DPDC PRACTICAL GUIDE SERIES | LOOKOUT CIRCULARS

A Lookout Circular is a tool to restrict the movement of people who are trying to flee from the hands of Justice. The Hon’ble Apex Court in Satwant Singh Sawhney v. D. Ramarathnam and later in Maneka Gandhi v. Union of India held that the right to travel abroad is a facet of Article 21 of the Constitution of India (Constitution) and the same cannot be curtailed unless there is a fair, just and reasonable procedure established by law.

However, recently, law enforcement agencies (LEA) prevented two prominent journalists - Rana Ayyub and Aakar Patel from travelling abroad. Both of them did not know that the LEAs needed them to stay in India for investigation until they reached the airport. The LEAs had issued what are called Look-out Circulars (LOC) against Ms. Ayyub and Mr. Patel. Both the journalists approached courts in Delhi challenging the LOCs against them. The Delhi High Court set aside the LOC against Ms. Ayyub. Special Judge under the Prevention of Corruption Act, 1988 upheld the order of the trial court setting aside the LOC against Mr Patel but permitted him to travel abroad only after he obtained permission from the trial court.

In this edition of the DPDC Practical Guide Series, we examine how LOCs work, their legal basis and what you should do if you are prevented from travelling abroad because of a LOC.

What are LOCs?

The purpose of LOCs is to prevent the exit of absconding criminals or those who have evaded arrest. They are issued to secure the attendance of persons accused or suspected of committing a cognizable offence. LOCs must provide at least three identifying particulars such as name, parentage, date of birth and passport number. These LOCs are enforced at immigration checkpoints at airports, seaports and borders, and they prevent the subject of the LOC from boarding an international flight.  LOCs are valid for a period of 1 year, post which they lapse unless renewed.

What to do if an LOC is issued against you?

Typically, authorities such as the Bureau of Immigration inform individuals about the LOC only at the airport or seaport while proscribing them from travelling abroad. So, at the time, an individual is left with no option but to miss the flight.

If a LOC is issued against you, the only recourse you have is to approach a court challenging the legality of the LOC either by filing a writ petition before the High Court or approaching the concerned district court alleging that the issuance of LOC is bad in law. You can also write to the authorities requesting for cancellation or revocation of the LOC.

Authorities usually do not provide a copy of the LOC to the individuals and often claim LOCs to be an internal departmental document. However, recently the Punjab and Haryana High Court in Noor Paul vs Union of India & Others has held that the issuing authority should provide a copy of the LOC to the subject person as soon as it is issued and provide them with a post-decisional hearing. This decision has been appealed before the Supreme Court of India but as of now, there is no stay on it.

However, you can still assert your right to have a copy of the LOC which must contain an explanation of why you are being prevented from travelling abroad and an opportunity to contest the issuance of the LOC.

What happens if you miss your flight?

Despite the ruling in Noor Paul, if authorities still inform you of the LOC at the airport, you will have to forgo your ticket and you may or may not face arrest.

Further, besides challenging the LOC, you can also claim compensation if the LOC is illegal. The Punjab and Haryana High Court in Noor Paul has directed the public sector bank which had requested issuance of the LOC to compensate the subject of the LOC for the loss they suffered. As per the Special Court in Aakar Patel v. CBI, you can approach the appropriate forum for the monetary loss and/or mental harassment suffered by you on account of arbitrary issuance of LOC.

Against whom LOCs can be issued?

In accordance with Delhi High Court’s judgment in Sumar Singh Salkan vs Assistant Director and Ors, which has been incorporated in MHA’s 2010 Office Memorandum, LOCs may be issued against persons accused of committing a cognizable offence who have (i) either deliberately evaded arrest or have not appeared before a court despite a non-bailable warrant and (ii) there is a likelihood that they may leave the country. However, these pre-conditions may be relaxed in exceptional circumstances.

Both the Delhi High Court and the Special Court in cases filed by Ms. Ayyub and Mr. Patel held that the LOCs were unlawful because the journalists were not in the category of persons against whom LOCs could be issued since they were cooperating with the LEAs in the cases against them.

The 2018 amendment to the 2010 Office Memorandum has expanded the category of persons against whom LOCs may be issued. The amendment which is not publicly available states that Chairperson/Managing Directors/Chief Executive Officers of Public Sector Banks may request the opening of LOCs against fugitive economic offenders, willful defaulters and fraudsters. The legality of this amendment is questionable as Delhi High Court in Sumer Singh Salkan has held that LOCs can only be issued against those evading arrest and defaulters may not necessarily fit that criterion.

Despite the expansion of the categories, the law is settled that the Union Government cannot prevent a person from travelling abroad merely because they are critical of the government or intend to report on the activities of those who are critical.

Who can issue LOCs?

Initially, LOCs could only be issued by the Ministry of External Affairs, Customs and Income Tax Departments, Directorate of Revenue, Central Bureau of Investigation, Interpol, Regional Passport Officers and the Police. The 2010 Office Memorandum specified the authorities in each of these departments who could issue LOCs. The 2010 Office Memorandum was amended twice in 2018 to empower officers of the Serious Fraud Investigation Office and Chairperson/Managing Directors/Chief Executive Officers of Public Sector Banks to request the opening of LOC. The Delhi High Court in Shri Vikram Singh Sharma vs Union of India held that LOCs cannot be issued by a body which has not specifically been authorised by the MHA.

What is the procedure required to be followed by the LEA before issuing a LOC?

The LEA makes a request in writing for LOC to the concerned officer. The request must state the reasons for issuing such LOC. Thereafter, the concerned officer through an order shall give directions for the issuance of LOCs. A request for issuing LOC cannot come from statutory bodies such as the National Commission for Women (NCW). Only the authorities mentioned in the 2010 Office Memorandum are permitted to request LOCs.

The LOC, once issued and alive, is executed by the Bureau of Immigration.

What is the legal basis of LOCs?

LOCs are a creation of the executive and do not have any statutory backing yet. They derive their authority from Office Memorandums, which are essentially inter-divisional or inter-departmental communication between different ministries.

The Delhi High Court in Priya Pillai vs Union of India observed that the contention that the communications issued by MHA which empower authorities to issue LOCs are not ‘law’ has ‘much merit’ but decided to not strike down those communications as the petitioner, in that case, had not challenged the legality of those communications. Notably, the Bombay High Court is currently examining the legality of those communications but as of date, there is no stay on the power of empowered authorities to issue LOCs. Since the 2010 Office Memorandum continues to be a standalone executive instrument, the legality of the same remains a moot question and it is yet to be settled by the Apex Court.

We hope that this information helps you understand the law governing LOCs. The next guide on the series will discuss the digital rights of journalists.

DPDC has successfully conducted 37 sessions between Sep 2021 and Apr 2022 and the lawyers were able to provide pro bono legal aid to 31 journalists. If you are a journalist in need of legal aid, fill this form or write to us at [email protected].

This Guide was prepared with assistance from Bharucha and Partners. This blogpost or any other blogpost published as a part of this practical guide series does not constitute legal advice.