Right to Life: The Maneka Gandhi Case

Maneka Gandhi received a letter from the Regional Passport Officer, Delhi, in June,
1976 impounding her passport. She asked for the reasons for the impounding but
none came from the government. Not incidentally, she was the daughter-in-law of
Indira Gandhi, who had just lost the general elections to the coalition which had
opposed her imposition of the Emergency. Maneka Gandhi challenged the
constitutional validity of the government’s action. The Supreme Court judgement
became a landmark in the unfolding of the Indian constitution. 1 The judgement
consolidated reading of the fundamental rights organically as interrelationships; and
expanded the scope of the right to equality and the right to life. The case explores
the Supreme Court judgement.

Impounding of Passport

Maneka Gandhi received a letter from the Regional Passport Officer, Delhi,
intimating her that the Government of India had decided to impound her passport.
The letter cited that the impounding was done under S. 10(3)(C) of the Passport Act,
1967 in ‘public interest’. She was required to surrender the passport within seven
days. She immediately wrote to the Regional Passport Officer requesting for a copy
of the statement of reasons for making the order. The officer replied refusing to give
her the reasons for impounding the passport ‘in the interest of the general public’.
The communications will become intelligible in the light of the provisions of the
Passport Act, 1967.

The Passport Act, 1967 governed the issuance of passport to India citizens for
foreign travel. A citizen could get a passport by making an application. The
government could refuse a passport to an applicant only on certain grounds. The
grounds for refusal of a passport had to be recorded and communicated to the
applicant. The government had the power to revoke a passport it had issued. The
government could revoke an issued passport only on certain limited grounds.
Section 10(3)(c) of the Act provided the grounds for revocation:

(c) if the passport authority deems it necessary so to do in the interest 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;

Section 10(5) required the passport authority, impounding a passport, to record in

writing ‘a brief statement of the reasons for making such order.’ Further, the
government had to furnish a copy of the statement to the passport holder on
demand. The only ground for refusal was if the passport authority was ‘of the opinion
that it will not be 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 to furnish such a copy.’

This explained the communication between Maneka Gandhi and the passport officer.
The passport officer not only impounded her passport but also refused to give her

1
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
1
the reasons for it on the grounds that, in his opinion, it was not in the ‘interests of the
general public’ to do so. Maneka Gandhi challenged the constitutional validity of the
provisions of the Passport Act and the order made by the government under it. She
claimed the law was vague and arbitrary and violated the right to life and the
freedom to freely move. We will state her claims with reference to the constitutional
provisions.

Constitutional Provisions

The chapter on the fundamental rights has different headings under which the
fundamental rights are clustered. Under the heading ‘right to equality’ is Article 14,
‘Equality Before Law’. The article reads:

14. Equality Before Law- The State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India.

The next heading is ‘right to freedom’. Under this, Article 19 provides:

19. (1) All citizens shall have the right—

(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions or co-operative societies;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India;
*****
(g) to practise any profession, or to carry on any occupation, trade or business.

The freedoms are not absolute and unlimited. Each of the above freedom is limited
by a separate subsequent clause. The limitations on the freedom are in Articles
19(2) to 19(6). Article 19(1)(a) is constrained by Article 19(2), Article 19(1)(b) is
constrained by Article 19(3) and so forth. To illustrate, Article 19(2), restricting the
freedom of speech and expression reads:

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing
law, or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said sub-clause in
the interests of the sovereignty and integrity of India, the security of the State, friendly
relations with foreign States, public order, decency or morality, or in relation to
contempt of court, defamation or incitement to an offence.

Continuing with the head of right to freedom, Articles 20-22 provide as follows:

20. Protection in respect of conviction for offences. (1) No person shall be convicted
of any offence except for violation of a law in force at the time …

21. Protection of life and personal liberty.- No person shall be deprived of his life or
personal liberty except according to procedure established by law.

22. Protection against arrest and detention in certain cases. (1) No person who is
arrested shall be detained in custody without being informed, as soon as may be, of

2
 the grounds for such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice….

Maneka Gandhi contended that Section 10(3) (c) of the Passport Act gave the
powers to the government to impound a passport, without any hearing, by merely
claiming it to be ‘in the interests of the general public’. The power was vague and
arbitrary and violative of the right to equality under 14. A person going abroad would
interact and exchange with others. A passport holder could be going abroad to
pursue a business or profession. The impounding of her passport violated the right to
freedom in Article 19. More centrally, the impounding has constrained and confined
her from going abroad. Thus, it has deprived her of personal liberty and was violative
of Article 21.

