Impounding of a Passport- A legal understanding

By

Sakshi Shairwal

Nipun Chandrakar

Article 21 of the Indian Constitution is recognized as an inexhaustible source of other rights; likewise, the right to travel abroad has been recognized as a fundamental right by the Supreme Court underneath this article. The primary building block of this right was set up by the Apex Court in Satwant Singh Sawhney v. Ramarathnam wherein the court observed that a person cannot be denied his right to travel under Article 21 except in accordance with the procedure established by law. Furthermore, this opinion of the court was expounded in the case of Maneka Gandhi v. Union of India wherein the court enunciated that the right to travel abroad comes within the purview of the personal liberty under article 21, and any deprivation to travel abroad must be backed by due process of law, thereby meaning that it should be in accordance with the procedure established by law which is just and fair.

However, it is pertinent to note that Section 10(3) of The Passports Act, 1967 establishes certain conditions under which a person’s passport can be impounded or revoked by the passport authorities:

A) If the holder of a passport or travel document is in wrongful possession.

B) If the passport was obtained by suppression or on the basis of wrongful information.

C) If it is necessary to protect the sovereignty, integrity, security, friendly relations or public order in India.

D) If the holder is convicted for an offence of not less than 2 years.

E) If the proceedings in respect of the offence are pending before the criminal court.

F) If there is a non-compliance of sub-section (1).ts are contravened.

G) If there is a non-compliance of sub-section (1).

H) If there is a warrant of summons for the appearance of the passport holder before the court, restricting him form traveling.

Only the Passport Authority of India has been granted with the power to impound the passport of any person as per the Act. But the question of impounding has also been deliberated by the courts and the Debts Recovery Tribunal because the offenders often seek to leave the country in order to evade the offence. The Code of Criminal Procedure authorizes the search and seizure of documents by the police in matters of suspicion but does not grant permission to anyone for impounding of a passport. Moreover, in Suresh Nanda v. Central Bureau of Investigation, the Apex Court opined that in accordance with the provisions of CrPC, the police has the power to seize a passport, but does not have the authority to impound it.

There are primarily two critical judgments of the Supreme Court of India that delve into the matter of impounding of passports in India. In the decision of Meneka Gandhi v. UOI, the Supreme Court consciously held that the Right to Travel Abroad is a fundamental right under article 21 of the Indian Constitution and denial of passport without a reasonable and fair procedure was a violation of that right. The court held that “impairment of a constitutional right to go abroad without giving reasonable opportunity to show cause was unfair and unjust and hence, a clear infringement of the requirement under Article 21.” The court also expressed its view that denial of a reasonable opportunity of being heard is a violation of the principle of natural justice embodied in the maxim audi alteram partim. But in this case, the SC recognized the principle of post-decisional hearing, implying that the impounding of a passport without any justification should be challenged before the court and not violated, even though it is invalid.

However, in the case of Nawabkhan v. the State of Gujarat, the apex court propounded that “an order which infringes a fundamental freedom passed in violation of audi alteram partim rule is a nullity”. Moreover, in this case, J. Krishna Iyer opined against the administrative absolutism which ignores the constitutional restrictions, and therefore, such unreasonable and unjustified impounding of a passport is of no effect owing to its nullity from the very beginning and its violation is no offence.

Very recently, the question of impounding of passport was dealt with by the Madhya Pradesh HC in the case of Hardik Shah v. UOI & Anr, writ petition number 5692/2020, and the court opined that unjustified and unreasonable impounding of the passport of a vlogger is a violation of his/her fundamental Right to Livelihood guaranteed under Article 21 of the Indian Constitution. The court observed that “Impounding can take place if Investigating Officer has shown his satisfaction that accused may abscond which may disturb the routine legal proceedings. In the absence thereof, as a routine, a passport cannot be impounded.”

Impounding of Passport & Administrative Absolutism

There are primarily two principles of natural justice, a) nobody should be a judge in his own case and b) an accused should be given a reasonable opportunity to be heard. Perhaps the first two principles have given rise to a third principle that a party is entitled to know the reasons for the decision. In many cases of impounding, especially the ones that invoke Section 10(3)(c) of the Passport Act, the affected person is never provided an exact reason for such impounding. Therefore, it becomes essential to delve into case laws that could be enforced against such administrative absolutism.

In the United States of America, Section 8(b) of the Administrative Procedure Act 1946 requires administrative agencies in clear terms to give reasons for their decisions. In the United Kingdom, Lord Denning in his dissent in Breen v. Amalgamated Engg. Union propounded that “the giving of reasons is one of the fundamentals of good administration.” In Australia, the Supreme Court held in Osmond v. Public Service Board of New South Wales that “the Common Law requires those entrusted with statutory discretionary power to state reasons for their decisions.”

The Law Commission of India in its Fourteenth Report on Reform in Judicial Administration deliberated on this crucial question of law and stated that “in the case of administrative decisions provisions should be made that they should be accompanied by reasons. The reasons will make it possible to test the validity of these decisions by the machinery of appropriate Writs.”

The Delhi High Court gave a very clear statement in this regard in Jagannath Kashinath Kavalekar v. Union of India by stating that “it will not be very far-fetched to say that the right of a party to know the reasons, for the decisions, be it judicial or quasi-judicial, is one of the principles of natural justice.” Moreover, Justice Bhagwati in the Menaka Gandi case opined that “the Central Government was wholly unjustified in withholding the reasons for impounding the passport of the petitioner.”

More precisely, the Supreme Court in the case of S.N. Mukherjee v. Union of India rightly pointed out that “the requirement of recording of reasons for its decisions by an administrative authority is to prevent miscarriage of justice and secure fairplay in action.”

There are varying judicial interpretations of the failure of tribunals or administrative authorities to give reasons to support their decisions. Justice Hidayatullah in Sardar Govindrao v. the State of M.P. enunciated that administrative authorities must give justified reasons for their decisions without fail. The constitution bench of the SC in Bhagat Raja v. Union of India propounded that every decision of administrative authorities is subjected to the supervisory power of High Courts as per Article 277 and of the Supreme Court as per Article 136 of the Constitution and the authority must give reasons to support its every decision; if nor, it would limit the fair administration of justice.

On the basis of the Passports Act, 1967 and judicial interpretations of the courts in India, it can be concluded that the right to travel abroad is a fundamental right under Article 21 of the Indian Constitution, but there are certain specified circumstances under which a person’s passport can be impounded. However, such impounding must be backed by due process of law and justified reasons. If an authority fails to justify the ground of its decision, it would amount to administrative absolutism which is clearly debunked by the Indian Judiciary and such order would be deemed to be null and void. Hence, a passport can only be impounded on reasonable and justified grounds.

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