SYSTEM OF GOVERNANCE

ASSIGNMENT ON

MANEKA GANDHI: IMPACT ON GOVERNANCE

Submitted by

Bibhu Kaibalya Manik

Roll No. 1685005, LLM

KIIT School of Law

Maneka Gandhi: Impact on Governance

The Supreme Court of India adopted a new activist approach that expanded the scope of fundamental rights after criticized heavily by all section of society for taking wrong stands during emergency in 1975. In Maneka Gandhi v. Union of India, The Supreme Court 1

restored the citizen’s faith in judiciary. It is not only a landmark case but it also gave new view point to the Chapter III of the Constitution. 2

BRIEF FACTS OF THE CASE

Smt. Maneka Gandhi was issued a passport on June 1, 1976 under the Passport Act 1967.On the 4th of July, 1977; she received a letter from the Regional Passport Office, Delhi, asking her to submit her passport within seven days from the day on which she had received such letter, i.e. before 11th July 1977. The letter stated that it had been the decision of the Government of India to impound her passport under Section 10(3)(c) of the Passport Act 3

1967. The grounds for such an impounding, as told to her, were “public interest.”

Smt. Maneka Gandhi immediately sent a letter to the Regional Passport Officer, inquiring about the grounds on which her passport had been impounded. She also requested him to provide a copy of the ‘Statement of Reasons’ for making of such an order. The reply sent by the Ministry of External Affairs was that it was the decision of the Government of India to impound the passport in the interest of the general public. Also, there were orders to not issue her a copy of the Statement of Reasons. Smt. Maneka Gandhi thus filed a petition with regards to the matter. JUDGEMENT OF THE CASE It was held that Section 10(3) (c) of the Passport Act confers vague and undefined power on

the passport authorities; it is violative of Article 14 of the Constitution since it doesn’t 4

provide for an opportunity for the aggrieved party to be heard. It was also held violative of Article 21 since it does not conform to the word “procedure” as mentioned in the clause, and 5

the present procedure performed was the worst possible one. The Court, however, refrained from passing any formal answer on the matter, and ruled that the passport would remain with the authorities till they deem fit. RATIO DECIDENDI OF THE CASE Section 10(3)(c) of the Passports Act confers unlimited powers on the passport authorities.

Since it is vague in its wordings, the application of such a provision has not been very clearly defined in the Act. Thus, this leaves a lot of scope for the executive to interpret it in whichever way they want, and hence get away with a lot of actions under the guise of varied interpretation. It is true that the Passports Act does not provide for giving reasonable

1 (1978) 1 SCC 248: AIR 1978 SC 597: (1978) 2 SCR 621: 2 Fundamental Rights(Art. 12­35) 3 The passport authority may impound or cause to be impounded or revoke a passport or travel document,— if the passport authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public.”See also : https://indiankanoon.org/doc/83644/ “ 4 Equality before law­The State shall not deny to any person equality before the lawor the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, “See also : https://indiankanoon.org/doc/367586/ “ 5 No person shall be deprived of his life or personal liberty except according to procedure established by law, “See also : https://indiankanoon.org/doc/1199182/ “

opportunity to the holder of the passport to be heard in advance before impounding a passport. But that is not conclusive of the question. If the statute make itself clear on this point, then no more question arises but even when statute is silent the law may in a given case make an implication and apply the principle. Natural justice is a great humanising principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. NEW DIMENSIONS AND IMPACTS

The judicial pronouncement before the case of Maneka Gandhi Vs Union of India were not satisfactory in providing adequate protection to the ‘right to life and personal liberty’ guaranteed under Article 21 of the constitution of India . Maneka Gandhi Vs Union of India is a landmark judgment and played the most significant role to establish good governance. Wider Scope for Personal Liberty Bhagwati, J. observed:

“The expression „personal liberty‟ in Article 21 is of widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have raised to the status of distinct fundamental rights and given additional protection under Article 19.”

6

With respect to the relationship between Art. 19 and Art. 21, the Court held that Art. 21 is 7

controlled by Art. 19 and must satisfy the requirement of it. The Court observed: “The law must therefore now be settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of personal liberty, and there is consequently no infringement of the fundamental right conferred by Article 21 such a law in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenges of that Article.”

