# SATWANT SINGH SAWHNEY v. D. RAMARATIINAM, ASSISTANT PASSPORT OFFICER;. GOVERNMENT OF INDIA, NEW DELm AND OTHERS

- **Citation:** [1967] 3 S.C.R. 525
- **Court:** Supreme Court of India
- **Decided:** 1967-04-10
- **Bench:** K. Subba Rao, M. Hidayatullah, R. S. Bachawat, M. Shelat, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/satwant-singh-sawhney-v-d-ramaratiinam-assistant-passport-officer-government-of-4074
- **Pages:** 32

## Headnote

Constitution of India, Articles 14 and 21-Whether right to travel
abroad and to a passport part of personal liberty within the meanln1 of
A.rt, 21-ln the absence of any law whether exercise of executive d/scre.
tion ·to issue or refuse passport discriminatory.
The petitioner carried on the business of import, expart and the manu·
facture of automobile parts and in connection with
his business it was
necessary for him to travel abroad. For this pur} ;e he was holdin11 two
valid passports when on August 31, 1966 and on September 24, 1966 the
first and the second respondents, bein11 the Assistant Passport 011icer at
New Delhi and the Rejlional Passport 01licer
at Bombay
respectively
wrote to the petitioner callini: upon him to surrender the two passports
as the Central Government had decided to withdraw the passport facilities extended to him. The petitioner filed the present petition under Art.
32 of the Constitution alleging that the respondent's action infringed his
fundamental rights under Art. 21 and 14 of the Constitution and prayed
for a writ of nuindamus di'recting the respondents to withdraw and cancel
the decision contained in the two letters.
It was contended, inter al/a, on behalf of the petitioner that the right
to leave India and travel outside India and return to India is part of personal liberty illaranteed under Art. 21 of the Constitution; refusal to
give a passport or withdrawal of one given amounts to deprivation of
personal liberty inasmuch as, (a) it is not practically
possible for a
citizen to leave India or travel abroad or to return to India without a
passport; (b) instructions are issued to shipping and air travel companies
by the Central Government not to Ulke passengers on board without a
passport: ( c) under the Indian Passport Act, re-<lntering
India without
a P!"'Sport is penalized. The deprivation of personal liberty in the refusal
or impounding of a passport is not in accordance with any procedure
!"'tablished by. law within the meaning of Art. 21, as admittedly there
is no law placing any restrictions on the citizens of the country to travel
abr~ad. Furthermo:e. the unfettered discretion given to the respondents
to iss~e ,or not to issue a passport to a person offends Art. 14 of the
ConstltuUon.
The respOJ!den!3 contested the petition mainly on the JllOunds that no
fundamental nght of the petitioner had been infringed that the petitioner
had ~ontr~v"'!ed the cond.itions of an import
licenc~ obtained by him
that investigations were going on against him in relation to offences unde;
the Exl'!'rt and Import Control Act, and that the
passport authorities
were satisfied that if the petitioner was allowed to continue to have the
fa"ports, he was likely to leave India and not return to face a trial beore a court of la"'. and that therefore it was necessary to impound his
p~sport.
~urthe' 1t was contended that the passport was a document
wf "I,~ was
1
.ti~su
1
edf to ~ person at the pleasure of the President in exercise
o
is po 1 1ca
unction and was a political document, and the refu'tl
526
SUPllBMB COUllT RBPORTS
(1967] 3 S.C.R
to grant a passport could not be a subject of review in a court of law.
:For the same reason it was contended that the petitioner had no right to
bave the passpom issued to him.
HELD: (per Subba Rao, C.1., Shelat and Vaidialingam, JJ.),
A \Hit of mandamus must issue to the respondent to withdraw and
cancel the decision contained in their letters dated Augir.;t 31, 1966 and
September 20, 1966.
A person living in India has
a fundamental right to travel abroad
under Art. 21 of the Constitution and canriot be denied a passport be-
·ca~ factually, a pass~rt rs a necessary condition for travel eh road and
lhe uovernment, by wtthholdin& the passport, can effectively deprive him
Of his right. (528 H; 530 G; 540 BJ
"Liberty" in our Constitution bears the same comprehensive meaning
as is given to the expression "liberty" by the Sth and 14th Amendmenta
to the U.S. Comtitution .and the expr

## Text

_Characters 0–39,971 of 84,709. This is a partial read: ask again with offset=39971 for what follows._

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G
H
SATWANT SINGH SAWHNEY
v.
D. RAMARATIINAM, ASSISTANT PASSPORT OFFICER;.
GOVERNMENT OF INDIA, NEW DELm AND OTHERS
April 10, 1967
[K. SUBBA RAO, C.J., M. HIDAYATULLAH,
R. S. BACHAWAT,
J, M. SHELAT AND C. A. VAIDIALINGAM, JJ.]
Constitution of India, Articles 14 and 21-Whether right to travel
abroad and to a passport part of personal liberty within the meanln1 of
A.rt, 21-ln the absence of any law whether exercise of executive d/scre.
tion ·to issue or refuse passport discriminatory.
