Policy Initiatives and the Role of Indian Judiciary

I. Introduction

When India became independent, the drafters of the Constitution took every step to draw Montesquieu’s philosophy of independence of organs of the State in the Indian Constitution. Though no specific provision was maintained in the Indian Constitution, the State under the cover of Article 50 of the Indian Constitution was obligated to maintain independence of the judiciary from the executive. The judiciary, the executive and the legislatives were given different fields in the Indian Constitution and their functions were demarcated. The narrative of their domains runs across different sketches of the Indian Constitution. It was the executive and the legislature, who were dictated to respect and prosper the cause of fundamental rights. The Indian judiciary was given the uphill task of upholding the right of constitutional remedies. Chairman of the Drafting Committee of the Constitution, Dr B.R. Ambedkar, aptly quoted this recourse to judicial authorities for upholding the right to constitutional remedies as the heart and soul of the Indian Constitution.[1] Keeping the mandate of the Indian Constitution, the Indian judiciary time and again has also held that wield of judicial review forms the basic structure of the Constitution.[2] In this light, what remains essential to be demarcated is that when, how and in what stretch, the power of judicial review should be exercised by the judiciary.

Policies set down by the legislature and the executives lie in the domain of both the organs. On the yardstick of constitutional law, what is the limit, which the Indian judiciary has been exercising while foraying into the unchartered territories of judicial review, so as to canalise the domain of the other two organs of the State, has been confabulated across different tables. The magic wand of judicial review calls for an interference only when patently manifest farce is played on the Indian Constitution. Powers, when used on the stilts of justification, result in redefinition of its ambit, whereas, inappropriate use of its refulgence departs the sheen of its glory. The stories of indulgence with the powers of judicial review have also been as igniting as has been the growth of Supreme Court of India. From “Supreme Court of India” to “Supreme Court for India”, the Court has shown immaculate balance on the tightrope of equity, justice and good conscience, for delivering to “we the people”. Baton of illumination passed by the Supreme Court on the appreciation of demarcation between the different streams of State, has undoubtedly delineated, what, where and how its interference becomes necessitated, to constitutionalise the policy initiatives taken by the other two organs of the State.

Conceptual basis of judicial review emerges from the perennial debate between constitutionalism and democracy. Constitutionalism presumes that Constitution can override the decision-making process. Whereas, “democracy” is pillared on the principle that the elected body of people has the right to make decisions for the polity.[3] Indian Constitution, however, by declaring India as a “democratic republic”, in its reach engraves the supremacy of the Constitution over the legislature and guarantees that the human rights are protected not only by self-restraint of the majority, but also by constitutional control over the majority.[4] Decisive role to interpret the Constitution, being entrusted with the judiciary; the question to be answered in this article is the determination of its limits.

The pith of this article rests on the appraisal of the powers of judicial review of the Indian Courts. Obligation binds all the three organs of the State. This obligation is founded for all the three on the benchmark of Indian Constitution. Moreover, the values seeping in the Indian constitution solicit a clear demarcation of the State machinery.

II. State and its role

State under Article 12 of the Indian Constitution has drawn its content from various adjudications of the Supreme Court of India. The executives and the legislature clearly make their way in the definition of State under Article 12. They are obligated under the same Constitution to make laws which do not cut the thread of guarantee, binding the people of this country under the arsenal of fundamental rights. The role played by each organ of the State can be adjudged on the doorsteps of the Indian Constitution. Right to judicial recourse has itself been realised as the fundamental force for peddling the structure of each and every law.

Article 13 of the Constitution defines “law”. The definition provided in Article 13 only pictures an inclusive list. The domain of policy making is reserved only for the executive and the legislature. Realm of policy making sticks its foot in the jurisprudence of administrative law. Policies devised by the executive and the legislature are routed for strengthening the cause of smooth functioning of the State machinery. It is only the State, which being aware of its resources can devise healthy policies. Various parameters, including but not limited to political will, budgetary considerations, optimisation of resources, play eminent role in building the framework of policies. State, totted with its responsibilities towards the masses, stands in a proper footing to address the concerns of the benighted. Moreover, legislature, representing the will of the masses, necessarily has an obligation to involve itself in the process of decision making. The Constitution only mandates that such decision making should not prejudice an individual of his guaranteed rights.

