KARNAVATI UNIVERSITY

ACADEMIC SESSION: 2021-2026

SEMESTER-II

CONSTITUTIONAL LAW

Maneka Gandhi v. Union of India

Group Code:

SUBMITTED TO: SUBMITTED BY:

Mr. Pranay Prakash Kashish Ahuja

Asst. Professor Roll No.:1008al0034

BBA LLB (Hons.)

Section-B
 Case Comment on Maneka Gandhi v. Union of India
By Kashish Ahuja

Citation:
1978 AIR 597, 1978 SCR (2) 621

Bench:
Justice M.Hameedullah Beg, Justice Y.V.Chandrachud, Justice P.N Bhagawati,
Justice V.R Krishna Iyer, Justice N.L Untwalia, Justice Syed Murtaza Fazalali, Justice
P.S. Kailasam

Judgment Date:
25 January 1978

Introduction:
The landmark ruling in Maneka Gandhi v. Union of India, also known as the
Maneka Gandhi case, stands as a bulwark for the Right to Personal Liberty granted by
Article 21 of the Indian Constitution, started when the passport of the petitioner, in
this case, was impounded by the authorities under the provisions of the Passport Act.
This arbitrary act of impounding the passport eventually led to the pronouncement of
a unanimous decision by a seven-judge bench of the apex court. The judgement
consisted of around 70,000 words explaining the ambit of Article 14,19 and 21. The
judgment came in at a time when the nation’s democratic structure was facing an
onslaught, as the Indira Gandhi-led government had passed a deluge of revolutionary
constitutional amendments which severely impinged on a person’s fundamental rights.
1
The mere impounding of the passport, eventually led to opening up the ambit of
2
Article 14, 19, and 21. The case marked the beginning of a golden era of human

1 Zia Mody, 10 Judgements That Changed India

2 Arvind Datar, Commentary on the Constitution of India (New Delhi: LexisNexis Butterworths Wadhwa
Nagpur, 2007)
rights jurisprudence in India- a period in which the Supreme Court transformed itself
into an ‘institutional ombudsman of human rights’. 3

Facts:
In this case, the petitioner, Maneka Gandhi, a journalist, was issued a passport on June
1,1967. On July 4, 1977, she received a letter from the Regional Passport Officer,
Delhi stating that her passport is being impounded by central government under
Section 10(3)(c) of the Passports Act 4 “in the interest of the general public” and that
she is asked to surrender her passport. The petitioner immediately addressed a letter to
the Regional Passport Officer requesting him to furnish a copy of the statement of
reasons for making the said order, as provided under Section 10(5)5 of the same. To
which a reply was sent by the Government of India, Ministry of External Affairs on
July 6, 1977 stating inter alia the government has decided not to furnish a copy of the
statement of reasons as it was not “in the interest of the general public”. The petitioner
there upon filed a petition under Article 32 of the Indian Constitution, challenging the
order passed under the Section 10(3)(c) impounding a passport could not be made by
the Passport Authority without giving an opportunity to be heard and thus the section
is said to arbitrary and would be considered void as offending Article 14, 19 and 21
of the Indian Constitution.

Issues:
- Whether the Fundamental Rights are absolute or conditional and what is the
extent of the territory of such Fundamental Rights provided to the citizens by
the Constitution of India?

3 Laurence H. Tribe and Patrick O. Gudridge, ‘The Anti Emergency Constitution’ Yale Law Journal, vol.113
(2004): p.1801
4 (3) The passport authority may impound or cause to be impounded or revoke a passport or travel document,—
(c) 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.
5Where the passport authority makes an order varying or cancelling the endorsements on, or varying the
conditions of, a passport or travel document under sub-section (1) or an order impounding or revoking a
passport or travel document under sub-section (3), it shall record in writing a brief statement of the reasons for
making such order and furnish to the holder of the passport or travel document 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 a copy.
 - Whether ‘Right to Travel Abroad’ is protected under the umbrella of Article
21?

- What is the connection between the rights guaranteed under Articles 14, 19,
and 21 of the Constitution of India?