The petitioner carried on the business of import, expart and the manu·
facture of automobile parts and in connection with
his business it was
necessary for him to travel abroad. For this pur} ;e he was holdin11 two
valid passports when on August 31, 1966 and on September 24, 1966 the
first and the second respondents, bein11 the Assistant Passport 011icer at
New Delhi and the Rejlional Passport 01licer
at Bombay
respectively
wrote to the petitioner callini: upon him to surrender the two passports
as the Central Government had decided to withdraw the passport facilities extended to him. The petitioner filed the present petition under Art.
32 of the Constitution alleging that the respondent's action infringed his
fundamental rights under Art. 21 and 14 of the Constitution and prayed
for a writ of nuindamus di'recting the respondents to withdraw and cancel
the decision contained in the two letters.
It was contended, inter al/a, on behalf of the petitioner that the right
to leave India and travel outside India and return to India is part of personal liberty illaranteed under Art. 21 of the Constitution; refusal to
give a passport or withdrawal of one given amounts to deprivation of
personal liberty inasmuch as, (a) it is not practically
possible for a
citizen to leave India or travel abroad or to return to India without a
passport; (b) instructions are issued to shipping and air travel companies
by the Central Government not to Ulke passengers on board without a
passport: ( c) under the Indian Passport Act, re-<lntering
India without
a P!"'Sport is penalized. The deprivation of personal liberty in the refusal
or impounding of a passport is not in accordance with any procedure
!"'tablished by. law within the meaning of Art. 21, as admittedly there
is no law placing any restrictions on the citizens of the country to travel
abr~ad. Furthermo:e. the unfettered discretion given to the respondents
to iss~e ,or not to issue a passport to a person offends Art. 14 of the
ConstltuUon.
The respOJ!den!3 contested the petition mainly on the JllOunds that no
fundamental nght of the petitioner had been infringed that the petitioner
had ~ontr~v"'!ed the cond.itions of an import
licenc~ obtained by him
that investigations were going on against him in relation to offences unde;
the Exl'!'rt and Import Control Act, and that the
passport authorities
were satisfied that if the petitioner was allowed to continue to have the
fa"ports, he was likely to leave India and not return to face a trial beore a court of la"'. and that therefore it was necessary to impound his
p~sport.
~urthe' 1t was contended that the passport was a document
wf "I,~ was
1
.ti~su
1
edf to ~ person at the pleasure of the President in exercise
o
is po 1 1ca
unction and was a political document, and the refu'tl
526
SUPllBMB COUllT RBPORTS
(1967] 3 S.C.R
to grant a passport could not be a subject of review in a court of law.
:For the same reason it was contended that the petitioner had no right to
bave the passpom issued to him.
HELD: (per Subba Rao, C.1., Shelat and Vaidialingam, JJ.),
A \Hit of mandamus must issue to the respondent to withdraw and
cancel the decision contained in their letters dated Augir.;t 31, 1966 and
September 20, 1966.
A person living in India has
a fundamental right to travel abroad
under Art. 21 of the Constitution and canriot be denied a passport be-
·ca~ factually, a pass~rt rs a necessary condition for travel eh road and
lhe uovernment, by wtthholdin& the passport, can effectively deprive him
Of his right. (528 H; 530 G; 540 BJ
"Liberty" in our Constitution bears the same comprehensive meaning
as is given to the expression "liberty" by the Sth and 14th Amendmenta
to the U.S. Comtitution .and the expression "personal liberty" in Art. 21
only excludes the ingredients of liberty ensbrindd in Art. 19 of the
Constitution.
In other words, the expression "personal liberty" in Art.
2,1 takes in the right of locomotion and to travel abroad, but the ,nght
to move throughout the territories of India Is .not covered by it inasmuch
.as it is specially provided in Art. 19 .. (540 C-DJ
Kharak fijngh v. Stat• o/ U.P, [1964J I S.C.R. 332, 347, referred to.
Under Art. 21 of the Constitution no person can be d•prived of his
right to travel except accordin2 to procedure established by law and no
law ~
been made by the State regulating or depriving a person of such
ca rigbti (542 BJ
•
c
D
W11ether the right to travel is part of personal liberty or not within
·tho meanina of Art. 21 of the Constitution, the unchanelled arbitrary dis·
E
cretion with the executive in the matter of issuing or refusing passports
to different persons is violative of Art. 14 of the Constitution. [542 B-F; H]
Case law discussed.
