 is a aspect which has got, I would say, off late quite often. And the validity, the purpose, the authority, and the format are some of the aspects which lawyers, students of law, professionals, and those who come out with the lookout circulars, is an aspect which but always want to learn. And the interesting facet of law is that you always evolve yourself as a lawyer and as a professional. And the more you feel that you are a student of law, that is, they say that it is the ultimate success mantra that as in, as you keep on learning, you keep on improving yourself. Being a weekend, I would request Mr. Vikram to introduce the topic as such. And then we will ask Mr. Vikram to share his knowledge. Over to you, Mr. Vikram. Very good evening to senior advocate, Mr. Vikram, as well as Vikasar. Once again, thank you from my end for this collaboration. And many thanks to Mr. Vikram Huelgold, senior advocate High Court of Karnataka for accepting our invite. I would like to make a mention about the commendable job that the senior advocate had done, especially during the second phase of lockdown. And we're all in a very bad situation. He was in the court hall one before the honorable Chief Justice. And he was the key person who has got us many help, especially during the pandemic situation, may it be the oxygen or many, many such cases. It was Mr. Vikram. And he was appointed as the amicus because there was so many petitions which were filed. And that point of time, Mr. Vikram, was appointed as the amicus and he had to literally assist the court by going through those petitions and making submissions. And most relevant petitions were, those were listed as the public interest litigation is to reduce the unwanted petitions, which were filed. So even in the capacity of the amicus, he has assisted the court immensely. Once again, many thanks to Mr. Vikram. I would not take much of the time before over to you, Mr. Vikram. First of all, thank you, Mr. Vikas and Mr. Vivikram for having me on this platform. I'll be honest. I've been a keen follower of this platform. I have been watching a number of the videos that have been uploaded on YouTube. And so when Vivikram asked me whether I would be willing to speak, I didn't have to even think for a second and I was absolutely overjoyed and privileged that they asked me to share my views on this August platform. That's number one. Number two, I'd also like to thank both Mr. Vikas and Mr. Vivikram for their very lavish phrase. I would say some undeserving, we were in a very, very difficult circumstance then. And I was very frankly just fortunate that I was given the opportunity to assist the court in such a difficult time. So thank you anyway for the very, very lavish phrase. So over to the topic for today. When Mr. Vivikram and Mr. Vikas in particular asked me what I'd be willing to speak on. Usually I'll be honest when people ask me to speak, it's generally with regard to some GST related topic or the customs or excise or some tax related issue. I thought maybe the recent 148A order pass for Supreme Court. But I was pleasantly surprised when I suggested, would you like me to speak on something about tax? Mr. Vikas immediately said, no, no, no, would you think of something else? And I just thought about for maybe a couple of days and I thought, as Mr. Vikas rightly pointed out, these lookout circulars have suddenly become the, have become very popular slash unpopular or late depending on which side of the fence you are on. And they've been highly litigated, highly publicly litigated because there have been some quite prominent personalities who have been the subject matter of these lookout circulars and matters that have been taken up to various courts. So we keep reading about them in the media and frankly I had very little idea about what these lookout circulars are. So then I did some work, did some research and also I had the opportunity to assist the Kanataka I couldn't one of these LOC cases. So that's when I thought, okay, this would be an interesting issue. I have, I built a certain amount of database on this and I put myself in the shoes of most, this is not in any way derogatory of any of the persons who are on this platform watching this. But I thought a large majority of the people know about lookout circulars only from the media. And let's be honest, what we read about these lookout circulars in the media is very, it just touches the surface. It doesn't go in depth into the subject what these lookout circulars are, how they are regulated and so on. So I thought this would be a good platform to share the little bit of work that I've done. Of course, there is an ocean of information out there on lookout circulars. And given the limited time we have, what I thought I would do was broadly classify what I would talk about these lookout circulars and to first, of course, broadly speaking, what is a lookout circular? Then what is the legal basis for this lookout circulars? Is there any statutory framework for these lookout circulars? Then when can these lookout circulars be issued? In what circumstances can they be issued? Against whom can they be issued? Then of course, the slightly drier aspect of what is the procedure, but it's equally important because if these lookout circulars are issued as practitioners, we all know that if there are certain flaws in the procedure, in the procedural aspect, they can certainly be a ground for challenge before the appropriate court. So I'll just touch upon the procedure for issuance of these lookout circulars. Who can actually issue these lookout circulars? That also is important. Not everyone can issue these lookout circulars. The duration for how long these lookout circulars can be kept valid. And of course, most importantly, as legal practitioners, what are the remedies against these lookout circulars? Are they a subject matter of judicial review? How do we get these lookout circulars if required, washed or withdrawn or so on? So this is broadly how I thought I'd structure the next hour or so on the topic. So diving straight into the topic itself, what is a lookout circular? And this is of course, just a very, very bird's-eye view of what a lookout circular is. And I'm quoting from some judgments which I will extensively deal with over the next hour or so. It very, very briefly put, it's a coercive measure to restrict and regulate the entry and departure of persons into the territory of India. So if somebody wants to leave India, if a lookout circular is again issued against him or her, there is a restriction on that person leaving the shores of our country. Of course, they are subject to various restrictions. It cannot be issued at anyone's whim or fancy. Initially it was intended only for persons who have been accused of cognisable offenses, who are facing trial, who are subject matter of an investigation in a cognisable offense, but I'll also deal with how that has been enlarged to almost disproportionate, almost disproportionately and how it's not restricted anymore only to cognisable offenses and how it's far broader in scope as on today. So suffice to say for the moment that it's a coercive measure, it's a restriction on the person's ingress and egress into the country. And yes, it is issued by a state or a central government authority, by way of an executive order. So that is very briefly speaking of a bird's eye view of what a lookout circular is. So what is the legal basis? That was the first question I asked myself. When I first read about the lookout circular, I said, okay, are they issued under some act? Are they issued under the CRPC? Are they issued under any particular act? The answer very, very simply put is no. They have zero statutory basis. In fact, courts have, I'll deal with some of these judgments, courts have dealt with the aspect of how these lookout circulars can be issued without any statutory basis. They are not grounded in any legislation whatsoever. They are governed by various executive instructions issued