Natural Justice Must Yield To Preserve National Security: Delhi High Court Upholds Revoking Of Celebi's Clearance

Dismissing Turkey based company Celebi Airport Services Pvt Ltd's plea against revocation of its security clearance by Centre, the Delhi High Court on Monday observed that while natural justice is an important Constitutional principle however in matters of "security of the realm", natural justice must yield to preserve national security. 

Justice Sachin Datta in his order observed that in the present case, on perusal of the relevant inputs, it had transpired that there are "compelling national security considerations involved", which impelled the respondents to take action against Celebi. The court in its 94 page order said:

"While it would not be inappropriate for this Court to make a verbatim reference to the relevant information/inputs, suffice it to say, that there is a necessity to eliminate the possibility of espionage and/or dual use of logistics capabilities which would be highly detrimental to the security of the country, especially in the event of an external conflict. Suffice it also to say, that there are impelling geo-political considerations, impinging upon the safety of the country, which are also involved. Madhyamam (supra) specifically recognizes that “it is the executive wing and not the judicial wing that has the knowledge of India's geopolitical relationships to assess if an action is in the interest of India's national security” [Paragraph 84 of the Madhyamam (supra)].  As per settled law (as noticed hereinabove), once national security considerations are found to exist, on the basis of which the security clearance has been cancelled/revoked, it is not for the Court to “second guess” the same". 

The high court said that principles of natural justice are sacrosanct, however, it is a "compelling constitutional truth that security of the realm is the pre-condition for enjoyment of all other rights".

The court said that the Central authorities was justified in taking prompt and definitive action so as to completely "obviate the possibility of country's civil aviation and national security being compromised".

"Ground handling services at airports offer deep access to airside operations, aircrafts, cargo, passenger information system and security zones. Such unbridled access to vital installations and infrastructure naturally elevates the need for strict security vetting for operators, and their foreign affiliations. This is particularly true in the wake of contemporary challenges faced by the country in the security domain, and the escalations/incidents witnessed in the recent past, with geopolitical factors at play. The action taken is consistent with the judicially evolved principles, recognized across jurisdictions, which give primacy to legitimate national security considerations, even when weighed against the procedural due process," it added.

It further said that it can appreciate the necessity of  maintaining secrecy in respect of document/s on the basis of which the security clearance of  Celebi had been revoked as its disclosure of the  would not be conducive to security and safety considerations and international relations.

Can 'National Security' afford an exception to the natural justice principles?

The court in its order examined whether national security considerations can afford an exception to the principles of natural justice and to what extent is the existence of national security considerations (warranting cancellation/revocation of the petitioners' security clearance), justiciable in court. 

The court referring to various judgments said that it had been laid down that:

"in matters pertaining to the security of the realm, the principles of natural justice must yield to preservation of natural security. This position has been affirmed and recognised not only by the Courts in India, but also in other jurisdictions such as the UK and USA". 

Referring to decisions of the US Supreme Court and the high court observed, "...the view taken by the US Supreme Court is that there should be minimal judicial interference in respect of administrative actions/denial of security clearance on considerations of national security. In Department of Navy (supra), it was noticed that the security clearance may be granted only when it is “clearly consistent with the interest of national security”. It was further noticed that the security clearance does not equate with parting judgment upon an individual's character, instead, it is only an attempt to assess whether, under compulsion of circumstances or for other reasons, the individual might compromise sensitive information. The US Supreme Court went on to observe that predictive judgments of this kind are best made by those with the necessary expertise in protecting classified information". 

The court thus found that the proposition that procedural due process and natural justice may be dispensed with where National security is involved finds support in both domestic and comparative constitutional jurisprudence

Justiciability of National Security Considerations

The high court further noted that the in Madhyamam Broadcasting Ltd. v. Union of India (2023), the Supreme Court specifically took note of its judgment in Ex-Armymen's Protection Services (P) Ltd. v. Union of India (2014) where apex court had held that principles of natural justice may be excluded when on the facts of the case, national security concerns outweigh the duty of fairness.

"It was specifically noted by the Supreme Court in Madhyamam (supra), that national security is one of the few grounds on which “the right to reasonable procedural guarantee” may be restricted," the court noted. 

The high court said that in Madhyaman it was recognized by the Supreme Court that "confidentiality of evidence and national security are legitimate goals" recognized by the Constitution for the "purpose of limiting procedural rights". The court fuether saud that while principles of natural justice are sacrosanct however these principles may also yield in exceptional circumstances and that the concept of natural justice cannot be put into a straitjacket formula and is incapable of a precise definition.

On application of judicial review the court said that it had been hled in Ex Armyman's that in order for the Court to satisfy itself that the concerned action has been taken on account of national security considerations, it is open to the Court to call for the relevant files so as to ascertain whether the interest of national security is indeed involved.

"However, once national security considerations are found to be the reasons for the concerned action, the issue as to whether something is or is not in the interest of national security is not a matter for judicial review," the order states. 

Executive and not Judiciary has knowledge to assess if action is in India's national security

The court further said that it had been observed by Supreme Court that it was the executive and not the judiciary which can assess if an action is in the interest of India's national security.

It emphasized:

"Importantly, in Madhyamam (supra), the Supreme Court also recognized that for the purpose of assessing whether national security considerations are involved, the Court applies the “reasonable prudent person standard”, which is one of the lowest standards to test reasonableness of the action. The Supreme Court expressly recognised that the State is best placed to decide how the interest of national security would be served. The Court would not “second guess” the assessment of the State “that the purpose identified would violate India's national security”. It was held that due deference would be given to the State to form its opinion; the same is subject to review on the limited ground of whether there is nexus between the material and the opinion/conclusion. It was specifically observed that it is the executive wing and not the judicial wing that has the knowledge of India's geo-political relationships to assess if an action is in the interest of India's national security"

At the same time, the high court said that the Supreme Court had clarified that judicial review would not be excluded on a mere mention of the phrase “national security” and the  State cannot be allowed to use national security as a tool to deny citizens remedies that are provided under law. 

The court noted that apex court had observed that the procedure adopted in “public interest immunity proceedings”, is a less restrictive means to deal with non-disclosure on the grounds of confidentiality in public interest. 

On documents being submitted in sealed cover

The high court said that in Madhyamam case the Supreme Court had assessed whether and under what circumstances, is it permissible for a Court to accept the materials in sealed cover.

"It was noticed by the Supreme Court that under normal circumstances, accepting the documents in a sealed cover would offend the concept of “open justice”. It was observed by the Supreme Court that a Court should endeavour to adopt a least restrictive method for the purpose of deciding claims involving invocation of confidentiality on the ground of national security...However, it was noticed by the Court that in the context of both “sealed cover procedure” and “public interest immunity claims”, the documents that are sought to be withheld from disclosure, are not revealed to the counsel for the applicant. The proceedings in effect are conducted ex-parte where the counsel of the party". 

The court thus dismissed Celebi's plea. 

Case title: CELEBI AIRPORT SERVICES INDIA PRIVATE LIMITED versus UNION OF INDIA & ORS

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