TaxTMI 
TaxTMI 
2015 (3) TMI 1372
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....of the morning of 11.01.2015, by an Air India flight bearing no.AI- 115. She was, however, stopped at the immigration for reasons that I shall, shortly, advert to in the course of my discussion. 1.2 Suffice it to state (at this stage), the concerned immigration officer proceeded to endorse, Ms. Pillai's passport with an annotation "off load". Having not been supplied with any reasons, an indignant Ms. Pillai shot off (in my view quite correctly as would be evident from facts delineated hereafter) a letter of even date i.e., 11.01.2015 to the Secretary, Government of India (GOI), Ministry of Home Affairs seeking to know the reasons which had impelled the authorities concerned to detain her at the airport. Though there was no official response to her communication dated 11.01.2015, the media was rife with reports, that a Look-Out-Circular (LOC) had been issued qua her. Resultantly, Ms Pillai dispatched yet another letter dated 12.01.2015 to the same officer, seeking to know, inter alia, as to whether, what was being bandied about, in the press, was factually correct. 1.3 Ms. Pillai's communications received no response. 2. Being aggrieved, Ms. Pillai has moved this c....
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....ll expenses would be met by it, which included expenses qua travel, insurance and medical insurance. 4.4 Consequent thereto, Ms. Pillai was issued a visa by the British High Commission, for a period of 6 months. 4.5 Based on the above, Ms. Pillai's air ticket was booked with Air India. Her seat was confirmed by the Airline, on flight no.AI 115, which was to fly out of Delhi on Sunday, 11.01.2015, at 06.50 a.m. 5. As indicated at the very outset, Ms. Pillai was detained at the airport, just before she was to board her flight. She was accosted by Mr. V.K. Ojha, an Immigration Officer employed with respondent no.2 i.e., Bureau of Immigration. 5.1 It is averred that Mr. Ojha after consultations with the officers at the Special Assistance Counter asked Ms. Pillai to accompany him to another place for further confabulations; albeit within the airport complex. It is at this point in time that Ms. Pillai was informed that she could not travel out of India. Resultantly, her baggage was retrieved from the aircraft and an endorsement to the effect, "off load" was made on her passport. 5.2 On Ms. Pillai seeking information as to why she had been detained, she was asked to sp....
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....ioner pleaded that they could only bring the rejoinder to the court. Counsels were agreed though, that both, counter affidavit and rejoinder could be taken on record. Accordingly, the needful was done. Submissions in the matter were heard on 18.02.2015 and 19.02.2015. Written submissions on behalf of the petitioner were placed on record on 19.02.2015. The respondents as requested were given two days to file written submissions in the matter. This did not happen. Upon a request being made, on mentioning, written submissions of respondents were taken on record on 23.02.2015, in the presence of counsels for the opposite side. SUBMISSION OF COUNSELS 6. On behalf of Ms Pillai, arguments were advanced by Ms. Indira Jaising, learned senior counsel, assisted by Ms. Vrinda Grover, Ms. Amrita Chakravorty, Mr. Bhavook Chauhan, Ms. Sonakshi Malhan and Mr. Ratna Appanendra, Advocates. Respondents were represented by Mr. Sanjay Jain, learned ASG, who was assisted by Mr. Neeraj Jain and Mr. Anirudh Shukla, Advocates. 7. Ms. Jaising's submissions can be briefly paraphrased as follows :- (i). The LOC issued in the matter which, as per the counter affidavit, is dated 10.01.2....
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....rementioned provisions1. (iv). The ostensible basis on which LOCs generally and, in particular, in this case, have been issued by the respondents, is sourced in O.M. dated 27.10.2010 (in short 2010 O.M.) which, in turn, is said to be based on the directions issued by this Court in the following judgments: Vikram Sharma See Hukam Chand Shyam Lal Vs. Union of India, (1976) 2 SCC 128 Vs. Union of India, [171 (2010) DLT 671] and Sumer Singh Malkan Vs. Assistant Director & Ors. [II (2010) DM 666]. (iv)(a) A perusal of the said judgments would show that while they discuss as to the appropriate authority which can issue an LOC and, the entity, which can make a request for issuance of an LOC, they do not, address the question as to the legal basis for issuance of an LOC. The power to issue an LOC should be rooted in a substantive law, such as, the provisions of Section 41 of the Code of Criminal Procedure, 1973 (in short the Cr. PC). In other words, the 2010 O.M. is not backed by authority of law. The said O.M. which is in the nature of an executive instruction is not law "within the meaning of Article 13(3)(a) of the Constitution"2. (v). The respondents by their....