8

Thus a law “depriving a person of „personal liberty‟ has not only to stand the test” of Article 21 but it must stand the test of Art. 19 and Art. 14 of the Constitution. The principles of natural justice are implicit in Article 21 and hence the statutory law must not condemn anyone unheard. A reasonable opportunity of defence or hearing should be given to the person before affecting him. Article 14, 19 and 21 of the constitution­ composing the “golden triangle” have been invoked most often to declare legislation or arbitrary state action invalid. In Bachan Singh v. State of Punjab the Court by citing Maneka Gandhi upheld that the 9

validity of the death penalty under section 302 of the IPC read with section 354 of Cr.P.C code against the challenge based on Articles 14, 19 and 2 Interpretation of “Procedure Established by Law and Due Process of law” The Supreme Court not only broadened the meaning of “personal liberty” but also adopted the theory of “due process” in “procedure established by law”. P.N. Bhagwati, J held that expression

6See :Indiankanoon.org , https://indiankanoon.org/doc/1766147/ , Maneka Gandhi V. Union of India, (1978) 1 SCC 248 7 Protection of certain rights regarding freedom of speech etc ­ All citizens shall have the righ(a) to freedom of

speech and expression;(b) to assemble peaceably andwithout arms;(c) to formassociations or unions;(d) tomove

freely throughout the territory of India;(e) to reside and settle in any part of the territory of India; and(f)

omitted(g) to practice any profession, or to carry on any occupation, trade or business , “See also

https://indiankanoon.org/doc/1218090/ “ 8Maneka Gandhi V. Union of India, (1978) 1 SCC 248 9 AIR 1980 SC 898 : (1980) 2 SCC 684

“Any law interfering with personal liberty of a person must satisfy a triple test: (i) it must prescribe a procedure; (ii) the procedure must withstand a test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and (iii) it must also be liable to be tested with reference to Article 14.”

10

The majority of the seven judge bench stated that any procedure established by law under article 21 would have to be “fair, just and reasonable” and it differed from the Satwant Singh case by establishing that even in presence of a law, an arbitrary law will not be 11

considered. The Supreme Court after this judgement became the watchdog of the constitution instead of supervisors. In Sunil Batra v. Delhi Administration , a successor case of Maneka 12

Gandhi, the principle of just and proportionate punishment and content of due process was imported to Article 21. Interpretation of Audi Alteram Partem Rule

The audi alteram partem rule is one of the three principles of natural justice, and forms an important part in defining the constitutionality and fairness of any procedure. The audi alteram partem basically means that both the sides should be given the opportunity to present their case before a decision is formulated for the case. The court held that according to the “audi alteram partem ” theory, impounding Mrs Gandhi’s passport without giving her a hearing violated procedure established by law. By interpreting natural justice and article 21 in Maneka Gandhi Case the Supreme Court set an example of good governance. Right to Go Abroad The fundamental rights were conceived by the Constitution makers not in a narrow limited since but in their widest sweep, for the aim and objective was to build a new social order where man will not be a mere plaything in the hands of the State or a few privileged persons but there will be full scope and opportunity for him to achieve the maximum development of his personality and the dignity of the individual will be fully assured. The Court in the course of this case opined that the right to freedom of speech and expression, as guaranteed to all the citizens of the country, was limitless in that it had given to the citizens a vast number of rights irrespective of whether they were in India or abroad. The Court held that if the Constitution makers had intended this right to be bound by the territories of the country, then they would have expressly mentioned so as they have done for various other rights, such as the right to settle down freely, or the right to assemble freely. However, since no such words had been added at the end of this provision, the Court felt that it was its duty to give it the widest interpretation possible. Expansion of Judicial Review and Judicial Activism

In Maneka Gandhi, the Court dramatically expanded the scope of judicial review , reading due process protections into the Constitution and creating a new standard of “non arbitrariness.” In addition, the Court subjected laws that impinged upon fundamental rights to a higher tier of judicial scrutiny under the due process protections of Article 21 of the Indian Constitution, the non arbitrariness standard of Article 14, and “reasonableness” review in Article 19.

10See indiankanoon.org , https://indiankanoon.org/doc/1766147/ ,Maneka Gandhi V. Union of India, (1978) 1 SCC 248 11 1967 AIR 1836, 1967 SCR (2) 525 , The parliament enacted the Passport Act, 1967 to regulate how passports would be issued, revoked, impounded or revoked­ matters on which legislation did not exist earlier.

12 1980 AIR 1579, 1980 SCR (2) 557

Due to the revolution created by the MANEKA GANDHI JUDGEMENT. The concept of PIL started taking shape which was pioneered by the great Justice P.N Bhagwati who took cognizance of the fact that in certain circumstances, A PIL may be introduced in a court of law by the court itself (suo motu ), rather than the aggrieved party or another third party.

