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Union Of India v. Uma Shankar Tripathi
Factual and Procedural Background
The factual nucleus of the matter as recorded in the opinion is that the respondent received a self loading rifle (S.L.R.) on change of guard duty from the outgoing guard, Mr. C.B.S. Yadav, but failed to verify whether the weapon was unloaded. This omission resulted in an accidental discharge of the weapon.
Procedurally, during the hearing adjourned on 25.4.2011 the Court directed that the Union of India be granted two weeks' time to file a detailed affidavit of the Director General of CISF, together with the Blue Book/guidelines on security arrangements and instructions issued to CISF personnel for security of Government/Public Sector establishments (including airports, metro railways and PSUs). The matter was listed for a subsequent date.
In compliance, a supplementary affidavit on behalf of the Director General, CISF, New Delhi, was filed. Attached to that affidavit was Circular No. CAS-7(2)/2004-DIV-1 dated 04.11.2009 and a sealed envelope said to contain details about duties and postings of CISF personnel on security duty in public sector/government establishments. The Court took that filing on record.
Annexure No. 1 to the affidavit reproduced an AVSEC order (No. 06/2009) listing classes of VVIPs/VIPs and accompanying spouses exempted from pre-embarkation security checks at civil airports. The Court observed that the exemption list was selective and noted that High Court Judges were excluded from the exemption in a way that the Court considered without valid reason, resulting in their continued physical checking by police constables despite electronic screening and a purported mandate of a five-judge Bench of the Supreme Court (T.N. Seshan v. Union of India (1995) 4 SCC 611, para 34).
The opinion records that the Court reproduced paragraph 34 of T.N. Seshan and cited the judgment in All India Judges' Association v. Union of India (1993) 4 SCC 288 to emphasize the distinct constitutional status of judges distinct from other services. Following these considerations, the Court issued notice to the Director General, Bureau of Civil Aviation Security (Ministry of Civil Aviation), to file a response on affidavit and directed production of the original file leading to the issuance of the impugned notification. The matter was listed for further hearing and the Registrar was directed to register the notice separately as PIL/MB.
Legal Issues Presented
- Whether the exclusion of High Court judges from the list of persons exempted from pre-embarkation security checks (as reflected in Circular No. CAS-7(2)/2004-DIV-1 dated 04.11.2009 / AVSEC Order No. 06/2009) is consistent with the principle and mandate articulated by the five-judge Bench in T.N. Seshan v. Union of India (1995) 4 SCC 611 (para 34).
- Whether the Bureau of Civil Aviation Security (BCAS) / the Ministry of Civil Aviation should be required to explain, by affidavit and by production of the original file, the basis and issuance process for the notification/circular that prescribes exemptions from security checks.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| T.N. Seshan, Chief Election Commissioner of India v. Union of India, (1995) 4 SCC 611 (para 34) | Paragraph 34 addresses the protocol and status of judges of the Supreme Court and High Courts, the importance of maintaining their status in the Warrant of Precedence, and the need for the Government to seek the Chief Justice of India's views before altering equivalence that might affect judges' position. | The Court reproduced para 34 to underline the special status of judges and to question the notification's exclusion of High Court judges from exemptions, observing that the exclusion appears to run counter to the principles in the cited paragraph and that the Government should not alter precedence or confer equivalence affecting judges without consulting the Chief Justice of India. |
| All India Judges' Association v. Union of India, (1993) 4 SCC 288 | The Court stated that judicial office is not a typical employment/service; judges exercise sovereign judicial power and are constitutionally distinct from members of administrative services. | The opinion cites this authority to reinforce the distinct constitutional status of judges (not being employees) and to support the Court's concern about treating judges similarly to other service personnel for purposes such as security screening and exemptions. |
Court's Reasoning and Analysis
The Court's analysis proceeds from the specific incident (an accidental discharge caused by a guard's failure to verify whether the rifle was unloaded) to a broader administrative and constitutional concern about security protocols and the treatment of judicial office-holders.
Key steps in the Court's reasoning, strictly as reflected in the opinion, are:
- Fact-finding: The immediate factual base is that a weapon accidentally fired because the incoming guard did not check whether it was unloaded.
- Administrative inquiry: Given the public-safety implications and the involvement of security personnel (CISF), the Court had previously directed the Union of India to file a detailed affidavit from the Director General of CISF explaining duties, postings and guidelines (the "Blue Book").
- Examination of the BCAS circular: The supplementary affidavit included Circular No. CAS-7(2)/2004-DIV-1 dated 04.11.2009 (AVSEC Order No. 06/2009) listing classes of persons exempted from pre-embarkation security checks. The Court scrutinised that list and observed selective exemptions.
- Constitutional concern and reliance on precedent: The Court observed that High Court judges appeared to be excluded from the exemption list (leading to their physical checking) despite electronic screening and despite what the Court described as the mandate of the five-judge Bench in T.N. Seshan. To give legal context, the Court reproduced para 34 of T.N. Seshan and cited All India Judges' Association to emphasise that judges occupy a distinct constitutional status that should inform administrative decisions about protocol and treatment.
