The Passport in National and International Law

Tags: India, Indian citizen, Indian Passport, petitioner, personal liberty, KERALA UNIVERSITY, petitioners, the government, passport, discretion, England, the Constitution, the passport, Supreme Court, Government of India, Ismail Karimatti V. Chavan, absolute discretion, Kazi v Jethwani A. I. R., Constitution, Supreme Court Bench, government, respectability, Passport Rules, railway ticket, Indian citizens, Madras High Court, Republic of India, personal request, University Professor, Magna Carta, the Magna Carta, International Law A. T. Markose, international law, personal freedom, Delhi High Court, Bombay High Court, International Administrative Tribunal, Freedom of movement, Universal Declaration of Human Rights, statement incorporated, Geneva Conference, Anglo-Saxon law, evidence, due process of law, common law
Content: VOLUME 1
MAY 1968
NUMBER 1
KERALA UNIVERSITY LAW REVIEW
The Passport in National And international law A. T. Markose * Introductory passport today is a document issued by the appropriate A authority in a State enabling a citizen of a country to leave that country to travel in foreign lands of his choice and to return to his country. This legal significance of the passport is not yet reflected in the statement incorporated on it. That statement reflects the older law that passport is nothing but a request by the Head of one state to another to grant facility and safe conduct to the bearer of the document. The development of the law on this subject is significant to the understanding of the administrative outlook on a matter relevant to the liberty of the individual, the judicial process and of the legislative response to both. All these three phases are so clearly marked in the Indian law that in this article the Indian experience is specially studied. I In Western civilization the right to travel in foreign lands has been very much valued from early days and was emerging at least in England as early as the Magna Carta'. There is a scholarly view to the effect that the word 'passport' arose out of the need of * M. A., LL. D., University Professor and Dean, Faculty of Law, University of Kerala and Deputy Judge, International Administrative Tribunal, Geneva. 1. Cf. Douglas, J. in Kent v Dulles 357 U. S. 116, 125, 126. He observed that the right to travel is a part of the "liberty" of which tne citizen cannot be deprived without due process of law under the Fifth Amendment. "In Anglo-Saxon law that right was emerging at least as early as the Magna Carta. Chafee, Three human rights in the Constitution of 1787 (1956), 171-187 et seq., shows how deeply engrained in our history this freedom of movement is. Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad like
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anyone in England to get the Crown's permission to leave the realm, for, by such exit the sovereign loses the possible services of his liege subject'.
travel within the country may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears. or reads. Freedom of movement is basic in our scheme of values." Similarly Lord A 'vet stone C. J. stated in Rex v Brads:16rd (1905) 2 K. B. 730, 745. "Passports have been known and recognised as official documents for more than three centuries, and in the event of war breaking out become documents which may be necessary for the protection of the bearer, if the subject of a neutral state, as against the officials of the belligerents and in time of peace in some countries, as in Russia, they are required to be carried by all travellers." As for the U.S.A., Justice Thomson described the nature of a passport in Urtetiqui v Arty (1835) U. S. 9. Pet. 692, 699, : 9 L. Ed. 276, 279 as follows: "There is no law of the United States in any manner regulating the issuing of passports or directing upon what evidence it may be done or declaring their legal effect. It is understood as matter of practice that some evidence of citizenship is required by the Secretary of State before issuing a passport. "This, however, is entirely discretionary with him. No inquiry is Instituted by him to ascertain tnc fact of citizenship, or any proceedings had that will in any manner hear the character of a judicial inquiry. It is a document which, from its nature and object, is addressed to foreign powers: purporting only to be a request that the bearer of it may pass safely and freely; and is to he considered rather in the character of a political document, by which the bearer is recognized in foreign countries as an American citizen in which, by usage and the law of nations is received as evidence of the fact. But this is a mere ex-parte certificate, and if founded upon any evidence produced to the Secretary or State establishing the fact of citizenship, that evidence, if of a character admissible in a court of justice, ought to be produced upon the trial, as higher and better evidence of the fact.," 2. cf. V. G. Rao v Madras, A. I. R. 1954 Mad. 240, 242, where it is stated: Historically, the original meaning of the term "passport" appears to have been different from the modern sense It was evidently a rule of common law in the 14th and 15th centuries in England that no subject could leave the realm without a licence or passport. This was founded on the theory that by a person leaving the realm the King was deprived of his service. This doctrine was apparently not universally acknowledged. because according to Stephen's Commentaries on Blackstone every one at the common law was at liberty to leave the realm without licence. The 41st clause of the Magna Carta which allowed all merchants to depart freely from England in time of peace was really embodying an exception to the common law rule that no person could leave the realm without a licence or passport. As the common law rule would not apply to aliens, it was found necessary to pass statutes for the aliens not to leave the country with out a passport. (38 Geo. Ill. C.50, 43 Geo. Ill. C. 155).
