This article is written by Jannat, a student of BA LLB (Hons), Chandigarh University, Mohali. The article explains the passport problem in the context of Mehbooba Mufti v. Union of India and Others.
Table of Contents
Introduction
On the 3rd of March 2021, People’s Democratic Party Chairperson Mehbooba Mufti appealed to the Jammu and Kashmir High Court for the issuance of a passport stating that the police had still had to produce their authentication records, stopping the issuance process, after more than two months. During a hearing of the lawsuit, the Regional Passport Officer in Srinagar presented this response to the court.
Facts of the case
In the case of the petitioner in point is that on 11 December 2020, she filed a request to issue a passport in her favour, against receipt under file SG1065057682420, to respondent no. 4/Passport officer, Regional Passport Office, Boulware Road, Srinagar. According to circular directives provided in this regard by the Indian Government’s Minister of External Affairs, the individual’s passports have to be released within 30 days following the receipt of the request, but no passport has been issued in favour of the petitioner considering the three months lapse.
Though refusing passport issuance, the regional passport office states that the Police Verification Report obtained from the J&K Crime Investigation Department through the Additional Director General of Police, J&K CID, “does not prefer” passport issuance. It goes on to say that Mufti’s case was “expected to draw rejection” on the previously stated criteria.
Mr. Tahir Majid Shamsi, the learned Assistant Solicitor General of India submitted that he was already seeking information from the Additional Director General when the matter was taken up at the very motion hearing, viz. 8 March 2021, when appearing on behalf of respondents 1 and 4.
The learned Senior Additional General Advocate who has appeared on behalf of respondents 2, 3, and 5 has led the police verification report to be expedited. The matter was subsequently scheduled on 23 March 2021 and Mr. Dar, who was the learned additional Senior Advocate General and appeared on behalf of respondents 2, 3, and 5, said that the reply sent on behalf of respondent No. 3 could be considered as a reply from respondent 2 and 5 as well. The submission of the learned Senior Additional Advocate General was adopted and the response from respondent no. 3 was addressed by and on behalf of respondents 2 and 5.
It followed from the readings of this reply that the report/PVR about the petitioner’s case was forwarded to Srinagar, Regional Passport Officer, by the Additional Director General of Police, CID, J&K/Respondent No.3.
Mr. Shamsi, the learned Assistant Solicitor General of India (ASGI), informed of the above-mentioned situation sought some time to present its position and, subsequently, on 29 March 2021 the matter was then settled pending further consideration.
Arguments made on behalf of the petitioner
The status of her passport application in her favour seems to have been heard by CM No 11215/2021 of External Affairs, Government of India:
- The corresponding Thana under the SP Office, Srinagar District, is awaiting physical policing verifications.
- In the light of the condition set out above, the petitioner has argued that, with the request to the Regional Passport Office (PVR) Srinagar on 13 February 2021, he was approaching respondent no.5, but that, since no action had been taken, the petitioner knocked at the doors of the Court. Respondent 5 (Senior Police Superintendent Srinagar)
- In her appeal to the court, Mufti said that “the delay in issuing the passport in favour of the petitioner has the purpose of putting limitations on the privileges of the petitioner conferred upon her by the Constitution of India, which guarantees her freedom to travel abroad,” as expressed in Article 21 of the Constitution under “Personal Liberty.”
Prayer
- a) Issue an effective writ, subpoena, or instruction of the nature of Mandamus ordering the Respondents to issue a Passport in favour of the petitioner as soon as possible;
- b) Issue an effective writ, order, or guidance like Mandamus declaring respondents’ refusal to allow the petitioner to travel abroad as unlawful and unconstitutional, infringing on the petitioner’s fundamental right to travel abroad guaranteed by Article 21 of the Indian Constitution; and
- c) Some other order or guidance that this Hon’ble Court deems necessary in light of the facts and circumstances of the case.
Arguments made on behalf of the respondent
1.The Jammu & Kashmir law enforcement agencies refused to grant a new passport to former Chief Mehbooba Mufti invoking Section 6(2)(c) of the 1967 Passport Act, stating that “the applicant’s withdrawal from Indian territory can, or is possible, counter-productive towards Indian safety.”
- The request for issuance of a passport is refused with acknowledgement of ‘not recommended passport case,’ based on the Police Verification Report of the additional director of police, J&K CID/respondent No.3.
- The petitioner’s writ petition should be dismissed since no order can be given by this court about the issuance of a passport in favour of the petitioner, which is contradictory to the scheme of the law regulating the topic.
- Given the events and circumstances of this case, it was also argued that the petitioner had the right, in the context of the rejection order issued by respondent 4 to appeal from the Joint Secretary (Passport Seva Program) and Chief Passport Officer, Ministry of External Affairs, Patiala House in New Delhi within thirty days after receipt of the order under Section 11 of the Passport Act, 1967.
- Mr. Shamsi also argues that the claimant does not have the full right to obtain a passport in her favour because the passport, being a document vouching for the respectability of the issuer, means that the government is not required to vouch for someone it does not find worthy.
Rebuttal
The petitioner argued that Section 11 of the Passports Act of 1967 is inapplicable in this case because respondent No.4 allegedly granted the petitioner’s passport rejection/refusal order under Section 6 of the Passport Act, which is not open to appeal under Section 11 of the Act of 1967.
