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Introduction
A seven judge bench of the Supreme Court of India gave the landmark judgement of Maneka
Gandhi v. Union of India1 on 25th January 1978 deciding upon the scope of Article 21 of the
Constitution of India among other important things. Article 21 of the Constitution says, “No
person shall be deprived of his life or personal liberty except according to procedure
established by law.”
The concept of personal liberty earlier came up for consideration in the case of A.K. Gopalan
Versus State of Madras2. The majority bench held that the word law under Article 21 doesn’t
necessarily be in conformity with the principles of natural justice. But Justice Fazal Ali
dissented with the majority by holding that the right to life under Article 21 does constitute
Principles of Natural Justice and the courts should check that any procedure established by
law does not suffer with the problem of unreasonableness and arbitrariness. The spirit of
Justice Fazal Ali’s argument was that the procedure should be just, fair and reasonable. It was
Justice Fazal Ali’s opinion in the case that paved the way for a liberal approach of the
interpretation of Article 21. The court in Maneka Gandhi adopted the dissenting view of
Justice Fazal Ali in A.K. Gopalan v. State of Madras. Therefore, the court held that the while
the procedure established by law should be reasonable, just and fair it shall be free from any
unreasonableness and arbitrariness. So, The Supreme Court of India in Maneka Gandhi’s case
not only overruled A.K. Gopalan judgement but also expanded the scope of “personal
liberty” considerably.
Facts of the Case
Maneka Gandhi received a letter from the Regional Passport Office, Delhi, asking her to
submit her passport within seven days from the day on which she had received such letter, i.e.
before 11th July 1977. The letter stated that it had been the decision of the Government of
India to impound her passport under Section 10(3)(c) of the Passport Act 1967. Public
Interest was the reason given to her for such action but any further detail was not provided.
Maneka Gandhi immediately sent a letter to the Regional Passport Officer, inquiring about
the grounds on which her passport had been impounded. She also requested him to provide a
copy of the ‘Statement of Reasons’ for making of such an order. The reply sent by the
Ministry of External Affairs was that it was the decision of the Government of India to
impound the passport in the interest of the general public. Also, there were orders to not issue
her a copy of the Statement of Reasons. Maneka Gandhi thus filed a petition under Article 32
of the Constitution of India challenging the order as violating her personal liberty provided by
Article 21 of the Constitution of India as it was held in the case of Satwant Singh Sawhney
Versus D. Ramarathnam3 that right to travel abroad is well within the ambit of Article 21.
1
1978 AIR 597.
1950 AIR 27.
3
1967 AIR 1836.
2
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Issues Involved
1. Scope of the expression “procedure established by law”.
2. Whether the impugned order of the Regional passport officer is in contravention of
the principle of natural justice?
3. Whether there is a nexus among Articles 14, 19 and 21?
4. Whether right to go abroad comes within the ambit of Article 21?
5. Whether Section 10(3)(c) of the Passport Act is violative of Articles 14, 19(1)(a) and
21 of the Constitution?
Arguments Advanced
Petitioner’s Arguments
1. The expression “procedure established by law” used in Article 21 of the Constitution
must be free from any arbitrariness. Even though the term used is not “due process of
law” as used in the American Constitution, the legislature cannot make any law which
is not just, fair and reasonable. The purpose behind such restriction upon the right to
life and liberty is to ensure that a just, fair and reasonable law is not made impotent
and failure of justice can be avoided.
2. The order which was issued by the Passport Authority is in violation of principles of
natural justice as it does not provide any opportunity to the person to present his case
and argue against such order. Even though principles of natural justice have not been
incorporated in the Constitution as such but provisions like Article 14 recognize some
of them.
3. The provisions of Article 14, 19 and 21 are to be read in synchronization and they are
not mutually exclusive. These provisions in themselves, though not explicitly,
constitute principles of natural justice. A combined reading of the three provisions
will give effect to the spirit of the constitution and constitution makers.
4. The right to travel abroad forms part of the Right to Life and Liberty within Article 21
of the Constitution and such a right cannot be infringed except according to the
procedure established by law. The petitioner also contended that the Passport Act,
1967 does not prescribe a procedure for impounding or revoking a passport and thus
such an order under the Act was in fact unreasonable and arbitrary.
5. Section 10(3)(c) of the Passport Act, 1967 which empowers the passport authorities to
revoke or impound a passport “if the passport authority deems it necessary so to do in
the interests of the sovereignty and integrity of India, the security of India, friendly
relations of India with any foreign country, or in the interests of the general public” is
in violation of Articles 14, 19 and 21 of the Constitution of India.