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International law has recognised the importance of the passport. At the Geneva Conference on Passport Regulations in May 1926 an attempt was made to reduce the difficulty of displaced persons for passage from one country to another. There exist a considerable number of conventions providing for the abolition of Visas on the passport issued by the contracting parties to this convention. When as a result of political upheavals in the 1930's a number of people became stateless a convention of 28th October 1933 relating to the international status of refugees was called and the contracting parties undertook to grant to certain defined persons the so called Nansen passports, which protected them in the states concerned from arbitrary expulsion and gave them the right for a living space. The diplomatic envoys accredited to a state, deposit their passports with that state when they arrive in that state. The handing over of the passport to a diplomat by the government to which he has been accredited or a request by a diplomat for the return of his passport is tantamount to his expulsion by, or voluntary withdrawl from, that country. For the purpose of ensuring the safety and secrecy of the diplomatic despatches in international intercourse couriers are provided with special passports. These give the couriers exemption from criminal and civil jurisdiction, right of innocent passage through third states and protection from inspection and search of their luggage which contains diplomatic despatches sealed with the official seal. Article 14 of the Universal Declaration of Human Rights, 1948 of the United Nations lays down that everyone has the right of freedom of movement within the country and the right to leave it.3 Although the importance of the right to travel to foreign countries was recognised from early times it was generally considered that the grant of a passport was in the discretion of the governments concerned and that the individual citizen had no right to demand a passport from his government. Similarly under
Generally, passports are issued in times of peace and as between nations and states whose relations are friendly. But sometimes passports are also given by a belligerent state to subjects of an enemy state to allow them to travel without special restrictions. (Vide the Article on "The Passport System" by N. W. Sibley in Journal of Comparative Legislation, New Series Vol. VII. page 26). 3. Oppenheim op. cit. 745. But this declaration as adopted by most governments is not binding on them and hence they have been very liberal in its wording.
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international law none has a right to enter another country and no slate has an obligation to receive a foreigner within it. From the personal nature of the document 4 as it has been issued and its general position of not being necessary either for exit or entry into any country, the above view did not entail any hardship.5 The position has changed completely after the First World War. Passport became a necessity for entry into practically every country. "The use of passports issued by the authorities of the country of nationality to nationals travelling abroad became more frequent in the nineteenth and the beginning of the twentieth century. The possession of a passport, however, was not as a rule a requirement for the crossing of frontiers. Only since the First World War has the passport system in its modern sense been introduced in most countries, i.e. the system whereby aliens who wish to enter a foreign territory are required to produce a passport issued by the authorities of their country of nationality."5a The Passport Act 1920 6 which was the law obtaining in India regarding a person's entry into India prohibited any entry without a passport. The passport Act 1967 which supersedes the Passport Ordinance of 1967 now provides for the issue of passports to Indian citizens and even to others under certain circumstances' to go out of the country and prohibits exit out of India without valid travel documents. The legal history of the right to get a passport from the stage of a mere privilege deniable at the absolute discretion of the executive to a fundamental right under the constitution is interesting. Against the rock of absolute executive discretion in the granting
The statement on an Indian passport which echoes the wording from the very ancient passports of England and the later ones of America is a personal request of the Indian President. It states: "These are to request and require in the name of the President of the Republic of India all those whom it may concern to allow the bearer to pass freely without let or hindrance and to afford him or her every assistance and protection of which he or she may be in need." By order of the President of the Republic of India. The Madras High Court decision in V. G. Rao v State of Madras, A. I. R. 1954 Mad. 420 that no one was entitled to a passport has to be considered as a case at this stage where, technically speaking it was not neceassary for an Indian citizen to have a passport to go out of India and on the view that Pasport Act 1920 was not applicable to Indian citizens. 5a See Wais, Nationality and Statelessness in International Law, 219-220. Now called Passport (Entry in to India) Act 1920 by the verbal alteration introduced by the Passport Act 1967, S.25. S. 20 of the Passport Act 1967.
