An Edited Excerpt from the judgment (Headings have been added)
Remember, even democracies have experienced executive lawlessness and eclipse of liberty on the one hand and ‘subversive’ use of freedoms by tycoons and saboteurs on the other, and then the summons to judges comes from the Constitution, over-riding the necessary deference to government and seeing in perspective, and overseeing in effective operation the enjoyment of the ‘great rights’. This Court lays down the law not pro tempore but lastingly.
Exploration of Article 21: Protection of Life and Personal Liberty
‘Lawful illegality becomes the rule, if ‘lawless legislation be not removed. Verily, while hard cases tend to make bad law, bad cases tend to blur great law and courts must beware. The centre of the stage in a legal debate on life and liberty must ordinarily be occupied by Art. 21 of our Paramount Parchment which, with emphatic brevity and accent on legality, states the mandate thus:
“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.”
Personal Liberty and Procedure Established by Law
Micro-phrases used in National Chatters spread into macro- meanings with the lambent light of basic law. For our purposes, the key concepts are ‘personal liberty’ and ‘procedure established by law’. Let us grasp the permissible restraints on personal liberty, one of the facets of which is the right of exit beyond one’s country. The sublime sweep of the subject of personal liberty must come within our ken if we are to do justice to the constitutional limitations which may, legitimately, be imposed on its exercise.
Speaking briefly, the architects of our Founding Document, (and their fore-runners) many of whom were front-line fighters for national freedom, were lofty humanists who were profoundly spiritual and deeply secular, enriched by vintage values and revolutionary urges and, above all, experientially conscious of the deadening impact of the colonial screening of Indians going abroad and historically ‘sensitive to the struggle for liberation being waged from foreign lands. And their testament is our asset.
Cultural and Historical Roots of Travel and Personal Liberty
The roots of our past reach down to travels laden with our culture and commerce and its spread-out beyond the oceans and the mountains, so much so our history unravels exchange between India and the wider world. This legacy, epitomised as ‘the glory that was Ind’, was partly the product of travels into India and out of India. It was the two-way traffic of which there is testimony inside in Nalanda, and outside, even in Ulan Bator.
Our literature and arts bear immortal testimony to our thirst for travel and even our law, over two thousand years ago, had canalised travels abroad. For instance, in the days of Kautilya (BC 321-296) there was a Superintendent of Passports ‘to issue passes at the rate of a masha a pass’. Further details on passport law are found in Katutilya’s Arthasastra.
Evolution of Passport Laws: From Ancient Times to Modern Era
Indeed, viewing the subject from the angle of geo-cultural end legal anthropology and current history, freedom of movement and its off-shoot-the institution of passport-have been there through the Hellenic, Roman, Israelite, Chinese, Persian and other civilisations. Socrates, in his dialogue with Crito, spoke of personal liberty. He regarded the right of everyone to save his country as an attribute of personal liberty. He made the laws speak thus,
“We further proclaim to any Athenian by the liberty which we allow him, that if he does not like us when he has become of age and has seen the ways of the city, and made our acquaintance, he may go where he please and take his goods with him. None of our laws will forbid him, or interfere with him. Anyone who does not like us and the city, and who wants to emigrate to a colony or to any other city may go where he likes, retaining his property.”
The Magna Carta, way back in 1215 A.D. on the greens of Runnymede, affirmed the freedom to move beyond the borders of the kingdom and, by the time of Blackstone, ‘by the common law, every man may go out of the realm for whatever cause he pleaseth, without obtaining the king’s leave’.
International Context and Legal Framework for Freedom of Movement
Lord Diplock in D.P.P. v. Shagwan (1972) stated that,
‘Prior to…. 1962……….. a British subject had the right at common law to enter the United Kingdom without let or hindrance when and where he pleased and to remain there as long as he liked’ (International & Comparative Law Quarterly, Vol. 23, July 1974, p. 646).
As late as Ghani v. Jones (1970) Lord Denning asserted:
‘A man’s liberty of movement is regarded so highly by the Law of England that it is not to be hindered or prevented except on the ‘surest grounds’ (I & C. L. Qrly, ibid. p. 646).
In ‘Freedom under the Law” Lord Denning has observed under the sub-bead ‘Personal Freedom’:
“Let me first define my terms. By personal freedom I mean the freedom of every lawabiding citizen to think what he will, to say what he will, and to go where he will on his lawful occasions without let or hindrance from any other persons. Despite all the great changes that have come about in the other freedoms, this freedom has in our country remained intact.”
