Jammu & Kashmir High Court - Srinagar Bench
Abdul Samad Wani And Another vs Union Of India And Others on 3 April, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
OWP no.1513/2016 Date of order: 03.04.2018 Abdul Samad Wani and another v.
Union of India and others Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge Appearing Counsel:
For Petitioner(s): Mr B.A.Misri, Advocate For Respondent(s): Mr T.M.Shamsi, ASGI Mr B.A.Dar, Sr.AAG Whether approved for reporting? Yes/No
1. Petitioners possess the Passports with the date of expiry as 31 st March 2017. They implored for issuance of the full term Passport in place of one year. However, the respondents have not come to terms to issue the full term Passport. This has forced the petitioners to knock at the portals of this Court with the writ petition on hand. The petitioners beseech a direction in the name of the respondents to issue the full term passport in place of one year provided under passport no.N7884566 issued on 03.02.2016 in favour of the petitioner no.1 and passport no.N7884565 dated 02.03.2016 in favour of the petitioner no.2.
2. Respondents 1&3, in their reply, have insisted that petitioner had applied for passport applications under tatkal category in the year 2016. The passports were issued in their favour. The State CID/Police, it is next averred, recommended the cases of petitions for three years' short term passport for Hajj only. In light of the police verification, the petitioners were supposed to apply afresh as per system in vogue for any subsequent passport service which they have failed. According to the respondents, the petitioners have to OWP no.1513/2016 Page 1 of 11 satisfy the prerequisites fundamental under the Passport Act for issuance of passport.
3. Respondent no.2 has also filed the Reply. He insists that the verification of the character/antecedents of the petitioners was received from the Senior Superintendent of Police, Baramulla, which reveals that the nephew of the petitioner no.1 had ex-filtrated to PoK in the year 2004 and did not return back till date. The case of the petitioners could not be recommended for full term passport in view of new passport policy issued by the Home Department, J&K, vide Circular no.01 of 2014 dated 28.08.2014, which is presently in vogue. As per the new passport policy, it is next insisted, the case of the petitioners was recommended for three years' short term passport facility to perform Hajj and Umrah and sent to the Regional Passport Officer, Srinagar (respondent o.3) vide letter no.CID/Final/ 16/027685 dated 24.03.2016.
4. Heard and considered.
5. Passport means "a formal document certifying a person's identity and citizenship so that the person may travel to and from a foreign country", as is discernible from Black's Law Dictionary Seventh Edition, by Bryan A. Garner, p. 1146.
6. We have our Constitution, unmatched in the world, and the Passport Act, 1967, that regulates and governs the subject-matter of the writ petition on hand which has popped up from the above discourse.
The Passports Act, 1967, is an act of the Parliament of India "for the issue of passports and travel documents, to regulate the departure from India of citizens of India and for other persons and for matters incidental or ancillary thereto". The Act applies to the whole of India extending to the citizens of India living outside the country. The Act replaced the Indian Passport Ordinance 1967 and was OWP no.1513/2016 Page 2 of 11 enacted by Act 15 of 1967 with retrospective effect from 5th May 1967. The Act describes the procedures in getting an Indian Passport. In conformity with Article 9 of the Indian Constitution, the Act does not allow dual citizenship. Under Section 12 of the Act, a person must surrender his passport if he has acquired the citizenship of a foreign country.
