In January 2015, an immigration officer stopped Greenpeace India activist Pillai from boarding her flight to London, where she intended speak to British Parliamentarians on how one of the U.K.’s energy company’s plans to open coal mines in Madhya Pradesh threatened to displace the area’s tribal communities. The immigration officers prevented Pillai from boarding the plane on the basis that her talk was “anti-nationalist” and “would have negatively projected the image of the Government of India” for not adequately protecting the human rights of its tribal communities. Pillai took the issue to court as a violation of her Constitutional rights to freedom of speech and to move about freely. The Supreme Court ruled in her favor.
1.1 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.
1.2 [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 … a letter of even date i.e., 11.01.2015 to the Secretary, Government of India (GOI), Ministry of Home Affairs seeking to know the reasons which had impelled the authorities concerned to detain her at the airport. Though there was no official response to her communication dated 11.01.2015, the media was rife with reports, that a Look-Out-Circular (LOC) had been issued qua her. Resultantly, Ms Pillai dispatched yet another letter dated 12.01.2015 to the same officer, seeking to know, inter alia, as to whether, what was being bandied about, in the press, was factually correct.
1.3. Ms. Pillai’s communications received no response.
2. Being aggrieved, Ms. Pillai has moved this court under Article 226 of the Constitution.
2.1. The broad plank of her challenge is pivoted on the assertion that these actions of the respondents are violative of her fundamental rights. Article 19(1)(a), 19(1)(g) and 21 have been invoked by Ms. Pillai, to assail the actions of the respondents, which she categorises, if one were to sum her submissions, as egregiously illegal.
3. Ms. Pillai … is a civil rights activist, who works in public spaces. Her core area of work relates to environmental issues. She is a lawyer by profession; and is currently employed with Greenpeace India Society, as a Policy Officer.
4. It appears of late she has been working in Mahan in the Singrauli Coal belt, in the State of Madhya Pradesh. As an activist working in Mahan, it appears, she has associated herself with the local tribal communities, which according to her, seek to resist the possibility of a coal mine being operated in the area. … a company by the name of Mahan Coal Ltd. seeks to open a coal mine in the concerned area.
4.1 Mahan Coal Ltd. [is owned by] ESSAR Energy; a company incorporated and registered in United Kingdom (in short, U.K.).
4.2 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.
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
5. Ms. Pillai was detained at the airport, just before she was to board her flight. She was accosted by Mr. V.K. Ojha, an Immigration Officer employed with respondent no. 2 i.e., Bureau of Immigration.
5.1. It is averred that Mr. Ojha after consultations with the officers at the Special Assistance Counter asked Ms. Pillai to accompany him to another place for further confabulations; albeit within the airport complex. It is at this point in time that Ms. Pillai was informed that she could not travel out of India. Resultantly, her baggage was retrieved from the aircraft and an endorsement to the effect, “off load” was made on her passport.
5.2. On Ms. Pillai seeking information as to why she had been detained, she was asked to speak to Mr. V.K. Ojha’s superior, one, Ms. Sushma Sharma. It is averred that Ms. Sushma Sharma received a fax from an unknown source, whereupon she confirmed that Ms. Pillai had been detained since her name stood included in the “data base” of individuals, who are not allowed to leave the country. Apparently, no further information was supplied to Ms. Pillai as to why and how her name got included in the said data base.
5.3. Being unhappy with her situation, Ms. Pillai, as indicated above, wrote a letter on that very date i.e., 11.01.2015 to the Secretary, Ministry of Home Affairs wherein, she recounted her ordeal.
5.4. The said communication was followed by a letter dated 12.01.2015 whereby, she sought clarification from Secretary, Ministry of Home Affairs, as to whether an LOC had been issued in her name. This clarification was sought as media reports were suggestive of the fact that this was the precise reason which the “official sources” had trotted out, for her detention at the airport.
