'No private citizen can be prevented from holding or propagating in India or abroad, a view contrary to that of the government of the day.'
'The government, it seems is misreading the mandate in the Lok Sabha as being a mandate to crush dissent. In times when ruling parties have brute majorities in Parliament, the true test of safeguarding democracy is its ability to allow dissenting voices to be heard,' says Indira Jaising, the former additional solicitor general.
Priya Pillai, an environmental activist employed with Greenpeace India, a registered society in India, was arbitrarily prevented from leaving India on January 11, 2015 by the immigration authority and her passport was stamped 'offload.'
Priya was going to attend a meeting of British parliamentarians in London. The aborted meeting was to apprise parliamentarians about the displacement of local populations resulting from the allocation of coal blocks in Mahan, Singrauli, Madhya Pradesh.
Priya has been working with local communities in Mahan, who oppose the setting up of an impending coal plant by Essar Energy (a company registered in UK) and Hindalco (Aditya Birla Group in India). Greenpeace India made no secret of the fact that it was opposed to the setting up of coal-based thermal power plants for environmental and other reasons.
Priya was cursorily told that her name was included in the database of individuals barred from travelling outside India. While she was not given any reason for the government's action, she later got to know from the media that the Intelligence Bureau had allegedly issued a 'Look Out Circular' against her.
Priya made two representations to the government asking for a copy of the LOC, if any, and reasons for the same, but nearly after 30 days of the said incident, she has not been provided the same.
On January 23, 2015, Priya challenged her offloading in the honourable high court of Delhi, via Writ Petition (Civil) No 774 of 2015, on the grounds that it violated her fundamental right to liberty, including her right to travel abroad, right to non-discrimination, freedom of speech and expression and freedom to carry on her profession.
On January 28, 2015, the single judge bench of Justice Rajiv Shakdher issued notice on the petition. On Friday, February 13, the Union of India through Undersecretary (MU) Anand Joshi Foreigners Division (FCRA Wing), ministry of home affairs, filed an affidavit in which he purported to a set of reasons for the offloading in effect preventing her form traveling to the UK and virtually nullifying her right to travel abroad and her right to freedom of thought and expression, her right to hold a view of development, contrary to the official view of the Government of India.
In the affidavit, Mr Joshi, speaking for the government, admits that Priya's name appears in a 'secret database of the IB' and that an LOC, that is a Look Out Notice was issued on the 10.1.2015, just one day before her due date of travel, which effectively prevented her from taking the flight after she had checked in and was at the immigration counter. She has not been given a copy of the Look Out notice so far.
According to the affidavit, the LOC has been issues in the 'national interest.' The affidavit goes on to state 'She was traveling to the UK to depose before a formal Committee of the UK Parliament with the motive of carrying out a campaign against the Government of India, in order to impact India's image abroad, and at a time when India is looking forward to foreign direct investment in India's infrastructure and manufacturing sector.'
According to the government, Priya Pillai is one of the few Indian activists who has agreed to depose before a formal committee of a foreign parliament whereas other prominent Indian activists do not do so, and are content with ventilating their differences within the country.
This not only displays a failure of intelligence, but more importantly an ignorance of international law, under which NGOs have an official role in bodies such as the UN where they present reports on the state of human rights the world over.
The general comment under the ICCPR (International Covenant on Civil and Political Rights) acknowledges the critical role of NGOs in making presentations to the United Nations monitoring bodies with accept inputs form civil society while evaluating the human rights record of a country.
The affidavit attempts to distinguish presentations to the UN from those made to parliamentarians in other countries on the ground that the government has an opportunity to respond to the claims of violations of human rights in the UN, whereas it has no such opportunity to rebut the claims of activists made to parliamentarians in other countries.
They seem to forget the entire diplomatic service of India is precisely in place to serve the foreign policy interests of the government and are available literally as ambassadors for protecting the political and economic interests of India.
Why then should they feel threatened by a presentation by an NGO or an individual to committees?
