Satwant Singh Sawhney Vs. D. Ramarathnam,
Assistant Passport Officer, Government  INSC 103 (10 April 1967)
10/04/1967 RAO, K. SUBBA (CJ) RAO, K. SUBBA
(CJ) HIDAYATULLAH, M.
CITATION: 1967 AIR 1836 1967 SCR (2) 525
CITATOR INFO :
RF 1971 SC2560 (19) RF 1973 SC1425 (14) RF
1973 SC1461 (313) F 1977 SC1174 (3) D 1977 SC1496 (18) D 1978 SC 489 (9) R 1978
SC 597 (3,10,40,52,54,73,99,189,207,2 R 1982 SC 33 (27)
Constitution of India, Articles 14 and
21-Whether right to travel abroad and to a passport part of personal liberty
within the meaning of Art. 21-In the absence of any law whether exercise of
executive discretion to issue or refuse passport discriminatory.
The petitioner carried on the business of
import, export and the manufacture of automobile parts and in connection with
his business it was necessary for him to travel abroad. For this purpose he was
holding two valid passports when on August 31, 1966 and on September 24, 1966 the
first and the second respondents, being the Assistant Passport Officer at New
Delhi and the Regional Passport Officer at Bombay respectively wrote to the
petitioner calling 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 mandamus directing the respondents to withdraw and cancel
the decision contained in the two letters.
It was contended, inter alia, on behalf of
the petitioner that the right to leave India and travel outside India and
return to India is part of personal liberty guaranteed 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 take passengers on board without a passport; (c)
under the Indian Passport Act, re-entering India without a passport is penalized.
The deprivation of personal liberty in the refusal' or impounding of a passport
is not in accordance with any procedure established 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 abroad. Furthermore, the unfettered
discretion given to the respondents to issue or not to issue a passport to a
person offends Art. 14 of the Constitution.
The respondents contested the petition mainly
on the grounds that no fundamental right of the petitioner had been infringed,
that the petitioner had contravened the conditions of an 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 it was necessary to impound his
passport. Further it was contended 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 526 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 have the passports
issued to him.
HELD : (per Subba Rao, C.J., Shelat and
Vaidialingam, JJ.), A writ of mandamus must issue to the respondent to withdraw
and cancel the decision contained in their letters dated August 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 cannot be denied a
passport because, factually, a passport is a necessary condition for travel
abroad and the Government, by withholding the passport, can effectively deprive
him ,of his right. [528 H; 530 G; 540 B] "Liberty" in our
Constitution bears the same comprehensive meaning as is given to the expression
"liberty" by the 5th and 14th Amendments to the U.S. Constitution and
the expression "personal liberty" in Art. 21 only excludes the
ingredients of liberty enshrined in Art. 19 of the Constitution. In other
words, the expression "personal liberty" in Art. 21 takes in the
right of locomotion and to travel abroad, but the right to move throughout the
territories of India is not covered by it inasmuch .as it is specially provided
in Art. 19. [540 C-D] Kharak Singh v. State of U.P.  1 S.C.R. 332, 347, referred
Under Art. 21 of the Constitution no person
can be deprived of his -right to travel except according to procedure
established by law and no law had been made by the State regulating or
depriving a person of such a right. [542B] Whether the right to travel is part
of personal liberty or not within the meaning of Art. 21 of the Constitution,
the unchanelled arbitrary discretion with the executive in the matter of
issuing or refusing passports ,lo different persons is violative of Art. 14 of
the Constitution. [542 EF; H] Case law discussed.
Per Hidayatullah and Bachawat JJ., dissenting
The citizen's right of motion and locomotion, in so far as it is recognisable,
has been limited by Art. 19 of the Constitution to the territories ,of India
and according to Kharak Singh's cave, that is the limit of the right. It is not
possible to read more of that right in Art. 21. [554 H] 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 can be established to the satisfaction of
the Court, the passport can be validly refused to him. Since an aggrieved party
can always ask for a mandamus if he is treated unfairly, it 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
right to equality in the matter of grant of passports (subject to reasonable classifications)
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 allowed 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 always right the matter. The affidavits filed by
the respondents showed that one of the petitioners was a member of a gang of
passport racketeers and had got many students stranded in foreign countries by
arranging for their travel with a company which did not exist, had
countermanded emigration 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 that he
would export finished goods worth Rs. 4 lakhs but had sold away most of the
imports in the Indian market; he was also alleged to have defrauded the import
control authorities in different ways and investigations into his activities
It was for these reasons that the respondents
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 case there was therefore no valid ground for the
issuance of a mandamus. [543 E-544 F] The passport is a political document and
one which the State may choose to give or to withhold. Since a passport vouches
for the respectability of the holder, it stands to reason that the Government
need not vouch for a person it does not consider worth. [555 A-B] Case law
ORIGINAL JURISDICTION : 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. R Rana, J. R. Gag?-at
and B. R. Agarwala, for the petitioner and theintervener (in W.P. No. 230 of
A. K. Sen, J. C. Talwar and R. L. Kohli, for
the petitioner (in W.P. No. 30 of 1967).
Niren De, Additional Solicitor-General, N. S.
Bindra and R.N. Sachthey for R. H. Dhebar, for the respondents (in both the
The Judgment of SUBBA RAO, C.J., SHELAT and
VAIDIALINGAM, JJ. was delivered by SUBBA RAO, C.J. The dissenting Opinion of
HIDAYATULLAH and BACHAWAT, JJ. was delivered by HIDAYATULLAH, J.
Subba Rao, C.J. Satwant Singh Sawhney, the
petitioner, is a citizen of India. He carries on the business of Importer,
Exporter and Manufacturer of automobile parts and engineering goods in the name
and style of Indi-Europeans Trading Corporation. He also carries on another
business in engineering goods in the name of "Sawhney Industries".
