Citizenship & Immigration Law Notes (902)

MODULE 1
SYLLABUS :-
• Meaning and Concept of Citizenship.

• Object, Scope and salient features of Citizenship Act, 1955.

• Modes of acquisition of Citizenship.

• Fundamental Right to Movement.

• Constitutional Provisions Regarding Citizenship in India.

MEANING AND CONCEPT OF CITIZENSHIP

• What is Citizenship :–
Citizenship can be defined as a relationship between a nation and an individual of that specific
nation. It is the quality that must be possessed by an individual to become or be a citizen of a
country. Citizenship ensures that a person is committed to a nation’s duties and responsibilities. A
nation ensures the welfare of its citizens by providing required social rights, political rights, civil
rights along with the freedom they deserve. Citizenship is an idea of exclusion as it excludes non-
citizens. There are two well-known principles for the grant of citizenship: While ‘jus soli’ confers
citizenship on the basis of place of birth, ‘jus sanguinis’ gives recognition to blood ties. From the
time of the Motilal Nehru Committee (1928), the Indian leadership was in favour of the
enlightened concept of jus soli. The racial idea of jus sanguinis was also rejected by the
Constituent Assembly as it was against the Indian ethos.
• Meaning and Concept of Citizenship :–
Citizenship in India is the legal status that grants individuals certain rights and privileges within
the country. Such status is recognized under the custom or law as being a legal member of a
sovereign state or belonging to a nation. A person who does not have citizenship of any state is
said to be stateless. Nationality is often used as a synonym for citizenship in English– notably in
international law. In some countries like the U.S.A, United Kingdom, etc., the meaning of
nationality and citizenship can be different. However, in India since single citizenship exists,
therefore, term nationality & citizenship are used synonymously.
In India, the Citizenship Act of 1955 governs matters related to Indian citizenship. This act was
enacted by the Parliament of India and commenced on 30 December 1955, and is also popularly

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 known as “Indian nationality law” which defines various ways through which a person can
acquire or lose Indian citizenship. It also ensures that the individuals of the nation hold the
position of Indian citizens. In addition, the Citizenship (Amendment) Act of 2003 introduced
provisions for Overseas Citizens of India (OCI) [defined u/s 2(1)(ee)] and Persons of Indian
Origin (PIO), allowing certain categories of foreign nationals of Indian origin to have certain
privileges and rights in India without full citizenship.
• Who are Citizens?
Like any other modern state, India has two kinds of people—citizens and aliens.
A citizen refers to any person who is a member of a particular country and who has rights because
of being born there or because of being given rights. According to the Citizenship Act 1955,
Citizens are full members, native or naturalized persons who owe allegiance to the Indian
government and are entitled to protection from it. They enjoy all civil and political rights
guaranteed to them in a sovereign state. In its strictest sense, citizens are persons with legal status
who have a right to live in a state and that state cannot refuse their entry or deport them. This legal
status may be conferred by birth, registration, descent, naturalisation and also by the incorporation
of the territory (Sec 3 -7).
It is also important to know in this regard that as per Sec 2(f), the term person here does not
include any company, association or body of individuals. Though a company is an artificial legal
person, it is not a citizen under the citizenship legislation or constitution, as the citizenship
recognition is only available to natural biological persons and not to juristic persons. The Apex
Court in State Trade Corporation v. Commercial Tax officer essentially stated that a company is
not treated as a citizen and hence a company cannot claim the protection of fundamental rights
expressly guaranteed to citizens, but it certainly can claim the protection of such fundamental
rights which are granted even to aliens.

