In a big blow to MEA, the Delhi High Court in a learned, laudable, landmark and latest judgment titled Aman Vachar v. Union of India in W.P.(C) 2712/1991 and cited in 2022 LiveLaw (Del) 283, that was delivered on April 1, 2022 has struck down an office memorandum dated July 13, 2021 issued by Ministry of External Affairs, to the extent that it required the Judges of the Supreme Court and the High Courts to seek political clearance for private visits abroad. The Delhi High Court has minced just no words to say that such a condition is “uncalled for” in view of the high offices the Judges hold. It said when certain guidelines were issued by the Centre in 2011 on the issue, it had “dispensed with the requirement of obtaining political clearance for private foreign visits” and the same approach ought to have been followed in 2021.
A Bench of Justice Rajiv Shakdher and Justice Jasmeet Singh said the “same regime ought to have been followed”, especially since “nothing has changed since the 2011 guidelines were issued”. The Delhi High Court acted on the plea by Aman Vachar who challenged the Centre’s clause on the ground that asking Judges of the Supreme Court and High Courts to seek political clearance for private visits to foreign countries infringed their right to privacy and degraded and diminished the high office they hold. In 2012, the Delhi High Court modified the 2011 guidelines and held that it’s enough for a Judge to give details to the Chief Justice after as foreign trip.
Solicitor General Tushar Mehta appeared for the Centre and defended the memo dated July 13, 2021 issued by the External Affairs Ministry. He said before the Court that information concerning Judges travelling abroad is required so that in case of an emergency, requisite assistance can be extended abroad. But the Delhi High Court was quick to rebut and highlight that such a stand “overlooks” the fact that information about Judges travelling plans is known the moment a request is made to the External Affairs Ministry’s consular, passport and visa division for issuance of a “Visa Support Notes Verbale”. The Court also said that in any case, if an Indian citizen, which includes a Judge, is caught in a crisis, Indian embassies/missions are duty bound to extend assistance to the extent possible as and when they receive information of such occurrence.
CM APPL. 31428/2021
To start with, this brief, brilliant, bold and balanced judgment authored by a Division Bench of Delhi High Court comprising of Justice Rajiv Shakdher and Justice Jasmeet Singh sets the ball rolling by first and foremost putting forth in para 1 that, “The substantive prayers made in the application are as follows:“(a) Set aside and/or quash the notification/ office memorandum dated 13.07.2021 issued by the Union of India through the Ministry of External Affairs, CPV Division, Delhi;
(b) Set aside the communication dated 18.8.2021 issued by the Ministry of Law and Justice;
(c) Stay the operation of the notification/ office memorandum dated 13.07.2021 issued by the Union of India through the Ministry of External Affairs, CPV Division, Delhi during the pendency of the present application.””
To put things in perspective, the Bench then envisages in para 3 that, “The concern raised by the applicant i.e., the petitioner, who appears in person, is about the aspect embedded in paragraphs 2 and 3 of the Office Memorandum (OM) dated 13.07.2021[ hereafter referred to as the “O.M.”] requiring the judges of the Supreme Court and High Courts to obtain political clearance for private visits abroad. Since the O.M. is not too expansive, the entire O.M. is extracted hereafter for the sake of convenience:“Subject: Policy related to the issuance of Visa Support Notes Verbale by consular, Passport and Visa Division, Ministry of External Affairs (CPV Division, MEA)
This is to convey that after a comprehensive review of the extant policies on the issuance of Visa Support Notes Verbale undertaken by the Consular, Passport and Visa Division, Ministry of External Affairs (CPV) Division, MEA); the following has been decided with the approval of competent authorities.
- In such cases, where Visa Support Notes Verbale are sought from the CPV Division, MEA by the Hon’ble Judges of Supreme Court and the Hon’ble Judges of High Court of India, prior Political Clearance of the MEA is to be submitted for the intended private or official visits abroad. Political Clearance may be applied at https://www.epolcearance.gov .in/.
