A division bench of the Delhi High Court on April 1 struck down an Office Memorandum [OM] by the Union Government to the extent it required judges of Constitutional Courts, that is, the Supreme Court and the High Courts, to seek political clearance for private visits to foreign countries. On July 13 last year, the Union Ministry of External Affairs [MEA] issued an OM requiring the judges of the Supreme Court and the High Courts to seek political clearance before travelling abroad.
A bench of Justices Rajiv Shakdher and Jasmeet Singh was ruling on a petition filed by one Aman Vachar contending that the said OM infringed not only judges’ right of privacy but also, in a sense, degrades and/or diminishes the high office that they hold.
Quashing the OM in parts, the bench took note of the fact that the High Court on May 25, 2012, had dispensed with the requirement of the judges of the Supreme Court and the High Courts to obtain political clearance for private foreign visits, besides, issuing a slew of directions, when it was dealing with similar sorts of guidelines issued by the Ministry in 2011. The bench thus held that OM issued in 2021 ought to have followed the same regime.
“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”, the bench held.
In 2012, the High Court clarified that the information pertaining to a private visit by a judge to a foreign country would be given to the Chief Justice of the Court concerned, which would include the duration of the visit and the city where the judge would be staying.
Responding to the argument made by Solicitor General [SG] Tushar Mehta 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, the court noted that this argument overlooked 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 MEA for issuance of a ‘Visa Support Notes Verbale’.
The bench added 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 an occurrence.
In its parting words, the bench observed that the SG was holding a rather difficult case, and while he argued the matter on behalf of his client (that is, the union government) 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 provision contained in the OM.
Click here to view the High Court’s order.
