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P.N. BHAGWATI, J. – The petitioner is the holder of the passport issued to her on June 1,
1976 under the Passports Act, 1967. On July 4, 1977 the petitioner received a letter dated July
2, 1977 from the Regional Passport Officer, Delhi intimating to her that it has been decided
by the Government of India to impound her passport under Section 10(3)(c) of the Act in
public interest and requiring her to surrender the passport within seven days from the date of
receipt of the letter. The petitioner immediately addressed a letter to the Regional Passport
Officer requesting him to furnish a copy of the statement of reasons for making the order as
provided in Section 10(5) to which a reply was sent by the Government of India, Ministry of
External Affairs on July 6, 1977 stating inter alia that the Government has decided “in the
interest of the general public” not to furnish her a copy of the statement of reasons for the
making of the order. The petitioner thereupon filed the present petition challenging the action
of the Government in impounding her passport and declining to give reasons for doing so.
The principal challenge set out in the petition against the legality of the action of the
Government was based mainly on the ground that Section 10(3)(c), insofar as it empowers the
Passport Authority to impound a passport “in the interests of the general public” is violative
of the equality clause contained in Article 14 of the Constitution, since the condition denoted
by the words “in the interests of the general public” limiting the exercise of the power is
vague and undefined and the power conferred by this provision is, therefore, excessive and
suffers from the vice of “over-breadth”. The petition also contained a challenge that an order
under Section 10(3)(c) impounding a passport could not be made by the Passport Authority
without giving an opportunity to the holder of the passport to be heard in defence and since in
the present case, the passport was impounded by the Government without affording an
opportunity of hearing to the petitioner, the order was null and void, and, in the alternative, if
Section 10(3)(c) were read in such a manner as to exclude the right of hearing, the section
would be infected with the vice of arbitrariness and it would be void as offending Article 14.
These were the only grounds taken in the petition as originally filed and on July 20, 1977 the
petition was admitted and rule issued by this Court and an interim order was made directing
that the passport of the petitioner should continue to remain deposited with the Registrar of
this Court pending the hearing and final disposal of the petition.
- The hearing of the petition was fixed on August 30, 1977, but before that, the petitioner
filed an application for urging additional grounds and by this application, two further grounds
were sought to be urged by her. One ground was that Section 10(3)(r) is ultra vires Article 21
since it provides for impounding of passport without any procedure as required by that article,
or, in any event, even if it could be said that there is some procedure prescribed under the
Passports Act, 1967, it is wholly arbitrary and unreasonable and, therefore, not in compliance
with the requirement of that article. The other ground urged on behalf of the petitioner was
that Section 10(3)(c) is violative of Articles 19(l)(a) and l9(l)(g) inasmuch as it authorises
imposition of restrictions on freedom of speech and expression guaranteed under Article
19(l)(a) and freedom to practise any profession or to carry on any occupation, or business
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guaranteed under Article 19(l)(g) and these restrictions are impermissible under Article 19(2)
and Article 19(6) respectively. The application for urging these two additional grounds was
granted by this Court and ultimately at the hearing of the petition these were the two principal
grounds which were pressed on behalf of the petitioner. - We may commence the discussion of this question with a few general observations to
emphasise the increasing importance of natural justice in the field of administrative law.
Natural justice is a great humanising principle intended to invest law with fairness and to
secure justice and over the years it has grown into a widely pervasive rule affecting large
areas of administrative action. Lord Morris of Borth-y-Gest spoke of this rule in eloquent
terms in his address before the Bentham Club:
We can, I think, take pride in what has been done in recent periods and
particularly in the field of administrative law by invoking and by applying these
principles which we broadly classify under the designation of natural justice. Many
testing problems as to their application yet remain to be solved. But I affirm that the
area of administrative action is but one area in which the principles are to be
deployed. Nor are they to be invoked only when procedural failures are shown. Does
natural justice qualify to be described as a “majestic” conception? I believe it does. Is
it just a rhetorical but vague phrase which can be employed, when needed, to give a
gloss of assurance? I believe that it is very much more. If it can be summarised as
being fair-play in action – who could wish that it would ever be out of action? It
denotes that the law is not only to be guided by reason and by logic but that its
purpose will not be fulfilled; it lacks more exalted inspiration.
