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TMI Blog2015 (3) TMI 1372X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances? - Whether the consequent detention of Ms Pillai on 11.01.2015, at the airport, resulted in violation of her fundamental right, under Article 21, and 19(1)(a) of the Constitution? - HELD THAT:- 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, employed with Greenpeace India - The only violation which is brought to fore, in the counter affidavit, qua Greenpeace India, is one concerning certain notices issued by the Income Tax Authorities; which have clearly, some revenue implications. However, the alleged violation of tax laws, which I am informed is contested, would not, in my opinion by itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Respondents: Mr. Sanjay Jain, ASG with Mr. Neeraj Jain and Mr. Anirudh Shukla, Advocates ORDER WP(C) 774/2015 CM No.1352/2015 (interim relief) PREFATORY FACTS 1. Every once in a while, citizens going about their usual and ordinary business, get entangled with the State apparatus; sometimes for good reason and at times unjustifiably so. In such a situation, an aggrieved citizen's remedy, quite naturally, is to approach the courts of law for appropriate relief. These remedies at most times are financially debilitating and not within the means of every aggrieved party. 1.1 The instant matter is a case in point. The petitioner (hereinafter referred to as Ms. Pillai) chose to travel to the United Kingdom, in the early hours 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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4.2 It is asserted that Mahan, is home to the oldest and largest surviving Sal forest in Asia. The assertion made in the writ petition is that opening of a mine in Mahan had the potentiality of displacing the forest / tribal communities, which in turn, could impact lives of thousands of people who, depend on forest produce. There is also an assertion that such an activity could, also degrade, the existing wild life found in the area and lead to water and air pollution in the region. 4.3 It is to talk on these aspects with British Parliamentarians that, Ms. Pillai was invited by Greenpeace U.K. Accordingly, a request for visa was sent by Greenpeace U.K., on 27.11.2014, on behalf of Ms. Pillai. In its communication, Greenpeace U.K., indicated that all 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued in the matter. Since respondents had received, advance notice, they were represented by counsels. Respondents' counsels accepted notice and were accordingly given a week's time to file a counter affidavit. The returnable date fixed in the matter was 06.02.2015. Despite opportunity, no counter affidavit was filed. 5.7 However, on 06.02.2015, respondents were represented by Mr. Sanjay Jain, learned ASG who requested for further time being granted till 10.02.2015, to enable filing of a counter affidavit in the matter. The request was acceded to. Liberty was consequently granted to the petitioner to file a rejoinder before the next date of hearing. 5.8 Since the counter affidavit was not filed within the prescribed time, counsels for the petitioner 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 submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est to do so. Such a suspension shall run for a period of four (4) weeks. The suspension can thus, be carried out by the Passport Authority, only if it deems it necessary to do so in the interest of the sovereignty and integrity of India, security of India, friendly relations of India with any foreign country, or in the interest of the general public. (iii)(c) Even in such situations, the affected party has to be given an opportunity of hearing within a period not exceeding eight (8) weeks, reckoned from the date of passing of such an order. In other words, fetter, if any, on the constitutional right of a citizen to travel abroad can be imposed by a duly constituted authority and, that too, only in accordance with the aforementioned 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 D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs the submission that an LOC is an administrative instruction not backed by authority of law, and that, the grounds set out therein, whereby restrictions on travel could perhaps be imposed, had to abide by the mandate of Article 19(2) of the Constitution. Since the expression, 'anti-national' or 'national interest' does not find mention in Article 19(2) of the Constitution, the last category in clause 8(j) of 2010 O.M. being: anti-national elements, etc. in larger national interest - does not qualify as a reasonable restriction within the meaning of Article 19(2) of the Constitution3. (vii). The respondents had failed to show as to how the purpose of Ms. Pillai'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 citize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 of All India Service (Conduct) Rules, 1968 and the judgment of the Supreme Court in the case of Vijay Shankar Pandey Vs. Union of India, (2014) 10 SCC 589. (xii). The fact that Ms. Pillai's air ticket was bought by Greenpeace U.K., which is an entity, separate and distinct from Greenpeace International, would not constitute a violation of the provisions of the Foreign Contribution (Regulation) Act, 2010 (in short the FCRA). The expenses incurred on behalf of Ms. Pillai would not constitute foreign contribution within the meaning of Section 2(h) of the FCRA. If at all, the expenses towards air tickets would come within the definition of foreign 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 reasonabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Anr., (1997) 1 SCC 301. (xviii). The counter affidavit filed on behalf of the respondents is not declared as mandated by law, as the source of information, based on which averments had been made therein are not disclosed. It is not understood as to the basis on which it is asserted by the deponent that Ms. Pillai was acting contrary to national interest. The affidavit filed on behalf of the respondents thus deserves to be ignored10. 