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 OBJECT, SCOPE & SALIENT FEATURES OF CITIZENSHIP ACT 1955
• Scope :–
According to Section 1, this Act may be called the Citizenship Act 1955 which, at the time of its
enactment, was applicable to the whole of India, except the UT of Dadra and Nagar haveli, Goa,
Daman and Diu, and Pondicherry. However, by the notification dated 17-03-1962, the application
and scope of this Act have been extended to the Union territory of Dadra and Nagar haveli, the
Union territory of Goa, Daman and Diu, and to Pondicherry as well.
• Object :–
1. It aims to provide for the procedure for the acquisition and determination of Indian
citizenship.
2. Though the Constitution deals with citizenship from Articles 5 to 11 under Part II. However,
it contains neither any permanent nor any elaborate provisions in this regard. Thus, the
Citizenship Act aims to address these issues.
• Salient Features :–
1. The Citizenship Act 1955 recognized India’s citizenship rights for the first time, after the
abolition of the British Citizenship and Aliens Rights Act of 1914, which was in effect till in
1948.
2. Originally, the Citizenship Act (Act No. 57 of 1955) contains 19 Sections and 4 Schedules.
3. The Act talks about overseas citizenship and the termination of Indian citizenship.
4. The Act also provided for the concept of Commonwealth Citizenship i.e., every person who is a
citizen of a Commonwealth country specified in the First Schedule shall, by virtue of that
citizenship, have the status of a Commonwealth citizen in India.
5. It addresses the problem of acquisition or loss of citizenship subsequent to the commencement
of the constitution.
6. According to Act of 1955, India has single citizenship and there is no dual citizenship.
However, after the amendment of 2005, the concept of dual citizenship has been formally
incorporated under this Act.
7. A citizen of India is a citizen of all Indian territories. This feature is a unitary feature in contrast
with the double citizenship prevailing in several countries. For example, in USA, a citizen of
US at the same time is also a citizen of California or other states.
8. The Act reflects the social and political conditions in India created at that time by partition.
9. Various amendments have been introduced to this Act since its enactment namely, the
Citizenship (Amendment) Act of 1986, 1992, 2003, 2005, 2016, and 2019. The most recent
amendment was made in the year 2019 which allowed Indian citizenship to illegally migrated
minority communities, and reduced the maximum period required to reside in India to acquire
citizenship from 11 years to 6 years.
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 CONSTITUTIONAL PROVISIONS REGARDING CITIZENSHIP

• Citizenship is listed in the Union List under the Constitution and thus is under the exclusive
jurisdiction of Parliament.
• The Constitution does not define the term ‘citizen’ but details of various categories of persons
who are entitled to citizenship are given in Part 2, Articles 5 to 11.
• Unlike other Constitutional provisions that came into force on 26th January 1950, these articles
mentioned below were enforced on 26th November 1949 itself, when the Constitution was
adopted.
Part II of the Indian Constitution deals with Citizenship, the following part carries six articles
starting from Article 5 to Article 11.
Article 5 - It talks about Citizenship at the time of the commencement of the Constitution and
states that certain conditions are to be fulfilled to be a citizen of India, namely:-

• Article 5(a) states that all those people who are domiciled and born in India will be given
Indian citizenship.

• Article 5(b) states that the person whose either of the parents are/were born in India will
also be an Indian Citizen, even though such a person was not born in India.

• Article 5(c) provides that a person residing in India for the continuous period of 5 years
before the commencement of the Indian Constitution will be a citizen of India.

Case - R. Louis De Raedt & Ors. v. Union of India & Ors., AIR1991
Introduction
In the present case, the Supreme Court of India's Division Bench (consisting of L.M. Sharma, J &
J.S. Verma, J) decided upon whether three foreign nationals can be granted Indian citizenship on the
basis of their stay in India prior to independence.
Brief Facts
The Petitioners in the present case (Mr Louis De Raedt, Mr B.E. Getter and his wife, S.J. Getter)
came to India on Belgian and American Passports in 1937 and 1938, respectively. All of them were
missionaries and had filed two separate petitions against the Supreme Court's order dated 8 July
1987, which had rejected their prayer requesting for an extension of their stay in India and they
were asked to leave the country by 31st July, 1987. The Court later clubbed the two separate
petitions as the fact were quite similar.
Submissions by Counsel For Petitioners
Louis - The Counsel appearing for Mr De Raedt submitted that he had been residing in India
continuously since 1937 and had only left the nation twice, in 1966 and 1973, for two short visits to
Belgium. It was also submitted before the Court that at the time of independence, appropriate orders
were passed in order to allow Christian Missionaries to reside in India on a permanent basis.
However, as Mr De Raedt was serving in a remote Adivasi region in Bihar during that period, he