III. Judiciary and policy decisions

Faith reposed on the judiciary by the people of India, stands on a much higher rung than on any other organ of the State. This is because of the judiciary being considered as the land of last resort. Judiciary has always indulged itself when it has found that the illumination of the Indian Constitution has started losing its sheen.[5] Constitution stands at the pinnacle of the pyramid, under which everything done by State to diverge from its reach can be tested by the Indian judiciary. As the ultimate guardian of the rights of the people of this populous land, Indian courts have found themselves at the helm of affairs, in dealing with the State machinery.[6] Judicial review, when undertaken in consonance with the Indian Constitution, brings realisation to the hopes and aspirations of millions. Inheritance of powers, does not come without limits. Judicial restraint forms part and parcel of judicial review.[7] Under the mandate of the Indian Constitution, courts cannot sit to harmonise the functions of different organs of the State.[8] Their role gets restricted in providing access to those who bring to light the darkness springing out State actions. This darkness can only be tested under the parasol of Indian Constitution.[9] True realisation of the Preamble of the Constitution, which represents the knot of all the Articles of the Constitution, comes home only when each organ of the State works in conformity within the horizons set down for their limits.

A policy decision taken by the Government is not liable to interference[10], unless the Court is satisfied that the rule-making authority has acted arbitrarily or in violation of the fundamental right guaranteed under Articles 14 and 16.[11] Dealing with the powers of the Court while considering the validity of the decision taken in the sale of certain plants and equipment of the Sindri Fertilizer Factory, which was owned by a public sector undertaking, to the highest tenderer, the Supreme Court in Fertilizer Corpn. Kamgar Union (Regd.), Sindri v. Union of India[12], while upholding the decision to sell, observed that:

  1. 35. … We certainly agree that judicial interference with the administration cannot be meticulous in our Montesquien 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 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.[13]

In State of M.P. v. Nandlal Jaiswal[14], the change of the policy decision taken by the State of Madhya Pradesh to grant licence for construction of distilleries for manufacture and supply of country liquor to existing contractors was challenged. Dealing with the power of the Court in considering the validity of policy decision relating to economic matters, it was observed that:

  1. 34. But, while considering the applicability of Article14in such a case, we must bear in mind that, having regard to the nature of the trade or business, the Court would be slow to interfere with the policy laid down by the State Government for grant of licences for manufacture and sale of liquor. The Court would, in view of the inherently pernicious nature of the commodity allow large measure of latitude to the State Government in determining its policy of regulating, manufacture and trade in liquor. Moreover, the grant of licences for manufacture and sale of liquor would essentially be a matter of economic policy where the Court would hesitate to intervene and strike down what the State Government has done, unless it appears to be plainly arbitrary, irrational or mala fide. We had occasion to consider the scope of interference by the Court under Article 14 while dealing with laws relating to economic activities in K. Garg v. Union of India[15]. We pointed out in that case that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion, etc. We observed that the legislature should be allowed some play in the joints because it has to deal with complex problems which do not admit of solution through any doctrinaire or straitjacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. We quoted with approval the following admonition given by Frankfurter, J. in Morey v. Dovd[16].

In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the Judges have been overruled by events — self?limitation can be seen to be the path to judicial wisdom and institutional prestige and stability.

