Delhi High Court
Celebi Airport Services India Private … vs Union Of India & Ors on 7 July, 2025
Author: Sachin Datta
Bench: Sachin Datta
$~J
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment pronounced on: 07.07.2025
+ W.P.(C) 6758/2025 and CM APPL.30662/2025
CELEBI AIRPORT
SERVICES INDIA PRIVATE LIMITED .....Petitioner
versus
UNION OF INDIA & ORS. .....Respondents
+ W.P.(C) 6759/2025 and CM APPL.30664/2025
CELEBI DELHI CARGO
TERMINAL MANAGEMENT INDIA PVT. LTD. .....Petitioner
versus
UNION OF INDIA & ORS. .....Respondents
Presence:- Mr. Mukul Rohatgi, Sr. Advocate along with Mr. Sandeep
Sethi, Sr. Advocate, Mr. Darpan Wadhwa, Sr. Advocate, Ms.
Ritu Bhalla, Mr. Sarul Jain, Mr. Sidhartha Das, Mr. Gajanand
Kirodiwal, Mr. Aditya Rathee, Mr. Amer Vaid and Ms. Rea
Bhail, Advocates for petitioners.
Mr. Tushar Mehta, SG along with Mr. Chetan Sharma, ASG,
Mr. Amit Tiwari, CGSC, Mr. Kanu Agarwal, Mr. Amit Gupta,
Mr. Bhuvan Kapoor, Mr. Aman, Mr. R. Prabhat, Mr. Saurabh
Tripathi, Mr. Vinay Yadav, Mr. Shubham Sharma, Mr. Ayush
Tanwar, Ms. Urja Pandey and Ms. Ayushi Srivastava,
Advocates for Union of India.
Ms. Anjana Gosain, Mr. Keshav Raheja, Ms. Shreya Manjari,
Advocates for R-1, 2, 3 and 5.
Mr. Sonal Kumar Singh, Advocate along with Mr. Ratik
Sharma, Mr. Parth Sindhwani, Mr. Yashvardhan Singh Gohil
and Mr. Puneet, Advocates for R-4.
Signature Not Verified
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By:ABHISHEK THAKUR
Signing Date:07.07.2025
04:09:15
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA
JUDGMENT
1. The present writ petitions have been filed by the petitioners being
aggrieved by the actions undertaken by the respondents, culminating in the
revocation of the petitioners’ security clearance, and a directive to transfer
their employees to third parties.
2. W.P. (C) No. 6758 of 2025 has been filed by Celebi Airport Services
India Private Limited, a company incorporated under the Companies Act,
1956 and now governed by the Companies Act, 2013. The petitioner is
engaged in providing professional ground handling services at Indira Gandhi
International Airport (Delhi), Cochin International Airport, Bengaluru
International Airport, Rajiv Gandhi International Airport (Hyderabad), and
Goa International Airport. The petitioner operates pursuant to ground
handling agreements entered into with the respective airport operators.
3. W.P. (C) No. 6759 of 2025 has been filed by Celebi Delhi Cargo
Terminal Management India Private Limited, a company also incorporated
under the Companies Act, 1956 and governed by the Companies Act, 2013.
This petitioner is engaged in the business of providing cargo handling
services at the Indira Gandhi International Airport, New Delhi, pursuant to a
Concession Agreement entered between the petitioner and Delhi
International Airport Limited (DIAL).
4. It is submitted that prior to entering into the said ground handling
agreements and the concession agreement, the respective petitioners
underwent background checks by national security agencies. Based on these
verifications, the Bureau of Civil Aviation Security (BCAS)/respondent no.3
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granted the petitioners security clearances, which were renewed as recently
as 21.11.2022 for a period of five years.
5. In W.P. (C) No. 6758 of 2025, the petitioner is challenging order
dated 15.05.2025 passed by BCAS/ respondent no. 3 whereby the security
clearance provided in “r/o Celebi Airport Services India Pvt. Ltd, under the
category Ground Handling Agency” has been revoked.
6. Order dated 15.05.2025 is reproduced as under –
7. In W.P. (C) No. 6759 of 2025, the petitioner is challenging order
dated 15.05.2025 passed by BCAS/respondent no. 3 whereby the security
clearance provided in “r/o Celebi Delhi Cargo Terminal Management India
Pvt. Ltd under the category Regulated Agent” has been revoked.
8. Order dated 15.05.2025 is reproduced as under –
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9. It is submitted that the said decision/s was taken unilaterally, without
furnishing any reasons, and more importantly, without affording the
petitioners any opportunity of being heard.
10. The petitioners are also challenging a communication dated
15.05.2025 issued by Regional Director, BCAS / respondent no. 5 which
provided that all Airport Entry Passes (AEPs) and Temporary Airport Entry
Pass (TAEPs) issued in favour of Celebi Airport Services India Pvt. Ltd.
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shall be allowed for entry into the Airport as employees of M/s Air India
SATS Airport Services Pvt. Ltd and M/s Bird Worldwide Flight Services
Pvt Ltd. and all AEPs and TAEPs issued in favour of the Celebi Delhi Cargo
Terminal Management India Pvt. Ltd shall be allowed for entry into the
Airport as employees of M/s GMR Airports Limited due to operational
requirements.
11. Communication dated 15.05.2025 is reproduced as under –
“Sir,
Ref trailing mail.
It is clarified that:-
1) All AEPs and TAEPs issued in favour of Celebi Cargo Terminal
Management India Pvt. Ltd. (RA) shall be allowed for entry into Airport
as employees of M/s GMR Airports Limited (RA) due to operational
requirements and will remain valid till 19.05.2025.
2) All AEPs and TAEPs issued in favour of Celebi Airport Services India
Pvt. Ltd. (GHA) shall be allowed for entry into Airport as employees of
M/s Air India SATS Airport Services Pvt. Ltd and M/s Bird Worldwide
Flight Services Pvt Ltd. due to operational requirements and will remain
valid till 19.05.2025.
3). DIAL is directed to share list of employees of Celebi Airport Services
India Pvt. Ltd. (GHA) who are taken over by existing GHAs namely M/s
Air India SATS Airport Services Pvt. Ltd and M/s Bird Worldwide Flight
Services Pvt Ltd by return mail.
With Regards”
12. The said impugned orders and communication were duly responded
by the petitioners on the same day.
13. It has also been pointed that a day prior to the passing of the
impugned orders the petitioners’ holding company, Celebi Aviation
Holding, made a detailed representation on 14.05.2025 to BCAS/ respondent
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no. 3. The said representation is reproduced as under-
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14. However it is submitted that despite the same, no opportunity for
hearing was granted, nor was the representation responded to, before the
impugned actions were taken on 15.05.2025.
SUBMISSIONS ON BEHALF OF THE PETITIONERS
15. Learned senior counsel for the petitioners has submitted as under:-
i. The petitioners have been rendering ground handling and cargo
handling services at airports in India for the last 17 years, afterSignature Not Verified
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obtaining the requisite security clearances. It is submitted that the
petitioners’ record has been unblemished, with no complaints against
its services, and that the security clearances granted to the petitioners
have never been recalled, suspended or terminated.
ii. It is submitted that the impugned orders dated 15.05.2025 are
violative of the principles of natural justice for the following reasons:
a) The impugned orders came as “a bolt from the blue”;
b) No show cause notice was given to the petitioners;
c) No opportunity of hearing was granted to the petitioners;
d) The impugned orders do not disclose any reasons.
e) The impugned orders also violate the provisions of the Aircraft
(Security) Rules, 2023 (hereinafter “2023 Rules”), particularly Rule
12 which provides as follows:-
“12. Power to suspend or cancel security clearance and security
programme – (1) The Director General, after giving the entity an
opportunity of being heard, and for reasons to be recorded in writing,
may suspend for a period not exceeding one year or cancel or impose
conditions in respect of any security clearance granted or security
programme approved under these rules, where he has any reasonable
grounds to believe and considers such action necessary, in the interests
of national security or civil aviation security or if the entity has
contravened or failed to comply with any condition of security clearance
or security programme or provision of these rules.
(2) After conducting an enquiry by an officer authorised by the Director
General, the suspension may be revoked or the security clearance or
security programme may be cancelled.”
The mandate of Rule 12 allows suspension or cancellation of a
security clearance by BCAS only:
• After affording the entity an opportunity of being heard;
• For reasons to be recorded in writing;
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• Where BCAS has the discretion to either suspend the security
clearance for a period of one year, cancel it, or impose
conditions thereon; and
• If BCAS has reasonable grounds to believe that such action is
necessary in the interest of national security.
The 2023 Rules do not provide for any exception or exemption
from compliance with the mandatory requirements of Rule 12. The
provisions are ex facie mandatory, and there is nothing in the said
Rules to suggest or imply that compliance with Rule 12 is optional or
merely directive. It is submitted that compliance with the principles of
natural justice has been held to be mandatory even in the absence of
an express provision, particularly in cases where the impugned order
results in civil consequences or affects the civil rights of the
concerned entity. In the present case, the legal position is even
stronger, as there is an express provision, i.e., Rule 12 of the 2023
Rules, mandating compliance with the principles of natural justice.
iii. It is submitted that any order passed in violation of principles of
natural justice is void. The Impugned Orders, having been passed in
breach of the Rule 12 of the Aircrafts (Security) Rules 2011/2023,
which mandates compliance with the principles of natural justice, is
void, and not merely voidable or curable. It is settled law that any
order passed without affording a hearing to the affected party is
rendered void, a nullity, and non est; and no prejudice needs to be
proved as the denial of natural justice is, in itself sufficient prejudice.
In support of the aforesaid submissions, learned senior counsel for theSignature Not Verified
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petitioners has relied upon the following judgments :
a) Union Carbide Corporation & Ors vs. UOI & Ors (1991) 4 SCC
5841
b) RB Shriram Durga Prasad Vs. Settlement Commissioner, (1989) 1
SCC 6282.
c) In Rajasthan State Road Transport Corporation and Anr vs. Bal
Mukund Bairwa (2009)4 SCC 299 3.
iv. Strenuous reliance has also been placed on Gorkha Security Services
vs. Govt. (NCT of Delhi), (2014) 9 SCC 105, in which the Supreme Court
has held as under:-
“16. It is a common case of the parties that the blacklisting has to be
preceded by a show cause notice. Law in this regard is firmly grounded
and does not even demand much amplification. The necessity of
compliance with principles of natural justice by giving the opportunity to
the person against whom action of blacklisting is sought to be taken has
a valid and solid rationale behind it. With blacklisting many civil and
stroke or evil consequences follow. It is described as a “civil death” of a
1
160. These are all accepted principles. Their wisdom, variety and universality in the discipline of law are well
established. Omission to comply with the requirements of the rules of Audi alterum partum, as a general rule vitiates a
decision. Where there is violation of natural justice no resultant or independent prejudice need to be shown as the
denial of natural justice is, in itself sufficient prejudice and it is no answer to say that even with observance of natural
justice the same conclusion would have been reached. The citizen “is entitled to be under the rule of law and not the
rule of discretion” and “to remit the maintenance of constitutional right to judicial discretion is to shift the foundations
of freedom from the rock to the sand”.
2
7. We are definitely of the opinion that on the relevant date when the order was passed that is to say, 24-08-1977 the
order was a nullity because it was in violation of principles of natural justice. See in this connection the principles
enunciated by this court in State of Orissa v Dr. Binapani Dei as also the observations in administrative law by H. W. R
Wade, 5th edition, pp. 310-311 that the act in violation of the principles of natural justice or a quasi-judicial act in
violation of the principles of natural justice is void or of no value. In Ridge vs Baldwin and Anisminic Ltd. vs. Foreign
Compensation Commission the House of Lords in England has made it clear that a breach of natural justice nullifies
the order made in breach. If that is so then the order made in violation of the principles of natural justice was of no
value…….
3
35. Any order passed in violation of the principles of natural justice save and except certain contingencies of cases,
would be a nullity. In A.R.Antulay this court held: (SCC p 660, para 55)
“55…. No prejudice need to be proved for enforcing the fundamental rights. Violation of a fundamental right itself
renders the impugned action void. So also the violation of principles of natural justice renders the act a nullity”.
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person who is foisted with the order of blacklisting. Such an order is
stigmatic in nature and debar such a person from participating in
government tenders which means precluding him from the award of
government contracts.
xxx xxx xxx
21. The central issue, however pertains to the requirement of stating the
action which is proposed to be taken. The fundamental purpose behind
the serving of show-cause notice is to make the noticee understand the
precise case set up against him which he has to meet. This would require
the statement of imputations detailing out the alleged reaches and
defaults he has committed so that he gets an opportunity to rebut the
same. Another requirement according to us is the nature of the action
which is proposed to be taken for such a breach. That should also be
stated so that the notice is able to point out that proposed action is not
warranted in the given case even if the default stroke breaches complaint
of a not satisfactorily explained. When it comes to blacklisting this
requirement becomes all the more imperative having regard to the facts
that it is the harshest possible action.
22. The High Court has simply stated that the purpose of show-cause
notice is primarily to enable the noticee to meet the grounds on which the
action is proposed against him. No doubt, the High Court is justified to
this extent. However, it is equally important to mention as to what would
be the consequence if the noticee does not satisfactorily meet the ground
on which an action is proposed. To put it otherwise, we are of the
opinion that in order to fulfill the requirements of principles of natural
justice show-cause notice should meet the following two requirements
viz:
(i) The material/grounds to be stated which according to the department
necessitates and action;
(ii) particular penalty /action which is proposed to be taken. It is this
second requirement that the High Court has failed to omit.
We may hasten to add that even if it is not specifically mentioned in the
show-cause notice but it can clearly and safely be discerned from the
reading thereof, that would be sufficient to meet this requirement.”
It is submitted that even in cases of emergent situations where prompt
action may be necessary, the legal position remains that the principles of
natural justice must be complied with. While the notice may not be elaborate
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and the opportunity of hearing need not be extensive, a substantive
opportunity must nonetheless be granted. The person concerned must be
informed of the allegations against them, and the material in support thereof
must also be shared. In this regard reliance is placed on the judgment of the
Supreme Court in S.L. Kapoor Vs Jagmohan & Ors (1980) SCC Online SC
272, wherein it has been held as under:
“11. Another submission of the learned Attorney General was that
Section 238(1) also contemplated emergent situations where swift action
might be necessary to avert disaster and that in such situations if the
demands of natural justice were to be met, the very object of the
provision would be frustrated. It is difficult to visualise the sudden and
calamities situations gloomily foreboded by the learned Attorney General
where there would not be enough breathing time to observe natural
justice at least in a rudimentary way. A municipal committee under the
Punjab municipal act is a public body consisting of both officials and
non-officials and one cannot imagine anything momentous being done in
a matter of minutes and seconds. And, natural justice may always be
tailored to the situation. Minimal natural justice, the barest notice and
the “littlest” opportunity in the shortest time may serve. The authority
acting under section 238(1) is the master of its own procedure. There
need be no oral hearing. It is not necessary to put every detail of the case
to the committee: broad ground sufficient to indicate the substance of the
allegations may be given. We do not think that even minimal natural
justice is excluded when alleged grave situations arise under section 238.
If indeed such grave situations arise the public interest can be sufficiently
protected by appropriate prohibitory and mandatory action under the
other relevant provisions of the statute in Sections 232 to 235 of the
Act……
xxx xxx xxx
24 ………In our view the principles of natural justice know of no
exclusionary rule depending on whether it would have made any
difference if natural justice had been observed. The non observance of
natural justice is itself prejudice to any man and proof of prejudice
independently of the proof of denial of natural justice is unnecessary. It
will come from a person who has denied justice that the person who has
been denied justice is not prejudiced. As we said earlier where on
admitted undisputable facts only one conclusion is possible and under
the law only one penalty is permissible, the court may not issue its writeSignature Not Verified
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to compel the observance of natural justice not because it is not
necessary to observe natural justice but because courts do not issue futile
writs…….”
Copious reliance has also been placed on the judgment of the
Supreme Court in Madhyamam Broadcasting Ltd. v. Union of India, 2023
INSC 324, particularly on the following observations therein:
“47. The judgment of this Court in Maneka Gandhi (supra) spearheaded
two doctrinal shifts on procedural fairness because of the
constitutionalising of natural justice. Firstly, procedural fairness was no
longer viewed merely as a means to secure a just outcome but a
requirement that holds an inherent value in itself. In view of this shift, the
Courts are now precluded from solely assessing procedural
infringements based on whether the procedure would have prejudiced the
outcome of the case. Instead, the courts would have to decide if the
procedure that was followed infringed upon the right to a fair and
reasonable procedure, independent of the outcome. In compliance with
this line of thought, the courts have read the principles of natural justice
into an enactment to save it from being declared unconstitutional on
procedural grounds. Secondly, natural justice principles breathe
reasonableness into the procedure. Responding to the argument that the
principles of natural justice are not static but are capable of being
moulded to the circumstances, it was held that the core of natural justice
guarantees a reasonable procedure which is a constitutional requirement
entrenched in Articles 14, 19 and 21. The facet of audi alterum partem
encompasses the components of notice, contents of the notice, reports of
inquiry, and materials that are available for perusal. While situational
modifications are permissible, the rules of natural justice cannot be
modified to suit the needs of the situation to such an extent that the core
of the principle is abrogated because it is the core that infuses
procedural reasonableness. The burden is on the applicant to prove that
the procedure that was followed (or not followed) by the adjudicating
authority, in effect, infringes upon the core of the right to a fair and
reasonable hearing.
xxx xxx xxx
58. MHA disclosed the material forming the opinion for denying of
security clearance solely to the High Court. The High Court instead of
deciding if any other less restrictive but equally effective means could
have been employed, straight away received the material in a sealed
cover without any application of mind. It is now an established principleSignature Not Verified
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of natural justice that relevant material must be disclosed to the affected
party. This rule ensures that the affected party is able to effectively
exercise their right to appeal. When the state government claims
non-disclosure on the ground of public interest under Section 124 of the
Evidence Act, the material is removed from the trial itself. As opposed to
this method, when relevant material is disclosed in a sealed cover, there
are two injuries that are perpetuated. First, the documents are not
available to the affected party. Second, the documents are relied upon by
the opposite party (which is most often the state) in the course of the
arguments, and the court arrives at a finding by relying on the material.
In such a case, the affected party does not have any recourse to legal
remedies because it would be unable to (dis)prove any inferences from
the material before the adjudicating authority.
