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TMI Blog2015 (3) TMI 1372X X X X Extracts X X X X X X X X Extracts X X X X ..... dia flight bearing no.AI- 115. She was, however, stopped at the immigration for reasons that I shall, shortly, advert to in the course of my discussion. 1.2 Suffice it to state (at this stage), the concerned immigration officer proceeded to endorse, Ms. Pillai's passport with an annotation "off load". Having not been supplied with any reasons, an indignant Ms. Pillai shot off (in my view quite correctly as would be evident from facts delineated hereafter) a letter of even date i.e., 11.01.2015 to the Secretary, Government of India (GOI), Ministry of Home Affairs seeking to know the reasons which had impelled the authorities concerned to detain her at the airport. Though there was no official response to her communication dated 11.01.2015, the media was rife with reports, that a Look-Out-Circular (LOC) had been issued qua her. Resultantly, Ms Pillai dispatched yet another letter dated 12.01.2015 to the same officer, seeking to know, inter alia, as to whether, what was being bandied about, in the press, was factually correct. 1.3 Ms. Pillai's communications received no response. 2. Being aggrieved, Ms. Pillai has moved this court under Article 226 of the Constitution. 2.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a travel, insurance and medical insurance. 4.4 Consequent thereto, Ms. Pillai was issued a visa by the British High Commission, for a period of 6 months. 4.5 Based on the above, Ms. Pillai's air ticket was booked with Air India. Her seat was confirmed by the Airline, on flight no.AI 115, which was to fly out of Delhi on Sunday, 11.01.2015, at 06.50 a.m. 5. As indicated at the very outset, Ms. Pillai was detained at the airport, just before she was to board her flight. She was accosted by Mr. V.K. Ojha, an Immigration Officer employed with respondent no.2 i.e., Bureau of Immigration. 5.1 It is averred that Mr. Ojha after consultations with the officers at the Special Assistance Counter asked Ms. Pillai to accompany him to another place for further confabulations; albeit within the airport complex. It is at this point in time that Ms. Pillai was informed that she could not travel out of India. Resultantly, her baggage was retrieved from the aircraft and an endorsement to the effect, "off load" was made on her passport. 5.2 On Ms. Pillai seeking information as to why she had been detained, she was asked to speak to Mr. V.K. Ojha's superior, one, Ms. Sushma Sharma. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were agreed though, that both, counter affidavit and rejoinder could be taken on record. Accordingly, the needful was done. Submissions in the matter were heard on 18.02.2015 and 19.02.2015. Written submissions on behalf of the petitioner were placed on record on 19.02.2015. The respondents as requested were given two days to file written submissions in the matter. This did not happen. Upon a request being made, on mentioning, written submissions of respondents were taken on record on 23.02.2015, in the presence of counsels for the opposite side. SUBMISSION OF COUNSELS 6. On behalf of Ms Pillai, arguments were advanced by Ms. Indira Jaising, learned senior counsel, assisted by Ms. Vrinda Grover, Ms. Amrita Chakravorty, Mr. Bhavook Chauhan, Ms. Sonakshi Malhan and Mr. Ratna Appanendra, Advocates. Respondents were represented by Mr. Sanjay Jain, learned ASG, who was assisted by Mr. Neeraj Jain and Mr. Anirudh Shukla, Advocates. 7. Ms. Jaising's submissions can be briefly paraphrased as follows :- (i). The LOC issued in the matter which, as per the counter affidavit, is dated 10.01.2015, has been issued without due authority of law. There being no restriction imposed upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the respondents, is sourced in O.M. dated 27.10.2010 (in short 2010 O.M.) which, in turn, is said to be based on the directions issued by this Court in the following judgments: Vikram Sharma See Hukam Chand Shyam Lal Vs. Union of India, (1976) 2 SCC 128 Vs. Union of India, [171 (2010) DLT 671] and Sumer Singh Malkan Vs. Assistant Director & Ors. [II (2010) DM 666]. (iv)(a) A perusal of the said judgments would show that while they discuss as to the appropriate authority which can issue an LOC and, the entity, which can make a request for issuance of an LOC, they do not, address the question as to the legal basis for issuance of an LOC. The power to issue an LOC should be rooted in a substantive law, such as, the provisions of Section 41 of the Code of Criminal Procedure, 1973 (in short the Cr. PC). In other words, the 2010 O.M. is not backed by authority of law. The said O.M. which is in the nature of an executive instruction is not law "within the meaning of Article 13(3)(a) of the Constitution"2. (v). The respondents by their own admission have invoked the provisions of clause 8(j) of the 2010 O.M. which, empowers