maneka gandhi

Equivalent citations: 1978 AIR 597, 1978 SCR (2) 621

Bench: Beg, M Hameedullah

MANEKA GANDHI

-PETITIONER

Vs.

UNION OF INDIA

-RESPONDENT

DATE OF JUDGMENT:- 25/01/1978

BENCH:

BEG, M. HAMEEDULLAH (CJ)

BENCH:

BEG, M. HAMEEDULLAH (CJ)

CHANDRACHUD, Y.V.

BHAGWATI, P.N.

KRISHNAIYER, V.R.

UNTWALIA, N.L.

FAZALALI, SYED MURTAZA

KAILASAM, P.S.

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CITATION:

1978 AIR 597 1978 SCR (2) 621

1978 SCC (1) 248

CITATOR INFO :

R 1978 SC1514 (12);

R 1979 SC1360 (2,5);

E 1980 SC 470 (2,10)

RF 1981 SC 487 (16)

R 1982 SC 710 (63)

R 1983 SC 75 (7)

RF 1984 SC1361 (19)

RF 1985 SC 231 (2)

R 1986 SC 180 (39)

RF 1988 SC 157 (9)

F 1989 SC1038 (4)

R 1990 SC 334 (104)

RF 1991 SC 564 (4)

RF 1992 SC 1 (133)

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ACT:

Constitution of India Articles 14, 19 (1) (a) and Article 21

Passports Act, 1967-Ss. 3,5,6,10(3)(c), 10(5)

Principles of Natural Justice

Legal Maxim:-

audi alteram partem :- It embodies the concept in Criminal Law that no

person should be condemned unheard; it is akin to DUE PROCESS. The notion

that an individual, whose life, liberty, or property are in legal jeopardy, has

the right to confront the evidence against him or her in a fair hearing is one

of the fundamental principles of Constitutional Law in the United States and

England.

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http://legal-dictionary.thefreedictionary.com/Constitutional+Law

http://legal-dictionary.thefreedictionary.com/Criminal+Law

FACTS OF THE CASE:-

On July 04, 1977 Smt. Maneka Gandhi, received a letter from a Regional

Passport Officer, Delhi intimating her to surrender the passport (No. K-

869668) within seven days from the date of receipt of the letter, as it was

decided by the Government of India to impound her passport under

Section 10 (3) (c) of the Passport Act 1967 in “public interest”1.

The Petitioner immediately send a letter to Regional Passport Officer

asking a reason and requesting him to provide a copy of the ‘a statement

of reasons’ for making the order.

On the reply, it was sent by the Ministry of External Affairs, Government

of India, on July 06, 1977 stating that Government has decided to

impound the passport

o “in the interest of the general public” and

o Not to hand over her a copy of the statement of reasons.

So, the Petitioner filled the petition.

1 A.K. Gopalan v. State of Madras 1950 SC

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ISSUES OF THE CASE:-

In the light of above Facts the issues raised in the case are as follows:

1. Is Section 10(3) (c) of Indian Passport Act,1967, violates

of the Article 14 of the Constitution of India

2. Is Section 10(3) (c) of Indian Passport Act,1967, violates

of the Article 19(a) or (g) of the Constitution of India

3. Is the right to go abroad by Article 19(a) or (g)of the

Indian Constitution

4. Is Freedom of Speech and Expression confined to the

territory of India

5. Whether the impugned order is intra vires Section 10(3)

(c) of the Indian Passport Act, 1967

6. Is the impugned order Constitutionally Valid

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ARGUMENT ADVANCED:-

1. Is Section 10(3) (c) of Indian Passport Act,1967, violates of the

Article 14 of the Constitution of India

Under Section 10(3) (c) of the Passport Act, the Passport

Authority impounded the passport of the petitioner “in the

interest of the general public”.

Thus, it confers unguided and unfettered power to the Passport

Authority

It is violative of the equality clause contained in Article 14

Article 21 though framed as to appear as a shield

operating negatively against executive encroachment

over something covered by that hield, is the legal

recognition of both the protection or the shield as

well as of what it pro- tects which lies beneath that

shield23

Respondent Argues:-

The words “in the interest of the general public” have a clearly

well defined meaning.

Section 10(3) (c) is not wider than the constitutional provision in

Article 19(5) of the constitution.

2 A.K. Gopalan v. State of Madras, [1950] SCR 88 3 Jabalpur v. S. S. Shukla [1976] Suppl. SCR 172 @ 327 referred to.

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http://indiankanoon.org/doc/1735815/

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.

The power is exercised by the Central Government itself. So, it

can safely be assumed that the Central Government will exercise

the power in a reasonable and responsible manner.

2. Is Section 10(3) (c) of Indian Passport Act,1967, violates of the

article 19(1)(a) or (g) of Indian Constitution

Article19(1) All citizens have the right of-

a) to freedom of speech and expression;

g) to practice any profession, or to carry on any Occupation,

trade or business

The right, which is sought to be restricted by Section 10(3) (c)

and the order, is the right to go abroad and that is not named as

a fundamental right.

But the argument of the petitioner was that the right to go

abroad is an integral part of the freedom of speech and

expression and whenever State action, be it law or executive

fiat, restricts or interferes with the right to go abroad, it

necessarily involves curtailment of freedom of speech and

expression.

