Policy, Political Questions and Non-Justiciability

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.