14 March, 2018
The Supreme Court of India has termed the right to travel beyond the territory of India as a fundamental right guaranteed under Article 21[1] of the Constitution of India. This was most famously stated in the case of Menaka Gandhi v Union of India (Supreme Court, 1978), which had confirmed its earlier judgment in Satwant Singh Sawhney v D. Ramarathnam (1967). As a signatory to the Universal Declaration of Human Rights (1948), Indian legislation in this regard is also bound by Article 13, which guarantees people: (1) the right to freedom of movement and residence within the borders of each state; and (2) the right to leave any country, including their own, and to return to their country.
However, reasonable travel restrictions are constitutionally valid, and are enforced through the provisions of the Passports Act, 1967.[2] Recently, Governmental agencies, police authorities and courts have begun issuing these restrictions through ‘Look out Notices’ or ‘Look out Circulars’ (LOC). These communications are being issued to restrict the departure of persons from India if they are subject to an investigation by the issuing agency for a cognisable offence, or where the accused is evading arrest or the trial, or where the person is a proclaimed offender. Until the Maneka Gandhi case there were no regulatory guidelines for enforcing any travel restrictions, or for issuing LOCs.
The Regulatory History of LOCs
Even though LOCs were first officially recognised in 1979, they have recently been used, frequently, to telling effect. In 1979, the Ministry of Home Affairs (MHA) for the first time issued guidelines for issuing LOCs, followed by two more such communications:
- A letter dated September 5, 1979 (25022/13/78-F.I) (1979 MHA Letter);
- An office memorandum dated December 27, 2000 (25022/20/98/F.IV) (2000 Memorandum)
- An office memorandum dated October 27, 2010 (25016/31/2010-Imm) (OM)
In its 1979 MHA Letter, which stated that LOCs are issued to check the arrival/departure of foreigners and Indians “whose arrival/departure has been banned by the concerned authorities“, the MHA also set out some basic guidelines for issuing such a notice. The said letter clarifies that apart from the Government of India, the authorities which could issue LOCs included the following:
- Ministry of External Affairs
- Customs and Income Tax Departments
- Directorate of Revenue Intelligence
- Central Bureau of Investigation
- Interpol
- Regional Passport Officers
- Police Authorities in various states.
The 2000 Memorandum specified the steps for issuing a LOC in respect of an Indian Citizen: – ie, a request for a LOC should be made to all the Immigration Check Posts in India as prescribed, and include the accused’s complete particulars. Such a LOC would require the approval of an Officer not below the rank of Deputy Secretary to the Government of India/Joint Secretary in the State Government/concerned Superintendent of Police at the district level.
However, in the absence of any legislation or statutory definitions, there remained ambiguity on the enforceability of the LOC, and on the definition of ‘concerned authorities’, which the MHA stated could issue LOCs. These ambiguities were examined by the Delhi High Court in its judgment of Vikram Singh v/s. Union of India (2010), where the primary question before it was whether statutory bodies like the National Commission for Women (NCW), could issue LOCs. The Court ultimately found that statutory bodies like the NCW were not the intended “concerned authorities” which could issue LOCs.
Subsequently, in the case of Sumer Singh Salkan Vs. Asst. Director & Ors., and on its own motion in Re: State Vs. Gurnek Singh (both in the year 2010), the Delhi High Court responded to various queries in relation to LOCs raised by the lower court. The High Court inter alia clarified the following:
- Recourse to LOCs can be taken by an investigating agency in cognisable offences under IPC or other penal laws, where the accused is deliberately evading arrest or not appearing in the trial court, is a flight risk, despite Non-bailable Warrants (NBW) and other coercive measures.
- The Court stated that persons issued with a LOC could choose one of the following remedies :
- Join the investigation by appearing before the investigating officer
- Surrender before the court concerned
- Satisfy the court concerned
- Satisfy the court that the LOC was wrongly issued
- Approach the officer who ordered issuance of the LOC and explain that the LOC was wrongly issued.
