The fundamental rights guaranteed by the Indian Constitution in Part III are a cornerstone of Indian democracy and, thus, play a significant role in protecting the individual rights of citizens. The right to hold a passport is one of those essential rights that areguaranteed to citizens of India under Article 21 of the Indian Constitution. A passport is an official government document that enables an individual to travel internationally and serves as proof of identity and citizenship. A visa, on the other hand, is a document issued by a government that allows an individual to enter, stay, or leave the country for a specific purpose, such as tourism, work, study, or immigration. Hence, both documents equally serve as needful documents to individuals who wish to travel overseas for various reasons such as education, employment, business, medical treatment, and tourism. The right to hold a passport, like all other fundamental rights, is not an absolute right and is subject to reasonable restrictions imposed by the government in the interest of national security, public order, morality, and prevention of crime. This article attempts to draw an understanding of the right to hold a passport and further elaborates on the court procedure to be followed for obtaining passport and visa clearance in the scenarios of pendency of criminal cases.
The right to hold a passport has seen primary development through the landmark judgement of Maneka Gandhi v Union of India(AIR 1978 SC 597). The Hon’ble Supreme Court indulged in a liberal interpretation of Article 21 and observed that the right to hold a passport is a fundamental right under Article 21.
The Maneka Gandhi case, had far-reaching implications for the interpretation of Article 21 of the Indian Constitution. Article 21 guarantees the right to life and personal liberty, including the right to travel freely within the nation and abroad.
Maneka Gandhi, a journalist, and activist had her passport confiscated by the Indian government without any prior notice or explanation. She challenged this action in court, arguing that her right to personal liberty was being infringed. The Supreme Court, in its judgment, held that the right to personal liberty under Article 21 also includes the right to travel abroad. The court held that the government could not impound a passport without allowing the individual to be heard and explaining the reasons for such action. In addition to the facts of this ruling, the court also emphasized the importance of the rule of law and due process, stating that any action that deprives an individual of his/her rights must be taken per the law and subject to judicial review. The case was significant because it extended the scope of Article 21 and recognized that the right to personal liberty includes rights such as the right to travel abroad, privacy, and a fair trial, by duly focusing on the vitality of due process and procedural fairness in the exercise of state power and laws. This case case marked a crucial milestone in the development of Indian constitutional law. Additionally, it was also relied upon in the case of PoulamiBasu vs The Government of India (2022 SCC OnLine Kar 1606), wherein a single Bench of Karnataka HC held that the right to travel abroad is a fundamental right guaranteed under Article 21 of the Constitution of India.
The government has the power to deny or revoke a passport on reasonable grounds, such as in cases where an individual is involved in criminal activities. However, a mere pendency of a criminal case or a proceeding cannot be considered the only reason to deny the request to obtain or renew a passport/visa application. In such cases, the concerned court having jurisdiction may exercise the discretion to grant permission by scrutinizing and analyzing all other correlated matters in deciding on the litigation of the applicant in the broad spectrum of areas of justice and law. In a recent order, the Bombay HC directed the passport authorities not to reject a man's passport renewal application merely because of the pendency of criminal proceedings against him, observing that mere pendency of proceedings is not sufficient to deny him the right to renew his passport. The court further observedin light of the facts of the case, that merely because the offense under Sections 406, 420, 120(b) read with 34 of IPC is pending against the applicant, the said fact by itself is not sufficient to deny the right of the applicant for renewal of the passport.It directed the authorities to analyzethe eligibility of the applicant as required under the provisions of the Passport Act, 1967, and pass orders in accordance with its provisions, adhering to the note that, The court said that the rights of persons applying for a passport renewal are regulated by the Passport Act. If you are perplexed by a similar situation, here we have covered court procedures to follow in getting passport/visa clearance during the pendency of criminal cases.
1. Collect relevant documents of proof against your charge sheet.
The accused can apply for a passport however, firstly, he/she must make sure he has all the relevant documents of proof and reasons for the same as they will be required to clear the charge sheet. For instance, the PCC, i.e., Police Clearance Certificate, also called “proof of your good conduct”is essential.
However, depending on the criminal charges recorded against the person, you may also need other documents.
2. Make an application before the concerned Hon’ble court.
Once you have compiled and verified all the essential proof documents with the concerned authorities, you will have to apply before the court where the matter is pending with appropriate prayers. The said application should contain the details of your pending case attached with all the relevant documents thereof and the itinerary containing the details of the trip. The court may consider different valid reasons or parameters for granting permission from case to case.
3. Apply to the passport office.
Lastly, you can apply to the passport office seeking renewal or application of your passport/visa, fulfilling all other required protocols as directed by them to proceed further.
1. Prasanth vs Union Of India on 11 January 2022
In this case, the High Court of Kerala made it clear that a person is entitled to a Police Clearance Certificate, only if there is no adverse information that would render him/her ineligible for a grant of travel facilities. There should be no second thoughts or dispute to the fact that the pendency of a criminal case, though not a reason which would render a person ineligible for travel abroad, is still a piece of adverse information. The law obligates that if a criminal case is pending, a passport can be obtained only with the court's permission.
The abovementioned legal procedures are subjective in nature. Therefore, the steps explained above are not a substitute of any legal advice or opinion; however, they intend to create legal awareness. You must consider taking advice from a professional lawyer for your specific case, as the severity of the criminal charges may differ and can attract diverse provisions of the law. The lawyer can help you professionally in the clearance of charges or getting a passport or visa.