Re: Maneka Gandhi vs Union Of India

the framers of the Indian Constitution decided to declare that the Fundamental Rights conferred on the citizens would have application even outside India. The Universal Declaration of Human Rights was not binding as law but was only a pious hope for achieving a common standard for all peoples and all nations. Article 13 of the Declaration which is material for our discussion runs as follows : Paragraph 1. Everyone has the right to freedom of movement and residence with in the borders of each state. Paragraph 2. Everyone has the right to leave any country, including his own, and to return to his country. Paragraph 1 restricts the right of movement and residence specifically within the borders of the country. The second, paragraph aims at securing the right to leave any country including his own and to return to his country. The Declaration at that stage did not have any idea of conferring on the citizens of any country right of movement beyond borders of the State or to freedom of speech or right to assemble outside the country of origin. Even in the American Constitution there is no mention of right to freedom of speech or expression as being available outside America. Regarding the right of movement within the borders of the State it is not mentioned as one of the freedoms guaranteed in the American Constitution but everyone in the country takes it for granted that one can roam at will throughout the United States.

The right of a citizen to leave any country and to return to his country is recognised in the United States. While there is no restriction on the citizen to return to his own country the Government of the United States does place certain restrictions for leaving the country, such as obtaining of the passports etc. Even the right to travel outside the United States is not unrestricted. A passport is a request by the Government which grants it to a foreign Government that the bearer of the passport may pass safely and freely. The passport is considered as a licence for leaving a country and an exit permit rather than a letter of introduction. Even in America the State Department when it issues a passport specifies that they are not valid for travel to countries in-which the United States have no diplomatic representation as the position of the Government is that it will not facilitate overseas travel where it is unable to afford any protection to the traveller. The American public particularly the news reporters are claiming that they should be allowed to travel wherever they wish if need be without their Government's assurance to protection. 'The right of the American citizen to travel abroad as narrated above shows that even the right to travel outside the country is not unfettered.

In vain one looks to the American law to find whether the citizens are granted any right of freedom of speech and expression beyond the territory of the United States. The First Amendment provides for freedom of speech and press along with freedom of religion. Liberty of speech and liberty of press are substantially identical. They are freedom to utter words orally and freedom to write, print and circulate words. But this freedom of expression would be meaningless if people were not permitted to gather in groups to discuss mutual

problems and communicate their feelings and opinions to governmental officers. The First Amendment therefore provides that the people have the right to assemble peaceably and petition the government for redress of grievances. The- petition for redress can only be confined to the United States of America. In a recent address on Human Rights Warren Christopher, U.S. Deputy Secretary of State reproduced in Shan, October 1977, stated before the American Bar Association in Chicago that the promotion of human rights has become a fundamental tenet of the foreign policy of the Carter Administration. In explaining the conception of human rights and its practice in America the Deputy Secretary stated that the efforts should be directed to the most fundamental and important human rights all of which are internationally recognised in the Universal Declaration of Human Rights which the United Nations approved in 1948. While emphasing the three categories of human rights (1) the right to be free from the governmental violation of the integrity of the person; (2)- the right to fulfilment of such vital needs as food, shelter, health care and education, and (3) the right to enjoy civil and political liberties, he stated that the freedom of thought, of religion, of assembly, of speech, of the press, freedom of movement within the outside one's own country; freedom to take part in government, were liberties which American enjoy so fully, and too often take for granted, are under assault in many places. It may be noted that while freedom of movement is referred to as both within and outside one's own country the other rights such as freedom thought, of religion, of assembly of speech, of press, are not stated to be available outside one's own country. It is thus seen that except the right to movement outside one's own country other rights are not available extra-territorially even in America.

The fundamental rights, under Art. 19(1) of the Constitution are subject to the restrictions that may be placed under Art. 19(2) to (6) of the Constitution. The Fundamental Rights are not absolute but are subject to reasonable restrictions Provided for in the Constitution itself. The restrictions imposed are to be by operation of any existing law or making of a law by the Legislature imposing reasonable restrictions. The scheme of the Article, thus it while conferring Fundamental Rights on the citizens is to see that such exercise does not affect the rights of other persons or affect the society in general. The law made under Art. 19(2) to (6), impose restrictions on the exercise of right of freedom of speech and expression, to assemble peaceably without arms etc. The restrictions thus imposed, normally would apply only within the territory of India unless the legislation expressly or by necessary implication provides for extra-territorial operation. In the Penal Code, under sections 3 and 4, the Act is made specifically applicable to crimes that are committed outside India by citizen of India. Neither in Art. 19 of the Constitution nor in any of the enactments restricting the rights under Art. 19(2) is there any provision expressly or by necessary implication providing for extra-territorial application. A citizen cannot enforce his Fundamental Rights outside the territory of India even if it is taken that such rights are available outside the country. 747

In the view that a citizen is not entitled to the Fundamental Rights guaranteed under Art. 19 outside the territorial limits of India,- the contention of the learned counsel for the petition that by denying him the passport to travel outside India, his Fundamental Rights like freedom of speech and expression, to assemble peaceably, to practise profession or to carry on occupation, trade or business are infringed, cannot be accepted. The passport of the petitioner was impounded on the ground that her presence in connection with the Inquiry Commission may be necessary and in the interest of public it was necessary to do so. The impugned order does not place any restrictions on the petitioner while she is away from India. Hence the question whether the State could impose such restraint does not arise in this case. As the contention was that by impounding the, passport the petitioner's fundamental right of freedom of speech etc. outside the country was infringed, it became necessary to consider whether the citizen had any such right.

It was strenuously contended that the Legislature by involving powers under Art. 21 cannot deprive the Fundamental Rights guaranteed under Art. 19 at any rate within the territory of India. It win now be considered whether an Act passed under Art. 21 should also satisfy the requirements of Art. 19.

The submission was that Art. 19 applies to laws made under Articles 20, 21 and 22 and the citizen is entitled to challenge the validity of an Act made under Art. 21 on the ground that it affects the rights secured to him under cl. (1) of Art. 19. Article 20(1) provides that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. Article 22 deals with protection against arrest and detention in certain cases, that is, in respect of preventive detention. It has been decided by this Court in Gopalan's(1) case; that in the case of punitive detention for offences under the Penal Code, it cannot be challenged on the ground that it infringes the right specified under Art. 19(a) to (e) and (g) of the Constitution of India. Kania C.J. held : "If there is a legislation directly attempting to control a citizen's freedom of speech or expression, or his right to assemble peaceably and without arms etc.; the question whether that, legislation is saved by the relevant saving clause of Art. 19 will arise. If, however, the, legisation is not directly in respect of any of these subjects, but as a result of the operation of other legislation, for instance, for punitive or preventive detention, his right under any of these sub- clauses is abridged the question of the application of Article 19 does not arise."

(1) [1950] S.C.R. 88.

Fazal Ali J., though he dissented from the majority view regarding the application of Article 19 to punitive detention observed follows

"The Indian Penal Code does not primarily or .... necessarily impose restrictions on the freedom of movement and it is not correct to say that it is a law imposing restrictions on the right to move freely. Its primary object is to punish crime and not to restrict movement...... But if it (the Punishment) consists in imprisonment there is a restriction on movement. This restraint is imposed not under a law imposing restrictions on movement but under a law defining crime and making it punishable. The punishment is correlated directly With the violation of some other person's right and not with the right of movement possessed by the offender himself. In my opinion, therefore, the Indian Penal Code does not come within the ambit of the words 'law' imposing restrictions on the right to move freely."

The learned Judge, Justice Fazal Ali, took a different view regarding preventive detention on the basis that it did not admit of a trial but the order of detention rested on an apprehended and not actual danger. Regarding punitive detention, the decision of a Bench of five Judges in H. Saha v. State of West Bengal,(1) expressed the same view. Chief Justice Ray observed :

"It is not possible to think that a person who is detained will yet be free to move or assemble or form association or unions or have the right to reside in any part of India or have the freedom of speech or expression. Suppose, a person is prosecuted of an offence of cheating and convicted after trial, it is not open to him to say that the imprisonment should be tested with reference to Art. 19 for its reasonableness. A law which attracts Article 19, therefore, must be such as is capable of being tested to be reasonable under clauses (2) to (5) of Article 19."

In the case of punitive detention, it will be open to the accused to raise all defences that are open to him in law, such as that there have been no violation of any law in force. Regarding punitive detention this Court in Saha case has held that as the Constitution has conferred rights under Art. 19 and also adopted the preventive detention to prevent the greater evil by imperilling security, the safety of the State and the welfare of the nation, it is not possible to think that a person who is detained will yet be free to move or assemble or form associations etc.