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could not apply and procure his permit on time. The Counsel also submitted that the power to expel
foreigners under S. 3(2)(c) of the Foreigners Act could not be exercised as the relevant Rules under
the Act (at that point in time) had not been framed. The Counsel also argued that any powers
exercised under the Act must be in accordance with the principles of natural justice, particularly
audi alteram partem and thus the order dated 31 July, 1987 must be quashed and set aside.
Mr. Getter - The Counsel further submitted that the fact that the Petitioner had been residing in
India since 1937 and had only visited Belgium twice, that too for short visits, constituted sufficient
proof of the fact that he had acquired Indian domicile and that his case should not be dismissed
solely on the ground that he holds a foreign passport. It was further submitted that Article 5(c) of
the Constitution of India had conferred citizenship on all the Petitioners on 26 November 1949.
Moreover, none of the Petitioners should be expelled on a 'mere suspicion' of being a foreigner as
they are also entitled to certain fundamental rights under the Constitution of India (Section 6 of the
Citizenship Act, 1955 was given a lot of importance by the Counsels in the context of this
argument).
Lastly, the Counsel submitted that the concerned police official (in this case, the Superintendent of
Police) who signed the impugned order containing immediate instructions for the deportation of the
Petitioner (Mr De Raedt) did not possess the powers to do so, in the first place.
Submissions by the counsel for respondents :-
The Counsels for the respondent argued that none of the Petitioners possessed any intention to
permanently reside in India and are, thus, not in possession of the animus manendi (intention to
permanently reside in a country) required in order to acquire Indian domicile and that mere
residence, devoid of animus manendi, is insufficient to prove domicile. In addition to the same, the
rights claimed by the Petitioners under Art 19(1)(e) of the Constitution of India cannot be conferred
upon them as they are all foreigners and that their fundamental rights are constricted to those under
the ambit of Article 21. The Counsels also argued that the impugned order was passed in a
procedurally correct manner as the decision to expel the Petitioner (Mr De Raedt) was that of the
Government of India and the concerned police official was merely doing his duty by executing it.
Issues :-
1. Are Mr De Raedt and Mr and Ms Getter entitled to claim Indian citizenship under the
provisions of Article 5(c) of the Constitution of India?
2. Did the Petitioners possess Indian domicile as of 26 November 1949?
3. Did the Petitioners possess the requisite animus manendi to reside in India as of 26 November
1949 ?
Decision of the Supreme Court :-

The Supreme Court ruled in favour of the respondents and dismissed the Petition, without any order
as to costs. The Court noted that Indian citizenship can only be guaranteed to those who were born
on Indian territory or those who were ordinarily resident in India for at least 5 years prior to the
commencement of the Constitution of India. As Mr De Raedt and Mr and Ms Getter were Christian
Missionaries who had temporarily emigrated to India in order to pursue their work, they did not
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possess any intention to reside in the nation on a permanent basis and thus, did not possess the
requisite animus manendi to acquire Indian domicile (and consequently, Indian citizenship) at any
point in time.

Article 6 - It provides the right of citizenship to certain persons who have migrated to India from
Pakistan. According to this Article, a citizen of Pakistan who has migrated to the territory of India
would be entitled to a right of citizenship under the following conditions:-

