Home and away

ON 11 JANUARY, Priya Pillai, a senior campaigner with the international environmental organisation Greenpeace, arrived at Delhi’s Indira Gandhi International Airport to board a flight to London. Pillai was scheduled to make a presentation on 14 January, to a group of United Kingdom parliamentarians, regarding alleged human-rights violations in Mahan, Madhya Pradesh, linked to a proposed coal-mining project involving the multinational corporate group Essar.

At airport immigration, however, officials informed her that she would not be allowed to board her flight, even though she held a valid business visa for the United Kingdom. According to Pillai, when she demanded to know why she was being restricted from travelling, immigration officials told her that her name was “on a database issued by the Government of India of individuals who can’t fly out of the country.”

Government sources responded to the story with conflicting statements. The Intelligence Bureau claimed it had circulated a “look-out notice” against Pillai on the orders of the home ministry, but sources from that ministry denied any knowledge of such orders, and expressed surprise at the bureau’s move to issue the notice.

Pillai wrote a letter to the home ministry demanding an explanation, describing it as “bizarre that the government chooses to inform the media about an alleged lookout circular against me which I have no knowledge of.” On 14 January, she kept her appointment in the United Kingdom virtually, delivering her address to the parliamentarians over Skype. A little over a week later, she filed a writ petition in the Delhi High Court challenging the government’s actions against her.

These events drew a variety of public responses, including assertions that preventing Pillai from boarding her flight was justified. Prominent among these was an unsigned editorial in Mint, which held that the issue was “not clear-cut” and that “Denial of liberty may sound atrocious but endangering of economic security is a far worse proposition.” But while it might be worthwhile to analyse the economic costs of activism, most responses of this stripe failed to consider whether the government’s actions against Pillai were in accordance with the law—that is, the point of concern is not just whether the denial of Pillai’s liberty to travel was “atrocious,” but whether it might also have been illegal.

Indian citizens’ right to travel abroad has had a contentious legal history. In general, the executive has tried to retain as much power over this right as possible, and the courts have tempered that impulse repeatedly. Citizens’ fundamental right to foreign travel attracted substantial juristic scrutiny in the decades following Independence. It was first asserted by the Supreme Court in Satwant Singh Sawhney vs D Ramarathnam, a 1967 case involving an Indian businessman who manufactured, imported and exported automobile components. The government sought to withdraw his passport on the ground that he was being investigated for offences under the Export and Import Control Act, and that he may evade trial if allowed to leave the country.

The Supreme Court was faced with conflicting High Court judgments on the existence of a fundamental right to travel abroad. The Mysore, Kerala and Bombay High Courts had all previously ruled that such a right existed, while the Delhi High Court had differed. Drawing heavily from American and English jurisprudence, the Supreme Court held that the “right to go abroad” was a facet of the right to personal liberty, guaranteed by Article 21 of the constitution, to be curtailed only through “procedure established by law”—which referred, as it clarified, to law enacted by the legislature, and not executive action. The government reacted swiftly to this curb—later that same year, the legislature enacted the Passports Act, 1967, to regulate the issuance of passports and define the circumstances under which they could be impounded.

The Supreme Court’s next major decision on the subject came in 1978, after a tumultuous decade in which Indira Gandhi consolidated her executive power as prime minister and declared the Emergency, before being defeated in the 1977 general elections. After the polls, Maneka Gandhi—then still aligned with the Congress—attacked and discredited the leaders of the new Janata Party government in Surya, a political magazine of which she was the founder and editor. In July 1977, reportedly just as she was preparing for a speaking engagement abroad, Gandhi was served with a notice officially informing her that her passport was being impounded in the public interest. The government later argued in court, in response to a writ petition filed by Gandhi, that this was done to ensure that she appeared before the Shah Commission of Inquiry, which was looking into government excesses during the Emergency.