them to issue an LOC; albeit in exceptional cases, "with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India. Espousing a cause of particular section of people could not be considered as anti-national or creating disaffection amongst people at large4. (viii). The right to travel abroad is a fundamental right which, stands subsumed in the right to life and personal liberty guaranteed under Article 21 of the Constitution. No citizen of the country can be deprived of this See S. Rangarajan Vs. P. Jagjivan Ram, (1989) 2 SCC 574 right except according to the procedure established by law5. (ix). Ms. Pillai has a fundamental right to express her opinion on crucial economic policies of the Government which may differ from the dominant opinion and would include the right to propagate an alternative opinion. This opinion can be expressed at seminars, by publishing articles and including, in the manner, sought to be done in the instant case by meeting with parliamentarians of foreign countries. Ms. Pillai had proposed to travel to the U.K. to highlight the role of a British company, i.e., Essar Energy. Such a meeting could, by no stretch of imagination, have had an impact on the friendly relations between India and Britain as it pertained to a contestation between a British Company and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 9(e) of the FCRA and seek information in terms thereof and for the grounds stated therein. In the present case, no such order was admittedly been passed by the respondents. (xiii). The fundamental right to free speech can only be restricted by a duly enacted law which must pass muster of the test of reasonable restrictions, as contained in Article 19(2) of the Constitution7. (xiv). The ostensible reason given by the respondents for preventing Ms. Pillai from travelling outside India, and thus, in effect, articulating her views to British Parliamentarians is that it would create "negative image" of India overseas, which in effect would whittle down Foreign Direct Investment of Chattisgarh (2011) 7 SCC 547 and Mahanadi Coalfields Vs. Mathias Oram (2010) 11 SCC 269. (FDI), in India, so very much needed, in manufacturing and infrastructure sectors and, in addition, could also lead to sanctions. None of these reasons can be classified as anti-national activities. (xiv)(a) The petitioner, who bears true faith and allegiance to the Constitution of India and, seeks to secure for its citizens justice, social, economic and political, cannot be categorized, as anti-nati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ministry of Home Affairs, Government of India letter dated 05.09.1979, followed by O.M. dated 27.12.2000. The 2010 O.M., in that sense, refined the guidelines in the light of directions issued by this court in Vikram Sharma's case and those issued by the Division bench of this court in Sumer Singh Malkan's case. The contention advanced on behalf of the petitioner is, therefore, without basis. (ii) In so far as Ms Pillai was concerned, she was already an LOC subject and, accordingly, an LOC dated 10.10.2014 had been issued qua her on an earlier occasion. As regards the recent incident, whereby she was detained at the airport on 11.01.2015, a numbered LOC was opened by the Assistant Director of I.B., on 10.01.2015. The purpose with which the said LOC was issued, was to prevent Ms Pillai from leaving India since, she proposed to See St. Xavier Education Society, Ahmedabad vs. State of Gujarat, (1974) 1 SCC 717 testify before the All Party Parliamentary Group (APPG) on Tribal People, comprising of British Parliamentarians, which without doubt, would have "negatively" projected the image of the Government of India. (iii) The investigating agencies have, from time to tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enpeace International is opaque, as it claims that it collected donation in small amounts from persons of different nationalities located all over the world. It is because of this reason, and its activities, that it has been placed in the proscribed list of donors under Section 46 of the FCRA; in other words, in respect of each foreign donation, Greenpeace International would have to seek permission of MHA. It is thus, placed in a category which is known as "Prior Reference Category". (viii) The Indian arm of Greenpeace International, i.e., Greenpeace India and Greenpeace Environment Trust, having violated Indian income tax laws, have been issued notices by the authorities under the Income Tax Act, which involve amounts equivalent to Rs. 3.8 crores. (ix) Since, Greenpeace India's funding had been curtailed, and prior clearance is required for donations received by Greenpeace International, Greenpeace, UK has been used to engineer protests in Mahan. As a part of this plan, in the first instance, steps were taken to garner funds and organize visits of Ms Pillai and, one, Mr Akshay Gupta, along with five (5) activists of MSS, to