Landmark case of Maneka Gandhi vs. Union of India, AIR 1978 SC 597
- ByPravleen Kaur --
- 28 Nov 2024 --
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Maneka Gandhi versus Union of India, AIR 1978 SC 597, was a landmark decision of the Supreme Court of India in which the Court significantly expanded the interpretation of Article 21 of the Constitution of India.
Facts:
1) The petitioner is holder of the passport issued on June 1, 1976. On July 4, 1977 she received a letter from the Regional Passport Officer, Delhi informing her that the Government of India has decided to Impound her passport under section 10(3)(c) of the Passports Act(hereinafter referred to as “the act”), 1967 in public interest.
2) The petitioner immediately addressed a letter To the Regional Passport Officer, to furnish a copy of statement of reasons for making the above-mentioned order, to which the Ministry of External Affairs replied that “in the interest of general public” is has decided not to furnish statement of reasons, relying on the provision of Section 10(5) of the Act.
3) The petitioner therefore filed the petition challenging the action of the Government in seizing her passport and not even providing her with reasons of doing so.
4) The order was declared null and void by the court as it did not afford the petitioner any opportunity of hearing and the petition was admitted.
Provisions referred to in the case:
1) Section 10(3)(c) empowers the passport authority to impound a passport “in the interests of general public”
2) Section 10(5) requires the passport authority impounding a passport to record the statement of reasons in refusing the passport and furnish to the holder a copy of the same on demand, unless the passport authority is of the opinion that it will not be in the interest of general public to furnish such a copy
3) Section 11 of the Act provided for an appeal including against the order impounding a passport. However, a proviso to this section says that if such order is passed by the central government there shall be no right if appeal.
4) Article 14 orders the state not to deny any person equality before the law or equal protection of the law within the territory of India
5) Article 19(1) (a) provides that all citizens shall have a right to freedom of speech and expression
6) Article 19(1) (a) provides that all citizens shall have a right to practice any profession, occupation, trade or business
7) Article 21 confers the fundamental right to life and personal liberty which is insured
Issues:
1) Whether Section 10(3)(c) is violative of equality clause contained in Article 14 of the Constitution as the power conferred by this provision is vague and excessive and suffers from “overbreadth” 1
2) Whether 10(3)(c), if excludes the right to be heard, suffers from arbitrariness and thus violates Article 14
3) Whether 10(3)(c) is violative of Article 21 as it provides impounding of passport without any due procedure of law, as required by the Article or even if there is a procedure in the Act, it is arbitrary.
4) Whether 10(3)(c) is violative of Article 19(1)(a) in as much as it authorizes restrictions on freedom of Speech and of Article 19(1)(g) as it restricts the freedom to practice any profession, occupation, trade or business
5) Whether there is any nexus between the reasons provided by the government in impounding the passport and the interest of general public or are they irrelevant
6) What is the meaning of “personal liberty” under article 21. Is it inclusive of the right to go abroad that this right can’t be taken away without due procedure of law?
7) whether the central government has complied with the procedure established in the Act for impounding the passport of the petitioner
Judgement and analysis of the court:
1) P.N.BHAGWATI,J.- Before coming of the Act, there was no law regulating the issue of passports and it was a matter entirely within the unguided discretion of the executive. The court by majority held that the expression “personal liberty” under Article 21 includes the right of locomotion and travel abroad, which can’t be refused, except by procedure
established by law. Also, since the refusal of this right is arbitrary, it is violative of Article 14. Hence the order refusing passport to the petitioner is invalid.
2) When this petition came to be filed, the central government disclosed the reasons in the affidavit. Then it became clear that the interests of general public could not have been prejudiced at all, at the instance of furnishing reasons. The necessity of giving reasons had been introduced in the Act so that it could act against the abuse of power of the
government.
3) If there is no nexus between the reasons and the ground on which the passport was impounded, such order is liable to be challenged and struck down. The liability to be exposed to judicial scrutiny will itself act as a safeguard against mala fide exercise of power of the government.
The fundamental rights impose negative obligations on state to not encroach upon individual liberties of people of India. Their purpose is to help individuals give expression to their own creativities and to prevent government from alienating the person from his creative impulses. These rights are comprehensive and fall under seven heads namely; right to equality, right to freedom, right to freedom of religion, right against exploitation, cultural and educational rights, right to property and right to constitutional remedies.
Right to freedom under Articles 19 to 22 are not absolute freedoms as unrestricted freedom of one may be destructive of the freedom of another and in a civilized society, freedom can only be in the form of regulated freedom.
In the A.K Gopalan vs State of Madras 2 judgement was a narrow interpretation of the words “personal liberty” under Article 21, so as to confine its protection to freedom of a persons against unlawful detention. In Kharak Singh vs State of UP 3 It was held by majority that “personal liberties” under article 21 includes all those rights which are not dealt with in Article 19(1). However the minority judges held that though Article 21 is a comprehensive one, right to move freely is already dealt in Article 19 it is said to be carved out of Article 21 and hence is excluded under “personal liberties”. Mukhererja,J. in A.K.Gopalan made a statement that Article 21 presupposes the law to be valid, binding and constitutionally valid, having regard to competence of the legislature and does not infringe any fundamental
rights.
