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2014 DIGILAW 191 (JK)

Noor Jahan Begum v. Union Of India

2014-05-02

DHIRAJ SINGH THAKUR

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1. The petitioner challenges the order dated 16th July, 2013, issued by the Passport Officer, Srinagar, rejecting her request for issuance of passport on the ground that the provisions of Section 6(2) (b) (c) & (d) of the Passports Act, 1967 were attracted in her case. 2. Briefly stated the material facts are as under: The petitioner claims to be a senior citizen aged 73 years was holding a valid international passport bearing No. T 775491 issued by the Regional Passport Officer, Jammu, which is stated to have expired on 27th June, 2005. On expiry of her passport, she applied for a fresh one on 27th June, 2005. Failure on the part of the official respondents to pass any orders on her application forced the petitioner to approach this court in OWP No. 320/2013, which was disposed of by virtue of judgment and order dated 3rd April, 2013, directing the respondents to take a decision on the application of the petitioner within a period of four weeks from the date of the order. It is pursuant to this order dated 3rd April, 2013 that the impugned order dated 16th July, 2013 came to be passed. 3. Heard the counsel for the parties. The order impugned, passed by the Passport Officer, Srinagar, reads as under: "You had applied for passport to this office vide file No. R001807/2011. Accordingly Personal Particular forms were sent to the CID Hqrs J&K for verification. CID Hqr vide no. CID/NR/13/000400 dated 26-06-2013 did not clear your case and conveyed it as "NOT RECOMMENDED". In compliance to the directions of Hon'ble court the case was again sent to CID Hqr for detailed report. Detailed report received from CID Hqr dated 06.07.2013 inter-alia reveals that "The adopted son of the petitioner namely Manzoor Ahmad Baba has crossed over to Pakistan Occupied Kashmir in the year 1990 for obtaining illegal arms and ammunitions training and is still there. Keeping in view of adverse family background and in the interest of the security and integrity of the state, the case of the petitioner was send as "Not Recommended". Keeping in view of adverse family background and in the interest of the security and integrity of the state, the case of the petitioner was send as "Not Recommended". It is also possible that the petitioner/ applicant is in fact going abroad on a special assignment of the militant group working in J&K. Under these circumstances if the petitioner/Applicant is allowed to go abroad on the strength of Indian Passport, she may indulge in activities prejudicial to the security, sovereignty and integrity of J&K state and India. Further her departure will be prejudicial to the friendly relations of India with the country to which she intend to visit." It has also been recommended in these reports that the petitioner falls within the ambit of Sec 6(2) of the Passport Act 1967. In light of CID Hqr report your case was found to attract sec 6(2)(b)(c) & (d) of the Passport Act 1967. Pertinent to mention here that Clear Pre-Police Verification (PVR) is mandatory for issuance of Passports and J&K CID is the Nodal Agency in this regard. In light of the above facts your application for issuance of Passport is REFUSED. In case you have any grievance against this decision, you may appeal to the Joint Secretary (CPV) and Chief Passport Officer Ministry of External Affairs, Patiala House New Delhi within 30 days from the date of the receipt of the order (under section 11 of the Passport Act, 1967) who is Appellant Authority under the Passport Act." From a reading of the order impugned, it is clear that the only ground for refusing the passport was that so called adopted son of the petitioner, namely, Manzoor Ahmad Baba, has crossed over to Pakistan Occupied Kashmir in 1990 for obtaining illegal arms and ammunition training and that it was possible that the petitioner was in fact going abroad on special assignment of the militant group working in J&K and may, therefore, indulge in activities prejudicial to security, sovereignty and integrity of the State and India and that it would be prejudicial to the friendly relations of India with the country to which she intended to visit. 4. The factum of the petitioner having adopted a son by the name of Manzoor Ahmad Baba, has been specifically denied by the petitioner in her writ petition. 4. The factum of the petitioner having adopted a son by the name of Manzoor Ahmad Baba, has been specifically denied by the petitioner in her writ petition. It is stated that it is the petitioner's daughter who is married in Pakistan and she intends to visit her before she breaths her last being a senior citizen. 