meet-up with British Parliamentarians. Because o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gious Freedom of February, 2014, places India in the lowest category as a CPC alongside Pakistan. Within the CPC, India has been labelled as, a serious violator of religion and belief. There are indications that UK Parliament's APPG report will use Ms Pillai's testimony to rate India, at a low level, exposing it to the potentiality of being governed by a sanction regime. (xi)(c) Similarly, the US President is empowered under the law obtaining in that country to issue, trade, arms and investment sanction against CPC countries. (xi)(d) These reports on religious freedom, tribal people, indigenous people, human trafficking and dalit rights generated by various Commissions and Countries feed on each other, and thereby, create a circular documentation. (xi)(e) In 2006, European Parliament has already passed six (6) resolutions against India on dalit rights and one on violence against women. The content of these resolutions is suggestive of the fact that Government of India and the Parliament of India have not been able to protect dalits and women, and therefore, a call is made to European Union to factor in these aspects in their trade negotiation with India and Indian com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rigger issuance of an LOC, it requires a duly authorized originator to send a request in the proforma stipulated under the 2010 O.M., to the Bureau of Immigration. (iv) The affidavit filed on behalf of the respondents, records that the originator of the LOC was a Joint Director in IB, and that, a "numbered LOC was opened by the Assistant Director of IB, on 10.01.2015, to prevent her (Ms Pillai) from leaving India since, she would project the image of Indian Government "negatively" at the international level. (v) Ms Pillai's communication of 11.01.2015 and 12.01.2015, addressed to the Secretary, Ministry of Home Affairs, did not receive any response. (vi) That the stated reason for issuing the LOC, was that, Ms Pillai's testimony before a formal Committee of British Parliament, carried with it the possibility of it being incorporated in the report of the APPG on tribal people, which could in turn compromise country's economic interest as it may lead to trade and investment sanctions. (vii) That while reports generated under the aegis of the United Nations can be contested by Government of India, by putting across its point of view, the same opportunity is not ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution. The majority judgement of the Supreme Court dealt with the case purely "on the high plain of fundamental rights and their breach" as described, so felicitously, in the dissenting judgement of Hon'ble Mr Justice Hidayatullah. The majority judgement, quite strikingly, did not allow facts, bad as they were, to muddy the discernment of the width and the amplitude of the rights of the petitioner under Article 21 of the Constitution. In their discussion, the learned Judges, while citing with approval their earlier decision in Kharak Singh vs State of U.P., (1964 ) 1 SCR 332, made the following vital observations: "....This decision is a clear authority for the position that "liberty" in our Constitution bears the same comprehensive meaning as given to the expression "liberty" by the 5 th and 14th Amendments to the U.S. Constitution and the expression "personal liberty" in Art. 21 only excludes the ingredients of "liberty" enshrined in Art. 19 of the Constitution. In other words, the expression "personal liberty" in Art. 21 takes in the right of locomotion and to travel abroad, but the right to move throughout the territories of India is not covered by it inasmuch as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1967, there was no law regulating the right of a person to go abroad and that was the reason why the order of the Passport Officer refusing to issue passport to the petitioner in Satwant Singh's case was struck down as invalid. It will be seen at once from the language of Article 21 that the protection it secures is a limited one. It safeguards the right to go abroad against executive interference which is not supported by law; and law here means 'enacted law' or 'State Law'. Vide A. K. Gopalan's case. Thus, no person can be deprived of his right to, go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure. It was for this reason, in order to comply with the requirement of Article 21, that Parliament enacted the Passports Act, 1967 for regulating the right to go abroad. It is clear from the provisions of the Passports, Act, 1967 that is lays down the circumstances under which a passport may be issued or refused or cancelled or impounded and also prescribes a procedure for doing so, but the question is whether that is sufficient compliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that, while this submission was advanced by Ms Indira Jaising (both during the course of hearing, as well as in the form of written submission), in the petition, there is no relief sought to strike down the 2010 O.M. One of the reasons, perhaps for this would be that Ms Pillai was never furnished a copy of the LOC. The factum of issuance of an LOC got officially known to her only when she approached this court by way of the instant petition. Nevertheless, during the course of the proceedings, no leave was sought to seek an amendment in the writ petition. 