Delhi High Court
M/S Add Lounge Services Private Limited vs Union Of India & Ors on 16 September, 2016
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 16th September, 2016
+ W.P.(C) No.11202/2015 & CM No.29152/2015 (for stay).
M/S ADD LOUNGE SERVICES PRIVATE LIMITED ..... Petitioner
Through: Mr. Akhil Sibal and Mr. Sanjay S.
Chhabra, Advs.
Versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr. Sanjay Jain, ASG with Ms. Anjana
Gosain, Sumit Misra and Mr. Vishu
Agrawal, Advs. for R-1&2.
Mr. Abhishek Sharma and Mr. Chaitanya
Puri, Advs. for DIAL.
Mr. G. Pumthian Lal, Adv. for DCIO/IB.
Mr. K.C. Upadhyay, Regional Dy.
Commissioner, BCAS.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The petition impugns the order dated 20th November, 2015 of the
Secretary, Ministry of Civil Aviation, Government of India (respondent
No.1) in appeal filed by the petitioner under Rule 4 of the Aircraft (Security)
Rules, 2011 against the communication dated 22nd September, 2015 of the
respondent no.2 Bureau of Civil Aviation Security (BCAS), Ministry of
Civil Aviation conveying to the petitioner that in view of the adverse report
received from the Central Security Agency, security clearance was being
denied to the petitioner.
W.P.(C) No.11202/2015 Page 1 of 27
2. The petitioner had earlier filed W.P.(C) No.9544/2015 impugning the
said communication dated 22nd September, 2015. The said writ petition was
disposed of vide order dated 8th October, 2015 with liberty to the petitioner
to prefer the appeal under Rule 4 supra and by fixing a time schedule for
disposal of the said appeal and by deferring the consequence of denial of
security clearance to the petitioner till the disposal of the said appeal and in
the event of the order therein being against the petitioner, till the petitioner
had availed of remedies thereagainst.
3. Notice of this petition was issued and the operation of the impugned
order dated 20th November, 2015 stayed. The respondents were also directed
to produce the record relied upon by the respondent no.2 BCAS as well as
by the respondent no.1 Union of India (UOI) while deciding the appeal.
4. It is the case of the petitioner (i) that the respondent no.3 Delhi
International Airport (P) Limited (DIAL) on 15th June, 2010 granted to the
petitioner (then known as SSP Catering India Pvt. Ltd.) a licence to set-up,
develop and operate the lounge under the brand called ―Emirates Lounge‖
at Delhi International Airport; (ii) that the petitioner in terms of Clause
8.4.22 of the said licence applied for security clearance so as to provide
access to the petitioner's employees, goods and material to the restricted
W.P.(C) No.11202/2015 Page 2 of 27
area of the Airport falling in the security hold area, to serve/cater to the
passengers travelling by Emirate Airlines; (iii) the respondent no.2 BCAS on
18th January, 2011 granted security clearance to the petitioner valid for a
period of five years i.e. up to 17th January, 2016; (iv) that the petitioner since
January, 2011 has been operating the lounge, strictly abiding by all the
conditions imposed by the respondent no.2 BCAS and respondent no.3
DIAL; (v) that in the year 2014 one of the shareholders of the petitioner
disinvested its entire shareholding to an existing shareholder and as a result
thereof the name of the petitioner was changed from M/s. SSP Catering
India Pvt. Ltd. to M/s. Skylark Hospitality India Pvt. Ltd.; (vi) the
respondent no.3 DIAL upon being communicated the said change required
the petitioner to obtain fresh security clearance and the petitioner
accordingly sought the same; (vii) that the respondent no.2 BCAS, without
granting any pre-decisional hearing to the petitioner, vide communication
dated 22nd September, 2015 supra denied security clearance to the petitioner
and as a result thereof the respondent no.2 BCAS stopped accepting
applications for issuance of Airport Entry Passes afresh and/or revalidation
thereof for the employees of the petitioner; (viii) that in the meanwhile the
petitioner learnt that there were several other companies registered in the
W.P.(C) No.11202/2015 Page 3 of 27
name of Skylark and the petitioner, to avoid any claim of Intellectual
Property Right infringement, without affecting any change in its
shareholding or management, changed its name to the present name of M/s
ADD Lounge Services Pvt. Ltd.; (ix) W.P.(C) No.9544/2015 was filed
impugning the said communication dated 22nd September, 2015 and which
petition was disposed of vide order dated 8th October, 2015 supra; and (x)
the respondent no.1 UOI granted an opportunity of hearing to the petitioner
on 12th November, 2015 and has vide impugned order dated 20th November,
2015 dismissed the appeal.
