The Hon’ble Supreme Court of India famously in Maneka Gandhi Vs. Union of India (1978) 1 SCC 248, has held that though the right to go abroad is not a fundamental right, the denial of the right to go abroad may, in truth and in effect, restrict freedom of speech and expression or freedom to carry on a profession so as to contravene Article 19(1)(a) or 19(1)(g). in such a case, refusal or impounding of passport would be invalid unless it is justified under Article 19(2) or Article 19(6), as the case may be. In short, the Supreme Court held that each and every citizen of this country has the right to travel abroad but the same is not a fundamental right and comes with certain conditions.

The Majority Constitution bench of the Hon’ble Supreme Court earlier in Satwant Singh Sawhney vs. D. Ramarathnam, Assistant Passport Officer, New Delhi & Ors. (AIR 1967 SC 1836) held that a right to travel is a Fundamental right under Article 21 of Indian Constitution and the government has no right to refuse a passport to a person who has applied for the same. However, M. Hidayatullah, Justice differed from the view of the Majority bench and held that in any event, there Is no absolute right to demand a passport because that is not a right to personal liberty even in the Blackstonian sense. The passport being a political document, is one which the state may choose to giver or to withhold. M. Hidayatullah, Justice further held that the better view in our country is that a person is ordinarily entitled to a passport unless, for reasons which can be established to the satisfaction of the Court, the passport can be validly refused to him. There is no doubt a fundamental right to, equality in the matter of grant of passports but there is no fundamental right to travel abroad or to the grant of a passport.

Following the principles laid down in the Satwant Singh Sawhney Judgement, the parliament of India promulgated the Passport Act, 1967 (‘Act’) with the aim “for the issue of passports and travel documents, to regulate the departure from India of citizens of India and for other persons and for matters incidental or ancillary thereto.” with retrospective effect nullifying/ replacing the British Passport Act and the Passport Act, 1920. The said act lays down the procedure of issuance of passport by the government of India, refusal of passport, renewal of passport among others.

Yet, despite the Act coming into force the controversies did not stop there. Finally, the Hon’ble Supreme Court of India had dwelled into the constitutionality of the Act, more particularly constitutionality of Section 10(3)(c) of the act. As discussed above, the Hon’ble Supreme Court upheld the constitutional validity of Section 10(3)(c), yet it also held that ‘personal liberty’ within the meaning of Article 21 of the Constitution of India, 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. However, the controversy still remains whether issuance of a passport is a violation of the citizen’s fundamental right or not?

The Hon’ble High Court of Delhi in Sh. Avikash vs. Union of India in W.P.(C) 5141/2013 (2014 SCC DEL 3483) vide order dated 07.07.2014 relying upon the decision of the Hon’ble Supreme Court Judgment in Maneka Gandhi matter held that this court is of the view that every citizen has a Fundamental Right to travel abroad and to have a passport issued in his name. Justice Manmohan also held that this court I of the view that issuing a passport to the petitioner would amount to violation of his Fundamental Right.

However, the right to hold a passport or in the alternative to travel abroad is not a absolute right and is curtailed with certain restrictions are imposed under Section 6 of the Act, which prescribes certain restrictions in case criminal proceedings are pending against the Applicant, In particular under Section 6(2)(f) of the Act. At this juncture, it is relevant to usefully extract the said section as hereunder:

6(2)(f): That proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India.

So, basically Section 6(2)(f) states that the state/ government/ authority empowered to issue passport to the citizens of India, can refuse to issue the same, if there are any criminal proceedings pending against the Applicant thereby curtailing the right of the Applicant to travel abroad.

However, there is an exception to Section 6(2)(f) of the Act and the same is contained under the Gazette notification dated 25.10.1993 bearing No. G.S.R. 570(E) (‘Notification’) and the same is reproduced below:

G.S.R.570(E) – In exercise of the powers conferred by clause (a) of Section 22 of the Passports Act 1967 (15 of 1967) ………

“being of the opinion that it is necessary in public interest to do so, hereby exempts citizens of India against whom proceedings in respect of an offence alleged to have been committed by them are pending before a criminal court in India and who produce orders from the court concerned permitting them to depart from India, from the operation of the provisions of Clause (f) of sub-section (2) of Section 6 of the said Act”

