Question: It is often said that the courts cannot interfere in the policy decisions of the Government. Many times, the courts refuse to interfere in the decision of the Government on the ground that it is a policy decision. Why can’t the courts interfere in the policy matters? Aren’t the courts supposed to do justice?
Answer: As a general rule, the courts do not interfere in the policy decisions of the Government. But, then, there are certain situations in which the courts can interfere even in the policy decisions of the Government, as I shall mention shortly.
Constitution of India is based on the basic principle of “separation of powers”, though there is some overlapping. There are mainly three wings of the State, namely, legislature, executive and judiciary. Each wing of the State has the power to act in its own sphere of activity. Legislature is to make laws. Executive is to make policies (subject to law), implement them, and run the administration. Judiciary is to apply laws, interpret laws, and to decide disputes and deliver justice. This is only a basic description of their activities.
Therefore, making policies and executing them comes within the sphere of activities of the executive. It is not within the power of the judiciary. Moreover, the judiciary does not have the expertise and the domain knowledge to make policies or to amend them. On the other hand, the executive has experts, professionals, administrators, advisors, etc., in a given field and has the expertise to make policies after taking into consideration all aspects of a matter.
Thus, generally, the judiciary cannot and will not interfere in the policy decisions of the Government which are in the domain of the executive.
That said, however, there are situations where the courts may interfere in the policy decisions of the Government. For example, if a policy decision is in violation of the fundamental rights guaranteed under the Constitution, or in violation of other provisions of the Constitution, the courts may intervene. Likewise, if a policy decision violates an Act of the Parliament or the Rules made thereunder, the courts may again intervene.
In the case of Col. A.S. Sangwan v. Union of India, 1980 Supp SCC 559 : AIR 1981 SC 1545, the Supreme Court held as under (in the words of Justice V.R. Krishna Iyer):
“A policy once formulated is not good for ever; 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 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. In this view, we agree with the submission of the Union of India that there is no bar to its changing the policy formulated in 1964 if there are good and weighty reasons for doing so. We are far from suggesting that a new policy should be made merely because of the lapse of time, nor are we inclined to suggest the manner in which such a policy should be shaped. It is entirely within the reasonable discretion of the Union of India. It may stick to the earlier policy or give it up. But one imperative of the Constitution implicit in Article 14 is that if it does change its policy, it must do so fairly and should not give the impression that it is acting by any ulterior criteria or arbitrarily. This object is achieved if the new policy, assuming Government wants to frame a new policy, is made in the same way in which the 1964 policy was made and not only made but made known. After all, what is done in secret is often suspected of being capricious or mala fide. So, whatever policy is made should be done fairly and made known to those concerned. So, we make it clear that while the Central Government is beyond the forbiddance of the court from making or changing its policy in regard to the Directorate of Military Farms or in the choice or promotion of Brigadiers, it has to act fairly as every administrative act must be done.”
Though this judgment is in respect of the facts of a particular case, the legal principles laid down in it are applicable in other similar situations where policy decisions are taken or changed by the Government from time to time.
In the case of DDA v. Joint Action Committee, Allottee of SFS Flats, (2008) 2 SCC 672 : AIR 2008 SC 1343, the Supreme Court held as under:
“64. 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.
65. 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 policy is contrary to the statutory or a larger policy.”
Above two decisions of the Supreme Court are only representative of a large number of decisions on this issue. The basic principle remains the same. Judiciary will generally not interfere in the policy decisions of the Government. However, in certain situations, some of which are mentioned above, the courts can and do interfere in the policies made by the Government and, in fact, there are a very large number of instances when the policies made by the Government have been struck down by courts on grounds such as the policy being unconstitutional, being against laws made by legislature, being arbitrary, etc. For example, in 2G scam, Government policy decision to allocate 2G spectrum was struck down. So was the case in coal scam case.
It is pertinent to mention that the power to interfere with the policy decisions of the Government lies mainly with the Supreme Court and High Courts, though certain Tribunals may also exercise this power on certain occasions. District Courts and lower courts do not have this power.
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