5.5. In addition, Ms. Pillai, by this very communication, most emphatically sought the details of the LOC, if any, issued, along with information, as to the authority which had directed its issuance and, the reasons, which had led to its issuance. Ms. Pillai, briefly, also touched upon the fact that she had not been convicted in any criminal case, and all that she proposed to do, was to give a speech to the Members of the British Parliament.
5.6. None of the aforementioned communications of Ms. Pillai received a response. Resultantly, the captioned petition came to be moved on 28.01.2015 when, notice was issued in the matter.
6. On behalf of Ms Pillai, arguments were advanced by Ms. Indira Jaising … Respondents were represented by Mr. Sanjay Jain.
7. Ms. Jaising’s submissions can be briefly paraphrased as follows :-
(ii). The detention of Ms. Pillai, on 11.01.2015, had violated her fundamental right to travel, free speech and expression and to practice her profession and/or occupation. Consequently, the action of the respondents contravened her fundamental rights under Article 21, 19(1)(a) and 19(1)(g) of the Constitution.
(iii). The only legal recourse open to the respondents whereby, if at all, they could have lawfully prevented Ms. Pillai from exercising her constitutional right of free travel, was to exercise powers conferred under the provisions of: The Passports Act, 1967 (in short the Passports Act).
(iii)(a) This power could if, at all, be exercised by the constituted authority or the Central Government or the designated officer perhaps only in terms of and in consonance with the provisions of Section 10 of the Passports Act.
(iii)(b) Apart from the powers contained in the aforementioned Section, which includes the power to vary, impound or revoke the passport, emergent power is found in Section 10A of the Passports Act to suspend the passport or travel documents. … The suspension can 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.)
(iv)(a) The power to issue an LOC should be rooted in a substantive law, such as, the provisions of Section 41 of the Code of Criminal Procedure, 1973 (in short the Cr. PC). In other words, the 2010 O.M. is not backed by authority of law.
(v). The respondents by their own admission have invoked the provisions of clause 8(j) of the 2010 O.M. which, empowers them to issue an LOC; albeit in exceptional cases, “without complete” or even in cases where no details are available, only against persons falling in the following categories: “counter intelligence suspects, terrorists, anti-national elements, etc. in larger public interest”. Therefore, in such like cases, the safeguards contained in the 2010 O.M., can, in a sense, be side-stepped provided the person against whom an LOC is issued, falls in the categories prescribed therein.
(v)(a) Ms. Pillai has been categorized as one indulging in anti-national activities. The recourse to clause 8(j) of the 2010 O.M. is flawed as the expression, ‘anti-national’ has to be interpreted in the context of those expressions preceding it, that is, in consonance with, the principle of ejusdem generis.
(vi). Expression of opinion on economic activities of the Government or investment decisions of a particular multinational corporation qua coal mines in India to the extent it impacts tribal communities of the area or, the environment cannot be construed as an anti- national activity, if read, in the context of the preceding expressions; obtaining in clause 8(j). The logical corollary of which, is that, anti- national activities can only be construed as those activities which impinge upon sovereignty or integrity of India. The two examples given in clause 8(j) of the 2010 O.M., such as, counter intelligence suspects and terrorists, fall in this category.
(vi)(a) This argument was, however, advanced dehors 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 citizen of the country can be deprived of this right except according to the procedure established by law5.
(ix). Ms. Pillai has a fundamental right to express her opinion on crucial economic policies of the Government which may differ from the dominant opinion and would include the right to propagate an alternative opinion. This opinion can be expressed at seminars, by publishing articles and including, in the manner, sought to be done in the instant case by meeting with parliamentarians of foreign countries. Ms. Pillai had proposed to travel to the U.K. to highlight the role of a British company, i.e., Essar Energy. Such a meeting could, by no stretch of imagination, have had an impact on the friendly relations between India and Britain as it pertained to a contestation between a British Company and the local population situate in Mahan; none of which impinged upon the relationship between Britain and India.
