Can acts of individuals in visiting a foreign country on an Indian passport and then applying in that country for asylum, can be construed as “prejudicial to the sovereignty and integrity of India” result in justifiable refusal of passport to such individual under Section 6 (1) (a) of the Passport Act, 1967?

The Delhi High Court has answered the question in negative while determining the meaning of the phrase “prejudicial to the sovereignty and integrity of the country”.

A bench of Justice S Ravindra Bhat and Justice Sanjeev Sachdeva has held, “… sovereignty and integrity of the country are robust concepts that can withstand the actions of isolated individuals who may seek political asylum; their mere action in so seeking asylum- without more, by way of action tending to undermine the sovereignty, through actions that can result in disorder or violence- cannot be a ground for refusing passport to them.”

The division bench went on to note that, “Generally, political asylum in a foreign country is sought by people who fear persecution in their own country and are, therefore, unwilling to return and such an act might bring disrepute to India, given that instances of people seeking passport after having been refused political asylum by a foreign country have risen in the recent years as in terms of the data provided by the appellants.”

“However in these cases, this Court concurs with the view in the impugned orders (and Kulvir) that, however, condemnable the act of seeking political asylum in a foreign land, ipso facto, (i.e. by itself, and without any other fact showing that the applicant had involved himself or herself with activities of any individual or groups that plot, or had conspired, or are conspiring violence and other such activities to undermine the establishments in India or a section of its people) it cannot possibly be a ground to deny passport under Section 6 (1) (a) of the Act,” it held.

The bench said so while deciding the appeals filed by the Union of India against the single judge decision on petitions filed by three persons — Satnam Singh, Amardip Singh and Varinder Singh.

All the three cases have identical facts.

In one of the three cases, Satnam Singh returned to India on an Emergency Certificate dated April 8, 2013, issued from the Consulate General of India, Vancouver (Canada). On his return, he applied for a passport on July 8, 2013, at the Passport Office, Jalandhar. The Regional Passport Officer rejected his application and placed Satnam’s name under the Prior Approval Category for a period of five years from the date of his return to India on the ground that he had requested the Government of Canada for political asylum.

The request was rejected by the Canadian government, though.

The single judge of Delhi High Court held the decision of the Passport Office to deny passport to be illegal.

In its appeal, the Centre argued that the single judge relied on Kulvir Singh vs UoI,which overlooked the result of bad publicity resulting from the behaviour of an Indian citizen in foreign soil.

In Kulvir Singh’s case, it was held that “the action of applying for political asylum may result in bad publicity for a country but that does not mean that same is prejudicial to the sovereignty and integrity of India”.

The Centre’s counsel contended that the very act of applying for political asylum meant that the applicant/writ petitioner vowed allegiance to the laws and Constitution of another country and disowned the laws and Constitution of his country of birth. This directly meant that he displayed overt disloyalty to the country of his birth, i.e. India.

Rajesh Gogna, appearing for the Centre, relied upon Section 2(o) of the Unlawful Activities (Prevention) Act, 1967, which defines unlawful activities of individuals as action by words either spoken or written or by signs, that “causes or is intended to cause disaffection against India”.

Advocates for the petitioners, on the other hand, contended that the mere act of securing asylum, cannot be isolated from the circumstances of the case.

It was submitted that no facts indicating that any of the applicants at any time indulged in behavior that could lead to overt action or that they were part of any conspiracy with groups that sought to undermine the sovereignty and integrity of India were relied upon by the Union in denying them passports.

The court noted that in the cases of Amardip Singh and Satnam Singh, it was apparent from the record was that both had married foreign citizens – as far back as in 2003 and 2004 (i.e. in Canada and United States of America, respectively). Both of them had families, i.e. children who were foreign passport holders. All the three applicants/writ petitioners (i.e. Amardip Singh, Satnam Singh and Varinder Singh) had averred that they were unaware about the form they were signing in their anxiety to dive out foreign citizenship.

Petitioners said their intention was never to malign the country or undermine its sovereignty and integrity. At best, the act of applying for asylum in the circumstances was reprehensible and unwarranted.

What does phrase “Prejudicial to sovereignty and integrity of India” mean?

Before deciding the appeal, the bench found it crucial to determine the meaning of the phrase “prejudicial to the sovereignty and integrity of India” used in the Passport Act and which finds mention in clauses (2), (3), and (4) of Article 19 of the Constitution of India, where it was added as a ground for restriction on the freedom of expression.

“This (phrase) was inserted by the Constitution (Sixteenth Amendment) Act, 1963, in order to combat secessionist agitation and conduct from organisations such as DMK in the South and Plebiscite Front in Kashmir, and activities in pursuance thereof which might not possibly be brought within the purview of the expression “security of the State‟. It was made to guard the freedom of speech and expression being used to assail the territorial integrity and sovereignty of the Union.

“Since the mention of the phrase ‘sovereignty and integrity of India’ in both these provisions was with respect to secessionist activities, with one Act preceding, and the other succeeding, the enactment of the Passport Act, 1967, it is only reasonable to presume that the legislative intention with respect to the use of the phrase in the present Act is similar,” the bench observed.

Rule 5 of Passports Rules, 1980 deals with the procedure for issuance of passport and Rule 5 prescribes the forms of application for applying for passport. The form has been set out in Part 1 of Schedule 3 of the Rules. Clause 19 of the application contains a self- declaration that the applicant owes allegiance to the sovereignty, unity and integrity of India. Unless a person gives a declaration of such allegiance, a passport cannot be issued to such person. The mention of the phrase “Sovereignty, unity and integrity of India‟ in the declaration must have the same meaning as in the Act, and therefore it cannot be said to have been breached by the applicant/writ petitioners in having applied for political asylum,” it held.

The bench relied on Satwant Singh Sawhney v D Ramarathnam wherein, the majority decision held that the right to travel abroad is a part of a person’s personal liberty of which he could not be deprived, except according to the procedure established by law in terms of Article 21 of the Constitution.

The court opined here that sovereignty and integrity of the country are robust concepts that can withstand the actions of isolated individuals who may seek political asylum.

It also took note of the affidavit filed by the Centre showing a total of 85 cases wherein the applicants came back to India or were deported by a foreign government after rejection of their requests for political asylum and the same are still pending from the year 2013 to 2015.