What we said in that case in regard to legislation relating to economic matters must apply equally in regard to executive action in the field of economic activities, though the executive decision may not be placed on as high a pedestal as legislative judgment insofar as judicial deference is concerned. We must not forget that in complex economic matters every decision is necessarily empiric and it is based on experimentation or what one may call “trial” and error method and, therefore, its validity cannot be tested on any rigid “a priori” considerations or on the application of any straitjacket formula. The court must while adjudging the constitutional validity of an executive decision relating to economic matters grant a certain measure of freedom or “play in the joints” to the executive. “The problem of Government” as pointed out by the Supreme Court of the United States in Metropolis Theater Co. v. State of Chicago[17]:

  1. 2. … are practical ones and may justify, if they do not require, rough accommodations, — illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not discernible, the wisdom of any choice may be disputed or condemned. Mere errors of Government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void.[18]

The Government, as was said in Permian Basin Area Rate cases, In re[19] is entitled to make pragmatic adjustments which may be called for by particular circumstances. The court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. The court can interfere only if the policy decision is patently arbitrary, discriminatory or mala fide. It is against the background of these observations and keeping them in mind that we must now proceed to deal with the contention of the petitioners based on Article 14 of the Constitution.[20]

A policy decision of the Government whereby validity of contract entered into by Municipal Council with the private developer for construction of a commercial complex was impugned came up for consideration in G.B. Mahajan v. Jalgaon Municipal Council[21], and it was observed that:

  1. 22. … The criticism of the project being “unconventional” does not add to or advance the legal contention any further. The question is not whether it is unconventional by the standard of the extant practices, but whether there was something in the law rendering it impermissible. There is, no doubt, a degree of public accountability in all governmental enterprises. But, the present question is one of the extent and scope of judicial review over such matters. With the expansion of the State’s presence in the field of trade and commerce and of the range of economic and commercial enterprises of Government and its instrumentalities there is an increasing dimension to governmental concern for stimulating efficiency, keeping costs down, improved management methods, prevention of time and cost overruns in projects, balancing of costs against time scales, quality control, cost-benefit ratios, etc. In search of these values it might become necessary to adopt appropriate techniques of management of projects with concomitant economic expediencies. These are essentially matters of economic policy which lack adjudicative disposition, unless they violate constitutional or legal limits on power or have demonstrable pejorative environmental implications or amount to clear abuse of power. This again is the judicial recognition of administrator’s right to trial and error, as long as both trial and error are bona fide and within the limits of authority.[22]

To the same effect are the observations of the court in Peerless General Finance and Investment Co. Ltd. v. RBI[23], in which Kasliwal, J. observed:

  1. 31. The function of the court is to see that lawful authority is not abused but not to appropriate to itself the task entrusted to that authority. It is well settled that a public body invested with statutory powers must take care not to exceed or abuse its power. It must keep within the limits of the authority committed to it. It must act in good faith and it must act reasonably. Courts are not to interfere with economic policy which is the function of experts. It is not the function of the courts to sit in judgment over matters of economic policy and it must necessarily be left to the expert bodies. In such matters even experts can seriously and doubtlessly differ. Courts cannot be expected to decide them without even the aid of experts.[24]

In Premium Granites v.  State of T.N.[25], while considering the court’s powers in interfering with the policy decision, it was observed that:

  1. 54. It is not the domain of the Court to embark upon 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.…[26]

The validity of the decision of the Government to grant licence under the Telegraph Act, 1885 to non-government companies for establishing, maintaining and working of telecommunication system of the country pursuant to government policy of privatisation of telecommunications was challenged in Delhi Science Forum v. Union of India[27]. It had been contended that telecommunications was a sensitive service which should always be within the exclusive domain and control of the Central Government and under no situation should be parted with by way of grant of lance to non-government companies and private bodies. While rejecting this contention, it observed that:

  1. 5. … The national policies in respect of economy, finance, communications, trade, telecommunications and others have to be decided by Parliament and the representatives of the people on the floor of Parliament can challenge and question any such policy adopted by the ruling Government….[28]