7. It is pertinent to mention here that in the year 1967, the Supreme Court, in the celebrated case of Satwant Singh Sawhney v. D. Ramarathnam AIR 1967 SC 1836, ruled that the right to travel abroad and return to one's country is a fundamental right implicit in the concept of the personal liberty guaranteed by Article 21 of the Constitution. The Supreme Court pointed out that a person may like to go abroad to see the world, to study abroad, to undergo the medical treatment that is not available in our country, to collaborate in the scientific research, to develop his mental horizon in different fields. The Supreme Court recognised that realistically, without an Indian passport, no person residing in India can travel outside India. At that time there was no law regarding grant, refusal or revocation of a passport. The matter was exclusively in the realm of the executive discretion. The Supreme Court rejected the Government's contention that the discretionary power of the State is a political or a diplomatic one. The Supreme Court held that the refusal of a passport, which prejudicially affects a person in the absence of any statutory enactment, would be contrary to the Rule of Law and Article 14 of the Constitution and per se unconstitutional. Thereafter the Passports Act, 1967, was enacted. It sets out specific grounds for refusal, revocation and impounding of a passport. A person's passport cannot be detained or impounded without a valid statutory order under the Passport Act, 1967, or any other applicable law. The OWP no.1513/2016 Page 3 of 11 practice of seizing the passports of the persons in the absence of any statutory order, detaining them at the airport and, thus, preventing them from leaving the country is patently unconstitutional. In the UK, refusal by the Secretary of State of a passport was defended by the government as exercise of the prerogative power and therefore not subject to the judicial review. This contention was rejected by the Court of the Appeal in England in October 1988. Lord Justice Taylor in his concurring judgment in Regina v. Secretary of State for Foreign and Commonwealth Affairs, Ex Parte Everett ([1989] 1 QB 811: [1988] EWCA Civ 7: [1989] QB 811: [1989] 2 WLR), held that the court has the power to review the withdrawal or the refusal to grant or renew a passport and "the powers of the court cannot be ousted merely by invoking the word 'prerogative'...Grant or refusal of a passport is a matter of administrative decision, affecting the rights of individuals and their freedom of travel. It raises issues which are just as justiciable as, for example, the issues arising in immigration cases...The ready issue of a passport is a normal expectation of every citizen, unless there is good reason for making him an exception". This decision rendered prior to the enactment of the UK Human Rights Act 2002 was a remarkable advance in English administrative law.
8. Now let us have a fleeting look of the Passport Act, 1967. Section 3 of the Passport Act envisions that no person shall depart from, or attempt to depart from, India unless he holds in this behalf a valid passport or travel document. Section 4 of the Act of 1967 relates to classes of passports and travel documents. It provides that ordinary passport, official passport and diplomatic can be issued under the Act. The travel documents, like emergency certificate authorizing a person to enter India; certificate of identity for the purpose of OWP no.1513/2016 Page 4 of 11 establishing the identity of a person; and such other certificate or document as may be prescribed, can be issued under the Act of 1967. An application, as envisioned in Section 5 of the Act of 1967, for the issue of a passport under the Act for visiting such foreign country or countries (not being a named foreign country) as may be specified in the application may be made to the passport authority and shall be accompanied by such fee as may be prescribed to meet the expenses incurred on special security paper, printing, lamination and other connected miscellaneous services in issuing passports and other travel documents. On receipt of an application, the passport authority, in terms of subsection (2) of Section 5 of the Act of 1967, after making such inquiry, if any, as it may consider necessary, shall, subject to the other provisions of this Act, by order in writing,- (a) issue the passport or travel documents with endorsement, or, as the case may be, make on the passport or travel document the endorsement, in respect of the foreign country or countries specified in the application; or issue the passport or travel document with endorsement, or, as the case may be, make on the passport or travel document the endorsement, in respect of one or more of the foreign countries specified in the application and refuse to make an endorsement in respect of the other country or countries; or refuse to issue the passport or travel document or, as the case may be, refuse to make on the passport or travel document any endorsement. Where the passport authority makes an order under clause (b) or clause (c) of sub-section (2) on the application of any person, it shall, as stipulated by subsection (3) of the Section 5 of the Act, record in writing a brief statement of its reasons for making such order and furnish to that person on demand a copy of the same unless in any case the passport authority is of the opinion that it will not be in the OWP no.1513/2016 Page 5 of 11 interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public to furnish such copy. Section 6 says about the refusal of the passports, travel documents, etcetera. It envisages that subject to the other provisions of the Act of 1967, the passport authority shall refuse to make an endorsement for visiting any foreign country under clause (b) or clause (c) of sub-section (2) of section 5 of the Act on the grounds that: the applicant may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India; the presence of the applicant in such country may, or is likely to, be detrimental to the security of India; the presence of the applicant in such country may, or is likely to, prejudice the friendly relations of India with that or any other country; and that in the opinion of the Central Government the presence of the applicant in such country is not in the public interest. Subsection (2) of Section 6 of the Act envisions that the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) of sub-section (2) of Section 5 of the Act on the grounds: (a) that the applicant is not a citizen of India; (b) that the applicant may, or is likely to, engage outside India in activities prejudicial to the sovereignty and integrity of India; (c) that the departure of the applicant from India may, or is likely to, be detrimental to the security of India; (d) that the presence of the applicant outside India may, or is likely to, prejudice the friendly relations of India with any foreign country; (e) that the applicant has, at any time during the period of five years immediately preceding the date of his application, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two OWP no.1513/2016 Page 6 of 11 years; (f) that the proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India; (g) that a warrant or summons for the appearance, or a warrant for the arrest, of the applicant has been issued by a court under any law for the time being in force or that an order prohibiting the departure from India of the applicant has been made by any such court; (h) that the applicant has been repatriated and has not reimbursed the expenditure incurred in connection with such repatriation; (i) that in the opinion of the Central Government the issue of a passport or travel document to the applicant will not be in the public interest.
9. What will be the duration of travel document or a passport is specified in Section 7 of the Act of 1967. It says that a passport or travel document shall, unless revoked earlier, continue in force for such period as may be prescribed and different periods may be prescribed for different classes of passports or travel documents or for different categories of passports or travel documents under each such class; provided that a passport or travel document may be issued for a shorter period than the prescribed period (a) if the person by whom it is required so desires; or (b) if the passport authority, for reasons to be communicated in writing to the applicant, considers in any case that the passport or travel document should be issued for a shorter period. Section 8 of the Act provides that where a passport is issued for a shorter period than the prescribed period under section 7 of the Act, such shorter period shall, unless the passport authority for the reasons to be recorded in writing otherwise determines, be extendable for a further period, which together with the shorter period shall not exceed the prescribed period, and provision of the OWP no.1513/2016 Page 7 of 11 Act of 1967 shall apply to such extension as they apply to the issue thereof.
10.Section 22 of the Act of 1967 vouchsafes the powers qua exemption of any person or class of persons from the operation of all or any of the provisions of the Act of 1967 or the rules made thereunder. It says that where the Central Government is of the opinion that it is necessary or expedient in the public interest so to do, it may, by notification in the official gazette and subject to such conditions, if any, as it may specify in the notification exempt any person or class of persons from the operation of all or any of the provisions of the Act of 1967 or the rules made thereunder and as often as may be, cancel any such notification and again subject, by a like notification, the person or class of persons to the operation of such provisions. It is in this context that the Government of India in the Ministry of External Affairs vide G.S.R. 34 (E) dated 12th January 2000, exempted all government servants against whom criminal charges are pending in any court in India for the acts done or omitted to be done by them in the discharge of their official duties from the operation of clause (f) of subsection (2) of Section 6 of the Act. A certificate from their department conveying their "No Objections"
to the issue of passport to such officials would be required as in all cases of government servants.
11.Rule 12 of the Passports Rules, 1980, provides that an ordinary passport for persons other than children below the age of 15 years, containing thirty-six pages or sixty pages shall be in force for a period of 10 years from the date of its issue. An ordinary passport for a child below the age of 15 years, containing thirty-pages shall be in force for a period of 05 years from the date of its issue or unit lth child attains the age of 15 years, whichever is earlier. Sub Rule OWP no.1513/2016 Page 8 of 11 (7) of Rule 12 envisions that that passport for Haji pilgrims shall be valid for a period of eight months from the date of issue.
