Srinagar: The High Court of J&K and Ladakh on Monday held that an individual cannot be denied the right to a passport on the official premise that the applicant’s brother was a militant and father an “overground worker” (OWG) of some militant outfit.
The observation was recorded in the case of 29-year-old Mohamdd Amir Malik, an engineering graduate from Shagan village of Khari, Ramban Jammu. The applicant wanted to seek an overseas job but was denied a passport by the External Affairs Ministry of the Government of India and the regional police officers on the grounds that Malik’s brother was a militant, who was killed by the government forces some 14 years ago.
Justice M A Chowdhary, after hearing the argument of the parties, recorded: “The argument of the authorities deserves to be rejected on the ground 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.”
Malik had applied for the issuance of a passport in September 2021. After screening and verification, he was told that his case would be processed through concerned quarters of CID/Police and reports submitted to the office of the Regional Passport Officer, Jammu, for taking decision with regard to grant of passport in his favour.
After waiting for sufficient time, Malik was not informed about the status of his case, forcing him to approach the Passport Office and to verify about his case in the office of Additional Director General of Police (CID) J&K. Here he was told that his police verification report was not clear, as such, his application is under review in the Regional Passport Office.
The Ministry of External Affairs and the passport officer in their counter stated “on 17.06.2022, 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 dated 03.08.2022 was issued to the petitioner to furnish explanation for ‘not cleared’ police report; and lastly that the petitioner instead of replying to the show cause notice issued to him, has approached this court, through the medium of the instant petition”.
They also stated “the possibility of the applicant coming under duress, influence or extraneous pressure of anti-Indian terrorist/separatist/secessionist outfits of elements of hostile foreign agencies has been assessed to be of very high probability; that after consideration of the field report, the case of the petitioner for issuance of passport has been disposed of not recommended”.
The court found that there has not 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”, it said.
It added that the basis for not recommending the case of the petitioner for issuance of passport does not have any reasonable relation or nexus with the activities of the petitioner as the same do not even remotely connect the petitioner with any activity which could be termed as prejudicial to the security, sovereignty and integrity of the state or the country.
The court noted “the non-recommendation of the case of the petitioner is based upon material which can be said to be nothing but in the realm of speculation. The petitioner cannot be deprived of his right as enshrined under Article 21 of the 9 WP(C) No. 21/2023 of the Constitution on the basis of the alleged misdemeanours of his brother and that the law on the subject is no longer res integra”.
It cited certain earlier judgments on cases of similar nature and said that it is not permissible under law that when ‘A’ has committed a crime, ‘B’ should be punished. In the instant case also, the petitioner is sought to be punished for the alleged sins of some other person.
It opined that there is no reason to not recommend the case of the petitioner for issuance of 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.
It directed the Additional Director General of Police, CID, to re-submit the report uninfluenced by the conduct or activities of the brother of the petitioner as well as his father to Regional Passport Officer within four weeks who shall consider the case and pass an appropriate order in favour of the petitioner, within two weeks thereafter.