Applying the same reasoning, it is contended on behalf of the state that when a person is deprived of his life or personal liberty in accordance with the procedure established by law, he cannot invoke to his aid any of the rights guaranteed under Art. 19 of the Constitution of India. Whether this contention could be accepted (1) [1975] 1 S.C.R. 778.

or not will be examined with reference to the provisions of the Constitution and the decisions rendered by this Court. Article 19 to 22 appear under the title "Right to freedom". Article 19 confers freedoms on the citizens whereas Aft. 20 to 22 are not limited to citizens but apply to all persons. Article 19 does not deal with the right to life which is dealt with under Art. 21. While Art. 19 provides for freedoms-which a citizen is entitled to, Articles 20 to 22 restrain the State from doing certain things. Though the right to life and personal liberty is not dealt with under Art. 19, as it is mentioned in Art. 21 though in a negative form, the right to life and personal liberty is secured and the State can deprive it only according to the procedure established by law. While the rights guaranteed under Art. 19(1) are subject to restrictions that may be placed by Articles 19 (2) to (6), the right not to be deprived of life and personal liberty is subject to its deprivation by pro- cedure established by law. The scope of the words "personal liberty" was considered by Mukherjea, J. in Gopalan's case (supra.) The learned Judge observed : "Article 19 gives a list of individual liberties and prescribes in the various clauses the restrictions that may be placed upon them by law so that they may not conflict with the public welfare or general morality. On the other hand, Articles 20, 21 and 22 are primarily concerned with penal enactments or other law under which personal safety or liberty of persons would be taken away in the interest of society and the set down the limits within which the State control should be exercised...... the right to the safety of one's life and limbs' and to enjoyment of personal liberty, in the sense of freedom from physical re-strain and coercion of any sort, are the inherent birth right-. of a man. The essence of these rights consists in restraining others from interfering with them and hence they cannot be described in terms of "freedom" to do particular things. . . ." The words "personal liberty" take their colour from the words "deprivation of rifle'. It means liberty of the person, that is freedom from personal restraint. Article 21 is one of the Articles along with Articles 20 and 22 which deal with restraint on the person. According to Dicey : "The right to personal liberty as understood in England means in substance a person's right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification."

(Dicey's Laws of Constitution 10th Edn. page 207)

In the debates relating to the drafting of the Constitution, in Art. 15 the word that was used was "liberty". The framers of the Constitution thought that the word "liberty" should be qualified by the insertion of the word "personal" before it for otherwise it might be construed very widely so as to include even the freedoms already dealt with under Art. 19, 30 (which corresponds to Art. 19 in the Constitution). The word "personal liberty" in Article 21 is, therefore, confined to freedom from restraint of person and is different from other rights enumerated in Article 19 of the Constitution.

It is contended on behalf of the petitioner that after the decision of the Bank Nationalisation case and Bennet Colomon's case the view taken earlier by the Supreme Court that in construing whether the deprivation of personal liberty is valid or not the enquiry should only be confined to the validity of the procedure prescribed without any reference to the rights conferred under Art. 19(1) is no longer good law. The decisions bearing on this question may now be examined.

In Gopalan's case it was held that Art. 19 dealt with the rights of the citizens when he was free, and did not apply to a person who had ceased to be free and had been either under punitive or preventive legislation. It was further held that Art. 19 only applied where a legislation directly hit the rights enumerated in the Article and not where the loss of rights mentioned in the Article was a result of the operation of legislation relating to punitive or preventive detention. It was also stated by Justice Mukherjea that a law depriving the personal liberty must be a valid law which the legislature is competent to enact within the limits of the powers assigned to it and which does not transgress any of the Fundamental Rights the Constitution lays dawn. The,, learned Judge explained that the reasonableness of a law coming under Art. 21 could not be questioned with reference to anything in Art. 19 though a law made under Art. 21 must conform to the requirements of Articles 14 and 20. It cannot be said that it should conform to the requirements of Article 19. The, view, thus expressed in Gopalan's case, was affirmed by the Supreme Court in Ram Singh v. State of Delhi(1) where it was held :

"Although personal liberty has a content sufficiently comprehensive to include the freedoms enumerated in Art. 19(1), and its deprivation would result in the extinction of those freedoms, the Constitution has treated these civil liberties as distinct from fundamental rights and made separate provisions in Art. 19 and Arts. 21 and 22 as to the limitations and conditions subject to which alone they could be taken away or abridged ... The interpretation of these Articles and their correlation was elaborately dealt with by the full court in Gopalan's case.

Approving the interpretation of the Articles in Gopalan's case it was held that law which authorises deprivation of personal liberty did not fall within the purview of Art. 19 and its validity was not to be judged by the criteria indicated in that Article but depended on its compliance with the requirements of Arts. 21 to 22.

This view was again affirmed in State of Bihar v. Kameshwar Singh,(2) where Das, J. in approving the law laid down in Gopalan's case observed as follows

"As I explained in Gopalan's case and again in Chiranjit LaPs case 1950 SCR 869 our Constitution protects the freedom of the citizen by article 19 (1) (a) to

(1) [1951] S.C.R. 451
(2) [1952] S.C.R 889.

(e) and (g) but empowers the State, even while those freedoms last, to impose reasonable restrictions on them in the interest of the State or of public order or morality or of the general public as mentioned in clauses (2) to (6). Further, the moment even this regulated freedom of the individual becomes incompatible with and threatens the freedom of the community the State is given power by article 21, to deprive the individual of his life and personal liberty in accordance with procedure established by law, subject of course, to the provisions of Art. 22.

In Express Newspapers (P) Ltd. & another v. The Union of India, & Others, (1) the test laid down was that there must be a direct or inevitable consequence of the measures enacted in the impugned Act, it would not be possible to strike down the legislation as having that effect and operation. A possible eventuality of this type would not necessary be the consequence which could be in the contemplation of the legislature while enacting a measure of. this type for the benefit of the workmen concerned. The test, thus applied, is whether the consequences were "direct and inevitable" ?

In Hamdard Dawakhana (Wakf) Lal Kuan v. Union of India,(2) after citing with approval the case of Ram Singh and Express Newspapers case, it was observed :

"It is not the form or Incidental infringement that determine the constitutionality of a statute in a reference to the rights

guaranteed in Art. 19(1) but the reality and the substance........ Viewed in this way, it does not select any of the elements or attributes of freedom of speech falling within Art. 19 (1) (a) of the Constitution."

Reality and substance test was laid down in this case while, approving of the earlier decisions when the court was considering the question whether the ban on advertisement would affect the rights conferred under Art. 19(1) (a). The correctness of the view as laid down in Gopalan's case and affirmed in Ram Singh's case was doubted by Subba Rao, J. in Kochuni v. The State of Madras(3). The learned Judge after referring to the dissenting view of Fazal Ali, J. in Gopalan's case rejecting the plea that a law under Art. 21 shall not infringe Art. 19(1) observed :

"The question being integrated with the dissenting view expressed by Fazal Ali, J. we are bound by this judgment." Reliance was placed by the learned counsel for the petitioner on the decision by this Court in Sakal Papers (P) Ltd. and Ors. v. The Union of India. (4) The learned counsel referred to the passage at page 5 60A

(1) [1959] 1 S.C.R. 135.
(2) [1960] 2 S.C.R. 671 at page 691.
(3) [1960] 3 S.C.R. 887.
(4) [1962] 3 S.C.R. 842.

Part where it was held that "the correct approach ; in such cases should be to enquire as to what in substance is the loss or injury caused to a citizen and not merely what manner and method has been adopted by ,,he State in placing the restriction and, therefore, the right to freedom, of speech cannot be taken away with the object of taking away the business activities of the citizen. Reference was also made to another passage at 867 where it 'was held that the "legitimacy of the result intended to be achieved does not necessarily imply that every means to achieve it is permissible; for even if the end is desirable and permissible, the means employed must not transgress the limits laid down by the constitution if they directly impinge on any of the fundamental rights guaranteed by the Constitution. It is no answer when the constitutionality of the measure is challenged that apart from the fundamental right infringed the provision is otherwise legal. The above observations relied on by the learned counsel were made in a petition where the validity of Delhi Newspapers (Price and Page) Order, 1960 which fixed the maximum number of pages that might be published by a newspaper according to the price charged was questioned. The order was challenged as contravening Art. 19(1) (a) of the Constitution. The court held that the order was void as it violated Art. 19 (I) (a) of the Constitution and was not saved by Article 19 (2). The court held that the right extended not merely to the method which is employed to circulate but also to the volume of circulation, and the impugned Act and order placed restraints on the latter aspect of the right as the very object of the Act was directly against circulation and thus, interfered with the freedom of speech and expression. At page 866, the Court observed :

"The impugned law far from being one, which merely interferes with the right of freedom of speech incidently, does so directly though it seeks to achieve the end by purporting to regulate the business aspect to a newspaper........ Such a course is not permissible and the courts must be ever vigilant in guarding perhaps the most precious of all the freedom guaranteed by our Constitution."

This decision does not help us in resolving the point at issue in this case for the court was concerned with the question whether the right of freedom of speech was directly affected by the impugned order. The impact of legislation under Art. 21 on the rights guaranteed under Art. 19(1) was not in issue in the case.

The two cases which were strongly relied on by the learned counsel for the petitioner as having over-ruled the view of Gopalan's case as affirmed in Ram Singh's case are Bank Nationalisation Case(2) and Bennet Colomon's case.(2) In Kharak Singh's(3) case the majority took the view that the word 'liberty' in Art. 21 is qualified by the word 'personal' and there its content is narrower and the qualifying adjective has been employed in order (1) [1970] 3 S.C.R. 530.

(2) [1973] 2 S.C.R. 757.
(3) [1964] 1 S.C.R. 332.

