advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Friday, February 28, 2014

Principles of Natural Justice - verses - National security -Powers of court - Whether any reasonable restriction or limitation or exception to this principle is permissible in the interest of national security, is the issue we are called upon to consider in this case. - Apex court held that 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.= Ex. Armymen’s Protection Services P. Ltd. … APPELLANT (S) VERSUS Union of India and others … RESPONDENT (S)= 2014(Feb.Part) judis.nic.in/supremecourt/filename=41264

   Principles of Natural Justice - verses - National security -Powers of court - Whether any reasonable restriction or limitation or exception to  this principle is permissible in the interest of national security, is  the issue we are called upon to consider in this case. - Apex court held that 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.=

 Natural justice is a principle of universal application.  It  requires
      that  persons  whose  interests  are  to  be  affected  by  decisions,
      adjudicative and administrative, receive a fair and  unbiased  hearing
      before the decisions are made.  
The  principle  is  traceable  to  the
      Fundamental Rights under  Part  III  of  the  Constitution  of  India.
      Whether any reasonable restriction or limitation or exception to  this
      principle is permissible in the interest of national security, is  the
      issue we are called upon to consider in this case.=

The appellant was granted business  of  ground  handling  services  on
      behalf of various airlines at different airports in the  country.  The
      ground handling service is subject  to  security  clearance  from  the
      Central Government.
 On
      27.11.2008, the appellant  company  was  informed  that  the  security
      clearance had been withdrawn in national interest. That was challenged
      by the appellant company before the High Court of Judicature at  Patna
      in CWJC No. 758 of 2009. =
The  BCAS  accordingly  passed  order  dated  20.04.2009,
      holding the view that documents available in the file were  classified
      as ‘secret’ and the same could not be shared with the  appellant  and,
      thus, order dated 27.11.2008 withdrawing the  security  clearance  was
      affirmed. That was challenged by  the  appellant  in  the  High  Court
      leading to judgment dated 27.10.2009.
Single judge of High court allowed the writ and dismissed the order of BCAS
where as
the Division Bench of the High  Court  also
      called for the files and after minute perusal of the  same,  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.”

                                                         (Emphasis supplied)



and thus, the appeal was allowed setting  aside  the  order  passed  by  the
learned Single Judge.

   8. Thus aggrieved, the appellant is before us.
Apex court conclusion 
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.



  18. Be that as it may, on  facts  we  find  that  the  security  clearance
      granted to the appellant by order dated 17.04.2007  for  a  period  of
      five years has already expired. To quote:


           “I am directed to  inform  you  that  background  check  or  the

      company  has  been  conducted  and  nothing  adverse  has  been  found
      Companies security clearance shall be valid for a period of five years
      from the date of this letter at the end of which a fresh  approval  of
      this Bureau is mandatory.”
2014(Feb.Part) judis.nic.in/supremecourt/filename=41264
        SUDHANSU JYOTI MUKHOPADHAYA, KURIAN JOSEPH

                                                   REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CIVIL  APPELLATE  JURISDICTION

                       CIVIL APPEAL NO. 2876    /2014
              [Arising out of S.L.P. (Civil) No. 15000 of 2010]


Ex. Armymen’s Protection Services P. Ltd.    … APPELLANT (S)

                                   VERSUS

Union of India and others                    … RESPONDENT (S)



                               J U D G M E N T


KURIAN, J.:

      Leave granted.


   2. Natural justice is a principle of universal application.  It  requires
      that  persons  whose  interests  are  to  be  affected  by  decisions,
      adjudicative and administrative, receive a fair and  unbiased  hearing
      before the decisions are made.  The  principle  is  traceable  to  the
      Fundamental Rights under  Part  III  of  the  Constitution  of  India.
      Whether any reasonable restriction or limitation or exception to  this
      principle is permissible in the interest of national security, is  the
      issue we are called upon to consider in this case.

   3. The appellant was granted business  of  ground  handling  services  on
      behalf of various airlines at different airports in the  country.  The
      ground handling service is subject  to  security  clearance  from  the
      Central Government. Section 5 of the Aircraft Act, 1934  empowers  the
      Government to make  rules  providing  for  licensing,  inspection  and
      regulation of aerodromes and, thus, Aircraft  Rules,  1937  have  been
      framed. Rule 92 proves for ground handling services. The Rule reads as
      follows:
      “92.  Ground Handling Services-   The licensee shall, while  providing
      ground handling service by itself, ensure a competitive environment by
      allowing the airline operator at the airport to  engage,  without  any
      restriction, any of  the  ground  handling  service  provider  who  is
      permitted by the Central Government to provide such service:


      Provided that such ground handling service provider shall  be  subject
      to the security clearance of the Central Government.”
                                                         (Emphasis supplied)



