JUDICIAL REVIEW OF POLITICAL QUESTION

Primary justiciability and secondary justiciability.

Scholars have divided justiciability under this doctrine into primary and secondary justiciability.
Primary justiciability decided whether a particular class of executive decision-making had any
potential amenability to judicial review at all. If the threshold was met, justiciability would then
also be considered in a secondary way, in determining whether particular decision-making could
be reviewed upon particular grounds.

In brief, primary justiciability referred to certain categories of political questions that were
beyond the remit of the courts, whereas secondary justiciability referred to the grounds of review
sought and whether a court had the necessary tools at its disposal to resolve the case, and to
the standard of review applied by the reviewing court. Primary justiciability revolved
around subject matter, whereas secondary justiciability revolved around grounds of review.

The distinction may best be explained through Haughey v Moriarty1, wherein it was held:

“Whether the Taoiseach or the government ought to invite a judge to be a sole member or other
member of a tribunal is a policy matter on which the plaintiffs, like other citizens, are entitled to
have their opinions. But it is a policy matter on which it would not be appropriate for this
Court to express an opinion. This Court realises, however, the importance of the work which
such tribunals may have to carry out in our system of government and sees no constitutional or
legal objection to a judge being a member, or the sole member, of such a tribunal provided he
or she is willing to serve and provided his or her absence from his or her normal duties does not
impose an undue strain on the work of his or her court and has the approval of its President.”

While the first highlighted portion might give the impression of the courts refraining from
interfering on principles of primary justiciability, the second highlighted portion indicates that
the court has in fact reviewed the constitutional appropriateness of appointment of judges to
chair public inquiries. Therein lies the difference between primary and secondary justiciability.

Baker v. Carr and primary justiciability

The judgment in Baker v. Carr2 laid down standards for determining primary justiciability for
political questions. Reliance was placed on the following paragraph:

“It is apparent that several formulations which vary slightly according to the settings in which
the questions arise may describe a political question, although each has one or more elements
which identify it as essentially a function of the separation of powers. Prominent on the surface
of any case held to involve a political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for non judicial discretion; or the
impossibility of a court's undertaking independent resolution without expressing lack of the
respect due coordinate branches of government; or an unusual need for unquestioning
1
[1998] IESC 17
2
369 U.S. 186 (1962)

1
adherence to a political decision already made; or the potentiality of embarrassment from
multifarious pronouncements by various departments on one question.”

It is argued that the aforesaid six yardsticks laid down by Justice Brennan set the standard for
determining issues of primary justiciability. However, the next paragraph is also pertinent, which
reads as follows:

“Unless one of these formulations is inextricable from the case at bar, there should be no
dismissal for nonjusticiability on the ground of a political question's presence. The doctrine of
which we treat is one of "political questions," not one of "political cases." The courts cannot
reject as "no law suit" a bona fide controversy as to whether some action denominated
"political" exceeds constitutional authority. The cases we have reviewed show the necessity for
discriminating inquiry into the precise facts and posture of the particular case, and
the impossibility of resolution by any semantic cataloguing.”

As noted, “impossibility of resolution by any semantic cataloguing” and the “necessity for a
discriminating inquiry into the precise facts and posture of the particular case” undercut any
arguments in favour of primary justiciability or a determination that a particular class of
decisions were not amenable to judicial review at all.

Justice Brennan thus effectively noted that despite there being multiple considerations which
prevented application of general principles of judicial review, there were no category of
decisions which were beyond judicial review.3

Thus, in the United States, matters do not strictly get excluded by the application of the
principles of primary justiciability as contended in the previous article, even more so since the
doctrine has come under a cloud and has been the subject matter of adverse criticism.

The observations that Baker set the standard for determining issues of primary justiciability does
not hold good, thereby also negating the argument of there being “rigid standards” for testing
justiciability of political questions in the United States.

Moreover, in Japan Whaling Association v. American Cetacean Society4, it was held:

“The court must first determine the nature and scope of the duty imposed upon the Secretary by
the Amendments, a decision which calls for applying no more than the traditional rules of
statutory construction, and then applying this analysis to the particular set of facts presented
below. We are cognizant of the interplay between these Amendments and the conduct of this
Nation's foreign relations, and we recognize the premier role which both Congress and the
executive play in this field. But under the Constitution, one of the Judiciary's characteristic roles
is to interpret Statutes, and we cannot shirk this responsibility merely because our decision may
have significant political overtones.”

3
https://www.barandbench.com/columns/the-political-question-doctrine-and-justiciability-of-seemingly-political-
matters (last visited on 29th July 2023)
4
478 U.S. 221 (1986)

2
POLITICAL QUESTION DOCTRINE IN USA

In the United States of America, the American Supreme Court in Baker v. Carr5 set the standards
for determining primary justiciability for political questions, which the American courts have
applied as a yard stick ever since.

