The conundrum of a “Political Question”

In at least two of the cases that the Supreme Court is likely to decide soon -the challenge to the enactment of a legislation repealing Articles 370 and Article 35 A, and the CAA case - the contours subject to which the Constitutional Courts would decide a “political question” is bound to loom large.

This article argues that jurisprudence in India is yet to properly identify “a political question”. It follows as a corollary that courts have not defined in adequately clear terms the constitutional courts’ limitations in dealing with such questions, even though the have held that the "political question” is a justiciable one.

What is this doctrine of political question? Justice KK Mathew, in an article titled 'The Dilemma of the President and justiciability of a verdict on impeachment', throws some light on this issue without asserting that the definition he offers is an exhaustive one. In that article, he proceeds to examine the interesting question as to whether the President of India could be impeached for failing to uphold the Constitution by giving assent to an Act which later is held to be unconstitutional. And if he were to be therefore impeached, whether the constitutional courts would have jurisdiction to hear a challenge to the impeachment proceedings or any decision taken thereon.

In attempting to answer this query he responds,

“Perhaps the only difficulty in the way of interference by the court is the doctrine of political question”.

He also then broadly hints at what this doctrine involves:

“this doctrine is an expression of the classical idea of separation of powers and it means that some determination by the legislature or the executive are not reviewable in courts even though they raise constitutional issues”.

Having stated the doctrine in simple but non-exhaustive terms, he adds,

“The status of this doctrine has always been in dispute."

As Justice YV Chandrachud pointed somewhat cryptically in the State of Rajasthan v. Union of India,

“The political question is an open sesame expression that can become a password for gaining or preventing admission into forbidden fields."

The notable aspect is that the status of the doctrine has lent anxious moments to the judiciary not only in India but in several other countries governed by a Constitution. Let us briefly appreciate a few of them.

Where certain issues are not taken up for consideration by courts because the court feels that the issue is not justiciable, it is held that the case has failed to pass the test of “primary justiciability”.

In the United States of America, the American Supreme Court in Baker v. Carr set the standards for determining primary justiciability for political questions, which the American courts have applied as a yard stick ever since. The American Supreme court in that case held that;

“Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for the non-judicial discretion; or the impossibility of courts undertaking independent resolution without expressing lack of respect due coordinate branches of the Government; or an unusual need for unquestioning adherence to a political question already made; or the potentiality of embarrassment from much furious pronouncements by various departments on one question”.

These six yardsticks have since then been applied by the American courts to decide issues of jurisdiction. For instance, by application of this doctrine, the American Supreme court has held that constitutional amendments are not justiciable as they involve a political question.

Likewise, is the application of the above yardsticks to various following issues: Guarantee of a Republic form of government is a political question to be resolved by the president and the congress (Luther v. Borden); mode of amending Federal Constitution is a political question (Coleman v. Miller); congressional authority to exclude members who have met qualifications to serve is not a political question (INS v. Chadha); senate authority to try impeachments and impeachments are political questions (Nixon v. United States).

Courts in India would never be able to lay down such rigid standards to test justiciability of political questions as the American Supreme court did in Baker v. Carr. For as Seervai in his 'Constitutional Law of India' observes, "there is no place in our Constitution for the doctrine of the political question'', since that doctrine is based on, and is a consequence of, a rigid separation of powers in the US Constitution.

In England, the position has been different. There, the standard for a court to intervene shifts from primary justiciability to the test of, “the grounds of review sought”. This has led to a situation where, as the editors of de Smith’s Judicial Review state,

“…judicial review has developed to the point where it is possible to say that no power – whether statutory or under the prerogative – is no longer inherently un reviewable”.

However, having said, that the British courts have also excluded certain issues from justiciability as involving a political question though they do not state them to be disqualified on the ground of “primary justiciability”.

Speaking for the House of Lords in the Council of Civil Service Unions v Minister for the Civil Service, Lord Roskill held,

“Prerogative powers such as those relating to making of treaties, the defense of the realm, the dissolution of parliament and the appointment of ministers as well as others are not, I think susceptible to judicial review because their nature and subject matter are such as not amenable to the judicial process. The courts are not the place wherein to determine whether a treaty should be concluded or the armed forces disposed in a particular manner or parliament dissolved on one date rather than another.

This case established that judicial review depends on the nature of the government's powers, not their source.

English courts have placed outside the general principles of judicial review issues such as the decision that there is an “ emergency threatening the life of the nation (A and others v. Secretary of State for Home Department); the substance of a medical expert’s judgment (R v. Cambridge Health Authority); the decision of a public prosecutor to initiate a prosecution (R Vs. Director of Public Prosecutions); or issues relating to the allocation of scarce resources (R v. Secretary of State for Environment).

