In a brazen travesty of the law, the passport of Swami Nithyananda was impounded on 29 April 2010 with no intimation or justification or opportunity to present his case.
The Passport Officer had issued a show cause notice vide letter Ref: 26/CRM/31/10 dated 15.04.2010 through speed post. The said show cause notice stated stating therein that since two criminal cases vide CR. No.141/10 and CR. No. 142/10 are registered against Swami Nithyananda at Ramanagar Police station and the same is still pending therefore he was called upon to explain as to why action should not be initiated against him under section 10(3) (e) of the Passport Act, 1967. He was further directed to surrender the passport along with a reply within seven days failing which action will be initiated to impound the passport.
Since Swami Nithyananda was on his spiritual tour to North India, therefore the said letter was not received by him personally; hence he was unable to reply to the said letter.
Then within a span of about a week of expected receipt of the letter, the Passport Officer vide his letter dated 26/CRM/31/10 dated 29.04.2010, which was sent by speed post and the same was received in the Ashram on May 3rd 2010, decided to impound the Passport of Swami Nithyananda stating therein that two criminal cases vide. CR. No. 141/2010 and CR.No.142/2010 are registered against him, it has been decided to impound the passport and the same is Impounded.
This order passed by the Passport officer is atrocious and untenable in law and is in violation of the principles of natural justice specially incorporated in section 10 (5) of the Passport Act 1967. The cryptic order is not a ‘reasoned’ order as contemplated u/s 10 (5) of the said Act. The order also doesn’t specify which is the rule under the said act 1967 is violated for impounding the passport.
The two criminal cases referred to in the order were based on frivolous complaint which doesn’t disclose the offence of whatsoever nature. A filing of criminal cases if treated as a reason for impounding a passport, then 90% of our politicians, few prominent cine actors and many distinguish respected personalities including industrialists could be subject to an atrocious action u/s 10 (3) (e) of the said act.
Till then not even a single victim had come forward to support the allegations made in the FIR. It was the first case in India registered by the police on hearsay evidence where there was no victim and no crime alleged.
The action of the police officer taking cognizance and thereafter issuing notice by the Passport officer for impounding the passport without providing any reason is nothing but a gross violation of Article 21 of Constitution of India.
When the impounding letter was sent by speed post Swami Nithyananda was in custody after his illegal arrest so it was mandatory on part of the Passport Officer to serve the letter personally on him. The very action of impounding the passport, without serving the said letter personally, was per se illegal, arbitrary and irrational.
Since the impounding of a passport has civil consequences, the passport authority failed to give an opportunity of personal hearing to Swami Nithyananda before impounding his passport. It is well settled principle of law that any order which has civil consequences must be passed after giving appropriate opportunity of hearing to a party.
The appellant states that the “due process” of law, calling upon the person for a personal hearing and showing the statements and the reasons, before impounding the Passport was not followed by the Passport Officer.
The passport authority before impounding the passport failed to specify the grounds as set out in section 10(3) and also failed to apply its mind to the facts and circumstances of the case as to really there was any specific grounds existed which would justify impounding of the passport. The Passport authority also failed as per s. 10(5) to record in writing a brief statement of the reasons for making the order impounding a passport.
The Passport Authority also failed to provide the “reasons” for impounding the passport and this was not only in breach of the statutory provisions but it also amounted to denial of opportunity of hearing to the person.
Freedom to go abroad has much social value and represents a basic human right of great significance. It is in fact incorporated as in alienable human right in Article 13 of the Universal Declaration of Human Rights.
Before passing of the ‘prompt’ and final order the reasons for impounding of the passports were not disclosed nor a reasonable hearing given. Thus the ‘drastic power’ impounding the passport was, therefore, clearly in violation of the rule of natural justice and it was not in conformity with the procedure prescribed by the Passports Act, 1967.
As the Hon’ble Supreme Court in the case of State of Orissa Vs. Binapani Dei [Air 1967 SC 1269] has observed that “ An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fair play. The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is however under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity of correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice. For that purpose the person against whom an enquiry is held must be informed of the case he is called upon to meet, and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitution ‘setup that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be perform; it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the tails of justice be ignored and an order to the prejudice of ‘a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.”
The Passport Office revoked the suspension in August 2010.
However, the order which took just 2 weeks to take effect of impounding took a whole 2 years to become effective when finally Swami Nithyananda’s passport impounding was released.