# ·~ MANEKA GANDHI v. UNION OF INDIA - **Citation:** [1978] 2 S.C.R. 621 - **Court:** Supreme Court of India - **Decided:** 1978-01-25 - **Case number:** Writ Petition No. 231 of 1977 - **Bench:** M. H. Beg, Y. v. CHANDRACHUD, P. N. Bhagwati, V. R. Krishna Iyer, N. L. Untwalia, S. MuRTAZA FAZAL Au, P. S. Kailasam - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/maneka-gandhi-v-union-of-india-7407 - **Pages:** 156 ## Headnote Constitution of India Articles 14, 19 (1) (a) and 21-Personal libertyWhether right to go abroad is part of personal liberty-Whether a law which tomplies with Article 21 has still to meet the challenge of Article 19.-Nature and ambit of Article 14-ludging validity with reference to direct and inevitable cOect-Whether the right under Article 19(1) (a) has any geographical limitation. Pnssports Act, 1967-Ss. 3,5,6,10(3) (c), 10(5)-Whether s,lO (3 )(c)___ is violative of Articles 14, 19(1) (a) (b) & 21-Grounds for refusing to gram passport-Whether the power to impound passport arbitrary-"in general public interest" if vague. A B c Principles of Natural Justice-Whether applies only to quasi judicial orders D or applies TO administrative orders affecting rights of citizens-When statute silent whether can be implied-Duty to act judicially whether can be spell ou~ In urgtnt cases whether principles of natural justice can apply. The petitioner was issued a passport on Juqe 1, 1976 under the Passport Act, 1967. On the 4th of July 1977, the petitioner received a letter dated 2nd July, 1977, from the Regional Passport Officer Delhi intimating to her that it was decided by the Government of India to impound her passport under s. 10(3)(c) E of the Act "in public interest". The petitioner was required to sum:nd.:r her passport within 7 days from the receipt of that letter. The petitioner immediately addressed a letter to the Regional Pass port Officer requesting him to furnish a copy of the statement of reasons for making the order as provided in s.10(5). A reply was sent by the Government of India, Ministry of External Affairs on 6th July 1977 stating i1t1er alia that the Government decided "in the interest of the general public" not to furnish her copy of the statement of reasons for the making of the order. The petitioner thereupon filed the present Writ Petition chullenging action of the Government in impounding her passport and declining F to give reasons for doing so. The Act was enacted on 24-4-67 in view of the decision of this Court in Satwant Sint H, 651 :\-B] c D E F G ll A. D. M. Jabal pur vs. S. S. Shukla [1976] Supp. S.C.R. 172 relied on. The natural law rights were m~ant to be converted into our constitutionally rec~gnised fundamental rights so that they are to be found within it and not outside it. To take a contrary view would involve a conflict between natural Jaw and our constitutional law. A divorce between natural law and our constitutional law would be disastrous. It would defeat one of the basic purposes of our Constitution. [652 B-CJ The total effect and not the mere form of a restriction would determine which, fundamental right is really involved in a particular case and whether a restriction: upon its exercise is reasonably permissible on the facts and circumstances of that case. [652 H, 653A] If rights under Art. 19 are rights which inhere in Indian citizens, individuals carry these inherent fundamental constitutional rights with them wherever they go, in so far as our Ia w applies to them, because they are part of the Indian National just as Indian ships, flying the Indian flag are deemed in international law to be floating parts of Indian territory. This analogy, however, could not be pushed too far because Indian citizens, on foreign territory, are only entitled by virtue of their Indian Nationality and Passports to the protection of the Indian Republic and the assistance of its Diplomatic Missions abroad. They cannot claim to be governed abroad by their own constitutional or personal laws which do not operate outside India. [653 A-Cl In order to apply the test contained in Arts. 14 and 19 of the Constitution we have to consider the objects for which the exercise of inherent rights recognised by Art. 21 of the Constitution are restricted as wel1 as the procedure by which these restrictions are sought to be imposed, both substantive and procedural laws and actions taken under them will have to pass the test imposed by Arts. 14 and 19, whenever facts justifying the invocation of either of these Articles may be disclosed, for example, an international singer or dancer may well be able to complain of an unjustifiable restriction on orofessional activity by denial of a passport. In such a case. violation of both Arts. 21 and J9(1)(g) may be put forward making it necessary for the authorities concerned to justify the restriction imposed ·by showing satisfaction of tests of validity contemrlated by each of these two Articles. [653 F-H] The tests of reason and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic otherwise they would cease to be reasonable. The