(xiii). The fundamental right to free speech can only be restricted by a duly enacted law which must pass muster of the test of reasonable restrictions, as contained in Article 19(2) of the Constitution7.
(xiv). The ostensible reason given by the respondents for preventing Ms. Pillai from travelling outside India, and thus, in effect, articulating her views to British Parliamentarians is that it would create “negative image” of India overseas, which in effect would whittle down Foreign Direct Investment (FDI), in India, so very much needed, in manufacturing and infrastructure sectors and, in addition, could also lead to sanctions. None of these reasons can be classified as anti-national activities.
(xvi). The maintenance of a secret data base by respondent no. 3 i.e., the Intelligence Bureau, amounts to unlawful surveillance and, is thus, violative of right to privacy guaranteed under Article 21 of the Constitution8.
(xvii). The stand of the respondents that Ms. Pillai would be allowed to travel if, she were to furnish an undertaking that she will not speak on the subject matter referred to above, to British Parliamentarians, amounts to pre-publication censorship and, in that sense, is an unconstitutional condition attached to her otherwise constitutional right to travel abroad, which is guaranteed under Article 21 of the Constitution9.
(xviii). 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 ignored.
8. On the other hand, Mr. Sanjay Jain, learned ASG, defended the stand of the respondents:-
(iii) The investigating agencies have, from time to time, issued LOCs either against persons who are involved in crime, or against those, whose activities are found to be prejudicial in national interest … she was detained, as the purpose of her visit was to depose before a formal committee of the British Parliament, with a defined motive of impacting India’s image abroad, at a time, when it was looking to attract FDI, in infrastructure and manufacturing sector.
(iv) Greenpeace International U.K. office, has taken keen interest in fomenting ground level protest via Greenpeace India, because of which at least 13 foreign activists working for Greenpeace International have been blacklisted … These protests have marred India’s energy security interest.
(v) The main objective of the foreign and Indian activists associated with Greenpeace International and Greenpeace India, is to step up agitations in coal producing regions, such as Mahan, in Singrauli district, in the State of Madhya Pradesh. For this purpose, a front, in the form of an entity by the name of, Mahan Sangharsh Samiti (MSS) was created, which is funded by Greenpeace India and that Ms Pillai has been posted there to organize the 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.
(vii) The funding pattern of Greenpeace International is opaque, as it claims that it collected donation in small amounts from persons of different nationalities located all over the world. It is because of this reason, and its activities, that it has been placed in the proscribed list of donors under Section 46 of the FCRA; in other words, in respect of each foreign donation, Greenpeace International would have to seek permission of MHA. It is thus, placed in a category which is known as “Prior Reference Category”.
(viii) The Indian arm of Greenpeace International, i.e., Greenpeace India and Greenpeace Environment Trust, having violated Indian income tax laws, have been issued notices by the authorities under the Income Tax Act, which involve amounts equivalent to Rs. 3.8 crores.
(ix) Since, Greenpeace India’s funding had been curtailed, and prior clearance is required for donations received by Greenpeace International, Greenpeace, UK has been used to engineer protests in Mahan. As a part of this plan, in the first instance, steps were taken to garner funds and organize [Ms Pillai’s visit].
(x) APPG is headed by, one, Mr. Martin Horwood and co-chaired by a person of Indian origin, by the name of Virendra Sharma, who is the chair of APPG, on Indo-British relations. Both persons are the members of the British Parliament … As would be evident, APPG is a formal committee of a foreign Parliament. The decision of Ms Pillai to depose before such a committee, with respect to the concerns of tribal communities, in Mahan, would only damage the country’s image and consequently hamper its economic interest. Unlike other prominent civil rights activists, Ms Pillai has taken a decision to vent her ire and/or articulate her views against State policy before a Committee, comprising of British Parliamentarians; an act which can only be construed as an anti-national activity.
