Passport authority cannot seek itinerary for renewal: SC

The Supreme Court on Friday said liberty, “in our constitutional scheme, is not a gift of the State but its first obligation,” as it held that passport authority was not required to demand a schedule of future journeys or visas at the stage of renewal.

A bench of Justices Vikram Nath and AG Masih said the task of the passport authority is only to see whether, despite pending proceedings, the criminal courts have chosen to keep the possibility of travel open under their supervision. “Liberty, in our constitutional scheme, is not a gift of the State but its first obligation.

The freedom of a citizen to move, to travel, to pursue livelihood and opportunity, subject to law, is an essential part of the guarantee under Article 21 of the Constitution of India,” it said.

The top court observed that the State may, where statute so provides, regulate or restrain that freedom in the interests of justice, security or public order but such restraint must be narrowly confined to what is necessary, proportionate to the object sought to be achieved and clearly anchored in law.

“When procedural safeguards are converted into rigid barriers, or temporary disabilities are allowed to harden into indefinite exclusions, the balance between the power of the State and the dignity of the individual is disturbed, and the promise of the Constitution is put at risk,” the top court said.

The top court passed the order on a plea of one Mahesh Kumar Agarwal, a convict in the coal block allocation scam facing trial in an NIA court in Ranchi, Jharkhand, under the Unlawful Activities (Prevention) Act, (UAPA) charges, who was seeking renewal of his passport deposited in court as a bail condition. But the passport expired in 2023.

The top court said, “The passport authority is not required, at the renewal stage, to demand a schedule of future journeys or visas which may not yet exist. Its task is to see whether, despite pending proceedings, the criminal courts have chosen to keep the possibility of travel open under their supervision.”

The top court noted that under Section 22 of the Passports Act, the central Government had issued notification GSR 570(E) dated August 25, 1993 by which citizens of India against whom proceedings in respect of an offence alleged to have been committed by them are pending before a criminal court in India were exempted from the operation of Section 6(2)(f), subject to certain conditions.

It said that on a plain reading, GSR 570(E) does two things – first, it recognises that persons facing criminal proceedings are not to be treated as absolutely disentitled to a passport and instead, it permits such persons to obtain a passport, notwithstanding Section 6(2)(f), where the concerned criminal court has applied its mind and passed an order in relation to issuance or use of the passport and where the applicant furnishes an undertaking to appear before the court as and when required.

The bench said secondly, the notification structures the exercise of that exemption by tying the validity and use of the passport to the terms of the court’s order.

“Thus, where the court specifies a period for which the passport is to be issued, the passport authority must honour that period. Where the court does not stipulate any period, the notification provides default rules, including issuance for a shorter period, ordinarily one year, in appropriate cases.

“What the notification does not do is to create a new substantive bar beyond Section 6(2)(f), or to insist that the criminal court must, in every case, grant a prior blanket permission to ‘depart from India’ for specified dates as a jurisdictional precondition to the very issue or re-issue of a passport,” it said.

Agarwal, who has challenged the denial of permission by the Calcutta High Court, sought the apex court’s direction to the Regional Passport Office, Kolkata, for renewal of the passport.

Noting that the NIA court, Ranchi, and the Delhi High Court, which has suspended Agarwal’s sentence in coal block allocation scam, and have granted no objection certificate for renewal of passports, the bench said, “In our view, once the criminal courts, with full knowledge of the pending proceedings, consciously allowed renewal subject to the condition that the appellant shall not travel abroad without their permission and, in the case of the NIA Court, required redeposit of the renewed passport, the underlying concern of Section 6(2)(f) stood adequately addressed under judicial supervision.”

It said nothing in the Passports Act requires the criminal court to convert every permission into a one-time licence to undertake a particular journey.

“The statute equally permits the court to allow renewal of the passport while retaining complete control over each instance of foreign travel by insisting on its prior leave, as both courts have done in the present case,” the bench said.

The top court said the NIA court, Ranchi, had granted no objection for renewal, released the passport for that limited purpose, directed redeposit after renewal and prohibited Agarwal from obtaining any visa or travelling abroad without its permission while the Delhi High Court, dealing with the conviction in the CBI case, then expressly held that there was no basis to deny renewal “for a regular period of ten years” and granted permission accordingly.

It set aside the high court orders and directed the passport authority to renew Agarwal’s passport.