by the Ministry of Home Affairs, Central Government from time to time. Initially it was governed by a letter of the Ministry of Home Affairs dated 5th of September, 1979. Then it was superseded by an official or by an office memorandum in the year 2000. Then interestingly, there were a couple of landmark judgments, both of the Delhi High Court. I'll deal with those judgments also. One is in the case of Vikram Sharma and one in the case of Sumer Singh Salkand. I'll deal with those cases. No need to note them down immediately. But because of those two judgments and because of certain observations and directions issued in those two judgments by the Honorable Delhi High Court, the Ministry of Home Affairs issued a consolidated office memorandum in the year 2010, more specifically on 27th of October, 2010. That has been the basis for the issuance of these lookout circulars. There has been a subsequent office memorandum, not really changing much in the 2010 office memorandum but adding some more conditions, adding some more circumstances in which these lookout circulars can be issued. This was done in 2017, which has subsequently been amended as recently as on 22nd February of last year, 2021. And again, there's another core agenda of 10th of August, 2021. I'll be honest, I did a lot of research on the internet to get these office memoranda out. The information out there is very, very sparse. The 1979 circular is not available. The, sorry, 1979 letter is not available. The 2000 office memorandum is not available but there are certain images of that available on certain websites. So all of this I have got from judgments of various courts because when lookout circulars were issued and they were challenged in various courts in the Delhi High Court or even in Karnataka High Court, the courts have extracted portions of this office memorandum, of these office memoranda. So, but yes, if so, why I'm saying this is if tomorrow you want to Google this or check on the internet or check on any particular website, even on the Ministry of Home Affairs website to the best of my knowledge, none of these office memoranda are publicly available. But of course, they are not secret documents because they are, like I said, they're extracted extensively in some of these judgments. So this is how I've called out most of these clauses. So again, as I was saying, there is no statutory framework for it. These are, please look out, how circulars are governed by these office memoranda. So the next aspect is, since they are governed by these office memoranda, the office memoranda themselves set out when an LOC can be issued and in what circumstances they can be issued. Who can they be issued against? When, in what circumstances? The 1979 letter from what I could find in some judgments was very, very vague. It was just a power that was granted to various authorities, including the Income Tax Department, the Department of Every Intelligence, Customs Department, where they could restrict this movement. It did not specifically set out in what circumstances it could be issued and so on. And the 2000 office memorandum sort of made it a little more elaborate. But once again, it was quite lacking the regulatory framework. It was not really regulated in the manner in which it should have been. So that's why I'm coming to the first judgment. I said, there were two landmark judgments of the honorable Delhi High Court, both in the year 2010. So 1979 till about 2010, it was, so to speak, very, very loosely regulated. Not too much, possibly, possibly, there are not too many judgments during that period also because they were not really often, like it's subject to correction. Possibly they were used. Possibly they were not litigated as much. Possibly these judgments are not as publicly available as the more recent judgments. 2010 onwards, there has been a flood of litigation on the court surface, which is why the bulk of the information out there is 2010 onwards. The first judgment I was referring to is the case of Sumer Singh Salkan versus Assistant Director. It's reported in ILR 2010, volume six, Delhi 706. There were various issues. Time will not permit me to go into the facts of each of those cases, but one of the issues framed before the Delhi High Court is precisely that, that what are the categories of cases in which the investigating agency, whichever agency it might be, can seek the recourse of an LOC and under what circumstances. So till 2010, that was not really very clear in what circumstances can an investigating agency seek the opening of an LOC against a Sumer Singh. And if I may quote, what the Delhi High Court in 2010 said was the recourse to an LOC can be taken by an investigating agency in one point, number one, incognizable offenses under the Indian Penal Code or other penal laws to where the accused was deliberately evading arrest or not appearing before the court despite NBWs and three, there was the likelihood of the accused fleeing from the country to evade trial or arrest. So in the absence of any regulatory framework, the Honorable Delhi High Court itself came forward and framed the question in what circumstances can an LOC be should have an answer the question by giving these three points. One, it has to be in relation to a cognisable offense under the IPC or any other penal law. Two, the accused has to be deliberately evading arrest. And three, there's the likelihood of the accused fleeing from the country. These observations of the Delhi High Court necessitated the issuance of the 2010 official office memorandum. And that has been the, that has not changed this basis for the issuance of LOCs and in what circumstances it can be issued. That has not changed this 2010. As I was saying sometime earlier, it's been, the circumstances have been broadened quite vastly, but these three circumstances have remained the same from 2010 onwards till now. So in fact, the 2021 office memorandum, which again I could pull out because of certain judgments. It says that recourse to an LOC is to be, this is the government ministry of home affairs. This is a direction which would necessarily be binding on all the investigating agencies as well as the Bureau of Immigration. And again, I quote, the minister of home affairs says, recourse to an LOC is to be taken in cognisable offenses under the IPC or other penal laws. So therefore they copy pasted pretty much verbiting what the honorable Delhi High Court said. And importantly, they said the reasons for the request. So if the investigating agency is the NIA or the enforcement director, whoever it may be. The reasons for the request must be provided without which, this is in the office memorandum, I quote, without which the subject will not be arrested or detained. Therefore there is the important safeguard which is built within the office memorandum itself. In that one, of course, it has to be in relation to a cognisable offense. And two, there must necessarily be reasons provided without which the subject cannot be arrested or detained. All well and good. In fact, there is an, it's made even more anti-clear in the very next paragraph. It says in cases where there is no cognisable offense, the LOC subject cannot be detained or arrested or prevented from leaving the country. And in such cases, the originating agency can only request that they be informed about the arrival or departure of the subject. So here there is a strong procedural safeguard to ensure the rights of the citizens built in within the office memorandum itself. As I was saying earlier, the reasons have to be recorded. It has to be in relation to a cognisable offense. And very clearly the instruction is if there is no cognisable offense, you cannot arrest or detain him. He must be permitted to leave the country. However, the dates for departure and arrival, those can be asserted at best. Again, it appears at this stage that where is the problem really? I'll come to that. In fact, these have been repeatedly reiterated in various