For the purpose of his business, it is
necessary for the petitioner to travel abroad. From the year 1958 lie was
taking passports for visiting foreign countries in connection with his
business. On December 8, 1965 he obtained a regular passport from the
Government of India which is valid upto March 22, 1969. So too, on October 27,
528 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 letter 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 of the respondents infringed his fundamental
rights under Arts. 21 and 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 impounded.
Further it was alleged that the passport was
a document which was issued to a per-,on 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 be a subject of review in a court of law.
For the same reason it 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 arguments of Mr. Sorabji, learned counsel
for the petitioner, may be summarized thus : The right to leave India and
travel outside India and return to India is Part of personal liberty Guaranteed
under Art. 21 of the Constitution. (2) Refusal to give a passport or withdrawal
of one given amounts to deprivation of personal liberty inasmuch as, (a) it is
not practically 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 board without passport, (c)
under the Indian Passport Act reentering India without Passport is penalized.
(3) The deprivation of personal liberty is
not in accordance with the procedure established 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 abroad. (4) The unfettered discretion given 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 it offends the doctrine of rule of
law, (b) the rule of law requires that an executive action which prejudicially
affects the rights of a citizen must be pursuant to law. And (5) 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
may be stated thus, (1) Passport is an official Political document to be
presented to the Governments of foreign nations and n-tended 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.1 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 constitution,-! guarantee of the
right to travel is conferred under our Constitution for such a guarantee would
obviously be ineffective outside the territories of the country governed by the
said Constitution : and (c) as the right to travel depends entirely on the
municipal law of the foreign country governing the right of entry into that
country, in 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 and the case-law on the subject it will be convenient to
notice the factual position India vis-a-vis the importance of a passport in the
matter of exit from India for foreign travel.
As a result of international convention and
usage among nations it is not possible for a person residing in India to, visit
foreign countries, with a few exceptions, without the possession of a passport.
The Government of India has issued instruction to shipping and airline
companies not to take on board passengers leaving India unless they possess
valid passports. Under S. 3 of the Indian Passport Act, 1920, the Central
Government may CI/67-4 530 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, no 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 there under 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 passport,
whatever may be its meaning or legal effect, is a necessary requisite for
leaving India for traveling abroad.
The argument that the Act does not impose the
taking of a passport as a condition 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 hyper technical and ignores the realities of the, situation. Apart 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 living 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 condition for travel abroad 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
531 .lm15 "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 all 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 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(1) described a
"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 official document vouches the respectability of the person named.'
The same definition is given to passport in Wharton's Law Lexicon, XIV Edition,
p. 741. The House of Lords in Jayco v. Director of Public Prosecutions (2)
accepted the statement of ,Alverstone, C.J., R. v. Brailsford(1) and held that
by its terms the passport requested and required in the name of His Majesty all
those whom it might concern to allow the bearer to pass freely without lot or
hindrance and to afford him every assistance and protection of which he may
stand in need. Lord Jowitt, L. C,. proceeded to state :
"it is, I think, true that the
possession of a passport by a British subject does not increase the (1) 2
K. B. 703.
(2) L.R.A. C. 347,369.
532 sovereign's duty of protection, though it
will make his path easier. For him it serves as a voucher and means of
identification. But the possession of a passport by one who is not a British
subject gives him rights and imposes upon the sovereign obligations which would
otherwise not be given or imposed." A summary of the present law on
passports is found in Halsbury' Laws of England, Volume IV, at p. 519 and it
"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 always 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 document
travel document issued to the State's own
nationals." Then the learned author stated at p. 226 thus "In the
normal intercourse of State, a foreign national passport is, as a rule,
accepted asprima 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 Law" in describing the essence of a
passport says much to the same effect thus, at p. 271:
533 "In essence a passport is a document
which identifies the holder and provides evidence of his nationality." In
"The Grotius Society" Vol. 32-Transactions for 'the year 1946"
under the heading "Passports and Protection in International 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 I necessarily
doesrequire 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 international law flow from national status,
not from the evidence by which national status is proved." It is,
therefore, clear that in England and 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 affords prima facie evidence
that the person holding, the passport is a national of England. In the modern times
without it, it 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 described 'thus :
"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 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 many pass safely
and freely. It is to be con(1)(1835) 9 L, Ed. 275,279.
534 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 Uretiqui v. D'Arbel(1). So too, in American Jurisprudence, Vol. 40, the same
description is given of a passport and it is added that it is a political
But the Supreme Court of America for the
first time had defined the scope of passport in Kent v. Dulles(2). 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 District 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 -aid freely to pass, and
in case of need to give all lawful aid and protection to this citizen of the
But that function of the passport is
subordinate. Its crucial function today is control over 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 modem times
it not only controls exit from the State to which 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
deprive (1) (135) 9 L. Ed. 276.
(2) (1958) 2 L. Ed. 1204.
him of his right. Therefore, the real
question in these writ petitions is : Whether a person living in India has a
fundamental right to travel abroad ? The relevant article of the Constitution
is Article 21, reads :
"Art. 21 No person shall be deprived of
his life or personal liberty except according to procedure established by
law." If the right to travel is a part of the personal liberty of person
he cannot be deprived of his right except according... the procedure
established by law. This court in Gopolan case(1) 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 process of law. In American Jurisprudence, 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 restrained 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 &
(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 Leonard
B. Boundin v. John Foster Dulles(3) the law is put thus : "travel abroad
is more than a mere privilege accorded American citizens. It is a right, an
attribute of personal liberty, which may not be infringed upon or limited in
any way unless there be full compliance with the requirements of due
process." The Supreme Court in Kent v. Dulles (4 ) re-affirmed the ,;aid
doctrine and declared that the right to travel is a part of the liberty of
which the citizen cannot be deprived without due process of law under the Fifth
Amendment. It further emphasised that freedom to travel is an important aspect
of the citizen's liberty. No doubt the said statement of law was conceded by
the Solicitor General, but that fact does not detract from the (1) (1950)
S.C.R. 88. (2) 45 L. Ed. 186.
