JUDICIAL REVIEW OF POLICY DECISIONS IN INDIA by-Eshita Pallavi
Indian Constitution is based on the edifice of separation of powers which also forms a basic structure of our Constitution. However, this demarcation cannot exist in isolation as that would lead to a system of tyranny within the different spheres of the government. To curb this, the system of checks and balances has been devised. The judiciary, as a custodian of the rights of the people, keeps a check on the powers of the legislature and the executive through the power of judicial review. In policy matters, however, the first rule is of non-intervention of judiciary. This is because policy is a tool in the hands of the executive to deal with the day-to-day exigencies with room for improvement and flexibility. Since policies should not be tampered with by an organ that has no expertise in the matter, the judiciary keeps its hands off from this domain unless a policy suffers from illegality, irrationality or procedural impropriety such that it infringes the fundamental rights of the people or leads to grave injustice or violates principles of natural justice. It is interesting to note how the judiciary carefully creates a balance in reviewing a policy decision as a last resort so that it does not undermine the power given to the executives in the process while protecting the rights of the people from unreasonable encroachment. This paper aims to look into the scope and ambit of judicial review of policy decisions in India to understand the situations where judicial intervention becomes necessary.
The Constitution of most of the democratic polities are based on Montesquieu’s idea of Separation of Powers. This is because giving all the power in the hand of the few would lead to tyranny as has been the case in the past, when monarchy and autocracy was the norm. To establish an efficient and balanced system of governance, it is essential to divide the power into different organs in such a way that there is no interference of one in another and yet one does not gain superiority over the other. Hence, the emergence of the three organs of a polity, namely legislature, executive and judiciary. The notion of separation of powers elucidates the simple concept that the Legislature must make the laws of a State, the Executive must implement and execute the laws made by the Legislature and the Judiciary must interpret the laws and administer justice to the people when their rights are infringed by those very laws.
The judiciary performs a vital function in any country, interpreting and applying the law and adjudicating on disputes between citizens and between citizens and the state. The courts are responsible for upholding the rule of law in the country and ensuring that the government follows the law. In a country with a codified Constitution, judges also have the responsibility of ensuring the Constitution’s supremacy2. The power of judicial review, which was initially proposed in the case of Marbury v. Madison, is one way of keeping a check on the acts of the other organs3. Judicial review has also been designated a fundamental aspect of the Indian Constitution by the Supreme Court4.
The validity of judicial review is founded on the rule of law and the requirement that public authorities follow the law. Judicial review is a tool for holding people who wield public authority responsible for how they use it, especially when decisions are made outside of the democratic process’s effective supervision. Judicial Review is a powerful tool for checking arbitrary, unjustly harassing, and unlawful laws5.
With ongoing socio-economic and political development in society, the Legislature’s responsibilities and, as a result, the Executive’s responsibilities in the form of delegated power, have grown dramatically. Policymaking is one such power that can be used to address future concerns. In general, the court now refrains from interfering with government policy decisions that are the responsibility of the executive branch. However, there are times when the courts may have to intervene in the government’s policy decisions. The courts may interfere, for example, if a policy decision is in violation of the Constitution’s fundamental rights or other requirements. Likewise, if a policy decision violates an Act of the Parliament or the Rules made thereunder, the courts may again intervene. In this backdrop, it is essential to analyse the situations where judicial review of policy decisions is possible. As such, this research aims to trace the very concept of policy and what is the reason for the primary approach of non-interference by the judiciary.
JUDICIAL REVIEW OF POLICY DECISIONS: SCOPE AND AMBIT.
Policy decisions are required to manage the government in order to meet the needs of the people on a daily basis. The government is solely responsible for making policy decisions. As a result, the government is free to exercise its discretion in this area.
In policy matters, the position of judicial review can be summarized as one of non-intervention. This means that policy decisions are almost never subject to judicial review6. Under the certain circumstances, the government has the authority to make reasonable changes and policy decisions that may become necessary or required. A court cannot overturn a policy decision simply because it believes that a different conclusion would have been more fair, wise, scientific, or rational7. A court of law should not be able to interfere with a government decision if it is not motivated by malice or the result of an arbitrary or whimsical act8.
