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Monday, December 19, 2016



                                     IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL Nos. 717 OF 2006

UNION OF INDIA                      .....APPELLANT


RAJASTHAN HIGH COURT & ORS                       .....RESPONDENTS


                           T.P.(C) No. 75 of 2012

                               J U D G M E N T


            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 security checks” at  airports  and  to
amend a circular dated 1  May  2002[1]  of  the  Bureau  of  Civil  Aviation
Security (BCAS).  This exercise was directed to be 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 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 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

5     On 1 May 2002, a circular was  issued  by  BCAS  by  which  the  Union
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 :


Prime Minister

Former Presidents

Speaker of Lok Sabha

Chief Justice of India

Judges of Supreme Court

Union Ministers of Cabinet Rank

Governor of States.

Lt. Governors of Union territories

Chief Ministers of States and Union territories

Ambassadors of foreign countries,  Charge D’Affairs and  High  Commissioners
and their spouses

Cabinet Secretary

Visiting foreign dignitaries of the same status as at SL. No.1 to 3,  5,  6,
8 to 10 above.

SPG Protectees”

All others are subjected to pre-embarkation security checks.

6     On 16 September 2002, the Registrar  General  of  the  Rajasthan  High
Court addressed a communication to the Secretary to the Union government  in
the Ministry of Civil Aviation.  While adverting to the above circular,  the
letter stated that the Chief Justice of the  Rajasthan  High  Court  travels
often by air between Jodhpur and Jaipur  in  connection  with  his  official
duties and  was  being  inconvenienced  by  not  being  exempted  from  pre-
embarkation security checks.  The Registrar General drew  attention  to  the
warrant of precedence.  The relevant part of the letter is  extracted  below
“it may be mentioned here that as per table of precedence (as  published  on
26th July, 1979), the Hon’ble Chief Justice of  the  High  Courts  stand  at
serial No. 14 and Hon’ble Judges of the High Courts stand at serial  at  No.
20 within their  respective  jurisdiction  and  at  serial  No.  17  and  20
respectively outside their respective jurisdiction.  But they have not  been
exempted from pre-embarkation security  checks  at  civil  airports  in  the
country.  It is pertinent to mention here that Hon’ble the Chief Justice  is
a Constitutional Authority and has often to travel by air  from  Jodhpur  to
Jaipur and vice versa in connection with the discharge of the duties of  His
Lordship’s office.  As such non-inclusion of Hon’ble the  Chief  Justice  in
the list of VVIPs/VIPs who have been exempted from pre-embarkation  security
checks at civil airports in the country issued  by  the  Ministry  of  Civil
Aviation, Government of India, New Delhi will cause great  inconvenience  to
His Lordship.
I am, therefore, directed to request  you  kindly  to  amend  the  aforesaid
circular accordingly and also  to  include  Hon’ble  the  Chief  Justice  of
Rajasthan High Court in the list of persons exempting  from  pre-embarkation
security checks in the civil airports in the Country”.

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  and  High
Commissioners and their spouses
 15. Cabinet Secretary
 16. Visiting foreign dignitaries of the same status as at SL.  No.1  to  3,
5, 6, 8 and 9 above.
 15. SPG Protectees”

On 10 August 2005, Circular 32 of 2005 was issued by  BCAS  in  supersession
of an earlier circular by  which  the  following  were  exempted  from  pre-
embarkation security checks  :
            “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. Leader of Opposition in Lok Sabha & Rajya        Sabha
 9.  Union Ministers of Cabinet Rank
10. Deputy Chairman Rajya Sabha and Deputy    Speaker Lok Sabha
11. Governor of States.
12. Chief Ministers of States
13. Chief Justices of the High Courts
14.  Lt. Governors of Union territories
15.  Chief Ministers of Union Territories
16. Ambassadors of  foreign  countries,  Charge         D’Affairs  and  High
Commissioners and their spouses
17. Cabinet Secretary
18.  Visiting foreign dignitaries of the same    status as at  SL.  No.1  to
3, 5, 6, 9 and II above.
19. His Holiness the Dalai Lama
20. SPG Protectees
21. Shri Robert Vadra, while travelling with SPG Protectgees.

By the time that the High Court decided the petition, the Chief Justices  of
the High Courts had been  exempted  from  pre-embarkation  security  checks.
Yet, in its judgment the High Court  issued  a  direction  to  exempt  Chief
Justices and then, also issued a direction to exempt High  Court  judges  as
well :

The High Court held that :
“In not including the Chief Justice and Judges of  the  High  Court  In  the
list  of  persons  exempted  from  pre-embarkation  security   checks,   the
Department of Civil Aviation and Home Affairs have failed  to  maintain  the
status of the Chief Justice and the Judges of  the  High  Court”.  (emphasis

7       The rationale which the High Court indicated was that :

 “Circular of exemption also makes  the  people  believe  that  pre-boarding
frisking of Chief Justices and Judges of the High Court  is  very  necessary
in view of ever  increasing  terrorist  threat  perception.   If  the  Chief
Justices and Judges of the High Court  are  not  subjected  to  pre-boarding
frisking, national security may be  in  danger.   The  Department  of  Civil
Aviation and Home Affairs have evidently failed to realise  the  distinction
between the Constitutional and Statutory  functionaries  and  thus  violated
the directions issued by the Hon’ble Supreme Court in T.N. Seshan Vs.  Union
of India (Supra)”.