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of passport 8the first shot was fired on 16th June 1958 by the Supreme Court of The United States, when, by a 5-4 majority through Douglas, J., it was proclaimed in effect that a U. S. citizen could not be arbitrarily denied a passport to travel in foreign countries. In this case, Kent v Dulles, 9 it was held that the right to travel was a part of the liberty of which the citizen could not be deprived without due process of law because of the protection given to him by the American Constitution under the Fifth Amendment. This holding has been confirmed and strengthened by a 1964 decision in Herbert Aptheker v Secretary of State 9a and today in the U.S.A. the right of an American citizen to a passport to travel in foreign lands and return home is like any other fundamental right. In England the law is still that no English subject has a right to get a passport 10 . This is considered startling by some legal authors° but the administration of this discretion, as most things in that country are done, has not evoked any substantial protest. II In India the progress of the law in this area was typical of the judicial-executive dialogue. First in V. G. Rao v Madras 11 the state said that there was no restriction on a citizen to go out of India and therefore the petitioners had no locus standi to demand a passport. This argument was accepted by the court at its face value. At that time in fact none could have left the country without a passport because no travel line could take an Indian citizen abroad without a valid passport. However, Rajamannar, C. J. (with him was Venkatarama Ayyar, J.) declared 12 "we have no doubt whatever that the Act was not intended to prevent British Indian subjects from entering India." In this case a communist was being refused a passport to visit U.S.S.R. and other East European countries. The problem acquired a further dimension when Muslim citizens of India wanted to test whether Pakistan had
A. I. R. (1954) Mad. 240. 357 U.S. 116. (1958) 9.a. 378 U. S. 500. (1964) For a recent English case on Passport cf. Reg. v Secretary of State, [1968] 1 Q. B. 266. 10. a. Harry Street Freedom, The Individual and the Low, (19b3) p. 273; Dennis Lloyd The Idea of Law, 19 p. 160. See Francis v Union of India, A. 1. R. (1966) Ker. 20 at 22 - 23. Kenneth Diplock, Passport and Protection in International Law, (1946) The Granotius Society Vol. 32. Transactions for the year 194 see A, I. k. 1967 S. C. 1836 at 1840 - 41. A. I. R. (1954) Mad. 420. A. I. R. (1954) Mad. 240, 242,
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better living conditions than India and if not to return to India. In Ebrahim Vazir v Bombay 13 the Supreme Court held that a person who was admittedly an Indian citizen and who was in India even if he had violated the laws regarding passport to reach India could not be ordered to be removed from India because such removal violated his fundamental right under Art. 19 (I) (d) to move freely throughout the territory of India. This gave an opportunity to those Indian Muslims who were in Pakistan and who were desirous of returning to India to reach India somehow. Some of those who thus reached India were prosecuted for violating the Passport Act 1920 and the Rules thereunder. They, then , put as a defence the answer that Rajamannar C. J. gave in G. V. Rao v Madras, that the Indian Passport Act 1920 did not apply to Indian citizens and so they were not liable for the penalties prescribed under the Act and the Rules. The Supreme Court then held in Abdul Rabin, Ismail Rahinitoola v State of Bombay," that the Indian Passport Act 1920 and the Indian Passport Rules 1950 applied to all persons including ,Indian citizens and a punishment prescribed thereunder could be validly imposed on an Indian citizen who was found guilty of violating any rule of conduct prescribed thereunder. Once the above legal position was reached two consequences followed. Firstly a law which governed the right to a passport to go out of the country had to be established because if you have to insist on a passport to enter India which the Passport Act 1920 prescribes, you have to show that you have a right to go out of the country in order to make an entry and unless both exit and entry are brought under law, the right of foreign travel could not become a reality. It has to be remembered that the learned counsel for the petitioner in V. G. Rao v Madras' 5 argued only on the basis of Art. 19 (I) (d) but that Article was hardly fit to support a right to go outside the territory of India. Therefore, secondly, the right for foreign travel had to be spelled out of some other article of Part III of the Constitution of India. After Abdul Rahim's case, however, the requirement that Indian Passport Act 1920 and the Rules should, as a law governing Indian citizens, obey Part III of the Constitution helped concentrating attention of lawyers on establishing a right of exit.
A. I. R. (1954) S.C. 229 A. I. R. (1959) S. C. 1315. A. I. R. (1954) Mad. 240. Sec the arguments summarised by the court on ib. p. 24.
