Exclusion of Judicial Review

EXCLUSIONOF
JUDICIAL REVIEW
CELIA SANTHOSH
SLS, CUSAT

WHAT ?
Exclusion of judicial review means certain
circumstances in which the the courts
exercising writ powers (HC and SC) is excluded
or is reluctant i.e., will place
restrictions/limitations on its own power to
review the actions of public body (which
includes the executive and the legislature)

– Judiciary - watch dog of the constitution – guardian of the
fundamental rights.
YET !
“Exclusion of Judicial Review”
Why?
– Circumstance in which judiciary cannot substitute the
role of the executive or the legislature - must not step
into the shoes of the executive or the legislature –
Separation of power .
WHY ?

– Constitution (Art 74(2))
– Ouster clauses
– These are clauses that does not provide for appeal or revision
– It makes the order passed or action taken by an authority
final and binding
– It may also state that the order shall not be called in question
in any court.
– May exclude the jurisdiction of court altogether.
How ?

More in favour of Judicial review
Than executive finality
Can exclude court control altogether
Parliament – supreme – power to make any laws
ENGLAND

– That is, even if the statute deprives the court of jurisdiction to
intervene, the court can still
– Review the final determination of administrative tribunal - by
exercising supervisory jurisdiction on the following matters
(only)
– Whether the authority making decision was the authority
specified in the act
– Whether the authority was duly empowered to decide the
issue
– Whether it addressed all the matters committed to it
– Whether the rules of Natural Justice was in anyways
violated
– Whether the decision was a result of fraud.

Statute = decision
of A.T = FINAL
Court cannot attack
On the ground of
Error of law or fact
U.K

– However, if the error was
–On the jurisdiction or
–Error is such that it is apparent on the face of the
record or
–If the error was such that it amounts to misuse or
misconception of tribunal’s power
–Then the court can interfere
– All this is possible even if judicial review is excluded in
the statute
–As a result of which the namesake exclusion of judicial
review was gradually discontinued in England.

– The presumption was always against the exclusion of J.R,
unless the the parliament in clear and explicit language
states such exclusion.
– Thus making it clear that there were some statutes in
England which contained provisions wholly excluding
judicial review (Ouster clauses)
– Franks committee and Committee on Minister’s Power
strongly criticized such clauses. (to make recomm. on the
constitution and working of A.T in England)
– The clauses where later modified to include Judicial review.
However, there can be
If silent …

INDRIECT
EXCLUSION
OF J.R
THEY ARE SATISFIED
WHEN IT APPEARS
TOTHEM
NECESSARY
by conferring powers
(on authorities) to be
exercised when
• Highly subjective
• Mainly during war
• Difficult to prove the statement of the authorities in the absence of mala fides

LOCAL
BODIES
Courts not ready
to interpret the
power as
absolute
A.T
IMPOSE A
STRICT
SUPERVISORY
CONTROL
MINISTER
BENEVOLENT
INTERPRETATION
OF POWER
If the statutes vest absolute discretion on …

– Parliament – Supreme
– Tendency is in favor of judicial review rather that executive finality
– Even if the statute deprives the court, the court will exercise it
supervisory jurisdiction with respect to certain matter (natural
principles was followed etc.)
– If the statute say the decision of the A.T is final the court cannot
intervene unless it is an error apparent of the face of the record
etc.
– If the statute is silent the presumption is always against exclusion
of judicial review.
Summary

– In US, absolute exclusion of Judicial review is impossible
Since like India, US has a charter of Fundamental Rights
(rights against the state).
– However at times the power of judiciary is excluded by
statues
For e.g. – Art 38 USC 705 it provides that all decisions
rendered by the Administrator of Vateren’s Affair (the
department of veteran’s affairs provides vital services to American
vaterens) under the statute shall be final and conclusive on all
question
United
States

Question of fact and law and no other official or court of US shall have jurisdiction to
review by mandamus or otherwise any such decision.
However, a mere legislative silence cannot preclude Judicial Review. Thus if the
statute is silent then the courts will exercise the inherent powers delegated to them
under the constitution.