Per Hidayatullah and Bachawat JJ.. di!m•ting :
The citizen's ri2bt of motion and locomotion, in so far as it ii recog-
·nisable, has been limited by Art. 19 of the Constitution to the territories
•of India and according to Kharak Singh's case, that is the limit of the
:right. It is not possible to read more of that right in Art. 21. (554 HJ
Whatever the view of countries like the U.S.A.
where travel is a
·means of spending one's wealth, the better view in our country is that a
person is ordinarily entitled to a passport unless, for reasons which """
be established to·the satisfaction of the. Court, the passport can be validly
Tofused to him. Since an ~rieved party can always ask for a mandamus if he is treated unfairly, 1t is not open by straining the Constitution,
to create an absolute and fundamental right to a passport where none
exists in the Constitution. There
is no doubt a fundamental ril!ht to
-equality in the matter of grant of passports (subject to reasonable classifi.·
cation&) but there is no fundamental
right to travel abroad or to the
grant of a passport. The solution of a law of passports will not make
things any better. Even if a law were to be made the position would
·hardly change because utmost discretion will have to be al.lowed to decide
'Upon the worth of an applicant. The only thing that can be said is that
where the passport authority is proved to be wrong, a mandamus will
F
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'9ATWAJ'.IT SINGH v. PASSPORT OFFIC)jR (Subba Rao, C.1.) 527
always right the matter. The affidavits filed by the respondents showed
· lbat one of the petitioners was a member of a gang of passport racketeers
and .bad got many students stranded in foreign
count.ms by arr=
for ·their travel with a company which did not exut, had counter·m
tillllgration laws of a foreign power and had suppressed the fact that he
had once been refused a passport. The other petitioner had obtained an
import licence to import goods of the value of Rs. 3 lakhs on condition
lb;it he would export finished g<J?<ls worth Rs. 4 lakhs but had sold away
most of the imports in the Indian market; he was also alleged to bave
defrauded the import control authorities in di1fe=t ways and investiga·
1ioas .into his activities were proceeding.
It was fOr these reasons that the.
respondenlls took the action complained of and judging of these cases on
the evidence of the affidavits, it was possible to hold that the passports were
properly refused or impounded. In the present cm.e there was therefore no
valid ground for the issuance of a mandamus. (543 M44 F]
The passport is a political document and one which the State 111ay
obooie to give or to withhold. Since a passport vouches for the rmpec·
t&bility of the holder, it stands to reason that the Government need ·not
VClllch for a person it does not consider worth. (555 A·B]
Case law discussed.
0Rm1NAL JUR1so1cT10N : Writ petitions Nos. 230 of 1966
and 30 of 1967.
Petitions under Art. 32 of the Constitution of India for the
enforcement of fundamental rights.
S. J. Sorabjee, A. J. Rana, J. R. Gagrat and B. R. A.garwa/a,
for the petitioner and the intervener (in W.P. No, 230 of 1966).
A. K. Sen, J. C. Ta/war and R. L. Kohli, for the petitioner (in
W.P. No. 30 of 1967).
·
Niren De, Additional So/icltor·General, N. S. Bindra and
R. N. Sachthey for R. H. Dhebar, for the respondents (in both
die petitions).
The Judgment of SUBBA RAo, C.J., SHELAT and VAIDIALIN·
G!'-M, JI. was delivered by SUBBA RAo, C.J. The dissenting Opimon of HIDAYATULLAH and BACHAWAT, JJ. was delivered by
HIDAYATULLAH, J .
. ~abba Rao,. C.J. Satwa.nt Singh Sawhney, the petitioner, is
a citizen of India.
He carries on the business of Importer, Exporter . and Manufacturer of automobile parts and engineering
~ds m the name 8.lld style of Jodi-Europeans Trading Corpo-
!'tion. He also carries on another business in engineering goods
in ~lro n~m~ of "Sawhney Industries". For the purpose of his
business 1t is necessary fo~ the petitioner to travel abroad. From
th_e y~ar 1958 h~ was takmg passports for visiting foreign countne.~ m. connect1on with his business.
On December 8, 1965
he . obt~med . a regular passport from the Government of India
which is vahd upto March 22, 1969.
So too, on October 27
.
.
528
StlPlU!MB OOtJRT RBPOl.TS
(1967] 3 S.C.R.
1965 he obtained another passport which was valid upto March
22, 1967. On August 31, 1966 the Assistant Passport Officer,
Government of India, Ministry of External Affairs, New Delhi,
the 1st respondent herein, wrote to the petitioner calling upon
him to return the said two passports, as the 3rd Respondent, the
Union of India, had decided to withdraw the passport facilities
extended to the petitioner.
So too, the '2nd respondent, the
Regional Passport Officer, Bombay, wrote to the petitioner
a
Jetter dated September 24, 1966, calling upon him to surrender
the said two passports immediately to the Government and intimating him that in default action would be taken against him.
Though the petitioner wrote letters to the respondents requesting
them to reconsider their decision, he did not receive any reply
from them.
The petitioner, alleging that the· said action pf the
respondents infringed his fundamental rights under Arts. 21 an.d
14 of the Constitution, filed the writ petition 'in this Court for
the issuance of a writ of mandamus or other appropriate writ or
writs directing the respondents to withdraw and cancel the said
decision contained in the said two letters, to forbear from taking
any steps or proceedings in the enforcement of the said decision
and to forbear from depriving the petitioner of the said two
passports and his passport facilities.
