Right to Travel Abroad a 'Necessity, Not Privilege': P&H High Court Calls for Pragmatic Approach

CHANDIGARH – In a significant ruling that recontextualizes the right to travel within modern socio-legal realities, the Punjab & Haryana High Court has asserted that courts must adopt a liberal and pragmatic approach when considering applications from accused individuals seeking permission to travel abroad. Justice Sumeet Goel, in a single-judge bench, emphasized that in today's globalized world, international travel has evolved from a "rarefied privilege" to a "quotidian necessity."

The Court, in the case of Jonty Chhag @ Jonty Vinay Chhag v. State of Haryana , set aside a trial court's order denying permission and delivered a comprehensive judgment that serves as a guiding framework for lower courts. The observations underscore the need for the judiciary to step out of any "ivory tower" and engage with the evolving dynamics of a seamlessly interconnected world.

The Right to Travel: An Indispensable Facet of Article 21

At the heart of the judgment is the robust affirmation of the right to travel abroad as an integral component of the fundamental right to life and personal liberty, as enshrined under Article 21 of the Constitution. Justice Goel articulated that this right is no longer a peripheral consideration but a core aspect of an individual's existence.

"The right to travel abroad has, through the efflux of time and the exigencies of modern life, become so profoundly entrenched and inextricably interwoven with the daily affairs of an individual that it is now an indispensable facet and an ineluctable corollary of the fundamental right to life & liberty," the Court observed.

This powerful declaration reframes the judicial deliberation on such applications, moving them from a mere procedural checkpoint to a matter of fundamental rights. The Court stressed that any consideration of an accused person's request to travel must be "moored in this modern socio-legal context."

A Delicate Balancing Act: Individual Rights vs. Societal Interest

While elevating the right to travel, the Court was careful to clarify that it is not an absolute or unbridled license. Justice Goel highlighted that this right is "amenable to curtailment under the aegis of judicial scrutiny." The core task for any court, therefore, is to perform a "delicate and judicial balancing act."

The judgment delineates the two competing interests that must be weighed: 1. The fundamental right of the undertrial/accused to pursue their legitimate personal and professional affairs, which in a globalized era, often necessitates international travel. 2. The collective interest of society and the prosecution to ensure the unwavering presence of the accused at trial, thereby preventing a situation where justice is frustrated by the accused's permanent absence.

This equilibrium, the Court noted, must be maintained to prevent a "fait accompli" where the judicial process is rendered ineffective.

Redefining 'Likely' in Flight Risk Assessment

A common and often potent objection raised by the prosecution is the "flight risk" of the accused. The prosecution frequently argues that it is "likely" the accused will flee justice and never return. Justice Goel's judgment provides a crucial interpretive lens for this very term.

The Court opined that "'likely' be construed as denoting a reasonable probability or a palpable probability rather than a mere nascent possibility or a speculative probability." This distinction is critical, as it raises the bar for the prosecution. A mere speculative fear or a remote possibility of the accused absconding is insufficient to curtail a fundamental right.

"This distinction is crucial because assessing the 'likelihood of fleeing' necessitates a predictive judgment concerning future conduct—an inherently complex and often indeterminate task upon which no conclusive adjudication can be made with absolute certainty," the single-judge added. This calls for a evidence-based assessment rather than relying on conjecture.

Trial Delay Not a Sufficient Ground for Denial

Another standard ground for opposing travel permission is the potential for procrastination of the trial. Justice Goel firmly stated that the chance of a trial being delayed, by itself, cannot be a sufficient reason to deny permission.

While acknowledging that this concern is a "pertinent factor," the Court suggested that it can be managed through remedial measures. These measures can safeguard the interests of the prosecution without imposing a complete bar on travel. The Court suggested: * Obtaining an affidavit from the accused agreeing that trial proceedings, including the recording of evidence, can continue in their absence but in the presence of their counsel. * The accused must agree to be bound by such proceedings.

This pragmatic approach also extends to cases at the investigation stage, where an undertaking from the accused can allay the prosecution's fears and ensure the investigation is not hampered.

A Framework for Judicial Discretion

Concluding its observations, the High Court laid down several factors that courts should consider on a case-by-case basis to exercise their discretion judicially:

• Gravity of Allegations: The seriousness and nature of the charges against the accused.
  
  
• Antecedents and Roots: The accused person's past record and their ties to the community, family, and property in India, which can indicate the likelihood of their return.
  
  
• Bona Fides of Travel: The genuineness of the purpose and the specified duration of the proposed travel.
  
  
• Willingness to Furnish Security: The accused's readiness to provide a substantial security or bond to ensure their repatriation.

In the instant case, considering that the petitioner had been previously permitted to travel abroad and had returned, and that the case had been pending since 2018, the Court found it appropriate to allow the plea, subject to conditions.

This judgment from the Punjab & Haryana High Court is a progressive interpretation of constitutional liberties in the 21st century, providing a clear and modern jurisprudence for trial courts to follow when adjudicating upon the crucial right of an individual to travel across borders.