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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.
Institute of Law Page 1
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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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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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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