September 24, 2021

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All you need to know about the right to travel abroad

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This article has been written by Sushmita Choudhary, from New Law College, Bharati Vidyapeeth Deemed University. It studies the right to travel coupled with related judgements and certain restrictions upon it. Also, the present situation of COVID-19 has been taken into consideration.

Table of Contents

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On April 9, 2019, the Supreme Court in the case of Satish Chandra Verma vs. Union of India, reiterated that the right to travel abroad is a genuine and basic human right like marriage and family. A bench led by Justice L. Nageswara Rao and M.R. Shah observed, “The right to travel abroad is an important basic human right for it nourishes independent and self-determining creative character of the individual, not only by extending his freedoms of action but also by extending the scope of his experience”.

In this case, an appeal was filed by an IPS officer from Coimbatore, Tamil Nadu. In his appeal, he stated that the departmental enquiry was pending against him and on that ground, he was denied the permission by the Central Administrative Tribunal (CAT) to take a private trip abroad to visit relatives. Satish Chandra Verma, Inspector General of Police, had no criminal case against him yet the Madras High Court upheld the decision of the Central Administrative Tribunal which did not allow him to travel abroad without Vigilance clearance. The Supreme Court set aside the order of the High Court and referred to the case of Maneka Gandhi vs. Union of India and the landmark U.S. Supreme Court case of Kent vs. Dulles (1958).

The bench while disposing of the appeal observed through the judgement in Maneka Gandhi vs Union of India that the right to travel abroad is an important basic human right as it nurtures independent and self-determining creative character of the individual by extending the scope of office experience and his freedom of actions. The Supreme Court referred to the latter case’s judgement which said: “freedom to go abroad as much social value and represent the basic human right of great significance”. Along with declaring the right to travel abroad as a basic human right, the Supreme Court said that this basic human right also extends to private life that is marriage, family and friendship. 

The right to move freely throughout the territory of India is bestowed under Article 19 of the Indian constitution, however, the right to travel abroad has been derived from the right to life and personal liberty provided under Article 21. It says: “No person shall be deprived of his life or personal liberty except according to the procedure established by law”. 

In this article, the expressions “life and liberty” have been given vast meanings through liberal interpretations. Here, life does not mean a mere individual physical existence but also the quality of life. On a similar note, personal liberty does not entail freedom from physical restraint or confinement but also covers various rights. 

Maneka Gandhi v. UOIIn the verdict of Maneka Gandhi v. UOI, the SC said that the expression “personal liberty” mentioned in article 21 has a very wide range and it covers a plethora of rights which consist of the personal liberty of man and some of which have even been raised to the status of separate fundamental rights and given additional protection under article 19.

Article 21 forms the negative duty of the state, however, it does not completely nullify restrictions or limitations if done according to the “procedure” established by law. There has to be a balance between the personal liberty of an individual including his rights arising from it and the individual’s duties and obligations towards the state and fellow citizens.  

Satwant Singh Sawhney v. D. RamarathnamRegarding the issue of the right to travel abroad in the case of Satwant Singh Sawhney v. D. Ramarathnam, the Supreme Court established the “expression” personal liberty takes the right of locomotion and to travel abroad. A question may arise regarding whether the necessity to hold a passport for legally travelling abroad creates a hindrance in an individual’s right to travel abroad or not and the Supreme Court gave the decision negatively in the same case.

In a nutshell, the right to travel abroad as well as the right to travel freely throughout the territories of India falls under the same umbrella freely derived out of “personal liberty” although they are provided under different provisions of the constitution. The exercise of the right to travel abroad may have some certain limitations which shall be within the procedure established by law. The right to move freely within India meets with certain reasonable restrictions as well.

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Article 12 of the 1966  International Covenant on Civil and Political Rights deals with the right to travel abroad. It gives everyone the right to leave any country, including his own. So it complements the constitutional right to travel abroad. However, the Covenant alike the Indian Constitution places the right to certain restrictions “provided by law, as are necessary to protect the national security, public order, health or morals for the rights and freedoms of others” and are consistent with the other rights recognised in the Covenant.

The UN Human Rights Committee, a body which is responsible for supervising the implementation of this Covenant has elaborated that Article 12  covers the right to depart for permanent emigration under its purview apart from the right to travel abroad.  It also guarantees the individual’s right to determine the state of destination.

While the UNHRC says that the right to live in a country includes the right to obtain the necessary travel documents, the Supreme Court rather takes a different stand on the subject of issuance of passport and travel documents. In the case of Satwant Singh Sawhney v. D. Ramarathnam,  the Supreme Court clarified that the passport is a political document and there is no absolute right to demand a passport as it lies within the choice of the state whether to give it or withhold it. Since the document asserts the respectability of the holder, it seems reasonable that the government need not assert a person it does not consider worthy.