(3) 136 Faderal Supplement 21 S.(4)  2
536 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(1) re-affirmed the view expressed in Kent's case(2).
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 activitiesfor 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 +,hat 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 world
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(3) discusses the subject. There the
content of the word 'Liberty' in the Fifth Amendment was described as "not
a static conception" but I broad and pervasive view adaptable 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
individual, 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 us and merchants who shall be above. " (1) 12 L. Ed. 992.
(3) Yale Law Journal, Vol. 61 P. 171.
(2) (1958) 2 L. Ed. 1204.
537 True that this article was omitted in the
final version of the Magna Carta and Article 39 only dealt with personal
liberty. Article 39 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 willwe 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 liberty consists in the power
of locomotion, of changing direction or moving one's person 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. 11 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 tile 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 country 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 throw light on the content of personal liberty. In Gopalan case(1) the
petitioner who was detained 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 (1)
 S.C.R. 88.
538 ultra vires and that his detention was,
This Court, by majority, held that Art. 19 of
the Constitution has no application to a law which relates directly to the
preventive detention even though as a result of an order of 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 limits 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 personal liberty in Art. 21. At page 138, 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 1 9 ( 1 ) (d) is not the freedom of movement to which
Blackstone and other authors have referred, but is a different _species of
freedom which is qualified by the words 'throughout the territory of India'.
How the use of the expression 'throughout the territory 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 territory 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 :
"In my judgment, Article 19 protects
some of the important attributes of personal liberty as independent rights and
the expression "personal liberty" has been used in article 21 as a
compendious term including within its meaning all 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
Again 539 at page 301 the learned Judge
reverts to the same position.
"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 has 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.
In Kochunni's case(1) this Court pointed out
that personal liberty in Alt. 21, is a more comprehensive concept and has a
much wider connotation than the right conferred under Art. 19(1)(d).
In Kharak Singh v. The State of U.P. (2) the
question was whether +,lie 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' in the 5th and 14th Amendments to the U.S.
Constitution by Field, J., in Munn v.
Illinois(3) but pointed out that the ingredients
of the said expression were placed in two articles, viz., Arts. 21 and 19, of
the Indian Constitution.
This Court expressed thus "It is true
that in Art. 21 as contrasted with the 4th and 14th Amendments in the U.S., the
word 'Liberty' is qualified by the word 'personal' and therefore its content is
narrower. But the qualifying adjective has been employed in order to avoid
overlapping between those element or incidents of "liberty" like
freedom of speech or freedom of movement etc., already dealt within Art. 19(1)
and the "liberty" guaranteed by Art.
(1) 3 S.C.R. 887.
(2) 1 S.C.R. 332, 345, 347 (3) 
94U.S. 1130 He 540 The same idea is elaborated thus :
"We............ consider that
"personal liberty" is used in the Article as a compendious term to
include within itself all the varieties of rights which go to make up the
"personal liberties" of man other than those dealt with in the
several clauses of Art. 19(1). In other words, while Art. 19(1) deals with
particular species on attributes of that freedom, "Personal liberty"
in Art. 21 take,,; in and comprises the residue." This decision is a clear
authority for the position that "liberty" in our Constitution bears
the sam comprehensive meaning as is given to the expression "liberty"
by the 5th and 14th Amendments to the U.S. Constitution and the expression
"personal liberty" in Ai.,. 21 only excludes the ingredients of
"liberty" enshrined in Art. 19 of the Constitution. In other words,
the expression "personal liberty" in Art. 21 takes in the, right of
loco-motion and to travel abroad, but the right to move throughout the
territories of India is not covered by it inasmuch as it is specially provided
in. Art. 19. There are conflicting decisions of High Courts oil this question.
A division Bench of the Madras High Court, consisting of Rajamannar, C.J., and
Venkatarama Ayyar. J. in V. G. Row, v. State of Madras(1) considered this
question in the context of the application filed for the issue of a writ-it of
mandamus directing the state of Madras to endorse passport of the petitioner as
valid for travel to U.S.S.R. and other countries in Europe. The petitioner
there complained that the refusal of an endorsement of the passport to any
country was a violation of the fundamental right granted to him under Art. 19
(1) (d) of the Constitution and Art. 14 thereof. The learned Judges considered
the scope of a passport and its place in the foreign travel and came to the
conclusion that, is the law then stood, the State could not prevent the
petitioner from leaving for U.S.S.R. merely on the -round that he did not hold
a passport endorsed to that country and that there was no provision of law
under which a citizen like the petitioner could be prevented from reentering
India after travel to foreign countries except with a passport. On the basis of
that finding the Court held on. the assumption that Art. 19(1) (d) would apply
to foreign travel, that there was no restriction on that right.
It may also be noticed that no argument was advanced
before the Bench oil the basis of Art. 21 of the Constitution.
"This decision does not help the
A full Bench of the Kerala High Court in
Francis Manjooran v. Government of India, Ministry of External Affairs, New (1)
 S.C.R. 399, Delhi(1) held that the expression "personal
liberty" took in the right to travel. M. S. Menon, C.J., observed
"The right to travel, except to the extent provided in Article 19(1) (d),
is within the ambit of the expression "personal liberty" as used in Art.
Raman Nayar, J., held that the right of free
movement whether within the country or across its frontiers, either in going
out or in coming in, was a personal liberty within the meaning of Art. 21.
Gopalan Nambiyar, J., observed that the right to travel beyond India, or at
least to cross its frontiers was within the purview of Art. 21 and that
personal liberty in Art. 21 was, ,not intended to bear the narrow
interpretation of freedom from physical restraint.