These six yardsticks have since then been applied by the American courts to decide issues of
jurisdiction. For instance, by application of this doctrine, the American Supreme court has held
that constitutional amendments are not justiciable as they involve a political question.

Likewise, is the application of the above yardsticks to various following issues: Guarantee of a
Republic form of government is a political question to be resolved by the president and the
congress6; mode of amending Federal Constitution is a political question7; congressional
authority to exclude members who have met qualifications to serve is not a political question 8;
senate authority to try impeachments and impeachments are political questions9.

Courts in India would never be able to lay down such rigid standards to test justiciability of
political questions as the American Supreme court did in Baker v. Carr10. For as Seervai in
his 'Constitutional Law of India' observes, "there is no place in our Constitution for the doctrine
of the political question'', since that doctrine is based on, and is a consequence of, a rigid
separation of powers in the US Constitution.

POLITICAL QUESTION DOCTRINE IN UK

In England, the position has been different. There, the standard for a court to intervene shifts
from primary justiciability to the test of, “the grounds of review sought”. This has led to a
situation where, as the editors of de Smith’s Judicial Review state,

“…judicial review has developed to the point where it is possible to say that no power – whether
statutory or under the prerogative – is no longer inherently unreviewable”.

However, having said, that the British courts have also excluded certain issues from justiciability
as involving a political question though they do not state them to be disqualified on the ground of
“primary justiciability”.

Speaking for the House of Lords in the Council of Civil Service Unions v Minister for the Civil
Service11, Lord Roskill held,

“Prerogative powers such as those relating to making of treaties, the defense of the realm, the
dissolution of parliament and the appointment of ministers as well as others are not, I think
susceptible to judicial review because their nature and subject matter are such as not amenable
to the judicial process. The courts are not the place wherein to determine whether a treaty
5
369 U.S. 186 (1962)
6
Luther v. Borden 48 U.S. 1 (1849)
7
Coleman v. Miller 307 U.S. 433 (1939)
8
INS v. Chadha 462 U.S. 919 (1983)
9
Nixon v. United States 418 U.S. 683 (1974)
10
369 U.S. 186 (1962)
11
[1984] UKHL 9,

3
should be concluded or the armed forces disposed in a particular manner or parliament
dissolved on one date rather than another”.

This case established that judicial review depends on the nature of the government's powers, not
their source.

English courts have placed outside the general principles of judicial review issues such as the
decision that there is an “ emergency threatening the life of the nation 12; the substance of a
medical expert’s judgment13; the decision of a public prosecutor to initiate a prosecution 14; or
issues relating to the allocation of scarce resources15.

So in the UK, unlike in the United States of America, it is safe to conclude that matters do not
get excluded by the application of the principle of primary justiciability. Matters are heard on
merits and boundaries for the court’s interference are determined, and those boundaries are
guidelines but not unsurmountable walls.

THE POLITICAL QUESTION DOCTRINE IN INDIA

In AK Roy v. Union of India16, Shah, J. observed that

"Constitutional mechanism in a democratic polity does not contemplate existence of any function
which may qua the citizens be designated as political and orders made in exercise whereof are
not liable to be tested for their validity before the lawfully constituted courts."

In practice, however, the doctrine of political question applies in a number of circumstances.

In State of Rajasthan v. Union of India17, Justice Untwalia conceded a very limited power of
judicial review where political issues were involved and opined that the Court should not enter
into 'prohibited areas”. Justice Goswami further observed that the Court was concerned with
legal rather than political disputes. Taking a similar judicial stance, Justice Fazal Ali postulated
that:

"The Court does not possess the resources which are in the hands of the Government to find out
the political needs that they seek to observe and the feelings or the aspiration of the Nation that
require a particular action to be taken at a particular time.”

Justice Bhagwati held that the Court should not enter into a 'political thicket' "if it is to retain its
legitimacy with the people.” He also characterized certain decisions as not being 'judicially
discoverable."

12
A and others v. Secretary of State for Home Department [2004] UKHL 56
13
R v. Cambridge Health Authority 1995 WLR 898
14
R Vs. Director of Public Prosecutions [1999] 3 W.L.R. 175
15
R v. Secretary of State for Environment 1991 UKHL 3
16
1982 AIR 710
17
1977 AIR 1361

4
A perusal of the observations in the Rajasthan case would appear to suggest that some of the
judges were inclined to adopt an approach that denies judicial review where the doctrine of "the
political question" was involved. However, it is essential to appreciate certain aspects of the
Rajasthan case.