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In A. K. Gopalan v Madras" two of the learned judges (Faz1 Ali and S. R. Das, JJ.,) who discussed the ambit of the words `personal liberty' in Art. 21 had to recognise that it was not coequal with the absence of physical restraint i. e. arrest and detention, but was complementary to the freedoms dealt with in Art. 19 so that together the two articles should exhaust all the liberties that a citizen of a civilized country should enjoy today in the domain of jus personarum as distinct from jus rerum. 17 The word `personal' was added to the word liberty in Art. 21 in order to avoid all arguments based on the possiblility of overlapping of the two articles 18. In Kharak Singh v U. P." it was
A. I. R. (1950) S. C. 27. cf. Das, J. in Gopalan v Madras A. 1. R. 1950 S. C. 27 at 108. See the observations of the Drafting Committee of the Indian Constitution extracted in Kazi v Jethwani A. I. R. 1967 Born. 235 at 254 Note that Draft Art. 15 and 13 are present Arts. 21 and 19 respectively. "The Committee is of the opinion that the word "liberty" should be qualified by insertion of the word "personal" before, for, otherwise it might be construed very widely so as to include even the freedoms dealt with in Art. 13" After making the above point the learned Chief Justice, Tombe C. J. added in Kazi v Jethwani A. I. R. (1967) Born. 240, at 243: "Next to personal security, the law regards, asserts, and preserves the personal liberty of individuals. This personal liberty consists in the power of locomotion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct without imprisonment or restraint, unless by due course of law: "The right to travel, except to the extent provided in Art. 19(1)-- is within the ambit of the expression "personal liberty" as used in Art. 21 and as a passport is essential for the enjoyment of that right, the denial of a passport amounts to a deprivation of that right. "It may be mentioned that Art.13 of the draft Constitution referred to in the aforesaid note is Art. 19 of the Constitution. The note makes it abundantly clear that the purpose of qualifying the word "liberty" by insertion of the word "personal" was not to restrict in any manner or to narrow down in any manner the scope and ambit of that expression, but was with a view to avoiding inclusion of freedoms already dealt with in Art. 19 in this Article also and thus creating a conflict between the two articles. It would be noticed that the freedoms dealt with in Art. 19 are certain important aspects of "liberty" which are conferred only on the citizens and could be restricted only, within the limits mentioned in Cl. (2) to (6) of the said Article. The other attributes of "personal liberty" or the residue of the "personal liberty" is contained in the expression "personal liberty" contained in Art. 21, and those rights have been conferred both on citizens as well as non-citizens but the difference is that a citizen or other person could be deprived of those freedoms by a procedure established by law. It is for these reasons, we hold that the expression "personal liberty" occurring in Art. 21 includes the right to travel abroad and to return to India, The respondent therefore had a right under Art. 21 to go to Dubai." A. I. R. 1963 S. C. 1295. According to Hidayatullah, J. in Satwant Singh v Asst. Passport Officer A. I. R. 1967 S.C. 1836, 1850 - 51 this was the minority view in Kharak Sing's case,
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deduceable from the judgments of a majority of judges who gave opinions that the words personal liberty in Art. 21 covered every aspect of personal freedom not covered by the particular species or attributes specified in Art. 19 (1). A complete review of the brief facts of the Indian cases on passport becomes relevant at this stage. V. G. Rao v State of Madras has already been noticed. 2° In Sunil Kumar v West Renga121 it was stated 22 that the words "thoroughout the territory of India" were used "to indicate that the Constitution Act was not giving the citizen any absolute right to move from the Republic of India into some foreign state; in other words it was saving passporting restrictions. Further those words were used to indicate that the Act was not giving a citizen any absolute right to enter the territory of India from outside". These observations were purely incidental, for, the case was on preventive detention. The court used the above argument to repel the argument of the Advocate-General that the above expression in Article 19(1)(d) related "only" to liberty of movement from one particular state to another or one particular area to another". The case dealt with a situation which arose before the Constitution and need not be considered further. In Francis Manjooran v Union of India, 23 the petitioners were men of Kerala and medical graduates (M.B.B.S.) who were offered appointments in hospitals in U.K. and U.S.A., as the case may be, where they were allowed to pursue post-graduate studies also. They were applying for passports for the first time. Passport was denied in their cases because medical practitioners were needed in India. However, such practitioners who had certain higher qualifications were given passports to leave India. The Kerala High Court held that the petitioners have been refused passports because they were doctors and that it was a rank discrimination as between doctors and non-doctors on considerations entirely irrelevant to the matter of the grant or refusal of a passport. In Kazi v Jethwani, 24 the petitioner was the partner of a Bombay firm which carried on business of bankers, exporters and
