SC’s Approach to ‘Policy Decisions’ Is Constitutionally Flawed

The Supreme Court must remember that judicial review is the rule– not the exception.

In several important and closely-watched cases that have come up before the Supreme Court over the last year, the Union of India has adopted a uniform stand of arguing that the Court has limited powers of judicial review to scrutinise complex policy decisions.

This argument was central to the Union’s submissions with respect to the Aadhaar case, the Rafale deal and the petition challenging the constitutionality of electoral bonds.

In the electoral bonds case, for example, the Attorney General argued that the government should be allowed to experiment in matters of economic policy, without such decisions being subject to judicial scrutiny. While the argument frequently works to the benefit of the government by disabling judicial review at the threshold level, it is plain wrong in the context of the Indian Constitution.

Borrowed Ideas from the United States

The Indian Supreme Court has borrowed the idea that the judiciary has a limited scope of review in areas of policy, from the United States. In the 1930s in the New Deal era, the American judiciary was criticised for striking down several welfare measures using its power of judicial review. While adopting a course correction, the United States Supreme Court stated as a matter of general proposition, that the judiciary should not interfere in economic policies made by the government, since economic policies are based on experimentation and trial and error. In other words, they require discretion to succeed. While importing this proposition, the Indian judiciary ought to have questioned whether this proposition is compatible with the Indian Constitution.

There exist several differences between the text of the Indian Constitution and American Constitution. The American Constitution does not expressly provide for judicial review. Instead, the concept was evolved by the United States Supreme Court and its scope and extent is constantly challenged.

The Indian Constitution, on the other hand, leaves little room for debate on the issue. Part III of the Constitution, which contains the Fundamental Rights provisions, is prefaced by Articles 12 and 13, that lay out the obligation on the state vis-à-vis fundamental rights. These provisions obligate the “state” to not make any law that is violative of fundamental rights, and declares that any such law would be void.

Both the terms “law” and “state” have a wide and inclusive definition. The term law is not limited to mere legislation but includes, “any ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law.” Similarly, the word “state” includes not only legislatures of the Centre and the State, but “all local or other authorities.”

Ambedkar Advocated that Every State Action Must Be Checked

On being questioned over the wide definition provided, Dr BR Ambedkar, the Chairman of the Drafting Committee in the Constituent Assembly, explained that, for fundamental rights to have meaning, “every authority which has got either the power to make laws or the power to have discretion vested in it” would come under the purview of “state”, and be obligated to not violate fundamental rights.

Ambedkar clarified that this obligation would be “universal” and would be binding not only upon the central and state governments, “but also be binding upon district local boards, municipalities, even village panchayats and taluk boards. In fact, every authority which has been created by law and which has got certain power to make laws, to make rules, or make by-laws.”

He went on to state that, “I do not see why anyone who cares for fundamental rights, can object to such a universal obligation being imposed upon every authority created by law”. The framers of the Constitution were clear that every state action, be it at the highest or lowest levels of government, or in the form of a law, by-law, notification or a piece of paper, had the potential to violate fundamental rights, and therefore had to be checked. In other words, the Indian Constitution required the state to carry out a rights-based analysis, while taking any action to ensure that no decision unreasonably restricts rights.

Judicial Review is the Rule– Not the Exception

Further, Article 32 provides for the fundamental right to judicial review, for the enforcement of the rights guaranteed under Part III. Nowhere in Part III has an exception to this been carved out, with respect to policy decisions. This is also clear from the larger scheme of the Constitution, where judicial review has been expressly barred in respect of certain issues, for example, with respect to inter-water disputes (Article 262) and disputes arising out of international treaties (Article 363) and, in a sense, enforcement of directive principles of state policy (Article 37).

The fact that the framers expressly barred judicial review with regard to certain issues, shows that judicial review is the rule and not the exception.

The Union of India has never provided an interpretation of the Constitution that suggests that policy decisions are exempt from judicial review. In fact, the argument entirely overlooks the fact that judicial review in India is available as a fundamental right. The distinctness of the Indian Constitution in this regard was explained by the Indian Supreme Court in 1952 (State of Madras v. V.G. Row), where the Court held:

“..we think it right to point out, what is sometimes overlooked, that our Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution, unlike as in America where the Supreme Court has assumed extensive powers of reviewing legislative acts … If, then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader's spirit, but in discharge of a duty plainly laid upon them by the Constitution.”

“...This is especially true as regards the “fundamental rights”, as to which this Court has been assigned the role of a sentinel on the qui vive. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute.”

American Jurisprudence Inconsistent With Indian Constitution

Unfortunately, the Indian judiciary has frequently turned to American jurisprudence on judicial review of policy, even though it is inconsistent with the text and scheme of the Indian Constitution, and the intention of the framers. In doing so, the Court has enabled the Union to escape the constitutional mandate of judicial review by labeling its decisions as “policy decisions”.

This then becomes the Union’s standard argument, notwithstanding the fact that even complex policy decisions can result in grave violations of fundamental rights – the Aadhaar Act being a good example.

A concern that may be raised in response to the view that the judiciary must check policy decisions for fundamental rights violations, is that the judiciary would end up usurping the function of expert policy makers despite not having the competence to perform such a function. However, there is a distinction between substituting and reviewing a decision. Here, it is worth reiterating that Article 13 obligates the state to undertake a rights-based analysis while taking any action.

Thus, the job of the judiciary would be to review the reasons provided by the state to ensure that this rights-based analysis was carried out.

A Rights-Based Analysis

In our view, this rights-based analysis is best captured by the four-step proportionality test. Under this test, the state must evaluate:

• whether the policy resulting in a restriction of a right is in pursuance of a legitimate purpose;
• whether the policy is capable of achieving this purpose;
• whether, among alternatives, the policy measure impairs the right the least;
• whether the loss to the State by not pursuing the purpose in that particular manner is outweighed by the loss to the right.

For instance, in considering the constitutionality of the electoral bonds scheme, the Court would evaluate if the prevention of black money in elections is a legitimate purpose to restrict the right to know about political funding under Article 19(1)(a), whether the government considered sufficient expert material to demonstrate that the anonymity of donors is going to bring about a decrease in black money, that there are no alternatives to the scheme proposed that are equally effective in reducing black money, but that restrict the right to know to a lesser extent.

And the loss that would be caused to the right to know, would be less than the loss caused through black money contributions to continue in elections. Any judicial doctrine that prevents the judiciary from asking these questions to the Union, would be inconsistent with the fundamental right to judicial review guaranteed under Article 32.

(Disclaimer: One of the authors was involved in the electoral bonds case before the Supreme Court of India)

(Jahnavi Sindhu and Vikram Aditya Narayan are advocates based in New Delhi. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)