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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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. K869668) 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.

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.

 The Passport Authority is required to record in writing a brief

statement of reasons for impounding the passport and, save in
2

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

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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 Honble 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

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BIBLIOGRAPHY: WWW.google.com/Manekagandhicase  www.indiankanoon.org/doc/1766147/

 www.governindia.org/wiki/Maneka_Gandhi_vs_Union_of_India  Takwani, C.K., Lectures on Administrative Law, Eastern Book

Company, Edn. 4 th ,2010.

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