And then again, in his speech in the House of Lords in Wiseman v. Borneman, the learned
Law Lord said in words of inspired felicity:
(T)hat the conception of natural justice should at all stages guide those who
discharge judicial functions is not merely an acceptable but is an essential part of the
philosophy of the law. We often speak of the rules of natural justice. But there is
nothing rigid or mechanical about them. What they comprehend has been analysed
and described in many authorities. But any analysis must bring into relief rather their
spirit and their inspiration than any precision of definition or precision as to
application. We do not search for prescriptions which will lay down exactly what
must, in various divergent situations, be done. The principles and procedures are to
be applied which, in any particular situation or set of circumstances, are right and just
and fair. Natural justice, it has been said, is only “fair play in action”. Nor do we wait
for directions from Parliament. The common law has abundant riches: there may we
find what Byles, J., called “the justice of the common law”.
Thus, the soul of natural justice is ‘fair-play in action’ and that is why it has received the
widest recognition throughout the democratic world. In the United States, the right to an
administrative hearing is regarded as essential requirement of fundamental fairness. And in
England too it has been held that ‘fair-play in action’ demands that before any prejudicial or
adverse action is taken against a person, he must be given an opportunity to be heard. The rule
was stated by Lord Denning, M. R. in these terms in Schmidt v. Secretary of State or Home
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Affairs” where a public officer has power to deprive a person of his liberty or his property, the
general principle is that it has not to be done without his being given an opportunity of being
heard and of making representations on his own behalf”. The same rule also prevails in other
Commonwealth countries like Canada, Australia and New Zealand. It has even gained access
to the United Nations. It is the quintessence of the process of justice inspired and guided by
‘fair-play in action’. If we look at the speeches of the various law Lords in Wisemen case, it
will be seen that each one of them asked the question “whether in the particular circumstances
of the case, the Tribunal acted unfairly so that it could be said that their procedure did not
match with what justice demanded”, or, was the procedure adopted by the Tribunal ‘in all the
circumstances unfair’? The test adopted by every Law Lord was whether the procedure
followed was fair in all the circumstances and ‘fair-play in action’ required that an
opportunity should be given to the tax-payer “to see and reply to the counter-statement of the
Commissioners” before reaching the conclusion that “there is a prima facie case against him”.
The inquiry must, therefore, always be: does fairness in action demand that an opportunity to
be heard should be given to the person affected? - Now, if this be the test of applicability of the doctrine of natural justice, there can be
no distinction between a quasi-judicial function and an administrative function for this
purpose. The aim of both administrative inquiry as well as quasi-judicial inquiry is to arrive at
a just decision and if a rule of natural justice is calculated to secure justice, or to put it
negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable
to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both. On
what principle can distinction be made between one and the other? Can it be said that the
requirement of ‘fair-play in action’ is any the less in an administrative inquiry than in a quasijudicial one? Sometimes an unjust decision in an administrative inquiry may have far more
serious consequences than a decision in a quasi-judicial inquiry and hence the rules of natural
justice must apply equally in an administrative inquiry which entails civil consequences.
There was, however, a time in the early stages of the development of the doctrine of natural
justice when the view prevailed that the rules of natural justice have application only to a
quasi-judicial proceeding as distinguished from an administrative proceeding and the
distinguishing feature of a quasi-judicial proceeding is that the authority concerned is required
by the law under which it is functioning to act judicially. This requirement of a duty to act
judicially in order to invest the function with a quasi-judicial character was spelt out from the
following observation of Atkin, L.J. in Rex v. Electricity Commissioners, “wherever anybody
of persons having legal authority to determine questions affecting the rights of subjects, and
having the duty to act judicially, act in excess of their legal authority, they are subject to the
controlling jurisdiction of the King Bench Division ….” Lord Hewart, C.J., in Rex v.
