Introduction:
Constitutionalism, which implies limited government, is built on judicial scrutiny. The judiciary’s job is to keep the state’s various organs within the bounds of power granted to them by the constitution.
The validity of judicial review is founded on the rule of law and the requirement that public authorities follow the law. A 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 laws.
The Indian Constitution gives our independent judiciary, particularly the Supreme Court, broad jurisdiction over legislative and executive acts. Judicial review is a fundamental feature of the system that cannot be changed, even if the Constitution is amended. The efficiency of Judicial Review is ensured by the judiciary. The independence and integrity of our judiciary are thus vital not only to judges but also to the general public who seek judicial remedy for alleged legal wrongdoing or executive overreach.
Both the Supreme Court and the High Courts in India have the authority to enforce basic rights. Not only may the judiciary examine the legality of laws and governmental activities, but it can also examine constitutional amendments. It has the final word in how the Constitution is interpreted, and its directives, which are backed up by the ability to punish anyone who disobeys them, can be carried out by anybody anywhere in the country. Since its foundation, the Supreme Court has issued landmark decisions concerning not only dispute resolution but also the formulation of public policy and the creation of the rule of law and constitutionalism.
The judiciary has recently broadened its scope of action by proclaiming judicial review to be a fundamental aspect of the Constitution. The Supreme Court has not only interpreted the Constitution’s language but has also issued rulings on policy problems.
The Scope of Delegated Legislation in the Welfare States in India
The expansion of the executive’s legislative powers is one of the most significant trends of the twenty-first century. In the study of administrative law, the growth of administrative bodies’ legislative powers in the form of delegated legislation is extremely important. We all know that the executive has no broad ability to establish laws; it can only complement the law passed by the legislative. Delegated legislation or subordinate legislation has been used to characterize this type of activity, specifically the power to supplement legislation.
Delegation is regarded as a good foundation for administrative efficiency, and when restored to proper limitations, it does not constitute abandonment of power. In any event, the delegation should not be unguided and uncontrolled.
Making legislation is one of the most important legislative duties. The legislature is responsible for formulating legislative policy and delegating the development of specifics in the implementation of that policy. The legislature’s discretion in formulating legislative policy is its prerogative and function, and it cannot be outsourced to the administration. The power to make notifications and changes to an Act while it is being extended, as well as to make amendments or repeals to existing laws, is subject to the condition precedent that essential legislative functions cannot be delegated authority cannot be precisely defined, and each case must be considered in its context.
The scope of delegation is rigorously regulated by the Legislature to prevent the dangers by providing proper protections, controls, and appeals against executive orders and judgments. The Executive’s power to amend any section of an Act by the order must be limited to the scope of the Act granting such power.
Articles 245 and 246 of the Indian constitution state that the Parliament and state legislatures will exercise legislative powers. The constitution did not ban the delegation of legislative power because it was thought to be unavoidable.
Furthermore, Article 13(3)(a) of the Indian Constitution states that law includes ordinances, order bylaws, rule regulations, notifications, and other documents that, if proven to violate basic rights, are void. Furthermore, there are 117 legal pronouncements in which courts have validated delegated legislation.[1]
In the case of Arvinder Singh v. State of Punjab[2], Justice Krishna Iyer correctly observed that the complexities of modern administration are so bafflingly intricate and bristle with details, urgencies, difficulties, and the need for flexibility that our massive legislature may not get off to a start if they must directly and comprehend them. Delegation of some legislative power becomes an unavoidable requirement for survival.
The Judiciary and Policy Decisions: Does the Indian Judiciary Interfere with the Government’s Policy Decisions?
The Indian judiciary has been tasked with maintaining the right to constitutional remedies, which is a difficult assignment. Dr. B.R. Ambedkar, Chairman of the Constitution’s Drafting Committee, rightly described this recourse to judicial authorities for safeguarding the right to constitutional remedies as the Indian Constitution’s heart and soul.[3]
Only when an obvious farce is enacted on the Indian Constitution does the magic wand of a judicial review call for an intervention. When powers are employed based on legitimacy, they result in a reinterpretation of their scope, yet when they are misused, they lose their lustre.
Though there is some overlap, India’s constitution is based on the main premise of “separation of powers.” The legislature, executive, and judiciary are the three main branches of government. Each wing of the government has the authority to act in its field of influence. The purpose of the legislature is to enact legislation. The executive is in charge of making policies (subject to legislation), putting them into action, and overseeing the administration.
As a result, policymaking and implementation fall under the purview of the executive branch. The judiciary does not have the authority to do so. Furthermore, the judiciary lacks the skills and topic knowledge necessary to create or change policies. The executive, on the other hand, has specialists, professionals, administrators, advisors, and other experts in a certain subject and has the expertise to develop policies after considering all sides of a situation.
In general, the judiciary does not intervene in government policy choices that are made by 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 violates the Constitution’s fundamental rights or other requirements. Similarly, if a policy decision violates a Parliamentary Act or its Rules, the courts may step in once more.
In the case of Col. A.S. Sangwan v. Union of India[4], the plaintiff was a colonel, the Supreme Court ruled as follows (in Justice V.R. Krishna Iyer’s words):
“A policy once formulated is not good forever; it is perfectly within the competence of the Union of India to change it, rechange it, adjust it and readjust it according to the compulsions of circumstances and the imperatives of national considerations. We cannot, as a court, give directives as to how the Defence Ministry should function except to state that the obligation not to act arbitrarily and to treat employees equally is binding on the Union of India because it functions under the Constitution and not over it.”[5]
Though this judgment is based on the facts of a specific case, the legal principles it establishes apply to other similar situations in which the government makes or changes policy regularly.
