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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 action of the Government was impugned inter alia on the ground that it was mala fide, but this challenge was not pressed before us at the time of the hearing of the arguments and hence it is not necessary to state any facts bearing on that question. 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.
2. 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 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.
3. Before we examine the rival arguments urged on behalf of the parties in regard to the various questions arising in this petition, it would be convenient to set out the relevant provisions of the Passports Act, 1967. The position which obtained prior to the coming into force of this Act was that there was no law regulating the issue of passports for leaving the shores of India and going abroad. The issue of passports was entirely within the discretion of the executive and this discretion was unguided and unchannelled. This Court, by a majority, held that the expression “personal liberty” in Article 21 takes in the right of locomotion and travel abroad and under Article 21 no person can be deprived of his right to go abroad except according to the procedure established by law and since no law had been made by the State regulating or prohibiting the exercise of such right, the refusal of passport was in violation of Article 21 and moreover the discretion with the executive in the matter of issuing or refusing passport being unchannelled and arbitrary, it was plainly violative of Article 14 and hence the order refusing passport to the petitioner was also invalid under that article. This decision was accepted by Parliament and the infirmity pointed out by it was set right by the enactment of the Passports Act 1967. This Act, as its Preamble shows, was enacted 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 incidental and ancillary matters. Section 3 provides that no person shall depart from or attempt to depart from India unless he holds in this behalf a valid passport or travel document. What are the different classes of passports and travel documents which can be issued under the Act is laid down in Section 4. Section 5, sub-section (1) provides for making of an application for issue of a passport or travel document or for endorsement on such passport or travel document for visiting foreign country or countries and sub-section (2) says that on receipt of such application, the passport authority, after making such inquiry, if any, as it may consider necessary, shall, by order in writing, issue or refuse to issue the passport or travel document or make or refuse to make on the passport or travel document endorsement in respect of one or more of the foreign countries specified in the application. Sub-section (3) requires the passport authority, where it refuses to issue the passport or travel document or to make any endorsement on the passport or travel document, to record in writing a brief statement of its reasons for making such order. Section 6, sub-section (1) lays down the grounds on which the passport authority shall refuse to make an endorsement for visiting any foreign country and provides that on no other ground the endorsement shall be refused. There are four grounds set out in this sub-section and of them, the last is that, in the opinion of the Central Government, the presence of the applicant in such foreign country is not in the public interest. Similarly sub-section (2) of Section 6 specifies the grounds on which alone – and on no other grounds – the passport authority shall refuse to issue passport or
travel document for visiting any foreign country and amongst various grounds set out there, the last is that, in the opinion of the Central Government the issue of passport or travel document to the applicant will not be in the public interest. Then we come to Section 10 which is the material section which falls for consideration. Sub-section (1) of that section empowers the passport authority to vary or cancel the endorsement of a passport or travel document or to vary or cancel the conditions subject to which a passport or travel document has been issued, having regard inter alia, to the provisions of sub-section (1) of Section 6 or any notification under Section 19. Sub-section (2) confers powers on the passport authority to vary or cancel the conditions of the passport or travel document on the application of the holder of the passport or travel document and with the previous approval of the Central Government. Sub-section (3) provides that the passport authority may impound or cause to be impounded or revoke a passport or travel document on the grounds set out in clauses (a) to (h). The order impounding the passport in the present case was made by the Central Government under clause (c) which reads as follows:
(c) if the passport authority deems it necessary so to do in the interest 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….
