Maneka Gandhi v Union of India (Supreme Court, 1978) — "procedure established by law" must be fair, just and reasonable

Before Maneka Gandhi, following A.K. Gopalan, Article 21 was satisfied by any procedure a competent legislature chose to prescribe, and a law depriving a person of liberty did not have to answer to Article 19. Maneka Gandhi reversed both propositions. Every later expansion of Article 21, from the right to livelihood to the right to privacy, builds on it.

The petitioner held a passport issued on 1 June 1976 under the Passports Act, 1967. On 4 July 1977 she received a letter from the Regional Passport Officer, Delhi, dated 2 July 1977, saying that the Government of India had decided to impound her passport under section 10(3)(c) of the Act "in public interest" and requiring her to surrender it within seven days. She asked for the statement of reasons that section 10(5) required; the Ministry of External Affairs replied on 6 July 1977 that the Government had decided "in the interest of the general public" not to furnish a copy. She petitioned under Article 32. The Government's affidavit disclosed that her presence was likely to be required before a Commission of Inquiry.

1. Is the right to go abroad part of "personal liberty" in Article 21?
2. Does "procedure established by law" in Article 21 mean any procedure the legislature enacts, or must the procedure be fair and reasonable?
3. What is the relationship between Articles 14, 19 and 21: must a law that satisfies Article 21 also satisfy Articles 14 and 19?
4. Did the impounding, without any hearing, comply with Article 21?

Personal liberty and the right to go abroad. The Court noted that some observations in A.K. Gopalan had placed "a narrow interpretation on the words ‘personal liberty’ so as to confine the protection of Article 21 to freedom of the person against unlawful detention", but that in Satwant Singh Sawhney the Court had held by a majority "that the expression “personal liberty” in Article 21 takes in the right of locomotion and travel abroad and under Article 21 no person can be deprived of his right to go abroad except according to the procedure established by law". Parliament had accepted that decision by enacting the Passports Act, 1967.

The procedure must be fair. The Attorney General "frankly stated that it was not possible for him to contend that any procedure howsoever arbitrary, oppressive or unjust may be prescribed by the law." Bhagwati J. found that even in Gopalan at least three of the five judges had "expressed themselves strongly in favour of the view that the procedure cannot be any arbitrary, fantastic or oppressive procedure", and held "that even on principle the concept of reasonableness must be projected in the procedure contemplated by Article 21, having regard to the impact of Article 14 on Article 21." The principle of reasonableness "pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it .would be no procedure at all and the requirement of Article 21 would not be satisfied."

Articles 14, 19 and 21 are not exclusive. The majority in Gopalan had taken the view "that so long as a law of preventive detention satisfies the requirements of Article 22, it would be within the terms of Article 21 and it would not be required to meet the challenge of Article 19", on the assumption that certain Articles deal exclusively with specific matters. The Court rejected that approach: a law depriving a person of personal liberty must also meet the requirements of Article 19 so far as it restricts any of the freedoms there, and of Article 14.

Natural justice. There was no express requirement in the Passports Act of a hearing before impounding, but the Court held that the audi alteram partem rule is implied. The rule "is sufficiently flexible to permit modifications and variations to suit the exigencies of myriad kinds of situations which may arise": the hearing "may be a sophisticated full-fledged hearing or it may be a hearing which is very brief and minimal: it may be a hearing prior to the decision or it may even be a post-decisional remedial hearing." The impounding of a passport without giving reasonable opportunity to show cause "cannot but be condemned as unfair and unjust". On the facts the Government undertook to give the petitioner a hearing, and the Court disposed of the petition on that footing.

"Procedure established by law" in Article 21 means a procedure that is right, just and fair, not one that is arbitrary, fanciful or oppressive; reasonableness, drawn from Article 14, is read into Article 21. Articles 14, 19 and 21 are not mutually exclusive: a law depriving a person of life or personal liberty must satisfy all three. Personal liberty includes the right to travel abroad, and a passport may not be impounded without a hearing.

The compilations describe the "triple test" a law interfering with personal liberty must now satisfy: it must prescribe a procedure; the procedure must withstand Article 19; and it must not infringe Article 14. Francis Coralie (dignity), Olga Tellis (livelihood), D.K. Basu (custodial safeguards) and Puttaswamy (privacy) all rest on this reading of Article 21.