The Constitution Bench of the Hon’ble Supreme Court in Maneka Gandhi’s^[1] case recognised the ‘right to travel abroad’ of an individual as a fundamental right and had declared that no person can be deprived of such right unless there is a law enabling the ‘State’ to do so and such law contains fair, reasonable and just procedure. However, a Look out Circular or ‘LOC’ as it is colloquially referred to, is an administrative instrument which grants power to the issuing authority (‘Originating Agency’) to curtail foreign travel of the subject of the LOC.

The Ministry of Home Affairs (Foreign Division) had issued various Circulars / Office Memorandum as guidance material for the issuance of LOCs. Earlier, as per the Office Memorandum dated October 27, 2010, an LOC once issued would remain in force only for one year, unless the same was specifically renewed. However, by way of the Office Memorandum dated February 22, 2021, an LOC once issued remains in force till a request for deletion is received by the Deputy Director, Bureau of Investigation from the Originating Agency itself. Therefore, an LOC does not lapse automatically.

In the recent past, in cases of search and seizure operation, the Government Agencies have been issuing LOCs against ‘key managerial personnel’ of a company, to restrict foreign travel of both resident and non-resident individuals, to ensure their due participation in investigation proceedings. The underlying purpose of issuing an LOC in such cases is where an individual is a flight risk and the authority is of the belief that such individual would evade investigation by leaving the country, even though no specific charge has been framed till the date of issuance of the LOC.

Although, in case there is no cognizable offence under the Indian Penal Code or other penal laws, the subject of the LOC cannot be detained/ arrested or prevented from leaving the country. The Originating Agency can only request that it is kept informed about the arrival/ departure of the subject of the LOC. However, time and again it has been noticed that the Government Agencies had misused the LOC to create pressure and ensure participation in the investigation proceedings.

In this context, by way of judicial review, the Courts^[2] have recognised that an LOC cannot be issued in a routine manner to merely secure attendance and cooperation of the individual concerned, there must be reasons to suggest deliberate evasion of arrest or non-appearance before the investigating authority. The judicial dictum further propagates that the LOC not only curtails the ‘right of personnel liberty’ but also the ‘right to livelihood’, as enshrined in Article 21 of the Constitution of India and the Courts can and should come to the rescue of the concerned individual.

At another level, the controversy regarding compliance of procedural requirements whilst issuing an LOC to the concerned individual is sub-judice before the Hon’ble Supreme Court^[3] viz., directing stay on the judgment of Hon’ble Punjab & Haryana High Court^[4], which mandated to supply copy of the LOC to the concerned individual with reasons and post decisional opportunity of hearing.

In this background, it is critical that the aggrieved individual against whom an LOC is issued is vigilant of his rights and duties, and must contemplate factors such as the period of existence of the LOC, the status of the ongoing investigation, evidences pertaining to cooperation with the investigating agency, the nature of charges etc., whilst making representation to the concerned authority or opting the recourse to constitutional remedies for vacating the LOC.

[1] Maneka Gandhi v. Union of India, AIR 1978 SC 597 (SC).

[2] Vikas Chaudhary v. Union of India, Order dated January 12, 2022, in W.P.(C) No. 5374/2021 (Delhi High Court; Karti P. Chidambaram v. Bureau of Immigration, Order dated July 23, 2018, in W.P. No. 21305/2017 (Madras High Court); Rana Ayubb v. Union of India, Order dated April 4, 2022, in W.P.(CRL) No. 714/2022 (Delhi High Court).

[3] Bank of India v. Noor Paul, Order dated May 5, 2022, in S.L.P.(C) No. 7733/2022 (Supreme Court of India).

[4] Noor Paul v. Union of India, Order dated April 5, 2022, in W.P.(C) No. 5492/2022 (Punjab and Haryana High Court).