in Article 21 includes the right to travel abroad. The Passport Act of 1967 was enacted to comply. It prescribes how a passport is granted, revoked or impounded.
7. Held: The mere prescription of some kind of procedure cannot meet Article 21. The procedure must be fair, just and reasonable, not fanciful, oppressive or arbitrary. Reasonableness is judged in the context of the purpose of the Act and of urgent situations, not in the abstract or by the standard of a full courtroom hearing.
8. Held: Full compliance with Article 21 is not the journey's end. A law prescribing fair procedure must still meet a challenge under other provisions such as Articles 14 and 19.
9. Noted: If Gopalan's holding that the freedoms are mutually exclusive were still good law, the right to travel abroad would be found only in Article 21. But the Bank Nationalisation case (R.C. Cooper v. Union of India) held that the assumption that certain articles exclusively deal with specific matters cannot be accepted. Though it concerned Articles 31 and 19, its approach discarded the major premise of the Gopalan majority.
10. Noted: A seven-Judge Bench in Shambhu Nath Sarkar so assessed it and held that a preventive detention law must meet Article 19(1)(d). A five-Judge Bench in Haradhan Saha took the same approach. So the inquiry whether the right to travel abroad forms part of Article 19(1) freedoms is not shut out.
11. Held: He agrees with Bhagwati, J. that Article 21 does not exclude Article 19. A law that prescribes a procedure for depriving personal liberty and does not infringe Article 21 must still meet the challenge of Article 19 if it abridges a right there.
12. Noted: He traces the test of directness. Gopalan and Ram Singh's case preferred directness of the impugned law over consequences. Naresh S. Mirajkar applied it. In Express Newspapers, N.H. Bhagwati, J. evolved the test of proximate effect. Sakal Papers gave precedence to direct and immediate effect. The Bank Nationalisation case held that protection depends on the direct operation of an action upon rights. Bennett Coleman reiterated it and struck down the newsprint policy.
13. Held: The measure of directness, as Bhagwati, J. holds, is the inevitable consequence of the impugned statute. These guidelines decide whether section 10(3)(c) or the order violates Article 19(1)(a).
14. Noted: The Attorney General answered in two ways. First, the right to go abroad cannot be within free speech because that right is exercisable by Indian citizens only within India. Second, the right to go abroad is of a different genre and not part of free speech.
15. Held: The first contention is couched in a way that befogs the true issue. Article 19(1)(d) and (e) are limited to the territory of India by their language and nature. Their purpose is national unity against the theory that sons of the soil alone shall thrive. The other freedoms are not so limited, but that is not conclusive.
16. Held: The State's power to impose restrictions under Article 19(2) to (6) usually has territorial operation, but the ambit of a freedom is not measured by that power. Article 19(1)(a) does not delimit the right. Indian citizens may exercise free speech wherever they choose, subject to existing law and to reasonable restrictions under Article 19(2).
17. Held: Exercising free speech abroad is also subject to the laws of that country. The Constitution gives the executive no power to prevent an Indian citizen from exercising free speech on foreign soil. That is the crux of the matter.
18. Held: The right to go out of India is not an integral part of the right of free speech and expression. Many rights would be more meaningful if extended to an extraneous facility, but such extensions are not part of the right. The analogy of the press is misplaced because free expression includes freedom of the press. The right to go abroad and free speech are made of basically different constituents.
19. Noted: He considers Bhagwati, J.'s analysis of Kent v. Dulles, Aptheker v. Secretary of State and Zemel v. Rusk illuminating. But the due process clause in the 5th and 14th Amendments of the American Constitution makes a significant difference. Ours avoided that expression. He quotes Justice Brennan's article on landmarks of legal liberty and the Yeats play.
20. Held: He prefers to rely on All India Bank Employees' Association v. National Industrial Tribunal. It rejected the contention that the freedom to form unions under Article 19(1)(c) carries the right to do all needed to make it effective. Such a chain of rights was called grotesque.
21. Held: He shares Bhagwati, J.'s view that the right to go abroad is not included in Article 19(1)(a). But if an order under section 10(3)(c) in fact violates free speech, it can be struck down. A statute may pass the test and an order under it may fail.
22. Held: Not hearing the petitioner before or soon after impounding would have introduced a serious infirmity. The Attorney General's statement cures it. The Government is willing to hear her and limit the operation to six months from the fresh decision if adverse. The order does not offend Article 19(1)(a) or 19(1)(g).
23. Held: He agrees with the order proposed by Bhagwati, J.

Bhagwati, J. (for himself, Untwalia and Fazal Ali, JJ.)

Facts, the Passports Act and the refusal of reasons

1. Noted: He records the facts given in the Facts section. The mala fide challenge was not pressed. The petition first relied on Article 14 and on the lack of a hearing. It later added two grounds, Article 21 and Articles 19(1)(a) and 19(1)(g), which were the two principal grounds at the hearing.
2. Noted: The Passports Act, 1967 was enacted in view of Satwant Singh Sawhney. Before it, no law regulated passports and the executive discretion was unguided and unchannelled. The Court held by majority that personal liberty in Article 21 takes in the right of locomotion and travel abroad. Refusal without a law violated Article 21, and the unchannelled discretion violated Article 14. Parliament accepted this and passed the Act. Its preamble (the opening statement of the Constitution's aims) says it regulates the departure from India of citizens and others.
3. Noted: He sets out the Act. Section 3 says no one may depart without a valid passport or travel document. Section 4 lists the classes of passport. Section 5(1) provides for applying, and 5(2) says the authority issues or refuses and gives reasons in writing in a refusal under 5(3). Section 6(1) and 6(2) list the grounds for refusing an endorsement or passport. The last is that the Central Government's opinion is that the presence of the applicant abroad, or the issue of the passport, is not in the public interest.
4. Noted: Section 10(1) lets the passport authority vary or cancel an endorsement or the conditions of a passport. Section 10(2) lets it do so on the holder's application with the Central Government's approval. Section 10(3) lets the authority impound or revoke a passport on grounds (a) to (h). Clause (c) covers the interests of sovereignty and integrity of India, the security of India, friendly relations with foreign countries and the interests of the general public. The impounding order relied on the last part of clause (c).
5. Noted: Section 10(5) requires a brief statement of reasons and a copy on demand, unless the authority thinks giving it is against certain interests. Those interests are the sovereignty and integrity of India, the security of India, friendly relations with a foreign country and the general public. The Central Government used this to refuse a copy. Section 11 gives an appeal. The proviso says no appeal lies against an order of the Central Government.
6. Held: It is a matter of regret that the Central Government took this attitude. When the petition was filed, the Government disclosed the reasons in its affidavit. They show that no reasonable person could think disclosure would prejudice the general public. The power to act in the general public interest can sometimes be improperly exercised. If she had not filed the petition she might never have learned the reasons.
7. Held: The duty to give reasons in section 10(5) is a healthy check on abuse of power. If the reasons are extraneous or irrelevant, the court can strike down the order. The court will be slow to accept without close scrutiny a claim that disclosure is against the general public interest. The authority must show by proper material that giving reasons is clearly and indubitably against it. The court can require disclosure, subject to a valid claim of privilege.

Meaning and content of personal liberty in Article 21

8. Noted: The petitioner's first contention is that the right to go abroad is part of personal liberty. She says the Act prescribes no procedure, or an unreasonable one, because it gives no hearing. The Court asks three questions. What does personal liberty mean? What is the relation between Articles 14 and 21? Does Article 21 need only some semblance of procedure, or a fair and reasonable one?
9. Noted: Fundamental rights had their roots in the freedom struggle. He quotes Granville Austin that they were included in the hope that the tree of true liberty would bloom. They represent the basic values cherished since the Vedic times and protect the dignity of the individual and full development of personality. They weave a pattern of guarantees on the basic structure of human rights and impose negative obligations on the State.
10. Noted: The rights fall under seven heads. Article 14 is the most important of Articles 14 to 18. Article 19(1) enshrines the seven lamps of freedom (speech and expression, assembly, association, free movement, residence, property, and profession). These freedoms cannot be absolute. Clauses (2) to (6) permit reasonable restrictions, and in a well-ordered society freedom can only be regulated freedom. Article 22 protects against arrest and detention.
11. Held: Article 21, though in negative language, confers the fundamental right to life and personal liberty. Personal liberty may be taken away only by procedure prescribed by law.
12. Noted: In Gopalan, Patanjali Sastri, Mukherjea and S.R. Das, JJ. seemed to interpret personal liberty narrowly, as freedom against unlawful detention. There was no definite pronouncement because the question was the inter-relation of Articles 19 and 21.
13. Noted: In Kharak Singh the majority held that personal liberty is a compendious term covering rights other than those in Article 19(1). It takes in the residue. The dissenting Judges said personal liberty is comprehensive and free movement is an attribute of it. The two Articles are independent, there is overlapping, and one is not carved out of the other. If a person's Article 21 right is infringed, a law cannot be a complete answer unless it satisfies Article 19(2) for the attributes covered by Article 19(1).
14. Held: After R.C. Cooper v. Union of India, the dissenting view must be regarded as correct and the majority view overruled. Part III rights are not distinct and mutually exclusive rights. Each freedom has different dimensions, and satisfying the limits on one freedom does not free a law from another guaranteed freedom.
15. Noted: Gopalan gave rise to the theory that Articles 19, 21, 22 and 31 are exclusive codes. Shah, J. for the majority in Cooper overturned it. Part III weaves a pattern of guarantees on the texture of basic human rights. The assumption in Gopalan that certain articles exclusively deal with specific matters cannot be accepted. Cooper disapproved the contrary statements of Kania, C.J., Patanjali Sastri, Mahajan, Mukherjea and S.R. Das, JJ.
16. Held: Articles 19(1) and 21 are not mutually exclusive. Otherwise a preventive detention law, which deprives personal liberty in the narrowest sense, would not need to be tested under Article 19(1)(d). Yet a seven-Judge Bench in Shambhu Nath Sarkar v. State of West Bengal held it must, and Haradhan Saha v. State of West Bengal, a five-Judge Bench, considered such a challenge to the Maintenance of Internal Security Act, 1971. Khudiram Das v. State of West Bengal affirmed this, and Mohd. Sabir v. State of Jammu and Kashmir had referred to Article 191(2).
17. Held: There is no principle for giving personal liberty a narrow meaning so as to exclude attributes dealt with in Article 19. The attempt should be to expand the reach and ambit of fundamental rights and not to attenuate them by judicial construction. The wave length set in R.C. Cooper is the approach now. Personal liberty in Article 21 is of the widest amplitude, and some rights in it were raised to distinct fundamental rights in Article 19.
18. Held: Personal liberty includes the right to go abroad. No person can be deprived of it except by procedure prescribed by law. Before the Act there was no such law, so the order in Satwant Singh was struck down. Article 21's protection is limited. It safeguards the right against executive interference not supported by law, meaning enacted or State law, as Gopalan held.
19. Noted: Parliament enacted the Passports Act to meet that requirement. The question is whether some sort of procedure is enough. The Attorney General with candour conceded that any procedure, however arbitrary, oppressive or unjust, cannot be prescribed. Three of five Judges in Gopalan said the procedure cannot be arbitrary, fantastic or oppressive.
20. Noted: Fazal Ali, J., dissenting in Gopalan, said procedure must include four essentials from Willis on Constitutional Law: notice, opportunity to be heard, impartial tribunal and ordinary course of procedure. Patanjali Sastri, J. said certain basic principles form the core of the procedure established by law. Mahajan, J. said Article 21 requires some form of proceeding and negatives fantastic, arbitrary and oppressive forms.
21. Held: Apart from those observations, even on principle the concept of reasonableness must be projected in the procedure in Article 21. This is because of the impact of Article 14 on Article 21.

The inter-relationship of Articles 14, 19 and 21

19. Noted: The Gopalan majority held that a preventive detention law that satisfies Article 22 is within Article 21 and does not have to meet Article 19. That assumed exclusive articles. It was seriously questioned and overruled by the Full Court in R.C. Cooper, with Ray, J., as he then was, dissenting. He quotes Shelat, J. in Shambhu Nath Sarkar on it. Haradhan Saha and Khudiram Das followed.
20. Held: The law is well settled that Article 21 does not exclude Article 19. A law that prescribes a procedure for depriving personal liberty must meet the challenge of Article 19 if it abridges a right there. Such a law must also be tested under Article 14. The Attorney General did not dispute this. Mukherjea, J. said in Gopalan that Article 21 presupposes a valid law that does not infringe fundamental rights, including Article 14.
21. Noted: This Court applied Article 14 to special procedure laws in State of West Bengal v. Anwar Ali Sarkar and Kathi Raning Rawat v. State of Saurashtra. Each prescribed a procedure not condemned as unfair, yet its validity was tested under Article 14. One was upheld and the other struck down.
22. Held: Article 14 is a founding faith and must not have a narrow, pedantic approach. Equality is dynamic. E.P. Royappa v. State of Tamil Nadu said equality and arbitrariness are sworn enemies. Article 14 strikes at arbitrariness in State action and ensures fairness. The principle of reasonableness pervades Article 14 like a brooding omnipresence. The procedure in Article 21 must be right, just and fair, not arbitrary, fanciful or oppressive. Otherwise it is no procedure at all.

