The nine-Judge Bench decision of this Court in S.R. Bommai v. Union of India (1994) observed that the concept of justiciability is not synonymous with judicial review. It noted that even while exercising the power of judicial review, courts can decline to exercise such power as being non-justiciable. It categorically observed that though judicial review may be avoided on questions of political nature, yet legal questions camouflaged with a political cloak will be justiciable. The relevant observations have been reproduced hereinbelow:
“201. Judicial review must be distinguished from justiciability. The two concepts are not synonymous. The power of judicial review goes to the authority of the court, though in exercising the power of judicial review, the court in an appropriate case may decline to exercise the power as being not justiciable. The Constitution is both the source of power as well as it limits the power of an authority, ex necissitate. Judiciary has to decide the source, extent, limitations of the power and legitimacy in some cases of the authority exercising the power. There are no hard and fast fixed rules as to justiciability of a controversy […]
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258. Justiciability is not a legal concept with a fixed content, nor is it susceptible of scientific verification. Its use is the result of many pressures or variegated reasons. Justiciability may be looked at from the point of view of common-sense limitation. Judicial review may be avoided on questions of purely political nature, though pure legal questions camouflaged by the political questions are always justiciable. The courts must have judicially manageable standards to decide a particular controversy. Justiciability on a subjective satisfaction conferred in the widest terms to the political coordinate executive branch created by the constitutional scheme itself is one of the considerations to be kept in view in exercising judicial review […]”
The Court in A.K. Kaul v. Union of India reported in (1995) 4 SCC 73 also elucidated the distinction between judicial review and justiciability. It observed that, in a written Constitution, the bounds within which the various organs of the State are delineated, the same implicitly casts a duty upon the courts to test the validity of every action of such constitutional organ, through judicial review, to ensure that such exercise of power is within the confines of the Constitution. It thus, held that the power of judicial review of the courts would be available in respect of exercise of all powers by any authority under the Constitution unless expressly excluded.
It further held that, although judicial review is the norm, yet the unavailability of judicially manageable standards in certain aspects of the power, whose exercise is in question, may render the judicial review of such exercise of power non-justiciable. It explained that justiciability refers to the question whether a particular field could be said to fall within the purview of the power of judicial review. The relevant observations are as follows:
“12. It is, therefore, necessary to deal with this question in the instant case. We may, in this context, point out that a distinction has to be made between judicial review and justiciability of a particular action. In a written constitution the powers of the various organs of the State are limited by the provisions of the Constitution. The extent of those limitations on the powers has to be determined on an interpretation of the relevant provisions of the Constitution. Since the task of interpreting the provisions of the Constitution is entrusted to the Judiciary, it is vested with the power to test the validity of an action of every authority functioning under the Constitution on the touchstone of the Constitution in order to ensure that the authority exercising the power conferred by the Constitution does not transgress the limitations placed by the Constitution on exercise of that power.
This power of judicial review is, therefore, implicit in a written constitution and unless expressly excluded by a provision of the Constitution, the power of judicial review is available in respect of exercise of powers under any of the provisions of the Constitution. Justiciability relates to a particular field falling within the purview of the power of judicial review. On account of want of judicially manageable standards, there may be matters which are not susceptible to the judicial process. Such matters are regarded as non-justiciable. In other words, during the course of exercise of the power of judicial review it may be found that there are certain aspects of the exercise of that power which are not susceptible to judicial process on account of want of judicially manageable standards and are, therefore, not justiciable.”