Passport: A Constitutional Right

Passports in India were first issued during the British time in 1914, during the First World War under the Indian Passport Act, 1920. The passports were issued to British subjects of the British Indian Empire, as well as to British subjects from other parts of the British Empire, and subjects of the British protected states in India.

The use of passports was discontinued after the establishment of dominion of India and Pakistan. The passport laws were made strict in the country after 1952.

Passport: A Constitutional Right

The Indian Passport Act commenced on 5 May 1967 after replacing the Indian Passport Ordinance 1967, the act describes the procedure of getting an Indian passport. The main aim of the Act is “to provide for the issue of passports and travel documents, to regulate the departure from India of citizens of India and for other persons and for matters incidental or ancillary thereto.” It applies to the whole of India and to citizens of India living outside the country. In conformity with Article 9 of the Indian Constitution, the Act does not allow dual . Under Section 12 of the Act, a person must surrender his passport if he has acquired the citizenship of a foreign country.

Types of passports

  1. Ordinary Passport (Dark Blue) is issued to ordinary citizens for ordinary travel, such as for vacation, study, and business trips.
  2. Official Passport (White cover) is issued to individuals representing the Indian government on official business.
  3. Diplomatic Passport (Maroon cover) is issued to Indian diplomats, top-ranking government officials and diplomatic couriers.
Passport: A Constitutional Right

Right to travel Abroad is a Fundamental Right

The Supreme Court in the case of in the case, Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, New Delhi, held that the expression of personal liberty under of the in its ambit includes the right of a person to go abroad and a person cannot be deprived of that right and the government has no right to refuse a passport to a person who has applied for it.

It thus becomes necessary for the government to regulate the issuance of passport and travel documents by law as earlier the government issued passports in the exercise of its executive power on foreign relations.  

Also in , Supreme Court stated that the expression ‘personal liberty’ under Article 21 of the Constitution includes the right to travel abroad and no person can be deprived of it except according to the procedure established by law.

The Passports Act was enacted in 1967 by the Parliament which prescribes the procedure to file an application for a passport, whereby it may be granted fully or partially, with or without any endorsement, and a passport once granted may later be revoked or impounded. But the prescription of some kind of procedure has to meet the mandate of Article 21. The procedure prescribed by law has to be fair, just, and reasonable, not fanciful, oppressive, or arbitrary.

Passport: A Constitutional Right
Maneka Gandhi

Impounding of passport

Section 10 of the Act states that passport authority may impound or revoke a passport or travel document:

  • If the holder of the passport or travel document is in wrongful possession thereof;
  • If the passport was obtained on the basis of wrong information or by the suppression of material information by the holder of the passport or travel documents or any other person on his behalf;
  • If the passport authority deems it necessary to do so 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;
  • If the holder of the passport or travel documents has, at any time after the issue of the passport or travel documents, been convicted by a court in India for any offense involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years;
  • If proceedings in respect of an offense alleged to have been committed by the holder of the passport or travel documents are pending before a criminal court in India;
  • If any of the conditions of the passport or travel documents are contravened;
  • If it is brought to the notice of the passport authority that a warrant or summon for the appearance, or a warrant for the arrest, of the holder of the passport or travel document, has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summon has been so issued or an order has been so made;
  • A court convicting the holder of a passport or travel document of any offense under this Act or the rules made thereunder may also revoke the passport or travel document.

Is passport a proof of citizenship?

Bombay High Court in 2013 held that a passport or a birth certificate and even an Aadhar card is not sufficient to prove someone as the citizen of India. “Under the citizenship laws, a person is an Indian by birth if he is born on or after the 26th day of January 1950, or before the 1st day of July 1987. But if a person is born after July 1987, then he or she can claim citizenship only if either parent was an Indian national. Those born in India on or after December 3, 2004, can claim citizenship by birth only if parents are Indians or if one parent is a citizen and the other is not an illegal immigrant at the time of birth.”

Passport: A Constitutional Right

Renunciation of Citizenship

Though citizenship cannot be proved by a passport to renounce the citizenship of India one has to return their Indian passport. The Rule 3 of Schedule III of the Citizenship Rules, 1956 states that that “the fact that a citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his/her having voluntarily acquired the citizenship of that country before that date”

Denial of passport affects

In the case of , the Delhi High Court held that denial to grant passport or its non-renewal without assigning a proper reason which is listed in the Passports Act, 1967 affects the fundamental right of a citizen.

The court stated “There is no dispute that the petitioner is a citizen of India and in normal circumstances would be entitled to the passport facilities. Why then was passport denied to him and why his fundamental rights were held hostage to an inordinately long inquiry conducted by passport authorities. Para 9 then also listed the grounds on which such facility can be refused as set out in Section 6 of the Passports Act, 1967… It is relevant to state that the petitioner had applied for the renewal of his passport almost two years ago. It is also not disputed that the denial of the passport has put his residential status in Canada in jeopardy. The contention that the petitioner’s livelihood has been adversely affected has also not been disputed.”

Conclusion

A passport gives the right to Indian Citizens to travel internationally and serves as a proof of Indian Citizenship outside the country. It is simple to say that a passport acts as proof of a person’s national identity.

But in the same case, a passport according to the Supreme Court cannot be conclusive proof of citizenship alone. For a person to be proved Indian, either of his parents should be Indian. It is difficult to ascertain as to why a passport is not a proof of citizenship as all the valid documents possessed by a person to be a citizen is required to be attested when his/her passport is made.

The Supreme Court has stated that personal liberty makes for the worth of the human person and travel makes liberty worthwhile. The spirit of Man is at the root of Article 21. The freedom of movement of the individual to move within his country or leaving it, in traveling to other countries and entering his own country is vital human liberty.

The court had, at last, stated that it is the fundamental right of a person to obtain a passport unless a procedure established by law. The authority cannot refuse to obtain a passport without any proper reason or reasons mentioned in the act which restricts granting of passport to someone.
The Indian passport is the right of the citizens as it is the mark of their identity for the outside world.

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