How far natural justice is part of procedure established by law

23. Noted: The petitioner argued that the Act's procedure is unfair because it allows impounding without a reasonable opportunity to be heard. Impounding a passport is serious because it prevents exercise of a constitutional right. Any procedure allowing that without a chance to show cause is unfair and unjust, so Article 21 is infringed.
24. Held: The Act has no express provision requiring the audi alteram partem rule before impounding. That is not conclusive. Even when a statute is silent, the law may imply it. Byles, J. in Cooper v. Wandsworth Board of Works said the justice of the common law will supply the omission of the legislature. Audi alteram partem says no one shall be condemned unheard. Natural justice has two principal rules: nemo judex in sua causa and audi alteram partem. Only the latter is at issue, since no bias was urged.
25. Noted: Natural justice is a great humanising principle. He quotes Lord Morris of Borth-y-Gest in the Bentham Club address and in Wiseman v. Borneman. Natural justice is fair play in action and is not rigid or mechanical. It is recognised in the United States, England, Canada, Australia, New Zealand and even in the United Nations. Lord Denning in Schmidt v. Secretary of State for Home Affairs stated the general principle that a public officer with power to deprive liberty or property must give a hearing. Magarry, J. in Fontaine v. Chesterton called natural justice a distillate of due process of law.
26. Held: The inquiry must always be whether fairness in action demands that the person affected be heard. On this test, there is no distinction between a quasi-judicial and an administrative function. The aim of both is a just decision. An unjust decision in an administrative inquiry may have more serious consequences.
27. Noted: Early law held the rules of natural justice apply only to quasi-judicial proceedings. Atkin, L.J. in Rex v. Electricity Commissioners spoke of a duty to act judicially. Lord Hewart, C.J. in Rex v. Legislative Committee of the Church Assembly read it as a super-added requirement. That gloss bedevilled the law. Lord Reid in Ridge v. Baldwin said it was contrary to earlier authorities. The duty to act judicially may arise from the nature of the function.
28. Noted: India followed. Associated Cement Companies Ltd. v. P.N. Sharma approved Ridge v. Baldwin. State of Orissa v. Dr. Binapani said duty to act judicially is implicit in the power to decide to a person's prejudice. A.K. Kraipak v. Union of India said the dividing line between administrative and quasi-judicial power is thin and is being obliterated. The nature of the power, the framework of law, the consequences and the manner of exercise must be looked at.
29. Held: Fair play in action requires natural justice in administrative proceedings too. In re H.K. (An Infant) and Schmidt discarded the dichotomy in England, and A.K. Kraipak did so in India. Lord Parker, C.J. in H.K. spoke of a duty to act fairly. Hegde, J. in A.K. Kraipak said the aim of natural justice is to prevent miscarriage of justice, and the rules supplement the law of the land. Suresh Koshy George v. University of Kerala and D.F.O. South Kheri v. Ram Sanehi Singh reaffirmed it. Even an administrative proceeding with civil consequences attracts natural justice.
30. Held: The power to impound a passport impairs the constitutional right to go abroad. It can be used only on specified grounds after the authority applies its mind. Reasons must be recorded and, save in exceptional cases, given to the holder. An appeal lies when the authority is not the Central Government. So the test for a quasi-judicial power is satisfied and the power is quasi-judicial. Natural justice applies on the orthodox view. It also applies on the A.K. Kraipak view, because impounding seriously interferes with a constitutional right and has adverse civil consequences.
31. Noted: The Attorney General fairly conceded that audi alteram partem is a highly effective tool and its reach should not be narrowed. He did not ask the Court to retrace its steps. His limited contention was that the rule must be excluded because prior notice might let the holder leave the country and frustrate the impounding. He cited de Smith, Judicial Review of Administrative Action, that a right to prior notice may be excluded where it would obstruct prompt action.
32. Held: The right to prior notice arises by implication from the duty to act fairly. It may be excluded where the nature, object and purpose of the action and the statutory scheme warrant it. The word exception is a misnomer, because in such cases nothing unfair is inferred from not giving a hearing. The rule cannot be applied to make the law lifeless, absurd, stultifying or self-defeating. It must not be jettisoned save in very exceptional circumstances where compulsive necessity demands.
33. Held: A fanatical or doctrinaire approach is to be avoided, but a formal hearing that would stultify the power does not mean the rule is wholly excluded. The Court must salvage the cardinal rule to the maximum extent. Natural justice is pragmatically flexible. The core is a reasonable opportunity of being heard, a genuine hearing and not an empty public relations exercise. Tucker, L.J. in Russell v. Duke of Norfolk said one essential is a reasonable opportunity of presenting the case.
34. Held: The opportunity may be a full hearing or brief and minimal. It may come before the decision or be a post-decisional remedial hearing. Lord Reid in Wiseman v. Borneman was sorry to see the principle degenerate into hard and fast rules, and Lord Hailsham in Pearlberg v. Party spoke of a more sophisticated view. The audi alteram partem rule is not excluded merely because prior notice might frustrate impounding.
35. Held: The Passport Authority may impound without prior hearing. But as soon as the order is made, a remedial hearing should follow so the person can present her case and ask for the order to be recalled. This is possible because reasons are to be supplied after the order. A provision for such a hearing must be read into the Act by necessary implication. Then the procedure is right, fair and just, and does not offend Article 21.
36. Held: The Central Government neither gave a hearing after impounding nor gave reasons on request. Withholding the reasons was unjustified, breached the statute and denied a hearing. So the order violated audi alteram partem and did not conform to the Act's procedure.
37. Held: The Attorney General realised this was a fatal defect and made a statement for the Government. It will consider a representation and hear the petitioner within two weeks. The grounds are those in the affidavit in reply of 18 August 1977 by Shri Ghosh except item 2(xi). The representation will be dealt with expeditiously in accordance with law. This statement removes the vice from the order. It can no longer be assailed as not complying with audi alteram partem or the Act's procedure.

Is section 10(3)(c) violative of Article 14?

36. Noted: The argument was that section 10(3)(c) gives unguided and unfettered power. The ground of interests of the general public was too vague. The authority could impound one passport and not another. A Central Government order has no appeal or revision and is final.
37. Held: The law is settled that a statute giving unguided and unrestricted power, without policy or principle, is affected by discrimination. But the discretion here is not unfettered. Section 10(3)(c) has four grounds. The words interests of the general public have a well-defined meaning. Courts have often decided whether an action is in public interest and had no difficulty.
38. Held: These words are borrowed from Article 19(5). The constitution makers cannot be accused of vague thinking. The legislature performed a scissor and paste operation. If the words are not vague in Article 19(5), they are not so in section 10(3)(c). The power is not unguided or unfettered.
39. Held: The power does not rest on subjective opinion alone. The authority must record reasons and, save in exceptional cases, give a copy. The person can appeal, and the appellate authority can examine the reasons. When the Central Government itself passes the order there is no appeal, but it can be assumed to act reasonably. Abuse cannot be lightly assumed, and the court can strike down abuse. Section 10(3)(c) does not offend Article 14. Every exercise must still be tested to see if it is arbitrary or within the guidelines.

Conflicting approaches to locating the violated fundamental right: the direct and inevitable effect test

40. Noted: Which test decides whether a statute infringes a fundamental right? The law has changed radically since Gopalan. In Gopalan, Kania, C.J. said the true approach is to consider the directness of the legislation and not the result on the detenu's life. Patanjali Sastri, J. approved this in Ram Singh v. State of Delhi, where detention to prevent speeches was held not to infringe Article 19(1)(a).
41. Noted: Gopalan and Ram Singh gave rise to the theory that the object and form of State action determine the protection. The test asked what the object is, what the subject matter is, and to which fundamental right it relates. Naresh Shridhar Mirajkar v. State of Maharashtra applied it to uphold a High Court order forbidding publication of a witness's evidence.
42. Noted: Two earlier decisions deviated. Express Newspapers (P) Ltd. v. Union of India, per N.H. Bhagwati, J., formulated the test of direct and inevitable effect. Remote consequences that depend on various factors do not suffice. Sakal Papers (P) Ltd. v. Union of India applied direct and immediate effect. It relied on Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co. Ltd. that the substance and practical result should be considered.
43. Held: R.C. Cooper finally rejected the doctrine that object and form of the State action alone decide the protection. That doctrine is the same as the pith and substance test used for legislative powers. Mathew, J. in his dissent in Bennett Coleman v. Union of India saw the likeness. Shah, J. in Cooper said the extent of protection is determined by the direct operation of the action on the individual's rights. It is not determined by the object of the legislature or the form of the action.
44. Noted: Ray, J. in Bennett Coleman reads Cooper as laying down two inter-related propositions. It is not the object or form that determines invasion of the right. It is the effect of the law and action on the right, and direct operation is the real test. The Government argued that the newsprint policy's object was rationing. The majority rejected it. The word direct goes to the quality of the effect and not to the subject matter.
45. Held: The pith and substance theory was negatived. The test is the direct and inevitable consequence of the State action on the fundamental right. In a given case, the pith and substance may deal with one right while the direct and inevitable effect falls on another. Then the action must meet the latter challenge.
46. Held: Cooper refers only to direct operation and does not use the word inevitable. But that was the intended test. A test of direct or indirect effect alone is open-ended and gives the Court unquantifiable discretion. Inevitable, from Express Newspapers, supplies operational criteria. If an effect is direct and inevitable it must be presumed to have been intended, so the doctrine is described as the doctrine of intended and real effect. This test decides whether section 10(3)(c) or the order violates Article 19(1)(a) or (g).

Is section 10(3)(c) violative of Article 19(1)(a) or (g)?

46. Noted: Prima facie, the right restricted is the right to go abroad, which is not named in Article 19(1)(a). The petitioner argued it is an integral part of free speech, so State action restricting it must meet Article 19(1)(a). The Union answered in two limbs. Free speech is exercisable only in India. And the right to go abroad is not integrally connected with free speech.
47. Noted: Is free speech confined to the territory of India? The Union argued that fundamental rights are available only in India, because the constitution makers could not intend to confer rights the State cannot enforce. It asked whether the rights were meant to be mere platitudes outside India.
48. Held: This argument is unsound. Part III inscribed basic rights that inhere in every human being. The freedom struggle, Mahatma Gandhi's spiritualism and Indian cultural history were the background. The rights were conceived in their widest sweep. The constitution makers recognised the spiritual dimension of man, the children of immortality of the Upanishadic verse.
49. Held: Free speech carries the right to gather information and to speak and express oneself at home and abroad. Article 19(1)(a) does not add the words in the territory of India. The Court will not supply words that narrow a cherished fundamental right. It cannot be stultified by territorial limitation.
50. Noted: The Universal Declaration of Human Rights was adopted on 10 December 1948, while the constitutional debate was going on. Its Article 19 speaks of freedom of opinion and expression regardless of frontiers. The Court has no doubt that free speech under Article 19(1)(a) is exercisable not only in India but outside.
51. Held: The right can be enforced only against State action, and State action generally has no extra-territorial operation. But it can be taken in India and prevent or restrict exercise of free speech outside India. A journalist prevented by an executive order from sending his despatch abroad is an example. In the modern world a person may exercise free speech abroad by acting within the country. That State action is restricted to India does not limit the right to India.
52. Held: A restriction within Article 19(2) imposed by a statute or order binds the citizen abroad as well. An arbitrary condition in a passport that the holder may go abroad but must not make any speech there would interfere with free speech abroad. He could say it is impermissible under Article 19(2) and void under Article 19(1)(a).
53. Held: Personal liberty in Article 21 includes the right to go abroad, including to a specified country, as Satwant Singh held. When a passport is endorsed for one country and refused for another, the right to go to that country cannot be taken away without a law and its procedure. The right is exercisable outside India yet protected by Article 21. So the Constitution has no underlying principle limiting fundamental rights to the territory of India. If an Article 21 right can be exercisable outside India, so can free speech.
54. Noted: This accords with the United States, where the preponderance of opinion is that the Bill of Rights protects citizens abroad. He cites Best v. United States and Leonard B. Boudin in the Columbia Law Review that there are no geographical limitations to the Bill of Rights. Hegde, J. quoted this in Dr. S.S. Sadashiva Rao v. Union of India in the Karnataka High Court. This applies equally to the right to practise a profession under Article 19(1)(g).
55. Noted: Is the right to go abroad covered by Article 19(1)(a) or (g)? The petitioner said its existence is necessary to make the freedoms meaningful and effective. Impounding prevents a person going abroad to communicate ideas or to express himself in song or dance. Association with like-minded persons abroad is indispensable in a modern world. The right to go abroad is a peripheral right emanating from free speech.
56. Held: He first considers the nature of the right to go abroad. There must be a free sphere for man. Freedom to go abroad is one of the basic rights. It nourishes independent and self-determining creative character. It extends the scope of experience. It benefits intellectual and creative workers and private life such as marriage, family and friendship. It is valuable where a man must flee for religion, personal freedom or life. It is an ultimum refugium libertatis, a last refuge of liberty. Justice Douglas in Kent v. Dulles called it a basic human right of great significance. It is Article 13 of the Universal Declaration. But it is not named in Article 19(1).
57. Held: A right not named can still be a fundamental right covered by Article 19(1). Freedom of the press is an example. Democracy rests on free debate, and a free press is essential. Express Newspapers, Sakal Newspapers and Bennett Coleman held it part of Article 19(1)(a). It is an aspect of free speech. Freedom of circulation, per Ramesh Thappar v. State of Madras, and the right to paint, sing, dance or write poetry are also within Article 19(1)(a). Each is an exercise of free speech.
58. Held: The test: a right not named is covered only if it is an integral part of a named fundamental right or partakes of the same basic nature and character. It is not enough that it flows from a named right or is necessary to make its exercise meaningful and effective. Every activity that facilitates a named right is not included in it. The contrary construction would give incongruous results and upset the scheme of Article 19(1). So the right to go abroad cannot in all circumstances be regarded as included in free speech.
59. Held: Freedom of movement at home and abroad is a highly cherished part of India's heritage. He quotes Justice Douglas in Kent v. Dulles and recalls Vedic seers, Buddhist times, and travel for trade and learning. India's ships crossed the ocean. But the right is not of the same basic nature and character as free speech. A person goes abroad for many reasons. Every travel abroad is not an exercise of free speech. Going abroad may be necessary for free speech but that does not make it integral to it.
60. Noted: The petitioner relied strongly on three United States decisions. Kent v. Dulles held that the right to travel is guaranteed by the Fifth Amendment. It also held that the Secretary of State lacked statutory authority to refuse a passport on grounds of communist association. It did not rest on the First Amendment, so it does not help.
61. Noted: Aptheker v. Secretary of State struck down section 6 of the Subversive Activities Control Act, 1950 by six to three. It applied a strict standard because the section swept unnecessarily broadly. The right to travel arose from the Fifth Amendment liberty. The observation that freedom of travel is closely related to free speech and association only supported extending the strict First Amendment test.
62. Noted: Zemel v. Rusk held by six to three that the ban on travel to Cuba was authorised and constitutional. It distinguished Kent and Aptheker because refusal did not result from expression or association. Justice Douglas dissented. He said the right to travel is peripheral to First Amendment guarantees. He did not hold it a First Amendment right. Both the majority and Douglas asked whether the restriction directly interferes with a First Amendment right. That is the same test as this Court's.
63. Held: The theory that a peripheral or concomitant right that facilitates a named right is itself included cannot be accepted. All India Bank Employees' Association v. National Industrial Tribunal supports this. The challenge there was to section 34A of the Banking Companies Act. The ground was that the right to form unions under Article 19(1)(c) carries the right that unions should achieve their purpose. The Court refused. Such a reading would upset the scheme, since restrictions differ under Article 19(4) and 19(6). The right to strike is not by implication part of the right to form associations.
64. Held: The right to go abroad is not included in free speech on the peripheral or concomitant right theory. The Court cannot revive it. It would lead through ever-expanding concentric circles of concomitant rights to a grotesque result. It is also not part of the right under Article 19(1)(g). It is not guaranteed under any clause of Article 19(1). Section 10(3)(c) cannot be held void under Article 19(1)(a) or (g), because its direct and inevitable impact is on the right to go abroad.

