Passport and liberty

The denial of the right to a passport and travel outside the country amounts to a denial of the fundamental rights of the citizen enshrined in the Constitution and of human rights as defined by international covenants.

Mehbooba Mufti, People’s Democratic Party leader. She has been denied a passport after an adverse report by the CID of Jammu and Kashmir Police.

“L AW has reached its finest moments when it has freed men from the unlimited discretion of some ruler, some civil or military official, some bureaucrat. Where discretion is absolute, man has always suffered. At times it has been his property that has been invaded; at times his privacy; at times, his liberty of movement; at times, his freedom of thought; at times, his life. Absolute discretion is a ruthless master. It is more destructive of freedom than any of man’s other inventions.”

—Justice William O. Douglas of the U.S. Supreme Court. United States vs Wonderluck 342 U.S. 98C (1951)

Until 30 years after Independence, India did not have any law on the grant or refusal of passports. Even the enactment of the Constitution of India on January 26, 1950, with its fundamental rights did not prompt our leaders to make a law on passports. It remained in the domain of seemingly uncontrolled executive discretion moved by the age-old custom of sifarish (recommendation).

One case suffices to illustrate the perils of such a system. It concerns Irfan Habib of the Aligarh Muslim University, one of India’s foremost historians who has been in recent years one of the country’s most fearless public intellectuals.

Prime Minister Jawaharlal Nehru, also the Minister for External Affairs, refused him a grant to go abroad because of his leftist inclinations but changed his mind after meeting him and reading the letter of recommendation by Dr Zakir Hussain, Vice Chancellor of that university. Nehru’s letter of August 12, 1955, to Dr Zakir Hussain reveals a lot. ( Selected Works of Jawaharlal Nehru , volume 29, pages 121-122 for the full text.) He wrote:

“Irfan Habib came to see me this morning and I had a talk with him. When you mentioned his case to me, you gave me the impression that while he was a young man of leftist sympathies and ideas, he was not a regular member of the Communist Party. My own information was that he had been for some time past and was still a member of the Communist Party and had participated in a number of activities as such and through associated organisations. Also that some action had been taken against him by the university some time back. Irfan admitted all this.

“I told him that there had never been any question of our coming in the way of his going abroad for study. The only question was whether he should be given a government scholarship for this purpose. The purpose of giving government scholarships is to train a person who might be of service to the state in some capacity or other in the future. If a person could not be relied upon to serve the state with discretion and integrity, then obviously this main purpose would not be served….

“My own experience of communists has been that it is exceedingly difficult to rely upon their word or on their basic integrity in this sense. Their loyalty to their party overrides all other loyalties and, therefore, they are prepared often to function in a way which cannot be reconciled with my standards of personal behaviour. Again, I repeat this is not a question of difference in idea. Personally, I have had no animosity against the communists at all.

“I recognise, of course, that one must not judge young people too strictly and youthful enthusiasm must be ignored. Probably, with some greater experience, one grows out of these immature grooves of thought and action. Anyhow, in the balance, I feel that we should decide in favour of Irfan Habib as a special ease. My main reason for so thinking is that he is a young man of intelligence and, I believe, integrity, and both these qualities will no doubt influence his future growth. I am, therefore, advising the Education Ministry to give him the scholarship. Naturally, his future behaviour will be a consideration to be kept in mind.”

Nehru was an artist in his use of persons, communist, socialist and others. He shunned the Hindu Mahasabha and the Rashtriya Swayamsewak Sangh (RSS), unlike Vallabhbhai Patel.

Later, the Government of India was forced to enact the Passports Act, 1967, because the Supreme Court noted that the fundamental rights applied to the issue and they could not be restricted except under the law ( Satwant Singh Sawhney vs D. Ramanathan (1968) I S CC 178.) The government moved swiftly to enact the Passports Act, 1967.

Maneka Gandhi’s case

In the wake of the lifting of the Emergency, Maneka Gandhi moved the Supreme Court when her passport was impounded. A bench of seven judges heard the case and held the action bad in law. ( Maneka Gandhi vs Union of India (1978)). Later Supreme Court cases did more than that. They restored the life of Article 21 of the Constitution, which had been taken away by the Supreme Court in its earliest cases. ( A.K. Gopalan vs The State of Madras , Supreme Court cases 88.) The majority of the Constitutional Bench led by Chief Justice H.J. Kania all but killed Article 21, a fundamental right which says categorically: “No person shall be deprived of his life or personal liberty except according to procedure established by the law.” Thus the majority of the day has only to pass a law which can extinguish the right. It was stillborn. In the leading judgment in Maneka Gandhi’s case, Justice P.N. Bhagwati ruled that it just cannot be any procedure but one that is fair and reasonable, the “law” in turn must be a valid law which conforms to other fundamental rights.

The court held that the citizen must be heard in his defence and the reasons for impounding his passport revealed to him. Life and personal liberty, the court has ruled subsequently, is not mere animal existence but a civilised life; ergo , the right to privacy. The passport officer must act judiciously, observing the rules of natural justice.

No territorial limitation

For good reasons which will become apparent later, the court’s dicta by Justice Bhagwati deserve quotation:

“Could it have been intended by Constitution-makers that a citizen should have this freedom in India but not outside? Freedom of speech and expression carries with it the right to gather information as also to speak and express oneself at home and abroad and to exchange thoughts and ideas with others not only in India but also outside. On what principle of construction and for what reason can this freedom be confined geographically within the limits of India? The Constitution-makers have not chosen to limit the extent of this freedom by adding the words ‘in the territory of India’ at the end of Article 19(1)(a). They have deliberately refrained from using any words of limitation. Then, are we going to supply these words and narrow down the scope and ambit of a highly cherished fundamental right? Let us not forget that what we are expounding is a Constitution and what we are called upon to interpret is a provision conferring a fundamental right. Shall we expand its reach and ambit or curtail it? Shall we ignore the high and noble purpose of Part III conferring fundamental rights? Would we not be stultifying the fundamental right of free speech and expression by restricting it by territorial limitation?

