MANEKA GANDHI V. UNION OF INDIA(1978) 1 SCC 248

MANEKA GANDHI V. UNION OF INDIA

(1978) 1 SCC 248

 

FACTS

Here, Section 10(3)(c) of the passport act authorises the passport authority to impound the passport if necessary to do so if it is in interest to the sovereignty and security of the nation and in the interest of the general public. Maneka Gandhi’s passport was impounded by the central government of the country under the passport act within the interest of the public. She filed a writ petition on the ground of violation of her fundamental rights under Article 21. The leading opinion was pronounced by Justice Bhagwati.

 

ISSUE

The issue pertaining to the current case reflected whether the Right to Travel abroad was protected under Article 21, whether there existed a connection between the Articles 14, 19, 21 and what was the scope of the phrase procedure established by law.

 

JUDGEMENT AND ANALYSIS

(1) The court considered the current case as a landmark case of the post emergency period. It shows how the liberal tendencies have influenced this Hon'ble court in interpreting the Fundamental Rights, particularly Article 21. It showed that as held in the Gopalan Case, Article 21 did not have any role it could play to provide protection against the harsh law  seeking to deprive  a person of his life or personal liberty. 

(2) It was observed that since this judgement was pronounced this Hon'ble court has shown great sensitivity to the protection of personal liberty. This court has re-interpreted Article 21 and overruled the Gopalan case.  Furthermore, this Hon'ble court has given broader interpretation to Article 21 so as to imply many more fundamental rights. 

(3) A number of propositions were laid down by this Hon'ble court seeking to make Article 21 more meaningful

• This  Hon'ble Court Reiterated the proposition that Articles 14, 19 and 21 are not mutually exclusive. A nexus has been established between these three Articles. This shows that a law prescribing a procedure for depriving a person of personal liberty has to meet the requirements of Article 19. Also the procedure established by law in Article 21 must answer the requirement of Article 14. 
• The court observed that personal liberty in Article 21 was given an expansive interpretation. The expression is of the widest amplitude covering a variety of rights which go to consume the personal liberty of man. Some of these attributes have been raised to the status of distinct fundamental rights and given additional protection under Article 19. Furthermore personal liberty or not to be Red in a restricted and a narrow sense the attempt of the court should be to expand the reach and the Ambit of the fundamental rights rather than attenuate their meaning and content by a process of judicial construction.
• The court also observed that the most significant and creative aspect of  the current case was the Re interpretation by the court of the expression procedure established by law used in Article 21. Article 21 no longer meant that a law could prescribe some semblance of procedure, however arbitrary or fanciful,  to deprive a person of his personal liberty. It now meant that the procedure must satisfy certain requisites in the sense of being fair and reasonable. the procedure cannot be arbitrary, unfair or unreasonable. Furthermore the concept of reasonableness must be projected in the procedure contemplated by Article 21.

(4) This court held that the right to travel abroad falls under Article 21. As the right to travel falls under Article 21, natural justice must be applied while exercising the power of impounding a passport under the passport act. Although the passport act does not expressly provide for the requirement of hearing before a passport is impounded, yet the same has to be implied therein. Hence no person can be deprived of his right to go abroad except according to procedure established by law.

CASE LAWS REFERRED

In AK Gopalan v State of Madras, 

1. An attempt was made to persuade the Supreme Court to ensure that the courts could adjudicate upon the reasonableness of the preventive detention act or any law depriving a person of his personal liberty. Hence, here an attempt was made to ensure better safeguards for the detenu than were available however the attempt failed.
2. This Hon'ble Court ruled by the majority that the word law in Article 21 could not be read as meaning rules of natural justice. These rules were vague and indefinite and the constitution could not be read as laying down a vague standard.
3. Furthermore, an attempt was made by the petitioner to establish a link between the Articles 19, 21 and 22. However, it was held that a law depriving personal liberty had to conform with Articles 21 and 22 and not with Article 19 as it covered a separate ground. It could be invoked only by a free man and not by one under arrest. 
4. It was contended in the current case that the expression “procedure established by law” in Article 21 was synonymous with the American concept of “procedural due process” and therefore “the reasonableness of the preventive detention act of any law affecting the person's life or personal liberty should be justice able in order to access whether the person affected was given a right hearing”. This quote rejected the contention due to Firstly, the word “due” was absent in Article 21. This was a very significant omission for the entire efficacy of the procedural due process concept as it arises from the word due. Secondly, the draft constitution had contained the words “due process of law" but these words were later dropped and the present phraseology was adopted Instead. This was strong evidence to show that a constituent assembly did not desire to introduce into India the concept of procedural due process. Hence it was concluded that the expression “procedure established by law” meant the procedure as laid down in the law as enacted by the legislature and nothing more. 
5. Hence it was observed that the current case was practically over ruled in the Maneka Gandhi case. 

 

In R. C. Cooper v. Union of India it was observed that the object and form of the State action alone determine the extent of protection that may be claimed by an individual and that the effect of the State action on the fundamental right of the individual is irrelevant, was finally rejected. The decision in R.C. Cooper's case thus overturned the view taken in A.K. Gopalan case and, as pointed out by Ray, J., speaking on behalf of the majority in Bennett Coleman case, it laid down two interrelated propositions, namely First, it is not the object of the authority making the law impairing the right of the citizen nor the form of action that determines the invasion of the right. Secondly, it is the effect of the law and the action upon the right which attracts the jurisdiction of the Court to grant relief. 

The direct operation of the Act upon the rights forms the real test. It was further observed that the test that was formulated in R.C. Cooper case, merely refers to ‘direct operation’ or ‘direct consequence and effect’ of the State action on the fundamental right of the petitioner and does not use the word ‘inevitable’ in this connection. If the effect of State action on fundamental right is direct and inevitable, then it must be presumed to have been intended by the authority taking the action and hence this doctrine of direct and inevitable effect has been described by some jurists as the doctrine of intended and real effect. This is the test which must be applied for the purpose of determining whether Section 10(3)(c) or the impugned order made under it is violative of Article 19(l)(a) or (g).