Citizens’ fundamental rights cannot be held hostage to inordinately long inquiry conducted by Passport Authorities: Delhi HC

All said and done, it is certainly a laudable, learned and landmark judgment written elegantly by Justice Vibhu Bakhru of Delhi High Court which more or less backs the petitioner’s claim that the fundamental rights of a citizen cannot be held hostage to an inordinately long inquiry being conducted by the respondent or its agencies.

It has to be said right at the outset that in a landmark judgment with far reaching consequences, the Delhi High Court in Jasvinder Singh Chauhan v Union of India W.P. (C) 2091/2018 & C.M. Nos. 8677/2018 & 3544/2018 dated September 11, 2018 has clearly and categorically reiterated that denial of passport or its non-renewal without assigning reasons as listed under the Passports Act, 1967 infringes the fundamental rights guaranteed under the Constitution of India. This landmark judgment was delivered by Justice Vibhu Bakhru of Delhi High Court on a writ petition filed by one Jasvinder Singh Chauhan who was praying for the renewal of his passport and issuance of a fresh passport to him. Jasvinder works as a truck driver in Canada on a legal work permit.

While craving for exclusive indulgence of esteemed readers, it must be informed here that in September 2016, he was nominated by the British Columbia Provincial Nominee Program, Ministry of Jobs, Tourism and Skills Training, Canada for permanent resident status. He therefore applied for renewal of his passport at the Indian Consulate at Vancouver, but the same was not renewed even after almost two years. This was because while processing Jasvinder’s application, it was found that his brother-inlaw had manipulated the passport service subsystem of the Consulate General of India (CGI), Atlanta and dishonestly obtained a passport by impersonating him.

To be sure, the Central Government believed that this fraud was committed in collusion with Jasvinder. The Centre then claimed that the matter is being investigated and it is awaiting the outcome of the investigation to decide on Jasvinder’s application. The Court, however, opined that in the case at hand, the denial of a passport – which is the effect of non-renewal for such an extended period – clearly impinges on Mr Chauhan’s fundamental rights.

Starting from the scratch, para 1 of this landmark judgment starts by saying that, “The petitioner has filed the present petition under Article 226 of the Constitution of India praying for renewal of his passport bearing no. G 1149580 and seeking direction to the respondent to issue a fresh passport.” Para 2 then discloses that, “The petitioner is an Indian Citizen and is working as a truck driver in Canada on a legal work permit. On 16.9.2016, the British Columbia Provincial Nominee Program, Ministry of Jobs, Tourism and Skills Training Canada informed that the petitioner had been nominated under the Canada Provincial Nominee Program for permanent resident status.” After this comes para 3 which says that, “On 28.10.2016, the petitioner applied for renewal of his passport at the Indian Consulate at Vancouver.”

Presenting the respondent version, para 4 then says that, “The respondent states that while processing the petitioner’s application for renewal of the passport, it was found that another passport (bearing no. P 2161269) which was valid from 13.04.2016 to 12.04.2026 had been issued by the Consulate General of India (CGI), Atlanta. It is stated in the counter affidavit field on behalf of the respondent that further inquiries revealed that one Sh. Jagdip Singh Dhillon, who is the brother-in-law of the petitioner, had manipulated the passport service sub system of the CGI at Atlanta and had dishonestly obtained a passport (Passport No. P 2161269) by impersonating the petitioner. It is alleged that this was in collusion with the petitioner.”

Going forward, para 5 then goes on to say that, “It is further affirmed in the counter affidavit that the petitioner was called for an interview with the CGI, Vancouver and the petitioner had identified the photograph on the passport no. P 2161269 as that of his brother-in-law. The said passport was immediately revoked and a lost entry was also made in respect of the petitioner’s passport bearing no. G 1149580.” Para 6 then reveals that, “The respondent claims that the matter is still being investigated and the respondent is awaiting the outcome of such investigation.”

Simply put, this landmark judgment then shifts its attention to the petitioner’s version. Para 7 discloses that, “The learned counsel appearing for the petitioner submits that the petitioner disputes the aforesaid allegation. He submitted that the petitioner had not accepted that the photograph on the passport bearing no. P2161269 issued by CGI, Atlanta was that of his brother-in-law. It is further contended that the original passport issued to the petitioner was in possession of the petitioner and was submitted for renewal to CGI, Vancouver. The petitioner claims that his brother-in-law, is an American Citizen and it is submitted that although the photographs on the passport (no. P2161269) issued by CGI, Atlanta bears some resemblances with the petitioner’s brother-inlaw, there would be no reason for him to impersonate the petitioner since he is already an American Citizen. It was further contended that the petitioner seeks the status of a permanent resident of Canada. Grant of such status would also permit the petitioner’s family to join him in that country. It is stated that currently his application for the temporary resident status has been rejected, as the petitioner has been unable to provide a valid passport.”

