Maneka Gandhi v. Union Of India: Analysis of Impact

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With the aim to tackle the right conferred by the Apex Court of India in Satwant Singh Sawhney V Ramarathnam, which enabled the right to travel abroad to be included within the ambit of Article 21 the Parliament enacted The Passports Act 1967. The object of this Act is to empower the authorities to enable them to impound the passport of individuals if necessary in the interest of sovereignty, integrity, security of India or friendly relations of India with any foreign country, or for the benefit of the general public. A freehand was given to the authorities to withhold the reasons of impoundment if it deems fit to them in the public interest. The Act further enabled the authorities to communicate the reasons for such impoundment to the affected party. Maneka Gandhi v. Union of India[1] (popularly known as Maneka Gandhi case) was a tale of fascinating events and political tussle that arose instantly in the post Emergency era, with the Janata Party government assuming power in 1977.

The daughter-in-law of former Prime Minister Mrs Indira Gandhi, and the founder-editor of a political magazine Surya, Maneka Gandhi, was issued a passport under the required Act of 1976. On ouster of the Congress Party from power, Ms. Maneka started to use Surya as a political platform to restore the image of the Congress Party as well as to tarnish & discredit leaders of the new government. She even went on to the extent of publishing the pictures of the son of then defence minister Jagjivan Ram engaging in sexual intercourse with a student of Delhi University. In 1977, Maneka Gandhi was to leave India to fulfil a speaking engagement but the authorities on July 4th of that year issued a notification for impounding passport issued in favour of Smt. Maneka Gandhi, under Section 10(3) of the Passport Act 1967 citing reasons of public interest. On receipt of notice, the petitioner (Maneka Gandhi) at once inquired about the grounds for such impoundment from the Regional Passport Office which was declined by the authorities on the pretext of it being conducted in the public interest. Having no other way out, the petitioner exercising his fundamental right under Article 32 approached the Supreme Court on the grounds of infringement of Article 14 for the act being an arbitrary one. On further amendment of the petition, grounds of enforcement of Article 19(1)(g), Article 19(1)(a), Article 21 i.e. Protection of Life and Personal Liberty,  Right to freedom of movement &speech were respectively imbibed within. The contention of petitioner stated inter alia the order in question to be void for it took out the petitioner’s right of being provided a fair hearing to put forth her defence. Thus “Audi Alteram Partem” which is a profound underpinning to the principles of fundamental justice (Principles of Natural Justice) was denied to the petitioner.

Judges Involved

The Supreme Court in 1978 formed 7-judge constitutional bench a to decide the case. The bench included:

  1. M.H. Beg, (C.J)
  2. P.N. Bhagwati
  3. Y.V. Chandrachud
  4. V.R. Krishna Iyer
  5. N.L. Untwalia
  6. P.S. Kai asam
  7. S. Murtaza Fazal Ali.

Principles of Law Involved

  1. The Passport (entry into India) Act, 1920
  2. Is Section 10(3)(c) of the Passport Act, 1967 violative of Article 14, 19 & 21?
  3. Whether Principles of natural justice apply to quasi judicial orders or administrative orders affecting citizen rights?
  4. Does Right to go Abroad constitute personal liberty?
  5. Whether the laws which comply with article 21 is required to meet the challenge of article 19?
  6. Whether the right under Article 19 (1)(a) has limitations pertaining to any geographic areas?

Ratio Decidendi

Ratio Decidendi in common parlance means the reasons behind the judgement. It actually points to that part of the judgement which is a material part of the judgement barring which it would be difficult for the judge to reach the said conclusion.

Before going to the ratio & reason of the case it is important to  possess a beforehand knowledge about Section 10(3)(c) of the Act in question.

It says – the passport authorities can impound a passport- “if the passport authority deems it necessary so to do 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”.

The Supreme Court delivered this landmark judgment on the 25th January 1978. This judgement went on to alter the face of the Indian Constitution. In this case the court embraced the dissenting opinion of Justice Fazal Ali which he had forwarded in the A. K Gopalan v. State of Madras case. It is this judgments’ ratio which resulted in inexplicable expansion of the scope of Article 21 along with this, it made transparency sure with regards to certain circumstances & situations present in the Indian Constitution. The decision was unanimous with few dissentious instances. However, there was no crucial conflict of

It was a united decision with some scope of dissent at several places, however, there was no major conflict of thinking.