   4. For processing the security clearance, the Central Government  created
      a Bureau of  Civil  Aviation  Security  (hereinafter  referred  to  as
      ‘BCAS’). As per circular No. 4 of  2007  dated  19.02.2007  issued  by
      BCAS, no ground handling agency  shall  be  allowed  to  work  in  any
      airport without prior  security  clearance  obtained  from  BCAS.  The
      appellant company was granted security clearance for a period of  five
      years w.e.f. 17.04.2007.  On  the  strength  of  such  clearance,  the
      appellant company entered into a contract with  Jet  Airways  for  the
      ground handling services in various  aerodromes  including  Patna.  On
      27.11.2008, the appellant  company  was  informed  that  the  security
      clearance had been withdrawn in national interest. That was challenged
      by the appellant company before the High Court of Judicature at  Patna
      in CWJC No. 758 of 2009. The said writ petition  was  disposed  of  by
      judgment  dated  25.03.2009  directing  the  BCAS  to  afford  a  post
      decisional hearing. There was also  a  direction  that  the  appellant
      should be  furnished  materials  relied  on  by  the  respondents  for
      withdrawal of the security clearance, without disclosing the source of
      information. The  BCAS  accordingly  passed  order  dated  20.04.2009,
      holding the view that documents available in the file were  classified
      as ‘secret’ and the same could not be shared with the  appellant  and,
      thus, order dated 27.11.2008 withdrawing the  security  clearance  was
      affirmed. That was challenged by  the  appellant  in  the  High  Court
      leading to judgment dated 27.10.2009.

   5. The learned Single Judge called for the files and they  were  produced
      in a sealed cover. According to the Single Judge “the information that
      is available is an apology in support of the action. There was nothing
      at all to justify any  such  emergent  action  so  as  to  avoid  pre-
      decisional  hearing”.  The  court  was  also  of  the  view  that  the
      principles of natural justice would have to be read into wherever  any
      administrative action visits a person with civil consequences,  unless
      such procedure is excluded by any Statute.  However,  the  court  also
      held that if there are  justifiable  facts  and  there  is  threat  to
      national security, then, nobody, let alone the court,  can  insist  on
      the compliance of principles of natural justice as a pre condition for
      taking any action resulting even in adverse civil consequences.

   6. Learned Single Judge was also of  the  view  that  at  least  gist  of
      allegations should be disclosed so that the  affected  party  gets  an
      opportunity to meet the same at the time of hearing. In the absence of
      any such justifiable reason, the impugned order was set aside and  the
      writ petition was allowed.

   7. In the intra court appeal, the Division Bench of the High  Court  also
      called for the files and after minute perusal of the  same,  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.”

                                                         (Emphasis supplied)



and thus, the appeal was allowed setting  aside  the  order  passed  by  the
learned Single Judge.

   8. Thus aggrieved, the appellant is before us.

   9. By order dated 17.05.2010, while issuing notice, this Court stayed the
      operation of the impugned judgment of the Division Bench.

  10. Heard the counsels on both sides.  The  learned  Single  Judge,  after
      going through the files, has taken one view and  the  Division  Bench,
      after going through the entire files,  some  of  which  had  not  been
      noticed by the learned Single Judge, has taken another view. We do not
      find it necessary for this Court to go into the  disputed  contentions
      or on the different views taken by the High Court.  We  find  that  on
      principle of law, the High Court, be it  through  the  learned  Single
      Judge or the Division Bench, is of the same  view.  According  to  the
      learned Single Judge, if there  are  justifiable  facts  and  national
      security is threatened, then, a party cannot insist nor any court  can
      insist on compliance of principle of natural justice  as  a  condition
      precedent to take adverse action. Though  in  different  words,  after
      having gone through the entire files, it is the  same  principle  that
      has been restated and reiterated by the Division Bench in the impugned
      judgment.

  11. It is now settled law that there are some special  exceptions  to  the
      principles of natural justice though  according  to                Sir
      William  Wade[1],  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  recognized
      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
      of 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. …”

                                                         (Emphasis supplied)




  12. In Council of Civil Service Union and others v. Minister for the Civil
      Service[2], the House  of  Lords  had  an  occasion  to  consider  the
      question. At page-402, it has been held as follows:


      “… 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 even  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
      ground of national security. …”

                                                         (Emphasis supplied)



  13. The Privy Council in The Zamora[3], held as follows at page-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.”




  14. According to Lord Cross  in  Alfred  Crompton  Amusement  Machines  v.
      Customs and Excise Commissioners (No.2)[4]:

      “… In a case where  the  considerations  for  and  against  disclosure
      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
      effects of non-disclosure. …”




  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 State or not. It should be left to the
      Executive. To quote Lord Hoffman in Secretary of State  for  the  Home
      Department v. Rehman[5]:

      “… 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 interest 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.



  18. Be that as it may, on  facts  we  find  that  the  security  clearance
      granted to the appellant by order dated 17.04.2007  for  a  period  of
      five years has already expired. To quote:


           “I am directed to  inform  you  that  background  check  or  the
      company  has  been  conducted  and  nothing  adverse  has  been  found
      Companies security clearance shall be valid for a period of five years
      from the date of this letter at the end of which a fresh  approval  of
      this Bureau is mandatory.”

                                                         (Emphasis supplied)







  19. In that view of the matter, it has become unnecessary for  this  Court
      to go into more factual details and consideration  of  the  appeal  on
      merits. The same is accordingly disposed of.

  20. There is no order as to costs.



                                         ………..…………………….…..…………J.
                         (SUDHANSU JYOTI MUKHOPADHAYA)


                                       ………….………..…………………………J.
                                   (KURIAN JOSEPH)

New Delhi;
February 26, 2014.































-----------------------
[1]    Administrative Law, 10th Edition, H.W.R. Wade & C.F. Forsyth, Pages-
468-470.
[2]    (1985) AC 374
[3]    (1916) II AC 77
[4]    (1974) AC 405, Page- 434
[5]    (2003) 1 AC 153

-----------------------
10


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.