The petitioner argued that the provision is violative of the Articles as it does not make
it compulsory to provide the reasons of impounding or revoking the passport which is
embedded in Article 14 which says that there shall be Rule of Law where law means a
just, fair and reasonable law instead of an arbitrary or unreasonable law. The
petitioner also mentioned that Article 19(1)(a) was also violated as it included the
right to travel abroad to express her opinion as part of her occupation as a journalist.
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While the right to travel abroad is included under Article 21 of the Constitution of
India but the petitioner’s passport was impounded which means that her right was
infringed.
6. The petitioner contended that the Central Government impounding her passport to
ensure her presence at an enquiry being conducted by Justice J.C. Shah was an act
which the Central Government was not authorized to do as the committee was the
rightful authority which could take such action. As the committee had not made any
such recommendation, it was arbitrary on the part of the Central Government to
impound her passport without even giving any explanation for that.
Respondent’s Arguments
1. Article 21 of the Constitution of India provides for Right to Life and Personal Liberty but
it is subject to the procedure established by law and it is the only condition which has
been imposed upon the right. Any additional requirement as to the procedure being just,
fair and reasonable cannot be added as it is not required as has been recognized under the
case of A.K. Gopalan Versus State of Madras4. It was also argued that the framers of the
constitution deliberately used the expression “procedure established by law” instead of
“the due process of law” which makes it clear that the constitution makers intended what
they mentioned in the constitution and the mind and spirit of the framers must be
protected.
2. Principles of Natural Justice are vague and ambiguous which is the reason that they have
not been incorporated in the Constitution as such which implies that a person cannot
assume the protection of principles of natural justice. The Constitution does not provide
for the principle of audi altrem partem so the person need not be given the right to argue
against the order of the passport authority.
3. Articles 14, 19 and 21 have different spheres of operations. Right to life and liberty is
very wide and usually contains Articles 14 and 19 but any law which is termed as
unconstitutional to Article 21 must be actually in direct violation of Article 14 and 19 as
well.
4. It was apprehended by the Central Government that impounding petitioner’s passport
was necessary to ensure her presence during an inquiry being conducted at the time of
such action by the passport authority. The Central Government though had no direction
from the commission headed by Justice J.C. Shah that was conducting such an enquiry. It
was contended that as the enquiry commission was set up by the Central Government
itself, it was competent enough to impound the petitioner’s passport and ensure her
presence for the timely resolution of the matter before the enquiry commission.
The main underlying contention of the respondents was based upon the Supreme Court
judgement in the case of A.K. Gopalan Versus State of Madras5 in which it was held that
“procedure established by law” is something different from “due process of law” and a
narrow interpretation was given to the Right to life and personal liberty.
4
5
1950 AIR 27.
Ibid.
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Judgement
This landmark judgment came on 25th January 1978 and changed the landscape of the
Constitution of India. This judgment expanded the scope of Article 21 exponentially and this
judgment truly and really made India a welfare state as promised in the Preamble. The seven
judge bench gave a unanimous decision except some judges concurring on some points.
There were seven separate opinions in which the majority opinion was written by Justice
Bhagwati for himself, Untwalia and Fazal Ali JJ. while Chandrachud, Iyer and Beg (CJ)
wrote separate but concurring opinions.
Ratio Decidendi
1. It was held that Section 10(3)(c) of the Passport Act confers vague and undefined
power on the passport authorities and is violative of Article 14 of the Constitution
since it doesn’t provide for an opportunity for the aggrieved party to be heard. It was
also held violative of Article 21 since it does not affirm to the word “procedure” as
mentioned in the clause, and the present procedure performed was the worst possible
one. The Court, however, refrained from passing any formal answer on the matter,
and ruled that the passport would remain with the authorities till they deem fit.
Article 14 is absolutely against arbitrariness or vagueness of any sort as far as the
actions of the executive or legislature are concerned. Section 10(3)(c) of the Passports
Act confers unlimited powers on the passport authorities. Since it is vague in its
wordings, the application of such a provision has not been very clearly defined in the
Act. Thus, this leaves a lot of scope for the executive to interpret it in whichever way
they want, and hence get away with a lot of actions under the guise of varied
interpretation.
The provision also leads to arbitrariness in the actions of the executive. The
arbitrariness comes from the fact that it is completely in the hands of the passport
authorities to decide whether or not, and how to proceed in a particular case. The
words ‘deems it necessary’ give the passport authorities complete freedom to act in
whichever manner they want, and in whichever cases they want. Thus there is no
uniformity or reasonableness in the actions of the passport authorities, and their
actions could differ from case to case.
2. The audi alteram partem rule is one of the three principles of natural justice, and
forms an important part in defining the constitutionality and fairness of any
procedure. The literal translation of audi alteram partem is “hear the other side”. In a
layman’s language it basically means that both the sides should be given the
opportunity to present their case before a decision is formulated for the case. In the
present case, Maneka Gandhi was denied reasons for the impounding of her passport,
which is unfair since every person has the right to know the grounds on which any
executive action is being taken against him/her. Also, she was never given a chance to
present her own case before the authorities.
