The Solicitor General rejected the argument that free speech standards as they related to newspapers applied to tne

internet on tie soe

that their differences were too great. He explained that while newsoapers onlv allowed one-way communication, the internetbanmade t poss10e
only certain
possible to
to communicate in both directions, making dissemination of messages very simple. He concluded that it was not
websites or parts of the Internet while allowing access to other parts. as the government learned in 2017:
Bh

Decision Overview
was to "to strike a balance between
The Supreme Court began by stating that in light of the facts of the nrecent cace the obiective of the Court
possible manner," and leave the propriety of the
the liberty and security concerns so that the right to life is secured and enioved in the best
orders at issue for "democratic forces to act on." Ipara. 11

The Court then identified five issues from the arguments presented by the petitioners and the government:

1. Whether the Government can claim exemption from producing all of the restriction orders ?
2. Whether freedom of speech and expression and frepdom to nractice any orofession, or to carry on any occupation, trade or business
over the Internet is a part of the fundamental rights orotected by Article 191)(a) and Article 19(1)(g) of the Constitunon?

3. Whether the Government's action of prohibiting internet access is valid?

4. Whether the imposition of movement restrictions under Section 144 of the Code of Criminal Procedure was valid
5. Whether the freedom of the press of the Petitioner in WP (C) No. 1031 of 2019 was violated due to the restrictions?

The five issues above were analyzed by the Court in four sections:

1. Whether the Government can claim exemption from producing alltheorders for the restrictions?

The Court held that the State had to produce the orders imposing the restrictions. It began by noting the difficulty it had experienced in
determining the legality of the restrictions when the authorities had refused to produce the orders imposing the said restrictions. Citing the
precedent inRam Jethmalani v. Union of india (ntps //ndiankanoon org/doc/ "232 145 1. (2011) 8 SCC 1,the Court explained that the State had an
obligation to disclose information in orderto satisfy the right to remedy as established in Article 32 of India's Constitution. Furthermore, Article
19 of India's Constitution had been interpretedto include the right to information as an important part of the right to freedom of speech and
expression.The Court added, "a democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders
as it is the right of an individual to know." [para. 15] These fundamental rights obliged the State to act responsibly in protecting them and
prohibited the State from taking away these rights casually.The Court reiterated that no law should be passed in secret because of an
anticipated danger to democracy that such acts may entail. To make its point, the Court cited James Madison, "a popular government, without
popular information, or the means of acquiring it, isbut aprologue to a farce or a tragedy; or perhaps both. Knowledge will forever govern the
ienorance and a people who mean to be their own governors must arm themselves with the power which knowledge gives." (para. 16]The
State was thus obliged to take proactive steps to make publicany law restricting fundamental rights unless there was a countervailing public
interest reason for secrecy. However, even in such cases, the Court would be the body to weigh the State's privileges against the right to
information and decide what portions of the order could be hidden or redacted. In the present case, the State initially claimed privilege, but
then dropped the claim and released some of the orders, explaining that all could not be released because of unspecified difficulties. For the
Court, such justification was not a valid ground.

2. Did the restrictions affect freedom of movement, freedom of speech and expression and right to free trode and vocotion ?

First, the Court reiterated that freedom of expression guaranteed under Article 19 of India's Constitution extended to the internet. The Court
recalled its extensive jurisprudence that extended protecthons to new mediums tor expression. In Ingian Express v. Union of India
(httos /indiankanoon.org/doc/223504/), (1985) 1SCC 641, the Supreme COurt ruled that treedom of expression protects the freedom of print
medium. In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana(https//indiankanoon org/doc/1241 147/), (1988) 3 SCC 41o. it was held that
the right of citizens to screen films was a part of the fundamental right of freedom of expression. Online expression has become one of the
major means of information diffusion,and accordingly it was integral to the enjoyment of freedom of speech and expression guaranteed by
Article 19(1)(a) (ntps //ndiankanoon.org/doc/1 378441/), but also could also be restricted under Article 19(2) (ntpss/Ind.gnkanoon oraldoc/49 3243/)of the
Constitution.

Accordingly, the Internet also plays a very important role in trade and commerce, and some businesses were completelydependent onthe
internet. Therefore the freedom of trade and commerce by using the internet was also constitutionally protected under Aricie 19(1 Me
thtps /lndiankanoon org/doc/935 769/), subject to the restrictions providedunder Article 19(6). (htps//ndankonoon org/doc /626103A The Court. however.
did not goas far as to declare the right to access the internet as atundamental right because none of the parties to the case made that
argument.The Court thendiscussed whether freedom of expression could be restricted and to what extent. India's Constitution allows the
Government to restrict freedom of expression under Article 19(2) as long as the restrictions were prescribed by law, were reasonable, and were
 poseo Tor a legitimate purpose. The Constitution lists an exhaustive list of reasonable restrictions that include "interests of the sovereignty,
integrity, security, friendly relations with the foreign States, public order, decency or morality or contempt of Court, defamation or incitement
tO an orence." (para. 31] By reviewing its jurisprudente concerning the application of Article 19(2), the Court concluded that restrictions on
Tree speech and expression could impose complete prohibitions. In such cases, the complete prohibition should not excessively burden free
speech and the<governmenthas to explain why lesser alternatives would be inadequate Lastly, whether a restriction amounts to acompete
prohibition is a question of fact to be determined by the Court on the circumstances of each case.

Ihe Court then turned to the geopoliticalcontext of the restrictions. It agreed with the Government that Jammu and Kashmir had long been
plagued by terrorism. The Court noted that modern terrorists relied heavily on the internet, which allowed them to disseminate false
intormation and propaganda, raise funds, and recruit others to their cause. Accordingly, the Indian authorities argued that the "war on
terrorism" required imposition of the restrictions "so as to nip the problem of terrorism in the bud." (para. 37|The Court noted that "the war
on terror" was unlike territorial fights and transgressed into other forms affecting normal life, thus it could not be treated as a law and order
situation,

The Court then reviewed the U.S. First Amendment and its jurisprudence from 1863 to the present dav to conclude that speech which incites
imminent violence is not protected. The Court highlighted that American leaders and the judiciary repeatedly restricted freedom of expression
in the name of national security. The first of these cases was from 1863, Vallandigham, (Vallandigham 28 F. Cas. 874 (1863), when Mr.
Vallandigham was found guilty and imprisoned during the American Civil War for publicly calling it "«wicked, cruel and unnecessary." In Abrams
v. United States, 250 U.S. 616 (1919), Justice Holmes wrote that the power to the United States government can punish speech that produces
or is intended to producea clear and imminent danger, and that this power Jundoubtedly is greater in time of war than in time of peace,
because war opens dangers that do not exist at other times." (para. 40] In Dennis v. United States, 341 US 494 (1951), the US Supreme Court
held that the "societal value of speech must, on oCcasion, be subordinated to other values and considerations." [para. 41] In Brandenburg v.
Ohio ihtps/globa ieedomofexpresson colunbio cdwcoseybrandenturgv-ohofi, 395 US 444 (1969), the US Supreme Court held that the State can punish
agvocacy of unlawful conduct onlyif it intends to incite and is likely to incite "imminent lawless action" Lastly, the indian Court recalled that in
the post 9/11 context, US Attorney General Ashcroft criticized those questioning the erosion of fundamental rights as the result of the war on
terror. Specifically saying, "to those... who scare peace loving people with phantoms of lost liberty, my message is this: Your tactics only aid
terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies...".(para. 44] The Court
recalled that in the recent Modern Dental College & Research Centre v. State of Madhya Pradesh (https //indiankanoon. org/doc 993 35 142/), (2016) 7
SCC 353 it found that no constitutional right can be claimed to be absolute considering the interconnectedness of all rights, and accordingly

could be restricted. In that judgment, the Court also found that when there are tensions between fundamental rights, they must be balanced
againsteach other so that "they harmoniously coexist with each other" (para. 55)

Just as the First Amendment, the Indian Constitution allows the Government to restrict freedom of expression, but per the Indian Constitution
such restrictions must be proportionate. Jhe Court stressed that the standard of proportionality vas key to ensuring that aright is not
restricted beyond what is necessary. That said,the Court expressed caution at balancing nation alsecurity with liberty and rejected the notion
that a government should be prohibited from achieving a public good at the cost of fundamental rights. With this in mind, the Court defined
proportionality as the question of whether "regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures
has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order,
as the case maybe" [para. 53] The Supreme Court then proceeded to conduct an extensive comparative feview of proportionality tests used by
Indian,German and Canadian Courts. It found that while there was agreement that proportionality was the key tool to achieve judicial balance
when resolving questions of restrictions on fundamental rights, there was no agreement that proportionality and balancing were equivalent.
The Court then outlined its understanding of the test of proportionality:

1. The goalof the restriction must be legitimate.

The restriction must be necessary.