59. This form of adjudication perpetuates a culture of secrecy and
opaqueness, and places the judgment beyond the reach of challenge. The
affected party would be unable to “contradict errors, identify omissions,
challenge the credibility of informants or refute false allegations”. The
right to seek judicial review which has now been read into Articles 14
and 21 is restricted. A corresponding effect of the sealed cover procedure
is a non-reasoned order……”
Reliance has also been placed on paragraph 75 of Madhyamam
Broadcasting Ltd (supra) to contend that the observations of the Supreme
Court in Ex-Armymen’s Protection Services (P) Ltd. v. Union of India,
(2014) 5 SCC 409, cannot be read so as to preclude/absolve the State from
its duty to act fairly merely because the issue involves consideration of
national security. The observations relied upon by the petitioners are as
under:-
“75.. The contention of the respondent that the judgment of this Court in
Ex-Armymen’s Protection Services (supra) held that the principles of
natural justice shall be excluded when concerns of national security are
involved is erroneous. The principle that was expounded in that case was
that the principles of natural justice may be excluded when on the facts of
the case, national security concerns outweigh the duty of fairness. Thus,
national security is one of the few grounds on which the right to a
reasonable procedural guarantee may be restricted. The mere
involvement of issues concerning national security would not preclude
the State’s duty to act fairly. If the State discards its duty to act fairly,
then it must be justified before the court on the facts of the case. Firstly,Signature Not Verified
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the State must satisfy the Court that national security concerns are
involved. Secondly, the State must satisfy the court that an abrogation of
the principle(s) of natural justice is justified. These two standards that
have emerged from the jurisprudence abroad resemble the
proportionality standard. The first test resembles the legitimate aim
prong, and the second test of justification resembles the necessity and the
balancing prongs.”
v. It is submitted that in terms of the dicta laid down in Madhyamam
Broadcasting Ltd (supra), it is incumbent on this Court to assess the
material cited by the authority in support of its plea of national security
and confidentiality, and to determine whether such a plea is genuine. It is
submitted that the matters concerning national security are justiciable,
and the authority cannot be given a carte blanche merely because
according to them national security was involved.
vi. It has also been contended by Mr. Rohatgi that the respondents have
acted in haste in the present matter and based its decision on public
perception rather than objective consideration. He submits that the same
is clearly not permissible and for this purpose reliance is placed on the
observations of the Supreme Court in S.G Jaisinghani vs U.O.I (1967)
SCC OnLine SC 6 4, Zenit Mataplast Pvt. Ltd. vs. State of Maharashtra
(2009)10 SCC 3885 and Nidhi Kaim and Anr. Vs. State of Madhya
4
14. In this context it is important to emphasise that the absence of arbitrary power is the first essential of the rule
of law upon which our whole constitutional system is based. In a system governed by rule of law discretion conferred
with executive authorities, must be confined within clearly defined limits. The rule of law from this point of view
means that decision should be made by application of known principles and rules and, in general such decisions should
be predictable and the citizen should know where he is. If a decision is taken without any principle without any rule it
is unpredictable and such a decision in the antithesis of a decision taken in accordance with Rule of law………
5
27. Every action of the State or its instrumentalities should not only be fair legitimate and above board but
should be without any affection or aversion. It should neither be suggestive of discrimination nor even apparently give
an impression of bias favoritism and nepotism. The decision should be made by the application of known principles
and rules and in general such decision should be predictable and the citizen should know where he is but if a decision is
taken without any principle or without any rule it is unpredictable and such a decision is antithesis to the decision taken
in accordance with the rule of law……..
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Pradesh and Ors. (2017) 4 SCC 1 6.
vii. During the course of arguments on 21.05.2025 and 23.05.2025, it was
specifically argued by Mr. Mukul Rohatgi that in absence of at least a
gist of the adverse material against the petitioners being provided, so as
to enable the petitioners to meet the case against it, it is not even
permissible for the Court to peruse the relevant security inputs which led
to the denial of security clearance. It is further submitted that in absence
of the petitioners being furnished at least with gist of allegations against
it, the petitioners are “fighting with its hands tied behind its back”. It is
vehemently submitted that the impugned action is required to be struck
down for violation of the basic and cardinal principles of natural justice.
In response to a specific query, it was stated that the petitioners do not
seek a post-decisional hearing.
viii. It is submitted that the twin aspect viz. non-providing of gist of
allegations to the petitioners and non-adherence to Rule 12 of the 2023
Rules, render the impugned action void ab initio.
ix. During the course of arguments on 23.05.2025, it was contended by Mr.
Rohatgi that the 2023 Rules cannot be circumvented under any
6
78. In view of the position expressed by this Court, in the above judgments, it was submitted, that public
perception should not be allowed to weigh so heavy, in the mind of a Court, as would prevent it, from rendering
complete justice. According to learned Counsel, taking into consideration public perception, would render effectuating
justice, extremely difficult. It was pointed out, that by sheer experience gained by Judges, they were fully equipped to
determine at their own whether or not the facts of a case required to be dealt with differently, Under Article 142-so as
to render complete justice.
79. It was also the contention of learned Counsel that public perception was usually not based on a complete
data of the dispute. And, unless the public was provided with the complete facts, and was required to consciously take a
call on the matter, the perception entertained by the public would be fanciful and imaginative and it would be full of
deficiencies and inadequacies and it may also be an opinion based on lack of rightful understanding.
80. We are of the view that public perception despite being of utmost significance cannot be sought except after
an onerous exercise. And that, any opinion, without the benefit of the entire sequence of facts, may not be a dependable
hypothesis. It is also true that disseminating full facts for seeking public opinion would be an immeasurably daunting
task. An endeavour, which was unlikely to yield any reasoned response, based on logic and rationale. We are
accordingly of the view, that the suggestion of learned Counsel needs to be respected, and we should attempt a
consideration at our own based on our experience and training, in adjudicating disputes of unlimited variety…………..
and of inestimable proportions.
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circumstance. It is pointed out that the power to issue directions under
Section 6 of the Bharatiya Vayuyan Adhiniyam, 2024 (hereinafter “the
2024 Act”) is hedged with the limitation that such directions must be
“consistent with the provisions of this Act and the Rules made therein”.
Further, Rule 62 of the 2023 Rules itself provides that any direction
issued by the Director General must be “consistent with the provisions of
the Act and the Rules made thereunder”. As such, it is contended that the
impugned action is not referable to the power conferred under Section 6
of the 2024 Act. It is submitted that the power to issue directions “as
contained in Section 6 of the 2024 Act” is found in multiple and various
legislations in India for example, Delhi Development Act, 1957, the New
Delhi Municipal Council Act, 1994, UP Urban Planning and
Development Act, 1973.
x. Reliance is placed on Poonam Verma and Ors. Vs. Delhi development
Authority, (2007) 13 SCC 154 7, to contend that the power to issue
directions is in respect of “Policy decision and general directions”. It is
submitted that the power to issue directions cannot be invoked in
individual cases. Furthermore, it is submitted that even if such a power
exists, it must be exercised in conformity with the applicable rules.
xi. During the course of rejoinder arguments, it was reiterated that the dicta
laid down in Madhyamam Broadcasting Ltd (supra), clearly applies to
the present case and cannot be disregarded just because Madhyamam
7
13. Having failed to establish any legal right in themselves as also purported deficiency in services on the part of the
respondent before competent legal forums, they took recourse to remedies on administrative side which stricto sensu were not
available. It has not been shown as to on what premise the Central Government can interfere with the day to day affairs of the
respondent. Section 41 of the Act, only envisages that the respondent would carry out such directions that may be issued by
the Central Government from time to time for the efficient administration of the Act. The same does not take within its fold an
order which can be passed by the Central Government in the matter of allotment of flats by the Authority. Section 41 speaks
about policy decision. Any direction issued must have a nexus with the efficient administration of the Act. It has nothing to do
with carrying out of the plans of the authority in respect of a particular scheme.
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Broadcasting Ltd (supra) dealt with a situation involving security
clearance for a television channel, whereas the present case concerns
ground handling and cargo handling operations at an airport.
xii. It is further submitted that paragraph 9 of the security clearance granted
to the petitioners vide order dated 21.11.2022 in terms of which the
“Director General, BCAS reserves right to revoke the security clearance
at any time without assigning any reasons thereof, in the interest of
national/civil aviation security”, does not detract from the mandatory
requirements of Rule 12. It is submitted that Rule 12 cannot be construed
as merely directory. In the circumstances, it is submitted that the petition
is liable to be allowed.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS
16. Learned Solicitor General, on behalf of the respondents, submits as
under:-
i. The respondents have been conferred with wide-ranging plenary
powers under the statutory scheme of both the Aircraft Act, 1934
(“1934 Act”) and the Bharatiya Vayuyan Adhiniyam, 2024 (“2024
Act”). Section 5A(1A) of the 1934 Act, and Section 6 read with
Section 10 of the 2024 Act, unequivocally empower the Central
Government and relevant authorities to act decisively in matters
concerning the security of India and the security of civil aviation
operations. Specifically, under Section 5A(1A) of the 1934 Act, the
Director General of Bureau of Civil Aviation Security is authorised
to, issue directions, by order, with respect to matters specified inSignature Not Verified
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clauses (gc) and (qc) of sub-section (2) of Section 5 of the 1934 Act,
in any case where the Director General of Bureau of Civil Aviation
Security is satisfied that it is necessary to do so in the interest of the
security of India or to ensure the security of civil aviation operations.
Similarly, under the 2024 Act, the Director General of Bureau of Civil
Aviation Security is authorised to issue directions, by order, with
respect to matters specified in clauses (o) and (ze) of sub-section (2)
of Section 10 of the 2024 Act, in any case where he is satisfied that
such action is necessary in the interest of national security or civil
aviation safety. This statutory framework confirms that the power
exercised in such cases is plenary in nature and is not contingent upon
preconditions such as those laid down in Rule 12 of the Aircraft
(Security) Rules, 2023, which, in any event, cannot limit powers
conferred under the parent legislation.
ii. It is submitted that the petitioner is a company engaged in providing
ground handling services at various airports in India, having direct
access to every part of an airport, including aircraft, passengers, and
sensitive zones such as the tarmac. The petitioner, therefore, has
unrestricted access to critical areas of civil aviation and directly
interacts with passengers from the moment they enter the airport until
they board the aircraft, including access to the cargo hold. The
existence of plenary powers in such a context is intended to address
any emergent situations, given the intrinsically sensitive nature of the
subject matter. Further, as a matter of legislative practice, such
plenary powers are preserved by authorities in laws governing
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not substantive legislative creations of rights, but rather confer
privileges. Accordingly, the grant of permission to provide ground
handling services under the relevant scheme constitutes a privilege
extended by the respondent authorities, one that can be withdrawn for
valid reasons arising from national security concerns.
iii. It is submitted that these powers are also aligned with India’s
international obligations under Annexure 17 of the Convention on
International Civil Aviation (12th Ed., 2022), which mandates
contracting states to ensure civil aviation security, including control of
access to restricted areas and the conduct of background checks on
individuals. The petitioner, being a ground handling agency with
access to sensitive airport zones and aircraft, operates in a domain
where national security concerns may necessitate swift executive
action. The grant of such privileges is administrative in nature and
revocable; it does not constitute a vested legal right.
iv. It is submitted that while the petitioners argue that the lack of an
opportunity to be heard violates the principles of natural justice, it is
trite law that such principles are not absolute and must yield to
considerations of national security. In Ex-Armymen’s Protection
Services (P) Ltd. (supra), the Supreme Court held that in subject
matters of aviation where a national security concerns arises, the
observance of the principles of natural justice may be excluded, as
national security is a matter of executive policy, not judicial
determination. This view has been consistently reaffirmed, including
in Digi Cable Network (India) (P) Ltd. v. Union of India, (2019) 4
SCC 451, and Madhyamam Broadcasting Ltd. (supra), wherein theSignature Not Verified
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Court emphasised the limited scope of judicial scrutiny when
executive decisions are based on national security grounds.
Specific attention is drawn to the following observations made in
Ex-Armymen’s Protection Services (P) Ltd. (supra) –
“15. It is difficult to define in exact terms as to what is “national
security”. However, the same would generally include socio-political
stability, territorial integrity, economic solidarity and strength,
ecological balance, cultural cohesiveness, external peace, etc.
16. What is in the interest of national security is not a question of law. It
is a matter of policy. It is not for the court to decide whether something is
in the interest of the State or not. It should be left to the executive. To
quote Lord Hoffman in Secy of State for Home Deptt. v. Rehman [(2003)
1 AC 153: (2001) 3 WLR 877: (2002) 1 All ER 122 (HL)]: (AC p. 192C)“… [in the matter] of national security is not a question of law. It is
a matter of judgment and policy. Under the Constitution of the
United Kingdom and most other countries, decisions as to whether
something is or is not in the interests of national security are not a
matter for judicial decision. They are entrusted to the executive.”
17. Thus, in a situation of national security, a party cannot insist for the
strict observance of the principles of natural justice. In such cases, it is
the duty of the court to read into and provide for statutory exclusion, if
not expressly provided in the rules governing the field. Depending on the
facts of the particular case, it will however be open to the court to satisfy
itself whether there were justifiable facts, and in that regard, the court is
entitled to call for the files and see whether it is a case where the interest
of national security is involved. Once the State is of the stand that the
issue involves national security, the court shall not disclose the reasons
to the affected party.”
Reliance is also placed in case of Sublime Software Ltd. v. Union of
India, 2024 SCC OnLine Del 4640, wherein this Court has held as under:
“7. At the outset it is to be stated that in matters of national security,
principles of natural justice can be given a go-by. It is well settled that
the right to a fair hearing may have to yield to overriding considerations
of national security. According to Sir William Wade [H.W.R. William
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University Press Inc., 2009) 468-470], any restriction, limitation or
exception on principles of natural justice is “only an arbitrary
boundary”. To quote further:
“The right to a fair hearing may have to yield to overriding
considerations of national security. The House of Lords recognised
this necessity where civil servants at the government
communications headquarters, who had to handle secret
information vital to national security, were abruptly put under new
conditions of service which prohibited membership of national
trade unions. Neither they nor their unions were consulted, in
disregard of an established practice, and their complaint to the
courts would have been upheld on ground of natural justice, had
there not been a threat to national security. The factor which
ultimately prevailed was the danger that the process of
consultation itself would have precipitated further strikes,
walkouts, overtime bans and disruption generally of a kind which
had plagued the communications headquarters shortly beforehand
and which were a threat to national security. Since national
security must be paramount, natural justice must then give way.
The Crown must, however, satisfy the court that national security
is at risk. Despite the constantly repeated dictum that ‘those who
are responsible for the national security must be the sole Judges of
what the national security requires’, the court will insist upon
evidence that an issue of national security arises, and only then
will it accept the opinion of the Crown that it should prevail over
some legal right.””
v. It is submitted that the Court has further held that such exclusions
may be implicit in law and need not be expressly stated. The principle
has jurisprudential support, including from UK judgments like Secy.
of State for Home Deptt. v. Rehman, (2003) 1 AC 153. It is
submitted that while judiciary is empowered to examine the material
in a sealed cover to ensure fairness, such material need not be
disclosed to the affected party. It is averred that the petitioners’
reliance on Madhyamam Broadcasting Ltd. (supra), is misplaced, as
that case was grounded in free speech under Article 19(1)(a), unlike
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the present matter, which pertains to ground handling operations
where no fundamental right is directly engaged.
vi. It is contended that the doctrine of proportionality is inapplicable in
the present case. The petitioners, being juristic entities wholly owned
by Turkish companies, cannot invoke rights under Article 19 of the
Constitution. It is submitted that the Supreme Court has consistently
held that the fundamental rights under Article 19 are available only to
Indian citizens. Therefore, the proportionality analysis applicable in
cases involving free speech or privacy does not govern the present
factual scenario.
vii. It is the case of the respondents that in matters involving national
security, the obligation to disclose reasons is necessarily subject to the
overriding imperative of public interest. Courts have long
acknowledged the need to strike a balance between the principles of
administrative transparency and the demands of national security.
In Conway v. Rimmer, (1968) AC 910, a view later adopted by the
Supreme Court in S.P. Gupta v. Union of India, 1981 Supp SCC 87,
it was held that disclosure may be legitimately withheld if it would
cause greater harm to public service or jeopardise national safety.
Similarly, in R.K. Jain v. Union of India, (1993) 4 SCC 119, the
Hon’ble Supreme Court observed that the Court must determine
which aspect of public interest, transparency or national security,
takes precedence in a given case. In the present matter, the
respondents have submitted the relevant material to this Court in
sealed cover, in accordance with established judicial practice, thereby
ensuring effective judicial review while safeguarding sensitive and
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classified information.
viii. It is submitted that the petitioners’ reliance on Rule 12 of the 2023
Rules is misplaced, as the Rule does not prescribe any penal
consequence for non-compliance and must, therefore, be construed as
directory rather than mandatory. Moreover, even where the term
“shall” is used in statutory language, the Courts have, in various
instances, interpreted such provisions as directory, particularly where
strict adherence would defeat the object of the legislation or result in
procedural deadlock. The objective of Rule 12 cannot override the
broader statutory mandate conferred under Sections 6 and 10 of the
2024 Act. In cases involving national security, Rule 12 must be
interpreted in a manner that advances, rather than frustrates, the
statutory purpose.
ix. It is submitted that the judgment of the Supreme Court in
Madhyamam Broadcasting Ltd. (supra) far from supporting the case
of the petitioners, in fact reinforces the case of the respondents. It is
submitted that the said judgment affirms that the principles of natural
justice may be excluded, on grounds of national security; the said
national security considerations would outweigh the duty of fairness.
In this regard reliance is placed on the following observations of
Madhyamam Broadcasting Ltd. (supra), which reads as under:-
“75 The contention of the respondent that the judgment of this Court in
Ex-Armymen’s Protection Services (supra) held that the principles of
natural justice shall be excluded when concerns of national security are
involved is erroneous. The principle that was expounded in that case was
that the principles of natural justice may be excluded when on the facts of
the case, national security concerns outweigh the duty of fairness. Thus,
national security is one of the few grounds on which the right to aSignature Not Verified
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reasonable procedural guarantee may be restricted. The mere
involvement of issues concerning national security would not preclude
the state’sduty to act fairly. If the State discards its duty to act fairly, then
it must be justified before the court on the facts of the case. Firstly, the
State must satisfy the Court that national security concerns are involved.
Secondly, the State must satisfy the court that an abrogation of the
principle(s) of natural justice is justified. These two standards that have
emerged from the jurisprudence abroad resemble the proportionality
standard. The first test resembles the legitimate aim prong, and the
second test of justification resembles the necessity and the balancing
prongs.
xxx xxx xxx
L Conclusion and Directions
170 In view of the discussion above, the appeals are allowed and the
order of the MIB dated 31 January 2022 and the judgment of the High
Court dated 2 March 2022 are set aside. We summarise our findings
below:
xxx xxx xxx
(ii) The challenge to the order of the MIB and judgment of the High
Court on procedural grounds is allowed for the following reasons:
xxx xxx xxx
(c) The judgments of this court in Ex-Armymen’s Protection Services
(supra) and Digi Cable Network (supra) held that the principles of
natural justice may be excluded when on the facts of the case, national
security concerns overweigh the duty of fairness;”
x. It is submitted that the doctrine of proportionality, which is usually
applied in the context of infringement of Fundamental Rights under
Article 21 and 19, would not apply in the present case. It is further
submitted that in any event, Article 19 rights are not available to the
petitioners since the petitioners are wholly owned and controlled by a
Turkish incorporated companies. Additionally, the petitioners are not
natural person/s. It is submitted that the well-settled position of law is
that a foreign company cannot invoke Fundamental Rights under
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Part-III of the Constitution. Additionally, the juristic persons are not
entitled to Fundamental Rights under Article 19 of the Constitution.
In this regard reliance is placed on the judgment of the Supreme Court
in case of Divl.Forest Officer v. Bishwanath Tea Co. Ltd., 1981 3
SCC 238, British India Steam Navigation Co. Ltd. v. Jasjit Singh,
AIR 1964 SC 1451, State Trading Corporation of India Ltd. v.
Commercial Tax Officer, AIR 1963 SC 1811, Tata Engineering and
Locomotive Co. Ltd. v. State of Bihar, 1964 6 SCR 885, Indian
Social Action Forum (INSAF) v. Union of India, 2020 SCC OnLine
SC 310 and Star India Private Ltd. v. The Telecom Regulatory
Authority of India and Others, 2008 146 DLT 455.
xi. It is submitted that the Supreme Court has recognised that the Rules
of natural justice are not rigid and inflexible and requires suitable
modulation in appropriate circumstances. In this regard reliance is
placed on the judgment of the Supreme Court in Karnataka SRTC v.
S.G. Kotturappa, 2005 3 SCC 409, Board of Mining Examination
and Chief Inspector of Mines v. Ramjee, 1977 2 SCC 256, M Sarat
Kumar Dash v. Biswajit Patnaik, 1995 Supp (1) SCC 434 and
Maharashtra State Board of Secondary and Higher Secondary
Education v. K.S. Gandhi, 1991 2 SCC 716.
xii. It is further submitted that an exception ought to be carved out under
Rule 12 of the Airport Security Rules, 2023 and statutory exclusions
must be read into the said rules. In this regard, reliance is placed on
paragraph 17 of the judgment in Ex-Armymen’s Protection Services
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(P) Ltd. (supra)8.
xiii. It is further submitted that Rule 12 of the 2023 Rules must be
construed to be directory and not mandatory since no consequence is
provided for breach thereof. It is submitted that in any enactment in
general, a provision is mandatory when consequence of
non-compliance is provided and generally directory, when
consequence of non-compliance is not provided. It is submitted that
no such consequence is stipulated in Rule 12 and therefore, the
provision is merely directory in nature, especially in cases wherein
national security concerns come to the force.
xiv. Lastly, it is emphasised that Clause 9 of the Security Clearance
renewal order dated 21.11.2022, itself provides for “cancellation
without assigning any reasons thereof”. Thus, it is submitted that even
while granting the Security Clearance, the right to cancel/withdraw
the same “without assigning any reason” was expressly reserved. It is
submitted that the same is necessitated on account of inherent national
security and civil aviation security considerations.
xv. It is submitted that the present situation cannot be equated with one
where only the civil rights of citizens are involved, without any
interplay of national security considerations. In the circumstances, it
is submitted that the present petition is liable to be dismissed.
