DEPARTMENT OF LAW

NAME:- MURAD ALI SHAH

ENROLLMENT NUMBER-16042125037
SEMESTER:- 6th
SUBJECT: CONSTITUTIONAL LAW-II
NAME OF COLLEGE:- VITASTA SCHOOL
OF LAW AND HUMANITIES
ASSIGNMENT TITLE: MANEKA GANDHI’
CASE EXERTING MULTIDIMENSIONAL
IMPACT ON DEVELOPMENT OF
CONSTITUTIONAL LAW OF INDIA

TEACHER INCHARGE:- Dr SYED ASIMA

REFAYI

DATE OF SUBMISSION
 INDEX
INTRODUCTION
FACTS OF THE CASE
ISSUES RAISED
ARGUMENTS ADVANCED
JUDGEMENT
IMPACT OF MANEKA GANDHI’S CASE ON
THE DEVELOPMENT OF CONSTITUTIONAL
LAW OF INDIA
IMPACT ON ARTICLE 19
SUPREME COURT DIFFERING APPROACH
FOR FUNDAMENTAL RIGHTS
THE DUE PROCESS CLAUSE
AN ALTERED CONSTITTUTIONAL CLIMATE
CONCLUSION
BIBLIOGRAPHY
WEBOGRAPY
 INTRODUCTION
For the first time in India's constitutional history, The Supreme Court accepted, by majority,
in the Maneka Gandhi’s case in 1978 that the right to life and personal liberty was subject to
a higher norm based on fairness and reasonableness despite the explicit deletion of the due
process clause from the Constitution. The court found that by denying Maneka Gandhi a
hearing before impounding her passport, the Passport Authority of India had violated the
principles of natural justice. The court articulated the view that the procedure established by
law under Article 21 must be fair, just and reasonable. In moving from the narrower threshold
of procedure established by law to the more liberal substantive due process for restraining
personal liberty; this decision was the precursor to the creative expansion of rights by the
judiciary.

The case of Maneka Gandhi vs. Union of India is considered to be a Landmark Judgment due
to the transformation of the interpretation and understanding of Article 21 of the Constitution
of India.

Through this case an implication was raised regarding the presence and derivative capability
of many more rights from Article 21. The case is centered and revolves around the concept of
“Personal Liberty”.

“According to :- US Legal Merriam-Webster Dictionary “ Personal Liberty” means the right

of an individual to behave in any manner they see fit while staying within the restrictions
placed on them by the Law or the Society.

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.

Acts referred: Article 14, Article 19 (1) (a), Article 21 and Article 32 of Constitution of
India, 1950, The Passport Act, 1967
 FACTS OF THE CASE
On July 04, 1977 , Maneka Gandhi, received a letter from a Regional Passport Officer, Delhi
intimating her to surrender the passport within seven days from the date of receipt of the
letter, as it was decided by the Government of India to impound her passport under Section
10 (3) (c) of the Passport Act 1967 in “public interest” .The Petitioner immediately send a
letter to Regional Passport Officer asking a reason and requesting him to provide a copy of
the statement of reasons for making the order. On the reply, it was sent by the Ministry of
External Affairs, Government of India, on July 06, 1977 stating that Government has decided
to impound the passport in the interest of the general public” and Not to hand over her a copy
of the statement of reasons. Seeing no other recourse, Maneka Gandhi filed a petition in the
Supreme Court of India.

  ISSUES RAISED
In the light of Facts the issues raised in the case are as follows:

1.Is Section 10(3) (c) of Indian Passport Act,1967, violates of the Article 14 of the
Constitution of India

2.Is Section 10(3) (c) of Indian Passport Act,1967, violates of the Article 19(a) or (g) of the
Constitution of India

3.Is the right to go abroad by Article 19(a) or (g)of the Indian Constitution

4.Is Freedom of Speech and Expression confined to the territory of India

5.Whether the impugned order is intra vires Section 10(3) (c) of the Indian Passport Act,
1967

6.Is the impugned order Constitutionally Valid

ARGUMENT ADVANCED:-
1 .Is Section 10(3) (c) of Indian Passport Act,1967, violates of the Article 14 of the
Constitution of India

Under Section 10(3) (c) of the Passport Act, the Passport Authority impounded the passport
of the petitioner “in the interest of the general public”.

Thus, it confers unguided and unfettered power to the Passport Authority

It is violative of the equality clause contained in Article 14

Article 21 though framed as to appear as a shield operating negatively against executive

encroachment over something covered by that hield, is the legal recognition of both the
protection or the shield as well as of what it pro- tects which lies beneath that shield

Respondent Argues:-

The words “in the interest of the general public” have a clearly well-defined meaning.

Section 10(3) (c) is not wider than the constitutional provision in Article 19(5) of the
constitution.