As pointed out by the Supreme Court in AK Roy,

“The Rajasthan case is often cited as an authority for the proposition that the courts ought not to
enter the "political thicket". It has to be borne in mind that at the time when that case was
decided, Article 356 contained clause (5) which was inserted by the 38th Amendment, by which
the satisfaction of the President mentioned in clause (1) was made final and conclusive and that
satisfaction was not open to be questioned in any court on any ground. Clause (5) has been
deleted by the 44th Amendment and, therefore, any observations made in the Rajasthan case on
the basis of that clause cannot any longer hold good.”

Venkatachaliah CJ had occasion to consider the scope of the doctrine in RC Poudyal v. Union of
India.18 The contention raised in that case was that the terms and conditions of admission of a
new territory into the Union of India are eminently political questions which the court should
decline to decide for the reason that these questions lack adjudicative disposition.

The Court conceded that it was obvious that exercise of such powers was guided by political
issues of considerable complexity, many of which may not be judicially manageable. It,
however, held that for that reason, it cannot be held that the Article confers on the Parliament an
unfettered power which was immune from judicial scrutiny. The Court held that the exercise of
such power was restricted by the fundamental percepts of the Indian Constitution.

In landmark judgment of Minerva Mills Ltd. v. Union of India 19, Justice Bhagwati observed that
merely because a question has a political complexion, that by itself is no ground why the court
should shrink from performing its duty under the Constitution, if the issues otherwise raise an
issue of Constitutional determination.

In SR Bommai v. Union of India20, the Supreme Court had occasion to deal with the issue of the
political question doctrine at length. The Court held that if a legal question is camouflaged by
the political thicket argument, the the doors of a Constitutional court are not closed, nor can they
be prohibited to enter in the political thicket in particular, when the Constitution expressly has
entrusted the duty to it.

Similarly in BR Kapur v. State of Tamil Nadu21, the Supreme Court has held that it is the duty of
the court to interpret the Constitution and that it must perform this duty regardless of the fact that
the answer to the question would have a political effect.

The provisions of the Indian Constitution explicitly exclude many legislative and executive acts
from judicial review. For instance, powers of judicial review of constitutional courts are
expressly precluded or curtailed by some of the Articles of the Constitution. They are Articles
18
1993 AIR 1804
19
1980 AIR 1789
20
1994 AIR 1918
21
W.P.(C) No. 246 of 2001

5
31-A, 31-B, read with Ninth Schedule, 37,71 (4),74 (2) 77(2), 103 (2),189(2),122 (1), 212(1),
262,323-A, 323-B,329, 363, and the Tenth schedule.

There is good reason to believe that such protection has been afforded because many decisions
taken under these Articles could be termed political decisions and determination of legal issues
arising under them could be termed political questions.

However, even in respect of issues arising under these provisions, the Indian judiciary has not
completely turned down jurisdiction. Astonishingly, the precise principles on the basis of which
the explicit provisions of the Constitution have been side stepped are difficult to fathom.

Abstract or indeterminate power in the hands of the executive or the legislature would result in
tyranny and totalitarianism. In the hands of the judiciary, it can result in arbitrariness and
discrimination. A situation that we hope the judiciary would strive to avoid.

In Indra Sawhney22, it was held:

“The political questions doctrine, however, does not mean, that anything that is tinged with
politics or even that any matter that might properly fall within the domain of the President or the
Congress shall not be reviewable, for that would end the whole constitutional function of the
courtUnder our Constitution, the yardstick is not if it is a legislative act or an executive decision
on a policy matter but whether it violates any constitutional guarantee or has potential of
constitutional repercussions as enforcement of an assured right, under Chapter III of the
Constitution, by approaching courts is itself a fundamental right. The “constitutional fiction” of
political question, therefore, should not be permitted to stand in way of the court to, “deny the
Nation the guidance on basic democratic problems.”

In Gurudevdutta,23 it was held:

“The concept of political question doctrine, being basically of American origin, cannot possibly
be confidently reached until the matter is considered with special care, upon bestowing proper
attention and in the event of a conclusion which lends credence to the question raised viz. as to
whether the question is a political question or not, judicial inclination to interfere cannot be
faulted though however not otherwise.”

In BR Kapur v. State of TN24, it was held:

“The question before us relates to the interpretation of the Constitution. It is the duty of this
Court to interpret the Constitution. It must perform that duty regardless of the fact that the
answer to the question would have a political effect.”

From the aforesaid decisions, it is evident that the doctrine has a very limited role to play in
India, the contours of which need no further elaboration for the purpose of determination of sub
judice matters specified in the first paragraph of the post.