The particular ground relied upon for making the order was that set out in the last part of clause (c), namely, that the Central Government deems it necessary to impound the passport “in the interests of the general public”. Then follows sub-section (5) which requires the passport authority impounding or revoking a passport or travel document or varying or cancelling an endorsement made upon it to “record in writing a brief statement of the reasons for making such order and furnish to the holder of the passport or travel document 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”. It was in virtue of the provision contained in the latter part of this sub-section that the Central Government declined to furnish a copy of the statement of reasons for impounding the passport of the petitioner on the ground that it was not in the interests of the general public to furnish such copy to the petitioner. It is indeed a matter of regret that the Central Government should have taken up this attitude in reply to the request of the petitioner to be supplied a copy of the statement of reasons, because ultimately, when the petition came to be filed, the Central Government did disclose the reasons in the affidavit in reply to the petition which shows that it was not really contrary to public interest and if we look at the reasons given in the affidavit in reply, it will be clear that no reasonable person could possibly have taken the view that the interests of the general public would be prejudiced by the disclosure of the reasons. This is an instance showing how power conferred on a statutory authority to act in the interests of the general public can sometimes be improperly exercised. If the petitioner had not filed the petition, she would perhaps never have been able to find out what were the reasons for which her passport was impounded and she was deprived of her right to go abroad. The necessity of giving reasons has obviously been introduced in sub- section (5) so that it may act as a healthy check against abuse or misuse of power. If the reasons given are not relevant and there is no nexus between the reasons and the ground on which the passport has been impounded, it would be open to the holder of the passport to challenge the order impounding it in a Court of law and if the court is satisfied that the
reasons are extraneous or irrelevant, the Court would strike down the order. This liability to be exposed to judicial scrutiny would by itself act as a safeguard against improper or mala fide exercise of power. The Court would, therefore, be very slow to accept, without close scrutiny, the claim of the passport authority that it would not be in the interests of the general public to disclose the reasons. The passport authority would have to satisfy the Court by placing proper material that the giving of reasons would be clearly and indubitably against the interests of the general public and if the Court is not so satisfied, the Court may require the passport authority to disclose the reasons, subject to any valid and lawful claim for privilege which may be set up on behalf of the Government. Here in the present case, as we have already pointed out, the Central Government did initially claim that it would be against the interests of the general public to disclose the reasons for impounding the passport, but when it came to filing the affidavit in reply, the Central Government very properly abandoned this unsustainable claim and disclosed the reasons. The question whether these reasons have any nexus with the interests of the general public or they are extraneous and irrelevant is a matter which we shall examine when we deal with the arguments of the parties. Meanwhile, proceeding further with the resume of the relevant provisions, reference may be made to Section 11 which provides for an appeal inter alia against the order impounding or revoking a passport or travel document under sub-section (3) of Section 10. But there is a proviso to this section which says that if the order impounding or revoking a passport or travel document is passed by the Central Government, there shall be no right of appeal. These are the relevant provisions of the Act in the light of which we have to consider the constitutionality of sub- section (3)(c) of Section 10 and the validity of the order impounding the passport of the petitioner.
Meaning and content of personal liberty in Article 21
4. The first contention urged on behalf of the petitioner in support of the petition was that the right to go abroad is part of ‘personal liberty’ within the meaning of that expression as used in Article 21 and no one can be deprived of this right except according to the procedure prescribed by law. There is no procedure prescribed by the Passports Act, 1967 for impounding or revoking a passport and thereby preventing the holder of the passport from going abroad and in any event, even if some procedure can be traced in the relevant provisions of the Act, it is unreasonable and arbitrary, inasmuch as it does not provide for giving an opportunity to the holder of the passport to be heard against the making of the order and hence the action of the Central Government in impounding the passport of the petitioner is in violation of Article 21. This contention of the petitioner raises a question as to the true interpretation of Article 21. What is the nature and extent of the protection afforded by this article? What is the meaning of ‘personal liberty’: does it include the right to go abroad so that this right cannot be abridged or taken away except in accordance with the procedure prescribed by law? What is the inter-relation between Article 14 and Article 21? Does Article 21 merely require that there must be some semblance of procedure, howsoever arbitrary or fanciful, prescribed by law before a person can be deprived of his personal liberty or that the procedure must satisfy certain requisites in the sense that it must be fair and reasonable? Article 21 occurs in Part III of the Constitution which confers certain fundamental rights. These fundamental rights had their roots deep in the struggle for independence and, as pointed out by Granville Austin in ‘The Indian Constitution – Cornerstone of a Nation’, “they were included in the Constitution in the hope and expectation that one day the tree of
true liberty would bloom in India”. They were indelibly written in the subconscious memory of the race which fought for well nigh thirty years for securing freedom from British rule and they found expression in the form of fundamental rights when the Constitution was enacted. These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent. They weave a “pattern of guarantees on the basic-structure of human rights” and impose negative obligations on the State not to encroach on individual liberty in its various dimensions. It is apparent from the enunciation of these rights that the respect for the individual and his capacity for individual Volition which finds expression there is not a self-fulfilling prophecy. Its purpose is to help the individual to find his own liability, to give expression to his creativity and to prevent governmental and other forces from ‘alienating’ the individual from his creative impulses. These rights are wide ranging and comprehensive and they fall under seven heads, namely, right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to property and right to constitutional remedies. Articles 14 to 18 occur under the heading ‘Right to Equality’, and of them, by far the most important is Article 14 which confers a fundamental right by injuncting the State not to “deny to any person equality before the law or the equal protection of the laws within the territory of India”. Articles 19 to 22, which find place under the heading “Right to freedom” provide for different aspects of freedom. Clause (1) of Article 19 enshrines what may be described as the seven lamps of freedom.