While considering the validity of the industrial policy of the State of Madhya Pradesh relating to the agreements entered into for supply of sal seeds for extracting oil in M.P. Oil Extraction v. State of M.P.[29], the court held:

41. After giving our careful consideration to the facts and circumstances of the case and to the submissions made by the learned counsel for the parties, it appears to us that the Industrial Policy of 1979 which was subsequently revised from time to time cannot be held to be arbitrary and based on no reason whatsoever but founded on mere ipse dixit of the State Government of M.P. The executive authority of the State must be held to be within it competence to frame a policy for the administration of the State. Unless the policy framed is absolutely capricious and, not being informed by any reason whatsoever, can be clearly held to be arbitrary and founded on mere ipse dixit of the executive functionaries thereby offending Article. of the Constitution or such policy offends other constitutional provisions or comes into conflict with any statutory provision, the Court cannot and should not outstep its limit and tinker with the policy decision of the executive functionary of the State. This Court, in no uncertain terms, has sounded a note of caution by indicating that policy decision is in the domain of the executive authority of the State and the court should not embark on the unchartered ocean of public policy and should not question the efficacy or otherwise of such policy so long the same does not offend any provision of the stature or the Constitution of India. The supremacy of each of the three organs of the State i.e. legislature, executive and judiciary in their respective fields of operation needs to be emphasised. The power of judicial review of the executive and legislative action must be kept within the bounds of constitutional scheme so that there may not be any occasion to entrance misgivings about the role of judiciary in outstepping its limit by unwarranted judicial activism being very often talked of in these days. The democratic set-up to which the polity is so deeply committed cannot function properly unless each of the three organs appreciate the need for mutual respect and supremacy in their respective field.[30]

The validity of the change of government policy in regard to the reimbursement of medical expenses to its serving and retired employees came up for consideration before Supreme Court in State of Punjab v. Ram Lubhaya Bagga[31]. The earlier policy upholding the reimbursement for treatment in a private hospital had been upheld by this Court but the State of Punjab changed this policy whereby reimbursement of medical expenses incurred in a private hospital was only possible if such treatment was not available in any government hospital. Dealing with the validity of the new policy, the court observed that:

  1. 25. Now we revert to the last submission, whether the new State policy is justified in not reimbursing an employee, his full medical expenses incurred on such treatment, if incurred in any hospital in India not being a government hospital in Punjab. Question is whether the new policy which is restricted by the financial constraints of the State to the rates in Aiims would be in violation of Article 21 of the Constitution of India. So far as questioning the validity of governmental policy is concerned in our view it is not normally within the domain of any court, to weight the pros and cons of the policy or to scrutinise it and test the degree of its beneficial or equitable disposition for the purpose of varying, modifying or annulling it, based on howsoever sound and good reasoning, except whether it is arbitrary or violative of any constitutional, statutory or any other provision of law. When Government forms its policy, it is based on a number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. It would be dangerous if court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. The court would dissuade itself from entering into this realm which belongs to the executive. It is within this matrix that it is to be seen whether the new policy violates Article 21 when it restricts reimbursement on account of its financial constraints.[32]

The reluctance of the court to judicially examine the matters of economic policy was again emphasised in Bhavesh D. Parish v. Union and India[33] and while examining the validity of Section 45-S of the Reserve Bank of India Act, 1934, it was held that:

  1. 26. The services rendered by certain informal sectors of the India economy could not be belittled. However, in the path of economic progress, if the informal system was sought to be replaced by a more organised system, capable of better regulation and discipline, then this was an economic philosophy reflected by the legislation in question. Such a philosophy might have its merits and demerits. But these were matters of economic policy. They are best left to the wisdom of the legislature and in policy matters the accepted principle is that the courts should not interfere. Moreover in the context of the changed economic scenario the expertise of people dealing with the subject should not be lightly interfered with. The consequences of such interdiction can have large-scale ramifications and can put the clock back for a number of years. The process of rationalisation station of the infirmities in the economy can be put in serious jeopardy and, therefore, it is necessary that while dealing with economic legislations, this Court, while not jettisoning its jurisdiction to curb arbitrary action or unconstitutional legislation, should interfere only in those few cases where the view reflected in the legislation is not possible to be taken at all.[34]

