Karnataka High Court
Shany Jose vs The Union Of India on 4 June, 2024
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
Reserved on : 18.04.2024
Pronounced on : 04.06.2024 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.8969 OF 2024 (GM-PASS)
BETWEEN:
SHANY JOSE
AGED ABOUT 48 YEARS
DAUGHTER OF JOY CHERIAN
RESIDING AT NAGANOOLIL HOUSE
GANDIBAGILU, NERIA
BELTHANGADY - 574 292
DAKSHINA KANNADA DISTRICT.
... PETITIONER
(BY SRI. S.SUSHANT VENKATESH PAI, ADVOCATE)
AND:
1. THE UNION OF INDIA
MINISTRY OF EXTERNAL AFFAIRS
SOUTH BLOCK, SECRETARIAT
BUILDING, RAISINA HILL
NEW DELHI - 110 011
REPRESENTED HEREIN BY ITS SECRETARY
2
2. JOINT SECRETARY (GULF)
MINISTRY EXTERNAL AFFAIRS
SOUTH BLOCK, SECRETARIAT BUILDING
RAISINA HILL, NEW DELHI - 110 011.
3. REGIONAL PASSPORT OFFICE BANGALORE
80 FEET ROAD, 8TH BLOCK
KORAMANGALA, BENGALURU - 560 095.
... RESPONDENTS
(BY SRI. H.SHANTHI BHUSHAN, DSGI)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE
RESPONDENTS TO RELEASE THE PETITIONERS PASSPORT BEARING
NO. U0754974 DTD. 30.09.2019 WHICH HAS BEEN SEIZED AND
WITHHELD BY THE RESPONDENTS PURSUANT TO SEIZURE MEMO
DTD. 20.08.2023 AT ANNX-A.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 18.04.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is before this Court seeking a direction by
issuance of a writ in the nature of mandamus to release passport of
the petitioner issued on 30-09-2019 which is presently seized and
withheld by the respondents in terms of the seizure memo dated
20-08-2023.
2. Heard Sri S.Sushant Venkatesh Pai, learned counsel for the
petitioner and Sri H.Shanthi Bhushan, learned Deputy Solicitor
General of India appearing for the respondents.
3. The facts, in brief, germane are s follows:-
The petitioner who has a Diploma in General Nursing and
Midwifery is a qualified Nurse by avocation. The petitioner in
search of a job is shown a job opportunity in Yemen at Al-Noor
Hospital Aibb city as a staff nurse. She joins the said Hospital at
Yemen in February 2011; works there for about 9 years; secures
another job at Kara General Hospital, Marib again in Yemen. She
works there up to July 2022 and later secures a better job as a
Nurse at Shabwa General Hospital again at Yemen. The petitioner
has been residing at Yemen for the aforesaid work and would used
to visit India intermittently. The petitioner is said to have visited
India on two occasions viz., in the months of April, 2014 and
December, 2020. During her stay in Yemen passport that she had
in her possession was to expire and accordingly she approaches the
Indian Embassy at Yemen which issues fresh passport to the
petitioner with a validity of 10 years till 29-09-2029.
4. The father of the petitioner is said to have fallen seriously
ill and was diagnosed with stomach cancer. For the said reason, she
travelled back to India from Yemen on 19-08-2023 and lands at
International Airport at Delhi to visit her father. The Immigration
Authorities seized her passport on landing on the ground that her
travel itself was in violation of the Notification issued by
Government of India which prohibits Indian citizens travelling from
Yemen. It is the seizure of the passport in terms of the Notification
that has driven the petitioner to this Court in the subject petition.
5. The learned counsel for the petitioner would vehemently
contend that the petitioner is a Nurse. She does not know issuance
of a notification or otherwise. It is not for the first time that she
travels to India and back to Yemen. She had done so twice. No
Immigration Authorities have stopped the petitioner from travelling
from Yemen. It is only now in 2023, for the first time, alleging that
it is in violation of the Notification the passport is seized. After the
seizure of the passport a show cause notice is issued seeking the
petitioner to explain why she travelled to Yemen. The petitioner has
also submitted her written response to the show cause notice.
Since the passport is not de-seized, the petitioner is before this
Court.
6. Per contra, the learned Deputy Solicitor General of India
would vehemently oppose the petition to contend that the passport
of the petitioner cannot be handed over to her as there is express
bar under the Notification that one who travels to Yemen contrary
to the Notification would face seizure of the passport for a period of
seven years and, therefore, the passport cannot be returned. He
would further contend that instead of approaching this Court, a
representation should have been given to the Passport Authorities
and the Passport Authorities would have taken an appropriate
action in accordance with law. The learned Deputy Solicitor General
of India would contend that contrary to the Notification, the
Government of India cannot be directed to release the passport of
the petitioner.