In the matter of DDA v. Joint Action Committee, Allottee of SFS Flats[6], the court ruled in favor of the DDA. The Supreme Court ruled as follows:
“ 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. Interference therewith on the part of the superior court would not be without jurisdiction as it is subject to judicial review.”[7]
“Broadly, a policy decision is subject to judicial review on the following grounds: (a) if it is unconstitutional; (b) if it is dehors the provisions of the Act and the regulations; (c) if the delegatee has acted beyond its power of delegation; (d) if the executive
the policy is contrary to the statutory or a larger policy.”[8]
The Supreme Court’s above two opinions are simply two of a great number of decisions on this subject. The fundamental principle has not changed. In general, the judiciary will refrain from interfering with the government’s policy decisions.
Unless the Court finds that the rule-making authority acted arbitrarily or in violation of the fundamental rights provided by Articles 14 and 16[9], a policy decision made by the government is not subject to intervention[10]. In Fertilizer Corpn. Kamgar Union (Regd.), Sindri v. Union of India[11], the Supreme Court, while approving 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:
“ … We certainly agree that judicial interference with the administration cannot be meticulous in our Montesquieu system of separation of powers. The court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded. If the directorate of a government company has acted fairly, even if it has faltered in its wisdom, the court cannot, as a super auditor, take the Board of Directors to the task. 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.”[12]
While considering the court’s powers in interfering with policy decisions in Premium Granites v. State of T.N.[13], it was noted that:
“It is not the domain of the Court to embark upon an unchartered ocean of public policy in an exercise to consider as to whether a particular public policy is wise or a better public policy can be evolved. Such exercise must be left to the discretion of the executive and legislative authorities as the case may be……”[14]
Judicial Review of Policy Decisions in India: The Judiciary’s Restraint
When it came to reviewing policy decisions in our country, the judiciary generally exhibited prudence. The Supreme Court held in Rustom Cavasjee Cooper v. Union of India[15] (commonly known as the “Bank Nationalization Case”) that it is not the place to debate competing for policy claims; it is only required to rule on the legality of a measure that has little to do with the relative merits of various political and economic theories.
In Delhi Science Place v. Union of India[16], a Supreme Court Bench of three learned Judges, while dismissing a suit against the opening up of the telecom sector, reaffirmed that the Parliament is the forum for debate and disclosure on the merits and demerits of a policy. It was reiterated that the Supreme Court’s services are not requested until the legitimacy of a policy is questioned and that no direction can be given or expected from the courts unless there is a violation or infringement of any constitutional or statutory restrictions while executing such policies.
Conclusion
The people of India place a considerably higher value on the judiciary than they do on any other government organ. This is due to the judiciary’s status as the “land of last resort.”
Administrative actions are now routinely subjected to judicial review. Based on illegality, absurdity, or procedural irregularity, it is admissible. However, it is generally established that administrative decisions including policy concerns have been elevated to a higher level.
Though they are not completely immune from judicial review, certain grounds for challenging policy choices that are accessible in the case of administrative judgments that do not involve policy considerations are not available in the case of policy decisions.
In most cases, courts use caution while assessing the legitimacy of policy problems. Courts cannot review the correctness, fitness, and appropriateness of policies since they do not sit as an appellate authority over policy issues. The government has the ability to establish policy, and the courts can only intervene if it breaches the Constitution’s fundamental rights or is contrary to any provision of the Constitution or legislation. A court cannot overturn a policy on the grounds that it is incorrect or that a better and more equitable option exists. Administrative acts and policies of the government that relate to the enforcement of people’s fundamental rights and are of public importance must be structured in accordance with the Constitution’s policy principles and mandate.
The judiciary’s adoption of such an all-powerful mindset does not bode well for a functioning democracy. This is further emphasized by the fact that the court, unlike the legislative and the administration, is not accountable to the people. When there is social, economic, or political injustice – or a departure from the provisions of the law and the constitution – the executive’s acts are subject to judicial review. The highest court investigates and corrects the legislature when it passes legislation that goes beyond constitutional limitations or acts arbitrarily against its core framework. Only a larger bench or a constitutional amendment can rein in the judiciary when it is guilty of excesses.
References:
[1] In re Delhi Laws Act case, AIR 1961 SC 332; Vasantlal Magan Bhai v. State of Bombay, AIR 1961 SC 4; S. Avtar Singh v. State of Jammu and Kashmir, AIR 1977 J&K 4
[2] AIR 1979 SC 321
[3] H.R. Khanna, Making of India’s Constitution, Eastern Book Company, 2008.
[4] AIR 1981 SC 1545
[5] Ibid
[6] AIR 2008 SC 1343
[7] Ibid.
[8] Ibid
[9] K. Narayanan v. State of Karnataka, AIR 1994 SC 55
[10] Akhil Bharat Goseva Sangh v. State of A.P., (2006) 4 SCC 162
[11] (1981) 1 SCC 568
[12] Ibid
[13] (1994) 2 SCC 691, 714, para 54 : (1994) 1 SCR 579
[14] Ibid
[15] AIR 1970 SC 565
[16] AIR 1996 SC 1356
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