"A well-regulated militia, being necessary to the security of a free state, the
right of the people to keep and bear arms shall not be
" -- James Madison.
This case analysis attempts to analyse the judgement of the Supreme Court in the
historical decision of Maneka Gandhi v Union of India reported in AIR 1978 SC
597 which expanded the scope of Article 21 of the Constitution and changed the
face of Indian polity and law.
'Personal Liberty' means freedom from physical restraint and coercion which is
not authorised by law. This article is about Maneka Gandhi vs. Union of India
, which is famously known as Maneka Gandhi's case
or Personal liberty case. This
case is not only a landmark case for the interpretation of Article 21 of
Constitution of India but it also gave an entirely new point of look to the
Chapter III of the Constitution of India.
Prior to this case decision, Article 21 guaranteed the Right to Life and
Personal Liberty only against the arbitrary action of the executive and not from
the legislative action. This case just turned up pages and extended the
protection against legislative actions.
This case is regarded as one of the best judgements delivered by the apex court
as it was instrumental in restoring people's faith in the judiciary and
constitutional values. It was in this case that the "Golden triangle" rule was
firmly established by the SC and the court firmly cemented its seat as the
watchdog of democracy.
This decision which was delivered by a 7-judge bench of the Hon'ble Supreme
Court on 25th January 1978, this decision, marked the development of a new era
with respect to the interpretation of fundamental rights guaranteed in the
Constitution. This decision altered the very face of the Indian Constitution and
marked a new era of development in the concept of personal liberty
decision stands as a beacon-light adding new dimensions to the interpretation of
the fundamental rights guaranteed by Part III of the Constitution.
Facts Of The Case
Issues Before The Court
- The petitioner Maneka Gandhi's passport was issued on 1st June 1976 as
per the Passport Act of 1967. On 2nd July 1977, the Regional Passport Office
(New Delhi) ordered her to surrender her passport. The petitioner was also not
given any reason for this arbitrary and unilateral decision of the External
Affairs Ministry, citing public interest.
- The petitioner approached the Supreme Court by invoking its writ
jurisdiction and contending that the State's act of impounding her passport
was a direct assault on her Right of Personal Liberty as guaranteed by
Article 21. It is pertinent to mention that the Supreme Court in Satwant Singh Sawhney v.
Ramarathnam held that right to travel abroad is well within the ambit of
Article 21, although the extent to which the Passport Act diluted this
particular right was unclear.
- The authorities, however, answered that the reasons are not to be
specified in the "interest of the general public". In response, the
petitioner filed a writ petition under Art 32 for violation of fundamental
rights guaranteed under Articles 14, 19 and 21 of the Constitution alleging
that Section 10(3)(c) of the Act was ultra vires the constitution.
Arguments Of The Petitioners:
- Whether the Fundamental Rights are absolute or conditional and what is
the extent of the territory of such Fundamental Rights provided to the
citizens by the Constitution of India?
- Whether 'Right to Travel Abroad' is protected under the umbrella of
- What is the Connection between the rights guaranteed under Article 14,
19 and 21 of the Constitution of India?
- Determining the scope of " Procedure established by Law"
- Whether the provision laid down in Section 10(3)(c) of the Passport Act
1967 is violative of Fundamental Rights and if it is whether such legislation is
a concrete Law?
- Whether the Impugned order of Regional Passport Officer is in
contravention of principles of natural justice?
Through the administrative order that seized the passport on 4th July 1977, the
State has infringed upon the Petitioner's fundamental rights of freedom of
speech & expression, right to life & personal liberty, right to travel abroad
and the right to freedom of movement.
The provisions given in Articles 14, 19 & 21 should be read together and aren't
mutually exclusive. Only a cumulative reading and subsequent interpretation will
lead to the observance of principles of natural justice and the true spirit of
India might not have adopted the American concept of the "due process of law",
nevertheless, the procedure established by law should be fair and just,
reasonable, and not be arbitrary.
Section 10(3)(c) of the Passport Act violates Article 21 insofar as it violates
the right to life & personal liberty guaranteed by this Article.