As a result, judicial scrutiny of government policy has a well-defined scope. Courts do not and cannot act as appellate authority reviewing a policy’s accuracy, suitability, and appropriateness, nor do they serve as consultants to the executive on policy concerns that the executive is authorised to design9. When analyzing a government policy, the scope of judicial review is to see that whether if it infringes people’ fundamental rights, or if it is contrary to the Constitution, or any statutory provision, or if it is plainly arbitrary or not. Courts cannot intervene in policy on the grounds that it is incorrect or that a better, fairer, or wiser option is available. Judicial review of any policy must be based on the legality of the policy instead of its wisdom or soundness10. Alternatively, it can be said that the court’s role is to ensure that legitimate authority is not abused via unfair treatment, and not to take on the work that the law has given to that authority.
The goal of judicial review is to ensure that the individual is treated fairly, not to assure that the authority, after providing fair treatment, comes to a valid conclusion in the eyes of the court on an issue that it is authorised by law to resolve for itself11. The courts should avoid the urge to undermine the executive’s power by interfering in areas that are solely the executive’s domain. The court would be guilty of usurping its power if it did not refrain from participating in such issues12.
Furthermore, because judicial review is not an appeal from a decision, but rather a review of how the decision was reached, the court must keep in mind that the decision was reached by the administrative authority after adhering to the principles established by law and the rules of natural justice, and the individual was treated fairly to meet the case against him. For any matter that falls within the domain of the executive, the court must not substitute its own views for that of the administrative authority who decided in the given matter13.
Now that we’ve established the general rule that judicial review of policy matters should be avoided, it’s important to note that this isn’t an inflexible rule of law. When the issue is such that a negative impact on the public interest is anticipated, courts will be failing in their duty if they do not bring the issue to the attention of the authorities involved in those cases. While they cannot make policy, they may undoubtedly serve as catalysts when policy is made or changed14.
In most cases, policy decisions are not amenable to judicial review. That does not rule out the possibility of judicial scrutiny of an executive order labelled as a policy decision. While the writ courts may not tamper with the nitty-gritty of policy or substitute one for the other, it is incorrect to argue that the court should keep its judicial hands off where the disputed judgement is a policy decision. Because it is subject to judicial review, interference by the superior would not be without jurisdiction. A policy decision is subject to judicial review on the following grounds:
- if unconstitutional;
- if is dehors the provisions of the Act and the regulations;
- if the delegate has acted beyond its power of delegation;if executive policy is contrary to the statutory or a larger policy15
This means that, while it is commonly stated that policy decisions are not subject to review, this is not the accurate legal interpretation. A legislative policy is one that complies with the provisions of the constitution. Even if a policy decision is otherwise sound, it might be challenged in court16.
In judicial review, the accuracy of the grounds that motivated the Government to make a decision and take one course of action rather than another is not a concern, and the court is not the right place for such an investigation. The government must make the policy decision since it is the only one who can choose which policy should be implemented after evaluating all of the factors from many perspectives. The courts will have no occasion to intervene in policy decisions or the exercise of discretion by the government as long as no infringement of fundamental rights is demonstrated, and the court will not and should not substitute its own judgement for the executive’s judgement in such issues. Even if a different viewpoint from the government’s is feasible, the court cannot intervene in determining the legitimacy of the government’s decision17.
Although there are rulings demonstrating that voluntary statements of policy can be viewed almost as legally obligatory constraints, it is self-evident that public authorities must be free to amend their policies as the public interest requires from time to time. Only an ‘overriding public interest’ will supersede an obligation, especially if it is made to a single person or a small group. As a result, the legislation is consistent with the established free-standing premise of substantive legitimate expectation.