The Supreme Court’s judgement in the case brought and integrated several of the
prior judgements. We will develop the prior cases as the building blocks and explore
the integration. The first case we take up is the Gopalan Case.

The Gopalan Principle: FRs are Watertight Compartments

The Gopalan Case2 was one of the very early cases before the Supreme Court. The
State of Madras, following the Preventive Detention Act, 1950, had arrested Gopalan
and taken into custody. Gopalan challenged the constitutional validity of the Act. The
challenge was under two grounds, violation of Article 22 and 19. Article 22 deals with
arrest and detention and got attracted. Article 22 requires the state to follow certain
measures and restraints for an arrest or detention to be valid. Gopalan claimed the
protection of Article 22. In addition, he brought out, that a person who was arrested
lost his freedom to move freely. Thus, the detention also attracted Article 19(1)(d),
the freedom ‘to move freely throughout the territory of India’. The implication was the
act must comply not only with Article 22 but also Article 19. Article 19(5) provides the
balancing power to the state against the freedom of free movement, which is, the
state can only impose ‘reasonable restriction’ in the ‘interest of general public’. The
court noted:

Reading Article 19 … it appears to me that the concept of the right to move freely
throughout the territory of India is an entirely different concept from the right to
"personal liberty" contemplated by Article 21. "Personal liberty" covers many more
rights in one sense and has a restricted meaning in another sense. For instance,
while the right to move or reside may be covered by the expression, "personal
liberty" the right to freedom of speech … cannot be considered a part of the
personal liberty of a citizen. They form part of the liberty of a citizen but the
limitation imposed by the word "personal" leads me to believe that those rights are
not covered by the expression personal liberty. So read there is no conflict between
Articles 19 and 21. The contents and subject-matters of Articles 19 and 21 are thus
not the same and they proceed to deal with the rights covered by their respective
words from totally different angles.

The court elaborated and illustrated Article 21 and 19:

2
A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
3
 Deprivation (total loss) of personal liberty, which inter alia includes the right to eat or
sleep when one likes or to work or not to work when one pleases and several such
rights sought to be protected by the expression "personal liberty" in Art. 21, is quite
different from restriction (which is only a partial control) of the right to move freely
(which is relatively a minor right of a citizen) as safeguarded by Art. 19 (1) (d).
Deprivation of personal liberty has not the same meaning as restriction of free
movement in the territory of India. … I am unable to accept the contention that the
word 'deprivation' includes within its scope 'restriction' when interpreting Art. 21.
Article 22 envisages the law of preventive detention. … Therefore, when the subject
of preventive detention is specifically dealt with in [Article 22] … I do not think it is
proper to consider a legislation permitting preventive detention as in conflict with the
rights mentioned in Art. 19 (1). Article 19 (1) does not purport to cover all aspects of
liberty or of personal liberty. In that Article only certain phases of liberty are dealt
with. "Personal liberty" would primarily mean liberty of the physical body. The rights
given under Art. 19 (1) do not directly come under that description. They are rights
which accompany the freedom or liberty of the person. By their very nature they are
freedoms of a person assumed to be in full possession of his personal liberty.

The court concluded:

It seems to me improper to read Art. 19 as dealing with the same subject as Art. 21.
Article 19 gives the rights specified therein only to the citizens of India while Art. 21
is applicable to all persons. Moreover, the protection given by Art. 21 is very general.
… In my opinion, therefore, Art. 19 should be read as a separate complete Article.

The court, thus, formulated that the articles of the constitution are exclusive
separate codes. The principle found application in the Kharak Singh Case. 3 Kharak
Singh was accused of dacoity but released as there was no evidence against him.
The police opened a history sheet on him and conducted surveillance, including
midnight knock on the door. Kharak Singh challenged the constitutional validity of
the law and police action on the grounds of violation of personal liberty under
Article 21 and freedom to move freely under Article 19(1)(d). The court, following
the Gopalan principle, noted:

… personal liberty, is used in the article as a compendious term to include within

itself all the varieties of rights which go to make up the 'personal liberties' of man
other than those dealt with in the several clauses of Art. 19 (1). In other words, while
Art. 19 (1) deals with particular species or attributes of that freedom, 'personal liberty'
in Art. 21 takes in and comprises the residue". … it is unnecessary to pause to
consider either the precise relationship between the "liberties" in Art. 19(1) (a) and (d)
on the one hand and that in Art. 21 on the other, or the content and significance of the
words "procedure established by law" in the latter Article, both of which were the
subject of elaborate consideration by this Court in A.K. Gopalan v. state of Mardas,
1950 SCR 88: (AIR 1950 SC 27).