It provides that all citizens shall have the right – (a) to freedom of speech and expression: (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (f) to acquire, hold and dispose of property and (g) to practice any profession or to carry on any occupation, trade or business. But these freedoms are not and cannot be absolute, for absolute and unrestricted freedom of one may be destructive of the freedom of another and in a well-ordered, civilised society, freedom can only be regulated freedom. Therefore, clauses (2) to (6) of Article 19 permit reasonable restrictions to be imposed on the exercise of the fundamental rights guaranteed under clause (1) of that article. Article 20 need not detain us as that is not material for the determination of the controversy between the parties. Then comes Article 21 Article 22 confers protection against arrest-and detention in certain cases and provides inter alia safeguards in case of preventive detention. The other fundamental rights are not relevant to the present discussion and we need not refer to them.
5. It is obvious that Article 21, though couched in negative language, confers the fundamental right to life and personal liberty. So far as the right to personal liberty is concerned, it is ensured by providing that no one shall be deprived of personal liberty except according to procedure prescribed by law. The first question that arises for consideration on the language of Article 21 is: what is the meaning and content of the words/personal liberty’ as used in this article? This question incidentally came up for discussion in some of the judgments in A. K. Gopalan v. State of Madras [AIR 1950 SC 27] and the observations made by Patanjali Sastri, J., Mukherjea, J., and S. R. Das, J., seemed to place a narrow interpretation on the words ‘personal liberty’ so as to confine the protection of Article 21 to freedom of the person against unlawful detention. But there was no definite pronouncement made on this point since the question before the Court was not so much the interpretation of the words ‘personal liberty’ as the inter-relation between Articles 19 and 21. It was in Kharak Singh v. State of U. P. [AIR 1963 SC 1295], that the question as to the proper scope and meaning of the expression ‘personal liberty’ came up pointedly for consideration for the first time before this Court. The majority of the Judges took the view “that ‘personal liberty’ is used in the article as a compendious term to include within itself all the varieties of rights which go to make up the ‘personal liberties’ of man other than those dealt with in the several clauses of Article 19(1). In other words, while Article 19(1) deals with particular species or attributes of that freedom, ‘personal liberty’ in Article 21 takes in and comprises the residue”. The minority judges, however, disagreed with this view taken by the majority and explained their position in the following words: “No doubt the expression ‘personal liberty’ is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression ‘personal liberty’ in Article 21 excludes that attribute. In our view, this is not a correct approach. Both are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another. The fundamental right of life and personal liberty has many attributes and some of them are found in Article 19. If a person’s fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned.” There can be no doubt that in view of the decision of this Court in R. C. Cooper v. Union of India, the minority view must be regarded as correct and the majority view must be held to have been overruled. We shall have occasion to analyse and discuss the decision in R. C. Cooper’s case a little later when we deal with the arguments based on infraction of Articles 19(l)(a) and 19(l)(g), but it is sufficient to state for the present that according to this decision, which was a decision given by the full Court, the fundamental rights conferred by Part III are not distinct and mutually exclusive rights. Each freedom has different dimensions and merely because the limits of interference with one freedom are satisfied, the law is not freed from the necessity to meet the challenge of another guaranteed freedom. The decision in A. K. Gopalan case gave rise to the theory that the freedoms under Articles 19, 21, 22 and 31 are exclusive – each article enacting a code relating to the protection of distinct rights, but this theory was overturned in R. C. Cooper case where Shah, J., speaking on behalf of the majority pointed out that “Part III of the Constitution weaves a pattern of guarantees on the texture of basic human rights. The guarantees delimit the protection of those rights in their allotted fields they do not attempt to enunciate distinct rights.” The conclusion was summarised in these terms: “In our judgment, the assumption in A. K. Gopalan case that certain articles in the Constitution exclusively deal with specific matters – cannot be accepted as correct”. It was held in R. C. Cooper case – and that is clear from the judgment of Shah, J., because Shah, J., in so many terms disapproved of the contrary statement of law contained in the opinions of Kania, C.J., Patanjali Sastri, J., Mahajan, J., Mukherjea, J., and S. R. Das, J., in A. K. Gopalan case – that even where a person is. detained in accordance with the procedure prescribed by law, as mandated by Article 21, the protection conferred by the various clauses of Article 19(1) does not cease to be available to him and the law authorising such detention has to satisfy the test of the applicable freedoms under Article 19, clause (1). This would clearly show that Articles 19(1) and 21 are not mutually exclusive, for, if they were, there would be no question of a law depriving a person of personal liberty within the meaning of Article 21 having to meet the
