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
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 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
concerned.”
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 :
President
Vice-President
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
supplied)
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
Governments.
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
proceeding.
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.
.........................................CJI
[T S
THAKUR]
…..........................................J
[Dr D Y
CHANDRACHUD]
..............................................J
[L NAGESWARA
RAO]
New Delhi
December 14, 2016
-----------------------
[1] [2] Circular 12 of 2002
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
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 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
concerned.”
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 :
President
Vice-President
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
supplied)
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
Governments.
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
proceeding.
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.
.........................................CJI
[T S
THAKUR]
…..........................................J
[Dr D Y
CHANDRACHUD]
..............................................J
[L NAGESWARA
RAO]
New Delhi
December 14, 2016
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[1] [2] Circular 12 of 2002
