ORDER
K. Chandru, J.
1. The prayer in the writ petition is as follows:
Petition to issue a writ of Mandamus forbearing the respondents or any of their subordinates or by any one strength of the Police protection with weapons as provided to the petitioner’s residence as well as to the petitioner.
2. The petitioner in his affidavit claims that he belongs to All India Anna Dravida Munnetra Kazhagam and also an elected member of Rajya Sabha from the Tamil Nadu Legislative Assembly and being an Advocate, he was defending the various cases filed against the General Secretary of his party. In order to prevent him from rendering legal services to his leader, there are attempts to maim him or incapacitate him physically or eliminate him from the world by his political adversaries. It is also stated that for the past 18 months he was enjoying the personal security because of the information furnished to him that he should not be exposed to public as the threat perception to him and his family members existed from his political adversaries and from others and, therefore, round the clock police protection was give to him at his residence and also wherever he had to go out, security officers have accompanied him and this was done even when he undertook journey outside the city. He further stated that when the new Government took over office on 13.5.2006, they have designed to eliminate him or to injure him in such a way so as to prevent him from appearing for his leader. When the petitioner came to know of this information provided to him on 15.5.2006, he had sent two telegrams, viz., one to the High Court and another to the first respondent. Under these circumstances, according to the petitioner, Article 21 of the Constitution of India mandates that the State should provide security to an endangered person like him. He has further stated that it is necessary to continue the protection at least till such time when the present Government is going to be in power. It was also stated that since the writ petition was filed urgently, several factual details were not brought on record, which may be permitted to be stated later with proper proof.
3. The petitioner has filed W.P.M.P. No. 15419 of 2006 seeking for interim injunction restraining the respondents from withdrawing or altering the present strength of Police protection with weapons provided to his residence as well as to him pending disposal of the writ petition.
4. In W.P.M.P. No. 17754 of 2006, the petitioner sought for a direction to the respondents to provide details regarding the number of persons, who were given Police protection after the new Government took over the administration and list of family members of the Chief Minister, who were given protection after the present Chief Minister took oath of office and also list of persons for whom police protection was removed, along with their political affiliations.
5. When the matter came up for admission on 16.5.2006 during the sitting of the vacation Court, notice of motion returnable by 23.5.2006 was ordered and interim injunction was granted on the condition that if the police protection given, had already not been withdrawn. A counter affidavit dated 22.5.2006 was filed by the respondents with a request to cancel the interim order. Thereafter, on 17.6.2006, this Court recorded the undertaking given by the Advocate General in the following words:
It is submitted by the learned Advocate General that the security given to the petitioner would not be altered till further orders are passed by this Court on this application. This statement is recorded.
After recording the undertaking, this Court also gave liberty to the Security Review Committee to consider the case of the petitioner on merits.
6. In the counter affidavit dated 22.5.2006 filed on behalf of the respondents, in paragraph 6 it is stated as follows:
As a matter of fact, there is no proposal to withdraw the security arrangement immediately. The withdrawal of security can be done only by following the prescribed procedure based on the recommendations of the Security Review Committee which is to meet after 30th June of 2006. The meeting of the Security Review Committee, if any, will take place only after 30th June 2006 and meanwhile the existing security provided is being continued.
7. A counter affidavit dated 25.8.2006 was filed on behalf of the respondents along with a petition to vacate the interim injunction. In paragraphs 9 and 10 of the said counter, it is stated as follows:
Para 9: At present the petitioner has been provided with “Y” Scale Security. Necessary report pertaining to the Threat Assessment has been received from the local police, “Q” Branch, SBCIB, SBCID and SIB. In the circumstances, it has become just and necessary for the Committee to meet and decide the matter on merits. Depending on the Threat Assessment, the Committee would take a decision pertaining to the provision of security to the petitioner. The continuance of security would largely depend upon the threat perception and such the Security Review Committee would decide on the matter.
Para 10: In these circumstances, it is submitted that the Security Review Committee was held on 22.8.2006. The Committee is comprised of Senior Official which include Principal Secretary, Home Department, Director General of Police, the Additional Director General of Police (Intelligence), Joint Director, Intelligence Bureau (IB), the Commissioner of Police, Chennai. After detailed discussions it was found that there is no threat to the petitioner and hence “Y” Scale of Security provided to him should be withdrawn.