– Absolute exclusion impossible since there is
fundamental rights available against the state
– Legislative silence does not mean that the review
jurisdiction of the court is excluded, the court will
invoke its inherent powers.
Summary

– The position in India relating to exclusion of judicial
review is somewhat similar to that of the United
States.
– In both the countries, there exists a Charter of
fundamental rights guaranteed under the written
constitution, and those rights cannot be whittled down
(cut down) by the theory of administrative finality.
India

CONSTITUTION
All three organs of the state
derive power form the
written constitution
The organs must act within
the limits of such powers

– Under the Indian constitution
– judiciary has been made the interpreter of the
constitution
– it has been given the task to determine what powers are
conferred on each branch of govt.
– it is also conferred with the power of judicial review
(under Art. 32,226) which not just an integral part of our
constitution but also the basic structure of our
constitution.(SP Sampath Kumar v Union of India (1987)) J
Bhagwati relying on Minerva Mills )

– In spite of the written constitution, fundamental
rights and the constitutional remedies (Articles
32,226,227 and 136)
– The legislature still tend to exclude judicial review in
certain fields via different modes – it can be
– Express or implied
– Total or partial
– Conditional and qualified or
– Unconditional and unqualified

EXECUTIVE POWER
– Article 53 – executive power of the union is vested in
the president
– A 74(1) and (2) – Council of ministers to aid and
advise the president – “shall not be inquired into by
the court”
– A 77 – Conduct of business of the Govt. of India –
“shall not be called in question.”
– A.77 and 78 – precludes judicial review to give ample
freedom for the exercise of executive power.
– A. 72 - pardoning power of the president – cannot be
curtailed by any court.
– A 161 – power of governor to grand pardons etc. –
cannot be curtailed by any court.
PROVISIONS
EXCLUDING
JUDICIAL
REVIEW

• A. 80 – Composition of council of states – entirely left to the choice if the president.
• A. 103 – Decision of question as to disqualification of members – decision of the
president shall be final (ground A.102)
• A. 361 - Protection of President and Governors and Rajpramukhs – are exempted
from legal proceedings in the court of law with respect to their official acts.
• The exercise of the power of the president or the governor cannot be subjected to
judicial review on merits. (Swaran Singh v State of U.P 1998)
• Neither directions or guidelines can be issued by the courts (Maru Ram v UOI 1981
(indiankanoon headnote para 10 ))
• The court cannot ask the president or the governor to record reasons in support of
order passed by them (State of Punjab v. Joginder Singh 1990(Indian Kanoon)

– Where the exercise of power is
Arbitrary
Discriminatory
Mala fide or
Material facts were not brought to the notice of the
president or the governor
The action can be set aside and direction can be issued to
pass fresh order in accordance with law (Swaran Singh v
State of U.P 1998 remission of punishment allowed by UP
governor)
EXCEPTIONS

– A.105 – Power, privileges etc., of the House of Parliament
and of the members and committees thereof.
– A. 194- Power, privileges etc., of the House of legislatures
and of the members and committees thereof.
– A. 122(1) – Courts not to inquire into the proceedings of
Parliament
– A. 212 – Courts not to inquire into proceeding of the
legislature
LEGISLATIVE
POWER

– Sometimes exclusion may not be expressly stated in
the statute – which means the exclusion is implied.
– That is when a particular statute provide for a
particular remedy in a particular forum in a particular
manner, the remedy must be sought in that forum and
in that manner and all other forums and mode are
impliedly excluded
IMPLIED
EXCLUSION