judgments, including the honorable Karnataka Aikut in a judgment in CBI versus Asif Tadir. This is criminal petition number 1479 of 2021, decided recently on 25th of June, 2021, where the honorable Karnataka Aikut, I quote, I quote, said, recourse to an LOC can be taken only when the accused is deliberately evading arrest or not appearing in the trial court. And if there is a likelihood of the accused traveling abroad and trying to flee from justice, the LOC can be issued only as a coercive measure to make a person surrender, cooperate, or with the investigating agency, investigation agency, or with the court. So therefore, there are sufficient procedural safeguards which have even been recognized by the courts. Therefore, not only should he be accused of a conversable offense, there also has to be a reasonable likelihood that he is trying to flee from justice, flee from being arrested or detained. And only if those circumstances are prevalent can an LOC be issued, failing which it is liable to be caused. Of course, there is the famous judgment of Karthi Chidambaram as well, which was decided by the Madras Aikut in WP number 21305 of 2017, 21305, 2017, ordered dated 23rd July, 2018, where Madras Aikut has very, very clearly said that there should be sufficient basis for the issuance of a lookout circular and the conditions precedent to issue such a notice must be satisfied, particularly since the issue of an LOC is a coercive measure. This was again followed recently in the most, in the case of Rana Ayub, which was quite widely reported just a couple of months ago and the Delhi Aikut judgment dated 4th of April, 2022, when referring to the judgment in Karthi Chidambaram, the honorable Delhi Aikut has once again reiterated that the conditions precedent in the office memorandum as well as the judgments of the courts must be satisfied before any lookout circular can be requested or be issued. So therefore, over a period of time, there have been a fair number of procedural safeguards that have been evolved to protect the citizen from an arbitrary action of the state. But here starts the problem. The problem starts with the 2010 office memorandum itself, but the real problem is in 2017 and 2021, where the Ministry of Home Affairs went way beyond the observations of the Delhi Aikut in Sumer Singh Salkand, where very clearly it said issuance of an LOC can only be in circumstance of a Congressional offense or where he's trying to flee from justice and so on. In the 2010 office memorandum, an exception to this rule was carved out in respect of terrorists, anti-national elements, et cetera, in the larger national interest. That can, as we all know, be very, very subjectively construed by the authorities if of course a terrorist, it's a very strong term, but an anti-national element can be very, very subjective. And if it says anti-national element in the larger national interest, certainly it gives a lot of discretion in the hands of the investigating agencies to request issuance of these LOCs. But 2010, again, this was, the exception was fairly small, if I may say so, although this can be very broadly construed. This anti-national element was the subject of adjudication before the Delhi High Court in the case of Priya Pillai. This is a 2015 judgment. I'll come to that a little later and on a different aspect, but I don't want to dwell too much on what this, how the Delhi High Court dealt with this anti-national because that will go outside the scope of this particular discussion today. But suffice to say that up to 2017, the rule was cognisable offense trying to flee from justice and the exception was, however, despite that, in exceptional circumstances, in the larger national interest, and I'll look out circular, can be issued. Then in 2017, the scope was broadened even further and said in exceptional circumstances, LOC can be issued, this is important, without following these guidelines. Therefore, they said, we don't need to follow these guidelines. We don't need to follow the guidelines where there has to be a cognisable offense. In a case where there is no cognisable offense, it need not be arrested or detained. So, de-horse these guidelines and LOC can be issued, one where the departure of the person is detrimental to the sovereignty, security, or integrity of India. Again, very broadly couched that the departure is detrimental to the bilateral relation with any other country. This is extremely important, the third point, that it is detrimental to the strategic or economic interests of the country. Why I said this is important is because this economic interest of the country has been invoked in a number of cases and which has been the subject matter of adjudication in number of courts. So, what I'm trying to say is the scope was broadened tremendously. Initially, it was meant for a very, very specific purpose. Then by saying that the departure is in the larger national interest, it was slightly broadened. But then by saying that departure could be detrimental to the strategic or economic interest of the country, it was virtually opening up the floodgates. And the last one is, if that is the floodgate, it completely breaks the dam itself and says that the departure ought not to be permitted in the larger public interest. So, the office memorandum of 2017 went way beyond the initial observation of the Delhi High Court in Sumer Singh Salkand and said in exceptional circumstances, of course, it says in exceptional circumstances without following the guidelines. If the subject of the LOC could be said to be detrimental to the larger public interest or economic interests of India, even then a lookout circular can be issued. Now that is where the problem really started because when so much discretion, as we've seen over the last 70 odd years of independence, when so much discretion is placed in the hands of executive authorities, it is quite often subject to abuse. It can be used as a tool of harassment as repeatedly in the recent past, in the last one year we've seen where courts have come down heavily on these agencies saying that you cannot harass people. And with these conditions prevalent, there is certainly, I'm not for a moment suggesting that it is every case where the executive oversteps its bounds, having appeared extensively for the government myself, I possibly don't have the locus to say that. But it is certainly without any cavill of doubt, a tool by which potentially a person, a citizen can be harassed extensively by the executive authorities. In fact, in a very, very recent judgment of the Delhi High Court, again, in the case of Vikas Chaudhary versus Union of India, that the judgment dated 12th of January, 2022. It's reported in 2022, SCC online, Delhi 97. Again, I'll quote what the Honorable Delhi High Court said. Merely because the office memorandum permits the issuance of an LOC in exceptional circumstances, even when the individual is not involved in any cognisable offence. It has to be remembered that this power is to be used in exceptional circumstances and not as a matter of routine. It must therefore be interpreted in a manner that indicates an offence of such a magnitude, so as to significantly affect the economic interests of the country. And mere suspicion cannot be accepted as the basis for holding that the petitioner being allowed to travel abroad would be detrimental to the economic interests of the country. There again, again, without going into the facts, the clause invoked for issuance of LOC in that particular case, in the case of Vikas Chaudhary, was that the person's departure from the country would be detrimental to the economic interests. And the Delhi High Court came on very heavily saying that you can't construe this economic interest so broadly, so as to curtail this fundamental right of traveling abroad. And this clause should be used only in exceptional circumstances where it significantly affects the economic interests. Now, again, that also is a very subjective matter. Now, what