8. The petitioner had filed a reply affidavit dated 07.9.2006. Though the petitioner had stated earlier that he was not able to give any factual details due to the urgency of the issue, in paragraph 4 of the reply affidavit, he had merely stated that an Officer at the level of Inspector General of Police met him one evening at his office around 7.00 PM and informed him the need to place him under ‘Y’ Category protection and that he must curtail his public appearance and movements. Though the petitioner withheld the name of the Officer, he had not given the details regarding date and month of the incident. It is also not clear as to when the meeting took place either before the petitioner was granted protection or after it was granted. In the same paragraph, the petitioner has also stated that the complete records from day one till this date needs to be perused in detail and the minutes of the review meetings and the reasons accorded for giving protection and the subsequent periodical review meetings under which ‘Y’ Category protection continued to be given to him are to be seen and analysed before this Court. He also reiterated the necessity for granting direction to furnish documents as sought for by him in W.P.M.P. No. 17754 of 2006. With reference to the allegations made in paragraph 10 of the counter affidavit dated 28.8.2006, in reply, he had stated as follows:
It is claimed in paragraph 10 that the Review Committee meeting held on 22.8.2006 decided that there is no threat to the petitioner and hence sought to withdraw the ‘Y’ scale security so for provided to the petitioner. I am at a loss to understand how the Police officials could become different kind of people with the change of the Ruling Party. The very same officials have found during earlier review meetings that the threat perception continues to me and have granted the ‘Y’ scale security. It is not the will and pleasure of any political party or the external dictation of any political party for creating records at the instigation of certain interested persons to suddenly withdraw the protection.
9. When the Miscellaneous Petition in W.V.M.P. No. 1682 of 2006 to vacate the interim injunction already granted, came up for hearing on 15.9.2006, with the consent of parties, the main writ petition itself was taken up for hearing.
10. After certain preliminary arguments, Mr. R. Viduthalai, the learned Advocate General produced the file containing the various minutes of the Review Committee Meeting starting from 01.01.2005 till 31.8.2006. He stated that the file was circulated only for the perusal of the Court and contents of the file may not be disclosed. When asked by the Court as to whether the State is claiming privilege over the file, the learned Advocate General answered in the affirmative and took time to file an affidavit in this regard. Therefore, the matter was adjourned to 22.9.2006. On that date, an affidavit sworn to by the Deputy Secretary to Government was filed wherein it is stated that since the file contains confidential matters pertaining to the individuals, who are under security coverage and disclosure of the particulars of the individuals would cause serious threat to the individuals concerned as well as general public, it was just and necessary to claim the privilege for production of the records. It is also stated that since the records are claimed to be privileged document, which are being produced for consideration of this Court, the writ petitioner is not entitled to peruse or seek any copies of the same. Therefore, leave was sought before this Court to treat the records as privileged documents as per Sections 123 and 124 of the Indian Evidence Act.
11. To the claim of privilege, the petitioner filed a reply affidavit dated 29.9.2006 to the additional counter affidavit disputing the stand of the State claiming privilege. It is stated by him that the Deputy Secretary to the Government is not competent to swear and that a valid claim of privilege can be made only if the disclosure of the same causes injury to public interest.
12. Thereafter, when this Court put a question to the learned Advocate General as to the nature of action taken on the telegram sent by the petitioner dated 15.5.2006, a counter affidavit dated 29.9.2006 was filed by the third respondent wherein it was stated by her that the Intelligence Section Officer, Thirumangalam Range, made discreet and confidential enquiries about the threat perception prevailing with respect to the petitioner and his family members. Further, she also stated that the enquiry reveals that there is no specific threat to the life of the petitioner and his family members and as a matter of fact, the petitioner had moved this Court the very next day after sending a telegram and obtained an order of injunction restraining the respondents from either withdrawing or altering the present strength of the Police protection along with weapons provided to his residence as well as to him. The third respondent also stated that the enquiries conducted based on the telegram of the petitioner did not reveal any threat perception for his life or his family members and no further action was required to be taken on the telegram.