The matter reached the Supreme Court and on 25 January 1978 it ruled against Gandhi, among whose primary arguments was that the procedure prescribed under the Passports Act was illegal because it denies a citizen the right to be heard before her or his passport is impounded. However, in its judgment, the court reiterated the Satwant Sawhney Singh verdict, deeming the right to travel abroad a facet of the “personal liberty” assured to all citizens under Article 21. The court also added an important safeguard to the earlier decision, holding that any procedure prescribed by law for depriving a person of his life or personal liberty must be “fair, just and reasonable, not fanciful, oppressive or arbitrary.” It rejected Gandhi’s contention that the Passports Act was unconstitutional, though holding that even if the enactment does not expressly provide for a hearing to the citizen, the requirement to do so is implied in the law. The court also upheld the order impounding Gandhi’s passport, but asked the government to abide by its undertaking that it would give Gandhi an opportunity to show cause against the impounding.

The government’s case against Pillai does not rest on the Passports Act, since it did not involve the impounding of a passport, but rather the issuance of a look-out circular (also known as an LOC). Such circulars originated from a series of executive orders from the home ministry—beginning with a “ministry letter” in 1979, and developed further in an “office memorandum” in 2000. These documents specify which authorities can request look-out circulars to check the movement of individuals into or out of India.

A series of recent judicial rulings have interpreted and affected the regulations set out in the executive orders. In July 2010, the Delhi High Court, in Vikram Sharma vs Union of India, considered the validity of an LOC, issued against the accused in a dowry-harassment complaint, at the request of the National Commission of Women. The defendant alleged that he had been barred from a flight headed to Dubai, and been subjected to harassment and solitary confinement in an airport toilet. The LOC’s legality was challenged on the ground that statutory bodies such as the NCW are vested only with the powers of civil courts, and have no powers to request LOCs.

The court asked the home ministry to clarify whether statutory bodies could initiate such requests, but the ministry’s response was indirect and unclear. In its judgement, the court cited the decision made in the Maneka Gandhi case. Drawing upon the principles laid down in that case, and in subsequent decisions relating to the impounding of passports and the freedom of movement, the court characterised the authority to issue LOCs as “extraordinary powers, vested in the criminal law enforcement agencies … to be exercised with caution and only by the authorities who are empowered by law to do so and then again only for valid reasons.” It held that statutory bodies, such as the NCW should “if at all … bring the necessary facts to the notice of law enforcement agencies like the police, which will then make the request for issuance of an LOC upon an assessment of the situation, and strictly in terms of the procedure outlined for the purpose.”

A month later, another decision of the Delhi High Court, in Sumer Singh Salkan vs Asst. Director, considered a challenge to an LOC issued against a person of Indian origin holding Canadian citizenship, who was also an accused in a  criminal case arising out of a matrimonial dispute. Building upon its decision in Vikram Sharma, the court directed that the LOC be withdrawn if the accused gave an assurance that he would present himself on a particular date before the court where the case against him was pending. The decision also specifically delineated the circumstances, and the categories of cases, in which LOCs could be issued (such as when there is a risk of the accused fleeing legal action).

Later in 2010, the home ministry issued a consolidated “office memorandum” that incorporated the principles laid down in the court decisions. But the memorandum differed from, and added to, the judgments in some ways. Most materially, it left the government the power, “in exceptional cases,” to issue LOCs “without complete parameters and/or case details against CI suspects, terrorists, anti national elements etc. in larger national interest.”

It is this provision that the government is primarily relying on to justify its LOC against Pillai, by claiming that her communicating her views to the UK members of parliament would be against the “national interest.” The government’s wide reading of the exception clause contradicts well-established rules of legal interpretation, which require that catch-all words such as “etc.” take colour from the genre of words that precede them. It is a stretch to conflate the voicing of domestic environmental concerns to a foreign audience with the actions of terrorists and anti-national elements. Moreover, another recent case in the Delhi High Court, also involving Greenpeace, appears to weaken the government’s argument that it was justified in barring Pillai from travelling. In July 2014, the home ministry had denied Greenpeace’s India office access to funds remitted from abroad by its Amsterdam wing, despite the fact that the transfer was processed through all the proper banking channels. Ruling on a petition filed by Greenpeace, the court ordered that the government unblock the organisation’s international funds, and held that “disagreement with the policies of the Government of India, could not, per se be construed as actions which are detrimental to national interest.”

In a democracy, the right of a citizen to travel abroad to speak her mind cannot be negotiable. That freedom serves as an important safeguard to ensure that governments and multinational corporations, and their practices, are accountable to the law of the land. There must be compelling reasons—and certainly much more than the inconvenience of dissenting speech exposing alleged human rights violations—for that right to be curbed.