The respondents contested the petition mainly on the ground
that the petitioner's fundamental right had not been infringed,
that the petitioner contravened the conditions of import licence
obtained by him, that investigations were going on against him
in relation to offences under the Export and Import Control Act
and . that the passport authorities were satisfied that if the petitioner was allowed to continue to have the passports he was likely
to leave India and not return to face a trial before a court of
law and that, therefore his passports were impoun?ed.
F~rther
it was alleged that the passport was a document which was issued
to a person at the pleasure of the President in exercise of his
political function and was a political document, and the refusal
to grant a passport could not ~e a subject of review in a. ~ourt
of law. For the same reason 1t was alleged that the petitioner
had no right to have the passports issued to him.
It would be convenient at the outset to record briefly the
respective contentions advanced by learned counsel on behalf
of the petitioner and the respondents.
The ~rguments of Mr. Sorabji, learned counsel for the petitioner, may be summarized thus : 'J!1e. right to leave lndi~ and
travel outside India and return to India is Part of personal liberty
guaranteed under Art. 21 of the Cm~stitution. (2) Refusal. to
give a passport or withdr~wal of one given .~ounts to dlll!nvation of personal liberty mas.much as, (a) 1t 1s not practically
B
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SATWANT SINGH v. PASSPORT OFFICER (Subba Rao, C.J.) 529
possible for a citizen to leave India or travel abroad or to return to India without a passport, (b) instructions are issued to
shipping and travel companies not to · take passengers on
boaid without passport, ( c) under the Indian Passport ~ct .reentering India without Passport is penalized •. ( 3) The depnvation
B
of personal liberty is not in accordance with the proced~re established by law wit1!in the me~g. of Art. 21, !1~ adrruttedly
there is no law placing any restrictions on the c1t~ens of the
coUlltry to travel abroad.
( 4) The unfettered discretion given
c
to the respondents to issue on not to issue a passport to a person
offends Art. 14 of the Constitution inasmuch as (a) it enables
the State to discriminate between persons similarly situated and
also because i! offends the doctrine of rule of Jaw, (b) the rule
of law requires that an executive action which prejudicially
affects the rights of a citizen must be pursuant to Jaw. And
(S) the said orders offend the principles of fairplay •
. The learned Additional Solicitor General presented his arguments from a different perspective. The gist of his arguments
D may be stated thus, ( 1) Passport is an official political document
to .be presented to the Governments of foreign nations and ntended to be used for the protection of the holder of the passport in foreign countries : it is only a facility provided by the
Government and no person has a right to it.
(2) The right
to travel is not included in "personal liberty" guaranteed by Art.
E
21 of the Constitution for the following reasons : a) the right
to travel necessitating a passport cannot be a right because a
.passport gives only a facility and does not confer a right : b)
no constitutional guarantee of the right to travel is conferred
under our Constitution for such a guarantee would obviously
be ineff~ve out~id~ the territories of th~ country governed
~ ,the said Constit1;1t!on : and ( c) as the nght to travel depends
F
~1rely on the :°1umc1pal law of tl!-e foreign country governing the
nght of entry mto that country, m the very nature of things no
Constitution can confer such a right on the people governed by
that country.
Before we consider the validity of the conflicting arguments
G
and the. case-la:"': on. the subject it will be convenient to notice
the f!!Ctual position 111. ~dia vis-a-vis the importance of a ass·
port m the matter of exit from India for foreign travel.
p
. As ~ :esult of i~temational convention and usa
am
nati<;>ns 1t is n?t possible for a person residing in Indf: to ~n~
foreign countries, with a few exceptions, without th
.
v.1s1t
H
of. a 1;1assport. The Government of India has issued . e poss~ss1on
:pvmgpmglnandiad ~~!,~~companies not t~ take on boar~::=~:e~
of
•.
......,... they possess valid passports
Und s. 3
the Indian Passport Act 1920 the Central ao'
er ·
L7Sup. CJ/67-4
'
•
vemment may
530
SUPR.BMB OOUI. T UPOR. TS
[1967] 3 s.c. .
make rules requiring that persons entering into India shall be
in possession of passports.
In exercise of the power conferred
under s. 3 of the said Act rules were made by the Central
Government. Under r. 3 thereof, ilo persons proceeding from any
place outside India shall enter or attempt to enter India by
water, land or air unless he is in possession of a valid passport
conforming to the conditions prescribed in r. 4 thereof.
Under
s. 4 of the said Act any such person may be arrested by an
officer of police not below the prescribed rank; and under r. 6
of the Rules any person who contravenes the said rules shall be
punishable with imprisonment for a term which may extend to
3 months or with a fine or with both.
Under s. 5 of the Act
the Central Government is authorised by general or
special
order to direct the removal of any such person from India. The
combined effect of the provisions of the Act and the rules made
thereunder is that the executive instructions given by the Central
Government to shipping and air-line companies and the insistence of foreign countries on the possession of a passport before an Indian is permitted to enter those countries make it
abundantly clear that possession of passpori, whatever may be
its meaning or legal effect, is a necessary requisite for leaving
India for travellin& abroad.
