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This appeal under the Letters Patent raises an important question as to the interpretation of Article 21 of the Constitution, and the question raised is whether the expression "personal liberty" occurring in the said Article includes the right to travel abroad. The second important question that arises is whether the refusal of a passport to the respondent by appellant No. 1 has resulted in the contravention of Articles 21 and 14 of the Constitution.

(2) Facts giving rise to this appeal in brief are: It is not in dispute that the respondent is a citizen of India. According to him, he is a partner of a firm in Bombay which carries on business of Bankers. Exporters and Importers. He is also a partner of a firm doing business at Dubai in Persian Gulf, which carries on the business of Indent Agents and Importers, According to the respondent passports were granted to him during the period from October 1952 to October 1962 to enable him to make trips to Dubai and certain other ports in the Persian Gulf. The passport that had been granted,. expired on 28th October 1962. On 10th January 1963, the respondent applied to the Regional Passport Officer (second appellant before us) for the grant of a new passport for a period of three years. That application was rejected by the Assistant Passport Officer, (first appellant before us). There was certain correspondence between the respondent and appellants Nos. 1 and 2, but ultimately by a further letter of date 27th June 1963 he was informed that the passport authorities had nothing to add to their previous letter date 24th May 1963. The respondent then filed a writ petition under Article 226 of the Constitution for an appropriate writ or direction to quash the order refusing to grant him a passport and for a direction against the appellants requiring them to grant and issue to him a passport as applied for by him. The respondent founded his petition principally on three grounds. According to him, the refusal of the passport was violative of his fundamental rights conferred on him by Article 19(1)(d) to (g). Article 21 and Article 14 of the Constitution. It is not necessary for us to state the facts pleaded by the respondent in support of his case under Article 19(1) (d) to (g), inasmuch as it was conceded before the trial Court that there being a proclamation of Emergency under Art. 352, enforcement of the rights under Article 19 was suspended by reason of Article 358 of the Constitution. It is, therefore, necessary to refer only to the pleas raised by the respondent as regards his contention relating to Articles 21 and 14 of the Constitution. According to the respondent it is not possible for him to leave India without a passport. Government having issued instructions to the shipping companies and Airlines not to take on board passengers leaving India unless they possess a valid passport. It is therefore impossible for him to leave India without a valid passport. Secondly it is alleged that the passport is necessary for reentry into India, and on this ground also it is claimed that possession of a valid passport is adsolutely essential for going abroad both because without a passport no shipping company or an Airline would book a passage for him, and secondly because it would not be possible for him to return to his country. He further alleged that it was absolutely necessary for the purposes of his business to go to Dubai and to return to India as he had been doing for so many years. The right to travel abroad and return to India, according to the respondent, is a part of his "personal liberty" assured to him under Article 21 of the Constitution. He could be deprived of that liberty only "according to the procedure established by law" as provided in the said Article. There is no procedure prescribed by any law regulating the grant or refusal of a passport. The refusal of the passport has been arbitrary and thus violates the respondent's right under Article 21 of the Constitution. We would refer to he averments of the respondent relating to his contentions founded on the provisions of Article 14 later when we deal with them. We are proposing first to deal with his contentions relating to Article 21.

(33) The case of the respondent in brief was that in absence of any law regulating the grant of refusal to grant a passport, it is left to the whim and pleasure and arbitrary decision of the passport authorities to give passports. A number of passports have been given to various persons who were similarly situated to him. The refusal to grant renewal of the passport to the respondent contravenes Article 14 inasmuch as it has resulted in arbitrarily discriminating him against the other persons similarly situated and who have been granted passports to go to Dubai. The list of persons who were granted passports was a ttached by the respondent to his petition. The Regional Passport Officer in his affidavit has denied in absence of any law regulating the grant or refusal of passports, passports were issued at the whim and pleasure or according to the arbitrary decision of the respondent (the appellant before us). he denied that he had granted passports to other persons who were situated similarly to the respondent. As regards the case of the person mentioned in the list attached to the petition, he stated that they were granted passports after considering their applications on merits. He further stated that the passports were being issued under the isntructions received from the Central Government, and the respondent was not given a passport in accordance with the instructions received from the Central Government. In the affidavit filed by the Under Secretary of Government in India, Ministry of External Affairs, it has been stated that "on the basis of the communications received in official confidence and for which reasons, it is considered should not be disclosed in the public interest, the government of India decided that in the interest of the State and the Public, the petitioner should not be granted further passport facilities." It was learnt by him that the firm of which the respondent claimed to be a partner was not a genuine exporter of goods, and it was therefore, the instruction were given to the passport authorities not to issue a passport to him. As regards the other persons, it was stated that in their case there was no ground or cause to apprehend that public interest or interest of the State would suffer by reason of the passport facilities being granted to them, and therefore, passports were granted to them. In the case of the respondent, it was apprehended that public interest or the interest of the State would suffer if passport was granted to him, and therefore, passport was refused to him. The learned Judge held that the claim of the Government of India of absolute and unfettered discretion to grant or refuse passport was ex facie discriminatory and therefore violative of Article 14 of the Constitution. The learned Judge has not recorded any finding that the respondent has been meted out a discriminatory treatment as compared with the other six persons whose names had been given in the list attached to his petition.