5. The respondent no.1 UOI has vide impugned order dated 20th
November, 2015 dismissed the appeal of the petitioner
finding/observing/recording (i) that the case was heard by the Secretary,
Ministry of Civil Aviation on 12th November, 2015 in the presence of the
petitioner and the representatives of the respondent no.2 BCAS and the
petitioner was also allowed to provide written submissions along with
supporting documents within three days; (ii) all the documents provided by
the petitioner had been perused and observations of the respondent no.2
BCAS also noted; (iii) the respondent no.2 BCAS had received input which
indicated that the petitioner has come to significant adverse notice by the
W.P.(C) No.11202/2015 Page 4 of 27
security agencies; (iv) as per the initial documents submitted by M/s. SSP
Catering India Pvt. Ltd., one of the promoters was also a Director of the
petitioner but his name was dropped through a communication of cessation
as director, on 28th March, 2008; (v) at that time the petitioner did not
declare about the shareholding pattern; (vi) after scrutiny of relevant
documents it came to light that the said promoter was holding the shares of
the petitioner from initial stage and his termination as a Director did not
mean cessation of his association with the petitioner; (vii) that the petitioner,
after change of its name from M/s. Skylark Hospitality India Pvt. Ltd. to the
present name M/s. ADD Lounge Services Pvt. Ltd. had not applied for
security clearance in accordance with the BCAS guidelines - therefrom it
appears that the petitioner wants to continue business without following the
prescribed procedures; and, (viii) the respondent no.2 BCAS has exercised
due diligence and communicated the rejection as per extant guidelines.
6. The petitioner impugns the order dated 20th November, 2015 of the
respondent no.1 of dismissal of its appeal contending (i) that the material on
the basis whereof the Central Security Agencies furnished adverse report to
the respondent no.2 BCAS has not been disclosed to the petitioner and the
petitioner is thus unable to rebut the same; (ii) that the hearing granted on
W.P.(C) No.11202/2015 Page 5 of 27
12th November, 2015 was perfunctory in nature and an eyewash; (iii) M/s.
SSP Catering India Pvt. Ltd. had other operations at Terminal-2, Indira
Gandhi International Airport, New Delhi and was granted security clearance
in the year 2008; (iv) that the impugned order wrongly records that M/s SSP
Catering India Pvt. Ltd. did not declare about the shareholding, ―the
shareholding information has never been withheld by the petitioner‖; (v) the
order is based on surmises and conjectures and is cryptic and non-speaking
order; (vi) that all the grounds taken by the petitioner in its Memorandum of
Appeal and written submission have not been dealt with by the respondent
no.1 UOI acting as Appellate Authority; (vii) there was no occasion for the
petitioner to seek security clearance under the present name of M/s. ADD
Lounge Services Pvt. Ltd. as the same came into force only on 30 th
September, 2015; (viii) denial of security clearance to the petitioner is
violative of Articles 14 and 19(1)(g) of the Constitution of India; (ix) the
petitioner is a commercial entity providing services to Emirates Airline
passengers at Indira Gandhi International Airport and holds reputation as an
efficient Lounge Operator; (x) neither the petitioner nor its Directors/key
executives have ever been involved/implicated in any criminal proceedings
much less of moral turpitude, money laundering, drug trafficking, terrorist
W.P.(C) No.11202/2015 Page 6 of 27
activities, which can be said to have nexus with security of State or security
of India; (xi) security clearance as defined in the Aircraft (Security) Rules
means compliance with the security controls specified in the national civil
aviation security programme with regard to any aircraft, person or object - it
is not the case that the petitioner or its Directors or key executives or
employees have at any time committed any breach of the security
programme approved on 18th January, 2011; (xii) no security incident has
ever been reported against the petitioner or its Directors or officials; (xiii)
the contents of the purported adverse report are in public domain and
pretence of confidentiality is a farce; (xiv) there is no FIR or any other legal
civil or criminal proceedings pending against the individual shareholders of
the petitioner; (xv) even otherwise a company as the petitioner is, is distinct
from its shareholders; and, (xvi) denial of security clearance is stigmatic.