The Cooper case revisited the Gopalan Principle of reading the constitutional
provisions.

The Cooper Case: Overturning of the Gopalan Principle

3
Kharak Singh v. State of U. P., AIR 1963 SC 1295.
4
The Cooper Case4 was a larger bench of eleven judges and revisited the question of
interrelationships between the articles in the chapter on the fundamental rights. The
court noted:

...it is necessary to bear in mind the enunciation of the guarantee of fundamental

rights which has taken different forms. In some cases it is an express declaration of
a guaranteed right: Articles 29(1), 30(1), 26, 25 and 32; in others to ensure
protection of individual rights they take specific forms of restrictions on State
action-legislative or executive-Articles 14, 15, 16, 20, 21, 22(1), 27 and 28; in some
others, it takes the form of a positive declaration and simultaneously enunciates the
restriction thereon: Articles 19(1) and 19(2) to (6); in some cases, it arises as an
implication from the delimitation of the authority of the State, e.g. Articles 31(1)
and 31(2); in still others, it takes the form of a general prohibition against the State
as well as others: Articles 17, 23 and 24.

From the diverse range and spread of the fundament rights, the court concluded:

The enunciation of rights either express or by implication does not follow a uniform
pattern. But one thread runs through them: they seek to protect the rights of the
individual or groups of individuals against infringement of those rights within
specific limits. Part III of the Constitution weaves a pattern of guarantees on the
texture of basic human rights. The guarantees delimit the protection of those rights
in their allotted fields: they do not attempt to enunciate distinct rights.

A subsequent judgement, Shambhu Nath Sarkar v. State of West Bengal 5,

explained the Cooper Case. It noted:

In Gopalan's case the majority court had held that Article 22 was a self-contained
Code and therefore a law of preventive detention did not have to satisfy the
requirement of Arts. 19, 14 and 21. The view of Fazal Ali, J. on the other hand, was
that preventive detention was a direct breach of the right under Article 19 (1) (d) and
that a law providing for preventive detention had to be subject to such judicial review
as is obtained under clause (5) of that Article. In R. C. Cooper v. Union of India the
aforesaid premise of the majority in Gopalan's case was disapproved and therefore it
no longer holds the field. Though Cooper's case dealt with the inter-relationship of
Article 19 and Article 31, the basic approach to construing the fundamental rights
guaranteed in the different provisions of the Constitution adopted in this case held the
major premise of the majority in Gopalan's case to be incorrect.

Integration: The Current Case

In the current case, justice Bhagwati for the court integrated the position on the
reading of the articles. He noted:

There can be no doubt that in view of the decision of this Court in R. C. Cooper v. …
a decision given by the full Court, the fundamental rights conferred by Part III are not
distinct and mutually exclusive rights. Each freedom has different dimensions and
4
R. C. Cooper v. Union of India, AIR 1970 SC 564.
5
Shambhu Nath Sarkar v. State of West Bengal, AIR 1973 SC 1425.
5
 merely because the limits of interference with one freedom are satisfied, the law is not
freed from the necessity to meet the challenge of another guaranteed freedom. The
decision in A. K. Gopalan's case gave rise to the theory that the freedoms under Arts.
19, 21, 22 and 31 are exclusive - each article enacting a code relating to the protection
of distinct rights, but this theory was overturned in R. C. Cooper's case where Shah,
J., speaking on behalf of the majority pointed out that "Part III of the Constitution
weaves a pattern of guarantees on the texture of basic human rights. The guarantees
delimit the protection of those rights in their allotted fields: they do not attempt to
enunciate distinct rights". The conclusion was summarised in these terms: "In our
judgment, the assumption in A. K. Gopalan's case that certain articles in the
Constitution exclusively deal with specific matters - cannot be accepted as correct.

Thus, the articles in the chapter on the fundamental rights have to be read together
and given effect collectively, not separately. The court then moved to explore the
question of violation of Article 21.

‘Personal Liberty’: Satwant Singh Sawhney Case

Article 21 provides that that no person can be deprived of his ‘life or personal liberty’
except according to ‘procedure established by law.’ In giving meaning to the article,
the first question was on the scope of ‘life and personal liberty’. In the Gopalan Case,
the court had interpreted that ‘Personal liberty’ in Article 21 ‘would primarily mean
liberty of the physical body.’ But the judgement of the Supreme Court in the Satwant
Singh Case6 expanded it. Satwant Singh Sawhney was a business man engaged in
import and export of automobile parts and engineering goods. He held a passport
and travelled abroad on business. The government of India wrote a letter to him
withdrawing his passport. He challenged the constitutional validity of the order on the
grounds that it violated his personal liberty under article 21.

