The Supreme Court, speaking through nine-Judges in Indra Sawhney v. Union of India reported in (1992) Supp (3) SCC 217 held that the yardstick of subjecting an act or a decision to judicial review is not whether it is a legislative act or an executive decision on a policy matter but whether it violates any constitutional guarantee or the rights under Part III of the Constitution. The Court further held that the doctrine of political thicket does not apply in the Indian constitutional framework. It is not that the courts avoid entering into a political question because of the doctrine of separation of power, but because of desirability of avoiding entering into a political question. The relevant observations are reproduced hereinbelow:
“557 […] 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 court” [ Samuel Krislov : The Supreme Court in the Political Process, p. 96].
Under 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” [ C. Herman Pritchett : The American Constitution, p. 154 (quoted in The Judicial Review of Legislative Acts by Dr Chakradhar Jha, p. 355)] .
Avoidance of entering into a political question may be desirable and may not be resorted to, “not because of doctrine of separation of power or lack of rules but because of expediency” [ Charles Gordon Post, pp. 129-130 : The Supreme Court Questions (quoted in ‘The Judicial Review of Legislative Acts’ by Dr Chakradhar Jha, p. 351)] in larger interest for public good but legislatures, too, have, “their authority measured by the Constitution”. Therefore absence of norms to examine political question has rarely any place in the Indian constitutional jurisprudence […]”
Further, the Court in B.P. Singhal v Union of India[1] upon examining a catena of decisions on the scope and evolution of the power of judicial review of the courts observed that, although under the English Law, the prerogative powers of the monarch such as the power to make treaties, grant mercy or to dissolve the parliament etc. are traditionally not subject to judicial review due to the very nature of such powers falling outside the expertise and competence of the courts, yet such preclusion of the power of judicial review is by no means a blanket rule.
It observed that even prerogative powers, insofar as the questions of legality, rationality or procedural propriety are concerned, would always be amenable to judicial review, because the safeguarding of such considerations in the exercise of any prerogative powers is the domain, responsibility and duty of the courts as the sentinel on the qui vive.
Placing reliance on the decision of the Court in State of Rajasthan v. Union of India reported in (1977) 3 SCC 592 it held that the courts, as the protector and ultimate interpreter of the Constitution, not only have the power but an obligation to determine the power conferred on each branch of the government, the extent and limits of such powers and whether the exercise of such power exceeds those limits or not, irrespective of whether such powers are the exclusive prerogative of any one branch of the government or such questions are inherently political in complexion. The relevant observations read as under:
“72. The traditional English view was that prerogative powers of the Crown conferred unfettered discretion which could not be questioned in courts. Lord Ruskill attempted to enumerate such prerogative powers in Council of Civil Service Unions v. Minister for Civil Service [1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL)] : (AC p. 418) “[…] Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, 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 to be amenable to the judicial process.
The courts are not the place wherein to determine whether a treaty should be concluded or the armed forces disposed in a particular manner or Parliament dissolved on one date rather than another.” However, the contemporary English view is that in principle even such “political questions” and exercise of prerogative power will be subject to judicial review on principles of legality, rationality or procedural impropriety. [See decision of House of Lords in: R. (Bancoult) v. Secy. of State for Foreign & Commonwealth Affairs (No. 2) [(2009) 1 AC 453 (HL)] .] In fact, De Smith’s Judicial Review (6th Edn. 2007, p. 15) states:
“Judicial review has developed to the point where it is possible to say that no power—whether statutory or under the prerogative—is any longer inherently unreviewable. Courts are charged with the responsibility of adjudicating upon the manner of the exercise of public power, its scope and its substance. As we shall see, even when discretionary powers are engaged, they are not immune from judicial review.”
73. In State of Rajasthan v. Union of India [(1977) 3 SCC 592] , this Court (Bhagwati, J. as he then was) held: (SCC pp. 660-62, para 149) “149. … But 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 it raises an issue of constitutional determination. … the Court cannot fold its hands in despair and declare ‘Judicial hands off’. So long as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the Court. Indeed it would be its constitutional obligation to do so. …
This Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of Government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for this Court to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law. … Where there is manifestly unauthorised exercise of power under the Constitution, it is the duty of the Court to intervene. Let it not be forgotten, that to this Court as much as to other branches of Government, is committed the conservation and furtherance of democratic values. The Court’s task is to identify those values in the constitutional plan and to work them into life in the cases that reach the Court. … The Court cannot and should not shirk this responsibility, […]”
In the said decision, Chandrachud, J. (as he then was) observed thus: (SCC p. 645, para 132) “132. […] They may not choose to disclose them but if they do, as they have done now, they cannot prevent a judicial scrutiny thereof for the limited purpose of seeing whether the reasons bear any rational nexus with the action proposed. I am inclined to the opinion that the Government cannot claim the credit at the people’s bar for fairness in disclosing the reasons for the proposed action and at the same time deny to this Court the limited power of finding whether the reasons bear the necessary nexus or are wholly extraneous to the proposed action. The argument that ‘if the Minister need not give reasons, what does it matter if he gives bad ones’ overlooks that bad reasons can destroy a possible nexus and may vitiate the order on the ground of mala fides.”
[1] B.P. Singhal v. Union of India (2010) 6 SCC 331