7. It was also the contention of the senior counsel on 2nd December, 2015
when this petition had come up first that since the security clearance earlier
granted was valid till 17th January, 2016 only and renewal thereof had to be
applied in advance, the petitioner be permitted to apply for renewal and the
respondents be directed to consider the same without reference to the subject
controversy.
W.P.(C) No.11202/2015 Page 7 of 27
8. The learned Additional Solicitor General (ASG) appearing on advance
notice/caveat on 2nd December, 2015 stated that the petitioner may apply and
the application for renewal shall be considered as per extant conditions
applicable to renewal and the renewal if any will also be subject of the
outcome of this petition.
9. The respondent no.2 BCAS has filed counter affidavit pleading (i) that
the respondent no.2 BCAS, vide Rule 3 of Rules aforesaid is entrusted with
national civil aviation security programme consistent with the provisions of
Annexure-17 to the convention to safeguard civil aviation operations against
acts of unlawful interference and threat perception taking into account the
safety, regularity and efficiency of flights; (ii) as per Rule 11, no aerodrome
operator can allow the setting up of any business establishment in the
security restricted area of aerodrome without obtaining security clearance;
(iii) security clearance and approval of security programme is accorded after
background checks of the applicant and if a company, also its directors; (iv)
the petitioner is a joint venture of two companies and the respondent no.2
BCAS has received input from Central Security Agency that one of the joint
venture partner companies had come to significant adverse notice; (v)
security clearance is a subject to be carried out by the security agencies i.e.
W.P.(C) No.11202/2015 Page 8 of 27
Intelligence Bureau (IB) or any other statutory body; every agency follows
its own procedure for investigation before granting security clearance and
the said information is not shared with the respondent no.2 BCAS because
the investigations are ongoing process and any information can further lead
to manipulation of the investigation by the affected person; (vi) that the
respondent no.2 BCAS is bound by the security report and cannot take a
decision on its own; (vii) normally security clearance is not withheld; (viii)
the principles of natural justice cannot be made applicable for the
investigating agency for sharing the information as it is connected with
safety and security of the nation; and, (ix) Supreme Court in order dated 26th
February, 2014 in Civil Appeal No.2876/2014 arising out of SLP (Civil)
No.15000/2010 titled Ex. Armymen's Protection Services Private Ltd. Vs.
Union of India has held that in a situation of national security, a party
cannot insist for the strict observance of the principles of natural justice and
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 and that
depending on the facts of the particular case, it will be open to the Court to
satisfy itself whether there were justifiable facts and the Court is entitled to
call for the files and see whether it is a case where the interest of national
W.P.(C) No.11202/2015 Page 9 of 27
security is involved and that once the State is of the stand that the issue
involves national security, the Court shall not disclose the reasons to the
affected party.
10. Though the petitioner has filed a rejoinder to the aforesaid counter
affidavit of the respondent no.2 BCAS but the need to advert thereto is not
felt.