is significantly affected? If it's a 100 crore, say it's a tax evader, say he has not paid one crore of tax, is it significantly affecting the economic interests of the country? Or if it's a 1,000 crore led scam, is it significantly affecting? So the courts would necessarily have to step in in each of the cases, examine the facts and circumstances, and then decide the validity of these LOCs. There's another very good judgment of the Honorable Delhi High Court in the case of Deep Saru Pagarwal, 2020 SEC online, Delhi 1913, the judgment dated 2nd of December, 2020, where again, the issue of economic interests of the country arose. And the Delhi High Court said the reasons for opening the LOC must specifically state. So the reasons for opening the LOC must specifically state in what manner the departure of the subject would prejudice the economic interests of India. So it merely saying that cases departure would affect the economic interests of India would not be sufficient. The reason must specifically state how it's going to affect the economic interests of India. And also in another judgment, once again, all of these are Delhi High Court judgments. In the case of Bridge Bhushan Kathuria, 2021 SEC online, Delhi 2587, the judgment dated 15th of April, 2021, where the Delhi High Court again said where the role of the subject is yet to be ascertained. So there's no real role that has been ascertained with regard to the subject of the LOC. Phrases such as economic interests of India and larger public interest cannot be extended in such a manner so as to include persons against who know specific role has been attributed to that person. So the courts have repeatedly stepped in to ensure that the executive authorities do not overstep their bounds in invoking these various causes, larger public interest, economic interests of India and so on. And by way of judicial activism have evolved various safeguards to ensure that the executive authorities do not abuse the power that are vested in them. Then of course the one aspect which I forgot to cover just in the 2021 office memorandum, it seems to have been, I think it is a little later that there is, yes, under the 2021 office memorandum, it's important to know, I'll cover that in little more detail later. But this larger economic interests of India was already quite a vexed issue. It became even more vexed when the power to request issuance of an LOC was given to the chairman slash managing director slash chief executive of all public sector banks. So here we see how it was further broadened. Initially it was just a certain number of investigating agencies, statutory authorities who could request issuance of these LOCs. Now one, when this economic interest of India concept was brought into these office memorandum, then the power was also given to chairman of public sector banks. I'll deal with that a little later, but just to point out how the scope of these lookout circulars is consistently being broadened over a period of time. Then of course as I was saying, another procedural safeguard that has been built in is the mentioning of reasons. The office memorandum itself says so. Why the courts had to step in is as I was saying in these exceptional circumstances which are the exception to the general rule that it has to be in the case of a cognisable offense. The wording is that none of these guidelines would be applicable. So the question was in such circumstances, do you need reasons? Quite simply, yes. When executive authority is being exercised in such a manner so as to potentially influence fundamental rights, courts have repeatedly held that there have to be reasons that have been ascribed and mere apprehensions and suspicions are not sufficient. So they have to be concrete reasons as to why such a drastic coercive measure is required. And in the absence of which in fact, although the judgment in Karthi Chidambaram is quite extensive, the judgment could have stopped possibly five pages earlier itself because one of the observations is that there are no reasons forthcoming in the look out circular and on this ground alone the repetition is liable to be allowed. So therefore the judgment could possibly have ended there but of course they went into the broader aspects of whether circumstances were, the issues of LLC was justifiable, whether the economic interests of India were really affected and so on. But the courts have repeatedly held that in the absence of reasons a look out circular is simply not sustainable. And again, very, very important, mere evasiveness. Now let us say someone is the subject matter of an investigation and the investigating authorities of the opinion that he is not given sufficient answers. He is being a little evasive in his answers and so on. In the same judgment I mentioned Deep Sarup Agarwal, the Delhi High Court came down heavily again and said the reason for opening LLC cannot be merely that the subject is not cooperating or being evasive. So there has essentially what the courts have consistently held is that there have to be certain reasons beyond just non-cooperation or being a little evasive. So since you're adopting such a drastic measure, there have to be sufficient justifiable reasons failing which an LLC would be the subject matter of judicial review. Duration of an LLC is very simple. I won't take more than a minute. Consistently till 2021, all these office members under the duration of the LLC was one year after which the LLC itself would lapse. But in 2021, the latest office memorandum that causes the removal. And there is no automatic deletion of an LLC as per the 2021 office memorandum. And unless there is a specific letter by the investigating authorities to the Bureau of Immigration, that LLC will be valid. However, annually that LLC should be reviewed whether the LLC is necessary or not. It should be the matter of reviewed and that's about it. So therefore duration has been completely done away with in the latest 2021 office memorandum. So then the next aspect is who can issue this LLC? Can it be issued by any agency? Can the enforcement director issue it? Can the CBI issue it? Those are questions which arose over a period of time. Initially the answer to that was yes. As per the MHA letter of 1979, the income tax department, customs department, department of revenue intelligence, CBI, state police, anyone could request, not not request, could actually issue the lookout circular and then the communication would be sent to the department or the Bureau of Immigration in which case his or her movement would immediately be restricted. Then under the 2000 office memorandum, the power was completely vested in the Bureau of Immigration. However, at the request of one of the investigating agencies, so in fact the wording used is originating agency. Now again, it was not clear who are all these originating agencies other than just said deputy secretary to the government of India, joint secretary in the state government, concerned superintendent of police at the strict levels. But of course, other agencies also could request it was not formally delineated as to who could request these lookout circulars. As a result of which a particular circumstance arose in the case of Vikram Sharma. In fact, I mentioned right in the beginning there were two judgments of the Delhi High Court. One is Sumer Singh Salkar and the other judgment in Vikram Sharma which necessitated the issuance of the 2010 office memorandum. In Vikram Sharma, what happened was that there were certain statutory bodies such as the National Commission for Women, the National Human Rights Commission and so on who were requesting issuance of these LOCs. And because none of this was really regulated in the 2000 office memorandum, LOCs were routinely being issued at their behest. The Delhi High Court came down on that and said sorry not everybody can issue, can request the issuance of these LOCs even though these are statutory bodies they are not investigating agencies