In Narmada Bachao Andolan v. Union of India[35], there was a challenge to the validity of the establishment of a large dam. It was held by the majority that:

  1. 229. It is now well settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making process and the courts are ill-equipped to adjudicate on a policy decision so undertaken. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people’s fundamental rights are not transgressed upon except to the extent permissible under the Constitution…[36]

Buttressing the same point in Balco Employees’ Union (Regd) v. Union of India[37], it was held:

  1. 92. In a democracy, it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the court.
  2. 93. Wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution. In other words, it is not for the courts to consider relative merits of different economic polices and consider whether a wiser or better one can be evolved. For testing the correctness of a policy, the appropriate forum is parliament and not the courts.[38]

Faith reposed on the judiciary demands recognition of its limits. In Printers (Mysore) Ltd. v. M.A. Rasheed[39], the Supreme Court drawing from Dawn Oliver in Constitutional Reforms in the UK under the heading “The Courts and Theories of Democracy, Citizenship, and Good Governance” at p. 105 stated that:

22. … 30. However, this concept of democracy as rights based with limited governmental power, and in particular of the role of the courts in a democracy, carries high risks for the Judges and for the public. Courts may interfere inadvisedly in public administration. The case of Bromley London Borough Council v. Greater London Council[40] is a classic example. The House of Lords quashed the GLC cheap fares policy as being based on a misreading of the statutory provisions, but were accused of themselves misunderstanding transport policy in so doing. The courts are not experts in policy and public administration — hence Jowell’s point that the courts should not step beyond their institutional capacity (Jowell, 2000). Acceptance of this approach is reflected in the judgments of Laws LJ in International Transport Roth GmbH v. Secy. of State for the Home Department[41] and of Lord Nimmo Smith in Adams v. Lord Advocate[42] in which a distinction was drawn between areas where the subject-matter lies within the expertise of the courts (for instance, criminal justice, including sentencing and detention of individuals) and those which were more appropriate for decision by democratically elected and accountable bodies. If the courts step outside the area of their institutional competence, the government may react by getting Parliament to legislate to oust the jurisdiction of the courts altogether. Such a step would undermine the rule of law. The Government and public opinion may come to question the legitimacy of the Judges exercising judicial review against Ministers and thus undermine the authority of the courts and the rule of law.[43]

In T.N. Education Department Ministerial and General Subordinate Services Assn. v. State of T.N.[44], noticing the jurisdictional limitations to analyse and fault a policy, the Court opined that:

  1. 16. … The court cannot strike down a G.O., or a policy merely because there is a variation or contradiction. Life is sometimes contradiction and even consistency is not always a virtue. What is important is to know whether mala fides vitiates or irrational and extraneous factor fouls.[45]

The wholesome rule in regard to judicial interference in administrative decisions is that if the Government takes into consideration all relevant factors, eschews from considering irrelevant factors and acts reasonably within the parameters of the law, courts would keep off the same.[46]

In Ugar Sugar Works Ltd. v. Delhi Admn.[47], quoting law laid down in an English Court, the Supreme Court said that:

  1. 20. It would also be prudent to recall the following observations of Lord Justice Lawton in Laker Airways Ltd. Deptt. of Trade[48], while considering the parameters of judicial review in matters involving policy decisions of the executive:

In the United Kingdom aviation policy is determined by Ministers within the legal framework set out by Parliament. Judges have nothing to do with either policy making or the carrying out of policy. Their function is to decide whether a Minister has acted within the powers given him by statute or the common law. If he is declared by a court, after due process of law, to have acted outside his powers, he must stop doing what he has done until such time as Parliament gives him the powers he wants. In a case such as this I regard myself as a referee. I can blow my judicial whistle when the ball goes out of play; but when the game restarts I must neither take part in it nor tell the players how to play.[49]