discretion left to the authority to impound a passport in oublic interest cannot invalidate the law itself. We cannot, out of fear, that such power will be misused, refuse to permit Parliament to entrust even such power to executive authorities as may be absolutely necessary to carry out the purposes of a validly exercisable power. Jn matter'\ such as, grant, sus- ,'pension, impounding or cancellation of passports. the possible dealing of an individual with national~ and authorities of other States h:we to be considered. The contem!llated or po~sible activities abroad of the individual may have to be taken into account. There may be quesions of national safety and welfare which tr~t",cend the imrortance of the individual's inherent right ro go where ne or she pleases to go. Therefore, the grant of wide disC"retionary power to the executive authorities cannot be considered as unreasonab1e yet there must be procedural safeguards to ensure that the power wi11 not be used for purJ')oses extraneous to the grant of the power. The procedural proprieties must be insisted' upon. [654 A-EJ . I I ). f MANEKA GANDHI-v. UNION 625 A bare look at the provisions of s. 10(3) shows that each of the orders A which could be passed under s. 10(3)(a) and (b) requires a satisfaction of the Passport Authority on certain objective conditions which must exist in a case before it passes an order to impound a passport or a travel document. Impounding or revocation are placed side by side on the same footing in the provisions. [654 G-H] It is clear from the provisions of the Act that there is a statutory right also acquired, on fulfilment of the prescribed conditions by the holder of a passport, 8 that it should continue to be effective for the specified period so long as no ground has come into existence for either its revocation or for impounding it which amounts to a suspension of it for the time being. It is true that in a proceeding under Art. 32, the Court is concerned only with the enforcement of fundamental constitutional rights and not with any statutory rights apart from fundamental rights. Article 21, however, makes it clear that violation of all law whether statutory or of any other kind is itself an infringement of the guaranteed fundamental right. [655 B-D] The orders under s. 10(3) must be based upon some material even if tha material concerns in some cases of reasonable suspicion arising from certair. credible assertions made by reliable individuals. In an emergent situation, the impounding of a passport may become necessary without even giving an opportunity to be heard against s11ch a step which could be reversed after an opportunity is given to the holder of the passport to show why the step was unnecessary. However. ordinarily no passport could be reasona.bly either irnpoundect or revoked· without giving a prior opportunity to its holder to show cause against the pro· posed action. [655 D·E] It is well-settled that even when there is no specific provision in a statute or rules made thereunder for showing cau«e against action nronosed to be taken against an individual. which affects the right of that individual the dutv to ~ive reasonable opportunity to be beard will be implied from the nature of the function to be perfor!N'rl hy the authority which ha-. the power to take punitive or d:~maging action. [655 G] c D State nf Orissa v. Dr. (Miss) Binapani Dei & Ors. AIR [1967] SC 1269 @ E 1271 relied on. Cooper v. Wand.~worth Board of Works, [1863] 14 C.B. (N. S.) 180 quoted with approval. An order impounding a passport must be made quasi-judicially. This was not done in the present case. It cannot be said that a good enough reason has been shown tQI exist for impo1Jnding the passport of the petitioner. The petitioner had F no opportunity of showing that the ground for impounding it given in this Court either does not exist or has no bearing on public interest or that the public interest can be better served in some other manner. The order should be quashed • and the respondent should be directed to give an opportunity to the petitioner to show cause against any proposed action on such grounds as may be available. [656 E-Gl There were no pressing grounds with regard to the petitioner that the imme· diate action of impounding her passport was called for. The rather cavalier fashion in which the disclosure of any reason for impounding of her passport G was denied to the petitioner despite the fact that the only reason said to exist is the possiblity of her being called to give evidence before a Commission of Inquiry. Such a ground is not such as to be reasonably deemed to necessitate its concealment in public interest. [656 G-H] Even executive authorities when taking administrative action which involves anv deprivation of or restriction on inherent fundamental rights of citizens must take care to see that justice is not only done but manifestly appears to be done. H They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirements of natural justice. [657 A-B1 626 SUPREME COURT REPORTS (1978] 2 S.C.R. A I As the