Final Written Submissions in Priya Pillai (Greenpeace)
Final Written Submissions in Priya Pillai (Greenpeace)
PETITIONER
VERSUS
UNION OF INDIA
RESPONDENTS
2. In the present case, there is no law that has been invoked by the
Respondents to justify their action of preventing the Petitioner from
exercising her fundamental right of speech and expression before
Members of Parliament in the United Kingdom (hereinafter UK).
3. The Look Out Circular (hereinafter LOC) allegedly issued against
the Petitioner dated 10.01.2015 is without any authority of law. By
their own admission, the Respondents have stated that they have
neither exercised power of impounding the passport under Section
10 of the Passports Act, 1967 nor exercised the power of
suspending the passport pending impounding under Section 10A of
the Passports Act, 1967. These are the only two provisions under
the said Act, which empower the appropriate authority to impose
travel restrictions on a citizen of India. It is well-settled that where a
power is required to be exercised by a certain authority in a certain
way, it should be exercised in that manner or not at all, and all other
modes are of performance are necessarily forbidden [Hukum
Chand Shyam Lal vs. Union of India [(1976) 2 SCC 128].
4. By their own admission, the Respondents have stated that they have
exercised the power to prevent the Petitioner from traveling abroad
on 11.01.2015 under the directions of the Respondent No. 1 issued
vide O.M. 25016/31/2010-Imm dated 27.10.2010. This office
memorandum was issued by the Respondent No. 1, in pursuant to
the directions passed by this Honble Court in Vikram Sharma v.
Union of India [171 (2010) DLT 671] and in Sumer Singh Malkan
v. Assistant Director & Ors. [II (2010) DM 666]. The said judgements
address the question of which authority can issue an LOC and who
can originate a request for an LOC. They do not address the
question of what is the legal basis of the LOC. The power to issue
an LOC must be contained in a substantive law, such as for example
Section 41 of the Code of Criminal Procedure, 1973, after which an
LOC can be issued in terms of the office memorandum of 2010. In
this case, no authority of law is shown to exist on the basis of which
the said LOC is issued. The said memorandum, which is in the
nature of executive instructions contained in an office circular, is not
law within the meaning of Article 13(3)(a) of the Constitution. In
Bijoe Emmanuel and Ors. vs. State of Kerala and Ors. (1986) 3
SCC 615, the Honble Supreme Court at para 13 held that
the circulars have no legal sanction behind them in the
sense that they are not issued under the authority of any
statute.
does
not
mention
the
word
anti national nor is there any law preventing a person who is anti
national elements etc in larger national interest from traveling
abroad or exercising the right to freedom of speech and expression.
The phrase anti national or national interest does not find mention
in the category of reasonable restrictions in Article 19(2) of the
Constitution. Hence the words anti national elements etc in larger
national interest can only be interpreted as ejusdem generis with
sovereignty or integrity of India, or must be ignored. Acting against
the sovereignty and integrity of India can only mean action in an
unlawful manner with the intention to overthrow the government with
unlawful and unconstitutional means or by secessionist activities or
for impairing the integration of India. Expressing an opinion on the
economic activities of the government or on the investment decision
of a particular multinational corporation to invest in coal mining in
India, to the extent that it impacts the lives of the tribal people or the
environment, cannot by any stretch of imagination, be construed as
against the interests of the sovereignty and integrity of India. A
similar argument questioning the policy of reservations in a film, was
rejected by the Supreme Court in S. Rangarajan v. P. Jagjivan
Ram (1989) 2 SCC 574 at paras 34 and 53.
6. It is not the case of the Respondents that the Petitioner was going to
speak against the unity and integration of India or expound any
secessionist views before the foreign parliamentarians in the United
Kingdom. The Respondents have failed to show how the proposed
visit of the Petitioner to UK and her intention to speak about the
rights of tribal communities in Mahan would constitute a threat to the
sovereignty and integrity of India. Espousing a cause for a particular
section of people is not considered as anti-national or creating
disaffection against the sovereignty and integrity of India [V.R.V.
Sree Rama Rao vs. Telugu Desam a Political Party and Others
(AIR) 1984 AP 353 at para 10]
7. The Petitioner has a fundamental right to travel abroad, as part of
her constitutional right to life and personal liberty guaranteed under
Article 21 and she cannot be deprived of this right, except according
to procedure established by law. Such procedure has to be fair, just
and reasonable, otherwise it will be violative of procedural fairness
under Article 21. In the present case, the Petitioner was deprived of
her fundamental liberty to travel to UK, without any authority of law.
[Maneka Gandhi v. Union of India (1978) 1 SCC 278 at para 4-7,
26, 48, 54-55]
8. The Petitioner has the fundamental right to express her opinion on
the crucial economic policies of the Government, which may differ
from the dominant opinion and the said right includes the right to
propagate that alternative opinion, whether by speaking at seminars,
publishing articles or meeting parliamentarians in foreign countries.
The Petitioner was traveling to UK to meet British parliamentarians
to highlight the role of a British Company, namely Essar Energy,
registered and incorporated in UK, in the Mahan coal bock in
Singrauli, M.P. The meeting would have had no impact on the
friendly relations between States, since it pertained to a contestation
between a British company and local population in Mahan with no
reference to the relations between the two States. In any event, if
the State seeks to impose restrictions on the travel of a citizen in the
interests of friendly relations with foreign States, the same has to be
done by law. [Dr. D.C Saxena v. Honble Chief Justice of India
(1996) 5 SCC 216 at paras 29-30, Nandini Sundar vs. State of
Committee on Civil and Political Rights. Apart from the State parties,
the Committee also gives an opportunity to certain NGOs to present
their views on the human rights conditions in the country. Thus,
NGOs play a vital role as a watchdog on the functioning of the State
machinery and its compliance with the human rights laws and
standards.
21. The Respondents have sought to make an arbitrary distinction
between addressing and speaking about human rights at the United
Nations and to British Parliamentarians on the ground that whereas
at the United Nations, Indian State has an opportunity to respond,
and correct any wrong impression, in the case of parliamentarians,
there is no such opportunity. It is submitted that this is a distinction,
without a difference and is arbitrary. It is submitted that the State has
its own foreign service, whose job is to promote the interests of India
including its trade and business interests and there is ample
opportunity to counter any wrong impression that may be created.
22. Being put on a watch list by the Respondent No. 3, i.e., Intelligence
Bureau, which is not a law enforcement agency and has no authority
of law, or having a name in the secret data base amounts to being
under unlawful surveillance by the State and violated the right of the
Petitioner to privacy guaranteed under Article 21 of the Constitution
of India [Kharak Singh v. State of Uttar Pradesh (1964) 1 SCR
334, People's Union of Civil Liberties (PUCL) vs. Union of India
(UOI) and Anr. (1997) 1 SCC 301]
23. The Petitioner submits that the counter-affidavit is not declared in
accordance with law, the source of information is not disclosed as
required by law. It is not understood on what basis it is being alleged
that the Petitioner is acting against national interest and hence, the
said affidavit ought to be ignored [Amar Singh v. Union of India &
Ors. (2011) 7 SCC 69 at paras 21 and 28].
FILED BY:
Mr. Bhavook Chauhan
(Advocate for the Petitioner)
Filed On: 19.02.2015
Place: New Delhi