Liberty is not State's gift but its first obligation: Supreme Court on right to passport despite criminal case

Liberty in India's constitutional scheme is not a gift of the State but its first obligation, the Supreme Court recently said while emphasising that the law does not disentitle a person facing criminal proceedings from getting a passport [Mahesh Kumar Agarwal vs Union of India]

The Bench of Justices Vikram Nath and AG Masih made the observation in a judgment dealing with the plea for renewal of passport of a man convicted in a coal block case and currently facing charges in another coal mining case under the Unlawful Activities (Prevention) Act (UAPA).

"Liberty, in our constitutional scheme, is not a gift of the State but its first obligation. The freedom of a citizen to move, to travel, to pursue livelihood and opportunity, subject to law, is an essential part of the guarantee under Article 21 of the Constitution of India. The State may, where statute so provides, regulate or restrain that freedom in the interests of justice, security or public order but such restraint must be narrowly confined to what is necessary, proportionate to the object sought to be achieved, and clearly anchored in law," the Court said.

The Bench also said that when procedural safeguards are converted into rigid barriers or temporary disabilities are allowed to harden into indefinite exclusions, the balance between the State's power and an individual's dignity is disturbed.

It puts the promise of Constitution at risk, the Bench opined.

The appellant Mahesh Kumar Agarwal’s passport had expired in August 2023. Prior to its expiry, the NIA Court at Ranchi in the UAPA case permitted release of his passport for the limited purpose of renewal with a direction to then deposit the renewed document with court and not travel abroad without prior permission.

Separately, the Delhi High Court, which had suspended Agarwal's sentence in the CBI coal block case, granted no objection for renewal of the passport for a period of ten years, subject to the continuing condition that he shall not leave the country without prior permission.

Despite these judicial orders, the Regional Passport Office in Kolkata declined renewal, invoking Section 6(2)(f) of the Passports Act on the ground that criminal proceedings were pending.

The Calcutta High Court upheld the decision, leading to the present plea before Supreme Court.

Considering the law as well as the guidelines of the Ministry of Home Affairs, the top court reiterated that Section 6(2)(f) does not operate as an absolute bar against issuance of passport to persons facing criminal proceedings.

"Instead, it permits such persons to obtain a passport, notwithstanding Section 6(2)(f), where the concerned criminal court has applied its mind and passed an order in relation to issuance or use of the passport and where the applicant furnishes an undertaking to appear before the court as and when required," the bench said.

The Bench found that Calcutta High Court had proceeded on an unduly narrow reading of the exemption notification by insisting that renewal could be granted only if the criminal court simultaneously authorised a specific foreign journey.

“Nothing in the Passports Act requires the criminal court to convert every permission into a one-time licence to undertake a particular journey.The statute equally permits the court to allow renewal of the passport while retaining complete control over each instance of foreign travel by insisting on its prior leave," the Court said.

The Court further said that the passport authority is not required at the renewal stage to demand a schedule of future journeys or visas which may not yet exist.

"Its task is to see whether, despite pending proceedings, the criminal courts have chosen to keep the possibility of travel open under their supervision. Once that position is clear, GSR 570(E) applies and the bar under Section 6(2)(f) cannot be invoked to refuse renewal altogether," the bench said.

The Bench also said that it was important to keep in mind the distinction between the possession of a valid passport and the act of travelling abroad.

A passport is a civil document that enables its holder to seek a visa and, subject to other laws and orders, to cross international borders, it added.

"Whether a person who is on bail or facing trial may actually leave the country is a matter for the criminal court, which can grant or withhold permission, impose conditions, insist on undertakings, or refuse leave altogether," the Court underscored.

It also opined that refusal to renewal of passport on the speculative apprehension that the accused might misuse the passport amounted to second guessing the criminal courts’ assessment of risk and assuming the a supervisory role by the passport authority.

Considering the findings, the top court directed the passport authorities to re-issue an ordinary passport to Agarwal for the normal period of ten years.

"The passport so issued shall remain subject to all existing and future orders passed by the NIA Court, Ranchi, and the Delhi High Court, including, in particular, the conditions that the appellant shall not leave India without prior permission of the court concerned and shall deposit the passport in that court as and when so directed," it clarified.

Senior Advocate Gopal Subramanium appeared for the appellant.

Additional Solicitor General Aishwarya Bhati appeared for the Union government.

[Read Judgment]