undertaking given by the Attorney General amounts to an offer to deal with the petitioner justly and fairly after informing her of any grouRd that may exist for impounding her passport, no further acLion by this Court isnecessary. [657 C-D] The impugned order must be quashed and Passport Authorities be directed to return the passport to the petitioner. Petition allowed with costs. [657 D] B Clumdrachud, l. (concurring with Bhagwati, J.) c The power to refuse to disclose the 'reasons for impounding a passport is of an exceptional nature and it ought to be exercised fairly, sparingly and only when fully justified by the exigencies of an uncommon situation. The reasons if disclosed, being open to judicial scrutiny for ascertaining their nexus with the order impounding the passport, the refusal to disclose the reasons would also be open to the scrutiny of the court; or else the wholesome power of a dispassionate judicial examination of executive orders could with impunity be set at nought by an obdurate determination to suppr:ess the reasons. The disclosure made under the stress of the Writ Petition that the petiioner's passport was impounded because, -her presence was likely to be required in connction with the proceedings before a Commission of Inquiry, could easily have been made when the petitioner called upon the Government to let her know the reasons why her passport was impounded. [658 A·D] D E F G H In Satwant Singh Saw/zney's case this Court ruled, by majority, that the expression personal liberty which occurs in Art. 21 of the Constitution includes the right to travel abroad and that no person can be deprived of that right except according to procedure established by law. The mere prescription of some kind of procedure cannot even meet the mandate of Article 2 t. The procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary. The question whether the procedure prescribed by law which curtails or takes away the personal liberty guaranteed by Art. 21 is reasonable or not bas to be considered not in the abstract or on hypothetical considerations like the provision for a full-dressed hearing as in a court room trial but in the contest, primarily, of the purpose which the Act is intended to achieve and of urgent situations which those who are charged with the duty of administering the Act may be called upon to deal with. Secondly, even the fullest compliance with the requirements of Art. 21 is not the journey's end because a bw which prescribes fair and reasonable procedure for curtailing or taking away the personal liberty granted by Art. 21 has still to meet a possible cha11enge under the other provi· sions of the Constitution. In the Bank Natio1111lisation case the majority held that the assumption in A. K. Gopalan's case that certain Articles of the Constitution exclusively deal with specific matters cannot be accepted as correct. Though • the Bank Nationalisation case was concerned with the inter-relationship of Art~ . 31 and 19 and not of Arts. 21 and 19, the basic approach adopted therein as regards the construction of fundamental rights guaranteed in the different provisions of the Constitution categorically discarded the major premise of the majority judgment in Gopalan's case. [658 D-G, 659 A-BJ The test of directness of the impugned law as contrasted with its consequence was thought in A . K. Gopalan and &m Singh's case to be the true approach for determining whether a fundamental right was infringed. A significant application of that test may be perceived in Naresh S. Mirajkar's case where an order passed by the Bombay High Court prohibiting the publication of a witness's evidence in a defamation case was upheld by this Court on the ground that it was passed with the object of affording protection to the witness in order to obtain true evidence and its impact on the right of free speech and expression guaranteed by Art. 19(1) (a) was incidentaL N. H. Bhagwati J. in Express Newspapers Case struck a modified note by evolving the test of proximate effect and operation of the Statute. That test saw its fruition in Sakal Paper's case where the Court giving precedence to the direct and immediate effect of the order over the form and object, struck down the Daily Newspapers (Price and Page) Order, 1960, on the ground that it violated Artic1e 19(1 )(a) of the Constitution. The culmi- ' ~ / J .... / MANEKA GANDHI V. UNION 627 nation of this thought process was reached in the Bank Nationalisation case wbere it was held by the majority, speaking through Shall J, that the extent of protection against the impairment of a fundamental right is determined by the direct operation of an action upon the individual's rights and not by the object of the Legislature or by the form of the action. In Bennett Coleman's case the Court reiterated the same position. It struck down the newsprint policy re~tricting the number of pages of newspapers without the option to reduce the circulation as offending against the provisions of Art. 19(1) (a). [659 F-H, 660 A-C] Article 19{ 1) (a) guarantees to Indian Citizens