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Government arbitrariness can come in many forms, and one of them happens to be lawful, which means citing the law and rules to defend an act of dubious constitutionality. The foreign ministry and the regional passport office (RPO), dragged to court by lawyer-activist Prashant Bhushan last week, find themselves trying to justify a similar action in renewing his passport for only one year.

Two legal provisions—Section 10(3)(e) of the Passports Act, 1967, and Notification No. G.S.R. 570(E) issued by the ministry in 1993—are at issue here. Under the first, if a citizen of India has any criminal case pending against him, his passport can either be impounded or revoked.

The second seeks to mitigate this effect by allowing courts to either specifically mention whether travel restrictions should apply to an accused before it or to not say anything, in which case a passport will be issued for a period of one year.

Bhushan has two criminal cases pending against him: one for unlawful assembly under Section 144 of the criminal penal code (CrPC) and one for violating traffic rules. Both are pending before the metropolitan magistrate in the Patiala House court, and pertain to his act of sitting in a dharna protesting the coal scam. That gathering had been declared as unlawful and illegal by the Delhi police and the magistrate at that time. So, it appears as though the government has gone strictly by the rulebook, and there shouldn’t be outrage about it illegally clamping down on a dissenter’s right to travel abroad, like that of Greenpeace’s Priya Pillai (and Prashant Bhushan has consistently held every ruling dispensation’s feet to the fire).

But, merely because an action is legal, is it constitutional?

The answer to this has two aspects—one in the realm of precedent set by two Constitution benches of the Supreme Court, and the other in how the government has gone about implementing the law.

The scope and ambit of a citizen’s right to a passport was first considered by the Supreme Court in 1967 in Satwant Singh Sawhney’s case. Sawhney had alleged executive bias in being denied a passport. The court, by a 3-2 majority, ruled in his favour. After examining precedents from abroad, and considering conflicting decisions rendered by various high courts in India, the judges ruled that although the right to life under Article 21 could not be stretched to accommodate a right to travel abroad (as a part of the fundamental right to personal liberty), executive caprice in denying travel would entail an infringement of the fundamental right to equality under Article 14.

Then in 1978 came the Maneka Gandhi ruling. The Janata Party, which was then in power, was miffed at her publishing some seamy photographs of the then defence minister Babubhai Jagjivan Ram’s son, Suresh Ram, in her monthly magazine Surya.

The government retaliated by impounding her passport, without giving any reasons for such action. Taking the government to task, seven judges of the Supreme Court ruled that although executive discretion in allowing or preventing a person from travelling abroad is legitimate, it must be used in a just, fair and reasonable manner. Cogent reasons have to be given before asserting that a citizen’s travel to a foreign country would be detrimental to national interest. These reasons, the court emphasized, must have a direct and intelligible nexus with the government’s action, that is, denial or impounding of a passport.

Coming back to Bhushan’s case, how do the government’s contentions hold up against what he alleges is a violation of his fundamental right? It is no secret that most police cases of unlawful assembly are unlawful in themselves because they are in violation of both the letter and spirit of the law.

The government can restrict members of the public from assembling, but only if it is proportionate to a reasonably perceived threat of breakdown in law and order, the Supreme Court ruled in 1971.

More recently, in February 2012, the Supreme Court delivered its judgement in the Ramleela Maidan case. It was one of those rare cases in which the court acted on its own, without waiting for an aggrieved party to approach it. This was occasioned by the Delhi Police’s brutal crackdown on everyone who had gathered at Delhi’s Ramleela grounds to express solidarity with Anna Hazare’s fight against corruption. The court found the government and Delhi Police’s actions of imposing Section 144 and the subsequent use of force disproportionate and excessive, and therefore, beyond the limits permitted by the Constitution.

Most significantly, the court said there is a direct, not merely implied, responsibility on the government to act openly and in the public interest while imposing Section 144. Although there is a legitimate state interest in regulating both freedom of assembly and expression, restrictions need to be imposed reasonably, so that they don’t turn into arbitrary prohibitions.

Even if, for the sake of argument, one assumes that the protest against the coal scam could have taken a violent turn because, after all, public anger against corruption was incendiary, legal provisions invoked by the government still fail to meet tests laid down in the Maneka Gandhi and Satwant Sawhney cases. Because, how does a sweeping statement such as criminal charges determine a citizen’s eligibility (or otherwise) to travel abroad? Charges can be for petty offences like illegally helping oneself to a book from a library, and also for more heinous offences like rioting.

As things stand, the passport authorities would have a tough time convincing the court about the constitutional validity of their action, as well as of the laws that have been invoked.

Saurav Datta teaches media law and jurisprudence in Mumbai and Pune.

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