The more the decision’s policy content and the further the decision’s subject matter is from regular judicial practice, the more reluctant the court must be in declaring a decision illogical. That is sound legal advice, and like most sound legal advice, it is common sense. Where policy- laden, obscure, or security-based judgments are at stake, the test must be applied with considerably more caution than usual, although the test itself is sufficiently adaptable to address all cases18. Regardless of whether a better or more extensive policy decision is made, courts of law must be cautious and exercise their authority with caution, as they must not enter the sphere of policymaking until the policy is in conflict with the Constitution and other statutory laws. 19.
The courts cannot be used to carry out governmental powers and duties. In most cases, courts should refrain from interfering with a state’s policy decision20. The court is more concerned with the decision-making process than with the decision’s merits when exercising judicial review power 21.
In a nutshell, an executive order that is referred to as a policy judgement is not immune to judicial review. While superior courts may not interfere with the nitty-gritty of policy or substitute one for the other, it is incorrect to assert that the court must keep its judicial hands off when a plea is brought that the contested decision is a policy decision. Because it is subject to judicial review, interference by the superior court would not be without jurisdiction.
JUDICIAL TREND IN REVIEWING POLICY DECISIONS IN INDIA.
When India gained independence, the drafters of the Constitution went to great lengths to incorporate Montesquieu’s theory of independence of state organs into the Indian Constitution. Despite the absence of a particular provision in the Indian Constitution, the state was required to safeguard the independence of the judiciary from the executive under Article 50 of the Indian Constitution. In the Indian Constitution, the judiciary, executive, and legislative branches were assigned separate sectors and their functions were delineated. The ambit of their realms is told through various provisions of the Indian Constitution. It was up to the executive and legislative branches to uphold and advance the cause of fundamental rights. The Indian judiciary has been tasked with maintaining the right to constitutional remedies, which is a difficult assignment. According to theChairman of the Drafting Committee of the Constitution, Dr B.R. Ambedkar, the recourse to judicial authorities for upholding the right to constitutional remedies was considered the heart and soul of the Indian Constitution.22
The debate between constitutionalism and democracy provides the conceptual foundation for judicial review. The Constitution, according to constitutionalists, has the power to overturn the decision-making process. “Democracy,” on the other hand, is founded on the premise that an elected group of people has the authority to make policy decisions for the country.23 The Indian Constitution, on the other hand, by designating India a “democratic republic,” engraves the Constitution’s dominance over the legislature and ensures that human rights are preserved not just by majority self-restraint, but also by constitutional control over the majority.24 The ever so important role of interpreting the Constitution was thus entrusted with the judiciary;
“Law” is defined under Article 13 of the Constitution. The definition in Article 13 only depicts a comprehensive list. The executive and legislative branches are the only ones who are involved in policy making. The realm of policymaking has a foot in administrative law jurisprudence. Policies created by the executive and legislative are aimed at bolstering the cause of the State machinery’s seamless operation. Only the state can create healthy policies if it is aware of its resources. Various factors, including but not limited to political will, fiscal considerations, and resource optimization, play a significant influence in the development of policy frameworks. With its responsibility to the people, the state is in a good position to solve the problems of the poor. Furthermore, as the representative of the people, the legislature is obligated to participate in the decision-making process. The Constitution merely states that such decisions must not deprive an individual of his or her constitutional rights.
The constitution grants the courts the power of judicial review, however it is not an absolute power. Both judicial restraint and judicial review go hand in hand.25 Courts are prohibited by the Indian Constitution from interrogating legislators on their behalf or questioning their wisdom in establishing any policy or law. Their job is confined to establishing the law’s legitimacy based on constitutional provisions.26 To fully realise the words of the Constitution’s Preamble, each and every state organ must operate in unison and within their respective realms of influence.
Judiciary and policy decisions
In the case of State of Rajasthan vs. Union of India27, Justice Bhagwati opined that the Supreme Court is the final interpreter of the Constitution, is responsible for determining the the limits of powers possessed by each branch of the government has, whether they are limited, and if so, what those restrictions are, and if any action taken by that branch violates those constraints. As a result, it is the court’s job to protect constitutional ideals and enforce constitutional constraints. This is what the rule of law is all about.