Constitutional requirement of an order under section 10(3)(c)

61. Held: That does not mean an order under section 10(3)(c) cannot violate Article 19(1)(a) or (g). Even where a statutory provision is valid, action under it may offend a fundamental right, and the action may be void. Section 10(3)(c) is valid but an order under it may be invalid if it contravenes a fundamental right.
62. Noted: He gives examples. A pilot with an international licence has international flying as his profession. Impounding his passport directly interferes with it and is void unless justified under Article 19(6). An evangelist who sets up institutions in many countries is affected in free speech, and the challenge is unanswerable unless Article 19(2) saves it. A musician, a dancer, a visiting professor, a scholar at a conference or a correspondent on a foreign assignment are other examples.
63. Held: Though the right to go abroad is not a fundamental right, denial may in truth restrict free speech or the freedom to carry on a profession. Refusal or impounding is then invalid unless justified under Article 19(2) or 19(6).
64. Held: A passport can be impounded under section 10(3)(c) in the interests of sovereignty and integrity of India, security of India, friendly relations with foreign countries or the general public. The first three are the same as in Article 19(2). Each is a species within the broad genus of interests of the general public. The expression is wide and covers all such interests. An order in conformity with section 10(3)(c) that restricts the freedom to carry on a profession is protected by Article 19(6).
65. Held: If an order under section 10(3)(c) restricts free speech, it is not enough that it is in the interests of the general public. It must fall within Article 19(2). Orders for sovereignty and integrity, security or friendly relations satisfy Article 19(2). Any other interest of the general public, save public order (the peace and tranquillity of the community), decency or morality, would not be protected. So, to avoid Article 19(1)(a), section 10(3)(c) must be read down. When an order restricts free speech it must be made in the interests of public order, decency or morality, or the other three categories. If not, it contravenes Article 19(1)(a) and is outside the authority given by section 10(3)(c).

Constitutional validity of the impugned order

66. Held: The first ground, breach of audi alteram partem, is cured by the Attorney General's statement. The second ground was that the order placed unreasonable restrictions on free speech and the profession of a journalist. It impounded the passport indefinitely on mere likelihood of her being required by the Commission of Inquiry headed by Mr. Justice J.C. Shah. The Court finds no substance in it. Adil Shahryar supplemented this ground.
67. Held: A valid statutory power does not give a carte blanche. Every order must be within the authority and also stand the test of fundamental rights. Parliament cannot be presumed to authorise action contravening fundamental rights. Narendra Kumar v. Union of India shows this. There, the Government said the Non-ferrous Metal Control Order made under section 3 of the Essential Commodities Act, 1955 could not be tested against fundamental rights. Das Gupta, J. called it an extravagant argument that deserved rejection. Such words as in accordance with the Constitution are read into every law.
68. Held: Even if an order is made in the interests of public order, decency or morality, it may still be unreasonable. Its restriction may be so wide, excessive or disproportionate to the mischief. If its direct and inevitable consequence is to abridge free speech it would violate Article 19(1)(a) and lose the protection of Article 19(2). Likewise an order in the general interest that directly and inevitably impinges on a profession would contravene Article 19(1)(g) and not be saved by Article 19(6).
69. Held: The impugned order does not violate Article 19(1)(a) or (g). It impounds her passport and prevents her going abroad. When it was made, nothing showed she intended to go abroad to exercise free speech or her profession as a journalist. The direct and inevitable consequence was to impede her right to go abroad, not to interfere with free speech or her profession.
70. Noted: If in future she wants to go abroad for free speech or her profession and applies to release the passport, a question will arise. Is continuing to impound in the interests of public order, decency or morality, or in the general interest? Is it reasonable under Article 19(2) or 19(6)? That is not the question now.
71. Held: If the order violated free speech or her profession, it would not be saved by Article 19(2) or 19(6), because impounding for an indefinite period is an unreasonable restriction. The Union said the order lasts as long as the Commission of Inquiry, whose limit was 31 December 1977. Time limits can be extended, and hardly any Commission finishes on time. The Commission's term had been extended to 31 May 1978. So the period could extend to an indefinite time and the order would be unreasonable.
72. Noted: The Attorney General therefore stated that if impounding is confirmed after hearing her, it will not exceed six months from the date of the decision on her representation. Bhagwati, J. says this is a reasonable stand. A democratic Government should act constitutionally, legally, fairly and justly. He hopes impounding will always be for a specified time that is not unreasonably long.
73. Held: The last argument, that the order cannot rest on mere opinion that she is likely to be required by the Commission, is without force. It is for the Commission to decide finally whether her presence is required. But the Central Government that constituted the Commission and fixed its terms can say with reasonable anticipation whether she is likely to be required. It does not act in a vacuum. The question at this stage is only likelihood, and that can be left to the Government.

Whether the impugned order is intra vires section 10(3)(c)

74. Held: The order is on its face made in the interests of the general public, so it must be judged on that footing. Under a plain construction the Passport Authority decides whether impounding is necessary. But the order is subject to judicial review on three grounds. The order may be mala fide. Its reasons may be extraneous or irrelevant. Or the reasons may be unable to support the order in the general interest. The Union did not dispute that, save in exceptional cases, reasons must be given.
75. Noted: The Government initially claimed disclosure was not in the interests of the general public. It realised this was untenable when it filed the affidavit in reply. The reasons recorded when the order was passed were as described in the Facts.
76. Held: The petitioner argued that the expression interests of the general public must be read in the perspective of the statute. The statute relates to foreign affairs. So the expression could not cover the need for a person to give evidence before a Commission of Inquiry. The argument is plainly erroneous. It seeks to cut down a wide expression with a well-recognised legal meaning, also found in Article 19(5) and (6). Rohtas Industries Ltd. v. S.D. Agarwal says a statute operates within a perspective. That does not justify narrowing its scope by a limitation with no basis in the language. Clauses (d), (e) and (h) of section 10(3) show several grounds unrelated to foreign affairs.
77. Held: The argument on clauses (e) and (h) and the maxim expressio unius exclusio ulterius is unsustainable. That maxim has no application here. Clause (e) deals with proceedings pending before a criminal court, and clause (h) with a warrant, summons or prohibition order from a court. Neither covers a Commission of Inquiry that has not yet issued a summons or warrant. Even assuming a Commission is a court for clause (h), such a case is not covered.
78. Held: Such a case falls within the general power in section 10(3)(c) if requiring the person is in the interests of the general public. The Central Government may ask the Commission for a summons or warrant, and then it may impound under clause (h). But before that stage it may impound under clause (c) if it is in the general interest. Clauses (e) and (h) cover two specific situations. A myriad other situations cannot be anticipated and are taken care of by clause (c).
79. Noted: It is a drastic power to interfere with a basic human right. It was conferred in public interest, and it will be used sparingly, with great care and circumspection. Ordinarily the passport of a person will not be impounded merely because he is required in connection with a proceeding, unless the case falls within section 10(3)(e) or (h). He echoes Lord Denning in Ghani v. Jones that a man's liberty of movement is not to be hindered except on the severest grounds.
80. Held: On the argument that public interest must exist in praesenti, he agrees. The order can be made only if it is actually in the interests of the general public. It is not enough that the interest may be served in future. Here the order was made for two reasons. In the Central Government's opinion her presence was necessary to give evidence before the Commissions of Inquiry. And a report said she was likely to leave India, which might impede the inquiries.
81. Noted: The Ministry of Home Affairs note of 9 May 1977 said public interest would justify recourse to section 10(3)(c) for impounding the passports of the persons on its list. The Minister considered that note.
82. Held: The Minister for External Affairs did apply his mind. The affidavit says he considered the relevant material and confidential information from intelligence sources. The Ministry of Home Affairs had sent on 9 May 1977 a list of persons likely to be required, including her. Only eleven passports were ordered impounded and no action was taken on hers. On 1 July 1977 he received confidential information that she was likely to try to leave, and then made the order.
83. Held: On the argument that she had no evidence to give because she had nothing to do with emergency excesses or Maruti, the Court cannot investigate it. The Government instituted the Commissions and is best placed to know whether her presence is likely to be required. She may not be required in the end. The Government's view is not so unreasonable or perverse that the order should be struck down as arbitrary.
84. Held: The Court sees no reason to interfere with the order. It cautions the Passport Authority. Refusing, impounding or cancelling a passport interferes with a basic human right recognised in Article 13 of the Universal Declaration of Human Rights. It is part of personal liberty and an aspect of the spiritual dimension of man. Some people have been refused permission to go abroad for their views, opinions, political beliefs or economic ideologies. Eternal vigilance is the price of liberty. Subtle and insidious encroachments for a good cause corrode the foundations of liberty.
85. Held: In view of the Attorney General's statement, the Court does not think it necessary to formally interfere with the order. It disposes of the writ petition without a formal order. There will be no order as to costs.

Krishna Iyer, J. (concurring with Bhagwati, J.)