8
17. Thus, in a situation of national security, a party cannot insist for the strict observance of the principles of natural
justice. In such cases, it is the duty of the court to read into and provide for statutory exclusion, if not expressly
provided in the rules governing the field. Depending on the facts of the particular case, it will however be open to the
court to satisfy itself whether there were justifiable facts and in that regard, the court is entitled to call for the files and
see whether it is a case where the interest of national security is involved. Once the state is of the stand that the issue
involves national security, the court shall not disclose the reasons to the affected party.
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ANALYSIS AND REASONING
17. Admittedly, the petitioners require a security clearance for providing
ground handling services at airport/s where it operates. Admittedly also, the
services provided by the petitioners enable it to have access to high
security/sensitive areas of the airport/s. A ground handling agent, inter alia,
provides ramp handling services which include aircraft services, aircraft
cleaning, loading and unloading of passenger baggage for both passenger
and commercial aircraft, loading and unloading of cargo etc.
18. In addition, a ground handling agent provides traffic handling
services, which encompass manning of check-in counters, verification of
travel documents, marshaling at airport/s, transportation of passengers and
baggage from the aircrafts to the terminal building and vice versa.
19. Given that the petitioners have untrammeled access to sensitive/high
security areas of the airports, there is no controversy that a security
clearance is required for the petitioners to provide the concerned ground
handling and cargo services.
20. Rule 15 of the Aircraft (Security) Rules, 2011 framed in exercise of
the powers conferred by Section 4 read with Section 5 of the Aircrafts Act,
1934, specifically provides that “no ground handling service provider shall
be allowed to provide ground handling in any aerodrome without obtaining a
security clearance and approval of its security programme from the Director
General”.
21. In the Aircraft (Security Rules), 2023 (hereinafter “Rules 2023”)
framed in exercise of the powers conferred by Section 4, 5, 10(2), 10A, 10B,
12, 12A, 12B read with Section 14 of the Aircrafts Act 1934, it was
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specifically provided as under:
“15. Operation of entities at aerodrome.–No aerodrome operator shall
himself operate at the aerodrome or allow any entity or person to
operate, provide services or facilities, at security restricted areas of an
aerodrome without obtaining security clearance and approval of security
programme as applicable and specified by the Director General.”
22. Rule 12 of the Rules 2023 also specifically provides as under:
“12. Power to suspend or cancel security clearance and security
programme.–(1) The Director General, after giving the entity an
opportunity of being heard, and for reasons to be recorded in writing, may
suspend for a period not exceeding one year or cancel or impose
conditions in respect of any security clearance granted or security
programme approved under these rules, where he has any reasonable
grounds to believe and considers such action necessary, in the interests of
national security or civil aviation security or if the entity has contravened
or failed to comply with any condition of security clearance or security
programme or provision of these rules.
(2) After conducting an enquiry by an officer authorised by the Director
General, the suspension may be revoked or the security clearance or
security programme may be cancelled.”
23. The primary contention on behalf of the petitioners is that the
cancellation of the petitioners’ security clearance is not in consonance with
the procedure contemplated under the aforesaid Rule 12 of the Rules, 2023,
inasmuch as no opportunity of hearing whatsoever was afforded to the
petitioners. It is emphasized that the principles of natural justice, on which
the aforesaid Rule 12 is predicated, are sacrosanct, and the infraction thereof
renders the impugned action null and void.
Principles of Natural Justice are the cornerstone of our Constitutional
Framework ; however, their application is contextual and cannot be put
in a straitjacket
24. There can be no cavil with the proposition that the principles of
natural justice are sacrosanct and flow from the principle of reasonableness
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that is embedded in Article 14 of the Constitution of India. It is now
well-settled that the principle of reasonableness that is guaranteed under
Article 14 of the Constitution of India runs through the entire chapter of
fundamental rights guiding the exercise of both procedural and substantive
limitations.
25. In Maneka Gandhi Vs. Union of India, (1978) 1 SCC 248, the Court,
relying on R.C. Cooper Vs. Union of India, (1970) 1 SCC 248, it was
observed as under –
“5…….. we find that even on principle the concept of reasonableness
must be projected in the procedure contemplated by Article 21, having
regard to the impact of Article 14 on Article 21.
xxx xxx xxx
7………The principle of reasonableness, which legally as well as
philosophically, is an essential element of equality or non-arbitrariness
pervades Article 14 like a brooding omnipresence and the procedure
contemplated by Article 21 must answer the test of reasonableness in
order to be in conformity with Article 14. It must be “right and just and
fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no
procedure at all and the requirement of Article 21 would not be
satisfied.
xxx xxx xxx
82. So I am convinced that to frustrate Article 21 by relying on any
formal adjectival statute, however, flimsy or fantastic its provisions be, is
to rob what the constitution treasures. Procedure which deals with the
modalities of regulating, restricting or even rejecting a fundamental right
falling within Article 21 has to be fair, not foolish, carefully designed to
effectuate, not to subvert, the substantive right itself. Thus
understood, “procedure” must rule out anything arbitrary, freakish or
bizarre. A valuable constitutional right can be canalised only by civilised
processes. You cannot claim that it is a legal procedure if the passport is
granted or refused by taking lots, or deal of fire or by other strange or
mystical methods. Nor is it tenable if life is taken by a crude or summary
process of enquiry. What is fundamental is life and liberty. What is
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process is emphasised by the strong word “established” which means
“settled firmly” not wantonly or whimsically. If it is rooted in the legal
consciousness of the community it becomes “established” procedure.
And “law” leaves little doubt that it is normae regarded as just since law
is the means and justice is the end.
83. Is there supportive judicial thought for this reasoning? We go back to
the vintage words of the learned Judges in A.K. Gopalan and zigzag
through R.C. Cooper to S.N. Sarkar and discern attestation of this
conclusion. And the elaborate constitutional procedure in Article 22
itself fortifies the argument that “life and liberty” in Article 21 could not
have been left to illusory legislatorial happenstance. Even as relevant
reasonableness informs Articles 14 and 19, the component of fairness is
implicit in Article 21. A close-up of the Gopalan case is necessitous at
this stage to underscore the quality of procedure relevant to personal
liberty.
84. Procedural safeguards are the indispensable essence of liberty. In
fact, the history of personal liberty is largely the history of procedural
safe guards and right to a hearing has a human-right ring. In India,
because of poverty and illiteracy, the people are unable to protect and
defend their rights; observance of fundamental rights is not regarded as
good politics and their transgression as bad politics. I sometimes
pensively reflect that people’s militant awareness of rights and duties is a
surer constitutional assurance of Governmental respect and response
than the sound and fury of the “question hour” and the slow and unsure
delivery of court writ. “Community Consciousness and the Indian
Constitution” is a fascinating subject of sociological relevance in many
areas.
85. To sum up, “procedure” in Article 21 means fair, not formal
procedure. “Law” is reasonable law, not any enacted piece. As Article 22
specifically spells out the procedural safeguards for preventive and
punitive detention, a law providing for such detentions should conform to
Article 22. It has been rightly pointed out that for other rights forming part
of personal liberty, the procedural safeguards enshrined in Article 21 are
available. Otherwise, as the procedural safeguards contained in Article 22
will be available only in cases of preventive and punitive detention, the
right to life, more fundamental than any other forming part of personal
liberty and paramount to the happiness, dignity and worth of the
individual, will not be entitled to any procedural safeguard save such as a
legislature’s mood chooses. In Kochuni [Kavalappara Kottarathil
Kochuni v. States of Madras and Kerala, AIR 1960 SC 1080, 1093 :
(1960) 3 SCR 887 : (1961) 2 SCJ 443.] the Court, doubting the correctness
of the Gopalan decision on this aspect, said:
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“Had the question been res integra, some of us would have been inclined
to agree with the dissenting view expressed by Fazal Ali, J.
xxx. xxx xxx
89. It is a mark of interpretative respect for the higher norms our
founding fathers held dear in effecting the dearest rights of life and
liberty so to read Article 21 as to result in a human order lined with
human justice. And running right through Articles 19 and 14 is present
this principle of reasonable procedure in different shades. A certain
normative harmony among the articles is thus attained, and I hold Article
21 bears in its bosom the construction of fair procedure legislatively
sanctioned. No Passport Officer shall be mini-Caesar nor Minister
incarnate Caesar in a system where the rule of law reigns supreme.
90. My clear conclusion on Article 21 is that liberty of locomotion into
alien territory cannot be unjustly forbidden by the establishment and
passport legislation must take processual provisions which accord with
fair norms, free from extraneous pressure and, by and large, complying
with natural justice. Unilateral arbitrariness, police dossiers, faceless
affiants, behind-the-back materials, oblique motives and the inscrutable
face of an official sphinx do not fill the “fairness” bill — subject, of
course, to just exceptions and critical contexts. This minimum once
abandoned, the Police State slowly builds up which saps the finer
substance of our constitutional jurisprudence. Not party but principle
and policy are the key-stone of our Republic.
91. Let us not forget that Article 21 clubs life with liberty and when we
interpret the colour and content of “procedure established by law” we
must be alive to the deadly peril of life being deprived without minimal
processual justice, legislative callousness despising “hearing” and fair
opportunities of defence. And this realization once sanctioned, its exercise
will swell till the basic freedom is flooded out. Hark back to Article 10 of
the Universal Declaration to realize that human rights have but a verbal
hollow if the protective armour of audi alteram partem is deleted. When
such pleas are urged in the familiar name of pragmatism, public interest
or national security, courts are on trial and must prove that civil liberties
are not mere rhetorical material for lip service but the obligatory essence
of our hard-won freedom. A Republic– if you can keep It–is the caveat
for Counsel and Court. And Tom Paine, in his Dissertation on first
Principles of Government, sounded the tocsin:
“He that would make his own liberty secure must guard even his enemy
from oppression; for if he violates this duty, be establishes a precedent
that will reach to himself.”
Phoney freedom is not worth the word and this ruling of ours is not
confined to the petitioner but to the hungry job-seeker, nun and nurse,
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mason and carpenter, welder and fitter and, above all, political dissenter.
The last category, detested as unreasonable, defies the Establishment’s
tendency to enforce through conformity but is the resource of social
change. “The reasonable man”, says G.B. Shaw:
“adapts himself to the world; the unreasonable one persists in trying to
adapt the world to himself. Therefore, all process depends on the
unreasonable man. [ George Bernard Shaw in Maxims for Revolutionists]
”
“Passport” peevishness is a suppressive possibility, and so the words of
Justice Jackson (U.S. Supreme Court) may be apposite:
“Freedom to differ is not limited to things that do not matter much. That
would be a mere shadow of freedom. The test of its substance is the right to
differ as to things that touch the heart of the existing order. [West Virginia
State Board of Education v. Barnette, 391 US 624 (1943)] ”
92. Under our constitutional order, the price of daring dissent shall no
be passport forfeit.
93. The impugned legislation, Sections 5, 6 and 10 especially, must be
tested even under Article 21 on canons of processual justice to the people
outlined above. Hearing is obligatory–meaningful hearing, flexible and
realistic, according to circumstances, but not ritualistic and wooden. In
exceptional cases and emergency situations, interim measures may be
taken, to avoid the mischief of the passportee becoming an escapee
before the hearing begins. “Bolt the stables after the horse has been
stolen” is not a command of natural justice. But soon after the
provisional seizure, a reasonable hearing must follow, to minimise
procedural prejudice. And when a prompt final order is made against the
applicant or passport holder the reasons must be disclosed to him almost
invariably save in those dangerous cases where irreparable injury will
ensue to the State. A Government which revels in secrecy in the field of
people’s liberty not only acts against democratic decency but busies itself
with its own burial. That is the writing on the wall if history were
teacher, memory our mentor and decline of liberty not our unwitting
endeavour. Public power must rarely hide its heart in an open society
and system.
26. The judgment in Maneka Gandhi (supra) established that the
procedural fairness is an ongoing constitutional mandate and that the
principles of natural justice must be read into any procedure that affects
fundamental rights under Article 21 of the Constitution of India. Further, it
has been observed in Madhyamam (supra) as under:-
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“47. The judgment of this Court in Maneka Gandhi (supra) spearheaded
two doctrinal shifts on procedural fairness because of the
constitutionalising of natural justice. Firstly, procedural fairness was no
longer viewed merely as a means to secure a just outcome but a
requirement that holds an inherent value in itself. In view of this shift,
the Courts are now precluded from solely assessing procedural
infringements based on whether the procedure would have prejudiced
the outcome of the case. Instead, the courts would have to decide if the
procedure that was followed infringed upon the right to a fair and
reasonable procedure, independent of the outcome. In compliance with
this line of thought, the courts have read the principles of natural justice
into an enactment to save it from being declared unconstitutional on
procedural grounds. Secondly, natural justice principles breathe
reasonableness into the procedure. Responding to the argument that the
principles of natural justice are not static but are capable of being
moulded to the circumstances, it was held that the core of natural justice
guarantees a reasonable procedure which is a constitutional
requirement entrenched in Articles 14,19 and 21. The facet of audi
alterum partem encompasses the components of notice, contents of the
notice, reports of inquiry, and materials that are available for perusal.
While situational modifications are permissible, the rules of natural
justice cannot be modified to suit the needs of the situation to such an
extent that the-core of the principle is abrogated because it is the core
that infuses procedural reasonableness. The burden is on the applicant
to prove that the procedure that was followed (or not followed) by the
adjudicating authority, in effect, infringes upon the core of the right to a
fair and reasonable hearing.”
27. In M/s R.B. Shreeram Durga Prasad and Fatehchand Nursing Das
Vs. Settlement Commission (IT&WT) and Another, (1989) 1 SCC 628, it
has been held as under:
“7. We are definitely of the opinion that on the relevant date when the
order was passed, that is to say 24-8-1977 the order was a nullity
because it was in violation of principles of natural justice. See in this
connection, the principles enunciated by this Court in State of Orissa v.
Dr (Miss) Binapani Dei as also the observations in Administrative Law
by H. W. R. Wade, 5th edn., pp. 310-311, that the act in violation of the
principles of natural justice or a quasi-judicial act in violation of the
principles of natural justice is void or of no value. In Ridge v. Baldwin
and Anisminic Ltd. v. Foreign Compensation Commission the House of
Lords in England has made it clear that breach of natural justice
nullifies the order made in breach. If that is so then the order made in
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then the application made for the settlement under Section 245-C was
still pending before the Commission when the amendment made by
Finance Act of 1979 came into effect and the said amendment being
procedural, it would govern the pending proceedings and the
Commission would have the power to overrule the objections of the
Commissioner. Dr V. Gauri Shankar, appearing for the revenue, did not
seriously contest that position. He accepted the position that the law as
it is, after the amendment authorises the Commission to consider and
overrule the Commissioner’s objection. He also very fairly, in our
opinion and rightly accepted the position that the appellant was entitled
to be heard on the Commissioner’s objections. It appears to us,
therefore, if that is the position then, in our opinion, the appellant was
entitled to be heard on the objections of the Commissioner. As
mentioned hereinbefore, the only short ground which was sought to be
canvassed before us was whether after the amended Act the order had
been rightly set aside and whether the appellant had a right to be heard
on the objections of the Commissioner. Mr Harish Salve, counsel for the
appellant contends that it had a right to be heard. On the other hand Dr
V. Gauri Shankar, learned counsel for the respondents submitted that
the order proceeded on the assumption that the objections had been
heard. He did not, in fairness to him it must be conceded, contest that in
a matter of this nature the appellant had a right to be heard. Reading
the order, it appears to us, that though the appellant had made
submissions on the Commissioner’s objections but there was no clear
opportunity given to the appellant to make submissions on the
Commissioner’s objections in the sense to demonstrate that the
Com-missioner was not justified in making the objections and secondly,
the Commission should not accept or accede to the objections in the
facts and circumstances of the present case. We are of the opinion
that in view of the facts and circumstances of the case and in the context
in which these objections had been made, it is necessary as a
concomitant of the fulfilment of natural justice that the appellant should
be heard on the objections made by the Commissioner. It is true that for
the relevant orders for the years for which the Commissioner had
objected the concealment had been upheld in the appeal before the
appropriate authorities. But it may be that in spite of this concealment it
may be possible for the appellant to demonstrate or to submit that in
dis-closure of concealed income for a spread over period settlement of
the entire period should be allowed and not bifurcated in the manner
sought to be suggested for the Commissioner’s objections. This objection
the appellant should have opportunity to make. In exercise of our power
of judicial review of the decision of the Settlement Com-mission we are
concerned with the legality of procedure followed and not with validity
of the order. See the observations of Lord Hailsham in Chief Constable
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with the decision but with the decision making process.”
28. In Union Carbide Corporation and Others v. Union of India and
Others, (1991) 4 SCC 584, it has been held as under:
“160. These are all accepted principles. Their wisdom, verity and
universality in the discipline of law are well established. Omission to
comply with the requirements of the rule of audi alteram partem, as a
general rule, vitiates a decision. Where there is violation of natural
justice no resultant or independent prejudice need be shown, as the
denial of natural justice is, in itself, sufficient prejudice and it is no
ans-wer to say that even with observance of natural justice the same
conclusion would have been reached. The citizen “is entitled to be under
the Rule of Law and not the Rule of Discretion” and “to remit the
maintenance of constitutional right to judicial discretion is to shift the
foundations of freedom from the rock to the sand”.
29. In Rajasthan State Road Transport Corporation and Another Vs.
Bal Mukund Bairwa, (2009) 4 SCC 299, it has been held as under:
“35. Any order passed in violation of the principles of natural justice
save and except certain contingencies of cases, would be a nullity. In
A.R. Antulay this Court held: (SCC p. 660, para 55)“55. …..No prejudice need be proved for enforcing the fundamental
rights. Violation of a fundamental right itself renders the impugned
action void. So also the violation of the principles of natural justice
renders the act a nullity.””
30. In Gorkha Security Services V. Government (NCT of Delhi) And
Others, 2014 9 SCC 105, the Court has observed as under –
“Necessity of serving show-cause notice as a requisite of the principles
of natural justice
16. It is a common case of the parties that the blacklisting has to be
preceded by a show-cause notice. Law in this regard is firmly grounded
and does not even demand much amplification. The necessity of
compliance with the principles of natural justice by giving the
opportunity to the person against whom action of blacklisting is sought to
be taken has a valid and solid rationale behind it. With blacklisting,
many civil and/or evil consequences follow. It is described as “civil
death” of a person who is foisted with the order of blacklisting. Such an
order is stigmatic in nature and debars such a person from participatingSignature Not Verified
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in government tenders which means precluding him from the award of
government contracts.
17. Way back in the year 1975, this Court in Erusian Equipment &
Chemicals Ltd. v. State of W.B. [Erusian Equipment & Chemicals
Ltd. v. State of W.B., (1975) 1 SCC 70] , highlighted the necessity of
giving an opportunity to such a person by serving a show-cause notice
thereby giving him opportunity to meet the allegations which were in the
mind of the authority contemplating blacklisting of such a person. This is
clear from the reading of paras 12 and 20 of the said judgment.
Necessitating this requirement, the Court observed thus: (SCC pp. 74-75)“12. Under Article 298 of the Constitution the executive power of
the Union and the State shall extend to the carrying on of any trade
and to the acquisition, holding and disposal of property and the
making of contracts for any purpose. The State can carry on
executive function by making a law or without making a law. The
exercise of such powers and functions in trade by the State is
subject to Part III of the Constitution. Article 14 speaks of equality
before the law and equal protection of the laws. Equality of
opportunity should apply to matters of public contracts. The State
has the right to trade. The State has there the duty to observe
equality. An ordinary individual can choose not to deal with any
person. The Government cannot choose to exclude persons by
discrimination. The order of blacklisting has the effect of depriving
a person of equality of opportunity in the matter of public contract.