– 6E. Bar of jurisdiction in certain cases.―Whenever any essential
commodity is seized in pursuance of an order made under section 3 in
relation thereto, or any package, covering or receptacle in which such
essential commodity is found, or any animal, vehicle, vessel or other
conveyance used in carrying such essential commodity is seized
pending confiscation under section 6A, the Collector, or, as the case
may be, the State Government concerned under section 6C shall
have (jurisdiction), and, notwithstanding anything to the contrary
contained in any other law for the time being in force, any court,
tribunal or other authority shall not have, jurisdiction to make
orders with regard to the possession, delivery, disposal, release or
distribution of such essential commodity, package, covering,
receptacle, animal, vehicle, vessel or other conveyance.
ESSENTIAL
COMMODITIES
ACT, 1955

– Lord Tenterden stated “Where an act created an
obligation and enforces the performance in a specified
manner, we take it to be a general rule that
performance cannot be enforced in any other manner.
Doo v Bridges
(1831)

–Dangerous drugs Act 1930
–The poisons act, 1919
–Essential commodities act 1955
…and other statues where no court review is provided
In these statues no appeal in provided when license is
refused and administrative exercise of discretion is
generally respected.
However, in case of abuse of power writ remedy is always
available
IMPLIED
EXCLUSION
FOUND IN…

– In India absolute exclusion of judicial review is
impossible – fundamental rights.
– However the legislature tend to exclude judicial review
in certain fields.
– But if the exercise of power is arbitrary,
discriminatory, mala fide or if the material fact is not
brought to the notice the action will be set aside.
Summary

UK USA INDIA
However, the
practice in in favour
o f J.R, rather than
executive finality
Written constitution
Fundamental rights
Written constitution
Fundamental rights
EXCLUSION OF JUDICIAL REVIEW

– POLITICAL QUESTIONS
– POLICY MATTERS
– LACHES
– DOCTRINE OF EXHAUSTIVE ALTERNATIVE
REMEDY
– RES JUDICATA
– QUESTION OF FACT
– ACT OF STATE
– SUBJECTIVE SATISFACTION
Circumstances

– In spite of very wide power of the Judiciary
– When a purely political question is involved in a
matter the court will not interfere.
– And will refuse to exercise its extra ordinary
jurisdiction.
POLITICAL
QUESTIONS

– “Such decisions require a balancing exercise which the
judges by their up – bringing and experience are ill-
qualified to perform.”
- Council of Civil Service Union v Minister for Civil
Service (1985)
WHYCOZ….

Who decides
whether a
question is
political or not ?
Court

– Marked the U.S. Supreme Court's entry into the
"political thicket" of apportionment and electoral
politics
– Justice Felix Frankfurter, in his opinion in Colegroe v.
Green, warned the Court that it should avoid.
Baker
v.
Carr (1962)

– The plaintiffs in Baker filed suit alleging the violation of their
voting rights pursuant to the equal protection clause of the
Fourteenth Amendment.
– The alleged violation stemmed from Tennessee's continued
use of a 1901 apportionment statute (which did not provide
for re-apportionment) that, because of population shifts in
Tennessee from 1901 to 1961, rendered state legislative
districts malapportioned.
FACTS

– The result of the malapportionment was the dilution the
plaintiffs' votes in state legislative elections.
– He went before the district court did not have subject matter
jurisdiction
– the Supreme Court held that the district court did have
jurisdiction, that the plaintiffs had standing to challenge the
Tennessee statute, and that the case was justiciable.

– The plaintiffs ,. had standing because their claim
focused directly on the dilution of their vote rather
than on a more general claim The case presented a
justiciable issue, rather than a nonjusticiable political
question, because even though the case related to the
political issue of apportionment, it stated a standard
equal protection

1. A textual constitutional commitment of the matter to
another branch of government, such as the power of the
President in foreign affairs (relates to)
2. A lack of judicially discoverable and manageable standards
for resolving the issue; (if the matter is such that is cannot be
resolved by the judiciary)
3. A need for an initial policy determination before addressing
the matter that courts would not be able to reach;
6 FACTORS –
POLITICAL
QUESTION

A situation in which independent court action would violate
the separation of powers framework;
5. An unusual need to strictly adhere to a previous political
decision; or
6. A possibility that clashing statements on an issue by
multiple branches of government would cause
embarrassment.
It widened the scope of judiciary and narrowed down
the political question doctrine