7. In reply, the learned counsel for the petitioner submits that
the petitioner cannot alone be blamed for the action. She was
never stopped by any Immigration Authorities. The seizure of the
passport for seven years now will take away her chances of
employment anywhere in the globe. She being a Nurse should not
be made to suffer for the ignorance of law or ignorance of the
Authorities in implementing the law.
8. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
9. The afore-narrated facts are not in dispute; they are all a
matter of record. The passport of the petitioner was in operation
up to 30-09-2019 which was issued for a period of 10 years. The
petitioner is a qualified Nurse having a Diploma in General Nursing
and Midwifery. Looking at job opportunities outside the Nation, the
petitioner finds a job in Yemen at the hospitals indicated
hereinabove. All was well; the relationship between India and
Yemen gets strained and the Government of India issues a
notification on 26-09-2017 owing to national security. The
Notification speaks for itself as to why it is issued. The Notification
reads as follows:
"MINISTRY OF EXTERNAL AFFAIRS
NOTIFICATION
New Delhi, the 26th September, 2017
S.O. 3223(E).- Whereas, the security situation in
Yemen continues to be fragile with armed hostilities
continuing in parts of the country and Yemen remains
vulnerable from the security point of view;
And whereas, in view of the precarious security
situation in Yemen, the Government of India issued
various travel Advisories wherein Indian nationals
have been strongly advised to avoid travelling to that
country under any circumstances, by any mode of
travel, including air, land or sea for any purpose till
further notice:
And whereas, despite the existing travel advisories,
some Indian nationals have continued to travel to Yemen:
And whereas, section 19 of the Passports Act, 1967
(15 of 1967) empowers the Central Government to issue a
notification to make invalid the Passports and travel
documents for travel to certain countries; and clause (d) of
said section provides that upon the issue of the notification
by the Central Government that a foreign country to which
travel must be restricted in the public interest because such
travel would seriously impair the conduct of foreign affairs of
the Government of India, and a passport or travel document
for travel through or visiting such country shall cease to be
valid for such travel or visit unless in any case a special
endorsement in that behalf is made in the prescribed form by
the prescribed authority;
Now, therefore, in exercise of the powers
conferred by clause (d) of section 19 of the Passports
Act, 1967 (15 of 1967), the Central Government, being
of the opinion that it is necessary and expedient in the
public interest so to do. hereby issues the following
directions, namely:-
(i) the passport or travel document issued by the Central
Government is invalid for the travel of holder to Yemen
as the travel of the holder to Yemen would seriously
impair the conduct of foreign affairs of the Government
of India;
(ii) any Indian national who travels to Yemen in violation of
this notification, shall be liable for action under section
12 of the said Passports Act, 1967 and the passport
shall be liable for impounding or revocation, as the case
may be, under sub-section (3) of section 10 of the said
Act:
(iii) violation of the directions issued by this
notification by any holder shall be liable for
refusal of passport under section 6 of the said Act
for a period of seven years from the date of
revocation of such passport;
(iv) any Recruiting Agent or a Company sending Indian
nationals to Yemen shall be individually or collectively
held responsible, and all such Agents or Company,
including all its Directors, shall personally be liable to be
prosecuted under the relevant provisions of the Indian
Penal Code, if the Indian nationals so sent are killed or
kidnapped or come to any harm, while travelling to
Yemen:
(v) in addition to above, criminal proceedings also may be
initiated against owners of the foreign ships carrying
Indian nationals to Yemen and visas shall be denied to
them for any future travel to India.
2. The aforesaid directions are not applicable to the officials
of the Government of India posted in the Indian Embassy in
Sana by the Ministry of External Affairs and for the officials
of the Government of India or any State Government
travelling to Yemen for attending of their official duties.
3. The aforesaid directions may also be relaxed by the
Central Government for specific and essential reasons of
travel, for which permission for a limited time period may be
granted by the Central Government at the express request of
the applicant who would, nevertheless, travel at his or her
own personal risk without any liability to the Government of
India or any State Government concerned and any such
request for exemption may be sent to [email protected]
4. That the aforesaid directions may be read in conjunction
with any fresh Travel Advisory separately and simultaneously
issued by the Indian Embassy in Sana for travel to Yemen."