The argument that the Act docs
not impose the takmg of a passport as a conditioμ of exit from
India, therefore it does not interfere with the right of a person
to leave India, if we may say so, is rather hypertechnical and
ignores the realities of the situation. Aport from the fact that
possession of passport is a necessary condition of travel in the
international community, the prohibition against entry indirectly
prevents the person from leaving India. The State in fact tells
a person Jiving in India "you can leave India at your pleasure
without a passport, but you would not be allowed by foreign
countries to enter them without it and you cannot also come
back to India without it''. No person in India can possibly
travel on those conditions. Indeed it is impossible for him to do
so.
That apart, even that theoretical possibility of exit is expressly restricted by executive instructions and by refusal of
foreign-exchange.
We have, therefore, no hesitation to hold
that an Indian passport is factually a necessary conditio11 for
travel abroacl and without it no person residing in India can
travel outside India.
If that be the factual position, it may not be necessary to
consider the legal effect of the possession of a passport.
But
as much of the argument turned upon the question of its scope,
.it is as well that we noticed the law on the subject.
At the outset we may extract ·some of the forms of passport
obtaining in different countries. The British form reads thus :
A
B
c
D
E
F
G
H
B
·C
D
E
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SATWANT SINGH v. PASSPORT OFFICER (Subba Rao, C.J.) 531
"The Secretary of State requests and requires in
the name of His Majesty all those whom it may concern to allow the bearer to pass freely without let or
hindrance and to afford him every assistance and protection of which he may stand in need."
The form obtaining in the United States of America reads :
"The Secretary of State requests all whom it may
concern to permit safely and freely to pass
and in
case of need to give ali lawful aid to ... , ,., ..... .
the named person. .. ....................... ..
a citizen of the United States."
In India the form reads thus :
"These are to request and require in the Name of
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
stand in need."
There are also other forms.
It will be seen from the phraseology used in the three forms that they are in the nature of requests from one State to another permitting the holder to .pass
freely through the State and to give him the necessary assistance.
Alverstone, C.J., in R. V. Brailsford(') described a passport thus:
"It is a document ··issued in the name of sovereign
on the responsibility of a Minister of the Crown to a
named individual, intended to be presented to the
Governments of foreign nations and to be used for that
individual's protection as a British subject in foreign
countries, and it depends for its validity upon the fact
that the Foreign Office in an officMl1 document vouches
the respectability of the person named . .,
'.file same de~~tion is given to passport in Wharton's Law
Lexicon, XIV Edition, p. 741. The House of Lords in Jayco v.
Director of Public Prosecutions(') accepted the statement of
Alverstone, C.J., R. v. Brailsford(') and held that by its terms
the passport requested and required in the name of His Majesty
~ those whom i~ might concern to allow the bearer to pass freely
withou~ let or h~drance and to afford him every assistance and
protect10n of which he may stand in need. Lord Jowitt L. c.
proceeded to state :
'
·
"It is, I ~. true that the possession of a passport by a Bntlsh subject does not increase the
(I} [19o5] 2 K. B. 703.
(2) L.R.[1946]A. C, 347, 369.
53~
SUPREME COURT REPORTS
[1967) 3 s.c.a.
sovereign's duty of protection, though ii will make his
path easier.
For him it serves as a voucher and
means of identification. But the possession of a pass·
port by one who is not it British sub1ect gives him
rights and imposes
upon the sovereign obligations
which would otherwise not be given or imposed."
A s<1mmary of the present law on passports is found in Halsbury's
Laws of England, Volume IV, at p. 519 and it reads thus :
"Passports may be granted by the Crown at any
time to enable British subjects to travel with safety in
foreign countries, but such passports would clearly not
be available so as to permit travel in any enemy's
country during war."
A footnote to the above says :
"The possession of a passport is now almost al·
ways required by the authorities to enable a person to
enter a country."
P. Weis in his book "Nationality and Statelessness in International Law'', after narrating briefly the earlier history of the
passport system speaks of the position in the 19th Century and
the beginning of the 20th Century thus :
"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."
The learned author then described the character of the docu
ment thus:
" ........ the modern passport is largely an iden·
tity and travel document issued to the State's
own
nationals."
Then the learned author stated at p. 226 thus :
"In the normal
intiircourse of
State, a
forei!m
national passport is, as a rule, accepted as prima facie
evidence of the holder's nationality."
He also pointed out that British and American passports contained a request to whom it might concern to afford protection
to the holder, but passports of most other countries did not contain such a request.
Professor Harry Street in his book "Freedom, the Individual and the ~aw" in describing the essence of
a passport says much to the same effect thus, at p. 271 :
c
E
F
•
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ID
E
lH
SATWANT SINGH v. PASSPORT OFFICER (Subba Rao, C.l.) 533
"In essence a passport is a document which identi·
fies the holder and provides evidence of his nation·
ality."
