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This definition is 'taken from the decision in Uretiqui v. D'Arbel(1). So too, in American Jurisprudence, Vol. 40, the same description is given of a passport and it is added that it is a political document.

But the Supreme Court of America for the first time had defined the scope of passport in Kent v. Dulles(2). There the Secretary of State refused to issue passport to each of the two plaintiffs because of the refusal to file affidavit concerning their membership in the Communist Party. To obtain the passport each of the plaintiffs instituted an action against the Secretary of State in the United States District Court for the District of Columbia. In due course the case went up to the Supreme Court. Mr. Justice Douglas described the nature of the passport thus : "A passport not only is of great value-indeed necessary-abroad; it is also an aid in establishing citizenship for purposes of re-entry into the United States." At page 1212 he went on to say that the document involved more "in part, of course, the issuance of the passport carries some implication of-intention to extend the bearer diplomatic protection, though it does no more than request all whom it may concern to permit safely

Some of the facts of these cases have been set out by the learned Chief Justice in his judgment and they need not be repeated. What has not been stated is that in the affidavit in reply on behalf of the Union of India it is clearly stated why the passports had been withdrawn or cancelled. As the learned Chief Justice has not mentioned these facts, they need to be mentioned, before our appraisal of the so- called fundamental right to travel can be appreciated. In Writ Petition No. 30 of 1967, Mr. R. D. Chakravarti, UnderSecretary to the Government of India in the Ministry of External Affairs states on affidavit that Om Prakash Kapur was a member of a gang of passport racketeers and had got many students stranded in foreign countries, because, as a travel agent he had arranged for their travel with a company which did not exist. In another instance he countermanded the emigration laws of a foreign power. He was once refused a passport, but in a subsequent application he suppressed this fact and a passport was issued to him. The proposed journey was to visit his mother stated to be seriously ill in London. An attempt to impound his passport failed as he had already left India. In proof of the objectionable activities of the petitioner, the Union of India filed a photostat copy of his letter in which the petitioner had written in his own handwriting how tickets were to be manipulated. It was on this ground that the passport was refused to him.

Many questions have been raised but they resolve themselves into a single question in two parts which is : is there a fundamental right to ask for a passport and does the Constitution guarantee such a right ? It may be stated at once that in limiting the controversy, it is not intended to say that arbitrary action in refusing a passport or evidence of discrimination will not have any redress. Executive action has to comply with the equal protection clause of our Constitution, and a complaint of refusal of a passport on insufficient or improper grounds is capable of being raised, irrespective of whether there is a fundamental right to travel abroad or not. Judging of these cases on the evidence of the affidavits it is possible to hold that the passports were properly refused or impounded: but as the question has assumed a constitutional hue, we express our opinion on the general question.

It will therefore be seen that there is no compulsion of law that a passport must be obtained before one leaves India. Compulsion arises because no travel line will take an Indian out of India unless he possesses a passport. If an Indian wishes to leave India without a passport he may do so, if he can. There is nothing to prevent an Indian getting into a jolly boat and attempting to cross the Arabian sea; but a foreign country would refuse to receive him unless he possesses a passport and on his return to India he would not be able to enter India unless he produces the passport as required by the Indian Passport Act. The need for passport is indirect. Passport is necessary because it requests the foreign Governments to let the holder pass and it vouches for the respect ability and nationality of the holder. It is now necessary to consider whether there is a right to demand a passport. Is, it a right of the same nature as the right to buy a railway ticket ? The difference obviously is that before Government places in the hands of a person a document which pledges the honour of the country, Government is entitled to scrutinise the credentials of such person. The right therefore to obtain a passport is a qualified one, and not an absolute one. Since Government pledges its honour, it is a privilege which can be exercised with the concurrence of Government. Subject to this there arises a qualified right. A person refused a passport may ask that his case be considered by a court of law. But what is there the document on which one can found an absolute right ? Is the State compelled to grant a document pledging its honour to all kinds of person and must it vouch for the respectability of every one going abroad ? The considerations which must enter in the appraisal of a person's worth, before his respectability can be vouched, are so numerous and varied that they can never be the subject of a successful enumeration and categorisation. If a person is wrongfully refused a passport, he can complain that he has been discriminated against and the courts would right the matter unless the State gives a valid reason. There is thus no absolute right that the State must grant a passport to whomsoever applies for it and subject to a question of arbitrariness or discrimination no one can really be said to possess a right enforceable at law.