Recently, the single judge bench of the Jammu and Kashmir High Court held that merely because the brother of the petitioner was a militant and his father is an OGW of the terrorists, the petitioner cannot be deprived of his fundamental right guaranteed under Article 21 of the Constitution of India.
Brief facts:
The factual matrix of the case is that the Petitioner, a resident of UT of Jammu and Kashmir, being a diploma holder in Engineering with a desire to go abroad in search of a good job as a career applied for issuance of a passport through on line process and then, the Petitioner was informed to contact in the office of Passport Authority to fill up the application form and for verification of particulars/documents; that the petitioner accordingly approached in the said office where the Petitioner’s particulars were screened and verified and the petitioner was told that his case would be processed accordingly through concerned quarters of CID/Police and would be finally submitted after getting reports to the office of the respondent No. 2-Regional Passport Officer.
Even after a lapse of one year, Respondent No. 2 has not taken a final decision yet. The passport was rejected on the grounds that one of the petitioner's brothers, the Late Mohd, Ayaz Malik was killed by the security forces in an encounter in a militancy-related incident on 24.04.2011. Thereafter, in response to the notice, the objection was filed wherein it was stated that an adverse police verification report was received regarding the petitioner with the remarks “Not Cleared” and “may likely to misuse the passport”; that a show cause notice was issued to the petitioner to furnish an explanation for not cleared police report. Therefore, the present petition has been filed.
Observations of the court:
The Hon’ble Court observed that merely because the brother of the petitioner was a militant and his father is an OGW of the terrorists, the petitioner cannot be deprived of his fundamental right guaranteed under Article 21 of the Constitution of India.
It was furthermore observed that the Respondents were not justified in recommending the case of the petitioner for issuance of passport as there had been any iota of allegation against the petitioner himself or his involvement in any subversive activities which could be deemed to be activities prejudicial to the security, sovereignty and integrity of the State. It should have been the activities of the petitioner which should have formed the basis either for permitting or rejecting the request for issuance of passport in his favour. The petitioner cannot be deprived of his right as enshrined under Article 21 of the Constitution on the basis of the alleged misdemeanors of his brother.
The court furthermore relied upon the judgments titled Satwant Singh Sawhney v. D. Ramarathnam, Maneka Gandhi v. Union of India and Another, and Sajad Ayoub Bhat v. State and ors.
Based on these considerations, the court was of the opinion that there exists no reason not to recommend the case of the petitioner for issuance of a passport just for the involvement of his brother in militancy activities in the year 2011 when he was killed and the listing of his father as an OGW for grant of passport in his favour.
The decision of the court:
With the above direction, the court allowed the instant petition.
Case Title: Mohd. Amir Malik V. Union of India
Coram: Hon’ble Mr. Justice M A Chowdhary
Case No.: WP(C) No. 21/2023 CM No. 92/2023
Advocate for the Petitioner: Mr. B.S. Bali, Advocate.
Advocates for the Respondent: Mr. Vishal Sharma, DSGI for R-1 & 2. Mrs. Monika Kohli, Sr. AAG for R-3 to 6.
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