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....i's visit which, involved speaking with British Parliamentarians qua rights of tribal communities, in Mahan, would constitute a threat to the sovereignty and integrity of India. Espousing a cause of particular section of people could not be considered as anti-national or creating disaffection amongst people at large4. (viii). The right to travel abroad is a fundamental right which, stands subsumed in the right to life and personal liberty guaranteed under Article 21 of the Constitution. No citizen of the country can be deprived of this See S. Rangarajan Vs. P. Jagjivan Ram, (1989) 2 SCC 574 right except according to the procedure established by law5. (ix). Ms. Pillai has a fundamental right to express her opinion on crucial economic policies of the Government which may differ from the dominant opinion and would include the right to propagate an alternative opinion. This opinion can be expressed at seminars, by publishing articles and including, in the manner, sought to be done in the instant case by meeting with parliamentarians of foreign countries. Ms. Pillai had proposed to travel to the U.K. to highlight the role of a British company, i.e., Essar Energy. S....
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.... hospitality", under the provisions of Section 2(i) of the FCRA. In case the respondents seek to prohibit acceptance of foreign hospitality by Ms. Pillai from Greenpeace U.K., they are required to pass an order under Section 9(e) of the FCRA and seek information in terms thereof and for the grounds stated therein. In the present case, no such order was admittedly been passed by the respondents. (xiii). The fundamental right to free speech can only be restricted by a duly enacted law which must pass muster of the test of reasonable restrictions, as contained in Article 19(2) of the Constitution7. (xiv). The ostensible reason given by the respondents for preventing Ms. Pillai from travelling outside India, and thus, in effect, articulating her views to British Parliamentarians is that it would create "negative image" of India overseas, which in effect would whittle down Foreign Direct Investment of Chattisgarh (2011) 7 SCC 547 and Mahanadi Coalfields Vs. Mathias Oram (2010) 11 SCC 269. (FDI), in India, so very much needed, in manufacturing and infrastructure sectors and, in addition, could also lead to sanctions. None of these reasons can be classified as a....
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....r Jain's submissions thus, broadly, alluded to the following: (i) The respondents' action of issuing LOCs in general, as also in this particular case, is backed by the necessary authority, which is contained in the 2010 O.M. The said O.M. has its genesis in the Ministry of Home Affairs, Government of India letter dated 05.09.1979, followed by O.M. dated 27.12.2000. The 2010 O.M., in that sense, refined the guidelines in the light of directions issued by this court in Vikram Sharma's case and those issued by the Division bench of this court in Sumer Singh Malkan's case. The contention advanced on behalf of the petitioner is, therefore, without basis. (ii) In so far as Ms Pillai was concerned, she was already an LOC subject and, accordingly, an LOC dated 10.10.2014 had been issued qua her on an earlier occasion. As regards the recent incident, whereby she was detained at the airport on 11.01.2015, a numbered LOC was opened by the Assistant Director of I.B., on 10.01.2015. The purpose with which the said LOC was issued, was to prevent Ms Pillai from leaving India since, she proposed to See St. Xavier Education Society, Ahmedabad vs. State of Gujarat, ....