• If the person’s parents or grandparents were born in India, according to the Government of
India Act,1935
• If a person has migrated and is ordinarily residing in India before the 19th July 1948.
In the case of Kulathil Mammu v. State of Kerela, it was held that the term “migrated” u/s 6
implies voluntary and permanently leaving from Pakistan to India.
Article 7 - This Article talks about the rights of citizenship of certain migrants to Pakistan.
According to it, a person who migrated to Pakistan from India after 1st March 1947 will no longer
be considered an Indian Citizen.
Exception - A person who has migrated to the Pakistan territory and then returns back with
permission from the requisite authority.
Basically, the law was more sympathetic to those who migrated from Pakistan and called them
refugees than to those who, in a state of confusion, were stranded in Pakistan or went there but
decided to return soon.
Article 8 - This section talks about the rights of citizenship of certain persons of Indian origin
residing outside India. It states that if any Person of Indian Origin is residing outside India in a
different country but either of his/her parents or grandparents have taken birth in the Indian
territory and if the person is registered as a citizen of India by the diplomatic representative of
India, then such person shall be considered as a citizen of India.
Article 9 - According to this article, if any person voluntarily acquires the citizenship of a foreign
State, then in such case that person will no longer be a citizen of India. In the case of State of U.P.
v. Rehmatullah, it was held that the Central Government is authorized to take action against
people who have acquired foreign citizenship and have lost their citizenship of India, but are still
residing in the country.
Article 10 - In simple terms, this Article states that when a person is considered as a citizen of
India under the provisions provided, then such person would continue to be a citizen even if new
provisions are made by the Parliament.
Article 11 - It empowers Parliament to make any provision with respect to the acquisition and
termination of citizenship and all matters relating to it.
These aforementioned Articles provided for citizenship at the commencement of the constitution,
after this, the parliament passed the Citizenship Act in 1955 which provided for the elaborative
provisions dealing with the acquisition and termination of citizenship of India.

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 MODES OF ACQUIRING CITIZENSHIP
Citizenship refers to the legal status and membership of an individual in a particular country or
nation, entitling them to certain rights, privileges, and responsibilities. It is a formal recognition by
a country’s government that an individual is a member of the state and is entitled to protection and
benefits under its laws and Constitution.
MODES OF ACQUIRING CITIZENSHIP IN INDIA AS PER THE CONSTITUTION

Part- II of the Constitution simply describes classes of persons who would be deemed to be the
citizens of India at the commencement of the Constitution, the 26th January, 1950, and leaves the
entire Law of the citizenship to be regulated by law made by Parliament. Article 11 expressly
confers power on Parliament to make law to provide for such matters. In exercise of its power the
Parliament has elected the Indian citizenship Act, 1955. This Act provides for the acquisition and
termination of citizenship subsequent to commencement of the constitution. Though India is a
federation having two levels of government there is only one citizenship. As per the Indian
Constitution, Citizens can be classified into 3 categories namely :- Citizens by Domicile (Article 5),
Citizens by Migration (Article 6) and Citizens by Registration (Article 8).

MODES OF ACQUIRING CITIZENSHIP IN INDIA AS PER THE CITIZENSHIP ACT,

1955

There are five primary methods of acquiring citizenship in India, including birth, registration,
descent, naturalization, and incorporation of territory, each with its own set of provisions and
procedures.

I. Citizenship by Birth (Section 3 of the Citizenship Act, 1955)

One of the primary methods of acquiring citizenship in India is through birth. The Citizenship Act,
1955 grants citizenship to individuals who are born in India, subject to certain conditions. The
provisions for acquiring citizenship by birth are as follows:
Birth in India: Any person born in India on or after January 26, 1950, but before July 1, 1987, is
considered an Indian citizen by birth, irrespective of the nationality of their parents.
Birth in India to Indian Parents: A person born in India on or after July 1, 1987, is considered an
Indian citizen by birth if either of their parents is a citizen of India at the time of their birth. The
Amendment Act of 1986 changed this provision from 1st July, 1987 to 3rd December, 2003 and it
said that the persons birth should be in India as well as his/her one parent should be an Indian to
acquire Indian Citizenship. But by this Act, the problem was not getting solved and a new
Amendment Act was introduced in 2003.
The Section 21-B of Citizenship Act defines Illegal Immigrant. It says that if any traveler comes to
India without any valid passport and any valid travel document or if he is having valid passport but
he has exceeded the permitted time limit to stay in India and if he or she is engaged in all that, then