The High  Court  indicated  that  in  view  of  the  threat  perception  all
VVIPs/VIPs should  submit  themselves  to  pre-embarkation  security  checks
“without exhibiting their egos” but if certain persons amongst them were  to
be exempted then all constitutional functionaries should be treated at  par.
 The  High  Court  also  proceeded  to  formulate  certain  suggestions  for
formulating a National Security Policy in the following terms :

There should be a clear cut and well thought out National  Security  Policy,
instead of the piece-meal chasing of the ghosts of the past.

A mechanism to task the agencies  in  this  regard  with  proper  powers  of
oversight.  It may be an  individual  or  a  committee  directly  under  the
Hon’ble Prime Minister.

A  single  individual  to  oversee  the  functioning  of  the   intelligence
community, both unformed  and  ununiformed  with  authority  to  demand  the
cooperation of services of the State units, despite the colour of the  State

Procedures to avoid duplication and waste of resources”.

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.

8     The Union government is in appeal.

9     The High Court has evidently transgressed the ‘wise and  self-imposed’
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 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.

10    A suo moto exercise of the nature embarked  upon  by  the  High  Court
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 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  individual
perception of a decision maker on where a balance or  solution  should  lie.
Judges are expected to apply standards which are objective and well  defined
by law and founded upon constitutional principle.  When they do  so,  judges
walk the path on a  road  well-travelled.  When  judicial  creativity  leads
judges to roads less travelled, in search  of  justice,  they  have  yet  to
remain firmly rooted in law and the Constitution.  The  distinction  between
what lies within and what lies outside  the  power  of  judicial  review  is
necessary to preserve the sanctity of judicial  power.   Judicial  power  is
respected and adhered to in a system based on the rule of law precisely  for
its  nuanced  and  restrained  exercise.   If  these  restraints   are   not
maintained the court as an institution would invite a justifiable  criticism
of encroaching upon a terrain on which it  singularly  lacks  expertise  and
which is entrusted for governance to the legislative and executive  arms  of
government. Judgments are enforced, above all, because of the  belief  which
society and arms of governance of a democratic society 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 entered.

11    By the time that the Rajasthan High Court dealt  with  the  case,  the
list of exemptions had been modified  to  include  Chief  Justices  of  High
Courts in the list of persons exempted from pre-embarkation security.   Even
assuming that the intervention of the High Court  in  such  a  matter  could
have been invoked in the first place (though we believe it should  not  have
been) the matter should have rested there.  The  cause  for  which  the  suo
moto writ petition was registered was left behind and the episode which  led
to the invocation of  the  jurisdiction  found  no  place  in  the  ultimate
directions.   The  direction  to  include  judges  of  the  High  Court  was
unrelated to the very basis on which the jurisdiction under Article 226  was
invoked.  But that apart, there is a more fundamental reason  why  the  case
should not have been entertained and directions of this nature ought not  to
have been issued.  Matters of security are not issues of prestige. They  are
not matters of ‘status’. The Union government has adopted the position  that
the issue as  to  whether  pre-embarkation  security  exemptions  should  be
granted does not depend only  on  the  warrant  of  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 for  the  inclusion
of the name of any particular individual in the list of exempted 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
perceptions and ought not to have been interfered with in  the  manner  that
the High Court did in the exercise of its jurisdiction under Article 226.

12    We accordingly allow the Appeal and set aside  the  impugned  judgment
and order of the High Court dated 13 May 2005.   The  writ  petition  before
the High Court shall  accordingly  stand  dismissed.    There  shall  be  no
orders as to costs.

T.P.(C) No. 75 of 2012

13    This transfer petition has been  instituted  by  the  Commissioner  of
Security (Civil Aviation), BCAS.  The transfer petition has  arisen  in  the
context of an order dated 12 May 2011, passed by a  Division  Bench  of  the
Allahabad High Court.  The order of the High Court  has  been  passed  in  a
Special Appeal arising from a judgment and order of a learned  Single  Judge
dated 11 April 2007 in writ petition 1949/S/S/2000.   It  appears  that  the
proceedings before the learned Single Judge  arose  out  of  a  disciplinary

14    The record of the transfer petition indicates that the High  Court  in
the course 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
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.

15    We clarify that we have made no observations on the merits of  Special
Appeal.  The transfer petition is disposed of.

                                                                        [T S

                                                                     [Dr D Y

                                                                [L NAGESWARA

New Delhi
December  14, 2016

[1]   [2] Circular 12 of 2002

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