In ‘Freedom, The Individual and the Law’, Prof. Street has expressed a like view. Prof. H.W.R. Wade and Prof. Hood Philips echo this liberal view. (See Int. & _Comp. L.O. ibid 646). And Justice Douglas, in the last decade, refined and re-stated, in classic diction, the basics of travel jurisprudence in Apthekar,
“The freedom of movement is the very essence of our free society, setting us apart. Like the right of assembly and the right of association, it often makes all rights meaningful knowing, studying, arguing, exploring, conversing, observing and even thinking. Once the right to travel is curtailed, all other rights suffer, just as when curfew or home detention is placed on a person. America is of course sovereign, but her sovereignty is woven in an international web that makes her one of the family of nations.
The ties with all the continents are close commercially as well as culturally. Our concerns are planetary beyond sunrises and sunsets. Citizenship implicates us in those problems and perplexities, as well as in domestic ones. We cannot exercise and enjoy citizenship in World perspective without the right to travel abroad.”
The Integral Role of Travel Rights in Human Progress
And, in India, Satwant(1967) set the same high tone through Shri Justice Subba Rao although A. K. Gopalan(1950 ) and a stream of judicial thought since then, had felt impelled to underscore personal liberty as embracing right to travel abroad.
Tambe CJ in A. G. Kazi (1967) speaking for a Division Bench, made a comprehensive survey of the law and vivified the concept thus:
“In our opinion, the language used in the Article (Art. 21) also indicates that the expression ‘Personal liberty’ is not confined only to freedom from physical restraint, ie. but includes a full range of conduct which a n individual is free to pursue within law, for instance, eat and drink what he likes, mix with people whom he likes, read what he likes, sleep when and as long as he likes, travel wherever he likes, go wherever he likes, follow profession, vocation or business he likes, of course, in the manner and to the extent permitted by law.”
British Raj has frowned on foreign travels by Indian patriotic suspects and instances from the British Indian Chapter may abound. Likewise, the Establishment, in many countries has used the passport and visa system as potent paper curtain to inhibit illustrious writers, outstanding statesmen, humanist churchmen and renowned scientists, if they are dissenters’, from leaving their national frontiers.
Absent forensic sentinels, it is not unusual for people to be suppressed by power in the name of the people. The politics of passports has often tried to bend the jurisprudence of personal locomotion to serve its interests. The twilight of liberty must affect the thought ways of judges.
Things have changed, global awareness, in grey hues, has dawned. 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 (Fourth Protocol).
Universal Declaration of Human Rights and Travel Rights
And the Universal Declaration of Human Rights has proclaimed in Art. 13:
“(1) Everyone has the right to freedom of movement and residence within the borders of each State.
(2) Everyone has the right to leave any country, including his own, and to return to his country.”
This right is yet inchoate and only lays the base. But, hopefully, the loftiest towers rise from the ground. And despite destructive was and exploitative trade, racial hatreds and credal quarrels, colonial subjections and authoritarian spells, the world has advanced because of gregarious men adventuring forth, taking with them their thoughts and feelings on a trans-national scale.
National Interest and Cultural Enrichment through Travel
This human planet is our single home, though geographically variegated, culturally diverse, politically pluralist, in science and technology competitive and cooperative, in arts and life- styles a lovely mosaic and, above all, suffused with a cosmic consciousness of unity and inter-dependence.
This Grand Canyon has been the slow product of the perennial process of cultural interaction, intellectual cross- fertilization, ideological and religious confrontations and meeting and mating of social systems; and the wellspring is the wanderlust of man and his wondrous spirit moving towards a united human order founded on human rights. Human advance has been promoted through periods of pre-history and history by the flow of fellowmen, and the world owes much to exiles and emigres for liberation, revolution, scientific exploration and excellence in arts.
Stop this creative mobility by totalitarian decree and whole communities and cultures will stagnate and international awakening so vital for the survival of homo sapiens wither away. To argue for arbitrary inhibition of travel rights under executive directive or legislative tag is to invite and accelerate future shock. This broader setting is necessary if we, are to view the larger import of the right to passport in its fundamental bearings. It is not law alone but life’s leaven. It is not a casual facility but the core of liberty.
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.
Rudyard. Kipling, though with an imperial ring, has aptly said “Winds of the World, give answer They are whimpering to and fro And what should they know of England Who only England know?”