However in this case, judges have disagreed with this view. Both are independent fundamental rights with some overlapping. In case of infringement of right under A21, state can rely upon a law to sustain that action, but the said law should satisfy the test laid down under A19(2). Thus it can be said that the fundamental rights are not mutually exclusive.
In RC Cooper case 4 it was held that even where a person is detained in accordance with procedure established by law, as mandated by Article 21, protection conferred by various clauses of A19 does not cease of exist and the law authorizing such detention has to satisfy the test of freedoms under A19, that procedure cannot be arbitrary and unreasonable.
In Satwant Singh case, it was held that within the meaning of Article 21, the right to go abroad is covered, therefore no person can be deprived of this right, except with procedure established by law. Prior to the enactment of the Passports Act there was no law regulating this right and that’s the reason why the order of Passport officer refusing the issue of
passport to the petitioner is this case, was struck down as invalid, as it was an executive action not backed by any law. Therefore to comply with the requirement of Article 21, for there being a due process of law, the parliament enacted the Act.
In A.K. Gopalan case, Mahajan,J. observed that Article 21 requires that there should be some sort of proceeding before a person can be condemned in respect of his life or liberty.
The court in The State of West Bengal vs Anwar Ali Sarkar and Kathi Rani Rawat vs State of Saurashtra, applied the test of Article 14. In these cases there was a special law providing for trial of certain offences by a speedier process which took away some safeguards available to the accused under CRPC. The special law thus prescribed a procedure of trial and therefore could not be condemned as unfair or unjust, thus there was compliance with Article 21, but
even then, the validity of the special law was tested by applying the test of A14 and in Anwar Ali, it’s validity was struck down. It was held in both these cases that procedure established by law should not be violative of the equality clause of A14.
In E.P. Royappa v. State of Tamil Nadu 5 it was pointed out that equality is antithetic to arbitrariness. Thus the procedure contemplated by A21 must answer the test of reasonableness in A14.
Any procedure which takes away the right to go abroad, without giving reasonable opportunity to show cause is unfair and unjust. Thus in the present case, there is clear infringement of A21. However in the Act there is no express provision which requires that audi alteram partem rule should be followed before impounding a passport. But in Cooper v.
Wandswort Board of Works 6 it was established that even when there are no positive works in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. It was urged by the Attorney General that in the action of impounding of passport, audi alteram partem rule must be excluded because if reasonable opportunity of being heard would be afforded to such person, he might immediately, make exit from the country, on the strength of the passport. Hence, this rule cannot be applied in fairness to impounding of
passports. In these cases, the audi alteram partem rule is held inapplicable not by the way of exception, but by the way of extension of the principle of “fair play in action”. The rule is not intended to defeat the ends of justice. Every legal proposition should be tested on the touchstone of pragmatic realism and should be excluded in cases where it has the effect of paralysing the administrative process. Thus in the present case it was held that the procedure established by the Act is in conformity with A21. But the question that arises is whether the central government has complied with the
procedure established in the Act for impounding the passport of the petitioner. The centre not only did not give an opportunity to the petitioner to be heard, but also refused to furnish her with the statement of reasons for the impugned order. Thus the order clearly in violation of rule of natural justice. The reasons should also meet the requirement of being justified and reasonable.
In Ram Singh vs State of Delhi 7 detention of the petitioner was ordered to prevent him from making any speeches prejudicial to public order. The argument was that the order is invalid as it infringes freedom of expression under A19(1)(a). the court observed that the direct object of the order was preventive detention and infringement of A19(1) (a) was merely consequential.
The test to be applied to determine the constitutional validity of a state action with respect to fundamental rights is what’s the object of the authority in taking such action. However, it was pointed out by Ray J. in Bennett Coleman case that First it is not the form or object of action of authority that determines the whether there has been an invasion of any fundamental right. Secondly, it is the effect of law that attracts judicial scrutiny. In this case there was a limit imposed on number of pages for every newspaper under the newsprint policy. The argument of the government was that the object of such policy was rationing and equitable distribution of imported newsprint which was a scarce commodity and therefore was not violative of right to freedom of speech and expression under A19(1) (a), since it did
not deal with the right directly and it’s subject matter was different. The majority took the view that it is not the subject matter or the object of the newspaper policy which was determinative whether there was any violation of fundamental rights but it was the effect of the action which was. If a given state action relates to a particular fundamental right, but its inevitable effect may be on another fundamental right, then the state would have to meet the challenge of latter fundamental right.
Conclusion:
In this judgement the assumption in A.K Gopalan case that certain Articles in the constitution exclusively deal with specific matters, was not accepted. The expression “personal liberty” under A21 was given a broad interpretation so as to include rights which have been given protection under A19. The right to travel abroad is guaranteed under the International Covenant on the Civil and Political rights, however it is not specifically recognized under the fundamental rights of our constitution. In Maneka Gandhi v. Union of India, the court held that no person can be deprived of this right except by established procedure, which shouldn’t be arbitrary. Hence the right to go abroad is a valuable constitutional right.
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