1. Noted: His concurrence with Bhagwati, J. makes this supplementary opinion in one sense redundant. But the vires of a law that gives the Central Executive wide powers over life-giving liberties is challenged. The ground is virgin, and travel abroad is growing in importance. He breaks judicial lock-jaw to express the juristic perspective and to touch up the portrait Bhagwati, J. drew.
2. Noted: Democracies have seen executive lawlessness and eclipse of liberty. Judges must oversee the enjoyment of the great rights. The Court lays down law lastingly. The case is about indefinite immobilisation of the petitioner's passport, with the reason veiled from her and a hearing withheld under the label public interest. Paper curtains wear ill on good governments.
3. Noted: The questions he frames are these. What is the nexus between a passport and a Part III right? What is the object and effect of the key provisions of the Passports Act? Do they cut down Articles 21, 19 or 14? Can section 10(3)(c) be read down to accord with the Constitution? If the Act is good, is the impounding order bad? He says the broader range of issues was argued at the bar. Hard cases make bad law and bad cases blur great law.
4. Noted: The key concepts are personal liberty and procedure established by law. The architects of the Constitution were humanists, spiritual and secular, conscious of colonial screening of Indians going abroad and of the struggle for liberation waged from foreign lands.
5. Noted: He traces the history of travel. Indian culture and commerce went abroad. In Kautilya's time there was a Superintendent of Passports issuing passes at a masha a pass. Socrates in the Crito spoke of the liberty to emigrate. Magna Carta in 1215 affirmed the freedom to move beyond the kingdom. Blackstone said a man may go out of the realm without the king's leave. Lord Diplock in D.P.P. v. Bhagwan and Lord Denning in Ghani v. Jones recognised the liberty. Prof. Street, Prof. Wade and Prof. Hood Phillips echo it. Justice Douglas restated it in Aptheker.
6. Noted: Satwant Singh, by Subba Rao, J., set the tone in India. Tambe, C.J. in A.G. Kazi, for the Bombay High Court, said personal liberty is not confined to freedom from physical restraint. It includes travelling and going wherever one likes.
7. Noted: The American passport story shows fine men denied the right to go abroad, such as Linus Pauling, Charles Chaplin, Paul Robeson, Arthur Miller and William L. Clark. He quotes Earl Warren's autobiography on Senator McCarthy. The British Raj frowned on foreign travel by Indian patriotic suspects. Many countries have used the passport and visa system as a paper curtain against dissenters. Absent forensic sentinels, people may be suppressed by power in the name of the people.
8. Noted: Global awareness has dawned. The European Convention on Human Rights (Fourth Protocol) widened freedom of travel. Article 13 of the Universal Declaration of Human Rights says everyone has the right to leave any country and to return. The right is still inchoate but is a base. The human planet is one home. Stopping creative mobility by totalitarian decree makes communities stagnate. The right to a passport is the core of liberty and not a casual facility.
9. Noted: Travel abroad is also a cultural enrichment. It serves the national interest to have citizens see other countries and judge their own on a comparative scale. He quotes Kipling. The Constitution must be read with the Discovery of India and the divinity of the soul in the Preamble. It must also be read with the heritage of Swami Vivekananda, who said India fell because it did not mix with other nations.
10. Noted: The founders were influenced by the fascist horror of World War II, the Universal Declaration and the bitter feeling of the British Raj trampling on swaraj. Prof. Schwartz says free movement is an essential attribute of citizenship. It is a vital element of personal liberty and includes the right to travel abroad. The watershed between a police state and a people's government may partly turn on passport policy.
11. Held: Life and liberty are first among equals. Truncate liberty in Article 21 and the other freedoms fade out. Justice Douglas in Kent v. Dulles and Aptheker said the right to travel is part of liberty. He recalls Chafee, Judge Wyzanski and Blackstone on locomotion. The Bangalore Jurists' Conference of 1969 said freedom of movement, including leaving one's country, is a vital human liberty. Personal liberty makes for the worth of the human person and travel makes liberty worthwhile. Absent liberty, other freedoms are frozen.
12. Held: Procedure established by law. If Article 21 includes foreign travel, its exercise can be fettered by procedure established by law. But procedure cannot be anything formal, legislatively processed but absurd or arbitrary. Law needs legitimacy from the conscience of the community. It must be functional, not fatuous. A transient legislative majority cannot by three quick readings prescribe an unreasonable procedure and sterilise the mandate.
13. Held: Procedure established by law must import an adjectival rule of law (the principle that everyone, including the State, is under the law), civilised in soul and fair at heart. An enacted apparition is a constitutional illusion. Processual justice is written patently in Article 21. Procedure for regulating or rejecting a right in Article 21 must be fair, not foolish, designed to effectuate and not subvert the right. It must rule out anything arbitrary, freakish or bizarre. Established, a strong word, means settled firmly, not wantonly or whimsically.
14. Noted: Gopalan shows this. Patanjali Sastri, J. rejected the Attorney General's view that established means only prescribed. It would leave the most important fundamental rights at the mercy of legislative majorities. He took a via media of the ordinary and well-established procedure. Fazal Ali, J. read into Article 21 the four essentials of natural justice from Willis. Mahajan, J. said Article 21 negatives a fantastic, arbitrary and oppressive form of proceedings. Krishna Iyer, J. concurs in essence with Fazal Ali, J. Kochunni's case doubted the correctness of Gopalan on this aspect.
15. Held: Procedure in Article 21 means fair, not formal procedure. Law is reasonable law, not any enacted piece. Article 22 spells out safeguards for preventive and punitive detention. For other rights forming part of personal liberty, the safeguards in Article 21 are available. Otherwise the right to life, more fundamental than others, would have no procedural safeguard except as a legislature's mood chooses.
16. Noted: He cites John v. Rees that a doubt on applying the principles is resolved in favour of applying them, and Lord Denning in Schmidt. Reasonable procedure runs through Articles 19 and 14. No Passport Officer shall be a mini-Caesar and no Minister an incarnate Caesar.
17. Held: Liberty of locomotion into alien territory cannot be unjustly forbidden. Passport legislation must contain processual provisions that 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. This is subject to just exceptions and critical contexts.
18. Held: Article 21 clubs life with liberty. The peril is deprivation of life without minimal processual justice. Article 10 of the Universal Declaration shows rights are hollow without audi alteram partem. When pleas of pragmatism, public interest or national security are urged, courts are on trial. The ruling is not confined to the petitioner. It protects the job-seeker, nun and nurse, mason and carpenter, and above all the political dissenter. He quotes Tom Paine, G.B. Shaw and Justice Jackson in West Virginia State Board of Education v. Barnette. The price of daring dissent shall not be passport forfeit.
19. Held: Sections 5, 6 and 10 must be tested under Article 21 on canons of processual justice. Hearing is obligatory, meaningful, flexible and realistic, not ritualistic and wooden. In exceptional cases and emergencies, interim measures may be taken to avoid the passport holder becoming an escapee before the hearing. Bolt the stables after the horse has been stolen is not a command of natural justice. But a reasonable hearing must follow soon after provisional seizure. When a prompt final order is made, reasons must be disclosed almost invariably, save in dangerous cases with irreparable injury to the State. A government that revels in secrecy in the field of people's liberty acts against democratic decency.
20. Held: On Article 14, he agrees fully with Bhagwati, J. Article 14 has a pervasive processual potency and is egalitarian in its soul. Equality is the antithesis of arbitrariness. Ex cathedra ipse dixit is the ally of demagogic authoritarianism. Be you ever so high, the law is above you.
21. Held: The suggestion that the right to travel abroad cannot be guaranteed because the State has no extra-territorial jurisdiction is a naive misconception. Nobody contends that India should interfere with other countries. The point is that the Government of India should not by sanctions over its citizens stop them from moving in another country that has no objection.
22. Held: On Article 19, Gopalan's cocooning of Article 22 as a self-contained code was superseded by R.C. Cooper. He traces Gopalan, In re Kerala Education Bill, All India Bank Employees Union, Sakal Newspapers, Cooper, Bennett Coleman and Shambhu Nath Sarkar. The law is settled that no article in Part III is an island but part of a continent. Article 21 does not, in a given situation, exclude Article 19 if both rights are breached.
23. Noted: He confines himself to fundamentals because of total consensus with Bhagwati, J. The Court should not interpret Part III to choke its life-breath by legalism. Exceptions in Article 19(2) to (6) harmonise freedom with community good, but what is fundamental is the freedom, not the exception. Restraints are permissible only to the extent they have a nexus with the approved object.
24. Noted: He gives examples of misuse. Family planning serves the general public, but refusing a passport for lack of a sterilisation certificate would be constitutional impertinence. Impounding a passport because the holder will not demolish a house that projects into the street line would be monstrous. Government cannot equate the Party with the country and refuse travel because the person may criticise the party in power. Sideburns or sartorial vagaries offending an official's sense of decency cannot cost the right to go abroad.
25. Held: Liberty can be curtailed only if the grounds in the saving sub-articles are directly, specifically, substantially and imminently attracted. To paint with an over-broad brush a power to ban travel is to sweep overly and invade illicitly. The law of fear cannot reign where the danger is containable. Courts must not interfere where the order is not perverse, unreasonable, mala fide or unsupported by material. Court writs cannot run government and judicial review must not be a judicial coup. But lawless law and executive excess must be halted. He cites V.G. Row on reasonableness depending on the values of society, the circumstances, and the degree and urgency of the evil.
26. Noted: The right of exit may be restricted, but it should not rest with minions or masters of government without constitutionally sanctioned legislative norms. Where laws end, tyranny begins. Security, public order, public interest and friendly foreign relations are scary expressions. Not verbal labels but real values govern. Governments come and go, but the fundamental rights of the people cannot be subject to the wishful value-sets of political regimes.
27. Noted: The Attorney General argued that the right to travel abroad is no part of Article 19(1)(a), (b), (c), (f) or (g). He said its direct effect is not a blow on free speech, association or profession. Krishna Iyer, J. asks three questions. Is free speech integrally interwoven with locomotion? Does a professional barred from a job abroad lose his freedom of profession? Can membership of an international body be cut off by executive ipse dixit? An anti-international pathology shall not afflict the Charter.
28. Held: Locomotion is in some situations necessarily involved in the exercise of specified fundamental rights as an associated or integrated right. Travel simpliciter is peripheral to Article 19 and not necessarily fundamental. Free speech is feasible without movement beyond the country. Movement within India is not affected by the order. But the world moves and Indians travel abroad on a scale unknown in history. Free speech and free profession may be inextricably tied to foreign travel.
29. Held: Merely because speaking often involves movement, it does not follow that free speech is dead if free movement is denied. The Court cannot over-stretch free speech to make it an inextricable component of travel. He quotes Thomas Emerson that travel abroad is action rather than expression and is protected under the due process clause, though First Amendment questions arise where expression is involved. Travel is speech bridged with conduct, per Justice Douglas. He does not accept as wholly valid the Douglas view of restrictions particularised so a First Amendment right is not precluded, but refers to it as kindred reasoning.
30. Held: The Passports Act does not itself inhibit expression, and only regulates action, as Chief Justice Warren said in Zemel. But the proximate and real consequence of thwarting transnational travel must be seen. Associated rights totally integrated with fundamental rights must enjoy the same immunity, and not otherwise.
31. Held: Three sets of cases arise. First, where the law or order expressly forbids exercise of a fundamental right in foreign lands while granting a passport. An example is a condition not to address meetings or not to be a journalist or professor abroad. That violates Article 19(1)(a) or (f) unless Article 19(2) or (6) is complied with. Second, where the order is innocent on its face but refusal to go abroad with certainty and immediacy spells denial of free speech or profession. Third, where the fundamental right itself involves locomotion regardless of frontiers. The second and third often blur and overlap.
32. Held: The third class includes an international pilot, an astronaut, a Judge of the International Court of Justice and a Secretary of the World Peace Council. It also includes a cricketer or tennis player on a world tour. It also includes a campaigner before the United Nations against colonialism or genocide. In these cases no right of exit means no practice of the profession or vocation.
33. Held: The second class covers, for example, a lawyer, doctor, expert, exporter, missionary or guru visiting abroad professionally or on a speaking assignment. The direct effect, necessary consequence and immediate impact of the embargo is infringement of the right to expression or profession. It is unconstitutional unless Articles 19(2) to (6) are complied with. Substantial justification must be shown. National security, sovereignty, public order and public interest must be of a high degree to offer a great threat, and should not be devalued to suit executive hypersensitivity. The dogs may bark but the caravan will pass. Danger to a party in power is not the same as danger to the security of the State. He quotes Sir Winston Churchill on freedom of criticism in wartime.
34. Held: Spies, traitors, smugglers and saboteurs shall not be passported into hostile soil. But over-breadth, hyper-anxiety and political mistrust shall not exaggerate facts that objectively are tremendous trifles into neurotic refusal or unlimited impounding. So the provisions have to be read down into constitutionality, tailored to the reasonableness test and humanised by natural justice. The Act will survive but the order shall perish for the reasons set out by Bhagwati, J.
35. Noted: He describes the global setting. The human planet is a lovely mosaic, geographically variegated, culturally diverse and politically pluralist. Science and technology are competitive and co-operative there. The whole is suffused with a cosmic consciousness of unity. The Universal Declaration of Human Rights proclaimed the right to leave any country. Travel abroad is viewed as a cultural enrichment.
36. Noted: The founders' minds were shaped by international fellowship and by the vulnerability of freedoms even in democracies. The bitter feeling of the British Raj affected their celebrations. The hidden divinity in every human being influenced their mentations. He speaks of the mystic chords of ancient memory and of the pathology of provincialism.
37. Noted: Life and liberty are protected by constitutional armour. If liberty in Article 21 is truncated traumatically, the other freedoms fade out automatically. Justice Douglas expressed this with imaginative realism, and Krishna Iyer, J. finds the quotation repetitive but emphasises it. He warns of the proneness of Power to stoop to conquer.
38. Noted: The ruling protects the job-seeker and the political dissenter. The Establishment has a tendency to enforce conformity, but the dissenter is the resource of social change. He quotes George Bernard Shaw: the reasonable man adapts himself to the world, and the unreasonable man persists in trying to adapt the world to himself.
39. Noted: A government that revels in secrecy about people's liberty busies itself with its own burial. History is the teacher and memory our mentor, and decline of liberty must not be our unwitting endeavour. Article 14 has a versatile quality and is allergic to discriminatory diktats. The plea about extra-territorial jurisdiction is a misconception.
40. Noted: On Article 19, the fluctuating fortunes of fundamental rights may provoke sociological research and the Cardozo thesis of sub-conscious forces in judicial thinking. He traces the line from Gopalan and In re Kerala Education Bill to Cooper. The questions canvassed at the bar overlapped, so he confines himself to fundamentals. Confusion on the fundamentals, he says, may mar the conclusion.
41. Noted: It is a salutary thought that the summit court should not choke the life-breath of Part III by legalism. The enduring values burning in the bosoms of those who won independence must guide it. His total consensus with Bhagwati, J. jettisons the profusion of precedents and the mosaic of points from his opinion.
42. Noted: The right of exit should not rest with government without being gently and benignly censored by constitutionally sanctioned legislative norms. Liberty must not drown in the hubris of power. A law is unlaw, even if legitimated by three readings and one assent, when it does not accord with the Constitution, which binds both branches of government. Not verbal labels but real values govern the exploration of constitutional prescriptions and proscriptions.
43. Noted: The Attorney General and the Additional Solicitor General, with grace and progressive realism, agreed to the resolution set out in Bhagwati, J.'s judgment.
44. Noted: A concluding caveat. Freedom is recreated year by year. A republic, if we can keep it. The watershed between a police state and a people's raj lies partly in passport policy. A poor person despairs of a passport because of police enquiry and property requirements. A system of secret informers, police dossiers and faceless whisperers in the name of public interest must be constantly resisted. Policy must be precise and harassment-proof. He quotes Bertrand Russell, J.B. Priestley and Corliss Lamont on persecuting the different and on the machinery of power. He says judicial travelling is like talking with men of other centuries and countries. He agrees with Bhagwati, J.

