“An LOC, being an executive action, is open to scrutiny by High Courts in exercise of their writ jurisdiction,”
An LOC is a warning issued by the Bureau of Immigration, Ministry of Home Affairs (BoI), at Indian ports of entry. The warning is for a specific person who has participated in a cognizable offence and against whom action is contemplated. It is established in response to a request submitted by selected authorized Indian authorities.
LOCs are not based on any statute, yet the notion is mentioned in the Passport Act of 1967, where designated officials are authorized to suspend passports and convey such directives to immigration authorities to prohibit travel.
Guidelines for issuing LOCs first emanated from a Ministry of Home Affairs letter dated 5 September 1979 (Letter No 25022/13/78-FI). The letter stated that LOCs were issued to check arrival/departure of foreigners and Indians “whose arrival/departure has been banned by the concerned authorities”. As per the letter, power to issue LOCs vested with eight Indian authorities, including:
- Ministry of Home Affairs (MHA);
- Ministry of External Affairs (MEA);
- District Magistrate;
- Superintendent of Police;
- CBI;
- Narcotics Control Bureau;
- Directorate of Revenue Intelligence;
- Central Board of Direct Taxes (CBDT);
- Intelligence Bureau;
- National Investigation Agency (NIA);
- Customs and Income Tax Departments, etc.
The Current Framework Governing LOCS
The present framework governing LOCs is incorporated in the Consolidated Guidelines issued by the Ministry of Home Affairs, recorded under Office Memorandum dated 22 February 2021, as per which:
- the pro forma request form should indicate the specific action to be taken by the Bureau of Immigration against the subject individual;
- the request for issuing the LOC must be accompanied by an approval of designated authorities (Deputy Commissioner, Superintendent of Police, etc.; and
- where the LOC has been stayed by any court, the same has to be communicated to the Bureau of Immigration for seeking deletion.
Can it be Challenged?
LOCs can be challenged in a High Court by filing a writ petition, alleging the violation of the fundamental rights of a person without a valid ground. “An LOC, being an executive action, is open to scrutiny by High Courts in exercise of their writ jurisdiction”. In catena of cases the learned court has noted that in the current time the issuance of lookout circular has become a draconian practice which is violating the fundamental right of the person u/a 21 of the Indian constitution of india.
In the case Vikas Chaudhary v Union of India, [(2022) 1 HCC (Del) 124], the learned Delhi High Court held that “Where LOCs cannot be issued on a mere suspicion of opening bank accounts in a foreign country, this encroaches upon the fundamental right of a person to travel abroad.”
Also, in the case of Vikram Sharma Vs Union Of India And Ors [Wp (C ) 10180/2019)
Facts:
Complaint was registered against the Petitioner in the crime against women cell alleging commissioning of acts under the Dowry Prohibition Act and Section 498 A of IPC. Subsequent, to this Look-out circular was issued against them, due to which Petitioner was unable to board flight.
Delhi High Court has emphasized that power to off-load a passenger from an aircraft was a draconian power and reference was made to the celebrated decision of Maneka Gandhi vs Union of India (1978) 1 SCC 248 wherein it was observed “there has to be application of mind by the authority that would enable it to come to the conclusion that impounding of passport is in the interest of the general public”.
Further, the Bombay High Court recently quashed a LOC against actor Rhea Chakrabarty, noting that LOCs cannot be granted on a routine basis; they can only be imposed when a person willfully evades arrest, fails to appear in court, or refuses to participate with the inquiry. “An LOC is a coercive measure to make a person surrender, and as such interferes with the person’s right of personal liberty and free movement, and curtails the fundamental right of an individual to travel.”
Conclusion
Issuing a LOC against a person may significantly limit their ability to free movement outside of India. The courts have not hesitated to overturn LOCs that were given without a reasonable basis or were entirely unwarranted in the facts of the case. Matters affecting individual liberty demand a clear and accessible framework. Unclear regulations eventually result in abuse and misuse. Ordinary folks suffer and are put through the ringer just to be allowed to exercise their basic right to travel. LoCs are a great instrument that address a real problem: far too many high-profile offenders and defaulters have fled India to dodge justice. However, there is no need to undermine the fundamental parts of any regulation, such as information symmetry, understandable standards, and a clear remedial procedure.
KRATIKA MANDIL