challenge of a fundamental right under Article 19(1). Indeed, in that event, a law of preventive detention which deprives a person of ‘personal liberty’ in the narrowest sense, namely, freedom from detention and thus falls indisputably within Article 22 would not require to be tested on the touchstone of clause (d) of Article 19(1) and yet it was held by a Bench of seven Judges of this Court in Shambhu Nath Sarkar v. The State of West Bengal [AIR 1973 SC 1425] that such a law would have to satisfy the requirement inter alia of Article 19(1), clause (d) and in Haradhan Saha v. The State of West Bengal [(1975) 1 SCR 778], which was a decision given by a Bench of five Judges, this Court considered the challenge of clause (d) of Article 19(1) to the constitutional validity of the Maintenance of Internal Security Act, 1971 and held that that Act did not violate the constitutional guarantee embodied in that article. It is indeed difficult to see on what principle we can refuse to give its plain natural meaning to the expression ‘personal liberty’ as used in Article 21 and read it in a narrow and restricted sense so as to exclude those attributes of personal liberty which are specifically dealt with in Article 19. We do not think that this would be a correct way of interpreting the provisions of the Constitution conferring fundamental rights. The attempt of the Court should be to expand the reach and ambit of the fundamental rights rather than attenuate their meaning and content by a process of judicial construction. The wavelength for comprehending the scope and ambit of the fundamental rights has been set by this Court in R.C. Cooper case and our approach in the interpretation of the fundamental rights must now be in tune with this wave-length. We may point out even at the cost of repetition that this Court has said in so many terms in R.C. Cooper case that each freedom has different dimensions and there may be overlapping between different fundamental rights and therefore it is not a valid argument to say that the expression ‘personal liberty’ in Article 21 must be so interpreted as to avoid overlapping between that article and Article 19(1).
The expression ‘personal liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19. Now, it has been held by this Court in Satwant Singh case that ‘personal liberty’ within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law. Prior to the enactment of the Passports Act, 1967, there was no law regulating the right of a person to go abroad and that was the reason why the order of the Passport Officer refusing to issue passport to the petitioner in Satwant Singh case was struck down as invalid. It will be seen at once from the language of Article 21 that the protection it secures is a limited one. It safeguards the right to go abroad against executive interference which is not supported by law; and law here means ‘enacted law’ or ‘state law’. Thus, no person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure. It was for this reason, in order to comply with the requirement of Article 21, that Parliament enacted the Passports Act, 1967 for regulating the right to go abroad. It is clear from the provisions of the Passports Act, 1967 that it lays down the circumstances under which a passport may be issued or refused or cancelled or impounded and also prescribes a procedure for doing so, but the question is whether that is sufficient compliance with Article 21. Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements? Obviously, the procedure cannot be arbitrary, unfair or
unreasonable. This indeed was conceded by the learned Attorney General who with his usual candour frankly stated that it was not possible for him to contend that any procedure howsoever arbitrary, oppressive or unjust may be prescribed by the law. There was some discussion in A. K. Gopalan case in regard to the nature of the procedure required to be prescribed under Article 21 and at least three of the learned Judges out of five expressed themselves strongly in favour of the view that the procedure cannot be any arbitrary, fantastic or oppressive procedure. Fazil Ali, J., who was in a minority, went to the farthest limit in saying that the procedure must include the four essentials set out in Prof. Willis’ book on Constitutional Law, namely, notice, opportunity to be heard, impartial tribunal and ordinary course of procedure. Patanjali Sastri, J., did not go as far as that but he did say that “certain basic principles emerged as the constant factors known to all those procedures and they formed the core of the procedure established by law”. Mahajan, J., also observed that Article 21 requires that “there should be some form of proceeding before a person can be condemned either in respect of his life or his liberty” and “it negatives the idea of fantastic, arbitrary and oppressive forms of proceedings”. But apart altogether from these observations in A. K. Gopalan case, which have great weight, we find that even on principle the concept of reasonableness must be projected in the procedure contemplated by Article 21, having regard to the impact of Article 14 on Article 21.
