When Liberty is Made Conditional, the Constitution is at Risk: Supreme Court Allows Passport Renewal Despite Pending Criminal Cases

“Section 6(2)(f) is Not an Absolute Bar — Once Courts Permit Renewal Under Conditions, Exemption Applies”: In a recent Judgement Supreme Court of India allowed the re-issuance of an ordinary passport to a convicted appellant facing pending criminal proceedings, holding that Section 6(2)(f) of the Passports Act, 1967, is not an unyielding embargo against renewal once courts consciously grant permissions under judicial supervision. The judgment, delivered by a Bench of Justice Vikram Nath and Justice Augustine George Masih, is a critical reaffirmation of the right to travel abroad as a facet of personal liberty under Article 21 of the Constitution, and clarifies the interplay between statutory restrictions and judicial exemptions.

The Court set aside the orders of the Calcutta High Court, including the Single Judge’s denial and the Division Bench’s refusal to grant passport renewal, directing the Passport Authority to re-issue a ten-year passport within four weeks, subject to the ongoing bail conditions imposed by the NIA Court and Delhi High Court.

“Liberty is Not a Gift of the State, But Its First Obligation” — Court Flags Constitutional Overreach by Passport Authorities

Opening the judgment with a strong emphasis on constitutional liberty, Justice Vikram Nath observed:

“Liberty, in our constitutional scheme, is not a gift of the State but its first obligation... When procedural safeguards are converted into rigid barriers, or temporary disabilities are allowed to harden into indefinite exclusions, the balance between the power of the State and the dignity of the individual is disturbed, and the promise of the Constitution is put at risk.”

The observation reflects the Court’s concern over State instrumentalities enforcing legal provisions in a manner that undermines the broader constitutional safeguards, particularly under Article 21.

Criminal Proceedings and Judicial Permissions Ignored by Passport Authority

The appellant, Mahesh Kumar Agarwal, is facing prosecution before the NIA Court in Ranchi under UAPA and other statutes, and also stands convicted in a CBI coal block case, with his sentence suspended and appeal pending before the Delhi High Court. His passport expired on 28.08.2023, and he sought its renewal for ten years.

Both the NIA Court and the Delhi High Court granted no objection certificates (NOCs) for renewal of the passport, while retaining control over any foreign travel, including conditions like prior permission for travel and re-deposit of the passport. However, the Regional Passport Office (RPO), Kolkata, refused renewal, citing a continuing bar under Section 6(2)(f) of the Passports Act, arguing that only a court order explicitly allowing “departure from India” for a specific journey would suffice to trigger the exemption under Notification GSR 570(E) issued under Section 22.

The appellant’s writ petition under Article 226 was dismissed by the Calcutta High Court, which viewed Section 6(2)(f) as an absolute statutory embargo, upheld on appeal by the Division Bench.

Supreme Court Holds Section 6(2)(f) Must Be Read with Exemption Under Section 22 and GSR 570(E)

Reversing the reasoning adopted by the High Court, the Supreme Court clarified:

“Once the criminal courts, with full knowledge of the pending proceedings, consciously allowed renewal subject to the condition that the appellant shall not travel abroad without their permission... the underlying concern of Section 6(2)(f) stood adequately addressed under judicial supervision.”

The Court explained that Section 6(2)(f), which mandates denial of passport where criminal proceedings are pending, is expressly subject to other provisions of the Act, including Section 22, which empowers the Government to grant exemptions.

GSR 570(E), issued under Section 22, creates a statutory mechanism to permit issuance or renewal of passports to persons facing criminal trials, provided they have judicial permission and give an undertaking to appear before court when required.

Importantly, the Court clarified that the notification does not require the court to authorise a specific journey or date:

“Nothing in the Passports Act requires the criminal court to convert every permission into a one-time licence to undertake a particular journey.”

Thus, the Delhi High Court’s express permission for a ten-year renewal and the NIA Court’s conditional NOC were deemed sufficient to bring the appellant within the exempted class.

Right to Hold Passport is a Facet of Article 21 – Blanket Denial is Disproportionate

The Bench went further to reinforce the constitutional dimension of the issue:

“This Court has repeatedly held in a catena of judgments that the right to travel abroad and the right to hold a passport are facets of the right to personal liberty under Article 21... Any restriction on that right must be fair, just and reasonable, and must bear a rational nexus with a legitimate purpose.”

In the instant case, the legitimate purpose of ensuring the presence of the accused before criminal courts was already being fulfilled by judicial conditions of bail and supervision. Therefore, a complete denial of passport renewal was held to be disproportionate and constitutionally impermissible.

Conviction Under Appeal Does Not Attract Section 6(2)(f) – Clarifies Applicability of 6(2)(e)

The Supreme Court rejected the High Court’s reliance on the appellant’s pending appeal against conviction, citing the precedent in Vangala Kasturi Rangacharyulu v. CBI (2021 SCC OnLine SC 3549):

“Section 6(2)(f) relates to a situation where the applicant is facing trial in a criminal court... The passport authority cannot refuse the renewal of the passport on the ground of pendency of the criminal appeal.”

The Court clarified that once a person is convicted, their case falls within Section 6(2)(e), which applies only when the conviction is for a sentence of two years or more within the last five years. As the appellant’s conviction was under appeal and the sentence was suspended, the stricter bar under Section 6(2)(f) was inapplicable.

Renewal of Passport Cannot Be Denied Just Because Passport Had Expired

The Passport Authority’s argument that the appellant’s passport had expired and thus the exemption did not apply, was also rejected. The Court clarified:

“The Passports Act contemplates passports that ‘continue in force’ for a prescribed period. It does not create a separate disability for applicants whose earlier passports have lapsed. Re-issue after expiry is a routine occurrence.”

Hence, application timing was irrelevant where judicial permission already existed.

“Not an Executing Court” Argument Rejected – Writ Petition Was to Enforce Statutory Duty

Another notable aspect of the decision was the Supreme Court’s rejection of the Division Bench’s view that the Calcutta High Court cannot act as an ‘executing court’ for orders passed by the NIA Court and Delhi High Court:

“The writ petition did not seek execution of those orders... It sought enforcement of a statutory obligation cast on the passport authority, read with the exemption notification... To direct the passport authority to give effect to that exemption is to ensure compliance with the statute.

Supreme Court Allows Passport Renewal – Reaffirms Conditional Liberty Under Judicial Supervision

In conclusion, the Court allowed the appeal and directed the re-issuance of the passport:

“The respondents are directed to re-issue an ordinary passport to the appellant for the normal period of ten years... 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.”

The entire legal reasoning of the Calcutta High Court was overturned, with the Supreme Court warning against converting statutory restrictions into de facto permanent civil disabilities, especially when criminal courts have consciously crafted a supervised liberty regime.

Date of Decision: December 19, 2025