5. In Satwant Singh Sawhney v. D. Ramarathnam, AIR 1967 SC 1836 , the Apex Court held, inter alia, that the right to travel abroad was a part of persons personal liberty as enshrined under Article 21 of the Constitution which could not be denied except in accordance with the procedure established by law. At that time, however, there was no law like the Passport Acts, 1967, and passports at that time were issued by the Government in terms of its executive powers. It was in that context that the court held that the Government's claim to exclusive discretion in the issuance of passports violated not only a persons fundamental right under Article 21 but even was violative of Article 14 of the constitution. It was in that background that the Passports Act, 1967, came to be enacted which today regulates the issuance of passports in the Country. 6. Section 5 of the Passports Act, 1967, envisages filing of an application for issuance of a passport in the prescribed form as also envisages payment of fee and other formalities. Section 5(2) envisages the issuance of the passport by the Passport Authority after making such inquiry, if any, as it may consider necessary, subject to other provisions of the Act. Section 6(2) of the Act envisages refusal to issue a passport or travel document on any of the grounds mentioned in sub-clauses (a) to (i). For purposes of present controversy Section 6(2), a, b, c and d are relevant and are reproduced herein:- "6. Refusal of passport, travel documents etc.-- (1)............ (2) Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and on no other ground, namely:- (a) ...... Refusal of passport, travel documents etc.-- (1)............ (2) Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and on no other ground, namely:- (a) ...... (b) that the applicant may, or is likely to, engage outside India in activities prejudicial to the sovereignty and integrity of India; (c) that the departure of the applicant from India may, or is likely to, be detrimental to the security of India; (d) that the presence of the applicant outside India may, or is likely to, prejudice the friendly relations of India with any foreign country; ..........." 7. While the protection of personal liberty guaranteed under Article 21 of the Constitution is available to a person, the said right cannot be claimed as a matter of right by a person who is an anarchist or a person attempting to destabilize the security and integrity of our State. It is precisely for those reasons that the provisions of Section 6(2) sub-sections (a) to (i) have been incorporated in the Passports Act, 1967. In the backdrop of the aforementioned facts and the law, the respondents would certainly be justified in refusing the passport in favour of the petitioner had there been any iota of allegation against the petitioner herself or her involvement in any subversive activities which could be deemed to be activities prejudicial to the security, sovereignty and integrity of the State or the Country. It should have been the activities of the petitioner which should have formed the basis either for permitting or rejecting the request for issuance of passport in her favour. The basis of rejection in the order impugned does not have any reasonable relation or nexus with the activities of the petitioner as the same do not even remotely connect the petitioner with any activity which could be termed as prejudicial to the security, sovereignty and integrity of the State or the Country. The order impugned is based upon material which can be said to be nothing but in the realm of speculation. The petitioner cannot be deprived of her right as enshrined under Article 21 of the Constitution on the basis of the alleged misdemeanors of her brother. 8. The order impugned is based upon material which can be said to be nothing but in the realm of speculation. The petitioner cannot be deprived of her right as enshrined under Article 21 of the Constitution on the basis of the alleged misdemeanors of her brother. 8. The petitioner cannot be refused a passport only on account of the allegation that she has adopted a son by the name of Manzoor Ahmad Baba, who had passed over to Pakistan Occupied Kashmir and that the petitioner by visiting Pakistan may be in fact on a special assignment of the militant groups working in the Jammu & Kashmir. This is nothing but in the realm of speculation. The petitioner cannot be deprived of her fundamental right guaranteed to her under Article 21 of the Constitution of India on the allegations as stated in the order impugned. 9. For the reasons mentioned hereinabove, the petition is allowed. The order impugned is set-aside. The respondent, Passport Officer, shall reconsider the entire matter and pass fresh orders after affording an opportunity of hearing to the petitioner. Let the requisite orders be passed within a period of four weeks from the date of this order. Needless to say that while passing the order afresh, the personal conduct and activities of the petitioner only shall be taken into consideration while accepting or rejecting the application for issuance of such a passport.