- Remedial and procedural orders: On this basis, the Court issued notice to the Director General, Bureau of Civil Aviation Security (Ministry of Civil Aviation) to file a response on affidavit and ordered production of the original file that led to issuance of the notification. The Court also directed that the Registrar register the notice separately as PIL/MB and provided dates for listing.
The Court's approach therefore combined a safety-related factual inquiry with scrutiny of administrative notifications in the light of constitutional principles and precedent concerning the status of judges. The reasoning focuses on establishing a factual and documentary record from the relevant executive offices (CISF and BCAS) before further adjudicative steps.
Holding and Implications
Holding: Notice issued to the Director General, Bureau of Civil Aviation Security (Ministry of Civil Aviation) to file a response on affidavit; the original file leading to issuance of the impugned notification is to be produced; the matter is listed for further hearing (listed on 12.7.2011) and the Registrar is to register the matter separately as PIL/MB.
Implications:
- Direct effect on parties: The Bureau of Civil Aviation Security is required to respond by affidavit and produce documentary material explaining the basis and process for the exemption list (AVSEC Order No. 06/2009). The Director General, CISF's earlier supplementary affidavit and circular have already been taken on record and may be further examined.
- Broader legal implications: The opinion applies existing precedent to articulate a concern that administrative exemptions and protocols affecting judges implicate constitutional status and the Warrant of Precedence; the Court has signalled that these matters must be handled with due regard to judicial status and, where appropriate, the views of the Chief Justice of India. However, the opinion itself does not pronounce any new legal precedent—it primarily orders documentary disclosure and further consideration.
- Procedural posture: The matter remains pending; the Court has not decided the substantive legality of the exemption list but has required the relevant executive authorities to provide explanations and produce the original file for judicial scrutiny.
1. The respondent received the charge of self loading rifle [S.L.R] on change of guard duty from the out going guard namely Mr. C.B.S Yadav. But he failed to check as to whether it was unloaded or not. As a result, it led to accidental fire of weapon. On the last date of hearing i.e 25.4.2011, while adjourning the matter, we had sought information about the nature of duties and postings of C.I.S.F personnels vide the order as follows.
“We have heard learned counsel for parties.
Learned counsel for Union of India prays for and is granted two weeks' time to file a detailed affidavit of Director General of C.I.S.F with Blue Book/guidelines on security arrangement of Government/Public Sector establishments (Airports, Metro Railways and public sector undertakings) and instructions issued to CISF Personnels in that regard.
List on 12th May, 2011.
Registrar of this Court shall communicate this order to the concerned official today, in addition to issuing a copy of this order to the learned counsel for the Union of India.
2. In pursuance thereof, a Supplementary affidavit on behalf of Director General of C.I.S.F, New Delhi, with Circular No. CAS-7(2)/2004-DIV-1 dated 04.11.2009, and a sealed envelop containing necessary details about the nature of duties and postings etc. of the C.I.S.F Personnels while on security duty in different Public Sector/Government establishments, filed in court, are taken on record.
3. Vide Annexure No. 1 thereto, it appears that only a selective class of constitutional and other functionaries have been granted exemption from security check at Airports and other important public places where as the High court Judges stand excluded from the list without any valid reason and are subjected to physical checking by police constables despite all the screening by electronic devices, irrespective of the mandate of the judgment of a five judge Bench of Hon'ble the Apex Court in the case of T.N Seshan, Chief Election Commissioner of India v. Union of India (1995) 4 SCC 611 para 34. Annexure No. 1 to the affidavit as aforesaid containing the list of functionaries exempted from the security check is reproduced as under:-
“NO CAS-7(2)/2004-DIV-1
BUREAU OF CIVIL AVIATION SECURITY (MINISTRY OF CIVIL AVIATION)
GOVERNMENT OF INDIA,
A WING JANPATH BHAWAN
JANPATH NEW DELHI-110001
Date: 04/11/2009
AVSEC ORDER NO. 06/2009
Subject: Exemption from pre-embarkation Security Checks at Civil Airports.
In exercise of powers conferred by section 5A of Aircraft Act, 1934 read with clause (e) of sub-section (2) of Section 5 of the said Act, delegated to him vide Government of India, Ministry of Civil Aviation Notification No. 1797 dated 3rd July 1997, the Commissioner of Security (CA), Bureau of Civil Aviation Security directs that the following VVIPs/VIPs and their accompanying spouse shall be exempted from pre-embarkation security checks at all civil airports in the country:
1. President
2. Vice President
3. Prime Minister
4. Governors of States
5. Former Presidents
6. Former Vice-President
7. Chief Justice of India
8. Speaker of Lok Sabha
9. Union Ministers of Cabinet rank
10. Chief Ministers of States
11. Deputy Chief Ministers of States
12. Deputy Chairman, Planning Commission
13. Leader of opposition in Lok Sabha & Rajya Sabha
14. Holders of Bharat Ratna Decoration
15. Ambassadors of foreign countries, charge ‘d’ Affairs and High Commissioners and their Spouses.
16. Judges of Supreme Court
17. Chief Election Commissioner
18. Comptroller & Auditor General of India
19. Deputy Chairman Rajya Sabha & Deputy Speaker of Lok Sabha
20. Minister of State of the Union council of Ministers
21. Attorney General of India
22. Cabinet Secretary
23. Lt. Governors of Union Territories
24. Chiefs of staffs holding the rank of full General or equivalent rank
25. Chief Justices of the High Courts
26. Chief Ministers of Union Territories
27. Deputy Chief Ministers of Union Territories
28. Visiting Foreign dignitaries of the same status as at Sl. Nos. 1 to 4, 7, 8, 9 above
29. His Holiness the Dalai Lama
30. SPG Protectess
31. Shri Robert Vadra while traveling with SPG protectess.
2. Spouse of the President of India is exempted from pre-embarkation security checks at all civil airports even when he/she is not accompanying the president.
