The High Court of Kerala held todaythat under Section 12 of the Passport Act, 1967, passport authorities have no power to impose penalties for violation of the provisions of the Act.
Hence, the penalty list framed u/s 12(1)(b) prescribed in schedule III of Passport Rules, 1980 as well as Office Memorandums regarding table of penalties framed u/s 12(1A) were set aside by division bench comprising Chief Justice S Manikumar and Justice Shaji P Chaly.
Only the Magistrates have the power to impose punishment and thepower of the passport authority is only to launch prosecution, noted the bench.
The court also held that a finecan only be imposed by the competent Magistrate who adjudicates the issue on the basis of any complaint filed by the passport authority as an alternative to imprisonment on finding guilty.
The Court gave the ruling in a Public Interest Litigation petition filed by an NGO, Citizens Legal Rights Association.
The central government contented the Grant of penalty power to passport authorities as it is not practical to launch prosecution in each and every case of violation by passport authorities and that the penalty power was necessary to deter applicants from malpractices such as suppressing material facts from the purview of the passport authorities, while submitting the application for issuance of passport.
The Court justified while rejecting these contentions, that a penalty which is not in accordance with law infringes fundamental right to personal liberty under Article 21 of the Constitution and that PIL was not maintainable on the issue. It also observed that the matter had “substantial element of public interest.
On consideration of the facts and law, we are convinced that the authorities under the Act, 1967 are not vested with any power under Section 12 of the Act 1967, to impose any fine and it is a matter affecting the public. That apart, imposition of fine so made, which is an undisputed fact, without authority of law is a clear interference with the protection of life and personal liberty guaranteed under Article 21 of the Constitution of India, since it prohibits deprivation of life and personal liberty, except in accordance with the procedure established by law. Thinking and assimilating the situation so, exercise of power is nothing short of transgression of the fundamental right guaranteed under Article 21 of the Constitution of India“.
The Delhi High Court’s judgement in 2013 which had the same conclusion was considered by the bench.
The Court noted that the advice of Ministry of Law and Justice on filing appeal against the judgment of Delhi HC and suggestions to amend the Passports Act also fortified the conclusions of the HC.
However, the Court denied ordering the refund of the pecuniary penalties by passport authorities already paid on the ground that the aggrieved persons were not before it.
Read the judgement here: