British Raj and Restrictions on Right to Free Movement
British Raj has frowned on foreign travels by Indian patriotic suspects and instances from the British Indian Chapter may abound. In many countries the passport and visa system has been used as potent paper curtain to inhibit illustrious writers, outstanding statesmen, humanist churchmen and renowned scientists, if they are dissenters, from leaving their national frontiers. Things have changed, global awareness has dawned.
Global Shift towards freedom of movement
The European Convention on Human Rights and bilateral understandings have made headway to widen freedom of travel abroad as integral to liberty of the person. And the universal Declaration of Human Rights has proclaimed in Article 13, that everyone has the right to leave any country including his own, and to return to his country.
This human planet is our single home, though geographically variegated, culturally diverse, politically pluralist in science and technology competitive and co-operative in arts and life-styles a lovely mosaic and, above all, suffused with a cosmic unconsciousness of unity and inter- dependence.
Cultural Enrichment and National Interest
Viewed from another angle, travel abroad is a cultural enrichment which enables one’s understanding of one’s own country in better light. Thus it serves national interest to have its citizenry see other countries and judge one’s country on a comparative scale.
Right to Free Movement as a vital of personal liberty
The right of free movement is a vital element of personal liberty. The right of free movement includes right to travel abroad. Among the great guaranteed rights life and liberty are the first among equals, carrying a universal connotation cardinal to a decent human order and protected by constitutional armour. Truncate liberty in Art. 21 traumatically and the several other freedoms fade out automatically. Personal liberty makes for the worth of the human person.
Travel makes liberty worthwhile. Life is a terrestrial opportunity for unfolding personality rising to a higher scale moving to fresh woods and reaching out to reality which makes our earthly journey a true fulfilment, not a tale told by an idiot full of sound and fury signifying nothing, but a fine frenzy rolling between heaven and earth. The spirit of Man is at the root of Art. 21. Absent liberty, other freedoms are frozen.
Fair Procedure in Safeguarding Rights
Procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself. Thus, understood, ‘procedure’ must rule out anything arbitrary, freakish or bizarre. What is fundamental is life and liberty. What is procedural is the manner of its exercise. This quality of fairness in the process is emphasised by the strong word “establish” which means ‘settled firmly’,” not wantonly or whimsically.
Procedure in Article 21 means fair, not formal procedure. Law is reasonable law, not any enacted piece. As Art. 22 specifically spells out the procedural safeguards for preventive and punitive detention, a law providing for such detention should conform to Art. 22. It has been rightly pointed out that for other rights forming part of personal liberty, the procedural safeguards enshrined in Art. 21 are available.
Otherwise, as the procedural safeguards contained in Art. 22 will be available only in cases of preventive and punitive detention the right to life, more fundamental than any other forming part of personal liberty and paramount to the happiness, dignity and worth of the individual, will not be entitled to any procedural safeguard, save such as a legislature’s mood chooses.
Restrictions should comply with Natural Justice
Liberty of locomotion into alien territory cannot be unjustly forbidden by the Establishment and passport legislation must take processual provisions which accord with fair norms, free from extraneous pressure and, by and large, complying with natural justice. Unilateral arbitrariness, police dossiers, faceless affiants, behind- the-back materials oblique motives and the inscrutable face of an official sphinx do not fill the territory.
In Gopalan’s case it was held that Art. 22 is a self- contained Code, however, ‘this has suffered supersession at the hands of R. C. Cooper [1973] 3 SCR 530. Article 21 clubs life with liberty and when we interpret the colour and content of ‘procedure established by law’, we must be alive to the deadly peril of life being deprived without minimal processual justice, legislative callousness despising hearing and fair opportunities of defence.
“Bolt the stables after the horse has been stolen” is not a command of natural justice. But soon after the provisional seizure, a reasonable hearing must follow, to minimise procedural prejudice. And when a prompt final order is made against the applicant or passport holder the reasons must be disclosed to him almost invariably save in those dangerous cases, where irreparable injury will ensue to the State.
A government which revels in secrecy in the field of people’s liberty not only acts against democratic decency but busies itself with its own burial. That is the writing on the wall if history were teacher, memory our mentor and decline of liberty not our unwitting endeavour. Public power must rarely hide its heart in an open society and system.
Equality is the antithesis of arbitrariness
Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory diktats. Equality is the antithesis of arbitrariness. As far as question of extra-territorial jurisdiction in foreign lands is concerned, it is a misconception. Nobody contends that India should interfere with other countries and their sovereignty to ensure free movement of Indians in those countries.
What is meant is that the Government of India should not prevent by any sanctions it has over its citizens from moving within in any other country if that other country has no objection to their travelling within its territory.
The law is now settled that no article in Part III is an island but Part of a continent, and the conspectus of the whole part gives the direction and correction needed for interpretation of these basic provisions. Man is not dissectible into separate limbs and, likewise, cardinal rights in an organic constitution, which make man human have a synthesis. The proposition is indubitable that Art. 21 does not, in a given situation exclude Art. 19 if both rights are breached.
It is a salutary thought that the summit court should not interpret constitutional rights enshrined in Part III to choke its life-breath or chill its elan vital by processes of legalism, overruling the enduring values burning in the bosoms of those who won our independence and drew up our founding document.
Restraints are permissible only to the extent they have nexus with the approved object
High constitutional policy has harmonised individual freedoms with holistic community good by inscribing exceptions to Art. 19(1) in Art 19(2) to (6). Even so, what is fundamental is the freedom, not the exception. More importantly, restraints are permissible only to the extent they have nexus with the approved object. No verbal labels but real values are the governing considerations in the exploration and adjudication of constitutional prescriptions and proscriptions.
Governments come and go, but the fundamental rights of the people cannot be subject to the wishful value-sets of political regimes of the passing day. Locomotion in some situation is necessarily involved in the exercise of the specified fundamental rights as an associated or integrated right. Travel, simpliciter, is peripheral to and not necessarily fundamental in Art. 19 Free speech is feasible without movement beyond country. The delicate, yet difficult, phase of the controversy arrives where free speech and free practice of profession are inextricably interwoven with travel abroad.