UNION OF INDIA v. RAJASTHAN HIGH COURT & ORS.

UNION OF INDIA v. RAJASTHAN HIGH COURT & ORS.

By:- Haseeb Khan[1]

In The Supreme Court of India

NAME OF THE CASEUnion of India v. Rajasthan High Court & Ors.
CITATIONCIVIL APPEAL No. 717 OF 2006 with T.P.(C) No. 75 of 2012
DATE OF JUDGEMENTDecember 14, 2016
APPELLANTUnion of India
RESPONDENTRajasthan High Court & Ors.
BENCH/JUDGEJustices T.S. Thakur, D.Y. Chandrachud, L. Nageswara Rao
STATUTES/CONSTITUTION INVOLVEDThe Constitution of India, 1950.The Arms Act, 1959.The Aircraft Act, 1934.The Aircraft Rules, 1937.
IMPORTANT SECTIONS/ARTICLESThe Constitution of India, 1950 Articles 136 & 226.The Arms Act, 1959 Sections 13 & 21.The Aircraft Act, 1934 Section 5(2)(e).The Aircraft Rules, 1937 Rule 8(a).

ABSTRACT

The High Court, while disposing off of a public interest litigation (PIL) petition regarding a breach of security which took place at Sanganer Airport, Jaipur, directed the inclusion of the Chief Justices and judges of the High Courts in the list of persons exempted from pre-embarkation security checks and consideration of its observations in regard to the formulation of a National Security Policy.

The matters relating to security ought to be determined by the appropriate authorities of the Government vested with the powers to do so. Furthermore, the formulation of suggestions by the High Court for framing a National Security Policy is not in the domain of judicial review, since the court is not an expert in such matters. Therefore, the Bench noted that if restraints are not maintained, the Court as an institution would invite a justifiable criticism of encroaching upon a terrain on which it particularly lacks expertise and which is entrusted to the legislative and executive arms of the Government.

Judicial review is concerned with the legality of executive action and the court can interfere only in cases where there is an unlawful breach or a violation of the Constitution.

INTRODUCTION

Judicial review is defined as the doctrine under which executive and legislative actions are reviewed by the judiciary. Even though we have in India the principle of separation of powers of the three arms of the State, namely, the executive, the legislative and the judiciary, the judiciary is vested with the power of review over actions of the other two arms.

  1. Judicial review is considered a basic structure of the constitution.
  2. Judicial review is the power of the courts to consider the constitutionality of acts of organs of Government and declare it unconstitutional if it violates or is inconsistent with the basic principles of the Constitution.
  3. This means that the power of the legislature to make laws is not absolute and that the validity and constitutionality of such laws are subject to review by the courts.
  4. Judicial review is also called the interpretational and observer roles of the Indian judiciary.
  5. The Indian Constitution adopted the Judicial Review on lines of the American Constitution.
  6. Suo Moto cases and the Public Interest Litigation (PIL), with the discontinuation of the principle of Locus Standi, have allowed the judiciary to intervene in many public issues, even when there is no complaint from the aggrieved party.

Article 13(2) of the Indian Constitution states:

“The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”

Judicial review is called upon to ensure and protect Fundamental Rights which are guaranteed in Part III of the Constitution. The power of the Supreme Court of India to enforce these Rights is derived from Article 32 of the Constitution. This provides citizens the right to directly approach the Supreme Court to seek remedies against the violation of Fundamental Rights.

FACTS OF THE CASE

A Division Bench of the Rajasthan High Court by its judgment dated 13 May 2005[2] 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 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.

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.

The Rajasthan High Court took suo moto cognizance of the news report and a public interest litigation 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. 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 :

  1. Manual search of hand baggage;
  2. Screening of hand baggage through an X-ray baggage inspection system; and
  3. Frisking of passengers.

ISSUES RAISED BEFORE THE COURT

  1. Whether the Chief Justices and Judges of the High Court ought to be exempted from pre-embarkation security checks?
  2. Whether Section 5(e) of the Aircraft Act, 1934 and Rule 8(a) of the Aircraft Rules, 1937 infringe the Constitution of India?

ARGUMENTS FROM THE APPELLANT SIDE

  1. The learned counsel for the appellant argued that the Chief Justices and judges of the High courts should not be exempted from pre-embarkation security checks at airports.
  2. Furthermore, the learned counsel stated that Section 5(e) of the Aircraft Act, 1934 and Rule 8(a) of the Aircraft Rules, 1937 are fully constitutional and in no way infringe the Constitution.