In the Gramophone Company of India vs. Virendra Pandey in 1984, the SC had observed that when friction arises between National and international law, the national law would prevail.

The right to travel abroad is subject to restrictions conforming to the “procedure established by law”. Restrictions need to be fair, just, reasonable and must be in conformity to the principles of natural justice. The circumstances which specify for the call for a restriction on the right to travel abroad haven’t been expressly enumerated by the Constitution. However, Section10(3) of the Passports Act 1967 specifies certain circumstances where the passport authorities may cancel, revoke, vary or impound the passport or travel document. Certain circumstances wherein the passport might have been obtained by fraud or wrongfully possessed are involved. Also, there are some of the more important circumstances:

  1. When the passport is cancelled on the basis of sovereignty and integrity of India, national security, friendly relations of India with any foreign country, or in the general public interest.
  2. When a court of India has convicted the passport holder regarding an offence involving moral corruption and henceforth imprisoned for not less than 2 years. A court which has convicted or confirmed the conviction of the passport holder can itself revoke its passport as provided under The Passports Act.
  3. When proceedings of an offence allegedly committed by the passport holder are pending before a criminal court in India.
  4. When a court has issued an order of summoning for either the appearance or arrest of the passport holder foreigner Court prohibits by order the individual’s departure from India.
  5. If any of the conditions for obtaining the passport or travel document has been contravened.

The novel coronavirus has spread through every continent except Antarctica with at least 177 countries reporting the case and the Indian government advisory of ‘do not travel’ has urged all the citizens to avoid unnecessary travel citing reasons of health risks due to COVID-19. In India, the travel restrictions were enhanced with effect from March 22 by an official order suspending all International commercial passenger aircraft taking off from any foreign airport for Any Indian airport. The Civil Aviation Minister Hardeep Singh Puri said, “Several factors need to be addressed for the resumption of international flights. Many international destinations are not allowing incoming passenger traffic except for their own citizens or diplomats. Within India, most international flights operate from the metros where travellers arrive from neighbouring cities & states. Our metro cities were under various degrees of lockdown which are beginning to be lifted.” He added that with India moving towards the critical mass of 50-60% operation of domestic flights, the international operations would have an improved chance of getting resumed.

About the question as to when will India allow regular international flights, he said the scheduled International commercial passenger flights are expected to continue being suspended until June 30. 

In a set of detailed guidelines, the Ministry of Home Affairs issued a Standard Operating Protocol (SOP) on May 5 noting that all incoming passenger traffic was prohibited except for the persons stranded in India who want to travel abroad. The ministry advised the vulnerable people like the elderly, pregnant women or passengers facing other health issues to avoid necessary travel till the Coronavirus pandemic subsidies. The SOP stated that people who want to travel abroad shall apply to the Ministry of Civil Aviation or to any MoCA designated agency along with necessary details like the place of departure and arrival as per required by MoCA. Only persons who fulfil the following conditions shall be allowed to travel internationally to the destined countries:

  1. Citizens of that country;
  2. Holds a visa of at least a period of one year of that country;
  3. Green card or OCI holder; or
  4. In medical emergency or family member death cases, Indian Nationals holding six-month visas can also be allowed.

Also before confirming their tickets, MoCA shall ensure that the entry of such persons is allowed by the destination county. If the destination country imposes certain conditions, the person intending to travel will have to fulfil them. The travel to other countries from India shall be the non-scheduled commercial flights that are being arranged home for bringing back the Indian nationals stuck abroad. The Ministry of Civil Aviation will charge the passengers for the cost of the travel.  Also, the ministry will ensure the screening of the passengers as per health protocol and only the asymptomatic travellers would be allowed to board the flight. Safety measures as issued by the health protocol of a MoCA like wearing masks, hand hygiene, respiratory hygiene, etc. to be followed by airline staff, crew and passengers.

So as of now, the restriction on the right to travel abroad has been reasonable in accordance with Article 21  to prevent the spread of COVID-19. 

The right to travel abroad is an essential right which has been recognized as a fundamental right by the Supreme Court. It is recommended that subsequent to Article 21, a new article, namely Article 21A should be inserted saying “21A. (1) Every person shall have the right to leave the territory of India and every citizen shall have the right to return to India. (2) Nothing in clause (1) shall prevent the State from making any law imposing reasonable restrictions in the interests of the sovereignty and integrity of India, friendly relations of India with foreign States and interests of the general public.” A separate section for the right to travel abroad will perhaps embolden the implementation of this indispensable right which is currently being covered under the purview of Article 21 of the Indian constitution.

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