13. For this, the petitioner filed a reply affidavit dated 29.9.2006 stating that no enquiry was made either with him or with his family members with respect to the threat perception and he questioned the style of enquiry conducted by the third respondent.
14. Even after filing of the counter affidavit, no steps were taken by the petitioner either to amend the prayer in the writ petition or to attack the decision taken in the Review Committee Meeting on 22.8.2006 to withdraw the security. The said meeting had taken place after liberty was granted by this Court and the decision of the said Committee Meeting was also disclosed in the counter affidavit.
15. Thereafter, the matter was listed on 29.9.2006. I have heard Mr. A.L. Somayaji, learned Senior Counsel representing M/s. S. Senthilnathan and L.P. Shanmugasundaram for the petitioner and Mr. R. Viduthalai, learned Advocate General, assisted by Mr. S. Rajasekar, learned Government Advocate, representing the respondents and perused the materials on record. Both parties addressed elaborate arguments.
16. Firstly, it was contended by Mr. A.L. Somayaji, learned Senior Counsel appearing for the petitioner, that in the absence of any material, the State cannot withdraw the security provided to the petitioner. Secondly, he had stated that Article 21 of the Constitution of India enables any person, whose life and liberty are threatened, to seek protection from Police and it is a constitutional mandate given by the Constitution of India. He submitted that the claim of privilege cannot be supported by the stand taken by the respondents and the contents of the file should be disclosed to the petitioner. He also prayed that production of the confidential document should be ordered by this Court. When questioned by the Court, the learned Senior Counsel fairly stated that he was not concerned about the level of security but when the petitioner had disclosed threat to his life and family members by sending a telegram, protection given to him should be continued in an appropriate level.
17. Per contra, the learned Advocate General appearing for the respondents contended that there was no substance in the writ petition and the petitioner got an injunction order even on the basis of apprehension and the Security Review Committee was not influenced by any political consideration and after deliberating the reports from various quarters including the intelligence agency, it arrived at the conclusion that there was no threat perception faced by the petitioner and recommended withdrawal of ‘Y’ level security granted to him. He also stated that the telegram sent by the petitioner was enquired into and it was decided that no action need to be taken on that score. He further submitted that the same Security Review Committee granted various levels of security to various personalities and it was incorrect to say that only persons belonging to the ruling party were provided with security and that the Court may be satisfied with the materials furnished by the State in this regard for which privilege has been claimed and the the learned Advocate General has no objection for the Court going through the file produced by him. He also stated that the judicial review in this regard is very limited and since there is adequate material for the decision taken by the authorities, the Court should not entertain the writ petition and the same is likely to be dismissed.
18. On the basis of the arguments addressed by the learned Senior Counsel appearing for the petitioner and the learned Advocate General representing the respondents, the following questions arise for determination by this Court:
(a) Whether the petitioner is entitled for the documents sought for in W.P.M.P. No. 17754 of 2006;
(b) Whether the privilege claimed by the State with reference to the minutes of Security Review Committee can be sustained;
(c) Whether the petitioner has a valid and enforceable right to continue the existing security level provided to him and the scope of judicial review, which is available to the Courts in a matter of this nature; and
(d) If not, to what relief the petitioner is entitled?
19. Contentions (a) and (b) and conclusions thereof:
19.1. The direction that is sought for by the petitioner in W.P.M.P. No. 17754 of 2006 seeking for several details and giving a political colour to the issue of providing security to various personalities in the State of Tamil Nadu will have to be taken together with the issue relating to the privilege. Though the petitioner, in his initial affidavit, stated that he will give the factual materials in support of the writ petition, at a later date, no such details were forthcoming. On the other hand, a petition of this nature is filed to fish out the information to support his contention. In a writ petition under Article 226 of the Constitution of India, such an exercise can never be permitted. In any event, details that are sought for by the petitioner, are squarely covered by the various minutes of the Security Review Committee conducted at periodical intervals and the State has claimed privilege over the said document and an affidavit sworn to, by the Deputy Secretary has been filed.