(xi) It has been a core foreign policy objective of countries, such as, the USA, UK and other European countries to issue annual reports, of their assessments, of specific human rights violation in other countries. In preparation of these reports, the testimonies of global NGOs and think-tank experts are recorded, including testimonies of human rights activists, originating from the country concerned. Reports, incorporating 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 low level, exposing it to the potentiality of being governed by a sanction regime.
(xi)(e) In 2006, European Parliament has already passed six (6) resolutions against India on dalit rights and one on violence against women. The content of these resolutions is suggestive of the fact that Government of India and the Parliament of India have not been able to protect dalits and women, and therefore, a call is made to European Union to factor in these aspects in their trade negotiation with India and Indian companies. These reports are used as instruments of foreign policy to impede India’s growth prospects at a time when it is actively pursuing economic growth and development, which requires a massive flow of FDI.
(xii) The testimony of Ms Pillai, before a formal Committee of British Parliament, would have a cascading effect, globally, which would only serve the foreign policy interest of other nations.
(xii)(a) Ms Pillai’s deposition would thus, be prejudicial to “national interest”. Therefore, the LOC issued qua Ms Pillai is directed “not to limit all her freedoms but was focussed only on the proposed activity”, which involved deposition before a foreign parliament.
10. In view of the aforesaid facts, the following issues arise for consideration:
(ii) Whether the 2010 O.M. would constitute a “law” within the meaning of Article 13(3)(a) of the Constitution?
(iii) Whether the issuance of an LOC qua Ms Pillai was justified in the given facts and circumstances?
(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?
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.
11.3. As regards its view with regard to the decision rendered in Satwant Singh Sawhney case, the learned judges opined as follows:
11.4. Having regard to the above, it is quite clear, that it can no longer be argued that the right to travel abroad is not a fundamental right. It is, as a matter of fact, a second generation right which flows from the right to life and personal liberty conferred on the citizens, under Article 21, which can be taken away only by procedure, as established in law. While, it may be true that the right to go abroad is not included the right to freedom of speech and expression-in some cases, the curtailment of right to travel abroad could impact, a citizen’s right of free speech and expression.
12.6. The stand of the respondents that they had prevented Ms Pillai from leaving the country as she intended to testify before an APPG of British Parliamentarians, which in turn, would have “negatively” impacted the image of India-in 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-a-vis her, which is that, she intended to testify before a formal Committee of British Parliamentarians.
12.8. This conversation, Ms Pillai says she needed to have with the British Parliamentarians, so that they could call upon Essar Energy, a British company, having a major financial stake in Mahan Coal Ltd., to fall in line with the legal regime of our country.
12.9. There is nothing on record to show that Ms Pillai intended to do anything more than this. The argument of the respondents that Greenpeace U.K. and Greenpeace International were fomenting protests in the country with respect to various public projects, especially, in the field of thermal and nuclear power generation, is not backed with actionable material.
12.10. [The] alleged violation of tax laws, which I am informed is contested, would not, in my opinion by itself, be demonstrative of the fact that the activities carried out by Greenpeace India, via its employees, agents and servants, is inimical to the economic interest of the country.
12.11. The sense that I get, upon perusal of the stand taken by the respondents in their pleadings, is that, they do not approve of the view expressed by civil right activists, in forums outside the country, which tend to portray, according to them, an inaccurate picture of the state of human rights in the country. In other words, the respondents are concerned by the fact that such portrayal generates an atmosphere, which retards investment of foreign funds, in vital infrastructural projects.
13. Whether this concern of the respondents is valid or not, in my opinion, is not the issue … The advancement in knowledge base, and the ability of common citizen to access information vis-a-vis public projects, has only made dissent more strident and vigorous. Whether one model of development has to be rolled out as against the 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 or may not agree with. That by itself, cannot be a reason to prevent Ms Pillai from exercising her fundamental right to travel abroad and, thereby, in effect, disable her from expressing her views on the subject.
