Primacy of National Security Over Procedural Due Process
The Hon’ble Delhi High Court while dismissing the petitions filed by Celebi Airport Services India Private Limited and Celebi Delhi Cargo Terminal Management India Pvt. Ltd., against revocation of their security clearance, ruled that the State/ Respondents are indeed justified in taking prompt and definitive action so as to completely obviate the possibility of country’s civil aviation and national security being compromised. It also agreed with the Respondents’ directory interpretation of Rule 12 of the Aircraft (Security) Rules, 2023.
The Hon’ble High Court rightly emphasized that national security considerations outweigh the principles of natural justice specifically in cases where swift and decisive action is required to safeguard the security of the nation. Further, the Court’s refusal to second-guess the executive’s assessment of security risks, given the classified nature of intelligence inputs reinforces the principle that the executive is best to assess the national security threat and should not be interfered by courts.
The Hon’ble High Court’s reliance on the Ex-Armymen’s Protection Services (P) Ltd. v. Union of India and Madhyamam Broadcasting Ltd. v. Union of India reinforces the set principles that procedural fairness must yield when national security is at stake.
Interpretation of Rule 12 of the Aircraft (Security) Rules, 2023:
One of the significant aspects of the judgment is the interpretation of Rule 12 and the nature of its compliance being declared as directory and not mandatory since as per the Hon’ble High Court, it is not coupled with a penal consequence in case of non-adherence. Despite the clear language of Rule 12 requiring opportunity of being heard before revoking the security clearance, the court interpreted it to be directory which in the larger scheme of things seems plausible considering the crucial aspects that the law deals with. However, it needs to be seen whether the same will apply to other statutes and rules as well wherein there is a mandatory requirement however not coupled with a penal provision for non-compliance, thus making them directory and not mandatory.
Application of International Standards:
The Hon’ble High Court not only declared the actions of the Respondents legal under the domestic law but also found them to be in furtherance of the international obligations laid under Annexure 17 of the Chicago Convention 1944, which mandates security measures in civil aviation to prevent unlawful interference in aviation operations and the necessity of swift executive action to mitigate risks posed by entities with foreign affiliations.
BRIEF BACKGROUND:
• Two writ petitions were filed before the Delhi High Court, one by Celebi Airport Services India Private Limited [Celebi Airport Services India Private Limited v. Union of India & Ors. W.P.(C) 6758/2025] and the other by Celebi Delhi Cargo Terminal Management India Pvt. Ltd. [Celebi Delhi Cargo Terminal Management India Pvt. Ltd. v. Union of India & Ors. W.P.(C) 6759/2025] (‘Petitioners’) being aggrieved by the actions taken by the Bureau of Civil Aviation Security (BCAS/ Respondent No. 3), resulting in the revocation of the Petitioners’ security clearance, and a directive to transfer their employees to third parties.
• Celebi Airport Services India Private Limited, a company incorporated under the Companies Act, 1956 is engaged in providing professional ground handling services at Indira Gandhi International Airport (Delhi), Cochin International Airport, Bengaluru International Airport, Rajiv Gandhi International Airport (Hyderabad), and Goa International Airport.
• Similarly, Celebi Delhi Cargo Terminal Management India Private Limited, a company also incorporated under the Companies Act, 1956, is engaged in the business of providing cargo handling services at the Indira Gandhi International Airport, New Delhi.
• The Petitioners were challenging the orders dated 15.05.2025 passed by BCAS whereby the security clearance provided in “r/o Celebi Airport Services India Pvt. Ltd.”, under the category ‘Ground Handling Agency’ and “r/o Celebi Delhi Cargo Terminal Management India Pvt. Ltd.” under the category of ‘Regulated Agent’, were revoked.
• The Petitioners also challenged a communication dated 15.05.2025 issued by Regional Director, BCAS / Respondent No. 5 which provided that all Airport Entry Passes (AEPs) and Temporary Airport Entry Pass (TAEPs) issued in favour of Celebi Airport Services India Pvt. Ltd. shall be allowed for entry into the Airport as employees of M/s Air India SATS Airport Services Pvt. Ltd and M/s Bird Worldwide Flight Services Pvt Ltd. and all AEPs and TAEPs issued in favour of the Celebi Delhi Cargo Terminal Management India Pvt. Ltd shall be allowed for entry into the Airport as employees of M/s GMR Airports Limited due to operational requirements.