In the Gopalan case, the court had examined article 21 in relation to article 19(1)(d),
freedom of movement within India. The court had noted that Article 19 protected
specific personal liberty as independent rights and Article 21 was ‘a compendious
term including within its meaning all the varieties of rights which go to make up the
personal liberties of men.’ This was followed in the Kharak Singh Case, where the
court had noted:

We … consider that "personal liberty" is used in the Article as a compendious term to

include within itself all the varieties of rights which go to make up the "personal
liberties" of man other than those dealt with in the several clauses of Art. 19(1). In
other words, while Art. 19 (1) deals with particular species or attributes of that
freedom, "personal liberty" in Art. 21 takes in and comprises the residue."

Following this, the Supreme Court in the Satwant Singh Case contrasted that the
general right of locomotion was covered under Article 21 while Article 19(1)(d) was to
secure a specific and special right of the Indian citizen to move freely throughout the
territories of India as a protection against provincialism. The court was of the view
that ‘personal liberty in Art 21 is a more comprehensive concept and has a much

6
Sawhney v. D. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi,
AIR 1967 SC 1836.
6
wider connotation than the right conferred under Art. 19 (1) (d).’ The court
concluded:

... "personal liberty" in Art. 21 only excludes the ingredients of "liberty" enshrined in
Art. 19 of the Constitution. In other words, the expression "personal liberty" in Art. 21
takes in the right of locomotion and to travel abroad, but the right to move throughout
the territories of India is not covered by it inasmuch as it is specially provided in Art.
19. … It follows that under Art. 21 of the Constitution no person can be deprived of
his right to travel except according to procedure established by law.

The Satwant Singh Case had already established that travel abroad was covered
under the right to ‘personal liberty’. But the right was not an absolute one. The state
could take away personal liberty by following a ‘procedure established by law’. The
court in the current case moved to the question.

‘Procedure established by law’: The Current Case

In the current case, the court noted on the scope of ‘personal liberty’ and limitations
on it:

Now, it has been held by this Court in Satwant Singh's case that 'personal liberty'
within the meaning of Article 21 includes within its ambit the right to go abroad and
consequently no person can be deprived of this right except according to procedure
prescribed by law. Prior to the enactment of the Passports Act, 1967, there was no law
regulating the right of a person to go abroad and that was the reason why the order of
the Passport Officer refusing to issue passport to the petitioner in Satwant Singh's case
was struck down as invalid. It will be seen at once from the language of Article 21
that the protection it secures is a limited one. It safeguards the right to go abroad
against executive interference which is not supported by law; and law here means
'enacted law' or 'State law.' … Thus, no person can be deprived of his right to go
abroad unless there is a law made by the State prescribing the procedure for so
depriving him and the deprivation is effected strictly in accordance with such
procedure.

On the ‘procedure required by law’, the court posed:

Does Art. 21 merely require that there must be some semblance of procedure,
howsoever arbitrary or fanciful, prescribed by law before a person can be deprived of
his personal liberty or that the procedure must satisfy certain requisites in the sense
that it must be fair and reasonable?

The court answered it:

Obviously, the procedure cannot be arbitrary, unfair or unreasonable. … any

procedure howsoever arbitrary, oppressive or unjust [cannot] be prescribed by the
law.

The basis for the ready answer was that following the overruling of the Gopalan
Principle, the articles were to be read together. The court noted:

7
 The law must, therefore, now be taken to be well settled that Art. 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 law, in so far as it abridges or takes
away any fundamental right under Article 19 would have to meet the challenge of that
article. This proposition can no longer be disputed … Now, if a law depriving a
person of 'personal liberty' and prescribing a procedure for that purpose within the
meaning of Article 21 has to stand the test of one or more of the fundamental rights
conferred under Article 19 which may be applicable in a given situation, exhypothesi
it must also be liable to be tested with reference to Article 14.

The court noted that in the Gopalan case, the court made a clear and categorical
statement that Article 21 ‘presupposes that the law is a valid and binding law … and
does not infringe any of the fundamental rights which the Constitution provides for’
including Article 14. Thus, the procedure established by law under Article 21 must
answer the requirement of the equality clause under Article 14. The court then
moved the explore Article 14, right to equality.

Right to Equality

The court noted on Article 14:

Now, the question immediately arises as to what is the requirement of Article 14:
What is the content and reach of the great equalising principle enunciated in this
article? There can be no doubt that it 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 activist magnitude. Equality is a dynamic
concept with many aspects and dimensions and it cannot be imprisoned within
traditional and doctrinaire limits.