3. The authorities must consider ifalternative measures to the restriction exist.

4. The least restrictive measure must be taken.
5. The restriction must be open to judicial review.

The Court added that the "degree of restriction and the scope of the same both territorially and temporally, must stand in relation to what is
actually necessary to combat an emergent situation... The concept of proportionality requires a restriction to be tailored in accordance with the
territorialextent of the restriction, the stage of emergency, nature of urgency, duration of such restrictive measure and nature of such
restriction." [para. 71]

3. The legality of the Internet Shutdown

Having laid out the principles of proportionality and reasonable restrictions,. the Court turned to assessing the restriction imposed on freedom
of speech online. It outright rejected the State's justification for a total ban on the internet because it lacked the echnology to selectively block
internet services as accepting such logic would have given the State green light to completely ban internet access every time. However, the
Courtconceded that there was "ample merit in the contention of the Government thakthe internet could be used to prapagate terrorism)
 thereby challenging the
sovereignty and integrity of india" and thus it had to determine the extent to which the restriction burdened free
speech (para 76]

The Court
highlighted that it had to consider both and substantive elements to determine the Constitutional |legality of the internet
shutdown. The procedural mechanism has two procedural
the Government. Second, there is the statutory
comnponents. First. there is the contractual component between Internet Service Providers and
component as enshrined under the Information
Technotoky
Thps //inaian kano0n org/doc/1 965 344/), 2000, the Code of Criminal p r o c o d . o n nro/doc/12 33094), 1973 and the Teiegtapn Act
(https. //indiankonoon org/doc/35 78 30/). In its analysis. the Court focusod Iaraal, on the atter as it directly applied to the cdse dt a

The Suspension Rules under Section 7 of the

Telegraph Act were passed in 2017 and allowed the government to restrict telecom services,.
Inciuding access to the internet, subject to certain safeguards, These safeg.uards were that hrst,the suspension orders may be issued only by
tne secretary to the Government of India in the Ministry of Home Afairs or hy the Secretary to the State Government in charge of the Home
Department. In unavoidable circumstances another official not below the rank of a Joint Secretary to the Government of India may issue the
orders provided that the competent authority approves the must be
ordersSwithin 24 hours of its issuance. Without approval the suspension
lited within 24 hours. The orders must include reasons for the suspension and its copy must be sent to a Review Committee consisthng or
senior State officials. The reasons should not onlyexplain the necessity ofthe susDension but also the "unavodable circumstance which
necessitated the order.

Furthermore Section 5(2) (htps /ndionkanoon org/dnc/1445510/) ofthe Telegraph Act /ntps/ndankanuon org/aon 157810) Ppermitted suspension orders
only in a situation of public emergency or in the interest of public safety The Court thus found that to issue a suspension order, the
Government first had to determine that a public, and not any kind of other, emergency existed "Although the phrase "public emergency has
not been defined under the Telegraph Act (htps //ndionkanoon oro/doc/15 7g s0/). it has been clar1fied that the meaning of the phrase can be interred

from its usage in conjunction with the phrase "in the interest of public safety" following it" [para 92|

The Supreme Court noted that the definition of an emergency varies. for example, "Article 4 ntp ndanknoon orgdo 101912 &) of the

International Covenant on Civil and Political Rights, notes that )n tme of public emergency which threatens the life of the nation and the
existence of which is officially proclaimed Comparable language has also been used in Article 15 ntps of the
European Convention on Human Rights which says "In time of war or other publicemergency threatening the ife of the nation" We may only
point out that the 'public emergency' is required to be of serious nature, and needs to be determined on a case to case bas1s" para. 93|

Although the Suspension Rules do not provide for publication or notification of the orders, the Court noted that public availability of a
government order is a settled principle of law and of natural justice, particularly if an order affects Iives, liberty and property of people The
Court reiterated that Article 226 of India's Constitution grants an aggrieved person the constitutional right to challenge suspension orders

of telecom services, be it the Internet or otherwise

Eindinp it necessary, the Court once again reiterated that "complete broad suspension
if necessary and unavoidable In furtherance of the same the State must
beine a drastic measure, must be considered by the State only
alternate less intrusive remedy." [para. 99]
assess the existence of an

The Cou urt noted that the Suspension Rules do not indicate the maximum durahon of a suspension order. Nonetheless. considering the orinciole
the Suspension Rules were silent on the length of a
of proportionality, the Court opined that indeinite suspensionis impermissible. Since
Review Committee to determine its duraton and oensuure that it wo. ld not
permissible shutdown, the Court found that it was up to the
extend beyond a period which was necessary.

The State submitted eight orders to the Court. Four were passed by the Inspector General of the Police and the other four by the goveroment
of lamm and Kashmir The Solicitor General explained that the authorittes relaxed some restrictions but were coniouously a00raising the
situation on the ground. The Court conceded that the anger to puoe salety couid not be ignored, but noted that any new restrictions would
have to be imposed on the basis of a new order. Since the Cout cOuia not View all orders to understand which were no longer in effect and
"moulded the reliet in the operative portion" Inara 101
could not assess the public order situation, it

the Code of Criminal Procedure Code

4. Restrictions Under Section 144 of

had to prove that there "wOud be an achoo which

The Petitioners argued that to justify restrictions under Secthon 144 One CT.L, the State
will likely create obstruction, annoyance or injury to any person or w keiy cause disturbance of the public tranguility, and the Government
could oot have passed such orders in anticipation or on the basis Ol d mere dpprenension." lpara. 1031 The State argued that "the volatile
history overwhelming material available even in the pubiC domaaveALenal dggression, nefarious secessionist activities and the
provocative statements given by political leaders, created a compeg tUdton Which mandated passing of orders under Section 144 " para.

104)
that enable the State
of the mechanisms to maintain public peace and it could be invoked in urgent
The Court noted that Section 144 is one
it allows the State to take preventive measures to deal with imminent threats to public peace. Ine
cases of nuisance or perceived danger. Thus,
Section contains several safeguards to prevent its abuse, inciuoiB oennt oy a magistrate to conclude that there were suhcient
 restricted and determining the length of the
grounds for restrictions under the section, identihCaton or a person(s) Wnose rights may be
restriction.

Judicial precedent established that restrictions under SectOn J44 Cannot be imposed merely because there was likelihood or tendency of
danger. but onlytoimmediatelv prevent specific acts that may lead to anger. The restriction could be impOsed on an entire area if it contains
groups of people disturbing public order. Indefinite restriCttons under Sechon 144 are unconstitutional. Orders passed under Section 144 were
executive orders subiect to judicial review under Articie 226 0T tne constunon. The State cannot impose repetitive orders, which would be an

abuse of power

The Petitioners also argued that maintaining "law and order woula warrant a narrower set of restrictions than "public order." under Section
144. The Supreme Court agreed that the notions of "public order and "law and order" differed, with the latter being the broadest. The Court
described thedifferences as concentric circles lvith law and order representing the largest circle "within which is the next circle representing
public order and the smallest circle represents security of State " [para. 120] Allowing the imposition of restrictions to protect law and order
would thus broaden the authority of the government to impose restrictions. Further, not all disturbances of law and order undermined public
order.

The Court, however, agreed that there may be times when it is impossible to distinguish between the individuals who may break publicorder
and those who do not pose athreat."A general order is thus justified but if the action is too general, the order may be questioned by
appropriate remedies for which there is ample provision in the law." [para, 124)

Nevertheless. the Court noted that "orders passed under Secthon 144 (hrtps /inaionkonoon org/doc, 357830/, Cr P.C(htps nd enkoroon ora dox/123 3091 ).
have direct consequences upon the fundamental rights of the public in general. Such a power, if used in acasual and cavalier manner, would
result in severe illegality." (para. 129] Thus, it is imperative to indicate the material facts necessitating the passing of such orders. The Court
conceded that the State is best placed to assess threats to public order, but it had to exhibit the material facts to justify an order under Section
144 to enable judicial scrutiny and verification of the order's legitimacy. Akey consideration is the perceived imminence of the threat and
whether invoking Section 144 was the proper remedy to prevent potential harm. Magistrates must balance the the right and restriction on the
one hand against the right and duty on the other, and any restrictions must be proportionate, i.e. "never allowed to be excessive either in
nature or in time." [para. 39]Further, "[o]rders passed mechanically or in a cryptic manner cannot be said to be orders passed in accordance
with law." (para. 134)

Although the restrictions may have been removed, the Court stated that it cannot ignore noncompliance with the law in thiscase, as the issue
at hand is not just about what happened in Jammu and Kashmir but also about imposing a check on the State. The Court reiterated that a
gOvernment must follow the law if it feels that there is a threat to public order.

Thus, the Court concluded that the power under Section 144 could be exercised "not only where there exists present danger, but also when
there is an apprehension of danger. However, the danger contemplated should be in the nature of an 'emergency' and for the purpose of
preventing obstruction and annoyance or injury to anyperson lawfully employed." [para. 140] The power cannot be used to suppress legitimate
expression and should be used only in the presence of material facts justifying its application.

5. Freedom of the Press

The Court rejected the Petitioners arguments that the restrictions on movement and communication imposed in Jammu and Kashmir directly
curtailed freedom of the press and journalists' ability to perform their professional duties. The Court began by highlighting the importance of
freedom of the press. It recalled that as early as in 1914, the freedom of the press had been recognized in India. In Channing Arnold v The
Emperor (https /indiankanoon org/doc/1 621673/), (1914) 16 Bom LR 544, the Privy Council stated that: "the freedom of the journalist is an ordinary
part of the freedom of the subject and to whatever length, the subject in general may go, so also may the journalist, but apart from the statute
law his privilege is no other and no higher. The range of his assertions, his criticisms or his comments is as wide as, and no wider than that of
any other subject." Ipara. 142] It was thus not doubted that the freedom of the press is avaluable and sacred right protected by the Indian
Constitution.