19.2. In support of his contention, the learned Senior Counsel appearing for the petitioner relied on the decision of the Supreme Court [People’S Union for Civil Liberties and Anr. v. Union of India and Ors.]. In paragraph 73 of the said decision, it is stated that in order to claim immunity from disclosure of unpublished State documents, the documents must relate to affairs of the State and disclosure thereof must be against interest of the State or public interest.
19.3. The learned Senior Counsel drew the attention of this Court to paragraph 80 of the said decision where paragraph 73 of S.P. Gupta’s case has been extracted by the Supreme court, which is as follows:
The court has thus to perform a balancing exercise and after weighing the one competing aspect of public interest against the other, decide where the balance lies. If the court comes to the conclusion that, on the balance, the disclosure of the document would cause greater injury to public interest then its non-disclosure, the court would uphold the objection and not allow the document to be disclosed but if, on the other hand, the court finds that the balance between competing public interests lies the other way, the court would order the disclosure of the document. This balancing between two competing aspects of public interest has to be performed by the court even where an objection to the disclosure of the document is taken on the ground that it belongs to a class of documents which are protected irrespective of their contents, because there is no absolute immunity for documents belonging to such class.
19.4. In this regard, it is vital to refer to the claim of privilege claimed by the respondents especially to paragraph 4 of the counter affidavit dated 20.9.2006 filed by the third respondent, wherein it is categorically stated as follows:
Since the records contain confidential matters pertaining to the individuals who are under Security coverage and disclosure of the particulars of the individuals would cause serious threat to the individuals concerned as well as general public, it is just and necessary to claim the privilege for production of the records.
19.5. Per contra, the learned Advocate General referred to the decision of the Supreme Court reported in (1993)4 SCC 119
R.K. Jain v. Union of India and in particular, he drew the attention of this Court to paragraphs 48 and 49 of the said judgment, which are as follows:
Para 48: In a democracy it is inherently difficult to function at high governmental level without some degree of secrecy. No Minister, nor a Senior Officer would effectively discharge his official responsibilities if every document prepared to formulate sensitive policy decisions or to make assessment of character rolls of co-ordinate officers at that level if they were to be made public. Generally assessment of honesty and integrity is a high responsibility. At high co-ordinate level it would be a delicate one which would further get compounded when it is not backed up with material. Seldom material will be available in sensitive areas. Reputation gathered by an officer around him would form the base. If the reports are made known, or if the disclosure is routine, public interest grievously would suffer. On the other hand, confidentiality would augment honest assessment to improve efficiency and integrity in the officers.
Para 49: The business of the Government when transacted by bureaucrats, even in personal level, it would be difficult to have equanimity if the inner working of the Government machinery is needlessly exposed to the public. On such sensitive issues it would hamper the expression of frank and forthright views or opinions. Therefore, it may be that at that level the deliberations and in exceptional cases that class or category of documents get protection, in particular, on policy matters. Therefore, the court would be willing to respond to the executive public interest immunity to disclose certain documents where national security or high policy, high sensitivity is involved.
19.6. In the light of the above, the claim of privilege made by the State has to be sustained. Accordingly, W.P.M.P. No. 17754 of 2006 stands rejected.
20. Contentions (c) and (d) and conclusions thereof:
20.1. Thereafter, the learned Senior Counsel appearing for the petitioner relied on the decision of the Supreme Court
Ganesh Bank Kurundwad Ltd. And Ors. v. THE Union of India and Ors. to drive home the point regarding judicial review over the State action and stated that there are three heads the grounds on which administrative action is subject to control by judicial review. The first ground is ‘illegality’, the second ‘irrationality’, and the third ‘procedural impropriety’. He also drew the attention of this Court to paragraph 52 of the said judgment, which reads as follows:
Therefore, to arrive at a decision on “reasonableness” the court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the court to substitute its view.
20.2. Thereafter, he submitted that in order to characterize a decision of the administrator as “irrational” the court has to hold, on material, that it is a decision “so outrageous” as to be in total defiance of logic or moral standards. He further stated that the test is to see whether there is any infirmity in the decision making process and not in the decision itself.
20.3. The sum and substance of the submission made by the learned Senior Counsel is that the decision must be bonafide and there must be material for arriving at a decision and if the material discloses irrationality or the decision is outrageous, the Court can interfere in such matters.
