Facts

The petitioner held a passport issued to her under the Passports Act, 1967. The petitioner received a letter dated July 2, 1977 from the Regional Passport Officer, Delhi intimating to her that it had been decided by the Government of India to impound her passport under Section 10(3)(c) of the Act in public interest and requiring her to surrender the passport within seven days from the date of receipt  of the letter.

The petitioner immediately addressed a letter to the Regional Passport Officer requesting him to furnish a copy of the statement of reasons for making the order as provided  in Section 10(5)  to which a reply was sent by the Government  of India, Ministry of External Affairs on July 6, 1977 stating inter alia that the Government has decided “in the interest of the general public” not to furnish her    a copy of the statement of reasons for the making of the order.

The petitioner thereupon filed a petition in the Supreme Court challenging the action of the Government in impounding her passport and declining to give reasons for doing so.

Issue

Whether Section 10(3)(c), insofar as it empowers the Passport Authority to impound a passport “in the interests of the general public” was violative of the equality clause contained in Article 14 of the Constitution.

Whether an order impounding a passport could not be made by the Passport Authority without giving an opportunity to the holder of the passport to be heard  in defence and, in the alternative, if the Section were read in such a manner as      to exclude the right of hearing, the section would be infected with the vice of arbitrariness and it would be void as offending Article 14.

Views

The doctrine of natural justice consists principally of two rules, namely, nemo debet esse judex in propria causa : no one shall be a judge in his own cause,

and audi alteram partem : no decision shall be given against a party without affording him a reasonable hearing. The audi alteram partem rule is intended to inject justice into the law and it cannot be applied to defeat the ends of justice,      or to make the law “lifeless, absurd, stultifying, self-defeating or plainly contrary   to the common sense of the situation”. Since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested    on  the touchstone of  pragmatic realism, the audi alteram partem rule would, by the experiential test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands. This is a rule of  vital importance in  the field of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. The audi alteram partem rule is sufficiently flexible to permit modifications and variations to suit the exigencies of myriad kinds ofsituations which may arise.

Held

(In the Lead Judgement Authored by Bhagwati J.) It would not be right to conclude that the audi alteram partem rule is excluded merely because the power to impound a passport might be frustrated, if prior notice and hearing  were to be given to the person concerned before impounding his passport The Passport Authority may proceed to impound the passport without giving any prior opportunity to the person concerned to be heard, but as soon as the order impounding the passport is made, an opportunity of hearing, remedial in aim, should be given to him so that he may present his case and controvert that of the Passport Authority and point out why his passport should not be impounded and the order impounding it recalled. This should not only be possible but also quite appropriate, because the reasons for impounding the passport are required to be supplied by the Passport Authority after the making of the order and the person affected would, therefore, be in a position to make a representation setting forth   his case and plead for setting aside the action impounding his passport. A fair opportunity of being heard following immediately upon the order impounding the passport would satisfy the mandate of natural justice and a provision requiring giving of  such opportunity to  the person concerned can and should be  read  by implication in the Passports Act, 1967. If such a provision were held to be incorporated in the Passports Act, 1967 by necessary implication the procedure prescribed by the Act for impounding a passport would be right, fair and just    and it would not suffer from the vice of arbitrariness or unreasonableness.   (dt. 25-1-1978)

Editorial: Different orders were passed, the lead judgement is of Bhagwati J.. Individual Judgements were passed by Chandrachud J., Krishna Iyer J. and Beg CJ. and Kailasam J. with a common theme upholding audi alteram partem but with slightly different views about the end result. A statement was made by the Ld. Attorney General that Petitioner would be allowed to make a representation which would be dealt with expeditiously which was considered by all the Judgements  and influenced the outcomes. Followed in Sahara India (Firm) v. CIT [2008] 300 ITR 403 (SC) with reference to Section 142 of the Income-tax Act, 1961. The court that in certain cases the rule of audi alteram partem could be observed by   the authorities after the action of impounding as

long as the action of impounding was succeeded by

providing the opportunity of hearing immediately thereafter for challenging the impounding action.

“Even as wisdom often comes from the mouth of babes, so does it often come from the mouths of old people. The golden rule is to test everything   in the light of reason and experience, no matter from where it comes.”

– Mahatma Gandhi