Tarkunde, J., of the Bombay High Court in
Choithram Verhomal Jethawani v. A.G. Kazi(2) held that the compendious
expression "personal liberty" used in Art. 21 included in its ambit
the right to go abroad and a person could not be deprived of that right except
according to procedure established by law as laid down' in Art. 21. On Letters
Patent Appeal a division Bench of the same High Court in A. G. Kazi v. C. V.
Jethwani(3) came to the same conclusion.
Tambe, C.J., after elaborately considering
the relevant case law on the subject, came to the conclusion that the
expression "personal liberty" occurring in Art. 21 included the right
to travel abroad and to return to India.
A division Bench of the Mysore High Court in
Dr. S. S. Sadashiva Rao v. Union of India(4) came to same conclusion. Hegde,
J., as he then was, expressed his conclusion thus "For the reasons
mentioned above, we are of the opinion :-(i) the petitioners have a fundamental
right under Art. 21 to go abroad-.
(ii) they also have a fundamental right to
come back to this country. . . ." But a full Bench of the High Court of
Delhi in Rabindernath Malik v. The Regional Passport Office)-, New, Delhi and
others (5), came to a contrary conclusion. Dua, Acting C.J., -,peaking for the
Court, was unable to agree, on a consideration of the language of the
Constitution and its scheme. He held that ,'personal liberty" guaranteed
21 was not intended to extend to the liberty
of going out of India and coming back. He was mainly influenced by the fact
that Art. 21 applied to non-citizens also and that the Constitution not having
given a (1) I.L.R.  2 Kerala 663, 664.
(3) 68 Bom. L.R. 529.
(2)  67 Bom. L.R. 551.
(4)  2 Mys. L.J. 605, 612.
(5) Civil Writ No. 857 of 966 (ureporied
decided on 23-1266) 542 limited right to move throughout the territories to noncitizens
under Art. 19 (i) (d) could not have given a higher right to them under Art. 2
For the reasons mentioned above we would
accept the view of Kerala, Bombay and Mysore High Courts in preference to that
expressed by the Delhi High Court. It follows that tinder Art. 21 of the
Constitution no person can be deprived of his right to travel except according
to procedure established by law. It is not disputed that no law was made by the
State regulating ,or depriving persons of such a right.
The next question is whether the act of the
respondents in refusing to issue the passport infringes the petitioner's
fundamental right under Art. 14 of the Constitution.
Article 14 says that the State shall not deny
to any person equality before the law or the equal protection of the laws
within the territory of India. This doctrine of equality before the law is a
necessary corollary to the high concept of the rule of law accepted by our
Constitution. One of the aspects of rule of law is that every executive action,
if it is to operate to L the prejudice of any person, must be supported by some
legislative authority : see The State of Madhya Pradesh v. Thakur Bharat
Singh(1). Secondly, such a law would be void, if it discriminates or enables an
authority to discriminate between persons without just classification. What a
legislature could not do, the executive could not obviously do. But in the
present case the executive claims a right to issue a passport at its discretion;
that is to say, it can at its discretion prevent a person from leaving India on
foreign travel. Whether the right to travel is part of personal liberty or not
within the meaning of Art. 21 of the Constitution, such an arbitrary prevention
of a person from travelling abroad will certainly affect him prejudicially. A
person may like to go abroad for many reasons. He may like to see the world, to
study abroad, to undergo medical treatment that is not available in our
country, to collaborate in scientific research, to develop his mental horizon
in different fields and such others. An executive arbitrariness can prevent one
from doing so and permit another to travel merely for pleasure. While in the
case of enacted law one knows where he stands, in the case of unchannelled
arbitrary discretion, discrimination is writ large on the face of it. Such a
discretion. patently violates the doctrine of equality, for the difference in
the treatment of persons rests solely on the arbitrary selection of the executive.
The argument that the said discretionary power of the State is a political or a
diplomatic one does not make it any the less an executive power. We, therefore,
hold that the order refusing to issue the passport to the petitioner offends
Art. 14 of the Constitution.
(1) 12 S.C.R. 454.
543 In the view we have taken, it is not
necessary to express our opinion on the other points raised.
In the result we issue a writ of mandamus
directing the respondents to withdraw and cancel the decision contained in
their letters dated August 31, 1966, and September 20, 1966 and to forbear from
taking any steps or proceedings in the enforcement or implementation of the
aforesaid decision and further to forbear from withdrawing and depriving the
petitioner of his two passports and of his passport facilities. The petitioner
will have his costs.
Hidayatullah, J. On April 10, 1967, the Chief
Justice of India on behalf of himself and our brethren Shelat and Vaidialingam
delivered the majority judgment in these two writ petitions. For reasons, into
which it is not necessary to go here, our judgment could not be delivered with
the judgment of the Chief Justice. We expressed our dissent and indicated that
our reasons would follow. We now state the grounds on which our dissent to the
judgment of the Court is founded.
Some of the facts of these cases have been
set out by the learned Chief Justice in his judgment and they need not be
repeated. What has not been stated is that in the affidavit in reply on behalf
of the Union of India it is clearly stated why the passports had been withdrawn
As the learned Chief Justice has not
mentioned these facts, they need to be mentioned, before our appraisal of the
socalled fundamental right to travel can be appreciated.
In Writ Petition No. 30 of 1967, Mr. R. D.
Chakravarti, UnderSecretary to the Government of India in the Ministry of
External Affairs states on affidavit that Om Prakash Kapur was a member of a
gang of passport racketeers and had got many students stranded in foreign
countries, because, as a travel agent he had arranged for their travel with a
company which did not exist. In another instance he countermanded the
emigration laws of a foreign power. He was once refused a passport, but in a
subsequent application he suppressed this fact and a passport was issued to
him. The proposed journey was to visit his mother stated to be seriously ill in
London. An attempt to impound his passport failed as he had already left India.