- The LOC is a coercive measure to make a person surrender to the investigating agency or court of law. The subordinate courts’ jurisdiction in affirming or cancelling a LOC is commensurate with the jurisdiction of affirming or cancelling Non-bailable Warrants.
Pursuant to the directions of the Court in the Vikram Singh case, the MHA released the more exhaustive OM on October 27, 2010. This took into account all previous communications of the MHA, and all the above-mentioned judgments of the Delhi High Court, to specify the ranks of the officers in each of the central and state governmental agencies and police authorities who could issue LOCs. This OM also clarified that the limited, one-year validity, was not applicable in the following cases:
- LOCs issued for watching arrival/departure of wanted persons (which specify a duration)
- LOCs regarding impounding of passports
- LOCs issued at the behest of courts and Interpol
This OM provided that in exceptional cases, LOCs can be issued without meeting all the usual parameters, and without complete details against suspects, terrorists, anti-national elements, etc, in the greater national interest. Pertinently, the MHA neither provided any definitions in this regard, nor did it provide sufficient explanation as to what actions constitutes offences inviting such exceptions.
The legality and constitutionality of the LOCs
Considering the absence of legislative codification, LOCs remain creatures of Executive Circulars. This has led to scrutiny by courts and a serious examination of their limits.
The Supreme Court of India expressed serious concerns about abuse of process in the issuance of LOCs in the case of Chandran Ratnaswami vs K.C. Palanisamy & Ors (2013). A LOC was found to be pending in the name of the Petitioner, despite there being no ongoing criminal investigations, or criminal proceedings pending against or involving the Petitioner. The Superintendent of Police, who was acting as the ‘concerned authority’ in this case, had directed a re-investigation in the matter, ostensibly to justify keeping the LOC alive. The Supreme Court stated that “There is no such thing like unfettered discretion in the realm of powers defined by statues…”
In the case of S. Martin vs. The Deputy Commissioner of Police, Central Crime Branch (2014) the Madras High Court was also concerned with the abuse of LOCs and observed that since a LOC is a coercive tool in pending criminal investigations, concerned authorities must expeditiously complete the investigation and file a charge sheet, since LOCs cannot be issued for an indefinite period.
Further, in the case of Priya Parameshwaran Pillai vs Union Of India And Ors. (2015), heard before the Delhi High Court, the extent of abuse of the process was evident in that the Petitioner, an environmental activist, was termed an ‘exceptional case’ as defined under the OM for indulging in “anti-national activities”. Accordingly, Ms. Pillai was not informed about the LOC issued in her name, despite not being the subject of or required at any criminal trial or investigation to justify such actions by the authorities. The Delhi High Court held that the actions of the Respondents were in violation of Ms. Pillai’s fundamental rights under Article 21, 19(1)(a)[3] and 19(1)(g)[4] of the Constitution of India, and called for the withdrawal of such a LOC.
Conclusion
The regulatory requirements for issuance of LOCs set out by the MHA in the aforementioned 1979 MHA Letter, the 2000 Memorandum, and the OM, the issuance of LOCs remains highly discretionary, and the exercise of power under it remains questionable. The constitutionality of the MHA communications seeking to regulate the issuance of LOCs, which grant such overreaching powers to state authorities, begs further Judicial and Legislative scrutiny. Despite the absence of any legislation, the legality of such circulars, the process of their issuance has never been fully examined or adjudicated upon, leaving its implementation at the discretion of the Executive.
* The author was assisted by Namrata Zaveri, Associate
[1] Fundamental right to life and personal liberty
[2] As amended in 2002
[3] Fundamental right to freedom of speech and expression;
[4] Fundamental right to practice any profession, or to carry on any occupation, trade or business
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Faraz Alam Sagar, Partner, Cyril Amarchand Mangaldas
faraz.sagar@cyrilshroff.com