ARGUMENTS FROM THE RESPONDENT SIDE

  1. The learned counsel for the appellant argued that the Chief Justices and judges of the High courts should be exempted from pre-embarkation security checks at airports and 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.
  2. The learned counsel also contradicted the arguments of the appellant by stating that Section 5(e) of the Aircraft Act, 1934 and Rule 8(a) of the Aircraft Rules, 1937 are unconstitutional and infringe the Indian Constitution.

RELATED PROVISIONS

The Constitution of India, 1950

  • “Article 136. Special leave to appeal by the Supreme Court.[3]
    • Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
    • Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.”
  • “Article 226. Power of High Courts to issue certain writs.[4]
    • Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
    • The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
    • Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without
      • furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
      • giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favor such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed off, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated.
    • The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause (2) of Article 32.”

The Arms Act, 1959

  • “Section 13. Grant of licenses.[5]
    • An application for the grant of a license under Chapter II shall be made to the licensing authority and shall be in such form, contain such particulars and be accompanied by such fee, if any, as may be prescribed.
    • On receipt of an application, the licensing authority shall call for the report of the officer in charge of the nearest police station on that application, and such officer shall send his report within the prescribed time.
    • The licensing authority, after such inquiry, if any, as it may consider necessary, and after considering the report received under sub-section (2), shall, subject to the other provisions of this Chapter, by order in writing either grant the license or refuse to grant the same: Provided that where the officer in charge of the nearest police station does not send his report on the application within the prescribed time, the licensing authority may, if it deems fit, make such order, after the expiry of the prescribed time, without further waiting for that report.
    • The licensing authority shall grant—
      • a license under section 3 where the license is required—
        • by a citizen of India in respect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or sport or in respect of a muzzle loading gun to be used for bona fide crop protection: Provided that where having regard to the circumstances of any case, the licensing authority is satisfied that a muzzle loading gun will not be sufficient for crop protection, the licensing authority may grant a license in respect of any other smooth bore gun as aforesaid for such protection; or
        • in respect of a point 22 bore rifle or an air rifle to be used for target practice by a member of a rifle club or rifle association licensed or recognized by the Central Government;
      • a license under section 3 in any other case or a license under section 4, section 5, section 6, section 10 or section 12, if the licensing authority is satisfied that the person by whom the license is required has a good reason for obtaining the same.”
  • “Section 21. Deposit of arms, etc., on possession ceasing to be lawful.[6]
    • Any person having in his possession any arms or ammunition the possession whereof has, in consequence of the expiration of the duration of a license or of the suspension or revocation of a license or by the issue of a notification under section 4 or by any reason whatever, ceased to be lawful, shall without unnecessary delay deposit the same either with the officer in charge of the nearest police station or subject to such conditions as may be prescribed, with a licensed dealer or where such person is a member of the armed forces of the Union, in a unit armory. Explanation.—In this sub-section “unit armory” includes an armory in a ship or establishment of the Indian Navy.
    • Where arms or ammunition have or has been deposited under sub-section (1) the depositor or in the case of his death, his legal representative, shall, at any time before the expiry of such period as may be prescribed, be entitled—
      • to receive back anything so deposited on his becoming entitled by virtue of this Act or any other law for the time being in force to have the same in his possession, or
      • to dispose, or authorize the disposal, of anything so deposited by sale or otherwise to any person entitled by virtue of this Act or any other law for the time being in force to have, or not prohibited by this Act or such other law from having, the same in his possession and to receive the proceeds of any such disposal: Provided that nothing in this sub-section shall be deemed to authorize the return or disposal of anything of which confiscation has been directed under section 32.
    • All things deposited and not received back or disposed off under sub-section (2) within the period therein referred to shall be forfeited to Government by order of the district magistrate: Provided that in the case of suspension of a license no such forfeiture shall be ordered in respect of a thing covered by the license during the period of suspension.
    • Before making an order under sub-section (3) the district magistrate shall by notice in writing to be served upon the depositor or in the case of his death, upon his legal representative, in the prescribed manner, require him to show cause within thirty days from the service of the notice why the things specified in the notice should not be forfeited.
    • After considering the cause, if any, shown by the depositor or as the case may be, his legal representative, the district magistrate shall pass such order as he thinks fit.
    • The Government may at any time return to the depositor or his legal representative things forfeited to it or the proceeds of disposal thereof wholly or in part.”