In proof of the objectionable activities of the petitioner, the Union of India
filed a photo stat copy of his letter in which the petitioner had written in
his own handwriting how tickets were to be manipulated. It was on this ground
that the passport was refused to him.
In Writ Petition No. 230 of 1966, the
affidavit in reply states that the petitioner Satwant Singh Sawbney obtained in
1961 an import licence under the Export Promotion Scheme for import of brake
liners in ribbons and brass rivets of the face value of Rs. 3 lakhs on
condition that lie would export finished brake liners worth 544 Rs. 4 lakhs to
non-rupee account areas. He however sold away in Indian markets 91% of the
imports. He was also alleged to have defrauded the import control authorities
by showing fraudulent exports with a view to obtaining import licences under
the Export Promotion Scheme. Investigations were going on into his doings in
Kuwait and the passports were withdrawn, because Satwant Singh Sawhney, it was
apprehended, wished to leave India to tamper with evidence.
No doubt in a rejoinder affidavit he denied
these allegations but the matter was not gone into at the hearing before us
because the two petitions were heard and disposed of by the Court on the high
plane of fundamental rights and their breach divorced from any facts whatever.
The facts have, therefore, to be stated because persons seeking the facility of
passports may have very different credentials.
For example the case of an innocent traveller
can never be the same as that of an anarchist who is suspected of going into
another country with the object of assisting at a coup or to commit an offence
or wanting to avoid his prosecution for offences committed in India.
Many questions have been raised but they
resolve themselves into a single question in two parts which is : is there a
fundamental right to ask for a passport and does the Constitution guarantee
such a right ? It may be stated at once that in limiting the controversy, it is
not intended to say that arbitrary action in refusing a passport or evidence of
discrimination will not have any redress. Executive action has to comply with
the equal protection clause of our Constitution, and a complaint of refusal of
a passport on insufficient or improper grounds is capable of being raised,
irrespective of whether there is a fundamental right to travel abroad or not.
Judging of these cases on the evidence of the affidavits it is possible to hold
that the passports were properly refused or impounded: but as the question has
assumed a constitutional hue, we express our opinion on the general question.
What is a passport is the first question. It
is not necessary to go into the history of passports which have become very
common from the days of the First World War.
The character of the passports, however, has not
changed and the classic definition of Alverstone, C.J. in R. v. Brailsford-(1)
has been generally quoted and applied in cases dealing with passports. It says
that a passport .lm15 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 (1) 
545 the Foreign Office in an official
document vouches the respectability of the person named." In essence this
document serves as a means of establishing identity and nationality. See Weis :
Nationality and Statelessness in International Law p. 226, Harry Street:
Freedom, the Individual and the Law p. 271,
The Grotius Society-Vol. 32(1946) Passports and Protection in International Law
by Kenneth Diplock.
In.India the passport reads :
"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 stand in need."
This form of passport follows closely that of the English passport. The American
passport is slightly different.
There the passport contains the following
"The Secretary of State requests all
whom it may concern to permit safely and freely to pass and in case of need to
give all lawful aid. to...... a citizen of the United States." (name) The
American form not only makes a request but also states that the holder is a
citizen of the United States. In certain other countries, such as Switzerland,
the passport only declares the holder's nationality but makes no request.
Whatever the form of the passport, it is
clear that it is a political document and the ownership of it strictly speaking
remains in the Government which grants it although a fee may be charged for it.
In England a passport is considered to be a document of the Crown and can be
In India the Constitution does not make a
mention of foreign travel at all. In the Legislative Lists the subject of
passports is c item No. 19 in the Union List. The entry reads :
19. "Admission into, a emigration an expulsion
from, India; passports and visas." As the executive power of the Union
extends to the topics included in the Union List, executive action is open on
the topics mentioned in the entry. Admission into and emigration and expulsion
from India may be subject of legislative action and equally of executive
Similarly there may be executive action in
respect of passports and visas. of course executive action normally must follow
L7SupC.I./675 546 legislation and not precede it, but the existence of
statutory enactment is not a condition for the exercise of executive action.
Since it is questioned that the action to
refuse a passport or to withhold one granted must be based on law, it is
necessary to find out the true nature of a passport. It appears to us that
passports must be treated as falling within the prerogative domain of foreign
affairs, and the authorities which grant or withhold them must possess
considerable freedom of action. In England, the passport is so regarded.
Halsbury, summarising the law on the subject says "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 an enemy's country duringwar." NOTE : "The
possession of a passport is now almost always required by the authorities to
enable a person to enter a country." (Halsbury's Laws of England, Vol. IV,
The history of passports in India is a
Before the First World War, passports were
not so common.
During the First World War, the necessity for
a passport arose because several countries began to insist on the possession of
a passport before allowing entry. The Indian Passport Rules of 1917 created a
double obligation. There was an obligation to obtain passports to leave India
and an obligation to obtain passports to enter India. In 1920, the Indian
Passport Act was passed. The obligation to -obtain a passport to leave India
was abandoned. This, however made no practical difference because almost all
the countries of the world had begun to insist on the possession of a passport
and no shipping company would take a passenger on board a ship bound for a
foreign land unless the passenger was in possession of a passport endorsed for
the foreign country and a visa (if necessary) granted by that country.
The Indian Passport Act, 1920 has continued
to be the only legislation on the subject. It is an extremely short Act.