The Court interpreted the Petitioners toclaim that the imposed restrictions did not necessarily have a direct but rather an indirect as well as a
chilling effect on their freedom of expression. However, the Court found that the Petitioners failed to offer evidence that the restricthons

restricted the publishing of newspapers in Jammu and Kashmir or to challenge the States argument that newspapers were published and
distributed during the communication and movement lockdown. "in view of these facts, and considering that the aforesaid Petitioner has now
resumed publication, we do not deem it fit to indulge more in the issue other than to state that responsible Governments are required to
respect the freedom of the press at all times. Journalists are to be acconmmodated in reporting and there is no justification for allowing a sword
of Damocles to hang over the press indefinitely." (para. 151]

Conclusions

Based on the above the Court found that:

Constitution of India
Article 21
Generally -- Nature and Scope
- Art. 21 - Right to travel abroad - Nature and scope of Held, is part of
"personal liberty" "Law" in Art. 21 affecting personal liberty must satisfy the test
of one or more of the rights under Art.19 and the test of reasonableness under Art.
14 Nor can right to goabroad, an aspect of personal liberty, be curtailed without
reasonable opportunity to show cause "Procedure" in Art. 21 cannot be arbitrary,
unfair, oppressive or unreasonable Reasonableness of procedure cannot be
considered in the abstract - "Established". meaning of - Hen ce rules of natural
justice must be followed before impounding of passport under S. 10(3)(c) of
Passports Act, 1967 - Citizens, Migrants and Aliens Passports Act, 1967 - S. 10
(3) (c)
Per Beg, C.J.
There can be little doubt that the right to travel and to go outside the country, which orders
regulating the issue, Suspension, impounding or cancellation of passports directly affect, must
be included in the right to personal liberty. Therefore, it could not be held that the
impounding or cancellation of a passport does not impinge upon and affect the fundamental
rights guaranteed by the Constitution.
recognised
Natural law rights were meant to be Converted into our constitutionally
fundamental rights, at least so far as they are expressly mentioned, so that they mnay be

found within it and not outside it. A divorce between natural law and the Indian

constitutional law will be disastrous.

human rights of the individual and that
On the assumption that there are inherent or natural
the implication is that Art. 21 is
they are recognised by and embodied in the Constitution,
existence does not depend
also a decaration of rights which inhere in every individual. Their
which the theoretically recognised or
on the location of the individual. The degree to
balancing of principles on which an inherent
abstract right is concretised is determined by the
restrictive law or orders under it could be imposed
right is based against thOse on which a
be decided, as it arises before the Court. what the
upon its exercise. In each case it has to
result of such a balancing is.
Per Chandrachud, J.
uled
Ramarathnam, (1967) 3 SCR 525, the Supreme Court
In Satwant Singh Sawhney v. D.
of the Constitution
"perso nal Tibery which occurs in Art. 21
by majority that the expression except
that right
incudes the right to travel abroad)and no person can be deprived of
law. The Passports Act which was enacted by
ccording to procedure established by
a procedure whereby an
with that decision prescribes the
Parliament in 1967 in order to comply without endorsement and
granted ruliy or partially, with or
application for a passport may be
impounded; but the mere prescription of
passport once granted may later be revoked or prescribed
a
cannot ever meet the manddte of Art. 21. The procedure
some kind of procedure
reasonable, not fanciful. oppressive or arbitrary.
by law has to be fair, just and takes away the
whether the procedure prescribed by law which curtails or
The question considered not in the
21 IS redsondoe or not, has to be
by Art.
personal liberty granted
 ted For Raghav Pandey, National Law University. Dwarka
v
NLINE SCCOnline Web Edition:
http://www.scconline.com
wa te eoal
researck © 2023 EBC Publishing Pvt. Ltd., Lucknow.

abstract or onhypothetical considerations like the provisions for a

CourtrOom trial, but in the context primarily of the full-dressed hearing as in a
achieve and of urgent purpose which the Act is intended to
situations which those who are charged with the duty of
administrating the Act may be called upon to deal
with.
Even the fullestcompliance with the requirements of Art. 21 is not
a law which the journey's end
prescribes fair and reasonable procedure for because
personal iberty guaranteed by Art. 21 has curtailing or taking away the
still to meet a
provisions of the possible challenge under other
Constitution like Arts. 14 and 19. The
enquiry whether the right to travel
abroad forms a part of any of
the
the freedoms mentioned in Art. 19(1) is not to be shut out at
thnreshold merely because that right is a part of the
under Art. 21. quarantee of the
personal iberty
Per Bhagwati, Unt walia &
Any procedure which
Fazal Ali, J).
permits impairment of the
giving a reasonable constitutional right to go abroad without
opportunity to show cause cannot but be
unjust and hence there is, in the condemned as unfair and
present case, clear
21. Even when the
statute is silent, the law may, n a infnngement of the
requirement of Art.
apply the principle of audi qiven case, make an
alteram partem. The pnnciple of the tmpication and
no one shall be max1im which mandates that
condemned unheard is part of the
applicability of the doctrine of natural justice Is thatrules of natural justice. When the test of
be heard should be for farness in action an
there can be no distinction opportunity
given to the affected person, to
-judicial function and an between a quasi
administrative function. The aim of bothn is to arrive at a
decision and if the ruie of natural just
justice is calculated to secure
negatively, to prevent miscarriage of justice, it is justice, or, to put it
to quasi-judicial difficult to see why it should be applicable
enquiries only and not to an
decision in an administrative enquiry may have adm1nistrative enquiry. Sometimes an unjust
far more seious
of a quasi-judicial enquiry and consequences than adecision
hence the rules of natural justice must
administrative enquiry which entails apply equally in an
civil consequences. The law must
be taken to be well
settled that even in an
administrative proceeding which involves Civil
doctrine of natural justice must be held to be consequences the
applicable. In the present case, the power
conferred on the passport authority is to
impound a passport and the
impounding the passport would be to impair the constitutional right of consequences
of
the holder of the
passport to go abroad during the time the passport is
impounded. Moreover, a passport can
be impounded only on certain
specified grounds set out in S. 10(3) of the Passports ACt and
the passport authority would have to apply its mind to
the facts and cirCumstances of the
qiven case and decide whether any of
those grounds exist which would justify the
impounding. The authority is also reguired by sub-section (5) to record in writing a brief
statement of the reasons for making an order of impounding and save in certain
exceptional
circumstances it is obliged to furnish a copy of the statement of reasons to the holder of the
passport. A right to appeal against the order is given by S. 11 and in the appeal the validity
of the reasons given by the passport authority can be canvassed before the appellate
authority. The rules of natural justice would, in the circumstances, be applicable in the
exercise of the pOwer ot impounding a passport.
Since the life of the law is not logic but experience and every legal proposition must in the
ultimate analySIS be tested on the touch-stone of pragmatic realism, audi alteram partem
 SCC Online Web
CC
NLINE
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Printed
SCC
Edition, 2023
Wednesday, NovemberEBC22, Publishing
For: Raghav 2023
Pandey, National Law
Online Web Edition:
Pvt. Ltd.
© 2023 University, Dwarka
http:/ www.scconline.com
serest wa, to leoal resevch !
EBC Publishing Pvt.
Ltd., Lucknow.

ruie wOuld, by the

experiential test. be eycluded if imoorting the right to
effect of paralysing the be heard nas tne
the situation so administrative process or the need for promptitude or the urgency of
demands. But the rule is cuffciorntly
VarlatlOns to Suit the exigencies of myriad kinds of fexible to permit modifications and
thererore, be right to conclude that the nle is situations which may arise. It would not,
impound a eycluded merely because the power to
passport might be frustrated if prior notice
concerned. Te and hearing were given to the
passport authority may impound the passport without person
oppotunity to the person concerned but as soon as the giving any prior
order impounding tne pasSport 1s
made, an opportunity of hearing.
remedial in aim. should be given to him so that he may
present his case and controvert that of the
authority and point out why his passport should
not be impounded and the order
impounding should be recalled. A fair opportunity of being
heard following immediately upon the order
impounding the passport would satisfY the
mandate of natural justice and a provision reguiring giving of such an
read by implication into the Act. And if so read,
opportunity should be
the procedure prescribed by the Act would
be right, fair and just and would not suffer from
the vice of arbitrariness or unreasonableness.
Therefo re, the procedure established by the Act for impounding the
passport is in conformity
with the requirements of Art. 21 and does not fall foul of that article.
Per Krishna Iyer, ).
Personal liberty makes for the worth of the human person. Travel makes liberty
worthwhile.
Life is a terrestrial opportunity for unfolding personality, rising to higher
states, moving to
fresh woods and reaching out to reality which makes our earthly journey a true fulfilment
not a tale told by an idiot full of sound and fury signifying nothing, but a fine
frenzy rolling
between heaven and earth. The spirit of mnan is at the root of Art. 21. Absent liberty, other
freedoms are frozen.
The freedom of foreign travel which is included in Art. 21 can be fettered or forbidden by
procedure established by law. But the quality of fairness in the procedure is emphasised by
the strong word "established" which means settled formally' not wantonly or whimsically. If
it is rooted in the legal consciousness of the community it becomes "established" procedure
The comousion of constitutional humanism and the assumption of full faith in life and liberty
cannot be so futile or fragmentary that any transient legislative majority in tantrums against
any minority, by three quick readings of a bill with the requisite quorum, can prescribe any
unreasonable modality and thereby sterilise the grandiloquent mnandate. Procedure
established by law' with its lethal potentiality will reduce life and liberty to a precarious
plaything if we do not ex-necessitatus import into these weighty words an adiectival rule of
law. civilised in its soul, fair in its heart and TXIng those imperatives of procedural protection,
absent which, the pro cessual tail will wag the substantive head. To frustrate Art. 21 by
relying on any formal adjectival statute, however, flimsy or fantastic its provision, is to rob
what the Constitution treasures. The procedure which deals with the modalities of requlating.
restricting or even rejecting a fundamental right talling within Art. 21 has to be fair, not
foolish, carefully designed to effectuate, not to subvert the substantial right itself. Thus
understood, "procedure" must rule out anything arbitrary, freakish or bizarre. It cannot be
said to be a legal procedure if the passport is granted or refused by takina lots. ordeal of fire
or by other strange or mystical methods. Nor is it tenable if life is taken by a crude or
summary process of enquiry. Procedure in Art., 2 1, therefore, means fair not formal procedure.
Law is reasonable law not any enacted piece. It has been rightly pointed out that for other
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procedural safeguards enshnned in Art. 21 are

'gits Toming part of personal liberty, the
22 will be available only in
dvallable. Otherwise, the procedural safeauards contained in Art.
fundamental than any
Cases of preventive and punitive detention, the right to life, more
other, forming part of personal liberty and paramount to the happiness, dignity and wortn or
the individual, will not be entitled to any procedural safeguard save such as a legislature s
mood chooses.
Running right through Arts. 14 and 19 is present this principle of reasonable procedure in
different shades. A certain normative harmony among the articles is thus attained and Art. 21
bears in its bosom the construction of fair procedure legislatively sanctioned. No passport
Ofticer shall be a mini-Caesar nor Minister Caesar incarnate. Liberty of locomotion into alien
territory cannot be unjustly forbidden by the "Establishment" and passport legislation must
take pro cessual provisions which accord with fair noms, free from extraneous pressure and
by and large complying with natural justice. Unilateral arbitrariness, police dossiers, faceless
affiants, behind-the-back materials, obligue motives and inscrutable face of an official sphinx
do not fill the fairness bil| subject of course to just exceptions and critical contexts. This
minimum once abandoned, the Police State slowly builds up which saps the finer substance of
Our constitutional jurisprudence. Not party but principle and policy are the keysto ne of our
Republic.
The impugned legislation, Ss. 5, 6 and 10 especially, must be tested even under Art. 21 on
canons of pro cedural justice with reference to every one including a political
dissenter.
Hearing is obligatory meaningful heanng, flexible and realistic, according to circumstances
and not ritualistic and wooden. In exceptional cases and emergency Situations interim
measures may be ta ken to avoid the mischief of the passportee becoming an escapee before
hearing begins. But soon after the provisional seiZure, a reasonable hearing must follow to
minimise procedural prejudice. When a prompt final order is made against the applicant or
passport-holder the reasons must be disclosed to him almost invariably save in those
dangerous cases where irreparable injury will enure to the State. A government which revels
in secrecy in the field of people's liberty not oniy acts
against democratic decency but busies
itself with its own burial. Article 14 has a persuasive
processual potency and versatile quality,
egalitarian in its soul and allergic to discriminatory diktats. Government should not
prevent by
any sanctions it has over its citizens from moving within any
other country if that other
country has no objection to their travelling within its territory.
Per Kailasam, J.
The decision of the Bank Nationalisation case in so far as it
relates to Arts. 19(1)(f) and 31
(2) undoubtedly settles the law that they are not
mutually eXClusive but that decision, in so
far as it relates to Arts. 19(1) and 21. is in the nature of obiter
dicta. The Court cannot be
said to have declared on the subject when no occasion arose for it to
consider and decide
the question. The decision is not an auth ority for the
proposition that legislation under Art.
21 should also satisfy the fundamental rights quaranteed under
Art. 19(1).
The val1dity of the Passports Act will have to be examined on the
basis whether it directly or
immediately intringes on any of the fundamental rights of the petitIoner. If a passport is
refused according to the procedure established by law, the plea that the other
fundamnental
rights are denied cannot be raised for they are not directly intringed. The Act provides for
issue of passports and travel documents for requlating the departure from India of citizens of
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India and other persons. If the provisi00s conmnly with the

reguirements of Art. 21, 1.e. hey
Comply with the procedure established hy law the validity of the Act
cannot be challenged.
IT inCidentally the Act infringes on the rights of
the citizen under Art. 19(|), the Act Cannot
be found to be invalid. The pith and siuhetance rule will have to be
applied and mleSS rights
are directly affected, the challenge will fail. If it is meant as being
applicable in eveny case
noweVer remote it may be where the citizens' riahts under Art. 19(1) are affected, even
punitiVe detention will not be Valid Rut the procedure established by law does not mean
procedure however fantastic and op0ressive or arbitrarv which in truth and reality is no
procedure at all. There must be some procedure and at least it must Conrorm to tne
procedure established by law, that is, to the ordinary and well-established criminal procedure.
It Is trUe that procedure established by law is proce dure established by statute law and the
legislature is competent to change the procedure. But this does not mean that wel.
established criminal procedure cannot be insisted upon.
There is considerable force in the contention that if no reasons are furnished by the
Government and no appeal is provided against the order of the Government, it would virtually
amount to denial of procedure established by law as contemplated under Art. 21. But this
plea is not acceptable for the reaso ns that the Government is bound to give an opportunity
to the holder before finally revoking or impound1ng a passport In such cases it is the
Government that passes an order and it should be presumed that it would make the order
after careful scrutiny. If the Government passes an order, though no appeal is provided, but
as the power is vested in the highest authority, the section is not unconstitutional for the
order would be subject to judicial scrutiny by the High Court and the Supreme Court.

Maneka Gandhi v. Union of India,

(1978) 1SCC 248 : (1978) 2 SCR 621 : AIR 1978SC 597

Bench Strength 7. Coram : M.H. Beg', C.J. and Y.V. Chandrachud:, V.R. Krishna Iyer',
P.N. Bhagwati', N.L. Untwalia', S. Murtaza Fazal Ali and P.s. Kailasa m, ).
(Date of decision : 25/0 1/1978]

Eollowed in Govt. of A.P. v. P. Laxmi Devi, (2008) 4 SCC 720; Siddharam Satling appa Mhetre v. State
of Maharashtra. (2011) 1SCC 694 atp. 732; VIkram Cement v. State of M. P., (2015) 11 SCC 708: K.S.
Puttaswamy (Aadhaar-5)) v. Union of India, (201 9) 1SCC 1; M. Ravindran v. Directorate of Revenue
Intelligence, (2021)2 SCC 485; Satender Kumar Antil v. CBI, (2022) 10 ScC S1
Affirmed in K.S. Puttaswamy (Privacy- 9J. ) v. Union of India, (2017) 10 SCC 1
Relied on in Independent Thought v. Union of 1ndia, (2O17) 10 SCC 800: Common Cause v, Union of
India. (2018) 5 SCC 1: Subhash Kashinath Mahajan v. State of Maharashtra. (2018) 6 SCC 454;
Nikesh Tarachand Shah v. Union of India, (2018) 11 sCC 1; Navtej Singh Johar v. union of India,
(2018) 10 SCC 1; Dila war v. State of Haryana, (2018) 16 SCC S21; Anuradha Bhasin v. union of India,.
(2020) 3 sCc 637; Indian Young Lawyers Assn. (Sabarimala Temple-5 ).) v. State of Kerala, (2019) 11
sCC 1; Manoj Pratap Singh v. State of Rajasthan, (2022) 9 sCC 81; Satender Kumar Antil v. CBI,
(2022) 10SCC 51: KaushalKishor v. State of U. P., (2023)4 SCC1
Followed in Union of India v. Ganpati Dealcom (P) Ltd. (2023) 3 SCC 315
rPer Bea. C.J.. paras 192 to 198, 201, 203, 211 212, Z15 & 217; Chandrachud ).. paras 48, 49 &

56; Bhagwati, Untwalia, Fazal Ali, ))., paras 4 to 14; Krishna Iyer, J., paras S8. 62 to Z8. z9 to 90,
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91, 96 &112 and Kailasam, J., (partly contra.) paras 140, 156 to 160, 169, 170, 173 & 189]
Disclaimer: While every effort is made to avoid any
regulation/ circular! mistake or omission, this
Iiable in any mannernotification is being
by reason of any circulated on the condition and
casenotel headn ote/ judgment/ acv rule/
rendered or accepted on the
basis of
mistake or understanding that
omission or for any
action taken or
the publisher would not be
disputes will De subject this casenote/ hea dnote/ judgment/ act/ rule/ omitted to be taken or
this text must be exclusively to j urisdiction of
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verified from the original source. courts, circularf
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authenticity of
Constitution of India
Part III (Arts. 12
to
mutually exclusive rights 35)- Each- Fundamental rights are not distinct and
because the limits of freedom has different dimensions and merely
freed from the interference with one
necessity to meet the challengefreedom
are
satisfied, the law is not
Law affecting of another guaranteed freedom -
Arts. 19 and 14 personal liberty under Art. 21 will aiso have to satisfy tests under
Per Bhagwati, Untwalia and Fazal Ali, J).
Article 21 0cCurs in Part III of the
Articles 14 to 18 occur under the Constitution which confers certain fundamental rights.
heading "Riaht to Equality" and of
important is Art. 14 which confers a them by far the most
any person equality fundamental right by injuncting the State not
to deny
before the law or equal
India. Articles. 19 to 22 find place protection of the laws within the
territory of
under the heading "Right to
that no person shall be Freedom" and Art. 21 provides
deprived of his life or personal liberty except
established by law. Though the article is couched in according to procedure
fundamental right to life and liberty. It is clear from thenegative language, it confers the
downthe circumstances under which a provisions of the Act that it lays
passport may be issued or refused or
impounded and also prescribes the procedure for cancelled or
be arbitrary, unfair or doing so. Obviously the procedure cannot
unreasonable.
and mnutually exclusive. A Fundamental nghts conferred by Part III are not distinct
law depriving a person of
procedure for that purpose within the personal liberty and prescribing a
of the
meaning of Art. 21 has to
stand a test of one or more
fundamental rights conferred under Art. 19 which
situation.( Ex-hy pothesiit must also be likely to be may be applicable in a
qiven
principle, the concept of tested with reference Art. 14. On
to
reasonableness must, therefore, be projected in
the procedure
contemplated by Art. 21 having regard to the impact of Art. 14 on Art. 21
Per Krishna Iyer, ).
The law is now settled that
no article in Part lIl is
an island but part of
The proposition is the
sub-continent.
indubitable that Art. 21 oes not, in a given
both rights are breached. situation, exclude Art. 19 if
Per Kailasam, J.
The decision of the Bank
Nationalisation Case insorar as it relates to Arts.
undoubtedly settles the law that they are not murualy 191)(f) and 31(2)
itrelates to Arts. 19(1) and 21, is in exclusive
the nacure or obiter
but that decision, insofar as
dicta, The
have declared on the
subject when no occasion arose for it to Court cannot be said to
guestion. The decision is not an authority tor consider and decide the
thne proposition that
rights guaranteed under Art. 19( 1)legislation under Art. 21
should also satisfy the fundamental