- Determining the scope of “Procedure established by Law”.

- Whether the provision laid down in Section 10(3)(c) of the Passport Act, 1967
is violative of Article 14, and if it is, whether such legislation is a concrete law?

- Whether the impugned order of the Regional Passport Officer is in

contravention of principles of natural justice?

Arguments by The Petitioner:

The petitioner argued by stating the fact that the said act of the Passport Authority to
impound a passport “in the interests of the general public” under Section 10(3)(c) of
The Passports Act, 1967 is violative of the equality clause of Article 14 of the
Constitution of India, as the conditions denoted by the words “in the interests of the
general public” limiting the exercise of power is vague and undefined and the power
conferred by this provision is, therefore, excessive and suffers from the vice of “over-
breadth”. Further, the petitioner argued stating that the order passed by the Passport
Authority without giving an opportunity of hearing the petitioner, the order was null
and void, and if such was the interpretation of Section 10(3)(c), it would be
considered as arbitrary and considered void in context with Article 14. The same
section is also considered to be ultra vired to Article 21 as it provides impounding of
passport without any procedure as required by that article or, in any event even if it
could be said that there is some procedure prescribed by law under the Passports Act,
1967, it is wholly arbitrary and unreasonable and therefore not in compliance with the
requirement of that article. And even though India has not adopted American “due
process of law” in its constitution, the procedure established by law must be
reasonable, fair & just free from any sort of arbitrariness. Audi Alteram Partem the
opportunity of being heard is invariably acknowledged as a vital component of the
principles of natural justice. Even if these principles of natural justice are not
expressly mentioned in any of the provisions of the Constitution, the idea behind the
spirit of Fundamental Rights embodies the very crux of these principles.

Arguments by The Respondent:

The respondent, in its reply, stated before the court that, the impounding of the
passport was done since the petitioner had to appear before a government committee
for a hearing, and that if the passport wouldn’t have been impounded the petitioner
would flee the country, and not appear before the committee. Moreover, the Article 21
containing the phrase “procedure established by law” & such procedure does not have
to pass the test of reasonability and need not necessarily be in consonance with the
Articles 14 & 19. The framers of our Constitution had long debates on the American
“due process of law” versus the British “procedure established by law”. The marked
absence of the due process of law from the provisions of the Indian Constitution
clearly indicates the constitution-makers intentions. The respondent further states that
the petitioner was not provided a right to be heard, or not provided with a copy of
statement of reasons of impounding of her passport as it would stultify the exercise of
the power.

Judgement:
The petitioner’s plea that the impugned provision, Section 10(3)(c) of the Act was
violative of Article 14 was rejected by the Supreme Court as the term “interests of the
general public” is not at all vague. But on the other hand, the Government is the best
judge on assessing the interest must have the discretion to impound a passport on this
ground. However, the Court held that impounding the passport without a hearing was
not valid. But in the Court’s view, a post-decisional hearing would satisfy the
requirements of justice. With respect to the violation of Article 19, the court held that
the impugned order was not violative of either Article 19(1)(a) or 19(1)(g). The court
recognized the extraterritorial application of Article 19 and held that these rights were
conceived by the Constitution makers not in a narrow-limited sense but in their widest
sweep. On the question, if the right of free speech and expression can be effective
only if the right to travel abroad is ensured, the court held that a guarantee for a
fundamental right does never mean that every activity which facilitates the exercise of
that fundamental right could also be guaranteed. A contrary position would lead to
absurd results upsetting the entire scheme of Article 19(1). Therefore, the right to go
abroad could not ‘in all circumstances’ be regarded as included in the freedom of
speech and expression. Section 10(3)(c) of the Act, which authorized the imposition
of restrictions on the right to go abroad by impounding of passport, could not,
therefore, be held to be void as offending Article 19(1) (a) or (g) as its direct and
inevitable impact was on the right to go abroad and not on the right of free speech and
expression or the right to carry on trade, business, profession or calling.With regards
to Article 21, the court held even though the phrase used in Article 21 is “procedure
established by law” instead of “due process of law” as found in the American
constitution, the procedure must be free from arbitrariness and irrationality. Even
though the Constitution makers must be respected, but they never intended to plant
such a self – a destructive bomb in the heart of the Constitution. They were never of
the mind that the procedure need not necessarily be reasonable, just and fair. They
drafted this Constitution for the protection of the “people of India” and such
interpretation of Article 21 will be counter-productive to the protection offered by the
Constitution. The court overruled AK Gopalan's case 6in the most indubitable and
vivid manner and has declared in unmistakable terms for the first time that legislation,
as well as an executive act, must meet the new due process requirements in Article 21.
Moreover, it overruled the position in the Gopalan case that the fundamental rights
under Articles 19 and 21 are standing separately and mutually exclusive to each other.
In the present case, it was held that there is a unique relationship between the
provisions of Articles 14, 19 & 21 and every law must pass the tests of the said
provisions. Justice Bhagwati held that even if there is a law prescribing a procedure
for depriving a person of “personal liberty” that law has to meet the challenge of

