Clearance to get a Passport and Visa during the pendency of Criminal Cases

The fundamental rights guaranteed by the Indian Constitution in Part III are a cornerstone of Indian democracy and, thus, play a significant role in protecting the individual rights of citizens. The right to hold a passport is one of those essential rights that are guaranteed to citizens of India under Article 21 of the Indian Constitution. A key is an official government document that enables an individual to travel internationally and serves as proof of identity and citizenship. On the other hand, a visa is a document issued by a government that allows an individual to enter, stay, or leave the country for a specific purpose, such as tourism, work, study, or immigration. Hence, both documents equally serve as needful documents to individuals who wish to travel overseas for various reasons such as education, employment, business, medical treatment, and tourism. Like all other fundamental rights, the right to hold a passport is not absolute. It is subject to reasonable restrictions imposed by the government in the interest of national security, public order, morality, and crime prevention. This article attempts to draw an understanding of the right to hold a passport and further elaborates on the court procedure to be followed for obtaining passport and visa clearance in the scenarios of pendency of criminal cases.

The right to hold a passport has seen primary development through the landmark judgment of Maneka Gandhi v Union of India(AIR 1978 SC 597). The Hon’ble Supreme Court indulged in a liberal interpretation of Article 21 and observed that the right to hold a passport is a fundamental right under Article 21.

The Maneka Gandhi case had far-reaching implications for interpreting Article 21 of the Indian Constitution. Article 21 guarantees the right to life and personal liberty, including the right to travel freely within the nation and abroad.

Maneka Gandhi, a journalist and activist, had her passport confiscated by the Indian government without prior notice or explanation. She challenged this action in court, arguing that her right to personal liberty was being infringed. The Supreme Court, in its judgment, held that the right to personal freedom under Article 21 also includes the right to travel abroad. The court held that the government could only impound a passport by allowing the individual to be heard and explaining the reasons for such action. In addition to the facts of this ruling, the court also emphasized the importance of the rule of law and due process, stating that any action that deprives an individual of their rights must be taken per the law and subject to judicial review. The case was significant because it extended the scope of Article 21 and recognized that the right to personal liberty includes rights such as the right to travel abroad, privacy, and a fair trial, by duly focusing on the vitality of due process and procedural fairness in the exercise of state power and laws. This case marked a crucial milestone in the development of Indian constitutional law. Additionally, it was also relied upon in the case of PoulamiBasu vs. The Government of India (2022 SCC OnLine Kar 1606), wherein a single Bench of Karnataka HC held that the right to travel abroad is a fundamental right guaranteed under Article 21 of the Constitution of India.

The Relation of the Pendency of Criminal Cases with Obtaining Passport/Visa Clearance and Renewal

The government can deny or revoke a passport on reasonable grounds, such as in cases where an individual is involved in criminal activities. However, a mere pendency of a criminal case or a proceeding cannot be considered the only reason to deny the request to obtain or renew a passport/visa application. In such cases, the concerned court having jurisdiction may exercise the discretion to grant permission by scrutinizing and analyzing all other correlated matters in deciding on the applicant’s litigation in the broad spectrum of areas of justice and law. In a recent order, the Bombay HC directed the passport authorities not to reject a man’s passport renewal application merely because of the pendency of criminal proceedings against him, observing that mere pendency of proceedings is insufficient to deny him the right to renew his passport. The court further observed, in light of the facts of the case, that merely because the offense under Sections 406, 420, 120(b) read with 34 of IPC is pending against the applicant, the said fact by itself is not sufficient to deny the right of the applicant for renewal of the passport. It directed the authorities to analyze the applicant’s eligibility as required under the provisions of the Passport Act, 1967, and pass orders by its provisions, adhering to the note that, The court said that the Passport Act regulates the rights of persons applying for a passport renewal. If you are perplexed by a similar situation, here we have covered court procedures to follow in getting passport/visa clearance during the pendency of criminal cases.

Court Procedure for Obtaining Passport/Visa Clearance during the Pendency of Criminal Cases

Collect relevant documents of proof against your charge sheet.

The accused can apply for a passport; however, firstly, they must make sure he has all the relevant proof documents and reasons for the same, as they will be required to clear the charge sheet. For instance, the PCC, i.e., Police Clearance Certificate, also called “proof of your good conduct,” is essential.

However, you may need other documents depending on the criminal charges recorded against the person.

Make an application before the concerned Hon’ble court.

Once you have compiled and verified all the essential proof documents with the concerned authorities, you must apply before the court where the matter is pending with appropriate prayers. The application should contain the details of your pending case attached with all the relevant documents and the itinerary containing the trip details. The court may consider different valid reasons or parameters for granting permission from issue to case.

 Apply to the passport office.

Lastly, you can apply to the passport office seeking renewal or application of your passport/visa, fulfilling all other required protocols as directed by them to proceed further.