Maneka Gandhi v. Union of India,

(1978) 1SCC 248 : (1978) 2 SCR 621: AIR
1978 SC 597
Bench Strength 7. Coram : M.H.
Beg°, C.J. and Y.V.
P.N. Bhagwati', N.L.
Untwalia', Murtaza razal AI and
S. Chandrachud', v.R. Krishna Iyer',
[Date of decision : P.S. Kailasam J).
25/01/1978]
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Words and Phrases

- "In the interests of general public"
Per Bhagwati, Untwalia and Fazal Ali, J).
The words "in the interests of the 0eneral Dublics have a clearly well-defined mneaning and
is in the
the cOurts have often been called upon to decide whether a particular action
experienced
interests of the general public" or in "oublic interest" and no difficulty has been
ipsissima verba
by the courts in carrying out this exercise These words are in fact borrowed
trom Art. 19(5) and it would be nothing short of heresy to accuse the Constitution -makers of
vague and loose thinking.
which coverS within its
The expression "interests of the general public" is a wide expression
broad Sweep all kinds of interests of the general public including interests of the sovereignty
foreign States.
and integrity of India, security of India and friendly relations of India with

Maneka Gandhi v. Union of India,

(1978) 1 SCC 248: (1978) 2 SCR 621: AIR 1978 SC 597

Bench Strength 7. Coram: M.H. Beg', C.J. and Y.V. Chandrachud', v.R. Krishna Iyer,
P.N. Bhagwati', N.L. Untwalia', S. Murtaza Fazal Ali and P.S. Kailasam, J).
[Date of decision : 25/01/1978]

Relied on in State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501

Disciaimer: While every effort is made to avoid any mistake or omission, this casenote/ hea dnote/ judgment/ act/ rule/
reoulatio circular/ notification is being circulated on the conditi on and understan ding that the publisher would not be
liable in any manner by rea5on of any mistake or omission or tor any action taken or omitted to be taken or advice
rendered or accepted on the basis of thiscasenote/ hea dnote/ judgment/ act/ ruie/ regulation/ circular/ notification. Al!
dsoutes wll be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow oniy. The authe nticity of
Source.
this text must be verified from the original
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Constitution of India
- Pt. III (Arts. 12 to 35)- Territorial extent of
fundamental rights
discussedRights under Art. 19(1)(a) and (g) not confined to India
Per Beg, C.J.
It the rights under Art. 19 are rights which\
inhere in Indian citizens,(individuals Concerned
Carry these inherent fundamental constitutional rights with
them wherever they go insofar as
the Indian law applies to them, because they are
part of the Indian nation.
Per Chandrachud, J.
Articie 19 confers certain freed omns on Indian citizens some of
which by their very language
and nature are limited in their exercise by
geographical considerations. The right to move
freely throughout the territory of India and the right to reside
and settle in any part of the
territory of India which are contained in cls. (d) and (e) of Art. 19( 1) are of
this nature.
Other freedoms which the article confers are not
sorestricted-by_ their tems but that again
is not conclusive of the question under
consideration. Nor indeed does the fact that
restraints on the freedom quaranteed by Art. 19(1) can be imposed under Art. 19(2) to (6)
by the State furnish any clue to that question. The
State can undoubtedly impOse
reasonable restrictions on fundamental freedoms under Art. 19(2) to (6) and those
restrictions generally have a territorial operation. But the ambit of a freedom cannot be
measured by the right of a State to pass laws imposing restrictions on that freedom which in
the generality of cases have a geographical limitation. Article 19( 1) (a) guarantees to Indian
citizens the right to free speech and expression. It does not delimit that right in any manner
and there is
reason, arising either out of interpretational dogmas or pragmatic
no

considerations, why the Courts should strain the language of that article to cut down the
amplitude of that right. The plain meaning of the clause guaranteeing free speech and
expression is that Indian citizens are entitled to exercise that right wherever they choose
regardiess of geographical considerations, subject, of course, to the operation of any existing
law or power of the State to make a law imposing reasonable restrictions as provided in Art.
19(2), and also subject to the laws of the country in which the freedom is or intended to be
exercised. The Con stitution does not confer any power on the executive to prevent the
exercise by any Indian citizen of the right of free speech and expression on foreign soil
subject to the exceptions already stated.
Per Kailasam, J.
Far from Art. 19(1) expressing any intention eXpressly or impliedly on extraterritorial operation
the context would indicate that its application is intended to be only territorial.
The fundamental rights under Art. 19(1) are subiject to restrictions that may be placed under
Art. 19(2) to (6). The restrictions thus_inposed normally would apply only within the territory
of India unless the leg1slation expressly or by neces sary implication provides for
extraterritorial operation. Neither in Art. 19 nor in any of the enactments restricting the rights
under Art. 19(2) is there any provision expressly or by necessary implication providing for
extraternitorial application. A citizen cannot enforce his fundamental rights outside the
territory of India even if it is taken that such rinhts are available outside the country. In this
view the contention of the petitioner that by deni ng her the passport to travel outside India
her fundamental rights ike freedom of soeech and expression or to practise a profession are
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Citizens, Migrants and Aliens

Passports Act, 1967
- S. 10(3) (c) - Impounding of passport Constitutionality - Held, does
not violate either Art. 21 or Art. 14 - Power to impound passport n tne
interests of general public" is not vague or un defined - Power vesting in a nign
authority, its abuse not to be liahtly inferred - Aso S. 10(3)(c) not violative of Art.
19(1)(a) or (g) - An order un der S. 10(3)(c), may, however, in a given situation
depending on the individual concerned affect his riahts under Art. 19(1) (a) or (g) -
Applicable tests under Art. 19(2) to (6) indicated
Per Beg, C.J.
Articles 14, 19 and 21 of the Constitution form the tests of validity of executive as well as
legislative actions when these actions are subjected to the judicial scrutiny. Articles 14 or 19
cannot be disabled from functioning and apply1ng to executive and legislative actions even
when there is no emergency to shield actions of doubtful legality. In the "unoccupied"
portions of the vast sphere of personal liberty, the substantive as well as procedural laws
made to cover them must satisfy the requirements of both Arts. 14 and 19. These tests,
therefore, are available to determine the constitutional val1d1ty of S. 10(3)(c) of the
Passports Act, 1967, as well as the impugned order passed aga1nst the petitioner impounding
her passport in the interests of general publiC and stat1ng that the Government had decided
not to furnish her with a copy of the reasons and claim1ng ummun1ty from such discosure

under S. 10(5) of the Act.

A discretion left to the authority to umpound the passport in public interest cannot invalidate
the law itself. It has to be necessar1ly left to the executive discretion to decide whether on
the facts and circumstances of the particular case public interest willor will not be served by
narticular order to be passed under a valid law, subject, as it always is, to judic1al
Supevision. In matters such as grant, Suspension, impounding or cancellation of a passport,
the pos sible dealings of an individual with nationals and authorities of other States will have
to be considered. There may be questiOns or national safety and welfare which transcend the
importance of the individual's inherent right t0 go where he or she plea ses to go. But
although the grant of wide discretionary power to executive authorities cannot be held to be
unreasonable, in such cases, yet one must Took Tor and find the procedural safequards to
ensure that the power will not be used ror purposes extraneous to the arant of a power
before the validity of the power conferred is upheld.
Per Bhagwati, Untwalia and Fazal Ali, ).
Section 10(3)(c) is not violative of any of the fundamental rights quaranteed under Part II of
the Constitution and particularly Art. 14. It s well settled that when a statute vests an

unguided and unrestricted power in an authority to affect the rights of a person without
laying down any policy or principle which is to guide the authority in exercise of the power, it
wOud be affected by the vice of discriminaton. but in the present case, the ground of"in

the interests of general public" is not vague or undefined. These words have a clearly well
defined meaning and the courts have often been called upon to decide whether a particular
action is in the interests of the general pubnc oT n public interest and no difficulty has been
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resech!

experienced by the courts in carrying out this exercise. These words are borrowed from Art
19(5) of the Constitution and if they were not vague and undefined in that articie, It IS
aitticult to see how they can be condemned as such when they occur in S. 10(3)(C). It must,
therefore, be held that certain guidelines are provided by the words "in the interests of
general public" and the power conferred on the passport authority to impound a passport
cannot be said to be unguided or unfettered. Moreover, the exercise of the power is not
made to depend on the subjective opinion of the authority but the authority is required to
record in writing a brief statement of reasons and to supply a copy of such statement to the
person affected. It is true that when the order is made by the Central Government there is
no aPpeal against it. But then in SUch a case the power is exercised by the Central
Government itself and it can safely be assumed that the Central Government will exercise the
power in a reasonable and responsible manner. When power is vested in a high authority the
abuse of it cannot be lightly asSumed and in any event if there is abuse of power, the arms
of the court are long enough to reach it and strike it down. The power conferred on the
passport authority to impound the passport under S. 10(3)(c) cannot, therefore, be regarded
as discriminatory and it does not fall foul of Art. 14. But every exercise of such power has to
be tested in order to determine whether it is arbitrary or within the guidelines provided by S.
10(3)(c).
Merely because a statutory provision empowering an authority to take action in specified
circumstances is constitutionally valid as not being in con flict with any fundamental rights, it
does not give a carte blanche to the authority to make any order it Iikes so long as it is
within the parameters laid down by the statutory provisIon. Every order made under
statutory provision must not only be within the author1ty conferred but must also stand the
test of fundamental rights. It is a basic constitutional assumption underlying every statutory
grant of power that the authority on which the power is conferred would act constitution ally
and not in violation of any fundamental rights. Though the impugned order may be within the
terms of S. 10(3)(C), it must nevertheless, not contravene any fundamental rights and if it
does it would be void. If the restriction imposed by it SO WIde, excessive or

disproportionate to the mischief or evil sought to be averted then it may be considered

unreasonable, and in that event, if the direct and inevitable consequence of the order is to
abridge or take away freedom of speech and expression it would be violative of Art. 19(1)(a)
and would not be protected by Art. 19(2); and the same would be the position where the
order is in the interests of general public but impinges directly and inevitably on the freedom
to carry on a profession in which case it would contravene Art. 19(1)(g) without being saved
by the provision enacted in Art. 19(6).
Per Kailasam, J.
Section 10(3)(h) applies in a case where there is awarrant or summons from the court or an
order by the court prohibiting departure of the person from India. But on that account it
cannot be contended that since the petitioner's passport was impounded as she would be
required to give evidence before a Commission of Inquiry the ground is covered by S. 10(3)
(h) and not under S. 10(3)(c). This question however need not be de cided as the Attorney
General has submitted that the purpose of impounding was to prevent the petitioner leaving
the country and a final decision as to whether the passport will have to be impounded and if
so for what period will be decided later.
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Citizens, Migrants and Aliens