I'n "The Grotius Society" Vol. 32-Transactions for the year
1946" under the heading "Passports and Protection in Inter·
national Law" Kenneth Diplock, after tracing the history of the
passport system from the earliest times, observed thus :
"'Passport' in the modem sense is, in essence, a document of identity with which a State may, but not .•.•
necessarily does-require alien travellers within its
territories to be furnished."
The learned author concludes :
"They (passports) are in the same category as
any other evidence of the national status of an individual; and any rights to protection recognised in inter·
national law flow from national status, not from the
evidence by which national status is proved."
It is, therefore, clear that in England a passport takes the form
of a request to foreign countries and enables the British subjects
to travel in safety in those countries. It is a document of
identity. It also afiords prlma facie evidence that the person
holding the passport is a national of England. In the modern
times without it, h is not possible to enter any State.
Now let us trace its history in the American law. In
Domingo Urtetiqui v. John N. D.' Arcy(1) the scope·of a passport
before relevant statutes were made is discribed 'thus :
"It is a document which, from its nature and object,
~ addressed to foreign powers; purporting only to be
a request that the bearer of it may pass ··safely and
freely; and is to be considered rather in the character
of a political document, by which the bearer is recognised in foreign countries as an American citizen; and
which, by usage and the law of nations, is received as
evidence of the fact."
In Ballentine's Law Dictionary, 2nd Edition, at p.
940, the
following meaning is given ,to "passport" :
"A document issued on behalf of a citizen of the
United States by the Secretary of State, addressed to
foreign powers and purporting to be a request that the
bearer of it may pass safely and freely. It is to be con-
(1)(1835) 9 L. Ed. 275, 279.
534
SUPRBMB COURT llEPO&TS
[1967] 3 s.c.a.
sidered as a political document by which the bearer is
recognized in foreign countries as an American citizen,
and which by usage and the law of nations is received
as evidence of the fact.
This definition is taken from the decision in Uretiqul v.
D'Arbel(' ). So too, in American Jurisprudence, Vol. 40, the
samei description is given of a passport and it is added that it is
a political document.
But the Supreme Court of America for the first time had
defined the scope of passport in Kent v. Dulles('). There the
Secretary of State refused to issue passport to each of the two
plaintiffs because of the refusal to file affidavit concerning their
membership in the Communist Party.
To obtain the passport
each of the plaintiffs instituted an action against the Secretary
of State in the United States District Court for the D-Vitrict of
Columbia. In due course the case went up to the Supreme
Court. Mr. Justice Douglas described the nature of the passport thus : "A passport not only is of great value-indeed necessary-abroad; it is also an aid in establishing citizenship for purposes of re-entry into the United States." At page 1212 he went
on to. say that the document involved more "in part, of course,
the issuance of the passport carries some implication· of intention
to extend the bearer diplomatic protection, though it does no
more than request all whom it may concern to permit safely
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and freely to pass, and in case of need to give a11 lawful aid and · E.
protection to this citizen of the United States. But that function
of the passport is subordinate. Its crucial function today is control ov.er exit". While in the earlier judgment the emphasis was
laid on the request to protect the citizen, this judgment says that
the main function of a passport is to control the exit. So a passport, whether in England or in the United States of America
serves diverse purposes; it is a "request for protection", it is a
document of identity, it is prima facie evidence of nationality,
in modern times it not only controls exit from the State to "'.hich
one belongs, but without it, with a few exceptions, it is not possible to enter another State. It has become a condition for free
travel.
The want of a passport in effect prevents a person leaving
India. Whether we look at it as a facility given to a person to
travel abroad or as a request to a foreign country to give the
holder diplomatic protection, it cannot be denied that the Indian
Government, by refusing a permit to a person residing in India.
completely prevents him from travelling abroad. ·If a person
living in India, whether he is a citizen or not, has a right to travel
abroad, the Government by withholding the passport can deprire
(ll (1835) 9 L. Ed. 276,
(2) (1958) 2 L. Ed. 12C4.
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SATWANT SINGH v. PASSPORT OFI'ICER (Subba Rao, C.J.) 53$
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him of his right. Therefore, the. real question in these writ peti·
tions is : Whether a person living in India has a fumlamcntnl
right to travel abroad ?
The relevant article of the Constitution is Artkk 21.
Jt
reads :
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"Art. 21
No person shall be deprived of his lifo
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or personal liberty except according to procedure
established by law."
If the right to travel is a part of the personal liberty of a
person he cannot be deprived of his right except according ll'
the procedure established by law. This court in Gopalan's case(' l
has held that law in that article means enacted law and
it is conceded that the State has not made any law depriving
or regulating the right of a person to travel abroad.
Before we advert to the Indian decisions on the subject it
may be useful to consider the American law on the subject. The
5th and 14th amendments embody a constitutional guarantee
that no person shall be deprived of his liberty without due pro·
cess of law. In American Jurisprndence, 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 res·
trained as the rights of others may make it necessary for the welfare of all other citizens."
