RIGHT TO TRAVEL ABROAD IS A FUNDAMENTAL RIGHT: SC

Komal Verma

2nd Nov, 2020

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.

While deciding on the question of granting bail, the Supreme Court has held that travelling abroad is an inseverable part of fundamental right dignity and personal liberty. “This right cannot be merely illusory,” noted the court.

In a recent judgment, an apex court bench headed by Justice D Y Chandrachud has decided on the most discussed and ambiguous question whether a court can impose a ban on travelling abroad while granting bail to an accused.

The appellant in the matter, Parvez Noordin Lokhand walla, had sought leeway to visit the US to revalidate his green card.During the hearing, Justice D Y Chandrachud mentioned that a competent court is entitled with the power to impose any condition while granting bail under Sections 437 (3) and 439 (1) (a) of the Code of Criminal Procedure.

The court further stated, “However, this discretion of the court has to be “guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice.”

Top court bench also stated that for every matter, the court must weigh the nature of risk carefully before granting bail. The court also mentioned that the conditions set by court for the grant of bail must balance both the public interest in the enforcement of criminal justice with the rights of the accused.
“The human right to dignity and the protection of constitutional safeguards should not become illusory by the imposition of conditions which are disproportionate to the need to secure the presence of the accused, the proper course of investigation and eventually to ensure a fair trial,” said the court.

In the era of surveillance, the imposition of official photo identification for travel, watchlistprescreening programs, and invasive airport scans and searches unreasonably burden the right to travel. They undermine citizen rights to travel and to privacy. These regulations impermissibly require citizens to relinquish one fundamental right of privacy in order to exercise another fundamental right of travel. The government must preserve these rights in addressing policy goals. The original conception of the right to travel embodies it as a broadly-based freedom that encompasses all modes of transport. Its explicit articulation in the Articles of Confederation became implicit in the Privileges and Immunities Clause of the Constitution. Contrary to the appellate “single mode doctrine,” abridgement of any mode of transportation undermines the constitutionally enshrined travel right.

 The bench, while disposing of the appeal, referred to the judgment in Maneka Gandhi v. Union of India, and observed that:
o 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.
o Supreme Court also referred to a judgment of US Supreme court in Kent v. Dulles which said that “Freedom to go abroad has much social value and represents the basic human right of great significance.”

Freedom of Movement

 Freedom of movement is one of the six freedom under Article 19(1) of the constitution of India.
 Article 19: Protection of certain rights regarding freedom of speech etc
o (1) All citizens shall have the right
• (a) to freedom of speech and expression;
• (b) to assemble peaceably and without arms;
• (c) to form associations or unions;
• (d) to move freely throughout the territory of India;
• (e) to reside and settle in any part of the territory of India; and
• (f) to practice any profession, or to carry on any occupation, trade or business.
 The freedom of movement has two dimensions, viz, internal (right to move inside the country) and external (right to move out of the country and the right to come back to the country).
 Article 19 protects only the first dimension. The second dimension is dealt with by Article 21 (right to life and personal liberty).

Maneka Gandhi Case

 In Maneka Gandhi case (1978), the Supreme Court took a wider interpretation of Article 21.
 The court held that the ‘right to life’ as embodied in Article 21 is not merely confined to animal existence or survival but it includes within its ambit the right to live with human dignity and all those aspects of life which go to make a man’s life meaningful, complete and worth living.
 It also ruled that the expression ‘Personal Liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights that go to constitute the personal liberties of a man.