The respondent in this case became the State of Madras apparently because the Secretary to Government, Home Department, of the State had become the authority, under delegation from the Union, to deal with this matter. A. I. R. 1950 Cal. 274. S.B. lb. at p.277. A. I. R. 1966 Ker.20 at 31 per Raman Nair, J. A. I. R. 1967 Born. 235,
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importers. He was also a partner of a firm Doing Business in Dubai in the Persian Gulf. Passports were granted to him during October 1952 to 1962 to enable him to make trips to Dubai and certain other parts in the Persian Gulf. His application for the grant of a new passport for a period of three years was rejected. The substance of the reply of the government 25 for the rejection of Jethwani's application was that the government had an absolute discretion in the matter. The Bombay High Court held that the government had no such right and the grant of mandamus by the single judge26 was upheld in appeal. In Rabinder Nath v Regional Passport Officer, New Delhi,27 the petitioner was a regular Travel Agent and advisor of Lewfthensa and other international airlines. He applied on 5-9-1966 for a passport for a "business-cum-pleasure trip". On --11-10-1966 he got an invitation from the German Airlines to join an inaugural flight on 12-11-1966. All expenses were to be borne by the airlines. When he personally approached the authorities he was orally refused a passport. In the affidavit supporting the petition for issue of a writ before the Delhi High Court he stated that a passport to an Indian citizen could only be refused. "if he is antigovernment, hot communist, established smuggler, trying to jump the bail granted in a criminal case or being involved in a murder case or he is trying to run away". On behalf of the Ministry of External Affairs it was stated that he was a lower division clerk with the Ministry during 1960-63 and was convicted under Section 120-B read with Section 420 I.P.C. He had applied for a passport to go to U. K. and it was refused. Communications in official confidence which could not be disclosed in the public interest was being considered regarding his present application and no final rejection of his application had taken place. The High Court of Delhi held that no law compelled the government to issue a passport because personal liberty guaranteed by Article 21 of the Indian Constitution did not extend to the cases of going out of, and coming back to, India. In, Satwant v Assistant Passport Officer, New Delhi 28 two petitioners were involved. Satwant Singh who carried on among other business, one of Import and Export, needed to travel abroad for the purpose of his business. From the year 1958 he had been given passport in this connection. On 1966 December
See paragraph 3 on page 236 - 237. See A. I. R. 1966 Bom. 54 per Tarkunde, J. A. T. R. 1967 Delhi-1. A. I. R. 1967 S.C. 1836
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8, he got a regular passport valid upto March 22, 1969. On October 27, 1965 he got another passport which was also valid upto March 22, 1967. Before the expiry of either passport he was asked by the government to return both passports. Therefore this case in substance involved the revocation of an existing passport. He wanted a writ of mandamus under Article 32 from the Supreme Court directing the Assistant Passport Officer, New Delhi and others to forebear from enforcing the order. On behalf of the government it was stated that the petitioner obtained an import licence in 1961 under the Export Promotion Scheme for the face value of Rs.3 lakhs on condition that he would export finished products worth Rs. 4 lakhs to non-ruppee account areas. He, however, sold away in Indian markets 91 per cent of the imports. He was also alleged to have been involved in fraud in import control business and that investigations were going on into his doings in Kuwait. The passports were withdrawn because Satwant Singh, it was apprehended. wished to leave India to tamper with evidence. The second petitioner in the Supreme Court case, O.P. Kapur, who was refused a passport was stated by the external affairs representatives to he a passport racketeer. He was once refused a passport which fact was suppressed by him in a later application on which application he succeeded to obtain a passport. The attempt to impound that passport failed as he had already left India. The majority of the Supreme Court still issued a writ because according to them it was a high constitutional impropriety for the executive to assert that they can prevent an Indian citizen from exercising the guaranteed constitutional right as a purely administrative act without the authority of law. In Subodh Gopal V Tripura 29 three petitioners had joined in one petition praying for a mandamus to be issued against the Union Territory of Tripura and the District Magistrate of Tripura not to give effect to the orders for seizure of the passports of the second and third petitioners and to restore the passport of the third petitioner which was already seized. The petitioners were merchants of Khowai carrying on the business of transporting raw materials from Khowai situated on the eastern bank of the Khowai river which iF the boundary between India and Pakistan. Their business took them to various places via Pakistan. The District Magistrate of Tripura Seized the passports. Appeals to the Chief- Commissioner and representative of the Ministry of Home Affairs, New Delhi only confirmed the action taken against them. This was a
29. A. I. R. 1962 Tripura 7.
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case of joint petition by three people who had no other identity of interest in their transactions except the identity of the question of law regarding the validity of the official action taken against each under separate proceedings. The unauthorised decision of the District Magistrate was considered by the Judicial Commissioner under Article 31 of the Constitution.3° The credit for declaring for the first time a right for a passport for ingress into and egress from India. of an Indian citizen as part of his right of personal liberty-under Art. 21 appears to go to Shelat. J. He did this on 1959 June Ist in Bhatio v Dilip Sinqhfi." Apparently, to Kerala goes the credit for the issue of the first final mandamus directing the issue of a passport to an Indian citizen to go out of the country and to return which was done in Francis v Government of India. 32 It was conceded that there was no law then in India on the subject of issue of a passport for going out of India. But throughout, from V. G. Rao v Madras 33 , in 1 053 to Kazi (Passport Officer) v Jethwani 34 in 1966 the government of India
30. A. I. R. 1962 Tripura 7 at 12. cf. ib. paragraph 31. "The right of the Government of India to revoke and impound the Passport at their discretion cannot, of course, be questioned by the petitioner as in the very application for a Passport he has to declare in para 17 thereof that any Passport that may be granted to him in prusuance of the application shall at the discretion of the. Government of India be liable to be revoked and impounded. Even if therefore the Passport is "Property" within the meaning of Article 31 of the Constitution. the revocation and impounding by the Government of India of the Passport has to be accepted as by authority of law within the meaning of Article 31 of the Constitution. "Further under the Indian Passport Act, 1920 and Indian Passport Rules, 1950 the issue of a Passport is a matter of discretion of the Government of India or of competent authority designated by order of the said government . If it is a matter of discretion to issue a passport, it is equally a matter of discretion to revoke a Passport and the power of revocation is specifically mentioned in the application for a Passport itsel f. It is not a fundamental right of the petitioner to have a Passport issued to him for ingress and egress. Hence the petitioner cannot question the act of the Government of India in revoking and impounding the Passport even within the period of its validity." 3i. Misc. Pet. No.167 of 1959 of the High Court of Bombay unpublished. A. I. R. (1966) Ker.20. M. S. Menon, C. J. delivered the leading judgment. Tarkunde, J. did it earlier in Caoithram v Jethwani A. T. R. (1966) Bom. 54. But that judgment has to be deemed to have merged in the appellate judgment, though that only confirmed it. cf. Kazi v Jethwani A. I. R. (1967) Bom. 235 V.G. Rao v Madr qs A. 1. R. (1954) Mad. 240 at 241 paragraph 3 . A. I. R. (1967) Bom. 235, 237, Paragraphs 3 and 4.
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took the same stand that there was no right in the citizen to have a passport issued to him nor statutory obligation on the government to issue one; "that there was no legal prohibition preventing a a citizen from leaving India; instructions issued to the shipping companies and the airlines not to book passage without a passport do not constitute a legal bar preventing a citizen from leaving India ;35 grant of a passport is within the absolute discretion of the government of India; that there is no right conferred on a citizen to have a passport issued to him; refusal of a passport is a non-statutory administrative action and is not subject to judicial review." All these claims of the executive for absolutism were accepted by the judiciary in 1953. 36 But thirteen years later every one of them was denied. It is however, heartening, to remember that Mohan Kumaramangalam, the learned counsel for the petitioner in V. G. Rao did urge in 1953: 36a after the Constitution all the powers of the state should be found within the four corners of the Constitution and it cannot be presumed that the Government has any residual powers, and the issue of passports is not a power which is vested in the Executive" To this argument the learned Chief Justice made the following answer "The short answer to this contention is that in granting the passport the Government does not purport to exercise any power at all. By reason of its status as a sovereign State, it purports to address other foreign states to give certain facilities to one of its citizens. Moreover, the rights which are recognised in a sovereign state under well established rules of International Law cannot obviously be found contained in the Constitution-