they are not investigating into any crime so to speak and therefore the direction was issued through the Ministry of Home Affairs to specify who these investigating agencies should be and only those investigating agencies should be empowered to request the issuance of these lookout circulars. So therefore the Delhi High Court directed the Ministry of Home Affairs to clarify that if such agencies want to request for opening of LOCs they must bring the necessary facts to the concerned law enforcement agencies. So anybody outside of these list of agencies who can request issuance of LOCs their only option was to approach an investigating agency and place the necessary facts before them and say this is why an LOC is required so therefore kindly write to the Bureau of Immigration to issue this LOC as per the direction of the Delhi High Court the 2010 office memorandum came out with an exhaustive list of persons who could write to the Bureau of Immigration to issue an LOC and that request also should contain reasons as to why an LOC is required I won't read through all of these but some of the important agencies would be Deputy Secretary to the Government of India Joint Secretary to the State Government so Union of India State Government then the district magistrate to the district concerned SP SP in the CBI then Zonal Director of the Narcotics Control Bureau Deputy Commissioner or equivalent rank in the Directorate of Revenue Intelligence Central Board of Direct Taxes Central Board of Excise and Customs which is now Central Board of Indirect Taxes and Customs Intelligence Bureau, Research and Analysis Wing certain officers within that NIA, Enforcement Directorate and so on so I won't take too much time but yes there is an exhaustive list of agencies set out in the 2010 office memorandum who could write to the concerned agency that is the Bureau of Immigration for issuance of an LOC so as to restrict the movement of subjects 2021 office memorandum further expanded the scope of these agencies and as I was mentioning one of them was Chairman, Managing Director or Chief Executive of all public sector banks and to an officer of the SFIO so therefore the Ministry of Corporate Affairs also was given the power to because more and more of these these corporate frauds, corporate scams were being unearthed over a period of time and therefore it felt the government the Ministry of Home Affairs felt it necessary to give the power even to the Ministry of Corporate Affairs and even the Chairman and Managing Director of public sector banks of course subject to the same safeguards that there have to be reasons and so on which of course has been judicially evolved over a period of time and needless to say the criminal courts in India also have the power to request the local police authorities or any other law enforcement agencies to issue these lookout circulars so therefore if there is a summons issued by a court and for whatever reason to avoid appearing before the court this person is not appearing at all and there is a risk of him fleeing the country fleeing from the law enforcement altogether the courts can also direct the local the police authorities the local SP or the commissioner as the case may be to write to the Bureau of Immigration to issue an LOC so the courts will direct the investigating authorities and they will write to the Bureau of Immigration so it's quite broad now who can request for these issuance of LOCs has been at least delineated but it is certainly quite broad in scope and a number of authorities have been given the powers to request an issuance of LOC of course it is subject to restrictions within the office memorandum itself there are duties and liabilities of the originator slash originating agency so if the SFIO or if the ED were to request for the issuance of an LOC against a particular person they will have to make a request in the prescribed pro forma the prescribed pro forma must contain reasons the prescribed pro forma in fact is a part of the office memorandum so it has to contain reasons as to why it is necessary to issue a LOC out circle against a certain person and it must also of course needless to say it must completely identify the person and so on so that the wrong person is not detained at the airport or wherever the port wherever is trying to leave the country interestingly the office memorandum casts the liability of actions taken by immigration authorities on the originating agency so the immigration authorities are not liable for any wrongdoings because they are only following not instructions but they are adhering to the requests of various investigating agencies therefore the office memorandum makes it clear that there is no liability on the immigration authorities since they are only doing what somebody else is requested for and the liability would lie on the requesting agency this has again been followed in the 2021 office memorandum as well so that should broadly cover of course only touching the surface but what an LOC is what is the procedure for issuance of LOCs who can issue who can request for issuance of LOCs who an LOC can be issued against and in what circumstances a LOC can be issued now we come to the all important aspect of the remedies available to the subject of a lookout circular in fact that was also one of the questions framed in Sumer Singh Salkand because at that time as I was saying it was largely unregulated and in Sumer Singh Salkand the honorable Delhi High Court said the subject of an LOC has two options one is approach a competent court seeking cancellation, revocation or washing of the lookout circular it did not mention whether it should be an article 226 or it did not go into that it just said approach a competent court it left it open-ended or right to the issuing authority seeking cancellation of the lookout circular on the ground that it has been wrongly issued so he has two options as per Sumer Singh Salkand but of course after that number of lookout circular have been the subject matter of repeatitions where they have directly been challenged under article 226 before various high courts as I was saying of course most of them coincidentally have been in the Delhi High Court there have been number of judgments even of the Karnataka High Court but most suffice to say that a number of these LOCs have been challenged by way of repeatitions invoking article 226 as initially there was a certain amount of resistance from the the Union of India saying that these LOCs cannot be the subject matter of judicial review under article 226 but that contention has been infactically negative in all the cases without exception saying that of course 226 is certainly a discretionary jurisdiction but in Karthi Chidambaram the Honourable Madra Sikot said that wherever any action infringes upon certain rights fundamental rights or civil rights of a citizen article 226 can certainly be invoked to judicially review those actions even in the recent case as I was saying of Vikas Chaudhary Honourable Delhi High Court said there can never be any blanket bar on the court's power of judicial review to examine the authority's decision to issue the LOC and in light of the adverse effects that the issuance of an LOC can have on the individual's life the respondents plea that the court under 226 should not review the decision cannot be accepted this has also been affirmed by a recent Karnataka High Court judgment in the case of Asif Qadir as I was mentioning that earlier where again the Karnataka High Court has said that the normal principles of judicial review for example, non-application of my no reasons arbitrariness and so on are certainly grounds on which the writ jurisdiction of the High Courts can be invoked to seek washing of these LOC out circulars I don't want to dwell too much on whether it is a subject matter of whether they can be a subject matter of judicial review because I think very frankly the answer is yes it I don't think there can be any other view that all