Now a Travel Ban on Amnesty India's Aakar Patel: Can CBI's LOC Be Challenged?

This comes only days after the ED had similarly issued an LOC for Rana Ayyub, which the HC went on to set aside.

During the wee hours of Wednesday, 6 April, Aakar Patel, Chair of Amnesty International India Board, was participating in the usual pre-flight protocol at Kempegowda International Airport, Bengaluru, when he was stopped at immigration.

(Photo altered by The Quint)

During the early hours of Wednesday, 6 April, Aakar Patel, Chair of Amnesty International India Board, was participating in the usual pre-flight protocol at Kempegowda International Airport, Bengaluru, when he was stopped at immigration.

Patel, who was bound for the United States of America where he was to speak at three prominent universities, was told that he could not go any further as a Look Out Circular (LOC) had been issued for him.

But he was armed with a court order, granted by an Additional Sessions and District Judge in Surat, releasing his passport and permitting him to travel to the US for the purpose specified by him.

However, that Surat court order – which pertained to a case filed against Patel for his tweets – turned out to be of little consequence to the present LOC.

"They (authorities at the airport) said this is for a different matter. This is the CBI."

Aakar Patel to The Quint

While the Surat case was against him for his own tweets, Patel was subsequently told by a CBI officer, that the LOC was "because of the case Modi government has filed against Amnesty International, India".

"But they hadn’t told me about the LOC, so there was no way for me to challenge it (prior to being stopped at the Airport)," the Amnesty India Chair told The Quint, before adding: "But I am doing it now."

Later on Wednesday afternoon, Delhi's Rouse Avenue Court sought the CBI's response on the plea moved by Patel against LOC. The matter is slated to be taken up on Thursday.

Who is Aakar Patel? Did He Know About the LOC?

In addition to his work with Amnesty, Aakar Patel is a political commentator and a well-established critic of Prime Minister Narendra Modi’s administration. His latest book Price of the Modi Years explains and examines the data and facets of India’s performance under Narendra Modi.

Patel confirmed to The Quint that he was travelling to the US to speak at University of California, Berkley (UC, Berkley); New York University (NYU) and University of Michigan, Anne Arbor. He was to deliver a talk on the attack on civil society at UC, Berkley; speak about his latest book at NYU and participate in a social media interaction at University of Michigan, Anne Arbor.

The case against Amnesty International, India pertains to alleged irregularities in foreign funding in connection with violation of the Foreign Contribution Regulation Act (FCRA) in 2019.

The non-profit organisation is alleged by the CBI to have received funds from its entity in the UK even after being refused permission under the FCRA, by having funds routed through trusts and commercial deals.

Patel told The Quint, that the last time he met the CBI in connection with the case was on December 2020. In the run up to this scheduled flight to the US, on 6 April this year, there had been no notice or summons from them to him, he said.

He also noted that when he had approached the Surat court for the release of his passport (that had been deposited in connection with the other case), "the BJP government in Gujarat had opposed the release of my passport".

"So the government knew that I was leaving. But they didn’t tell me that there was a second notice," he added.

According to Advocate Tanveer Ahmed Mir, who will be representing Patel in the court on Thursday, the FIR in the case against Amnesty was lodged in 2019. The advocate also told The Quint that Patel "was issued notice only once and that too as a witness, not an accused".

"So investigating authorities talked to him, gave him notice, he appeared. Thereafter, they never issued any notice," Mir reiterated.

"Had they informed him in advance, he would have taken steps ahead of the time, and not been subjected to this unnecessary harassment," Mir added, sharing that the loss incurred by Patel in not being allowed to use his tickets to fly was worth approximately Rs 4 lakh.

Can the LOC Be Challenged in a Court of Law?

The Quint reached out to Delhi High Court advocate Soutik Banerjee to ask if there were, in fact, grounds on which CBI's travel curb on Aakar Patel be challenged in a court of law – especially considering that Patel points out there had not been any CBI notice in the run-up to his departure.

