The Indian Supreme Court’s ruling in the Maneka Gandhi versus Union of India case [Maneka Gandhi vs Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597 : (1978) 2 SCR 621] was a turning point in the interpretation of the right to life and personal liberty enshrined in Article 21 of the Indian constitution. In Malaysia, the right to life and personal liberty is enshrined in Article 5 of the federal constitution.
The Maneka Gandhi vs Union of India (Maneka Gandhi) case arose in the period immediately following the end of the national Emergency in India, with the Janata Party government assuming power in 1977.
Maneka Gandhi, daughter-in-law of former prime minister Indira Gandhi and founder-editor of a political magazine Surya, was issued a passport in 1976 under the Passports Act. Soon after the Congress Party was ousted by the Janata Party, she began using Surya as a political platform to restore the image of the Congress Party and discredit leaders of the new government.
(The most notable instance of this was when Surya carried photographs showing the son of then-defence minister Jagjivan Ram engaging in sexual intercourse with a student of Delhi University.)
In 1977, around the time she wished to leave India to fulfil a speaking engagement, Maneka Gandhi received a letter stating that the government of India had decided to impound her passport “in public interest” under Section 10(3)(c) of the Indian Passports Act.
The government turned down her request seeking the reasons why the order had been passed, stating that it was not “in the interest of the general public”. In reaction, she filed a writ petition in the Supreme Court challenging the passport impounding order of the Government of India and its subsequent refusal to provide reasons for the same.
In Maneka Gandhi, the Supreme Court departed from the straitjacketed interpretation of fundamental rights and held that the fundamental rights form an integrated scheme under the Indian Constitution.
The case was heard by a seven-Judge Bench of the Supreme Court and five different opinions were delivered. The leading opinion was delivered by Justice PN Bhagwati on behalf of three Judges.
The Supreme Court interpreted important provisions of the Indian constitution that have far-reaching impact. It was held as under:
1. Right to travel abroad is part of personal liberty under Article 21. However, it was held that it is covered neither in the right under 19(1)(a) (freedom of speech and expression) nor under 19(1)(g) (right to carry on trade, business, profession or calling).
2. Fundamental rights conferred by Part III of the constitution are not distinct and not mutually exclusive. In Malaysia, Fundamental Liberties are conferred by Part II of the federal constitution.
3. Article 21 does not exclude Article 19 and even if there is a law prescribing a procedure for depriving a person of “personal liberty” and there is consequently no infringement of the fundamental right conferred by Article 21, such law, insofar as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that article.
4. If a law depriving a person of “personal liberty” and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation, ex-hypothesi it must also be liable to be tested with reference to Article 14 (right to equality). In Malaysia, the right to equality is enshrined in Article 8 of the federal constitution.
5. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14.
6. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.
7. Law in Article 21 affecting personal liberty must satisfy the test of one or more of the rights under Article 19 and the test of reasonableness under Article 14.
8. Right to go abroad, an aspect of personal liberty, cannot be curtailed without reasonable opportunity to show-cause.
9. Procedure in Article 21 cannot be arbitrary, unfair, oppressive or unreasonable. Such procedure has to be just, fair and reasonable.
10. Rules of natural justice must be followed before impounding a passport under Section 10(3)(c) of Passports Act, 1967.
11. The soul of natural justice is “fair-play in action” and that is why it has received the widest recognition throughout the democratic world. The inquiry must always be: does fairness in action demand that an opportunity to be heard should be given to the person affected?
12. Now, if this be the test of applicability of the doctrine of natural justice, there can be no distinction between a quasi-judicial function and an administrative function for this purpose.
13. The aim of both administrative inquiry as well as quasi-judicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice, or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both.
14. The law must now be taken to be well settled that even in an administrative proceeding, which involves civil consequences, the doctrine of natural justice must be held to be applicable.
15. Rules of natural justice apply as much to administrative action which entails civil consequences as to quasi-judicial and judicial functions. However, these rules are flexible enough to permit modifications and variations required by the situation. Thus, the area of application of the principles of natural justice was expanded and it was held that these rules can be restricted only if they are likely to paralyse the administrative process and defeat the urgency of the measure.
In the Malaysian Federal Court case of Lee Kwan Who vs Public Prosecutor [2009] 5 MLJ 301, it was held by the Federal Court that:
When Article 5(1) is read prismatically and in the light of art 8(1), the concepts of ‘life’ and ‘personal liberty’ housed in the former are found to contain in them other rights. Thus, ‘life’ means more than mere animal existence and includes such rights as livelihood and the quality of life (see Tan Tek Seng’s case).
And ‘personal liberty’ includes other rights such as the right to travel abroad. See Loh Wai Kong vs government of Malaysia [1978] 2 MLJ 175, where Gunn Chit Tuan said that ‘personal liberty’ includes ‘liberty to a person not only in the sense of not being incarcerated or restricted to live in any portion of the country but also includes the right to cross frontiers in order to enter or leave the country when one so desires’.
In loving memory of the late Varinder Singh a/l Pritam Singh.
PUTHAN PERUMAL is an advocate and solicitor of the High Court of Malaya.