Following is the ratio of the case:

  • Article 14 of the Constitution is not violated by Section 10(3)(c) of the Act in question.
  • The order issued in the present case is violative of the Principle of Natural Justice. That is the rule of Audi Alteram Partem.
  • Section 10(3)(c) of the Act in question does not violate Article 19(1)(a) & Article 19(1)(g) or Article 21 of the Constitution.
  • The order issued is a violation of Article 21 of the Indian Constitution.

Obiter Dicta

  • The freedom of speech is not geographically bound i.e., Article 19 (1)(a) which encompasses within the freedom of speech & ecoression is not bound only to Indian Territory.
  • Whenever we read Article 21 of the Indian Constitution, it is not to be read in isolation which means that all the procedural requirements & violations and under Article 21 are to be tested for ‘Article 14 and Article 19 also.

Judgement

While delivering this judgment, the index of our Constitution was changed by the court by declaring that even if the expression in Article 21 is “procedure established by law” and not “due process of law” still, this does not mean that the procedure therein can be full of evil of arbitrariness & irrationality.

  1. It was held that the Constitution makers would never have intended to harbour such an idea within the realm of the Constitution. The makers would never have intended for the process to be just & completely reasonable. The constitution of India was drafted for protecting the “people of India ” and a wrong elucidation of Article 21 would result in hindrance.
  2. The decision in the case of A.K.Gopalan was overruled by court thereby conforming with the dissent of Justice Fazal Ali. This further went on to declare that there is a peculiar relationship between Article 14, 19 & 21 that is within provisions mentioned in the “Golden Triangle” of our Constitution & therefore it is imperative that the tests laid within shall be passed by every law for it to be valid.
  3. It was also held that the extent of the notion of “personal liberty” shall not be understood in a stricter or narrower manner. The court urged for a broader and more liberal understanding of the concept. This paved the way for a primarily expensive interpretation of Article 21. Directions were laid upon the future courts to widen the horizons of Article 21 of the Constitution so as to instill within all the Fundamental Rights and prevent any stern and restricted construction.
  4. The right to go overseas has been guaranteed to one within Article 21 of the Constitution.
  5. It was observed that there is no violation of Article 19(1)(a), 19 (1)(g) & Article 21 of the Constitution by Section 10(3)(c) of this Act (Passport Act). The court also added that the said provision is not in contradiction to Article 14 of the constitution either. Petitioner’s contention that the impoundment in public interest is not vague was rejected by the court.
  6. It was further held that Section 10(3)(c) & 10(5) of the Passports Act in question pertains to orders of administrative nature and can be challenged on various grounds including –  denial of principles of natural justice, mala fide intention, unreasonableness, and ultra vires to the Constitution.
  7. A suggestion was made by the court to the union government according to which reasons in every case shall be provided ordinarily and the government must only on rare occasions use the liberty of Section 10 Sub Section 5 of the Passports Act 1967.
  8. Rights mentioned in Article 19(1)(g) & 19(1)(a) of the Constitution are not territorially limited.
  9. A new concept of “Post decisional hearing” theory was evolved in which action was followed by a proper method of trial and judgement which is seen in coherence with the action taken. As against the normal procedure of trial & judgement before the action is taken (pre decisional theory).

Precedents Created

In Maneka Gandhi v. Union of India, the expression “personal liberty” & words within were attributed with a broad interpretation. The court observed that the phrase “personal liberty” in Article 21 is bestowed with the widest magnitude which encloses within a diversity of rights constituting and pertaining to a man’s personal liberty. The court also held that Article 21 and Article 19 go hand in hand and coexist to the extent that – if a procedure is prescribed by law for deprivation of personal liberty of a person even if it does not infringe any fundamental right stated in Article 21, yet such law or/& such procedure has to meet the challenges within Article 19.

