Right to Travel Abroad Under Article 21

Source: Rajasthan High Court 

Why in News? 

Recently, Justice Anoop Kumar Dhand held that denial of permission to travel abroad for religious purposes due to a pending 498A of Indian Penal Code,1860(IPC) case violates Article 21 Constitution of India,1950 (COI); courts must pass clear orders to guide Passport Authorities. 

• The Rajasthan High Court  held this in the matter of Mohammad Muslim v. The Union of India (2025). 

What was the Background of Mohammad Muslim v. The Union of India (2025) Case? 

• Mohammad Muslim Khan, a 61-year-old resident of Kota, Rajasthan, filed a writ petition before the Rajasthan High Court challenging the rejection of his passport application for traveling abroad to perform Haj pilgrimage. 
• The petitioner was facing trial in Criminal Case No. 164/2021 before the Judicial Magistrate No. 3 (North), Kota, for offences punishable under Sections 498-A (cruelty to wife) and 406 (criminal breach of trust) of the Indian Penal Code. A charge-sheet had been filed against him and trial proceedings were ongoing. 
• The petitioner, who held passport bearing number 25-1001530353, sought to travel to Mecca-Medina for performing religious rituals of Haj, Umra, and Jiyarat. He first approached the trial court on 16th April 2025 seeking permission to travel abroad for this religious purpose. 
• The trial court disposed of his application vide order dated 16th April 2025, directing him to approach the Passport Authority with a copy of his passport, and instructing the Passport Authority to take appropriate action in accordance with law. However, no clear permission was granted by the trial court. 
• Following the trial court's direction, the petitioner approached the Regional Passport Office, Kota. However, vide letter dated 7th May 2025, the Passport Authority informed him that no permission had been granted for his departure from India (Videsh Yatra). 
• After receiving the rejection letter from the Passport Authority, the petitioner submitted another application before the trial court on 12th May 2025, again seeking permission to travel abroad for Haj. This application was rejected by the trial court vide order dated 15th May 2025 on technical grounds, stating that similar permission had already been granted in the previous order dated 16th April 2025. 
• The petitioner contended that despite submitting two separate applications, neither was decided on merits, and clear permission was never granted. He argued that denial of permission to travel abroad for religious purposes violated his fundamental right to personal liberty under Article 21 of the Constitution of India. 

What were the Court’s Observations? 

• The Court observed that denial of permission to travel abroad amounts to violation of fundamental rights of a citizen contained under Article 21 of the Constitution of India. Every citizen of India has a right to travel abroad, as established by the Supreme Court in the landmark case of Maneka Gandhi v. Union of India. 
• The Court held that pendency of criminal case under Sections 498-A and 406 of the Indian Penal Code cannot be a ground to deny permission to travel abroad for religious purposes such as Haj, Umra, and Jiyarat. Such denial constitutes violation of the fundamental right to personal liberty guaranteed under Article 21. 
• The Court noted that it was required to draw a balance between the petitioner's right to travel abroad and the prosecution's right to proceed with the trial. The paramount consideration should be given to conditions imposed upon persons granted permission to travel abroad to ensure they do not flee from trial. 
• The Court observed that even the notification dated 25th August 1993 issued by the Ministry of External Affairs provides a procedure whereby any person against whom a criminal case is pending can be allowed to depart from India, provided permission is granted by the competent court. 
• The Court observed that on many occasions, due to non-passing of clear and specific orders by trial courts, the Passport Authority is not in a position to take appropriate decisions. The Court emphasised that subordinate courts must pass clear and specific orders when applications are submitted by accused persons seeking permission to travel abroad, to avoid confusion in the mind of the Passport Authority. 
• The Court noted that the trial court's rejection of the second application on technical grounds was inappropriate, as no clear permission had actually been granted in the earlier order dated 16th April 2025. This created confusion for the Passport Authority in making its decision. 
• The Court observed that appropriate conditions could be imposed to ensure the presence of the petitioner before the trial court, and in case such conditions are violated, appropriate coercive action could be taken to maintain the integrity of the judicial process. 

How does Right to Travel Abroad Comes under Article 21? 

• Constitutional Recognition and Judicial Evolution: The right to travel abroad has been judicially recognized as an integral component of personal liberty guaranteed under Article 21 of the COI, which provides that no person shall be deprived of life or personal liberty except according to procedure established by law. This right evolved through landmark judicial interpretations, transforming from a mere privilege to a constitutionally protected fundamental right. 
• Supreme Court Precedent: In the landmark case of Maneka Gandhi v. Union of India (1978), the Supreme Court established the foundational principle that the right to go abroad is part of personal liberty under Article 21, holding that personal liberty includes the right to move freely and travel outside the country, and any restriction on this right must satisfy the test of reasonableness and due process. 
• Scope of Travel Rights: The right to travel abroad flows naturally from the concept of personal liberty and human dignity, encompassing freedom of movement across international boundaries, the right to seek opportunities for education, employment, or business abroad, maintaining social connections with family members internationally, and undertaking religious pilgrimages and spiritual journeys. 
• Reasonable Restrictions: While recognized as a fundamental right, the right to travel abroad is not absolute and can be subject to reasonable restrictions in the interest of national security and public order, prevention of crime and ensuring compliance with legal obligations, protection of health and morals, and maintaining sovereignty and integrity of the nation. 
• Procedural Safeguards and Due Process: The Supreme Court emphasized that any procedure established by law for restricting travel rights must be fair, just, and reasonable rather than arbitrary, ensuring that governmental action in limiting this fundamental right adheres to constitutional principles of due process and proportionality. 

What are the Previous Legal Framework under Indian Penal Code? 

• Section 498-A of the IPC (Now Replaced): Prior to the enactment of BNS, cruelty by husband or relatives of husband was addressed under Section 498-A of the IPC,1860. 

What is Section 85 under Bhartiya Nyaya Sanhita,2023 (BNS)? 

• Section 85 - Cruelty by Husband or Relatives of Husband: 
  • The Bharatiya Nyaya Sanhita, 2023, which replaced the Indian Penal Code, addresses cruelty against women under Section 85, with the definition of "cruelty" provided under Section 86. 
• Section 86 - Definition of Cruelty:  
  • Under the BNS framework, "cruelty" is comprehensively defined to include two distinct categories of conduct: 

Category (a) - Wilful Conduct: Any intentional behavior that is of such nature as is likely to drive the woman to commit suicide or cause grave injury or danger to life, limb, or health, whether mental or physical, of the woman. This encompasses psychological torture, emotional abuse, and systematic harassment that severely impacts the victim's mental and physical well-being. 

Category (b) - Harassment for Unlawful Demands: Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for property or valuable security or is on account of failure by her or any person related to her to meet such demand. This specifically targets dowry-related harassment and property-based exploitation.