Audi Altrem Partem i.e. the opportunity of being heard is invariably
acknowledged as a vital component of the principles of natural justice. Even if
these principles of natural justice are not expressly mentioned in any of the
provisions of the Constitution, the idea behind the spirit of Fundamental Rights
embodies the very crux of these principles.
Contentions Of The Respondents:
The respondent stated before the court that the passport was confiscated since
the petitioner had to appear before a government committee for a hearing.
The respondent asserted that the word 'law' under Article 21 can't be understood
as reflected in the fundamental rules of natural justice, emphasising the
principle laid down in the A K Gopalan case.
Article 21 contains the phrase "procedure established by law" & such procedure
does not have to pass the test of reasonability and need not necessarily be in
consonance with the Articles 14 & 19.
The framers of our Constitution had long debates on the American "due process of
law" versus the British "procedure established by law". The marked absence of
the due process of law from the provisions of the Indian Constitution clearly
indicates the constitution-makers' intentions.
Judgement Of The Court
- The court said that section 10(3)(c) of passport act, 1967 is void
because it violates Article 14 of Indian constitution because it confers
vague and undefined power to the passport authority. it is violative of Article 14 of
the Constitution since it doesn't provide for an opportunity for the aggrieved
party to be heard. It was also held violative of Article 21 since it does not
affirm to the word "procedure" as mentioned in the clause, and the present
procedure performed was the worst possible one. The Court, however, refrained
from passing any formal answer on the matter, and ruled that the passport would
remain with the authorities till they deem fit.
- This immensely important judgement was delivered on 25th January 1978 and
it altered the landscape of the Indian Constitution. This judgement widened
Article 21's scope immensely and it realized the goal of making India a welfare
state, as assured in the Preamble. The unanimous judgement was given by a
7-judge bench. Before the enactment of the Passport Act 1967, there was no law
regulating the passport whenever any person wanted to leave his native place and
settle abroad. Also, the executives were entirely discretionary while issuing
the passports in an unguided and unchallenged manner.
- In Satwant Singh Sawhney v. D Ramarathnam the SC stated that:
liberty in its ambit, also includes the right of locomotion and travel abroad.
Hence, no person can be deprived of such rights, except through procedures
established by law. Since the State had not made any law regarding the
regulation or prohibiting the rights of a person in such a case, the
confiscation of the petitioner's passport is in violation of Article 21 and its
grounds being unchallenged and arbitrary, it is also violative of Article 14.
- Further, clause (c) of section 10(3) of the Passports Act, 1967 provides
that when the state finds it necessary to seize the passport or do any such
action in the interests of sovereignty and integrity of the nation, its
security, its friendly relations with foreign countries, or for the
interests of the general public, the authority is required to record in
writing the reason of such act and on-demand furnish a copy of that record
to the holder of the passport.
- The Central Government never did disclose any reasons for impounding the
petitioner's passport rather she was told that the act was done in the
interests of the general public whereas it was found out that her
presence was felt required by the respondents for the proceedings before a
commission of inquiry. The reason was given explicit that it was not really
necessarily done in the public interests and no ordinary person would
understand the reasons for not disclosing this information or the grounds of
her passport confiscation.
- The fundamental rights conferred in Part III of the Constitution are not
distinctive nor mutually exclusive." Any law depriving a person of his
personal liberty has to stand a test of one or more of the fundamental
rights conferred under Article 19. When referring to Article 14,
ex-hypothesi must be tested. The concept of reasonableness must be
projected in the procedure. The phrase used in Article 21 is "procedure
established by law" instead of due process of law which is said to
have procedures that are free from arbitrariness and irrationality. There is
a clear infringement of the basic ingredient of principles of natural
justice i.e., audi alteram partem and hence, it cannot be
condemned as unfair and unjust even when a statute is silent on it.
