Passport – Freedom Of Movement
Every citizen enjoys the right to personal liberty; he is entitled to stay at home or walk abroad at his pleasure without interference or restraint from others. “The right to travel abroad has been recognized as a fundamental right by the Hon’ble Supreme Court. The Passport was introduced in the world during the First World War. At that time, the necessity of the passport arose because many of the countries began to insist on the possession of document which clear the identity and origin of the person. In 1920, the Indian passport Act was passed. As per Indian passport Act, obligation to obtain passport to leave India and an obligation to obtain passport to enter India. After the sometime the obligation to obtain passport to leave India abandoned. The Passport Act makes rule and law on prohibition of any person in India or any part thereof that has not in his possession of passport. The passport Act also gives power to makes rule for punishment of the volition of the rules under the Act.
The Supreme Court of America for the first time had defined the scope of passport in Kent v. Dulles, 1958-2 Law Ed 2d 1204.
Passport and fundamental right under Article 14 of the Constitution –
Article 14 says that the State shall not deny to person equality before the law or the equal protection of the laws within the territory of India. This doctrine of equality before the law may be a necessary corollary to the high concept of the rule of law accepted by our Constitution. One of the aspects of rule of law is that each executive action, if it’s to work to the unfairness of a person, must be supported by some legislative authority: See State of Madhya Pradesh v. Thakur Bharat Singh, C. A. No. 1066 of 1965, D/- 23-1-1967. Secondly, such a law would be void, if it discriminates or enables an authority to discriminate between persons without just classification. What a Legislature couldn’t do, the chief couldn’t obviously do. But within the present case the chief claims a right to issue a passport at its discretion: that’s to mention , it can at its discretion prevent a person from leaving India on foreign travel. Whether the proper to travel is a component of private liberty or not within the meaning of Article 21 of the Constitution, such an arbitrary prevention of an individual from travelling abroad will certainly affect him prejudicially. A person may wish to go abroad for several reasons. He may wish to see the planet , to review abroad, to undergo medical treatment that’s not available in our country, to collaborate in research project , to develop his mental horizon in several fields and such others. An executive arbitrariness can prevent one from doing so and permit another to travel merely for pleasure. While within the case of enacted law one knows where he stands, within the case of unchannelled arbitrary discretion, discrimination is obvious on the face of it. Such a discretion patently violates the doctrine of equality, for the difference within the treatment of persons rests solely on the arbitrary selection of the chief. The argument that the said discretionary power of the State may be a political or a diplomatic one doesn’t make it anytheless an executive power. We, therefore, hold that the order refusing to issue the passport to the petitioner offends Article 14 of the Constitution.
Whether there’s a right to demand a passport –
It is now necessary to think about whether there’s a right to demand a passport. Is it a right of an equivalent nature because the right to shop for a railway ticket? The difference obviously is that before Government places within the hands of an individual a document which pledges the honour of the country, Government is entitled to scrutinize the credentials of such persons. The right, therefore, to get a passport may be a qualified one, and not an absolute one. Since Government pledges its honor, it’s a privilege which may be exercised with the concurrence of state. 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’s there within the document on which one can found an absolute right? Is the State compelled to grant a document pledging its honor to all or any sorts of person and must it vouch for the respectability of everyone going abroad? The considerations which must enter within the appraisal of an individual’s worth, before his respectability are often vouched, are so numerous and varied that they will never be the subject of a successful enumeration and categorization. If an individual is wrongfully refused a passport, he can complain that he has been discriminated against and therefore the Courts would right the matter unless the State gives a legitimate reason. There is thus no absolute right that the State must grant a passport to whomsoever applies for it and subject to an issue of arbitrariness or discrimination nobody can really be said to possess a right enforceable at law.
It is, however, contended that the proper to travel abroad may be a fundamental right because it’s a neighborhood of the private liberty of an individual guaranteed by Article 21 of the Constitution, which an individual can only be bereft of consistent with procedure established by law. In support of the contention that foreign travel is a part of personal liberty, reliance is placed on certain observations in 1950 SCR 88 and 1964-1 SCR 332 , and some cases of the High Courts following Gopalan’s case, 1950 SCR 88 , and drawing support from the cases of the Supreme Court of the United States. Reliance was placed in these judgments upon the classic definition of ‘personal liberty’ by Blackstone. Blackstone divided ‘jus personarum’ (rights attaching to the person) into two : ‘Personal security” and “personal liberty”. Under the previous he included rights to life, limb, body, health and reputation and under the latter, the proper to freedom of movement.
A passport is a document of identity, it is a prima facie evidence of nationality, in modern times it not only controls exit from the State to which one belongs, but without it, with a few exceptions, it is not possible to enter another State – It has become a condition for free travel.