Prashant Bhushan challenges passport restrictions in Supreme Court

The Supreme Court today issued notice to the Central Government in a petition filed by advocate Prashant Bhushan challenging the Constitutionality of Section 6(2)(f) of the Passports’ Act 1967 and Notification GSR 570(E) dated August 25, 1993..A Bench comprising Justice Jasti Chelameswar and AM Sapre issued notice to the Central government in the matter. Senior Advocate Jayant Bhushan appeared for the petitioner..The petition is an appeal against a judgment of the Delhi High Court..Section 6(2)(f) of the Passport Act empowers the passport authority to refuse issuance of passport if the proceedings in respect of a criminal offence is pending against the applicant before a criminal court in India. The petitioner has alleged that the said provision is violative of Article 14 since it fails to distinguish between a person who is accused of having committed a serious crime and a person who is accused of a minor offence..“By imposing the same restriction for all those against whom a criminal case may be pending before any court, Section 6(2)(f) treats unequals as equals and thereby violates the equality clause of Article 14 of the Constitution of India..In a case of bailable offence, a person against whom any criminal case is pending shall get bail as a matter of right, however, such a person is still restricted by Section 6(2)(f) of the Passports Act and can get a passport with a validity of only one year. Similarly, in a case where there is a case pending against a person for having committed a non-bailable offence, the court where the person applies for bail has the opportunity to give bail upon the condition that the person may not travel or may travel under certain stipulated conditions. The concerned court has all the right and the opportunity to put conditions of travel upon a person against whom a criminal case in pending. But in case where the concerned court chooses not to impose any condition, to give power to the passport authority to deny the passport violates Articles 14 and 21….”.He has further assailed the said provision as violative of Articles 14 and 21 on the ground that,.“…a person accused of a crime is presumed to be innocent and restrictions on his personal liberty can only be imposed the criminal court concerned where his case is brought for trial. If the court concerned does not choose to impose any restriction on the liberty of the accused, then the executive cannot deny a passport to a person merely because some criminal case is pending against him. Therefore the Section 6(2)(f) violates Article 14 and 21 of the Constitution and is liable to be set-aside.”.Bhushan has also pointed out an anomaly in the impugned provision in that the restriction will hit only a person who is applying for a passport or whose passport needs to be renewed..“Thus, a person who has, for instance, 9 years of validity left in his passport and becomes an accused in a criminal case, would not face any restriction, but a person who needs to get his passport reissued for some reason (as in the case of the petitioner) will. Therefore the said restriction is arbitrary, unreasonable and also discriminatory, and thus in violation of Article 14 and 21 of the Constitution.”.The petitioner has also assailed notification no. GSR 570(E) dated 25.08.1993 issued by the Central Government which mandates that a person against whom there is a criminal case pending in any court in India, must approach the concerned court seeking an order permitting him/her to depart from India..“….if the Court concerned has not found it fit to impound the passport of an accused or has not laid any restriction on his foreign travel, then merely because a person’s passport is coming up for renewal or reissue, he cannot be forced to first seek an NOC from the court only because some case is pending against him. A person who holds a valid passport would not face this restriction, but only a person who does not hold a passport or whose passport requires a renewal will. Therefore the said restriction is arbitrary, unreasonable and also discriminatory, and thus in violation of Article 14 of the Constitution. This notification is also arbitrary since it makes no distinction between persons facing charges of committing heinous offences and those charged with mere presence in an assembly which the police deems to be unlawful (as in the case of the petitioner).”.The notification has also been challenged on the ground that even after an NOC from the Court concerned is received by an accused, the passport shall be issued or renewed only for a short period of 1 year and the same is unreasonable and arbitrary..“…since once the Court has given its no objection to an accused travelling abroad, there can be no justification for restricting the passport validity for 1 year. Only if the Court itself states that a limited validity period passport be issued to a particular accused, then only a limited validity passport may be issued.”.Jayant Bhushan, appearing for the petitioner, argued today that government’s travel advisory as well as international guidelines with regard to travel to many countries require a passport holder to have 6 months of validity left on his passport (beyond the duration of travel) in order to apply for a visa. Since the petitioner is being repeatedly issued a short validity passport of one year, it has rendered him effectively ineligible to travel abroad for a large part of the year, thereby violating his Right to Life under Article 21 of the Indian Constitution..The Court issued notice to the Central government and directed that the case be listed after 3 weeks.