11. The counsel for the petitioner in addition to the contentions aforesaid
invited attention to the definition in Rule 2 (e), (u), (w), (z) and (za) of ―acts
of unlawful interference‖, ―security‖, ―security clearance‖, ―security
control‖ and ―security programme‖ respectively and on the basis thereof
contended that no ground for denial of security clearance within the meaning
thereof is made out.
12. Per contra the learned ASG contended (i) that security clearance is
rarely denied; and (ii) that there can be no judicial review of security
clearance.
13. The counsel for the petitioner in rejoinder argued (i) that judicial
review cannot be denied by raising alarmist arguments; (ii) though the
Commissioner of the respondent no.2 BCAS as per the Rules is required to
take decision qua security clearance on his own but in the communication
W.P.(C) No.11202/2015 Page 10 of 27
dated 22nd September, 2015 has considered himself to be bound by the
reports of the security agencies and the same stand has been taken in the
counter affidavit also; (iii) the Commissioner of the respondent no.2 BCAS
has thus failed to exercise the jurisdiction statutorily vested in him; (iv) that
the views of the security agencies as the IB are not binding on the
Commissioner of the respondent no.2 BCAS; (v) that security clearance is
being denied to the petitioner owing to shareholder of one of the companies
holding shares in the petitioner being close to the political regime earlier in
power. Reliance was placed on - (a) Ex-Armymen's Protection Services
Private Limited Vs. Union of India (2014) 5 SCC 409; (b) Digital Radio
(Mumbai) Broadcasting Ltd. Vs. Union of India 222 (2015) DLT 243
(DB); (c) order dated 29th January, 2016 of the Supreme Court of India of
dismissal of Special Leave Petition No.34468-34469/2015 titled Union of
India Vs. Digital Radio Mumbai; (d) A.K. Sharma Vs. Director General of
Civil Aviation and Union of India 98(2002) DLT 738; and, (e) Kal Cables
Pvt. Ltd. Vs. Secretary, Ministry of Information and Broadcasting 2014
SCC OnLine Mad 6857.
14. The counsel for the respondent no.2 BCAS controverted that the
Commissioner of the respondent no.2 BCAS or the respondent no.1 UOI in
W.P.(C) No.11202/2015 Page 11 of 27
appeal did not make their own analysis and contended that the reliance by
the counsel for the petitioner on judgments though relating to security
clearance but in relation to a subject other than civil aviation is
misconceived as in the matter of civil aviation a different yardstick is to be
adopted.
15. The counsel for the respondents no.1&2 during the hearing on 3 rd
March, 2016 handed over a sealed envelope containing the reasons for
denial of security clearance and the contents whereof were perused and the
judgment reserved. The counsel for the respondents no.1&2 during the
hearing on 3rd March, 2016 also informed that the decision on the aspect of
renewal of security clearance to the petitioner as was directed to be taken
subject to the outcome of this petition was also likely to be taken within four
weeks. It was accordingly directed that the said decision be also placed
before this Court.
16. The petitioner filed CM No.13195/2016 stating that ―guidelines for
security clearance‖ existed and which were not earlier in the knowledge of
the petitioner and seeking a direction to the respondents to place the said
guidelines before this Court.
W.P.(C) No.11202/2015 Page 12 of 27
17. The respondent no.2 BCAS also filed CM No.13511/2016 placing
before this Court the order dated 4th April, 2016 of the respondent no.2
BCAS on the renewal of security clearance of the petitioner. The order dated
4th April, 2016, in view of the adverse report of the IB, refuses renewal of
security clearance to the petitioner but the said refusal has been kept in
abeyance awaiting the outcome of this petition.
18. Both the aforesaid applications came up before this Court on 8 th April,
2016 when the counsels were heard thereon and it was directed that orders
on the said applications shall also be pronounced with the orders in the writ
petition. The learned ASG was also requested to place before this Court in a
sealed cover the Guidelines if any for grant of security clearance. In
response thereto the learned ASG has on 29th April, 2016 handed over an
envelope containing the said Guidelines and which have also been perused
by me.