Chief Justice Fuller in R. A. Williams v. Edgar Fears &
Anr.(2 ) says: "Undoubtedly the right of locomotion.,, the right to
remove from one place to another according to inclination. is an
attribute of personal liberty, and the right ordinarily, of free
transit from or through the territory of any State is a right secured
by the 14th Amendment and by other provisions of the Constitution."
In Leo11ard B. Bozmdin v. John Foster Dul/es(8) the law is
put thus : "travel abroad is more than a mere privilege accorded
American citizens. It is a right, an nttribute of personal liberty,
which may not be infringed upon or limited in any way unless
I.here be full compliance with the requirements of due process."
The Supreme Court in Kent v. Dulles(4 )
re-affirmed
the
.said doctrine and declared that the right to travel is a part of the
liberty of which the citizen cannot be deprived without due pro·
ccss of law under the Fifth Amendment. It further emphasised
that freedom to travel is an imuortant
asoect of the citizen's
liberty.
No doubt the said statement of Jaw was conceded by
tile Solicitor General, but that fact docs not detract from
the
··----------
(ll [195'] S.C.R 88.
(21 •\ L. Ed. 186.
r3) 136 Fadcml Supplement 218.
(41
[1958] 2 L. Ed. 1204.
536
SUPRBMB COURT REPORTS
(1967) 3 S.C.R.
validity of the view, as the decision was on merits and not solely
on concession.
The Supreme Court again in Herbert Aptheker v. Secretary
of State(') re-affirmed the view expressed in Kent's case(1).
Douglas J., in a concurring judgment pin-pointed the importance
of that right thus : "Freedom of movement, at home and abroad, is important for job and business opportunities-for cultural, political and social activities-for all
the
commingling
which a gregarious man enjoys." Later on the learned Judge emphasised the importance of the said freedom
and described it
graphically thus : "America is of course sovereign; but her
sovereignty is woven in an. international web that makes
her
one of the family of nations. The ties with all the continents are
close commercially as well as
culturally.
Our concerns
are
planetary, beyond sunrises and sunsets. Citizenship implicates
us in those problems and perplexities, as well as in domestic ones.
We cannot exercise and enjoy citizenship in wor Id perspective
without the right to travel abroad; and I see no constitutional
way to curb it unless, as I, said, there is the power to detain."
An interesting article in the Yale Law Journal(') discusses the
subject.
There the content of the word 'Liberty' in the Fifth
Amendment was described as "not a static conception" but a
broad and pervasive view adapatable to the changing circumstances of American life and it was expressed that the right of
locomotion; the right to move from one place to another according to inclination is an attitude of personal liberty.
"Freedom
to leave one's country temporarily for travel abroad was considered to be important to an indiVldual, national and international
well-being".
It is, therefore, clear that in America the right to travel is
considered to be an integral part of personal liberty.
In England the right to go abroad was recognised as an attribute of personal liberty as early as in the year 1915 in Article
42 of the Magna Carta. The said article reads :
"42. It shall be lawful to any person, for the future,
to go out of our kingdom, and to return, safely and
securely, by land or by water, saving his allegiance to
us, unless it be in time of war, for some short space,
for the common good of the kingdom : excepting
prisoners and outlaws according to the laws of the
land, and of the people of the nation at war against
us, and merchants who shall be treated as it is said
above."
(I} 12 L. Ed. 992.
(2) (1958) 2 L, Ed. 1204.
(3) Yale Law Journal, Vol. 61 P. 171.
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SATWANT SINGH v. PASSPORT OFFICER lSubba Rao, C.J.) 537
True that this article was omitted in the final version of the
Magna Carta and Article 39 only dealt with personal liberty.
Article 3 9 read :
"No free man shall be taken or imprisoned or disregarded or outlawed, or exiled, or any way destroyed;
nor will we go upon . him, nor will we send upon him,
unless by the lawful judgment of his peers, or by the
law of the land."
This article, no doubt, in terms does not guarantee a right to
travel abroad.
But it speaks in absolute
terms.
Blackstone,
great authority on 'Common Law', speaking of personal liberty
observed:
"Personal libe1ty consists in the J>Ower of locomotion, of changing direction or movmg one's Eerson
to whatever place one's own inclination may desire."
So too, another authority on Common Law, Odgers, in his book
on Common Law in Ch. II under the heading "Rights common
to all" states this aspect of the personal liberty thus :
"Every citizen enjoys the right to personal liberty;
he is entitled to stay at home or walk abroad at his
pleasure without interference or restraint from others."
In the Grotius Society, Vol. 32, under the heading "Passports and protection in the International Law", this facet of
liberty was traced. In the early development of Common Law
it is said that a subject was prohibited from leaving the Realm
without the leave of the Crown, for to do so would deprive the
King of a subject's military and other feudal services.