The long title shows its purport by stating
that it is an Act by which power is taken to require passports of persons
entering India. After setting out the title and the extent of the Act and
giving the necessary definitions, the Act proceeds to confer on the Central
Government by s. 3 the power to make rules requiring that persons entering
India shall be in possession of passports and for all matters ancillary and
incidental to that purpose. Without prejudice, however, to the generality of
this power, the Act gives illustrations of the topics on which rules may be made,
such as to prohibit the entry into India or any part thereof ,of any person who
has not in his possession a passport issued to 547 him; to prescribe the
authorities by whom passports must have been issued or renewed, and the
conditions with which they must comply, for the purposes of the Act; and to
provide for the exemption either absolutely or on any condition, of any person
or class of persons from any provision of such rules. The Act also gives power
to make rules for punishment of the contravention of the rules or orders issued
under the Act and sets the maximum limit of such punishments. The rules so made
have to be published in the Official Gazette and thereupon have effect as if
enacted in the Passport Act. The last two sections give power of arrest and
removal of persons who enter India without a passport or against whom a
reasonable suspicion exists that they have contravened any rule or order made
under the Passport Act. The Act is enabling. The force resides in the rules.
In furtherance of the power, the Indian
Passport Rules, 1950 have been framed and promulgated. They lay down in detail
the condition for the grant of passports and of visas.
These are to be read as part of the. parent
Act. No rule states specifically that a passport is needed by a person leaving
India. Indeed there is no provision which compels a person to take a passport
to leave India. The necessity for a passport arises from the fact that no
travel agency would agree to take out a person who is not in possession of a
valid passport, because if it did so, the agency would expose itself to the
burden of bringing back such person to the place from where he started. No
foreign country (except Nepal) today accepts an Indian citizen who is not in
possession of a valid passport. The necessity for a passport also arises
indirectly, because a citizen who leaves India needs a passport to re-enter his
This is true of most of the countries of the
world. France did attempt to exempt French citizens from the requirement of a
passport to enter their own country but it was found that such persons were
delayed considerably because they had to establish the fact of their French
nationality independently. This was a very arduous process. In fact foreigners
found it easier to enter France than a national, because every foreigner who
possessed a passport issued by his country with a visa for entering into France
could walk in whereas every national had to establish his nationality.
It is however not to be thought that a
passport is the only means by which a person can be enabled to leave or to
enter India. There exist two modes in which persons can leave, and three in
which they can enter, India. The first two mode-, are (a) passport and (b)
identity certificate. The former are granted to Indian citizens and the latter
to Stateless persons residing in India or to foreigners whose countries are not
represented in India and who cannot obtain passports from their countries or to
548 persons whose nationality is in some doubt. Exit from India whether by an
Indian or a foreigner through the ordinary traffic lines is only on the
strength of one of these two documents. Similarly, exit through customs
barriers is allowed only on the production of one of these two documents. For
entry into India, one of three documents is needed : a passport, issued by a
foreign country and visaed by Indian Diplomatic Mission or Government, serves
for foreigners; the same is the case with persons holding identity
certificates. Then there is in emergency certificate which is issued for a
single journey to a person not in possession of a passport The emergency
certificate is regarded as a passport for purpose of entry of an Indian into
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 respect ability 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 person.
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.
Subject to this there 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 the
document on which one can found an absolute right ? Is the State compelled to grant
a document pledging its honour to all kinds of person and must it vouch for the
respectability of every one 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 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 549 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.
It is however contended that the right to
travel abroad is a fundamental right because it is a part of the personal
liberty of a person guaranteed by Art. 21 of the Constitution, which a person
can only be deprived of according to procedure established by law. In support
of the contention that foreign travel is a part of personal liberty, reliance
is placed on certain observations in A. K.
Gopalan v. The State of Madras(1) and Kharak
Singh v. The State of Uttar Pradesh(2) and some cases of the High Courts
following Gopalan's case(1), and drawing support from the, cases of the Supreme
Court of the United States. Reliance was placed in these Judgments upon the
classic definition of 'personal liberty' by Blackstone. Blackstone divided jus
personal-um' (rights attaching to the person) into two :
"personal security" and
"personal liberty". Under the former he included rights to life,
limb, body, health and reputation and under the latter, the right to freedom of
movement. B1ackstone's words were "personal liberty consists in the power
of locomotion, of changing situation or moving one's person to whatsoever place
one's own inclination may direct, without imprisonment or restraint unless by
due process of law".
(W. Blackstone : Commentaries on the Laws of
England 4th Edn., Vol. 1, p. 134).
The expression 'life' and 'personal liberty'
in Art. 21, it is said, incorporated these two meanings respectively.
There is no doubt that this Court has
accepted the meaning of 'life' as 'personal security' according to Blackstone's
definition. In Kharak Singh's case(1) this Court considered Art. 21 in
connection with the domiciliary visits and such other checks upon a person
under police surveillance. The word 'life' was interpreted according to the
definition of Mr. Justice Field in Munn v. Illinois(3). Mr. Justice Field
observed in that case :
"By the term "life" as here
used something more is meant than mere animal existence. The inhibition against
its deprivation extends to all these limits and faculties by which life is
enjoyed. The provision equally prohibits the mutilation of the body or
amputation of (1)  S.C.R. 88.
(3) 94 U.S. 113.
(2)  1 S.C.R. 332.
550 an arm or leg or the putting out of an
eye or the destruction of any other organ of the body through which the soul
communicates with the outer world...... by the term liberty, as used in the
provision something more is meant than mere freedom from physical restraint or
the bounds of a prison." Mr. Justice Field was merely reaffirming
Blackstone's definition in relation to the word 'life' in the 5th and 14th
amendments of the U.S. Constitution. It may be pointed out that the American
decisions on the subject of passports accept also Blackstone's definition of
"personal liberty" and this has led to the acceptance of travel
abroad as more than a privilege and as a right. These cases are mentioned in
the judgment of the learned Chief Justice.