12.3 Be that as it may, as indicated above, while Ms Jaising's point is taken that an LOC can be issued, if at all, in circumstances, delineated in Section 10(3)(h) of the Passports Act, there may arise certain situations, outside the scope of the said Act, which may require, the executive of the day, to take recourse to an LOC, under circumstances which are not covered by a statutory enactment. As adverted above, the State, is not denuded of its executive powers only because there is no statute to back the exercise of such a power. The caveat being, if a challenge is laid to the exercise of such power, on the anvil of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is nothing on record to show that Ms Pillai intended to do anything more than this. The argument of the respondents that Greenpeace U.K. and Greenpeace International were fomenting protests in the country with respect to various public projects, especially, in the field of thermal and nuclear power generation, is not backed with actionable material. The record would show that while the respondents may have regulated the inflow of funds to Greenpeace International, by having it put in the "prior approval" category, there is no such directive issued either qua Greenpeace U.K., or Greenpeace India. Ms Pillai, is admittedly, employed with Greenpeace India. 12.10 The only violation which is brought to fore, in the counter affidavit, qua Greenpeace India, is one concerning certain notices issued by the Income Tax Authorities; which have clearly, some revenue implications. However, the alleged violation of tax laws, which I am informed is contested, would not, in my opinion by itself, be demonstrative of the fact that the activities carried out by Greenpeace India, via its employees, agents and servants, is inimical to the economic interest of the country. While there is no gainsaying th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the executive. 13.2 Ms Pillai, as the facts in this case would reveal, believes that the rights of tribal communities residing in Mahan would get impacted if, a coal mine, were to be opened in that area. This, is a view, which the executive may or may not agree with. That by itself, cannot be a reason to prevent Ms Pillai from exercising her fundamental right to travel abroad and, thereby, in effect, disable her from expressing her views on the subject. In today's time and space, because of advent of technology, and especially, the internet, the universe has been reduced to a global-village. What occurs in a remote part of any country, gets immediately known the world over, either via television or through social media. 13.3 Therefore, the argument of the respondents that they would not permit Ms Pillai to travel out of India, for the stated purpose, but otherwise, would place no impediment in her travel, is clearly flawed. Ms Pillai, need not travel abroad to express her view point. She can transmit her views via technological devices available to her, without having to move out of the country. 13.4 But that is not the point in issue. The point in issue is, why must the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, was illegal being violative of the Ms Pillai's right under Article 21 and 19(1)(a) of the Constitution. 13.9 The actions of the respondents do not fall within the ambit of reasonable restriction, as articulated in Clause (2) of Article 19. Clause (2) of Article 19 protects a "law" which imposes reasonable restrictions on the exercise of rights conferred upon a citizen under Article 19(1)(a), in the interest of: sovereignty and integrity of India, the security of State, friendly relations with foreign States, public order, decency, morality or in relation to contempt of court, defamation or incitement to an offence. As indicated above, even if I were to assume that 2010 O.M. has the status of law, qua which I have a serious doubt, the action of the respondents in issuing an LOC vis-a-vis Ms Pillai cannot be categorized as a reasonable restriction, as it is not a restriction which falls in any of the limitations articulated in clause (2) of Article 19. 