The inter-relationship between Articles 14, 19 and 21
6. We may at this stage consider the inter-relation between Article 21 on the one hand and Articles 14 and 19 on the other. We have already pointed out that the view taken by the majority in A.K. Gopalan case was that so long as a law of preventive detention satisfies the requirements of Article 22, it would be within the terms of Article 21 and it would not be required to meet the challenge of Article 19. This view proceeded on the assumption that “certain articles in the constitution exclusively deal with specific matters” and where the requirements of an article dealing with the particular matter in question are satisfied and there is no infringement of the fundamental right guaranteed by that article, no recourse can be had to a fundamental right conferred by another article. This doctrine of exclusivity was seriously questioned in R.C. Cooper case and it was over-ruled by a majority of the full Court, only Ray, J., as he then was, dissenting. The majority judges held that though a law of preventive detention may pass the test of Article 22, it has yet to satisfy the requirements of other fundamental rights such as Article 19. The ratio of the majority judgment in R.C. Cooper case was explained in clear and categorical terms by Shelat, J., speaking on behalf of seven judges of this Court in Shambhu Nath Sarkar v. The State of West Bengal. The learned Judge there said:
In Gopalan case the majority court had held that Article 22 was a self-contained Code and therefore a law of preventive detention did not have to satisfy the requirements of Articles 19, 14 and 21. The view of Fazil Ali, J., on the other hand, was that preventive detention was a direct breach of the right under Article l9(l)(d) and that a law providing for preventive detention had to be subject to such judicial review as is obtained under clause (5) of that article. In R.C. Cooper v. Union of India the aforesaid premise of the majority in Gopalan case was disapproved and therefore it no longer holds the field. Though Cooper case dealt with the inter-relationship of Article 19 and Article 31, the basic approach to construing the fundamental rights guaranteed in the different provisions
of the Constitution adopted in this cage held the major premise of the majority in
Gopalan’s case to be incorrect.
Subsequently, in Haradhan Saha v. State of West Bengal also, a Bench of five Judges of this Court, after referring to the decisions in A.K. Gopalan case and R.C. Cooper case, agreed that the Maintenance of Internal Security Act, 1971, which is a law of preventive detention, has to be tested in regard to its reasonableness with reference to Article 19. That decision accepted and applied the ratio in R.C. Cooper case and Shambhu Nath Sarkar case and proceeded to consider the challenge of Article 19, to the constitutional validity of the Maintenance of Internal Security Act, 1971 and held that the Act did not violate any of the constitutional guarantees enshrined in Article 19. The law, must, therefore, now be taken to be well settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of ‘personal liberty’ and there is consequently no infringement of the fundamental right conferred by Article 21, such law, in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that article. This proposition can no longer be disputed after the decisions in R. C. Cooper case, Shambhu Nath Sarkar case and Haradhan Saha case. Now, if a law depriving a person of ‘personal liberty’ and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation, ex-hypothesi it must also be liable to be tested with reference to Article 14. This was in fact not disputed by the learned Attorney General and indeed he could not do so in view of the clear and categorical statement made by Mukherjea, J., in A.K. Gopalan case that Article 21 “presupposes that the law is a valid and binding law under the provisions of the Constitution having regard to the competence of the legislature and the subject it relates to and does not infringe any of the fundamental rights which the Constitution provides for”, including Article 14. This Court also applied Article 14 in two of its earlier decisions, namely, The State of West Bengal v. Anwar Ali Sarkar and Kathi Raning Rawat v. The State of Saurashtra where there was a special law providing for trial of certain offences by a speedier process which took away some of the safeguards available to an accused under the ordinary procedure in the Criminal Procedure Code. The special law in each of these two cases undoubtedly prescribed a procedure for trial of the specified offences and this procedure could not be condemned as inherently unfair or unjust and there was thus compliance with the requirement of Article 21, but even so, the validity of the special law was tested before the Supreme Court on the touchstone of Article 14 and in one case, namely, Kathi Raning Rawat case, the validity was upheld and in the other, namely, Anwar Ali Sarkar case, it was struck down. It was held in both these cases that the procedure established by the special law must not be violative of the equality clause. That procedure must answer the requirement of Article 14.
The nature and requirement of the procedure under Article 21
7. Now, the question immediately arises as to what is the requirement of Article 14: what is the content and reach of the great equalising principle enunciated in this article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach- No attempt should be made to truncate its all- embracing scope and meaning, for to do so would be to violate its activist magnitude.
Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. We must reiterate here what was pointed out by the majority in E.P. Royappa v. State of Tamil Nadu [(1974) 2 SCR 348], namely, that “from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14”. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of-treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it .would be no procedure at all and the requirement of Article 21 would not be satisfied.
How far natural justice is an essential element of ‘procedure established by law
8. The question immediately arises: does the procedure prescribed by the Passports Act, 1967 for impounding a passport meet the test of this requirement? Is it ‘right or fair or just’? The argument of the petitioner was that it is not, because it provides for impounding of a passport without affording reasonable opportunity to the holder of the passport to be heard in defence. To impound the passport of a person, said the petitioner, is a serious matter, since it prevents him from exercising his constitutional right to go abroad and such a drastic consequence cannot in fairness be visited without observing the principle of audi alteram partem. Any procedure which permits impairment of the constitutional right to go abroad without giving reasonable opportunity to show cause cannot but be condemned as unfair and unjust and hence, there is in the present case clear infringement of the requirement of Article 21. Now, it is true that there is no express provision in the Passports Act, 1967 which requires that the audi alteram partem rule should be followed before impounding a passport, but that is not conclusive of the question. If the statute makes itself clear on this point, then no more question arises. But even when the statute is silent, the law may in a given case make an implication and apply the principle stated by Byles, J., in Cooper v. Wandswort Board of Works [(1861-73) All ER Rep 1554]:
A long course of decisions, beginning with Dr Bentley’s case and ending with some very recent cases, establish that, although there are no positive works in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature.