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 by Art. 21 and particularly in the context of the difference between the permissible restraints or restrictions which might be imposed by sub clauses (2) to (6) of the, Article of the several species of liberty dealt with in a several clauses of Article 19(1). The minority view as expressed by Subba Rao, J. is that if a person's fundamental right under Art. 21 is infringed, the State can rely upon a law to sustain the action; but that cannot be a complete answer unless the State laws satisfy the test laid down in Article 19(2) as far the attributes covered by Article 19(1) are concerned. In other words, the State must satisfy that petitioners fundamental rights are not infringed by showing that the law only imposes reasonable restrictions within the meaning of Art. 19(2) of the Constitution. The submission of the learned counsel for the petitioner is that the view as ,expressed by Subba Rao, J. has been affirmed by the subsequent decisions in the Bank Nationalisation(1) case and Bennet Colomon(2) case.

On 19th July, 1969, the acting President promulgated an ordinance No. 8 of 1969 transferring to and vesting the undertaking of 14 names commercial banks in the corresponding new bank under the ordinance. Subsequently, the Parliament, enacted Banking Companies (Acquisition of Transfer of Undertaking) Act, 1969. The object of the Act was to provide for the acquisition and transfer of the undertakings of certain banking companies in conformity with the national policy and objectives and for matters corrected therewith and incidental thereto. The petitioners before the Supreme Court who held shares in some of the named banks or had accounts current or fixed deposits in the banks challenged the validity of the enactment. In the petitions under Art. 32 of the Constitution the validity of the Ordinance and the Act was questioned on various grounds. I am concerned with ground no. 3 which runs as follows : Article 19(1) (f) and Art. 31(2) are not mutually exclusive and the law providing for acquisition of property for public purpose could be tested for its validity on the ground that it imposes limitation on the right to property which were not reasonable; so tested the provision of the Act transferring undertaking of the named banks and prohibiting practically from carrying banking business violates the guarantee under Art. 19(1) (f) and (g). In dealing with this contention, the court held that Articles 19 (1) (f) and Article 31 (2) are not mutually exclusive. The court observed that the principle underlying the opinion of the majority in Gopalan's case was extended to the protection of the freedom in respect of property and it was held that Art. 19(1) (f) and 31(2) were mutually exclusive in their operation and that substantive provisions of law relating to acquisition of property were not liable to be challenged on the ground that it imposes unreasonable restrictions on the right to hold pretty. After mentioning the two divergent lines of authority, the court held that "the guarantee under Art. 31 (1) and (2) arises out of the limitations imposed on the authority of the State,

(1) [1970] 3 S.C.R. 530.
(2) [1973] 2S.C.R.757.

by law, to take over the individual's property. The true character of the limitation of the two provisions is not different. Clause (1) of Article 19 and clause (1) and (2) of Art. 31 are part of the similar article 19(1) (f) enunicating the object specified and Article 19(1) and 31 deal with the limitation which may be placed by law subject to which the rights may be exercised. Formal compliance with the conditions of Art. 31(2) is not sufficient to negative protection of guarantee to the rights to property. The validity of law which authorises deprivation of property and the law which authorises compulsory acquisition of the property for a public purpose must be adjudged by the application of the same test. Acquisition must be under the authority of a law and the expression law means a law which is within the competence of the legislature and does not impair the guarantee of the rights in Part 111. The learned counsel for the petitioner submitted that on similar reasoning it is necessary that an enactment under Art. 21 must also satisfy the requirements of Article 19 and should be by a law which is within the competence of the legislature and does not impair the guarantee of the rights in part III including those conferred under Art. 19 of the Constitution of India. The important question that arises for consideration is whether the decision in the Bank Nationalisation case has over-ruled the decision of Gopalan's case and is an authority for the proposition and an act of the legislature relating to deprivation of life and personal liberty should also satisfy the other fundamental rights guaranteed under Art. 19(1) of the Constitution.

In order to determine what exactly is the law that has been laid down in Bank Nationalisation Case, it is necessary to closely examine the decision particularly from pages 570 to 578 of 1970(3) SCR. After holding that :

"Impairment of the right of the individual and not the object of the State in taking the impugned action, is the measure of protection. To concentrate merely on power of the State and the object of the State action in exercising that power Is therefore to ignore the true intent of the Constitution."

the Court proceeded to observe that "the conclusion in our judgment is inevitable that the validity of the State action must be adjudged in the light of its operation upon rights of individual and groups of individuals in all their dimensions." Having thus held the Court proceeded to state : "But this Court has held in some cases to be presently noticed that Art. 19 (1) (f) and Art. 31 (2) are mutually exclusive."

It is necessary at this stage to emphasize that the Court was only considering the decisions that took the view that Article 19 (1 ) (f) and 31(2) were mutually exclusive. After referring to passages in A. K. Gopalan's case at pages 571 to 573 noted at page 574 :

"The view expressed in A. K. Gopalan's case was reaffirmed in Ram Singh and others v. State of Delhi(1)".

(1) [1951] S.C.R. 451.

Having thus dealt with the passages in the judgment in Gopalan's case the Court proceeded to consider its effect and observed that the principle underlying the judgment of the majority was extended to the protection of freedom in respect of property and it was held that-Article 19(1) (f) and. Art. 31(2) were mutually exclusive in their operation. While observations in judgment of Gopalan's case as regards the application of Art. 19(1) (f) in relation to Art. 21 were not referred to, the Court proceeded to deal with the correctness of the principle in Gopalan's case being extended to the protection of the freedom in respect of property. In A. K. Gopalan's case (supra) Das, J., stated that if the capacity to exercise the right to property was lost, because of lawful compulsory acquisition of the subject of that right, the owner ceased to have that right for the duration of the incapacity. In Chiranjit Lal Chowduri's case,(1) Das, J. observed at page 919 : ". . . the right to property guaranteed by Art. 19 (1) (f) would...... continue until the owner was under Art. 31 deprived of such property by authority of law."

Das, J. reiterated the same view in The State of West Bengal v. Subodh Gopal, (2) where he observed :

"Art. 19(1) (f) read with Art. 19(5) pre- supposes that the person to whom the

fundamental right is guaranteed retains his property over or with respect to which alone that right may be exercised.

Thus the observation in Gopalan's case extending the principle laid down in the majority judgment to. freedom in respect of property was reiterated by Das, J. in Chiranjit Lal Chowduri's case (supra) and Subodh Gopal's case. The principle was given more concrete shape in State of Bombay v. Bhanjit Munji(3) case wherein it was held that "if there is no property which can be acquired held or disposed of,. no restriction can be placed on the exercise of the right to acquire, hold or dispose it of, and as clause (5) contemplates the placing of reasonable restrictions of the exercise of those rights it must follow that the Article postulates the existence of property over which the rights are to be exercised." This view was accepted in the later cases Dabu Barkya Thakur v. State of Bombay(4) and Smt. Sitabati Debi and Anr. v. State of West Bengal.(5) The Court proceeded further after referring to some cases to note that. "With the decision in K. K. Kochuni's case(6) there arose two divergent lines of authority (1) "authority of law" in Art. 31 (1) is liable to be tested on the ground that it violates other fundamental rights and freedoms including the right to bold property guaranteed by Art. 19(1) (f) and (2) "authority of law" within the meaning of Art. 31(2) is not liable to be tested on the ground that it impairs the guarantee of Art. 19(1) (f) in so far as it imposes substantive restrictions

(1) [1950] S.C.R. 869.
(2) [1954] S.C.R. 587.
(3) [1955] (1) S.C.R. 777.
(4) [1961] 1 S.C.R. 128.
(5) [1967] 2 S.C.R. 940.
(6) [1960] 3 S.C.R. 887.

Re: Maneka Gandhi vs Union Of India

though it may be tested on the ground of impairment of other guarantees." Later in the decision of State of Madhya Pradesh. v. Ranoiro Shinde(1) the Supreme Court opined that the validity of law in cl. (2-) of Art. 31 may be adjudged in the light of Art. 19 (1) (f). But the Court in that case did not consider the previous catena of authorities which related to the inter--relation between Art. 31(2) and Art. 19 (1) (f).

In considering the various decisions referred to regarding the interrelation of Art. 31 (2) and Art. 19 (1) (f) the Court proceeded to express its view that "the theory that the object and form of the State action determine the extent of protection which the aggrieved party may claim is not consistent with the constitutional scheme. Each freedom has different dimensions." Having so stated the Court considered the inter-relation of Art. 31 (2) and Art. 19 (1) (f) and held :

"The true character of the limitations under the two provisions is not different. Clause (5) of Art. 19 and cls. (1) & (2) of Art. 31 are parts of a single pattern; Art. 19(1) (f) enunciates the basic right to property of the citizens and Art. 19(5) and cls. (1) & (2) of Art. 31 deal with limitations which may be placed by law, subject to which the rights may be exercised."

It must be noted that basis for the conclusion is that Art. 19 and cl. ( 1 and (2) of Art. 31 are parts of a single pattern and while Art. 19(1) (f) enunciates the right to acquire, hold and dispose of property; cl. (5) of Art. 19 authorise imposition of restrictions upon the right. There must be reasonable restriction and Art. 31 assures the right to property and grants protection against the exercise of the authority of the State and cl. (5) of Art. 19 and cls. (1) and (2) of Art. 31 prescribe restrictions upon State action, subject to which the right to property may be exercised. The fact that right to property guaranteed under Art. 19(1) (f) is subject to restrictions under Art. 19(5) and 31 and thereby relate to the right to property closely inter-related cannot be overlooked for that formed the basis for the conclusion. After referring to the various Articles of the Constitution the Court observed :

"The enunciation of rights either express or by implication does not follow uniform pattern. But one thread runs through them; they seek to protect the rights of the individual or group of individuals against infringement of those rights within specific limits. Part III of the Constitution weaves a pattern of guarantees delimit the protection of those rights in their allot fields; they do not attempt to enunciate distinct rights."

