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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.=

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

———————–
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