The story so far: A recent circular issued by the police in Kashmir has asked field intelligence units to look into the past record of involvement in stone-pelting incidents and other street protests whenever someone applies for a passport or a government job. Security clearance can be denied to applicants if the police find evidence of any criminal activity in their records. The development brings to the fore the circumstances in which applicants can be refused a passport or a government job based on their antecedents.
Can antecedents of an applicant be used to deny a government job?
It is fairly well-known that verification of the character and antecedents of a person is part of the recruitment process for government jobs. This is usually based on a form filled up by the applicants themselves in which they will have to say whether or not they have been arrested, detained or prosecuted in the past, as well as state whether any criminal proceedings are pending against them. While the presence of a criminal record is not an automatic disqualification, it can be used to cancel the applicant’s candidature. Case law from various High Courts and the Supreme Court shows that the employers are not bound to appoint anyone with a criminal record, but they do have the discretion to consider the nature of the pending proceedings or concluded cases and make a decision. However, suppression of relevant information on one’s criminal record is considered quite grave, and can lead to both criminal prosecution and cancellation of candidature, if yet to be appointed, or termination of services, if already recruited. If there is a long delay between the appointment of a person and the surfacing of the truth about a past incident, an inquiry will be required to establish the circumstances in which the facts were suppressed before a confirmed employee’s services are terminated. The Supreme Court summarised principles culled out from a series of judgments over many decades and set out some guidelines in Avtar Singh vs. Union of India (2016) .
Editorial | Circumscription: on security clearances for passport or government jobs
When can the passport authority deny an applicant a passport?
Under Section 6(2) of the Indian Passports Act, 1967 , the passport authority can refuse to issue a passport for specific reasons such as the applicant being not a citizen of India; that the applicant may engage, outside India, in activities prejudicial to the country’s sovereignty and integrity, or that the applicant’s departure may be detrimental to the country’s security; or that the person’s presence abroad may prejudice India’s friendly relations with a foreign country.
Refusal of passport may also be related to a person’s antecedents. Conviction for any offence that involves “moral turpitude” with a sentence of not less than two years in the five preceding years would mean denial of passport. It can also be refused if any proceedings are pending in a criminal court against the applicant; and if any arrest warrant or summons for appearance is pending. There is a general power to deny a passport or travel document to anyone “if in the opinion of the Central government, it is not in public interest”.
Is there a legal remedy if an application is rejected?
Section 22 of the Act confers power on the Union government to exempt any person or class of persons from its provisions by way of notification. On August 25, 1993, the Ministry of External Affairs issued a notification to provide relief to citizens against whom proceedings are pending before a criminal court. Under this notification, they can be issued a passport or travel document if they produced an order from the court concerned permitting them to depart from India. If the court specified a period in its order, they could be issued passports with validity for that period, or, if no period was specified, it could be given for one year.
What have the courts said on these provisions?
In January 2016, the Delhi High Court upheld the validity of Section 6(2)(f) of the Act , which allows the Centre to refuse a passport to anyone against whom criminal proceedings are pending. Prashant Bhushan, senior advocate, the petitioner in this case, appealed against the verdict in the Supreme Court. His main contention was that the clause makes no distinction between serious and non-serious offences, or even bailable and non-bailable offences, and is, therefore, unreasonable and arbitrary. The 1993 notification is also under challenge in the same case for imposing an ‘arbitrary’ one-year limit for the validity of a passport issued on the basis of a court order.
