CASE ANALYSIS ON

MANEKA GANDHI V. UNION OF INDIA

Background
The Passports Act (1967) came into effect in the wake of the case of Satwant Singh Sawhney
v. D. Ramarathnam, Asst. Passport Officer,1 where the Supreme declared that no person
could be deprived of his/her right to travel abroad without a procedure established by law for
the freedom to travel abroad is protected under Article 21 of the Indian Constitution.
It was under the aforementioned act that the petitioner, Maneka Gandhi, was issued a
passport on June 1, 1976. On July 2, 1977, a letter for the impoundment of her passport was
posted by the Regional Passport Officer, Delhi, under section 10(3) (c) of the act- compelling
the petitioner to surrender her passport within seven days of receipt of the letter. The
petitioner promptly responded with a request for a copy of the statement of reasons for the
order as provided for under sec 10(5) of the act, to which, the Ministry of External Affairs of
the Government of India responded stating inter alia that the copy would not be furnished in
the interest of the general public.

1
Satwant Singh Sawhney v. D. Ramarathnam, Asst. Passport Officer, 1967 3 SCR 525.

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The petitioner, a journalist by profession, thereupon filed a petition in the Apex court under
Article 32 of the Indian Constitution. This case which came to be called Maneka Gandhi v.
Union of India,2 proved to be a milestone in Indian history. It saw issues in direct conflict
with A.K. Gopalan v. State of Madras3 brought to light, such as the ambit of the phrase
‘procedure established by law’ and its place with relation to arbitrariness, reason and justice.
The court in the case of Maneka Gandhi v. Union of India 4, sided with the dissenting opinion
of Justice Faizal Ali in A.K. Gopalan v. State of Madras 5 stating that ‘procedure established
by law’ ought to be just, reasonable, fair and free of arbitrariness.

Facts in Issue
The petition was filed in the Supreme Court initially citing the violation of Article 14 (the
right to equality) of the Indian Constitution and the invalidity of section 10(3) (c) of the
Passports Act in lieu of the arbitrariness of the Government’s actions and the denial of the
opportunity for her to present her case against the impugned order. Section 10(3) (c) of the
Passports Act allows for the Passport Authority to impound or revoke a passport if deemed
necessary in the interests of the general public. Section 10(5) of the act provides for the
record of a statement of reasons in writing and for the petitioner to be furnished with a copy
unless it is not in the interest of the general public- an exception that the respondents used to
justify their stance in the case at hand. The petition was later amended to include the
violations of Article 21(the right to life and personal liberty), 19(1) (a) (the right to free
speech and expression) and 19(1) (g) (the right to practice any profession).

Issues of the case

a. Ambit of the phrase ‘procedure established by law’
b. Constitutionality of Section 10(3) (c) of the Passports Act (1967)
c. The nexus between Articles 14, 19 and 21 of the Indian Constitution
d. Whether the right to travel abroad is protected under Article 21
e. Territorial extent of fundamental rights
f. Validity of the impugned order
g. Whether the administrative order should have conformed to the principles of natural justice

2
Maneka Gandhi v. Union of India, 1978 2 SCR 2 621.
3
A.K. Gopalan v. State of Madras, 1950 2 SCR 88.
4
Maneka (n 2).
5
A.K.Gopalan (n,3).