Apart from the decisions rendered by the Supreme Court in the supra cited judgments, in catena of other cases, the court has dithered to indulge itself with matters involving domains of the executive and the legislature. The court has not issued writ to direct legislation for framing a civil code, including for Muslims[50] or for any direction with regards to the rights of Muslim Women[51]. The courts have also refused to interfere with regard to the establishment of Company Law Board[52], education policy[53], economic policy or directions given by Reserve Bank of India[54], price fixation[55], inclusion of a particular language in the Eighth Schedule[56], administration of cooperative societies[57], or stock exchanges[58], findings of expert bodies like pay commissions[59], fixing of criteria for admission to a University[60], granting monetary benefits to employees[61], granting employment on compassionate grounds[62], fixing retirement age for all teachers at the age of 58 years[63], abolition of State Minorities Commission[64], notification fixing minimum wages[65], fixation of telephone rates[66], electricity tariff[67], schemes of nationalisation[68] and price fixation for drugs and medicines[69], amongst others.

IV. Denouement

Independence, when not self-regulated, becomes abuse. Each organ of State has its own framework, under which it wields its powers. Usurpation of the playfield of others, results in complete detestation to the Constitution of India.  Therefore, power to review policy by the judiciary needs to be based upon the edifice upon which the framework of the Constitution is established.

The legitimacy of the review power stems out of the accountability of every institution, including the executive, to the Constitution. Any institution which transgresses the boundary prescribed in the foundational document is bound to invite backlash from the people. In case of scrutiny of the policy by the judiciary, there is a need to be extra cautious as it amounts to intrusion into the domain of the executive and also inherent limitation of judicial institution to formulate strategy based on budgetary considerations. Judicial intervention must be to uphold the rule of law and not to direct the executive or the legislature about appropriateness of the action undertaken.

The trend of judicial scrutiny of every significant governmental action and the readiness even of the executive to seek judicial determination of debatable or controversial issues, at times, may be, used as a weapon by the executive to avoid its accountability for the decision. The revisiting of action taken by the other two branches of the State by the judiciary satisfies the mandate of a written Constitution as long as such action by the judicial institution does not amount to writing off institutional scheme of the Constitution. The authors believe that the Supreme court of India has been treading cautiously in examining the action of other branches and refraining itself from playing role of spoiler of the institution.

* Dr Uday Shankar is Assistant Professor of Constitutional Law at the Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology, Kharagpur, India. He can be reached at uday@rgsoipl.iitkgp.ernet.in.

** Saurabh Bindal is an advocate practising in dispute resolution in India. He can be reached at saurabhbindal13@gmail.com. Both the authors have co-authored a book titled “Constitutionalising Intellectual Property.”

    [1]  H.R. Khanna, Making of India’s Constitution, Eastern Book Company (2008), 74.

    [2]  L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.

   [3]  Arthur Dyevre, Technocracy and Distrust: Revisiting the Rationale for Judicial Review, SSRN Electronics Journal 04/2012; DOI: 10.2139/ssrn.2043262 (Accessed on 10-7-2014). Also, Eugene V. Rostow: The Democratic Character of the Judicial Review, (1952) 66 Harv LR 193.

    [4]  Pran Chopra, The Supreme Court Versus the Constitution, SAGE Publications (2006).

 [5]  Upendra Baxi, The Judiciary as a Resource for Indian Democracy, <http:\www.india-seminar.com/2010/615/615_upendra_baxi.htm> (accessed on 10-7-2014).

    [6]  P.N. Bhagwati and C.J. Dias, The Judiciary in India: A Hunger and Thirst for Justice, 5 NUJS L REV 171 (2012).

    [7]  Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461.

