Views/Observations of Judges
The previous post here discussed the facts, contentions of the parties and the decision as to the validity of the Passport Act,1967. In this post, the views expressed by various Judges in Maneka Gandhi case have been highlighted.
(a) CJ Beg concurring with Justice Bhagwati –
1. The right of travel and to go outside the country is included in the fight to personal liberty.
2. Article 21 though framed as to appear as a shield operating negatively against executive encroachment over something covered by that hield, is the legal recognition of both the protection or the shield as well as of what it protects which lies beneath that shield.
3. Articles dealing with different fundamental rights contained in Part III of the Constitution do not represent entirely separate streams of rights which do not mingle at many points. They are all parts of an integrated scheme in the Constitution. Their waters must mix to constitute that grand flow unimpeded .and impartial justice (social, economic and political), freedom (not only of thought, expression, belief, faith and worship, but also of association, movement vocation or occupation as well as of acquisition and possession of reasonable property), or equality (of status and of opportunity, which imply absence of unreasonable or unfair discrimination between individuals, groups and classes), and of fraternity (assuring dignity-of the individual and the unity of the nation) which our Constitution visualfses.
Isolation of various aspects of human freedom, for purposes of their protection, is neither realistic nor beneficial but would defeat very objects of such protection.
4. Blackstone’s theory of natural rights cannot be rejected as totally irrelevant. If we have advanced today towards higher civilization and in a more enlightened era we cannot lag behind what, at any rate, was the meaning given to ‘personal. liberty’ long ago by Blackstone. Both the rights of personal security and personal liberty recognised by what Blackstone termed ‘natural law’ are embodied in Act. 21 of the Constitution.
5. A ‘divorce between natural law and our constitutional law would be disastrous. It would defeat one of the basic purposes of our Constitution.
6. Even executive authorities when taking administrative action which involves any deprivation of or restriction on inherent fundamental rights of citizens must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirements of natural justice.
(b) Chandrachud, J. concurring with Bhagwati, J.
- The Constitution does not confer any power on the executive to prevent the exercise by an Indian citizen of the right of free speech and expression on foreign soil. The Constitution guarantees certain fundamental freedoms except where their exercise is limited by territorial considerations. Those freedoms may be exercised wheresoever one chooses subject to the exceptions or qualifications mentioned in Art. 19 itself. The right to go out of India is not an integral part of the right of free speech and expression. The analogy of the freedom of press being included in the right of free speech and expression is wholly misplaced because the right of free expression incontrovertibly includes the right of freedom of press. The right to go abroad on one hand and the right of free speech and expression on the other are made up basically of constituents so different that one cannot be comprehended in the other.
The fundamental rights in Part III of the Constitution represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent. But these freedoms are not and cannot be absolute, for absolute and unrestricted freedom of one may be destructive of the freedom of another. In a well ordered civilised society, freedom can only be regulated freedom.
The attempt of the Court should be to expand, the reach and ambit of the fundamental rights rather than attenuate their meaning and content by a process of judicial construction. The wavelength for comprehending the scope and ambit of the fundamental rights has been set by the Court in R. C. Cooper’s case and the approach of the Court in, the interpretation of the fundamental rights must now be in tune with this wave length.
There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi-judicial enquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it ‘negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable to quasi- judicial enquiry and not to administrative enquiry.
(c) Krishna lyer, J. , concurring with Bhagwati, J.
- Viewed from another angle, travel abroad is a cultural enrichment which enables one’s understanding of one’s own country in better light. Thus it serves national interest to have its citizenry see other countries and judge one’s country on a comparative scale. The right of free movement is a vital element of personal liberty. The right of free movement includes right to travel abroad. Among the great guaranteed rights life and liberty are the first among equals, carrying a universal connotation cardinal to a decent human order and protected by constitutional armour.
- The law is now settled that no article in Part III is an island but Part of a continent, and the conspectus of the whole part gives the direction and correction needed for interpretation of these basic provisions. Man is not dissectible into separate limbs and, likewise, cardinal rights in an organic constitution, which make man human have a synthesis.
(d) CJ Beg
Freedom of movement has been a part of our ancient tradition which always upheld the dignity of man and saw in him the embodiment of the Divine. Freedom of movement at home and abroad is a part of our heritage and, as already pointed out, it is a highly cherished right essential to the growth and development of the human personality and its importance cannot be over-emphasized.
The observations discussed above are relevant to understand the different viewpoints of the various Judges constituting the Bench. It need not be reiterated that these observations had an impact on widening the scope of Article 21, post this judgment. It became the basis for the future matters and allowed the petitioners to present their claiming asking for wide interpretation of Article 21 of the Constitution.
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