Right to Passport Extends to Under Trials Also

RIGHT TO HAVE PASSPORT EXTENDS TO UNDERTRIALS ALSO

Right to Passport

During pendency of a criminal case the accused is presumed to be innocent until he is convicted, however passport authorities seldom share such liberal views and often continue to deny the right of citizens to obtain a passport during the undertrial period.

The Constitution guarantees every Citizen the fundamental right to have a passport and the legislation has carefully drafted provisions of the Passport Act enumerating the limited provisions under which a Citizen can be denied a passport. Therefore, the right to have a passport can only be curtailed in limited circumstances that can be justified under the Passport Act.

CASE LAW BY SINGH LAWYERS

I) Musa Khan Vs. U.O.I (2010) – Navkiran Singh for the Petitioner

The Punjab and Haryana High Court has considered a matter in Musa Khan Vs. U.O.I in CWP No. 8222 of 2010 dated 24.8.2010. The issuance Passport had been denied to the Petitioner. In that case the Court has directed that appropriate recommendation from the said police should be made for issuance of a passport and that the passport would remain in custody with the jurisdictional Magistrate and appropriate orders could be made of any visit that could be undertaken with the permission of the Court concerned.

 

II) Ranjit Singh v. Union of India (2011)  – Navkiran Singh for the Petitioner

The issuance Passport had been denied to the Petitioner. The Punjab and Haryana High Court has considered a matter in Ranjit Singh v. Union of India, CWP-1908-2011 decided on 01.09.2011 (P&H H.C.) permitting the issuance of the passport to under trial. The detailed judgement is attached below for reference.

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III)  Hapreet Singh @ Perry v. Union of India (2017) – Navkiran Singh for the Petitioner

The Punjab and Haryana High Court has considered a matter in Hapreet Singh @ Perry v. Union of India, CWP-4631-2016 decided on February 20, 2017. The issuance Passport had been denied to the Petitioner. The case was argued by Mr. Navkiran Singh, it was observed by Punjab and Haryana High Court in CWP-4631-2016 vide order dated 20.02.2017 that the petitioner was named in FIR by his close family member but was declared innocent in challan (report under section 173 Crpc). During this time, he applied for passport but Regional Passport Officer withheld the same as he sought for “copy of the court judgment with explanation”. Petitioner tried to explain the authorities that he was declared innocent in challan (report under section 173 Cr.P.C) but sometimes authorities act arbitrarily and the Petitioner had to approach the Court by way of Writ petition in the Hon’ble High Court through his Counsel Mr. Navkiran Singh.

The Punjab and Haryana High Court after considering judgments of “Satwant Singh v. Assistant Passport Officer, Delhi” (1967) 3 SCR 525, “Maneka Gandhi Vs. Union of India” reported in 1978 AIR (SC) page 597, Ranjit Singh v. Union of India, CWP-1908-2011 decided on 0109.2011 (P&H H.C.) and section 6 of the Passports Act, 1967 as has been argued by Mr. Navkiran Singh ordered that

“passport will be issued to the petitioner and will be dispatched to the judicial magistrate, Ist class, Hoshiarpur where the criminal case is pending against the petitioner. The said passport shall be released to the satisfaction of the trial Magistrate”.

The detailed judgement is attached below for reference.

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CONSTITUTION

Right to have passport is part of right to life and liberty as enshrined under article 21 of the Indian Constitution as it was held in the case of

Maneka Gandhi Vs. Union of India” reported in 1978 AIR (SC) page 597 Hon’ble Supreme Court of India held in below mentioned paras:-

para 114. To sum up, personal liberty makes for the worth of the human person. Travel makes liberty worthwhile. Life is a terrestrial opportunity for unfolding personality, rising to higher states, moving to fresh woods and reaching out to reality which makes our earthly journey a true fulfillment – not a tale told by an idiot full of sound and fury signifying nothing, but a fine frenzy rolling between heaven and earth. The spirit of Man is at the root of Article 21, Absent, liberty, other freedoms are frozen.

para 116.To conclude this Chapter of the discussion on the concept of personal liberty, as a sweeping supplement to the specific treatment by brother Bhagwati J., the Jurists’ Conference in Bangalore, concluded in 1969, made a sound statement of the Indian Law subject, of course, to savings and exceptions carved out of the generality of that conclusion.