The principle of audi alteram partem requires that before the final order for the
impounding of her passport was passed, Maneka Gandhi should have been given a
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chance to approach the authorities and to bring to light her part of the story so that the
order for impounding of the passport would have been just. There is always the
possibility of arriving at a one sided conclusion when only one party has been heard
and the other is denied that opportunity. Thus to keep the orders completely objective
and free from bias, it is absolutely imperative that both parties to a situation must be
given a chance to put forward their side of the story.
3. Article 19(1)(a) of the Constitution talks about the freedom of speech and expression
guaranteed to all citizens of the country. Article 19(1)(g), on the other hand, talks
about freedom to carry out any trade and profession. Maneka Gandhi had alleged that
the order to impound her passport also violates these two rights of hers. She alleged
that the freedom of speech and expression also includes in its ambit the right to travel
abroad to express oneself among the people of other nations. Thus according to her,
the freedom of speech and expression also included the right to go abroad to mingle
with people, to carry out an exchange of ideas, to be able to converse with the people
of other nations, and thus to be able to freely speak and express oneself outside India
as well. Now since she had been denied the right to travel out of India due to the
impounding of her passport, she alleged that her right to freedom of speech and
expression had been violated. The same way, she said that since she was a journalist,
it was part of her profession to travel to different parts of the world, to cover news
issues. Thus by denying her the opportunity to travel abroad, the passport authorities
had violated her right of trade and profession.
It was held by the Court that even though the above mentioned contentions were
correct and that such an order would in fact amount to violations of Article 19(1)(a)
and 19(1)(g), there was nothing to prove that the petitioner was scheduled to travel on
an official tour at the time the impugned order was passed and her passport was
impounded. Neither was there anything to prove that she had some earnest need to
travel abroad towards realization of her right of expression under article 19(1). Thus
this argument was rejected and the order was not held to be violative of Articles
19(1)(a) and 19(1)(g).
However, the Court did go on to clarify that if at any point of time in the future she
was denied her passport from the government when she needed or wanted to travel
abroad to exercise either of the two rights under 19(1)(a) and 19(1)(g) and the
government denied such rights it would be considered to be an infringement of these
two fundamental rights.
4. In the case of Satwant Singh Sawhney Versus D. Ramarathnam6, the Supreme Court
held by a majority judgement 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. This decision was accepted by the Parliament and the infirmity pointed out by it
was set right by the enactment of the Passports Act, 1967.
6
1967 AIR 1836.
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Keeping in mind this right, Maneka Gandhi alleged that her right to travel abroad had
been violated by the passport authorities. Also, the clause talking about ‘procedure
established by law’ was contended in that the procedure adopted in this case was
arbitrary and unfair. Maneka Gandhi contested that the procedure in this particular
case was violative of the audi alteram partem rule; it was arbitrary in that she was
denied the statement of reasons for the impounding of her passport; and it was also
violative of her fundamental rights because she was being denied the right to travel
abroad under Article 21, without being given valid reasons for the same.
As far as the procedural discrepancy was concerned, the attorney for the government
accepted the fact that the actions had been arbitrary and hence she was given the
chance to put forward her contentions. Thus that anomaly was taken care of. As far as
the question of her fundamental rights was concerned, it was held that true her
fundamental right had been violated, but it was in the interest of the general public.
The Court has adopted a liberal interpretation of Article 21 in the case, and expanded
its ambit by leaps and bounds. However, the Court has refrained from outrightly
commenting on this issue in this particular case.
Obiter Dicta
1. The Court in the course of this case opined that the right to freedom of speech and
expression, as guaranteed to all the citizens of the country, was limitless in that it had
given to the citizens a vast number of rights irrespective of whether they were in India
or abroad. The Court held that if the Constitution makers had intended this right to be
bound by the territories of the country, then they would have expressly mentioned so
as they have done for various other rights, such as the right to settle down freely, or
the right to assemble freely. However, since no such words had been added at the end
of this provision, the Court felt that it was its duty to give it the widest interpretation
possible.
Also, supporting this view was the fact that the Universal Declaration of Human
Rights was adopted by the General Assembly of the United Nations on 10th
December, 1948 and most of the fundamental rights which we find included in Part
III were recognised and adopted by the United Nations as the inalienable rights of
man in the Universal Declaration of Human Rights. This further supported the view of
the Court in that even though Indian Courts may not have jurisdiction outside the
territory of India, but these rights as guaranteed by the Indian Constitution would still
be maintained since they were now fortified by the Universal Declaration of Human
Rights which was adopted by almost all the countries around the globe.
Giving this kind of an opinion was a landmark judgement and even though it may not
have the value of a precedent (since it is an obiter), Courts all over the country have
adopted this view of the Supreme Court, and used it in their judgements.
