FACTS IN BRIEF :- The Petitioner was the holder of a passport issued to her under the Passports Act, 1967. Later she received a letter from the Regional Passport Officer, Delhi intimating to her that it has been decided by the Government of India to impound her passport under Section 10(3)(c) of the Act in public interest and requiring her to surrender the passport. The petitioner in reply requested the Officer to furnish a copy of the statement of reasons for making the said order. To this a reply was sent by the Ministry of External Affairs that the Government has decided ‘in the interest of the general public’ not to furnish her a copy of the statement of reasons. The petitioner thereupon filed the present petition challenging the action of the Government in impounding her passport and declining to give reasons for doing so.
ARGUMENTS:- The action of the Government was impugned on several grounds. These were;
The order passed against here was actuated with mala fides
Section 10(3)(c), insofar as it empowered the Passport Authority to impound a passport ‘in the interests of the general public’ was violative of the equality clause enshrined in Article 14 of the Constitution as the condition ‘in the interests of the general public’ limiting the exercise of the power was vague and undefined and therefore was excessive and suffered from the vice of ‘overbreadth’.
That the order under Section 10(3)(c) impounding a passport could not be made without giving an opportunity to the holder of the passport to be heard in defence and since this was not so done in the instant case, the order was null and void. Also, if Section 10(3)(c) were read in such a manner so as to exclude the right of hearing, the Section would be infected with the vice of arbitrariness and it would be void as offending Article 14.
That impounding of passport was violative of the fundamental right enshrined in Article 19(1) (a), (g) in so far as right to go abroad being read into freedom of speech and expression and occupation or business respectively.
JUDGMENT:- The conjoined reading of fundamental rights was upheld in the present case as was declined in the Gopalan’s case (AIR 1950 SC 27) and it was held that each Fundamental Right did not form a separate code and thus a mere sufficing of an express right did not relax the test on other rights supplementing the case. Hence mere satisfaction of procedure was not sufficient; rather the principle of reasonableness, which legally as well as philosophically, was an essential element of equality or nonarbitrariness pervaded Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14; and this lead to the significance of enshrinement of natural justice in such procedure. The Court went on further to lay the law that as regards the test of applicability of the doctrine of natural justice, there could be no distinction between a quasi-judicial function and an administrative function for that purpose.
The Court held that as the law under Section 10(3) allowed the Central Government (a) to take such action having no right of appeal (b) to curtail the right to seek reasons, under the law which provided for the passport authority to do so if it is of the opinion that it will not be in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public to furnish such a copy hence having followed the procedure established by law without any deviance, the implementation by the administrative body could not be challenged.
As regards the allegation of mala fides, it was held that as she was to be inquired before Commissions of Inquiry and the Ministry had acted on confidential information of her leaving the country, such order had to be moved. Discussing the concept further, law enunciated was that merely because a statutory provision empowering an authority to take action in specified circumstances is constitutionally valid as not being in conflict with any fundamental rights, it does not give a carte blanche to the authority to make any order it likes so long as it is within the parameters laid down by the statutory provision. Every order made under the statutory provision must not only be within the authority conferred by the statutory provision, but must also stand the test of fundamental rights. Parliament cannot be presumed to have intended to confer power on an authority to act in contravention of fundamental rights. It is a basic constitutional assumption underlying every statutory grant of power that the authority on which the power is conferred should act constitutionally and not in violation of any fundamental rights.
The Court held that the Right to go abroad was not covered by the rights guaranteed under Article 19(1) (a), (g). The Court observed that the test to be applied in such cases was the ‘doctrine of direct and inevitable effect’. Thus what was necessarily to be seen was, ‘ whether the right claimed by the petitioner is an integral part of a named fundamental right or partakes of the same basic nature and character as the named fundamental right so that the exercise of such right is in reality and substance nothing but an instance of the exercise of the named fundamental right’. This being not established in the instant case, the Court held that the right to go abroad could not in all circumstances be regarded as included in freedom of speech and expression.
FOR COMMON MAN:- This judgment re-establishes arbitrariness is antithesis to the fundamental right of equality (under Article 14). It also establishes that the procedure talked of in Article 21 ought to be ‘right and just and fair’ and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.
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