An Indian Historical perspective
The desire of a man is equal to the desire of a bird…to fly as high one can.
It was 1909 when initiated the engine of their invention that crystallized every person’s ever-lasted desire to fly into reality. After the invention in 1909, it was 1911 when the first flight in India initiated by Henry Piquet. This desire to fly was comprehended to be something that the elite mass can rejoice. This became the reason due to which there is no freedom to fly enshrined in the Constitution of our country, nor in any of the countries.
The concept of fundamental right is every closely connected to human rights. Fundamentally speaking Part III of the constitution consists of basic human rights, which is attached to the person since the time of its birth. So, the next question is whether freedom to fly a human right? Of course, not! The reason being, the desire was only fulfilled with the invention of air-plane and is not necessary for human existence. Therefore, how can this freedom be a basic human right? This rationale could be a justiciable thought as to why didn’t draftsmen add freedom to fly in the Constitution.
“Stagnancy risks our promises” Stagnancy is understood to be mutually exclusive to development. So with the advent of new technology, the law has to change and mold itself in a manner to fit the structure of the society appropriately. In order to maintain the dynamic nature of law, the Constituent assembly kept a reservoir that would help the law to maintain pace with technology. In Unnikrishnan v State of Andhra Pradesh, the judges of the Apex Court clearly said that Article 21 has a negative notation with the sole reason that the meaning and the ambit of the provision could reason well beyond the zenith of the man’s foresight or reasons. The courts have used this to include many rights into the garb of right to life, which is again a fundamental right. The would ‘liberty’ has canons of interpretation which aided the Supreme Court to add rights like; right to livelihood, right to shelter, right against sexual harassment at workplace, right to reputation, right to privacy and importantly, right to travel abroad.
In Satwant Singh Sawhney v D. Ramarathnam, the court recognised the freedom to travel abroad to be an integral part of personal liberty as mentioned in Article 21. The court in Maneka Gandhi v Union of India and another, reiterated the very same ratio as laid down in Satwant Singh’s case, the court said that with the developing society the law has to develop the law has to evolve simultaneously. The freedom to travel is enshrined under article 19 of the Constitution but within the territory. However, the Universal Declaration of Human Rights (hereinafter referred to as UDHR) declares that every man has the right to leave any country even his own and return back as well. India being a signatory member of the UDHR, it becomes duty-bound under Article 51, which recommends allegiance towards the International convention, to follow the convention. So, multiple authority on the same point hits the last nail to the coffin to make the freedom to travel abroad a fundamental.
The meaning of the words ‘personal liberty’ is wide when to include the liberty to choose the mode of transport the person seeks. An era where time is money, the consumption of time has become the object of every individual, hence the aviation industry is booming. So, this clarifies that every person has the liberty to choose to travel abroad by air. Therefore, in conjunction, it is understood that the person has the liberty to travel abroad by air. Empirically, freedom to fly has been recognized subjected to the procedure established by law.
Recently, its seen that the Madras High Court has referred to Maneka Gandhi’s ratio when the Professor of Madras University was asked to deposit her passport without a due reason behind the same. The court, additionally, said the right to travel is a fundamental right available even to a criminal because a criminal is no different from any other person. The fundamental right does not cease to exist just for the reason that they are criminals.
Conclusively, it can be understood that the freedom to fly is now a recognized fundamental right.