The question, however, is whether this Court
has accepted the definition of Blackstone to interpret the expression "personal
liberty" in Art. 21 so that foreign travel or the right to leave India can
be said to be included in the expression. The American cases cannot of course
be used to establish a fundamental right to travel or aliter to a fundamental
right to leave India. The claim of such a right must be established strictly on
the terms of our own Fundamental Law. The difference between the American and
the Indian Constitutions arises because of the existence of certain specified
fundamental rights in Art. 19 guaranteed to a citizen of which sub-cl. (d) of
cl. (1) read with cl.
(5) deals with the right of a citizen to move
freely throughout the territory of India. There is no doubt that the right of
motion and locomotion throughout the territory of India is Guaranteed to the
Indian citizen. Does the Constitution speak again of a further right of motion
or locomotion in Art. 21 for the citizen and the non-citizen ? The Indian
Constitution cannot, of course, guarantee the right of motion and locomotion in
foreign land. Thus in so far as an Indian citizen is concerned, if Art. 21 adds
anything to the right of motion and locomotion of a citizen guaranteed under
Art. 19, it can only speak of the right to leave India. The learned Chief
Justice gives this meaning to Art. 21. We respectfully disagree and think that
it was not open to the learned Chief Justice to take this view of Art. 21 so
long as the earlier decisions of this Court stand.
Now it is obvious that Blackstone, when he
defined 'personal liberty' was not writing a commentary on the Indian
Constitution. The generality of his Observations cannot be woven into our
Constitution without paying heed to the context in which the words occur. It
seems strange that the Constitution should have guaranteed the right of motion,
in one place, limited to the territories of India, and in another, without
specifying the right of motion given an added fundamental right to leave India.
This, in our opinion, has been earlier noticed indirectly in the two cases of
this Court already referred to.
551 Gopalan's case(' is one of them. It was
concerned with preventive detention and was not directly concerned with the
question whether Art. 21 comprehends the right to travel abroad-or to leave
India as an attribute of personal liberty. The point now before us did not
However, varied opinions were expressed by
the Constitution Bench. Kania, C.J. did not express any clear view.
According to him there was no conflict
between Arts. 19and
21. He thought of personal liberty in terms
of right to eat or sleep when one likes, to work or not to work. To him
personal liberty meant liberty of the physical body. Fazl Ali, J. accepted that
freedom of movement was the essence of personal liberty; but observed at p. 139
as follows :
"In my opinion, the words 'throughout
the territory 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." (Italics added).
Patanjali Sastri, J. (later C.J.) thought
that personal liberty in Art. 21 was used in a sense which excluded freedoms
dealt with in Art. 19, that is to say, personal liberty in the context of Part
III of the Constitution was something distinct from the freedom to move freely
throughout the territory of India. Das, J. (later C.J.) dealing with Art. 19
observed at p. 301 :
"Its purpose, as I read it, 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 of locomotion emanating from the freedom of the person. It is a
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 has nothing to do with the freedom of the person as
such. That is guaranteed to every person, citizen or otherwise, in the manner
and to the extent formulated by article 21." Mahajan J. (later C.J.)
thought that in providing that life and liberty might be deprived only in
accordance with procedure established by law, the intention was to give
immunity against exercise of despotic power by the Executive. Mukherjea J. (later
C.J.) thought that movement throughout the territory of India could be
curtailed in the interest of the public but movement outside could only be
curtailed by law.
The learned Chief Justice has selected the
views of Fazl Ali and Das JJ. and drawn the conclusion that personal liberty in
Art. 21 is a more comprehensive concept and has a much wider  C.R. 88.
552 connotation than 'the right conferred by
Art. 19(1)(d). The learned Chief Justice refers to Kharak Singh's case(1) and
observes as follows :
"This Court, adverting to the expression
"personal liberty", accepted the meaning put upon the expression
'liberty' in the 5th and 14th Amendments to the U.S. Constitution by Field, J.
in Munn v. Illinois, but pointed out that the ingredients of the said expression
were placed in two articles, viz., Arts. 21 and 19 of the Indian
Constitution." He then extracts two passages from Kharak Singh's case(1)
which are as follows :
"It is true that in Art. 21 as
contrasted with the 4th and 14th Amendments in the U.S., the word 'liberty' is
qualified by the word 'personal' and therefore its content is narrower. But the
qualifying adjective has been employed in order to avoid overlapping between
those elements or incidents of "liberty" like freedom of speech, or
freedom of movement etc., already dealt with in Art.
19(1) and the "liberty" guaranteed
21. . . . " "We........ consider
that "personal liberty" is used in the Article as a compendious term
to include within itself all the varieties of rights which go to make up the
" personal liberties" of man other than those dealt with in the
several clauses of Art. 19(1). In other words, while Art. 19(1) deals with
particular species or attributes of that freedom, "personal liberty"
in Art. 21 takes in and comprises the residue." The learned Chief Justice
then reaches the conclusion that Kharak Singh's ease(1) was a clear authority
for the position that "liberty " in our Constitution bears the same
comprehensive meaning as is given to the expression "liberty" by the
5th and 14th Amendments to the U.S. Constitution and the expression
"personal liberty" in Art. 21 only excludes the ingredients of
'liberty' enshrined in Art. 19 of the Constitution. In other words, the
expression "personal liberty" in Art. 21 takes in the right of
locomotion and to travel abroad, but the right to move throughout the
territories of India is not covered by it inasmuch as it is specially provided
in Art. 19." In our Judgment, these remarks, with due respects, involve a
misreading of Kharak Singh's case. They are rather -the minority (1)  1.
553 view expressed in the same case by the
learned Chief Justice. They are not the views of the majority.
In Kharak Singh's case(1), the concept of
personal liberty was considered in connection with surveillance by the police
under the police Regulations. The expression "life" in Art.
