Look Out Circulars: An Exercise In Unfairness

Somehow, no government has found a need to provide statutory backing to what has been acknowledged as a “coercive measure”.

<div class="paragraphs"><p>A signage for the Central Bureau of Investigation. (Photograph: PTI)</p></div>
A signage for the Central Bureau of Investigation. (Photograph: PTI)

The nebulous regime of Look Out Circulars or Look Out Notices has grabbed all the headlines this past week with Rana Ayyub and Aakar Patel, two eminent public persons with notably anti-establishment views, being stopped from departing the country to attend conferences by using this device.

I have little desire to add more words to the explosion of explainer and opinion pieces on the use of Look Out Circulars over the past week or so (such as the ones here and here) — very few of which are as comprehensive as an old BQ piece that I found on the issue. It would suffice to give just a brief explanation of what the device entails.

The Look Out Circulars that I am dealing with refers to a device used by law enforcement agencies to issue instructions to port authorities to either entirely curtail the movement of persons travelling out of the country, or to get an intimation about movement when they are crossing the border. This is one variant of Look Out Notices that have been in play for a long time, used as they are by police agencies to spread the word about persons of interest (for instance, this notice, which is up on the NCRB website). It can be used not only against persons who are accused in criminal cases but also against persons who are not named in any case in exceptional situations.

No Statutory Backing

Such a device is, unquestionably, useful and has managed to secure the presence of persons fleeing the jurisdiction of law enforcement agencies — a famous instance being the Jain Brothers who had been avoiding the Central Bureau of Investigation for questioning in connection with the Hawala scandal. The usefulness of the device, however, cannot render it immune to legal scrutiny.

Look Out Circulars have been in play since at least 1979 and are, by all accounts, an extremely popular device to regulate immigration and secure the presence of persons of interest.

Yet, somehow, no government has found a need to provide statutory backing to what has been acknowledged as a “coercive measure”.

All that regulates the practice around such devices are Office Memoranda issued by the Ministry of Home Affairs — which have not been made public on grounds of secrecy.

Law enforcement agencies should have powers to open Look Out Circulars to prevent persons of interest from fleeing their jurisdiction and thwart the investigation. At the same time, all citizens have a basic right to know the terms on which such powers can be exercised. And if we cannot be shown the basis for your power, I will assume it does not exist and cannot regulate my actions. This is not an outlandish proposition, but as elementary as two plus two equalling four. Even for preventive detention— arguably the most egregious form of deprivation of personal liberty—any citizen can go and read the concerned statutes, even if a specific detention order and proceedings themselves are secret.

That this is not the case with Look Out Circulars is a serious problem. There can be no doubt that a device that allows state agencies to, in some cases, stop a person from travelling by even resorting to force, if need be, is an infringement on personal liberty and the exercise of fundamental freedoms. Any such incursion must have a clear legal basis allowing all persons to be aware that such a power exists and disclose the grounds on which the discretion to employ it may be exercised. It must also abide by the principles of natural justice i.e., giving adequate notice and an opportunity for aggrieved persons to challenge the exercise of power.

<div class="paragraphs"><p>Aakar Patel at his residence, in June 2020. (Photograph: Priya Ramani)</p></div>

Aakar Patel at his residence, in June 2020. (Photograph: Priya Ramani)

Attack By Ambush

Yet, none of this is present in Look Out Circulars. What we have instead is an attack by ambush, where persons are not informed that a Circular has been opened and they only discover it minutes before having to travel. It might be that the facts and circumstances necessitating the issuance of a Look Out Circular have long since changed, but the person aggrieved won’t be told much about this as, usually, the Circular is not shared. The only way to restore one’s fundamental right to travel is to go to court, where the hearing becomes a mini exercise in disclosure. Every step of the way one learns more about the case against her and must try and come up with answers on the spot.

What’s worse is that nothing stops agencies from opening Look Out Circulars even where courts have granted bail and imposed conditions on travel against an accused person. Creating additional restrictions, and that too without disclosing them in advance either with the person or with a court is nothing but sheer abuse of executive power, and undermining a court’s opinion about the reasonable restrictions that are required to secure the presence of an accused without snuffing out the right to travel.

Need To Look Beyond Court Intervention

The practice around Look Out Circulars suggests, then, that they are an exercise in unfairness. Time and again we find that courts are troubled by the inherent unfairness surrounding the use of this discretionary power. It was this unease that prompted the Delhi High Court, through a 2010 reference, to lay down basic parameters regulating the issuance of Circulars and expressly recognise the power of judicial review to quash such Circulars. Egregious detention of persons through Look Out Circulars has, in the rare case, prompted damages to be awarded as well. In 2021, a different bench of the Delhi High Court again reiterated the necessity of ensuring judicial review to secure personal liberty in this context, albeit while acknowledging that a degree of deference was owed to the agencies which have requested for the circular to be issued. However, amidst all this, no court has explicitly ruled upon the constitutionality of this device—the Delhi High Court having left the question open in 2015 when quashing a Circular issued against Priya Pillai on grounds of her engaging in ‘anti national’ activities.

We can keep waiting for the day to come when courts decide the issue, with the probable stay order or two, or we can push for legislators to discharge their duties and provide statutory solutions to secure the legal basis surrounding Look Out Circulars which are, as I argued above, an eminently desirable law enforcement device. If Parliament can pass the Criminal Procedure (Identification) Bill 2022 in double-quick time, there is no excuse to leave such a crucial measure as Look Out Circulars bereft of statutory mooring and to perpetuate the present practice of regulation by secret memoranda.

Abhinav Sekhri is a lawyer practising in Delhi who focuses on criminal law and procedure.

The views expressed here are those of the author, and do not necessarily represent the views of BloombergQuint or its editorial team.