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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  

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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  2

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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  

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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  

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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.

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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  

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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 Wade1,  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’,  

1 Administrative Law, 10th Edition, H.W.R. Wade & C.F. Forsyth, Pages- 468-470.

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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 Service2, 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 Zamora3, 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.”

2 (1985) AC 374 3 (1916) II AC 77

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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. Rehman5:

“…  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  

4 (1974) AC 405, Page- 434 5 (2003) 1 AC 153

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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:

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“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.  

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