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they will be called as Illegal Immigrants. The Amendment Act of 2003 said that if anybody is taking
birth in India after 3rd December, 2003 will get Indian Citizenship when his/her both parents or
atleast any one parent must be an Indian and other parent should not be an illegal immigrant.
Birth in India to Unknown Parents: If a person is found abandoned in India and their parentage is
not known, they are considered Indian citizens by birth.
II. Citizenship by Descent (Section 4 of the Citizenship Act, 1955)
Citizenship by descent is another method through which individuals can acquire Indian citizenship.
As per the citizenship laws of India, a person’s citizenship status depends on various factors,
including their date of birth and the citizenship status of their parents. If an individual was born on
or after January 26, 1950, but before December 10, 1992, outside of India, they are considered a
citizen of India if their father held Indian citizenship at the time of their birth. This means that the
father’s citizenship status determines the child’s citizenship in this case.
However, for individuals born outside of India after December 10, 1992, a different set of rules
apply. According to the amended citizenship laws (AMENDMENT ACT OF 1992), an individual is
considered a citizen of India if either their mother or father held Indian citizenship at the time of
their birth. This update recognises the equal status of mothers in determining the citizenship of their
children born abroad.
III. Citizenship by Registration (Section 5 of the Citizenship Act, 1955)
To widen up the process of Indian Citizenship, Section 5 has been introduced, which is a
registration process, which specifies some peoples categories and it says that the particular
categories of people want to submit an application to the Central Government and they can also be
registered as Indian Citizens.
Persons of Indian Origin (PIO) are those people whose birth or whose parents birth took place in
undivided India (British India) or on that territory of India which has been included after 15th
August 1947, like Sikkim and Pondicherry were part of India after the Independence. So these
people will be the Persons of Indian origin (PIO).
Categories of PIO:
• people who is residing in India since last 7 years before making an application for registration;
• people of Indian origin who is residing outside India;
• persons who is married to Indian citizens;
• the minor children of Indian citizens;
• a person of full age and capacity who is residing in any common wealth country or in Republic of
Ireland.

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IV. Citizenship by Naturalization (Section 6 of the Citizenship Act, 1955)
Another method of acquiring citizenship is by naturalization is a legal process through which an
individual who is not born in a particular country can acquire citizenship of that country. In the
context of India, citizenship by naturalization is governed by the Citizenship Act, 1955, which
outlines the procedures and requirements for foreigners to become Indian citizens.
Citizenship of India by naturalization can be acquired by a foreigner (not illegal migrant) who is
ordinarily resident in India or has been in the service of a Government of India for TWELVE
YEARS (throughout the period of twelve months immediately preceding the date of application and
for ELEVEN YEARS in the aggregate in the FOURTEEN YEARS preceding the twelve months)
and other qualifications as specified in the Third Schedule to the Citizenship Act, 1955.
V. Citizenship by Incorporation of Territory (Section 7 of the Citizenship Act, 1955)

Citizenship by incorporation of the territory is a legal concept that pertains to the acquisition of
citizenship when a territory is incorporated into a sovereign state or country. This typically occurs
when a previously separate territory becomes an integral part of a nation through annexation,
merger, or other means.
In the context of India, citizenship by incorporation of territory is governed by the Citizenship Act,
1955, which outlines the conditions and procedures for individuals residing in territories that are
incorporated into India to become Indian citizens.
According to the Citizenship Act, individuals who were born in a territory that subsequently
becomes a part of India, or who have been residing in that territory for a specified period of time,
may be eligible for Indian citizenship by incorporation of territory. The Act specifies the conditions
and requirements that need to be met, including provisions related to the date of incorporation,
duration of residence, and other relevant factors.

Conclusion

Acquiring citizenship in India can be achieved through various methods, including birth,
registration, descent, naturalization, and incorporation of territory. Each method has its own set of
provisions, procedures, and requirements, as outlined in the Citizenship Act, 1955. It is essential for
individuals seeking Indian citizenship to understand the relevant provisions and follow the
prescribed procedures to ensure a smooth and lawful acquisition of citizenship.