20.4. He further drew the attention of this Court to the decision of the Supreme Court
P.R.Muralidharan and Ors. v. Swami Dharmananda Theertha Padar and Ors. to press home the point that his client has a fundamental right to get police protection. In this regard, he drew the attention of this Court to paragraph 12 of the said decision and the relevant portion is extracted below:
It is one thing to say that in a given case a person may be held to be entitled to police protection, having regard to the threat perception, but it is another thing to say that he is entitled thereto for holding an office and discharging certain functions when his right to do so is open to question. A person could not approach the High Court for the purpose of determining such disputed questions of fact which were beyond the scope and purport of the jurisdiction of the High Court while exercising writ jurisdiction as it also involved determination of disputed questions of fact.
20.5. He also referred to the concurring opinion of Justice P.K. Balasubramanyan, which is found in paragraph 18 of the same judgment and the same is extracted below:
A writ of mandamus directing the police authorities to give protection to the person of a writ petitioner can be issued, when the court is satisfied that there is a threat to his person and the authorities have failed to perform their duties and it is different from granting relief for the first time to a person either to allegedly protect his right to property or his right to an office, especially when the pleadings themselves disclose that disputed questions are involved.
20.6. Per contra, the learned Advocate General pointed out the decision of the Supreme Court reported in (2006) 5 SCC 539
Howrah Mills Co. Ltd. and Anr. v. MD.Shamin and Ors. and contended that it was for the State to decide the level of security that is sought for by the parties. In that decision, the requisitioning party offered to provide fund for the Police security and in paragraph 13 of the said judgment, the Court recorded the submission of the counsel for the State, which is as follows:
Mr. Roy, learned Counsel for the State has categorically submitted before us that the State would perform its duties in the matter of maintenance of law and order and it shall provide protection to the property of the first appellant Company in discharge of the statutory duties of the State and the police. In this context, the authorities may consider whether it is necessary to engage a large force of policemen at this stage and consider posting only such number of personnel as may be found necessary for the protection of the property.
20.7. Referring to the earlier decision in P.R. Muralidharan’s case (cited supra), he stated that ultimately it is beyond the scope and purport of the jurisdiction of the court to determine such questions and a writ for Police protection has only a limited scope in this regard.
20.8. It is seen from the records that the writ petition itself was filed somewhere during the second week of May 2006. The Security Review Committee Meeting held on 07.6.2006 decided to continue ‘Y’ Scale security to the petitioner till the disposal of the case and decision should be taken after the disposal of the case. Thereafter, after getting the liberty from this Court, the Committee met on 22.8.2006 and decided to withdraw the security granted at ‘Y’ Scale to the petitioner after recording that there was no threat in his case. In the same meeting, it was decided to withdraw the security provided to several other persons including the petitioner.
20.9. As can be seen from the records that a periodical review is undertaken by the Security Review Committee, which consists of the Principal Secretary to Government, Home Department, Secretary to Public Department, Additional Secretary to Government, Home Department, Director General of Police, Commissioner of Police of Greater Chennai, Additional Director General of Police (Intelligence), Joint Director of Special Investigation Bureau, Chennai, Deputy Inspector General of Police, CID (Intelligence), and Superintendent of Police – I, Security Branch CID, Chennai. There has been no allegation made by the petitioner against this High Power Committee and all of them are senior officers belonging either to Indian Administrative Service or Indian Police Service and there is no reason to doubt that they will succumb to political pressure so as to withdraw only the protection given to the petitioner. On the other hand, a perusal of the various minutes shows that either some names were included in the list or excluded from the list and this has become a periodical exercise done by the High Power Committee.
20.10. Such an exercise is not as if only peculiar to the State of Tamil Nadu. As recently reported in the press, in Maharashtra, after the recent bomb blast, the Police have reduced the level of security to the existing list of persons. The same press report also shows that because of this, there is an increase of the police force available to the other duty by 2% and for 130 VVIPs’ security level was reduced and there is also a saving of Rs. 13 Crores to the State.