19. Before proceeding to deal with the controversy at hand I may state
that I have in Voluptas Developer Pvt. Ltd. Vs. Union of India 2016 SCC
OnLine Delhi 2129, while dealing with challenge to denial of security
clearance leading to denial of consideration for award of a contract for
development, operation and management of a proposed airport at Goa
W.P.(C) No.11202/2015 Page 13 of 27
through public--private partnership, and after considering Global Vectra
Helicorp Vs. Directorate General of Civil Aviation 2012 SCC OnLine Del
3267 and other judgments including the judgments relied upon by the
counsel for the petitioner (except Kal Cables Pvt. Ltd. supra) held that the
scope of interference in challenge to non-grant of security clearance, if the
Court finds that the reasons for which security clearance has been denied
require re-consideration and/or if the Court is of the opinion that the
possibility of denial of security clearance for reasons to oust commercial
competition or for other oblique reasons cannot be ruled out, is confined to
refer back the matter for re-consideration, if possible by a higher authority
than that which has refused security clearance on an earlier occasion;
however if the authorities concerned still are of the view that the person
concerned poses a threat to the security of the State, the Court will ordinarily
not interfere because, whether there is perception of threat to the security of
a citizen has to be considered by the authority concerned and the Court
cannot substitute its own opinion for that of the authority concerned and the
same would be outside the purview of the judicial review. Reliance in this
regard was placed on Parveen Kumar Beniwal Vs. Government of NCT of
W.P.(C) No.11202/2015 Page 14 of 27
Delhi 2014 SCC OnLine Delhi 7279 (DB) though in the context of grant of
a arms licence.
20. Earlier also, a Division Bench of this Court of which I was a member,
in Bycell Telecommunications India Pvt. Ltd. Vs. Union of India (2011)
185 DLT 494 held that once the agencies of the Government having
expertise and vested with the powers to take decision in such matters have
reached a conclusion that it is risky to open the telecommunication channels
of the country to a certain set of foreigners and such conclusion is found to
have been reached on the basis of material available on record, it is not for
this Court to in the exercise of its powers of judicial review, sit in appeal
over such decision. Reliance was placed on Fertilizer Corporation Kamgar
Union (Regd.) Sindri Vs. UOI (1981) 1 SCC 568 holding that judicial
interference with the administration cannot be meticulous in our
montesquien system of separation of powers and the Court cannot usurp and
the parameters of judicial review can never be exceeded. It was further held
that once the appropriate agencies have found it unsafe to allow inroads in
the country to a particular foreign entity, merely because such foreign entity
undergoes a mutation would not change the position and such mutation
cannot wash away the taint with which the investment was found to be
W.P.(C) No.11202/2015 Page 15 of 27
suffering. The request of the affected party in that case, for a direction for
further investigation, was also held to be beyond the jurisdiction of the Court
once the agencies concerned had deemed it to be not necessary.
21. I have at the outset considered whether any re-look from the ratio
aforesaid is required, particularly in the light of the judgment of the Division
Bench of this Court in Digital Radio (Mumbai) Broadcasting Ltd. supra
which though was noticed in Voluptas Developer Pvt. Ltd.
22. On a re-reading of Digital Radio (Mumbai) Broadcasting Ltd. it is
found that the Division Bench in the said judgment clarified that it was in
the said judgment ―not touching upon the policy of requiring a security
clearance‖ and ―not sitting in appeal over the decision of the respondent as
to the security angle assessment‖ and that it was ―not called upon to
comment upon.....whether the allegations/charges against the said two
individuals are well founded or unfounded‖ and that the ―limited extent of
judicial review‖ with which the Division Bench was concerned was
―whether the security assessment...... is germane to the requirements of
security clearance prescribed‖ in clause 3.8 of the Notice Inviting
Applications (NIA) in that case. On an interpretation of the said NIA it was
held that the security clearance required was of the company and not of the
W.P.(C) No.11202/2015 Page 16 of 27
directors of the company. Earlier judgment of the Division Bench in Bycell
Telecommunications India Pvt. Ltd. supra was noted and was not, as indeed
could not have without referring to a larger Bench, disagreed with.
