Pending trials no reason to deny passport indefinitely: SC
The Supreme Court on Friday ruled that passport authorities cannot indefinitely deny renewal of a passport merely because criminal proceedings are pending against an individual
The Supreme Court on Friday ruled that passport authorities cannot indefinitely deny renewal of a passport merely because criminal proceedings are pending against an individual, underlining that the right to travel abroad and the right to hold a passport are integral facets of the right to personal liberty guaranteed under Article 21 of the Constitution.
A bench of Justices Vikram Nath and AG Masih held that once criminal courts, fully aware of the pending cases, permit renewal of a passport subject to safeguards, the passport authority cannot refuse renewal on a speculative apprehension that the individual may misuse the document.
“To refuse renewal on such speculative apprehension is, in effect, to second-guess the criminal courts’ assessment of risk and to assume for the passport authority a supervisory role which the statute does not envisage,” said the bench.
The court allowed an appeal filed by Mahesh Kumar Agarwal, an accused in a National Investigation Agency (NIA) case relating to alleged extortion and funding of a proscribed organisation in Jharkhand’s coal mining areas, and set aside judgments of the Calcutta High Court that had upheld the refusal to renew his passport.
In a strongly worded judgment authored by Justice Nath, the bench emphasised that liberty under the Constitution is not a concession granted by the State. “Liberty, in our constitutional scheme, is not a gift of the State but its first obligation,” said the court, adding that the freedom to move, travel and pursue livelihood and opportunity, subject to law, is an essential component of Article 21.
While acknowledging that the State may regulate or restrain this freedom in the interests of justice, security or public order, the court stressed that such restraint must be “narrowly confined to what is necessary, proportionate to the object sought to be achieved, and clearly anchored in law”.
“When procedural safeguards are converted into rigid barriers, or temporary disabilities are allowed to harden into indefinite exclusions, the balance between the power of the State and the dignity of the individual is disturbed,” the bench warned.
Agarwal’s passport had expired in August 2023. He is an accused in an NIA case pending before a special court in Ranchi and also faces a conviction in a separate CBI coal block case, in which his sentence has been suspended by the Delhi High Court.
As his passport neared expiry, the NIA court permitted him to obtain the passport for the limited purpose of renewal, subject to stringent conditions, including furnishing sureties, redepositing the passport after renewal, and not travelling abroad without prior court permission. Subsequently, the Delhi High Court granted a “no objection” for renewal of the passport for the normal period of ten years, while continuing the condition that he could not leave the country without the court’s permission.
Despite these judicial permissions, the Regional Passport Office (RPO), Kolkata declined to renew the passport, citing Section 6(2)(f) of the Passports Act, which bars issuance of a passport when criminal proceedings are pending, unless exempted under a 1993 notification (GSR 570(E)) issued under Section 22 of the Act.
Both a single judge and a division bench of the Calcutta High Court upheld the passport authority’s stand, treating the statutory bar as absolute unless the criminal court specifically permitted foreign travel for a defined period.
Disagreeing with this approach, the Supreme Court held that Section 6(2)(f) cannot be treated as an “unyielding bar” once criminal courts, exercising judicial supervision, have consciously allowed renewal of the passport subject to conditions.
The bench explained that the 1993 notification recognises that individuals facing criminal proceedings are not absolutely disentitled to a passport and that the purpose of the restriction is to ensure their availability to the criminal court. “That purpose is fully served when the criminal court retains complete control over each instance of foreign travel by insisting on prior permission,” the judgment said.
The court clarified that nothing in the Passports Act requires a criminal court to convert every permission into a one-time licence for a specific foreign trip. Courts are equally entitled to permit renewal while prohibiting travel without their leave, it added.
Drawing a clear distinction, the bench observed that possession of a valid passport and actual travel abroad are separate issues. “A passport is a civil document,” the court said, noting that whether an accused may leave the country is a matter squarely within the domain of criminal courts, which can grant or refuse permission, impose conditions, or recall permissions as warranted. Denying renewal altogether, despite judicial safeguards, would amount to a “disproportionate and unreasonable restriction” on personal liberty, the bench held.
Allowing the appeal, the Supreme Court set aside the Calcutta high court’s judgments and directed the authorities to re-issue an ordinary passport to Agarwal for the normal period of ten years within four weeks. The court clarified that the passport would remain subject to all existing and future orders of the NIA court and the Delhi high court, including conditions requiring prior permission for travel abroad and deposit of the passport as directed. The bench also made it clear that its ruling did not dilute the powers of criminal courts or the passport authority to impound or revoke a passport in accordance with law if circumstances so warrant.
