IT is unwise to treat lightly brazen abuses of power to stop citizens from exercising their right to go abroad. The case of Altaf Ahmad Kaloo, a former Kashmiri legislator and member of the National Conference, is gross. A fortnight ago, he and his family were set to travel from Delhi to Dubai for a family function. He was made to get off the plane, detained for several hours, and told to obtain a permit from the CID in Kashmir under a blanket order affecting all politicians since August 2019. The family was allowed to travel. He alone was deplaned under an illegal order that violates the very concept of rule of law on which the entire legal system, including the constitution, rests. It flouts a historic supreme court judgment, international law as well as India’s international commitments.
In An Introduction to the Study of the Law of the Constitution (1885), A.V. Dicey wrote: “No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.”
Exercise of executive power without the sanction of a law made by the legislature is illegal if it affects anyone’s rights, be it to property, reputation or personal liberty. The order was made mala fide to debar politicians who disagree with official policy. It is not based on any law.
The order is designed to curtail dissenting politicians’ rights.
Forty years ago, the supreme court ruled (6-1) in ‘Maneka Gandhi vs Union of India’ that the right to travel abroad is integral to personal liberty. Article 21 confers this fundamental right on all citizens and aliens: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The court overruled its earlier view that any law sufficed. To be valid, the law must: (a) comply with the other rights including the rights to freedom of speech and expression and to assemble peaceably without arms; (b) must be a fair procedure; and (c) the rules of natural justice apply, ie a person must be heard before his passport is denied or revoked.
Over the years, this ruling has acquired respect bordering on veneration. But every single rule it laid down has been violated in Kaloo’s case. In Maneka’s case, there was a law (Passports Act, 1967) however inadequate and arbitrary. In Kaloo’s case there was none, only the whim of the CID and its bosses in Delhi.
Vendetta governed both cases. Maneka’s husband Sanjay Gandhi behaved like a lout during the Emergency. She acquired a valid passport in June 1976. In the 1977 general election, the opposition Janata Party came to power. In July 1977, her passport was impounded and she was asked to surrender it. No reasons were assigned.
The court further held: “Could it have been intended by the constitution-makers that a citizen should have this freedom in India but not outside? Freedom of speech and expression carries with it the right to gather information as also to speak and express oneself at home and abroad and to exchange thoughts and ideas with others not only in India but also outside. On what principle of construction and for what reason can this freedom be confined geographically within the limits of India? The constitution-makers have not chosen to limit the extent of this freedom by adding the words ‘in the territory of India’ at the end of Article 19(1)(a). They have deliberately refrained from using any words of limitation. Then, are we going to supply these words and narrow down the scope and ambit of a highly cherished fundamental right? Let us not forget that what we are expounding is a constitution and what we are called upon to interpret is a provision conferring a fundamental right. Shall we expand its reach and ambit or curtail it?”
The court referred to the Universal Declaration of Human Rights. A year later, in 1979, India ratified the International Covenant on Civil and Political Rights, Article 12 of which reads: “(i) Everyone lawfully within the territory of a state shall, within that territory, have the right to liberty of movement and freedom to choose his residence; (ii) Everyone shall be free to leave any country, including his own; (iii) No one shall be arbitrarily deprived of the right to enter his own country.” States that are party to the ICCPR periodically file country reports. Over the years a body of case law developed, which was compiled. The cases cited show how Article 12 was interpreted. “Alternative travel documents are no substitute for a passport proper.” An arrest warrant pending for long is no excuse for denying one either.
It is time India’s civil liberties movement concerned itself with the abuses in Kashmir committed by the Indian government.
The writer is an author and lawyer based in Mumbai.
Published in Dawn, November 21st, 2020