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MODES OF LOSING CITIZENSHIP IN INDIA

The Citizenship Act, 1955 also lays down the three modes by which an Indian citizen, whether a
citizen at the commencement of the Constitution or subsequent to it, may lose his/her citizenship. It
may happen in any of the three ways : renunciation, termination and deprivation.
• Renunciation Of Citizenship [Section 8] - An Indian Citizen of full age and capacity can
renounce his Indian citizenship by making a declaration to that effect and having it registered. But
if such a declaration is made during any war in which India is engaged, the registration shall be
withheld until the Central Government otherwise directs. When a male person renounces his
citizenship, every minor child of him ceases to be an Indian citizen. Such a child may, however,
resume Indian citizenship if he makes a declaration to that effect within a year of his attaining full
age, i.e. 18 years.
• Termination Of Citizenship [Section 9] - If a citizen of India voluntarily acquires the citizenship
of another country, he shall cease to be a citizen of India. During the war period, this provision
does not apply to a citizen of India, who acquires the citizenship of another country in which
India may be engaged voluntarily. If any question arises as to whether, when or how any person
has acquired the citizenship of another country, it is to be determined by such authority and in
such manner as may be prescribed by the rules.
• Deprivation Of Citizenship [Section 10] - Deprivation is a compulsory termination of
citizenship of India. A citizen of India by naturalization, registration, domicile and residence, may
be deprived of his citizenship by an order of the Central Government if it is satisfied that:
The citizen has obtained the citizenship by means of fraud, false representation or
concealment of any material fact;
The citizen has shown disloyalty to the Constitution of India;
The citizen has unlawfully traded or communicated with the enemy during a war;
The citizen has, within five years after registration or neutralization, been imprisoned
in any country for two years;
The citizen has been ordinarily resident out of India for seven years continuously.

RIGHT TO FREEDOM OF MOVEMENT

The right to Freedom of Movement is an important aspect of the personal liberty of the individual.
A deprivation of this important right results in many cases in the deprivation or restriction of many
cognate freedoms. Justice Subbarao of the Supreme Court of India, speaking of freedom of
movement in a free country, defined a free country as : “A country where a citizen may do whatever
he likes, speak to whomsoever he wants, meet people of his own choice without apprehension,
subject of course to the law of social control.”

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Article 19(1)(d) under Part III of the Indian Constitution deals with the fundamental right to
freedom of movement. It guarantees the citizens of India the right to move freely throughout the
territory of India. This right overlaps with Article 19(1)(e) which talks about the right to freely
reside in any part of the country. The word “freely” connotes “without any absolute restriction”.
Wherever and however one likes, he can move without any restriction. However, this right is
subject to reasonable restrictions given by law which is mentioned under Article 19(5). Article
19(5) states that states can impose restrictions on the freedom of movement of people either in the
interest of the general public or for the protection of rights of the scheduled tribes. This right allows
a citizen to move freely within and between states.
Article 19(5) talks about reasonable restrictions that can be imposed by the state in the free
movement of people either in the interest of people or in the interest of scheduled tribes. Of the
several existing laws, the Official Secrets Act of 1923 is an example of a restriction on the free
movement made in the interest of the general public. This Act denies access to people in prohibited
areas. This is in the interest and security of the people and hence justified. Another reason for
restriction being the protection of rights of the scheduled tribes. Scheduled Tribes are aboriginal
tribes having a distinct culture, customs, language, and they are concentrated countrywide but
mainly settled in the North East. It is considered important to protect their interest and thus,
restricting outsiders from inhabiting these areas so that there will be less conflict of interest and less
undesirable effects upon these tribal people.
In Dr. N.B. Khare vs The State Of Delhi (1950), the petitioner challenged the validity of the East
Punjab Public Safety Act, 1949 (as extended to the Province of Delhi). It was challenged on the
grounds that it empowers the District Magistrate and State Government to pass an externment order
which restricts the movement within the limits of a place and that the petitioner was ordered the
same, directing him not to stay in Delhi. He contended that this Act leaves to subjective satisfaction
of the Executive regarding whether the person is to be the and second, that the Act doesn’t fix
maximum period for the same. The Supreme Court rejected these contentions stating that the Act is
not invalid merely because of the subject satisfaction because such a restriction is reasonable at
times of emergency and also that since the Act is in itself temporary, there shouldn’t be any
contention of externment orders being indefinite.
In another similar case of State of MP v Baldeo Prasad (1960), the petitioner’s contention was
accepted by the High Court and the Court held that such an act of restriction by authorities should
be done after giving proper reason or conditions which necessitated restricting the right.