the right to freedom of speech and expression. It does not delimit the grant of that right m any manner and there is no reason arising either out of interpretational dogmas or pragmatic considerations why courts should strain the language of the Article to cut down amplitude of that right. The plain meaning of the clause guaranteeing free speech and expression is that Indian citizens are entitled to exercise that right wherever they choose regardless of geographical considerations. [661 A-D] The Comtitution does not confer any power on the executive to prevent the exercise by an Indian citizen of the right of free speech and expression on foreign soil. The Constitution guarantees certain fundamental freedoms except where their exercise is limited by territorial considerations. Those freedoms may be exercised wheresoever one chooses subject to the exceptions or qualifications mentioned in Art. 19 itself. The right to go out of India is not an integral part of the right of free speech and expression. The analogy of the freedom of press being included in the right of free speech and expression is wholly mig.. placed bt><'ause the right of free expression incontrovertibly includes the right of freedom of press. The right to go abroad on one hand and the right of free speech and expression on the other are made up basically of constituents so different that one cannot be comprehended in the other. The presence of the due process clause in the 5th and 14th amendments of the American Constitution makes significant difference to the approach of American Judges to the definition and evaluation of constitutional guarantees. This Court rejected the contention that the freedom.Jo form associations or unions contained in Article 19(1) (c) carried with it the right that a workers' union could do all that was necessary to make that right effective in order to achieve the purpose for which the union was formed. [See the decision in All India Bank Employees Associ~tion]. [661 F, H, 662 A-B, E] A B c D E "' Bhagwati, J. (for himself Untwalia and Murtaza Fazal Ali, JJ) .. \ ) The fundamental rights in Part III of the Constitution represent the basic values cherished by the people of this country since the Vedic time~ and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent. But F these freedom~ are not and cannot be absolute, for absolute and unrestrict~d freedom of one may be destructive of the freedom of another In a well ordered civilised society, freedom can only be regulated freedom. · It is obvious that Article 21 though couched in negative language confers fundamental right to life and personal liberty. The question that arises for consideration on the language of Art. 21 is as to what is the meaning and content of the words 'personal liberty' as used in this Article. In A. K. Gopalan's case a narrow interpretation was placed on the words 'personal liberty.' But there was no definite pronouncement made on this point since the question before the court was G not so much the internrctation of the words 'personal liberty' as the inter- · relation between Arts. 19 and 21. [667 G-H. 668 D-E, G, H, 669 A] A. K. Copalan v. State of Madras [1950] SCR 88 and Kharak Singh v. State of U. P. & Ors. {1964] 1 SCR 332 refen:ed to. In I<. harak Singh's case the majority of this Court held that 'personal liberty' is used in the Article as a compendious term to include within itself all varieties of rights v:hich go to make up the personal liberties of man other than those dealt with in several clauses of Article 19(1). The minority however took the H view that the expression personal liberty is a comprehensive one arid the right to mow freely is an attribute of personal liberty. The minority observed that it was not right to exclude any attribute of personal liberty from the scope A B c D E F G H 628 SUPREME CGURT REPORTS [1978] 2 S.C.R. and ambit of Art. 21 on the ground that it was covered by Art. 19(1 ). It was pointed out by the minority that both Articles 19 ( 1) and 21 are indepen· dent fandamental rights though there is a certain amount of overlapping and there is no question of one being carved out of another. The minority view wa" upheld as correct and it was pointed out that it would not be light to read ti-.e expression 'personal liberty' in Art. 21 in a narrow and restricted sense so as to exclude those attributes of personal liberty which are specillc:.tlly dealt with in Art. 19 (1). The attempt of the Court should be to expand the reach and ambit of the fundamental rights rather than attenuate their meaning and content by a process of judicial construction. The wavelength for comprehending the scope and ambit -of the fundamental rights has been ~et by the Court in R. C. Cooper's case and the approach of the Court in the interpretation of the fundamental rights must now be in tune with this wave length. The expression 'personal liberty' in Art. 21 is of the widest amplitude and covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Art. 19(1). Thus Articles 19(1) and 21 are not mutually exclusive. [669 B-670 