executive actions as the scope of judicial review over a period of time has been enlarged so much in our country it would be a little unwise to say that LOCs are completely beyond the pale of judicial review but there are certain additional aspects some of them which have not been dealt with by any courts at all which I would like to touch upon one is that the moment fundamental rights are involved and I don't think there can be any doubt right from Menaka Gandhi's case that the right to travel abroad is a fundamental right that has been repeatedly followed in a number of judgments I don't think there can be any doubt on that aspect therefore there are fundamental rights involved when a LOC has been issued it necessarily restricts the person's movement outside the country it can also be said that it affects the right to livelihood I may be a businessman who needs to go to Singapore or the US or Dubai to meet clients to earn my livelihood it could also potentially affect my right to livelihood once again affecting my rights under article 21 in fact that was also in that argument was noted and accepted in the case of Vikas Chaudhary that it can also affect the right to livelihood so therefore I don't think there can be any doubt that the issuance of an LOC and the restriction on a person's movement outside the country is a restriction on the person's fundamental rights specifically under article 21 as we all know no fundamental right even under article 21 is not the subject matter of restrictions restrictions can be placed on even rights under article 21 as very very lucidly explained in the case of Justice K.S. Kutswami in the Adar case where Justice Chandra Choudhary has beautifully laid out the circumstances in which restrictions can be placed although that was vis-a-vis a right to privacy but they can equally be applied even to other rights under article 21 and the three important aspects which in fact Justice Chandra Choudhary as well as Justice Nariman in Kutswami's judgment affirmed in fact Justice Sanjay Kishankul added another aspect but again that's beyond the scope of this but the three important restrictions or not not restrictions but three important circumstances which have to be prevalent when a restriction is placed on a person's fundamental right under article 21 is that one as the article itself says article 21 no person can be deprived of life, personal liberty etc except without in a manner procedure established by law so there has to be legality to it there has to be it has the restriction to be backed by law I'll come to that because there are some interesting questions on that one there has to be legality two it has to meet the legitimate interests of the state so therefore merely because there is a law which permits the executive or the state to restrict fundamental rights it cannot do so unless it meets a legitimate state interest and three even if there is a legitimate state interest the extent of invasion of the fundamental right must be proportional to that state interest to that to the executives or to the government's interest so therefore simply put in three words there has to be legality there has to be legitimacy in other words there has to be legitimate state interest and three there must be proportionality interestingly after Putswami none of no court has really gone into the validity of LOCs and if I may say even the validity of these office memorandums vis-a-vis these observations as I was saying I don't think anybody can reasonably argue that restricting a person's movement outside the country is not a restriction on this fundamental right it is now that the government is restricting that person's fundamental right is it satisfying the test of legality that's a very very questionable issue because as I was saying there is no statutory basis for any of these for issuance of any of these LOCs they are all grounded in office memoranda that have been issued from time to time without any statutory basis whatsoever therefore if you go back to Menaka Gandhi's case and how they revisited the law laid down in AK Gopalan in Menaka Gandhi's case they said that there has to be a state made law which in other words the legislation which has to set out the procedure by which a fundamental right under article 21 can be restricted failing which it would fall fall of article 21 that is a very very questionable issue whether that office memorandum itself or the consequent LOC can survive the very first test laid down in Putswami interestingly that issue was raised prior to Putswami in the case as I was saying in Priya Pillai that issue was raised the court did not feel it necessary to go into it because on other grounds the LOC was forced as I was saying Priya Pillai the issue was whether the petitioner was anti-national and was acting contrary to the interests of the country and the court said the reasons forthcoming the LOC are completely vague and the person cannot be said to be acting contrary to the national interests or being an anti-national therefore this issue was not gone into at all by Delhi High Court although that issue was raised in the contentions before the Delhi High Court but I would think certainly that is an arguable issue there is no statutory basis it is not touched in any legal framework other than these executive instructions so whether these LOCs can be issued merely on the basis of executive instructions is possibly something that some court will have to consider at some state now since these LOCs are being issued more frequently probably sooner than later this issue is going to be brought up before one of the High Courts if not the Supreme Court of India itself and the courts will have to decide this issue in fact if I may say in the Priya Pillai's case the court briefly dealt with this aspect although did not wash the office memorandum or the LOC it said if I may for the reasons mentioned above we accept the view of the so on so High Court follows that under article 21 of the constitution no person can be deprived of his right to travel except according to procedure established by law it is not in dispute that no law was made by the state regulating or depriving persons of such a right so there is although possibly this is in orbiter there is an observation by the Delhi High Court alluring to the fact that these lookout circulars backed by any legislation and therefore their vanity itself is very very questionable then the next aspect of course now if there is if it survives the first test the second test will have to be does it meet any legitimate state interest does is it is the restriction proportional to the to the state's interest and whether the infringement is unduly restricting the person's fundamental rights those are questions which will have to be gone into visa we put into the court so possibly sometime soon we may have an exposition of law on those aspects in Rana Ayub's case I thought I looked to the judgment but this aspect was not gone into once again the court nearly went into whether there were sufficient reasons for issuance of an LOC and the court said no more recently in fact on 5th of April 2022 there was subject matter of adjudication before the Punjab and Haryana High Court and the division bench of the Punjab and Haryana High Court added another safeguard to protect the rights of citizens by saying that by not supplying a copy of the LOC at the time that person is stopped at the airport very honestly what happens in most of these cases is the subject of the LOC may not even know that there is an LOC against him or her he or she will reach the airport there will be an immigration authority who says sorry you cannot leave the country because there is an LOC issue against you the Punjab and Haryana High Court said if you are stopping someone you must necessarily supply a copy of the LOC to the subject at the time he or she is being stopped and failing which it would not satisfy the test of reasonableness article 14 and so on in fact interestingly