Decision of political executive is not amenable to judicial review unless on the face of it, it is violative of fundamental rights or constitutional or statutory provisions

Jammu and Kashmir High Court: The Court recently dealt with a case wherein the petitioners had previously requested the respondents to withhold the building of a new school on a certain new premise after it having sustained damages because of a flood in its previous location, since the construction would case heavy burden on the state exchequer. After repeated refusals to consider the request, the petitioners approached the Court to pass an order in their favor.

The Court held that it is manifest that the power and the authority of the Courts to examine the correctness, suitability and appropriateness of a policy of the Government is limited in its scope and extent. It held that the Courts can sit in the judgment of the executive only in case it violates the fundamental rights of the citizens or is in conflict with the provisions of the Constitution or is opposed to any statutory provision or is manifestly arbitrary. It held that the decision of the political executive in constructing a school at a particular place is not amenable to judicial review as, on the face of it, it is neither violative of the fundamental rights of the citizens nor is it opposite to the provisions of the Constitution or any statutory provisions nor is it manifestly arbitrary and particularly when both the damaged building and the building under construction are said to be housed on the bank of river Afzire and to cap it all, there is no document on record to substantiate and support the plea of the petitioners that the school building is being constructed on the bank of the river despite the availability of an alternate space.

The Court referred to Inhabitants of Township Dangiwacha v. State, OWP 563/2011, wherein it had cited several judgments to substantiate its reasoning. In Directorate of Film Festivals v. Gaurav Ashwin Jain, (2007) 4 SCC 737, the Court held that “Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review.” It also cited Chief Constable of the North Wales Police v. Evans, [1982] 1 WLR 1155 wherein it was held, “The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized by law to decide for itself a conclusion which is correct in the eyes of the court. Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made”. [Residents of Village Chowdar Gund v. State, 2017 SCC OnLine J&K 667, decided on 10.11.2017]

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