2. The Supreme Court in the present case had adopted the widest possible interpretation
of the right to life and personal liberty, guaranteed under Article 21 of the
Constitution. Bhagwati, J. observed:
“The expression ‘personal liberty’ in Article 21 is of widest amplitude and it covers a
variety of rights which go to constitute the personal liberty of man and some of them
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have raised to the status of distinct fundamental rights and given additional
protection under Article 19.”
Also, with respect to the relationship between Article 19 and Article 21, the Court
held that Article 21 is controlled by Article 19, i.e., it must satisfy the requirement of
Article 19. The Court observed: “The law must therefore now be 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 a law in so far as it abridges or
takes away any fundamental right under Article 19 would have to meet the challenges
of that Article.” Thus a law “depriving a person of ‘personal liberty’ has not only to
stand the test” of Article 21, but it must stand the test of Article 19 and Article 14 of
the Constitution as well.
Conclusion
The Maneka Gandhi judgment was a balanced judgment and is one of the best judgments that
Indian Supreme Court has ever given. The judgment’s greatest feature was the interlinking it
established between the provisions of Article 14, 19 and 21. By the virtue of this link the
court made these provisions inseparable and a single entity. Now any procedure to be valid
has to meet all the requirements mentioned under Article 14, 19 and 21. Therefore, it
expanded the scope of personal liberty exponentially and protected the constitutional and
fundamental right to life to a great extent.
The judgment while saved the citizens from unquestionable actions of the Executive, also
saved the sanctity of Parliamentary law when it did not strike down Section 10(3)(c) and
10(5) of Passport Act, 1967. The court also reminded the authorities to only rarely use the
prerogative of Section 10(5) so as to satisfy that their actions were rational and well thought.
The court held that Section 10(3)(c) and 10(5) is an administrative order therefore, open to
challenge on the grounds of mala fide, unreasonable, denial of natural justice and ultra vires.
The judgment’s importance can be seen today also because the way in which the bench
construed Article 21 and expanded its horizons has given way for the resolving of problems
left unsolved by the Parliament. It’s quite evident that this judgment has played an imperative
role in construing Right to Clean Air, Right to Clean Water, Right to Freedom from Noise
Pollution, Speedy Trial, Standard Education, Fair Trial, Legal Aid, Right to Livelihood, Right
to Food, Right to Medical Care, Right to Clean Environment etc., as a part of Right to Life &
Personal liberty mentioned under Article 21 of the Constitution of India.
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Critical Analysis
The court in commendable way overruled the regressive decision of A.K. Gopalan Versus
State of Madras. The court by delivering this judgment has served the common people. The
court unanimously came harshly upon the contention of the respondent when it contended
that the procedure established by law need not necessarily be just, fair and reasonable. The
respondent’s argument that the law is valid as long as it is not repealed by the legislature. The
court rightly rejected this faulty argument of the respondent and gave the Right to Life and
Personal Liberty a new expansive and liberal interpretation.
The court held that though the phrase used in Article 21 is “procedure established by law”
instead of “due process of law” however, the procedure must be free from arbitrariness and
irrationality. The court also managed to respect and protect the sanctity of the Constitution
makers by this black stain that the legislature was trying to portray. The procedure
established by law must satisfy certain requisites in the sense of being reasonable and just and
it cannot be arbitrary depriving the citizens the Fundamental rights.
The court also for once and for all rested the debate by holding that each Fundamental Rights
are not distinct from each other whereas they are mutually dependent on each other. In this
regard Justice Iyer has very well opined that no Article in the Constitution is an island in
itself. Bhagwati J. held that the procedural law has to meet the requirements of Articles 14
and 19 to be a valid law under Article 21.
Justice Iyer in the context of travelling abroad held that “Travel makes liberty worthwhile”
therefore no person can be deprived of his right to travel abroad.
The importance of Maneka Gandhi is limitless and the way the apex court grabbed the
opportunity to expand the horizons of Article 21 is commendable. The benefits that accrued
to Indian citizens can be very well understood by the aftermath of Maneka Gandhi when
courts begin to insert every possible socio-economic and cultural right in the scope of Article
21. The court in a catena of cases applying the ratio of this judgment have held Right to
Clean Air, Right to Clean Water, Right to Freedom from Noise Pollution, Speedy Trial, Legal
Aid, Right to Livelihood, Right to Food, Right to Medical Care, Right to Clean Environment
etc., as a part of Right to Life and Personal liberty mentioned under Article 21.
In all these above cases it is this judgment which has paved the way for the courts to interpret
Article 21 in a manner which is beneficial for the common people. The judiciary has through
this judgment installed a new weapon of fulfilling the objective set out in the Preamble in its
arsenal.