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....s also made to protests organized at two nuclear sites, located at Kundakulam, in Tamil Nadu and Fatehbad, in Haryana. There is also a generic reference qua protests organized in respect of genetically modified food trials and with regard to India's tea export industry. (vii) The funding pattern of Greenpeace International is opaque, as it claims that it collected donation in small amounts from persons of different nationalities located all over the world. It is because of this reason, and its activities, that it has been placed in the proscribed list of donors under Section 46 of the FCRA; in other words, in respect of each foreign donation, Greenpeace International would have to seek permission of MHA. It is thus, placed in a category which is known as "Prior Reference Category". (viii) The Indian arm of Greenpeace International, i.e., Greenpeace India and Greenpeace Environment Trust, having violated Indian income tax laws, have been issued notices by the authorities under the Income Tax Act, which involve amounts equivalent to Rs. 3.8 crores. (ix) Since, Greenpeace India's funding had been curtailed, and prior clearance is required for donatio....
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....ed India one notch above the CPC level. (xi)(b) Similarly, the APPGs of the British Parliament have directed their focus on tribal people since, 2012. As a matter of fact, the UK APPG report on religious freedom, issued in 2014, alleges a violation of religious freedom in India. Similarly, the European Parliaments' Working Group Report on Religious Freedom of February, 2014, places India in the lowest category as a CPC alongside Pakistan. Within the CPC, India has been labelled as, a serious violator of religion and belief. There are indications that UK Parliament's APPG report will use Ms Pillai's testimony to rate India, at a low level, exposing it to the potentiality of being governed by a sanction regime. (xi)(c) Similarly, the US President is empowered under the law obtaining in that country to issue, trade, arms and investment sanction against CPC countries. (xi)(d) These reports on religious freedom, tribal people, indigenous people, human trafficking and dalit rights generated by various Commissions and Countries feed on each other, and thereby, create a circular documentation. (xi)(e) In 2006, European Parliament has already ....
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....e was detained at the airport on 11.01.2015, at a point in time when she intended to board Air India flight AI-115. (ii) The resultant events led to her passport being endorsed with the annotation "off-load". (iii) The respondents have claimed that the LOC is a secret document and, hence, cannot be handed over to Ms Pillai, or for that matter, to any person against whom the same has been issued. However, in order to trigger issuance of an LOC, it requires a duly authorized originator to send a request in the proforma stipulated under the 2010 O.M., to the Bureau of Immigration. (iv) The affidavit filed on behalf of the respondents, records that the originator of the LOC was a Joint Director in IB, and that, a "numbered LOC was opened by the Assistant Director of IB, on 10.01.2015, to prevent her (Ms Pillai) from leaving India since, she would project the image of Indian Government "negatively" at the international level. (v) Ms Pillai's communication of 11.01.2015 and 12.01.2015, addressed to the Secretary, Ministry of Home Affairs, did not receive any response. (vi) That the stated reason for issuing the LOC, was that, Ms Pillai'....
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....s Act, i.e., the 1967 Act. The Supreme Court in the case of Satwant Singh Sawhney vs D. Ramarathnam, Asstt. Passport Officer, Government of India, New Delhi & Ors., (1967) 3 SCR 525, dealt with a matter where the petitioner, before it, assailed the decisions of the Assistant Passport Officer, New Delhi and the Regional Passport Office at Bombay, whereby he had been asked to surrender passports issued by the said authorities. The challenge was laid by the petitioner by way of a petition under Article 226 of the Constitution. The majority judgement of the Supreme Court dealt with the case purely "on the high plain of fundamental rights and their breach" as described, so felicitously, in the dissenting judgement of Hon'ble Mr Justice Hidayatullah. The majority judgement, quite strikingly, did not allow facts, bad as they were, to muddy the discernment of the width and the amplitude of the rights of the petitioner under Article 21 of the Constitution. In their discussion, the learned Judges, while citing with approval their earlier decision in Kharak Singh vs State of U.P., (1964 ) 1 SCR 332, made the following vital observations: "....This decision is a clear authority fo....
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....litude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19. Now, it has been held by this Court in Satwant Singh's case that 'personal liberty' within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law. Prior to the enactment of the Passports Act, 1967, there was no law regulating the right of a person to go abroad and that was the reason why the order of the Passport Officer refusing to issue passport to the petitioner in Satwant Singh's case was struck down as invalid. It will be seen at once from the language of Article 21 that the protection it secures is a limited one. It safeguards the right to go abroad against executive interference which is not supported by law; and law here means 'enacted law' or 'State Law'. Vide A. K. Gopalan's case. Thus, no person can be deprived of his right to, go abroad unless there is a law made by the State prescribing the pro....
