TOPIC- Doctrine of Political Question: Constitutional Organs
In 1962, the Supreme Court of U.S.A was seized of a matter that went down in history as one of its most important decisions ever. The matter involved a delineation of the extent of judicial review, while dealing with whether ‘equal protection of laws’ was violated by the borders of a district not being redrawn appropriately to adjust for population movement. The issue came down to whether the Court could in fact investigate and adjudicate on such issues, given the existence of a strict separation of powers.
The issue was of great political importance, perhaps the most important since Marbury v. Madison, and the conflicting views prevalent led Justice Whittaker to recuse himself from the Bench. The matter was ultimately reviewed by the Court on merits and the issue of redistricting was held reviewable, but the doctrine of political question was reaffirmed and established for posterity. This was the case of Baker v. Carr.
The doctrine of political question in public law, essentially limits judicial review in certain areas, since the judiciary would be the inappropriate arbiter for such disputes, lacking knowledge of issues with the polity would be best acquainted with. It acts as a check to judicial power and grants latitude to the political executive as regards a certain sense of absolutism in these specifically charted areas.
The Court, in Justice Brennan’s majority opinion identified the following as the fundamental tests to determine what issues were political questions and what were not:
- Is there a textually demonstrable constitutional commitment of the issue to a coordinate political department (i.e. foreign affairs or executive war powers)?
- Is there a lack of judicially discoverable and manageable standards for resolving the issue?
- The impossibility of deciding the issue without an initial policy determination of a kind clearly for nonjudicial discretion.
- The impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government.
- Is there an unusual need for unquestioning adherence to a political decision already made?
- Would attempting to resolve the matter create the possibility of embarrassment from multifarious pronouncements by various departments on one question?
In India, the doctrine stands on somewhat shaky ground. The question has been discussed only in a string of President’s Rule cases, in the context of limits on the power of the Governor under Article 356. First discussed in cases such as State of Rajasthan v. Union of India and State of Karnataka v. Union of India, the doctrine has since been eroded by what Baxi aptly terms ‘expansion of the frontiers of judicial power’. However, after the authoritative exposition of the law in S.R. Bommai v. Union of India, the position seems to be settled on the ‘sufficiency of materials’ test alone.
The Courts position has at all times been cognizant of the fact that in the United States of America, what is followed is a ‘strict separation of powers’, as opposed to India, where checks and balances in practice is preferred to watertight compartmentalisation (See Ram Jawaya Kapur v. State of Punjab).
However, Justices Bhagwati and Chandrachud both speak of the methaporical ‘political thicket’ as a forbidden area for judicial intervention, stating in no uncertain terms that it is one from which Judges must ‘scrupulously keep away’.
Indeed, ambivalence surrounds the position of law today, with cases like Ram Jethmalani only indicating that very often the thrill of entering the political thicket is one that the judiciary finds hard to resist. Nevertheless, the doctrine is a useful one in the context of a check on judicial power, something that is being clamoured for vehemently in the public arena even as this is written.
Also, as an aside, it is important to note that the political question doctrine is independent and different from the ‘policy decision’ jurisprudence post BALCO Employees Union v. Union of India. In fact, my previous usage of the black money case as an example of breach of the political question doctrine would be apposite to the ‘policy decision’ context rather than this one.
In either case, the doctrine is extremely relevant in the context of separation of powers and judicial activism, as well as in light of the constant passing off by the Parliament of law-making responsibility to the SC. The Court could simply recuse itself from forced determination of such questions, since evidently it is seen only as a forum of convenience for the State.
Examples of such questions abound: Vishakha, Indra Sawhney, Ashok Kumar Thakur, the Ayodhya case and even the Bhopal case in many aspects. A notable exception would be the guidelines regarding arrest procedure laid down in DK Basu v. State of West Bengal and the recent amendment to the CrPC.
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