Airport security checks not issues of prestige-Supreme Court quashes Rajasthan HC order to grant exemption to High Court Judges

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Airport security checks not issues of prestige-Supreme Court quashes Rajasthan High Court order to grant exemption to HC Judges and direction to UOI to form National Security Policy

Airport security checks not issues of prestige

ABCAUS Case Law Citation:
ABCAUS 1083 (2016) (12) SC

Brief Facts of the Case:
A Division Bench of the Rajasthan High Court in 2005 had 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 the relevant circular of 2002 of the Bureau of Civil Aviation Security (BCAS). This exercise was directed to be completed within thirty days.

The Rajasthan High Court had took a suo moto cognizance of the news report of a security lapse at Sanganer Airport, Jaipur and a public interest petition (PIL) was registered. The High Court had directed that certain suggestions formulated by it for laying down a ‘National Security Policy’ should be considered by the Union government.

Aggrived by the directions as above, the Union of India had moved the Hon’ble Supreme Court under Article 136 of the Constitution and consequently in 2006, the judgment of the High Court was stayed.

Observations made by the Apex Court:

High Court transgressed its power of judicial review
The Apex Court observed that the High Court had transgressed the ‘wise and self-imposed’ restraints on the power of judicial review by entertaining the writ petition and issuing these directions. According to the Supreme Court, 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 was to be investigated by authorities
According to the Court, the breach of security at airport undoubtedly was an issue of serious concern but the exercise of investigation 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.

Framing a National Security Policy was beyond the judicial review
The Hon’ble Court observed that 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 act encroached upon the domain of the executive
The Hon’ble Supreme Court observed that in a democracy, government is accountable to the legislature and, through it, to the people. The powers under Article 226 are wide enough to reach out to injustice wherever it may originate.  Justice should not be made to depend upon the individual perception of a decision maker on where a balance or solution should lie. 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 entered.

The cause was left behind
The Hon’ble Court further observed that with the inclusion of the name of Chief Justices of High Courts in the list of persons exempted from pre-embarkation security 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.

Matters of security are not issues of prestige
The Hon’ble Supreme Court stated that the security privileges 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 24×7 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 24×7 basis. Heads of foreign missions in India are exempted from pre-embarkation security checks on a reciprocal basis.

Airport security checks not issues of prestige

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