Right to hold passport
The right to hold passport was recognized in the case of Maneka Gandhi v Union of India (AIR 1978 SC 597). The Apex Court of India gave a liberal interpretation to Article 21 of the Constitution of India and it was observed by the Court that the right to hold a passport is a fundamental right.
Renewal v. Reissuance of passport
The person against whom a criminal case is pending needs to seek permission from the court for reissuance of passport. The court where the criminal case is pending has the jurisdiction to exercise the discretion by scrutinizing the relevant facts of the case, documents, etc. to permit reissuance of the passport.
The government is empowered to revoke a passport on reasonable grounds, such as if a person is involved in criminal activities. But pendency of a criminal case against a person cannot be a sole ground to deny renewal of a passport.
Recently, the High Court of Bombay directed the passport authorities to not reject the passport renewal application of any person merely due to the pendency of criminal proceedings against him. Justice Amit Borkar of the High Court of Bombay observed that merely because the pendency of offences under Sections 406, 420, 120(b) read with 34 of IPC, it cannot be a sufficient ground for denial of right to the applicant for renewal of the passport.
In the case of Asutosh Amrit Patnaik Vs State of Orissa (Orissa High Court) Appeal Number, W.P. (C) No.4834 of 2022, it was held by the High Court of Orissa that a renewal of passport cannot be rejected merely on ground of pendency of criminal proceedings against a person.
NOC granted to Rahul Gandhi
The Delhi Court granted no objection for issuance of a fresh passport to Rahul Gandhi for a period of three years. The Court of Additional Chief Metropolitan Magistrate partly allowed the application moved by Mr. Gandhi. In the application he sought no objection for issuance of fresh ordinary passport for 10 years, however Court granted NOC for three years. Rahul Gandhi surrendered his diplomatic passport as he disqualified as a Member of Parliament.
Rahul Gandhi moved the application in the National Herald case, the case was filed by ex-MP Subramanian Swamy against Gandhis. In December 2015, Rahul Gandhi and Sonia Gandhi, were granted bail in the National Herald case. No conditions were put by the Court pertaining to travel on him. The application was opposed by Swamy on the ground that Rahul Gandhi had no valid reason for issuance of the passport for 10 years.
Gandhi’s Disqualification as MP
Rahul Gandhi was disqualified as a Member of Parliament (MP) after he was convicted in a criminal case of defamation in 2019 campaign rally, Mr. Gandhi in that rally had commented that “all thieves have the surname Modi.”
A defamation case was filed by a former Gujarat Minister named Mr. Purnesh Modi, he claimed that Mr. Gandhi had insulted people with Modi surname. The Magistrate accepted it and sentenced Mr. Gandhi to two years in prison, it disqualifies automatically a legislator from the House.
An appeal was filed before the Sessions Court, however, the Court refused to stay this verdict. But the court granted Gandhi with relaxation and delayed his sentence until his appeal was heard. The case is pending before the Gujarat High Court, and will be heard soon.
Application opposed by Swamy
It was stated by Swamy in his response that “The Application is devoid of any merit for issuance of Passport for 10 years”. That no objection certificate for issuing passport must be given for 1 year and not beyond that, the issuance of the passport must be reviewed annually.
It was further contented that holding a passport is not a Fundamental Right, and the same is not an absolute Right and subject to reasonable restrictions that are imposed by the Government for maintaining national security, morality, public order, and prevention of crime.
Contentions of Gandhi’s advocates
It was argued by the legal team of Gandhi that there were no pending criminal cases against Mr. Gandhi and right to travel abroad is a fundamental right. It was further stated that as Gandhi is not a Member of Parliament and as he has surrendered his diplomatic passport, hence, he is now applying for a fresh ordinary passport.
Advocate Tarannum Cheema appeared for Mr. Gandhi, opposed the claims of Mr. Swamy and highlighted that the passport should be issued for ten years. That similar relief had been granted by higher courts in cases with more serious offenses. That no charges had been framed in the National Herald case that was registered on a criminal complaint by Subramanian Swamy against Sonia Gandhi, Rahul Gandhi, accusing them of cheating, conspiracy, and criminal breach of trust.
After hearing both the parties, the Court has granted no objection for issuance of a fresh passport to Rahul Gandhi for three years.
Prashant Bhushan Passport reissuance case
The Patiala House Metropolitan Magistrate granted Mr. Bhushan an NOC, but no duration of validity of the passport was specified by the Magistrate. Hence, the passport was issued on 12 September 2014 – valid only till 11 September 2015. An Appeal was filed before the Delhi High Court against the order, however, the same was rejected by the High Court. Mr. Bhushan moved to the Supreme Court.
In the petition Mr. Bhushan challenged Section 6(2)(f) of the Passports’ Act 1967 r.w. Notification 570(E) of the Central Government which says that a person against whom if there is any criminal case pending, then the accused has to obtain an NOC from that Court. It further says that if the NOC is silent regarding the duration of issuance of the passport, then it shall be issued only for one year and not with a validity of 10 years.
Conclusion
In the case of Prasanth v. Union Of India, 2022, the High Court of Kerala clarified that a person is entitled to a Police Clearance Certificate, if there exists no adverse information that would render that person ineligible for a grant of travel facilities. It was further stated by the court that pendency of a criminal case, cannot be a reason to render a person ineligible for travel abroad. However, as per the law if a criminal case is pending, then a passport can only be obtained with the permission of the court.
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