The Passport Authority is required to record in writing a brief statement of reasons for
impounding the passport and, save in certain exceptional circumstances, to supply a copy of
such statement to the person affected

The power is exercised by the Central Government itself. So, it can safely be assumed that
the Central Government will exercise the power in a reasonable and responsible manner.

2 .Is Section 10(3) (c) of Indian Passport Act,1967, violates of the article 19(1)(a) or (g) of
Indian Constitution

Article19(1) All citizens have the right of-

to freedom of speech and expression; to practice any profession, or to carry on any

Occupation, trade or business

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 fundamental right.

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.

The right of travel and to go outside the country is included in the fight to personal liberty

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 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 expression.

3.Is the right to go abroad by Article 19(a) or (g)of the Indian Constitution

The Union of India challenged that it was the basic propose of the Constitution that the
fundamental rights guaranteed by it were available only within the territory of India, for it
could never have been the intention of constitution makers to confer rights which authority of
the state could not enforce.

Arguments of the Petitioner:-

These rights were conceived by the Constitution makers 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.

Could the constitution makers have intended that a citizen should have this freedom in India
not outside?

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 also outside.

The words “in the territory of India” could have been added at the end of Article 19(1) (a).
But it was deliberately refrained from using any words of limitation.

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 by the U.N. as
the inalienable rights of man in UDHR

Article 13 of the UDHR declared that “every one has the 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 Article 19(1) (a).
4 .Is Freedom of Speech and Expression confined to the territory of India

The right of free speech and expression and the right to profession can have meaningful
content and its exercise can be effectively only if the right to travel abroad is ensured and
without it the former rights would be limited by geographical constraints and restrains.

5.Whether the impugned order is intra vires Section 10(3) (c) of the Indian Passport Act,
1967

The respondent claims the order was according to the stated Section but the Petitioner claims
that the order was violating the section, because according to the Section Authority should
give the reason. But the respondent hadn’t.

6.Is the impugned order Constitutionally Valid?

The gross violation of the natural justice embodied in the maxim audi alteram partem.

Therefore, Null and Void

It would be entirely for the Commission of Inquiry to decided whether her presence is
necessary or not. But the impugned order was on the basis of a mere opinion by the Central
Government that the Petitioner likely to be required in connection with the proceeding before
the Commission of inquiry was, in the circumstance, clearly unreasonable.

It is also violative of the Article 19(2) (6)

The tests of validity of restrictions imposed upon the rights covered by Article 19(1) will be
found in clause (2) to (6) of Article 19.)
 JUDGEMENT
To the extent to which section 10 (3) (c) of the Passport Act, 1967 authorities to passport
authority to impound a passport “in the interest of the general public”, it violative of
Article 14 of the Constitution since it confers vague and undefined power on the passport
authority;
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;
Section 10 (3) (c) is volative of Article 21 of the Constitution since it does not prescribe
procedure within the meaning of that article and the procedure practiced is worst.
Section 10 (3) (c) is against Aricle 19 (1) (a) and 19 (1) (g) since it permits restrictions to
be imposed on the rights guaranteed by these articles under Articles 19 (2) and 19 (6).
A new Doctrine of Post Decisional Theory was evolved.

In The Words of C.J M.H Beg

The case before us involves questions relating to basic human rights. On such questions I
believe that multiplicity of views giving the approach of each member of this Court is not a
disadvantage if it clarifies our not infrequently differing approaches. It should enable all
interested to appreciate better the significance of our Constitution. As I am in general
agreement with my learned brethren Bhagwati and Krishna Iyer. I will endeavour to confine
my observations to an indication of my own approach on some matters for consideration now
before us. This seems to me to be particularly necessary as my learned brother Kailasam, who
has also given us the benefit of his separate opinion, has a somewhat different approach. I
have had the advantage of going through the opinions of each of my three learned brethren. It
seems to me that there can be little doubt that the right to travel and to go outside the country,
which orders regulating issue, suspension or impounding, and cancellation of passports
directly affect, must be included in rights to "personal liberty" on the strength of decisions of
this Court giving a very wide ambit to the right to personal liberty

Article 21 of the Constitution reads as follows :

Protection of life and personal liberty. No person shall be deprived of his life or personal
liberty except according to procedure established by law.
It is evident that Article 21, though so framed as to appear as a shield operating negatively
against executive encroachment over something covered by that shield, is the legal
recognition of both the protection or the shield as well as of what it protects which lies
beneath that shield. It has been, so interpreted as long ago as in A. K. Gopalan v. State of
Madras , where, as pointed out by me in Additional District Magistrate, Jabalpur VS S. S.
Shukla and Ors .