A person who is on the approved list is unable to enter into
advantageous relations with the Government because of the order
of blacklisting. A person who has been dealing with the
Government in the matter of sale and purchase of materials has a
legitimate interest or expectation. When the State acts to the
prejudice of a person it has to be supported by legality.
***
20. Blacklisting has the effect of preventing a person from the
privilege and advantage of entering into lawful relationship with
the Government for purposes of gains. The fact that a disability is
created by the order of blacklisting indicates that the relevant
authority is to have an objective satisfaction. Fundamentals of fair
play require that the person concerned should be given an
opportunity to represent his case before he is put on the blacklist.”
18. Again, in Raghunath Thakur v. State of Bihar [(1989) 1 SCC 229] the
aforesaid principle was reiterated in the following manner: (SCC p. 230,
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para 4)
“4. Indisputably, no notice had been given to the appellant of the
proposal of blacklisting the appellant. It was contended on behalf of
the State Government that there was no requirement in the rule of
giving any prior notice before blacklisting any person. Insofar as the
contention that there is no requirement specifically of giving any
notice is concerned, the respondent is right. But it is an implied
principle of the rule of law that any order having civil consequence
should be passed only after following the principles of natural
justice. It has to be realised that blacklisting any person in respect of
business ventures has civil consequence for the future business of
the person concerned in any event. Even if the rules do not express
so, it is an elementary principle of natural justice that parties
affected by any order should have right of being heard and making
representations against the order. In that view of the matter, the last
portion of the order insofar as it directs blacklisting of the appellant
in respect of future contracts, cannot be sustained in law. In the
premises, that portion of the order directing that the appellant be
placed in the blacklist in respect of future contracts under the
Collector is set aside. So far as the cancellation of the bid of the
appellant is concerned, that is not affected. This order will, however,
not prevent the State Government or the appropriate authorities
from taking any future steps for blacklisting the appellant if the
Government is so entitled to do in accordance with law i.e. after
giving the appellant due notice and an opportunity of making
representation. After hearing the appellant, the State Government
will be at liberty to pass any order in accordance with law indicating
the reasons therefor. We, however, make it quite clear that we are
not expressing any opinion on the correctness or otherwise of the
allegations made against the appellant. The appeal is thus disposed
of.”
19. Recently, in Patel Engg. Ltd. v. Union of India [Patel Engg.
Ltd. v. Union of India, (2012) 11 SCC 257 : (2013) 1 SCC (Civ) 445]
speaking through one of us (Jasti Chelameswar, J.) this Court
emphatically reiterated the principle by explaining the same in the
following manner: (SCC pp. 262-63, paras 13-15)
“13. The concept of ‘blacklisting’ is explained by this Court
in Erusian Equipment & Chemicals Ltd. v. State of W.B. [Erusian
Equipment & Chemicals Ltd. v. State of W.B., (1975) 1 SCC 70] as
under: (SCC p. 75, para 20)
’20. Blacklisting has the effect of preventing a person from the
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privilege and advantage of entering into lawful relationship with the
Government for purposes of gains.’
14. The nature of the authority of the State to blacklist the persons
was considered by this Court in the abovementioned case [ “12.
Under Article 298 of the Constitution the executive power of the
Union and the State shall extend to the carrying on of any trade and
to the acquisition, holding and disposal of property and the making
of contracts for any purpose. The State can carry on executive
function by making a law or without making a law. The exercise of
such powers and functions in trade by the State is subject to Part III
of the Constitution. Article 14 speaks of equality before the law and
equal protection of the laws. Equality of opportunity should apply to
matters of public contracts. The State has the right to trade. The
State has there the duty to observe equality. An ordinary individual
can choose not to deal with any person. The Government cannot
choose to exclude persons by discrimination. The order of
blacklisting has the effect of depriving a person of equality of
opportunity in the matter of public contract. A person who is on the
approved list is unable to enter into advantageous relations with the
Government because of the order of blacklisting. A person who has
been dealing with the Government in the matter of sale and purchase
of materials has a legitimate interest or expectation.”(Erusian
Equipment case [Erusian Equipment & Chemicals Ltd. v. State of
W.B., (1975) 1 SCC 70] , [(1975) 1 SCC 70], SCC p. 74, para 12)]
and took note of the constitutional provision (Article 298) [
“298.Power to carry on trade, etc.–The executive power of the
Union and of each State shall extend to the carrying on of any trade
or business and to the acquisition, holding and disposal of property
and the making of contracts for any purpose: Provided that–(a) the
said executive power of the Union shall, insofar as such trade or
business or such purpose is not one with respect to which
Parliament may make laws, be subject in each State to legislation by
the State; and(b) the said executive power of each State shall,
insofar as such trade or business or such purpose is not one with
respect to which the State Legislature may make laws, be subject to
legislation by Parliament.”] , which authorises both the Union of
India and the States to make contracts for any purpose and to carry
on any trade or business. It also authorises the acquisition, holding
and disposal of property. This Court also took note of the fact that
the right to make a contract includes the right not to make a
contract. By definition, the said right is inherent in every person
capable of entering into a contract. However, such a right either to
enter or not to enter into a contract with any person is subject to a
constitutional obligation to obey the command of Article 14. Though
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nobody has any right to compel the State to enter into a contract,
everybody has a right to be treated equally when the State seeks to
establish contractual relationships. [ “17. The Government is a
Government of laws and not of men. It is true that neither the
petitioner nor the respondent has any right to enter into a contract
but they are entitled to equal treatment with others who offer tender
or quotations for the purchase of the goods. The privilege arises
because it is the Government which is trading with the public and
the democratic form of Government demands equality and absence
of arbitrariness and discrimination in such transactions. Hohfeld
treats privileges as a form of liberty as opposed to a duty. The
activities of the Government have a public element and, therefore,
there should be fairness and equality. The State need not enter into
any contract with any one but if it does so, it must do so fairly
without discrimination and without unfair procedure. Reputation is
a part of a person’s character and personality. Blacklisting tarnishes
one’s reputation.“(Erusian Equipment case [Erusian Equipment &
Chemicals Ltd. v. State of W.B., (1975) 1 SCC 70] , [(1975) 1 SCC
70], SCC p. 75, para 17)]] The effect of excluding a person from
entering into a contractual relationship with the State would be to
deprive such person to be treated equally with those, who are also
engaged in similar activity.
15. It follows from the above judgment in Erusian Equipment
case [Erusian Equipment & Chemicals Ltd. v. State of W.B., (1975)
1 SCC 70] that the decision of the State or its instrumentalities not to
deal with certain persons or class of persons on account of the
undesirability of entering into the contractual relationship with such
persons is called blacklisting. The State can decline to enter into a
contractual relationship with a person or a class of persons for a
legitimate purpose. The authority of the State to blacklist a person is
a necessary concomitant to the executive power of the State to carry
on the trade or the business and making of contracts for any
purpose, etc. There need not be any statutory grant of such power.
The only legal limitation upon the exercise of such an authority is
that the State is to act fairly and rationally without in any way being
arbitrary–thereby such a decision can be taken for some legitimate
purpose. What is the legitimate purpose that is sought to be achieved
by the State in a given case can vary depending upon various
factors.”
20. Thus, there is no dispute about the requirement of serving show-cause
notice. We may also hasten to add that once the show-cause notice is given
and opportunity to reply to the show-cause notice is afforded, it is not even
necessary to give an oral hearing. The High Court has rightly repudiated
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the appellant’s attempt in finding foul with the impugned order on this
ground. Such a contention was specifically repelled in Patel Engg. [Patel
Engg. Ltd. v. Union of India, (2012) 11 SCC 257 : (2013) 1 SCC (Civ)
445]
Contents of the show-cause notice
21. The central issue, however, pertains to the requirement of stating the
action which is proposed to be taken. The fundamental purpose behind the
serving of show-cause notice is to make the noticee understand the precise
case set up against him which he has to meet. This would require the
statement of imputations detailing out the alleged breaches and defaults
he has committed, so that he gets an opportunity to rebut the same.
Another requirement, according to us, is the nature of action which is
proposed to be taken for such a breach. That should also be stated so that
the noticee is able to point out that proposed action is not warranted in the
given case, even if the defaults/breaches complained of are not
satisfactorily explained. When it comes to blacklisting, this requirement
becomes all the more imperative, having regard to the fact that it is
harshest possible action.
22. The High Court has simply stated that the purpose of show-cause
notice is primarily to enable the noticee to meet the grounds on which the
action is proposed against him. No doubt, the High Court is justified to
this extent. However, it is equally important to mention as to what would
be the consequence if the noticee does not satisfactorily meet the grounds
on which an action is proposed. To put it otherwise, we are of the opinion
that in order to fulfil the requirements of principles of natural justice, a
show-cause notice should meet the following two requirements viz:
(i) The material/grounds to be stated which according to the department
necessitates an action;
(ii) Particular penalty/action which is proposed to be taken. It is this
second requirement which the High Court has failed to omit.
We may hasten to add that even if it is not specifically mentioned in the
show-cause notice but it can clearly and safely be discerned from the
reading thereof, that would be sufficient to meet this requirement.
xxx xxx xxx
28. In the instant case, no doubt the show-cause notice dated 6-2-2013
was served upon the appellant. Relevant portion thereof has already been
extracted above (see para 5). This show-cause notice is conspicuously
silent about the blacklisting action. On the contrary, after stating in detail
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the nature of alleged defaults and breaches of the agreement committed by
the appellant the notice specifically mentions that because of the said
defaults the appellant was “as such liable to be levied the cost
accordingly”. It further says “why the action as mentioned above may not
be taken against the firm, besides other action as deemed fit by the
competent authority”. It follows from the above that main action which the
respondents wanted to take was to levy the cost. No doubt, the notice
further mentions that the competent authority could take other actions as
deemed fit. However, that may not fulfil the requirement of putting the
defaulter to the notice that action of blacklisting was also in the mind of
the competent authority. Mere existence of Clause 27 in the agreement
entered into between the parties, would not suffice the aforesaid
mandatory requirement by vaguely mentioning other “actions as deemed
fit”. As already pointed out above insofar as penalty of blacklisting and
forfeiture of earnest money/security deposit is concerned it can be
imposed only, “if so warranted”. Therefore, without any specific
stipulation in this behalf, the respondent could not have imposed the
penalty of blacklisting.
29. No doubt, rules of natural justice are not embodied rules nor can they
be lifted to the position of fundamental rights. However, their aim is to
secure justice and to prevent miscarriage of justice. It is now
well-established proposition of law that unless a statutory provision either
specifically or by necessary implication excludes the application of any
rules of natural justice, in exercise of power prejudicially affecting
another must be in conformity with the rules of natural justice.”
31. In Madhyamam (supra), the Supreme Court has explained that the
principles of natural justice are imperative not only for the purposes of
achieving a fair outcome but also in view of the inherent value of procedural
fairness. It was emphasized that fair procedure is not only a means to the end
of achieving a fair outcome, but is an end in itself inasmuch as it imparts
legitimacy to the decision making process.
32. Further, compliance with the principles of natural justice preserves the
integrity of the system, as the decision, in addition to being fair, also
“appears” to be fair. The relevant observations in Madhyamam (supra) are
as under:-
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” 34 This case presents the Court with an opportunity to clarify and lay down
the law on the applicability of the principles of natural justice when issues of
national security are involved. The Court must choose between the two visions
of either permitting a complete abrogation of the principles of natural justice
or attempting to balance the principles of natural justice with concerns of
national security. It is imperative that we analyse the purpose natural justice
serves, and the jurisprudential development of procedural due process before
choosing between these two competing visions.
E. 1 Principles of natural justice: purpose and content
35. The principles of natural justice were read into the law and conduct of
judicial and administrative proceedings with an aim of securing fairness.
These principles seek to realise the following four momentous purposes:
36 Fair Outcome: Procedural rules are established to prevent the seepage of
bias and unfairness in the process of decision making. A decision that is
reached after following the procedural rules is expected to be fair. An outcome
that is reached through a fair process is reliable and accurate. In the context
of criminal proceedings, procedural rules are prescribed in the Indian
Evidence Act 1872 and the Code of Criminal Procedure 1973 to secure the
‘correct’ outcome and to identify the ‘truth’.
37. In Chief Constable of North Wales Police v. Evans the appellant was a
probationary member of the North Wales Police Force. He was removed from
the force without putting forth the allegations against him. The House of Lords
set aside the decision on the ground that the non-disclosure of allegations was
violative of the principles of natural justice. The Court cautioned that there
was an extreme danger in proceeding without putting forth the allegations
against him because the veracity of the allegations could never be tested:
“As an example of the extreme danger of proceeding in this way, it
must be observed that, as one of the two clinching matters which
seem to have influenced him, the appellant says in his affidavit:
“Further, it became known” (sic) “to senior officers that the
applicant and his wife had lived a ‘hippy’ type life-style at
TyddynMynyddig Farm, Bangor. This had never been put to the
respondent at all, and had the appellant or his deputy to whom he
delegated the inquiry taken the trouble to ask the respondent about
it, he would have discovered at once that this allegedly clinching
allegation was palpably untrue, and simply the result of a mistaken
address. It was, in short, an utterly incorrect statement relied upon
precisely owing to the failure of natural justice of which complaint is
made.”
38. Inherent value in fair procedure: Fair procedure is not only a means to
the end of achieving a fair outcome but is an end in itself. Fair procedure
induces equality in the proceedings. The proceedings ‘seem’ to be and are seen
to be fair. In Kanda v. Government of Malaya, an Inspector of Police
challenged his dismissal on the ground that the disciplinary proceedings were
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not conducted in accordance with the principles of natural justice. It was
contended that he did not have knowledge of the contents of the enquiry report
that was before the adjudicating officer. The crux of the case was whether his
lack of knowledge of the contents of the report led to a likelihood of bias – both
conscious and unconscious. The Court held that the likelihood of bias test
cannot be solely used to determine the violation of natural justice. The Court
held that it is not necessary that the accused must prove bias or prejudice.
Rather, it is sufficient if the non-disclosure would lead to a possibility of bias
and prejudice since “no one who has lost a case will believe he has been fairly
treated if the other side has had access to the judge without his knowing.” The
House of Lords held that non-disclosure of information is per se violative of
the principles of fair trial.
39. Legitimacy of the decision and decision making authority: When a decision
is formed following the principles of natural justice, there is a perception that
the decision is accurate and just. It preserves the integrity of the system as the
decisions, in addition to being fair, also ‘appear’ to be fair. The perception of
the general public that the decisions appear to be fair is important in building
public confidence in institutions, which aid in securing the legitimacy of the
courts and other decision making bodies.
40. Dignity of individuals: Non-outcome values, that is, values that are
independent of the accuracy and soundness of the verdict, are intrinsically
important The principles of fairness ‘express the elementary idea that to be a
person, rather than a thing, is at least to be consulted about what is done with
one.”
33. At the same time, it has been recognized that principles of natural
justice are not in the nature of an inflexible dogma; they have to be tailored
depending upon the facts and circumstances. These principles may also yield
in exceptional circumstances. In Madhyamam (supra) it has also been
acknowledged that the Courts, both in India and abroad, have demonstrated
considerable flexibility in the application of the principles of natural justice
by fine tuning them to situational variations. It has been acknowledged that
the concept of natural justice cannot be put into a straitjacket formula and is
incapable of a precise definition. It was observed as under:-
“42. The duty to act fairly that is derived from common law is not
exhaustively defined in a set of concrete principles. Courts, both in India
and abroad, have demonstrated considerable flexibility in the
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situational variations. This Court has observed earlier that the concept
of natural justice cannot be put into a ‘straitjacket formula and that it is
incapable of a ‘precise definition’. Courts have undertaken an
ends-based reasoning to test if the action violates the common law
principle of natural justice. The party alleging a violation of a principle
of natural justice has to prove that the administrative action violated the
principles of natural justice and that non-compliance with natural
justice prejudiced the party. The courts, while assessing prejudice,
determine if compliance of the principles of natural justice could have
benefitted the party in securing a just outcome. It needs to be seen if this
content of natural justice and the standard for judicial review of
non-compliance has undergone a change after principles of natural
justice were constitutionalized in Maneka Gandhi v. Union of India.”
34. In Karnataka SRTC v. S.G. Kotturappa, (2005) 3 SCC 409, it has
been held as under:
“……….The question as to what extent, principles of natural justice are
required to be complied with would depend upon the fact situation
obtaining in each case. The principles of natural justice cannot be
applied in vacuum. They cannot be put in any straitjacket formula…..”
35. In that case, the Court held that since there was already an objective
criterion which stood fulfilled for the purpose of taking action against the
respondents, there was no necessity of giving further opportunities to the
respondents therein prior to taking up the requisite action. The said
judgment emphasizes that these principles cannot be put in any straitjacket
formula and have to be tailored depending upon the facts and circumstances
of each case.
36. Likewise, in case of The Chairman, Board of Mining Examination
and Chief Inspector of Mines and Anothers vs. Ramjee, (1977) 2 SCC 256,
while taking note of the contentions based on alleged infraction of principles
of natural justice, it was held as under:
“15. These general observations must be tested on the concrete facts of
each case and every minuscule violation does not spell illegality. It the
totality of circumstances satisfies the Court that the party visited withSignature Not Verified
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adverse order has not suffered from denial of reasonable opportunity
the Court will decline to be punctilious or fanatical as if the rules of
natural justice were sacred scriptures.”
37. Again, the aforesaid observations make the point that the principles of
natural justice, though sacrosanct, have to be moulded and applied
depending upon the peculiar factual context of each case.
NATURAL JUSTICE AND NATIONAL SECURITY
38. In the present case, indisputably, the petitioners were not afforded
opportunity of hearing before revocation of the security clearance granted to
them. The ostensible basis for this is that the said action was necessitated on
account of urgent and pressing national security considerations. In this
context, two questions squarely arise for consideration:
(i) whether national security considerations can afford an exception to the
principles of natural justice?
(ii) to what extent is the existence of national security considerations
(warranting cancellation/revocation of the petitioners’ security clearance),
justiciable in a Court of law?
Whether national security considerations can afford an exception to the
principles of natural justice
39. This issue has come up for consideration in a number of cases, in
different contexts. In Ex-Armymen’s Protection Services Private Ltd. v.
Union of India and Others (supra) the applicant therein had been granted
the business of ground handling services. Rule 92 of the applicable Aircraft
Rules stipulated that provision of ground handling services shall be subject
to the security clearance of the Central Government. The said security
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clearance was subsequently withdrawn in “national interest”. The applicant
initiated proceedings under Article 226 of the Constitution of India before
the High Court of Patna. The said petition was disposed of with directions
that at least the gist of the allegations should be disclosed to the petitioners.
The Single Judge expressed the view that the principles of natural justice
must be read into any administrative action that visits a person with civil
consequences, unless such procedure is excluded by any statute. However, it
was also observed that if there are justifiable facts indicating a threat to
national security, then, nobody, including a Court, can insist on compliance
with the principles of natural justice as a pre-condition for taking any action
resulting in adverse civil consequences. In appellate proceedings, a Division
Bench of the High Court took the view that there were many more materials
available in the files which could not be disclosed in national interest to the
appellant and hence, the impugned action was justified. It was held that:
“… The learned Single Judge, after perusal of the allegations in
the sealed cover, we are disposed to think, has not taken it
seriously on the ground that the allegations were to please the
politicians, etc. The same is not actually correct. We have
already, after perusal of the report, stated earlier that it contains
many more things and the basic ingredients of security are
embedded in it. The report is adverse in nature. It cannot be said
to be founded on irrelevant factors. We are disposed to think that
any reasonable authority concerned with security measures and
public interest could have taken such a view. The emphasis laid in
the report pertains to various realms and the cumulative effect of
the same is the irresistible conclusion that it is adverse to security
as has been understood by the authority. This Court cannot
disregard the same and unsettle or dislodge it as if it is
adjudicating an appeal.””