SUBMISSIONS ON BEHALF OF THE PETITIONERS
• The Petitioners argued that the action/ decision taken by the BCAS was unilateral, without furnishing any reasons, and more importantly, without affording the Petitioners any opportunity of being heard. The Petitioners submitted that the impugned orders dated 15.05.2025 are violative of the principles of natural justice for the following reasons:
a) The impugned orders came as “a bolt from the blue”;
b) No show cause notice was given to the petitioners;
c) No opportunity of hearing was granted to the petitioners;
d) The impugned orders do not disclose any reasons.
e) The impugned orders also violate the provisions of the Aircraft (Security) Rules, 2023 (2023 Rules), particularly Rule 12.
• The Petitioners submitted that the mandate of Rule 12 allows suspension or cancellation of a security clearance by BCAS only:
a) After affording the entity an opportunity of being heard;
b) For reasons to be recorded in writing;
c) Where BCAS has the discretion to either suspend the security clearance for a period of one year, cancel it, or impose conditions thereon; and
d) If BCAS has reasonable grounds to believe that such action is necessary in the interest of national security.
• The Petitioners added that the 2023 Rules do not provide for any exception or exemption from compliance with the mandatory requirements of Rule 12. The provisions are ex facie mandatory, and there is nothing in the said Rules to suggest or imply that compliance with Rule 12 is optional or merely directive.
• The Petitioners contended that any order passed in violation of principles of natural justice is void. The impugned orders, having been passed in breach of the Rule 12 of the Aircrafts (Security) Rules 2011/2023, which mandates compliance with the principles of natural justice, is void, and not merely voidable or curable. The Petitioners cited a catena of judgments including Gorkha Security Services vs. Govt. (NCT of Delhi), (2014) 9 SCC 105, Madhyamam Broadcasting Ltd. v. Union of India, 2023 INSC 324, Ex-Armymen's Protection Services (P) Ltd. v. Union of India, (2014) 5 SCC 409, to argue that the state cannot be absolved from its duty to act fairly merely because the issue involves consideration of national security.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS
• The Respondents submitted that they have been conferred with wide-ranging plenary powers under the statutory scheme of both the Aircraft Act, 1934 (“1934 Act”) and the Bharatiya Vayuyan Adhiniyam, 2024 (“2024 Act”). Section 5A(1A) of the 1934 Act, and Section 6 read with Section 10 of the 2024 Act, unequivocally empower the Central Government and relevant authorities to act decisively in matters concerning the security of India and the security of civil aviation operations.
• It was argued that the Petitioners are companies engaged in providing ground handling services at various airports in India, having direct access to every part of an airport, including aircraft, passengers, and sensitive zones such as the tarmac. The Petitioners, therefore, have unrestricted access to critical areas of civil aviation and directly interact with passengers from the moment they enter the airport until they board the aircraft, including access to the cargo hold. The existence of plenary powers in such a context is intended to address any emergent situations, given the intrinsically sensitive nature of the subject matter.
• The Respondents further submitted that these powers are aligned with India’s international obligations under Annexure 17 of the Convention on International Civil Aviation iv. (12th Ed., 2022) (Chicago Convention), which mandates contracting states to ensure civil aviation security, including control of access to restricted areas and the conduct of background checks on individuals.
• On violation of principles of natural justice, the Respondents submitted that it is trite law that such principles are not absolute and must yield to considerations of national security. The Respondents cited Ex-Armymen's Protection Services (P) Ltd., Digi Cable Network (India) (P) Ltd. v. Union of India, (2019) 4 SCC 451, and Madhyamam Broadcasting Ltd., arguing that in subject matters of aviation where a national security concern arises, the observance of the principles of natural justice may be excluded, as national security is a matter of executive policy, not judicial determination. Further, that the Petitioners, being juristic entities wholly owned by Turkish companies, cannot invoke rights under Article 19 of the Constitution.