In that case, Mukherjee J., after conceding that the rights given by Article 19 (1) (d) would be
incidentally contravened by an order of preventive detention and expressing the opinion that
a wider significance was given by Blackstone to the term "personal liberty", which may
include the right to locomotion, as Mr. Nambiar, learned Counsel for A. K. Gopalan, wanted
the Court to infer, gave a narrower connotation to "personal liberty", as "freedom from
physical constraint or coercion" only. Mukherjea, J., cited Dicey for his more restrictive view
that "personal liberty" would mean : "a personal right not to be subjected to imprisonment,
arrest or other physical coercion in any manner that does not admit of legal justification". He
then said :

It is, in my opinion, this negative right of not being subjected to any form of physical restraint
or coercion that constitutes the essence of personal liberty and not mere freedom to move to
any part of the Indian Territory.
IMPACT OF MANKEA GANDHI’S CASE IN DEVELOPMENT
OF CONSTITUTIONAL LAW OF INDIA

IMPACT ON ART.19 PERSONAL LIBERTY

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 natural justice.

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 observed: 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.”
SUPREME COURT DIFFERING APPROACH FOR FUNDAMENTAL RIGHTS

The impact and importance of the MANEKA GANDHI judgement is due to the fact that
before this case the supreme court in many cases failed to interpret several constitutional
provisions especially fundamental rights which it was not supposed to do.In this case,the
supreme court highlighted the importance of fundamental rights .In this case the Supreme
court agreed that the fundamental right conferred upon the plaintiff under Art.21 has been
infringed.

In Maneka Gandhi’s case the word ‘Deprivation’ was re-interpreted by the Supreme Court
contrary to that as in A.K.GOPALAN case (i.e total deprivation). Court even considered
partial deprivation of right to move as the infringement of the Art.21 of the constitution.

Justice Bhagwati in Maneka Gandhi case stated that- “A right which is not provided in Part
III of the constitution will come under the ambi of Art.-21”.

Amongst the fundamental rights,Art.14,19 and 21 of the constitution composes the ‘golden
triangle’ have been invoked most often to declare the legislationor arbitrary state action
invalid

THE DUE PROCESS CLAUSE

The question that the supreme court sought to answer in Maneka Gandhi was ‘Does a law
that satisfies all procedural requirements in its enactment,however arbitrary or
unreasonable,meet the test of Article 21’.

The seminal importance of the Maneka Gandhi decision was that the court transformed itself
from being merley a supervisor, to being the watchdog of the constitution.The courts
judgement in Maneka Gandhi was based on simple premise that an arbitrary law is no
law.The supreme court judgement in Maneka Gandhi effectively meant that ‘procedure
established by law’ under Article 21 would have the same effect as the expression ‘Due
process’.According the supreme court decision Article 21 should be interpreted as ‘No person
shall be deprived of his life or personal liberty except according to fair,just,and
reasonableprocedure established by validlaw. It signifies the courts changing approach
towards the constitution.Through the judgement of this case the substantive due process
and,more broadly stated,the courts power to review the content of legislation to ascertain if
the mandate of Article 21 had been met,eventually found its way to India.

AN ALTERED CONSTITUTIONAL CLIMATE

It is the constitutional developments after Maneka Gandhi that highlight how it was one of
the cases that truly changed India.It was a turning point in the supreme courts interpretation
of Article 21.The court moved from a pedantic to a purposive approach in construing the
sweep of the right to life under the constitution.The judgement became a springboard for the
evaluation of the law relating to judicial preservation of human rights.The most striking
aspect of the supreme court introduction of substantive due process was that it empowered
courts to expand the limited phraseology of the right to life under the constitution of India ,to
include a wide range of un-enumerated rights .It was only through the judgement of Maneka
Gandhi case that the following rights were included within the ambit of the right to life and
personal liberty .

Right of Prisoners including protection from handcuffing without adequate handcuffing

,access to a transcript of the judgement and facilities to exercise his rights to appeal against
his conviction, the right to treatment with dignity and humanity,the right of an undertrial to
be released from custody if the police fail to file a chargesheet within the period prescribed,
protection from custodial violence and protected against public hanging.

Environmental Rights including the right to a humane and healthy environment, the right to
sustainable development,protection from pollution hazards due to use of pesticides and the
right to live without undue affection of air,water and the environment.

Other Rights including the right to live with human dignity,including access to nutrition,
clothing, and shelter,the right to free education of children up to the age of fourteen years,the
right to livelihood, protection of ones reputation, access to just and humane conditions of
work, protection of the health and strength of workers and maternity relief
 CONCLUSION
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 every citizen.
 BIBLIOGRAPHY

Lectures on Administrative Law- Takwani CK

Indian Constitution Law - M. P. Jain Sixth

The Constituion Of India - P.M. Bakshi

Commentary on Constitution of India,

Durga Das Basu - Volume 3, 8th Edition, 2008,

WEBOGRAPHY

www.indiankanoon.com

www.legalservices.org

www.studoc.com

www.unacademy.com

www.ipleaders.com