(Emphasis supplied)
The Notification has certain conditions issued in terms of power
conferred under Clause (d) of Section 19 of the Passports Act, 1967
('the Act' for short). One such condition is that any Indian national
who travels to Yemen in violation of the said Notification would
become liable for action under Section 12 of the Act and the
passport would become liable for impounding or revocation. The
violation of the directions in the notification by holder of an Indian
passport would result in refusal of passport under Section 6 of the
Act for a period of 7 years from the date of revocation of such
passport.
10. As observed hereinabove, for the third time, the
petitioner enters the shores of the nation on 20-08-2023. By then,
the passport of the petitioner was to expire while her stay in
Yemen. She applies for a fresh passport in the Indian Embassy at
Yemen. A fresh passport is granted, validity of which is up to
29-09-2029. It is on that strength, the petitioner enters the shores
of the nation and the aftermath of such entry is the seizure of the
passport. The issue now is, 'whether the respondents should be
directed to hand over the passport to the petitioner?'
11. Several High Courts have taken certain views interpreting
this very Notification. The High Court of Kerala in a judgment
reported in SHIRIN SHAHANA v. UNION OF INDIA
REPRESENTED BY THE SECRETARY1 has held as follows:
".... .... ....
9. On perusal of the notification extracted above, it is
evident that any Indian national who travels to Yemen in
violation of the notification is liable for inaction under
Section 12 of the Passport Act, 1967 with an exception that
the aforementioned notification would not be applicable to
the officials of the Government of India posted in the Indian
Embassy in Sana by the Ministry of External Affairs and for
2022 SCC OnLine Ker. 10123
the officials of the Government of India or any State
Government travelling to Yemen for attending their official
duties. It is further clarified that the aforementioned
direction can be relaxed by the Central Government for
specific and essential reasons of travel, for which permission
for a limited time period can be granted by the Central
Government at the express request of the applicant who
would, neverthless, travel at his/her own personal risk
without any liability to the Government of India or any State
Government concerned. Once the applicability of the
aforementioned notification, as per the later
instructions dated 18.8.2022 are in intact and
Government is empowered to grant exemption and
relaxation to the employees to travel would equally
have the jurisdiction to entertain the request of the
individual person whose passport for reaching India
after having travelled to Yemen during the validity of
the notification of 2017 to consider the request
individually and pass an appropriate order and in case
it is found that the travel was inevitable without any
mens rea, there would not be any bar for the Central
Government to carve out exception. In this view of the
matter, in case the petitioners in both the writ
petitions make individual representations to the
Secretary (Gulf), Ministry of External Affairs within a
period of one month from the date of receipt of a
certified copy of the judgment explaining the hardship
and attenuating circumstances of travel, the
respondent will decide the same in view of the
observations recorded above and in accordance with
law within another period of 30 days thereafter."
(Emphasis supplied)
The High Court of Kerala found that the travel was inevitable
without any mens rea. The Central Government was therefore
directed to carve out an exception and consider the hardship of the
petitioner therein and pass necessary orders within 30 days.
12. The High Court of Kerala in AJIKUMAR DAMODARAN
PILLAI v. CHIEF PASSPORT OFFICER2 has held as follows:
".... .... ...
3. Sri.Vivek, the learned counsel appearing for
the petitioner, in refutation of the afore submissions,
contends that the alleged suspicion harboured by the
respondents is totally untenable because he has
declared in Ext.P5 application that he does not intend
to travel to Yemen and that he is no longer employed
there. He says his client only wants to travel to the
UAE on a visit visa and that he will not make any
attempt to travel to Yemen as long as the travel ban is
in force.
In the afore circumstances, I direct the second
respondent to consider Ext.P5 application of the
petitioner and after obtaining all necessary
undertaking from him that he will not travel to Yemen
as long as it is proscribed under law, release the
passport to him or if that is not possible, issue a fresh
passport, so that the valid Yemen visa cannot be
misused by him."
(Emphasis supplied)
The High Court was dealing with a similar situation and a direction
was issued to the respondents to consider the application of the
W.P.(c) No.3691 of 2019 decided on 14-02-2019
petitioner therein after obtaining necessary undertakings that he
will not travel to Yemen as long as it is prohibited in law.
13. The High Court of Delhi in JAYAN RAVEENDRAN v.
UNION OF INDIA3 while considering the notification has observed
as follows:
".... .... ...
8. The undisputed facts of the case reveal that
on account of violation of the notification dated
26.09.2017 the passports of the Petitioners have been
seized in exercise of the powers conferred under
Section 14 of the Passports Act, 1967. Learned
Counsel for the Petitioner, at this stage, was fair
enough in stating before this Court that the Petitioners
be granted an opportunity individually to submit a
detailed representation to the Passport Officer/
competent authority and in case such a representation
is preferred by the Petitioners, the Passport
Officer/competent authority shall decide the
representation in accordance with law, within
reasonable time.
