The Political Question Doctrine and justiciability of seemingly political matters

In a recent post, the doctrine of political question was expounded upon and the jurisprudential position in India, USA and UK was examined. In so examining, the post elaborated on how the doctrine was not sufficiently explored in India and stated that the Courts were yet to sufficiently identify a political question, though they held that such questions were judicially reviewable.

This article offers a differing interpretation to the said doctrine and attempts to clarify certain issues that arose in the previous article’s discussion.

Scholars have divided justiciability under this doctrine into: primary and secondary justiciability. Primary justiciability decided whether a particular class of executive decision-making had any potential amenability to judicial review at all. If the threshold was met, justiciability would then also be considered in a secondary way, in determining whether particular decision-making could be reviewed upon particular grounds.

In brief, primary justiciability referred to certain categories of political questions that were beyond the remit of the courts, whereas secondary justiciability referred to the grounds of review sought and whether a court had the necessary tools at its disposal to resolve the case, and to the standard of review applied by the reviewing court. Primary justiciability revolved around subject matter, whereas secondary justiciability revolved around grounds of review.

The distinction may best be explained through Haughey v Moriarty, wherein it was held:

“Whether the Taoiseach or the government ought to invite a judge to be a sole member or other member of a tribunal is a policy matter on which the plaintiffs, like other citizens, are entitled to have their opinions. But it is a policy matter on which it would not be appropriate for this Court to express an opinion. This Court realises, however, the importance of the work which such tribunals may have to carry out in our system of government and sees no constitutional or legal objection to a judge being a member, or the sole member, of such a tribunal provided he or she is willing to serve and provided his or her absence from his or her normal duties does not impose an undue strain on the work of his or her court and has the approval of its President.”

While the first highlighted portion might give the impression of the courts refraining from interfering on principles of primary justiciability, the second highlighted portion indicates that the court has in fact reviewed the constitutional appropriateness of appointment of judges to chair public inquiries. Therein lies the difference between primary and secondary justiciability.

Baker v. Carr and primary justiciability

In the previous post, the author stated that the judgment in Baker v. Carr laid down standards for determining primary justiciability for political questions. Reliance was placed on the following paragraph:

“It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. 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 non judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”

The author argued that the aforesaid six yardsticks laid down by Justice Brennan set the standard for determining issues of primary justiciability. However, the next paragraph is also pertinent, which reads as follows:

“Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question's presence. The doctrine of which we treat is one of "political questions," not one of "political cases." The courts cannot reject as "no law suit" a bona fide controversy as to whether some action denominated "political" exceeds constitutional authority. The cases we have reviewed show the necessity for discriminating inquiry into the precise facts and posture of the particular case, and the impossibility of resolution by any semantic cataloguing.”

As noted, “impossibility of resolution by any semantic cataloguing” and the “necessity for a discriminating inquiry into the precise facts and posture of the particular case” undercut any arguments in favour of primary justiciability or a determination that a particular class of decisions were not amenable to judicial review at all.

Justice Brennan thus effectively noted that despite there being multiple considerations which prevented application of general principles of judicial review, there were no category of decisions which were beyond judicial review.

Thus, in the United States, matters do not strictly get excluded by the application of the principles of primary justiciability as contended in the previous article, even more so since the doctrine has come under a cloud and has been the subject matter of adverse criticism.

The observation in the previous post that Baker set the standard for determining issues of primary justiciability does not hold good, thereby also negating the argument of there being “rigid standards” for testing justiciability of political questions in the United States.

Moreover, in Japan Whaling Association v. American Cetacean Society, it was held:

“The court must first determine the nature and scope of the duty imposed upon the Secretary by the Amendments, a decision which calls for applying no more than the traditional rules of statutory construction, and then applying this analysis to the particular set of facts presented below. We are cognizant of the interplay between these Amendments and the conduct of this Nation's foreign relations, and we recognize the premier role which both Congress and the executive play in this field. But under the Constitution, one of the Judiciary's characteristic roles is to interpret Statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones.”

The Political Question Doctrine in India

The previous post mentioned that the contours of the Political Question Doctrine was not adequately settled in Indian jurisprudence despite there being many judgments of the Supreme Court stating that the doctrine had no serious place in the Indian constitutional framework.

While there have indeed been stray observations to the contrary as rightfully noted in the previous article, the article assumes the stray obiter in such cases to obscure the already established Indian position, probably by reading it in conjunction with foreign precedents under which the doctrine assumes a stricter position in constitutional adjudication.

Perhaps the most important case on this doctrine is that of AK Roy v. Union of India, wherein the Supreme Court held that the doctrine had originally evolved in a system of rigid separation of powers (in the US), unlike ours. It went on to hold that the observation of the Court in the State of Rajasthan case (supra) that courts ought not to enter the “political thicket”, was no longer good law, as the observation was in light of clause (5) of Article 356, which was subsequently deleted by the 44^th amendment.

