(1978) 2 SCR 621: AIR 1978 SC 597: (1978) SCC 248    

In the course of the history of the mankind, the nation or an institution, at certain times, events occur which roll them into another direction. Judgment of Constitutional Bench (7 Judges) by Supreme Court of India on January 25, 1978 in Maneka Gandhi Vs. Union of India, was one such momentous decision in the history of Indian judiciary and jurisprudence. 5 judgments were delivered by the Supreme Court. Honble Justice M.H. Beg, Chief Justice of India, Honble Justice Y.V. Chandrachud and Honble Justice V.R. Krishna Iyer concurred with the leading judgment by Honble Justice P.N. Bhagwati (for himself and N.L. Untwalia and Murtaza Fazal Ali) Hon'ble Justice P.S. Kailasam delivered a dissenting judgment.

Maneka Gandhis judgment has virtually and effectively divided the Indian jurisprudence into two eras, the pre Maneka Gandhi era and the post Maneka Gandhi era. It is one of the few judgments in the history of Indian legal system which re-iterates, re-establishes and re-affirms several Constitutional principles in which all believed, but few had the capacity to pen as an authoritative precedent.

Maneka Gandhis judgment has been referred and followed in the highest number of judgments of Supreme Court of India and that is 114 till date and innumerable judgments of various High Courts in India. Several terms and passages in Maneka Gandhis judgment, have become the most eloquent quotes in several judgments delivered by courts, books written by academicians and speeches made by jurists.

FACTS

    The petitioner (Maneka Gandhi) was issued a passport on June 1, 1976 under the Passport Act, 1967 (1967 Act). On July 4, 1977, the petitioner received a letter dated July 2, 1977 communicating the decision of the Government of India impounding her passport under Sec. 10 (3) (c) of the 1967 Act in public interest. The petitioner was required to surrender her passport within 7 days from the receipt of that letter. The petitioner immediately addressed a letter to the Regional Passport Officer requesting him to furnish a copy of the statement of reasons for making the order as provided in Sec.10 (5) of the 1967 Act. A reply was sent by the Government of India, Ministry of External Affairs on July 6, 1977 stating interalia that the government had decided in the interest of the general public not to furnish her copy of the statement of reasons for the making of the order. The petitioner filed a Writ Petition under Article 32 of the Constitution of India challenging the action of the Government in impounding her passport and declining to give reasons for doing so.

CONTENTIONS RAISED BY THE PETITIONER

1. The right to go abroad was a part of personal liberty within the meaning of the expression used in Art. 21 and no one could be deprived of that right except according to the procedure prescribed by law.

2..There was no procedure prescribed by the 1967 Act, for impounding or revoking a Passport.

3.Even if some procedure could be traced in the 1967 Act, it was unreasonable and arbitrary in as much as it did not provide for giving an opportunity to the holder of the Passport to be heard against the making of the order.

4.Section 10 (3) (c) was violative of fundamental rights guaranteed under Articles 14,19 (1) (a) and (g) and 21 of the Constitution of India.

5.The impugned order dt. July 2, 1977 was made in contravention of the rules of natural justice and was, therefore, null and void.

6.The impugned order dt. July 2, 1977 had effect of placing an unreasonable restriction on the right of free speech and expression guaranteed to the petitioner under Article 19 (1) (a) as also on the right to carry on the profession of a journalist conferred under Art. 19 (1) (g) of the Constitution of India.

7.The impugned order dt. July 2, 1977 could not consistently with Articles 19 (1) (a) and (g) be passed on a mere information of the Central Government that the presence of the petitioner is likely to be required in connection with the proceedings before the Commission of Inquiry.

8.In order that a passport may be impounded under Sec. 10 (3) (c), public interest must actually exist in present and mere likelihood of public interest arising in future would be no ground for impounding the passport.

9. It was not correct to say that the petitioner was likely to be required for giving evidence before the Shah Commission.   

CONTENTIONS, STATEMENTS MADE ON BEHALF OF UNION OF INDIA

1. The GOI did not agree with any of the contentious raised by the petitioner.

2. The government was agreeable to consider any representation that may be made by the petitioner and giving her an opportunity in the matter within two weeks.

3. The representation of the petitioner would be dealt with expeditiously in accordance with law.

4.In the event, the decision of impounding the passport was confirmed, it was clarified that the duration of the impounding will not exceed the period of six months from the date of the decision that may be taken on the petitioners representation

5.The decision of the GOI will not be prejudice the power of the Government of India to take such action as it may be advised in accordance with the provision of the 1967 Act, in respect of the petitioners passport.

LEGAL ISSUES BEFORE THE COURT

1. Section 10(3)(c) of the 1967 Act impounding of passport and did not violate Art. 14 or Art. 21 of the Constitution of India. The power to impound the passport in the interest of general public was not vague and undefined. 

2.Section 10(5) required the passport authority to record in writing a brief statement for making such an order and furnish to the holder on demand unless the passport authority is of the opinion that it will not be interalia in the interest of general public to furnish such a copy  

FINAL ORDER BY THE COURT

Though the judgment expounded the modern Indian jurisprudence in Administrative law, the final order was interalia to the effect that having regard to the majority view, and in view of the statement made by the Attorney General, it was not necessary to formally interfere with the impugned order. The Writ Petition were disposed off without passing any formal order and without any order as to costs.

IMPACT OF MANEKA GANDHIS JUDGMENT

1. Introduced due process clause in Indian jurisprudence: In the post Maneka Gandhis era, the word according to the procedure established by law indirectly transferred into due process of law. In the USA, Vth Amendment says ..nor shall any person be ..deprived of life, liberty or property, without due process of law... The due process clause has been used by US Supreme Court to extend both procedural and substantive safeguards to life, liberty and property. Because of its contentious nature leading to the war of roses (differences between executive and the judiciary), the expression due process was expressly shunned by the framers of Indian Constitution expression procedure established by law was used in Art. 21. By a process of judicial interpretation in Maneka Gandhis case, the words procedure established by law has been given virtually the same meaning as due process of law.

2.Changed the direction of courts: Maneka Gandhis judgment became the source of many substantive and procedural safeguards for the people of India. The term personal liberty in post Maneka Gandhis era has been given a wide conversation. The Supreme Court in P. R. Antulays case (AIR 1992 SC 171) underlined this metamorphosis in the attitude of Supreme Court towards Art. 21 in the following words:

Article 21 got unshackled from the restrictive meaning placed upon it in Gopalan. It came to acquire a force and vitality hitherto unimagined. A burst of creative decisions of this Court fast on the heels of Maneka Gandhi gave a new meaning to the Article and expanded its content and connotation.

3.Became corner stone of judicial activism: Law creation role of judges. The basic premises of Maneka Gandhis judgment, it was also used in post Maneka Gandhis era was the attempt of the court should be to expand the reach an ambit on the fundamental rights rather than to attenuate their meaning and content by a process of judicial construction.

4.Enlarged the scope judicial review: Major impact of the Maneka Gandhis judgment and the liberal interpretation given by it empowered the courts with tool entitling them to review judicially the administrative and legislative actions of the executive and legislative respectively.

Aruneshwar Gupta

25.05.2001