A G KAZI Vs. C V JETHWANI

JUDGEMENT

(1.) This appeal under the Letters Patent raises an important question as to the interpretation of Article 21 of the Constitution, and the question raised is whether the expression "personal liberty" occurring in the said Article includes the right to travel abroad. The second important question that arises is whether the refusal of a passport to the respondent by appellant No. 1 has resulted in the contravention of Articles 21 and 14 of the Constitution.

(2.) Facts giving rise to this appeal in brief are: It is not in dispute that the respondent is a citizen of India. According to him, he is a partner of a firm in Bombay which carries on business of Bankers. Exporters and Importers. He is also a partner of a firm doing business at Dubai in Persian Gulf, which carries on the business of Indent Agents and Importers, According to the respondent passports were granted to him during the period from October 1952 to October 1962 to enable him to make trips to Dubai and certain other ports in the Persian Gulf. The passport that had been granted,. expired on 28th October 1962. On 10th January 1963, the respondent applied to the Regional Passport Officer (second appellant before us) for the grant of a new passport for a period of three years. That application was rejected by the Assistant Passport Officer, (first appellant before us). There was certain correspondence between the respondent and appellants Nos. 1 and 2, but ultimately by a further letter of date 27th June 1963 he was informed that the passport authorities had nothing to add to their previous letter date 24th May 1963. The respondent then filed a writ petition under Article 226 of the Constitution for an appropriate writ or direction to quash the order refusing to grant him a passport and for a direction against the appellants requiring them to grant and issue to him a passport as applied for by him. The respondent founded his petition principally on three grounds. According to him, the refusal of the passport was violative of his fundamental rights conferred on him by Article 19 (1) (d) to (g). Article 21 and Article 14 of the Constitution. It is not necessary for us to state the facts pleaded by the respondent in support of his case under Article 19 (1) (d) to (g), inasmuch as it was conceded before the trial Court that there being a proclamation of Emergency under Art. 352, enforcement of the rights under Article 19 was suspended by reason of Article 358 of the Constitution. It is, therefore, necessary to refer only to the pleas raised by the respondent as regards his contention relating to Articles 21 and 14 of the Constitution. According to the respondent it is not possible for him to leave India without a passport. Government having issued instructions to the shipping companies and Airlines not to take on board passengers leaving India unless they possess a valid passport. It is therefore impossible for him to leave India without a valid passport. Secondly it is alleged that the passport is necessary for reentry into India, and on this ground also it is claimed that possession of a valid passport is adsolutely essential for going abroad both because without a passport no shipping company or an Airline would book a passage for him, and secondly because it would not be possible for him to return to his country. He further alleged that it was absolutely necessary for the purposes of his business to go to Dubai and to return to India as he had been doing for so many years. The right to travel abroad and return to India, according to the respondent, is a part of his "personal liberty" assured to him under Article 21 of the Constitution. He could be deprived of that liberty only "according to the procedure established by law" as provided in the said Article. There is no procedure prescribed by any law regulating the grant or refusal of a passport. The refusal of the passport has been arbitrary and thus violates the respondent's right under Article 21 of the Constitution. We would refer to he averments of the respondent relating to his contentions founded on the provisions of Article 14 later when we deal with them. We are proposing first to deal with his contentions relating to Article 21.

(3.) As regards the aforesaid contentions of the respondent, the reply is contained in the affidavit of the Regional Passport Officer, the second appellant thereto. He denied that it was absolutely necessary for the respondent in the interests of his business to have a passport or to go abroad or to return to India. According to him, the grant of a passport is within the absolute discretion of the Union of India and, when granted it is in the nature of a request to another State, requesting that State to give certain facilities and protection while the citizen of the Union of India is in the territory of the foreign State. There was no right in the respondent to have a passport issued to him and there was no statutory obligation on him (2nd appellant) or even on the Union of India to issue a passport to the respondent on an application made by him. The issuance of a passport is at the pleasure of the President of India, and he and appellant No. 1 act on the executive instructions received by them from the Union of India in regard to the grant or refusal of the passport. The Government of India by their letter of 1st May 1963 informed him that he passport facility should be refused to the respondent and that the respondent's name should be blacklisted for a period of two years. It is on account of these instructions that the passport was refused to the respondent.