The following answer to this argument appears to the present writer to be the best worded "The avowed object of the denial of passports being to stop the petitioners from leaving the country, the plea that there is nothing to prevent the petitioners from going abroad without a passport strikes me as disingenuous. For myself, I am satisfied that that by reason of executive action taken by the 1st respondent, the petitioners will be physically prevented from leaving toe country unless they have passports. In fact so much seems to have been conceded in the affidavit filed on behalf of the 1st respondent in the case reported in 67 Born. L.R. 544 (AIR 1966 Born. 54). That apart. although it is true that there is no law prohibiting a person from leaving India without a passport, entry into India without a passport, even by a citizen. is prohibited by Rule 3 of the Indian Passport Rules, 1950 made under S. 3 of the Indian Passport Act 1920 and is an offence punishable under R.6 of those rules with imprisonment which may extend upto three months, now, by reason of R.26(2) of the Defence of India Rules to imprisonment which may extend upto five years (See AIR 1959 S. C. 1315.) Per Raman Nair, J. in Francis Manjooran 1, Union of India A.I.R. 1966 Ker. 20 at 26. In V. G. Row v Math as, AIR 1954 Mad. 240 36a. AIR 1954 Mad 240 at 244
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It is significant to legal philosophers to note that the learned Chief Justice used words like "obviously" and prefaced the above paragraph with the comment that the above argument deserved only "brief notice"! Today, every claim raised in the affidavit of the Union Government in all the cases have been found to be against law. And at this point of time with few dissenting voices 37 in the various High Courts the matter reached the Supreme Court in 1967 in Satwant Singh v Assistant Passport Officer, New Delhi38 A majority of three of the five judges 39 who sat on the Constitution Bench accepted the entire law as enunciated by the Kerala High Court Full Bench and by Tambe C.J. in Kazi v Jethwani40. Hidayatullah and Bechawat, JJ. dissented. They did not consider that the words "personal liberty" as interpreted by the Supreme Court in Kharak Singe included the right of exit from India and in so far as the majority, through Chief Justice Subba Rao, interpreted Kharak Singh as above they misread the majority view in that case42 which was to restrict those words to
Sunil Kumar v. West Bengal A, I. R. 1950. Cal. 274. V. G. Rao v. Madras, A. I. R. 1964 Mad. 240. On the holding in that case that a citizen had at that time no law against ingress or egress this case is not against the right to passport. Per K. K. Dasai in Ismail Karimatti V. Chavan, Misc. Pet. 299 of 1959 of Born. H. Ct. This case is of no authority after the Division Bench decision in Kazi v. Jethwani, A.I.R. 1967 Born. 235. Ismail's case was one of cancellation of passport. Subodh Gopal v Tripura, A.I.R. 1962 Trip. 7. "Further under the Indian Passport Act, 1920 and Indian Passport Rules, 1950 the issue of a Passport is a matter of discretion of the Government of India or of the competent authority designated by order of the said government. If it is a matter of discretion to issue a passport, it is equally a matter of discretion to revoke a passport and the power of revocation is specifically mentioned in the application for a passport itself. It is not a fundamental right of the petitioner to have passport issued to him for ingress and egress. Hence the petitioner cannot question the act of the Government of India in revoking and impounding the passport even within the period of its validity". Per Tirumulpad, J.C. Ib. at p. 12. Rabindra Nath Malik v. Assistant Passport Officer, N. Delhi A.I.R. 1967 Delhi. 1. AIR 1967 S.C. 1836 Subba Rao, C.J. M. Hidayatullah, R.S. Bachwat, J.S. Shelat and C.A. Vaidialingam, JJ. A.I.R. 1967 Born. 235 A.I.R. 1963 S. C. 1295 See A.I.R. 1967 S.C. 1836 at 1851-52.