Why is the right to travel all over the world and into the beyond a human right and a constitutional freedom? Were it not so, the human heritage would have been more hapless, the human family more divided, the human order more unstable and the human future more murky. The Indian panorama from the migrant yore to tourist flow is an expression of the will to explore the Infinite, to promote understanding of the universe, to export human expertise and development of every resource.
Influence of World War II and Universal Human Rights on Indian Constitution
Thus humble pride of patriotic heritage would have been pre-empted had the ancient kings and mediaval rulers banished foreign travel as our imperial masters nearly did. And to look at the little letters of the text of Part III de hors the Discovery of India and the Destiny of Bharat or the divinity of the ‘soul and the dignity of the person highlighted in the Preamble unduly obsessed with individual aberrations of yesteryears or vague hunches leading to current fears, is a parsimonious exercise in constitutional perception.
Thus, the inspirational background cosmic perspective and inherited ethos of the pragamtic visionaries and jurist- statesmen who draw up the great Title Deed of our Republic must illumine the sutras of Articles 21, 19 and 14. The fascist horror of World War II burnt into our leaders the urgency of inscribing indelibly into our Constitution those values sans which the dignity of man suffers total eclipse. The Universal Declaration of Human Rights, the resurgence of international fellowship, the vulnerability of freedoms even in democracies and the rapid development of an integrated and intimately interacting ‘one world’ poised for peaceful and progressive intercourse conditioned their thought processes.
The bitter feeling of the British Raj trampling under foot swaraj the birth-right of every Indian- affected their celebrations. The hidden divinity in every human entity creatively impacted upon our founding fathers’ mentation. The mystic chords of ancient memory and the modern strands of the earth’s indivisibility, the pathology of provincialism, feudal backwardness, glaring inequality Ind bleeding communalism, the promotion of tourism, of giving and taking knowhow, of studying abroad, and inviting scholars from afar- these and other realistic considerations gave tongue to those hallowed human rights fortified by the impregnable provisions of Part 111.
Swami Vivekananda’s Vision of India’s Role in the World
Swami Vivekananda, that saintly revolutionary who spanned East and West, exhorted, dwelling on the nation’s fall of the last century:
“My idea as to the key-note of our national downfall is that we do not mix with other nations-that is the one and sole cause. We never had the opportunity to compare, notes. We were Kupa-Mandukas (frogs in a well).”
x x x x
One of the great causes of India’s misery and downfall has been that she narrowed herself, went into her shell, as the oyster does, and refused to give her jewels and her treasures to the other races of mankind, refused to give the life giving truth to thirsting nations outside the Aryan fold. That has been the one great cause, that we did not go out, that we did not compare notes with other nations-that has been the one great cause of our downfall, and every one of you knows that that little stir, the little life you see in India, begins from the day when Raja Rammohan Roy broke through the walls of this exclusiveness.
Since that day, history in India has taken another turn and now it is growing with accelerated motion. If we have bad little rivulets in the past, deluges are coming, and none can resist them. Therefore, we must go out, and the secret of life is to give and take. Are we to take always, to sit at the feet of the Westerners to learn everything, even religion? We can learn mechanism from them. We can learn many other things. But we have to teach them something….
Therefore we must go out, exchange our spirituality for anything they have to give us; for the marvels of the region of spirit we will exchange the marvels of the region of matter…. There cannot be friendship without equality, and there cannot be equality when one party is always the teacher and the other party sits always at his feet…. If you want to become equal with the Englishman or the American, you will have, to teach as well as to learn, and you have plenty yet to teach to the world for centuries to come.”
Comparative Law and Freedom of Movement
From the point of view of comparative law too, the position is well established. For, one of the essential attributes of citizenship, says Prof. Schwartz, is freedom of movement. The right of free movement is a vital element of personal liberty. The right of free movement includes the right to travel abroad.
Conclusion: The Intrinsic Value of Personal Liberty and Travel Rights
To sum up, personal liberty makes for the worth of the human person. Travel makes liberty worthwhile. Life is a terrestrial opportunity for unfolding personality, rising to higher states, 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 signi- fying 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. While the issue is legal and sounds in the constitutional, its appreciation gains in human depth given a planetary perspective and understanding of the expanding range of travel between the ‘inner space’ of Man and the ‘outer space’ around Mother Earth.
Reference
Maneka Gandhi v. Union of India (1978)