22
AIR 1993 SC 477
23
Appeal (civil) 2298 of 2001
24
Writ Petition (civil) 242 of 2001

6
Furthermore, it is notable that certain provisions of the Constitution [Articles 31-A, 31-B, read
with Ninth Schedule, 37,71 (4),74 (2) 77(2), 103 (2),189(2),122 (1), 212(1), 262,323-A, 323-
B,329, 363, and the Tenth Schedule] excluded many legislative and executive acts from judicial
review since they, in his view, might constitute political questions.

Commentators have held that even if there are clauses excluding judicial review in the
Constitution, they would constitute unique constitutional clauses excluding courts, but would
hardly add up to a “political question doctrine”.25

Moreover, it is essential to understand that the Indian Constitution, as was envisioned and as it
stood at its inception, did not provide a lot of scope for categorizing certain areas as “political
questions” outside the scope of judicial review.

Contrary to what was argued, exclusion of judicial review would not constitute a relevant
threshold in determining political questions. While the argument does seem attractive, ascribing
to such a view would amount to stating that Parliament, in its constituent power, has
untrammelled powers in determining or increasing the scope of what domains constitute
“political questions” considering that at least half the provisions specified by the previous author
were inserted in as amendments.26

Even if the Constitution can be amended to categorise certain decisions as “political decisions”
by excluding them from judicial review, the amendment still cannot abrogate the “basic
structure” of the Constitution, and hence, cannot read in the “strict concept” of separation of
powers which is foreign to our constitutional scheme, nor can it exclude judicial review, which
also forms a part of the basic structure. Separation of powers as envisioned in India is different
from the rigid doctrine which is envisioned in the USA.

Regardless of that, common law jurisprudence on finality clauses shows that even when the
jurisdiction of the court is ‘ousted’, courts still judicially review the ‘decision’ or ‘action’ to see
if the ‘immunized’ decision has been rendered properly or lawfully.

It is worthwhile to examine the decision in Anisminic27 of the House of Lords, which is a very
influential precedent on finality or ‘ouster’ clauses excluding judicial review. Here, it was held
that an ouster clause would not limit the jurisdiction of the court if the determination of the lower
forum, which was to be immune, was not a ‘real’ or ‘valid’ determination but a nullity.

A similar line of jurisprudence may be seen in India. In Kihoto Hollohan v. Zachillhu28, it was
held that the finality embodied in paragraph 6 of the Tenth Schedule of the Constitution did not
detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution
insofar as infirmities based on violations of constitutional mandates, mala fides, non-compliance
with rules of natural justice, and perversity were concerned. This was again reiterated by the
Supreme Court while interpreting the finality clauses in Articles 122 and 212.

25
https://www.barandbench.com/columns/litigation-columns/the-conundrum-of-a-political-question (last visited on
29th july2023)
26
Id
27
[1969] 148 2 A.C.
28
1992 SCR (1) 686

7
 JUDICAL REVIEW OF POLICY MAKING

Introduction

Judicial review is the cornerstone of constitutionalism which implies limited Government. It is

the duty of the judiciary to keep different organs of the state within the limits power conferred
upon them by the constitution. The legitimacy of judicial review is based in the rule of law, and
the need for public bodies to act according to law. Judicial review is a means to hold those who
exercise public power accountable for the manner of its exercise, especially when decisions lie
outside the effective control of the political process. Judicial Review is a great weapon through
which arbitrary, unjust harassing and unconstitutional laws are checked. The Constitution of
India invests our independent judiciary, especially the Apex Court with extensive jurisdiction
over the acts of the legislature and the executive. Judicial review is part of the basic structure and
cannot be altered even by amending the Constitution. It is the judiciary which ensures the
effectiveness of Judicial Review. The independence and integrity of our judiciary is therefore of
the highest importance not only to the judges but also to people at large who seek judicial redress
against perceived legal injury or executive excess. In India the power to enforce the fundamental
rights was conferred on both the Supreme Court and the High Courts. 29

The judiciary can test not only the validity of laws and executive actions but also of
constitutional amendments. It has the final say on the interpretation of the Constitution and its
orders, supported with the power to punish for contempt, can reach everyone throughout the
territory of the country. Since its inception, the Supreme Court has delivered judgments of far-
reaching importance involving not only adjudication of disputes but also determination of public
policies and establishment of rule of law and constitutionalism. In recent years the judiciary has
widened its field of operation by declaring judicial review as a basic feature of the Constitution.
Supreme Court has not merely interpreted the language of the Constitution but also pronounced
on issues which involve matters of policy. The power of judicial review has in itself the concept
of separation of powers an essential component of the rule of law, which is a basic feature of the
Indian Constitution. Every State action has to be tested on the anvil of rule of law and that
exercise is performed, when occasion arises by the reason of a doubt raised in that behalf by the
courts.