A-H] R. C. Cooper v. Union of India L1973] 3 SCR 530 relied on. Shambhu Nath Sarkar v. The Srate of West Bengal & Ors. applied. Haradhan Saha v. The State of West Be~gal & Ors. followed. This Court held in case of Satwant Singh that personal liberty within the meaning of Art. 21 includes with its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law. Obviously, the procedure cannot be arbitary, unfair or unreasonable. The observations in A. K. Gopalan's case support this view and apart from these observations, even on principle, the concept of reasonableness must be projected in the procedure contemplated by Art. 21, having regard to the impact of Art. 14 on Art. 21. [671 A, D, G-Hl The decision of the majority in A. K. Gopalan's case proceeded on the assumption that certain Articles . in the Constitution exclusively deal with Fpedfic matters and where the requirements of an article dealing with the particular matter in question are satisfied and there is no infringement of the fundamental right guaranteed by that Article, no recourse can be had to a fundamental right conferred by another article. This doctrine of t:xclusivity was overruled by a majority of the Court in R. C. Cooper's case. The ratio of the majority judgment in R. C. Cooper's case was explained in clear and cate.gorical terms in Shambhu Nath Sarkar's case and followed in Hartldlwrr Salta's case and Klwdi Ram Das's case. [672 B-C, G, 673 A] / Shambhu Nath Sarkar v. State of West Bengal [1 973] 1 SCR 856 referred to. Haradhan Saha v. State of West Bengal & Ors. [1975} 1 SCR 778 and J(hudiram Das v. The State of We.rt Bengal & Ors. [19751 2 SCR 832 relied on. t The Jaw must therefore be now taken to be well-settled that AI ttcle 21 does not exclude Article 19 and that even if there is a law prescribing procedure for depriving a person of personal liberty and the(e is consequently no infringement of the fundamental right conferred by Art. 21, such law in so far as it abridges or takes away any fundamental right under Article 19 would have • 1o meet the chal_knge of that Article. Equally such law would be liable to be tested with reference to Art. 14 and the procedure prescribed by it would have to answer the requirement of that Article. [673 A-G] The State of We.st Bengal v. Anwar Ali Sarkar [1952] SCR 284 and Kathi Raning Rawat v. The State of Saurashtra [1952] SCR 435 referred to. Article 14 is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic and, therefore, it ' -· MANEKA GANDHI v. UNION must not be subjected to a narrow, pedantic or lexicographic approach. No A .attempt should be made to truncate its all embracing scope and meaning, for to do so would be to violate its magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional nnd doctrinaire limits .. [673 H, 674 A] E. P. Royappa v. State of Tamil Nadu & Another [19741 2 SCR 348 applied. Equality and arbitrariness are sworn enemies; one belongs to the rule of law B in a republic while the other to the whim and caprice of an absolute mo~arcb. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a broQding omni-presence and the procedure contemplated by Article 21 ..J must answer the test of reasonableness in order to be in conformity with Article 14. It must be right and just and fair and not arbitrary, fanciful or oppressive. [674 B-CJ It is true that the Passports Act does not provide for giving reasonable opportunity to the holder of the passport to be heard in advance before impounding a passport. But that is not conclusive of the question. If the statute make itselt clew on this point, then no more questioo arises but even when statute is silent the law may in a given case make an implication and apply the principle. Natural justice is a great humanising principle intended to invest law with ta1rness and to secure justice and over the years it has grown into a widely perva- ·sive rule affecting large areas of administrative action. [674 F-G, 675 A-B] Wiseman v. Borneman [1971] A.C. 297 approved. Schmidt v. Secretary of State for Home Affairs [1968] 112 Solicitor General 690 approved. c D There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim ot both administrative inquiry as well as the quasi-judicial enquiry is to arrive at a E just decision and if a rule of natural justice is calculated to secure justice or to put it 'negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable to quasi-judicial enquiry and not to administrative enquiry. It must logically gpply to both. It cannot be said that the requirements of fairplay in action is any the less in an administrative enquiry than in a quasi-judicial one. Sometimes an unjust decision in an administrative enquiry may have far more serious consequences than a decision in a quasi-judicial enquiry and hence rules of natural justice must apply, equally in an administrative enquiry which entails civil consequences. [676 0-H, 677 A) F Re.x v. Electricity Commissioners [1924] 1 K.B. 171 referred to. Re.x v. LeRislative Commiuee of the Church Assembly [1928] 1 K. B. 411 -and Ridge v. Baldwin [1964] A. C. .40 referre