Legislative Committee of the Church Assembly read this observation to mean that the duty to
act judicially should be an additional requirement existing independently of the “authority to
determine questions affecting the rights of subjects” – something super-added to it. This gloss
placed by Lord Hewart, C.J., on the dictum of Lord Atkin, L.J., bedevilled the law for a
considerable time and stultified the growth of the doctrine of natural justice. The Court .was
constrained in every case that came before it, to make a search for the duty to act judicially
sometimes from tenuous material and sometimes in the services of the statute and this led to
over subtlety and over-refinement resulting in confusion and uncertainty in the law. But this
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was plainly contrary to the earlier authorities and in the epoch-making decision of the House
of Lords in Ridge v. Baldwin, which marks a turning point in the history of the development
of the doctrine of natural justice, Lord Reid pointed out how the gloss of Lord Hewart, C.J.,
was based on a misunderstanding of the observations of Atkin, L.J., and it went counter to the
law laid down in the earlier decisions-of the Court. Lord Reid observed: “If Lord Hewart
meant that it is never enough that a body has a duty to determine what the rights of an
individual should be, but that there must always be something more to impose on it a duty to
act judicially, then that appears to me impossible to reconcile with the earlier authorities”.
The learned Law Lord held that the duty to act judicially may arise from the very nature of
the function intended to be performed and it need not be shown to be super-added This
decision broadened the area of application of the rules of natural justice and to borrow the
words of Prof. dark in his article on ‘Natural Justice, Substance and Shadow’ in Public Law
Journal, 1975, restored light to an area “benighted by the narrow conceptualism of the
previous decade”. This development in the law had its parallel in India in the Associated
Cement Companies Ltd. v. P. N. Sharma where this Court approvingly referred to the
decision in Ridge v. Baldwin and, later in State of Orissa v. Dr Binapani Dei observed that:
“If there is power to decide and determine to the prejudice of a person, duty to act judicially is
implicit in the exercise of such power”. This Court also pointed out in A. K. Kraipak v. Union
of India another historic decision in this branch of the law, that in recent years the concept of
quasi-judicial power has been undergoing radical change and said:
The dividing line between an administrative power and a quasi-judicial power is
quite thin and is being gradually obliterated. For determining whether a power is an
administrative power or a quasi-judicial power one has to look to the nature of the
power conferred, the person or persons on whom it is conferred, the framework of the
law conferring that power, the consequences ensuing from the exercise of that power
and the manner in which that power is expected to be exercised.
The net effect of these and other decisions was that the duty to act judicially need not be
super-added, but it may be spelt out from the nature of the power conferred, the manner of
exercising it and its impact on the rights of the person affected and where it is found to exist,
the rules of natural justice would be attracted. - Now, here, the power conferred on the Passport Authority is to impound a passport
and the consequence of impounding a passport would be to impair the constitutional right of
the holder of the passport to go abroad during the time that the passport is impounded.
Moreover, a passport can be impounded by the Passport Authority only on certain specified
grounds set out in sub-section (3) of Section 10 and the Passport Authority would have to
apply its mind to the facts and circumstances of a given case and decide whether any of the
specified grounds exists which would justify impounding of the passport. The Passport
Authority is also required by sub-section (5) of Section 10 to record in writing a brief
statement of the reasons for making an order impounding a passport and, save in certain
exceptional situations, the Passport Authority is obliged to furnish a copy of the statement of
reasons to the holder of the passport. Where the Passport Authority which has impounded a
passport is other than the Central Government, a right of appeal against the order impounding
the passport is given by Section 11, and in the appeal, the validity of the reasons given by the
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Passport Authority for impounding the passport can be canvassed before the Appellate
Authority. It is clear on a consideration of these circumstances that the test laid down in the
decisions of this Court for distinguishing between a quasi-judicial power and an
administrative power is satisfied and the power conferred on the Passport Authority to
impound a passport is quasi-judicial power. The rules of natural justice would, in the
circumstances, be applicable in the exercise of the power of impounding a passport even on
the orthodox view which prevailed prior to A. K. Kraipak case. The same result must follow
in view of the decision in A. K. Kraipak case, even if the power to impound a passport were
regarded as administrative in character, because it seriously interferes with the constitutional
right of the holder of the passport to go abroad and entails adverse civil consequences. - Now, as already pointed out, the doctrine of natural justice consists principally of two
