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Liberty of the person is one of the ancient concepts to be protected by National Courts.

The English Magna Carta,  provided that,

“No freeman shall be taken or imprisoned… but… by the law of the land.”

Personal liberty has similar roots and has been well defined time and again by the Indian Legal framework. Futhermore, Personal Liberty within the meaning of Article 21 includes in its ambit the right to go abroad.

The Apex court with the pronouncement of the landmark Judgment of Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer expanded the scope of freedom to travel and equated the same to a fundamental right and a constitutional protection. Consequently thereupon, no person can be deprived of this right except according to procedure prescribed by law.

Prior to the enactment of the Passports Act, 1967, there was no law regulating the right of a person to go abroad and that was the reason why the order of the Passport Officer refusing to issue passport to the petitioner in Satwant Singh’s case was struck down as invalid. The protection envisaged under article 21 is limited. It safeguards the right to go abroad against executive interference which is not supported by enacted law or State law.

Thereby, no person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure.[1]

What act says

Article 21 in crisp and clear terms states-

“No person shall be deprived of his life or personal liberty except according to procedure established by Law.”

In the eyes of law

The Right to travel is, however, a Constitutional Right and is a facet of Personal Liberty.

As the Society evolves, so evolves the Law. There was an era in the year 1950, wherein for the Hon’ble Supreme Court of India discussed about the scope of Article 21, in the case of A.K. Gopalan v. Union of India and a narrow scope was assigned to the ‘deprived’, used in Article 21. However, in the case of Maneka Gandhi v. Union of India[2], the word ‘Personal Liberty’ was given a much broader scope, which certainly was a time turner and has thereby uncovered numerous Rights, some of which have been designated as individual Rights, and is now considered fundamental in order to lead a life with dignity.

Right to Travel as well, has now acquired the status of Fundamental Right; however it is not an Absolute Right. Reasonable restrictions can be imposed upon the Right to Travel. Justice M. Venugopal once made an observation, in response to a contention by an accused, charge-sheeted by CBI in a criminal offence, that no-one could be deprived of his or her right to travel abroad under Article 21 of the Constitution, except according to the procedure prescribed by Law.

With the widening of legal outreach, Right to Travel is granted even to the accused persons. The cardinal principle of ‘Presumption of Innocence’ alongwith the Principles of Natural Justice, envisages that every person shall be presumed to be innocent unless proved guilty by a competent court of law. Hence, with the progressive approach of law adopted, the Hon’ble Delhi High Court in the case of Nandini Bhatnagar  Vs. State, has stated that

“… Court also takes judicial notice of the fact that the condition of obtaining prior permission before leaving the boundary of Delhi is a cumbersome one as the permission takes time and causes hardship to the petitioner. This Court is of the view that the impugned condition would certainly restricts the accused’s fundamental right to travel.”

In addition to which, the Hon’ble Delhi high court highlighted that

                “ …..the accused’s right to travel can be curtailed by a reasonable, transparent and fair procedure, but in the opinion of this Court such a restriction should be rarely imposed by the trial court while granting bail and that too, for cogent reasons.

Similarly, the Hon’ble Delhi High Court in the case of Sanjeev Nanda v. C.B.I took reasonable care that the lengthy legal procedure of seeking permission to travel abroad, undertaken by a petitioner may not take away his fundamental Right to Travel. Therefore, the Hon’ble court

 “Trial court is cautioned to ensure that the hearing in such like applications ought not to be deferred by just writing “no time left”, as such like applications have to be promptly dealt with, so that, purpose of seeking permission is not frustrated.”

To sum up, it would not be incorrect to mention that travel abroad is a cultural enrichment which enables one’s understanding of one’s own country in better light. The right of free movement is a vital element of personal liberty. 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. Also, Personal liberty makes for the worth of the human person. Travel makes liberty worthwhile.[3]

Drafted By-

Rohit Gaur, Advocate, Prosoll law Inc.

[1] Maneka Gandhi v. Union of India; AIR (1978) SC 597

[2] AIR (1978) SC 597

[3] Maneka Gandhi v. Union of India


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