13.5. The core aspect of democracy is the freedom of an individual to be able to freely operate, within the framework of the laws enacted by the Parliament. The individual should be able to order his or her life any way he or she pleases, as long as it is not violative of the law or constitutes an infraction of any order or direction of a duly constituted court, tribunal or any statutory authority for that matter. Amongst the varied freedoms conferred on an individual (i.e., the citizen), is the right of free speech and expression, which necessarily includes the right to criticise and dissent. Criticism, by an individual, may not be palatable; even so, it cannot be muzzled. Many civil right activists believe that they have the right, as citizens, to bring to the notice of the State the incongruity in the developmental policies of the State. The State may not accept the views of the civil right activists, but that by itself, cannot be a good enough reason to do away with dissent.
13.8. Therefore, .. 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.
15.1. It was therefore asserted before me that Ms. Pillai could be categorized as an “anti-national element” in the larger national interest. According to Mr. Jain, since the intended activity of Ms Pillai had the potentiality of degrading the image of India in the eyes of foreign nations, leading 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.
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.
15.3. [There] may be disparate views amongst persons who form the nation. The diversity of views may relate to, not only, the static symbols, such as, the National Flag and National anthem, etc. but may also pertain to the tradition and heritage of the Nation and the manner in which they are to be taken forward. Contrarian views held by a section of people on these aspects cannot be used to describe such section or class of people as anti-national.
15.4. For anti-national activities to be brought within the limitation of clause (2) of Article 19, it would have to have a close nexus with the security of the State.
15.5. [The] action of the respondents, in issuing an LOC qua Ms. Pillai with the object of preventing her from propagating and disseminating her views on developmental activities in the Mahan coal block area, cannot be construed as a reasonable restriction, which would pass muster of the provisions of clause (2) of Article 19 of the Constitution. That the right to freedom of speech and expression includes the right to propagate ones views, which cannot be stifled or 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 judgments19. 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, quite clearly the word anti-national, contextually can only take colour from the words preceding it. To rule otherwise would result in allowing for a situation where any and every activity could be brought within the purview of clause 8(j). This being an exceptional power conferred on the State, which is to be exercised in the larger national interest, it cannot be given a meaning wider than the purpose for which the power is vested in the State functionaries.
15.7. Therefore, to my mind, a person falling in the category of an anti-national element, in the absence of any other guideline contained in the 2010 O.M., can only be that person, who projects, a present and imminent danger to the national interest. Travelling abroad and espousing views, without any criminal intent of the kind adverted to above, cannot, in my opinion, put Ms Pillai in the category of an anti- national element.
15.8. Third, what inhibits me from accepting the submission advanced on behalf of the ASG, is that, if the view advanced on behalf of the respondents is accepted, it would result in conferring un-canalised and arbitrary power in the executive, which could, based on its subjective view, portray any activity as anti- national. Such a situation, in a truly democratic country, which is governed by rule of law, is best avoided.
15.10. 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.
16. Respondent no. 2 shall expunge the endorsement “off-load” made on Ms Pillai’s passport. Furthermore, respondents shall also remove Ms Pillai’s name from the “data base” maintained by them, pertaining to those individuals, who are not allowed to leave the country.
17. The writ petition and the pending application are disposed of in the aforementioned terms. The costs will follow the result of the petition.
The core aspect of democracy is the freedom of an individual to be able to freely operate, within the framework of the laws enacted by the Parliament. The individual should be able to order his or her life any way he or she pleases, as long as it is not violative of the law or constitutes an infraction of any order or direction of a duly constituted court, tribunal or any statutory authority for that matter. Amongst the varied freedoms conferred on an individual (i.e., the citizen), is the right of free speech and expression, which necessarily includes the right to criticise and dissent. Criticism, by an individual, may not be palatable; even so, it cannot be muzzled. Many civil right activists believe that they have the right, as citizens, to bring to the notice of the State the incongruity in the developmental policies of the State. The State may not accept the views of the civil right activists, but that by itself, cannot be a good enough reason to do away with dissent.