But by
the time of Blackstone, the subject has acquired a general common law right to leave the Realm, subject to the prerogative right
of the Crown to restrain him by the writ, exeat Vegno.
This
prerogative writ later lapsed through desuetude. The result is
that in England, subject to any special legislation, British subjects are entitled at Common Law to leave and enter the countty
at will. The right of exit is a common law right.
In India, the Supreme Court had made some observations on
the scope of personal liberty in Art. 21 in some decisions which
throv.; light on. ~e content of pers~nal liberty. In Gopalan's
case ( ) the pet1t1oner who was de tamed under the Preventive
Detention Act, applied under Art. 32 of the Constitution for a
writ of habeas corpus and for his release from detention on
the ground that the said Act contravened the provisions of Arts.
13, 19, 21 and 22 of the Constitution and in consequence it was
(I) [19SO] S.C.R. 88.
538
SUPREME COURT REPORTS
[1967] 3 s.c.R.
11/tm l'ir~s •md that his detention was, therefore, illegal.
This
Court, by majority, held that Art. 19 of the Constitution has no
application to a law which relates directly to the preventive
Jetention even though as a result of an order ot detention the
rights referred to in Art. 19 are restricted or abridged.
This
Court was not directly concerned with the question whether the
expression 'personal liberty' in Art. 21 takes in the right to
travel abroad. Some of the observations made in regard to the
iimits of the right to move throughout the territory of India in
Art. 19 ( 1 )( d) of the Constitution are not of much relevance as
the limits of the movement are circumscribed by the said clause
itself.
But we are concerned in this case with the question
whether the right to travel abroad falls within the scope of perrnnal liberty in. Art. 21. At page 13g, Fazal Ali J., says :
"There can therefore be no doubt that freedom of
movement is in the last analysis the essence of personal
liberty, and just as a man's wealth is generally measured in this country in terms of rupees, annas and pies,
one's personal liberty depends upon the extent of his
freedom of movement. But it is contended on behalf of
the State that freedom of movement to which reference
has been made in article 19(1){d) is not the freedom
of movement to which Blackstone and other author8
have referred, but is a different species of freedom
which is qualifiecl by the words 'throughout the territory of India'. How the use of the expression 'throughout the tcuitory of India' can qualify the meaning of
the rest of the words used in the article is a matter beyond my comprehension.
In my opinion, the words
"throughout the territorr of
India" were
used
to
stretch the ambit of the freedom of movement to the
utmost extent to which it could be guaranteed by our
Constitution."
This passage makes a distinction between freedom of movement, which is a part of personal liberty and the limits of that
liberty under Art. 19(1)(d).
Das J., at page 299, also brings out this distinction when he
says :
"I'n my judgment, Article 19 protects some of the
important attributes of personal liberty as independent
rights and the expression "personal :fiberty'' has been
used in article 21 as a compendious term including
within its meaning a!l the varieties of rights which go
to make up the personal liberties of men."
Later on he points out that Art. 19(1)(d) comprehends only
a specific and limited aspect of the freedom of movement. Again
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SATWANT SINGH v. PASSPORT OFFICER (Subba Rao, C.J.) 539
at page 301 the learned Judge reverts to the same position. He
observes :
"Its purpose is not to provide
protection for the
general right of free movement but to secure a specific
and special right of the Indian citizen to move freely
throughout the territories of India regarded as an independent additional right apart from the general right
to locomotion emanating from the freedom of person.
It is guarantee against unfair
discrimination in
the
matter of free movement of the Indian citizen throughout the Indian Union. In, short, it is a protection
against provincialism.
It ha:s nothing to do with the
freedom of the person as such.
That is
guaranteed
to every person, citizen or otherwise, in the manner
and the extent formulated by article 21."
The observations of Mukherjee J., at page 258 must also be·
restricted
to the scope of the free
movement
under
Art. 19(1) (d).
In Kochunni's case (1) this Court pointed out that personal
liberty in Art. 21' is a more comprehensiye concept and has a
much wider connotation than the right conferred under Art. 19
(I) (d).
In Kharak Shgh v. The State of U.P.(') the question was
whether the State by placing the petitioner under surveillance
infringed his fundamental right under Art. 21 of the Constitution.
This Court, adverting to the expression "personal liberty'',
accepted the meaning put upon the expression 'liberty' ia the
5th and 14th Amendments to the U.S. Constitution by Field, J.,
111.Munn v . . Illinois(•) but P?inted out. that the ingredients of the
said express10n were placed m two articles, viz., Arts. 21 and 19
of the Indian Constitution.
This Court expressed thus :
"It is true tl•Jt in Art. 21 as contrasted with the
4th and 14th Amendments in the U.S. the word
'Liberty' is qualified by the word 'personal' ~nd theref?re its content is narro"'.er.
Bu_t the qu.alifying adject_tve has b,een employed m ?r~er to avoid overlapping
between !nose clements or mc1dents of "liberty" like
freedom of speech or freedom of movement etc.
already dealt within Art.