9. The prayer made by the Petitioners is a genuine
prayer and, therefore, any representation preferred in the
matter shall be decided in accordance with law by the
Passport Officer/competent authority within a period of 8
weeks thereafter."
(Emphasis supplied)
The petition was disposed of by the Division Bench granting an
opportunity to individual petitioners to submit detailed
W.P.(C) 12078 of 2022 decided on 26-09-2022
representations to the Passport Officer and the Passport Officer to
consider the same in accordance with law. Therefore, the
interpretation of the Notification in all these cases has led to a
direction being issued by the High Court of Kerala and the High
Court of Delhi, as the case would be, to consider those
representations in accordance with law.
14. In yet another judgment, again the High Court of Kerala
in the case of SATHEESH KEERTHIYIL v. UNION OF INDIA4 has
held as follows:
".... .... ....
6. I have considered the submissions advanced by Sri.
Shibin K.F and Sri.S Manu, the learned DSGI.
7. The petitioner has placed materials before this
Court to substantiate that the petitioner has been working in
a trading firm by the name "Abdulghani Ali Alherwi Trading
Houses" in Yemen since September 2002. He has been
granted a Residence Permit by the Republic of Yemen, and
his employer has issued a certificate that he can possibly
work in that firm for at least till December 2025. From Ext.P5
order issued by the RPO, following directions issued by this
Court, it is luculent that the authority had taken a decision to
impound the passport on the premise that the petitioner had
traveled to Yemen while the travel ban issued by Gazette
Notification dated 26.9.2017 was in force. The specific case
of the petitioner is that at the time of issuing the travel ban,
the petitioner was working in Yemen, and he became aware
of the ban only in the year 2020. Immediately thereafter,
W.P.(C) No.1291 of 2023 decided on 13-04-2023
while he was in Yemen, he gave Ext.P8 and P10
representations seeking exemption in terms of clause 3 of
Notification dated 26.9.2017. From Ext.P5 order, his request
was rejected by insisting that the request for exemption
must be given before traveling to the foreign country. The
respondents have failed to take note that the petitioner has
been working in Yemen from 2002 onwards and that he was
abroad at the time of issuance of notification. The records
produced by the petitioner before this Court clearly
substantiate the said fact. In that view of the matter, I am of
the view that the petitioner has not intentionally and with
malafide intent violated the notification. It is trite that
impounding the passport of a citizen based on reasons which
cannot be sustained would affect the right to life guaranteed
to the citizen under Article 21 of the Constitution of India. In
that view of the matter, Ext.P5 order issued by the 2nd
respondent cannot be sustained under law.
8. The next question is whether directions can be issued
to the respondents to grant exemption to the petitioner to
travel to the Republic of Yemen following clause 3 of Ext.P3
notification issued by the Ministry of External Affairs. Clause
3 of Ext.P3 notification reads as under:
The aforesaid directions may also be relaxed by the
Central Government for specific and essential
reasons of travel, for which permission for a limited
time period may be granted by the Central
Government at the express equest of the applicant
who would, nevertheless, travel at his or her own
personal risk without any liability to the Government
of India or any State Government concerned and any
such request for exemption may be sent to
[email protected].
9. By virtue of clause 3, the Central Government is
entitled to grant exemption to travel to a country where a
travel ban has been imposed for a limited time period at the
express request of the applicant. However, the applicant will
have to travel at his or her own personal risk without any
liability to the Government.
10. In the counter affidavit, the respondents
highlighted that the security situation in Yemen is
fragile and adverse. They have also highlighted the
extreme nature of the conflicts and the details of
Indians who have lost their life. In the notification, it
has also been stated that travel to Yemen would
seriously impair the conduct of foreign affairs of the
Government of India. The petitioner has not
challenged the notification but has only requested to
grant an exemption following clause 3. As rightly
submitted by the learned DSGI, notification clearly
states that exemption for travel can only be granted
for a limited time period. The exemption orders
produced by the petitioners as Exts.P16 and P17 also
reveal that No Objection Certificate has been issued
for short periods. It would be open to the petitioner to
approach the respondents and seek a No Objection
Certificate for travel for shorter periods and there is no
reason why such requests shall not be taken up for
consideration and proper orders are issued."
(Emphasis supplied)
The High Court of Kerala holds that the Notification clearly states
that exemption to travel can only be granted for a limited time.
Exemption orders were directed to be granted on appropriate
representation being made by the petitioner therein.