Pointing out that "LOCs are an executive tool often used by investigative agencies to ensure that accused persons do not evade the legal process by traveling out of India," Banerjee said: "It is an extraordinary executive power, and it cannot be exercised routinely or arbitrarily."

"As long as a person participates in the investigation and has not evaded the legal process, issuance of an LOC against him is mala fide, arbitrary and illegal."

Soutik Banerjee to The Quint

"Various high courts have repeatedly held that since the right to travel abroad is a fundamental right, it cannot be curtailed by issuing LOCs unless there is a clear and cogent reason behind issuance of the LOC," Banerjee also specified.

The Delhi High Court had, in Sumer Singh Salkan v. Assistant Director and others (2008), said that the "recourse to Look Out Circular can be taken by the Investigating agency in cognizable offences under Indian Penal Code or other penal laws, where the accused was deliberately evading arrest or not appearing in the trial Court despite Non-Bailable warrant and other coercive measures and there was likelihood of the accused leaving the country to 52 evade trial/arrest.” [emphasis added]

In 2018, the High Court of Madras, in Karti P. Chidambaram vs Bureau of Immigration and Others, said that "such LOCs cannot be issued as a matter of course, but when reasons exist, where an accused deliberately evades arrest or does not appear in the trial Court."

The high court in that case also dubbed the Additional Solicitor General's argument that "a request for Look Out Circular could have been made in view of the inherent power of the investigating authority to secure attendance and cooperation of an accused" as not sustainable.

Permitting a former Punjab National Bank CMD to return to the UK after being restrained in India for more than a year in connection with two CBI cases, the Delhi High Court had in 2019, reiterated:

"The instrument of a LOC is only to be used in an urgent situation where a person is found to have been evading the process of investigation. The investigating agency must be circumspect in using this instrument, as it seriously affects the fundamental rights of the citizen, who is restrained from travelling."

LOC & Right to Personal Liberty

Even before this catena of high court judgments criticising arbitrarily issued LOCs, the Supreme Court had in 1978 (Menaka Gandhi v Union of India) dubbed the right to go abroad a fundamental right.

“The expression 'personal liberty' in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19. Now, it has been held by this Court in Satwant Singh's case that 'personal liberty' within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law.”

Supreme Court in Maneka Gandhi vs Union of India

According to Banerjee, "to use FIRs that are 1-2 years old, in which the accused is no longer being summoned, as a ground for issuing LOCs, is unsustainable in law, and is perhaps an executive short cut being deployed to avoid the due process as envisaged under The Passports Act to take adverse action against an individual to prevent them from traveling abroad."

This most-recent look out circular against Aakar Patel comes only days after the Enforcement Directorate (ED) had similarly issued one against journalist Rana Ayyub, preventing her from flying abroad, even as she was waiting to board her flight from the Bombay Airport.

The Delhi High Court, however, subsequently set aside the LOC for "being devoid of merits as well as for infringing the human right of the petitioner to travel abroad and to exercise her freedom of speech and expression."

The court had also observed:

"An LOC is a coercive measure to make a person surrender and consequentially interferes with petitioner’s right of personal liberty and free movement. It is to be issued in cases where the accused is deliberately evading summons/arrest or where such person fails to appear in Court despite a Non-Bailable Warrant."

Urging the Indian authorities to “immediately lift the arbitrary travel ban” imposed on Patel, Amnesty India said:

“For Aakar, who dares to raise his voice peacefully and consistently against injustice, a travel ban is nothing but retaliation from the Indian government against his activism…This incessant witch-hunt is contrary to India’s international human rights obligations and reflects poorly on its role as a member of the UN Human Rights Council.”

Meanwhile, pointing out that the least the agency could have done was inform Patel about the LOC in advance, Advocate Mir said, "You know the gentleman, you have his mobile number."

"The entire objective is a caged parrot theory of CBI being compelled by the government into putting handicaps in the path of civil society defenders...The present dispensation does not want human rights defenders to talk about human rights violations in India."