(34) Mr. Rege, learned counsel for the appellants, contended that the order made by the passport officer refusing to grant passport to the respondent was neither a judicial order, nor an administrative or executive order. On the other hand, it was an order made by the Union of India in exercise of its political function. Such an order cannot be challenged on the ground that it is violative of Article 14 of the Constitution. Mr. Sorabji, learned counsel for the respondent, on the other hand,. contends that the order made by the passport authorities is an executive order or an administrative order, and the protection granted to citizen under Article 14 is both against legislative as well as administrative action. The executive or administrative action affecting the rights of the citizen must be in accordance with law Admittedly, there is no law enacted regulating the grant or refusal of passports. It is left to the absolute discretion of the passport authorities. these powers conferred on them are arbitrary and uncontrolled, and therefore, article 14 has been vilated. In view of our finding that the respondent could be deprived of his right to travel abroad only in accordance with procedure established by law, it is not necessary for us to consider in this case the wider issue raised by Mr. Sorabji, namely, whether absence of any law by itself is violative of Article 14 of the Constitution We find it difficult to accept the argument of Mr. Rege that the order refusing the passport having been made in exercise of the political function. Article 14 is not attracted. In the first instance, it was admitted position at the trial that the order made was an administrative order. In para 10A of the affidavit in reply of the Under Secretary, filed on behalf of the Union of India, the plea raised was:

"The refusal to grant the passport to the petitioner (respondent before us) is a non-statutory administrative action"

At the argument stage also, the contention raised was that it was an administrative action. The contention raised on behalf of theUnion of India has been summarised thus:

"On behalf of the Government of India Mr. Baptista argued that the grant or the refusal of a passport was a purely administrative act, and that such an act does not fall within the ambit of Article 14" /blockquote> There is, therefore, no doubt that the case of the Government of India all throughout had been that the refusal to grant the passport was an administrative act. No doubt, the contention raised was that the administrative act does not fall within the ambit of article 14. That contention has been fully dealt with by the learned Judge, and after referring to certain Supreme Court decisions. he had held that the protection given by article 14 extends to all discriminatory actions, whether executive or legislative. this conclusion, has not been challenged before us. Now, it may be that in the matter of grant of a passport or refusal to grant a passport, the function performed is diplomatic in its nature, in a sense that the passport apart from it being evidence of the nationality of the person named therein, is also request on behalf of one State to another for grant of facilities to the person named while in a foreign country. But we fail to see why the order of the government, whether it be granting a passport or not granting a passport would not be an executive order or an administrative order. It is in relation to a right of a citizen and affects him. The functions of the State have been divided into legislative, judicial and exectuive. There is no fourth category. It is an admitted position that there is no law regulating the grant or refusal of a passport. It was also an admitted position during the course of the arguments before the learned trial Judge that no administrative rule regulating the grant or refusal of the passports have been iissued by the Government of India to the passport officers. It is thus clear that arbitrary and uncontrolled powers have been conferred on the passport authorities in the matter of grant or refusal of the passports. No guidance has been given to them in this respect. and the conferral of such arbitrary and uncontrolled powers is by itself violative of Article 14 of the Constitution. We are, therefore, of the same view as has been taken by the learned Judge on this aspect of the case. It is for these reasons that, in our opinion, the appeal is liable to be dismissed, and we hereby dismiss the appeal with costs.