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The interpretation to the fundamental right to life and personal liberty given in the case being discussed has enabled the courts from time to time to embody within Article-21 the following set of rights:

  1. “Right to live with human dignity” is the guiding map which makes us reach some other recognised rights within the ambit of Article 21. This right is one among very first rights under this Article to have received a foremost consideration and the test of reasonability, justness and fairness must be passed by a law to ensure that it does not deprive a person of his personal liberty as observed by the Supreme Court in this case. Proper clothing, shelter with facilities providing for reading, adequate food, the right to express one’s own self was included in the scope of Right to live with dignity.
  2. “Right to livelihood” had been included under the purview of Right to life being mindful about the fact that it is not possible for a person to live barring the means of living. The Supreme Court in pursuance of this, observed further that the decision of the Municipal Corporation to impose Tehbazari violates the right to carry on business vested within hawkers.
  3. “Right to Education” is recognised by the supreme court to be one if not the most essential rights vested in every person, thereby enshrining it within the Constitution of India (Article 21A). The right to education has been enumerated as a fundamental right of each and every person as opposed to its prior position in the DPSP, owing to the knowledge of its direct flow from ‘right to life’.
  4. “Right of prisoners and right against illegal detention”. With this Article (Article-21) being at disposal not only for the Indian citizens but to every person, it provides scope for recognition of the rights of those persons who have been arrested by coming up with the idea of reasonable and fair process which shall be followed when a person is to be placed under confinement or the steps to deal with illegal detention. Thus Article 21 ensures that even a convicted person is entitled to certain rights within this section even if deprived of freedom. This right extends to the extent that it declared the confinement of a person in solitary to be a violation of Article21 [2]. In another important case, certain guidelines were laid down by the Supreme Court which were to be followed in cases pertaining to the matter of detention and that of arrest. [3]
  5. “Right to legal aid and right to speedy trial”. With time legal action has turned into an expensive process resulting in grave injustices to the penurious persons while adjudicating their claims in court. For the same, the Supreme Court has ensured a method of providing freedom to a penurious person to apply for a free of charge legal service to the state and placed the onus of providing the legal assistance upon it to such penurious persons and look over the adjudication of their claims which shall be free from any legal expense. In pursuance of which, it was declared that every person is entitled to the fundamental right of free legal. [4] Moving another step towards procuring hassle free justice, the right to a prompt trial is observed as an inviolable right of every citizen belonging to this country. [5]
  6. “Right against sexual harassment at work place”. For the purpose of prevention and protection of a working woman from any kind of sexual advancement & harassment at a workplace, a set of guidelines were put forth by the Apex Court which are of profound importance for the aforementioned purpose. [6] These guidelines commonly called the ‘Vishaka Guideline’ ensured the legislature come up with Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
  7. “Right to choice of sex”. In another remarkable judgment, the 5 Judges Constitution Bench of the Apex Court declared Section 377 of the IPC to be ultravires to the Indian Constitution, which struck down the criminalization of relations between two consenting adults having same sex. Thereby permitting a consensual intercourse within the LGBT. Thus constituting another feather in cap for the journey Article 21 has had.[7]
  8. “Right to clean environment”. The right to live a dignified life in a clean and healthy environment with a proper system in place for sanitation and to curb pollution is enshrined within Article 21. [8]
  9. “Right to Privacy’’. As observed by the Supreme Court, the right to privacy is a fundamental right within the purview of article 21 of the Indian Constitution. [9]
  10. “Right to die with dignity”. In exceptional situations, the Supreme Court has permitted passive euthanasia under a proper vigil by the court. It must be mentioned that where an act is done to terminate the life of a patient (active euthanasia) is impermissible however, non performance an act which would otherwise preserve the same (passive euthanasia) was declared to be fundamental right. [10]
  11. “Right to Disclosure of dreadful diseases”. Every person has a right to be informed about any disease which is deadly & dreadful. For instance, a man intending to tie a nuptial knot with a lady is entitled to receive information pertaining to his fiancé who suffers from the dread of AIDS from such doctor who treats the fiancé for such dreaded disease and  delivering such information to the said person won’t be deemed as he has infringed the rights under Article 21.
  12. “Right to choose life partner”. Recently, the Supreme Court has come to the conclusion that every person has a fundamental right under Article 21 to choose his/ her life partner. The court further gave directions to the authorities to take all possible preventive steps required to tackle honour killings and related crimes [11]

Critical Analysis

However the only criticism the judgement would attract would be two fold.

One being that the Supreme Court’s judgment is believed to have gone beyond what was asked of the court to adjudicate upon with regards to the facts placed in front of the court. Although the main concern of the matter, prima facie, being impoundment of the passport of an individual was undertaken by the Attorney-General by providing a post-decisional hearing to Mrs. Gandhi & agreeing that the period of impoundment from the date of its fresh order would not exceed 6 months, in a condition when the government was adamant prolonged continuance of impoundment. Rather than deliberating upon the limited grounds pertaining to the facts of this case, the court preferred to bring into light the other peripheral issues. The issues though being of profound significance to India’s governance, where to some extent distant to the case. Still the judgment went out of bounds by summing up to over 70,000 words.