- It is true that fundamental rights are sought in case of violation of
any rights of an individual and when the State had violated it. But that
does not mean, Right to Freedom of Speech and Expression is exercisable only
in India and not outside. Merely because the state's action is restricted to
its territory, it does not mean that Fundamental Rights are also restricted
in a similar manner. It is possible that certain rights related to human
values are protected by fundamental rights even if it is not explicitly
written in our Constitution. For example, Freedom of the press is covered
under Article 19(1)(a) even though it is not specifically mentioned there.
The right to go abroad is not a part of the Right to Free Speech and Expression
as both have different natures and characters.
A.K Gopalan was overruled stating that there is a unique relationship between
the provisions of Article 14, 19 & 21 and every law must pass the tests of the
said provisions. Earlier in Gopalan, the majority held that these provisions in
itself are mutually exclusive. Therefore, to correct its earlier mistake the
court held that these provisions are not mutually exclusive and are dependent on
Critical Analysis And Personal Opinion:
The landmark ruling in Maneka Gandhi versus Union of India
, which stands as a
bulwark of the Right of Personal Liberty granted by Article 21 of the
Constitution, started when the passport of the petitioner in this case, was
impounded by the authorities under the provisions of the Passport Act.
After this case the Supreme Court became the watchdog to protect the essence of
the Constitution and safeguard the intention of the constitutional assembly
who made it. The majority of judges opined that any legislation or section
should be just, fair and reasonable and in it's absence even the established or
prevailed law can be considered arbitrary.
The judges mandated that any law which deprives a person of his personal liberty
should stand the test of Article 21,14 as well as 19 of the Constitution. Also
principles of natural justice are sheltered under article 21 and therefore no
person is deprived of his voice to be heard inside the court. Further to declare
any state action or legislation invalid, the "golden triangle".
This arbitrary act of impounding the passport eventually led to the
pronouncement of a unanimous decision by a seven-judge bench of the apex court
comprising M.H. Beg (CJI), Y.V. Chandrachud, V.R. Krishna Iyer, P.N. Bhagwati,
N.L. Untwalia, S. Murtaza Fazal Ali and P.S Kailasam .
That, the landmark judgment of Maneka Gandhi V. Union of India is so perfectly
given by the Hon'ble Seven Judge Bench of Supreme court. That, the very concept
of fair procedure which was been in the case is what justice is. Lastly, it is
the spirit not the form of law that keeps the justice alive.
The case is considered a landmark case in that it gave a new and highly varied
interpretation to the meaning of 'life and personal liberty' under Article 21 of
the Constitution. Also, it expanded the horizons of freedom of speech and
expression to the effect that the right is no longer restricted by the
territorial boundaries of the country.
In fact, it extends to almost the entire
world. Thus the case saw a high degree of judicial activism, and ushered in a
new era of expanding horizons of fundamental rights in general, and Article 21
in particular. This case is called as Golden Triangle Case where article 14, 19
and 21 were challenged together and it was appreciated by the apex court.
This decision restored the people's faith in the judicial system and a guarantee
that their fundamental rights will be protected. The court departed from its
earlier position in the AK Gopalan case which held that right to life and
personal liberty can be restricted by the procedure established by law even if
it is not fair and reasonable. In this case, this regressive view was discarded
by the court and held that that procedure established by law meant procedure
that eventually was reasonable fair and just.
This decision rendered void the plain and simple meaning of procedure
established by law
and introduced for the first time the concept of due
process of law
into the Indian constitution. The court also accepted
that Right to Travel Abroad as a very important component of Right to Liberty,
if this right is not granted, liberty is distorted. By this judgement, the court
increased the scope of Article 21 of the Constitution and made it the duty to
interpret Article 21 in a manner which serves the people's interest at most.
I, Himanshu M. Mendhe, hereby declare that this work is the result of my own
intellect and the necessary references are provided in the article. This article
is only for an academic purpose.
- Maneka Gandhi v. Union of India, 1978 AIR 597, 1978 SCR (2) 621
- 1967 AIR 1836, 1967 SCR (2) 525
- 1950 AIR 27, 1950 SCR 88
- The Bench.