The Aircraft Act, 1934

“Section 5. Power of Central Government to make rules.[7]

2(e). the conditions under which aircraft may be flown, or may carry passengers, mails or goods, or may be used for industrial purposes and the certificates, licenses or documents to be carried by aircraft;”

The Aircraft Rules, 1937

“Rule 8A. Security check of persons boarding aircraft at aerodrome.[8]

For the purpose of securing the safety of aircraft operations, every person boarding an aircraft at an aerodrome and his hand-baggage, if any, shall be liable to be searched at the aerodrome, by an officer authorized in this behalf by the Central Government, before such person proceeds to the aircraft for embarkation.”

JUDGEMENT

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:

  1. President,
    1. Vice-President,
    1. Prime Minister,
    1. Former Presidents,
    1. Speaker of Lok Sabha,
    1. Chief Justice of India,
    1. Judges of Supreme Court,
    1. Union Ministers of Cabinet Rank,
    1. Governor of States,
    1. Lt. Governors of Union territories,
    1. Chief Ministers of States and Union territories,
    1. Ambassadors of foreign countries, Charge D’Affairs and High Commissioners and their spouses,
    1. Cabinet Secretary,
    1. Visiting foreign dignitaries of the same status as at SL. No.1 to 3, 5, 6, 8 to 10 above.
    1. SPG Protectees”

All others are subjected to pre-embarkation security checks.

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.

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 Categorization 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.

On 10 August 2005, Circular 32 of 2005 was issued by BCAS in supersession of an earlier circular by which His Holiness the Dalai Lama and Shri Robert Vadra, while travelling with the SPG protectees, were exempted from pre-embarkation security checks.

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”. 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 realize the distinction between the Constitutional and Statutory functionaries and thus violated the directions issued by the Hon’ble Supreme Court in T.N. Seshan v. Union of India ”.

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 :

  1. There should be a clear cut and well thought out National Security Policy, instead of the piecemeal chasing of the ghosts of the past.
  2. 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.
  3. 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 color of the State Governments.
  4. Procedures to avoid duplication and waste of resources”.

The petition was thus disposed off, directing –

  • the inclusion of the Chief Justices and judges of the High Court in the list of persons exempted from pre-embarkation security checks;
  • consideration of its observations in regard to the formulation of a National Security Policy.

The bench quipped that the High Court has evidently transgressed the “wise and self-imposed” restraints 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.

The Supreme Court accordingly allowed the Appeal and set aside the impugned judgment and order of the High Court dated 13 May 2005 and ordered that the writ petition before the High Court shall accordingly stand dismissed. Further, the bench stated that the transfer petition instituted by the Commissioner of Security (Civil Aviation), BCAS, 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[9].

The Apex Court stated that “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.”

CONCLUSION

This case clarified the position of the Chief Justices and Judges of the High Court that they should be exempted from pre-embarkation security checks at airports by a Circular issued by the Bureau of Civil Aviation Security (BCAS).

However, this process is lengthy and time-taking, as stated by a report by the CISF:

“Total passenger traffic at all airports has increased by (over) 65% in the last five years. However, this increase is skewed and is abnormally high during peak hours at certain airports. Despite this huge increase in (peak hour rush), the security infrastructure and manpower have remained the same, resulting in congestion at security checkpoints and undue pressure on security personnel for speedy clearance.”

The Airport Authority of India (AAI) is exploring 3D tomography used in the US and UK airports, which is better since the passengers do not need to unpack their baggage for the security checks.

[1] Author is a 2nd semester student from Amity Law School, Lucknow.

[2] Rajasthan High Court v. Chief Security Officer, WP (C) No. 518 of 2000.

[3] INDIAN CONST. art. 136.

[4] INDIAN CONST. art. 226.

[5] The Arms Act, 1959, S. 13, No. 54, Acts of Parliament, 1959 (India).

[6] The Arms Act, 1959, S. 21, No. 54, Acts of Parliament, 1959 (India).

[7] The Aircraft Act, 1934, S. 5(2)(e), No. 22, Acts of Parliament, 1934 (India).

[8] The Aircraft Rules, 1937, Rule 8(a), No. 22, Acts of Parliament, 1934 (India).

[9] Union of India v. Uma Shankar Tripathi, 2011 SCC Online All 2769.

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