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RIGHT TO MOVEMENT AND PERSONAL LIBERTY

There has been a long-standing controversy regarding whether the deprivation of personal liberty by
detention is covered under a denial of rights under Article 21 only or 19(1)(d) as well.

• A.K.Gopalan v. the State of Madras (1950) - In this case, this question repeatedly arose. It has
been settled that a person can claim and rely on any fundamental right and it will eventually be
the duty of the court to decide as to which fundamental right is violated. In this case, the
Supreme Court viewed Articles 19 and 21 too narrowly. Here, the petitioner was detained under
the Preventive Detention Act, 1950 in jail and so filed a writ petition that this hampered his rights
under Articles 19(1)(d) and 21. The Court held that Article 21 which protects personal liberty,
implies personal liberty in the sense of the physical body’s liberty and not rights given under
Article 19. This case, thus, held that personal liberty in cases of detention has to be covered
under Article 21 and not 19(1)(d).

• Kharak Singh v. The State Of U. P. & Others (1962) - In this case, unreasonable surveillance and
domiciliary visits by police not authorized by any law and thus held to be violative of the right to
freedom of movement. The Court observed that even psychological restraint of freedom of
movement is violative of this Article.

Case Law - Maneka Gandhi v. Union of India, 1978

Facts of the Case :-

The petitioner Maneka Gandhi was issued her passport on 1st june,1976 as per the passport act of
1976. Later on July 2, 1977 the regional passport officer (New Delhi) had ordered the petitioner to
surrender her passport. When she asked about the reasons, the ministry of external affairs did not
provide any reason for such confiscation and held that it was for the betterment of the “general
public”. Hence, the petitioner filed a writ petition under article 32 of the constitution of India for
violating her fundamental rights which were article 14 (right to equality), article 19(right to freedom
of speech and expression) and article 21(right to life and personal liberty).

Issues :-
1. Whether the Fundamental Rights are absolute or conditional and what is the extent of the
territory of such Fundamental Rights provided to the citizens by the Constitution of India?
2. Whether ‘Right to Travel Abroad’ is protected under the umbrella of Article 21 ?
3. What is the connection between the rights guaranteed under Articles 14, 19 and 21 of the
Constitution of India?
4. What is the scope of “Procedure established by Law” ?
5. Whether the provision laid down in Section 10(3)(c) of the Passport Act, 1967 is violative of
Fundamental Rights and if it is, whether such legislation is a concrete Law?
6. Whether the Impugned order of Regional Passport Officer is in contravention of principles of
natural justice?

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Arguments by the Petitioners :-
1. Fundamental rights are given by birth to the citizen of a country and it is absolute in nature. It is
given so that the state does not exploit the citizens. They are widely ranged and
comprehensive.

2. Right to travel is provided under the right to personal liberty. The passport act, 1967 also does
refer to confiscating or revoking a passport of its holder. Hence it’s unreasonable and unlawful.

3. To give spirit to the Indian constitution fundamental rights should be read with each other and
as per this case the articles 14,19 and 21 have a mutual connection.

4. Any procedure of law should be recognised against arbitrariness.

5. The passport act,1967 is violative of Indian constitution and hence it is ultra vires. Sec 10(3)(c)
restrains a person from exercising article 19.

6. An essential element of natural justice is “Audi alteram parten” which means a chance to be
heard which was not provided to the petitioner.

Arguments by Respondents :-

1. The government should not state any grounds for seizing anyone’s passport for public good and
hence if there is such a law that contradicts with this it should be struck down.

2. Right to travel was never under the coverage of article 19 and hence article 19 is independent in
its own way and its reasonableness shall be proved by the central Government.

3. Article 21 is widely scoped and articles 14 and 19 are itself in it. Hence, article 21 can be
termed unconstitutional if it directly infringes 14 and 19. Thus, Passport Law is not
unconstitutional.