Kailasam, J. (dissenting on the Article 19 and Article 21 questions)

1. Noted: The petition seeks a writ of certiorari to call for the records and quash the order of 2 July 1977 impounding her passport. The order was communicated by a letter received on 4 July 1977, as set out in the Facts. She wrote on 5 July 1977 for the reasons and the Ministry replied that it decided in the general interest not to give them.
2. Noted: She submitted that the order is without jurisdiction and not in the interests of the general public. She raised Article 14, breach of natural justice, no hearing implied in section 10(3), and no justification for withholding reasons under section 10(5). On 8 July 1977 she asked for an ex parte ad interim stay.
3. Noted: The counter affidavit of Shri N.K. Ghose, I.F.S., Director (P.V.), Ministry of External Affairs said that on 11 May 1977 the Minister approved impounding of 11 persons' passports. On 19 May 1977 he ordered 8 of them. On 1 July 1977 authorities said she and her husband had arrived at Bombay and might leave. The Minister approved impounding that evening under section 10(3)(c). The order was passed on 2 July.
4. Noted: Government produced the order disclosing the reasons during the hearing. It was feared that she was likely to leave and hamper the Commissions of Inquiry. Because she is the wife of Shri Sanjay Gandhi she was likely to be questioned. The allegation of tampering with evidence abroad was given up. The only ground was that she was likely to be examined and her presence was necessary in India.
5. Noted: Her submissions were as follows. She is a journalist who intended to go to West Germany. A law under Article 21 must also satisfy Article 19. Section 10(3)(c) is ultra vires. She was not heard. Article 19 rights are available outside India. The question is whether fundamental rights under Part III, especially Article 19, are available beyond India. Article 19(1)(d) and (e) are limited to India, so no question arises for them.
6. Noted: He examines the Constitution. The Preamble secures liberty of thought and expression. Article 12 defines the State. Article 13 makes inconsistent laws void, and law includes customs and usages that have force of law in the territory of India. Article 248 lets Parliament make laws for the whole or any part of India. Article 245(2) says a law of Parliament is not invalid for extra-territorial operation, while a State law cannot have it. Section 3 of the Statute of Westminster, 1931 gives Dominion Parliaments power of extra-territorial legislation.
7. Noted: He states the principles from Maxwell, Craies, Dicey and Salmond. An Act unless it provides otherwise applies within the country. Parliament may bind subjects abroad if the language shows it. Territoriality is not a logically necessary part of law. He cites Niboyet v. Niboyet, Queen v. Jameson, Cooke v. Charles A. Vogeler Company and Tomalin v. S. Pearson and Son. He cites Attorney-General for Alberta v. Huggard Assets Ltd. and C.E.B. Draper and Son Ltd. v. Edward Turner and Son Ltd. that an Act applies to the United Kingdom only unless it provides otherwise.
8. Noted: Indian cases show the same. Governor-General in Council v. Raleigh Investment Co. Ltd. and Wallace Brothers and Co. Ltd. v. Commissioner of Income-Tax held extra-territorial effect not a ground for invalidity. Mohammad Mohy-ud-din v. The King Emperor held that the Indian Army Act covers non-British subjects serving in the army abroad. The law: Parliament normally restricts legislation to its territories, may control citizens abroad, and the intention must be expressed or necessarily implied. The Statute should not conflict with comity of nations (the courtesy by which States respect each other) or international law.
9. Held: No intention of extra-territorial application appears in Part III. Article 14 is expressly limited to the territory of India. Articles 15 to 18, 20 and 22 are by nature territorial. Articles 23 and 24, 25 to 28, 29 and 30 are prima facie territorial. Article 31 has no extra-territorial application. Article 19(1)(a) may perhaps have it. But the framers did not intend assembly, association, property or profession rights to apply outside India, because the State cannot enforce them there. Articles 32 and 226 provide enforcement, so there is a presumption that makers did not guarantee rights the State cannot enforce.
10. Held: The words territory of India in Article 19(1)(d) and (e) do not show that other freedoms are not territorial. Kania, C.J. in Gopalan said the emphasis was on moving freely throughout India. The purpose was to stop States imposing restraints on movement between States. Virendra v. State of Punjab, per S.R. Das, C.J., said that Article 19(1) freedoms are exercisable throughout all parts of India. The context indicates the application is territorial, and Article 19(1)(b) and (c) could not have been intended to apply abroad.
11. Held: On the submission that founders were influenced by the Universal Declaration of Human Rights, the Declaration was promulgated on 10 December 1948. Fundamental rights were discussed in October 1948. It was unlikely the framers decided to apply fundamental rights abroad before it was promulgated. The Declaration was not binding law but a pious hope. Article 13 of the Declaration limits movement and residence to within each State's borders. Paragraph 2 secures the right to leave any country. It did not confer freedom of speech outside the country of origin.
12. Noted: Even the American Constitution has no mention of free speech abroad. The American right to travel abroad is not unfettered. A passport is a licence for leaving and an exit permit. The State Department specifies passports as not valid for countries where the United States has no diplomatic representation. He cites the address of Warren Christopher, Deputy Secretary of State, reproduced in October 1977. Except movement outside one's country, other rights are not available extra-territorially even in America.
13. Held: Restrictions under Article 19(2) to (6) normally apply only within India unless the law expressly or by necessary implication says otherwise. Sections 3 and 4 of the Penal Code expressly apply to crimes abroad. Article 19 and the restricting enactments have no such provision. A citizen cannot enforce fundamental rights outside India even if they are available. So the argument that denying a passport infringes her Article 19 rights abroad cannot be accepted. The order places no restriction on her while she is away. It was necessary to consider it because the argument was that her fundamental rights outside were infringed.
14. Noted: The submission that Article 21 legislation must satisfy Article 19 was strenuously pressed. Article 20(1) and Article 22 are outlined. Gopalan held that punitive detention under the Penal Code cannot be challenged under Article 19. Kania, C.J. said Article 19 arises only if legislation directly controls the freedom. Fazal Ali, J. said the Penal Code does not primarily impose restrictions on movement. Haradhan Saha, per Ray, C.J., said a detained person cannot claim Article 19 rights. The law that attracts Article 19 must be capable of being tested under clauses (2) to (5).
15. Held: The State's contention is that when a person is deprived of life or liberty by procedure established by law, Article 19 cannot be invoked. Article 19 confers freedoms on citizens, and Articles 20 to 22 restrain the State and apply to all persons. Personal liberty was considered by Mukherjea, J. in Gopalan as freedom from physical restraint. He cites Dicey and the debates on the draft Article 15, where the word personal was added to prevent liberty from covering the Article 19 freedoms. The words personal liberty are confined to freedom from restraint of person and differ from Article 19 rights.
16. Noted: The petitioner relies on the Bank Nationalisation case and Bennett Coleman to say the earlier view is no longer good law. He reviews Gopalan, Ram Singh v. State of Delhi, State of Bihar v. Kameshwar Singh, Chiranjit Lal Chowdhuri, Express Newspapers, Hamdard Dawakhana v. Union of India, Kochunni v. State of Madras, and Sakal Papers. Sakal Papers, on the newspaper price and page order, did not deal with Article 21 impact on Article 19.
17. Noted: In Kharak Singh the majority held that the adjective personal narrows liberty to avoid overlap with Article 19. The dissenting view, per Subba Rao, J., is that a law under Article 21 must satisfy Article 19(2) for the attributes covered. The petitioner says Bank Nationalisation and Bennett Coleman affirm the dissenting view.
18. Held: The Bank Nationalisation case (R.C. Cooper) concerned the ordinance of 19 July 1969 and the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969. Its ground three was that Article 19(1)(f) and Article 31(2) are not mutually exclusive. The Court only considered decisions that held them exclusive. It overruled the view that the object and form of State action alone need be considered. Its discussion related to Articles 31(2) and 19(1)(f), which form a single pattern on property. There is no justification to treat it as authority that legislation under Article 21 must satisfy all Article 19(1) rights.
19. Held: The remarks on liberty of person in the Bank Nationalisation case are passing and obiter dicta. Though from an eleven-Judge Court, the Court did not apply its mind to that question, which was not argued. A general, casual observation on a point not calling for decision is not authority. The decision on Articles 19(1) and 31(2) was not strictly necessary to give relief, because the Act violated Article 31(2).
20. Held: The decision proceeded on an erroneous assumption that the Gopalan majority held Article 22 a complete code. Kania, C.J., Patanjali Sastri, J., Das, J. and Mukherjea, J. each declined to say so. Only Mahajan, J. held Article 22 self-contained for preventive detention. So the basis of the Bank Nationalisation observations stands shaken. Following them would give strange results. Punitive detention for theft, cheating or assault would be illegal since public order restrictions would not cover such offences. There can be no distinction between punitive and preventive detention.
21. Held: The conclusion that Articles 19(1) and 21 are mutually exclusive rests on the language of Article 19(1)(d) read with Article 19(5). It does not rest on Article 21 being a complete code. Article 19(1) confers substantive rights on citizens alone and does not include personal liberty in Article 21. The obiter dicta in the Bank Nationalisation case that legislation under Article 21 should satisfy Article 19(1) cannot be taken as correct law. The Court has not reconsidered and overruled the reasoning in Gopalan.
22. Noted: The later decisions share the flaw. In Shambhu Nath Sarkar and Khudiram Das, the Court wrongly said Gopalan held Article 22 a complete code. In Additional District Magistrate, Jabalpur v. S.S. Shukla, Ray, C.J. said Article 21 is our rule of law regarding life and liberty and that the Bank Nationalisation case merely brings in reasonable restriction. Beg, J., as he then was, said Gopalan was cited in Cooper as an illustration of reasoning held incorrect on property. Chandrachud, J. said Articles 21 and 19 cannot be treated as mutually exclusive. Bhagwati, J. said the dissenting view in Kharak Singh was approved. Kailasam, J. agrees with Ray, C.J. and Beg, J.
23. Held: Bennett Coleman did not raise the question whether Articles 21 and 19 are mutually exclusive. It, Express Newspapers and Sakal Newspapers concern freedom of the press as part of free speech. The petitioner cited it for direct effect. The Court held the newsprint policy was newspaper control in the guise of import control. Its direct operation abridged free speech, so pith and substance did not arise.
24. Held: The tests of pith and substance and of direct and incidental effect are relevant to infringement of fundamental rights. The Bank Nationalisation case said direct operation means direct consequence and effect, quoting Commonwealth of Australia v. Bank of New South Wales. Express Newspapers, Hamdard Dawakhana and Sakal Papers used direct and inevitable or reality and substance. If the effect is remote, incidental or indirect, the enactment is unaffected. The pith and substance rule is not limited to federal conflicts. Vardachariar, J. in the Federal Court in Subramaniam Chettiar and Lord Atkin in Gallagher v. Lynn applied it.
25. Held: The Passports Act regulates the departure of citizens and others. If it complies with Article 21, its validity cannot be challenged. If incidentally it infringes Article 19(1), it is not invalid. Unless rights are directly affected, the challenge fails. If Article 19 applied however remote the effect, punitive detention would be invalid. The Act's validity must be examined on whether it directly and immediately infringes a fundamental right of the petitioner. If a passport is refused by procedure established by law, other fundamental rights cannot be pleaded if not directly infringed.
26. Noted: He reviews the travel decisions. Satwant Singh held that a passport is essential in practice, the right to travel is part of personal liberty, and it can be restricted by procedure established by law. The majority held that personal liberty only excludes Article 19 ingredients. In America, Kent v. Dulles said the right to travel is part of liberty under the Fifth Amendment. Zemel v. Rusk sustained refusal for travel to Cuba on foreign policy grounds. Aptheker struck down the ban on Communist Party members. So even an American's right to travel can be restricted.
27. Held: Procedure established by law does not mean fantastic, oppressive or arbitrary procedure that is no procedure at all. Mahajan, J. in Gopalan said so. Once a law is made, the procedure of the Criminal Procedure Code cannot be insisted upon since the legislature may modify it. Kartar Singh's case held that a police regulation authorising domiciliary visits, without a law, violated Article 21. He then examines the Act.
28. Noted: The Act's provisions. Its preamble regulates departure from India. It followed Satwant Singh. Section 5 provides for applications and the order. On refusal, reasons in writing are recorded and a copy is furnished on demand unless refused under sub-section (3). Section 6 lists grounds of refusal. Section 8 says a passport is renewable unless reasons are recorded. Section 10(1) lets the authority vary or cancel endorsements, and with the Central Government's approval vary conditions and require the holder to deliver up the passport. Section 10(2) lets the holder apply to vary conditions.
29. Noted: He quotes section 10(3)(a) to (h). Clause (a) covers wrongful possession. Clause (b) covers suppression of material information. Clause (c) covers the interests of sovereignty and integrity, security, friendly relations or the general public. Clause (d) covers conviction for moral turpitude with at least two years of imprisonment. Clause (e) covers pending criminal proceedings. Clause (f) covers contravention of conditions. Clause (g) covers failure to deliver up on notice. Clause (h) covers a warrant, summons or prohibition of departure by a court.
30. Noted: Section 10(5) requires reasons and a copy on demand unless the opinion is that it is not in the stated interests. Section 11 gives an appeal against orders of the passport authority, and no appeal against an order of the Central Government. Section 11(5) says an appeal is not disposed of without giving a reasonable opportunity. Rule 14 of the Passport Rules, 1967 lets the appellate authority call for records and give a reasonable opportunity.
31. Noted: The petitioner submitted that observance of natural justice is implied in section 10(3). Suppose section 10(3)(c) excludes a hearing, and section 11 denies an appeal against Central Government orders. Then, she said, there is no procedure under Article 21 and the sections are ultra vires. She also said the words in the interests of the general public are vague.
32. Held: The last ground is easily disposed of. The words are wide but the authority must decide on the facts whether the interests of the public require impounding. Whether the reasons have a nexus with the general public depends on the facts. The plea that vagueness makes the order unsustainable cannot be accepted.
33. Held: The claim that natural justice, the right to be heard, has not been expressly or by necessary implication taken away deserves careful consideration. When action is taken under clauses (a), (b), (d), (e), (f) and (h), a notice is presumed. Each needs a determination of facts that can only be ascertained after hearing the holder. The question is whether clause (c) was meant to deny a hearing.
34. Held: A legislature by express provision may deny a hearing. Rules of natural justice cannot be equated with fundamental rights. Union of India v. J.N. Sinha says they aim to prevent miscarriage of justice and do not supplant the law but supplement it. If a statute can be read consistently with natural justice, courts should do so. If it excludes it expressly or by necessary implication, courts cannot read it in. The right to be heard cannot be presumed where there is paramount need for secrecy, emergency, urgency where delay would defeat the purpose, or an expected obstructive attitude.
35. Held: To a limited extent it may be necessary to revoke or impound without notice if there is real apprehension that the holder may leave. That does not justify denying an opportunity to state her case before a final order. The legislature has not by express provision excluded the right to be heard. Section 10(5) requires reasons, subject to appeal where a reasonable opportunity must be given. A passport granted for a period can be revoked during that period only for a valid reason. Revoking is different from initially refusing. He cites Purtabpur Co. v. Cane Commissioner and Lord Denning in Schmidt on legitimate expectation. The normal presumption is that an impounding action will not be taken without an opportunity.
36. Held: Section 10(3) uses phrases like if the authority is satisfied and deems it necessary. In Durayappah v. Fernando the Privy Council, referring to Sugathadasa v. Jayasinghe, disagreed that such words exclude a duty to act judicially. If the statute is silent, Byles, J.'s principle in Cooper v. Wandsworth Board of Works applies. Here there is no material to conclude that the right to be heard is taken away expressly or by necessary implication.
37. Held: The Attorney General said on a true construction audi alteram partem is not excluded in ordinary cases, as Tulzapurkar, J. held in Minoo Maneckshaw v. Union of India. It does not apply in special circumstances such as urgency or where a hearing would defeat the purpose, per De Verteuil v. Knaggs. So impounding may be without notice, but before a final order the holder must be heard. Her claim to a hearing before a final order under section 10(3)(c) is made out. So the question whether section 10(3)(c) is ultra vires does not arise.
38. Noted: The State said an order under section 10(3)(c) is on subjective satisfaction and administrative, so open to challenge only on limited grounds. The frontier between judicial, quasi-judicial and administrative action has blurred. The rigid view no longer holds. Recent views favour natural justice and a duty to act fairly, without extending it so far as to hurt administrative efficiency. He quotes Tucker, L.J. in Russell v. Duke of Norfolk and Lord Denning in R. v. Gaming Board ex parte Benaim.
39. Held: In the Gaming Board case, the Board must let the applicant know its impressions so she can disabuse them. The same applies here, and her plea that the authority must act fairly is sound. American law is not uniform on judicial review of administrative determinations of fact. Where a decision has civil consequences and prejudices a person, she must be heard. Barium Chemicals Ltd. v. Company Law Board, Rohtas Industries Ltd. v. S.D. Agarwal and U.P. Electric Co. v. State of U.P. show limited judicial scrutiny is open for a rational and reasonable nexus. The Court does not sit in appeal. The Attorney General fairly conceded this.
40. Held: On section 10(5), the petitioner argued that the power to decline reasons, with no appeal against Central Government orders, is a total denial of procedure. It is not, because the holder is entitled to a hearing before the passport authority deems it necessary to impound. The grounds to refuse reasons are the same as for impounding, but the powers are used in different contexts. The words unless in any case show that it is not every case. Only in very rare cases may a copy be refused. An appeal under section 11 needs a reasonable opportunity, which ordinarily cannot be given without reasons.
41. Held: In the rare cases where reasons are refused and not furnished at the appeal, the courts have a close look at the reasons. A provision that lets the authority decline reasons is not beyond the legislature. The petitioner had some justification in saying no reasons and no appeal amount to a denial of procedure. But the Government must give a hearing before finally revoking or impounding. When the Government itself passes an order it is presumed to be after careful scrutiny. Chinta Lingam v. Government of India shows power vested in the highest authority does not make the section unconstitutional, and the order is open to judicial scrutiny. Section 10(5) is not ultra vires. There was no reason to decline reasons here, but that lapse does not make the section ultra vires.
42. Noted: She contended that the passport was impounded on three grounds. It is in the public interest that she gives evidence before the Commission. She should present her views before it. And she was likely to leave India. She said impounding on these grounds is unjustified. She pointed to section 10(3)(h), which needs a warrant, summons or court order, and to the notification of 14 April 1976 under section 22(a). That notification exempts a citizen facing criminal proceedings from section 6(2)(f) if a court permits departure. The passport is for the specified period or six months, renewable for six months. The citizen gives an undertaking to appear. She said the same facility should be given to a person who may give evidence before a Commission.
43. Held: It is unnecessary to decide whether impounding was justified. The Attorney General submitted that impounding was to prevent her leaving the country. The final decision on whether and for what period the passport will be impounded will be made later. The Government filed a statement of five points, whose terms are set out in the Judgement section. In view of it, it is not necessary to go into the merits any further. The Attorney General assured that all grounds urged by the petitioner and those urged before the authority will be considered.
44. Held: Kailasam, J. holds that the petitioner is not entitled to any Article 19 fundamental rights, and the Passport Act complies with Article 21 and is in accordance with procedure established by law. He construes section 10(3)(c) as giving the holder a right to be heard before the passport authority. Any order under section 10(3) is subject to limited judicial scrutiny by the High Court and this Court. Because of the Attorney General's statement, he does not think it necessary to formally interfere with the order. He disposes of the petition without a formal order, and there will be no order as to costs.