Truth be told, Justice Vibhu Bakhru of Delhi High Court then goes on to say in para 9 after hearing the learned counsel for the parties as pointed in para 8 that, “There is no dispute that the petitioner is a citizen of India and in normal circumstances would be entitled for the passport facilities. Why then was passport denied to him and why his fundamental rights were held hostage to inordinately long inquiry conducted by passport authorities. Para 9 then also listed the grounds on which such facility can be refused as set out in Section 6 of the Passports Act, 1967.

To say the least, para 10 then goes on to say that, “Ms Gosain, the learned counsel appearing for the respondent did not dispute the grounds – except as stated in Clause (i) of Section 6(2) of the Act – were inapplicable in the facts of the present case. She submitted that the petitioner’s request for passport could be refused in terms of Clause (i) of Section 6(2) of the Act: that is, where the Central Government is of the opinion that issuance of a passport will not be in public interest. However, Ms Gosain also earnestly contended that no such decision had been taken by the concerned authorities as yet.” Para 11 while espousing the petitioner’s contentions points out that, “It is relevant to state that the petitioner had applied for renewal of his passport almost two years ago. It is also not disputed that the denial of the passport has put his residential status in Canada in jeopardy. The contention that the petitioner’s livelihood has been adversely affected has also not been disputed.”

For esteemed readers‘ exclusive indulgence, it also merits mention what is stated in para 12 of this landmark judgment.

While quoting the landmark Maneka Gandhi’s passport case, it elaborates by pointing out that, “In Maneka Gandhi v. Union of India: (1978) 1 SCC 248, the Supreme Court had considered the relevance of a passport in the context of personal liberty of a citizen of India. Although, the constitutional validity of Section 10(3)(c) of the Passport Act, 1967, was upheld, Justice Bhagwati (speaking for himself, Untwalia J and Fazal Ali J) observed that “even though Section 10(3)(c) is valid, the question would always remain whether an order made under is invalid as contravening a fundamental right.” The Supreme Court further observed as under:

“…..There may be many such cases where the restriction imposed is apparently only on the right to go abroad but the direct and inevitable consequence is to interfere with the freedom of speech and expression or the right to carry on a profession. A musician may want to go abroad to sing, a dancer to dance, a rising professor to teach and a scholar to participate in a conference or seminar. If in such a case his passport is denied or impounded, it would directly interfere with his freedom of speech and expression.

Examples can be multiplied, but the point of the matter is that although the right to go abroad is not a fundamental right, the denial of the right to go abroad may, in truth and in effect, restrict freedom of speech and expression or freedom to carry on a profession so as to contravene Article 19(1)(a) or 19(1)(g). In such a case, refusal or impounding of passport would be invalid unless it is justified under Article 19(2) or Article 19(6), as the case may be.”

CLEAR VIOLATION OF FUNDAMENTAL RIGHT

Truly speaking, para 13 minced no words in saying it clearly and convincingly that, “In this case, denial of a passport – which is the effect of non-renewal for such an extended period – clearly impinges on the fundamental rights of the petitioner.”

FUNDAMENTAL RIGHTS STAND TALLEST

More importantly, para 14 while attaching utmost importance to fundamental rights underscores that, “Although, Ms Gosain had earnestly contended that the respondent had not refused renewal of passport as yet, the fact that the petitioner’s passport has not been renewed in almost two years despite the petitioner’s compliance with all the formalities, leaves no room for doubt that the petitioner has been denied passport facilities. The fundamental rights of a citizen cannot be held hostage to an inordinately long inquiry being conducted by the respondent or its agencies.” In other words, there can be no two opinions that fundamental rights stand tallest and they cannot be held hostage to an inordinately long inquiry that is conducted by the respondent or its agencies!

Needless to say, para 15 then points out that, “Even after expiry of two years, the respondent is not in a position to state that the Central Government has formed an opinion that it is not in public interest to deny passport facilities to the petitioner.” Now comes para 16 which observes that, “In the given facts, this Court is of the view that the petitioner’s passport must be renewed immediately. In this case, non-renewal of the passport has seriously curtailed the petitioner’s ability to carry on with his employment in Canada.”

PETITION ALLOWED WITH CAVEAT

As things stand, para 17 then states that, “For the reasons stated above, the petition is allowed. All the pending applications are disposed of.” Finally, the concluding para 18 observes that, “The respondent is directed to forthwith renew the petitioner’s passport. However, it is clarified that in the event the inquiries reveal any ground to form an opinion that the petitioner should be denied a passport in the interest of general public; this order would not preclude the respondent from cancelling the passport in accordance with law.”

CONCLUSION

All said and done, it is certainly a laudable, learned and landmark judgment written elegantly by Justice Vibhu Bakhru of Delhi High Court which more or less backs the petitioner’s claim that the fundamental rights of a citizen cannot be held hostage to an inordinately long inquiry being conducted by the respondent or its agencies. Why should the petitioner suffer for no fault of his? This alone explains why the respondent is directed to forthwith renew the petitioner’s passport. Very rightly so! It also clarifies categorically that only if there is a strong ground for denying the petitioner the passport in the interest of general public only then can it be denied but not otherwise! It is an excellent and exemplary judgment which places fundamental rights of citizens on the highest pedestal! There can be no denying it!