Maneka Gandhi v Union of IndiaPresentation Transcript
CASE ANALYSIS ON JURISPRUDENCE
ABHINANDAN RAY & PARTHASHREE
SOA NATIONAL INSTITUTE OF
Supreme Court of India
Maneka Gandhi vs Union Of India on 25 January, 1978
Equivalent citations: 1978 AIR 597, 1978 SCR (2) 621
UNION OF INDIA
DATE OF JUDGMENT25/01/1978
BEG, M. HAMEEDULLAH (CJ)
CHANDRACHUD, Y.V. j.
BHAGWATI, P.N. j.
KRISHNAIYER, V.R. j.
UNTWALIA, N.L. j.
FAZALALI, SYED MURTAZA j.
KAILASAM, P.S. j.
• According to Dicey,
“The right to personal liberty as understood in England means in
substance a person‟s right not to be subjected to imprisonment, arrest, or other
physical coercion in any manner that does not admit of legal justification.”
In other words, „personal liberty‟ means freedom from physical restraint and
coercion which is not authorized by law.
• Article 21 of the Constitution says, “No person shall be deprived of his life
or personal liberty except according to procedure established by law.”
• Maneka Gandhi‟s case is not only a landmark case for the interpretation of
Article 21 but it also gave an entirely new viewpoint to look at the Chapter
III of the Constitution. Prior to Maneka Gandhi‟s decision, Article 21
guaranteed the right to life and personal liberty only against the arbitrary
action of the executive and not from the legislative action. Broadly
speaking, what this case did was extend this protection against legislative
• The petitioner was issued a passport on June
1, 1976 under the Passport Act, 1967.
• On the 4thof July 1977, the petitioner received a
letter dated 2nd July, 1977, from the Regional
Passport Officer Delhi intimating to her that it
was decided by the Government of India to
impound her passport under s. 10(3)(c) of the Act
"in public interest".
• The petitioner was required to surrender her
passport within 7 days from the receipt of that
• The petitioner immediately addressed a letter to the
Regional Passport Officer requesting him to furnish a
copy of the statement of reasons for making the order
as provided in s.10(5).
• A reply was sent by the Government of India, Ministry
of External Affairs on 6th July 1977 stating inter alia
that the Government decided "in the interest of the
general public" not to furnish her copy of the statement
of reasons for the making of the order.
• The petitioner thereupon filed the present Writ Petition
challenging action of the Government in impounding
her passport and declining to give reasons for doing so.
Article 21 in The Constitution Of India 1949
Article 19 (5) in The Constitution Of India 1949
Article 19(1) (a) in The Constitution Of India 1949
The Passport (Entry Into India) Act, 1920
Section 10(3) in The Passports Act, 1967
The passport authority may impound or cause to be impounded or revoke a passport or travel document,(a) if the passport authority is satisfied that the holder of the passport or travel document is in wrongful possession thereof;
(b) if the passport or travel document was obtained by the suppression of material information or on the basis of wrong
information provided by the holder of the passport or travel document or any other person on his behalf; 1[ Provided that if the
holder of such passport obtains another passport, the passport authority shall also impound or cause to be impounded or revoke
such other passport.]
(c) if the passport authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of
India, friendly relations of India with any foreign country, or in the interests of the general public;
(d) if the holder of the passport or travel document has, at any time after the issue of the passport or travel document, been
convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not
less than two years;
(e) if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are
pending before a criminal court in India;
1. Ins. by Act 35 of 1993, s. 4 (w. e. f. 1- 7- 1993 )
(f) if any of the conditions of the passport or travel document has been contravened;
(g) if the holder of the passport or travel document has failed to comply with a notice under sub- section (1) requiring him to
deliver up the same;
(h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the
arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or if
an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such
court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made.
1. Is Section 10(3)(c) of the Passport Act 1967 , violates
the Article 14 of the Indian Constitution?
2. Is Section 10(3)(c) of the Passport Act 1967 , violates
the Article 19(1)(a) or (g) of the Indian Constitution?
3. Is Freedom of Speech and expression confined to the
territory of India ?
4. Is the right to go abroad covered by article 19(a) or (g)
of the Indian Constitution?
5. Whether the challenged order is intra vires Section
10(3)(c) of the Passport Act 1967?
6. Is the challenged order Constitutionally valid?
• It was held that section 10(3) (c) confers unguided and
unfettered power on the Passport Authority to impound
a passport and hence it is violative of the equality
clause contained in Article 14.
• Moreover, it was said that when the order impounding a
passport is made by the Central Government, there is
no appeal or revision provided by the Statute and the
decision of the Central Government that it is in public
interest to impound a passport is final and conclusive.
The discretion vested in the Passport Authority, and
particularly in the Central Government, is thus
unregulated and unrestricted and this is plainly in
violation of Article 14.