Judiciary and Policy Decisions: Does Judiciary Interfere in the Policy Decisions of the
Government in India The Indian judiciary was given the uphill task of upholding the right of
constitutional remedies. Chairman of the Drafting Committee of the Constitution, Dr B.R.
Ambedkar, aptly quoted this recourse to judicial authorities for upholding the right to
constitutional remedies as the heart and soul of the Indian Constitution. The magic wand of
judicial review calls for an interference only when patently manifest farce is played on the Indian
Constitution. Powers, when used on the stilts of justification, result in redefinition of its ambit,
whereas, inappropriate use of its refulgence departs the sheen of its glory. Constitution of India is
based on the basic principle of “separation of powers”, though there is some overlapping.

29
Judicial Review Of Policy Decisions Of The Goverment: New Challenges And Dimensions Of Judiciary In India
Dr. Sangeeta Mandal

8
There are mainly three wings of the State, namely, legislature, executive and judiciary. Each
wing of the State has the power to act in its own sphere of activity. Legislature is to make laws.
Executive is to make policies (subject to law), implement them, and run the administration.
Judiciary is to apply laws, interpret laws, and to decide disputes and deliver justice. This is only a
basic description of their activities. Therefore, making policies and executing them comes within
the sphere of activities of the executive. It is not within the power of the judiciary. Moreover, the
judiciary does not have the expertise and the domain knowledge to make policies or to amend
them. On the other hand, the executive has experts, professionals, administrators, advisors, etc. 30,
in a given field and has the expertise to make policies after taking into consideration all aspects
of a matter. Generally, the judiciary does not interfere in the policy decisions of the Government
which are in the domain of the executive. However, there are situations where the courts may
interfere in the policy decisions of the Government. For example, if a policy decision is in
violation of the fundamental rights guaranteed under the Constitution, or in violation of other
provisions of the Constitution, the courts may intervene.
Likewise, if a policy decision violates an Act of the Parliament or the Rules made thereunder, the
courts may again intervene. In the case of Col. A.S. Sangwan v. Union of India31 , the Supreme
Court held as under (in the words of Justice V.R. Krishna Iyer): “A policy once formulated is not
good for ever; it is perfectly within the competence of the Union of India to change it, rechange
it, adjust it and readjust it according to the compulsions of circumstances and the imperatives of
national considerations. We cannot, as court, give directives as to how the Defence Ministry
should function except to state that the obligation not to act arbitrarily and to treat employees
equally is binding on the Union of India because it functions under the Constitution and not over
it.”32Though this judgment is in respect of the facts of a particular case, the legal principles laid
down in it are applicable in other similar situations where policy decisions are taken or changed
by the Government from time to time.
In the case of DDA v. Joint Action Committee33, Allottee of SFS Flats, the Supreme Court held as
under: “ An executive order termed as a policy decision is not beyond the pale of judicial review.
Whereas the superior courts may not interfere with the nitty-gritty of the policy, or substitute one
by the other but it will not be correct to contend that the court shall lay its judicial hands off,
when a plea is raised that the impugned decision is a policy decision. Interference therewith on
the part of the superior court would not be without jurisdiction as it is subject to judicial review.”
“Broadly, a policy decision is subject to judicial review on the following grounds:
(a) if it is unconstitutional;
(b) if it is dehors the provisions of the Act and the regulations;
(c) if the delegatee has acted beyond its power of delegation;
(d) if the executive policy is contrary to the statutory or a larger policy.”
30
H.R. Khanna, Making of India’s Constitution, Eastern Book Company, 2008.
31
AIR 1981 SC 1545
32
Ibid
33
AIR 2008 SC 1343