- While forwarding requests for issuance of visa Support Notes Verbale to the CPV Division, MEA; the offices of the dignitaries may kindly be advised to submit appropriate Political Clearance for the intended visits, in both cases of private or official visits, along with the request for the Visa Support Notes Verable.
- This may be circulated appropriately.
Sd/- (Name of officer) Joint Secretary”.”</code></pre>Be it noted, the Bench then observes in para 4 that, “The sum and substance of what has been articulated in the above- captioned application, is that requiring judges of Constitutional Courts i.e., the Supreme Court and the High Courts to seek political clearance qua private visits to foreign countries, infringes not only their right of privacy (Justice K.S. Puttaswamy (Retd.) and Anr. v Union of India and Ors. (2017) 10 SCC 1) but also, in a sense, degrades and/or diminishes the high office that they hold.
4.1. We may note that, on 15.02.2011, guidelines had been issued concerning foreign visits by judges of the Supreme Court and the High Courts [hereafter referred to as “2011 guidelines”].
4.2. This court, via judgment dated 25.05.2012, had issued a slew of directions concerning the 2011 guidelines. However, insofar as paragraph 9(a) of the 2011 guidelines was concerned, the court had, at that juncture, not deemed it fit to pass any directions vis-a-vis the said paragraph, as it had dispensed with the requirement of the judges of the Supreme Court and the High Courts to obtain political clearance for private foreign visits. For the sake of convenience, the judgment dated 25.05.2012 is set forth hereafter :
“C.M.No.7809/2011
- Guidelines issued under cover of letter dated February 15, 2011 by Sh.V.K.Gupta, Under Secretary to the Government of India, on the subject of foreign visits by the Judges of the Supreme Court and the High Courts has been questioned vide C.M.No.7809/2011, in so far para 8(a) and (b), paras 9(a), (b) (c) and (e) and para 10 are concerned.
- The said paragraphs pertain to private visits by the Judges of the High Courts and the Supreme Court to foreign countries.
- Having considered the matter keeping in view the constitutional positions held by Judges of the High Courts and the Supreme Court, undisputably, the language used is inappropriate and treats as if the Judges of the High Courts and the Supreme Court hold office at the pleasure of the President of India.
- Be it a visit abroad or a visit within India, or for that matter, whenever a Judge takes earned leave, intimation thereof is sent to the appropriate department of the Government for sanction; in the case of Judges of the Supreme Court and the Delhi High Court the sanction is in the name of the President of India and in the States the sanction is in the name of the Governor of the State. Thus, with respect to paras 8(a) and (b) of the Circular Guidelines, we modify the same noting that whenever a Judge of the Supreme Court or the High Court proceeds on leave, the necessary sanction is always obtained as per the Leave Rules. However, we clarify that whether after obtaining leave or making a visit abroad during Court vacations, intimation would be given to the Chief Justice of the respective Court, of the foreign country proposed to be visited which would include the city in which the Hon’ble Judge would be staying, and for which we may note that it is desirable for the High Commission in the country concerned where the Judge would be staying to have information of the visit of the Judge to the country concerned; should a situation of emergency arise.
- Finding nothing objectionable in para 9(a) and noting that the subject matter of para 9(b) stands covered under the existing Leave Rules, dwelling on para 9(c), we find no objection of Judges not accepting hospitality from a Foreign Government/Organization, when on a private visit and if they intend to do so, to obtain FCRA clearance, but make it clear that if for a courtesy visit to meet a Judge or to see the working of a Court or visit a place in a foreign country where protocol assistance would be necessary, it would be permissible for a Judge, during a private visit to seek the necessary courtesy. We quash para 9(e) inasmuch as we have already held that sanction pertaining to leave has to be obtained from the competent authority, be it if a Judge visits a foreign country on a personal visit, and on the subject of giving prior information before making a private visit to a foreign country, we have required the Judge to give prior information to the Chief Justice of the Court concerned.