So in the UK, unlike in the United States of America, it is safe to conclude that matters do not get excluded by the application of the principle of primary justiciability. Matters are heard on merits and boundaries for the court’s interference are determined, and those boundaries are guidelines but not unsurmountable walls.

In India, in AK Roy v. Union of India, Shah, J. observed that

"Constitutional mechanism in a democratic polity does not contemplate existence of any function which may qua the citizens be designated as political and orders made in exercise whereof are not liable to be tested for their validity before the lawfully constituted courts."

In practice, however, the doctrine of political question applies in a number of circumstances.

In State of Rajasthan v. Union of India, Justice Untwalia conceded a very limited power of judicial review where political issues were involved and opined that the Court should not enter into 'prohibited areas”. Justice Goswami further observed that the Court was concerned with legal rather than political disputes. Taking a similar judicial stance, Justice Fazal Ali postulated that:

"The Court does not possess the resources which are in the hands of the Government to find out the political needs that they seek to observe and the feelings or the aspiration of the Nation that require a particular action to be taken at a particular time.”

Justice Bhagwati held that the Court should not enter into a 'political thicket' "if it is to retain its legitimacy with the people.” He also characterized certain decisions as not being 'judicially discoverable."

A perusal of the observations in the Rajasthan case would appear to suggest that some of the judges were inclined to adopt an approach that denies judicial review where the doctrine of "the political question" was involved. However, it is essential to appreciate certain aspects of the Rajasthan case.

As pointed out by the Supreme Court in AK Roy,

“The Rajasthan case is often cited as an authority for the proposition that the courts ought not to enter the "political thicket". It has to be borne in mind that at the time when that case was decided, Article 356 contained clause (5) which was inserted by the 38th Amendment, by which the satisfaction of the President mentioned in clause (1) was made final and conclusive and that satisfaction was not open to be questioned in any court on any ground. Clause (5) has been deleted by the 44th Amendment and, therefore, any observations made in the Rajasthan case on the basis of that clause cannot any longer hold good.”

Venkatachaliah CJ had occasion to consider the scope of the doctrine in RC Poudyal v. Union of India. The contention raised in that case was that the terms and conditions of admission of a new territory into the Union of India are eminently political questions which the court should decline to decide for the reason that these questions lack adjudicative disposition.

The Court conceded that it was obvious that exercise of such powers was guided by political issues of considerable complexity, many of which may not be judicially manageable. It, however, held that for that reason, it cannot be held that the Article confers on the Parliament an unfettered power which was immune from judicial scrutiny. The Court held that the exercise of such power was restricted by the fundamental percepts of the Indian Constitution.

In landmark judgment of Minerva Mills Ltd. v. Union of India, Justice Bhagwati observed that merely because a question has a political complexion, that by itself is no ground why the court should shrink from performing its duty under the Constitution, if the issues otherwise raise an issue of Constitutional determination.

In SR Bommai v. Union of India, the Supreme Court had occasion to deal with the issue of the political question doctrine at length. The Court held that if a legal question is camouflaged by the political thicket argument, the the doors of a Constitutional court are not closed, nor can they be prohibited to enter in the political thicket in particular, when the Constitution expressly has entrusted the duty to it.

Similarly in BR Kapur v. State of Tamil Nadu, the Supreme Court has held that it is the duty of the court to interpret the Constitution and that it must perform this duty regardless of the fact that the answer to the question would have a political effect.

The provisions of the Indian Constitution explicitly exclude many legislative and executive acts from judicial review. For instance, powers of judicial review of constitutional courts are expressly precluded or curtailed by some of the Articles of the Constitution. They are Articles 31-A, 31-B, read with Ninth Schedule, 37,71 (4),74 (2) 77(2), 103 (2),189(2),122 (1), 212(1), 262,323-A, 323-B,329, 363, and the Tenth schedule.

There is good reason to believe that such protection has been afforded because many decisions taken under these Articles could be termed political decisions and determination of legal issues arising under them could be termed political questions.

However, even in respect of issues arising under these provisions, the Indian judiciary has not completely turned down jurisdiction. Astonishingly, the precise principles on the basis of which the explicit provisions of the Constitution have been side stepped are difficult to fathom.

Abstract or indeterminate power in the hands of the executive or the legislature would result in tyranny and totalitarianism. In the hands of the judiciary, it can result in arbitrariness and discrimination. A situation that we hope the judiciary would strive to avoid.

The author is a Senior Advocate practicing at the Madras High Court.