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Legal Comparison with Other Countries
Article 21 of the Indian Constitution protects one’s right to life and personal liberty which
can be deprived only by a ‘procedure established by law.’ The ambit of this phrase was
examined in detail in A.K. Gopalan v. State of Madras, 6 where the court chose to interpret the
term to mean nothing more than ‘enacted law’ and which therefore, need not necessarily
adhere to the principles of natural justice or reason. The American Constitution mentions the
term ‘due process of law’ in its 5 th and 14th amendments- a term first recorded in the Magna
Carta of England that prescribes adherence to not simply procedure established by law but
also to justice, fairness and freedom from arbitrariness. In the case of Maneka Gandhi v.
Union of India,7 the court overruled the interpretation made in A.K. Gopalan’s caseto
ascertain that ‘procedure established by law’ under Article 21 must be ‘right and just and fair’
and not ‘arbitrary, fanciful or oppressive’ making it similar in spirit to America’s ‘due
process of law.’ In the case at hand, the petitioner argues that the action of impounding her
passport followed no procedure established by law for she was not given the opportunity to
present her case against the impugned order and if there was a procedure traced, it was
arbitrary and unjust.
Fundamental rights are the essence of the Constitution of India that in the view of Justice
Bhagwati, must be regulated in a civilized society. The territorial extent of fundamental rights
is protected by Article 245(2) of the Indian Constitution which states that no law made by
Parliament shall be deemed to be void on the grounds that it claims extra territorial operation-
somewhat similar in effect to section 3 of the Statute of Westminster which vests full power
to make laws having extra territorial operation with the Parliament.
The freedom to go abroad is described to be an inalienable human right in Article 13 of the
Universal Declaration of Human Rights. This freedom is protected under Article 21 of the
Indian Constitution asdeclared in Satwant Singh Sawhney v. D. Ramarathnam, Asst. Passport
Officer.8 The discretion possessed by the Passport Authority to deprive one of these rights
cannot be considered discriminatory in the view of Justice Bhagwati. However, the duty to
act judicially may not be spelt out but may be inferred from the nature of power conferred,
the manner exercising it and the rights of the person affected.

6
A.K Gopalan (n,3).
7
Maneka (n,2).
8
Satwant(n,1).

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Petitioner’s Arguments
a. The right to go abroad is within the scope of Article 21 of the Indian Constitution and can
be deprived only through a procedure established by law. The Passports Act prescribes no
procedure for impounding a passport and if some procedure can be found, it is unjust and
arbitrary for it does not provide the holder of the passport the opportunity to be heard against
the order. Audi altrem partem or the opportunity to be heard is provided under Article 32.
b. Section 10(3) (c) of the Passports Act is in violation of the fundamental rights protected
under Articles 14, 19(1) (a), 19(1) (g) and 2, articles that must be read in synchronization, and
must therefore be null and void.
c. The impugned order is in conflict with the rules of natural justice for it places an
unreasonable restriction on the freedom to speech and expression and the freedom to carry
out one’s profession- rights guaranteed under Articles 19(1) (a) and 19(1) (g) respectively.
d. For the petitioner’s passport to be impounded under Section 10(3) (c) of the Passports Act,
there must be a present existence of public interest and not simply a future likelihood.
e. The impugned order violates Articles 19(1) (a) and 19(1) (g) for it was passed by the
Central Government on the mere information that the petitioner might likely be required to
present herself before the Commission of Inquiry.

Respondent’s Arguments
a. The order to impound the petitioner’s passport was made because her presence was
required before the Commission of Inquiry.
b. In acknowledgement of the case of A.K. Gopalan the word ‘law’ under Article 21 need not
comply with the rules of natural justice which are vague and ambiguous.
c. The term ‘procedure established by law’ in Article 21 need not pass the test of
reasonability nor be in conformity with Articles 14 and 19. This term was deliberately chosen
over the American ‘due process of law’ and should therefore be respected and adhered to.
d. The right to travel abroad is not covered under any of the clauses of Article 19(1) and
hence Article 19 is independent of proving the reasonableness of the government’s actions.

Violation of Free Speech and Expression

The power or right to express one’s opinion without censorship, restraint or legal penalty is
known as the freedom of speech. This right forms the life-blood of various international