It proceeded

"We are therefore unable to hold that the challenge to the validity of the provisions for acquisition is liable to be tested only on the ground of non-compliance with Art. 31(2). Article 31(2) requires that property must be acquired for a public purpose and that it must be acquired (1) [1968] 3 S.C.R. 489.

under a law with characterstics set out in that Articles. Formal compliance of the condition of Art. 31(2) is not sufficient to negative the protection of the guarantee of the right to property."

After expressing its conclusion, the Court proceeded to state that it is found necessary to examine the rationale of the two lines of authority and determine whether there is anything in the Constitution which just fies this apparently-inconsistent development of the law. While stating that in its judgment the assumption in A. K. Gopalanan's case that certain articles exclusively deal with specific matters and in determining whether there is infringement of the individual's guaranteed rights, the ob- ject and the form of State action alone need be considered, and effect of laws on fundamental rights of the individuals in general will be ignored cannot be accepted as correct. To this extent the Court specifically over ruled the view that the object and form of the State action alone need be considered. It proceeded "We hold the validity "of law" which authorities deprivation of property and "a low" which authorises compulsory acquisition of property for public purpose must be adjudged by the application of the same tests." It will thus be seen that the entire discussion by the Court in Bank Nationalisation case related to the inter- relation between Art. 31(2) and Art. 19(1) (f). In dealing with the question the Court has no doubt extracted passages from the judgments of learned Judges in Gopalan's case but proceeded only to consider the extension of the, principle underlying the majority judgment to the protection of the freedom in respect of property, particularly, the judgment of Justice Das. After stating that two views arose after Kochuni's case the Court concerned itself only in determining the rationale of the two lines of authority. The view taken in Gopalan's case that the objection and the form of State action has to be considered was over ruled and it was laid down that it is the effect and action: upon the right of the person that attracts the jurisdiction of the Court to grant relief. It is no doubt true that certain passing observations have been made regarding the liberty of persons, such as at page 576 :

"We have carefully considered the weighty pronouncements of the eminent judges who gave shape to the concept that the extent of protection of important guarantees such as the liberty of person, and right to property, depends upon the form and object of State action and not upon its direct operation upon the individual's freedom."

Though the liberty of person is incidentally mentioned there is no further discussion on the subject. While undoubtedly Bank Nationalisation case settles the law that Art. 19(1) (f) and Art. 31(2) are not mutually exclusive there is no justification for holding that the case. is authority for the proposition that the legislation under Art. 21 should also satisfy all the fundamental rights guaranteed under Art.. 19(1) of the Constitution. As emphasised earlier Art. 19 (1) (f) and Art. 31 (2) form a single pattern and deal with right to property. The fundamental right under Art. 19(1) (f) is restricted under Art. 19(5) or Art. 31 (2) and as the article refer to right to property they are so closely interlinked, and cannot be held to be mutually exclusive. But Art. 21 is related to deprivation of life and personal liberty and it has been held

that it is not one of the rights enumerated in Art. 19(1) and refers only to personal rights as are not covered by Article 19.

The decision in Bank Nationalisation case so far as it relates to Articles 19(1) and 21, is in the nature of obiter dicta. Though it is a decision of a Court of 11 Judges and is entitled to the highest regard, as the Court had not applied its mind and decided the specific question and as is in the nature of a general, casual observation-on a point not calling for decision and not obviously argued before it, the case cannot be taken as an authority on the proposition in question. The Court cannot be said to have declared the law on the subject when no occasion arose for it to consider and decide the question.

It may also be noted that as the Court ruled that the impugned Act violated Art. 31 (2) by not laying down the necessary principles, the decision of the inter-relationship between Art. 19(1) (f) and 31(2) was not strictly necessary for the purpose of giving relief to the petitioner. We are not concerned in this case as to whether the decision in Bank Nationalisation case is in the nature of Obiter dicta so far as it held that Arts. 19(1) and 31(2) are interrelated. But it is necessary to state that the decision proceeded on some erroneous assumptions. At page 571 of flank Nationalisation case (supra) it was assumed. "The Majority of the Court (Kania, C.J. and Patanjali Sastri, Mahajan, Mukherjea & Das JJ.) held that Art. 22 being a complete code relating to preventive detention the validity of an order of detention must be determined strictly according to the terms and within the four comers of that articles." This statement is not borne out from the text of the judgment$ in Gopalan's case. At p. 115 of Gopalan's case (supra) Kania C.J. has stated : "The learned Attorney General contended that the- subject of preventive detention does not fall under article 21 at au and is covered wholly by article 22. According to him, article 22 is a complete code. I am unable to accept that contention." Patanjali Sastri J. at page 207 of the judgment said : "The learned Attorney General contended that article 22 clauses (4) to (7) formed a complete code of constitutional safeguards in respect of preventive detention, and, provided only these provisions are conformed to, the validity of any law relating to preventive detention could not be challenged. I am unable to agree with this view". Das J. in referring to the Attorney General's argument at page 324 stated : "that article 21 has nothing to do with preventive detention at all and that preventive detention is wholly covered by article 22(4) to (7) which by themselves constitute a complete code. I am unable to accede to this extreme point of view also." Mukherjea J. at p. 229 of that judgment observed : "1t is also unnecessary to enter into a discussion on the question raised by the learned Attorney- General as to whether article 22 by itself is a self- contained Code, with regard to the law of preventive detention and whether or not the procedure it lays down is exhaustive." Justice Mahajan at page 226 held that "I am satisfied on a review of the whole scheme of the Con- stitution that the intention was to make article 22 self- contained in respect of the laws on the subject of preventive detention." It is thus seen that the assumption in Bank Nationalisation's case that the majority of the Court held that article 22 is a complete code is erroneous and the basis of the decision stands shaken. If the obiter dicta based

on the wrong assumption is to be taken as the correct position in law, it would lead to strange results. If arts. 19(1) (a) to (e) and (g) are attracted in the case of deprivation of personal liberty under art. 21, a punitive detention for an offence committed under the Indian Penal Code such as theft, cheating or assault would be illegal as pointed out in Gopalan's case by Kania C.J. and Patan ' jali Sastri J. for the reasonable restriction in the interest of public order would not cover the offences mentioned above. As held in Gopalan"s case and in Saha's case there can be no distinction between punitive detention under the Penal Code, and preventive detention. As pointed out earlier even though Fazal Ali J. dissented in Gopalan's case, the same view was expressed by His Lordship so far as punitive detention was concerned. He said : "The Indian Penal Code does not primarily or necessarily impose restrictions on the freedom of movement and it is not correct to say that it is a law imposing restrictions on the right to move freely." The conclusion that art. 19 (1) and Art. 21 were mutually exclusive was arrived at on an interpretation of language of art. 19 (1) (d) read with art. 19(5) and not on the basis that art. 19(1) and 21 are exclusive and Art. 21 a complete code. The words "Personal liberty" based on the Draft Committee report on Art. 15 (now Art. 21) was added to the word 'personal' before the word 'liberty' with the observation that the word 'liberty' should be qualified by the word 'personal' before it for otherwise it may be construed very wide so as to include even the freedoms already dealt with in Art. 13 (now Art. 19). In Gopalan's case it was also pointed out by the Judges that art. 19(1) and 21 did not operate on the same field as Art. 19(1) and 31(2) of the Constitution are. The right under Art. 21 is different and does not include the rights that are covered under art. 19. Art. 19(1) confers substantive right as mentioned in clauses. (a) to (g) on citizen alone and does not include the right of personal liberty covered in Art.

21. For the reasons stated above obiter dicta in Bank Nationalisation's case that a legislation under art. 21 should also satisfy the requirements of Art. 19(1) cannot be taken as correct law. The Court has not considered the reasoning in Gopalan's case and over-ruled it. Before proceeding to consider the test of validity of a legislation as laid down in Bennet Colomon's case following the Bank Nationalisation ,case the decisions which followed the Bank Nationalisation case holding on the erroneous premises that the majority in Gopalan's case held that Article 22 was a self-contained Code. may be shortly- referred to. In S. N. Sarkar v. West Bengal(1), the Supreme Court held that in Gopalan's case the majority Court held that Article 22 was a self-contained Code and, therefore, the law or preventive detention did not have to satisfy the requirement of Articles 19, 14 and 20. In the Bank Nationalisation case the aforesaid premise in Gopalan was disapproved and; therefore, it no longer holds the field. Though the Bank Nationalisation case dealt with in relation to Article 19 and 31, the basic approach considering the fundamental rights guaranteed in-the different provisions of the Constitution adopted in this case held the major pre- mises of the majority in the Gopalan case was erroneous. The view taken in this case also suffers from the same infirmities referred to in

(1) [1973] 1 S.C.C. 856.

Bank Nationalisation case. Later, in the case of Khundiran v. West Bengal(1), a Bench of four Judges again erroneously stated that Gopalan's case had taken the view that Article 22 was a complete Code. After referring to Bank Nationalisation case and S. N. Sarkar's and to the case of H. Saha v. State of West Bengal(2) the Court regarded the question as concluded and a final seal put on this controversy and hold'that in view of the decision, it is not open to any one now to contend that the law of preventive detention which falls in Article 22 does not have to meet the requirement of Art. 14 or Art. 19."