rules, namely, nemo debet esse judex in propria causa: no one shall be a judge in his own
cause, and audi alteram partem: no decision shall be given against a party without affording
him a reasonable hearing. We are concerned here with the second rule and hence we shall
confine ourselves only to a discussion of that rule. The learned Attorney General, appearing
on behalf of the Union of India, fairly conceded that the audi alteram partem rule is a highly
effective tool devised by the courts to enable a statutory authority to arrive at a just decision
and it is calculated to act as a healthy check on abuse or misuse of power and hence its reach
should not be narrowed and its applicability circumscribed. He rightly did not plead for
reconsideration of the historic advances made in the law as a result of the decisions of this
Court and did not suggest that the Court should retrace its steps. That would indeed have been
a most startling argument coming from the Government of India and for the Court to accede
to such an argument would have been an act of utter retrogression. But fortunately no such
argument was advanced by the learned Attorney General. What he urged was a very limited
contention, namely, that having regard to the nature of the action involved in the impounding
of a passport, the audi alteram partem rule must be held to be excluded, because if notice
were to be given to the holder of the passport and reasonable opportunity afforded to him to
show cause why his passport should not be impounded, he might immediately, on the strength
of the passport, make good his exit from the country and the object of impounding the
passport would be frustrated. The argument was that if the audi alteram partem rule were
applied, its effect would be to stultify the power of impounding the passport and it would
defeat and paralyse the administration of the law and hence the audi alteram partem rule
cannot in fairness be applied while exercising the power to impound a passport. This
argument was sought to be supported by reference to the statement of the law in S. A. de
Smith’s Judicial Review of Administrative Action, 2nd ed, where the learned author says at
page 174 that “in administrative law a prima facie right to prior notice and opportunity to be
heard may be held to be excluded by implication…… where an obligation to give notice and
opportunity to be heard would obstruct the taking of prompt action, especially action of a
preventive or remedial nature”. Now, it is true that since the right to prior notice and
opportunity of hearing arises only by implication from the duty to act fairly, or to use the
words of Lord Morris of Borth-y-Gest, from ‘fair-play in action’, it may equally be excluded
where, having regard to the nature of the action to be taken, its object and purpose and the
scheme of the relevant statutory provision, fairness in action does not demand its implication
and even warrants its exclusion. There are certain well recognised exceptions to the audi
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alteram partem rule established by judicial decisions. If we analyse these exceptions a little
closely, it will be apparent that they do not in any way militate against the principle which
requires fair-play in administrative action. The word ‘exception’ is really a misnomer because
in these exclusionary cases, the audi alteram pattern rule is held inapplicable not by way of
an exception to “fair-play in action”, but because nothing unfair can be inferred by not
affording an opportunity to present or meet a case. The audi alteram partem rule is intended
to inject justice into the law and it cannot be applied to defeat the ends of justice, or to make
the law ‘lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of
the situation’. Since the life of the law is not logic but experience and every legal proposition
must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi
alteram partem rule would, by the experiential test, be excluded, if importing the right to be
heard has the effect of paralysing the administrative process or the need for promptitude or
the urgency of the situation so demands. But at the same time it must be remembered that this
is a rule of vital importance in the field of administrative law and it must not be jettisoned
save in very exceptional circumstances where compulsive necessity so demands. It is a
wholesome rule designed to secure the rule of law and the Court should not be too ready to
eschew it in its application to a given case. True it is that in questions of this kind a fanatical
or doctrinaire approach should be avoided, but that does not mean that merely because the
traditional methodology of a formalised hearing may have the effect of stultifying the exercise
of the statutory power, the audi alteram partem should be wholly excluded. The Court must
make every effort to salvage this cardinal rule to the maximum extent permissible in a given
case. It must not be forgotten that “natural justice is pragmatically flexible and is amenable to
capsulation under the compulsive pressure of circumstances”. The audi alteram partem rule is
not cast in a rigid mould and judicial decisions establish that it may suffer situational
modifications. The core of it must, however, remain, namely, that the person affected must
have a reasonable opportunity of being heard and the hearing must be a genuine hearing and
not an empty public relations exercise. That is why Tucker, L.J., emphasised in Russel v.
