The High Court of Kerala has held that passport authorities have no power to impose penalties under Section 12 of the Passport Act, 1967, for violation of the provisions of the Act.
Holding thus, a division bench comprising Chief Justice S Manikumar and Justice Shaji P Chaly set aside the penalty list framed u/s 12(1)(b) prescribed in schedule III of Passport Rules, 1980 as well as Office Memorandums regarding table of penalties framed u/s 12(1A).
The bench noted that the power to impose punishment was conferred only on the Magistrates. The power of the passport authority is only to launch prosecution. Fine as an alternative to imprisonment on finding guilty, can only be imposed by the competent Magistrate who adjudicates the issue on the basis of any complaint filed by the passport authority, held the Court.
The ruling was given in a Public Interest Litigation petition filed by an NGO, Citizens Legal Rights Association.
The Central Government argued for giving penalty power to passport authorities. It was contended that penalty power was necessary to deter applicants from malpractises such as suppressing material facts from the purview of the passport authority, while submitting the application for issuance of passport. It is not practical launch prosecution in each and every case of violation, the Centre said.
Rejecting these contentions, the Court observed that a penalty which is not in accordance with law infringes fundamental right to personal liberty under Article 21 of the Constitution. The Court also rejected the contention of the Centre that PIL was not maintainable on the issue. The matter had "substantial element of public interest", the bench observed.
"on consideration of the facts and law, we are convinced that the authorities under the Act, 1967 are not vested with any power under Section 12 of the Act 1967, to impose any fine and it is a matter affecting the public. That apart, imposition of fine so made, which is an undisputed fact, without authority of law is a clear interference with the protection of life and personal liberty guaranteed under Article 21 of the Constitution of India, since it prohibits deprivation of life and personal liberty, except in accordance with the procedure established by law. Thinking, and assimilating the situation so, exercise of power is nothing short of transgression of the fundamental right guaranteed under Article 21 of the Constitution of India".
The Court adverted to a judgment of the Delhi High Court delivered in 2013, reaching the same conclusion. The Court noted that the Ministry of Law and Justice had advised against filing appeal against the judgment of Delhi HC, and had suggested that the Passports Act be amended instead to incorporate powers to passport authorities to impose penalties.
This aspect also fortified the conclusions of the HC.
The Court however refrained from ordering the refund of the pecuniary penalties already paid on the ground that the aggrieved persons were not before it.
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