In Additional District Magistrate v. S. S. Shukla,(3) the locus standi to move a habeas corpus petition under Article 226 of the Constitution of India while the Presidential order dated 27th June, 1975 was in force fell to be considered. The Court while holding that the remedy by way of writ petition to challenge the legality of an order of detention under the Maintenance of Internal Security Act is not open to a detenu during the emergency, had occasion to consider the observations made by the majority in Bank Nationalisation case regarding the application of Art. 21 of the Constitution of India. Chief Justice Ray, at page 230 held :

"Article 21 is our rule of law regarding life and liberty. No, other rule of law can have separate existence as a distinct right. The negative language of fundamental right incorporated in Part III imposes limitations on the power of the State and declares the corresponding guarantee of the individual to that fundamental right. The limitation and guarantee are complimentary. The limitation of State action embodied in a fundamental right couched in negative form is the measure of the protection of the individual."

After quoting with approval the view held in Kharak Singh's case that ,personal liberty in Art. 21 includes all varieties of rights which go to make personal liberty other than those in Art. 19(1), the learned Judge observed that the Bank Nationalisation case merely brings in the concept of reasonable restriction in the law. Justice Beg, as he then was, considered this aspect a little more elaborately at page 322. After referring to the passage in Bank Nationalisation case the learned Judge observed : "It seems to me that Gopalan's case was merely cited in Cooper's case for illustrating a line of reasoning which was held to be incorrect in determining the validity of 'law' for the acquisition of property solely with reference to the provisions of Art. 31. The question under consideration in that case was whether Articles 19 (1) (f) and 31 (2) are mutually exclusive."

The learned Judge did not understand the Cooper's case as holding that effect of deprivation of rights outside Art. 21 will also have to

(1) [1975] 2 S.C.C. 81.
(2) [1975] 1 S.C.R. 778.
(3) [1976] Supp. S.C.R. 172.

be considered. Justice Chandrachud understood the decision in Bank Nationalisation case as holding that Art. 21 and Art. 19 cannot be treated as mutually exclusive. Justice Bhagwati at page 433 of the reports took the view that in view of the decision of this Court in Cooper's case the minority view in Kharak Singh's case that the law under Art. 21 must also satisfy the test laid down in Art. 19(1) so far the attributes covered by Art. 19(1) are concerned was approved. It is seen that the view taken in the Bank Nationalisation case that a law relating to deprivation of life and personal liberty falling under Art. 21 has to meet the requirements of Art. 19 is due to an error in proceeding on the basis that the majority Court in Gopalan's case held that Article 22 was a self contained code. The decisions which followed Bank Nationalisation case, namely, the case of S. N. Sarkar v. West Bengal and Khundiram v. West Bengal, H. Saha v. West Bengal, suffer from the same infirmity. With respect I agree with the view expressed by Chief Justice Ray and Justice Beg, as be then was, in Shukla's case.

Next to Bank Nationalisation case strong reliance was placed on Bennet Colomon's case by the, petitioner for the proposition that the direct effect of the legislation of the fundamental rights is the test.

In the case the petitioners impugned the new newsprint policy on various grounds. The Court held that though Article 19(1)(a) does not mention the freedom of press, it is settled view of the Court that freedom of speech and expression includes freedom of press and circulation. Holding that the machinery of import control cannot be utilised to control or curb circulation or growth of freedom of newspapers it was held that Newspapers Control Policy is ultra-vires of the Import Control Act and the Import Control Order. The Court after referring to the two tests laid down in Bank Nationalisation case observed : "Direct operation of the Act upon the right forms the real test". The question that was raised in the case was whether the impugned newsprint policy is in substance a newspaper control. The, Court held that the Newsprint Control Policy is found to be Newspaper Control Order in the, guise of framing an import control policy fog newsprint. As the direct operation of the Act was to abridge the freedom of speech and expression, the Court held that the pith and substance doctrine does not arise in the present case. On the facts of the case there, was no need to apply the doctrine of pith and substance It may be noted that in Bennet Colomon's case the question whether Articles 21 and 19 are mutually exclusive or not did not arise for consideration and the case cannot be taken as an authority for the question under consideration in the case. Bennet Colomon's case, Express Newspapers case, Sakal Newspapers case were all concerned with the right to freedom of the press which is held to form part of freedom of speech and expression.

Whether the pith and substance doctrine is relevant in considering the question of infringement of fundamental rights, the Court observed at page 780 of the Bank Nationalisation case "Mr. Palkhivala said that the tests of pith and substance of the subject matter and of direct 762

and of incidental effect of the legislation are relevant to question of legislative competence but they are irrelevant to the question of infringement of fundamental rights. In our view this is a sound and correct approach to interpretation of legislative measures and State action in relation to fundamental rights." It is thus clear, that the test of pith and substance of the subject matter and of direct and incidental effect of legislation is relevant in considering the question of infringement of fundamental right.

The Court at page 781 said : "by direct operation is meant the direct consequence or effect of the Act upon the rights and quoted with approval the test laid down by the Privy Council in Commonwealth of Australia v. Bank of New South Wales.(1)

In deciding whether the Act has got a direct operation of any rights upon the fundamental rights, the two tests are, therefore, relevant and applicable. These tests have been applied in several cases before the decision in Bank Nationalisation case. A reference has been made to the decision of Express Newspapers (P) Ltd. and Anr. V. Union of India,(2) where the test laid down was that there must be a direct and inevitable consequence of the legislation. In Hamdard Dawakhana v. Union of, India(3) this Court followed the test laid down in Express Newspapers case. The Court expressed its view that it is not the form or incidental infringement that determine constitutionality of a statute but reality and substance' In Sakal Papers (P) Ltd. v. Union of India(4) it was held that the "Correct approach in such cases should be to enquire as to what in substance is the loss or injury caused to the citizen and not merely what manner and method have been adopted by the State in placing the restriction. The: Supreme Court in some cases considered; whether the effect of the, operation of the legislation is direct and immediate or not. If it is remote, incidental or indirect, the validity of the enactment will not be effected. The decision in Copper's case has not rejected the above test. The test laid down in cooper's case is the direct operation on the rights of the person.

The test was adopted and explained in Bennet Colomon's case as pointed above.

The view that pith and substance rule is not confined in resolving conflicts between legislative powers is made clear in the decision of the Federal Court in Subramaniam Chettiar's case,(5) where Vardachariar, J. after referring briefly to the decision of Gallagher V. Lynn,(6) held that "They need not be limited to any special system of federal constitution is made clear by the fact hat in Gallagher V. Lynn, Lord Atkin applied pith and substance rule when dealing with a question arising under the Government of Ireland Act which did not embody a federal system at all." (1) [1950] A. C. 235.

(2) [1959] 1 S.C.R. 235.
(3) [1960] 2 S.C.R. 671.
(4) [1962] 3 S.C.R. 842.
(5) [1940] Federal Court Reports 188.
(6) [1937] A. C. 863.

The passport Act provides for issue of passports and travel documents for regulating the departure from India of citizens of India and other persons. If the provisions comply with the requirements of Article 2 1, that is, if they comply with the procedure established by law the validity of the Act cannot be challenged. If incidentally the Act infringes on the rights of a citizen under Art. 19(1) the Act cannot be found to be invalid. The pith and substance rule will have to be applied and unless the rights are directly affected, the challenge will fail. If it is meant as being applicable in every case however remote it may be where the citizen's rights under Art. 19(1) are affected, punitive detention will not be valid. The result of the discussion, therefore, is that the validity of the Passport Act will have to be examined on the basis whether it directly and immediately infringes on any of the fundamental right of the petitioner. If a passport is refused according to procedure established by law, the plea that his other fundamental rights are denied cannot be raised if they are not directly infringed.

The decisions of the Supreme Court wherein the right of person to travel abroad has been dealt with may be noticed. In Satwant Singh v. Assistant Passport Officer, Delhi(1) the Court held that though a passport was not required for leaving, for practical purposes no one can leave or enter into India without a passport. Therefore, a passport is essential for leaving and entering India. The Court held the right to travel is part of personal liberty and a person could not be deprived of it except according to the procedure laid down by law. The view taken by the majority was that the expression "personal liberty" in Article 21 only excludes the ingredients of liberty enshrined in Art. 19 of the Constitution and the exression 'personal liberty' would take in the right to travel abroad. This right to travel abroad is not absolute and is liable to be restricted according to the procedure established by law. The decision has made it clear that "personal liberty" is 'not one of the rights secured under Article 19 and, therefore, liable to be restricted by the legislature according to the procedure established by law. The right of an American citizen to travel is recognised. In Kent v. Dulles,(2) the Court observed 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. "The freedom of movement across the frontiers in either direction, and inside frontiers as well, as a part of our heritage, Travel abroad, like travel within the country...... may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values." In a subsequent decision--Zemel v. Rusk(3) the Court sustained against due process attacks the Government's refusal to issue passports for travel to Ouba because the refusal was grounded on foreign policy considerations affecting all citizens. "The requirements of due process are a function not only of the extent of the governmental restriction imposed, but also of the extent of the necessity for the restriction."