Duke of Norfolk that “whatever standard of natural justice is adopted, one essential is that the
person concerned should have a reasonable opportunity of presenting his case”. What
opportunity may be regarded as reasonable would necessarily depend on the practical
necessities of the situation. It may be a sophisticated full-fledged hearing or it may be a
hearing which is very brief and minimal: it may be a hearing prior to the decision or it may
even be a post-decisional remedial hearing. The audi alteram partem rule is sufficiently
flexible to permit modifications and variations to suit the exigencies of myriad kinds of
situations which may arise. This circumstantial flexibility of the audi alteram partem rule was
emphasised by Lord Reid in Wiseman v. Borneman when he said that he would be “sorry to
see this fundamental general principle degenerate into a series of hard and fast rules”. It
would not. therefore, be right to conclude that the audi alteram partem rule is excluded
merely because the power to impound a passport might be frustrated, if prior notice and
hearing were to be given to the person concerned before impounding his passport The
Passport Authority may proceed to impound the passport without giving any prior opportunity
to the person concerned to be heard, but as soon as the order impounding the passport is
made, an opportunity of hearing, remedial in aim, should be given to him so that he may
present his case and controvert that of the Passport Authority and point out why his passport
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should not be impounded and the order impounding it recalled. This should not only be
possible but also quite appropriate, because the reasons for impounding the passport are
required to be supplied by the Passport Authority after the making of the order and the person
affected would, therefore, be in a position to make a representation setting forth his case and
plead for setting aside the action impounding his passport. A fair opportunity of being heard
following immediately upon the order impounding the passport would satisfy the mandate of
natural justice and a provision requiring giving of such opportunity to the person concerned
can and should be read by implication in the Passports Act, 1967. If such a provision were
held to be incorporated in the Passports Act, 1967 by necessary implication, as we hold it
must be, the procedure prescribed by the Act for impounding a passport would be right, fair
and just and it would not suffer from the vice of arbitrariness or unreasonableness. We must,
therefore, hold that the procedure ‘established’ by the Passports Act, 1967 for impounding a
passport is in conformity with the requirement of Article 21 and does not fall foul of that
article. - But the question then immediately arises whether the Central Government has
complied with this procedure in impounding the passport of the petitioner. Now, it is obvious
and indeed this could not be controverted, that the Central Government not only did not give
an opportunity of hearing to the petitioner after making the impugned order impounding her
passport but even declined to furnish to the petitioner the reasons for impounding her passport
despite request made by her. We have already pointed out that the Central Government was
wholly unjustified in withholding the reasons for impounding the passport from the petitioner
and this was not only in breach of the statutory provision, but it also amounted to denial of
opportunity of hearing to the petitioner. The order impounding the passport of the petitioner
was, therefore, clearly in violation of the rule of natural justice embodied in the maxim audi
alteram partem and it was not in conformity with the procedure prescribed by the Passports
Act, 1967. Realising that this was a fatal defect which would void the order impounding the
passport, the learned Attorney General made a statement on behalf of the Government of
India to the following effect: - 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 the present case the grounds for
impounding the passport are those mentioned in the affidavit in reply dated August
18,, 1977 of Shri Ghosh except those mentioned in para 2(xi). - The representation of the petitioner will be dealt with expeditiously in
accordance with law.
This statement removes the vice from the order impounding the passport and it can no
longer be assailed on the ground that it does not comply with the audi alteram partem rule or
is not in accord with the procedure prescribed by the Passports Act, 1967. - We do not, therefore, see any reason to interfere with the impugned Order made by
the Central Government. We, however, wish to utter a word of caution to the Passport
Authority while exercising the power of refusing or impounding or cancelling a passport. The
Passport Authority would do well to remember that it is a basic human right recognised in
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Article 13 of the Universal Declaration of Human Rights with which the Passport Authority is
interfering when it refuses or impounds or cancels a passport. It is a highly valuable right
which is a part of personal liberty, an aspect of the spiritual dimension of man, and it should
not be lightly interfered with. Cases are not unknown where people have not been allowed to
go abroad because of the views held, opinions expressed or political beliefs or economic
ideologies entertained by them. It is hoped that such cases will not recur under a Government
constitutionally committed to uphold freedom and liberty but it is well to remember, at all
times, that eternal vigilance is the price of liberty, for history shows that it is always subtle
and insidious encroachments made ostensibly for a good cause that imperceptibly but surely
corrode the foundations of liberty. - In view of the statement made by the learned Attorney General to which reference has
already been made in the judgment 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. There will be no order as to costs.