In A.K. Kaul vs. Union of India28 the Supreme Court held as that the task of interpreting the constitution was entrusted to the judiciary and it can review the validity of any action of any authority functioning under the Constitution on the parameters laid down in the Constitution so as to ensure that the exercise of power by the authority is not ultra vires of the limitations placed by the Constitution on exercise of such power. This power of judicial review is thus implicit in a written constitution, and unless expressly excluded by a provision of the Constitution, it is applicable in respect of the exercise of powers under any of the provisions of the Constitution.
As a result, judicial review has a broad and thorough scope. The court can use the Constitution as a yardstick to judge the legality of any action taken by any authority. Whether the executive’s acts are in the sphere of administrative action, administrative discretion, administrative policy formulation, or administrative adjudication, the power is broad.
Though the Supreme Court does not consider itself an imperium in imperio or would function as a despotic branch of ‘the State,’ Doraiswamy Raju, J., observed in P. Ramachandra Rao vs. State of Karnataka29 that the founding fathers of our Constitution designedly and deliberately, perhaps, did not envisage the imposition of any jurisdictional embargo on this Court, except in Article 363 of the Constitution of India, is significant and sufficient enough, to identify the depth and width or extent of its powers.
In India, a review of judicial pronouncements reveals that the Supreme Court has always maintained that there are no limitations on the power of judicial review under the Constitution, and that “it is vested with the power to test the validity of an action of every authority functioning under the Constitution on the touch stone of the Constitution,” and that “the power of judicial review is available in respect of any matter unless expressly excluded by a provision of the Constitution.”
However, in the actual exercise of judicial review powers qua policy decisions, the Supreme Court has acted with prudence, and the judicial approach in England and the United States has had a discernible influence. The Supreme Court adhered to the principles of separation of powers, justiciability, political question doctrine, and judicially manageable and discernible standards, as well as self-imposed limitations on judicial review powers, to ensure that the courts do not enter areas reserved for the legislative and executive branches of government.
The observations of Krishna Iyer, J. in State of Kerala vs. Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd.30 reflects the attitude of the Supreme Court towards the administrative policy decisions: “What programme of agrarian reform should be initiated to satisfy the requirement of rural uplift in a particular community under the prevailing circumstances is a matter for legislative judgment. Here, in this field the legislature is the policy maker and the court cannot assume the role of an economic advisor or censor competent to pronounce whether a particular programme of agrarian reform is good or bad from the point of view of the needs of the community. The sole issue for the Court is whether it is in fact a scheme of agrarian reform, and if it is, the prudence or folly thereof falls, outside the orbit of judicial review being a blend of policy, politics and economics ordinarily beyond the expertise and proper function of the court.”
In later decisions, the Supreme Court has asserted that any action of the executive, whether it is in the realm of administrative action, administrative discretion, administrative policy making or administrative adjudication, is within the purview of judicial review of the Supreme Court and the High Courts. In Council of Scientific and Industrial Research vs. Ramesh Chandra Agrawa31 , the Supreme Court held, “Indisputably, a policy decision is not beyond the pale of judicial review.” In State of Rajasthan vs. Basant Nahata32 the Supreme Court reiterated, “The contention raised to the effect that this Court would not interfere with the policy decision is again devoid of any merit.”
A policy decision taken by the Government is not liable to interference33, unless the Court is satisfied that the rule-making authority has acted arbitrarily or in violation of the fundamental right guaranteed under part III.34 In Fertilizer Corpn. Kamgar Union (Regd.), Sindri v. Union of India, the Supreme Court, while upholding the decision to sell certain plants and equipment of the Sindri Fertilizer Factory, which was owned by a public sector undertaking, to the highest tenderer, observed that the parameters of judicial review must be clearly defined and never exceeded. The court, as a super auditor, cannot hold a government company’s board of directors accountable if it has acted fairly, even if it has made mistakes in its judgement. 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 Delhi Development Authority vs. Joint Action Committee, Allottee of SFS Flats35 , the Supreme Court observed that 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. It was held to be a matter which is subject to judicial review.