(1) [1967] 2 S.C.R. 525.
(2) 357 U. S. page 116, at page 127 (1958). (3) 381 U.S. (1) at page 14.

(The Constitution of the United States of America-Analysis and interpretation-at page 1171)

In Herbert Aptheker etc. v. Secretary of State,(1) the Court struck down a congressional prohibition of international travel by members of the Communist Party. In a subsequent decision the Court upheld the Government's refusal to issue passports for travel to Cuba, because the refusal was on foreign policy consideration affecting all citizens [Zenel v, Rusk (supra)]. Thus an American's citizen's right to travel abroad may also be restricted under certain conditions. Our Constitution provides for restriction of the rights by 'procedure established by law'. It will be necessary to consider whether the impugned Act, Passport Act satisfies the requirements of procedure established by law. The procedure established by law does not mean procedure, however, fantastic and oppressive or arbitrary which in truth and reality is no procedure at all [(A. K. Gopalan v. State of Madras) (1) observations of Mahajan, J.]. There must be some procedure and at least it must confirm to the procedure established by law must be taken to mean as the ordinary and well established criminal procedure, that is to say, those settled usages and normal modes of proceedings, sanctioned by the Criminal Procedure Code which is a general law of Criminal procedure in the Country. But as it is accepted that procedure established by law refers to statute law and as the legislature is competent to change the procedure the procedure as envisaged in the criminal procedure cannot be insisted upon as the legislature can modify the procedure. The Supreme Court held in Kartar Singh's case(3) that Regulation 236 clause (b) of the U.P. Police Regulation which authorises domiciliary visits when 'there was no law on such a regulation, violated Article 21. I will not proceed to examine the provisions of Passport Act, Act 15 of 1967, to determine whether the Provisions of the Act are in accordance with the procedure established by law.

The Preamble states that the Act is to provide for the issue of passports and travel documents to regulate the departure from India of citizens of India and other persons and for matters incidental or ancillary thereto. It may be remembered that this Act was passed after the Supreme Court had held in Satwant Singh V. Union of India'(1) that the right to tavel abroad is a part of person's personal liberty of which he could not be deprived except in accordance with the procedure established by law in terms of Article 21 of the Constitution. The legislature came forward with this enactment prescribing the procedure for issue of passports for regulating the departure from India of citizens and others.

(1) 378 U.S. 500.
(2) [1950] S.C.R. 88 at page 230.
(3) [1963] 1 S.C.R. 332.
(4) [1967] 3 S.C.R. 525.

Section 5 of the Act provides for applying for passports or travel documents etc. and the procedure for passing orders thereon. On receipt of an application under sub-section (2) the passport authority may issue a passport or a travel document with endorsement in respect of the foreign countries specified in the application or issue of a pass- port or travel document with endorsement in respect of some foreign countries and refuse to make an endorsement in respect of other countries or to refuse to issue a passport or travel document and to refuse to make on the passport or travel document any endorsement. In the event of the passport authority refusing to make an endorsement as applied for or refusal to issue a passport or a travel document or refusal of endorsement, the authority is required to record in writing a brief statement of its reasons and furnish to that person, on demand, a copy thereof unless the authority for reasons specified in sub- section (3) refuses to furnish a copy. Section 6 provides that the refusal to make an endorsement shall be on one or other grounds mentioned in sub-sections (2) to (6). Section 8 provides that every passport shall be renewable for the same period for which the passport was originally issued unless the passport authority for reasons to be recorded in witing otherwise determines.

Section 10 is most important as the impounding of the passport ,of the petitioner was ordered under section 10(3) (c) of the Act. Section 10(1) enables the passport authority to vary or cancel the endorsement on a passport or travel document or may with the previous approval of the Central Government, vary or cancel the conditions subject to which a passport or travel document has been issued, and require- the holder of a passport or a travel document by notice in writing, to deliver up the passport or travel document to it within such time as may be specified in the notice. Sub-section (2) enables the bolder of a passport or a travel document to vary or cancel the conditions of the passport.

Section 10(3) with which we are concerned runs as follows

10(3).-The passport authority may impound or cause to be impounded or revoke a passport or travel document,-

(a) If the passport authority is satisfied that the holder of the passport or travel document is in wrongful possession of;

(b) If the passport or travel document was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the passpot or travel document or any other person on his behalf;

(c) If the passport authority deems it necessary so to do in the interests of the sovereignity and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public;

(d) If the holder of the passpot or travel document has, at any time after the issue of the passort or travel document, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years;

(c) If proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India;

(f) If any of the conditions of the passport or travel document has been contravened;

(g) If the holder of the passport or travel document has failed to comply with a notice under sub-section (1)requiring him to deliver up the same.

(b) If it is brought to the notice of the passport authority that a warrant or summons for the appearance or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made."

Section 10(3) (c) enables the passport authority to impound or revoke a passport if the passport authority deems it 'necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public.

Re: Maneka Gandhi vs Union Of India

Section 10(5) requires the passport authority to record in writing a brief statement of the reasons for making an order under sub-section (1) or(3) and to furnish the holder of the passport on demand a copy of the same unless in any case the passport authority is of the opinion that it will 'not be in the interests of the sovereignty and integrity of India, the, security of India, friendly relations of India with any foreign country or in the interests of the general public to furnish such a copy. Section 11 provides for an appeal by the aggrieved person against any order passed by the passport authority under several clauses mentioned in sub- section (1) of that section. It is also provided that no appeal shall lie against any order passed by the Central Government. Section 11(5) provided that in disposing of an appeal, the appellate authority shall follow such procedure as may be prescribed and that no appeal shall be disposed of unless the appellant has been given a reasonable opportunity of representing his case. Rue 14 of the Passport Rules, 1967 prescribes that the appellate authority may call for the records of the case from the authority who passed the order

appealed against and after giving the appellant a reasonable opportunity of representing his case pass final orders. To sum up under section 10(3) (c) if the passport authority deems it necessary so to do for reasons stated in the subsection, he may impound a passport. He is required to record in writing a brief statement of 'the reasons for making such order and to furnish a copy of the order on demand unless in any case he thinks for reasons mentioned in sub-section (5) that a copy should not be. furnished. Except against an order passed by the Central Government the aggrieved person has a right of appeal. The appellate authority is required to give a reasonable opportunity to the aggrieved person of representing his case. It was submitted on behalf of the petitioner that on a reading of section 10(3) observance of rules of natural justice, namely the right to be heard, is implied and as the Government had failed to give an opportunity to the petitioner to explain her case the order is unsustainable. In the alternative it was submitted that if section 10(3) (c) is construed as denying the petitioner an opportunity of being heard and by the provisions of section 11 a right of appeal against an order passed by the Central Government is denied the provisions will not be procedure as established by law under Article 21 and the relevant sections should be held ultra vires of the powers of the legislature. It was contended that the power conferred on the authority to im- pound a passport in the interests of general public is very vague and in the absence of proper guidance an order by the authority impounding the passport "in the interests of general public" without any explanation is not valid. The last ground may easily be disposed of. The words 'in the interests of general public' no doubt are of a wide connotation but the authority in construing the facts of the case should determine whether in the interests of public the passport will have to be impounded. Whether the reasons given have annexus to the interests of general public would depend upon the facts of each case. The plea that because of the vagueness of the words 'interests of the general public' in the order, the order itself is unsustainable, cannot be accepted.

The submission that in the context the rule of natural justice, that is, the right to be beard has not been expressly or by necessary implication taken away deserves careful consideration. Under Section 10(3) the passport authority is authorised to impound or revoke a passport on any of the grounds specified in clauses (a) to (h) of sub- section (3). Sub-section 3(a) enables the authority to impound a passport if the bolder of the passport is in wrongful possession thereof. Under sub-section 3(b) the authority can impound a passport if it was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the passport. Under clause (d) a passport can be impounded if the holder bad been convicted by a Court of India for any offence involving moral turpitude and sentenced to imprisonment for not less than two years. Under clause (e) the passport can be impounded where

proceedings in respect of an offence alleged to have been committed by the holder of a passport is pending before a criminal court in India. Clause (f) enables the authority to impound the passport if any of the conditions of the passport have been contravened. Under clause (g) the passport authority can act if the holder of the passport had failed to comply with a notice under sub-section (1) requiring him to deliver up the same. Under sub-clause (h) a passport may be impounded if it is brought to the notice of the passport authority that a warrant or summons for appearance of the holder of the passport has been issued by any court or if there is an order prohibiting departure from India of the holder of the passport has been made by a court. It will be noticed that when action is contemplated under any of the clauses (a), (b), (d), (e), (f) and (h), it is presumed that the authority will give notice, for the passport authority cannot be satisfied under sub-clause (a) that the holder is in wrongful possession thereof or under clause (b) that he obtained the passport by suppression of material information. Similarly under clause (d) whether a person has been convicted by a court in India for any offence involving moral turpitude and sentenced to imprisonment for not less than two years, can only be ascertained after hearing the holder of the passport. Under clause (e) the fact whether proceedings in respect of an offence alleged to have been committed by the holder of the passport are pending before a criminal court can only be determined after notice to him. Equally whether a condition of passport has been contravened under sub-clause (f) or whether he has failed to comply with a notice under sub- section (1) can be ascertained only after hearing the holder of the passport. Under clause (h) also a hearing of the holder of the passport is presumed. Reading clause (c) in juxtaposition with other 'Sub-clauses, it will have to determined whether it was the intention of the legislature to deprive a right of hearing to the holder of the passport before it is impounded or revoked. In this connection, it cannot be denied that the legislature by making an express provision may deny a person the right to be heard. Rules of natural justice cannot be equated with the Fundamental Rights. As held by the Supreme Court in Union of India v. J. N. Sinha,(1) that "Rules of natural justice are not embodied rules nor can they be elevated to the position of Fundamental Rights. Their aim is to secure justice or to prevent miscarriage of justice.These rules can operate only in areas not covered by any law validly made. They do not supplant the law but supplement it. If a statutory provision can be read consistently With the principles of natural justice, the courts should do 'so. But if a statutory provision either specifically or by necessary implication excludes the application of any rules of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice." So also the right to be heard cannot be presumed when in the circumstances of the case there is paramount need for secrecy or when a decision will have to be taken in emergency or when promptness of action is called for where delay would defeat the very purpose or where it is expected (1) [1971] 1 S.C.R. 791.