Authorities

Each entry gives the case, its citation as printed in the judgment, how the Court used it, and the opinion. The judgment has no paragraph numbers.

Personal liberty, Articles 14, 19, 21 and 22

• Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi & Ors., [1967] 3 SCR 525 — right to travel abroad is part of personal liberty; relied on in every opinion. Also cited as Satwant Singh v. Assistant Passport Officer, Delhi (Kailasam, J.).
• Kharak Singh v. State of U.P. & Ors., [1964] 1 SCR 332 — the dissenting view that Articles 19(1) and 21 overlap was approved and the majority view overruled (Bhagwati, J.; Beg, C.J.; Krishna Iyer, J.). Kailasam, J. relies on the majority view.
• A.K. Gopalan v. State of Madras, [1950] SCR 88 — its ratio was that Article 22 is a self-contained code for preventive detention. The exclusivity theory was overruled (all opinions). Also printed as Gopalan v. The State of Madras.
• Additional District Magistrate, Jabalpur v. S.S. Shukla, [1976] Suppl. SCR 172 — width of Article 21 and natural rights (Beg, C.J.; Kailasam, J.). Also printed as Jabalpur v. S.S. Shukla.
• R.C. Cooper v. Union of India (Bank Nationalisation case), [1973] 3 SCR 530 — rejected the doctrine that object and form alone decide protection; relied on by the majority. Kailasam, J. treats its Article 21 remarks as obiter.
• Shambhu Nath Sarkar v. State of West Bengal, [1973] 1 SCR 856 — a preventive detention law must meet Article 19(1)(d); applied (Bhagwati, J.). Also printed as Shambhu Nath Sarkar v. The State of West Bengal & Ors. and Sarkar v. West Bengal.
• Haradhan Saha v. The State of West Bengal & Ors., [1975] 1 SCR 778 — same approach; applied. Also printed as Haradhan Saha v. State of West Bengal & Ors. and Saha v. West Bengal (Bhagwati, J.; Chandrachud, J.; Kailasam, J.).
• Khudiram Das v. The State of West Bengal & Ors., [1975] 2 SCR 832 — followed (Bhagwati, J.). Also printed as Khundiran v. West Bengal (Kailasam, J.).
• Mohd. Sabir v. State of Jammu and Kashmir, AIR 1971 SC 1713 — earlier reference to Article 191(2) (Bhagwati, J.). Also printed as Sabir v. State of Jammu and Kashmir.
• State of West Bengal v. Anwar Ali Sarkar, [1952] SCR 284, and Kathi Raning Rawat v. The State of Saurashtra, [1952] SCR 435 — special procedure laws tested under Article 14 (Bhagwati, J.).
• E.P. Royappa v. State of Tamil Nadu & Another, [1974] 2 SCR 348 — equality and arbitrariness are sworn enemies; applied (Bhagwati, J.). Also printed as Royappa v. State of Tamil Nadu & Another.
• In re Kerala Education Bill — named as a step in the line from Gopalan to Cooper (Krishna Iyer, J.). The judgment gives no citation.
• I.C. Golaknath v. State of Punjab, [1967] 2 SCR 762 — fundamental rights as natural rights (Beg, C.J.). Also printed as Golaknath v. State of Punjab.

