UNION OF INDIA vs. RAJASTHAN HIGH COURT .

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos. 717 OF 2006 UNION OF INDIA .....APPELLANT Versus RAJASTHAN HIGH COURT & ORS .....RESPONDENTS WITH T.P.(C) No. 75 of 2012 J U D G M E N T JUDGMENT Dr D Y CHANDRACHUD, J A Division Bench of the Rajasthan High Court by its judgment dated 13 May 2005 issued a direction to the Union Government and to its Secretaries in the Ministries of Civil Aviation and Home Affairs “to include the Chief Justices and the judges of the High Court in the list of persons exempted from pre-embarkation 1 security checks” at airports and to amend a circular dated 1 May 2002 of the Bureau of Civil Aviation Security (BCAS). This exercise was directed to be 1 Circular 12 of 2002 Page 1 2 completed within thirty days. The High Court has directed that certain suggestions formulated by it for laying down a ‘National Security Policy’ should be considered by the Union government. The Union of India moved this Court under Article 136 of the Constitution. Leave has been granted on 20 January 2006, and the judgment of the High Court was stayed. 2 The case before the High Court arose from a report that was published in the daily edition of the Rajasthan Patrika on 10 February 2000, of a breach of security which took place at Sanganer Airport, Jaipur. On 8 February 2000, a person who was to board a flight to Mumbai was detained by airport security staff for carrying a revolver with six live cartridges. He possessed an arms license which had expired. After the passenger was apprehended he was sent to Sanganer police station where the revolver and live cartridges were seized and a First Information Report under the Arms Act was lodged. The passenger left the police station and after dodging the duty officer, boarded the aircraft destined for Mumbai. He was prosecuted for a violation of Sections 21 and 13 of the Arms Act and was eventually JUDGMENT convicted by the Civil Judge and Judicial Magistrate of the first class at Sanganer and sentenced to a fine of rupees one thousand. The accused paid the fine and, as the Additional Superintendent of Police, Immigration states before this Court, the revolver and live cartridges were released. So much for security. 3 The Rajasthan High Court took suo moto cognizance of the news report and a public interest petition was registered. During the course of the hearing, the Division Bench directed the Chief Security Officer of the airport, the Secretary to the Home Department and the Director General of Police to show cause how a security lapse Page 2 3 had occurred. 4 In pursuance of the provisions contained in Section 5(e) of the Aircraft Act, 1934 and Rule 8(a) of the Aircraft Rules, 1957, the Union government has made provisions for security screening in Chapter IV of the National Civil Aviation Security Programme (NCASP). Para 2 deals with pre-embarkation security checks and divides them broadly into three categories : i ) Manual search of hand baggage; ii) Screening of hand baggage through an X-ray baggage inspection system; and iii) Frisking of passengers Paragraph 4.24 contains exemptions and is in the following terms : “4.2.1 Certain categories of VIPs/persons are exempted from frisking and searching, screening of their hand baggage if carried by themselves. The details of the List of such persons have been separately circulated to all concerned.” 5 On 1 May 2002, a circular was issued by BCAS by which the Union JUDGMENT government exempted (as it describes) categories of “VVIPs/VIPs” from pre-embarkation security checks at civil airports in the country. Those exempted are the following : 1) President 2) Vice-President 3) Prime Minister 4) Former Presidents 5) Speaker of Lok Sabha 6) Chief Justice of India 7) Judges of Supreme Court 8) Union Ministers of Cabinet Rank 9) Governor of States. 10) Lt. Governors of Union territories 11) Chief Ministers of States and Union territories Page 3 4 12) Ambassadors of foreign countries, Charge D’Affairs and High Commissioners and their spouses 13) Cabinet Secretary 14) Visiting foreign dignitaries of the same status as at SL. No.1 to 3, 5, 6, 8 to 10 above. 15) SPG Protectees” All others are subjected to pre-embarkation security checks. 6 On 16 September 2002, the Registrar General of the Rajasthan High Court

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In reply, the Ministry of Civil Aviation by its letter dated 24 March 2003, declined to accede to the request after the matter was examined with BCAS. The list of exempted persons, it was stated, was kept to the bare minimum in view of “the ever increasing threat perception”. Subsequently, on 26 March 2004, a security meeting was held in the Union government with the Security Categorisation Committee. In pursuance of this meeting a circular was issued by BCAS by which Chief Justices of High Courts were also included in the list of exempted persons. The list as contained in Circular 2 of 2005 reads as follows : “1. President 2. Vice-President 3. Prime Minister 4. Former Presidents 5. Speaker of Lok Sabha 6. Chief Justice of India 7. Judges of Supreme Court 8. Union Ministers of Cabinet Rank 9. Governors of States 10. Chief Ministers of States 11. Chief Justices of High Courts 12. Lt. Governors of Union territories 13. Chief Ministers of Union territories 14. Ambassadors of foreign countries, Charge D’Affairs JUDGMENT and High Commissioners and their spouses 15. Cabinet Secretary 16. Visiting foreign dignitaries of the same status as at SL.