The Respondents submitted the relevant material to establish the national security concern before the Hon’ble Court in a sealed cover.
• The Respondents argued that the Petitioners’ reliance on Rule 12 of the 2023 Rules is misplaced, as the Rule does not prescribe any penal consequence for non-compliance and must, therefore, be construed as directory rather than mandatory. Moreover, even where the term “shall” is used in statutory language, the Courts have, in various instances, interpreted such provisions as directory, particularly where strict adherence would defeat the object of the legislation or result in procedural deadlock.
• Lastly, the Respondents emphasized on Clause 9 of the Security Clearance renewal order dated 21.11.2022, which provided for “cancellation without assigning any reasons thereof” arguing that while granting the Security Clearance, the right to cancel/withdraw the same “without assigning any reason” was expressly reserved.
COURT OBSERVATIONS
Nature of Principles of Natural Justice:
• At the outset, the Hon’ble High Court observed that there is no conflict about the untrammeled access that the Petitioners had to sensitive/high security areas of the airports. However, it also stated that there can be no cavil with the proposition that the principles of natural justice are sacrosanct and flow from the principle of reasonableness which is embedded in Article 14 of the Constitution of India, guiding the exercise of both procedural and substantive limitations. It added that the compliance with the principles of natural justice preserves the integrity of the system, as the decision, in addition to being fair, also “appears” to be fair.
• At the same time, the Hon’ble High Court highlighted that it has been recognized that principles of natural justice are not in the nature of an inflexible dogma; they have to be tailored depending upon the facts and circumstances. It cited Madhyamam Broadcasting Ltd. v. Union of India, observing that the Courts, both in India and abroad, have demonstrated considerable flexibility in the application of the principles of natural justice by fine tuning them to situational variations and that the concept of natural justice cannot be put into a straitjacket formula.
Natural Justice and National Security:
• The Hon’ble High Court noted that there is no dispute to the fact that the Petitioners were not afforded opportunity of hearing before revocation of the security clearance granted to them. The ostensible basis given for the same was that the said action was necessitated on account of urgent and pressing national security considerations.
• The Hon’ble High Court referred to the judgments of the Supreme Court of United States and the courts of United Kingdom highlighting the observations laid therein that those ‘who are responsible for the national security must be sole judges of what the national security requires’ and if an act is capable of creating indirectly a real possibility of harm to national security it is in principle wrong to say that the state must wait until action is taken which has a direct effect against the nation [Zamora (1916) 2 AC 77 (PC) & Home Department vs. Rehman (2001) 3 WLR 877 respt]. The Hon’ble Court concluded 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
• The High Court while comparing the present situation with that dealt by the Supreme Court in Madhyamam Broadcasting Ltd., stated that the present case involves considerations pertaining to security of the realm and cannot be equated with a situation involving alleged deleterious effect of expression of opinion/s through media channels. It observed that in Madhyamam Broadcasting Ltd., the Supreme Court has recognized in unmistakable terms that the principles of natural justice may be excluded when national security concerns outweigh the duty of fairness.
Application to the present case:
• Applying the above principles to the case at hand, the Hon’ble High Court stated that during the proceedings held on 22.05.2025, the Court (in consonance with the observations of the Supreme Court in Ex. Armyman’s) had directed the Respondents to produce the relevant inputs/information on the basis of which the security clearance of the Petitioners was sought to be revoked, without complying with the principles of natural justice.
• The Hon’ble High Court stated that on perusal of the relevant inputs/information, it indeed transpires that there are compelling national security considerations involved, which impelled the Respondents to take impugned action. It added that “it would not be inappropriate for the 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”.
The Hon’ble High Court while dismissing the petitions ruled that the State/ Respondents are indeed justified in taking prompt and definitive action so as to completely obviate the possibility of country’s civil aviation and national security being compromised. It also agreed with the Respondents’ directory interpretation of Rule 12.
In conclusion, the Hon’ble High Court upheld the national security interest as an exception to procedural fairness, which seems to be a pragmatic approach considering the critical nature of national security interests involved.
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Authors:
Mr. Sanjay Gupta, Senior Partner
Mr. Shawaiz Nisar, Associate