23. I therefore see no reason to proceed with parameters any different
from that in Bycell Telecommunications India Pvt. Ltd. and Voluptas
Developer Pvt. Ltd. supra. It may also be noticed that in Voluptas
Developer Pvt. Ltd. there was no appellate provision available as is available
under the Rules aforesaid and for the reason of finding the need for re-
consideration by a higher authority, re-consideration at the highest level
possible and if possible in consultation with the Minister/State Minister for
Home Affairs was directed. Here, the petitioner has already availed of re-
consideration under the statutory appeal available.
24. Though ordinarily the reasons shown to this Court in confidence for
denial of security clearance are not to form the subject matter of the
judgment/order of this Court but since it was the contention of the senior
counsel earlier appearing for the petitioner that the said reasons are in public
domain and the senior counsel had also demonstrated so, I take liberty of
recording to the extent that the denial of security clearance to the petitioner
is not on account of anything adverse against the petitioner as a corporate
W.P.(C) No.11202/2015 Page 17 of 27
entity but on account of promoter of another company holding more than
10% shares in the petitioner being ―in adverse notice since 1997, for his
involvement corrupt practices and acting as broker in deals between private
parties and the Ministry and influencing the decision making process and
having been put in the undesirable contactmen list‖. It is also mentioned that
majority of the shares of the petitioner company are held by a foreign based
entity.
25. The petitioner admittedly, as per the terms of the licence granted to it
by the respondent no.3 DIAL, is required to obtain and maintain security
clearance/airport entry permits for itself and its employees from the
respondent no.2 BCAS. Rule 9 of the Rules aforesaid prohibits aerodrome
operators as the respondent no.3 DIAL is, from commencing operations
without obtaining clearance of security arrangements and approval of the
aerodrome security programme from the Commissioner of the respondent
no.2 BCAS. Whatever part of the operations the respondent No.3 DIAL has
licensed to the petitioner, the petitioner also is required to obtain security
clearance. ―Security clearance‖ is defined in Rule 2(w) as compliance with
the security controls specified in the national civil aviation security
programme with regard to any aircraft, person or object. Rule 2(u) defines
W.P.(C) No.11202/2015 Page 18 of 27
―security‖ as meaning a combination of measures, human and material
resources intended to be used to safeguard civil aviation against acts of
unlawful interference. Rule 2(y) of the Rules aforesaid defines ―security
incident‖ in relation to civil aviation security as an occurrence, which takes
place either on the ground or in flight, which results in injury to a person,
damage to property, fire and breakage or contravention or breach of security
laws, regulations, national civil aviation security programme and orders
issued by the Central Government under the provisions of the Act. Rule 2(z)
defines ―security control‖ as the method by which the introduction of
weapon, explosive or other dangerous device, article or substance, which
may be used to commit an act of unlawful interference, can be prevented.
Similarly Rule 2(e) defines ―acts of unlawful interference‖ as acts or
attempted acts to jeopardise the safety of civil aviation and air transport,
including unlawful seizure of aircraft in flight or on the ground, hostage-
taking on board aircraft or on aerodromes, forcible intrusion on board an
aircraft or an aerodrome or on the premises of an aeronautical facility or as
introduction on board an aircraft or at an aerodrome of a weapon or
hazardous device of material intended for criminal purposes. Rule 2(za)
defines ―security programme‖ as meaning written measures specified by the
W.P.(C) No.11202/2015 Page 19 of 27
Commissioner of the respondent No.2 BCAS to be adopted by an entity to
safeguard civil aviation against acts of unlawful interference.