Passports Act, 1967
- S. 10(3)(c) & (5) - Impounding of passport, held, is subject to
opportunity to showcause - Rules of natural justice apply to administrative
action Such action open to iudicial review on arounds of unconstitutionality,
denial of natural justice, mala fides and ultra vires Ordinarily reasons must be
Supplled - Privilege underS. 10/5) not to disclose the reasons should be exercised
rarely Passport can be impounded onlv for a definite and reasonable period
Interests of the general public" to be served should be actual and not in future
On facts, order
Such "interest of general public" not confined to foreign affairs
constitutional and intra vires S. 10(3)(c) -S. 10(5) not ultravires the Legislature
Per Beg, C.J.
The provisions of S. 10(3) of the Act show that each of the orders which could be passed
under S. 10(3)(a) to (h) require a sat1sfaction by the passport authority on certain objective
Conditions which must exist in a case before it pasSes an order to impound a passport or a
travel document. Section 11 of the Act rov:des for an appeal to the Central Government
from every order passed under S i 3 . Sect:on lus, nakes it ooligatory upon the passport
authority to record in writing a orei stztemen: of 're Casons for making such an order and
furnish to the holder of the paSsport Or t2ii üoCie 0n denand a copy of the same
unless in any case the passport authority !s of he opion tht it wi!I not be in the interests
of the sovereignty and integrity of India, security of i ndia, friendly relations of India with any
foreign country or in the interests of general public, to furnish such a copy. There is a
statutory ight acquired on the fulfilment of the prescribed conditions by the holder of a
Dassport that it should continue to be effective ror the specified period so long as no ground
has come into existence for either its revocation or for impounding it which amounts to a
SUSDension of it for the time being. Orders under S. 10(3) must be based upon some material

even f that material consists in some cases of reasonable suspicion arising from certain
rredibie assertions made by the individuals. Tt may be that in emergent situations the
moounding of a passport may become necessarY\without giving an opportunity to be heard
2ganst such a step which could be reversed after an opportunity given to the holder of the
passport to show why the step was unnecessary, but ordinarily,) no passport could be
reasonably ether impoun ded or revoked without giVing prior opportunity to its holder to show
cause dgainst the proposed action.
It s well -establ1shed that even where there Is no Specitic provision in a statute or rules made
thereunder for showing cause against action proposed to be taken against an individual,
which affects the rights of that individual tne duty to give reasonable opportunity to be
heard will be implied from the nature of the rurncuons to be performed by the authority which
has the power to take punitive or damaging dctions. An order impound1ng apassport must_be
made quasi-judicially and that was not done in he present case. The facts of the present
case indicate that it cannot be said that à good enough reason has been shown to exist for
impounding the passport of the petitioner. Funnermore, the petitioner has had no opportunity
of showing that the ground for impoundin9it naiY given in the Court either does not ex1st or
SCC
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Page 2 Wednesday, November 22, 2023
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Dwarka

nas no beanng on pubic interest or that the public cannot be better served in some other
manner There are no such pressing grounds with regard to the petitioner that i m e diate
action of impounding her passport was called for, and the non- disclosure of any reason for
Such action of impounding which reason having been finally disclosed obviously does not
necessitate concealment in public interest, indicate the existence of undue prejudice against
the petitioner Even the executive authorities when taking administrative action wniCn
involves any depnvation of or restriction on inherent fundamental rights of citizens rmust take
care to see that justice is not only done but manifestly appears to be done. However, since
t has now been conceded that the petitioner's case has not been justly or reasonably eàlt
with it may be that further action by this Court is unnecessary.
Per Bhagwati, Untwalia and Fazal Ali, J).
The impugned order is intra vires S. 10(3)(c). It is left to the passport authority under the
sub-section to determine whether it is necessary to impound a passport in the interests Of
the general public. The order is subject to judicial review on the ground that it is mala fide or
that the reasons for making the order are extraneous or that they have no relevance to the
interests of the general public or that they cannot possibly support the makiing of the order in
S. 10(5) bound to
the interests of the general public. The passport authority also is under
circumstances to the person
gve its reasons and give a copy of it except in exceptional
relating to foreign affairs.
affected. Interests of general public are not restricted to matters
are several grounds which do not
Clauses (d), (e) and (h) of S. 10(3) clearly show that there
relate to foreign affairs.
person
10(3) deal specifically with cases where a
The contention that cis. (e) and (h) of S.
power under
proceedings and that therefore the general
IS required in connection with legal
meant to the exercise of
interests of general publiC - was not
cl. (c) - the ground of
required in connection with the
impound1ng of a passport in caseS when a person is
Inguiry is without substance. This is
not a case where the
proceed1ng before a Commission of (10)(3) (e) deals
Section
alteius has any.application at all.
max1m expressio uius exclusio Court and S. 10(3)(h)
pending before a criminal
case where proceedings are
With appearance or warrant for the
SituatIon where a warrant or Summnons for the
conternplates a provisions
Court. Neither of these two
holder of a passport has been issued by a
arrest of the of Inquiry and the
the proceeding is pending before a Commission
deals with a case where attendance of the holder of the
yet issUed a summons or warrant for the
would not be covered by S.
CormrmissIon has not
Commission is a Court, a case of this kind
passport. ASSuming the under S. 10(3)(c). It
the general power
(h), such a case would clearly fall within it must be
103)(e) or basic human right and
drastIC DOwer to interfere with a
1S true hat this
IS a public interest and it
been conferred by the legislature in
has
rermembered that this power circumspection.
with great care and
should be sparingly used
by a passport
Per Kailasam, J.
revoking a passport can be taken
impounding or prompt
The extraordinary
step for country and as Such
the holder may leave the
apprehends that the rule of audi
authority vhen he s Dassed, even in Such a case,
final order case, the
But before any In the present
action is e5Sential hoider wi have to be heard. the
wouid apply and the in this View
alterarn partem final order was passed and
heard before a
right to be
petitioner has a inapplicable to
10(3)(C) does not arise. of natural
justice is
auestion of the vires of S. principle
that the
had taken thhe view
Though the Courts
 © 2023 Web Edition: http://www.SCConline.com
Lâw University, Dwarka
EBC Publishing Pvt.
Ltd., Lucknow.

administrative orders there is a

change the judicial opopinion. The frontier between judicial or
in
quasi-Judicial
on the deternminations the one hand and evecutive or
on
other has become administrative determinaion
blurred. Where the
consequences and the petitioner is prejudicially decision of an authority entails civil
be heard and affected must be given an
present his case. The order passed
he
opportuiy o
under S. 10(3)(c) is subject
judicial scrutiny Though it is held to be an to imited
satisfaction of the authority it cannot escape administrative order passed on the subjective
In view of the judicial scrutiny.
s
construction placed on S. 10(3)ha-the
holder of the passport is entitled
to be heard before the
passport authority deems it necessary to
Cannot be said that there is total denial of impound a passport, It
procedure. The authority is also bound under S.
10(5) to record in writing his reasons and is
ordinarily bound to furnish a copy of the reasons
to the holder of the
passport. The grounds on which he may refuse to furnish the
the same as provided in S. 10(3)(c) for reasons are
impounding the passport, but the two powers are
exercisable in totally different contexts. Under S. 10(3) the
question that has to be
considered is whether the passport has to be impounded and
under S. 10(5) it has to be
considered whether in the interests of general public furnishing a copy
should be declined.
Though the same grounds are mentioned it would not mean that
when an order is passed
under S. 10(3)(c) it would automatically be subject to S. 10(5) and the
authority can decline
to furnish a copy of the reasons. The expression
"unless in any case" in S. 10(5) would
indicate that it is not in every case that the authority can decline to furnish reasons for the
order., There may be some cases, and they must be very rare cases,
when a copy containing
reasons can be refused. In those rare cases in which a copy is declined it would furnish
Sufficiient justification for the Courts tO have a close look into the reasons for the order and
satisfy itself whether it has been properly made. The provision which empowers the authority
to decline to furnish the reasons cannot therefore be said to be not within the competence

of the legislature.

Maneka Gandhi v. Union of India,

(1978) 1 SCC 248: (1978) 2 SCR 621 : AIR 1978 SC 597

Bench Strength 7. Coram : M.H. Beg,C.J. and Y.V. Chandrachud², V.R. Krishna Iver).
P.N. Bhagwati!, N.L. Untwalia', S. Murtaza Fazal Ali and P.S. Kailasam. ))
(Date of decision : 25/0 1/19 78)

Relied on in Asfaq v. State of Rajasthan, (201 7) 15 SCC 55

Follo wed in K.S. Puttaswamy (Aadhaar-5)) v. Union of India, (2019) 1 sCC 1
Disciaimer: While every efforIS ma de to avoid any mustake or omis sion, this casenote/ headnote/ Judgnent cñ rule/
renulat ion/ crula notificat ion is beng circulated on the cond0on and under st anding that the putlisher would not be
labie in any mànner by reasorn of any mistake or omission or tor any action taken or omitted to be taken or adv ice
tendered or accepted on the bo sis of this casenote/ headnote/ ju0gment7 act/ rule/ regulation/ crcula/notific ation. AII
dsoutes wil be sublect exctusively to Junsdiction of courts, tribunalh and forums at Lucknow only. he authenticity of
this text must be verified from the original soure
 Pinted For 9ovember 22, 2023 9V. LId.
AINE SCC Onine Raghav Pandey.
Web Edition: National Law University, Dwarka
O 2023 EBC
http:/ www.scconline.com
Publishing Pvt. Ltd., Lucknow.