4. Article 21 in its language contains “procedure established by law” & such procedure need not
pass the test of reasonability.

5. The constitutional makers while drafting this constitution had debated at length on American
“due process of law” & British “procedure established by law”. The conspicuous absence of the
due process of law from the Constitutional provisions reflects the mind of the framers of this
constitution. The mind and spirit of the framers must be protected and respected.

6. With due reflection in the case of A.K Gopalan, Article 21 cannot be placed in the light of
fundamental rules of natural justice.

7. The petitioner was required to appear before a committee for an inquiry and hence her passport
was revoked.

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Judgment
It was held that:

1. Before the Passport Act,1967 came into force, no law was enforced for passport whenever any
person wanted to leave his country and go abroad. In Satwant Singh Sawhney v. D.
Ramarathnam, the Supreme Court held that personal liberty includes the right of locomotion
and travel abroad. Hence no person will be revoked from these rights unless it is mentioned in
the procedure of law. Since the state has not made any such law then it is violative of article 21,
19 and 14 and its grounds are unchallenged and arbitrary.

2. As per sec 10(3)(c) is concerned the authority should hold a copy of the reason for seizing the
passport and record a writing the reason for such an act and better if it provides a copy to the
holder of the passport.

3. The central government did not give any reason for such confiscation of passport and the reason
they gave which was “for the benefits of the general public” was too explicit and no ordinary
person would understand such reason.

4. The fundamental rights of part III of the Constitution are neither distinctive nor mutually
exclusive. The reasonableness must be mentioned in the procedure.

5. The procedure of law is the correct term instead of due process of law.

6. There is a clear infringement of the basic ingredient of Audi alteram partem.

7. The passport act is not violative of any fundamental rights specially article 14 of the Indian
constitution.

8. Unrestricted power to the authorities is not vague, rather it is protected by certain guidelines of
article 19.

9. Though the state’s actions are restricted to a territory, fundamental rights are not similar in the
restricted manner.

10. In A.K Gopalan, the majority held that the provisions of article 14,19 and 21 are itself mutually
exclusive but in this case it was held that they are not mutually exclusive and are dependent on
each other.

CRITICAL ANALYSIS OF THE JUDGEMENT

With the liberal interpretation of Maneka Gandhi case the upcoming generation will try to seek their
basic rights whether or not mentioned in the part III of the constitution. The judges took wide
interest in interpreting wherever it is necessary to interpret. This new side of interpretation took
various routes in judicial activism and PIL’s.

CONCLUSION

This case became a landmark case in the Supreme Court. Neither it safeguard the essence of the
Indian constitution but also the motive of the Constitutional assembly. No person should be
deprived of his opinion or voice inside the court. This legislation of articles 14,19 and 21 is also
regarded as the Golden triangle.
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PROCEDURE ESTABLISHED BY LAW & DUE PROCESS OF LAW - DIFFERENCE

A.K. Gopalan’s case has been the primer case where the Supreme Court declined to consider
“procedure established by law” in consonance with “due process of law”. But, in 1978 this case was
turned down in Maneka Gandhi where the Supreme Court itself stated the act of confiscating her
passport as arbitrary. Justice Kania referring to A.K Gopalan had said that the term “due process”
mentioned in the article had limited the powers of the judiciary, to interpret it further and seek its
reasonableness. But, through Maneka Gandhi a new precedent was set by broadening the vision of
these two phrases.
Procedure established by Law - In layman’s terms it is defined as a law that is duly enacted by the
legislature to be held valid and be mandated to be followed, provided if it affirms correct procedure.
This doctrine has the power to withdraw from any person of his life or personal liberty according to
the procedure established by law. In short, it means that any law duly enacted is valid even if it is
contrary to the principles of justice and equity.
Due Process of Law - It is a doctrine that requires to check the efficiency of it as well as fairness
and non-arbitrariness. Apex court can declare any law null and void if it is not just, fair and
arbitrary. This doctrine safeguards all kinds of individual rights.

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