26. The aforesaid Rules have been framed in exercise of powers under
Sections 4 & 5 of the Aircraft Act, 1934. Section 4 empowers the Central
Government to make Rules as may appear to be necessary for carrying out
the Convention relating to International Civil Aviation signed at Chicago on
7th December, 1944 including any Annexures thereto relating to international
standards and recommended practices as amended from time to time.
Section 4A empowers the Director General of Civil Aviation or any other
officer specially empowered in this behalf by the Central Government to
perform the safety oversight functions in respect of matters specified in the
Act or the Rules framed thereunder. Section 5 also empowers the Central
Government to inter alia make Rules providing for measures to safeguard
civil aviation against acts of unlawful interference.
27. Annexure 17 to the Convention on International Civil Aviation
referred to in Section 4 supra deals with ―Security‖ i.e. ―Safeguarding
International Civil Aviation Against Acts of Unlawful Interference‖. A
perusal of 9th Edition (March, 2011) of the said Annexure 17 available on
the internet shows that India as a contracting state to the Convention has an
W.P.(C) No.11202/2015 Page 20 of 27
obligation to ensure safety of passengers, crew and ground personnel and
general public in all matters related to safeguarding against acts of unlawful
interference with civil aviation and to establish an organization and develop
and implement regulations, practices and procedures to safeguard civil
aviation against acts of unlawful interference taking into account safety,
regularity and efficiency of the flights. Chapter I of the said Annexure
defines ―background check‖ as a check of a person's identity and previous
experience, including where legally permissible, any criminal history, as part
of the assessment of an individual's suitability to implement a security
control and/or for unescorted access to a security restricted area. Clause 4.2
of the said Annexure 17 to the Convention requires India as a contracting
state to ensure that the access to airside areas at airports serving civil
aviation is controlled in order to prevent unauthorized entry and to ensure
that background checks are conducted on persons other than passengers
granted unescorted access to security restricted areas of the airport prior to
granting access to security restricted areas.
28. Undoubtedly the Division Bench of this Court in Digital Radio
(Mumbai) Broadcasting Ltd. supra negatived the contention that if the
shareholders of a corporate entity are not subjected to security clearance, it
W.P.(C) No.11202/2015 Page 21 of 27
would defeat the very purpose of having a security clearance in the sensitive
field of radio waves and also negatived the contention that the corporate veil
should be pierced to find out who in fact is running or controlling the
company. However, that was in the context of interpretation of Clause 3.8
of the NIA which required ―the company as well as all directors on the
board‖ to be security cleared and which was held not to include
shareholders. The provisions of the Rules supra which are statutory in
nature and in fulfillment of obligation under an International Convention are
materially different from the NIA subject matter of consideration by the
Division Bench in Digital Radio (Mumbai) Broadcasting Ltd. supra. Rule 5
of the Rules aforesaid permits assessment by the Commissioner of the
Respondent No.2 BCAS of security risk and Rule 7 empowers him to,
―taking into consideration the security perceptions‖ make such orders as
may be deemed appropriate for security arrangement. Rule 18 empowers
the Commissioner of respondent No.2 BCAS to refuse admission to any
person to any aerodrome and Rule 26 requires the air operators to engage
only those personnel whose character and antecedents have been verified.
29. The security clearance under the Rules aforesaid is not confined to the
corporate entity but has to necessarily extend to the natural persons
W.P.(C) No.11202/2015 Page 22 of 27
conducting the affairs of the corporate entity and who would have access to
the aerodrome and its security restricted area in pursuance to the security
clearance to the corporate entity. A corporate entity of its own cannot pose
any threat to aviation security. If it were to be held that in the aviation
security the security risk assessment in the event of the applicant being a
corporate entity has to be confined to the corporate entity only, it would
belie the very need for security clearance. It cannot be lost sight of that
under the guise of security clearance to a corporate entity it is the human
beings at the helm of affairs of such corporate entity who gain access to the
secured area of the airport.