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personal security, that is, protection from arrest and detention. Hidayatullah, J. who delivered the dissenting opinion did not conduct any elaborate independent examination of the juristic nature of the right to travel, but declared that the majority in Kharak Singh's case had accepted Blackstone's view of the meaning of the expression 'personal liberty'. 43 The minority's blind reliance on Blackstone and on stare decisis instead of interpreting the words of the Indian Constitution anew in the light of the facts of contemporary life and Comparative Law has weakened that judgment. The learned judges did not apparently desire any such endeavours, for, they observe:44 In any event there is no absolute right to demand a passport because that is not a right of personal liberty even in the Blackstonian sense. The passport being a political document, is one which the State may choose to give or to withhold. Since that document vouches for the respectability of the holder, it stands to reason that government need not vouch for a person it does not consider worthy. This is not to say that we are insensible to the importance of travel. so adequately described by writers and judgments. Those observations apply to the bulk of the people to whom passport is generally never refused. What we are concerned with is a slender body of persons whose travel abroad is considered harmful to the larger interests of our country and who themselves are in any event undesirable emissaries of our nation and who might, if allowed to go abroad, cause many complications. A system of passports is thus essential and requires a wide discretion". It is felt that it was the absence of any law spelling out the conditions that were to regulate the discretion to issue a passport that might have persuaded the minority to whittle down the quality of the right for foreign travel. Otherwise the relevance of the usage `absolute' right is not understandable. All fundamental rights are subject to limitations deemed reasonable in the context and the right to a passport is and shall be subject to a greater amount of executive discretion than many other rights. But that does not make the quality of the right any the less. Further, the view of the majority had the advantage of compelling the government to cover this administrative section by a proper law. And that is what took place. The President promulgated on 5th May 1967 the Passport Ordinance 1967 not long after the above judgment (the majority judgment was delivered on 10-4-1967) and the Passport Act 1967 which came into effect on 24-6-1967
See paragraphs 53. 54 and 55 on lb. 1849. Ib. p. 1852
A. T. MARKOSE
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superseded the Ordinance. This Act with the Passport Act 1920 and the Passport Rules 1950 now cover the entire field.45
In the difference of view that has emerged in the Supreme Court Bench in the Passport 46 case a fundamental principle is involved-- the principle of executive prerogative. Whether the right to foreign travel is a fundamental right or an ordinary right or even a right like the one to get a railway ticket 47 the executive cannot, without the support of law, out of its own inherent prerogative, deny it to an Indian Citizen. That there is no such power with the government
The earliest Indian measure was apparently the Passport Rules 1917 which obliged one to have a passport to go out of India as well as to enter India. When the Passport Act 1920 was enacted the requirement about passport to go out of the land was abandoned. (See per Hidayattuliah, J. in A. 1. R. 1967 S. C. 1836 at 1847. Satwant Singh v Assistant Passport Officer, New Delhi A. 1. R. 1967 S. C. 1836. Hidayatullah, J. analysed the right of passport as follows: lb. p. 1848-49. "It will, therefore, be seen that there is no compulsion of law that a passport must be obtained before one leaves India. Compulsion arises because no travel line will take an Indian out of India unless he possesses a passport. If an Indian wishes to leave India without a passport he may do so if he can. There is nothing to prevent an Indian getting into a jolly boat and attempting to cross the Arabian Sea; but a foreign country would refuse to receive him unless he possesses a passport and on his return to India he would not be able to enter India unless he produces the passport as required by the Indian Passport Act. The need for passport is indirect. Passport is necessary because it requests the foreign governments to let the holder pass and it vouches for the respectability and nationality of the holder. It is now necessary to consider whether there is a right to demand a passport. Is it a right of the same nature as the right to buy a railway ticket The difference obviously is that before Government places in the hands of a person a document which pledges the honour of the country, government is entitled to scrutinise the credentials of such persons. The right, therefore, to obtain a passport is a qualified one, and not an absolute one. Since Government pledges its honour, it is a privilege which can be exercised with the concurrence of government. Subjects to tnis tnere arises a qualified right. A person refused a passport may ask that his case be considered by a court of law. But what is there in the document on which one can find an absolute right ? Is the state compelled to grant a document pledging its honour to all kinds of persons and must it vouch for the respectability of everyone going abroad? The considerations which must enter in the appraisal of a person's worth, before his respectability can be vouched, are so numerous and varied that they can never be the subject of a successful enumeration and categorisation. If a person is
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is the elementary lesson of the common law witnessed by the rolling down of the head of Charles the First of England and the authority of the Steel Seizure case of the U.S.A. 48It is on this basis that Subba Rao, C.J. did not care to state all the facts of the two cases. So long as the executive could not show any legislative fiat to curtail the activities of the two citizens there was no need to go into the merits of the case at all. As for the unworthiness of the particular petitioners, it is part of the sacredness of the tabernacle of justice that its beams tilt not according to personality. The tradition that has added to its halo is that more unpopular the suppliant the more leniantly and jealously are his rights safeguarded.
wrongfully refused a passport, he can complain that he has been discriminated against and the Courts would right the matter unless the state gives a valid reason. There is thus no absolute right that the state must grant a passport to whomsoever applies for it and subject to a question of arbitrariness or discrimination no one can really be said to possess a right enforceable at law." 48. Youngstone Sheet and Tube Co. v Sawyer (1952) 343 U. S. 579.

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