Policy, Political Questions and Non-Justiciability
Chapter -Seven
Syllabus topic 7, "Limits of judicial review"
Pages 350 to 352 of 430
In one line
Some decisions are for the government because they are political or economic choices, and a court that decided them would be governing.
In the wording a student can write in an exam: a court will not review the wisdom of a policy decision, an economic choice, a matter of defence or foreign affairs, or a question the Constitution commits to another organ; it will review whether the decision was within power, taken by the competent authority, on relevant considerations and in accordance with a fair procedure, so the limit is on the intensity of review rather than on its availability.
The proposition and its source
Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds that although the separation of powers is not recognised in India in its absolute rigidity, the Constitution makers meticulously defined the functions of the organs of the State, that the legislature, executive and judiciary must function within their own spheres, and that while the powers of the legislature and the executive are subject to judicial restraint, the only check on the court's own exercise of power is the self-imposed discipline of judicial restraint; the court cannot direct the executive on matters of policy or act as an appellate authority over it.
The categories
Economic and fiscal policy. Rates of tax, subsidies, price control, the choice between public and private provision. Shri Sitaram Sugar Co. Ltd. v. Union of India, AIR 1990 SC 1277, is the standard example: price fixation is legislative in character, no hearing is owed, and review is confined to asking whether the Government acted within the four corners of the Act, took into account the matters the Act required, and was not so arbitrary that no reasonable authority could have fixed that figure.
Defence and national security. Council of Civil Service Unions v. Minister for the Civil Service, [1985] AC 374, holds that the decision whether the requirements of national security outweigh a duty of fairness is for the Government and not for the courts, because the Government alone has access to the necessary information and the judicial process is unsuitable for such decisions; but that where a decision is challenged as unfair, the Government must produce evidence that it was in fact based on grounds of national security.
Foreign affairs and treaty-making.
The choice of a policy among lawful alternatives. Whether to nationalise, whether to build a dam, whether to admit private universities.
Matters committed by the Constitution to another organ. The internal proceedings of a legislature, subject to Article 122 and Article 212; the President's satisfaction in matters where the Constitution makes it final.
What is still reviewable
Power. Whether the authority had it.
Policy, Political Questions and Non-Justiciability
Competence. Whether the right authority exercised it.
Procedure. Where a hearing or a consultation was required.
Relevance and purpose. A policy adopted for an object outside the Act is bad however wide the discretion.
Fundamental rights. A policy which infringes Part III is reviewable however political it is, and proportionality applies: Justice K.S. Puttaswamy (Retd.) v. Union of India, AIR 2017 SC 4161.
Manifest arbitrariness. Cellular Operators Association of India v. Telecom Regulatory Authority of India, AIR 2016 SC 2336, struck down a regulation for it.
So the limit is not that policy is beyond the court but that the merits of the choice are.
The absence of an American style political question doctrine
American law has a doctrine of political questions, resting on a textual commitment of the issue to another branch and on the absence of judicially manageable standards. Indian courts use the vocabulary occasionally, but they have not adopted the doctrine, and the reason is structural: the Indian Constitution gives the courts an express jurisdiction over the violation of fundamental rights and over legislative competence, so a question is not removed from the courts merely because it is political. What Indian law has instead is a doctrine of restraint, which is Asif Hameed.
A worked example
A State decides to permit private operators on routes previously reserved for its own corporation, changes the fare structure, and cancels the permits of three operators who had objected publicly to the change.
The decision to permit private operators is policy and is not reviewable on the merits. The fare structure is economic policy, reviewable only on the Sitaram Sugar standard. The cancellation of three permits is not policy at all: it is an administrative act affecting named persons, and it is reviewable for want of a hearing, for improper purpose and for arbitrariness under Article 14. Separating the three is the whole skill.
What this does NOT mean
It does not mean a policy is immune. It is reviewable for power, competence, procedure, purpose and consistency with Part III.
It does not mean a court may never look at economic material. It may, to see whether the statutory factors were considered.
It does not mean restraint is a rule of law. It is a discipline the courts impose on themselves, which is why Asif Hameed calls it self-imposed.
Quick revision
The merits of a policy are for the government: Asif Hameed. Categories: economic and fiscal policy, with Sitaram Sugar on price fixation; defence and national security, with the GCHQ case requiring evidence that the decision really rested on it; foreign affairs; the choice among lawful alternatives; and matters committed to another organ. Still reviewable: power, competence, procedure, relevance and purpose, fundamental rights with proportionality, and manifest arbitrariness. India has restraint rather than an American political question doctrine.
Policy, Political Questions and Non-Justiciability
Test yourself
1. What is reviewable about a policy decision? Whether the authority had power, whether the right authority exercised it, whether any required procedure was followed, whether the purpose and considerations were lawful, and whether it infringes a fundamental right.
2. What did the GCHQ case say about national security? That whether the requirements of national security outweigh fairness is for the Government and not the courts, but that the Government must produce evidence that the decision was in fact based on national security.
3. Does India have a political question doctrine? Not as such. It has a doctrine of judicial restraint, because the Constitution expressly commits questions of fundamental rights and legislative competence to the courts.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.