Indiscriminate Use of Look Out Circulars: A Threat to Personal Liberty

"The right to travel is a valuable right and cannot be taken away without a compelling reason".

The golden words expounded by Justice Krishna Iyer in the famous Maneka Gandhi case echo the importance of the right of an individual to travel, and recognize it as an integral part of ‘right to life’ as guaranteed by our revered Constitution. Such rights are seriously impeded by a recent trend of investigative agencies, law enforcement agencies, as well as public sector banks in requesting for Look Out Circulars (“LOC”) against individuals to curtail their travel overseas without such “compelling reasons”.

Every day one finds a large number of such matters listed before either the writ courts or criminal courts seeking quashing of LOCs and for permission to travel abroad.

Earlier, LOCs were issued by law enforcement agencies when they reasonably believed that a person may flee the country to avoid prosecution or arrest. The pendency of a cognizable offence and intent to evade the law were dominant factors considered while making such requests. However, over time, the Government has issued various circulars and Office Memorandums (“OM’s”) empowering various authorities to issue such requests, which has led to the indiscriminate use of this mechanism by all and sundry.

This article examines the statutory framework under our laws for issuance of LOCs and how our Courts have proactively taken up the mantle of protecting personal liberty of citizens.

At present, there is no specific legislation dealing with LOCs. Though reference may be had to Section(s) 10A and 10B of the Passports Act, however, issuance of LOC’s would not strictly fall within the scope and ambit of the said provisions.

It would be safe to say that LOC’s are presently governed by various guidelines issued by the Ministry of Home Affairs (“MHA”) and OM’s issued from time to time.

The first such guideline was laid out in the MHA’s letter dated 05.09.1979. The said letter uses the expression ‘warning circular’ issued by various law enforcement agencies to the immigration authorities to monitor and regulate the movement of persons. This was followed by an OM dated 27.12.2000 (“OM of 2000”), which provided a bare-bone mechanism for issuance and subsistence of LOCs.

The Delhi High Court in Sumer Singh Salkan v. Asst. Director & Ors. [ILR 2010 VI Delhi 706 decided on 11.08.2010] had occasion to deal with the aforesaid guidelines and OM of 2000, in a case arising out of proceedings pending before the Crime Against Women Cell (“CAW Cell”). In the said judgment, the High Court also dealt with a reference made by the ACMM, Patiala House Courts, New Delhi with regard to the legal status of LOCs. After a detailed analysis of the provisions, the High Court answered the questions raised / reference in the following manner;

The upshot of the above pronouncement was that LOCs could only be issued in cases where there was a cognizable offence under the IPC or other penal laws. However, after the aforesaid judgment, a number of OMs have been issued expanding the purview of cases in which LOCs can be issued by authorities. These include;

• OM dated 27.10.2010 (“OM of 2010”) which provided detailed guidelines on the mode and manner in which LOCs could be opened. The OM of 2010 recognized 13 named authorities which could initiate the process of issuance of LOCs.

• OM dated 05.12.2017 (“OM of 2017”), which amended the OM of 2010 by adding additional categories of cases in which LOCs could be opened. These included persons who were considered detrimental to the sovereignty or security of the country, danger to bilateral relations, acts of terrorism and well as persons who posed a danger to the economic interests of the country.

• OM dated 19.09.2018 (“OM of September, 2018”), which further amended the previous OM’s by adding the Serious Fraud Investigation Organization (“SFIO”) as the 14^th authority which could request for the opening of an LOC against a person.

• OM dated 12.10.2018 (“OM of October, 2018”) which added the Chairman / Managing Director / Chief Executive of a Public Sector Bank to the list of originating authorities for issuance of LOCs. The OM of October, 2018 purports to cater to the “economic interests of India” to justify issuance of a LOC.

• Consolidated guidelines dated 22.02.2021 (“2021 Guidelines”) which consolidates the previously issued OM’s and provides a detailed mechanism for the issuance and subsistence of LOCs. While the 2021 Guidelines make an attempt to consolidate and set out the legal framework with regard to LOCs, it lacks in various aspects and is ambiguous, which leads to a complete lack of transparency and leaves much room for abuse of power by the authorities.

The courts throughout the country are today flooded with litigation concerning LOCs and permission to travel by persons subject matter of such LOCs. The courts have performed a proactive role in protecting the rights of individuals against abuse of process.