Natural justice and administrative action

• Cooper v. Wandsworth Board of Works, [1863] 14 C.B. (N.S.) 180 — the justice of the common law supplies the omission of the legislature; relied on (Beg, C.J.; Bhagwati, J.; Kailasam, J.). Also printed as Cooper v. Wardsworth Board of Works.
• State of Orissa v. Dr. (Miss) Binapani Dei & Ors., AIR 1967 SC 1269, [1967] 2 SCR 625 — duty to act judicially implicit in a power to decide to a person's prejudice. Relied on (Beg, C.J.; Bhagwati, J.).
• Wiseman v. Borneman, [1971] AC 297 — natural justice as fair play in action (Bhagwati, J.). Also printed as Wiseman v. Sorneman.
• Schmidt v. Secretary of State for Home Affairs, [1969] 2 Ch. 149 — a public officer with power to deprive liberty must give a hearing (Bhagwati, J.; Krishna Iyer, J.; Kailasam, J.).
• Fontaine v. Chesterton, (1968) 112 Solicitors' Journal 690 — natural justice as a distillate of due process (Bhagwati, J.).
• Rex v. Electricity Commissioners, [1924] 1 K.B. 171, and Rex v. Legislative Committee of the Church Assembly, [1928] 1 K.B. 411 — the duty to act judicially gloss; disapproved (Bhagwati, J.). Printed also as Rex v. ElectricityCommissioners and Rex v. LegislativeCommittee.
• Ridge v. Baldwin, [1964] A.C. 40 — the gloss was contrary to earlier authorities; followed (Bhagwati, J.; Kailasam, J.).
• Associated Cement Companies Ltd. v. P.N. Sharma & Anr., [1965] 2 S.C.R. 366 — approved Ridge v. Baldwin (Bhagwati, J.).
• A.K. Kraipak & Ors. v. Union of India & Ors., [1970] 1 S.C.R. 457 — natural justice applies to administrative action; followed (Bhagwati, J.).
• In re H.K. (An Infant), [1967] 2 Q.B. 617 — duty to act fairly (Bhagwati, J.; Kailasam, J.).
• Suresh Koshy George v. The University of Kerala and Ors., (1969) 1 S.C.R. 317 — natural justice rules are not embodied rules; quoted inside A.K. Kraipak (Bhagwati, J.).
• D.F.O. South Kheri v. Ram Sanehi Singh, (1973) 3 S.C.C. 864 — reaffirmed; also printed as South Khari v. Ram Sanehi Singh (Bhagwati, J.).
• Russel v. Duke of Norfolk, [1949] 1 All E.R. 109 — the essential is a reasonable opportunity of presenting the case (Bhagwati, J.; Kailasam, J.). Also printed as Russell v. Duke of Norfolk.
• Pearlberg v. Party, [1971] 1 W.L.R. 728 — a more sophisticated view of what is required (Bhagwati, J.). Printed as Pearl-Berg v. Party.
• Union of India v. J.N. Sinha, [1971] 1 S.C.R. 791 — natural justice supplements the law and does not supplant it (Kailasam, J.).
• Purtabpur Co. v. Cane Commissioner, Bihar, [1969] 2 S.C.R. 807 — revoking differs from refusing a licence (Kailasam, J.).
• Durayappah v. Fernando, [1967] 2 A.C. 337, and Sugathadasa v. Jayasinghe, [1958] 59 N.L.R. 457 — words such as if satisfied do not by themselves exclude a duty to hear (Kailasam, J.). Printed in part as Durav- appah v. Fernando.
• De Verteuil v. Knaggs, [1918] A.C. 557 — special circumstances may allow action without hearing (Kailasam, J.).
• Minoo Maneckshaw v. Union of India, (1974) 76 B.L.R. 788 — the rule is not excluded in ordinary cases (Kailasam, J.).
• R. v. Gaming Board ex parte Benaim, [1970] 2 Q.B. 417 — duty to act fairly (Kailasam, J.).
• Barium Chemicals Ltd. v. Company Law Board, [1966] Supp. S.C.R. 311, Rohtas Industries Ltd. v. S.D. Agarwal, [1969] 3 S.C.R. 108 and U.P. Electric Co. v. State of U.P., [1969] 3 S.C.R. 865 — limited judicial review of subjective satisfaction (Kailasam, J.). Rohtas is also used on the perspective of a statute (Bhagwati, J.). Printed as Rohtas Industries Ltd. v. S. O. Agarwal & Anr.
• Chinta Lingam v. Government of India, [1971] 2 S.C.R. 871 — power vested in the highest authority (Kailasam, J.).
• Ghani v. Jones, [1970] 1 Q.B. 693 — a man's liberty of movement is not to be hindered except on the severest grounds; quoted (Bhagwati, J.; Krishna Iyer, J.).
• John v. Rees, [1969] 2 All E.R. 274 — doubt resolved in favour of applying natural justice (Krishna Iyer, J.).

Direct and inevitable effect, pith and substance

• Ram Singh and Ors. v. State of Delhi, [1951] SCR 451 — directness of the law; rejected as the sole test (Bhagwati, J.; Chandrachud, J.; Kailasam, J.). Also printed as Ram Singh v. State of Delhi.
• Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra & Anr., [1966] 3 SCR 744 — applied the object test; discussed (Bhagwati, J.; Chandrachud, J.). Also printed as Naresh Shridhar Marajkar and Naresh S. Mirajkar.
• Express Newspapers (P) Ltd. & Anr. v. Union of India, [1959] SCR 12 — origin of the direct and inevitable effect test (Bhagwati, J.; Chandrachud, J.; Kailasam, J.).
• Sakal Papers (P) Ltd. & Ors. v. Union of India, [1962] 3 SCR 842 — direct and immediate effect; applied (Bhagwati, J.). Kailasam, J. distinguishes it.
• Dwarkadass Srinivas v. The Sholapur Weaving Co. Ltd., [1954] SCR 674 — substance and practical result; relied on (Bhagwati, J.). Also printed as Dwarkadas Shrinivas v. The Sholapur & Weaving Co. Ltd.
• Bennett Coleman & Co. v. Union of India, [1973] 2 SCR 757 — direct operation is the real test; applied (Bhagwati, J.; Chandrachud, J.). Kailasam, J. distinguishes it.
• Hamdard Dawakhana (Wakf) Lal Kuan v. Union of India, [1960] 2 SCR 671 — reality and substance (Kailasam, J.).
• Commonwealth of Australia v. Bank of New South Wales, [1950] A.C. 235 — direct operation test (Kailasam, J.).
• Subramaniam Chettiar (Federal Court), [1940] F.C.R. 188, and Gallagher v. Lynn, [1937] A.C. 863 — pith and substance beyond federal conflicts (Kailasam, J.).
• Kochunni v. The State of Madras, [1960] 3 SCR 887 — doubted Gopalan on this aspect (Krishna Iyer, J.; Kailasam, J.). Also printed as Kochuni v. The State of Madras and K.K. Kochunni.
• Chiranjit Lal Chowdhuri, [1950] SCR 869; State of West Bengal v. Subodh Gopal, [1954] SCR 587; State of Bombay v. Bhanji Munji, [1955] 1 SCR 777; Dabu Barkya Thakur v. State of Bombay, [1961] 1 SCR 128; Sitabati Debi & Anr. v. State of West Bengal, [1967] 2 SCR 940 (printed as Smt. Sitabati Debi & Anr. v. State of We$ Bengal); State of Madhya Pradesh v. Ranojirao Shinde, [1968] 3 SCR 489 — the line on Articles 19(1)(f) and 31 (Kailasam, J.). Also printed as State of Bombay v. Bhanjit Munji, Sitabati Debi and Anr. v. State of West Bengal and State of Madhya Pradesh v. Ranoiro Shinde.
• State of Bihar v. Kameshwar Singh, [1952] SCR 889 — approved Gopalan (Kailasam, J.). Also printed as State of Bihar v. Kameshwar.
• Narendra Kumar & Ors. v. Union of India & Ors., [1960] 2 SCR 375 — an order under a valid law must not violate fundamental rights; relied on (Bhagwati, J.).
• V.G. Row, [1952] SCR 597 — reasonableness depends on the values of society and the urgency of the evil (Krishna Iyer, J.).

Territory of Article 19 and the right to go abroad

• Best v. United States, 184 Federal Reporter (2d) 131 — Bill of Rights protects citizens abroad; referred to (Bhagwati, J.).
• Dr. S.S. Sadashiva Rao v. Union of India, [1965] Mysore Law Journal 605 — approved (Bhagwati, J.).
• Kent v. Dulles, 357 U.S. 116 — right to travel under the Fifth Amendment; distinguished (Bhagwati, J.; Chandrachud, J.; Krishna Iyer, J.; Kailasam, J.).
• Apthekar v. Secretary of State, 378 U.S. 500 — explained; not a First Amendment holding (Bhagwati, J.; Chandrachud, J.; Krishna Iyer, J.; Kailasam, J.). Also printed as Aptheker v. Secretary of State.
• Zemel v. Rusk, 381 U.S. 1 — explained (Bhagwati, J.; Chandrachud, J.; Krishna Iyer, J.; Kailasam, J.). Also printed as Zamei v. Rusk.
• Ramesh Thappar v. State of Madras, [1950] SCR 594 — freedom of circulation is part of free speech; cited (Bhagwati, J.).
• All India Bank Employees' Association v. National Industrial Tribunal, [1962] 3 SCR 269 — concomitant rights theory rejected; applied (Bhagwati, J.; Chandrachud, J.).
• Virendra v. The State of Punjab and Another, [1958] SCR 308 — Article 19(1) freedoms are exercisable throughout India; cited (Kailasam, J.).
• Niboyet v. Niboyet, 48 L.J.P.D. 10 — general words do not extend a statute beyond territory; cited (Kailasam, J.).
• Queen v. Jameson and Others, [1896] 2 Q.B.D. 425 — area of operation is gathered from the statute; cited (Kailasam, J.).
• Cooke v. The Charles A. Vogeler Company, [1901] A.C. 102; Tomalin v. S. Pearson & Son, [1909] 2 K.B. 61 — English legislation is primarily territorial (Kailasam, J.).
• Attorney-General for Alberta v. Huggard Assets Ltd., [1953] A.C. 420, and C.E.B. Draper & Son Ltd. v. Edward Turner & Son Ltd., [1964] 3 All E.R. 148 — a United Kingdom Act applies only within it unless it says otherwise (Kailasam, J.). Also printed as Gen. for Alberta v. Huggard Assets and Ltd. v. Edward Turner & Son. Ltd.
• Governor-General in Council v. Raleigh Investment Co. Ltd., A.I.R. (31) 1944 Federal Court 51 — extra-territorial operation within legislative power (Kailasam, J.). Also printed as Council v. Raleigh Investment Co. Ltd. A.I.R.
• Wallace Brothers & Co. Ltd. v. Commissioner of Income-Tax, Bombay, Sind and Baluchistan, [1945] F.C.R. 65 — same (Kailasam, J.). Also printed as Ltd. v. Commissioner of Income-Tax.
• Mohammad Mohy-ud-din v. The King Emperor, [1946] F.C.R. 94 — army discipline abroad; cited (Kailasam, J.).
• King Emperor v. Bengori Lal Sharma — the ordinary and well established criminal procedure, quoted inside Gopalan (Krishna Iyer, J.; Kailasam, J.).
• West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) — freedom to differ; quoted (Krishna Iyer, J.). Printed as West Yirginia State Board of Education v. Barnetto.
• D.P.P. v. Bhagwan, [1972] A.C. 60, and A.G. Kazi, A.I.R. 1967 Bom. 235 — English and Bombay authority on movement and personal liberty (Krishna Iyer, J.).
• Kartar Singh's case, [1963] 1 S.C.R. 332 — a police regulation without law violated Article 21 (Kailasam, J.).

Also cited in footnotes: none. The footnotes in the judgment only give the citations of cases named in the text.

Provisions and materials discussed

• Constitution of India, Articles 12 to 14: Article 12 (definition of the State), Article 13 (laws inconsistent with fundamental rights) and Article 14 (equality).
• Constitution of India, Articles 15 to 18: Article 15 (discrimination), Article 16 (public employment), Article 17 (untouchability) and Article 18 (titles).
• Constitution of India, Article 19: Article 19(1)(a) to (g) and clauses (2) to (6).
• Constitution of India, Articles 20 to 22: Article 20, Article 21 and Article 22 (arrest and preventive detention).
• Constitution of India, other articles: Articles 23 and 24, Articles 25 to 28, Articles 29 and 30. Article 31, Article 32, Article 51, Article 191(2), Article 226, Article 245(2), Article 248 and the Preamble.
• Passports Act, 1967, sections 3 to 8: Section 3 (no departure without a passport). Section 4 (classes of passport). Section 5(1) to (3) (application, issue or refusal, and reasons). Section 6(1) and 6(2) (grounds of refusal). Section 7 and Section 8 (renewal).
• Passports Act, 1967, sections 10 and 11: Section 10(1) and (2) (varying or cancelling). Section 10(3)(a) to (h) (impounding and revocation). Section 10(5) (reasons). Section 11 (appeal) and Section 11(5) (reasonable opportunity).
• Passports Act, 1967, other provisions: Section 19 and Section 22(a), the section under which the exemption notification of 14 April 1976 was issued.
• Passport Rules, 1967: Rule 14 (procedure on appeal).
• Universal Declaration of Human Rights: Article 10 (hearing), Article 13 (movement and leaving any country) and Article 19 (opinion and expression regardless of frontiers).
• Other statutes and orders, part one:
  • Maintenance of Internal Security Act, 1971.
  • Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969.
  • Section 34A of the Banking Companies Act.
  • Essential Commodities Act, 1955, section 3, and the Non-ferrous Metal Control Order, 1958.
• Other statutes and orders, part two:
  • Working Journalists (Conditions of Service) and Miscellaneous Act, 1955.
  • Daily Newspaper (Price and Page) Order, 1960.
  • Subversive Activities Control Act, 1950, section 6.
  • Indian Penal Code, sections 3 and 4.
  • Indian Army Act, 1911, sections 41 and 43.
  • Government of India Act, 1935, section 99.
  • Statute of Westminster, 1931, section 3.
  • Industrial Disputes Act.
• Article 21 and Article 31(2) are printed in places as Article 2 1 and Article 3 1 (2) in the source text.

Judgement

The Court's order records the majority view. The writ petition is disposed of without a formal order. The judgment records no other relief. The order is set out below, followed by the position of each opinion.