    [8]  (“It is again not for this Court to consider the relative merits of the different political theories or economic policies… This Court has the power to strike down a law on the ground of want of authority, but the Court will not sit in appeal over the policy of Parliament in enacting a law…”) Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248 : (1970) 3 SCR 530.

    [9]  (“The courts can exercise the power of judicial review in every matter which is constitutional in nature or has constitutional repercussions.”) Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : AIR 1993 SC 477.

  [10]  (“It is also well settled that policy decision of the Government cannot be interfered with or struck down merely on certain factual disputes in the matter. It is not open to the court to strike down such decision until and unless a serious and grave error is found on the part of the Central Government or the State Government.”) Akhil Bharat Goseva Sangh (3) v. State of A.P., (2006) 4 SCC 162.

  [11]  K. Narayanan v. State of Karnataka, 1994 Supp (1) SCC 44 : AIR 1994 SC 55.

  [12]  (1981) 1 SCC 568 : (1981) I LLJ 193 SC.

  [13]  (1981) 1 SCC 568, 584, para 35 : (1981) 1 LLJ 193.

  [14]  (1986) 4 SCC 566

  [15]  (“What has been said in respect of legislations is applicable even in respect of policies which have been adopted by Parliament. They cannot be tested in court of law. The courts cannot express their opinion as to whether at a particular juncture or under a particular situation prevailing in the country any such national policy should have been adopted or not. There may be views and views, opinions and opinions which may be shared and believed by citizens of the country including the representatives of the people in Parliament. But that has to be sorted out in Parliament which has to approve such policies. Privatisation is a fundamental concept underlying the questions about the power to make economic decisions. What should be the role of the State in the economic development of the nation? How the resources of the country shall be used? How the goals fixed shall be attained? What are to be the safeguards to prevent the abuse of the economic power? What is the mechanism of accountability to ensure that the decision regarding privatisation is in public interest? All these questions have to be answered by a vigilant Parliament. Courts have their limitations — because these issues rest with the policy?makers for the nation. No direction can be given or is expected from the courts unless while implementing such policies, there is violation or infringement of any of the constitutional or statutory provision. The new telecom policy was placed before Parliament and it shall be deemed that Parliament has approved the same. This Court cannot review and examine as to whether the said policy should have been adopted. Of course, whether there is any legal or constitutional bar in adopting such policy can certainly be examined by the Court.”) (1981) 4 SCC 675 : (1982) 133 ITR 239.

  [16]  1957 SCC OnLine US SC 105 : 1 L Ed 2d 1485 : 354 US 457 (1957).

  [17]  1913 SCC OnLine US SC 123 : 57 L Ed 730 : 228 US 61 (1913).

  [18]  1913 SCC OnLine US SC 123 : 57 L Ed 730, para 2 : 228 US 61 (1913).

  [19]  1968 SCC OnLine US SC 87 : 20 L Ed 2d 312 : 390 US 747 (1968).

  [20]  (1986) 4 SCC 566, 605, 606, para 34 : (1987) 1 SCR 1.

  [21]  (1991) 3 SCC 91 : AIR 1991 SC 1153.

  [22]  (1991) 3 SCC 91, 103, 104, para 22 : AIR 1991 SC 1153.

  [23]  (1992) 2 SCC 343.

  [24]  (1992) 2 SCC 343, 375, para 31.

  [25]  (1994) 2 SCC 691 : (1994) 1 SCR 579.

  [26]  (1994) 2 SCC 691, 714, para 54 : (1994) 1 SCR 579.

  [27]  (1996) 2 SCC 405 : AIR 1996 SC 1356.

  [28]  (1996) 2 SCC 405, para 5 : AIR 1996 SC 1356.

  [29]  (1997) 7 SCC 592.

  [30]  (1997) 7 SCC 592, 610, 611, para 41.

  [31]  (1998) 4 SCC 117 : AIR 1998 SC 1703.

  [32]  (1998) 4 SCC 117, 129, para 25 : AIR 1998 SC 1703.