earlier circular by which the following were exempted from pre-embarkation security

“1. President 2. Vice-President 3. Prime Minister Page 5 6 4. Former Presidents 5. Speaker of Lok Sabha 6. Chief Justice of India 7. Judges of Supreme Court 8. Leader of Opposition in Lok Sabha & Rajya Sabha 9. Union Ministers of Cabinet Rank 10. Deputy Chairman Rajya Sabha and Deputy Speaker

issued a direction to exempt High Court judges as well :

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The petition was thus disposed of directing – (i) the inclusion of the Chief Justices and judges of the High Court in the list of persons exempted from pre-embarkation security checks; (ii) consideration of its observations in regard to the formulation of a National Security Policy.

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restraints (as they are described) on the power of judicial review by entertaining the writ petition and issuing these directions. The cause for invoking its jurisdiction suo moto was a news report in regard to a breach of security at Sanganer airport. Matters of security ought to be determined by authorities of the government vested with the duty and obligation to do so. Gathering of intelligence information, formulation of policies of security, deciding on steps to be taken to meet threats originating both internally and externally are matters on which courts singularly lack expertise. The breach of security at Sanganer airport undoubtedly was an issue of serious concern and would have been carefully investigated both in terms of prosecuting the offender and by revisiting the reasons for and implications of a security lapse of this nature. This exercise was for the authorities to carry out. It was not for the Court in the exercise of its power of judicial review to suggest a policy which it considered fit. The formulation of suggestions by the High Court for framing a National Security Policy travelled far beyond the legitimate domain of judicial JUDGMENT review. Formulation of such a policy is based on information and inputs which are not available to the court. The court is not an expert in such matters. Judicial review is concerned with the legality of executive action and the court can interfere only where there is a breach of law or a violation of the Constitution.

encroaches upon the domain of the executive. In a democracy based on the rule of law, government is accountable to the legislature and, through it, to the people. The powers under Article 226 are wide – wide enough to reach out to injustice wherever Page 8 9 it may originate. These powers have been construed liberally and have been applied expansively where human rights have been violated. But, the notion of injustice is relatable to justice under the law. Justice should not be made to depend upon the

because of the belief which society and arms of governance of a democratic society JUDGMENT hold in the sanctity of the judicial process. This sanctity is based on institutional prestige. Institutional authority is established over long years, by a steadfast commitment to a calibrated exercise of judicial power. Fear of consequences is one reason why citizens obey the law as well as judicial decisions. But there are far stronger reasons why they do so and the foundation for that must be carefully preserved. That is the rationale for the principle that judicial review is confined to cases where there is a breach of law or of the Constitution. The judgment of the Rajasthan High Court is an example of a matter where the court should not have Page 9 10 entered.

exemptions had been modified to include Chief Justices of High Courts in the list of

security exemptions should be granted does not depend only on the warrant of JUDGMENT precedence. Among the factors which are borne in mind is that the person who is exempted from pre-embarkation security checks must, according to the government, be secured by such a level of government security on a 24x7 basis, which would virtually preclude the possibility of any prohibited or dangerous items being introduced on board an aircraft through his or her baggage. The security perception of the Union government is that no exemption can be granted to a dignitary if he/she is not under effective government security coverage on a 24x7 basis. Heads of foreign missions in India are exempted from pre-embarkation security checks on a reciprocal basis. We are not called upon to decide upon the legality or justification Page 10 11

persons in these proceedings. What we have said above is to emphasise that the view of the Union government is based on a considered assessment of security

judgment and order of a learned Single Judge dated 11 April 2007 in writ petition JUDGMENT 1949/S/S/2000. It appears that the proceedings before the learned Single Judge arose out of a disciplinary proceeding.

of the Special Appeal has made certain observations while issuing a notice to the Director General of the Bureau of Civil Aviation Security. Since the High Court has made these observations in a matter which is unrelated to the issue involved in the Special Appeal, we draw the attention of the High Court to the principles enunciated above while disposing of the Civil Appeal filed by the Union government against the Page 11 12 judgment of the Rajasthan High Court. A copy of the above judgment shall be placed on the record of the Special Appeal filed before the High Court. In the event that the Special Appeal still remain on the file of the High Court, the High Court shall proceed to hear and dispose of the Special Appeal accordingly.

New Delhi December 14, 2016 JUDGMENT Page 12