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(3) The petition is supported on three main grounds. It is alleged, firstly that it is absolutely necessary for the petitioner to go abroad and to return to India for the purpose of his business, and that the refusal of the passport by the respondents amounts to a contravention of his fundamental amounts to contravention of his fundamental right guaranteed by Article 21 of the constitution. In this connection the petitioners says that it is not possible for him leave India without a passport, because the government of India have issued instructions to the shipping and Air leaving India with out a valid passport and also because even if the petitioners were to go abroad without a passport the entry into India without a passport is forbidden by law and involves penal consequences. The second ground of the petition is that the respondent refusal to grant a passport to the petitioner amount to an infringement of his right to enter India and to reside, and is therefore, violative of the fundamental right declared under article 19(1) (d) and (e) of the constitution. The petitioner claim thirdly that the refusal of a passport without assigning any reason without giving the petitioner any opportunity be being heard or of showing cause is arbitrary, that a number of passports have been given to various of persons and who are similarly situated as the petitioner, and that the refusal of passport to the petitioner is contravention of Article 14 of the Constitution as it amounts to a discrimination against the petitioner.

(10) With the background of this legal position, I will first consider the petitioners contention that the claim made on behalf of the Government of India of absolute discretion to grant or refuse passports to Indian citizens is inconsistent with the fundamental right guaranteed by Article 14 of the constitution. Article 14 lays down that the state shall not deny to any persons equality before the law or the equal protection of the law within the territory of India. This and the subsequent four Articles have been placed in the Constitution under the heading "Right in Equality" The word "State" as defined by Article 12 includes in Government and parliament of India, the Government and the legislature office o the state and all local or other authorities within the territory of India or under the control of the Government of India. It follows that the right to equality which is guaranteed by Article 14 is designed to protect all persons against discriminatory treatment irrespective of whether it result from legislative or from executive action. The claim of absolute and unfettered discretion of to grant or the refuse passports is ex facie discern minatory and, therefore, violative of Article 14 of the constitution.

In view of these observations of the supreme court it is not necessary to refer to the American decisions which were cited by Mr. Sorabjee to show that the equal protection clause of the 14th Amendment to the American constitution gave protection of against the legislative as well as executive discrimination.

(12) As stated above, the function of issuing passports vests with the government of India by virtue with the of Article 73 read with List I Item 19 of the Seventh schedule of the constitution. Article 14 requiems that the function shall be discharged by the Government of India without discrimination. The legislature has not provided any guidance for the discharge of the at function. I asked Mr. Baptista when the Government of India have framed any administrative rule for the regulation of it function of issuing passports and Mr. Baptista told me that on such rule have been framed. Under these fundamental right of equality guaranteed by the Article 14 of the constitution that the Government of India can adopt either of the two courses they can refuse passports to the all India citizen or grant passports to the same and not to Article 14 out of these two alternative one is clearly excluded, for it is obvious that the Government of India cannot dispense with issuing passports altogether. It is true that the right to equality guaranteed by Article 14 is available or not but t no persons whether Indian citizens require a passport from the Government of India. The petitioner has given in Ex D to the petition the names has six other Indians to whom granted passport facilities for going to Dubai were granted by the Government of India. It was not denied on behalf of the Government of India that the passport facilities were granted of these persons. Since the Government of India to others, it must follow that the in absence to other classification between those who are and those who are not entitled to passport facilities the Government offend must grant passports to all Indian citizen who apply for them (13) The Government of India claims to an absolute and unfettered discretion of granting or refusing passport of facilities appears to be founded on the fact that the legislature has not mad any law or regulations to the grant of those facilities. What is guaranteed by Art. 14, however is the rule of law and not equal subjection to lawless rule. Supposing the legislature had passed a law bestowing upon the executive and absolute an unfettered discretion in issuing passports and the law would have been invalid by virtue of article 14 of the constitution, State of West Bengal v. Anwar Ali Sarkar State of Orissa v. Dhirendrananth Das AIR 1961 SC 1715. The fact that on such discriminatory law has been passed by the legislature cannot possibly enable the executive to claim an also absolute and the unfettered discretion in the matter of refusing passports.

(34) The conclusion to which I have reached does not imply that ever y Indian citizen must have to an absolute and unrestricted right to receive a passport. It implies that the in the absence of any legislative provision to guide the exercise of the discretion in the matter of issuing passports the Government of the India have no alternative but the issue passports to all Indian citizens who apply for them.

(35) Accordingly, the order of the first respondents dated 24th May 1963 refusing passport facilities to the petitioner is set aside, and the respondents are directed to grant and issue to the petitioner a passport as applied for by the him byte application dated 10th January 1963. The passport to be issued within two weeks from today. The respondents will pay the petitioner the costs of this petition as taxed.