A bare perusal of the Notification clearly stipulates the fact that even if criminal proceedings are pending against any person, still he can be issued a passport and be allowed to travel abroad, if the applicant fulfils the conditions envisaged under the Notification. This fact has been established by various courts over the years by different courts all over the country. However, there still remains a grey area wherein if the proceedings have been stayed by any Higher Authority/ Courts then in that case what will be the remedy for the applicant? As the applicant is unable to approach the Lower/ Trial wherein the criminal proceedings are pending as the proceedings have been stayed by the Higher Authority/ Courts and further the applicant cannot approach the Higher Authority/ Court as per the Notification permission to travel abroad ought to be given by the court before which the criminal proceedings are pending. Now this is a very peculiar situation and one which warrants either Judicial or Administrative intervention.

Further, The Hon’ble High Court of Madras in W.P. No. 5207 of 2017 titled as Raviraj vs. The Regional Passport Officer vide order 18.04.2017 set aside the order dated 09.09.2016 wherein the Regional passport officer declined to renew the passport of the Petitioner on the ground that criminal case has been registered against the petitioner. Justice M. Duraiswamy set aside the order dated 09.09.2016 of the Regional Passport Officer and directed the respondent to renew the passport of the petitioner within a period of six weeks.

The Hon’ble High Court of Madras in W.P. No. 29902 of 2018 titled as Durai Murugan vs. The Regional Passport Officer vide order 06.12.2018 relying upon the judgement of the Hon’ble Supreme Court of India in Satwant Singh Sawhney which held that travelling to a foreign country is also a fundamental right and refusal to issue passport or withdrawal of the same would certainly violate Articles 14 & 21 of the Constitution of India, held that the petitioner is seeking to travel, inter alia, to undergo medical supervisory treatment at Singapore. In the light of the above facts coupled with legal position, the impugned rejection of the petitioner’s passport application cannot be sustained and it calls for interference from this Court. This writ Petition is allowed and the impugned rejection order dated 09.11.2018 is set aside.

The Hon’ble High Court of Delhi in Rajiv Chaturvedi vs Union of India & Ors. in W.P. (C) 12136 of 2018 vide order dated 13.05.2019 in a case where the petitioner was aggrieved with the denial of passport facilities by the Regional Passport Office as he had been charged with offences under Section 420 of IPC, 1860 along with section 13 of the Prevention of Corruption Act, 1988 relying upon the Notification held that as the concerned court in which the criminal proceedings were pending against the petitioner had already permitted the petitioner to obtain the renewal of his passport for a period of two years, then the Regional Passport Authority ought to have renewed the passport of the petitioner. Justice Vibhu Bakhru held that, the provisions of Section 6(2)(f) of the Act cannot be read to deny passport facilities to the petitioner, as he has obtained the necessary permission from the concerned court. Thereby, the Hon’ble High Court directed to process the renewal of the passport of the petitioner for a period of two years.

Thus, it may be safely presumed that any Citizen of India is entitled to hold a passport and to travel abroad as the same is the fundamental right of the citizen of our country, but the same cannot be construed to be an absolute right as the same is curtailed by some restrictions. The ideology behind these restrictions is that the holder of a valid passport will represent our country in a foreign country and if the citizen of our country is likely to indulge in activities that are contrary to the belief of the nation such as being prejudicial to the sovereignty and integrity of India, his presence is likely to, be detrimental to the security of India, 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 or if there are pending criminal proceedings against any person. The same restrictions are imposed to protect the integrity and sovereignty of our Country. However, there are conditions under which even when criminal proceedings against any person, even then passport may be issued by the Regional Passport Office as the same has been laid down by various Hon’ble High Courts of the Country. But, it is the need of the hour that the Regional Passport Office on its own grants such permission, rather than wait for the order of the Hon’ble High Court in doing so wasting crucial time of both the Courts as well as that of the Applicant/ Citizen of India. Also, the entire Jurisprudence of Passport Act is silent on the aspect of a Medical Passport wherein a Passport maybe required by a person against whom a criminal case is pending in any of the courts in our country. So, if the Accused/ Applicant is in dire need of a Passport in order to travel abroad owing to his medical condition then as per the prevailing law, the Applicant will not be allowed to travel abroad and instead he should wait a number of months or years in order to get his passport through Courts/ Passport Office? Should there not be any mechanism in our legislature to allow the Accused/ Applicant to travel abroad in case of a medical emergency as is available in various countries all over the world?