The principle of audi alteram partem, which mandates that no one shall be condemned unheard, is part of the rules of natural justice. In fact, there are two main principles in which the rules of natural justice are manifested, namely, nemo judex in causa sua and audi alteram partem. We are not concerned here with the former, since there is no case of bias urged here. The question is only in regard to the right of hearing which involves the audi alteram partem rule. Can it be imported in the procedure for impounding a passport?
14. 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 alteram partem rule established by judicial decisions and they are summarised by S.A. de Smith in Judicial Review of Administrative Action, 2nd ed. pages 168 to 179. 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 (1949) 1 All ER 109 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” and Lord Hailsham, L.C., also observed in Pearlberg v. Varty [(1971) 1 WLR 728] that the courts “have taken in increasingly sophisticated view of what is required in individual cases”. 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 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.
15. 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:
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 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).
2. 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.
Is Section 10(3)(c) violative of Article 14?
16. That takes us to the next question whether Section 10(3)(c) is violative of any of the fundamental rights guaranteed under Part III of the Constitution. Only two articles of the Constitution are relied upon for this purpose and they are Articles 14 and 19(l)(a) and (g). We will first dispose of the challenge based on Article 14 as it lies in a very narrow compass. The argument under this head of challenge was that Section 10(3)(c) confers unguided and unfettered power on the Passport Authority to impound a passport and hence it is violative of the equality clause contained in Article 14. It was conceded that under Section 10(3)(c) the power to impound a passport can be exercised only upon one or more of the stated grounds, but the complaint was that the ground of “interests of the general public” was too vague and indefinite to afford any real guidance to the Passport Authority and the Passport Authority could, without in any way violating the terms of the section, impound the passport of one and not of another, at its discretion. Moreover, it was said that when the order impounding a passport is made by the Central Government, there is no appeal or revision provided by the statute and the decision of the Central Government that it is in public interest to impound a
passport is final and conclusive. The discretion vested in the Passport Authority, and particularly in the Central Government, is thus unfettered and unrestricted and this is plainly in violation of Article 14. Now, the law is well settled that when a statute vests unguided and unrestricted power in an authority to affect the rights of a person without laying down any policy or principle which is to guide the authority in exercise of this power, it would be affected by the vice of discrimination since it would leave it open to the authority to discriminate between persons and things similarly situated. But here it is difficult to say that the discretion conferred on the Passport Authority is arbitrary or unfettered. There are four grounds set out in Section 10(3)(c) which would justify the making of an order impounding a passport. We are concerned only with the last ground denoted by the words “in the interests of the general public”, for that is the ground which is attacked as vague and indefinite. We fail to see how this ground can, by any stretch of argument, be characterised as vague or undefined. The words “in the interests of the general public” have a clearly well defined meaning and the courts have often been called upon to decide whether a particular action is “in the interests of the general public” or in “public interest” and no difficulty has been experienced by the courts in carrying out this exercise. These words are in fact borrowed ipsissima verba from Article 19(5) and we think it would be nothing short of heresy to accuse the constitution-makers of vague and loose thinking.
The legislature performed a scissors and paste operation in lifting these words out of Article 19(5) and introducing them in Section 10(3)(c) and if these words are not vague and indefinite in Article 19(5), it is difficult to see how they can be condemned to be such when they occur in Section 10(3)(c). How can Section 10(3)(c) be said to incur any constitutional infirmity on account of these words when they are no wider than the constitutional provision in Article 19(5) and adhere loyally to the verbal formula adopted in the Constitution? We are clearly of the view that sufficient guidelines are provided by the words “in the interests of the general public” and the power conferred on the Passport Authority to impound a passport cannot be said to be unguided or unfettered. Moreover, it must be remembered that the exercise of this power is not made dependent on the subjective opinion of the Passport Authority as regards the necessity of exercising it on one or more of the grounds stated in the section, but the Passport Authority is required to record in writing a brief statement of reasons for impounding the passport and, save in certain exceptional circumstances, to supply a copy of such statement to the person affected, so that the person concerned can challenge the decision of the Passport Authority in appeal and the appellate authority can examine whether the reasons given by the Passport Authority are correct, and if so, whether they justify the making of the order impounding the passport. It is true that when the order impounding a passport is made by the Central Government, there is no appeal against it, but it must be remembered that in such a case the power is exercised by the Central Government itself and it can safely be assumed that the Central Government will exercise the power in a reasonable and responsible manner. When power is vested in a high authority like the Central Government, abuse of power cannot be lightly assumed. And in any event, if there is abuse of power, the arms of the Court are long enough to reach it and to strike it down. The power conferred on the Passport Authority to impound a passport under Section 10(3)(c) cannot, therefore, be regarded as discriminatory and it does not fall foul of Article 14. But every exercise of such power has to be tested in order to determine whether it is arbitrary or within the guidelines provided in Section 10(3)(c).