Justices V.R. Krishna Iyer, P.N. Bhagwati, Chief Justice Chandrachud, and others, embraced a new phase of procedural activism in PIL. The Court’s activism consisted of three key innovations. First, the Court expanded popular access to the Court by liberalizing formal pleading and filing requirements and broadening standing for PIL suits. Second, the Court innovated new judicial non­adversarial procedures of investigation and fact­finding. Finally, the Court expanded the scope of its equitable and remedial powers. Expansion of Article 21 The Maneka Gandhi Case became a landmark case which put a great impact on governance and in later period such case is being cited when any new challenge arises for judiciary system. In Unni krishnnan v. State Of AP the Apex Court expanded the scope of Article 21 by 13

providing certain list of rights such as Right to Privacy, Right to Shelter, Right to Go Abroad, right to Social justice and Economic empowerment, Right Against Solitary Confinement, Right Against Hand Cuffing , Right against Delayed Execution, Right Against Public Hanging . In Francis Coralie v. Union territory of Delhi the court held that right to socialise with 14

family members and friends as well as to have interview with lawyer are coming under Article 21 .

In Mithu v. State of Punjab the Supreme Court found mandatory death sentence under 15

section 303 of IPC is unconstitutional. Citing Maneka Gandhi the Supreme Court confirmed the right of prisoner to be heard is meaningless when sentence in question was mandatory.

Fallowing Maneka Gandhi in Union Democratic Rights v. Union of India and in 16

Chandra Raja kumara v. Police Commissioner Hyderabad cleared the concept of Human 17

dignity and right to life of women and workers. Gradually in various cases judiciary expanded Article 21 like Right to Privacy in R.Rajagopal v. State of T.N , Right to Shelter in 18

Chameli Singhi v. State of U.P , Right to Livelihood in Olga Tellis v. Bombay Municipal 19

13A.I.R. 1993 SC 2178 14 1981 AIR 746, 1981 SCR (2) 516. 15(1983)2 S.C.R .690, “See: THE GLOBAL DECLINE OF THE MANDATORYDEATHPENALTY: byAndrewNovak, 2014 ,Page­ 38.” 16 AIR 1982 SC 1473,”See: THE CONSTITUTIONAL LAW OF INDIA , 46TH EDITION,CENTRAL LAW AGENCY , J.N.PANDEY, PAGE­233.” 17 AIR 1998 AP 302 ,”See: THE CONSTITUTIONAL LAW OF INDIA , 46TH EDITION,CENTRAL LAW AGENCY , J.N.PANDEY, PAGE­233.” 18 (1994)6 SCC 632. 19 (1996) 2 SCC 549.

Corporation , Right to Health in Parmananda Katra v. Union of India , Right to get 20 21

pollution free water and air in Subhas Kumar v. State of Bihar , Right to Speedy Trial in 22

Hussainara Khatoon v. Home Secretary,State of Bihar , Right against handcuffing in Prem 23

Shankar v. Delhi Administration , Right to Life of Non­citizens in National Human Rights 24

Commission v. State of Arunachal Pradesh , Right against inhuman treatment in Kishore 25

Singh v. State of Rajasthan . 26

CONCLUSION Maneka Gandhi Case added colours to the colourless article. Article 21 developed the jurisprudence of its own and it helped to achieve the objective of good governance. Proper analysis and interpretation of Right to Life is made in this case, which was ambiguous and questionable from many scenarios before Maneka Gandhi. It can be said that Maneka Gandhi case, gave the term „personal liberty‟ widest possible interpretation and gave effect to the intention of the drafters of the Constitution. This case, while adding a whole new dimension to the concept of “personal liberty”, extended the protection of Article 14 to the personal liberty of every person and additional protection of Article 19 to the personal liberty of every citizen. A most significant consequence of Maneka Gandhi is expansion of article 21 and by effect of this many of the Non­justifiable Directive Principles have been converted into ENFORCEABLE FUNDAMENTAL RIGHTS by the hands of judges. The Supreme Court has found Article 21 to incorporate the substantive freedom that serves as means to remove major areas such as poverty, poor economic opportunities as well as systematic social deprivation. Guarantees of economic opportunities and protection against social deprivations were established in various decisions:Quality of life, Right to Livelihood, Right to medical care, Sexual Harassment, Ecology and Environment, Right to Privacy. With the changing generation the concept of Democracy and functioning of governance is also changing bu the objective of governance is always remain same. Till now Maneka Gandhi case helped to establish proper essential rights of individual and I think in future also it will help to solve new challenges and establish more rights accordingly.

20 AIR 1986 SC 180: (1985) 3 SCC 545. 21 AIR 1989 SC 2039. 22 AIR 1991 SC 420. 23 AIR 1979 SC 1360. 24 AIR 1980 SC 1535. 25 (1996) 1 SCC 742. 26 AIR 1981 SC 625.