Some of the important pronouncements on LOCs are as under: 

• Sumer Singh Salkan v. Asst. Director & Ors. - the Hon’ble Delhi High Court interpreted the extant guidelines and answered various questions framed [as extracted in the table above] while holding that LOCs could only be issued in cases where there was a cognizable offence under the IPC or other penal laws.

• EV Perumal Samy Reddy v. State, - the Madras High Court observed that the rights of an individual to travel must be balanced with the interests of the State. The court held that mere pendency of a criminal case against a person does not denude his / her fundamental rights, and that the recourse to LOC’s cannot be resorted to in an indiscriminate manner.

• Priya P. Pillai v. Union of India & Ors., - the Delhi High Court reiterated that the right to travel abroad was a fundamental right guaranteed by the Constitution of India. After examining the legal position, the Court held that there was no basis for issuance of a LOC against the petitioner, and consequently quashed the same.

• Karti P. Chidambaram v. Bureau of Immigration, - the Hon'ble Madras High Court opined that the issuance of LOC, though being an executive decision, was amenable to judicial review under Article 226 of the Constitution of India. In this case, the Court reached a conclusion that the LOC was issued in haste, without following the conditions precedent for issuance of such a drastic action.

• Deept Sarup Aggarwal v. Union of India - the Delhi High Court was dealing with LOC issued in a case concerning a FIR registered by the Economic Offences Wing. The Court examined the OM’s issued by the government and held that the travel of the petitioner would in no way be prejudicial to the economic interests of India.

• Brij Bhushan Kathuria v. Union of India - the Delhi High Court, by an interim order, examined the phrases “economic interest” and “larger public interest” as appearing in the OM’s and held that the said expressions cannot be expanded in a manner so as to include an independent Director associated with a company.

• Om Prakash Bhatt v. State of Maharashtra - the Division Bench of the Bombay High Court after examining the various OM’s granted permission to the petitioner therein to travel abroad since he was neither an accused nor any cognizable offence was registered against him. 

• Lakshmi Satyanarayana Dutt v. Union of India - the Delhi High Court held that since the petitioner was participating in the investigation, there was no justification to keep the LOC alive against him. Consequently, the same was quashed.

• Dhruv Tiwari v. Directorate of Enforcement - the Delhi High Court interpreted Para 8 (h) the OM of 2010 to hold that a person who is not accused or suspected of a crime, or is not facing investigation in a cognizable offence can neither be arrested, detained or prevented from leaving the country, and the only recourse to an originating agency is to seek intimation of his / her arrival or departure.

• In Brij Bhushan Kathuria v. Union of India - the Delhi High Court passed directions granting the petitioner permission to travel upon intimation of entry / exit only. However, the said order was passed in view of the express stand by the originating agency that only intimation of travel was required to be given.

• Another interesting judgment was passed by the Punjab & Haryana High Court in Noor Paul v. Union of India - the court held that a copy of the LOC along with reasons ought to be supplied to a person sought to be detained. However, the said directions are currently stayed by the Hon’ble Supreme Court in Bank of India v. Noor Paul S.L.P.(C) No. 7733/2022.

The aforesaid snapshot shows how courts have repeatedly tested the validity of LOC’s issued against individuals and have been passing necessary directions to secure the fundamental rights of citizens. The role of courts in protecting personal liberty cannot be overstated. Courts are an essential part of a democratic society, and they play a crucial role in upholding the rule of law and ensuring that the rights of citizens are protected against any and all abuse.

It is thus imperative that the indiscriminate use of LOC’s be addressed as a threat to personal liberty. While it is important for law enforcement agencies to carry out their duties and prevent individuals from fleeing the country to evade justice, it should not be at the cost of innocent citizens being harassed and their freedom curtailed.

The government and law enforcement agencies must ensure that LOCs are issued only in cases where there is concrete evidence of wrongdoing and after due process of law has been followed. The use of LOCs must be proportionate, necessary and justified, and should not be used as a tool for vendetta or harassment. A special legislation may go a long way in achieving this end.

Furthermore, it is important that citizens are aware of their rights and are able to challenge any misuse of LOCs through legal means. Only then can we ensure that personal liberty is protected and that the rule of law is upheld. It is time for the authorities to take cognizance of this issue and take steps to prevent any further abuse of LOCs.

Saurabh Seth is a practicing advocate in the Delhi High Court. All views expressed by the author are personal.