12.The Supreme Court in Satwant Singh Sawhney's case (supra) has held:
"31: For the reasons mentioned above, we would accept the view of Kerala, Bombay and Mysore High Courts in preference to that expressed by the Delhi High Court. It follows that under Article 21 of the Constitution no person can be deprived of his right to travel except according to procedure established by law. It is not disputed that no law was made by the State regulating or depriving persons of such a right."
13.A similar view has been reiterated by the Seven-Judge Bench of the Supreme Court in Maneka Gandhi v. Union of India and another (1978) 1 SCC 248 wherein at page 280, it was held as under:
"....Now, it has been held by this Court in Satwant Singh's case (supra) that 'personal liberty' within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law. Prior to the enactment of the Passports Act, 1967, there was no law regulating the right of a person to go abroad and that was the reason why the order of the Passport Officer refusing to issue passport to the petitioner in Satwant Singh's case (supra) was struck down as invalid. It will be seen at once from the language of Article 21 that the protection it secures is a limited one.
It safeguards the right to go abroad against executive interference which is not supported by law; and law here means 'enacted law' or 'State law' (Vide A.K. Gopalan's case). Thus, no person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure....."
14.A Bench of this Court in Abdul Majid Sheikh v. U.O.I. & ors 2011 (4) JKJ 170 [HC], has dealt with and set at rest the akin issue as has emerged in the case in hand. In the said case, the son of the writ petitioner had joined the militancy and on the basis thereof the passport was not issued in his favour. This Court said that any act on the part of the petitioner's son, cannot be used against the writ OWP no.1513/2016 Page 9 of 11 petitioner to affect his right to seek passport when nothing has been attributed by the State respondents about the writ petitioner's likely to engage himself in any such activity which may attract any one or the other conditions indicated in Section 6 of the Act, disentitling him to issuance of passport. This Court has held that refusal of passport on the report of the State Government cannot sustain and is unjustified.
15.A Bench of this Court again in Mohd. Bin Qasim v. Union of India & ors 2013 (3) JKJ 414 [HC] has held that once there is no adverse report against the passport holder, the extension of the passport cannot be refused on any pretext.
16.In the present case the respondent State, on the premise that the nephew of the petitioner no.1 has ex-filtrated to PoK in the year 2004 and did not return back till date, has declined to recommend the full term passport in favour of the petitioners. It may not be out of place to mention here that the petitioner no.1 is a retired government employee. The passport, initially, was issued in the year 2013, in favour of the petitioners, which was thereafter extended up to January 2017. The said passport, if we go by the Reply filed by the respondents, has not been misused by the petitioners for any such purpose as forbidden by the provisions of Section 6 of the Act. This important aspect of the matter has not been kept in mind by the respondent State when it submitted its report to the passport issuing authority. The report sent by the respondent State to the Passport Officer is therefore, unjustified, besides being unwarranted, in that the report sent against the petitioners is not supported by any material/evidence of any type whatsoever that would suggest or warrant declination in issuance of the passport. The refusal of the passport or extension thereof by the Passport Officer on the OWP no.1513/2016 Page 10 of 11 foundation of the report submitted by the respondent State, cannot, in that view of the matter, sustain and is unjustified, as such.
17.The writ petition, viewed in the background of what has been said and done above, is allowed and respondents are directed to grant extension or renewal in the term of the passport of the petitioners for the period sought for by them, of course, as stipulated under Rule 12 of the Passports Rules, 1980 and/or any other rules/regulations governing the field. Given the fact that the matter involves the fundamental right of the passport holders, the exercise shall be undertaken and squared off, as expeditiously as possible and in any case, within six weeks from the date the certified copy of this order is served upon the respondents. Disposed of.
( M. K. Hanjura ) Judge Srinagar 03.04.2018 Ajaz Ahmad OWP no.1513/2016 Page 11 of 11