Introduction
The Passports Act of 1967 was passed by the Indian Parliament with effect from 5-5-1967. It dealt with the issuance of passports and other travel documents related thereto. The Act also establishes rules for Indian citizens leaving the country and other related issues. Prior to the Act, the Indian Government had used its authority over international affairs to provide passports to its nationals.
Brief history of the Passports Act
The Passports Act in India has a long history that dates back to the colonial era and has changed through time to accommodate the nation’s evolving demands. The British Passport Act of 1920 continues to be followed by the Indian Government after India attained independence in 1947. However, when India began its journey towards self-government, it became essential to establish comprehensive legislation tailored to the needs of the nation. India’s Passports Act was passed on 24-6-1967. This law established a legislative foundation for the country’s passport issuance, management, and supervision. Its main goal was to simplify the passport process and guard against passport abuse.
Significance of statute
The statute emphasises the preservation of individual rights while regulating passport issuance and control. It includes clauses that provide for judicial review and appeals, guaranteeing that people have the chance to contest passport officials’ judgments if they think their rights have been violated. These measures encourage fairness, accountability, and transparency within the passport system.
The Passports Act has been amended over time to reflect technical improvements and conform to global norms. India’s dedication to implementing cutting-edge security measures and keeping up with changes in passport technology is reflected in the introduction of machine-readable passports, biometric features, and e-Passports.
The right to travel freely has been deemed a basic right by the Supreme Court under Article 21 of the Indian Constitution, which is seen as an endless source of further rights. The main tenet of this right was established by the Supreme Court in Satwant Singh Sawhney v. D. Ramarathnam1 where the Court stated that a person’s right to travel under Article 21 cannot be restricted unless done in compliance with the legal process.
Key provisions related to variation, impounding and revocation of passports and travel documents
It is crucial to consider that Section 10(3) of the Passports Act, 1967 lays out the circumstances in which the Passport Authorities may seize or terminate a person’s passport:
(a) if a travel document or passport holder is in unlawful possession;
(b) if the passport was obtained fraudulently or using false information;
(c) if it is required to safeguard India’s autonomy, integrity, security, cordial relations, or public order;
(d) if the holder is found guilty of a crime that requires at least a two-year sentence;
(e) if the criminal court is still hearing the case related to the offence;
(f) if any passport or travel document requirements are broken; and
(g) in the event that sub-section (1) fails to be followed.
Section 13 – Power to arrest
(1) Any officer of customs empowered by a general or special order of the Central Government in this behalf and any officer of police or immigration officer not below the rank of a Sub-Inspector may arrest without warrant any person against whom a reasonable suspicion exists that he has committed any offence punishable under Section 12 and shall, as soon as may be, inform him of the grounds for such arrest.
(2) Every officer making an arrest under this section shall, without unnecessary delay, take or send the person arrested before a Magistrate having jurisdiction in the case or to the officer in charge of the nearest police station and the provisions of Section 57 of the Code of Criminal Procedure, 1973 shall, so far as may be, apply in the case of any such arrest.
Section 14 – Power of search and seizure
(1) Any officer of customs empowered by a general or special order of the Central Government in this behalf and any (officer of police or immigration officer) not below the rank of a Sub-Inspector may search any place and seize any passport or travel document from any person against whom a reasonable suspicion exists that he has committed any offence punishable under Section 12.
(2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to searches and seizures shall, so far as may be, apply to searches and seizures under this section.
When it comes to the problem of passports being impounded in India, the Supreme Court of India has primarily issued two key verdicts. In Maneka Gandhi v. Union of India2, the Supreme Court consciously concluded that denial of a passport without a reasonable and fair procedure constituted a breach of the right and that the freedom to travel abroad is a basic right under Article 21 of the Indian Constitution. “Impairing a constitutional right to go abroad without giving reasonable opportunity to show cause was unfair and unjust and therefore, an explicit violation of the requirement under Article 21, the Court held.”
Additionally, this Court’s position was outlined in Maneka Gandhi v. Union of India3, where the Court declared that the right to travel internationally falls under the ambit of personal liberty under Article 21 and that any restrictions on international travel must be justified by due process of law, which means they must follow a just and equitable legal process.
According to the Act, the only entity with the authority to seize a person’s passport is the Passport Authority of India. However, because criminals frequently attempt to flee the nation to dodge the offence, the issue of impounding has also been discussed by the courts and the Debts Recovery Tribunal.
The issue that now has to be addressed is whether the power granted by Section 102 of the Code of Criminal Procedure, read along with Sections 165 and 104, can be used to seize a passport or not. The Supreme Court of India provided a negative response to this query in Suresh Nanda v. CBI4 , noting that while Section 102(1) of the Criminal Procedure Code, 1973 gives the police the authority to seize a passport, it does not give them the same authority to impound the document. According to Section 10(3) of the Passports Act of 1967, the Passport Authority is the only party authorised to seize a passport.
Landmark precedents
In Suresh Nanda v. CBI5 the Court held that, “The order rejecting the release of passport by the Court observing that it is held in safe custody till the conclusion of the trial is unsustainable.” In recognition of the fact that having a passport and travelling is unquestionably recognised as a fundamental right in a large number of judgments, the petitioner is thus entitled to the release of his passport.
In Hardik Shah v. Union of India6, the High Court of Madhya Pradesh noted that detaining a traveller’s passport for unjustifiable reasons interferes with their fundamental right to subsistence protection under Article 21 of the Indian Constitution. According to Justice Sujoy Paul, a person’s passport cannot be seized just because a case involving a violation of Section 498-A of the Penal Code (IPC) is ongoing, or a red corner notice has been issued against them.
In another case, Praveen Surendiran v. State of Karnataka7, the Karnataka High Court ruled that while any documents impounded pursuant to Section 104 of the Criminal Procedure Code may be done by the court, the passport of an accused person may only be done by the proper authority specified under the Passports Act, a special enactment.
Conclusion
According to the Passports Act of 1967 and court rulings in India, it is possible to draw the conclusion that the freedom to travel abroad is guaranteed by Article 21 of the Indian Constitution, but there are some specific conditions under which a person’s passport may be seized. Such impounding must, however, be supported by a legal process and justifications. An authority’s failure to provide a rationale for their judgments would amount to administrative absolutism, which the Indian Judiciary has categorically refuted, and such an order would be regarded as void.
The two major principles of natural justice are that an accused person should be given a fair chance to be heard and that no one should be allowed to judge their own case. It is possible that the first two principles have led to the third principle, which states that a party has a right to know the reasoning behind a decision. The individual who is affected is frequently not given a specific explanation for the impounding, especially when Section 10(3)(c) of the Passports Act is used.
Also, according to Section 102(1) of the Criminal Procedure Code of 1973, the police may have the authority to confiscate a passport, but they do not have the authority to impound the document. A passport may only be impounded by the Passport Authorities in accordance with Section 10(3) of the Passports Act, 1967. The Criminal Procedure Code of 1973, Section 104, grants the Court the authority to impound any document or thing produced before it, however the Passports Act of 1967 is a distinct statute pertaining to passport proceedings. The law is clear that in cases where there is a special Act dealing with a particular subject, that Act should be consulted rather than the general Act addressing the issue related to that Act.
† Kapil Madan, Partner, KMA Attorneys.
†† Sahil Madaan, Associate, KMA Attorneys.
The author has acknowledged the work of Arnav Kadian, student, IILM University for their research on the article.