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conventions such as the Universal Declaration of Human Rights and the European convention
on Human Rights.
The Indian Constitution protects the freedom of speech and expression under Article 19(1)
(a) with reasonable restrictions provided for under Article 19(2). This article is examined
thoroughly in Maneka Gandhi v. Union of India 9in lieu of the petitioner claiming to have the
right to free speech and expression violated by the impoundment of her passport. While
Article 19 is guaranteed regardless of geographical boundaries, prima facie, section 10(3) (c)
of the Passports Act sought to restrict her right to travel abroad, which is not included in so
many words in Article 19. Moreover, there was no evidence indicating that the petitioner
intended to travel abroad to exercise her freedom of speech and expression or to carry out her
professional duties, when her passport was impounded. The extent of protection against the
impairment of a fundamental right is the direct and inevitable effect of an action upon an
individual’s rights as laid down in the case of R.C. Cooper v. Union of India. 10The direct and
inevitable effect of the impugned order in the case at hand restricted the petitioner’s freedom
to travel, not any of her rights under Article 19. It was therefore adjudged that there were no
violations made under Article 19.This resonates with the case of Bennet Coleman & Co.
&Ors. v. Union of India11where it was declared that ‘to go abroad cannot in all circumstances
be regarded as included in the freedom of speech and expression.’
In the case of Indian Express Newspapers v.Union of India, 12known as the Bank
Nationalization case, the Supreme Court held that despite the phrase ‘freedom of press’ not
being explicitly mentioned in Article 19, it is contained within the article and there cannot be
any interference with the press in the name of public interest. Therefore, the assumption that
Article 19 does not cover the freedom to travel abroad simply because it lacks the explicit
mention of these words is erroneous. Indian Express Newspapers v. Union of India 13also lays
down criteria for the term ‘inevitable effect’ which helps quantify the extent of directness
necessary to constitute the infringement of rights.

Scope of Article 21
Justice Bhagwati’s words ‘Man is at the root of Article 21. Absent liberty, other freedoms are
frozen,’ rightly illustrate the vitality of this article to the Indian Constitution for it protects an

9
Maneka (n,2).
10
R.C. Cooper v. Union of India, 1973 3 SCR 530.
11
Bennet Coleman & Co. & Ors. v. Union of India, 1973 2 SCR 757.
12
Indian Express Newspapers v. Union of India, 1959 1 SCR 135.
13
Indian (n,12).

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individual’s right to life and personal liberty. No person can be deprived of this right unless
through a procedure established by law which he clarifies must be ‘fair, not foolish, carefully
designed to effectuate, not to subvert the substantive right itself’. All key terms within this
article namely ‘life’, ‘personal liberty’ and ‘procedure established by law’ have been heavily
scrutinized in court. In the case of Kharak Singh v. State of Uttar Pradesh, 14 the Supreme
Court held that the right to life meant more than a meagre ‘animal existence’- a view
expanded to mean the right to human dignity in Maneka Gandhi v. Union of India.15
The ambit of the term ‘personal liberty’ is described to be ‘wide and comprehensive’ in the
case of A.D.M. Jabalpur v. Shivkant Shukla16instead of a mere compendious term including
within itself various rights that make up man as interpreted to be in Kharak Singh v. State of
Uttar Pradesh & Ors.17 In the case of Satwant Singh Sawhney v. D. Ramarathnam, Asst.
Passport Officer,iit is clearly specified that the term ‘personal liberty’ includes the right to
travel abroad and therefore this right cannot be deprived except through a procedure
established by law. This procedure must stand the test of reasonableness in order to conform
to Article 21. The mandate for a test of reasonableness brings the concept of natural justice
into the picture. While it was adjudged in A.K. Gopalan v. State of Madras ii that the term law
meant lex (enacted law) and not jus (justice) and therefore need not conform to the principles
of natural justice, the court approached the matter rather differently in the present case.
Justice Bhagwati opines that rights such as personal security and personal liberty- which
Blackstone collectively terms natural law is embodied in Article 21. Therefore, a divorce
between natural law and constitutional law would defeat the basic purpose of the
Constitution. With regards to the Passports Act, natural justice must be applied while
exercising the power to impound passports for the absence of justice and fairness would be
no procedure at all and the requirements of Article 21 would not be satisfied. In this way, the
term ‘procedure established by law’ acquired similar significance to the American term of
‘due process.’