6 A.K. Gopalan v. State of Madras, AIR 1950 SC 27; 1950 SCR 88; (1950) 51 Cri LJ 1383
Article 19 and the procedure established by law in Article 21 must answer the
requirement of Article 14. According to Justice Krishna Iyer, “no Article in Part III
is an island”. He pointed out that as a man is not dissectible into separate limbs,
cardinal rights in an organic constitution have a synthesis. His indubitable proposition
is that Article 21 does not exclude Article 19 if both rights are breached. The court
widened the scope of the “personal liberty” clause under Article 21. It was held that
the scope of “personal liberty” is not be construed in a narrow and stricter sense. The
court said that personal liberty has to be understood in the broader and liberal sense.
Therefore, Article 21 was given an expansive interpretation. The court obligated the
future courts to expand the horizons of Article 21 to cover all the Fundamental Rights
and avoid construing it in a narrower sense. It was held that Section 10(3)(c) was not
violative of Article 21 as the procedure established by law complied with the
principles of natural justice. Justice Bhagwati held that a post-decision hearing would
do justice in the case under scrutiny. But Justice Beg. had a different view and held
that prior opportunity should have been given to the passport holder. Different from
what other judges did he quashed the impounding order and directed the return of the
impounded passport to the petitioner. The right to travel abroad as held in Satwant
Singh7 is within the scope of guarantees mentioned under Article 21. The court held
that Section 10(3)(c) & 10(5) is an administrative order, therefore, open to challenge
on the grounds of mala fide, unreasonable, denial of natural justice, and ultra vires.
The court also suggested that the government ordinarily provide reasons in every case
and should rarely use the prerogative of Section 10(5) of the 1967 Act.

Conclusion:
This decision restored the people’s faith in the judicial system and guaranteed that
their fundamental rights will be protected. The court departed from its earlier position
in the AK Gopalan Case which held that the right to life and personal liberty can be
restricted by the procedure established by law even if it is not fair and reasonable. In
this case, the regressive view was discarded by the court and held that that procedure
established by law meant a procedure that eventually was reasonable fair and just.
7 Satwant Singh Sawhney v. Assistant Passport Officer, 1967 AIR 1836, 1967 SCR (2) 525
This decision rendered void the plain and simple meaning of ‘procedure established
by law’ and introduced for the first time the concept of ‘due process of law’ into the
Indian constitution. The court also accepted that the Right to Travel Abroad as a very
important component of the Right to Liberty, if this right is not granted, liberty is
distorted. By this judgement, the court increased the scope of Article 21 of the
Constitution and made it the duty to interpret Article 21 in a manner that serves the
people’s interest at most. The ruling also created an interrelation between Article 14,
19, and 21, popularly known as the “Golden Triangle Test” providing that a law
“depriving a person of personal liberty” has not only to stand the test of Article 21, but
it must stand the test of Article 19 and Article 14 of the Constitution as well. The
specialty of the Maneka Gandhi judgement is that it is a very balanced decision that
expanded the scope of the fundamental rights all the while retaining the provisions of
the Passport Act, thereby savouring the power given to the Parliament by the
Constitution.