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Why The Government Should Not Appeal In Priya Pillai's Case

23/03/2015 8:02 AM IST | Updated 15/07/2016 8:25 AM IST
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Priya Pillai can travel abroad again. On 12 March, Justice Rajiv Shakdher of the Delhi High Court delivered his judgment in the Greenpeace activist's "off loading" case. The judge held that the Intelligence Bureau's (IB) "Look-Out-Circular" (LOC) based on which the activist was denied the opportunity to travel abroad was violative of her Constitutional right to travel and free speech.

The government prevented Pillai's travel abroad because she was set to address British Members of Parliament to register her objections to a coal power project in Madhya Pradesh as mining in the area would result in the destruction of hectares of pristine forests and affect the livelihood of thousands of adivasis. According to the government her stand on the issue was "anti national" in nature and would affect India's economic environment, foreign investments and relations with a friendly country.

It would be prudent for the government to not appeal against the Delhi High Court order for three reasons. Firstly, the higher courts in India have over the years expounded an expanding jurisprudence of rights and have robustly repulsed government encroachment upon citizen's fundamental rights. They have firmly rejected arbitrary restrictions on the right to travel and speech--the issue in this case-- and hence there is little chance that the government will succeed in an appeal. Secondly, this is a chance for the IB to reconsider their regressive stand that NGOs supporting alternative causes are anti-national. Thirdly, the decision suits the IB too as the court has left untouched their right to issue similar look out circulars and 'offload' orders in the future.

" This is a chance for the IB to reconsider their regressive stand that NGOs supporting alternative causes are anti-national. "

Thankfully we live in a democratic country with extensive rights that include the right to life, liberty, equality, right to form associations, right to religion etc. Any citizen and in some cases even non-citizens, whose fundamental rights have been violated by the state, can directly approach the Supreme Court or high courts through a writ petition. True, these rights are not unfettered. Reasonable restrictions can be placed on them. However, these restrictions can only be imposed strictly for the purposes laid down in the Constitution and for no other. For instance, the right to speech guaranteed under Article 19 (1) (a) can be restricted only as per Article 19 (2) provisions that include security of the state, public order, decency etc. "Anti-national", however, is not listed as a grounds for restricting the right to speech. Furthermore, these restrictions can be imposed only on the basis of a duly enacted "law".

The travel ban on Pillai was not based on any law. In court, the government side explained that an LOC was issued against her on the basis of an "office memo", which is only an executive order and not a law. From the judgment it seems that the IB used clause 8(j) of the memo which in exceptional cases allows the issue of an LOC in cases involving "counter intelligence suspects, terrorists and anti-national elements in larger public interest". The IB decided that the act of Priya Pillai speaking to UK MPs was anti-national and therefore issued the LOC.

This brings us to the larger question --- does the IB have the authority to determine who is anti-national? If so what is their definition of anti-national? And further, based on their definition of anti-national, do they have the blanket right to curtail a citizen's right to travel or speak?

" The travel ban on Pillai was not based on any law. An LOC was issued against her on the basis of an 'office memo', which is only an executive order and not a law."

What is notable here is that the IB is not a statutory authority dealing with travel abroad. Legally, it is the Bureau of Immigration (under the Ministry of Home Affairs) which should be dealing with the subject. Any act curtailing foreign travel should be through a law -- the Passport Act, for example, is a "law" on the basis of which a fundamental right could be restricted. The IB doing so under an office memo is nothing but a blatant overreach by an agency exercising authority without accountability. The Passport Act cites specific reasons that must be furnished for a suspension and that too for a specific time and subject to appeal. No such safeguards exist under the unpublished memo.

Agencies that step forward to regulate citizens' rights have to act within the confines of the law and be transparent and accountable for what they do. Even an intelligence agency needs to be transparent and should be ready to publish their order and the name of the officer who has authorised it. They should have an appellate officer before whom such an order can be questioned and be ready to defend it if challenged in court.

Interestingly the government submitted in court that they were willing to withdraw the LOC if Pillai gave an undertaking that she would not speak to the British MPs. Was the IB within its rights to determine what and where Pillai spoke? Justice Shakdher didn't think so. Emphatically rejecting the government's offer, he stated correctly that the right of speech and expression "includes the right to criticise and dissent. Criticism, by an individual, may not be palatable; even so, it cannot be muzzled."

One of the reasons that the travel ban was issued by the IB was because of its view towards NGOs in general. In June 2014, a leaked report from the IB described NGOs opposing the government's energy policies as acting against national interest and recommended that action be taken against them, including blocking their access to foreign funding.

" The IB continues to be free to use the same memo to impose travel bans based on its subjective satisfaction in the future. The wrong has been corrected but the scope for mischief has been left open."

Our intelligence agencies need to be more broadminded when it comes to the work of NGOs and people's movements. The world is a far better place today because of their work on human rights, environment, climate change, children's rights, women's rights, tribal rights and a whole host of issues. In a globalised world, what happens in Paris or Peshawar worries us as much as what happens in Mumbai or Muzaffarnagar. In this splendidly connected world it is not surprising if an individual's work in a little corner of India gets support from other parts of the world. This is the new reality. Anti-national and subversive work should be checked within the ambit of the law but every action that questions the dominant thought and talks about alternatives is not anti-national. The discussion thrown up after the leaked report and subsequently Priya Pillai's flight ban offers an opportunity to the IB to reconsider its stand on the work of NGOs.

The most worrying part of the judgment, however, is that though Justice Shakdher nullified the travel ban and the LOC issued against Priya Pillai, he did not quash the non-statutory office memo based on which the LOC was issued. Thus the IB continues to be free to use the same memo to impose travel bans based on its subjective satisfaction in the future. As the story ends, the wrong has been corrected but the scope for mischief has been left open.

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