40. In the aforesaid context, the matter was considered by the Supreme
Court and it was observed as under:
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“11. It is now settled law that there are some special exceptions to the
principles of natural justice though according to Sir William Wade [
H.W.R. William Wade and C.F. Forsyth, Administrative Law (10th Edn.,
Oxford University Press Inc., 2009) 468-470] , any restriction,
limitation or exception on principles of natural justice is “only an
arbitrary boundary”. To quote further:
“The right to a fair hearing may have to yield to overriding
considerations of national security. The House of Lords recognised
this necessity where civil servants at the government
communications headquarters, who had to handle secret
information vital to national security, were abruptly put under new
conditions of service which prohibited membership of national
trade unions. Neither they nor their unions were consulted, in
disregard of an established practice, and their complaint to the
courts would have been upheld on ground of natural justice, had
there not been a threat to national security. The factor which
ultimately prevailed was the danger that the process of consultation
itself would have precipitated further strikes, walkouts, overtime
bans and disruption generally of a kind which had plagued the
communications headquarters shortly beforehand and which were a
threat to national security. Since national security must be
paramount, natural justice must then give way.
The Crown must, however, satisfy the court that national security is
at risk. Despite the constantly repeated dictum that ‘those who are
responsible for the national security must be the sole Judges of
what the national security requires’, the court will insist upon
evidence that an issue of national security arises, and only then will
it accept the opinion of the Crown that it should prevail over some
legal right.””
41. The Supreme Court also took note of the judgment of House of Lords
in Council of Civil Service Unions v. Minister for Civil Service, 1985 AC
374: (1984) 3 WLR 1174: (1984) 3 All ER 935 (HL) which itself relied
upon the judgment of the Privy Council in the Zamora (1916) 2 AC 77
(PC), wherein it was observed as under:
“13. The Privy Council in Zamora [(1916) 2 AC 77 (PC)] , held as
follows at AC p. 107:
“… Those who are responsible for the national security must be the sole
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Judges of what the national security requires. It would be obviously
undesirable that such matters should be made the subject of evidence in
a court of law or otherwise discussed in public.””
42. The Court also took note of the judgment in Secy. of State for Home
Deptt. vs. Rehman, (2001) 3 WLR 877 and concluded as under:-
“17. Thus, in a situation of national security, a party cannot insist for
the strict observance of the principles of natural justice. In such cases, it
is the duty of the court to read into and provide for statutory exclusion,
if not expressly provided in the rules governing the field. Depending on
the facts of the particular case, it will however be open to the court to
satisfy itself whether there were justifiable facts, and in that regard, the
court is entitled to call for the files and see whether it is a case where
the interest of national security is involved. Once the State is of the
stand that the issue involves national security, the court shall not
disclose the reasons to the affected party.”
43. In Madhyamam Broadcasting Ltd. v. Union of India (supra) while
placing reliance on Digi Cable Network (India) Private v. Union of India,
AIR 2019 SC 455, it was observed as under:
“64 In Digi Cable Network (supra), the permission that was granted to
the appellant for operating as a Multi-Systems Operator in the Digital
Addressable System was cancelled on the ground that MHA denied
security clearance to the appellant. The High Court rejected the
challenge to the order of cancellation. The Additional Solicitor General
filed a copy of the reasons for the denial of security clearance in a
sealed cover before this Court. A two-Judge Bench of this Court
dismissed the appeal by relying on the judgment in Ex-Armymen’s
Protection Services (supra) holding that the appellant was not entitled
to claim any prior notice before the order cancelling the permission was
passed :
“16. Having perused the note filed by the Union of India, which
resulted in the cancellation of permission, we are of the
considered opinion that in the facts of this case, the appellant was
not entitled to claim any prior notice before passing of the
cancellation order in question.
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laid down by this Court in Ex-Armymen’s Protection Services (P)
Ltd. Inasmuch as the appellant was not entitled to claim any prior
notice before cancellation of permission.”
65 The observation in Ex-Armymen’s Protection Services (supra) that
what is in national security is a question of policy and not law for the
courts to decide was affirmed in the majority opinion in Justice KS
Puttaswamy (5J) v. Union of India while deciding on the constitutional
validity of Section 33 of the Aadhar Act.”
44. The relevant portion of Justice KS Puttaswamy (5J) v. Union of
India, (2019) 1 SCC 1 is reproduced as under –
“406. Main contention of the petitioners in challenging the provisions of
sub-section (2) of Section 33 is that no definition of national security is
provided and, therefore, it is a loose ended provision susceptible to
misuse. It is also argued that there is no independent oversight disclosure
of such data on the ground of security and also that the provision is
unreasonable and disproportionate and, therefore, unconstitutional.
407. We may point out that this Court has held in Ex-Armymen’s
Protection Services (P) Ltd. v. Union of India that what is in the interest
of national security is not a question of law but it is a matter of policy.
We would like to reproduce the following discussion therefrom : (SCC p.
416, paras 16-17)“16. What is in the interest of national security is not a
question of law. It is a matter of policy. It is not for the court
to decide whether something is in the interest of the State or
not. It should be left to the executive. To quote Lord Hoffman
in Secy. of State for Home Deptt. v. Rehman : (AC p. 192-C,
para 50)’50. … [in the matter] of national security is not a question of
law. It is a matter of judgment and policy. Under the
Constitution of the United Kingdom and most other
countries, decisions as to whether something is or is not in
the interests of national security are not a matter for judicial
decision. They are entrusted to the executive.’
17. Thus, in a situation of national security, a party cannot
insist for the strict observance of the principles of natural
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in the rules governing the field. Depending on the facts of the
particular case, it will however be open to the court to satisfy
itself whether there were justifiable facts, and in that regard,
the court is entitled to call for the files and see whether it is a
case where the interest of national security is involved. Once
the State is of the stand that the issue involves national
security, the court shall not disclose the reasons to the
affected party.”
45. As regards the meaning of the expression “national security” in
Ex-Armymen’s Protection Services (P) Ltd. (supra), it was observed as
under:
“15. It is difficult to define in exact terms as to what is “national
security”. However, the same would generally include socio-political
stability, territorial integrity, economic solidarity and strength,
ecological balance, cultural cohesiveness, external peace, etc.”
46. The expression “national security” subsumes within its scope the
“security of the state”. In Romesh Thappar vs. State of Madras, 1950 SCC
OnLine SC 19, it was held that the expression “security of state” subsumes a
distinct category of those offences against public order which endanger the
security of the State. Relevant portion of the judgment is reproduced as
under –
“7. “Public safety” ordinarily means security of the public or their
freedom from danger. In that sense, anything which tends to prevent
dangers to public health may also be regarded as securing public safety.
The meaning of the expression must, however, vary according to the
context. In the classification of offences in the Penal Code, for instance,
Chapter XIV enumerates the “offences affecting the public health, safety,
convenience, decency, and morals” and it includes rash driving or riding
on a public way (Section 279) and rash navigation of a vessel (Section
280), among others, as offences against public safety, while Chapter VI
lists waging war against the Queen (Section 121), sedition (Section
124-A), etc. as “offences against the State”, because they are calculated
to undermine or affect the security of the State, and Chapter VIII defines
“offences against the public tranquillity” which include unlawful
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classes (Section 153-A), affray (Section 159), etc. Although in the context
of a statute relating to law and order “securing public safety” may not
include the securing of public health, it may well mean securing the
public against rash driving on a public way and the like, and not
necessarily the security of the State. It was said that an enactment which
provided for drastic remedies like preventive detention and ban on
newspapers must be taken to relate to matters affecting the security of the
State rather than trivial offences like rash driving or an affray. But
whatever ends the impugned Act may have been intended to subserve,
and whatever aims its framers may have had in view, its application and
scope cannot, in the absence of limiting words in the statute itself, be
restricted to those aggravated forms of prejudicial activity which are
calculated to endanger the security of the State. Nor is there any
guarantee that those authorised to exercise the powers under the Act will
in using them discriminate between those who act prejudicially to the
security of the State and those who do not.”
47. In Ram Manohar Lohia v. State of Bihar, AIR 1965 SCC OnLine SC
9, the Supreme Court distinguished between the expressions “security of the
state”, “law and order” and “public order”; it was observed that the
disorder/s effecting the security of the state are more aggravated then
disorder/s that effects public order or law and order. It was observed as
under:
“55. It will thus appear that just as “public order” in the rulings of this
Court (earlier cited) was said to comprehend disorders of less gravity
than those affecting “security of State”, “law and order” also
comprehends disorders of less gravity than those affecting “public
order”. One has to imagine three concentric circles. Law and order
represents the largest circle within which is the next circle representing
public order and the smallest circle represents security of State. It is
then easy to see that an act may affect law and order but not public
order just as an act may affect public order but not security of the State.
By using the expression “maintenance of law and order” the District
Magistrate was widening his own field of action and was adding a
clause to the Defence of India Rules.”
48. Various foreign judgments (which have been elaborately discussed
herein below) have also attempted to determine the contours of what is
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subsumed within the expression “national security”.
49. In Madhyamam (supra), it has been observed as under:
“84. Thus, the expression national security does not have a fixed
meaning. While courts have attempted to conceptually distinguish
national security from public order, it is impossible (and perhaps
unwise) to lay down a text-book definition of the expression which can
help the courts decide if the factual situation is covered within the
meaning of the phrase. The phrase derives its meaning from the context.
It is not sufficient for the State to identify its purpose in broad
conceptual terms such as national security and public order….”
50. The interplay between the principles of natural justice and national
security also came up for consideration before this Court in Sublime
Software v. Union of India, 2024 SCC OnLine Del 4640, wherein, taking
note of the judgment of the Ex-Armymen’s Protection Services (P) Ltd.
(supra), it was observed as under:
“12….As held by the Apex Court in Ex-Armymen’s Protection Services
(supra) the principles of natural justice can be given a go-by in the
matters related to security and sovereignty of the country….”
51. It is apparent from the dicta laid down in the aforesaid cases and also
in Madhyamam (supra) (which has been discussed separately hereinbelow),
that in matters pertaining to the security of the realm, the principles of
natural justice must yield to preservation of natural security. This position
has been affirmed and recognised not only by the Courts in India, but also in
other jurisdictions such as the UK and USA. The relevance of judicial
pronouncements by foreign Courts in this regard have been taken note of in
Madhyamam (supra) in the following terms:-
“41. Indian Courts have been significantly influenced by the courts in
England on the interpretation, application, and content of natural
justice, primarily because the principles are derived from common law
and are grounded in the rule of law. The jurisprudential developments
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natural justice usually, if not always, spill over to Indian jurisdiction.”
Legal Position as enunciated by Courts in United Kingdom
52. The Zamora (supra), is an authority for the proposition that the issues
relating to the national security, are primarily for the executive to decide and
those considerations were capable of justifying departure from the principles
of natural justice. In the Zamora (supra), a Swedish steamship, carrying
around 400 tons of copper from New York to Stockholm, was intercepted by
a British cruiser. The cargo comprising copper was consigned to a Swedish
company. The vessel was seized and brought to a British port for inspection,
and a writ was filed in the Prize Court seeking condemnation of the ship and
cargo as contraband, or alternatively, their detention or sale. While awaiting
adjudication, the War Department sought an interlocutory order to requisition
the copper cargo, offering to deposit its value in court. The Swedish Trading
Company objected to the same. The Prize Court, ruled in favour of the Crown,
holding that the copper should be released and delivered to the Crown. The
case eventually reached the Privy Council, wherein it was observed as under –
“With regard to the first of these limitations, their Lordships are of
opinion that the judge ought, as a rule, to treat the statement on oath of the
proper officer of the Crown to the effect that the vessel or goods which it is
desired to requisition are urgently required for use in connection with the
defence of the realm, the prosecution of the war, or other matters involving
national security, as conclusive of the fact. This is so in the analogous
case of property being requisitioned under the municipal law (see
Warrington L.J. in the case of In re A Petition of Right , already cited),
and there is every reason why it should be so also in the case of property
requisitioned under the international law. Those who are responsible for
the national security must be the sole judges of what the national security
requires. It would be obviously undesirable that such matters should be
made the subject of evidence in a Court of law or otherwise discussed in
public.”
53. In Regina v. Secretary of State for Home Affairs, (1977) 1 WLR
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766, the case involved deportation of the United States citizen who had been
working in England as a journalist for three years, engaged in investigative
journalism. In the said judgment the salutary nature of the principles of
natural justice was explained as under:
“It is of course well known that the principles of natural justice are those
fundamental rules, the breach of which will prevent justice from being
seen to be done. It is well enough known that one of the rules generally
accepted in the bundle of the rules making up natural justice is the rule
which requires that a person accused should have a fair and full
disclosure to him of the case which is made against him. Perhaps the
two most important rules of natural justice are, first, that a person
accused must be given a fair statement of the case against him, and,
secondly, that he must be given a fair hearing for the case which he
proposes to put up himself.”
54. After noticing that principles of natural justice are flexible and were
necessarily required to be adapted to the relevant factual conspectus, it was
observed as under –
“Thus, the rules are flexible and must be adjusted to a particular case.
That at once draws attention to the fact that this is a case in which
issues of national security are raised, and one can go through the
authorities and find almost literally dozens of cases in which it has
been recognised over the years that where matters affecting public
security are in issue, and where the responsible minister has certified
that in his opinion the matters should not be disclosed, then they will
not be disclosed.”
55. In his concurring judgment, it was observed by Lord Denning as
under:
“But this is no ordinary case. It is a case in which national security is
involved: and our history shows that, when the state itself is
endangered, our cherished freedoms may have to take second place.
Even natural justice itself may suffer a set-back. Time after time
Parliament has so enacted and the courts have loyally followed. In the
first world war in Rex v. Halliday [1917] A.C. 260, 270 Lord Finlay
L.C. said: “The danger of espionage and of damage by secret agents …
had to be guarded against.” In the second world war in Liversidge v. Sir
John Anderson [1942] A.C. 206, 219 Lord Maugham said:
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“… there may be certain persons against whom no offence is
proved nor any charge formulated, but as regards whom it may be
expedient to authorise the Secretary of State to make an order for
detention.”
That was said in time of war. But times of peace hold their dangers too.
Spies, subverters and saboteurs may be mingling amongst us, putting on
a most innocent exterior. They may be endangering the lives of the men
in our secret service, as Mr. Hosenball is said to do.”
56. It was further observed as under:
“The information supplied to the Home Secretary by the Security
Service is, and must be, highly confidential. The public interest in the
security of the realm is so great that the sources of the information must
not be disclosed — nor should the nature of the information itself be
disclosed — if there is any risk that it would lead to the sources being
discovered. The reason is because, in this very secretive field, our
enemies might try to eliminate the sources of information. So the sources
must not be disclosed. Not even to the House of Commons. Nor to any
tribunal or court of inquiry or body of advisers, statutory or
non-statutory. Save to the extent that the Home Secretary thinks safe.
Great as is the public interest in the freedom of the individual and the
doing of justice to him, nevertheless in the last resort it must take second
place to the security of the country itself. So much so that arrests have
not been made, nor proceedings instituted, for fear that it may give away
information which must be kept secret. This is in keeping with all our
recent cases about confidential information. When the public interest
requires that information be kept confidential, it may outweigh even the
public interest in the administration of justice. I gave the instances in D.
v. National Society for the Prevention of Cruelty to Children [1976] 3
W.L.R. 124, 132-134.”
57. In the concurring opinion of Geoffrey Lane L.J, it was observed as
under:
“There are occasions, though they are rare, when what are more
generally the rights of an individual must be subordinated to the
protection of the realm. When an alien visitor to this country is believed
to have used the hospitality extended to him so as to present a danger to
security, the Secretary of State has the right and, in many cases, has the
duty of ensuring that the alien no longer remains here to threaten our
security. It may be that the alien has been in the country for many years.
It may be that he has built a career here in this country, and that
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hardship to him. It may be that he protests that he has done nothing
wrong so far as this country’s security is concerned. It may be that he
protests that he cannot understand why any action of this sort is being
taken against him. In ordinary circumstances common fairness — you
can call it natural justice if you wish — would demand that he be given
particulars of the charges made against him; that he be given the names
of the witnesses who are prepared to testify against him and, indeed,
probably the nature of the evidence which those witnesses are prepared
to give should also be delivered to him. But there are counter-balancing
factors.
Detection, whether in the realms of ordinary crime or in the realms of
national security, is seldom carried out by cold analysis or brilliant
deduction. Much more frequently it is done by means of information
received. Courts of criminal jurisdiction have for very many years
indeed, if not for centuries, given protection from disclosure to sources
of information. One can see that in Rex v. Hardy (1794) 24 State Tr.
199, 808, which was cited by Lord Simon of Glaisdale in Reg. v. Lewes
Justices, Ex parte Secretary of State for Home Department [1973] A.C.
388, 407.
The reasons for this protection are plain. Once a source of information
is disclosed, it will cease thereafter to be a source of information. Once
a potential informant thinks that his identity is going to be disclosed if
he provides information, he will cease to be an informant. The life of a
known informant may be made, to say the least, very unpleasant by
those who, for reasons of their own, wish to remain in obscurity. Thus,
take away the protection, and you remove the means of detection; and,
when the security of the country is involved, there may be added
difficulties. It may well be that if an alien is told with particularity what
it is said he has done it will become quite obvious to him from whence
that information has been received. The only person who can judge
whether such a result is likely is the person who has in his possession all
the information available. That, in this case, is the Secretary of State
himself. If he comes to the conclusion that for reasons such as those
which I have just endeavoured to outline he cannot afford to give the
alien more than the general charge against him, there one has the
dilemma. The alien certainly has inadequate information upon which to
prepare or direct his defence to the various charges which are made
against him, and the only way that could be remedied would be to
disclose information to him which might probably have an adverse effect
on the national security. The choice is regrettably clear: the alien must
suffer, if suffering there be, and this is so on whichever basis of
argument one chooses.
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xxx xxx xxx
Different principles and strict principles apply where matters of the
safety of the realm are at stake. What is fair cannot be decided in a
vacuum: it has to be determined against the whole background of any
particular case. The advisory panel system is an effort to ensure fairness
as far as possible in these difficult circumstances, but in the end it is the
Secretary of State who must in those circumstances be trusted to speak
the last word.
58. Again, in the concurring opinion of Cumming Bruce LJ, while taking
note of the salutary nature of the principles of natural justice, it was
observed as under:
“In my view, the field of judicial scrutiny by reference to the
enforcement of the rules of common fairness, is an extremely restricted
field in the sphere of the operations necessary to protect the security of
the state. There is a certain range of such operations which depend for
their efficacy entirely on secrecy, and they are none the less important
for that reason.”
59. In Council of Civil Service Unions and Ors. Vs. Minister for the
Civil Service, (1985) A.C. 374, the controversy arose in the backdrop of
instructions issued by the Minister of Civil Service to the effect that the
employees of Government Communications Headquarters cannot be part of
trade unions. The decision was challenged on the ground that the employees
had not been consulted before the instructions were issued, contrary to the
well-established practice. Therein the Court observed as under :
“I have already explained my reasons for holding that, if no question of
national security arose, the decision-making process in this case would
have been unfair. The respondent’s case is that she deliberately made
the decision without prior consultation because prior consultation
“would involve a real risk that it would occasion the very kind of
disruption [at GCHQ] which was a threat to national security and
which it was intended to avoid.” I have quoted from paragraph 27(i) of
the respondent’s printed case. Mr. Blom-Cooper conceded that a
reasonable minister could reasonably have taken that view, but he
argued strongly that the respondent had failed to show that that was in
fact the reason for her decision. He supported his argument by saying,Signature Not Verified
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as I think was conceded by Mr. Alexander, that the reason given in
paragraph 27(i) had not been mentioned to Glidewell J. and that it had
only emerged before the Court of Appeal. He described it as an
“afterthought” and invited the House to hold that it had not been shown
to have been the true reason.