“If a fundamental right under Article 21 can be exercisable outside India, why can freedom of speech and expression conferred under Article 19(1) (a) be not so exercisable?”

Justice Douglas said in Kent vs Dulles that “Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.” And what the learned judge said in regard to freedom of movement in his country holds good in our country as well.

Justice Bhagwati said: “Freedom of movement has been a part of our ancient tradition, which always upheld the dignity of man and saw in him the embodiment of the divine. The Vedic seers knew no limitations either in the locomotion of the human body or in the flight of the soul to higher planes of consciousness. Even in the post-Upanishadic period, followed by the Buddistic era, and the early centuries after Christ, the people of this country went to foreign lands in pursuit of trade and business or in search of knowledge or with a view to shedding on others the light of knowledge imparted to them by their ancient sages and seers. India expanded outside her borders: her ships crossed the ocean and the fine superfluity of her wealth brimmed over to the east as well as to the west. Her cultural messengers and envoys spread her arts and epics in South-East Asia and her religions conquered China and Japan and other Far Eastern countries and spread westward as far as Palestine and Alexandria. Even at the end of the last and the beginning of the present century, our people sailed across the seas to settle down in the African countries. Freedom of movement at home and abroad is a part of our heritage and, as already pointed out, it is a highly cherished right essential to the growth and development of the human personality and its importance cannot be over-emphasised.”

Impact of Impounding a passport

Even though Section 10 (3) (c) of the Passport Act is valid, the question would always remain whether an order made under it is invalid because it contravenes a fundamental right. The direct and inevitable effect of an order impounding a passport may, in a given case, be to abridge or take away freedom of speech and expression or the right to carry on a profession, and where this is the case, the order would be invalid, unless saved by Article 19(2) or Article 19(6) of the Constitution. Take, for example, a pilot with an international flying licence. International flying is his profession and, if his passport is impounded, it would interfere directly with his right to carry on his profession, and unless the order can be justified on the ground of public interest under Article 19(6), it would be void as offending Article 19(1)(g). Another example may be taken of an evangelist who has made it a mission of his life to preach his faith to people all over the world and for that purpose, sets up institutions in different countries. If an order is made impounding his passport, it would directly affect his freedom of speech and expression and the challenge, to the validity of the order under Article 19(1)(a), would be unanswerable unless it is saved by Article 19(2). We have taken these two examples only by way of illustration.

There may be many such cases where the restriction imposed is apparently only on the right to go abroad but the direct and inevitable consequence is to interfere with the freedom of speech and expression: or the right to carry on a profession. A musician may want to go abroad to sing, a dancer, to dance, a visiting professor to teach and a scholar to participate in a conference or seminar. If in such a case his passport is denied or impounded, it would directly interfere with his freedom of speech and expression. If a correspondent of a newspaper is given a foreign assignment and he is refused a passport or his passport is impounded, it would be direct interference with his freedom to carry on his profession. Examples can be multiplied, but the point of the matter is that though the right to go abroad is not a fundamental right, the denial of the right to go abroad may, in truth and in effect, restrict he freedom of speech and expression or freedom to carry on a profession so as to contravene Article 19(1)(a) or 19(1)(g).

A passport cannot be denied “for an indefinite length of time” as in Kashmir.

An order made by the Passport Authority impounding a passport is subject to judicial review on the ground that the order is mala fide, or that the reasons for making the order are extraneous or they have no relevance to the interests of the general public or they cannot possibly support the making of the order in the interests of the general public. It was not disputed on behalf of the Union, and indeed it could not be in view of Section 10, sub-section (5) that, save in certain exceptional cases, of which this was admittedly not one, the Passport Authority is bound to give reasons for making an order impounding a passport.

Lord Denning held that “liberty of movement” cannot be hindered “except on the severest grounds”.

Justice Bhagwati concluded: “The Passport Authority would do well to remember that it is a basic human right recognised in Article 13 of the Universal Declaration of Human Rights with which the Passport Authority is interfering when it refuses or impounds or cancels a passport. It is a highly valuable right which is a part of personal liberty, an aspect of the spiritual dimension of man, and it should not be lightly interfered with. Cases are not unknown where people have not been allowed to go abroad because of the views held, opinions expressed or political beliefs or economic ideologies entertained by them. It is hoped that such cases will not recur under a government constitutionally committed to uphold freedom and liberty, but it is well to remember, at all times, that eternal vigilance is the price of liberty, for history shows that it is always subtle and insidious encroachments made ostensibly for a good cause that imperceptibly but surely corrode the foundations of liberty.”

Shortly thereafter, India ratified on March 27, 1979, the International Covenant on Civil and Political Rights (1960). Article 12 (2) says, “Everyone shall be free to leave any country including his own” and to re-enter “his own country”.

The Covenant sets up a committee which periodically considers reports filed by States parties to the Covenant on their observance of the Covenant.

In Kashmir, India has systematically refused passports to dissidents, notably Syed Ali Shah Geelani and Maulana Umer Farouk. Mehbooba Mufti is the latest victim ( The Hindu , March 30, 2021).

The police verification report is against the former Chief Minister whose conduct was found “detrimental to the security of India”. She has consistently supported the State’s accession to India. Under the ruling in Maneka Gandhi’s case, that decision is void. There is no rule of law there and the media could not care less.