– On 29 May 1940,(war) Robert Liversidge a pilot officer in the Royal Air
ForceVolunteer Reserve, was arrested by a warrant issued by Sir John
Anderson, Secretary of State. Liversidge was detained in Brixton prison.
– He was not charged or accused of criminal conduct and he was given no
reasons for his detention.
– The warrant merely recited that the Home Secretary had 'reasonable
cause to believe' that Liversidge was 'a person of hostile associations'.
– On 14 March 1941, Liversidge filed a writ, suing the Secretary of State
for unlawful detention and claiming damages for false imprisonment.
Liversidge
v.
Anderson
[1942]AC 206

– The case concerned the meaning of the phrase 'reasonable
cause'.The central issue was whether the Secretary of State's
belief was subject to an objective or a subjective test.
– By majority, Liversidge lost his claim on 3 November 1941.
Because he failed to prove that he was wrongly detained, he
received no damages for false imprisonment.
– Reason – secretary of state by reason of his position is
entitled to act to public confidence and integrity. In other
words, since it was war time the act of the secretary of the
state was justified.
Majority
judgment

– Lord Atkin strongly dissented, he proclaimed that amid the clash of
arms, the laws are not silent. They may be changed but theys speak
the same language in war and peace, reverberated in their ears.
– Hence, where freedom is in peril and justice is threatened to citizen,
it is the power and duty of the court to protect them.
– Though the dissent faced criticism it was later, adopted around the
world, cited in South Africa, America and Australia.
– Political question – whether the executive can on the ground of
reasonable cause to believe detain a person? And the verdict of the
court was yes (executive can) but justice Atkin strongly dissented.
LordAtkin's
dissent

– The petitioner was detained under s.3 of the Maintenance of Internal
Security Act, (MISA)1971 on the ground that he broke open wagons and
looted wheat and tea.
– The order of detention was challenged inter alia (7 grounds) on the
ground that really there was no emergency and continuation of
proclamation of emergency was unconstitutional
– Refusing to enter into the question and describing the issue as political,
the supreme court ruled that in such cases, “the appeal should be to the
polls and not to the courts.”
(detention in this case was declared illegal on the ground of denial of
opportunity to make effective representation and directed that the
petitioner be set free)
Bhut Nath
v.
State of W.B
(1974)

– Is a leading decision of the supreme court on the point.
– In the general parliamentary election held in March 1977, the Janata
Party got elected with thumping majority in the Lok Sabha defeating
the ruling Congress Party.
– In April 1977, the home ministry asked several sates ruled by the the
congress party advising the governors to dissolve Legislative Assemblies
and seek fresh mandate from the people.
– The said action was challenged by six States governed by congress party
in the supreme court by instituting petitions under Article 32 of the
constitution.
– The court held that the question was political in nature and the courts
had no power of judicial review.
State of
Rajasthan
v.
Union of
India (1977)

– The court has never abandoned its constitutional function as the
final judge to decide on the validity of the acts.
– “But, it cannot assume unto itself powers the Constitution lodges
elsewhere or undertake tasks entrusted by the Constitution to
other departments of State which may be better equipped to
perform them.”
– “The scrupulously (carefully) discharged duties of all' guardians of
the Constitution include the duty not to transgress the limitations
of their Own constitutionally circumscribed powers by trespassing
into what is properly the domain of other constitutional organs.”
C.J Beg

– It was submitted that the question raised was not
purely political as held by the court. The issue raised
were legal as well as constitutional and hence they
ought to have been answered and decided by the
court.
– The court however did not enter into the merits and
dismissed the petition.