In Directorate of Film Festivals vs. Gaurav Ashwin Jain36, the court was of the view that the scope of judicial review of governmental policy is well defined. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review.
In the case of Madras Bar Association vs Union of India37 Justice Hemant Gupta observed: “Ordinarily in pure “policy” matters falling within Parliamentary or executive domain, such as economic, commercial, financial policies, or other areas such as energy, natural resources etc, this court’s standard of judicial review is deferential. In almost all subject matters over which legislative bodies enact law, the wisdom of the policy is rarely questioned; it is too well recognised that in such matters, judicial review extends to issues concerning liberties of citizens, and further, whether the particular subject matter falls within the legislative field of the concerned legislative body. In matters where the executive implements those laws, the scrutiny extends to further seeing the legality and constitutionality of such action. Where there is no law, the court considers whether executive competence to act is traceable to the particular legislative field under the Constitution, and whether the executive action sans law, abridges people’s liberties.“
Thus, by a series of judicial pronouncements, the Supreme Court has settled the law that administrative policy decisions are within the purview of judicial review and has expounded the grounds on which a policy decision is subject to judicial review. The grounds on which a policy decision can be challenged are – violation of any of the provisions of the Constitution or violation of any statute, or where the policy is arbitrary, unreasonable, mala fide or irrational.
In a democratic polity, the government has to make a large number of decisions on a daily basis in order to maintain the smooth functioning of the society. For every decision, one cannot wait to go through the entire legislative process of rulemaking. Hence, the executive comes into picture with its function of policy making. The executive includes not only the government and its council of ministers but the entire body of agencies working at different levels to implement the existing laws at the grass root level. It is in such implementation that they are required to take such decisions.
In the constantly changing socio-economic demography with advancement in technology, the challenges and therefore, the responsibilities of the executive have grown manifold. Policies, being flexible in nature, allows the government to experiment and take decisions in order to improve the existing conditions in a way that if one scheme doesn’t work, they can switch to another.
On the other hand, the judiciary is the ultimate interpreter and custodian of the Constitution. Ideally, the judiciary ought not to interfere in matters of public policy as that would amount to unnecessary dilution of separation of powers. However, the executive, though considered to be an expert in matters of public policy, must act within the confines of the Constitution. With an increased activity in the executive sphere where enormous powers have been entrusted to the executive, the traditional concept of parliamentary control of the executive is not enough to keep the executive within its constitutional bounds. The judiciary steps in here to maintain the system of checks and balance and do away with any arbitrary action of the executive.
In the changing circumstances, the Courts have been active and started exercising the powers of judicial review of all administrative actions. This has been often termed as judicial activism. The Courts have started exercising the powers of judicial review regardless of whether such decisions are in the sphere of administrative action, administrative discretion, administrative adjudication or administrative policy making. In the process, the Courts have adopted the new principles and tools of judicial review developing in other jurisdictions. The Courts have adopted and applied the doctrine of hard look and the doctrine of proportionality and have also evolved its own doctrines by bestowing enormous consideration to larger public good and individual rights and liberties, and reviewing the administrative actions on the touchstone of ‘greater public interest’.
The most pressing task confronting the judiciary at the moment is to strike a healthy balance between the court and the legislative and executive arms of government. The country’s constitutional framework and the rule of law necessitate nothing less. While the courts must never shirk their responsibility as the final arbiters of the constitution and the rule of law, they must also respect the functions of the legislatures and the executive branch, and give fair deference where appropriate. Only when a policy decision is arbitrary or unreasonable, or when it has resulted in grave injustice, may judicial intervention be considered.
Maintaining a fair balance between the various branches of government necessitates continual monitoring. Tensions will inevitably arise, and the desire to silence individuals who are believed to be obstructing progress will always be present. The courts have begun to take a greater interest in defending people’s rights against policy decisions made solely to advance vested political interests. However, there have been instances where, in order to prevent elected tyranny, the judiciary has created the prospect of unelected tyranny. One such example is the liquor ban, which should be solely within the executive’s purview but has been encroached upon by the judiciary. Similarly, in the 2G case, the court overreached their power, ignoring the role of the legislature and the executives. Having said that, it is not easy to turn away the people who look up to the judiciary as the last ray of hope. Indeed, determining whether a case is fit for judicial review of policy decisions is no less than walking on eggshells.
