"In the particular facts of the case, it becomes evident that the LOC was issued in haste and despite the absence of any precondition necessitating such a measure."
"The application for issuance of LOC appears to be moved without application of mind and having no justified reason for the same."
Three days separated these two statements by the Delhi High Court and the Rouse Avenue district court, faced with situations where high-profile critics of the Modi government had been stopped from leaving the country to participate in speaking engagements abroad.
The two critics – journalist Rana Ayyub and Amnesty International India Board chair Aakar Patel – were stopped at the airports they were departing from on the basis of Look Out Circulars (LOCs) issued against them at the request of the Enforcement Directorate and Central Bureau of Investigation respectively.
While Ayyub was able to fly out after the Delhi High Court quashed the LOC against her, Patel was prevented from boarding his rescheduled flight and remains in India till next week at least when a special CBI court will continue to hear the agency's application for revision of the district court order in his favour.
Both these recent cases highlight the way in which the LOC process – which was meant to be used in exceptional cases where a person was not cooperating with an investigation and needed to be stopped from escaping the country – is now being used to curtail fundamental rights of citizens without any real justification.
When & How Are LOCs Issued?
The leading case on LOCs is the 2010 decision of the Delhi High Court in Sumer Singh Salkan vs Asstt Director & Ors.
In it, the high court explained that these circulars can be issued by an investigating agency in cases involving cognizable offences under the Indian Penal Code or other criminal laws,
"where the accused was deliberately evading arrest of not appearing in the trial court despite NBWs and other coercive measures and there was likelihood of the accused leaving the country to evade trial/arrest."
There is no legislation passed by Parliament which prescribes the power to issue LOCs. The procedure for issuing them was first set out by the Ministry of Home Affairs in 1979, and was then updated in 2010 by an office memorandum of the MHA following the directions of the Delhi High Court in the Sumer Singh Salkan case.
Under the 2010 office memorandum, an investigating officer had to make a written request for an LOC to an officer of the relevant rank giving details and reasons for seeking the circular.
A further update was made to the office memorandum in 2018 to allow the issue of LOCs in the interests of the economic security of India, following the escape of high-profile loan defaulters and alleged fraudsters like Nirav Modi and Vijay Mallya.
The 2018 amendments widened the pool of persons who could make a request for issuance of an LOC to include senior officers of public sector banks.
A pro forma request form has been issued by the MHA, which can be used to make these requests.
What is the Legal Status of LOCs?
Since there is no base legislation for the issuance of LOCs, there is some amount of debate over whether these circulars are constitutionally valid.
In 2015, environmental activist Priya Pillai, who worked with Greenpeace India at the time, was stopped from boarding a flight to the United Kingdom because of an LOC that had been hastily issued against her.
She had been scheduled to speak to British parliamentarians about a coal project in Mahan, Madhya Pradesh, involving Hindalco and a subsidiary of UK-based firm ESSAR Energy.
The Delhi High Court quashed and set aside the LOC against Pillai as there was no reason to impute criminal intent to her travel plans, there was no reason to invoke the extraordinary power to issue an LOC to prevent anti-national activities, and while there was a criminal case in Mahan connected to her activism in which she was an accused, she had been granted bail without any conditions by the court.
While making arguments for Pillai, reputed senior advocate Indira Jaising had argued that the 2010 office memorandum, on the basis of which LOCs were being issued, could not be considered a 'law' for the purposes of Article 13 of the Constitution.
The fundamental rights guaranteed under the Constitution can be subject to reasonable restrictions, but any such restrictions have to be prescribed in law, and cannot be made up by the government on a whim.
The right to travel abroad was affirmed as part of the fundamental right to personal liberty under Article 21 in the landmark Maneka Gandhi case at the Supreme Court in 1978, after her passport was impounded in 'public interest' to prevent her from travelling abroad.
While the high court could not pass a final ruling on this argument raised by Jaising as the petition did not ask for the office memorandum to be struck down, Justice Rajiv Shakdher observed that:
"This submission, I must confess, has much merit in view of the decisions of the Supreme Court both in Maneka Gandhi case as well as in the case of A.K. Gopalan. Both judgements take the view that "law" referred to in Article 21, would mean "enacted law"."
High courts across the country have acknowledged that LOCs can be issued under the law as it stands, but in most cases where these LOCs have been challenged, the petitioners have taken a practical view and not tried to challenge the constitutionality of the office memorandums from 2010 onwards which set out the process to issue LOCs.
One exception is an ongoing case before the Bombay High Court, where it is considering a batch of 11 petitions filed by businessmen against whom LOCs had been issued, challenging the legality of the system. In an order dated 9 December 2021, the Bombay High Court allowed the businessmen to travel abroad for work, and agreed to hear the challenges.
When this matter is completed, it may be that the LOC process might need an overhaul, if it is found that the office memoranda are not considered to be 'law' and therefore valid bases to restrict fundamental rights.
Scope for Misuse
The Priya Pillai case was a prominent example of how the LOC system could be misused purely to harass someone who was critical of the government.
Even before that, in 2013, the Supreme Court had dealt with a case where there was an LOC against a person even though there was no pending case in which they were an accused. A belated attempt was made to open a reinvestigation into a case which could implicate them, but the apex court struck this down.
In the last few years, the Delhi and Bombay High Courts have struck down or suspended multiple LOCs against businessmen (many of which had been issued at the request of PSB officers after the 2018 update).
The high courts have recognised that such circulars, by stopping people engaged in international business, could cause irreparable injury and harm if issued when not absolutely necessary, for instance when it came to the LOC against Carnival Cinemas owner Shrikant Bhasi, whose cinema chain stretches across south-east Asia.
In the Karti Chidambaram case in 2018, the Madras High Court had held that LOCs should not be issued in "hot haste" when the conditions for them to be passed do not exist. The court reiterated that "LOCs cannot be issued as a matter of course, but only when reasons exist, where an accused deliberately evades arrest or does not appear in the trial Court."
The Rana Ayyub and Aakar Patel cases emphasise the scope for misuse that these circulars, when improperly issued, can have.
In Ayyub's case, the ED could not point to any actual lack of cooperation from the journalist, who had attended all summons from the agency, and had not failed to comply with any requests for documents.
After reviewing the submissions of the ED, Justice Chandra Dhari Singh noted that:
"In the instant case, there is no contradiction by the respondent to the submission of the petitioner that she has appeared on each and every date before the Investigating Agency when summoned, and hence, there is no cogent reason for presuming that the Petitioner would not appear before the Investigation Agency and hence, no case is made out for issuing the impugned LOC."
Why was an LOC issued against someone who did not meet the basic requirements for an LOC, of evading an investigation? The perversity of the ED's actions can be observed from how they issued an LOC even though Ayyub had not missed a single summons, and then only issued a summons to the journalist after she'd been stopped from boarding her flight.
The high court thus observed that this was an infringement of Ayyub's right to travel abroad as well as her right to exercise freedom of speech and expression.
The Rouse Avenue court in Aakar Patel's case also highlighted the way in which an LOC impacted the fundamental rights of a person, and therefore such an action should be "taken cautiously and in exceptional circumstances."
To issue an LOC "merely on the basis of apprehensions arising out of the whims and fancies of the investigating agency" was not a correct exercise of the power, and fundamental rights cannot be curtailed without any procedure established by law.
The court noted the monetary loss of around Rs 3.8 lakh caused to Patel, and directed the CBI to issue an apology to Patel. While this aspect of the order has been stayed, it was an interesting step towards ensuring accountability for what has become a commonplace abuse of power.
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)