The affidavit laments the fact that countries such as USA, the UK and the European governments are using violations of human rights as a 'core objective of foreign policy' that they issues annual reports rating countries by their complacence with human rights standards 'one of the most frequently reported upon topics is religious freedom.'
A specific complaint is made against the US government for rating India just above a Country of Concern on the issue of religious freedom which requires the specific attention of the US government.
The government worries about the fact that there is vast documentation presented to international agencies and governments on the issue of religious freedom, tribal people, indigenous people, violence against women, human trafficking and Dalit rights.
The worry is that if activists report human rights violations, India will have to face sanctions for human rights violations and the suggested solution is to ban them from going abroad and raising issues relating to human rights violations within the country!
The affidavit concludes:
'That the documentation that would be created by Priya Pillai's testimony... would have a global cascading effect and serve only the foreign interests of a foreign nation. It would lead to a false and misleading depiction of India's massive efforts to protect tribal people's rights and subsequently India's image abroad, especially when the Government of India is inviting foreign business to invest in India. Given that Priya Parameshwaran Pilllai has all the freedoms available under the Indian Constitution, her deposing before a foreign parliamentary committee has been judged to be prejudicial to national interest.'
Millions of legal and Constitutional issues arise from the affidavit.
1. Is there no Constitutional right to freedom of speech and expression to the citizens of this country which can be exercised in India and overseas. Long years ago, in 1977 when Maneka Gandhi, currently the Union minister of women and child development, was denied a passport, in a history making judgment which carries her name, the Supreme Court held that there was such a right to travel abroad. The present government seems to suffer from Constitutional amnesia.
2. Is there no right to dissent from the views of the ruling party and the government on the issue of what constitutes development? The heart of the guarantee of Freedom of Speech and Expression under Article 19 (1)(a) is the right to dissent especially in times when the ruling party enjoys an absolute majority in the Lok Sabha. The only weapon of dissent left to the citizen is her own voice. This voice cannot be silenced by 'offloading'. It is ironic that Priya Pillai in any event achieved to have her goal through a Skype conversation with the MPs of UK.
Clearly, the Indian Constitution only permits restrictions of Freedom of Speech and Expression in the interest of sovereignty and integrity of India, security of the State, friendly relation with foreign States, public order, decency and morality. These restrictions can only be imposed by a law.
There is no law in place which prevents any person from being critical of the policies of the ruling government or of speaking to any parliamentary committees overseas.
Priya holds a valid passport with a valid visa and the restriction on her travel are squarely unConstitutional.
It would be dangerous for us as a nation to accept a proposition that any person who holds a view contrary to the view of the government of the day on its economic policies or investment priorities would be considered anti-national and acting 'in a manner prejudicial to the interest of the country.'
Funding by foreign sources, is not the issue here, the issue is the right to dissent with or without foreign funding. If this was the law of land, a vast majority of citizens would be 'anti national' and be subjected all forms of victimisation.
The only category of persons who are prevented from criticising the policies of the government are public servants. No private citizen can be prevented from holding or propagating in India or abroad, a view contrary to that of the government of the day.
Priya Pillai's case is symbolic of what could happen to many of us. The true wealth of this country lies in the ability of its citizen to be critical of all policies social, economic and political at all times.
The government, it seems is misreading the mandate of its numbers in the Lok Sabha as being a mandate to crush dissent. In times when ruling parties have brute majorities in Parliament, the true test of safeguarding democracy is its ability to allow dissenting voices to be heard.
While welcoming a globalised economy through its 'Make in India' policy and wanting to be a global superpower, the government resists the globalisation of human rights. It seems they have not understood the meaning of the word 'Universal' in the Universal Declaration of Human Rights.
It is too late in the day to complain about the universalisation of the human rights movement. Preventing Priya Pillai from traveling will not improve the image of India and attract much sought after investment. Rather, the government must focus its attention on improving the position of India on the Human Development Index.
Senior Advocate Indira Jaising represents Priya Pillai in court.