3. Former Prime Ministers of India are also exempted from pre-embarkation security checks at all civilian airports in the country.
4. This is issued under the direction and with the approval of Commissioner of Security (CA) and supersedes this Bureau Circular No. 6/2008 dated 4.9.2006
Sd/-4/11/09
(M. Malaviya) IPS
Addl. Commissioner of Security (CA)
Distribution: As per list attached;
Copy to MCA (Shri S. Gown Shankar Under Secretary), R.G Bhawan New Delhi w.r.t Letter No. AV-13024/18-2005-SS dated 20.10.2009”.
Para 34 of the judgment [supra] dealing with the protocol of Hon'ble judges of the Supreme court and High Courts reads as:
“One of the matters to which we must advert is the question of the status of an individual whose conditions of service are akin to those of the judges of the Supreme Court. This seems necessary in view of the reliance placed by the CEC on this aspect to support his case. In the instant case some of the service conditions of the CEC are akin to those of the Supreme Court Judges, namely, (i) the provision that he can be removed from office in like manner and on like grounds as a Judge of the Supreme Court and (ii) his conditions of service shall not be varied to his disadvantage after appointment. So far as the first is concerned instead of repeating the provisions of Article 124(4), the draftsman has incorporated the same by reference. The second provision is similar to the proviso to Article 125(2). But does that confer the status of a Supreme Court Judge on the CEC? It appears from the D.O No. 193/34/92 dated July 23, 1992 addressed to the then Home Secretary, Shri Godbole, the CEC had suggested that the position of the CEC in the Warrant of Precedence needed reconsideration. This issue he seems to have raised in his letter to the Prime Minister in December 1991. It becomes clear from Shri Godbole's reply dated July 25, 1992, that the CEC desired that he be placed at No. 9 in the Warrant of Precedence at which position the Judges of the Supreme Court figured. It appears from Shri Godbole's reply that the proposal was considered but it was decided to maintain the CEC's position at No. 11 along with the Comptroller and Auditor General of India and the Attorney General of India. However, during the course of the hearing of these petitions it was stated that the CEC and the Comptroller and Auditor General of India were thereafter placed at No. 9A. At our request the learned Attorney General placed before us the revised Warrant of Precedence which did reveal that the CEC had climbed to position No. 9A along with the Comptroller and Auditor General of India. Maintenance of the status of Judges of the Supreme Court and the High Courts is highly desirable in the national interest. We mention this because of late we find that even personnel belonging to other for a claim equation with High Court and Supreme Court Judges merely because certain jurisdictions earlier exercised by those Courts are transferred to them not realising the distinction between constitutional and statutory functionaries. We would like to impress on the Government that it should not confer equivalence or interfere with the Warrant of Precedence, if it is likely to affect the position of High Court and Supreme Court Judges, however pressing the demand may be, without first seeking the views of the Chief Justice of India. We may add that Mr. G. Ramaswamy, learned counsel for the CEC, frankly conceded that the CEC could not legitimately claim to be equated with Supreme Court Judges. We do hope that the Government will take note of this and do the needful”.[emphasis supplied]
4. In another case reported in (1993) 4 SCC 288 (All India Judges' Association v. Union of India), it has been held as under:
“7.……………… The judicial service is not service in the sense of ‘employment’. The Judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the State power are the Ministers, the Legislators and the Judges, and not the members of their staff who implement or assist in implementing their decisions. The council of ministers or the political executive is different from the secretarial staff or the administrative executive which carries out the decisions of the political executive. Similarly, the Legislators are different from the legislative staff. So also the Judges from the judicial staff. The parity is between the political executive, the Legislators and the Judges and not between the Judges and the administrative executive. In some democracies like the USA, members of some State judiciaries are elected as much as the members of the legislature and the heads of the State. The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on a par with the members of the judiciary, either constitutionally or functionally.”
5. Therefore, we issue notice to Director General, Bureau of Civil Aviation Security (Ministry of Civil Aviation), Government of India, A Wing, Janpath Bhawan, Janpath, New Delhi - 110 001 to file his response on affidavit before the next date of hearing.
6. On the next date of hearing, the original file leading to issuance of this notification shall also be produced before this Court.
7. List on 12.7.2011 The Registrar shall register this notice separately as PIL/MB and may list it before this Bench for further hearing after obtaining the orders from Hon'ble the Chief justice/Sr. Judge.
8. Let a copy of this order be given to learned counsel for appellants on payment of usual charges.
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