Pending Criminal Trials Cannot Justify Indefinite Denial of Passport: Supreme Court Reaffirms Article 21

Background of the Case

The Supreme Court of India has delivered a significant ruling clarifying the scope of personal liberty under the Constitution, holding that pending criminal proceedings cannot be a ground for indefinitely denying the renewal of a passport.

The judgment was delivered by a Bench comprising Justice Vikram Nath and Justice Augustine George Masih, allowing an appeal filed by Mahesh Kumar Agarwal, an accused in a National Investigation Agency (NIA) case related to alleged extortion and terror funding activities in Jharkhand’s coal mining belt.

The Court set aside judgments of the Calcutta High Court, which had earlier upheld the refusal of passport renewal by the Regional Passport Office (RPO), Kolkata.

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Factual Matrix

Mahesh Kumar Agarwal’s passport expired in August 2023. At the time:

• He was facing trial in an NIA case pending before a Special Court in Ranchi.

• He was also convicted in a CBI coal block allocation case, though his sentence had been suspended by the Delhi High Court.

Anticipating the expiry of his passport, Agarwal approached the concerned courts:

• The NIA Special Court permitted renewal of the passport subject to strict safeguards, including furnishing sureties, redepositing the passport after renewal, and seeking prior permission for any foreign travel.

• The Delhi High Court granted a “no objection” for renewal for the standard ten-year period, while continuing the condition that he could not leave India without court approval.

Despite these judicial permissions, the Regional Passport Office refused renewal, citing statutory restrictions under the Passports Act, 1967.

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Legal Issue Before the Supreme Court

The core question before the Supreme Court was:

Can passport authorities refuse renewal of a passport indefinitely solely on the ground that criminal proceedings are pending, even when competent criminal courts have permitted renewal subject to safeguards?

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Statutory Framework Involved

Passports Act, 1967

Section 6(2)(f)

This provision empowers passport authorities to refuse issuance or renewal of a passport if criminal proceedings are pending against the applicant.

Section 22

Allows the Central Government to exempt certain categories of persons from the rigours of the Act through notifications.

Notification GSR 570(E), 1993

Issued under Section 22, this notification clarifies that individuals facing criminal proceedings are not absolutely barred from holding a passport and that issuance may be permitted subject to conditions imposed by courts.

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Supreme Court’s Interpretation of the Law

Passport Authority Cannot Override Judicial Assessment

The Supreme Court categorically held that once a criminal court, fully aware of pending cases, permits renewal of a passport subject to conditions, the passport authority cannot refuse renewal based on speculative apprehensions.

The Court observed that refusing renewal in such circumstances would amount to the passport authority second-guessing the judicial assessment of risk, a role not contemplated under the statute.

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Article 21 and the Right to Personal Liberty

The Bench reaffirmed that:

• The right to travel abroad and the right to hold a passport are integral components of personal liberty under Article 21 of the Constitution.

• Liberty is not a concession granted by the State, but a constitutional obligation owed to individuals.

The Court warned that when procedural safeguards are transformed into permanent disabilities, it disturbs the constitutional balance between State power and individual dignity.

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Proportionality and Reasonableness

While acknowledging that the State has the authority to regulate travel in the interests of justice, national security, or public order, the Court stressed that:

• Restrictions must be necessary, proportionate, and clearly grounded in law.

• Indefinite denial of a passport, despite judicial supervision, constitutes a disproportionate and unreasonable restriction on liberty.

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Distinction Between Holding a Passport and Travelling Abroad

A crucial aspect of the judgment is the Court’s clear distinction between:

• Possession of a valid passport, and

• Actual foreign travel.

The Court described a passport as a civil document, emphasising that decisions regarding foreign travel fall squarely within the jurisdiction of criminal courts. These courts retain the power to:

• Grant or deny permission,

• Impose conditions,

• Recall permissions if circumstances change.

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Error in the Calcutta High Court’s Approach

The Supreme Court disagreed with the Calcutta High Court’s view that Section 6(2)(f) imposes an absolute bar unless courts explicitly permit travel for a specified period.

The Bench held that:

• Section 6(2)(f) is not an unyielding prohibition.

• The 1993 notification explicitly recognises judicial discretion in such cases.

• Courts are not required to limit permissions to one-time or trip-specific licences.

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Final Directions Issued by the Supreme Court

Allowing the appeal, the Supreme Court:

• Set aside both the single judge and division bench judgments of the Calcutta High Court.

• Directed passport authorities to re-issue an ordinary passport to Agarwal for the normal period of ten years within four weeks.

• Clarified that the passport would remain subject to all existing and future orders of the NIA court and the Delhi High Court.

• Reiterated that authorities retain the power to impound or revoke the passport in accordance with law if circumstances warrant.

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Key Judicial Precedents Reinforced

While not citing specific earlier cases by name, the judgment builds upon settled jurisprudence that:

• Personal liberty under Article 21 must receive expansive interpretation.

• Administrative authorities cannot impose restrictions more severe than those deemed necessary by courts.

• Preventive measures must not become punitive by default.

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Significance of the Judgment

This ruling is significant because it:

• Reinforces judicial primacy over executive discretion in matters affecting liberty.

• Prevents indefinite erosion of fundamental rights due to prolonged trials.

• Clarifies the legal position for thousands of undertrials and accused persons facing similar passport restrictions.

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Conclusion

The Supreme Court’s ruling sends a clear message that pending trials cannot be used as a tool to indefinitely curtail constitutional freedoms. By reaffirming that liberty must remain the norm and restrictions the exception, the judgment strengthens the rule of law and ensures that administrative caution does not overshadow constitutional guarantees.