Bombay High Court will scrutinise Central government's powers to issue "Lookout Circulars"

Bombay High Court will scrutinise Central government's powers to issue "Lookout Circulars"

The High Court will begin hearing a clutch of petitions challenging the vires of office memoranda which allow issuance of lookout circulars by Ministry of Home Affairs.

The Bombay High Court is set to choose the validity of at least eight circulars/ office memoranda issued by the Central government. It enables issuance of Lookout Circulars (LOC) against Indian citizens and foreigners [Rihen Harshad Mehta v. Union of India]

Issued by the Government of India, Bureau of Immigration, Ministry of Home Affairs, LOCs entitle the immigration authorities at any port of departure to prevent a person from travelling outside.

The circulars or OMs were amended periodically. One such amendment was made in September 2018, which introduced a new ground to issue India.

LOCs are issued pursuant to a series of circulars or office memorandums (OMs) with the first such circular issued on October 27, 2010.

An LOC - "economic interest of India".

If the departure of such person could be harmful to the economic interest of the country, essentially it controlled a person from travelling.

An additional amendment in October 2018 introduced another clause. It stated that Chairman, State Bank of India/ Managing Director and Chief Executive Officers of all other public sector banks could also request the Immigration Authorities to issue LOCs.

The petitions filed before the High Court raised a common grievance - LOCs have been issued to restrain people from travelling abroad because an individual or a corporate unit is indebted to some public sector bank.

A Bench of Justices Gautam Patel and Madhav Jamdar which was hearing the pleas noted that while some pleas challenged the individual LOCs, two of petitions challenged the vires of the OMs/ circulars.

The petitions opposed that:

• The circulars limits fundamental rights, more precisely, the fundamental right under Article 21 of the Constitution of India.

• That the circulars could not have been issued by an executive order under Article 73 of the Constitution of India. Any such curtailment must be by statute or Constitutional amendment

• That the words "economic interest of India" cannot be equated to "financial interests" of any bank. Financial concerns of any bank, whether public sector or otherwise, is not reasonable to the "economic interests of India".

• It simply cannot be that the financial interest of a public sector bank is in the "economic interest of the country" even if we say that the bank's financial interest can be equated to the economic interests.

When the matter was heard on December 9, Additional Solicitor General Anil Singh contradicted all the arguments. He pointed out that each bank was expected to defend its actions when requesting for an LOC.

At best, a particular LOC could be supressed and set aside. But the unfairness or incorrectness of a particular request by a particular public sector bank is not a reason to overturn either the OM itself or the power to issue OMs.

He argued that the OMs are wider in thought and addressed concerns regarding security, sovereignty, terrorism and other national interest of the country.

Singh made the following submissions:

• That all the office memoranda from October 27, 2010 have the full authority of law and are constitutionally allowable. It is not as if every citizen's right to travel is trespassed by simple existence of these office memoranda;

• The deficiency of life or personal liberty cannot be done except according to the procedure established by law. The OMs are precisely such a procedure established by law. They do not create or entail a blanket breach on fundamental rights;

• The office memoranda have been issued for a defined public and national resolution. It cannot be in the interest of the public or nation, that the power to safeguard the interest of the nation is cooperated in this fashion;

• Finally, each of the office memoranda has integral checks and balances and adequate safeguards and no LOC is issued just on mere request.

After hearing the brief submissions and recording a broad outline of the rival arguments, the Court posted the petitions for hearing on February 4, 2022 to finally dispose of the petitions.

The Court also said that it is proposing to first hear the appeal challenging the vires of the OMs.

Senior Advocate Birendra Saraf and Advocate Karl Tamboly appeared for petitioners.

ASG Anil Singh was informed by a team of lawyers including Advocates Rui Rodrigues, Sandesh Patil, Aditya Thakkar, YS Bharti, DP Singh on behalf of Union of India.