Edited Excerpt from the judgment (Headings have been added)
In the context of scary expressions like ‘security’ ‘public order, ‘public interest’ and ‘friendly foreign relations’, we must warn ourselves that not verbal tables 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.
Free Travel is necessary for Human Growth
A Human Tomorrow on Mother Earth is our cosmic constitutional perspective (See Art. 51). To my mind, locomotion is, in some situation, necessarily involved in the exercise of the specified fundamental rights as an associated or integrated right. Travel simplicitor is peripheral to and not necessarily fundamental in Art. 19. Arguendo, free speech is feasible without movement beyond the country, although soliloquies and solo songs are not the vogue in this ancient land of silent saints and pyrating gurus, bhajans and festivals. Again, travel may ordinarily be ‘action and only incidentally ‘expression’, to borrow the Zemel diction.
Movement within the territory of India is not tampered with by the impugned order, but that is not all. For, if our notions are incurrent, it is common place that the world- the family of nations–vibrates, and men-masses of man-move and ‘jet’ abroad and abroad, even in Concorde, on a scale unknown to history. Even thoughts, ideologies and habits travel beyond.
Tourists crowd out airline services; job- seekers rush to passport offices; lecture tours, cultural exchanges, trans-national evangelical meets, scientific and scholarly studies and workshops and seminars escalate, and international associations abound-all for the good of world peace and human progress, save where are involved high risks to sovereignty, national security and other substantial considerations which Constitutions and Courts have readily recognised.
Free speech anywhere is dead if free movement everywhere is denied
Our free system is not so brittle or timorous as to be scared into tabooing citizens trips abroad, except conducted tours or approved visits sanctioned by the Central Executive and indifferent to Art. 19. Again, the core question arises, Is movement abroad so much a crucial part of free speech, free practice of profession and the like that denial of the first is a violation of the rest? I admit that merely because speaking mostly involves some movement, therefore, ‘free speech anywhere is dead if free movement everywhere is denied’, does not follow.
The Constitutional lines must be so drawn that the constellation of fundamental rights does not expose the peace, security and tranquillity of the community to high risk. We cannot over-stretch free speech to make it an inextricable component of travel. Thomas Emerson has summed the American Law which rings a bell even in the Indian system:
“The values and functions of the freedom of expression in a democratic polity are obvious. Freedom of expression is essentially as a means of assuring individual self-fulfilment. The proper end of man is the realisation of his character and potentialities as a human being. For the achievement of this self- realisation the mind must be free.”
Again “Freedom of expression is an essential process for advancing knowledge and discovering truth. So also for participation in decision-making in a democratic society. Indeed free expression furthers stability in the community by reasoning together instead of battling against each other. Such being the value and function of free speech, what are the dynamics of limitation which will fit these values and functions without retarding social goals or injuring social interest?
It is in this background that we have to view the problem of passports and the law woven around it. There are two ways of looking at the question…. as a facet of liberty and as an ancient of expression.”
Travel abroad should probably be classified as ‘action’ rather than “expression”
Thomas Emerson comments on passports from these dual angles: Travel abroad should probably be classified as ‘action’ rather than “expression”.
In common sense terms travel is more physical movement than communication of ideas. It is true that travel abroad is frequently instrumental to expression, as when it is undertaken by a reporter to gather news’, a scholar to lecture, a student to obtain information or simply an ordinary citizen in order to expand his understanding of the world. Nevertheless, there are so many other aspects to travel abroad on functionally it requires such different types of regulation that, at last as the general proposition, it would have to be considered “action”.
If a right is not in express terms fundamental within the meaning of Part III, does it escape Art. 13, read with the trammels of Art. 19, even if the immediate impact, the substantial effect, the proximate import or the necessary result is prevention of free speech or practice of one’s profession? The answer is that associated rights, totally integrated, must enjoy the same immunity. Not otherwise. Three sets of cases may be thought of.
Firstly, where the legislative provision or executive order expressly forbids exercise in foreign lands of the fundamental right while grunting passport.
Secondly, there may be cases where even if the order is innocent on its face, the refusal of permission to go to a foreign country may, with certainty and immediacy, spell denial of free speech and professional practice or business.
Thirdly, the fundamental right may itself enwomb locomotion regardless of national frontiers. The second and third often are blurred in their edges and may overlap.
The first class may be illustrated. If the passport authority specifically conditions the permission with a direction not to address meetings abroad or not to be a journalist or professor in a foreign country, the order violate Art. 19(1) (a) or (f) and stands voided unless Art. 19 (2) and (6) are complied with.
The second category may be exemplified and examined after the third which is of less frequent occurrence. If ‘a person is an international pilot, astronaut, Judge. of the International Court of Justice, Secretary of the World Peace Council, President of a body of like nature, the particular profession not only calls for its practice travelling outside Indian territory but its core itself is international travel. In such an area, no right of exit, no practice of profession or vocation. Similarly, a cricketer or tennis player recruited on a world tour.