The question is one of evidence. The decision on whether the
requirements of national security outweigh the duty of fairness in any
particular case is for the Government and not for the courts; the
Government alone has access to the necessary information, and in any
event the judicial process is unsuitable for reaching decisions on
national security. But if the decision is successfully challenged, on the
ground that it has been reached by a process which is unfair, then the
Government is under an obligation to produce evidence that the
decision was in fact based on grounds of national security. Authority for
both these points is found in The Zamora [1916] 2 A.C. 77. The former
point is dealt with in the well known passage from the advice of the
Judicial Committee delivered by Lord Parker of Waddington, at p. 107:
“Those who are responsible for the national security must be the sole
judges of what the national security requires. It would be obviously
undesirable that such matters should be made the subject of evidence in
a court of law or otherwise discussed in public.””
60. Taking note of the decision in The Zamora (supra), particularly, the
oft-cited observation in that case to the effect that “those who are
responsible for the national security must be sole judges of what the national
security requires”, it was further observed as under:
“These words were no abdication of the judicial function, but were an
indication of the evidence required by the court. In fact the evidence
adduced by the Crown was not as not sufficient, and the court ruled that
the Crown had no right to requisition. The Crown’s claim was rejected
“because the judge had before him no satisfactory evidence that such a
right was exercisable” (p. 108). The Prize Court, therefore, treated the
question as one of fact for its determination and indicated the evidence
needed to establish the fact. The true significance of Lord Parker’s
dictum is simply that the court is in no position to substitute its opinion
for the opinion of those responsible for national security. But the case is
a fine illustration of the court’s duty to ensure that the essential facts to
which the opinion or judgment of those responsible relates are proved to
the satisfaction of the court.”
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61. In Secretary of State for the Home Department vs. Rehman (2001) 3
WLR 877, it was observed as under:-
“17. ………If an act is capable of creating indirectly a real possibility of
harm to national security it is in principle wrong to say that the state
must wait until action is taken which has a direct effect against the
United Kingdom.
18 National security and defence of the realm may cover the same
ground though I tend to think that the latter is capable of a wider
meaning. But if they are the same then I would accept that defence of the
realm may justify action to prevent indirect and subsequent threats to
the safety of the realm.
19 The United Kingdom is not obliged to harbour a terrorist who is
currently taking action against some other state (or even in relation to a
contested area of land claimed by another state) if that other state could
realistically be seen by the Secretary of State as likely to take action
against the United Kingdom and its citizens.
20 I therefore agree with the Court of Appeal that the interests of
national security are not to be confined in the way which the
Commission accepted.
xxx xxx xxx
28………………..Even democracies are entitled to protect
themselves, and the executive is the best judge of the need for
international co-operation to combat terrorism and counter-terrorist
strategies. This broader context is the backcloth of the Secretary of
State’s statutory power of deportation in the interests of national
security.
xxx xxx xxx
31……It is, however, self-evidently right that national courts must give
great weight to the views of the executive on matters of national
security…..”
62. Thus, the Courts in the U.K. have been unequivocal in giving
precedence to the national security over reasonable due process, for reasons
enunciated in the above judgments.
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63. In the recent case of R. Begum vs. SIAC, (2021) 2 WLR 556, while
taking note of the judgment in Secretary of State for Home Department
(supra), the Court cited with approval the following observation of the Court
in Secretary of State for Home Department (supra):
“It is not only that the executive has access to special information and
expertise in these matters. It is also that such decisions, with serious
potential results for the community, require a legitimacy which can be
conferred only by entrusting them to persons responsible to the
community through the democratic process. If the people are to accept
the consequences of such decisions, they must be made by persons whom
the people have elected and whom they can remove.”
64. It was noticed that the above has been reiterated subsequently in A v.
Secretary of State for the Home Department, (2005) 2 AC 68 and R (Lord
Carlile of Berriew) vs. Secretary of State for the Home Department, (2015)
AC 945.
Legal Position as enunciated by Courts in United States
65. It was held by the Supreme Court of United States in Alexander M.
HAIG, Jr., Secretary of State of the United States v. Philip AGEE, 1981
SCC OnLine US SC 166 as under:-
“55. It is “obvious and unarguable” that no governmental interest is
more compelling than the security of the Nation. Aptheker v. Secretary
of State, 378 U.S., at 509, 84 S.Ct., at 1665; accord Cole v. Young, 351
U.S. 536, 546, 76 S.Ct. 861, 868, 100 L.Ed. 1396 (1956);
see Zemel, supra, at 13-17, 85 S.Ct., at 1279-1281. Protection of the
foreign policy of the United States is a governmental interest of great
importance, since foreign policy and national security considerations
cannot neatly be compartmentalized.
56. Measures to protect the secrecy of our Government’s foreign
intelligence operations plainly serve these interests. Thus, in Snepp v.
United States, 444 U.S. 507, 509, n. 3, 100 S.Ct. 763, 765, n. 3, 62
L.Ed.2d 704 (1980), we held that “[t]he Government has a compellingSignature Not Verified
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interest in protecting both the secrecy of information important to our
national security and the appearance of confidentiality so essential to
the effective operation of our foreign intelligence service.” See also id.,
at 511-513, 100 S.Ct., at 766-767. The Court in United States v.
Curtiss-Wright Export Corp. properly emphasized:”
66. In Department of Navy v. Thomas E. EGAN, 1988 SCC OnLine US
SC 22, the respondent had lost his job on account of denial of a required
security clearance. In that context, it was observed by the Supreme Court as
under:
“22. It should be obvious that no one has a “right” to a security
clearance. The grant of a clearance requires an affirmative act of
discretion on the part of the granting official. The general standard is
that a clearance may be granted only when “clearly consistent with the
interests of the national security.” See, e.g., Exec. Order No. 10450, §§
2 and 7, 3 CFR 936, 938 (1949-1953 Comp.); 10 CFR § 710.10(a)
(1987) (Department of Energy); 32 CFR § 156.3(a) (1987) (Department
of Defense). A clearance does not equate with passing judgment upon an
individual’s character. Instead, it is only an attempt to predict his
possible future behavior and to assess whether, under compulsion of
circumstances or for other reasons, he might compromise sensitive
information. It may be based, to be sure, upon past or present conduct,
but it also may be based upon concerns completely unrelated to conduct,
such as having close relatives residing in a country hostile to the United
States. “[T]o be denied [clearance] on unspecified grounds in no way
implies disloyalty or any other repugnant characteristic.” Molerio v.
FBI, 242 U.S.App.D.C. 137, 146, 749 F.2d 815, 824 (1984). The attempt
to define not only the individual’s future actions, but those of outside
and unknown influences renders the “grant or denial of security
clearances . . . an inexact science at best.” Adams v. Laird, 136
U.S.App.D.C. 388, 397, 420 F.2d 230, 239 (1969), cert. denied, 397
U.S. 1039, 90 S.Ct. 1360, 25 L.Ed.2d 650 (1970).”
67. Thus, the view taken by the US Supreme Court is that there should be
minimal judicial interference in respect of administrative actions/denial of
security clearance on considerations of national security. In Department of
Navy (supra), it was noticed that the security clearance may be granted only
when it is “clearly consistent with the interest of national security”. It was
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further noticed that the security clearance does not equate with parting
judgment upon an individual’s character, instead, it is only an attempt to
assess whether, under compulsion of circumstances or for other reasons, the
individual might compromise sensitive information. The US Supreme Court
went on to observe that predictive judgments of this kind are best made by
those with the necessary expertise in protecting classified information.
68. Thus, the proposition that procedural due process and natural justice
may be dispensed with where National security is involved finds support in
both domestic and comparative constitutional jurisprudence.
JUSTICIABILITY OF NATIONAL SECURITY CONSIDERATIONS
69. In case of Ex Armyman‘s (supra), the Supreme Court cited with
approval the observations of the Privy Council in The Zamora (supra),
wherein the oft-quoted comment was made to the effect that those who are
responsible for national security must be the sole judges of what national
security requires.
70. It is notable, however, that on the facts of The Zamora (supra), the
Court found that the impugned action therein could not be justified for the
reasons that the concerned order in that case (whereby the requisition of
cargo was resorted to) did not specifically say that the same was necessitated
for national security purposes.
71. In Ex Armyman‘s (supra), the Supreme Court referred not only to
The Zamora (supra), but also to the observations of the U.K. House of
Lords in Crompton Alfred Amusement Machines v. Customs and Excise
Commissioners, (1973) 3 WLR 268 as under:-
“… In a case where the considerations for and against disclosure
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appear to be fairly evenly balanced the courts should, I think, uphold a
claim to privilege on the grounds of public interest and trust to the head
of the department concerned to do whatever he can to mitigate the ill
effects of non-disclosure.”
72. Finally, it was observed by the Supreme Court as under:-
“16. What is in the interest of national security is not a question of law.
It is a matter of policy. It is not for the court to decide whether
something is in the interest of the State or not. It should be left to the
executive. To quote Lord Hoffman in Secy. of State for Home Deptt. v.
Rehman [(2003) 1 AC 153 : (2001) 3 WLR 877 : (2002) 1 All ER 122
(HL)] : (AC p. 192C)“… [in the matter] of national security is not a question of law. It is
a matter of judgment and policy. Under the Constitution of
the United Kingdom and most other countries, decisions as to
whether something is or is not in the interests of national security
are not a matter for judicial decision. They are entrusted to the
executive.”
17. Thus, in a situation of national security, a party cannot insist for the
strict observance of the principles of natural justice. In such cases, it is
the duty of the court to read into and provide for statutory exclusion, if
not expressly provided in the rules governing the field. Depending on
the facts of the particular case, it will however be open to the court to
satisfy itself whether there were justifiable facts, and in that regard, the
court is entitled to call for the files and see whether it is a case where
the interest of national security is involved. Once the State is of the
stand that the issue involves national security, the court shall not
disclose the reasons to the affected party.”
73. Thus, in Ex Armyman‘s (supra), the Supreme Court categorically
held that in order for the Court to satisfy itself that the concerned action has
been taken on account of national security considerations, it is open to the
Court to call for the relevant files so as to ascertain whether the interest of
national security is indeed involved. However, once national security
considerations are found to be the reasons for the concerned action, the issue
as to whether something is or is not in the interest of national security is not
a matter for judicial review. In Ex Armyman‘s (supra), the Supreme Court
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specifically referred, with approval, to the following observations of Lord
Hoffmann in Secretary of State for Home Department (supra) –
“50 I shall deal first with the separation of powers. Section 15(3) of the
1971 Act specifies “the interests of national security” as a ground on
which the Home Secretary may consider a deportation conducive to the
public good. What is meant by “national security” is a question of
construction and therefore a question of law within the jurisdiction of the
Commission, subject to appeal. But there is no difficulty about what
“national security” means. It is the security of the United Kingdom and
its people. On the other hand, the question of whether something is “in
the interests” of national security is not a question of law. It is a matter
of judgment and policy. Under the constitution of the United Kingdom
and most other countries, decisions as to whether something is or is not
in the interests of national security are not a matter for judicial decision.
They are entrusted to the executive.”
74. In Regina (supra), it was held that where the concerned action has
been taken for national security considerations, the Court would be bound to
accept the same. The Court made a telling observation to the effect that
where national security is involved, our cherished freedoms may have to
take second place; even natural justice itself may suffer a setback. The Court
cited with approval the observation in Rex v. Halliday, [1917] AC 260 to the
effect that “the danger of espionage and of damage by secret agents … had
to be guarded against”. The Court also observed that even in the times of
peace, spy, subverts, saboteurs may be mingling amongst us and
endangering lives of the citizens.
75. In Council of Civil Service Unions (supra), the House of Lords
observed that where a substantive decision has been taken for national
security purposes, the Court will not review the decision making process. It
was observed as under:
“………Once the factual basis is established by evidence so that the
court is satisfied that the interest of national security is a relevant factor
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accept the opinion of the Crown or its responsible officer as to what is
required to meet it, unless it is possible to show that the opinion was one
which no reasonable minister advising the Crown could in the
circumstances reasonably have held. There is no abdication of the
judicial function, but there is a common sense limitation recognised by
the judges as to what is justiciable: and the limitation is entirely
consistent with the general development of the modern case law of
judicial review.”
76. It was also held as under:
“The reason why the Minister for the Civil Service decided on 22
December 1983 to withdraw this benefit was in the interests of national
security. National security is the responsibility of the executive
government; what action is needed to protect its interests is, as the cases
cited by my learned friend, Lord Roskill, establish and common sense
itself dictates, a matter upon which those upon whom the responsibility
rests, and not the courts of justice, must have the last word. It is par
excellence a non-justiciable question. The judicial process is totally
inept to deal with the sort of problems which it involves.
The executive government likewise decided, and this would appear to be
a collective decision of cabinet ministers involved, that the interests of
national security required that no notice should be given of the decision
before administrative action had been taken to give effect to it. The
reason for this was the risk that advance notice to the national unions of
the executive government’s intention would attract the very disruptive
action prejudicial to the national security the recurrence of which the
decision barring membership of national trade unions to civil servants
employed at GCHQ was designed to prevent.
There was ample evidence to which reference is made by others of your
Lordships that this was indeed a real risk; so the crucial point of law in
this case is whether procedural propriety must give way to national
security when there is conflict between (1) on the one hand, the prima
facie rule of “procedural propriety” in public law, applicable to a case
of legitimate expectations that a benefit ought not to be withdrawn until
the reason for its proposed withdrawal has been communicated to the
person who has theretofore enjoyed that benefit and that person has
been given an opportunity to comment on the reason, and (2) on the
other hand, action that is needed to be taken in the interests of national
security, for which the executive government bears the responsibility
and alone has access to sources of information that qualify it to judge
what the necessary action is. To that there can, in my opinion, be only
one sensible answer. That answer is “Yes.””
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77. In Secretary of State for the Home Department (supra), it was
observed as under:-
“16……..It seems to me that, in contemporary world conditions, action
against a foreign state may be capable indirectly of affecting the
security of the United Kingdom. The means open to terrorists both in
attacking another state and attacking international or global activity by
the community of nations, whatever the objectives of the terrorist, may
well be capable of reflecting on the safety and well-being of the United
Kingdom or its citizens. The sophistication of means available, the speed
of movement of persons and goods, the speed of modern communication,
are all factors which may have to be taken into account in deciding
whether there is a real possibility that the national security of the United
Kingdom may immediately or subsequently be put at risk by the actions
of others. To require the matters in question to be capable of resulting
“directly” in a threat to national security limits too tightly the discretion
of the executive in deciding how the interests of the state, including not
merely military defence but democracy, the legal and constitutional
systems of the state need to be protected. I accept that there must be a
real possibility of an adverse affect on the United Kingdom for what is
done by the individual under inquiry but I do not accept that it has to be
direct or immediate. Whether there is such a real possibility is a matter
which has to be weighed up by the Secretary of State and balanced
against the possible injustice to that individual if a deportation order is
made.
xxx xxx xxx
26. In conclusion even though the Commission has powers of review
both of fact and of the exercise of the discretion, the Commission must
give due weight to the assessment and conclusions of the Secretary of
State in the light at any particular time of his responsibilities, or of
Government policy and the means at his disposal of being informed of
and understanding the problems involved. He is undoubtedly in the best
position to judge what national security requires even if his decision is
open to review. The assessment of what is needed in the light of
changing circumstances is primarily for him. On an appeal the Court of
Appeal and your Lordships’ House no doubt will give due weight to the
conclusions of the Commission, constituted as it is of distinguished and
experienced members, and knowing as it did, and as usually the court
will not know, of the contents of the “closed” evidence and hearing. If
any of the reasoning of the Commission shows errors in its approach to
the principles to be followed, then the courts can intervene. In the
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on both of the points which arose and in its decision to remit the matters
to the Commission for redetermination in accordance with the
principles which the Court of Appeal and now your Lordships have laid
down. I would accordingly dismiss the appeals.”
78. Thus, the Court recognized that the concerned specialized agencies
are in the best position to assess the demands of national security and the
Court would not second guess the same unless the facts are such that no
reasonable person could have ever reached the conclusion that the national
security considerations were involved. However, once national security
considerations are found to be in play, then, the Court would not second
guess the rationale/sufficiency of the action taken.
79. In R. Begum (supra), the Court cited with approval observations of
the Lord Hoffmann in Secretary of State for the Home Department (supra)
wherein it was observed that only the executive has access to special
information and expertise in these matters. It was observed as under:
“62. Finally, Lord Hoffmann explained at para 62 that a further reason
for SIAC to respect the assessment of the Secretary of State was the
importance of democratic accountability for decisions on matters of
national security :
“It is not only that the executive has access to special information and
expertise in these matters. It is also that such decisions, with serious
potential results for the community, require a legitimacy which can be
conferred only by entrusting them to persons responsible to the
community through the democratic process. If the people are to accept
the consequences of such decisions, they must be made by persons whom
the people have elected and whom they can remove.””
80. In Department of Navy (supra), the Supreme Court of United States
observed that security clearance determinations should err, if they must, on
the side of denials. The same would especially apply to security clearance
granted for the purpose of sensitive installations used by the large numbers
of citizens and where any infraction of security can result a catastrophic
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consequence. It was observed in Alexander M. HAIG (supra) that no
Government interest is more compelling than the security of the nation.
THE MADHYAMAM CASE
81. The above principles fell for an extensive examination by the
Supreme Court in Madhyamam (supra). The controversy arose in the
backdrop of an order dated 31.01.2022, whereby the Ministry of Information
and Broadcasting revoked the permission for up-linking and down-linking,
granted to a current affairs media channel called “Media One” due to the
denial of security clearance.
82. It is notable that in the said case, security clearance had originally
been granted on 07.02.2011. Thereafter, additional permissions were granted
to uplink and downlink certain other channels as well (both news and
non-news channels) i.e. Media One Life and Media One Global. However,
the denial of security clearance subsequently led to the issuance of a show
cause notice by the Ministry of Information and Broadcasting on 12.02.2016
proposing to revoke the permission granted in respect of Media One Life
and Media One.
83. On 11.09.2019, the Ministry of Information and Broadcasting
cancelled the up-linking and down-linking permission granted in respect of
Media One Life, although no action was taken with respect to Media One.
84. On the facts of the case, the Supreme Court noted (in Para 86 of the
judgment) that the security clearance had initially been granted despite
adverse observations of the Intelligence Bureau whereby the concerned
organisation was sought to be linked to one Jamaat-e-Islami.
85. The objection was that the request carried out by the concerned entity
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in certain publication was of an adverse nature and few executive of the
entity had association with the aforesaid organisation (Jamaat-e-Islami).
86. The above facts have been noted to highlight that in Madhyamam
(supra), the Supreme Court found on facts that no national security
considerations were involved so as to warrant the revocation of security
clearance. It was observed by the Supreme Court has under:
“98 Security clearance was denied to MBL because of its alleged link
with JEI-H, and its alleged anti-establishment stance. To conclude that
MBL is linked to JEI-H, IB has relied on the ‘tenor’ of the articles
published by dailies of MBL, and the shareholding pattern of MBL. To
conclude that JEI-H has an anti-establishment stance, IB has solely
relied upon the programmes that were broadcast by MediaOne. Some of
the views that were highlighted in the IB report to conclude that MBL
has an anti-establishment stand are that (i) it portrays security forces
and the judiciary in a bad light; (ii) it highlighted the discrimination
faced by minorities in the country and contrasted it with the State’s
alleged soft attitude towards the Hindus who were involved in the
destruction of Babri Masjid; and (iii) its comments on UAPA, Armed
Forces (Special Power) Act, developmental projects of the
Government, encounter killings, Citizenship (Amendment) Act, and
CAA/NPR/NRC.
99. Significantly, with respect to the list of shareholders who are alleged
sympathizers of JEI-H, the file does not contain any evidence on the
alleged link between the shareholders and JEI-H. The report of IB is
purely an inference drawn from information that is already in the public
domain. There is nothing ‘secretive’ about this information to attract the
ground of confidentiality. Additionally, it cannot be argued that the
purpose of national security will be served by non-disclosure merely by
alleging that MBL is involved with JEI-H which is an organisation with
alleged terrorist links. While we have held above that it would be
impractical and unwise for the courts to define the phrase national
security, we also hold that national security claims cannot be made out
of thin air. There must be material backing such an inference. The
material on the file and the Inference drawn from such material have no
nexus. The non-disclosure of this information would not be in the
interest of any facet of public interest, much less national security. On a
perusal of the material, no reasonable person would arrive at the
conclusion that the non-disclosure of the relevant material would be in
the interest of national security and confidentiality.