Arnesh Kumar was arrested under Section 4 of the Dowry Prohibition Act, 1961 after his wife alleged that he demanded dowry from her. Denying the allegations, Kumamr requested anticipatory bail, but his request was denied. This led him to file a Special Leave Petition, which was granted by the court.
In order to ensure that an arrest or detention is necessary and legal, the police and the Magistrate are required to follow certain protocol. The protocol is often ignored, as was the case here. In this judgment, the court outlined certain measures and internal reforms to curb these kinds of unnecessary and illegal arrests and detentions.
1. The Petitioner apprehends his arrest in a case Under Section 498-A of the Indian Penal Code, 1860 (hereinafter called as Indian Penal Code) and Section 4 of the Dowry Prohibition Act, 1961.
2. His attempt to secure anticipatory bail has failed and hence he has knocked the door of this Court by way of this Special Leave Petition.
3. Leave granted.
4. In sum and substance, allegation levelled by the wife against the Appellant is that demand of Rupees eight lacs, a maruti car, an air- conditioner, television set etc. was made by her mother-in-law and father-in-law and when this fact was brought to the Appellant’s notice, he supported his mother and threatened to marry another woman. It has been alleged that she was driven out of the matrimonial home due to non-fulfilment of the demand of dowry.
5. Denying these allegations, the Appellant preferred an application for anticipatory bail which was earlier rejected by the learned Sessions Judge and thereafter by the High Court.
6. The rate of charge-sheeting in cases Under Section 498A, Indian Penal Code is as high as 93.6%, while the conviction rate is only 15% … As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.
7. Arrest brings humiliation, curtails freedom and casts scars forever … The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result.
8. As the offence with which we are concerned in the present appeal, provides for a maximum punishment of imprisonment which may extend to seven years and fine, Section 41(1)(b), Code of Criminal Procedure which is relevant for the purpose reads as follows:
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:
(ii) the police officer is satisfied that such arrest is necessary –
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making
such arrest, his reasons in writing: Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this Sub-section, record the reasons in writing for not making the arrest.
9. An accused arrested without warrant by the police has the constitutional right Under Article 22(2) of the Constitution of India and Section 57, Code of Criminal Procedure to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours … During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power Under Section 167 Code of Criminal Procedure … when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest Under Section 41 Code of Criminal Procedure has been satisfied and it is only thereafter that he will authorise the detention of an accused.
10. Another provision i.e. Section 41A Code of Criminal Procedure aimed to avoid unnecessary arrest or threat of arrest looming large on accused requires to be vitalised.
11. Aforesaid provision makes it clear that in all cases where the arrest of a person is not required Under Section 41(1), Code of Criminal Procedure, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police office is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged Under Section 41 Code of Criminal Procedure has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.
12. We are of the opinion that if the provisions of Section 41, Code of Criminal Procedure which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce.
13. Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:
(2) All police officers be provided with a checklist containing specified sub-clauses Under Section 41(1)(b)(ii);
(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
(4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
(6) Notice of appearance in terms of Section 41A of Code of Criminal Procedure be served on the accused within two weeks from the date of institution of the case, which may be extended
by the Superintendent of Police of the District for the reasons to be recorded in writing;
(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
14. We hasten to add that the directions aforesaid shall not only apply to the cases Under Section 498-A of the Indian Penal Code or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.
15. We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and ensuring its compliance.
16. By order dated 31st of October, 2013, this Court had granted provisional bail to the Appellant on certain conditions. We make this order absolute.
17. In the result, we allow this appeal, making our aforesaid order dated 31st October, 2013 absolute; with the directions aforesaid.
Arrest brings humiliation, curtails freedom and casts scars forever … The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. … Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically.