Conflicting approaches for locating the fundamental right violated: Direct and inevitable effect test.
17. We think it would be proper at this stage to consider the approach to be adopted by the Court in adjudging the constitutionality of a statute on the touchstone of fundamental rights. What is the test or yardstick to be applied for determining whether a statute infringes a particular fundamental right? The law on this point has undergone radical change since the days of A.K. Gopalan case. That was the earliest decision of this Court on the subject, following almost immediately upon the commencement of the Constitution. The argument which arose for consideration in this case was that the preventive detention order results in the detention of the applicant in a cell and hence it contravenes the fundamental rights guaranteed under clauses (a),(b),(c),(d),(e) and (g) of Article 19(1). This argument was negatived by Kania, C.J., who pointed out that: “The true approach is only to consider the directness of the legislation and not what will be the result of the detention, otherwise valid, on the mode of the detenue’s life…..Any other construction put on the Article… will be unreasonable.” These observations were quoted with approval by Patanjali Sastri, J., speaking on behalf of the majority in Ram Singh v. State of Delhi [AIR 1951 SC 270]. There, the detention of the petitioner was ordered with a view to preventing him from making any speeches prejudicial to the maintenance of public order and the argument was that the order of detention was invalid as it infringed the right of free speech and expression guaranteed under. Article 19(l)(a). The Court took the view that the direct object of the order was preventive detention and not the infringement of the right of freedom of speech and expression, which was merely consequential upon the detention of the detenue and upheld the validity of the order. The decision in A.K. Gopalan case, followed by Ram Singh case, gave rise to the theory that the object and form of State action determine the extent of protection which may be claimed by an individual and the validity of such action has to be judged by considering whether it is “directly in respect of the subject covered by any particular article of the Constitution or touches the said article only incidentally or indirectly”. The test to be applied for determining the constitutional validity of State action with reference to fundamental rights is: what is the object of the authority in taking the action: what is the subject-matter of the action and to which fundamental right does it relate? This theory that “the extent of protection of important guarantees, such as the liberty of person and right to property, depend upon the form and object of the State action and not upon its direct operation upon the individual’s freedom” held sway for a considerable time and was applied in Naresh Shridhar Mirajkar v. State of Maharashtra [AIR 1967 SC 1] to sustain an order made by the High Court in a suit for defamation prohibiting the publication of the evidence of a witness.
This Court, after referring to the observations of Kania, C.J., in A.K. Gopalan case and noting that they were approved by the Full Court in Ram Singh case, pointed out that the object of the impugned order was to give protection to the witness in order to obtain true evidence in the case with a view to do justice between the parties and if incidentally it overrated to prevent the petitioner from reporting the proceedings of the Court in the press, it could not be said to contravene Article 19(l)(a).
19. It was only R.C. Cooper case that the doctrine that the object and form of the State action alone determine the extent of protection that may be claimed by an individual and that
the effect of the State action on the fundamental right of the individual is irrelevant, was finally rejected. It may be pointed out that this doctrine is in substance and reality nothing else than the test of pith and substance which is applied for determining the constitutionality of legislation where there is conflict of legislative powers conferred on Federal and State Legislatures with reference to legislative Lists. The question which is asked in such cases is: what is the pith and substance of the legislations; if it “is within the express powers, then it is not invalidated if incidentally it effects matters which are outside the authorised field”. Here also, on the application of this doctrine, the question that is required to be considered is: what is the pith and substance of the action of the State, or in other words, what is its true nature and character; if it is in respect of the subject covered by any particular fundamental right, its validity must be judged only by reference to that fundamental right and it is immaterial that it incidentally affects another fundamental right. Mathew, J., in his dissenting judgment in Bennett Coleman & Co. v. Union of India recognised the likeness of this doctrine to the pith and substance test and pointed out that “the pith and substance test, although not strictly appropriate, might serve a useful purpose” in determining whether the State action infringes a particular fundamental right. But in R.C. Cooper case, which was a decision given by the full Court consisting of eleven judges, this doctrine was thrown overboard and it was pointed out by Shah, J., speaking on behalf of the majority:
(I)t is not the object of the authority making the law impairing the right of a citizen, nor the form of action that determines the protection he can claim; it is the effect of the law and of the action upon the right which attract the jurisdiction of the Court to grant relief. If this be the true view, and we think it is, in determining the impact of State action upon constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of the Legislature nor by the form of the action, but by its direct operation upon the individual’s rights.