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167. The critical views of the Channel, Media-One on policies of the
government cannot be termed, ‘anti-establishment’. The use of such a
terminology in itself, represents an expectation that the press must
support the establishment. The action of the MIB by denying a security
clearance to a media channel on the basis of the views which the
channel is constitutionally entitled to hold produces a chilling effect on
free speech, and in particular on press freedom. Criticism of
governmental policy can by no stretch of imagination be brought
withing the fold of any of the grounds stipulated in Article 19(2).”
87. As such, the Court found that national security considerations were
not involved in that case. It was held that the critical views of the concerned
media channel, on policies of the Government, could not be termed
“anti-establishment”, much less could the same be construed to be inimical
to national security. Thus, the factual conspectus of Madhyamam (supra)
was quite different from the present case. The present case involves
considerations pertaining to security of the realm and cannot be equated with
a situation involving alleged deleterious effect of expression of opinion/s
through media channels. In the course of the judgment in Madhyamam
(supra), the Supreme Court had occasion to dwell at length on how a court
should approach a situation where security clearance is denied/revoked on
account of national security considerations without following the principles
of natural justice. It was emphasized that the standard of proportionality
must be used to assess whether abrogation of the principles of natural
justice, are justified or not. It was held as under –
“76. Having held that the concerns of national security do not permit
an absolute abrogation of the principles of natural justice, we are now
required to assess if the restriction on procedural guarantees is
reasonable on an application of the proportionality standard. The
proportionality standard as laid down by this Court in Modern Dental
(supra) is as follows:
(i) The measure restricting a right must have a legitimate goal
(legitimate goal stage).
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(ii) The measure must be a suitable means for furthering this goal
(suitability or rational connection stage).
(iii) The measure must be least restrictive and equally effective
(necessity stage).
(iv) The measure must not have a disproportionate impact on the
right holder (balancing stage).”
88. In Madhyamam (supra), it was found that the very first requirement
was not satisfied, inasmuch as it was specifically found, based on a perusal
of the material on file, that invocation of national security considerations
was unjustified. A finding was specifically rendered in paragraph 99 that
“on a perusal of the material, no reasonable person would arrive at the
conclusion that the non-disclosure of the relevant material would be in the
interest of national security and confidentiality”.
89. Importantly, in Madhyamam (supra), it was recognized by the
Supreme Court that confidentiality of evidence and national security are
legitimate goals recognized by the Constitution for the purpose of limiting
procedural rights. It was held as under:
“80. The Constitution prescribes national security as one of the grounds
which can be used to reasonably restrict rights expressly in the context
of Article 19. Further, other provisions of the Constitution prescribe a
departure from principles during emergency situations that impact
national security. Similarly, informational privacy and confidentiality
are now values that have been read into the Constitution, particularly in
view of the decision of a nine Judge Bench in Justice KS Puttaswamy
(9J) (supra) and the enactment of the Right to Information Act 2005.
Thus, confidentiality and national security are legitimate goals
recognised by the Constitution for the purpose of limiting procedural
rights.”
90. It was also observed as under:
“74. The following principles emerge from the above judgements:
(i) The party affected by the decision must establish that the decision
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principles of natural justice;
(ii) The State can claim that the principles of natural justice could not
be followed because issues concerning national security were involved:
(ⅲ) The Courts have to assess if the departure was justified. For this
purpose, the State must satisfy the Court that firstly, national security is
involved; and secondly, whether on the facts of the case, the
requirements of national security outweigh the duty of fairness. At this
stage, the court must make its decision based on the component of
natural justice that is sought to be abrogated; and
(iv) While satisfying itself of the national security claim, the Courts must
give due weightage to the assessment and the conclusion of the State.
The Courts cannot disagree on the broad actions that invoke national
security concerns – that is, a question of principle such as whether
preparation of terrorist activities by a citizen in a foreign country
amounts to a threat of national security. However, the courts must
review the assessment of the State to the extent of determining whether it
has proved through cogent material that the actions of the aggrieved
person fall within the principles established above.”
91. In Madhyamam (supra), the Supreme Court specifically took note of
the judgment in Ex. Armyman‘s (supra), where it was held by the Supreme
Court that the principles of natural justice may be excluded when on the
facts of the case, national security concerns outweigh the duty of fairness. It
was specifically noted by the Supreme Court in Madhyamam (supra), that
national security is one of the few grounds on which “the right to reasonable
procedural guarantee” may be restricted. It was observed as under:
“75. The contention of the respondent that the judgment of this Court in
Ex-Armymen’s Protection Services (supra) held that the principles of
natural justice shall be excluded when concerns of national security are
involved is erroneous. The principle that was expounded in that case
was that the principles of natural justice may be excluded when on the
facts of the case, national security concerns outweigh the duty of
fairness. Thus, national security is one of the few grounds on which the
right to a reasonable procedural guarantee may be restricted. The mere
involvement of issues concerning national security would not preclude
the state’s duty to act fairly. If the State discards its duty to act fairly,
then it must be justified before the court on the facts of the case. Firstly,Signature Not Verified
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the State must satisfy the Court that national security concerns are
involved. Secondly, the State must satisfy the court that an abrogation of
the principle(s) of natural justice is justified. These two standards that
have emerged from the jurisprudence abroad resemble the
proportionality standard. The first test resembles the legitimate aim
prong, and the second test of justification resembles the necessity and
the balancing prongs.”
92. It is, therefore, evident that in Madhyamam (supra), the Supreme
Court has recognized in unmistakable terms that the principles of natural
justice may be excluded when national security concerns outweigh the duty
of fairness.
93. Importantly, in Madhyamam (supra), the Supreme Court also
recognized that for the purpose of assessing whether national security
considerations are involved, the Court applies the “reasonable prudent
person standard”, which is one of the lowest standards to test reasonableness
of the action. The Supreme Court expressly recognised that the State is best
placed to decide how the interest of national security would be served. The
Court would not “second guess” the assessment of the State “that the
purpose identified would violate India’s national security”. It was held that
due deference would be given to the State to form its opinion; the same is
subject to review on the limited ground of whether there is nexus between
the material and the opinion/conclusion. It was specifically observed that it
is the executive wing and not the judicial wing that has the knowledge of
India’s geo-political relationships to assess if an action is in the interest
of India’s national security. The relevant observations of the Supreme
Court are as under:
“…..The reasonable prudent person standard which is one of the lowest
standards to test the reasonableness of an action is used to test national
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deferential perception towards such claims. This is because courts
recognise that the State is best placed to decide if the interest of national
security would be served. The court allows due deference to the State to
form its opinion but reviews the opinion on limited grounds of whether
there is nexus between the material and the conclusion. The Court
cannot second-guess the judgment of the State that the purpose
identified would violate India’s national security. It is the executive wing
and not the judicial wing that has the knowledge of India’s geo-political
relationships to assess if an action is in the interest of India’s national
security.”
94. At the same time, the Supreme Court clarified that judicial review
would not be excluded on a mere mention of the phrase “national security”.
The State cannot be allowed to use national security as a tool to deny
citizens remedies that are provided under law.
95. The Supreme Court cited the judgment in Manoharlal Sharma vs.
Union of India, 2021 SCC OnLine SC 985, where it was held by the
Three-judge Bench that although the extent of judicial review in matters
concerning national security is limited, it does not mean that the State gets a
“free pass” every time the argument of national security is made.
96. In Madhyamam (supra), the Supreme Court has also considered in
considerable detail, the procedure to be adopted by the Court for assessing/
adjudging an action taken on the basis of national security considerations. In
particular, whether and under what circumstances, is it permissible for a
Court to accept the materials in sealed cover. It was noticed by the Supreme
Court that under normal circumstances, accepting the documents in a sealed
cover would offend the concept of “open justice”. It was observed by the
Supreme Court that a Court should endeavour to adopt a least restrictive
method for the purpose of deciding claims involving invocation of
confidentiality on the ground of national security.
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97. While discussing the least restrictive means that could be resorted to,
the Court referred in considerable detail, to the procedure adopted for the
purpose of public interest immunity claims. However, it was noticed by the
Court that in the context of both “sealed cover procedure” and “public
interest immunity claims”, the documents that are sought to be withheld
from disclosure, are not revealed to the counsel for the applicant. The
proceedings in effect are conducted ex-parte where the counsel of the party
claiming disclosure is precluded from assessing a part of the record in the
proceedings. It was noticed that the crucial difference between sealed cover
procedure and public interest immunity claims is that in the former, the
Court relies on the material that is disclosed in a sealed cover, in the course
of proceedings, as opposed to the latter, where the documents are completely
removed from the proceedings, and the parties as well as the adjudicator,
cannot rely thereon. It was observed as under:
“146. In both the sealed cover procedure and public interest immunity
claims, the documents that are sought to be withheld from disclosure are
not revealed to the counsel for the applicant. The proceedings, in effect,
are conducted ex-parte where the counsel for the party claiming
disclosure is precluded from accessing a part of the record in the
proceedings. However, one crucial difference between the sealed cover
procedure and public interest immunity claims is that in the former, the
court relies on the material that is disclosed in a sealed cover in the
course of the proceedings, as opposed to the latter where the documents
are completely removed from the proceedings and both the parties and
the adjudicator cannot rely on such material. Sealed cover procedures
violate both principles of natural justice and open justice……..”
98. The Court reached the conclusion that the procedure adopted in
“public interest immunity proceedings”, is a less restrictive means to deal
with non-disclosure on the grounds of confidentiality in public interest.
Finally, the Court considered whether the procedure of submission of
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confidential documents in “sealed cover” can be used at all and if so, under
what circumstances. It was finally held as under:
“158……..While it would be beyond the scope of this judgment to lay
down the possible situations when the sealed cover procedure can be
used, it is sufficient to state that if the purpose could be realised
effectively by public interest immunity proceedings or any other less
restrictive means, then the sealed cover procedure should not be
adopted. The court should undertake an analysis of the possible
procedural modalities that could be used to realise the purpose, and the
means that are less restrictive of the procedural guarantees must be
adopted.”
99. It is also noticed that in Madhyamam (supra), the Court while citing
with approval the judgment of the House of Lords in Conway v. Rimmer,
(1968) AC 910 has observed as under –
“123 The House of Lords altered its approach in Conway v. Rimmer.
Lord Reid observed that that impact of non-disclosure must not be
viewed through the narrow lens of private interest and it is public
interest in the administration of justice that is injured due to
non-disclosure of documents. The House of Lords established three
principles of seminal importance. Firstly, the power to decide if evidence
has to be withheld from the court resides with the court and not the
executive. Secondly, the court while exercising this power must balance
the potential harm to the public interest due to disclosure with the court’s
inability to administer justice. The Court while determining the later
harm must assess the effect of non-disclosure on ascertaining the ‘true
facts’ and on the wider principle of public confidence in the court system.
Thirdly, the court is entitled to inspect, in private, the material on which
immunity is claimed. On scrutinising the material, the court has to
determine if non-disclosure is necessary due to public interest, and not
merely advantageous to the functioning of public service. Lord Hudson
held that the Court in its scrutiny must discard the generalities of classes
and must weigh the injuries to the public ‘of a denial of justice on the one
side and, on the other, a revelation of governmental documents which
were never intended to be made public and which might be inhibited by
an unlikely possibility of disclosure.’ The conflict of the claims of public
interest must be determined based on the importance of the documents
sought to be withheld in the case before the court (a question of
outcome), and whether the non-disclosure would result in a ‘complete’ or
‘partial’ denial of justice (a question of process and outcome).”
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100. In Conway v. Rimmer (supra), it was specifically observed that the
Courts ought not to have any difficulty in appreciating the necessity of
maintaining a cloak of secrecy over documents, the disclosure of which
would imperil the safety of the State. It was also observed as under :-
“It is universally recognised that here there are two kinds of public
interest which may clash. There is the public interest that harm shall not
be done to the nation or the public service by disclosure of certain
documents, and there is the public interest that the administration of
justice shall not be frustrated by the withholding of documents which
must be produced if justice is to be done. There are many cases where the
nature of the injury which would or might be done to the nation or the
public service is of so grave a character that no other interest, public or
private, can be allowed to prevail over it. With regard to such cases it
would be proper to say, as Lord Simon did, that to order production of
the document in question would put the interest of the state in jeopardy.
But there are many other cases where the possible injury to the public
service is much less and there one would think that it would be proper to
balance the public interests involved. I do not believe that Lord Simon
really meant that the smallest probability of injury to the public service
must always outweigh the gravest frustration of the administration of
justice.”
101. The Court also proceeded to make a distinction between routine
communications by Government Department vis-a-vis documents impinging
on the security of the State / national security. It was observed as under:-
“So far as concerns particular documents whose disclosure is said to be
injurious to the public interest the problem is less acute. If the Crown on
the ground of injury to the public objects to the production of the plans of
a submarine, as in Duncan’s case, it is obvious that the court would
accept the matter without further scrutiny. In a less obvious case the
court might require more detailed elaboration by the Crown to show that
what on the face of it seems harmless would in fact be harmful.”
102. Further, it was observed as under:-
“No doubt there are many cases in which documents by their very nature
fall in a class which require protection such as, only by way of example,
Cabinet papers, Foreign Office dispatches, the security of the state, high
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force services. Nearly always such documents would be the subject of
privilege by reason of their contents but by their “class” in any event
they qualify for privilege.”
103. As regards the right of the Court to examine the documents in respect
of which confidentiality is claimed, it was observed in Conway v. Rimmer
(supra) as under:-
“The power of the court must also include a power to examine
documents privately, a power, I think, which in practice should be
sparingly exercised but one which could operate as a safeguard for the
executive in cases where a court is inclined to make an order for
production, though an objection is being pressed.”
104. A Division Bench of this Court in Visuvanathan Rudrakumaran v.
Union of India and Another, 2024 SCC OnLine Del 7512, while
considering the implications of the judgment in Madhyamam (supra), has
observed as under –
“35……………The issue of judicial review in matters concerning national
security, has been recently considered by the Supreme Court
in Madhyamam Broadcasting Ltd. v. Union of India, 2023 SCC OnLine
SC 366. In the said decision, the Supreme Court clearly holds that
national security cannot be raised as a ground to bar judicial review in
each and every case, but the same would be a ground to limit the extent
of judicial review if the Court is convinced from the material furnished
by the Government, that the matter at hand involves genunine national
security concerns. The relevant observations of the Supreme Court are
reproduced hereinunder:
” The issue is not whether the inference that national security
concerns are involved is judicially reviewable. It is rather on the
standard of proof that is required to be discharged by the State to
prove that national security concerns are involved. It is necessary
that we understand the meaning and implications of the term
national security before embarking on an analysis of the issue. This
Court has held that it is not possible to define national security in
strict terms. National security has numerous facets, a few of which
are recognised under Article 19(2) of the Constitution.
In Ex-Armymen’s Protection Services (supra), a two-Judge Bench
of this Court observed that the phrase national security would
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economic stability and strength, ecological balance cultural
cohesiveness and external peace. Justice Patanjali Sastri writing
for the majority in Romesh Thappar v. State of Madras demarcated
the fields of ‘public order’ and ‘security of state’ as they find place
in Article 19 of the Constitution. This Court held that the
expression ‘security of the state’ was defined to include a ‘distinct
category of those offences against public order which aim at
undermining the security of the State or overthrowing it’. In Ram
Manohar Lohia v. State of Bihar, Justice M Hidayatullah (as the
learned Chief Justice then was) distinguished the expressions
‘security of State’, ‘law and order’, and ‘public disorder’. He
observed that disorders affecting the security of State are more
aggravated than disorders that affect public order and law and
order:
55. It will thus appear that just as “public order” in the
rulings of this Court (earlier cited) was said to comprehend
disorders of less gravity than those affecting “security of
State”, “law and order” also comprehends disorders of
less gravity than those affecting “public order”. One has to
imagine three concentric circles. Law and order represents
the largest circle within which is the next circle
representing public order and the smallest circle represents
security of State. It is then easy to see that an act may affect
law and order but not public order just as an act may affect
public order but not security of the State. By using the
expression “maintenance of law and order” the District
Magistrate was widening his own field of action and was
adding a clause to the Defence of India Rules.
94. Thus, the expression national security does not have a fixed
meaning. While courts have attempted to conceptually distinguish
national security from public order, it is impossible (and perhaps
unwise) to lay down a text-book definition of the expression which
can help the courts decide if the factual situation is covered within
the meaning of the phrase. The phrase derives its meaning from the
context. It is not sufficient for the State to identify its purpose in
broad conceptual terms such as national security and public order.
Rather, it is imperative for the State to prove through the
submission of cogent material that non-disclosure is in the interest
of national security. It is the Court’s duty to assess if there is
sufficient material for forming such an opinion. A claim cannot be
made out of thin air without material backing for such a
conclusion. The Court must determine if the State makes the claim
in a bona fide manner. The Court must assess the validity of theSignature Not Verified
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claim of purpose by determining (i) whether there is material to
conclude that the nondisclosure of the information is in the interest
of national security; and (ii) whether a reasonable prudent person
would arrive at the same conclusion based on the material. The
reasonable prudent person standard which is one of the lowest
standards to test the reasonableness of an action is used to test
national security claims by courts across jurisdictions because of
their deferential perception towards such claims. This is because
courts recognise that the State is best placed to decide if the
interest of national security would be served. The court allows
due deference to the State to form its opinion but reviews the
opinion on limited grounds of whether there is nexus between the
material and the conclusion. The Court cannot second-guess the
judgment of the State that the purpose identified would violate
India’s national security. It is the executive wing and not the
judicial wing that has the knowledge of India’s geo-political
relationships to assess if an action is in the interest of India’s
national security.”
36. In Madhyamam (supra), the earlier decision of the Supreme Court
in Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985,
was considered, and the parameters of judicial review in matters
concerning national security were laid down as extracted above.”
APPLICABILITY OF THE AFORESAID PRINCIPLES IN THE
PRESENT CASE
105. In the present case, at the very outset, during the proceedings held on
22.05.2025, this Court directed the respondents to produce the relevant
inputs/information on the basis of which the security clearance of the
petitioners was sought to be revoked, without complying with the principles
of natural justice. This was in consonance with the observations of the
Supreme Court in Ex. Armyman‘s (supra), in which it was held that it is
incumbent upon the Court to call for the relevant records and scrutinize the
same to satisfy itself that issues of national security are involved. Even in
terms of Madhyamam (supra), the Court is entitled to peruse the record to
ascertain existence of legitimate national security considerations. It has also
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been observed in Madhyamam (supra)9 that “it does not mean that the State
gets a free pass every time an argument of national security is made”. This
Court is acutely conscious that the State must not be allowed to invoke
national security as a ruse to deny procedural due process.
106. On perusal of the relevant inputs/information, it indeed transpires that
there are compelling national security considerations involved, which
impelled the respondents to take impugned action. While it would not be
inappropriate for this Court to make a verbatim reference to the relevant
information/inputs, suffice it to say, that there is a necessity to eliminate the
possibility of espionage and/or dual use of logistics capabilities which would
be highly detrimental to the security of the country, especially in the event
of an external conflict.
107. Suffice it also to say, that there are impelling geo-political
considerations, impinging upon the safety of the country, which are also
involved. Madhyamam (supra) specifically recognizes that “it is the
executive wing and not the judicial wing that has the knowledge of India’s
geopolitical relationships to assess if an action is in the interest of India’s
national security” [Paragraph 84 of the Madhyamam (supra)].
108. As per settled law (as noticed hereinabove), once national security
considerations are found to exist, on the basis of which the security
clearance has been cancelled/revoked, it is not for the Court to “second
guess” the same.
