M. S. MENON, C. J. (O. P. 1135/65) : The petitioner is a young graduate in medicine and surgery. He obtained facilities for higher training and study In the United States of America and applied for a passport. The application was rejected. This petition challenges the validity of that rejection.

2. There is no statute in this country governing the issue of a passport or a refusal thereof. Any legislation in that behalf under entry 19 of List I of the Seventh Schedule to the Constitution - admission into, and emigration and expulsion from India; passports and visas - is still a matter for the future.

3. There is, however, a statute taking power to require passports of persons entering India, the Indian Passport Act, 1920. Rules, the Indian Passport Rules, 1950, have been framed under S. 3 of that enactment.

4. V.G. Row v. State of Madras, AIR 1954 Mad 240, took the view that there is no provision forbidding an Indian citizen from entering India without a passport. That view was not accepted in Abdul Rahim v. State of Bombay, AIR 1958 Bom 115. The Bombay decision was affirmed by the Supreme Court in Abdul Rahim v. State of Bombay, AIR 1959 SC 1315. The Supreme Court said :

"We have no hesitation in saying that the words used in S. 3 of the Act and Rr. 3 and 4 of the Rules make it quite clear that they apply to every person including an Indian citizen. Under S. 3(1) of the Act the word 'persons' has been stated without any qualification. Under S. 3(2)(a) the words employed are 'any person' and in R. 3 the words employed are 'no person'. Clause (b) of R. 4 obviously applies to Indian citizens but those mentioned in that clause have been specifically exempted from the operation of R. 3. Clause (h) of R. 4(1) can apply to Indian citizens who are by religion Mohomedans. They have been exempted. Therefore, on a reasonable interpretation of S. 3 of the Act and Rr. 3 and 4 of the Rules there can be no manner of doubt that these provisions apply to all persons including Indian citizens.'

5. Rule 26 of the Defence of India Rules, 1962 also has a bearing on the subject. Sub-rule (2) of that rule provides that if any person enters India in contravention of the provisions of, or of any rule or order made under, the Indian Passport Act, 1920, he shall, without prejudice to any other proceedings which may be taken against him, be punishable with imprisonment for a term which may extend to five years, or with fine, or with both.

6. In the light of the above provisions and the general insistence on passports by all countries, it will certainly be an act of foolishness if the petitioner left this country without a passport on the basis of paragraph 11 of the affidavit filed on behalf of the Union of India in O. P. No. 1883 of 1065 which was heard along with this petition. That paragraph reads as follows :

"The requirement of a passport under the Indian Passport Act, 1920 arises only in the case of a person desiring to enter India from abroad. A person like the petitioner may have no difficulty for getting a passport for that purpose, if occasion arises and he applies for it. The apprehension that the petitioner may find it difficult to enter India, unless lie has got a passport is baseless."

Choithram v. A.G. Kazi, 67 Bom LR 544 : (AIR 1966 Bom 54 ), a decision in which the contentions urged before us on behalf of the petitioner were urged and accepted, also indicates that there are instructions by the Government of India to the carriers and travel agencies to the effect "that they should not take on board passengers leaving India without valid, passports."

7. The passport system, as it obtains at present, is the product of a long and interesting growth. Its story is traced by Weis in his book in the Library of World Affairs, Nationality and Statelessness in International Law, on pages 219-29. He points out that while the term passport has been used for centuries, its meaning has undergone considerable changes in the course of time, that ifs firs