30. Airport security since September, 11th 2001 incident, leading to the
fall of World Trade Center in New York, has acquired a different meaning.
The same has taught humanity that aircrafts can be used as weapons of
destruction not only of those travelling therein but also of others i.e. of mass
destruction of those to whom they may be diverted.
31. I have repeatedly considered whether reported acts of corruption of a
shareholder of a corporate entity seeking security clearance, without any
history of having committed any offence directly aimed at humanity, can be
a ground for denial of security clearance and am unable to come up with any
W.P.(C) No.11202/2015 Page 23 of 27
reply save in affirmative. In my opinion a person accused of influencing
decision making by public authorities which should be in public interest, to
that in private interest, cannot be trusted to refuse jeopardizing the safety of
humanity for the sake of money/private interest. Such a person cannot
qualify as not posing any threat to aviation security. A person who can for
money influence decisions to be taken not in national interest but in private
interest can in my opinion be not trusted with access to the restricted areas of
an airport. Such a person, for money, would not hesitate in using his security
clearance to allow others capable of breaching the security cordon to go pass
the cordon and cause an act of unlawful interference.
31A. Recently in Centre for Public Interest Litigation Vs. Union of India
(2016) 6 SCC 408 it has been reiterated that when the decision making is
policy based, judicial approach to interfere with such decision making
becomes narrower specially when such policy is outcome of deliberations of
technical experts as the Courts are not equipped to fathom into such domain
which is left to the discretion of the Executive. Safety and Security of the
State is similarly in the exclusive domain of the Executive under the doctrine
of Separation of Powers and is today a highly specialized matter when so
called ―white collar crimes‖ are on the rise and the assessment and
W.P.(C) No.11202/2015 Page 24 of 27
perception of the Executive will not be interfered with unless established to
be bad. The petitioner has failed to do so.
32. The Rules aforesaid and which are in accordance with the
International Convention allow ‗assessment' and ‗perception' to govern
grant or refusal of security clearance. Once that is so, it cannot be held that
such ‗assessment', ‗perception' cannot be formed without any proof or
conviction or at least even an FIR. There are no such requirements while
making assessment of threat or perception of character. It is common
knowledge that for diverse reasons, it may not be possible to gather proof
enough for conviction or even for an FIR. However, the same does not come
in the way of the Commissioner of the respondent No.2 BCAS assessing
such a person as a security risk or perceiving him as dangerous to aviation
security.
33. I have also considered the contention of the petitioner, of the
Commissioner of the respondent No.2 BCAS having merely acted on the
reports of the intelligence agencies but do not find any merit therein. The
International Convention and the Rules aforesaid enable the Commissioner
of the respondent No.2 BCAS to make an assessment of a person's character
on the basis of reports of agencies having expertise in the same and do not
W.P.(C) No.11202/2015 Page 25 of 27
require the respondent No.2 BCAS to itself investigate. Even otherwise,
from the material on record, it is evident that the Commissioner of the
respondent No.2 BCAS has satisfied himself within the meaning of the
Rules.
34. I have also wondered the effect of, the petitioner in the past having
been granted security clearance or having not been accused of any breach
thereof in the last over five years. However the very fact that the gentleman
for whose reason security clearance has been denied, inspite of his name
being on undesirable contact men list and being in adverse notice of the
officers since 1997, has in the past succeeded in getting security clearance
does not entitle him to become entitled to renewal thereof.
35. Though in such matters a possibility of the process of security
clearance being used to kill competition cannot be ruled out but those who
indulge in such practices and get into the arena in the first instance by
adopting dubious means cannot be heard to cry hoarse when suffer for the
same reason. Moreover, the larger public interest has to prevail over private
interest.
W.P.(C) No.11202/2015 Page 26 of 27
36. I therefore do not find any error in the withdrawal of security
clearance earlier granted to the petitioner or in denial of renewal of such
security clearance. Resultantly the petition is dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 16, 2016 ‗pp'/mp/bs ..
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