– A Commissions of Inquiry appointed by the Central Government under
the Commissions of Inquiry Act, 1952 have submitted reports which
indicate that there is reason to believe that various offences have been
committed by persons holding high political and public offices during the
period of operation of the Proclamation of Emergency dated the 25th
June, 1975, and the period immediately preceding that Proclamation;
– Investigations into such offences are being made in accordance with law
and are likely to be completed soon;
– Suggestions have been made that the persons in respect of whom the
investigations reveal that a prima facie case has been made out should
be tried speedily in Special Courts constituted for that purpose;
ReSpecial
Courts Bill
v.
Unknown,
1978

– A proposal has been made that legislation should be enacted for
the creation of an adequate number of Special Courts for the
speedy trial of such offencesThe Special Courts Bill
– In exercise of the powers conferred upon me by Clause (1)
of Article 143 of the Constitution, I, Neelam Sanjiva Reddy,
President of India, hereby refer the following question to the
Supreme Court of India for consideration and report thereon,
namely:
Whether the Bill or any of the provisions thereof, if enacted,
would be constitutionally invalid ?

One of the contentions raised on behalf of the government
was as follows:
– The reference raises a purely political question which we
should refrain from answering; and (Shri M.C. Bhandare
who appears for Shri Bansi Lal)
Contentions –
Government

– Whether special courts should be established or not,
– whether political offenders should be prosecuted or not and
– whether for their trial a speedy remedy should be provided or not,
are all matters which may be said to be of a political nature since
they concern the wisdom and policy underlying the Bill.
– But the (original) question whether the Bill or any of its provisions
are constitutionally invalid is not a question of political nature
which we should restrain ourselves from answering. The question
referred by the President for our opinion raises purely legal and
constitutional issues which is our right and function to decide.
CJ
Chandrachud

Political
Question
Excluded
from J.R
Decision
Question =
political or
not
Court
CONCLUSION

– Apart from ”pure” political question the judiciary will
not interfere or adjudicate upon the govt. policy
matters
Introduction

Question of policy is
is essentially for the
state to decide
Dependents on
various
Circumstances
WHY COZ….

– And it is neither desired nor advised for a court of law
to direct the govt. to adopt a particular policy that it
thinks is fit and proper.

Policy = Plan of action of the Govt.

– The application made by the petitioner for opening new
schools were rejected by the authorities.
– The said action was challenged by the petitioner by filing
writ petitions in the high Court on various grounds.
– The High court allowed petition and directed the
authorities to grand permission to the petitioner to start
schools.
– Reserving the judgement the Supreme Court observed
that the high court has thoroughly misunderstood the
nature of jurisdiction that has been exercised by it .
State of
Maharashtra
v.
LokShikshan
Sanstha (1971)

– So long as here is
– no violation of fundamental rights (reasonable restriction
Art 19(1)(c) r/w 19(4) in the interest of general public) and
– if the principles of natural justice are not offended,
– it was not for the high court to lay down the policy that
should be adopted by the educational authorities in the
matters of granting permission for starting schools.

– Reversing the question of policy is essential for the state
and such policy will depend upon an overall assessment
and summary of the requirements of the residents of a
particular locality and other categories of people for whom
it is essential to provide facilities to education.
– This overall assessment is arrived at after a proper
classification on reasonable basis and it is not for the courts
to interfere with the policy leading up to such assessment.

– The question raised before the supreme court was
regarding the constitutional validity and legality of the
import policy of newsprint (Import control order 1955)
adopted by the government.
– The court must refuse to adjudicate upon the policy
matters unless it is arbitrary, capricious (irregular) or
malafide.
BennettColeman
&Co
v.
Union of India
(1972)

– In his dissenting judgment he observed that:
“ the argument of the petitioner that the government
should have accorded greater priority to the import of
newsprint to supply the need of all newspaper proprietor
to the maximum extent is a matter relating to the policy
of import and this court cannot be propelled (pushed)
into the unchartered (unplanned) ocean of government
policy”
MathewJ

– Constitutional validity of Special Bearer bonds
(Immunities and Exemptions) Act, 1981 was
challenged being arbitrary and having no reasonable
nexus with the object sought to be achieved
R.KGarg
v.
Union of
India (1981)