Thus, the Courts must intervene in a policy decision in a situation that might cause grave injustice to the people and prevent actions made to further the vested political interest but such intervention should not be hasty and must come only as a last resort when the faith on the executive is shaken.
1 LL.M. Candidate at CNLU Patna
2 M.P. JAIN, INDIAN CONSTITUTIONAL LAW (8th ed, Lexis Nexis), 2020, pp 194.
3 Marbury v. Madison, 5 U.S. 137 (1803).
4 Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461.
5 Sangeeta Mandal, Judicial Review of Policy Decisions of the Government: New Challenges and Dimensions of Judiciary in India, 9 INDIAN J.L. & Just. 115 (2018).
6 State of Gujarat v Arvind Kumar Tewari, (2012)9 S.C.C.545.
7 Netai Bag v State of W.B., (2000)8 S.C.C. 262.
8 Raj Shikshan Prasarak Mandal v State of Maharashtra, (2001)10 S.C.C. 751.
9 State v Naveena, (2009)3 S.C.C. 649.
10 Directorate of Film Festivals v Gaurav Ashwin Jain, (2007)4 S.C.C. 737.
11 DURGA DAS BASU, ADMINISTRATIVE LAW, pp 962 (7th ed 2019).
12 Chief Constable the North Wales Police v. Evans, (1982)1 W.L.R. 1155: (1982)2 All E.R. 141 (H.L.).
14 Mohd. Abdul Kadir v. Director General of Police, Assam, (2009)6 S.C.C. 611.
15 Delhi Development Authority v. Joint Action Committee, (2008)2 S.C.C. 672.
16 State v. Basant Nahata, (2005)12 S.C.C. 77.
17 Ekta Shakti Foundation v Govt. of NCT of Delhi, (2006)10 S.C.C.337.
18 WADE & FORSYTH, ADMINISTRATIVE LAW, 10th Edn. p. 320.
19 Tata Iron & Steel Co. Ltd. v. Union of India, (1996)9 S.C.C. 709 (para 68)
20 BALCO Employees Union v. Union of India, (2002)2 S.C.C. 333.
21 State of Maharashtra v Prakash Prahlad Patil, (2009) A. S.C.W. 6985.
22 H.R. KHANNA, MAKING OF INDIA’S CONSTITUTION, Eastern Book Company (2008), 74.
23 Arthur Dyevre, Technocracy and Distrust: Revisiting the Rationale for Judicial Review, SSRN Electronics Journal 04/2012; DOI: 10.2139/ssrn.2043262 (Accessed on 10-3-2022).
24 PRAN CHOPRA, THE SUPREME COURT VERSUS THE CONSTITUTION, SAGE Publications (2006).
25 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461.
26 Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248: (1970) 3 SCR 530.
27 State of Rajasthan vs. Union of India, (1977) 3 SCC 592.
28 A.K. Kaul vs. Union of India, 1995 (4) SCC 73.
29 P. Ramachandra Rao vs. State of Karnataka, (2002) 4 SCC 578.
30 State of Kerala v. Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd., (1973) 2 SCC 713.
31 Council of Scientific and Industrial Research v. Ramesh Chandra Agrawal, (2009) 3 SCC 35.
32 State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77.
33 Akhil Bharat Goseva Sangh (3) v. State of A.P., (2006) 4 SCC 162.
34 K. Narayanan v. State of Karnataka, 1994 Supp (1) SCC 44: AIR 1994 SC 55.
35 Delhi Development Authority v. Joint Action Committee, Allottee of SFS Flats, (2008) 2 SCC 672.
36 Directorate of Film Festivals v. Gaurav Ashwin Jain, (2007) 4 SCC 737.
37 Madras Bar Association vs Union of India, Writ petiton (Civil) no 502 of 2021.