that the person affected would take an obstructive attitude. To a limited extent it may be necessary te rovoke or to impound a passport without notice if there is real apprehension that the holder of the passport may leave the country if he becomes aware of any intention on the part of the passport authority or the Government to revoke or impound the passport. But that by itself would not justify denial of an opportunity to the holder of the passport to state his case before a final order is passed. It cannot be disputed that the legislature has not by express provision excluded the right to be heard. When the passport authority takes action under section 10(5) he is required to record in writing a brief statement of reasons and furnish a copy to the holder of the passport on demand unless he for sufficient reasons considers it not desirable to furnish a copy. An order thus passed is subject to an appeal where an appellate authority is required to give a reasonable opportunity to the holder of the passport to put forward his case. When an appeal has to be disposed of after given for a specified period the revocation or impounding during the without hearing the aggrieved person. Further when a passport is given for a specified period the revocation or impounding during the period when the passport is valid can only be done for some valid reason. There is a difference between an authority revoking or modifying an order already passed in favour of a person and initially refusing to grant a licence. In Purtabpur Co. v. Cane Commissioner, Bihar,(1) the Supreme Court held that "it would not be proper to equate an order revoking or modifying a licence with, a decision not to grant a licence." In Schmidt v. Secretary of State, Home Affairs,(2) Lord Denning observed that "If his permit (alien) is revoked before the time limit expires he ought, I think, to be given an opportunity of making representation; for he would have a legitimate expectation of 'being allowed to stay for the permitted time." Lord Denning extended the application of the rule of audi alteram partem even in the case of a foreign alien who had no right to enter the country. When a permit was granted and was subsequently sought to be revoked it has to be treated differently from that of refusing permission at the first instance. As in the present case the passport which has been granted is sought to be impounded the normal presumption is that the action will not be taken without giving a opportunity to the holder of the passport. Section 10(3) in enumerating the several grounds on which the passport authority may impound a passport has used the words like 'if the authority is satisfied', "the authority deems it necessary to do so." The Privy Council in Durav- appah V. Fernando(3) after referring to an earlier decision in Sugathadasa v. Jayasinghe(4) disagreed with the decision holding "As a general rule that words such as 'where it appears to . . . .' or 'if it appears to the satisfaction of..... or 'if the considers it expedient that. . . .' or 'if the .... is satisfied that. . . standing by themselves without other words or circumstances of qualification, exclude a duty to act judicially." The Privy Council in disagreeing with this approach observed

(1) [1960] 2 S.C.R. 807.
(2) [1969] 2 Ch. 149.
(3) [1967] 2 A. C. 337,
(4) [1958] 59 N.L.R. 457.

that these various formulae are introductory of the matter to be considered and are given little guidance upon the question of audi alteram partem. The statute can make itself clear on this point and if it does cadit quaestio. If it does not then the principle laid down in Cooper v. Wardsworth Board of Works(1) where Byles, J. stated "A long course of decision, beginning with Dr. Bentley's case, and ending with some very recent cases, establish, that although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature." In the circumstances, there is no material for coming to the conclusion that the right to be heard has been taken away expressly or by necessary implication by the statute. I may at this stage refer to the stand taken by the learned Attorney-General on this question. According to him "on a true construction, the rule audi alteram partenm is not excluded in ordinary cases and that the correct position is laid down by the Bombay High Court in the case of Minoo Maneckshaw v. Union of India.( 2 ) The view taken by Tulzapurkar, J. is that the rule of audi alteram partem is not excluded in making an order under sec. 10(3) (c) of the Act. But the Attorney General in making the concession submitted that the rule will not apply when special circumstances exist such as need for taking prompt action due to the urgency of the situation or where the grant of opportunity would defeat the very object for which the action of impounding is to be taken. This position is supported by the decision of Privy Council in De Verteuil v. Knaggs,(3) wherein it was stated 'it must, however, be borne in mind that there may be special circumstances which would satisfy a Governor, acting in good faith, to take action even if be did not give an opportunity to the person affected to make any relevant statement, or to correct or controvert any relevant statement brought forward to his prejudice." This extraordinary step can be taken by the passport authority for impounding or revoking a passport when he apprehends that the passport holder may leave the country and as such prompt action is essential. These observations would justify the authority to impound the passport without notice but before any final order is passed the rule of audi alteram partem would apply and the holder of the passport will have to be beard. I am satisfied that the petitioner's claim that she has a right to be heard before a final order under s. 10(3) (c) is passed is made out. In this view the question as to whether sec. 10(3) (c) is ultra vires or not does not arise.

it was submitted on behalf of the state that an order under subclause 10(3) (c) is on the subjective satisfaction of the passport authority and that as the decision is purely 'administrative in character it cannot be questioned in a court of law except on very limited grounds. Though the courts had taken the view that the principle of natural justice is inapplicable to administrative orders, there 'is a change in the judicial opinion subsequently. The frontier between judicial or

(1) 1723 1 Str. 557 ; Mod. Rep. 148.
(2) 76 B.L.R.(1974) 788.
(3) [1918] A. C 557

quasi judicial determination on the one hand and an executive or administrative determination on the other has become blurred. The rigid view that principles of natural justice applied only to judicial and quasi judicial acts and not to administrative acts no longer holds the field. The views taken by the courts on this subject are not con- sistent. While earlier decisions were in favour of administrative convenience and efficiency at the expense of natural justice, the recent view is in favour of extending the application of natural justice and the duty to act fairly with a caution that the principle 'should not be extended to the extreme so as to affect adversely the administrative efficiency. In this connection it is useful to quote the oft-repeated ,observations of Lord Justice Tucker in Russell v. Duke of Norfolk(1) "The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting , the subject matter that is being dealt with, and so forth .... but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case." In R. v. Gaming Board Ex. p. Benaim,(2) Lord Denning held that the view that the principle of natural justice applied only to judicial proceedings and not to administrative proceedings has been over-ruled in Ridge v. Baldwin.(3) The guidance that was given to the Gaming Board was that they should follow the principles laid down in the case of immigrants namely that they have no tight to come in, but they have a right to be heard. The Court held in construing the words the Board "Shall have regard only" to the matter specified, the Board has a duty to act fairly and it must give the applicant an opportunity of satisfying them of the matter specified in the section. They must let him know what their impressions are so that he can disabuse them. The reference to the cases of immigrants is to the decisions of Chief Justice Parker in Re H. K. (An infant)(1). In cases of immigrants though they had no right to come into the country it was held that they have a right to be heard. These observations apply to the present case and the plea of the petitioner that the authority should act fairly and that they must let her know what their impressions are so that, if possible, she can disabuse them, is sound. In American law also the decisions regarding the scope of judicial review is not uniform. So far as constitutional rights are involved due process of law imports a judicial review of the action of administrative or executive officers. This proposition is undisputed so far as the questions of law are concerned but the extent to which the Court should go and will go in reviewing determinations of fact has been a highly controversial issue. (Constitution of the United States of America, P. 1152, 1973 Ed.)

On a consideration of various authorities it is clear that where the decision of the authority entails civil consequences and the petition is

(1) [1949] 1 All E.R.109,118.
(2) [1970] 2 Q.B. 417.
(3) [1964] A.C. 40
(4) [1967] 2 Q.B.617, at 630.

prejudicially affected he must be given an opportunity to, be heard and present his case. This Court in Barium Chemicals Ltd. v. Company Law Board(1) and Rohtas Industries Ltd. v. S. D. Agrawal,(2) has held that a limited judicial scrutiny of the impugned decision on the point of rational and reasonable nexus was open to a court of law. An order passed by an authority based on subjective satisfaction is liable to judicial scrutiny to a limited extent has been laid down in U.P. Electric Co. v. State of U.P.(3) wherein construing the provisions of s. 3(2)(e) of the Indian Electricity Act 9 of 1910 as amended by the U.P. Act 30 of 1961, where the language used is similar to s. 10(3) (c) of the Passport Act, this Court held that when the Government exercises its power on the ground that it "deems such supply necessary in public interest" if challenged, the Government must make out that exercise of the power was necessary in the public interest. The Court is not intended to sit in appeal over the satisfaction of the Government. If there is prima facie evidence on which a reasonable body of persons may hold that it is in the public interest to supply energy to consumers the, requirements of the statute are fulfilled. "In our judgment, the satisfaction of the Government that the supply is necessary in the public interest is in appropriate cases not excluded from judicial review." The decisions cited are clear authority for the proposition that the order passed under s. 10(3) (c) is subject to a limited judicial scrutiny. An order under s. 10(3) (c) though it is held to be an administrative order passed on the subjective satisfaction of the authority cannot escape judicial scrutiny. The Attorney General fairly conceded that an order under S. 10 (3) (c) is subject to a judicial scrutiny and that it can be looked into by the court to the limited extent of satisfying itself whether the order passed has a rational and reasonable nexus to the interests of the general public.

