Bail Conditions Pertaining to Travel Restrictions
The Right to travel is considered a fundamental right in India. This right is included under Article 21 of the Indian Constitution, which guarantees the protection of life and personal liberty to all citizens.
The Supreme Court of India has interpreted Article 21 to include the right to travel as an essential part of personal liberty. This means that every citizen of India has the right to move freely within the country, as well as to leave and return to India.
However, the government can impose certain restrictions on the right to travel in the interest of national security, public order, and morality. For example, the government can impose travel restrictions during times of war or emergency, or restrict travel to certain areas for the safety of the public.
Overall, the Right to travel is considered an important fundamental right in India, and any infringement upon this right is subject to judicial review by the courts.
Right to travel of an accused
The fact that the accused would not be in the country during the trial creates a precarious situation, necessitating caution on the part of the courts when granting their visits. A mechanism must be in place to not only effectively ensure the accused’s return to the country but also to track and trace the accused in the event that certain developments are made that concretize the accused’s culpability as the trial nears its conclusion. As a result of the same, a number of actions have been taken, like providing an undertaking. These commitments have the effect of requiring the accused to be present whenever the court requires it, along with a penalty or legal consequences in the event of a default. In a similar vein, the presentation of a surety bond may also be required, requiring the deposit of money as security or temporarily handing over the title to assets. Documents with legal weight give the court assurance and serve as a precondition for granting the right to travel abroad.
In order to effectuate the restriction on the accused’s travel abroad, courts have over innumerous occasions moved for the seizure or impoundment of their passport. Despite that such a move may be viewed to be contrary to personal liberty and dignity under Article 21, but if the seizure or impoundment is in line with the safeguards enshrined under Maneka Gandhi, it would be constitutional and valid. Under the Criminal Procedure Code, Section 102(1) authorizes a police officer to seize any documents in relation to the commission of an offense, which includes the seizure of the passport of an accused. The police officer must judiciously exercise this power as it is ultimately subject to the scrutiny of the court. Despite that the Police is granted the right to seize a passport temporarily, they cannot impound the same. The authority to impound a passport lies exclusively with the Passport Authority, stripping the Police and any other law enforcement agency the power to do so. This power is subject to the discretion of the Passport Officer and, if the case need be, the Chief Passport Officer.
The Punjab and Haryana High Court in the case of Anila Bhatia vs. State of Haryana (09.10.2018 – PHHC) deeply engaged with the question of travel restrictions imposed under bail conditions.
The Court observed that when a person is made to surrender his passport, it curtails his right of movement beyond the country. Article 21 of the Constitution of India says:
“No person shall be deprived of his life or personal liberty except according to procedure established by law.
- The expression “personal liberty” is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a person. The Supreme Court, in Satwant Singh v. Asst. The Passport Officer held that “personal liberty” guaranteed under Article 21 encompassed a right of locomotion, or the right to travel abroad. Every person living in India has a fundamental right to travel, even outside India. Refusal by the Government to issue a passport without a valid law prescribing reasonable restrictions was held to be an arbitrary exercise of the executive power infringing the equality clause of the Constitution. After the decision in Satwant Singh’s case the Parliament passed the Passport Act, 1967 regulating conditions for the grant and refusal of passports and providing grounds for impounding passports. Even after passing of the said Act, in Maneka Gandhi v. Union of India the Supreme Court held that the right to travel abroad is not only encompassed in the right to liberty under Article 21 of the Constitution, but that right could only be denied if the procedural law which governed its excuse is fair.”
The Court further observed that the criminal courts have to take extreme care in imposing such conditions. It cannot mechanically, and in every case where an accused has a passport impose a condition for its surrender. Law presumes an accused to be innocent till he is declared guilty. As a presumably innocent person he is entitled to all the fundamental rights guaranteed to him under the Constitution. At the same time, the interest of the society has also to be protected. The court has to strike a balance between personal liberty of the accused guaranteed under Article 21 of the Constitution, investigation rights of the police and the interest of the society.
The court also observed that while the police may have power to seize a passport under Section 102 Criminal Procedure Code if it is permissible within the authority given under Section 102 of Criminal Procedure Code, it does not have power to retain or impound the same, because that can only be done by the passport authority under Section 10(3) of the Passports Act. Hence, if the police seizes a passport (which it has power to do under Section 102 Criminal Procedure Code), thereafter the police must send it along with a letter to the passport authority clearly stating that the seized passport deserves to be impounded for one of the reasons mentioned in Section 10(3) of the Act. It is thereafter the passport authority to decide whether to impound the passport or not. Since impounding of a passport has civil consequences, the passport authority must give an opportunity of hearing to the person concerned before impounding his passport.
Written by Advocate Husain Trivedi