8. On the other hand, Mr Sanjay Jain, learned ASG, defended the stand of the respondents and made submissions, in line with the stand taken in the counter affidavit. Mr 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pillai has been posted there to organize the See Amar Singh Vs. Union of India and Ors., (2011) 7 SCC 69 villagers. (vi) Greenpeace India's funding was curtailed by Ministry of Home Affairs in 2014, based on specific intelligence inputs. The inputs received show that Greenpeace India plans to take-down nearly 40000 MW thermal projects. These protests are funded through foreign sources. In this behalf specific reference was made to paragraph 22 of the counter affidavit, which set out the possible locations in which thermal plants are likely to come up. Reference was 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corporating such testimonies, are prepared on religious freedom, as well as tribal and indigenous people. (xi)(a) The United States has in place, a statute, titled as: International Religious Freedom Act, 1998, which empowers its government to impose sanctions against a Country of Particular Concerns (CPC). India has come perilously close to being declared a CPC, in the reports generated by the US Commission on International Religious Freedom and the US State Department, of April and July, 2014 respectively. These reports have in fact rated 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 lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that she would not depose before the Committee of British Parliamentarians, the LOC issued qua her could be lifted. REASONS 9. Having heard the learned counsels of the parties, what has emerged from the record is as follows: (i) An LOC was issued qua Ms Pillai on 10.10.2014, followed by a fresh LOC, which got issued on 10.01.2015. These LOCs have not been served on Ms Pillai. As a matter of fact, she had no notice of an LOC having being issued vis- -vis her till she 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances? (iv) Whether the consequent detention of Ms Pillai on 11.01.2015, at the airport, resulted in violation of her fundamental right, under Article 21, and 19(1)(a) of the Constitution? ISSUE NO.(I) 11. In so far as the first issue is concerned, the answer to the same is fairly simple, in view of the law laid down by the Supreme Court, both pre and post, the enactment of the Passports 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istinctly observed in this behalf that the majority view in the said case stood overruled in view of the decision in R.C. Cooper vs Union of India, (1970) 3 SCR 530. 11.3 As regards its view with regard to the decision rendered in Satwant Singh Sawhney case, the learned judges opined as follows: .... The expression 'personal liberty' in Article 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slative entries, included in the Constitution; provided it does not contravene the provisions of the Constitution, in particular, Part III of the Constitution or takes away rights of citizens under existing law. [See Maganbhai vs UOI, (1970) 3 SCC 400]. 12.1 I must, however note, before I proceed further that, Ms Indira Jaising has argued, with much vehemence, that the respondents' 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n my view, is a stand, which is completely untenable. 12.7 The reasons for the same are as follows: First and foremost, Ms Pillai has clearly contested this attribution vis- -vis her, which is that, she intended to testify before a formal Committee of British Parliamentarians. It is her stated stand that she intended to meet a Group of British Parliamentarians, in London, to 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, espe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other, is an on-going debate. This debate impinges upon all kinds of developmental projects, which includes project, such as, mining, setting up of nuclear plants, construction of roads through forests, acquisition of land for housing projects/ industries, construction of highways, roads, dams and bridges etc. - none of which have stopped if, the executive of the day, is convinced 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contradicted as the response of the State is not sought by these bodies; does not impress me. The State has at its command a posse of sophisticated foreign service officers, who are skilled in the art of diplomacy and foreign affairs. They are trained to deal with negative connotations or, fall out of any discussion, that any individual or entity, may have with another State 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.3 The Patna High Court rejected the Bihar Government's contention that the pamphlet incited violence; a decision which was unanimously upheld by the Supreme Court in State of Bihar vs Shaila Bala Devi, 1952 (3) SCR 65413. 14.4 In the second case, the Government in East Punjab had imposed pre- censorship on an English language weekly in the guise of maintaining public 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 Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to a regression in the country's economic activities and endeavours, her journey out of the country could legitimately be interdicted to prevent her from espousing views which were against national interest or, in other words, views which impinged upon the security of the State. The submission, therefore, was that, since the respondents considered Ms Pillai's 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r impeded, except on grounds alluded to in clause (2) of Article 19, is a constitutional principle recognized by our courts in a long line of judgements19. It is a right so well entrenched in our Constitution that, it cannot be dislodged, at this point in time of our nation's history. 15.6 Second, even if I were to accept that respondents could have issued an LOC for 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion, cannot carry their case any further. According to the respondents, the website of the Greenpeace International shows Greenpeace India and Greenpeace U.K. as its affiliates. It is sought to be suggested that since Greenpeace India is affiliated to Greenpeace International, the illegality attached to the conduct of the latter, should apply to the former as well as Greenpeace 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 vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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