We are of the 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….
In our judgment, the assumption in A. K. Gopalan case that certain articles in the Constitution exclusively deal with specific matters and in determining whether there is infringement of the individual’s guaranteed rights, the object and the form of the State action alone need be considered, and effect of the laws on fundamental rights of the individuals in general will be ignored cannot be accepted as correct.
The decision in R.C. Cooper case thus overturned the view taken in A.K. Gopalan case and, as pointed out by Ray, J., speaking on behalf of the majority in Bennett Coleman case, it laid down two inter-related propositions, namely:
First, it is not the object of the authority making the law impairing the right of the citizen nor the form of action that determines the invasion of the right. Secondly, it is the effect of the law and the action upon the right which attracts the jurisdiction of the Court to grant relief. The direct operation of the Act upon the rights forms the real test.
The decision in Bennett Coleman case, followed upon R.C. Cooper case and it is an important and significant decision, since it elaborated and applied the thesis laid down in R.
C. Cooper case. The State action which was impugned in Bennett Coleman case was newsprint policy which inter alia imposed a maximum limit of ten pages for every newspaper but without permitting the newspaper to increase the number of pages by reducing circulation to meet its requirement even within the admissible quota. These restrictions were said to be violative of the right of free speech and expression guaranteed under Article 19(l)(a) since their direct and inevitable consequence was to limit the number of pages which could be published by a newspaper to ten. The argument of the Government was that the object of the newsprint policy was rationing and equitable distribution of imported newsprint which was scarce commodity and not abridgement of freedom of speech and expression. The subject- matter of the import policy was “rationing of imported commodity and equitable distribution of newsprint” and the newsprint policy did not directly and immediately deal with the right mentioned in Article 19(l)(a) and hence there was no violation of that article. This argument of the Government was negatived by the majority. The majority took the view that it was not the object of the newsprint policy or its subject-matter which was determinative but its direct consequence or effect upon the rights of the newspapers and since “the effect and consequence of the impugned policy upon the newspapers” was direct control and restriction of growth and circulation of newspapers, the newsprint policy infringed freedom of speech and expression and was hence violative of Article 19(l)(a). The pith and substance theory was thus negatived in the clearest term and the test applied was as to what is the direct and inevitable consequence or effect of the impugned State action on the fundamental right of the petitioner. It is possible that in a given case the pith and substance of the State action may deal with a particular fundamental right but its direct and inevitable effect may be on another fundamental right and in that case, the State action would have to meet the challenge of the latter fundamental right. The pith and substance doctrine looks only at the object and subject- matter of the State action, but in testing the validity of the State action with reference to fundamental rights, what the Court must consider is the direct and inevitable consequence of the State action. Otherwise, the protection of the fundamental rights would be subtly but surely eroded.
20. It may be recalled that the test formulated in R.C. Cooper case merely refers to ‘direct operation’ or ‘direct consequence and effect’ of the State action on the fundamental right of the petitioner and does not use the word ‘inevitable’ in this connection. But there can be no doubt, on a reading of the relevant observations of Shah, J., that such was the test really intended to be laid down by the Court in that case. If the test were merely of direct or indirect effect, it would be an open-ended concept and in the absence of operational criteria for judging ‘directness’, it would give the Court an unquantifiable discretion to decide whether in a given case a consequence or effect is direct or not. Some other concept-vehicle would be needed to quantify the extent of directness or indirectness in order to apply the test. And that is supplied by the criterion of ‘inevitable’ consequence or effect adumbrated in the Express Newspapers’ case. This criterion helps to quantify the extent of directness necessary to constitute infringement of a fundamental right. Now, if the effect of State action on fundamental right is direct and inevitable, then a fortiori it must be presumed to have been intended by the authority taking the action and hence this doctrine of direct and inevitable effect has been described by some jurists as the doctrine of intended and real effect. This is the test which must be applied for the purpose of determining whether Section 10(3)(c) or the impugned order made under it is violative of Article 19(l)(a) or (g).