14. In order to understand the scope and amplitude of the expression "reasonable restriction", it would be relevant to briefly advert to the circumstances in which the amendments were made in clause (2) of Article 19 of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause of the observations made by the Court (which incidentally were judgements delivered by the same Bench), the Parliament moved to introduce the expression "reasonable restriction" in clause (2) of Article 19. The Parliament thus carried out the First Amendment which permitted the Government to impose reasonable restrictions on freedom of speech and expression both retroactively and prospectively17. 14.8 The 16th Amendment Act was passed, similarly, in the background of series of events, which included the Chinese incursion in North-east, beginning in 1960, the assertion of a separate Sikh State by Master Tara Singh, in mid-1961, and the call by DMK, for an entity, separate from India, which was referred to as Dravidanad18. 14.9 What is of relevance though is the interpretation that the Supreme Court gave to the expression "security of the State" in Romesh Thappar Vs. State of Madras. In the said case, the Supreme Court observed that the expression "security of the State" is one which has reference to "those aggravated forms of prejudicial activities" which tend to endanger the very existence of the State. The Madras maintenance of Public Safety Act, 1949, which had as its ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the word 'Nationalism' would be patriotism. Patriotism as a concept would be linked to nationhood. Nationhood has several attributes which are, inter alia, inextricably connected with symbols, such as : the National Flag; the National Anthem; the National Song; and perhaps, the common history, culture, tradition and heritage that people of an organized State share amongst themselves. 15.3 In respect of each of these attributes of nationhood, there may be disparate views amongst persons who form the nation. The diversity of views may relate to, not only, the static symbols, such as, the National Flag and National anthem, etc. but may also pertain to the tradition and heritage of the Nation and the manner in which they are to be taken forward. Contrarian views held by a section of people on these aspects cannot be used to describe such section or class of people as anti-national. Belligerence of views on nationalism can often lead to jingoism. There is a fine but distinct line dividing the two. Either way, views held, by any section or class of people, by itself, cannot be characterized as anti-national activities. 15.4 For anti-national activities to be brought within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in specific categories, such as counter intelligence suspects, terrorists, and anti-national elements. The expression anti-national is followed by the abbreviated form of the word etcetera. Therefore, quite clearly the word anti-national, contextually can only take colour from the words preceding it. To rule otherwise would result in allowing for a situation where any and every activity could be brought within the purview of clause 8(j). This being an exceptional power conferred on the State, which is to be exercised in the larger national interest, it cannot be given a meaning wider than the purpose for which the power is vested in the State functionaries. 15.7 Therefore, to my mind, a person falling in the category of an anti-national element, in the absence of any other guideline contained in the 2010 O.M., can only be that person, who projects, a present and imminent danger to the national interest. Travelling abroad and espousing views, without any criminal intent of the kind adverted to above, cannot, in my opinion, put Ms Pillai in the category of an anti-national element. See Life Insurance Corporation of India vs Prof. Manubhai D. Shah (1992) 3 SCC 637. 15.8 Third, wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oreign contribution". This is clear on a conjoint reading of the provisions of Sections 9(e), 6, 2(1)(h) and 2(1)(i) of the FCRA. Therefore, the submission made in this behalf is, in my view, being misconceived is, accordingly, rejected. 16. Therefore, having regard to the aforesaid discussion, in my opinion, the prayer made in the writ petition for quashing and setting aside the LOC issued qua Ms Pillai, is liable to be granted. It is ordered accordingly. Accordingly, the following consequential prayers are also granted. Respondent no.2 shall expunge the endorsement "off-load" made on Ms Pillai's passport. Furthermore, respondents shall also remove Ms Pillai's name from the "data base" maintained by them, pertaining to those individuals, who are not allowed to leave the country. This is, in so far as prayers made in clause A (i) to (iii) are concerned. 16.1 As regards prayer clause B, no submissions were made during the course of the arguments, nor are any specifics alluded to in the instant case. The prayer is, accordingly, declined. 16.2 As regards prayer clause C, while Ms Jaising had in the passing, argued that respondents by their action had tarnished the reputatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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