It was next contended on behalf of the petitioner that the provisions of s. 10(5) of the Act which empowers the Passport authority or the Government to decline furnishing the holder of the passport a brief statement of the reasons for making an order if the authority is of the opinion that it will not be in the interest of sovereignty and integrity of India, security of India, friendly relations of India with any foreign country, or in the interests of the general public is unsustainable in law. It was submitted that along with the right to refuse to furnish a copy of the order made by the Government, as a right of appeal is denied against an order made by the Central Govt. the provisions should be regarded as. total denial or procedure and arbitrary. In view of the construction which is placed on S. 10(3) (c) that the holder of the passport is entitled to be heard before the passport authority deems it necessary to impound a passport, it cannot be said that there is total denial of procedure. The authority under s. 10(5) is bound to record in writing a brief statement of the reasons for making an order and furnish to the holder of the passport or travel docu-

(1) [1966] Sup. S.C.R. 31 1.
(2) [1969] 3 S.C.R. 108
(3) [1969] 3 S.C.R. 865.

ment on demand a copy of the same, unless in any case, the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity of India, the security of India, friendly relation of India with any foreign country or in the interests of general public to furnish such a copy. The grounds on which the authority may refuse to furnish the reasons are the same as provided in s. 10 (3)(c) for impounding a passport but the two powers are exercisable in totally different contexts. Under sec. 10(3), the question that has to be considered is whether the passport has to be impounded in the interests of sovereignty and integrity of India etc. or in the interests of general public. In passing an order under sec. 10(5) it has to be considered whether in the interests of the sovereignty and integrity of India etc. or in the interests of general public, furnishing of a copy of the reasons for the order, should be declined. Though the same grounds are mentioned for impounding a passport as well as for refusing to furnish the reasons for making an order, it would not mean that when an order under s. 10(3) (c) is passed it would automatically apply to s. 10(5) and for the same reason the authority can decline to furnish the reasons for the order. S. 10(5) says that the authority shall furnish to the holder of the passport on demand a copy unless in any case the authority it of opinion that it will not be in the interests of sovereignty and integrity of India etc. The expression "unless in any case" would indicate that it is not in every case that the authority can decline to furnish reasons for the order. There may be some, cases, and I feel that it can be only in very rare cases, that a copy containing the reasons for making such order can be refused. Though rare there may be some cases in which: it would be, expedient for the authority to decline to furnish a copy of the reasons for making such order. But that could only be an exception is indicated from the fact that the aggrieved person has a right of appeal under s. 1 1 which has to be decided after giving a reasonable opportunity of representing his case. A reasonable opportunity cannot Ordinarily be given without disclosing to that person the reasons for the order. In those rare ,cases in which a copy for the reasons of the order is declined by the passport authority and is not furnished during the hearing of the appeal, it would furnish sufficient justification for the courts to have a close look into the reasons for the order and satisfy itself whether it has been properly made. But I am unable to, say that a provision which empowers the authority to decline to furnish reasons for making the order is not within the competence of the legislature. The learned counsel for the petitioner, with some justification, submitted that if no reasons we furnished by the Govt. and no appeal is provided against the order of the Govt. it would virtually amount to denial of procedure established by law as contemplated under Art. 21 of the ,Constitution of India. Though there is considerable force in this submission. I am unable to accept this plea for two reasons. Firstly, the Govt. is bound to give an opportunity to the holder of the passport before finally revoking or impounding it. I expect the case in which the authority declines to furnish reasons for making such an order would be extremely rare. In such cases it should be born in mind that when the Govt. itself passes an order it should be presumed that it would have made the order after careful scrutiny. If an order is passed

11-119 SCI/79

by the passport authority, an appeal is provided. If the Govt. passes an order, though no appeal is provided for, but as the power is vested in the highest authority the section is not unconstitutional--(Chinta Lingam and Ors. v. Government of India & ors.(1) for the order would be subject to judicial scrutiny by the High Court and the Supreme Court. I feel that in the circumstances there is no justification for holding that S. 10(5) of the Act is ultra vires of the powers of the legislature. We have taken note of the fact that in the present case there is no reason in declining to furnish to the petitioner the statement of reasons for impounding the passport but such a lapse by the authority would not make sec. 10(5) ultra vires of the powers of the legislature.

It was next contended that in the present case the passport was impounded under S. 10(3) (c) of the Act on the ground that (a) it is in the public interest that Smt. Maneka Gandhi should be able to give evidence before the Commission of 'Inquiry and, (b) that Smt. Maneka Gandhi should have an opportunity to present her views before the Commission of Inquiry and according to a report received there is likelihood of Smt. Maneka Gandhi leaving India. It was submitted that impounding of the passport on the ground stated above is unjustified. Referring to S. 10(3) (h) where it is provided that when it is brought to the notice of the passport authority that a warrant or summons for appearance or a warrant for the arrest of the holder of the passport has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made, impound the passport. For application of this clause there must be a warrant or summons from the court or an order by the Court prohibiting the departure from India. It was submitted that it is not certain whether the Commission would require the presence of the petitioner at all and if required. when her. presence will be necessary. There had been no summons or any requisition from the Commission of Inquiry requiring 'the petitioner's presence and in such circumstances it was submitted that the order is without any justification. A notification issued by the Ministry of External Affairs under s. 22(a) of the Passports Act on 14-4-76 was brought to our notice. By that notification the Central Govt. considered that it is necessary in the public interest to exempt citizens of India against whom proceedings in respect of an offence alleged to have been committed by them are pending before a criminal court in India and if they produce orders from the Court concerned permitting them to depart from India from the operations of the provisions of clause (f) of sub-section (2) of s. 6 of the Act subject to the condition that the passport will be issued to such citizen only for, a period specified in such order of the Court and if no period is.specified the passport shall be issued for a period of six months and may be renewed for a further period of six months if the order of the

(1) [1971] 2 S.C.R. 871 at p. 876.

court is not cancelled or modified. The citizen is also required to give an undertaking to the passport authority that he shall, if required by the court concerned, appear before if at any time during the continuance in force of the passport so issued. It was submitted that when such facility is provided for a person who is being tried for an offence in a criminal court the same facility at least should be given to a person who may be required to give evidence before a Commission of Inquiry. It is unnecessary for me to go into the question as to whether in the circumstances the impounding of the passport is justified or not for the' learned Attorney General submitted that the im- pounding was for the purpose of preventing the petitioner from leaving the country and that a final decision-as to whether the passport will have to be impounded and if so for what period will be decided later. On behalf of the Government a statement was filed which is as follows "1. The Government is agreeable to considering any representation that may be made by the petitioner in respect of the impounding of her passport and giving her an opportunity in the matter. The opportunity will be given within two weeks of the receipt of the

representation. It is clarified that in th e

present case, the grounds for impounding 'the passport are those mentioned in the affidavit in reply dated 18th August, 1977 of Shri Ghosh except those mentioned in para 2(xi).

2. The representation of the petitioner will be dealt with expeditiously in accordance with law.

3. In the event of the decision of impounding the passing having confirmed, it is clarified that the duration of the impounding will not exceed a period of six months from the date of the decision that may be taken on the petitioner's representation.

4. Pending the consideration of the petitioner's represen- tation and until the decision of the Government of India thereon, the petitioner's passport shall remain in custody of this Honourable Court.

5. This will be without prejudice to the power of the Government of India to take such action as it may be advised in accordance with the provisions of the Passport Act in respect of the petitioner's passport."

In view of the statement that the petitioner may make a representation in respect of impounding of passport and that the representations will be dealt with expeditiously and that even if the impounding of the passport is confirmed it will not exceed a period of six months from the date, of the decision that may be taken on the petitioner's repre- sentation, it is not necessary for me to go into the merits of the case any further. The Attorney General assured us that all the grounds

urged before us by the petitioner and the grounds that may be urged before the authority will be properly considered by the authority and appropriate orders passed. In the result, I hold that the petitioner is not entitled to any of the fundamental rights enumerated-in Article 19 of the Constitution and that the Passport Act complies with the requirements of Art. 21 of the Constitution and is in accordance with the procedure established by law. I construe section 10(3)(c) as providing a right to the holder of the passport to be heard before the passport authority and that any order passed under section 10(3) is subject to a limited judicial scrutiny by the, High Court and the Supreme Court.

In view of the statement made by the learned Attorney General to which reference has already been made in judgment, I do not think it necessary to formally interfere with the impugned order. I accordingly dispose of the Writ Petition without passing any formal order. There will be no order as to costs.

ORDER
Having regard to the majority view, and, in view of the statement made by the learned Attorney-General to which reference, has already been made in the judgments we do not think it necessary to formally interfere with the impugned order. We, accordingly, dispose of the Writ Petition without passing any formal order. The passport will remain in the custody of the Registrar of this Court until further orders. There will be no order as to costs. P.H.P.