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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 20021 of  the

Bureau  of  Civil  Aviation  Security  (BCAS).   This  exercise  was  directed  to  be

1 Circular 12 of 2002

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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

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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 :   

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) Governor of States. 10) Lt. Governors of Union territories 11) Chief Ministers of States and Union territories

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

13) Cabinet Secretary 14) Visiting foreign dignitaries of the same status as at

SL. No.1 to 3, 5, 6, 8 to 10 above. 15) 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

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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

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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

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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 :

(i) 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.

(ii) 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.

(iii) 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.

(iv) 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.

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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

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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

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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

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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

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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