15. The issue in the case at hand is not that the petitioner is
wanting to travel back to Yemen. She was already in Yemen, when
the Notification was issued. She comes to India and has
undertaken that she will never travel back to Yemen in the light of
the Notification coming to the knowledge of the petitioner. The
issue now is to redeem the situation as the petitioner is wanting to
secure employment for which the passport is necessary. The
notification prohibits re-delivery of passport after seizure for a
period of seven years, for redeeming such circumstances, the
learned Deputy Solicitor General of India has placed on record an
Office Memorandum dated 26-10-2022. The Office Memorandum
reads as follows:
"Subject: Releasing Passports of Persons who
travelled to Yemen-reg.
In view of the adverse security situation in Yemen, the
Ministry had issued Gazette Notification No.S.O.3223(E)
dated 26.09.2017. subsequently. Passports of those Indian
citizens who happened to travel to Yemen were seized by
FRRO/Police Authorities and sent to concerned RPOs for
further action. As a result of this, many representations from
such passports holders to release their passports have been
received by PIAs who in turn have approached the Ministry
for directions.
2. In this regard the PIAs are advised to process the release
of the passports in such cases as per the procedure given
below:-
I. PIAs to examine such cases in detail by
recording an internal note.
II. PIAs to refer such cases thereafter to JS(Gulf)
giving full facts and a clear recommendation.
Duly endorsing a copy to PSP Division.
III. JS (Gulf) to take decision whether to release the
passport or not and to communicate the same to
the concerned PIA, with a copy to PSP Division."
(Emphasis supplied)
The passport issuing authorities are directed to process release of
passports in cases which are covered under the Notification on the
aforesaid three conditions. It would not be inapposite to mention
that a starred question was raised in the Rajya Sabha. While
answering the question, the Minister for External Affairs with regard
to the seizure of passport has replied as follows:
"(a) to (d): In view of the fragile political and security
situation in Yemen, Government of India promulgated a
travel ban to Yemen through Gazette Notification S.O.3223
(E) dated 26 September 2017 (Annex-l). The Notification
continues to remain in force. Under the provisions of this
Notification so far, 422 passports have been seized by Indian
authorities for travelling to Yemen despite the travel ban. No
passports have been seized for travel to any other country.
In order to mitigate the sufferings of the people who
had travelled to Yemen due to job compulsions or due
to ignorance, Government has issued guidelines to all
Passport Issuing Authorities to process the release of
passports on case-to-case basis. A final decision for
release of passports is taken by the Ministry of
External Affairs and conveyed to Passport Issuing
Authorities. So far, 169 passports have been released.
Any Indian citizen whose passport has been seized for
travel to Yemen despite the travel ban can approach
the respective Passport Issuing Authority for release
of the passport. Government continues to take a
compassionate view on individuals who have travelled
to Yemen despite the travel ban"
(Emphasis supplied)
The reply is, any Indian citizen whose passport has been seized for
travel to Yemen despite the travel ban can approach the respective
authorities for release of the passport. The Government would take
a compassionate view is what is replied to. It also indicates that
169 passports of the kind have already been released.
16. In the light of the aforesaid circumstances what becomes
unmistakably clear is, that this Court would not enter into doing any
violence to the Notification, as the Notification is issued in
furtherance of security of the nation. If any Notification or law is
brought into force for the purpose of security of nation, Courts
exercising jurisdiction under Article 226 of the Constitution of India
would be loathe to even consider such cases, as the security of the
nation is paramount, though the Notification is not under challenge
in the case at hand. Nevertheless, it is the interpretation of the
Notification that is projected by the petitioner. In the light of the
aforesaid answer by the Minister for External Affairs, I deem it
appropriate to permit the petitioner to submit a detailed
representation to the Regional Passport Officer, in whose custody
the passport of the petitioner is, to consider the case of the
petitioner strictly in consonance with what is observed in the course
of the order, as also the orders passed by the High Court of Kerala
and the High Court of Delhi. Therefore, the writ petition deserves
to succeed, albeit in part, only for a direction for consideration of
the representation of the petitioner, for redressal of the grievance.
17. For the aforesaid reasons, the following:
ORDER
(i) The Writ Petition is disposed.
(ii) Liberty is reserved to the petitioner to submit a
representation for redressal of her grievance.
(iii) If a representation is submitted by the petitioner within
4 weeks from the date of receipt of a copy of this order,
the same shall bear consideration at the hands of the
Regional Passport Officer, the 3rd respondent, within 4
weeks thereafter in accordance with law, bearing in
mind the observations made in the course of the order.
(iv) It is made clear that no delay should be brooked by the
3rd respondent.
Sd/-
JUDGE
bkp
CT:SS