In Indra Sawhney, it was held:

“The political questions doctrine, however, does not mean, that anything that is tinged with politics or even that any matter that might properly fall within the domain of the President or the Congress shall not be reviewable, for that would end the whole constitutional function of the court” [Samuel Krislov: The Supreme Court in the Political Process, p. 96]. Under our Constitution, the yardstick is not if it is a legislative act or an executive decision on a policy matter but whether it violates any constitutional guarantee or has potential of constitutional repercussions as enforcement of an assured right, under Chapter III of the Constitution, by approaching courts is itself a fundamental right. The “constitutional fiction” of political question, therefore, should not be permitted to stand in way of the court to, “deny the Nation the guidance on basic democratic problems.” [C. Herman Pritchett: The American Constitution, p. 154 (quoted in The Judicial Review of Legislative Acts by Dr Chakradhar Jha, p. 355)] .

In Gurudevdutta, it was held:

“The concept of political question doctrine, being basically of American origin, cannot possibly be confidently reached until the matter is considered with special care, upon bestowing proper attention and in the event of a conclusion which lends credence to the question raised viz. as to whether the question is a political question or not, judicial inclination to interfere cannot be faulted though however not otherwise.”

In BR Kapur v. State of TN, it was held:

“The question before us relates to the interpretation of the Constitution. It is the duty of this Court to interpret the Constitution. It must perform that duty regardless of the fact that the answer to the question would have a political effect.”

From the aforesaid decisions, it is evident that the doctrine has a very limited role to play in India, the contours of which need no further elaboration for the purpose of determination of sub judice matters specified in the first paragraph of the post.

Furthermore, the author, in the previous post, also stated that certain provisions of the Constitution [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] excluded many legislative and executive acts from judicial review since they, in his view, might constitute political questions.

Commentators have held that even if there are clauses excluding judicial review in the Constitution, they would constitute unique constitutional clauses excluding courts, but would hardly add up to a “political question doctrine”.

Moreover, it is essential to understand that the Indian Constitution, as was envisioned and as it stood at its inception, did not provide a lot of scope for categorizing certain areas as “political questions” outside the scope of judicial review.

Contrary to what the previous author argued, exclusion of judicial review would not constitute a relevant threshold in determining political questions. While the argument does seem attractive, ascribing to such a view would amount to stating that Parliament, in its constituent power, has untrammelled powers in determining or increasing the scope of what domains constitute “political questions”, considering that at least half the provisions specified by the previous author were inserted in as amendments.

Even if the Constitution can be amended to categorise certain decisions as “political decisions” by excluding them from judicial review, the amendment still cannot abrogate the “basic structure” of the Constitution, and hence, cannot read in the “strict concept” of separation of powers which is foreign to our constitutional scheme, nor can it exclude judicial review, which also forms a part of the basic structure. Separation of powers as envisioned in India is different from the rigid doctrine which is envisioned in the USA.

Regardless of that, common law jurisprudence on finality clauses shows that even when the jurisdiction of the court is ‘ousted’, courts still judicially review the ‘decision’ or ‘action’ to see if the ‘immunized’ decision has been rendered properly or lawfully.

It is worthwhile to examine the decision in Anisminic of the House of Lords, which is a very influential precedent on finality or ‘ouster’ clauses excluding judicial review. Here, it was held that an ouster clause would not limit the jurisdiction of the court if the determination of the lower forum, which was to be immune, was not a ‘real’ or ‘valid’ determination but a nullity.

A similar line of jurisprudence may be seen in India. In Kihoto Hollohan v. Zachillhu, it was held that the finality embodied in paragraph 6 of the Tenth Schedule of the Constitution did not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution insofar as infirmities based on violations of constitutional mandates, mala fides, non-compliance with rules of natural justice, and perversity were concerned. This was again reiterated by the Supreme Court while interpreting the finality clauses in Articles 122 and 212.

Art. 370 and CAA – Political questions?

Article 370 and CAA are not disqualified by “primary justiciability” because questions regarding procedure for constitutional amendments and challenges to citizenship laws have been heard and adjudicated by the Supreme Court in the past.

The constitutional challenge involving Article 370 involves interpreting several constitutional provisions to determine whether the constitutional scheme was overridden in an attempt to nullify it. Additionally, whether the amendment was passed by following the proper procedure laid down specifically for this provision, would never be a political question. Thus, the Court could very well exercise its power of judicial review to ascertain the validity of the process.

Similarly, in CAA, the primary question is the ambit of “Secularism”, which appears in the Preamble to the Constitution, and whether religion-based exclusionary criteria are constitutionally permissible under the citizenship laws of India.

The decision to amend Article 370 and citizenship laws was a political decision. The question of validity of these amendments, however, do not fall under the category of “political questions”.

In the words of Professor Martin Redish,

“…if the constitutional limitations on majoritarian power are to mean anything, at some point the judiciary must be able to question the political branches’ assertion of factual necessity."

Even if a textually demonstrable commitment or constitutional rule could be found, courts ought to step in and interfere if there arises a cause for concern.

The excessive use of the “national security” mantra by the Central government to dissuade the Supreme Court from hearing any matters related to restrictions imposed in Jammu & Kashmir must be seen as an attempt to import political question doctrine to India. Any disproportionate measure, even for “national security”, is judicially reviewable.

Thus, the above discussion shows that there is no place for the Political Question Doctrine in India. If history has taught us anything, it is that it would indeed be suicidal to curb the powers of the judiciary and thereby give untrammelled powers to the Executive.

Rahul Unnikrishnan is an advocate at the Madras High Court. Velpula Audityaa is a law student.