Held
By the acceptable position of the laws governing passports for Indian citizens, the relevant passport authority shall seek an appropriate report from the relevant police/CID authorities upon receiving the application from a person seeking a passport, and based on that report, the authority shall issue or refuse to provide the passport.
The Police Verification Report released by the Srinagar Passport Officer did not propose in the present case that a passport should be given to a petitioner; as a result, the passport officer refused to give a passport to the petitioner. The judge believed that the court should not issue an order ordering the issuance of a passport in the applicant’s favour. Nonetheless, the court’s jurisdiction in the matter of granting or refusing a passport in favour of a person is very limited, as the court can only order the concerned authorities to accept an individual’s case quickly and decisively in light of the mandate of the scheme of law governing the subject.
However, by first asking the police/CID authorities for a report and then passing the order in compliance with several police/CID authorities, the respondents have already carried out the exercise referred to above in conformity with the provisions of the law.
In addition, the court sees more substance in the respondents’ case. In the light of the case of ‘Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, New Delhi & Ors, the claimant has no absolute right to seek a passport for its benefit according to the judgement of the Hon’ble Supreme court. In light of the above, the judge sees no basis to conflict with the respondents’ course of action in this situation, and as a result, the petitioner’s appeal was thus withdrawn. Interim direction(s), shall be revoked.
Conclusion
Meanwhile, a separate appeal was rejected for the mother of Mehbooba Mufti, Gulshan Nazir, for the same cause. “CID claims that my mother, who is in her 70s, is a ‘national security danger’ and therefore is not eligible for a passport. The Government of India uses absurd tactics to harass and bully me not to go along,” said Mehbooba Mufti.
According to a letter from the Passports Officer in Srinagar dated 26 March 2021 the case was found to attract refusal under Article 6(2)(c) of the Passport Act of 1967. On 14th December 2020, Gulshan Nazir, the wife of Mufti Mohammad Sayeed, applied for a passport.
In some significant cases, the Supreme Court ruled that the right to travel abroad is part of the basic right to life and personal rights provided for in Article 21 of the Constitution.
In Satwant Singh, the Supreme Court decided that the right to travel abroad comes under Article 21. The parliament passed the Passport Act of 1967 after the above-mentioned ruling. The Act requires the authorities to seize a passenger’s passport if they consider it is a danger to the right to sovereignty of India or national security or will adversely affect the safe relations with a foreign government or the public of India. Therefore, the reason for such an impoundment must be forwarded to the parties concerned, even though the public interest may omit these reasons.
Maneka Gandhi v Union of India, 1978
Facts- In the case of Maneka Gandhi v Union of India, the authorities issued a notice of impoundment of petitioner Meneka Gandhi’s passport on July 4, 1977, citing reasons as an interest of the general public. As soon as the petitioner received the notice of impoundment, she retreated to the authorities, asking for concrete detailed reasons over why her passport should be impounded; the authorities, however, responded that the reasons are not to be disclosed. As a result, the complainant moved the Supreme Court under Article 32 of the Indian Constitution for the protection of the constitutional right enshrined in Article 14 of the Constitution of India against unconstitutional conduct by the authorities. The petition was further revised and applied with Article 21 Article 19(1)a (free speech) and Article 19(1)G (free movement) of the Constitution. The complainant pleaded that the impugned order is null and void because it violated her right to a fair trial to address her defence.
Held- The court, in this seminal decision, modified the map of India’s constitution by holding that, though the term used in Article 21 is a procedure established by law, the procedure must also be free of arbitrary nature and irrationality. The Supreme Court ruled that, rather than unfair and vague grounds, personal freedom could only be curbed for fair, just, and logical reasons. Gandhi’s working passport was confiscated in the “public interest” under Section 10(3)(c) of the Passport Act, without giving Gandhi the chance to lift her case. The majority verdict of seven judges put the State on “due process” rather than “any procedure laid down in the constitution to violate the freedom of the person. Ergo as held in Satwant Singh the desire to travel abroad falls within the limits of the assurances stated in Article 21.
The court ruled that the definition of individual freedom could not be interpreted narrowly. As a result, Article 21 was granted a broad reading. The court obliged prospective courts to broaden the outlook of Article 21 to include all fundamental rights and to stop interpreting it in a restricted way.
Mufti said on Twitter, “The Passport Office refused to grant my passport based on CID’s study citing it as ‘detrimental to India’s stability.” This is the degree of normalcy in Kashmir that has been reached since August 2019 that an ex-chief minister with a passport is a danger to the security of a great nation.”
Meanwhile, Vice-President Omar Abdullah of the National Conference said on Twitter: “We are sorry that the J&K police are going along with that farce,” he said, who considered a denial of the passport for the PDP leader to be a disgrace. How come Mehbooba Mufti’s party was not a threat to the government when it joined forces with the BJP. As chief Minister, She was responsible for the home department and the unified command.
References
- https://indiankanoon.org/doc/49505697/
- https://indiankanoon.org/doc/1526429/
- https://indiankanoon.org/doc/652529/
- https://indiankanoon.org/doc/1747577/
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