21 was interpreted according to Mr. Justice
Field's definition already quoted earlier Domiciliary visits were considered
violative of Art. 21 in the absence of a valid law. Other modes of surveillance
such is secret picketing etc. were considered valid as they did not directly
and tangibly impede either movement or personal liberty.
apealing, however, with Arts. 19 (1) (d) and
21 together, it was pointed out that the right to move about was excluded from
Art. 1. Article 21 represented other residuary personal liberties, not the
subject of treatment in Art.
19(1). The majority stated its opinion as
"Having regard to the terms of Art.
19(1)(d), we must take it that expression (personal liberty) is used as not to
include the right to move about or rather of locomotion. The right to move
about being excluded its narrowest interpretation would be that it comprehends
nothing more than freedom from physical restraint or freedom. from confinement
within the bounds of a prison; in other words, freedom from arrest and
detention, from false imprisonment or wrongful confinement. We feel unable to
hold that the term was intended to bear only this narrow interpretation but on
the other hand consider that "personal liberty" is used in the
Article as a compendious term to include within itself all the varieties of
rights which go to make up the "personal liberties" of man other than
those dealt with in the several clauses of Art. 19(1) In other words, while
Art. 19(1) deals with particular species or attributes of that freedom,
"personal liberty" in Art. 21 takes in and comprises the
residue." Referring to the observations of Mr. Justice Field, it was
stated that 'life' meant "not merely the right to the continuance of a
person's animal existence, but also a right to the possession of each of his
organs-his arms and legs, etc." An invasion of one's house was therefore
considered an invasion of personal liberty. The majority, however, did not
attempt to add to the right of locomotion, the right to go abroad or to leave
India. In fact the majority implies that the right of locomotion possessed by a
citizen is all contained in Art. 19(1)(d) and is guaranteed only with respect
to the territories of India.
(1) 2 S.C. R. 332.
554 Subba Rao J. (as he then was) read
personal liberty as the antithesis of physical restraint or coercion and found
that Arts. 19 ( 1 ) and 21 overlapped and Art. 19 (1 ) (d) was not carved out
of personal liberty in Art. 21. According to him, personal liberty could be
curtailed by law, but that law must satisfy the test in Art. 19(2) in so far as
the specific rights in Art. 19(1)(3) are concerned. In other words, the State
must satisfy that both the fundamental rights are not infringed by showing that
there is a law and that it does not amount to an unreasonable restriction
within the meaning of Art. 19(2) of the Constitution. As in that case there was
no law, fundamental rights, both under Art. 19(1)(d) and Art. 21 were held to
be infringed. The learned Chief Justice has read into the decision of the Court
a meaning which it does not intend to convey. He excludes from Art. 21 the
right to free motion and locomotion within the territories of India and puts
the right to travel abroad in Art. 21. He wants to see a law and if his earlier
reasoning were to prevail, the law should stand the test of Art. 19(2). But
since el. (2) deals with matters in Art. 19(1) already held excluded, it is
obvious that it will not apply. The law which is made can only be tested on the
ground of articles other than Art. 19 such as Arts. 14, 20 and 22 which alone
bears upon this matter. In other words, the majority decision of the Court in
this case has rejected Ayyangar J.'s view and accepted the view of the minority
in Kharak Singh's case(1). A similar reasoning had previously prevailed with
the Chief Justice in the case of Kavalappara Kottarathil Kochuni and others v.
The State of Madras and others (2 ) , but there Art. 19 was held not excluded
by Art. 31 after the latter ceased to be a selfcontained article by reason of
the fourth amendment and the addition of el. 2-A and the amendment of el. (2).
The same exercise in the reverse direction i.e., extending protection to
property beyond what is stated in Art. 31 by calling in aid something extra
from Art. 19 was attempted. According to the learned Chief Justice there is an
absolute right of property [Art. 19(1)(f)] curtailed to some extent by el. (5)
and Art. 3 1. The same reasoning is adopted here. There is an absolute right of
locomotion in Art. 21 of which one aspect alone is said to be covered by Art.
19(1)(d). This view obviously clashes with the reading of Art. 21 in Kharak
Singh's case, because there the right of motion and locomotion was held to be
excluded from Art. 21. In other words, the present decision advances the
minority, view in Kharak Singh's case above the majority view stated in, that
We have shown above that the citizen's right
of motion and locomotion in so far as it is recognisable. has been limited by
the Constitution to the territories of India and that according to Kharak
Singh's case -that is the limit of the right. It is not possible to read (1)
 1 S.C.R. 332.
(2) 3 S.C.R. 887.
555 more of that right in Art. 21. In any
event, there is no absolute right to demand a passport because that is not a
right to 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
The Universal declaration of human
rights-"Everyone has the right to leave any country including his
own" is applicable to normal persons. It does not apply to criminals
avoiding penalties or political agitators, etc. likely to create international
tensions or persons who may disgrace our country abroad.
To conclude : 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 can be established to the satisfaction
of' the Court, the passport can be validly refused to him. Since an aggrieved
party can always ask for a mandamus if he is treated unfairly, it 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
right to, equality in the matter of grant of passports (subject to reasonable
classifications) but there is no fundamental right to travel abroad or to the
grant of a passport. With all due respect we say that the Court has missed one
for the other. 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
the utmost discretion will have to be allowed 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 always right the matter. In the present
cases we found no valid ground for the issuance of a mandamus. We had,
therefore, earlier ordered the dismissal of the petitions.
ORDER In accordance with the opinion of the
majority a writ of mandamus will issue directing the respondents to withdraw
and cancel the decision contained in their letters dated August 31, 1966, and
556 September 20, 1966 and to forbear from taking any steps or proceedings in
the enforcement or implementation of the aforesaid decision and further to
forbear from withdrawing and depriving the petitioner of his two passports and
of his passport facilities. The petitioner will have his costs.