Justice bhagabati beautifully explained it as Article 14 is a founding faith of the
Constitution. It is indeed the pillar on which rests securely the foundation of our
democratic republic and, therefore, it must not be subjected to a narrow, pedantic or
lexicographic approach. No attempt should be made to truncate its all embracing
scope and meaning, for to do so would be to violate its magnitude.
Equality is a dynamic conceptwith many aspects and dimensions and it cannot be
imprisoned within traditional and doctrinaire limits.
In E.P. Royappa v. State of Tamil Nadu & Another  2 SCR 348 he stated
“Equality and arbitrariness are sworn enemies; one belongs to the rule of law in a
republic while the other to thewhim and caprice of an absolute monarch. Article 14
strikes at arbitrariness in State action and ensures fairness and equality ,of
treatment. The principle of reasonableness which legally as well as
philosophically, is an essential element of equality or non-arbitrariness pervades
Article 14 like a brooding omni-presence and the procedure contemplated by
Article 21 must answer the test of reasonableness in order to be in conformity with
Article 14. It must be right and just and fair and not arbitrary, fanciful or
• It is true that the Passports Act does not provide for
giving reasonable opportunity to the holder of the
passport to be heard in advance before impounding a
passport. But that is not conclusive of the question.
• If the statute make itself clear on this point, then no
more question arises but even when statute is silent the
law may in a given case make an implication and apply
the principle. Natural justice is a great humanising
principle intended to invest law
with fairness and
to secure justice and over the years it has grown into a
widely pervasive rule affecting large areas of
• The right, which is sought to be restricted by Section 10(3)(c) and
the order, is the right to go abroad and that is not named as a
• But the argument of the petitioner was that the right to go abroad is
an integral part of the freedom of speech and expression and
whenever State action, be it law or executive fiat, restricts or
interferes with the right to go abroad, it necessarily involves
curtailment of freedom of speech and expression.
• Respondent argues the right to go abroad could not possibly be
comprehended within freedom of speech and expression, because
the right of free speech and expression guaranteed under Article
19(1)(a) was exercisable only within the territory of India and the
guarantee of its exercise did not extend outside the country and
hence State action restricting or preventing exercises of the right to
go abroad could not be said to be violative of freedom of speech and
• Arguments of the Petitioner
• These rights were conceived by the Constitutionmakers not in a narrow limited since but in their
widest sweep, for the aim and objective was to
build a new social order where man will not be a
mere plaything in the hands of the State or a few
privileged persons but there will be full scope and
opportunity for him to achieve the maximum
development of his personality and the dignity of
the individual will be fully assured.
• Freedom of speech and expression carries with it the right to gather
information as also to speak and express oneself at home and abroad
and to exchange thoughts and ideas with others not only in India but
• While the constitutional debate was going on, the UDHR was
adopted and most of the fundamental rights which is included in
Part III were recognized and adopted from the U N as the
inalienable rights of man in the UDHR.
• Article 13 of the UDHR declared that every one has right to freedom
of opinion and expression; this right includes freedom to hold
opinions without interference and to seek, receive and import
information and ideas
• This was the glorious declaration of the fundamental freedom of
speech and expression - noble in conception and universal in scope which was before them when the constitution-makers enacted
PRE-MANEKA GANDHI: OLD POSITION
The concept of „personal liberty‟ first came up for consideration of the Supreme Court in A.K.
Gopalan‟s case. In this case, the Petitioner had been detained under Preventive Detention
Act, 1950. The petitioner challenged the validity of his detention on the ground that it was
violative of his Right to freedom of movement under Art. 19(1)(d), which is the very essence
of personal liberty guaranteed by Art. 21 of the Constitution. He argued that the words
„personal liberty‟ include the freedom of movement also and therefore the Preventive
Detention Act, 1950 must also satisfy the requirements of Art. 19(5). It was further argued
that Art. 21 and Art. 19 should be read together as Art. 19 laid out the substantive rights while
Art. 21 provided procedural rights. It was also argued that the words “procedure established
by law” actually meant “due process of law” from the American Constitution which includes
principles of natural justice and the impugned law does not satisfy that requirement.