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The right of travel and to go outside the country is included in

the fight to personal liberty4

Respondent Argues:-

The right to go abroad could not possibly be comprehended

within freedom of speech and expression, because the right of

free speech and expression guaranteed under Article 19(1) (a)

was exercisable only within the territory of India and the

guarantee of its exercise did not extend the guarantee of its

exercise did not extend outside the country and hence State

action restricting or preventing exercises of the right to go

abroad could not be said to be violative of freedom of speech

and expression.

3. Is the right to go abroad by Article 19(a) or (g)of the Indian

Constitution

The Union of India challenged that it was the basic propose of

the Constitution that the fundamental rights guaranteed by it

were available only within the territory of India, for it could

never have been the intention of constitution makers to confer

rights which authority of the state could not enforce.

Arguments of the Petitioner:-

These rights were conceived by the Constitution makers not in

a narrow limited since but in their widest sweep. For the aim

and objective was to build a new social order where man will

4 Kharak Singh v. State of Up &Ors.1964 [1] SCR 332

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not be a mere plaything in the hands of the State or a few

privileged persons but there will be full scope and opportunity

for him to achieve the maximum development of his

personality and the dignity of the individual will be fully

assured.

Could the constitution makers have intended that a citizen

should have this freedom in India not outside?

Freedom of speech and expression carries with it the right to

gather information as also to speak and express oneself at

home and abroad and to exchange thoughts and ideas with

others not only in India but also outside.

The words “in the territory of India” could have been added at

the end of Article 19(1) (a). But it was deliberately refrained

from using any words of limitation.

While the constitutional debate was going on, the UDHR was

adopted and most of the fundamental rights which is included

in part III were recognized and adopted by the U.N. as the

inalienable rights of man in UDHR.

Article 13 of the UDHR declared that “every one has the right

to freedom of opinion and expression; this right includes

freedom to hold opinions without interference and to seek,

receive and import information and ideas….”

This was the glorious declaration of the fundamental freedom

of speech and expression- noble in conception and universal

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in scope- which was before them when the constitution makers

enacted Article 19(1) (a).

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4. Is Freedom of Speech and Expression confined to the territory

of India

The right of free speech and expression and the right to

profession can have meaningful content and its exercise can

be effectively only if the right to travel abroad is ensured and

without it the former rights would be limited by geographical

constraints and restrains.

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5. Whether the impugned order is intra vires Section 10(3) (c) of

the Indian Passport Act, 1967

The respondent claims the order was according to the stated

Section but the Petitioner claims that the order was violating

the section, because according to the Section Authority should

give the reason. But the respondent hadn’t.

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6. Is the impugned order Constitutionally Valid

The gross violation of the natural justice embodied in the

maxim audi alteram partem.

Therefore, Null and Void.

It would be entirely for the Commission of Inquiry to decided

whether her presence is necessary or not. But the impugned

order was on the basis of a mere opinion by the Central

Government that the Petitioner likely to be required in

connection with the proceeding before the Commission of

inquiry was, in the circumstance, clearly unreasonable.

It is also violative of the Article 19(2) (6)

o (The tests of validity of restrictions imposed upon the

rights covered by Article 19(1) will be found in clause

(2) to (6) of Article 19.)

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JUDGEMENT:-

(1) To the extent to which section 10(3) (c) of the Passport Act,

1967 authorities to passport authority to impound a passport “in

the interest of the general public”, it violative of Article 14 of

the Constitution since it confers vague and undefined power

on the passport authority;

(2) Section 10(3) (c) is void as conferring an arbitrary power

since it does not provide for a hearing to the holder of the

passport before the passport is impounded;

(3) Section 10(3) (c) is volative of Article 21 of the Constitution

since it does not prescribe procedure within the meaning of that

article and the procedure practiced is worst.

(4) Section 10(3) (c) is against Aricle 19(1) (a) and 19(1) (g)

since it permits restrictions to be imposed on the rights

guaranteed by these articles under Articles 19(2) and 19(6).

A new Doctrine of Post Decisional Theory was evolved.

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CRITICAL EVALUATION:-

In this case the Hon’ble court interpreted different Articles of

the Constitution very brilliantly.

But the post decisional doctrine, which was given in this case,

I think, is not good.

A person should be given the Chance of defending himself,

before the decision. And in this case the petitioner should be

compensated.

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CASES REFERRED:-

State of Orissa v. Dr. Binapani Dei 1967 SC

R.C.Cooper v. UOI 1970 SC

Kharak Singh v. State of U.P. 1962 SC

A.K. Gopalan v. State of Madras 1950 SC

Haradhan Saha v. State of WB 1974 SC

S.N. Sarkar v. WB 1973SC

Jabalpur v. S. Shukla 1976 SC

I.C. Golaknath v. State of Punjab 1967 SC

BIBLIOGRAPHY:-

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WWW.google.com/Manekagandhicase

www.india nkanoon.org/doc/1766147/

www.govern india .org/wiki/ Maneka _ Gandhi _ vs _ Union_of_India

Takwani, C.K., “Lectures on Administrative Law”, Eastern Book

Company, Edn. 4th ,2010.

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http://WWW.google.com/Manekagandhicase

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