When Manmeet Singh’s wife disappeared one day, he immediately went to the police station and named eleven people who opposed their marriage and whom he suspected might have abducted her. Her body was found three days later, and the police had done nothing in the interim.
Manmeet Singh filed this petition calling for the investigation into her death to be put into the hands of higher-ranking officers than those who were working on it at the time. The court ruled in favor of the petitioner. It ordered that high-ranking officers be assigned to investigate all deaths that are suspected to be “honour killings.” Specifically, this officer must not be below the rank of a Deputy Superintendent of Police, and the investigation would be under the direct supervision of the Senior Superintendent of Police. Additionally, it ordered that a meeting among high-ranking officers of Haryana be convened to develop acceptable protocol for the investigation and prosecution of “honour killings.”
I. Honour killing-yet another instance
II. Action by police so far
V. Law Commission’s recommendation to quell honour killing
VI. Requirement of compulsory registration-Registering Officer’s negative attitude
VII. Court’s approaches have not stemmed the rot
VIII. Inter-caste marriage- a step towards annihilation of caste prejudices. Publication of Caste preferences in matrimonial ads-despicable practice
IX. Directives to police & State
X. March of law-scope for course correction
XI. SIT constituted; Police to report progress and of steps taken
An orderly transformation of the society could come only through the instrument of law, for the law is a potent tool of social engineering and fashions and shapes public opinions. If severe punishment to honour killings has not stopped them, if judicial approaches have not reduced their incidence and police would only stand as mute spectators, if not active collaborators, we will come to a situation of accepting these honour killings as unstoppable, that are at once, shameful and abhorrent. The society ought to understand that all the economic progress and developmental goals of what our policy makers endeavour to secure will be trashed, if we cannot respect an adult’s autonomy to choose his or her partner to be together, with or without marriage.
The Supreme Court mandated that State authorities compensate all survivors of acid attacks three lakh rupees. It also determined that full medical assistance should be provided to the survivors of acid attack free of cost including medicine, food, bedding, and reconstructive surgeries. Further, the court ruled that it is each state’s legal responsibility to ensure that hospitals comply with these demands.
In all, … 309 acid attacks are said to have taken place provisionally in the year 2014.
[W]e find that despite the directions given by this Court in Laxmi Vs. Union of India [(2014) 4 SCC 427], the minimum compensation of Rs.3,00,000/- (Rupees three lakhs only) per acid attack victim has not been fixed in some of the States/Union Territories. In our opinion, it will be appropriate if the Member Secretary of the State Legal Services Authority takes up the issue with the State Government so that the orders passed by this Court are complied with and a minimum of Rs.3,00,000/- (Rupees three lakhs only) is made available to each victim of acid attack.
Insofar as the proper treatment, aftercare and rehabilitation of the victims of acid attack is concerned, the meeting convened on 14.03.2015 notes unanimously that full medical assistance should be provided to the victims of acid attack and that private hospitals should also provide free medical treatment to such victims. It is noted that there may perhaps be some reluctance on the part of some private hospitals to provide free medical treatment and, therefore, the concerned officers in the State Governments should take up the matter with the private hospitals so that they are also required to provide free medical treatment to the victims of acid attack.
The decisions taken in the meeting read as follows:
Although it is not made clear in the meeting held on 14.03.2015, what we understand by free medical treatment is not only provision of physical treatment to the victim of acid attack but also availability of medicines, bed and food in the concerned hospital. We, therefore, issue a direction that the State Governments/Union Territories should seriously discuss and take up the matter with all the private hospitals in their respective State/Union Territory to the effect that the private hospitals should not refuse treatment to victims of acid attack and that full treatment should be provided to such victims including medicines, food, bedding and reconstructive surgeries.
Insofar as the proper treatment, aftercare and rehabilitation of the victims of acid attack is concerned, the meeting convened on 14.03.2015 notes unanimously that full medical assistance should be provided to the victims of acid attack and that private hospitals should also provide free medical treatment to such victims.