Restrictions on Free Movement
Free speech may similarly be bit by restriction on a campaigner for liberation of colonial peoples or against genocide before the United Nations Organisation. Refusal in such cases is hit on the head by negation of a national passport and can be rescued only by compliance with the relevant saving provisions, in Art. 19(2), (4) or (6). So far is plain sailing, as I see it. But the navigation into the penumbral zone of the second category is not easy.
I Supposing a lawyer or doctor, expert or exporter, missionary or guru, has to visit a foreign country profession-ally or on a speaking assignment. He is effectively disabled from discharging his pursuit if passport is refused. There the direct effect, the necessary consequence, the immediate impact of the embargo on grant of passport (or its subsequent impounding or revocation) is the infringement of the right to expression or profession’. Such infraction is unconstitutional unless the relevant part of Art. 19 (2) to (6) is complied with.
In dealing with fundamental freedom substantial justification alone will bring the law under the exceptions. National security, sovereignty, public order and public interest must be of such a high degree as to offer a great threat. These concepts should not be devalued to suit the hyper-sensitivity of the executive or minimal threats to the State.
Our nation is not so pusillanimous or precarious as to fall or founder if some miscreants pelt stones at its fair face from foreign countries. The dogs may bark, but the caravan will pass. And the danger to a party in power is not the same as rocking the security or sovereignty of the State.
Sometimes, a petulant government which forces silence may act unconstitutionally to forbid criticism from far, even if necessary for the good of the State. The perspective of free criticism with its limits for free people everywhere, all true patriots will concur, is eloquently spelt out by Sir Winston Churchill on the historic censure motion in the Commons as Britain was reeling under defeat at the hands of Hitlerite hordes:
“This long debate has now reached its final stage. What a remarkable example it, has been of the unbridled freedom of our Parliamentary institutions in time of war Everything that could be thought of or raked up has been used to weaken confidence in the Government, has been used to prove that Ministers are incompetent and to weaken their confidence in themselves, to make the Army distrust the backing it is getting from the civil power, to make workmen lose confidence in the weapons they are striving so hard to, make, to present the Government as a set of non-entities over whom the Prime Minister towers, and then to undermine him in his own heart, and, if possible, before the eyes of the nation.
All this poured out by cable and radio to all parts of the world, to the distress of all our friends and to the delight of all our foes I am in favour of this freedom, which no other country would use, or dare to use, in times of mortal peril such as those through which we are passing.”
I wholly agree that spies, traitors, smugglers, saboteurs of the health, wealth and survival or sovereignty of the nation shall not be passported into hostile soil to work their vicious plan fruitfully. But when applying the Passports Act, over-breadth hyper-anxiety, regimentation complex, and political mistrust shall not sub-consciously exaggerate, into morbid or neurotic refusal or unlimited impounding or- final revocation of passport, facts which, objectively assessed, may prove tremendous trifles.
That is why the provisions have to be read down into constitutionality, tailored to fit the reasonableness test and humanised by natural justice. And, on this construction, the conscience of the Constitution triumphs over vagarious governmental orders.
The limits on Free Movement
Our country, its hopes, all its tears and all its fears, must never forget that freedom is recreated year by year, that freedom is as freedom does, that we have gained a republic ‘if we can keep it’ and that the watershed between a police state and a people’s raj is located partly through its passport policy.
Today, a poor man in this poor country despaire of getting a passport because of invariable police enquiry, insistence on property requirement and other avoidable procedural obstacles. And if a system of secret informers, police dossiers, faceless whisperers and political tale-bearers conceptualised ‘and institutionalised ‘in public interest,’ comes to stay, civil liberty is legisidally constitutionalised–a consumption constantly to be resisted.
The merits of a particular case apart, the policing of a people’s right of exit or entry is fraught with peril to liberty unless policy is precise, operationally respectful of recognised values and harassment proof. Bertrand Russel has called attention to a syndrome the Administration will do well to note:
“We are all of us a mixture, of good and bad impulses that prevail in an excited crowd. There is in most men an impulse to persecute whatever is felt to be ‘different’. There is also a haired of any claim to superiority, which makes the stupid many hostile to the intelligent few. A motive such as fear of communism affords what seems a decent moral excuse for a combination of the heard against everything in any way exceptional. This is a recurrent phenomenon in human history. Wherever it occurs, its results are horrible.”
While interpreting and implementing the words of Art. 14, 19 and 21, we may keep J. B. Preistley‘s caution:
“We do not imagine that we are the victims of plots, that bad men are doing all this. It is the machinery of power that is getting out of sane control. Lost in its elaboration, even some men of goodwill begin to forget the essential humanity this machinery should be serving. They are now so busy testing, analysing, and reporting on bath water that ‘they cannot remember having thrown the baby out of the window.”
I have divagated a great deal into travel constitutionality in the setting of the story of the human journey, even though such a diffusion is partly beyond the strict needs of this case. But judicial travelling, like other travelling is almost like ‘talking with men of other centuries and countries.’
Reference
Maneka Gandhi v. Union of India (1978)