Nexus between Articles 14, 19 and 21

In A.K. Gopalan’s case, the court held that each right guaranteed by the Constitution was
independent in their own spheres. The case proceeded on the assumption that Articles in the
Constitution exclusively deal with certain matters and if the requirements of a certain article
14
Kharak Singh v. State of Uttar Pradesh & Ors., 1964 1 SCR 332
15
Maneka (n,2).
16
A.D.M. Jabalpur v. Shivkant Shukla, 1976 1 SCR 327.
17
Kharak (n,14).

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are met and no rights are infringed as far as that article is concerned, no recourse can be had
to a fundamental right conferred by another article. This view was upheld in Ram Singh &
Ors. v. State of Delhi.18This concept of mutual exclusivity was struck down in R.C. Cooper v.
Union of India and explained in Shambhu Nath Sarkar v. State of West Bengal. iii The case at
hand took a similar approach to the matter where it was decided that ‘no article in Part III of
the Constitution is an island but part of a continent’ and therefore cannot be read exclusively.
The articles mutually depend on each other and need to be read in synchronization to bear the
true spirit of the Constitution.

Audi altrem partem

The essence of natural justice manifests itself in mainly two principles- nemo judex in causa
sua (no one can be a judge in his own case) and audi altrem partem (no one can be
condemned unheard- both of which form an integral part of Articles 14 and 21 of the Indian
Constitution. The principle brought into question in Maneka Gandhi v. Union of India 19is the
latter. The then Attorney General of India urged that the application of audi altrem partem in
the present case would stultify the action of impounding the petitioner’s passport possibly
paralyzing the administration of law and therefore would not be fair. The court held that
while there have been well recognized exceptions to the rule, these cases do not in any way
militate against fair play in administrative action. It is a rule of severe importance and must
not be jettisoned save in very exceptional circumstances. The present case does not fall under
these exceptional circumstances and the right to be heard cannot be denied simply because
the power to impound the passport might be frustrated. There is no distinction in the role of
natural justice in a quasi-judicial and administrative enquiry which entails civil consequences.
Both seek to secure justice and therefore logically, the rule must be applied to both. This view
is reiterated in the case of Associated Cement Companies Ltd. v. P.N. Sharma & Anr.20
Section 10(5) of the Passports Act provides for the petitioner to be furnished with a copy of
the statement of reasons for the impoundment for his or her passport unless it goes against the
interest of the general public. The act does not explicitly provide for an opportunity for the
petitioner to be heard. In the case of D.F.O South Kheri v. Ram Sanehi Singh, 21 the court
ruled that the duty to act judicially may not be superadded but can be spelt out from the

18
19

20
21

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nature of the power conferred, the manner of exercising it and its impact on the rights of the
person affected. The view in the case at hand is somewhat similar with the mandate that fair
opportunity to be heard should have immediately followed the order to impound the
petitioner’s passport. The procedure established in the Passports Act for impounding an
individual’s passport should be viewed in conformity with Article 21.

In the Interest of the General Public

Section 10(3) (c) of the Passport Act allows for the impoundment of a passport in the ‘interest
of the general public’- a term claimed by the petitioner to be vague and full of ambiguities.
The Court however, did not see eye to eye on this allegation stating that courts have been
called on numerous times to decide whether or not a matter is of public interest and have
done so quite successfully. The decision to declare a matter of public interest is not solely
dependent on the subjective opinion of the Passport Authority. Ordinarily, the petitioner
should be furnished with the statement of reasons enabling him or her to challenge the
decision in appeal where the Appellate Authority can examine whether the reasons justify the
order when the Passport Authority is other than the Central Government, in which case it can
safely be assumed that power was exercised reasonably and responsibly.

Validity of Section 10(3) (c) of Passports Act

Section 10(3) (c) of the Passports Act was sought to be declared ultra vires by the petitioner
on the grounds that it violated Articles 19(1) (a), 19(1) (g) and 21. The court held the act to
not have violated the said clauses under Article 19 for the direct and inevitable effect brought
about by the section only deprived the petitioner of her right to travel abroad and did not
interfere with her right to free speech and expression nor her right to carry out her profession.
The section should have been read in conformity with Article 21 and therefore does not make
it contradictory to the said article simply because it does not explicitly apply the rule of audi
altrem partem. Moreover, the Attorney General made a statement on behalf of the
Government of India agreeing to hear the petitioner’s case against the impugned order which
in turn would be dealt with expeditiously in accordance with the law. However, the court
stated that while a statute might pass the test of constitutionality, an order passed under it
may be unconstitutional.

