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Not in right spirit: why Delhi HC Bhushan passport ruling is worrying

Saurav Datta | Updated on: 14 February 2017, 5:13 IST

A government of laws, not of men. This dictum, laid down in 1780 by John Adams, one of the founding fathers of America, is accepted as fundamental to governance in all democratic societies professing to abide by the rule of law.

However, the treatment the government has meted out to activist lawyer Prashant Bhushan - arbitrarily denying him the right to renew his passport for the full 10 years - clearly demonstrates that not all authorities abide by this principle.

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But then, if the government acts with malice, or outside the boundaries of the law, the courts have both the responsibility and the power to strike down such actions, and protect the citizens' fundamental rights.

It's in this regard that the Delhi High Court's ruling in the government's favour and against Bhushan is disconcerting - the court appears to have been lackadaisical in exercising its vast powers of judicial scrutiny.

Bullying by the rule book

At first blush, the government's action of renewing Bhushan's passport for only a year and not 10 years as is the norm doesn't appear to be illegal. For the law - Section 6(2)(f) of the Passport Act, along with a 25 August 1993 notification, No. G.S.R. 570(E), issued by the foreign ministry - allows the state ample discretion in deciding who shall be issued a passport, and under what conditions.

If a person has any criminal case pending against him in a court of law, the government is empowered to impose restrictions on issuance of a passport. The law makes no distinction between serious offences and minor ones. A person's fundamental right to travel abroad can be restricted even if a minor case - say a simple traffic violation under the Motor Vehicles Act - is pending against him.

This lack of distinction and categorisation gives the government vast powers - of booking its critics and detractors under frivolous and malicious criminal charges, and then making the self-serving argument that his right of travel and movement must be restricted.

If courts swap judicial assertiveness for timidity, the state would get illegal leeway: @SauravDatta29

This was precisely what the government did to Bhushan, thereby compelling him to move court. Bhushan has two criminal cases pending against him - for unlawful assembly under Section 144 of the CrPC and another for violating traffic rules. Both are pending before a metropolitan magistrate at the Patiala House Court.

The first case pertains to his act of sitting on a dharna during a protest against the coal scam. The then Congress government of Delhi, led by Sheila Dixit, and the Delhi police had declared the dharna an unlawful assembly.

So, Bhushan's arm-twisting, although done under the garb of legality, was clear. But what is baffling is the current regime's determination to continue with the fraud perpetrated by its predecessor, and bitter political opponent.

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A reason could be the indefatigable Bhushan's trenchant criticism of the BJP government's policies, and actions of Narendra Modi. Last May, for example, he blasted the Modi sarkar for filling national institutions with roguish and incompetent people, and for saffronising education.

In October, he fired another salvo, charging Modi and Amit Shah of colluding with the people accused of perpetrating the 2002 Gujarat pogrom.

Abdication of judicial duty?

In the high court, Bhushan had challenged not only the government's refusal to renew his passport for over a year, but also the very constitutional validity of provisions that allow such skulduggery and harassment under the ruse of legality.

Initially, in February last year, a single-judge bench of the court asked the government to explain its actions. Then the case was taken up by a division bench led by Chief Justice G Rohini.

Did Delhi HC let govt get away with dirty tricks in @pbhushan1 passport case? asks @SauravDatta29

It's a no-brainer that the judges would not have been blind to the tricks the government was playing. One could thus legitimately expect that even if the court desisted from striking down or reading down the laws, it would at least come to Bhushan's aid and direct his passport to be renewed for 10 years.

More so when the government resolutely argued that the judiciary should stay away from such matters and leave the issuing and renewing passports entirely to the discretion - and, of course, whims aned caprices - of the state.

However, disappointingly, the court showed deference to the government's intentions, and ruled against Bhushan. It held that merely because he was being inconvenienced, Bhushan wasn't entitled to claim that his fundamental right had been violated or unreasonably restricted in any manner whatsoever.

No one is arguing in favour of unbridled exercise of judicial power, which often leads to piquant and disastrous consequences. But at the same time, if courts swap bold judicial assertiveness for timidity, dishonest governments would only get illegal leeway.

Bhushan's loss only proves how true this is.

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First published: 9 January 2016, 6:56 IST
Saurav Datta @SauravDatta29

Saurav Datta works in the fields of media law and criminal justice reform in Mumbai and Delhi.