Right to Passport is a Fundamental Right, Denial Without Justification Violates Article 21: Allahabad High Court

"Right to Travel Abroad is a Part of Personal Liberty Under Article 21" – Maneka Gandhi Case Reiterated. Allahabad High Court, in Criminal Misc. Writ Petition No. 6581 of 2024 (Mohd. Hasan v. Union of India & Ors.), set aside the trial court's denial of passport renewal, reaffirming that the right to a passport is a fundamental right under Article 21 of the Constitution. The decision aligns with the landmark ruling in Maneka Gandhi v. Union of India (1978), where the Supreme Court held that the right to travel abroad is part of personal liberty.

The petitioner, Mohd. Hasan, sought renewal of his passport, which expired in September 2023. His application was denied by the Additional Chief Judicial Magistrate, Lucknow, on August 8, 2024, citing lack of jurisdiction due to pending criminal charges under Sections 420, 467, 468, and 471 of the Indian Penal Code (IPC). The petitioner argued that his passport was essential for his work, and that the denial was arbitrary and without merit. He also referred to the 1993 Ministry of External Affairs Notification which permits passport issuance to individuals facing criminal trials, provided they have court permission.

The primary legal question was whether a citizen with pending criminal cases can be denied a passport. The court had to balance the Passports Act, 1967 provisions, particularly Section 6(2)(f), with the fundamental rights enshrined in Articles 19(1)(d) (right to move freely) and 21 (right to personal liberty) of the Constitution.

The petitioner relied on the 1993 Notification (G.S.R. 570(E)) and an Office Memorandum from 2019 issued by the Ministry of External Affairs, which allow courts to grant permission for passport issuance in cases where criminal trials are pending.

The Union of India and the State of Uttar Pradesh argued that the trial court’s order was justified as the petitioner was facing serious charges under the IPC.

The court observed that the trial court failed to apply its judicial mind and did not consider the relevant legal provisions, including the notifications issued by the Ministry of External Affairs. Justice Shamim Ahmed highlighted that there is no absolute bar on issuing passports to individuals facing criminal trials, provided the court permits it, taking into account the nature of the case, the accused’s conduct, and the stage of the trial.

The court quashed the trial court’s order, stating that the denial of a passport violated the petitioner’s fundamental rights under Article 21. The court referred to Maneka Gandhi v. Union of India (1978), which established that the right to travel abroad is an integral part of personal liberty and cannot be restricted without substantial justification. The court stated:

"In India, at any rate, we are all certainly governed by our Constitution... The right to travel abroad is part of the personal liberty guaranteed under Article 21, and this right cannot be infringed upon without a valid, lawful reason."

The court also criticized the trial court for ignoring the 1993 Notification and 2019 Memorandum, which explicitly provide for the issuance of passports to individuals facing criminal charges if the court grants permission. The court emphasized that such decisions must be made on a case-by-case basis, considering the facts and circumstances of each case.

The writ petition was allowed, and the court directed the petitioner to apply afresh for his passport renewal. The Regional Passport Officer was ordered to decide on the application within one month, following due legal procedures. The petitioner was also instructed to seek permission from the trial court before traveling abroad, if the passport is renewed.

Date of Decision: September 19, 2024

Mohd. Hasan v. Union of India Through Secretary, Ministry of External Affairs, New Delhi & Ors.