Breaking: Delhi HC Strikes Down MEA's Decision Requiring Judges Of Supreme Court, High Courts To Seek Political Clearance For Private Visits Abroad

The Delhi High Court 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.

"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," a division bench comprising of Justice Rajiv Shakdher and Justice Jasmeet Singh held.

The Court was dealing with a plea filed by petitioner in person, Aman Vachar, who contended that the condition to require judges of Constitutional Courts to seek political clearance qua private visits to foreign countries, infringes not only their right of privacy but also, in a sense, degrades or diminishes the high office that they hold.

The Court took note of the guidelines dated February 15, 2011 issued concerning foreign visits by judges of the Supreme Court and the High Courts and also the judgment dated May 25, 2012 delivered by the High Court issuing 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," the Court noted.

A SLP against the said judgment was also disposed of by the Supreme Court, without disturbing the judgment.

The Court was thus of the view that in the instant O.M., the same regime ought to have been followed.

"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," the Court observed.

The Court said that the contention raised by SGI Tushar Mehta, appearing for the Centre, that the information concerning judges travelling abroad was 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 for issuance of a "Visa Support Notes Verbale".

The Court said "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."

Regarding another prayer challenging a communication dated August 18, 2021 issued by the Ministry of Law and Justice, the Court was of the view that the same will have to be allowed partially as it was 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," the Court said.

The plea was accordingly disposed of.

Case Title: AMAN VACHAR v. UNION OF INDIA

Citation: 2022 LiveLaw (Del) 283

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