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....#39; stand, that the, power to issue an LOC can be traced to the 2010 O.M., or, those which precede the said O.M., is unsustainable, as it cannot be described as "law", within the meaning of Article 13(3)(a) of the Constitution. This submission, I must confess, has much merit in view of the decisions of the Supreme Court both in Maneka Gandhi case as well as in the case of A.K. Gopalan. Both judgements take the view that "law" referred to in Article 21, would mean "enacted law". 12.2 The reason I do not wish to elaborate on this issue any further, is that, while this submission was advanced by Ms Indira Jaising (both during the course of hearing, as well as in the form of written submission), in the petition, there is no relief sought to strike down the 2010 O.M. One of the reasons, perhaps for this would be that Ms Pillai was never furnished a copy of the LOC. The factum of issuance of an LOC got officially known to her only when she approached this court by way of the instant petition. Nevertheless, during the course of the proceedings, no leave was sought to seek an amendment in the writ petition. 12.3 Be that as it may, as indicated above, while Ms Jaising's point is ....
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....speak about violations of environmental laws, in Mahan Coal block; in particular, with respect to the provisions of the Environment Protection Act, the Forest Protection Act, the Forest Rights Act, the Wild Life Protection Act, which amongst other areas, are operable, in that area as well. 12.8 This conversation, Ms Pillai says she needed to have with the British Parliamentarians, so that they could call upon Essar Energy, a British company, having a major financial stake in Mahan Coal Ltd., to fall in line with the legal regime of our country. 12.9 There is nothing on record to show that Ms Pillai intended to do anything more than this. The argument of the respondents that Greenpeace U.K. and Greenpeace International were fomenting protests in the country with respect to various public projects, especially, in the field of thermal and nuclear power generation, is not backed with actionable material. The record would show that while the respondents may have regulated the inflow of funds to Greenpeace International, by having it put in the "prior approval" category, there is no such directive issued either qua Greenpeace U.K., or Greenpeace India. Ms Pillai, is admittedly, emp....
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....onvinced of their need and necessity. 13.1 The mere fact that such debates obtain, or such debates metamorphose into peaceful protests, cannot be the reason for curtailing a citizen's fundamental rights. In this case, Ms Pillai's right to travel abroad and interact with relevant stake holders (i.e., the British Parliamentarians), to persuade them, to have entities incorporated in their country, to fall in line, with the developmental ethos, which is close to her ideology and belief, cannot be impeded only because it is not in sync with policy perspective of the executive. 13.2 Ms Pillai, as the facts in this case would reveal, believes that the rights of tribal communities residing in Mahan would get impacted if, a coal mine, were to be opened in that area. This, is a view, which the executive may or may not agree with. That by itself, cannot be a reason to prevent Ms Pillai from exercising her fundamental right to travel abroad and, thereby, in effect, disable her from expressing her views on the subject. In today's time and space, because of advent of technology, and especially, the internet, the universe has been reduced to a global-village. What occurs in a re....
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.... actor. 13.7 Therefore, the learned ASG's attempt to draw a distinction between the reports which are generated under the aegis of the United Nations and those which are generated by Committees and Commissions of countries, such as, U.S., U.K. and the European Parliament, is really a distinction without a substantial difference. 13.8 Therefore, having regard to the aforesaid discussion, in my view, there was no basis for the respondents to issue an LOC qua the petitioner. That being so, the decision taken to detain the petitioner at the airport on 11.01.2015, in my opinion, was illegal being violative of the Ms Pillai's right under Article 21 and 19(1)(a) of the Constitution. 13.9 The actions of the respondents do not fall within the ambit of reasonable restriction, as articulated in Clause (2) of Article 19. Clause (2) of Article 19 protects a "law" which imposes reasonable restrictions on the exercise of rights conferred upon a citizen under Article 19(1)(a), in the interest of: sovereignty and integrity of India, the security of State, friendly relations with foreign States, public order, decency, morality or in relation to contempt of court, defamation or inciteme....