9
Above two decisions of the Supreme Court are only representative of a large number of decisions
on this issue. The basic principle remains the same. Judiciary will generally not interfere in the
policy decisions of the Government. A policy decision taken by the Government is not liable to
interference34, unless the Court is satisfied that the rule-making authority has acted arbitrarily or
in violation of the fundamental right guaranteed under Articles 14 and 1635
Dealing with the powers of the Court while considering the validity of the decision taken in the
sale of certain plants and equipment of the Sindri Fertilizer Factory, which was owned by a
public sector undertaking, to the highest tenderer, the Supreme Court in Fertilizer Corpn.
Kamgar Union (Regd.), Sindri v. Union of India36, while upholding the decision to sell, observed
that: “ … We certainly agree that judicial interference with the administration cannot be
meticulous in our Montesquieu system of separation of powers. The court cannot usurp or
abdicate, and the parameters of judicial review must be clearly defined and never exceeded. If
the directorate of a government company has acted fairly, even if it has faltered in its wisdom,
the court cannot, as a super auditor, take the Board of Directors to task. This function is limited
to testing whether the administrative action has been fair and free from the taint of
unreasonableness and has substantially complied with the norms of procedure set for it by rules
of public administration.” In Premium Granites v. State of T.N37. while considering the court’s
powers in interfering with the policy decision, it was observed that-
“It is not the domain of the Court to embark upon unchartered ocean of public policy in an
exercise to consider as to whether a particular public policy is wise or a better public policy can
be evolved. Such exercise must be left to the discretion of the executive and legislative
authorities as the case may be……” The validity of the decision of the Government to grant
licence under the Telegraph Act, 1885 to non-government companies for establishing,
maintaining and working of telecommunication system of the country pursuant to government
policy of privatisation of telecommunications was challenged in Delhi Science Forum v. Union
of India38. It had been contended that telecommunications was a sensitive service which should
always be within the exclusive domain and control of the Central Government and under no
situation should be parted with by way of grant of lance to non-government companies and
private bodies. While rejecting this contention, it observed that: “ … The national policies in
respect of economy, finance, communications, trade, telecommunications and others have to be
decided by Parliament and the representatives of the people on the floor of Parliament can
challenge and question any such policy adopted by the ruling Government….”
The reluctance of the court to judicially examine the matters of economic policy was again
emphasised in Bhavesh D. Parish v. Union and India 39 and while examining the validity of
Section 45-S of the Reserve Bank of India Act, 1934, it was held that the services rendered by
certain informal sectors of the India economy could not be belittled. However, in the path of
34
Akhil Bharat Goseva Sangh v. State of A.P., (2006) 4 SCC 162
35
K. Narayanan v. State of Karnataka, AIR 1994 SC 55
36
(1981) 1 SCC 568
37
(1994) 2 SCC 691, 714
38
AIR 1996 SC 1356
39
(2000) 5 SCC 471

10
economic progress, if the informal system was sought to be replaced by a more organised
system, capable of better regulation and discipline, then this was an economic philosophy
reflected by the legislation in question. Such a philosophy might have its merits and demerits.
But these were matters of economic policy. They are best left to the wisdom of the legislature
and in policy matters the accepted principle is that the courts should not interfere.Moreover in
the context of the changed economic scenario the expertise of people dealing with the subject
should not be lightly interfered with. The consequences of such interdiction can have large-scale
ramifications and can put the clock back for a number of years. The process of rationalisation
station of the infirmities in the economy can be put in serious jeopardy and, therefore, it is
necessary that while dealing with economic legislations, this Court, while not jettisoning its
jurisdiction to curb arbitrary action or unconstitutional legislation, should interfere only in those
few cases where the view reflected in the legislation is not possible to be taken at all.
In Narmada Bachao Andolan v. Union of India 40, there was a challenge to the validity of the
establishment of a large dam. It was held by the majority that: “It is now well settled that the
courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision.
Whether to have an infrastructural project or not and what is the type of project to be undertaken
and how it has to be executed, are part of policy-making process and the courts are ill-equipped
to adjudicate on a policy decision so undertaken. The court, no doubt, has a duty to see that in the
undertaking of a decision, no law is violated and people’s fundamental rights are not transgressed
upon except to the extent permissible under the Constitution…”Buttressing the same point in
Balco Employees’ Union (Regd) v. Union of India 41, it was held that in a democracy, it is the
prerogative of each elected Government to follow its own policy. Often a change in Government
may result in the shift in focus or change in economic policies. Any such change may result in
adversely affecting some vested interests. Unless any illegality is committed in the execution of
the policy or the same is contrary to law or mala fide, a decision bringing about change cannot
per se be interfered with by the court. Faith reposed on the judiciary demands recognition of its
limits. In Printers (Mysore) Ltd. v. M.A. Rasheed 42, the Supreme Court stated that: However, this
concept of democracy as rights based with limited governmental power, and in particular of the
role of the courts in a democracy, carries high risks for the Judges and for the public. Courts may
interfere inadvisedly in public. The wholesome rule in regard to judicial interference in
administrative decisions is that if the Government takes into consideration all relevant factors,
eschews from considering irrelevant factors and acts reasonably within the parameters of the law,
courts would keep off the same4324 .
In Ugar Sugar Works Ltd. v. Delhi Admn.44, quoting law laid down in an English Court, the
Supreme Court said that: “It would also be prudent to recall the following observations of Lord
Justice Lawton in Laker Airways Ltd. Deptt. of Trade45, while considering the parameters of
40
(2000) 10 SCC 664
41
AIR 2002 SC 350
42
(2004) 4 SCC 460