Rejecting both the contentions, Supreme Court, by the majority, using the meaning given to
the phrase „personal liberty‟ by Dicey, held that the phrase „personal liberty‟ in Art. 21 meant
nothing more than the liberty of the physical body, that is, freedom from arrest and detention
without the authority of law. According to majority, the term „liberty‟ was wider in meaning
and scope than „personal liberty‟. Hence, while „liberty‟ could be said to include Art. 19
within its ambit, „personal liberty‟ had the same meaning as given to the expression “liberty of
the person” under English law. Hence, the majority took the view that Art. 19 and Art. 21 deal
with different aspects of liberty. The Court further interpreted the term „law‟ as „State made
law‟ and rejected the plea that the term „law‟ in Art. 21 meant jus naturale or principles of
• It is pertinent to mention here that in A.K. Gopalan‟s case, the
attention of the Supreme Court was drawn to the legislative history
of Art. 21 which showed why the expression “due process of law”
was replaced by “procedure established by law”. However, it is
unfortunate that the legislative history of Art. 22, and particularly of
clauses (1) and (2), whereby the substance of “due process” was
reintroduced, was not brought to the attention of the Supreme Court.
• But this restrictive interpretation of the expression „personal liberty‟
has not been followed by the Supreme Court in its later decisions.
Like for example, in Kharak Singh‟s case, it was held that “personal
liberty” was not only limited to bodily restraint but was used as
compendious term including within itself all the varieties of rights
which go to make up the personal liberty of man other than those
dealt within Art. 19(1).
POST-MANEKA GANDHI: NEW DIMENSION
In Maneka Gandhi‟s case, the meaning and content of the words „personal liberty‟ again
came up for the consideration of the Supreme Court. In this case, the petitioner‟s
passport had been impounded by the Central Government u/s 10(3)(c) of the Passport
Act, 1967. Here, the Supreme Court not only overruled A.K. Gopalan‟s case but also
widened the scope of words „personal liberty‟ considerably. Bhagwati, J. observed:
“The expression „personal liberty‟ in Article 21 is of widest amplitude and it covers a
variety of rights which go to constitute the personal liberty of man and some of them
have raised to the status of distinct fundamental rights and given additional protection
under Article 19.”
With respect to the relationship between Art. 19 and Art. 21, the Court held that Art. 21
is controlled by Art. 19, i.e., it must satisfy the requirement of Art. 19. The Court
“The law must therefore now be settled that Article 21 does not exclude Article 19 and
that even if there is a law prescribing a procedure for depriving a person of personal
liberty, and there is consequently no infringement of the fundamental right conferred by
Article 21 such a law in so far as it abridges or takes away any fundamental right under
Article 19 would have to meet the challenges of that Article.”
Thus a law “depriving a person of „personal liberty‟ has not only to stand the test” of
Article 21 but it must stand the test of Art. 19 and Art. 14 of the Constitution.
• P.N. Bhagwati, J. (as his Lordship then was) held that the expression
“personal liberty” in Article 21 is of the widest amplitude and it covers a
variety of rights which go to constitute the personal liberty of man and
some of them have been raised to the status of distinct fundamental rights
and give additional protection under Article 19. Any law interfering with
personal liberty of a person must satisfy a triple test: (i) it must prescribe a
procedure; (ii) the procedure must withstand a test of one or more of the
fundamental rights conferred under Article 19 which may be applicable in a
given situation; and (iii) it must also be liable to be tested with reference to
Article 14. As the test propounded by Article 14 pervades Article 21 as
well, the law and procedure authorising interference with the personal
liberty must also be right and just and fair and not arbitrary, fanciful or
oppressive. If the procedure prescribed does not satisfy the requirement of
Article 14, it would be no procedure at all within the meaning of Article 21.
The Court thus expanded the scope and ambit of the right to life and
personal liberty enshrined in Article 21 and sowed the seed for future
development of the law.
• Hence to conclude, it may be said that Maneka Gandhi‟s
case, gave the term „personal liberty‟ widest possible
interpretation and gave effect to the intention of the drafters
of the Constitution. This case, while adding a whole new
dimension to the concept of „personal liberty‟, extended the
protection of Art. 14 to the personal liberty of every person
and additional protection of Art. 19 to the personal liberty of
• In this case the Hon‟ble court interpreted different Articles of
the Constitution very brilliantly. But the post decisional
doctrine, which was given in this case, I think is not good. A
person should be given the chance of defending
himself, before the before the decision. And in this case the
petitioner should be compensated.
(1) To the extent to which Section 10(3)(c) of the Passports Act, 1967
authorizes the passport authority to impound a passport in the
interests of the general public, it is violative of Article 14 of the
Constitution since it confers vague and undefined power on the
(2) Section 10(3)(c) is void as conferring an arbitrary power since it
does not provide for a hearing to the holder of the passport before
the passport is impounded.
(3) Section 10(3)(c) is violative of Article 21 of the Constitution since it
does not prescribe 'procedure' within the meaning of that article and the
procedure practised is worst.
(4) Section 10(3)(c) is against Articles 19(1)(a) and 19(1)(g) since it
permits restrictions to be imposed on the rights guaranteed by these
articles even though such restrictions cannot be imposed under Articles
19(2) and 19(6).
• A new doctrine of Post decisional theory was evolved.