25 Dec 2010

Government can review 'security cover': High Court

Dismissing the contentions as apprehension, a division bench of the Delhi High Court in a recent decision has upheld the decision of the Single Judge holding that the Government is empowered to review the security cover of an individual taking note of the perceived threats to his life and  personal security. The High Court in Ashwini Kr. Chopra v. Union of India held that judicial review in such matters was limited and it was not within the domain of the judiciary to determine the appropriate security level for an individual, which was best known and left to the executive. 

The Bench inter alia observed as under;
16. On the anvil of aforesaid concept of judicial review the impugned order is to be tested. As the facts would demonstrate the appellant was given the security cover Z+. It was given some time in the year 1998. The matter was reviewed from time to time and thereafter taking stock of the factual situation, the appellant was put in Z category. The pregnability of the order is to be tested whether the discretion exercised by the administrative authority is absolutely perverse or is bereft of any consideration. The duty of the court while exercising power under Article 226 is also to see whether it can substitute the decision. It is also obligatory to see whether it suffers from any kind of unreasonableness or unfairness. Grant of security cover is within the executive domain. As is perceivable, the appellant was extended the benefit of said cover under certain prevailing circumstances. The authority granting the security cover after considerable lapse of time studied the ground reality and have taken a decision that the appellant need not be put in Z+ category but can be brought to Z category. As the factual matrix would exposit it has not been done by total non-application of mind. It is not a case where a person has been given security cover one day and the same has been withdrawn arbitrarily after lapse of two weeks or three weeks. We have mentioned the time gap as the review has taken place after considerable length of time. The executive is in best know of when and what sort of security cover be granted to a particular person. No one can claim as a matter of legal right to be given a particular security cover. True it is, it is a part of good governance to maintain law and order, and an orderly society is the backbone of good governance. Rule of law prevails where the law and order situation is treated as the spine of administration. But when an individual requires a particular category of security, he cannot put the blame on the executive that the law and order is not maintained or his life is in danger. In this context we may refer with profit to the decision in Bhim Singh v. Union of India and another, 2000 (55) DRJ 57, it has been held thus –
“From the foregoing discussion, it is clear that the petitioner, who is only holder of "Z" category security cover, would not be entitled to government accommodation. This is especially so when even "Z+" category, cover holders are also being asked to vacate. Accordingly the challenge to the notice of termination on the ground of the petitioner continuing to hold "Z" security cover must fail and is rejected. The ground of a particular category of security cover or its upgradation are matters essentially in the domain of the concerned government agencies and this is not a matter in which the court would interfere. There is also no merit in the contention that the policy decision by the Central Government to delinked the provision of government accommodation with the security cover except in the matter of those entitled to S.P.G. Protection is violative of the fundamental rights of the petitioner. The respondents shall be free to proceed with the proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act 1971 and for eviction and to recover damages, if any, as per law. The amount paid by the petitioner in these proceedings would be subject to adjustment.” 
We agree with the view expressed in the said decision.
17. Learned counsel for the appellant has drawn inspiration from the decision Maneka Gandhi (supra) especially paragraphs 28, 57 and 59 of the said decision. We have carefully perused the said paragraphs and we find that their Lordships have given emphasis on the concept of natural justice, fair play in action, and the test to be adopted while judging an administrative action. That apart their Lordships have also dealt with the deprivation of personal liberty. In our considered opinion, the principles laid down therein really do not get attracted to the case at hand as providing a particular category of security cover or downgrading from that category does not attract the doctrine of audi alteram partem. The submission of Mr. Chetan Sharma, learned senior counsel for the appellant that the appellant should have been heard before his security cover was downgraded does not have any substance inasmuch as this is a matter of policy and when the executive, on a review after considerable length of period has done so, no fault can be found with. It cannot be said that the appellant has been visited with adverse consequences. On the contrary, we notice that the grant of cover has inseparable nexus with the occupation of the bungalow. Despite the cancellation order passed by the authority to vacate the bungalow, the appellant has stood embedded not to vacate the bungalow. In this context, one is reminded of the same that once an inch is given to a person, he always harbours the notion that he has a right on the whole empire. The present case is one of this nature. Though an edifice has been sought to be built by taking recourse to right to life under Article 21 of the Constitution of India, yet the present factual scenario really does not come within the ambit and sweep of the facet of the said Article as the apprehension expressed by the appellant that his life is still in danger and he must be given a particular security cover and thereby he must be allowed to retain a particular bungalow or similar type of bungalow is not a matter of right and the right under Article 21 of the Constitution of India is not absolute. Thus, the said submission advanced by Mr. Sharma is bound to be repelled and we so do.
18. The next submission of Mr. Sharma is that similarly placed persons have been given the coverage but the appellant has not been given. In this regard, we may note with profit the view expressed by their Lordships in Panchi Devi v. State of Rajasthan and other, (2009) 2 SCC 589 wherein it has been emphasized that Article 14 of the Constitution of India is a positive or affirmative concept. Equality cannot be claimed in illegality. To put it differently, nobody can put forth a stand and stance that he may be equally treated because an error or wrong has been committed by an authority and hence he should avail the benefit of the said wrong. That apart, this Court in a case of this nature cannot enter into the said facet of equality as there may be situations where each case may have an individual characteristic which cannot become a matter of judicial review. The same has to be left to the executive.

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