Freedom of movement of the individual within or in leaving his own country, in traveling to other countries and in entering his own country is a vital human liberty, whether such movement is for the purpose of recreation education, trade or employment, or to escape from an environment in which his other liberties are suppressed or threatened. Moreover, in an inter-dependent world requiring for its future peace and progress an over-growing measure of international understanding, it is desirable to facilitate individual contacts between peoples and to remove all unjustifiable restraints on their movement which may hamper such contacts.

para 210.The decisions of the Supreme Court wherein the right of person to travel abroad has been dealt with may be noticed. In Satwant Singh v. Assistant Passport Officer, Delhi, (1967)3 SCR 525 the Court held that though a passport was not required for leaving, for practical purposes no one can leave or enter into India without a passport. Therefore, a passport is essential for leaving and entering India. The Court held the right to travel is part of personal liberty and a person could not be deprived of it except according to the procedure laid down by law. The view taken by the majority was that the expression ‘personal liberty’ in Article 21 only excludes the ingredients of liberty enshrined in Article 19 of the Constitution and the expression ‘personal liberty’ would take in the right to travel abroad. This right to travel abroad is not absolute and is liable to be restricted according to the procedure established by law. The decision has made it clear that ‘personal liberty’ is not one of the rights secured under Article 19 and, therefore, liable to be restricted by the legislature according to the procedure established by law. The right of an American citizen to travel is recognised. In Kent v. Dulles, (1958) 357 US 116 (at p. 127), the Court observed that the right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment. “The freedom of movement across the frontiers in either direction, and inside frontiers as well, is a part of our heritage. Travel abroad, like travel within the country…… may be as close to the heart of the individual as the choice of what he eats. or wears, or reads. Freedom of movement is basic in our scheme of values.” In a subsequent decision – Zemel v. Rusk (1966) 381 US 1 at p. 14 the Court sustained against due process attack the Government’s refusal to issue passports for travel to Cuba because the refusal was grounded on foreign policy considerations affecting all citizens. ‘The requirements of due process are a function not only of the extent of the governmental restriction imposed, but also of the extent of the necessity for the restriction.”

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LEGISLATION

Section 6 of Passports Act, 1967 provides the following circumstances under which a citizen can be denied the passport:

  1. Refusal of passports, travel documents. etc. – (1) Subject to the other provisions of this Act, the passport authority shall refuse  to make an endorsement for visiting any foreign country under clause (b) or clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and  no other ground, namely: –

(a)      that the applicant may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India:

(b)      that the presence of the applicant in such country may, or is likely to, be detrimental to the security of India;

(c)      that the presence of the applicant in such country may, or is likely to, prejudice the friendly relations of India with that or any other country,

(d)      that in the opinion of the Central Government the presence of the applicant in such country is not in the public interest.  

(2) Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and on no other ground, namely: –

(a)      that the applicant is not a citizen of India.,

(b)      that the applicant may, or is likely to, engage outside India in activities prejudicial to the sovereignty and integrity of India.,

(c)      that the departure of the applicant from India may, or is likely to, be detrimental to the security of India;

(d)      that the presence of the applicant outside India may, or is likely to, prejudice the friendly relations of India with any foreign country;

(e)      that the applicant has, at any time during the period of five years immediately preceding the date of his application, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years;

(f)       that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India;

(g)      that a warrant or summons for the appearance, or a warrant for the arrest, of the applicant has been issued by a court under any law for the time being in force or that an order prohibiting the departure from India of the applicant has been made by any such court;

(h)      that the applicant has been repatriated and has not reimbursed the expenditure incurred in connection with such repatriation;

(i)       that in the opinion of the Central Government the issue of a passport or travel document to the applicant will not be in the public interest.

 

 

 

 

 

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