in that case the Punjab and Haryana High Court have come to the extent of there being costs on the concerned investigating agency saying that it is completely devoid of reasons and it is nothing but harassment and so therefore I think one lakh or so costs were awarded to the petitioner in that case so in conclusion I think we are almost at the one hour mark in conclusion what I would like to say is that these lookout circulars have been issued from the last 40 odd years largely governed not largely solely governed by various executive instructions whether that can be done or not is possibly an issue that the courts will have to go into at some stage whether it would satisfy the tests of laid down in Putswami as to when restrictions can be placed on fundamental rights then of course once these aspects are decided and possibly they need to be decided because as we have seen in the recent past they are sometimes sometimes used indiscriminately by not just the executive authorities but even banks to as a tool of harassment, as a tool of coercion sometimes banks may use it to ensure that a part of the loan is repaid that says that OK, LOC has to be issued so when there are serious fundamental rights like article 21 that are involved I would like to conclude by saying that there is necessarily a legal framework that is required rather than just these executive instructions which are being broadened over a period of time and therefore in the absence of this legislation the courts will necessarily have to step in and ensure that there are sufficient procedural and substantive safeguards against abuse of the power of issuance of these LOCOT circulars so I think on that note I would like to conclude by handing back to Mr. Sevikram or Mr. Vikas and again thank you all for having taken the time off on a Saturday evening to having listened on a fairly dry subject but I hope I made it as interesting as possible. Thank you Thank you so much. You have made the most fertile soil of a desert. Thank you and we should one second Mr. Vikas welcome to senior advocate Kiran Javali sir also a very popular senior advocate who is practicing for the UNRU like put of Karnataka it's a very warm welcome to you as well sir now I think we can take a few questions Mr. Vikas I also have noted on two questions I have asked Mr. Kiran to unmute him if you want to give a break Mr. Vikram for a while you can just give a short break so that we will ask senior advocate to also speak for a moment. That's a great idea Awesome to unmute Yes, I request you to unmute yourself sir Am I visible? Yes sir, you are visible and audible Thank you Vikram has covered substantial issues in this regard My experience has shown wherever I have questioned yellow seeds the investigating body like the CBI seeking for its issuance is one aspect of the matter and the other economic organizations seeking for issuance of yellow seed is another aspect of the matter Vikram has directly brought the issue in question by saying that since it is not backed by any law what is the legality of these proceedings However, till today we have not come across any decision of any court going to this aspect of the matter I wanted to exchange my thought with Vikram on the ground that should this issuance of yellow seed is a secret or like the decision of the honorable supreme court in Menaka Gandhi's case all having issued a yellow seed the party is informed that a yellow seed has been issued against you if you have got anything kindly state your objections to it if we have to say that no persons liberty taken away otherwise than provided at law then would not there be a requirement of providing the party the satisfaction on the basis of which the yellow seed came to be issued and permitting him to make a submission in that regard no question I have at least not come across any decision to that effect also correct me I am wrong I don't think so no you are absolutely right in fact the only as I mentioned the reason that April 2022 judgment of Punjabi Narayana says you give a copy of the yellow seed that also as you rightly pointed out it is kept so secret that I am sure in your experience in fact in my client's case he suffered I got him an order from the Karnataka Haiku to travel he reached the moon saying that no state bank of India has got issued a yellow seed now all fair but as held in Menaka Gandhi his case that if there are circumstances requiring issuance of an order without waiting yellow seed being one of them should post issuance an opportunity be given or not fairness that some petitions are pending before the Bombay Haiku contending that if there is a right to issue an yellow seed it has to be under the provisions of the passport act alone because the passport act alone permits every man's going in and coming out on the basis of a document issued by Government of India so control ought to also be under the provisions of the passport act not reached any finality but matters are pending this is what I wanted to add no absolutely right so in fact that passport act issue which you just highlighted that also was raised in that Priya Pillai's case I will just share that judgment with you sir there also it said that listen there is already a statutory framework to restrict a person's movement you follow that where is this yellow seeding which you are doing outside the scope of what is already statutorily prescribed so possibly that is one of the arguments for the Bombay Haiku also now I think post-vacation it should be coming up here with my matter in the matter of straight bank of India let us see what reaction the court of Karnataka would come about thank you Mavikram thank you sir you would like to see you on the other side of the panel sir very soon sure it was a pleasure hearing Mr. Kiran Javli and I will ask you to share the number we will ask him because as they say that if you have knowledge in a minute you can share and show that you actually have the knowledge just like in the law we say that the opening statement what you make in the court makes the mark of the case within the minute you can actually catch the tension of the court or you can feel that the court is seeing that you are already of the making of the submissions Mr. Kiran also to share his knowledge on the platform and we are enamored by the fact that he shared his knowledge meanwhile can a magistrate court I will request Mr. Kiran also to share his input while Mavikram is interpreting can a magistrate court pass a direction to SP to revoke LOC that SP originated that has served its purpose like the investigation I would think the answer is yes because if the direction originally the magistrate directed the investigating agency or the local SP or whoever to request for issuance of LOC and for whatever reason the court feels that he or she is participating in the trial and not acting in any evasive manner certainly you can request for withdrawal of it as well because as I was saying in the 2021 office memorandum there is no time duration so that will go on in perpetuity unless there is actually an official revocation that will go on and on so it will necessarily have to be done in my opinion what is your take there is one decision of the Supreme Court in the case of I don't know the respondent was Dawu Jibrai wherein the Supreme Court has said that someone cannot be issued at the instance of the investigating authority to be in aid in investigation if that principle is to be applied making of an application to the magistrate for restraint and the magistrate issuing that order the legality itself may become questionable under what authority of law can the magistrate issue it because he has to act on the four corners of the law if the LOC issuance is under the basis of office memorandum can the magistrate act on an office memorandum that in my view would be a little beyond the action of the respondent of the magistrate what is your question I have couple of questions of course few aspects were touched by