Constitution of India
Article 19
Freedoms Protection of Certain Rights The Seven

Other penumbral rights

Art. 19(1) Right to go abroad - Held, not included in
Art.
neither part of the right under Art. 19(1 )Ma) nor of that under Art. 19(1)- Itis
theory of peripheral or concomitant rights - Test to be
19(1)(g) on the
applied before any right c£n
be considered part of the enumerated
fundamental rights explained Such right
should be an integral part of that fundamental riaht or partake of the same
basiC
nature and character
Per Y.V. Chandrachud, J.
Though the right to go abroad is not included in the right contained in Art. 19(1)(a), if an
order made under S. 10(3)(c) of the Act does in fact violate the right of free spee ch and
expression, Such an order can be struck down as unconstitutional. The fact that the
petitioner was not heard before or soon after the impounding of the passport would have
introduced aserious infirmity in the order but for the statement of the Attorney General that
the Government was willing to hear the petitioner and further to limit the operation of the
order to a period of six months from the date of the fresh decision, if the decision was
adverse to the petitioner.
The power to refuse to disclose the reasons for impound1ng a passport is of an exceptional
nature and it ought to be exercised fairly, sparingly and when only fully justified by the

exigencies of an uncommon situation. The reasons, if disclosed, being open to judicial

scrutiny for ascertaining their nexuS With the order of impounding the passport, the refusal to
disclose the reasons would equally be open to the Scrutiny of the court: or elce the
wholesome power of a dispassionate jUdiCial examination of executive orders wOuld with

Feit be set at naught by an obdurate determination to suppress the reasons. Law

cannot permit exercise or the POWer tO Keep tne reasons undisclosed if the sole reason for
doing so is to keep the reasons aay rronm judicial scrutiny. However, in the present case
19(1)(a)
the.order does not) in fact, offe nd Art. 19(1)(a) or
and Fazal Ali, ).
Per Bhagwati, Untwalia
Csinn 10/3)e) of the Passports Act, 1967 is not violative of Art. 19(1)(a) or (a), Prima
facie. the right which is sought to be restricted by S. 10(3) (c) of the said Act and the
imnuoned order is the right to go abroad and tnat is not named as a fundamental right or
induded in so many words in Art. 19(1)(a). When the Constitution-makers enacted Part I
they inscribed in the Constitution certain basIC rights which inhere in every human being and
which are essential for the unfolding and development of his full personality. These rights
represented the basic values of acivilised society and the Constitution-makers declared that
they shall be given a place of pnde in tne Constitution and elevated to the status of

fundamental rights. It is difficult to believe that when the Constitution-makers declared these
riohts they intended to confine them only within the territory of India. Freedom of speech
and expression caries with it the right to gatner intormation as also to speak and express
oneself at home and abroad and to exchange tnougnts and ideas with others not only in India
hut also outside. The Constitution-makers have not Chosen to limit the extent of this freedom
 e
Oyddaing the words "in the territory of India" at the end of Art. 19(1) (a). Thererore,
Treedom of speech and expression quaranteed by Art 19(1)(2) is exercisable not only in 1nald
but also outside.
It is true that this fundamental right can be enforced only if it is so ught to be violated by dny
aCtion of the State and State action cannot have any extraterritorial operation oranariy:
is only a violation within the territory of India that can be complained of by an aggrieved
party. But that does not mean that the right of free speech and expression is exercisaole
only in India and not outside. State action taken within the territory of India can prevent or
restrict the exercise of freedom of speech and expressi on outside India as in the case or
journalists such as the petitioner. Therefore, merely because State action is restricted to the
territory of India it does not necessarily follow that the right of free speech and expressi on is
also limited in its operation to the territory of India and does not extended outside. There is
no underlying principle of the Constitution which limits the fundamental rights in their
operation to the territory of India. If a fundamental right under Art.. 21 can be exercised
outside India there is no reason why freedom of speech and expression should not also be so
exercisable.
The above conclusion that there are no geographicai limitations applies equally to the right to
practice any profession or to carry on any occupation, trade or business under Art. 19(1)(g).
It is possible that a right does not find an express mention in any clause of Art. 19(1) and
of the Press is
yet be covered by some clause of the article as, for example, freedom
covered by Art. 19(1 )(a) though not specifically mentioned therein. Thus, even if a right is
covered by some
not specifically mentioned in Art. 19(1), it may still be a fundamental right
fundamental right or partakes the
of the articles, but only if it is an integral part of a named
right. It is not enough that a right
same basic nature and character as that fundamental
named fundamental riqght or that its
claimed by the petitioner flows or emanates from a
exercise of the named fundamental right
existence is necessary in order to make the
the exercise of a named
meaningful and effective. Every activity which facilitates
in that fundamental right nor can it be
fundamental right is not necessarily comprehended
exercise
be possible otherwise to effectively
regarded as Such merely beca use it may not
and the
Construction would lead to incongruous results
that fundamental right. The contrary different restrictions
confers different rights and sanctions
entire scheme of Art. 19(1) which
be upset. What
depending upon the nature of the right will
according to different standards
be applied, whether the right
and that is the test which must
is necessary to be seen is, right or partakes of the same
integral part of the fundamental
claimed by the petitioner is an such right
right so that the eXercise of
nature and character as the named fundamental
basic fundamental
exercise of the named
reality and substance nothing but an instance of the regarded as
is in cannot in all circumstances be
the right to go abroad
right. If this IS Correct test
expression.
included in the freedom of speech and free speech and
expression
cannot be said to be part of the right of
The right to go abroad speech and expressi on. It
nature and character as freedom of
same basic
as it is not of the exercise of the right of
abroad may be necessary in a given case for right of
is true that going an integral part of the
expression but that does not make it exercise of the
freed om of speech and be necessary for the
expression. Every activity that may it meaningful
free speech and such exercise or make
may facilitate
expression or that
freedom or Speech and
 td., Lucknow

and
effective cannot be
the
fundamental elevated to the status
right of free of a
Would fundamenta! right as if it were
beCome part speech and a part of

rightexpression.
of some Otherwise, practically every activity
rights only as fundamental or the other and the object
thefundamental
with d1fferent of
rmaking certain
Therefore, theory that a permissible restrictions would be frust
rated.
a
named fundamental right or peripheral or concomittant right which facilitates the ezercise of
is itself a gives it meaning and substance
The right to goguaranteed right included or
makes its exercise
within the named fundamental right, cannot effective,
abroad cannot, be accepted.
therefore,
expreSsIon guaranteed under Art. 19(1)(a) be regarded as included in free speech and
So alSO, for the on the theory of peripheral or
same reasons. the riaht to ao
abroad cannot be treated as pat of theconcomnitant ri9nt.
to carry on trade, rignt
business,
profession or calling guaranteed under Art.
go abroad is clearly not a 19(1)(9). Tne ri9nt to
quaranteed riaht under any clause of Art. 19(1) and S. 10(3)(C)
which authorises imposition of
restrictions on the ight to go abroad by
passport cannot be held to be void as offending Art. impounding of
19(1)(a) (g), as its direct and
or
Inevitable impact is on the right to go abro ad and not on
the right of free speech and
expression or the right to carry on trade,
business, profession or calling.
Per Krishna Iyer, J.
As far as Art. 19 is concerned what is
fundamental is the freedom not the exceptions.
Restraints are permissible only to the extent they have a nexus with
the approved object.
The security of the State is a paramount
consideration but the Government, in totalitarian
fashion, cannot equate party with country and refuse a travel do
cumentbecause while
abroad he may criticise the conflicting politics of the party in
power or the planning
economics of the Government of the day. The liberty can be Curtailed onl if the
arounds
listed in saving sub-articles are directly, specifically,
Substantially and imminently attracted
so that the basic right may not be stultified.
Courts must not interfere where the order is not
perverse, unreasonable, mala fide or supported by some material.
Locomotion is in some situations necessarnly involved in the exercise of the
specified
fundamental rights as an assoCiated or integrated right. While freedom of speech is feasible
Mithout movement beyond the country, and travel ordinarily is action' and
only accidentally
expression. Merely because speaking mostly invoBves some movement. therefore
free
sDeech anywhere is dead if free movement everYwhere is denied' does not
follow. The
constitutional lines must be so drawn that the constellation of fundamental riahts does not
exo0se the peace, security and tranquinty OT the community to high risk. One
cannot
Overstretch free speech to make it an inextricdbie component of travel. If a riaht is not in
ovorecs terms fundamental within the meaning or Part 111, does it
escape Art. 13, read with
the trammels of Art. 19, even if the immedlaTe impact, the
substantial effect, the proximate
import or the necessary result iS prevention Or tree Speech or practice of one's
profession?
The answer is that associated rights, totally integrated, must enjoy the
same immunity. Not
otherwise.
Per P.S. Kailasam, J.
The petitioner is not entitled to any of the rundamental rights enumerated in Art. 19 and the
Passports Act complies with the requirements Or Art. 21 of the Constitution and is in
accordance with the procedure established by law. Section 10(3)(c) of the Act provides a
right to the holder of the passport to be heard berore the authority and any
order passed
under S. 10(3) is subject to a linmited judicial SCrutiny by the High Court and the Supreme
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Court. In view of the

a
statement
made by the Attorney
General that the petitioner may
representation respect of the impOunding of her passport
in
and that the
make
be dealt with
expeditiously and that even if the impounding is representation wil
period of six months from the date of confirmed it will not exceed a
the decision that
representation, it is not necessary to go into the merits may be taken on the
of the case any
petitioner's
grounds urged by the petitioner and the further. AI the
grounds that may be urged before the
authority would be properly considered by that passport
authority and appropriate orders passed.
Therefore, it is not necessary to formally interfere with the
impugned order and the writ
petition is disposed of accordingly.

