In the past week, courts have struck down travel restrictions placed on human rights organisation Amnesty International India chair Aakar Patel and journalist Rana Ayyub.
Patel and Ayyub, both vocal critics of the government, were scheduled to travel outside India to speak at various events. However, just before boarding their flights they were informed that they could not leave the country as look-out circulars had been issued in cases pending against them.
Look-out circulars are issued by the government and law enforcement agencies to stop a person accused of a crime from evading trial or arrest by leaving the country. However, the statutory backing for such notices is shaky. The device is often misused to target political dissidents even as it is often unsuccessful against powerful industrialists who actually want to flee India.
Patel, who faces allegations of Amnesty receiving foreign contributions illegally, was stopped at the Bengaluru airport on Wednesday. Ayyub, who is accused of money laundering, was stopped at Mumbai airport on March 29.
Both challenged the look-out circulars against them in court.
On Monday, the Delhi High Court set aside Ayyub’s look-out circular issued by Enforcement Directorate, saying that it was issued in “haste” and infringed Ayyub’s human right to “travel abroad and to exercise her freedom of speech and expression”.
Three days later, on Thursday, a district court in Delhi asked the Central Bureau of Investigation to set aside the circular against Patel. It said that the circular was in violation of the court’s orders and home ministry office memorandums.
Not just that, it asked the director of the Central Bureau of Investigation to issue an apology to Patel.
“It is further expected that accountability of the concerned officials, in this case, be fixed,” the court said.
A look-out circular can be issued if a person accused of a cognisable offence is deliberately evading arrest or has failed to appear in court despite a warrant and is likely to leave India to avoid arrest or trial. A cognisable offence is one for which the police has the power to arrest without an arrest warrant.
Apart from this, a look-out circular can be issued “in exceptional cases” if, based on inputs, it appears to the authorities that a person’s departure is detrimental to India’s sovereignty, security, integrity, bilateral relations or strategic or economic interests and other similar reasons.
Both Ayyub and Patel did not fall into any of the above categories, since courts noted that they had been cooperating with the investigating agencies.
Patel has been accused of violating terms of the Foreign Contributions Regulation Act, 2010 – the law regulating foreign donations to non-governmental organisations – by allegedly allowing
Rs 36 crore to be remitted to Amnesty India without government approval. The organisation has denied any wrongdoing.
Noting that Patel has cooperated with the authorities, the court said that “it is very much clear that the accused joined the investigation as and when notice was issued”.
It added that the chargesheet had already been filed without Patel being arrested. If Patel was considered to be a flight risk during the investigation or trial, he would have been arrested during the investigation itself.
Therefore, the Central Bureau of Investigation’s apprehension that Patel will flee the country has “no basis and appears to be mere apprehension without any sufficient grounds”, the court said.
Further, the court noted that the timing of the look-out circular – moved on the same day as the charge sheet was filed, on December 31 – “shows that it is not the case of oversight or ignorance rather it is a deliberate act of the investigating agency to put restriction on the valuable rights of the accused”.
Journalist Rana Ayyub has been alleged to have misappropriated funds she collected from the public for Covid-19. In February, the Enforcement Directorate also attached bank deposits worth Rs 1.77 crore.
The Delhi High Court noted that Ayyub had “appeared on each and every date before the Investigating Agency when summoned”, a point that the Union government was unable to contradict.
“There is no cogent reason for presuming that the Petitioner [Ayyub] would not appear before the Investigation Agency,” the court noted. However, it asked her to inform the agencies where she was staying and deposit some money with it.
Misuse of circulars
Look-out circulars are often challenged and struck down by courts. Such circulars have shaky statutory backing. All such circulars are issued based on office memorandums of the Union home ministry. Since these memorandums were not comprehensive, courts have also filled in the gaps.
In Patel’s order, the court noted, “It is repeatedly observed by various High Courts that such measure should be taken cautiously and in exceptional circumstances.”
Look-out circulars can be issued by several authorities including the Union home ministry, external affairs ministry, customs department, income tax department, the Central Bureau of Investigation, and state police forces.
Only officers above a certain rank can issue look-out circulars. An investigating officer has to mandatorily provide a written request along with reasons when asking the competent officer to pass a look-out circular. However, there have been cases where these conditions have not been followed.
“It is correct that the discretion for moving the application of LOC lies with the investigating agency,” the court said in Patel’s case, “but the discretion can not be exercised arbitrarily without any justifiable reasons or grounds”.
Fails against fleeing industrialists
At times, agencies have been unable to stop alleged offenders from leaving the country inspite of issuing look-out circulars.
In 2015, the Centre Bureau of Investigation diluted its look-out circular against liqour baron Vijay Mallya. Mallya has a pending loan default case of over Rs 9,000 crore.
Earlier, the Central Bureau of Investigation had asked authorities to detain Mallya if he went abroad but later they asked the authorities to only inform the bureau. In 2016, Mallya left India and has not returned since. The Central Bureau of Investigation later said that this dilution was an error in judgment. Since Mallya had no warrant and was cooperating the agency allowed him to travel abroad.
Another industrialist, Nirav Modi, alleged to be involved in a Rs 13,000-crore bank fraud case, had a look-out notice issued against him, but only after he fled India.
Challenging look-out circulars
To set aside a look-out circular, an accused person can either approach the issuing officer or go to a competent court.
However, as in the present two cases, the accused people often do not know about the existence of such circulars against them until they are stopped from travelling.
In 2019, the Union home ministry refused to answer a right to information petition that requested copies of some of the office memorandums under which look-out circulars are issued.
It said the memorandum was a secret and classified document. However, the chief information commissioner directed the ministry to disclose this information.