20.11. Recently, newspapers have also reported about a public interest litigation pending before the Delhi High Court where an Advocate sought for direction to the City Police to improve the law and order condition in the city. The said press report even extracted the averments made in the counter affidavit filed by the Union Home Ministry. Though one cannot go by paper reports, it is interesting to note that the Union Home Ministry had stated that in their experience, there are cases where the protectees have overplayed the level of threat to the security and in the public perception, VIP security has tendered to connote a picture more of VIPs than security and often protectees themselves were found to entertain such perception and demand special privileges.
20.12. In the light of the materials furnished, this Court is satisfied that there is no illegality or irregularity in the decision arrived at by the State. In this case, the level of security given to the petitioner was withdrawn based on the threat perception viewed by the High Power Committee. The sweeping allegations made by the petitioner against the higher level officers comprising the Security Review Committee is not justified and unwarranted. The allegation that they are politically biased is without any substance. In fact, in one such committee meeting only, the petitioner’s name was considered and he was granted protection for the past 18 months.
20.13. In this, it will be interesting to refer to a recent Article published in Deccan Chronicle written by Mr. Arun Nehru (former Union Minister for Defence Production) regarding the controversy raised about the withdrawal of security personnel given to the film personality Amitabh Bachchan. After advising the film personality not to go for any political crossfire over the said decision, the said author wrote as follows:
Both the Centre and the States must get extremely tough on security systems and only leaders facing a genuine threat from hostile groups need to be given security. It is absurd that leaders should be given Z plus, X, Y, Z security to protect them from each other’s followers in the state. We are a poor country and we deliver sermons for the poor, the weak and the deprived, yet sadly, our leaders, many of whom have retired, and their families spend millions of rupees in public money on what many consider as a status symbol. Security must be based on threat perceptions. Does every Cabinet or state minister need security? Do important MPs with political connections need gun-toting guards to impress their constituents? In the last year there have been over 50 incidents where security and defence personnel have fired their weapons in fits of personal rage and many innocents have been killed. Very often security personnel trained for a different purpose create a security risk as they lack the temperament for domestic duty and are not trained to act as personal staff.
20.14. It is thus obvious that this Court, sitting in appeal over the decision taken by the Security Review Committee, cannot decide as to what level of security a person should enjoy and whether the petitioner is at present receiving any threat perception. These are all largely left to the decision making process of the authorities constituted for this purpose and this Court does not find any infirmity in the decision making process so as to invalidate the decision itself.
20.15. In the light of the above, the prayer sought for by the petitioner cannot be granted as that is very sweeping and beyond the jurisdiction of this Court to confer any such right or privilege on the petitioner.
21. However, there is one thing which remains to be answered. Though the petitioner has sent a telegram dated 15.5.2006, the response received from the respondent is not very much satisfactory. It is stated in the counter affidavit filed by the third respondent that the Intelligence Officer, Thirumangalam Range, made discreet enquiry about the threat perception of the petitioner and his family members and that the enquiries reveal that there was no specific threat to the life of the petitioner and his family members. This is rightly countered by the petitioner in his counter affidavit by stating that no enquiry was made with him or with his family members about the threat perception. It must be seen that the petitioner is a Member of Parliament, Deputy leader of the Parliamentary Party to which he belongs and also a leading Advocate. When a telegram is sent to the respondents, they cannot merely contend that discreet enquiry was made. On the other hand, they should have approached the individual concerned and must have recorded his statement on that behalf. If the statement disclosed more information and if there are threatening calls and if such calls could be identified, then the respondents should have taken action on the basis of such information. One need not stop work merely on the basis that a writ petition was filed and pending before this Court. It is the incumbent duty on the part of the Police to properly investigate such complaints and take appropriate remedial measures and it does not require any Court direction.
22. The learned Advocate General representing the respondents assured that the State will make proper enquiry into the complaint and take appropriate action in this regard. Except recording this statement, no relief can be granted to the petitioner.
23. In the light of the above, the writ petition fails and the same shall stand dismissed. However, there will be no order as to costs. In view of the same, no further orders are necessary in W.P.M.P. No. 15419 of 2006 and W.V.M.P. No. 1682 of 2006 and the same also shall stand dismissed.