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.... safety and order by taking recourse to the provisions of the East Punjab Public Safety Act, 195014. 14.5 In the third case, the Madras Government, likewise, had banned entry into the State of a journal entitled: "Crossroads" with the aid of the Madras Maintenance of Public Safety Act, 194915. 14.6 The Supreme Court struck down the provisions of the East Punjab Public Safety Act, 1950, and the Madras Maintenance of Public Safety Act, 1940 vide two separate judgements titled: Brij Bhushan vs State of Delhi, AIR 1950 SC 129 and Romesh Thappar vs State of Madras, (1950) 1 SCR 60216. 14.7 Because of the observations made by the Court (which incidentally were judgements delivered by the same Bench), the Parliament moved to introduce the expression "reasonable restriction" in clause (2) of Article 19. The Parliament thus carried out the First Amendment which permitted the Government to impose reasonable restrictions on freedom of speech and expression both retroactively and prospectively17. 14.8 The 16th Amendment Act was passed, similarly, in the background of series of events, which included the Chinese incursion in North-east, beginning in 1960, the assertion of a separate....
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....intended conversation/ speech with the British Parliamentarians against the national interest, it necessarily, was grounded, in larger public interest. 15.2 The difficulty in accepting this argument is three-fold. First, reasonable restrictions spoken of in clause (2) of Article 19 do not advert to anti-national activities. Pertinently, the word anti-national does not find a place in most dictionaries; it is in effect a combination of two words. If one were to deconstruct the meaning of the word anti-national, one would perhaps have to look to the meaning of the word, "Nationalism". The nearest equivalent to the word 'Nationalism' would be patriotism. Patriotism as a concept would be linked to nationhood. Nationhood has several attributes which are, inter alia, inextricably connected with symbols, such as : the National Flag; the National Anthem; the National Song; and perhaps, the common history, culture, tradition and heritage that people of an organized State share amongst themselves. 15.3 In respect of each of these attributes of nationhood, there may be disparate views amongst persons who form the nation. The diversity of views may relate to, not only, the static....
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.... the stated purpose, by sourcing its power under clause 8(j) of 2010 O.M., the exercise of the power in Ms Pillai's case was fatally flawed. A plain reading of clause 8(j) would show that the expression "anti-national" takes colour from the preceding term and/or expressions found in clause 8(j). The clause by itself shows that it is a power which is exercisable by the State in exceptional cases, where it is entitled to side-step even the guidelines and parameters laid down in the O.M. itself. The power vested on respondents being rare and exceptional it, necessarily, is required to be confined to persons falling in specific categories, such as counter intelligence suspects, terrorists, and anti-national elements. The expression anti-national is followed by the abbreviated form of the word etcetera. Therefore, quite clearly the word anti-national, contextually can only take colour from the words preceding it. To rule otherwise would result in allowing for a situation where any and every activity could be brought within the purview of clause 8(j). This being an exceptional power conferred on the State, which is to be exercised in the larger national interest, it cannot be given a....
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....eenpeace U.K. In my view, monitoring and regulation of funds received by Greenpeace International by itself cannot lead to any conclusion, at least at this stage, of alleged illegality having been committed by the said organization. Therefore, one cannot conclude that Greenpeace India has committed any illegality. Thus the attempt to inveigle Ms Pillai, in the illegality argument, via this route, must fail. The submission that Greenpeace International had intended to incur expenses qua Ms Pillai's travel and accommodation, is clearly unsustainable as there is no bar in Ms Pillai receiving "foreign hospitality" as against "foreign contribution". This is clear on a conjoint reading of the provisions of Sections 9(e), 6, 2(1)(h) and 2(1)(i) of the FCRA. Therefore, the submission made in this behalf is, in my view, being misconceived is, accordingly, rejected. 16. Therefore, having regard to the aforesaid discussion, in my opinion, the prayer made in the writ petition for quashing and setting aside the LOC issued qua Ms Pillai, is liable to be granted. It is ordered accordingly. Accordingly, the following consequential prayers are also granted. Respondent no.2 shall expunge the ....