109. It is also evident that in the given factual conspectus, even applying
the principle of “proportionality” and/or the least restrictive mean/s, there
was really no occasion to make the impugned action contingent upon
9
Relying upon Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985
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adherence to the principles of natural justice, or any procedural exercise
which would detract from the necessity to take swift action. There is
considerable body of judicial dicta to the effect that the State is well within
its rights to take pre-emptive measures to protect and preserved national
security.
110. No doubt, the principles of natural justice are sacrosanct; however, it
is a compelling constitutional truth that security of the realm is the
pre-condition for enjoyment of all other rights. The State/respondents are
indeed justified in taking prompt and definitive action so as to completely
obviate the possibility of country’s civil aviation and national security being
compromised. Ground handling services at airports offer deep access to
airside operations, aircrafts, cargo, passenger information system and
security zones. Such unbridled access to vital installations and infrastructure
naturally elevates the need for strict security vetting for operators, and their
foreign affiliations. This is particularly true in the wake of contemporary
challenges faced by the country in the security domain, and the
escalations/incidents witnessed in the recent past, with geopolitical factors at
play. As has been observed in Conway v. Rimmer (supra) :-
“In theory any general legal definition of the balance between
individual justice in one scale and the safety and well-being of the state
in the other scale, should be unaffected by the dangerous times in which
it is uttered. But in practice the flame of individual right and justice
must burn more palely when it is ringed by the more dramatic light of
bombed buildings. And the human mind cannot but be affected
subconsciously, even in generality of definition, by such a contrast since
it is certainly a matter which ought to influence the particular decision
in the case.”
111. The action taken is consistent with the judicially evolved principles,
recognized across jurisdictions, which give primacy to legitimate national
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security considerations, even when weighed against the procedural due
process.
112. This Court also has no difficulty in appreciating the necessity of
maintaining secrecy in respect of document/s on the basis of which the
security clearance of the petitioners has been revoked inasmuch as the
disclosure of the same would not be conducive to security and safety
considerations and international relations.
113. In the present case, the twin tests set out in Para 74 and 75 of the
Madhyamam (supra), are satisfied viz. (i) the State has satisfied that the
national security considerations are involved (ii) the State has satisfied that
the abrogation of principles of natural justice is justified.
114. As far as accepting the report of the concerned agency in a sealed
cover is concerned, this Court finds that resorting to any other less restrictive
means was not possible in the facts and circumstances of the present case.
Given the highly sensitive nature of the material/ apprehension, there is no
scope for this Court in these proceedings to either remove the same from the
zone of consideration altogether or to provide a copy thereof to the
petitioners, or to any amicus curie for that matter [which is one of the “less
restrictive” means referred to in Para 171 10 and 172 11 of Madhyamam
10
171. ……….To safeguard the claimant against a potential injury to procedural guarantees in public interest
immunity proceedings, we have recognised a power in the court to appoint an amicus curiae. The appointment of
an amicus curiae will balance concerns of confidentiality with the need to preserve public confidence in the
objectivity of the justice delivery process.
11
172 The amicus curiae appointed by the Court shall be given access to the materials sought to be withheld by
the State. The amicus curiae shall be allowed to interact with the applicant and their counsel before the
proceedings to ascertain their case to enable them to make effective submissions on the necessity of disclosure.
However, the amicus curiae shall not interact with the applicant or their counsel after the public interest
immunity proceeding has begun and the counsel has viewed the document sought to be withheld. The amicus
curiae shall to the best of their ability represent the interests of the applicant. The amicus curiae would be bound
by oath to not disclose or discuss the material with any other person, including the applicant or their counsel.
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(supra)].
115. The petitioners have pitched their case only on the denial of principles
of natural justice, which according to the petitioners, by itself, and without
anything more, vitiates the impugned action. In view of the settled legal
position as adverted to hereinabove, this contention is rejected.
STATUTORY REQUIREMENT UNDER RULE 12 OF THE 2023
RULES.
116. Strong reliance has been placed on behalf of the petitioners on Rule
12 of the 2023 Rules, which provides as under:
“12. Power to suspend or cancel security clearance and security
programme.–(1) The Director General, after giving the entity an
opportunity of being heard, and for reasons to be recorded in writing, may
suspend for a period not exceeding one year or cancel or impose
conditions in respect of any security clearance granted or security
programme approved under these rules, where he has any reasonable
grounds to believe and considers such action necessary, in the interests of
national security or civil aviation security or if the entity has contravened
or failed to comply with any condition of security clearance or security
programme or provision of these rules.
(2) After conducting an enquiry by an officer authorised by the Director
General, the suspension may be revoked or the security clearance or
security programme may be cancelled.”
117. It is contended that since the statutory rule itself contemplates that the
cancellation of security clearance must be preceded by an opportunity of
hearing, it is impermissible to take any action in disregard of the said
procedure. The said argument is misconceived.
118. In Ex Armyman‘s (supra), it has been expressly observed that in a
situation involving national security, a party cannot insist for a strict
observation of principles of natural justice and that in such cases, it is the
duty of this Court to read into and provide for statutory exclusion if not
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expressly provided for in the rules governing the field.
119. The above observations to the effect that “statutory exclusion” must
be read into the rules, have been cited with approval by Supreme Court in
Digi Cable (supra)12, Madhyamam (supra)13 and Justice KS Puttaswamy
(5J) v. Union of India (supra)14 and by this Court in Sublime Software
12
15. In somewhat similar circumstances, this Court while repelling this submission laid down the
following principles of law in Ex-Armymen’s Protection Services (P) Ltd. v. Union of India
[Ex-Armymen’s Protection Services (P) Ltd. v. Union of India, (2014) 5 SCC 409] in paras 16 and 17
which read as under: (SCC p. 416)
“16. What is in the interest of national security is not a question of law. It is a matter of policy. It
is not for the court to decide whether something is in the interest of the State or not. It should be
left to the executive. To quote Lord Hoffman in Secy. of State for Home Deptt. v. Rehman
[Secy. of State for Home Deptt. v. Rehman, (2003) 1 AC 153 : (2001) 3 WLR 877 (HL)] : (AC
p. 192C)
’50. … [in the matter] of national security is not a question of law. It is a matter of judgment and
policy. Under the Constitution of the United Kingdom and most other countries, decisions as to
whether something is or is not in the interests of national security are not a matter for judicial
decision. They are entrusted to the executive.’
17. Thus, in a situation of national security, a party cannot insist for the strict observance of the
principles of natural justice. In such cases, it is the duty of the court to read into and provide for
statutory exclusion, if not expressly provided in the rules governing the field. Depending on the
facts of the particular case, it will however be open to the court to satisfy itself whether there
were justifiable facts, and in that regard, the court is entitled to call for the files and see whether
it is a case where the interest of national security is involved. Once the State is of the stand that
the issue involves national security, the court shall not disclose the reasons to the affected party.”
16. Having perused the note filed by the Union of India, which resulted in cancellation of permission, we
are of the considered opinion that in the facts of this case, the appellant was not entitled to claim any prior
notice before passing of the cancellation order in question.
13
(c) The judgments of this court in Ex-Armymen’s Protection Services (supra) and Digi Cable Network
(supra) held that the principles of natural justice may be excluded when on the facts of the case, national
security concerns overweigh the duty of fairness;
14
407. We may point out that this Court has held in Ex-Armymen’s Protection Services (P) Ltd. v. Union
of India that what is in the interest of national security is not a question of law but it is a matter of policy.
We would like to reproduce the following discussion therefrom : (SCC p. 416, paras 16-17)
“16. What is in the interest of national security is not a question of law. It is a matter of policy. It
is not for the court to decide whether something is in the interest of the State or not. It should be
left to the executive. To quote Lord Hoffman in Secy. of State for Home Deptt. v. Rehman : (AC
p. 192-C, para 50)
’50. … [in the matter] of national security is not a question of law. It is a matter of judgment and
policy. Under the Constitution of the United Kingdom and most other countries, decisions as to
whether something is or is not in the interests of national security are not a matter for judicial
decision. They are entrusted to the executive.’
17. Thus, in a situation of national security, a party cannot insist for the strict observance of the
principles of natural justice. In such cases, it is the duty of the court to read into and provide for
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(supra) 15.
120. Also, it has been rightly pointed out by the learned Solicitor General
that Rule 12 does not expressly provide for any consequence of
non-compliance with the requirement to afford a hearing.
121. In De Smith’s Judicial Review (Sixth Edition), it has been stated as
under –
“In order to decide whether a presumption that a provision is
“mandatory” is in fact rebutted, the whole scope and purpose of the
enactment must be considered, and one must assess “the importance of
the provision that has been disregarded, and the relation of that
provision to the general object intended to be secured by the Act”.
122. This Court is of the considered view that interpreting Rule 12 as
mandating a pre-decisional hearing in every case, regardless of the nature of
security concerns, would frustrate the very objective for which the Director
General of the Bureau of Civil Aviation Security has been vested with powers
to issue directions/orders in the interest of national and civil aviation security.
The imperative to act swiftly and decisively in urgent/emergent situations,
would be seriously undermined by such an interpretation.
123. It is also notable that the impugned action taken by the Director
General of Bureau of Civil Aviation is also consistent with the stipulation
incorporated in the communication whereby the security clearance of the
petitioners was renewed on 21.12.2022, wherein it was expressly provided
as under:
statutory exclusion, if not expressly provided in the rules governing the field. Depending on the
facts of the particular case, it will however be open to the court to satisfy itself whether there
were justifiable facts, and in that regard, the court is entitled to call for the files and see whether
it is a case where the interest of national security is involved. Once the State is of the stand that
the issue involves national security, the court shall not disclose the reasons to the affected party.”
15
12….As held by the Apex Court in Ex-Armymen’s Protection Services (supra) the principles of natural
justice can be given a go-by in the matters related to security and sovereignty of the country….
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“9. Director General, BCAS reserves the right to revoke this security
clearance at any time without assigning any reasons thereof, in the
interest of national/ civil aviation security.”
124. Also, the authority and the statutory mandate to take the impugned
action also flows from Section 6 of the 2024 Act, in which it has been
specifically provided as under:-
“6. (1) The Director General of Bureau of Civil Aviation Security or any
other officer specially empowered in this behalf by the Central
Government may, from time to time, by order, issue directions,
consistent with the provisions of this Act and the rules made thereunder,
with respect to any of the matters specified in clauses (i), (j), (o), (ze),
and (zg) of sub-section (2) of section 10, to any person or persons using
any aerodrome, or engaged in the aircraft operations, air traffic
control, maintenance and operation of aerodrome, or safeguarding civil
aviation against acts of unlawful interference, in any case where the
Director General of Bureau of Civil Aviation Security or such other
officer is satisfied that in the interests of the security of India or to
ensure security of civil aviation operations, it is necessary so to do.
(2) Every person to whom the order is issued under sub-section (1) shall
comply with such order.”
125. A bare reading of the aforesaid provision makes it clear that the power
conferred by the aforesaid statutory provision is peremptory and not
contingent or depending on any statutory rules including Rule 12 of the
2023 Rules.
126. Section 6 makes it obligatory on the Director General of Bureau of
Civil Aviation to issue any direction/order for the purpose of safeguarding
and securing the civil aviation operations and in the interest of security of
India.
127. It has been rightly pointed out by the learned Solicitor General that
the same is also mandated under India’s international obligation under
Annexure 17 of the Convention on International Civil Aviation which
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mandates the contracting States to ensure civil aviation security, including
control of access to restrictive areas and background checks of individual. In
the context of a ground/cargo handling agency, with access to sensitive areas
of airport/s which operates in a sensitive domain, any national security
concerns would inherently necessitate swift executive action.
128. The relevant extract of Annexure 17 of the Convention on
International Civil Aviation is reproduced as under:-
“2.1 Objectives
2.1.1 Each Contracting State shall have as its primary objective the
safety of passengers, crew, ground personnel and the general public in
all matters related to safeguarding against acts of unlawful interference
with civil aviation.
2.1.2 Each Contracting State shall establish an organization and develop
and implement regulations, practices and procedures to safeguard civil
aviation against acts of unlawful interference taking into account the
safety, regularity and efficiency of flights.
2.1.3 Each Contracting State shall ensure that such an organization and
such regulations, practices and procedures:
a) protect the safety of passengers, crew, ground personnel and the
general public in all matters related to safeguarding against acts of
unlawful interference with civil aviation; and
b) are capable of responding rapidly to meet any increased security
threat.
2.1.4 Each Contracting State shall ensure appropriate protection of
sensitive aviation security information.
4.2 Measures relating to access control
4.2.1 Each Contracting State shall ensure that the access to airside areas
at airports serving civil aviation is controlled in order to prevent
unauthorized entry.
4.2.2 Each Contracting State shall ensure that security restricted areas
are established at each airport serving civil aviation designated by the
State based upon a security risk assessment carried out by the relevant
national authorities.
4.2.3 Each Contracting State shall ensure that identification systems are
established and implemented in respect of persons and vehicles in order
to prevent unauthorized access to airside areas and security restricted
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areas. Access shall be granted only to those with an operational need or
other legitimate reason to be there. Identity and authorization shall be
verified at designated checkpoints before access is allowed to airside
areas and security restricted areas.
4.2.4 Each Contracting State shall ensure that the movement of persons
and vehicles to and from the aircraft is supervised in security restricted
areas in order to prevent unauthorized access to aircraft.
4.2.5 Each Contracting State shall establish measures to ensure that
persons other than passengers, together with items carried, are screened
prior to entry into airport security restricted areas.
4.2.6 Each Contracting State shall ensure the use of appropriate
screening methods that are capable of detecting the presence of
explosives and explosive devices carried by persons other than
passengers on their persons or in their items carried. Where these
methods are not applied continuously, they shall be used in an
unpredictable manner.
4.2.7 Each Contracting State shall ensure that vehicles being granted
access to security restricted areas, together with items contained within
them, are subject to screening or other appropriate security controls in
accordance with a risk assessment carried out by the relevant national
authorities.”
129. Any action taken by the Director General of the Bureau of Civil
Aviation for the purpose of revocation of any security clearance on the basis
of inputs received from the law enforcement/intelligence agency cannot be
considered to be an act inconsistent with the Aircrafts Rules 2023, contrary
to what has been contended on behalf of the petitioners.
130. Section 6 cannot be interpreted in a manner which divests the Director
General of the Bureau of Civil Aviation Security of the authority to take
emergent action, even if warranted, based on security considerations. Such
an interpretation, as canvassed on behalf of the petitioners would completely
defeat the purpose of the statutory stipulation.
131. In, P. Nirathilingam v. Annaya Nadar and Others, (2001) 9 SCC
673, the Court has observed as under –
“20. The principle is well settled that an interpretation of the statutory
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enacted should be avoided.”
132. In Tata Power Company Limited v. Reliance Energy Limited and
Others, (2009) 16 SCC 659, while emphasising upon the purposive
interpretation of the statute the Court had observed as under –
“Purposive construction
101. Legislation has an aim, it seeks to obviate some mischief, to supply an
inadequacy, to effect a change of policy, to formulate a plan of
Government. That aim, that policy is not drawn like nitrogen, out of air; it
is evidenced in the language of the statute, as read in the light of other
external manifestations of purpose. [See Justice Frankfurter, “Some
Reflextions on the Reading of Statutes”, 47 Columbia LR 527, at p. 538
(1947), Union of India v. Ranbaxy Laboratories Ltd. and D. Purushotama
Reddy v. K. Sateesh.]
Analysis
102. In this case the relevance of chapter heading is more for the purpose
of arriving at a conclusion as to whether the arrangement and scheme of
the statute is such that it can be said be relatable to different types of
licensees on the one hand and a generating company which does not
require a licence on the other. If by reason of a provision of a statute the
generating companies are excluded from the licensing provisions, one of
the principal tools of interpretation is that the mischief which was sought
to be remedied may not be brought back by a side door. It has to be borne
in mind that if the licence raj is brought back through the side door or
regulations seeking to achieve the same purpose which Parliament
intended to avoid, there would be a possibility of misinterpretation and
misapplication of statute. For the said purpose even the history of the Act
may be noticed. It is from this point of view that the ambiguity, if any, must
be found out.”
133. To read Rule 12 as mandating any inflexible procedural
requirement/s, even in cases involving emergent national security
considerations, would defeat the purpose of the Rule. Such an approach not
only disregards the purpose behind vesting wide and immediate powers in
the Director General but also impedes the fulfilment of India’s international
obligations under the Convention on International Civil Aviation.
Accordingly, such an interpretation deserves to be rejected.
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134. It has also been contended on behalf of the petitioners that the power
to issue directions under the present legislation, as also under legislations
such as the DDA Act 1957, NDMC Act, 1994 and U.P. Urban Planning and
Development Act, 1973, permits only generic directions for the purpose of
administrative actions/ fulfilling the purpose of the legislation/s, and does
not extend to taking specific measures against any particular
individual/entity in a particular factual conspectus. The said contention is
misconceived given the language, framework and context of the concerned
statutory provision/s. The statutory provisions referred to by the petitioners
are not couched in the same language as in terms of Section 6 of the 2024
Act.
135. In context of DDA Act 1957, specific reliance has been placed on the
following observation of the Court in Poonam Verma and Ors. Vs.Delhi
development Authority (2007) 13 SCC 154 –
“13. Having failed to establish any legal right in themselves as also
purported deficiency in services on the part of the respondent before
competent legal forums, they took recourse to remedies on administrative
side which stricto sensu were not available. It has not been shown as to
on what premise the Central Government can interfere with the
day-to-day affairs of the respondent. Section 41 of the Act, only envisages
that the respondent would carry out such directions that may be issued
by the Central Government from time to time for the efficient
administration of the Act. The same does not take within its fold an order
which can be passed by the Central Government in the matter of
allotment of flats by the Authority. Section 41 speaks about policy
decision. Any direction issued must have a nexus with the efficient
administration of the Act. It has nothing to do with carrying out of the
plans of the authority in respect of a particular scheme.
xxx xxx xxx
15. Evidently, the Central Government had no say in the matter either on
its own or under the Act. In terms of the brochure, Section 41 of the Act
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such a direction.”
136. The said observations are in the context of Section 41 of the DDA
Act ; the same is reproduced as under –
“41. Control by Central Government.–(1) The Authority shall carry out
such directions as may be issued to it from time to time by the Central
Government for the efficient administration of this Act.
(2) If in, or in connection with, the exercise of its powers and discharge of
its functions by the Authority under this Act, any dispute arises between
the Authority and the Central Government the decision of the Central
Government on such dispute shall be final.
[(3) The Central Government may, at any time, either on its own motion or
on application made to it in this behalf, call for the records of any case
disposed of or order passed by the Authority for the purpose of satisfying
itself as to the legality or propriety of any order passed or direction issued
and may pass such order or issue such direction in relation thereto as it
may think fit:
Provided that the Central Government shall not pass an order prejudicial
to any person without affording such person a reasonable opportunity of
being heard.]”
137. A perusal of the above provision makes it evident that it is couched in
general terms. In contrast, Section 6 specifically and expressly empowers
the Director General of BCAS to issue directions/orders to any person in
respect of matters listed under clauses (i), (j), (o), (ze), and (zg) of Section
10(2), where such action is necessary in the interest of national security. It is
a specifically tailored provision designed to address situations involving
national security, vesting authority in the Director General to take remedial/
preventive action.
138. Accordingly, the petitioners’ reliance on statutory provisions in the
DDA Act is misplaced and has no bearing on the present case. Moreover, the
statutory frameworks under the DDA Act, NDMC Act, and U.P. Urban
Planning and Development Act were enacted to govern administrative and
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urban planning functions. These statutes do not contain provisions that
specifically address national security. In contrast, Section 6 specifically
refers to and empower the Director General of Civil Aviation Security to
issue orders/directions to ensure the safe operation of the aerodrome and
safeguarding civil aviation operations in the interest of national security.
139. As such, for all the above reasons, the alleged infraction of Rule 12 of
Aircraft (Security) Rules, 2023, cannot impinge upon the validity of the
impugned action.
CONCLUSION
140. For the above reasons, I find no merit in the present petitions; the
same are consequently dismissed. Pending applications also stand dismissed.
SACHIN DATTA, J
JULY 7, 2025/at/sv
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