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

The Bombay High Court is set to decide the validity of at least eight circulars/ office memoranda issued by the Central government which enables issuance of Lookout Circulars (LOC) against Indian citizens and foreigners [Rihen Harshad Mehta v. Union of India].LOCs issued by the Government of India, Bureau of Immigration, Ministry of Home Affairs, entitles the immigration authorities at any port of departure to prevent a person from travelling outside India.LOCs are issued pursuant to a series of circulars or office memorandums (OMs) with the first such circular issued on October 27, 2010. The circulars or OMs were amended periodically. One such amendment was made in September 2018, which introduced a new ground to issue an LOC - “economic interest of India”. This essentially restrained a person from travelling if the departure of such person could be detrimental to the economic interest of the country. A further amendment in October 2018 introduced another clause which 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 - that LOCs have been issued to restrain people from travelling abroad because an individual or a corporate entity 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 contended that: the circulars curtails fundamental rights, more specifically, 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 equitable 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 refuted all the arguments. He pointed out that each bank was expected to justify its actions when requesting for an LOC. At best, a particular LOC could be quashed and set aside, but the wrongness or incorrectness of a particular request by a particular public sector bank is not a reason to invalidate either the OM itself or the power to issue OMs. He argued that the OMs are wider in concept 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 permissible. It is not as if every citizen’s right to travel is infringed by the mere existence of these office memoranda;the deprivation 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 constitute or entail a blanket infringement on fundamental rights;the office memoranda have been issued for a defined public and national purpose. It cannot be in the interest of the public or nation, that the power to safeguard the interest of the nation is compromised in this fashion;Finally, that each of the office memoranda has inbuilt 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 contentions, 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 plea challenging the vires of the OMs..Senior Advocate Birendra Saraf and Advocate Karl Tamboly appeared for petitioners. ASG Anil Singh was briefed by a team of lawyers including Advocates Rui Rodrigues, Sandesh Patil, Aditya Thakkar, YS Bharti, DP Singh on behalf of Union of India. .[Read Order]