43
Federation of Railway Officers Assn. v. Union of India, (2003) 4 SCC 289
44
(2001) 3 SCC 635
45
1977 QB 643 : (1977) 2 WLR 234

11
judicial review in matters involving policy decisions of the executive: In the United Kingdom
aviation policy is determined by Ministers within the legal framework set out by Parliament.
Judges have nothing to do with either policy making or the carrying out of policy. Their function
is to decide whether a Minister has acted within the powers given him by statute or the common
law. If he is declared by a court, after due process of law, to have acted outside his powers, he
must stop doing what he has done until such time as Parliament gives him the powers he wants.
In a case such as this I regard myself as a referee. I can blow my judicial whistle when the ball
goes out of play; but when the game restarts I must neither take part in it nor tell the players how
to play.”
Apart from the decisions rendered by the Supreme Court in the supra cited judgments, in catena
of other cases, the court has dithered to indulge itself with matters involving domains of the
executive and the legislature. The courts have also refused to interfere with regard to the
establishment of Company Law Board46, education policy47, economic policy or directions given
by Reserve Bank of India48, price fixation49, inclusion of a particular language in the Eighth
Schedule50, administration of cooperative societies5133, fixing of criteria for admission to a
University52, amongst others.
Judicial Review of Policy Decisions in India:
Restraint Exercised by the Judiciary In our country, restraint consistently exercised by the
Judiciary when it came to the review of policy decisions. In Rustom Cavasjee Cooper v. Union
of India53 (commonly known as “Bank Nationalization Case”) the Supreme Court held that it is
not the forum where conflicting policy claims may be debated; it is only required to adjudicate
the legality of a measure which has little to do with relative merits of different political and
economic theories. In Delhi Science Forum v. Union of India54, a Bench of three learned Judges
of the Supreme Court held while rejecting a claim against the opening up of the telecom sector,
reiterated that the forum of debate and disclosure over the merits and demerits of a policy is the
Parliament.
It restated that the services of the Supreme Court are not sought till the legality of policy is
disputed, and further, that no direction can be given or be expected from the courts, unless while
implementing such policies, there is violation or infringement of any of the constitutional or
statutory provisions. In 2012, with regard to the legality on allocation of 2G spectrum on first
time serve basis, the Apex Court held as follows: 55 “To summarize in the context of the present
Reference, it needs to be emphasized that this Court cannot conduct a comparative study of the
46
Satish Chandra v. Union of India, (1994) 5 SCC 495
47
English Medium Students Parent Assn. v. State of Karnataka, (1994) 1 SCC 550
48
Peerless General Finance and Investment Co. Ltd. v. RBI, (1992) 2 SCC 343
49
Pallavi Refactories v. Singareni Collieries Co. Ltd., AIR 2005 SC 744
50
Kanhaiya Lal Sethia v. Union of India, (1997) 6 SCC 573
51
Bhandara District Central Cooperative Bank Ltd. v. State of Maharashtra, AIR 1993 SC 59
52
Jawaharlal Nehru University Students’ Union v. Jawaharlal Nehru University, (1985) 2 SCC32
53
AIR 1970 SC 565
54
AIR 1996 SC 1356
55
Centre for Public Interest Litigation v. UOI, (2012) 3 SCC 1

12
various methods of distribution of natural resources and suggest the most efficacious mode, if
there is one universal efficacious method in the first place. It respects the mandate and wisdom of
the Executive for such matters”. In the recent past, the Supreme Court has adjudicated upon
various decisions which have had a detrimental effect on the political motives of the Executive.
In case of U. P. power Corpn. v. Rajesh Kumar56, the controversy was pertaining to reservation
in promotion for the Scheduled Castes and Scheduled Tribes with consequential seniority as
engrafted of relaxation grafted by way of a proviso to Article 335 of the Constitution of India.
Such reservation had always withstood judicial scrutiny by the dictum in M. Nagaraj v. Union of
India. The more specific question involved in the present case was the validity of the provisions
contained in Rule 8-A of the U. P. Government Servants Seniority Rules, 1991 for brevity ‘the
1991 Rules’) that were inserted by the U.P. Government Servants Seniority (3rd Amendment)
Rules, 2007. The Court observed that: “In the ultimate analysis, we conclude and hold that
Section 3(7) of the 1994 Act and Rule 8A of the 2007 Rules are ultra vires as they run counter to
the dictum in M. Nagaraj case. The appeals arising out of the final judgment of Division Bench
at Allahabad are allowed and the impugned order is set aside.”
In 1995, T.N. Godavarman Thirumulpad filed a writ petition with the Supreme Court of India to
protect the Nilgiris forest land from deforestation by illegal timber operations. The Supreme
Court expanded the Godavarman case57 from a matter of ceasing illegal operations in one forest
into a reformation of the entire country’s forest policy. In its first order on the Godavarman case,
the Court suspended tree felling across the entire country, paralyzing wood-based industries.
Despite a series of subsequent orders with far-reaching implications, the case is still pending in
the Supreme Court. In the process of hearing over 800 interlocutory applications since 1996, the
Court has assumed the roles of policymaker, administrator of policy, and interpreter of law. The
Supreme Court’s vast assumption of powers concerning environmental issues has no precedence
from past cases, neither in India nor in other developing countries. The Godavarman case opened
a Pandora’s Box that continues to affect industries and forest dwellers across the country.
The Hon’ble Supreme Court, In B.A.L.C.O. Employees Union (regd.) v. Union of India quoted
“In examining a question of this nature where a policy is evolved by the Government judicial
review thereof is limited. When policy according to which or the purpose for which discretion is
to be exercised is clearly expressed in the statute, it cannot be said to be an unrestricted
discretion. On matters affecting policy and requiring technical expertise Court would leave the
matter for decision of those who are qualified to address the issues.
Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or
irrational or abuse of the power, the Court will not interfere with such matters”. Much of judicial
review’s utility exist because it is highly flexible, and when a statute does not provide for a
review or appeal, judicial review’s inherent flexibility provides the citizen with a remedy where
one might otherwise not exist. However, judicial review will not normally be permitted if there is