1. Having regard to the majority view and the Attorney General's statement, the Court does not think it necessary to formally interfere with the impugned order (Order of the Court).
2. The writ petition is disposed of without any formal order (Order of the Court).
3. The passport will remain in the custody of the Registrar of the Court until further orders (Order of the Court).
4. There will be no order as to costs (Order of the Court).
5. The Attorney General's statement, on which the order rests, has these terms (Bhagwati, J.; Kailasam, J.):
   • The Government will consider any representation by the petitioner and give her an opportunity within two weeks of receiving it.
   • The grounds for impounding are those in the affidavit in reply dated 18 August 1977 of Shri Ghosh, except those in item 2(xi).
   • The representation will be dealt with expeditiously in accordance with law.
   • If the impounding is confirmed, it will not exceed six months from the date of the decision on her representation.
   • Until the Government decides, the passport stays in the custody of the Court.
   • This is without prejudice to the Government's power to act under the Passport Act about the passport.
6. Bhagwati, J. (for himself, Untwalia and Fazal Ali, JJ.) holds that section 10(3)(c) is valid under Article 14. He holds that the Act's procedure meets Article 21 once a remedial hearing is read in. He holds that the order violates neither Article 19(1)(a) nor Article 19(1)(g), and that it is within section 10(3)(c). He finds no reason to interfere formally and makes no order as to costs.
7. Chandrachud, J. agrees with the order proposed by Bhagwati, J. He holds that the order does not offend Article 19(1)(a) or 19(1)(g).
8. Krishna Iyer, J. agrees with Bhagwati, J. He holds that the Act survives but the order shall perish for the reasons Bhagwati, J. gave. He records that the Attorney General agreed to the resolution set out in Bhagwati, J.'s judgment.
9. Beg, C.J., speaking for himself, would quash the order and direct the return of the passport. He would give the petitioner an opportunity to show cause against any proposed action, and would award her costs.
10. Kailasam, J. holds three things. She is not entitled to Article 19 rights. The Act complies with Article 21. And section 10(3)(c) gives her a right to be heard before a final order. He disposes of the petition without a formal order and with no order as to costs.
11. The judgment does not state what the Court decided about the merits of the impounding after a hearing. That was left to the Government's decision on her representation.

Legal Principle / Ratio

Personal liberty in Article 21 includes the right to go abroad. A law that affects it must prescribe a procedure that is fair, just and reasonable, and it must also meet Articles 14 and 19. The Court records the rule as: "The procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary." Articles 14, 19 and 21 are not mutually exclusive. Natural justice is read into the Passports Act, so a hearing must follow the impounding of a passport (Bhagwati, J.; Chandrachud, J.; Krishna Iyer, J.; Beg, C.J.).

• Article 21: the right to go abroad is part of personal liberty. Its procedure must be right, just and fair, because Article 14 pervades Article 21 (Bhagwati, J.).
• Article 14: section 10(3)(c) is not vague or unguided. The words interests of the general public come from Article 19(5) (Bhagwati, J.).
• Natural justice: audi alteram partem applies even to administrative action. It may be post-decisional. A hearing after impounding is read into the Act by necessary implication (Bhagwati, J.).
• Test of infringement: direct and inevitable effect on the fundamental right, not the pith and substance or the object of the action (Bhagwati, J.).
• Article 19(1)(a): free speech is not limited to India. The right to go abroad is not part of free speech or of the right to a profession. But an order impounding a passport may still violate Article 19(1)(a) or (g) if its direct and inevitable effect is on them (Bhagwati, J.; Chandrachud, J.).
• Reading down (reading a provision narrowly to keep it valid): an order under section 10(3)(c) that restricts free speech must be in the interests of public order, decency or morality, or the other three stated interests (Bhagwati, J.).
• Reasons: the power to refuse reasons is exceptional, and the refusal is open to judicial scrutiny (Chandrachud, J.; Bhagwati, J.).

Obiter and observations:

• Section 10(3)(c) is a drastic power and will be used sparingly, with care. Ordinarily a passport will not be impounded merely because a person is required for a proceeding, unless clause (e) or (h) applies (Bhagwati, J.).
• Impounding should be for a specified time that is not unreasonably long (Bhagwati, J.).
• Krishna Iyer, J. gave three classes of case where travel is linked to a fundamental right. Bhagwati, J. gave examples of the pilot and the evangelist.
• Beg, C.J. held that an order impounding a passport must be made quasi-judicially and that natural law rights are within the Constitution.
• Kailasam, J. dissented on the extra-territorial reach of Article 19 and on the overlap of Articles 19 and 21. He treated the Bank Nationalisation observations on Article 21 as obiter.

Subsequent Treatment

This section rests only on three later judgments whose texts name this case. It is commentary and not part of the holding.

Bachan Singh v. State of Punjab

Full title as printed: Bachan Singh etc. v. State of Punjab etc. Constitution Bench. Citation as printed: 1982 AIR 1325, 1983 SCR (1) 145, 1982 SCC (3) 24. Date of judgment as printed: 16 August 1982. Bench: Bhagwati, Chandrachud (C.J.), Sarkaria, A.C. Gupta and Untwalia, JJ. The judgment has no numbered paragraphs, so points cite the opinion.

• Counsel argued that the seven-Judge decision in Maneka Gandhi gave a new interpretative dimension to Articles 21, 19 and 14 and their inter-relationship. So every law of punitive detention must pass all three Articles (Sarkaria, J. for the majority).
• The majority said Article 21 is to be expanded in the way Maneka Gandhi indicated. It reads as no deprivation of life or personal liberty except by fair, just and reasonable procedure established by valid law (Sarkaria, J.).
• The majority described Bhagwati, J.'s statement in Maneka Gandhi that Articles 14, 19 and 21 are not water-tight compartments and that reasonableness pervades all three (Sarkaria, J.).
• The majority held that R.C. Cooper and Maneka Gandhi did not give a complete go-by to the test of direct and indirect effect, described as the form and object test or pith and substance rule. It said the test of direct and indirect effect was not scrapped (Sarkaria, J.).
• The majority held that two things do not change the prevailing standards of decency and human dignity. One is the new dimensions given to Articles 19 and 21 by Maneka Gandhi and Charles Sobraj. The other is India's acceptance of the International Covenant on Civil and Political Rights. The Covenant does not outlaw capital punishment for murder altogether (Sarkaria, J.; the headnote records the same).
• Bhagwati, J., in a separate opinion, said the new dimension of Articles 14 and 21 in Maneka Gandhi made the death penalty vulnerable to a ground not available earlier. The death penalty is in section 302 read with section 354(3). He held that Article 14 guards against arbitrariness in State action and that Article 21 requires a reasonable, fair and just procedure (Bhagwati, J.).
• Bhagwati, J. said Maneka Gandhi brought the procedural due process clause into Article 21 by judicial interpretation. He said uncontrolled sentencing discretion could not be a reasonable, fair and just procedure (Bhagwati, J.).
• Bhagwati, J. dissented from the majority's view that the pith and substance rule survives. He said R.C. Cooper and Maneka Gandhi completely discarded it, and the court must consider the direct and inevitable consequence of the statute (Bhagwati, J.).

AHAR v. State of Maharashtra

Full title as printed: Indian Hotel and Restaurant Association (AHAR) & Anr. v. The State of Maharashtra & Ors. Writ Petition (Civil) No. 576 of 2016 with Nos. 24 of 2017 and 119 of 2017. Bench: A.K. Sikri and Ashok Bhushan, JJ. Date: 17 January 2019 (as printed).

• The Court quoted an earlier finding that a legislation failed the doctrine of direct and inevitable effect and cited Maneka Gandhi for it (para 21).
• The Court said Article 21 is now the repository of a vast number of substantive and procedural rights after Maneka Gandhi. It quoted Rajesh Kumar v. State, which recorded that the Court read Article 21 as requiring fair, just and reasonable procedure established by valid law (para 24).
• The quoted passage called Maneka Gandhi an epoch-making decision that infused the concept of due process into constitutional jurisprudence. It quoted Krishna Iyer, J. on procedure established by law (para 24).
• The quoted passage said Maneka Gandhi marks a watershed. Article 21 protects against legislation as well as executive action. The procedure must be just, reasonable and fair. Law under Article 21 is more than lex and implies due process, both procedural and substantive (para 24).
• It also quoted Sunil Batra v. State (UT of Delhi), which said that after Cooper and Maneka Gandhi the consequence is the same as under a due process or Eighth Amendment clause (para 24).

Krishnadatt Awasthy v. State of M.P.

Full title as printed: Krishnadatt Awasthy v. State of M.P. & Ors. Civil Appeals Nos. 4806 to 4809 of 2011. 2025 INSC 126. Bench: Hrishikesh Roy, Sudhanshu Dhulia and S.V.N. Bhatti, JJ. Date: 29 January 2025. The matter was before a larger Bench because of a split verdict on 4.4.2024.

• The Court noted that Bhagwati, J. in Maneka Gandhi described natural justice as a humanising principle to give law fairness and secure justice. It has become a widely accepted rule in administrative decision-making (para 39).
• It cited the constitutionalisation of administrative law and the doctrinal shifts started in Maneka Gandhi, as summarised in Madhyamam Broadcasting Ltd. v. Union of India (para 47).
• In that summary, procedural fairness is no longer only a means to a just outcome. It has inherent value, and courts cannot judge procedural breaches only by whether the outcome would have changed (para 47).
• Natural justice principles breathe reasonableness into procedure. The core of natural justice guarantees a reasonable procedure entrenched in Articles 14, 19 and 21. Situational changes are allowed but must not abrogate the core (para 47).

Other later cases (not summarized): Sunil Batra v. State (UT of Delhi), (1978) 4 SCC 494; Rajesh Kumar v. State, (2011) 13 SCC 706; Madhyamam Broadcasting Ltd. v. Union of India, (2023) 13 SCC 401. These are named as printed in the later judgments above. Their own texts were not fetched.

Critical Analysis

Analysis based on the judgment text.

• The result is a disposal without a formal order. The Court holds the hearing rule was breached but relies on the Attorney General's statement to cure it. Beg, C.J. would have quashed the order and awarded costs. The judgment shows the split between a cure by statement and a quashing.
• The Court does not decide whether the impounding is justified after a hearing. Bhagwati, J. holds the order valid on the Government's reasons. Kailasam, J. leaves the merits open. The final decision is left to the Government's decision on her representation.
• Bhagwati, J. holds that the right to go abroad is not a fundamental right under Article 19(1). Yet he says denial may in truth restrict free speech or a profession. Krishna Iyer, J. lists three classes of case. Chandrachud, J. holds the right to go abroad is of a different kind from free speech. The opinions draw the line between the right to go abroad and Article 19 in different ways.
• Kailasam, J. rejects the overlap of Articles 19 and 21. He calls the Bank Nationalisation remarks obiter. The majority follows R.C. Cooper, Shambhu Nath Sarkar and Haradhan Saha instead. Bhagwati, J. says the Kharak Singh majority view must be held to have been overruled. The Bench is divided on this point, and the order does not decide it separately.
• The Court reads a hearing into the Act by implication. Kailasam, J. also reads it in but holds the hearing comes only before a final order. Bhagwati, J. says a post-impounding remedial hearing is enough. The exact timing of the hearing is left flexible.

Significance

• The judgment ends the exclusivity theory of Gopalan. Articles 14, 19 and 21 must be read together (Bhagwati, J.; Chandrachud, J.; Krishna Iyer, J.; Beg, C.J.).
• It requires that procedure established by law be fair, just and reasonable. Mere legislative prescription is not enough (Bhagwati, J.; Chandrachud, J.; Krishna Iyer, J.).
• It links Article 14 and Article 21. Arbitrariness is the opposite of equality (Bhagwati, J.).
• It applies natural justice to administrative action and reads a hearing into the Passports Act (Bhagwati, J.; Krishna Iyer, J.; Beg, C.J.).
• It states the test of direct and inevitable effect on fundamental rights and rejects pith and substance for that purpose (Bhagwati, J.).
• It holds that free speech is exercisable abroad, though the right to go abroad is not part of it (Bhagwati, J.; Chandrachud, J.).
• It limits secrecy. Refusal to give reasons is open to judicial scrutiny (Chandrachud, J.; Bhagwati, J.).
• It cautions that impounding a passport interferes with a basic human right and should be used sparingly (Bhagwati, J.).

Exam-Important Points

• Rule: Personal liberty in Article 21 includes the right to go abroad. The trap: the right to go abroad is not a right under Article 19(1)(a) or (g) (Bhagwati, J.).
• Rule: Procedure established by law must be fair, just and reasonable. The trap: some kind of procedure is not enough (Chandrachud, J.; Bhagwati, J.).
• Rule: Articles 14, 19 and 21 are not mutually exclusive. The trap: Gopalan's exclusivity theory is overruled (Bhagwati, J.; Chandrachud, J.).
• Rule: Audi alteram partem applies to administrative action. The trap: it may be post-decisional and may be excluded in urgent cases (Bhagwati, J.).
• Rule: Section 10(3)(c) is not violative of Article 14. The trap: the order can still be invalid on the facts (Bhagwati, J.).
• Rule: The test is direct and inevitable effect. The trap: pith and substance is not the test for fundamental rights (Bhagwati, J.).
• Rule: Free speech is not confined to India. The trap: the right to go abroad is still not part of it (Bhagwati, J.; Chandrachud, J.).
• Rule: An order impounding a passport that restricts free speech must be in the interests of public order, decency or morality, or the other three interests (Bhagwati, J.).
• Rule: The Court disposed of the petition without a formal order. The trap: the order was not struck down, and it relied on the Attorney General's six-month statement (Order of the Court).
• Rule: Kailasam, J. dissented on Articles 19 and 21. Beg, C.J. would have quashed the order (Kailasam, J.; Beg, C.J.).

Prepared from the full text of the judgment. The judgment has no numbered paragraphs, so points cite the opinion of the Judge concerned.