Faced with judicial orders against opaque Look Out Circulars, govt moves SC to preserve its secrecy

The opaque system under which LOCs are issued is such that a person will not be able to know if such a circular exists against him or her till they have booked ticket and reached airport

May 21, 2022 07:44 pm | Updated May 22, 2022 09:01 am IST - New Delhi

A view of Supreme Court of India in New Delhi. File

A view of Supreme Court of India in New Delhi. File | Photo Credit: S. Subramanium

Wary of embarrassment he might face if stopped at the airport by the immigration, a politician from Jammu and Kashmir has written to the authorities seeking to know if his name is there in the ‘no-fly’ list that bars him from travelling abroad. 

Pining over his ailing sister in the United Kingdom, the politician, who does not want to be identified, wanted to check all safety boxes before he takes the journey to Delhi to board an international flight. 

“I do not want to be made into a spectacle at the Delhi airport, where the immigration authorities stop me and take me aside for questioning. It will be an embarrassment for the family,” he stated. 

In April, Aakar Patel, chair of human rights organisation Amnesty International India, was stopped at the Bengaluru airport on the basis of an Look Out Circular (LOC) generated by the CBI. He said, “You don’t realise there is an LOC against you until forced away from the airport.” 

The opaque system under which LOCs are issued is such that a person will not be able to know if such a circular exists against him or her till they have booked the ticket and reached the airport. 

Initiated by large number of agencies

According to the existing guidelines, LOCs are initiated by a large number of agencies which includes the CBI, Enforcement Directorate, Directorate of Revenue Intelligence (DRI), Income Tax, State police and intelligence agencies among others, by an officer not below the rank of a district magistrate or superintendent of police. In 2018, after liquor baron Vijay Mallya fled to the U.K., the Ministry of Home Affairs (MHA) brought changes to the guidelines authorising chairman, managing director and chief executives of all public sector banks to generate LOCs. 

The organisations have to provide details such as the First Information Report (FIR) number. Court case number is to be mandatorily provided other than name, passport number and other details. There are various gradations of response when a person is stopped. However, a 2010 office memorandum gives the authorities power to generate LOCs in “exceptional cases” without complete parameters or case details against “suspects, terrorists, anti-national elements, etc, in larger national interest.” In 2015, Greenpeace activist Priya Pillai was stopped from travelling to London on a request by the Intelligence Bureau based on the “etc” provision in the 2010 order. The LOC was later quashed by Delhi High Court. 

A string of court orders recently have put the spotlight on this opaqueness and the mechanical way in which LOCs are generated but the MHA is no mood to relent. 

HC quashes LOC

On April 5, the Punjab and Haryana High Court quashed an LOC against a woman identified as Noor Paul (30), who was stopped at the Delhi airport on February 22 on way to Dubai. The court held that the action of Bank of India to issue an LOC against her, who was a guarantor to a loan procured by her father, was “arbitrary, illegal and violative of Article 21 of the Constitution.” 

Coming down heavily on the respondents that included the MHA, Bank of India and the Bureau of Immigration, the court said the MHA and BOI should serve a copy of the LOC and state the reasons to the person against whom it was issued “as soon as possible” and provide a “post-decisional opportunity.” It asked the MHA to include these directions into the “Official Memorandum” or the guidelines that govern the opening of LOCs. 

Asserting that “LOCs cannot be shown to the subject” at the time of detention nor any prior intimation can be provided, the MHA moved the Supreme Court against the said order. 

Stay by SC

Satya Pal Jain, Additional Solicitor General of India in the Punjab and Haryana High Court, told The Hindu that the particular part of the judgement where the court asked to read the instructions into the official memorandum had been stayed by the Supreme Court. 

“The Government of India moved the Supreme Court against the said observations and the honourable court stayed the particular paragraph of the judgement where it asked to provide a copy of the LOC, the reasons and a hearing to the affected person. This provision can be used by hardened criminals to bypass the system and escape the country. The MHA guidelines are confidential and they can be shown only to the court,” Mr. Jain said. 

LOCs can be modified; deleted or withdrawn only at the request of the originator and immigration is only the executing authority. 

The MHA had informed the Delhi High Court that “Bureau of Immigration, Ministry of Home Affairs is only the custodian of LOCs who maintains LOCs and take action against LOC subjects at Immigration Check Posts (ICPs) at the behest of originating agency. Further, the legal liability of the action taken by immigration authorities in pursuance of LOC rests with the originating agency.” 

On January 12, the Delhi High Court quashed an LOC against Delhi businessman Vikas Chaudhary, generated at the instance of the Income Tax Department, as “no proceedings under any penal law had been initiated against the petitioner.” 

As per norms, an LOC will stay valid for a maximum period of 12 months and if there is no fresh request from the agency, then it will not be automatically revived. 

However there have been cases when LOCs have been revived in a bureaucratic process. 

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