Author: Sivapuram V.L. Thejaswini Student, Alliance University
This case marks one of the landmark judgements delivered by the ‘7-judge bench’ of the Supreme Court which highlights the concept of ‘Golden Triangle’ i.e., the relation between Articles 14,19 & 21 of the Indian Constitution. The ambit of ‘Article 21’ got widened here. The broad scope of this article has been explained by the Supreme Court very clearly.
‘Article 21’ generally explains the ‘Right to life & personal liberty’. Before this judgement was delivered this right can be utilized against the executive but after this judgment this right can be used even against the legislature also.
The doctrine of Post-decisional hearing was also propounded by the Supreme Court through this case.
1) Before math of the decision –
Narrow scope of ‘Article 21’ was taken into consideration by the court in ‘A.K. Gopalan v. State of Madras’. Petitioner in this case was detained under The Preventive Detention Act of 1950. The validity of this detention was challenged by him on the grounds of violation of his fundamental rights;
Article 19(1)(d) which deals with the Right to move freely through out the territory of India.
Article 21 – Protection of life & personal liberty – No person shall be deprived of his life (or) personal liberty except according to the procedure established by law.
Issue – Whether the “due process of law” and “procedure established by law” are same & if it follows the principles of Natural Justice ?
Held – In this case the court took a view that is contrary to the Principles of Natural Justice and also confined the scope of “personal liberty” merely with respect to the physical body[1].
A clear meaning to “liberty” has been given in ‘Kharak Singh v. State of UP’, In this case Kharak Singh challenged the domiciliary visits by police at night as a violation of his ‘Right to privacy’. It has been decided that ‘Right to privacy’ was not guaranteed under ‘Article 21[2]’.
Right to travel was recognized to be within the ambit of “personal liberty” under ‘Article 21’ in the case of ‘Satwant Singh v. Union of India’. Refusal to issue passport to the petitioner by the authorities is also in violation to ‘Article 14’ of the Constitution[3].
2) Facts of the case –
In this case, a notice was served to the petitioner by the Regional Passport Office, Delhi to submit her passport. Passport has to be submitted within 7 days on receiving the notice. The authority was granted through ‘Section 10(3)(c) of the Passport Act, 1967 in the interest of public.
When the petitioner has asked for the reasons under ‘Section 10(5) of the Passport Act, 1967’ on which her passport got impounded. The authorities replied that they can’t provide reasons as it is in the interest of public. So a writ petition was filed by the petitioner against this order.
3) Provisions of the Passport Act, 1967 –
Section 10(3)(c) – This section states that the authorities have the power to impound the passport of an individual if it is in the interests of the general public with respect to sovereignty & integrity of India[4].
Section 10(5) – It states that the government has to provide a reason for impounding of passport to the person concerned. But it is also given that the reason may not be provided if the government is of the opinion that it may be against the interest of the public (or) the sovereignty & integrity of India[5].
4) Judgement analysis –
In this case, it was decided that the Principle of Natural Justice (Audi alteram Partem) has to be provided to the petitioner.
Section 10(3)(c) of the Passport Act is also in conformity with ‘Article 21’ where it gives the power to the authorities to impound passport in the interest of general public. It has been recognized by the courts also.
It was also held that the powers given to the Passport authorities are not arbitrary & excessive and hence in conformity with ‘Article 14’.
The petitioner has relied on the American judgement of Kent v. Dullas[6] in which it was held that ‘Right to travel’ is a fundamental right. But the court here stated that the petitioner’s right under ‘Article 19’ was not violated because the purpose of her visit has not been stated clearly.
It was also stated that the right of a petitioner with respect to profession, free speech & expression may be violated when the passport has been impounded.
It was also stated that there are some fundamental rights which can be exercised even beyond the territories of India.
Golden triangle – concept – ‘Articles 14, 19 & 21’ together constitute the Golden triangle. The fundamental rights are not mutually exclusive but mutually dependent of each other. Thus, they are not distinct to each other. Thus, a law depriving a person of “personal liberty” has to not only stand the test of ‘Article 21’ but also of ‘Article 14 & 19’ as well.
Post Decision Hearing – concept –
Generally, this concept is to bring about a balance between administrative efficiency & fairness to individuals. It states that when it is not possible for the authorities to conduct a pre-decisional hearing then a post-decisional hearing has to be provided to the individuals, so that they may present their views. And it also serves the need of the compliance with the Principles of Natural Justice.
It is not mandatory to follow this concept of Post decisional hearing to satisfy the principle of ‘Audi Alteram Partem’ because the facts & circumstances of each and every case are different.
5) Conclusion –
As this decision has many important points to be dealt with, so it is considered to be one of the most reliable judgements even after many years.
The court in this case has over ruled the judgement laid down in AK Gopalan’s case. It was also given that there is a need for the procedure established by the law so as to prevent the arbitrariness. While interpreting the ‘Article 21’ the interest of the public also has to be served. Thus, it has to not be construed narrowly & a broad interpretation has to be followed in respect of Right to life & personal liberty.
In this case the court has not passed any order. Because the petitioner has to be given the opportunity to express her views. As there was no pre-decisional hearing in this case. This is where the concept of Post decision hearing was considered.
Before giving the final decision the views of the petitioner also have to be considered. So in this case we can see that the concept of Post decision hearing along with the principle of ‘Audi Alteram Partem’ got evolved.
A very balanced decision has been laid down by the court in this case by giving required importance to the concept of fundamental rights. The scope of fundamental rights has been broadened. The important aspect of this judgement lies with the ‘Golden triangle test’ in which it was laid down that the ‘Articles 14, 19 & 21’ of the Constitution are not mutually exclusive & are interdependent of each other[7].
[1] AIR 27, 1950 SCR 88
[2] 1963 AIR 1295, 1964 SCR (1) 332
[3] 1967 AIR 1836, 1967 SCR (2) 525
[4] Section 10(3)(c) of the Passport Act, 1967
[5] Section 10(5) of the Passport Act, 1967
[6] 357 U.S. 116 (1958)
[7] AIR 1978 SC 597