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Delhi High Court reiterates Fundamental Right to travel abroad and have Passport issued [Read the Judgment]

Apoorva Mandhani
13 July 2014 3:04 PM GMT
Delhi High Court reiterates Fundamental Right to travel abroad and have Passport issued [Read the Judgment]
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A Delhi High Court bench comprising of Justice Manmohan reiterated the Fundamental Right to travel abroad and have a passport issued. The Ministry of External Affairs was directed to re-issue the passport to the petitioner, A. Vikash. The petitioner was also directed to pay Rs 50,000 to the Lok Nayak Jai Prakash Narayan Hospital, observing that he has been negligent in taking care of his passport.

No one had appeared for the Government. The petition demanded re-issuance of passport and issuance of fresh Passport in favor of the petitioner. The petitioner had lost his Passport thrice, and it had been returned in a damaged condition the fourth time. The petitioner however submitted that there existed no malafide on his part, and that he had not misplaced the Passport intentionally. No incident or event showing misuse of any of the lost/damaged Passport was placed before the court.

The Government had submitted that the petitioner had failed to keep a valuable Government document safely, relying on the Passport Manual 2010 which states that if an applicant loses his Passport thrice and thereafter damages his Passport, his name shall be placed in the 'Prior Approval Category' for a maximum period of three years.

The petitioner had contended that he has clear antecedents and had peacefully visited foreign countries on the Passport issued to him for short terms for recreational purposes on visitor visas.

The Bench referred to the case of Mrs. Maneka Gandhi vs. Union of India and Another, which is the landmark authority in this respect. The apex court, in that case, had held that 'personal liberty' within the meaning of Article 21 includes within its ambit the right to go abroad and consequently, no person can be deprived of this right except according to procedure prescribed by law. The Ministry was hence directed to re-issue to Passport to the petitioner.

Undoubtedly right of travel abroad is a well recognized fundamental right under Article 21 of the Constitution read with Article 19 of the Constitution. The Supreme Court, in the milestone judgment of Satwant Singh Sawhney Vs. D. Ramarathnam in 1967 recognized the right to travel abroad and return to one's country, as being implicit under the liberty guaranteed under Article 21 of the Constitution of India. At that time, there was no law regarding grant, refusal or revocation of a passport. The court held that refusal of a passport which prejudicially affects a person in the absence of any statutory enactment would be contrary to the Rule of Law and Article 14 of the Constitution and per se unconstitutional.

The Passport Act, 1967 was thereafter enacted, setting specific grounds for refusal, revocation and impounding of a passport.

In the recent case of Teesta Chattoraj Vs. Union of India in 2012, the Delhi Court had held that the fundamental right available under Article 21, which includes the right of locomotion and to travel abroad, is subject to reasonable restrictions. It cannot be said that a citizen has a right to obtain a passport by furnishing incorrect or wrong information with regard to his name, age, address or parentage. He cannot claim that non issuance of the passport with incorrect/false information is infringing his fundamental right of locomotion or to travel abroad. In my view, it cannot be said that the passport authority has no jurisdiction whatsoever to go into the issue of correctness or otherwise of the adoption deed, even in case where, on the face of it, the said adoption deed appears to be in contravention of the law.

The American law of the subject is also clear. The 5th and 14th amendments embody a constitutional guarantee that no person shall be deprived of his liberty without due process of law. In American Jurisprudence, 2nd Ed. at page 359, it is stated that "Personal liberty largely consists of the, right of locomotion-to go where and when one pleases only so far restrained as the rights of others may make it necessary for the welfare of all other citizens."

The established rule was hence reiterated by the judgment, taking a more balanced approach, by ordering the petitioner to pay the costs, as he was negligent in taking care of an important document, without depriving him of his Fundamental Right.

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