Territorial Extent of Fundamental Rights

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The right to travel abroad is protected under Article 21 of the Indian Constitution and thus is
a fundamental right. This discernibly indicates that there is no underlying principle in the
Constitution that limits one’s rights to the territory of India. Article 245(2) provides that no
law made by the Parliament shall be deemed to be invalid on the ground that it would have
extra territorial operation. However, there is no provision within Article 19 that explicitly or
by necessary implication states that it can be applied outside of Indian Territory.
Furthermore, a citizen cannot enforce his fundamental rights outside of India even if it is
assumed that such rights are available outside the country and is therefore reasonable to
assume that the makers of the Constitution did not intend to guarantee rights that cannot be
enforced by the State as illustrated in Virendra v. The State of Punjab.iv

Overview of Judgment
The court overruled the concept of mutual exclusivity of Articles in part III of the
Constitution as laid down in A.K. Gopalan v. State of Madras. vIt stated that there was a
unique relationship between the provisions of Articles 14, 19 and 21 and that every law must
pass the test of these articles. It was clarified that the right to go abroad did not come under
the purview of Article 19(1) as these rights differed in nature. The court lay open the
possibility of fundamental rights under 19(1)(a) and 19(1)(g) being exercisable even outside
Indian territory even if not explicitly mentioned within the provisions of the articles. It
specified that the term ‘in the interest of the general public’ was not vague or ambiguous.
Section 10(3)(c) of the Passports Act was held valid and not violative of any fundamental
rights. The administrative order made under this statute however, was violative of Article 21
owing to the denial of the opportunity for her to present her case against the impoundment of
her passport. The court ordered that a statement of reasons should ordinarily be provided to
the petitioner and the prerogative of section 10(5) should rarely be used. Even if a statute is
silent on a specific matter, it is the duty of the authority in power to act in conformity with
the principles of natural justice. The term ‘procedure established by law’ provided under
Article 21 needs to be legal procedure free of arbitrariness and irrationality.

Critical Analysis of the Judgment

The overruling of the narrow and constrictive interpretations made in A.K. Gopalan’s case
was greeted with appreciation nation-wide. The liberal and open-minded approach with
which the court tackled the case bolstered every Indian’s faith in the protection of his or her

9
fundamental rights. The widening of the ambit of Article 21 has facilitated numerous
additions to the meaning of ‘life’- from clean air and water to the right to livelihood to the
more recently declared right to a decent burial. Articles 14, 19 and 21 were given a new angle
of importance. To declare any State action or legislation invalid, this ‘golden triangle’ must
be invoked. The stern manner with which the court dealt with the respondent’s contention
that procedure established by law need not be reasonable or fair is truly commendable. The
retention of the phrase ‘procedure established by law’ while simultaneously protecting it from
being severely misused has shown great respect and adherence to both the Constitution-
makers as well as the spirit of the Constitution. Justice Iyer in the context of travelling abroad
held that “travel makes liberty worthwhile” and in so few words manages to imply how there
is more to the fundamental right of life than animalistic survival. The court put the Executive
in its place and warned them against overstepping their discretion such as in the use of
section 10(5) of the Passports Act without valid justification.

Suggestions and Recommendations

This landmark judgment paved the way for progress by simply staying true to the soul of
democracy and reassuring common man that the evolution of law lay in his hands. If,
however, the niches of the judgment are observed and the entitlement to an individual’s rights
is reflected upon, it only makes sense that the individual be allowed to defend his/herself
before the decision to impound his/her passport is acted upon instead of the post- decisional
doctrine the court settled on in this case. While the interpretation of various articles and
precedents by the court are nothing short of commendable, the petitioner ought to have been
compensated for the remiss in administrative responsibility.

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i
ii
iii
iv
v
.