The court quoted from an earlier judgement, E. P. Royappa v. State of Tamil Nadu: 7

… equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn

enemies; one belongs to the rule of law in a republic, while the other, to the whim and
caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is
unequal both according to political logic and constitutional law and is therefore
violative of Article 14.

The court integrated it:

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 omnipresence 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 oppressive; otherwise, it would
be no procedure at all and the requirement of Article 21 would not be satisfied.
7
E. P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555.
8
Justice Chandrachud enunciated the principle in these words:

But the mere prescription of some kind of procedure cannot ever meet the mandate of
Article 21. The procedure prescribed by law has to be fair, just and reasonable, not
fanciful, oppressive or arbitrary.

Justice Krishna Iyer formulated the principle as follows:

So I am convinced that to frustrate Article 21 by relying on any formal adjectival

statute, however, flimsy or fantastic its provisions be, is to rob what the constitution
treasures. ...To sum up, "procedure" in Article 21 means fair, not formal procedure.
"Law" is reasonable law, not any enacted piece."

The court then turned to apply the principles to the case before it.

Natural Justice: Right to be Heard

The questions the court asked was, did the procedure prescribed by the Passports
Act, 1967 for impounding a Passport meet the test of this requirement? Was the
procedure 'right or fair or just'? The argument of Maneka Gandhi was that
impounding the passport of a person is a serious matter and could not be done
without observing the principle of natural justice of audi alteram partem, the person
must be heard. The court agreed with it. It noted:

The principle of audi alteram partem which mandates that no one shall be condemned
unheard, is part of the rules of natural justice. … 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 administrative
action.

Reviewing the trends in the common law countries, the court concluded that it was a
well settled law that in quasi-judicial and administrative proceedings, the doctrine of
natural justice must be followed. The court moved to apply the principle to the case.

Maneka Gandhi had claimed the violation of Article 19(1)(a) and (g) also. On the
contention, the Supreme Court noted:

Now, even if an order impounding a passport is made in the interest of public order,
decency or morality, the restriction imposed by it may be so wide, excessive or
disproportionate to the mischief or evil sought to be averted that 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
Article 19 (1) (a) and would not be protected by Article 19(2) and the same would be
the position where the order is in the interests of the general public but it 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).
83. But we do not think that the impugned order in the present case violates either
Article 19 (1) (a) or Article 19 (1) (g). What the impugned order does is to impound

9
 the passport of the petitioner and thereby prevent her from going abroad and at the
date when the impugned order was made there is nothing to show that the petitioner
was intending to go abroad for the purpose of exercising her freedom of speech and
expression or her right to carry on her profession as a journalist. The direct and
inevitable consequence of the impugned order was to impede the exercise of her right
to go abroad and not to interfere with her freedom of speech and expression or her
right to carry on her profession. But we must hasten to point out that if at any time in
the future the petitioner wants to go abroad for the purpose of exercising her freedom
of speech and expression or for carrying on her profession is a journalist and she
applies to the Central Government to release the passport, the question would
definitely arise whether the refusal to release or in other words, continuance of the
impounding of the passport is in the interests of public order, decency or morality in
the first case, and in the interests of general public in the second, and the restriction
thus imposed is reasonable so as to come within the protection of Article 19 (2) or
Article 19 (6). That is, however, not the question before us at present.

We may observe that if the impugned Order impounding the passport of the petitioner
were violative of her right to freedom of speech and expression or her right to carry
on her profession as a journalist. It would not be saved by Article 19 (2) or Article 19
(6), because the impounding of the passport for an indefinite length of time would
clearly constitute an unreasonable restriction.

Conclusion

On applying the principle, on the details of the Passport Act and appraisal of the
stages in impounding of passport, and the specifics of the case, relief did not come
to Maneka Gandhi. The court concluded that not disclosing the grounds of
impounding passport, contrasted with the public interest associated with it, need not
be arbitrary. The judgement, however, became foundational for several aspects of
constitutional law. The subsequent judgements would apply and develop it. Some of
the features of the judgement included, the articles in the chapter on fundamental
right were to be read in an inter-related manner and not as isolated codes. ‘Person
liberty’ was not confined to be in a physical and bodily sense but had a broader
meaning. The ‘procedure established by law’ for depriving a person of his ‘life or
personal liberty’ has to be fair, just and reasonable. The essence of the right to
equality in article 14 was that law cannot be arbitrary.

10