- Paragraph 10 of the Circular; found to be lowering the dignity of the constitutional posts held by Judges of the High Courts and the Court is quashed; but clarifying that information pertaining to a private visit to a foreign country would be given to the Chief Justice of the Court concerned, and which would include the duration of the visit and the city where the Judge would be staying.
- The application stands disposed of directing the Union of India to revise the guidelines in conformity with the present decision and thereafter circulate the same to the Registrars of the various High Court. W.P.(C)2712/1991
No pending issue requiring to be monitored remains and thus we direct that the file may be consigned to the Record Room.” [Emphasis is ours.].”
Most commendably, the Bench then minces just no words to hold in para 4.3 that, “In our view, in the instant O.M., the same regime ought to have been followed. Therefore, insofar as the instant O.M. dated 13.07.2021 requires judges of the Supreme Court and the High Courts to seek political clearance for private foreign visits, it is uncalled for, given the high offices they are holding, especially given the fact that nothing has changed since the 2011 guidelines were issued.”
Of course, the Bench then hastens to add in para 4.4 that, “We may also add that a Special Leave Petition (SLP) was preferred against the judgment dated 25.05.2012, which was disposed of via order dated 29.07.2019, passed in SLP(C) No. 38262/2012, albeit without disturbing the order dated 25.05.2012 passed by this court.”
Most forthrightly, the Bench then also observes eruditely in para 5 that, “Mr Mehta's contention that information concerning judges travelling abroad is required even when they proceed on a private visit, so that in case of any emergency they can be extended requisite assistance, overlooks the fact that information about judges' travel plans is known the moment a request is made to the Consular, Passport and Visa Division of the Ministry of External Affairs [CPV, Division of MEA] for issuance of a “Visa Support Notes Verbale”. That said, in any case, if an Indian citizen [which includes a judge] is caught in a crisis, Indian embassies/Missions are duty-bound to extend assistance to the extent possible, as and when they receive information of such an occurrence.”
Most significantly, the Bench then clearly, cogently and convincingly held in para 6 that, “Accordingly, the OM dated 13.07.2021, to the extent it requires the judges of the Supreme Court and the High Courts to seek political clearance qua private visits abroad, is struck down, in view of the reasons articulated hereinabove and given the fact that this issue has received the attention of this court on an earlier occasion, as noticed hereinabove.”
Adding more to it, the Bench then observes in para 7 that, “This takes care of reliefs sought in clauses (a) and (c). Insofar as the relief sought in clause (b) is concerned, it will also have to be allowed partially as it is a communication addressed by the Government of India, Ministry of law and Justice, Department of Justice to the Secretary General, Supreme Court of India and the Registrar Generals of High Courts requiring them to take "appropriate action" in consonance with the O.M. Since we have struck down the O.M. to the extent it requires judges of the Supreme Court and the High Courts to the obtain political clearance qua foreign (private) visit, the said communication, which is, dated 18.08.2021 will get truncated to that degree.”
Furthermore, the Bench then holds in para 8 that, “The above-captioned application is, accordingly, disposed of in the aforesaid terms.”
Quite candidly, the Bench then conceded in para 9 that, “At this stage, we must record that though Mr Mehta was holding a rather difficult brief, and while he argued the matter on behalf of his client [i.e. the Union of India] and defended its position, he did appreciate the difficulties that the judges of the Supreme Court and the High Court face on account of the impugned provision contained in the aforementioned O.M.”
CM APPL. 31429/2021
Finally, the Division Bench then concludes by holding in para 10 that, “In view of the order passed above, the above-captioned application shall stand closed.”
In conclusion, the Delhi High Court in its seven page commendable, cogent, composed and convincing order has struck down the MEA’s decision that required Judges of Supreme Court and High Courts to seek political clearance for private visits abroad. It has advanced powerful, pragmatic and pertinent grounds to justify its decision as discussed hereinabove. The same must be complied by the Centre now as directed by the Delhi High Court!Sanjeev Sirohi