Explainer: Could the government actually have prevented Vijay Mallya from leaving India?

Indian businessman Vijay Mallya’s retreat to the United Kingdom, in the face of demands to repay the Rs 9,000 crores he owed to Indian banks, has monopolised media space in India lately. Leader writers have wondered how the authorities failed at keeping the tycoon back in India, when they have restricted others from leaving the country.

There are numerous examples of the government preventing an individual from travelling abroad. Greenpeace employee Priya Pillai was one such person, and Maneka Gandhi another.

A review of the legal principles, such as the fundamental right to travel abroad and the limits on this right, throws light on questions pertaining to what governmental agencies can issue such directives and the procedure.

The right to travel abroad

Although the right to movement within the territories of India is enshrined under Article 19 of the Constitution, the right to travel abroad is constructively derived from the right to life and personal liberty guaranteed under Article 21.

The text of Article 21 reads: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

In a nutshell, the expressions life and personal liberty in Article 21 have been given expansive meanings through liberal interpretations. “Life” does not just entail an individual’s physical existence but also the quality of life. Similarly, “personal liberty” doesn’t simply mean freedom from physical restraint or confinement but covers various rights.

The classification of freedoms related to “personal freedom” under Article 19 and those garnered through Article 21 was subject to some judicial debate but this was settled in the landmark Maneka Gandhi Vs. Union of India case.

“The expression ‘personal liberty’ in Art. 21 is of the widest amplitude 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,” the Supreme Court said in its verdict.

Importantly, the language of Article 21 is in negative form and it does not completely negate restrictions or limitations on the right to life and personal liberty if done according to the “procedure” established by law. Moreover, the Supreme Court has said that the personal liberty of an individual and the rights flowing from it have to be balanced with the individual’s duties and obligations towards his fellow citizens.

Coming back to the question of the right to travel abroad, the Supreme Court, in the case of Satwant Singh Sawhney Vs D. Ramarathnam, established that “the expression ‘personal liberty’ in Article 21 takes in the right of loco-motion and to travel abroad”.

A question may arise as to whether the necessity to hold a passport to legally travel abroad poses a hurdle in an individual exercising the right to travel abroad, and the Supreme Court answered it in negative in the same case.

In short, both the right to travel abroad and the right to move within Indian territory fall under the umbrella of right to move freely carved out of “personal liberty”. But they are dealt by different provisions of the Constitution. The exercise of the right to travel abroad is subject to certain limitations, which have to be in line with procedure established by law, and the right to move freely within the territory of India is subject to reasonable restrictions.

Position under international law

The right to travel abroad has also been enshrined in the 1966 International Covenant on Civil and Political Rights. Article 12 of the Covenant reads that “everyone shall be free to leave any country, including his own”, which complements the constitutional right to travel abroad.

The covenant, like the Indian constitution, subjects the right to restrictions “provided by law, as are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant”.

The UN Human Rights Committee, which is responsible for overseeing the implementation of the Covenant, has elaborated that Article 12 covers not only the right to travel abroad but also the right to depart for permanent emigration. Likewise, the right of the individual to determine the State of destination is part of the legal guarantee.

The UNHRC and the Supreme Court, however, take different stands on the question of issuance of passports and travel documents. The UNHRC says the right to leave a country must include the right to obtain the necessary travel documents. But the Supreme Court clarified in the Satwant Singh Sawhney case that “there is no absolute right to demand a passport” and “the passport being a political document, is one which the State may choose to give or to withhold. Since that document vouches for the respectability of the holder, it stands to reason that Government need not vouch for a person it does not consider worthy”.

It is important to note that in 1984 the Supreme Court, in the Gramophone Company of India Vs. Birendra Pandey, had observed that when differences arise in national and international law, the former would prevail.

Restrictions on right to travel abroad

As mentioned above, the right to travel abroad is subject to restrictions in accordance with the “procedure established by law”. Essentially, the Supreme Court clarified that these restrictions need to be fair, just and reasonable and must conform to the principles of natural justice. And more importantly, these criteria extend to, both, the substantive and the procedural aspects of law.

Most importantly, the Constitution does not expressly enumerate the circumstances or the specificities that might call for the restriction on the right to travel abroad. The Passports Act 1967, however, does.

The relevant provisions of the Passports Act specify the circumstances wherein the passport authorities may cancel, vary, revoke, or impound the passport or travel document. These instances involve the circumstances wherein the passport might have been obtained fraudulently or when it is in wrongful possession, etc. There are four more serious circumstances.

First, when the passport is cancelled in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public.

Secondly, if the passport holder has been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years. A court that has convicted or one that upholds the conviction of the passport holder under the Passports Act can itself revoke the passport.

Thirdly, if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India.

And fourthly, when a court has issued a warrant or summons for the appearance or arrest of the passport holder or when a court order prohibits the individual’s departure from India.

In addition to the above-mentioned legislation, the right to travel abroad is subject to the Ministry of Home Affairs’ Office Memorandum dated October 27, 2010. This Office Memorandum is based on the principles laid down by the judiciary. Generally, on the basis of the principles incorporated in the Memorandum, a “Look Out Circular” is issued to give effect to the restriction on the right to travel abroad.

The procedure: Look Out Circular

There is no legal definition of the Look Out Circular. The proforma for issuance of the LOC is available on the official portal of the Government of India.

As per a manual of the Central Bureau of Investigation, an LOC is opened to trace absconding criminals and also to effectively prevent and monitor the entry and exit of persons who may be required by law-enforcement agencies. The manual enumerates certain “cardinal principles” with regard to the circular, one of which specifies that the circular can be issued only with the approval of a government officer not below the ranks of Deputy Secretary or Joint Secretary or the Superintendent of Police at the central, state, and district levels respectively.

In the Delhi High Court’s 2010 judgement, in the Vikram Sharma Vs. Union of India case, the Ministry of Home Affairs clarified that an LOC has statutory legal backing through provisions of the Code of Criminal Procedure, 1973.

In the same case, the Home Ministry clarified, “Practically, LOC is interpreted as a communication received from an authorised Govt. agency with reference to a person who is wanted by that agency for fulfillment of a legal requirement, to secure arrest of person evading arrest, to nab proclaimed offender, to facilitate court proceeding by securing presence of under trials who are on bail.”

The judgement informs that such a circular could be issued at the instance of criminal law enforcement agencies such as the Ministry of Home Affairs, the Customs and Income Tax Department, Directorate of Revenue Intelligence, Central Bureau of Investigation, Interpol, Regional Passport Officers, Police Authorities in various States, etc. However, bodies such as the National Human Rights Commission, the National Commission of Women, National Commission for Protection of Children's Rights, which exercise only powers of a civil court cannot authorise the LOC.

The statutory backing of the 2010 Home Ministry Office Memorandum was challenged in Priya Pillai’s case before the High Court on the contention that it doesn’t qualify as an “enacted law” as per the constitution requirements and therefore cannot be used as an authoritative backing for the LOC.

The Court, despite finding merit in the contention, did not elaborate on it but noted that such circumstances, as might not have been specified in the Passports Act or any other statutory enactment, may arise requiring the Executive to take recourse to an LOC.

Finally, taking the recent events in context with the laws, one finds truth in the noted jurist Fali S Nariman’s words in his book The State of the Nation:

“We are living in an age marked by an all-pervading ‘rights culture’. The experience of 60-plus years of working a written Constitution has shown that a rights culture generates greater dissatisfaction amongst persons propounding different sets of rights.”

The writer is a Delhi-based lawyer.