The Kerala High Court has held that right to travel is a fundamental right and that the government cannot restrain persons having valid T visas issued from USA to travel to USA. T visas, also known as Trafficking visas are issued by USA to persons who are victims of human trafficking and their families. Earlier, the Central Government had declared that persons accepting T visas issued by USA would not be allowed to travel there. The High Court held the same to be against fundamental rights.
The High Court said, the Government “cannot in any manner restrain the petitioners from holding derivative visas, T2 and T3 from travelling to USA to join husband/father who is duly employed therein”while hearing a writ petition relating to seizure of passport and restraining a lady from boarding a flight to USA, despite her being a valid T visa. The High Court also ordered, “It is also crucial to note that on no other grounds except the grounds stated in Section 6 of the Passport Act, 1967, travel documents could be refused. The petitioners will not come under any of the interdicts in Section 6 of the Passport Act, 1967.”
Recognizing the right to travel as a fundamental right, the Court said, “The right to travel is a fundamental right guaranteed and protected under Article 21 of the Constitution of India. The right to life includes the right of spouse and children to join, to be in the company and to grow with the spouse and parents. The denial of the same is not only violation of the fundamental rights and natural rights of the petitioners but also detrimental to the very concept of matrimonial living as well as the rights, duties and obligations in matrimonial living of spouses. It is also detrimental to the psychological growth and development of the spouse and children.”
The matter reached the Court as when the petitioner, a lady along with her children, was all set to board a flight to USA from Cochin Airport, she was retrained from doing so and her passport was also seized. The lady along with the children were going to USA to visit their husband/father who had a valid T1 visa.
As the matter reached the High Court, the Ministry of External Affairs submitted to the Court “A trafficking visa is a type of visa allowing certain victims of human trafficking and immediate family members to remain and work temporarily in the United States, if they agree to assist law enforcement in testifying against the perpetrators” It also said, “a proposal to treat the holder of Indian Passport whosoever has been given the Trafficking visa on his/her passport issued by the US Government as a violator of the Passports Act, 1967 was considered during an Inter-ministerial meeting on trafficking visas held on 10.2.2014”. Interestingly, the said meeting happened after the Devyani Khobragade incident became known.
Accordingly, after the meeting, it was decided, “All the Missions/Posts abroad were instructed to place the Indian Passport holders holding United States T1, T2, T3, T4 and T5 visas in the prior Approval Category for availing all Indian consular services until further notice from the Ministry” and “the Bureau of Immigration, Ministry of Home Affairs can stop Indian Passport holders from leaving the country, if they hold Trafficking Visa on their passports and the passports seized in this regard may be sent to the Ministry (in case the passport has been issued by the Missions/Posts abroad) or to the concerned Passport Office (from where the passport has been issued for further course of action)”
Before the High Court, the Counsel of the petitioner submitted that “the prevention of the petitioners from boarding the flight in spite of having valid visas, due passports and due tickets and the seizure of their passports are grossly illegal, unreasonable, inequitable, baseless and without authority.” He also said, “petitioners are having due visas granted by the Government of the United States of America and when there is nothing illegal about the petitioners duly travelling to the USA to join their husband/father, it is absolutely baseless and illegal to restrain the petitioners from boarding their flight to USA.” The respondents countered the submissions and they said, “If the petitioners are permitted to go abroad and to join Mr.Jeegan, the same would be against the provisions of the Victims of Trafficking and Violence Protection Act, 2000 passed by the 160th Congress of the United States of America at its second session.”
The High Court then perused the American Statute and said, “The statute clearly indicates that the purpose of the enactment is to protect the victims of trafficking. The Government of United States of America where Mr.Jeegan(Husband) is working has granted proper visa to the petitioners to join Mr.Jeegan.” The High Court also went through various provisions of the Passports Act, 1967 and observed, “It is also crucial to note that on no other grounds except the grounds stated in Section 6 of the Passport Act, 1967, travel documents could be refused. The petitioners will not come under any of the interdicts in Section 6 of the Passport Act, 1967.”
Also acknowledging the submissions made by the petitioners who relied on Universal Declaration of Human Rights and International Covenant on Civil and Political Rights, the High Court said, “on a consideration of the entire materials now placed on record, this Court is of the definite view that the respondents cannot in any manner restrain the petitioners from holding derivative visas, T2 and T3 from travelling to USA to join husband/father who is duly employed therein.”
Read the Judgment here.