Mr. Vikram one is the bias has not been challenged in any of these cases that is the first one second one is in context to the matrimonial issues how would it work most of the time there could be an order for maintenance but the wife is unable to get any maintenance because the husband is outside or sometimes he is trying to fly away so in these circumstances is there any in my opinion again unless one of these investigating agencies are seized of the matter and their request for issues of the LOC can't be done at the base of a private party certainly not so if the wife wants to prevent the husband from leaving I don't think and thankfully otherwise it will be opening up the floodgates even more when we are paying for the wife then it becomes difficult to get it execute act rights are infringed you can make an application you can make an application to the court directing that the passport officer be directed to suspend his passport and thereby create a situation where his continued stay abroad may become difficult in view of his invalid passport or suspended passport that is the maximum that legalistically in my view that can be done but how well our how well our judicial officers are equipped is also the question sir they should be trained regressively on these aspects as well we can't blame them for that for the reason that these issues some of which that we are discussing here have never come up as a routine matter before that they are tired by that time they have one o'clock in the afternoon by writing the order sheet you see you must understand their practical difficulties also there are so many subjects many of us lawyers don't know that there is an existence of such a law and I have come across that a number of times because most of my subjects are not even available or known to everybody so making submissions on some of the matters where the the long forms are also not known and I on a regular basis keep citing them but not the magistrates in a special court may be trained now we will view of the fact that number of special courts for every aspect of the matters are being set up in those circumstances I think the judicial academy will have to train them with the existence or bring it to their knowledge the existence of such laws Mr. Vikas I just I just seen the messages in the chat box there is one Mr. Yashvardhan who said I have appeared in the Punjab High Court matter he wants to share his views I just noticed on the chat box that message is there he is unmuted I have this small question you were touching you in fact mentioned that we should have a legal backup he is not one question there meanwhile if Yashvardhan does an investigation officer enter into anyone's house without making an entry of the arrival and departure after in the daily diary report after registration of FIR that has nothing to do with this I think that has to be governed by provision of CRPC this has nothing to do with whether he can enter anyone's house without making entry of arrival that general procedures under CRPC safeguard will have to be followed our heads of private sector banks also authorize to make a request for LLC not private sector not as of now provision very clearly says only public sector banks Yashvardhan if you can share your knowledge what were you saying Vikram meanwhile you can take your question alright my simple question was we don't have a statutory backup you have already mentioned it but don't you feel that we need to have it very soon because since ages that these we are still acting upon the executive orders it's high time that we need to have a statutory backup totally agree I think Mr. Javli also will agree that in the absence of this of a statute now as we have seen despite so many safeguards under all these penal laws including our CRPC there are still investigating authorities who act in the most high-ended manner so in the absence of that you can imagine how their actions can get I'm not saying they all do it in the absence of a statutory framework which is why article 21 says it has to be a procedure established by law and it has to be a state made law it can't be by way of executive instructions in my opinion it's an entire need Hi everyone thanks Vikram sir for a very thorough and detailed overview of the law so this matter that you were referring to in the Punjab and Haryana I court 5th of April it was decided this matter then went before the Supreme Court which was the matter represented by me in the Supreme Court and on the 5th of May the court has issued notice in the matter while it has allowed that that particular person the petitioner before the Punjab Haryana I court they have allowed her to travel but with regard to the law they have state the directions of the court that matter is going to come up after vacations and the union will file its reply and the court will consider the legal issues in detail this is the bench before Justice Indira Banerjee and ASBopanna Thanks for sharing that I was wondering why none of these cases actually go all the way to the Supreme Court and finally Supreme Court will have to lay down the law so good luck and hopefully you will have some good news yes so there is one more question it says sorry again regarding the one year I just saw some message yes subject to correction the office memorandum does say that there has to be an annual review so that lapsing doesn't happen but there has to be an annual review is what the office memorandum requires but who do that again by the because it's more a request to the Bureau of Immigration to issue this LOC so the investing authority will have to review the facts and circumstances and see whether it is still necessary for this LOC to be kept in force so it will necessarily have to be the same authority I think we have touched on the questions the details of the recent OEM piece the recent OEM in 2021 only adds these public sector banks that's a major departure from the previous position and also the 2017 one says economic interest, larger public interest and so on so those are the major changes otherwise most of them are procedural in nature which says that the new pro forma reasons have to be given and so on so there's nothing substantive other than substantive changes other than these two and of course the duration of LOC has now been done on the one year duration can LOC be suspended for a brief period say one month or two it can be then you're literally at the mercy of the concerned agency because by suspending the LOC for a month essentially allowing that person to travel but then the moment he leaves that sort of defeats your purpose the whole purpose for issuing the LOC was to make sure he doesn't leave the shores so if he's suspended for a month then he or she leaves the country in fact one of the delhi haikot orders are referring to bridge dhushan the delhi haikot said permit suspended it was not a final order by suspending the validity to the LOC permitting the person to travel abroad whichever country he or she was going to and subject to the condition that every two weeks that person reports to the Indian embassy so every second Sunday he or she has to go to the Indian embassy in that country I'm forgetting which country it was so yes it can be suspended by the courts it can be suspended by the investigating officer as well I was just checking it on the law finder that is noob paul versus jinnar fideha right so thank you friends for connecting with us and tomorrow session would be he has already come on a platform and his session as you all know they are doing tremendously well tomorrow would be suit for specific performance of a contract leadings, lease and distribution by Mr. K. Prabhakar from Madurai Bench Madras so do stay connected with us tomorrow at 6pm and thank you everyone stay safe, stay blessed and vikram it was a pleasure hearing you thank you vikram sir for a revealing presentation thank you vikram sir thank you so much thank you participants thank you thank you for joining thank you