56
(2012) 7 SCC 1
57
T.N. Godavarman Thirumulpad v. Union of India, Writ Petition No. 202 of 1995 41 (2002)

13
alternative appellate provision. Then in the Vodafone International Holding BV v. Union of
India , the Supreme Court ruled against tax demand to the tune of 11000 crores rupees and held
that the transaction involved was a commercially planned transaction and was not a case of tax
evasion or tax mitigation. Moving in this direction, the apex Court in Sidheswar Sahakari
Sakhar Karkhana Ltd. v. Union of India, was of the opinion that normally the Court should not
interfere in policy matter which is within the purview of the government unless it is shown to be
contrary to law or inconsistent with the provisions of the Constitution. Therefore, it was held that
grant of concession, exemption, incentive and rebate is a matter of policy with the government
under the Central Excise Act, 1944, and hence, Court should not interfere unless found violative
of law and Constitution. The Court was quick to add that this principle of judicial review is not a
matter of exclusion of the power of judicial review but of judicial “self-restraint”. Before us there
are various instances where serious administrative actions lapses in government department.
Concluding Remarks
Faith reposed on the judiciary by the people of India, stands on a much higher rung than on any
other organ of the State. This is because of the judiciary being considered as the land of last
resort. Judicial review of administrative actions is now a well-established norm. It is permissible
on the ground of illegality or irrationality or procedural impropriety. But it is also well settled
that administrative decisions involving policy considerations have been put on a different
pedestal. Though they are not totally immune from judicial review, yet certain grounds, which
are available in the case of administrative decisions not involving policy considerations, are not
open for challenging the policy decisions. By and large the courts observe restraint in deciding
the validity of issues involving policy. Since, Courts do not sit as an appellate authority over the
policy considerations, it cannot examine the correctness, suitability and appropriateness of the
policies. The executive has the authority to formulate a policy and the courts can interfere with it
only if it violates the fundamental rights enshrined in the Constitution or is opposed to any
provision of the Constitution or law. A court cannot interfere with a policy either on the ground
that it is erroneous or that a better and fairer alternative was available. The administrative actions
and policies of the government which relate to the enforcement of fundamental rights of the
people and are of public importance, must be framed in consonance with the principles of policy
and mandate of the Constitution.
The adoption of such an all-powerful attitude by the judiciary does not augur well for a healthy
democracy. This is underscored by the fact that judiciary as an institution is not accountable to
the people in the same way as the legislature and the executive. The actions of the executive are
subject to judicial review when there is social, economic or political injustice – or departure from
the provisions of law and the constitution. When the legislature makes laws beyond
constitutional bounds or acts arbitrarily contrary to its basic structure, the highest court examines
and corrects. When the judiciary is guilty of excesses, only a larger Bench or a constitutional
amendment can intervene. Even today, the only mode of removal of judges as prescribed in the
constitution is impeachment, which is too Herculean a task to be easily undertaken. However, in
certain situations, some of which are mentioned above, the courts can and do interfere in the
policies made by the Government and, in fact, there are a very large number of instances when

14
the policies made by the Government have been struck down by courts on grounds such as the
policy being unconstitutional, being against laws made by legislature, being arbitrary, etc. For
example, in 2G scam, Government policy decision to allocate 2G spectrum was struck down. So
was the case in coal scam case.

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