Maneka Gandhi v. Union of India,

(1978) 1 SCC 248 : (1978) 2 SCR 621 : AIR 1978 SC 597

Bench Strength 7. Coram : M.H. Beg, C.J. and Y.V. Chandrachud', v.R. Krishna
Iyer',
P.N. Bhagwati', N.L. Untwalia', S. Murtaza Fazal Ali' and P.S. Kailasa m, J).
(Date of decision: 25/01/1978)

Relied on in Common Cause v. Union of India, ((2018) 5 SCC 1

Disciai mer: while every effort is made to avoid any mist ake or omission, this casenote/ hee dn ote/ judgme nt/ actv rule/
requlationy circular/ notificat ion is being circulated on the condition and underst and1ng that the pubiisher would not be
.able in any manner by reason of any mistake or omission or for any action taken or omitted to be taken or adv ice
rendered or accepted on the basis of this casenote/ neadnote/ judgment/ act/ rule/ regulation/ circular/ notific ation. All
The suest way to legal resenrch declared by the Supreme Court in Eastern Book Compaiy
63.
2016
Writ Petition (C) No. 572 of
AKKAI PADMASHALI .. Petitioner;
Versus
SECRETARY, MINISTRY OF LAW
UNION OF INDIA THROUGH
AND JUSTICE. . Respondent. and 121 of
Petitions (Crl.) No. 76 of 2016 with Nos. 88, 100-101
Writ September 6,
and Writ Petition (C) No. 572 of 2016, decided on
2018
2018
19 and Preamble
A. Constitution of India Arts. 21, 14, 15 and
Right to
Constitutional Morality
Transformative power of Constitution and in Preamble of
any person of one's choice - Vision of Fraternity envisaged
love embraces
accommodates plural ways of life and
inclusive society which
human, fundamental and
diversity Realisation of - Aspiration to realise
humane and compassionate
constitutional rig hts, eq ual citizenship and just,
notions which are an anathema to a
existence, for all - Dissolution of mnoral
stereoty pes and prevail
constitutional order in which liberty must trump over limits
Dissolution of social authority and
over the mainstrea ming of culture
religion and community, for
imposed by structures such as gender, caste, class,
all
far as it criminalises consensual
- Issue of constitutionality of S. 377 IPC so
orientation - Ramifications of,
sexual acts between adults of whatever sexual
of LGBT Community or
held, go far beyond the assimilation of homosexuals
extend to the
anyone similarly situated as equal citizens in every way, and
relationships
issues delineated above, and to inter-caste and inter-community
of LGBT
which are sought to be curbed by society - The protection of the rights
individuals and anyone similarly situated, is not only about guaranteeing a
minority their rightful place in the constitutional scheme, but speaks equally of
the vision of the kind of country we want to live in and of what it means for the
majority (See also Shortnotes ZK, ZL, ZM and ZN, belowon Transformative
power of Constitution and Constitutional Morality]
- s. 377 IPC is founded on moral notions which are an anathema to a
constitutional order in which liberty must trump over stereoty pes and prevail
over the mainstreaming of culture Our Constitution, above all, is an essay in
the acceptance of diversity- It is founded on a vision of an inclusive society
which accommodates plural ways of life - Order of nature that S. 377 speaks
of is not just about non-procreative sex but is about forms of intimacy which
the social order finds "disturbing" This includes various forms of
transgression such as inter-caste and inter-community relationships which are
sought to be

WPage: 3

PALSA
n.
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SCC
ONLINE
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Dwarka

by the law
O 2023 Eastern Book Company. The text of this version of this judgment is protectedSCC 1 paras 61, 62 &
The sures wau to leai researh Eastern Book Company v. D.B. Modak, (2008) 1
declared by the Supreme Court in
63
couples who love across caste and
curbed by society - What links LGBT individuals to
their right to love at
community lines is the fact that all of them are exercising
lines of social authority
enormous personal risk and in the process disrupting existing
only about the prohibition of
Thus, a re-imagination of the order of nature as being not
such as gender,
non-procreative sex but instead about the limits imposed by structures
love not just a separate battle
caste, class, religion and comnmunity, makes the right to
377
for LGBT individuals, but a battle for all - Penal Code, 1860. S.

B Constitution of India Arts. 21, 14, 15 and 19 and Preamble

Realisation
Transformative power of Constitution and Constitutional Morality -
of LGBT community,
of equal citizenship in every aspect for homosexuals
anyone similarly situated and sexual minorities Issue of constitutionality of
between homosexual
S. 377 IPC so far as it criminalises consensual sexual acts
Ramifications of,
adults of LGBT community or anyone similarly situated
conduct which has been
involve much more than merely decriminalising certain
existence and
proscribed by a colonial law, but involve their very identity,
entitlement to equal and full citizenship
punishment of an offence
- Impact of S. 377 has travelled far beyond the
to a dignified existence
It has been destructive of an identity which is crucial
gender constitute one
Sexual acts between consenting adults of the same
facet, albeit an important aspect, of the right asserted by homosexual persons
relationships are sustained and
to lead fulfilling lives - Gay and lesbian
In understanding
nurtured in every aspect which makes for a meaningful life -
protection which the Constitution
the true nature of those relationships and the
which leads to their
affords to them, it is necessary to adopt a perspective
compassionate society
acceptance as equal members of a humane and
but not con fine
Forming a holistic perspective requires the court to dwellon,
on which there is a
itself, to sexuality - Sexual orientation creates an identity
Penal Code,
constitutional claim to the entitlement of an equal dignified life -
1860, S. 377
C. Constitution of India Arts. 21, 14, 15 and 19 - Rights to Sexual
Identity, Sexual Orientation, Sexual Freedom, Sexual Autonomy, Sexual
Partner and Sexual
Privacy, Sexual Expression, Choice of Partner/Sexual
from Arts. 21, 14,
Health declared to be part of fundamental rights emanating
15 and 19 (see Shortnotes G to ZB) Shift from reproductive/ procreative
are crucial for
instinct to erotic desire and emotional companionship, held,
understanding modern notions of sexuality and sexual identity Lines
perhaps even an
between homosexuality and heterosexuality are blurred, and
of sexual identities
outdated myth or invention when we understand the fluidity
today
society, procreation is not
With the passage of time and evolution of the
come together, have livein
the only reason for which people choose to
whole lot of
relationships, perform coitus or even marry- They do so for a
reasons including emotional companionship In the contemporary world where
 SCC Onine Web Edition, O 2023 EBC
Publishing Pvt. Ltd.
CC
4INE
Page 4 Wednesday, November 22, 2023
Printed For: Raghav Pandey, National Law University. Dwarka
SCC Online Web Edition: http://www.scconline.com
nay to tegoni resenrch O 2023Eastern Book Company. The text of this version of this judgment is protected by the law
declared by the Supreme Court in Eastern Book Company y DB Modak, (2008) 1 SCC 1paras b1, 62 &
63.
even marriage is now not equated to procreation of children, it is the freedom
of choice of two consenting adults to perform sex for procreation or

Page: 4

against the order

otherwise IT their choice is that of the latter. it cannot be said to be
of nature Therefore, sex, if performed differently, as per the choice of the consenting
adults, does not per se make it against the order of nature
Orientation
D. Constitution of India - Arts. 21, 14. 15 and 19 - Sexual
Homosexuality Nature Held and declared, homosexuality is neither a
mental disorder nor mental illness It is a normal and natural variant of
human sexuality - Sexual identity, sexual orientation, sexual freedom, sexual
autonomy, sexual privacy, sexual expression, choice of partner/ sexual partner
and sexual health are intrinsic elements of liberty, dignity, equality, privacy,
individual autonomy and freedom of expression of all persons without any
exception - Thus, they are integral to identity of members of LGBT Community
sexual
and anyone similarly situated - Any discrimination on basis of
orientation would entail violation of these basic rights
- Positive and negative obligations of State towards homosexual persons,
delineated
- Sexual orientation is a pattern of sexual attraction, a science of sexuality,
anatural and inherent biological phenomenon controlled by neurological and
other factors - It is an innate attribute of one's identity which cannot be
altered - It is to be treated as reflective of consensual choice - It implicates
pOsitive and negative obligations of State by requiring State not only not to
discriminate but requiring State to recog nise rights which bring true fulfilment
toevery kind of consensual sexual relationship- Penal Code, 1860 - s. 377 -
Words and Phrases "Sexual orientation"
E. Constitution of India- Arts. 21, 14, 15 and 19 Constitutionality of s.
377 IPC Held, is unconstitutional being violative of Arts. 21, 14, 15 and 19 of
the Constitution insofar as it criminalises consensual sexual acts of adults,
irrespective of whether they are heterosexuals or homosexuals belonging to
lesbian, gay, bisexual and transgender (LGBT) community or anyone similarly
situated Members of LGBT Community or anyone similarly situated are
entitled, like all others, to full range of human, fundamental and constitutional
rights However, any act described under S. 377 done between two
individuals without consent of one of them and any kind of sexual activity with
animal would be penal offence - Tw0-Judge Bench judgment of Supreme Court
in Suresh Kumar Koushal, (2014) 1 SCC 1, overruled Penal Code, 1860, S.
377