  [33]  (2000) 5 SCC 471.

  [34]  (2000) 5 SCC 471, 486, para 26.

  [35]  (2000) 10 SCC 664.

  [36]  (2000) 10 SCC 664, 762, para 229.

  [37]  (2002) 2 SCC 333 : AIR 2002 SC 350.

  [38]  (2002) 2 SCC 333, 381, 382, paras 92 and 93.

  [39]  (2004) 4 SCC 460.

  [40]  (1983) 1 AC 768 : (1982) 2 WLR 62 : (1982) 1 All ER 129 (HL).

  [41]  2003 QB 728 : (2002) 3 WLR 344 : 2002 EWCA 158 (CA).

  [42]  Court of Sessions, Times, 8-8-2002.

  [43]  (2004) 4 SCC 460, 469, para 22.

  [44]  (1980) 3 SCC 97 : (1980) 1 SCR 1026 .

  [45]  (1980) 3 SCC 97, 102, para 16 : (1980) 1 SCR 1026.

  [46]  Federation of Railway Officers Assn. v. Union of India, (2003) 4 SCC 289 : AIR 2003 SC 1344.

  [47]  (2001) 3 SCC 635.

  [48]  1977 QB 643 : (1977) 2 WLR 234 : (1977) 2 All ER 182 (CA).

  [49]  (2001) 3 SCC 635, 644, para 20.

  [50]  Maharshi Avadhesh v. Union of India, 1994 Supp (1) SCC 713.

  [51]  Ahmedabad Women Action Group v. Union of India, (1997) 3 SCC 573.

  [52]  Satish Chandra v. Union of India, (1994) 5 SCC 495 : AIR 1995 SC 138.

  [53]  English Medium Students Parent Assn. v. State of Karnataka, (1994) 1 SCC 550 : AIR 1994 SC 1702.

  [54]  Peerless General Finance and Investment Co. Ltd. v. RBI, (1992) 2 SCC 343 : AIR 1992 SC 1033.

  [55]  Pallavi Refactories v. Singareni Collieries Co. Ltd., (2005) 2 SCC 227 : AIR 2005 SC 744.

  [56]  Kanhaiya Lal Sethia v. Union of India, (1997) 6 SCC 573.

  [57]  Bhandara District Central Cooperative Bank Ltd. v. State of Maharashtra, 1993 Supp (3) SCC 251 : AIR 1993 SC 59.

  [58]  Om Prakash Poplai v. Delhi Stock Exchange Assn. Ltd., (1994) 2 SCC 117.

  [59]  K. Vasudevan Nair v. Union of India, 1991 Supp (2) SCC 134.

  [60]  Jawaharlal Nehru University Students’ Union v. Jawaharlal Nehru University, (1985) 2 SCC 32 : AIR 1985 SC 567.

  [61]  State Fishery Officers’ Assn. v. State of W.B., (1997) 9 SCC 65.

  [62]  State of H.P. v. Jafli Devi, (1997) 5 SCC 301.

  [63]  Banchhanidhi Rath v. State of Orissa, (1972) 4 SCC 781 : AIR 1972 SC 843.

  [64]  Misbah Alam Shaikh v. State of Maharashtra, (1997) 4 SCC 528 : AIR 1997 SC 1409.

  [65]  Ministry of Labour and Rehabilitation v. Tiffin’s Barytes Asbestos and Paints Ltd., (1985) 3 SCC 594 : AIR 1985 SC 1391.

  [66]  S. Narayan Iyer v. Union of India, (1976) 3 SCC 423 : AIR 1976 SC 1986.

  [67]  Assn. of Industrial Electricity Users v. State of A.P., (2002) 3 SCC 711 : AIR 2002 SC 1361.

  [68]  Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147 : AIR 1983 SC 239.

  [69]  Union of India v. Cynamide India Ltd., (1987) 2 SCC 720 : AIR 1987 SC 1802.

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