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.
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)
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)
Read original judgment here;click here
Dated;26-2-2014
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 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.
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
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 nondisclosure.
…”
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
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.
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