The second criticism to the judgement can be attributed to the final decision with regards to the core question asked. Despite its earnest observations, failure to pass any “formal order” in this case and by nodding to the word of an adequate opportunity to be given to Ms. Maneka Gandhi, the court played into the hands of the government. Justice Beg opined that the order passed by the government was “neither fair nor procedurally proper” so it earned to be quashed. But the majority prevailed and as a result, the impoundment prevailed.

Further this case is credited with importing into Indian constitution the US concept of  ‘due process of law’. However while drafting the Constitution, the advisor Sir Benegal Narsingh Rau had discussed this clause with the American jurist France Footer who had advised him against incorporating the clause of ‘due process of law’ citing the reasons of uncertainty in judgments in America due to vagueness of this expression. And as such the drafters of the Indian Constitution replaced it by ‘procedure established by law’. Thereby on importing the due process clause into the Constitution through this case, the S.C can be said to have defied the intention of the Drafting Committee who had intentionally placed out the ‘due process clause’.

Conclusion

Despite the fact that the verdict was not in favour of Maneka , or that her challenge to Section 10(3)(c) of the Passports Act 1967 failed, yet the case is considered to be the crown jewel of the constitutional canon of India. The case is believed to stand right there besides Brown v. Board of Education, which revolutionised the Court’s civil rights jurisprudence. [12]  This judgment consigned to dustbin the notorious decision passed in A.K. Gopalan case thereby ushering an epoch the fundamental rights wherein the would be viewed through a holistic lens. The case can be considered to have breathed colour into the otherwise pale “due process” clause within the Constitution.

The present case is a reminder of a constant tussle between democracy and judiciary over power. Where the former in one form or the other has been marauding the people of their rights by ‘might’ and the later has been upholding these rights and declaring the constraints on the rights illegal using ‘rule of law’ as their weapons. This case epitomized a paradigm shift in the legal jurisprudence in late 1970s, ensuring upon the Supreme Court to assert its legitimacy and take on a more active role post the Emergency era, since it had came under unprecedented amount of criticism on account of its failure to act as a defender of liberties and basic values of the constitution during the said Emergency. The case widened the horizons of the Golden Triangle of the Indian Constitution i.e., Article 14,19, and 21. It became the ground for claiming a plethora of rights pertaining to “personal liberty” within the purview of Article 21 of the Constitution.

For interpretation of Article 21, the case is a landmark in itself. It refurbished the lens via which we view the Chapter III of Indian Constitution. Though the Right to life and other associated rights were assured prior to the decision of Maneka Gandhi’s case, only in cases of arbitrary action performed by the executive & not when the legislative action was being performed. In other words, the case extended this protection against the legislative actions also. The case was challenged multiple times, has been a source for citation in multitude of profound precedents & still continues to pose a strong footprint within the  Indian Constitution.

REFERENCES

[1] AIR 1978  SC 597:1978 SCR (2) 621.

[2] Id.; Francis Coralie v. Union Territory of Delhi AIR 1981 SC 746; Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.

[3] Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180; Sodan Singh v. New Delhi Municipal Corporation, 1989 4 SCC 155.

[4] Mohini Jain v. State of Karnataka, AIR 1992 SC 1858; Unnikrishnan v. State of Andhra Pradesh, 1993 SCC (1) 645).

[5] Sunil Batra v. Delhi Administration, 1980 SCC (3) 488.

[6] D.K. Basu v. State of West Bengal, 1997 1 SCC 416.

[7] Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369.

[8] Khatri v. State of Bihar, 1981 SCC (1) 627.

[9] Vishakha v State of Rajasthan, 1997 (6) SCC 241.

[10] Navtej Singh Johar v. Union of India, 2018 (1) SCC 791; Vellore Citizens’ Welfare Forum v. Union of India, 1996 (5) SCC 647; Justice K.S. Puttuswamy (Retd.) v. Union of India, (2017) 10 SCC 1.

[11] Aruna Ramchandra Shanbaug v. Union of India, 2011 (4) SCC 454; Common Cause v. Union of India, 2018 9 SCC 382..

[12] 347 U.S. 483, 490 (1954).

BY SYED ROVEAL MURTAZA | UNIVERSITY OF KASHMIR

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