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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 Passports Act, 1967, or any other applicable law. The 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:

8. Now let us have a fleeting look of the Passports Act, 1967. Section 3 of the Passports 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 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 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 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.

12.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.

13.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 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.