Justice R.M. Sahai [1]
558. Today the ‘political thicket’ has been entered with Baker v. Carr, (1962) 369 US 186 and Davis’ v. Bandemer, (1986) 54 USLW 4898 even, in America where the English shadow of ‘King can do no wrong’ was most prominently reflected. The test now applied is if the controversy can be decided by ‘Judicially discernible and manageable standards, (1986) 54 USLW 4898. 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’.[2]
Under our Constitution, the yardstick is not if it is a legislative act or an executive decision on 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’.[3] 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’[4] 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. The, Constitution being ‘foremost a social document’ the courts cannot, ‘retreat behind[5]‘ whenever they are called upon to discharge their constitutional obligation as ‘if the judiciary blows to expediency and puts question in the political rather than in the justiciable category merely because they are troublesome or embarrassing or pregnant with great emotion, then the Judiciary has become a political instrument itself.
559. His-conception appears to be prevailing that the judiciary by exercising power of judicial review on matters which involves political considerations asserts superior capability thus violates the democratic mandate vested by the people in elected representatives. The judiciary derive their authority as much from ‘the people’ the ultimate sovereign as the legislature or the executive. Each wing is a delegate of the Constitution. Each stand committed to be ruled under and governed by it.
A legislature is elected by people to enact law in accordance with the Constitution, to work under and for it. By being people representative the mandate is to act in furtherance of ideals of democracy in accordance with provisions of the Constitution. No legislature or executive can enact a law or frame a policy against the dictates of the Constitution. ‘Popular support . expressed through the ballot box cannot validate an ultra vires action’.
Elected representatives are as much oath bound to uphold and obey the Constitution as the Judges appointed by the President. Both derive their power and authority from, the same source. What the Constitution says, what it means, how it is to be understood and applied was entrusted to the judiciary as when, ‘The People’ of India resolved’. to secure to all its citizens justice, social, economic and political, ‘The judiciary was seen as an extension of the Rights, for it was the courts that would give the Rights force’.
A declaration by a Government to reserve posts in services may be a matter of policy or even a political issue but an order issued or a law made directing reservation can be sustained, only, if it is found to be constitutional. Judicial review in our Constitution has not ‘grown’ nor it has been ‘assumed’ or ‘inferred’ or ‘implied’ nor ‘acquired by force’ or ‘stealthily’ but it was provided for by the founding fathers. The higher judiciary has been visualised as ‘an arm of the social revolution’ When our Constitution was framed the Wedwesbury principle evolved by the English Courts ‘and the division of power adopted by American Constitution was fully known yet the country did not opt for vague resolutions as were adopted at Philadelphia Convention of United States in 1787 but decided to place the apex Court as custodian of the Constitution by declaring that any declaration of law by it was binding under Article 141 of the Constitution, its decree and orders were enforceable under Article 142 throughout the country, and all civil and executive authorities are to act in furtherance of it under Article 144. ‘The range of judicial review’ recognised by the superior judiciary in India is perhaps the widest and most extensive known in the world of law’. Unlike England or America its sweep extends to all other organs functioning under the Constitution. The Court discharged its constitutional obligation in such sensitive but constitutional matters as President’s pardoning power, decision of speakers of legislative assemblies etc.
Reliance on American decisions for very limited scope for interference was not of much assistance as judicial power of the United States Supreme Court to examine race conscious measures or affirmative action either in economic field or admission programme in educational institutions was never doubted. The only difference was that the measures were tested either on what they described as ‘close examination’ or ‘exacting judicial scrutiny’. For instance in Bakke it was the latter test that was applied.. It was observed, in order to justify the use of a suspect classification a State must show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is, ‘necessary….. to accomplishment of its purpose for the safe-guarding of its interest’.
Whereas in Fullilove, (1980 (65) Law Ed 2d 902) it was observed that, ‘programme that employs racial or ethical criteria….calls for closer examination’. It was explained that when a programme employing a benign racial classification was adopted by an administrative agency on the explicit direction of congress, the courts were ‘bound to approach’ the ‘task with appropriate deference to the congress, to co-equal branch charged by the Constitution with the power to provide for the “general welfare”.
19 In Metro Broadcasting Fullilove was reiterated and it was observed that, ‘benign race conscious measure “mandated by the congress” even if these measures are not 61 remedial” in the sense of being designated to compensate victims of past-governmental or social discrimination – are constitutionally permissible to the extent that they serve important Governmental objectives within the power of congress and are substantially related to achievement of those objectives’. Suffice it to say that the observations were made in different context for different purpose. The grant of broadcasting rights to minority was upheld by the majority as “minority ownership programmes are critical means of promoting broadcasting diversity’. But even in this decision Justice Stevens who concurred with majority agreed with minority in Fullilove (supra) and observed, ‘I remain convinced, of course, that racial or ethnic characteristics provide a relevant basis for desperate treatment only in extremely rare situations and that it is therefore “especially important that the reasons for any such classification be clearly identified and unquestionbly legitimate”.’
559. The sweep and width of judicial power and authority exercised by this Court is much extensive and deep as the constitutional provisions mandate it to be so. Test for interference is constitutional violation. Due regard to legislative measures or executive action directed towards welfare measure has never been disputed but when they are overshadowed with extraneous compulsions or are arbitrary then, ‘judicial interpretation gives better protection than the political branches’. Even the most reactionaries of American President Thomes Jeferrson once said, ‘The law of the land administered by upright judges would protect you from any exercise of power unauthorised by the Constitution of United States’. Faith in the judiciary is of prime importance. Ours is a free nation. Among such people respect for law and belief in its constitutional interpretation by courts require an extraordinary degree of tolerance and co-operation for the value of democracy and survival of constitutionalism.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448
[2] Samuel Krislov – The Supreme Court in the Political Process p. 96
[3] C. Herman Pritchett – The American Constitution p. 154 (quoted in “The Judicial Review of Legislative Acts” by Dr. Chakradhar Jha p. 355)
[4] Charles Gordon Post p. 129-130 – The Supreme Court Questions (quoted in ‘The Judicial Review of Legislative Acts’ by Dr. Chakradhar Jha p. 351)
[5] Tagore Law Lecture, From Marshall to Mukherjea ‘Studies in American and Indian Constitutional Law’ by William C. Douglas p. 38