– Holding the act intra vires and constitutional, and
describing it as policy legislation, the majority stated :
– The court must always remember that "legislation is
directed to practical problems, that the economic
mechanism is highly sensitive and complex, that many
problems are singular and contingent, that laws are not
abstract propositions and do not relate to abstract units
and are not to be measured by abstract symmetry" that
exact wisdom and nice adoption of remedy are not
always possible and that

– "judgment is largely a prophecy (prediction) based on
meagre (small) and un-interpreted experience". Every
legislation particularly in economic matters is essentially
empiric and it is based on experimentation or what one
may call trial and error method and therefore it cannot
provide for all possible situations or anticipate all possible
abuses. There, may be crudities and inequities in
complicated experimental economic legislation but on that
account alone it cannot be struck down as invalid.

– The validity of regulation 104(3) of the Maharashtra
secondary and higher secondary education board
regulations, 1977 was challenged.
– The regulation provided that, “no candidate shall claim
or be entitled to revaluation of his answers or
disclosure or inspection of answer books or other
documents as these are treated by the Divisional Board
as most confidential.”
Maharashtra State
Board of Secondary
and Higher Secondary
Education
v.
Paritosh
Bhupeshkumar Sheth
(1984)

– Treating it to be a policy decision and upholding the value
there of the supreme court held observed:
– The Court cannot sit in judgment over the wisdom of the
policy evolved by the legislature
– It may be a wise policy which will fully effectuate (put into
force) the purpose of the enactment or it may be lacking in
effectiveness and hence calling for revision and
improvement.

– But any drawbacks in the policy incorporated in a rule
or regulation will not render it ultra vires and the Court
cannot strike it down on the ground that, in its
opinion, it is not a wise or prudent policy, but is even a
foolish one, and that it will not really serve to
effectuate the purposes of the Act.

– The legislature and its delegate are the sole repositories
of the power to decide what policy should be pursued in
relation to matters covered by the Act and there is no
scope for interference by the Court
– unless the particular provision impugned before it can be
said to suffer from any legal infirmity, in the sense of its
being wholly beyond the scope of the regulation-making
power or its being inconsistent with any of the provisions
of the parent enactment or in violation of any of the
limitations imposed by the Constitution.

– Dealing with import export policy followed by government,
the supreme court observed :
–The import policy of any country, particularly a
developing country, has necessarily to be tuned to its
general economic policy founded upon its constitutional
goals, the requirements of its internal and international
trade, its agricultural and industrial development plans,
its monetary and financial strategies and last but not the
least the international political and diplomatic overtones
depending on `friendship, neutrality or hostility with
other countries' (Glass Chotans Importers and Users'
Association v. Union of India.
Liberty Oil Mills
v.
Union of India
(1984)

– There must also be a considerable number of other factors
which go into the making of an import policy.
- Expertise in
– public and political,
– national and international economy
is necessary before one may engage in the making or in the
criticism of an import policy.
– Obviously courts do not possess the expertise and are
consequently incompetent to pass judgment on the
appropriateness or the adequacy of a particular import
policy.

– The A.P govt. issued notification under the proviso to
Article 309 of the constitution reducing the age of
superannuation of all govt. servants from 58 to 55. the
action was questioned in supreme court by filing
petition under art 32 of the constitution
K.Nagaraj
v.
State of A.P
(1985)

– Holding it to be policy matter and dismissing the petition
the court observed that :
– These claims involve considerations of varying vigour
(strength) and applicability.
– Often, the Court has no satisfactory and effective means
to decide which alternative, out of the many competing
ones, is the best in the circumstances of a given case.
– We do not suggest that every question of policy is outside
the scope Of judicial review .

– If the age of retirement is fixed at an unreasonably low level
so as to make it arbitrary and irrational, the Court's
interference would be called for, though not for fixing the
age of retirement but for mandating a closer consideration
of the matter.
– "Where an act is arbitrary, it is implicit in it that it is unequal
both according to political logic and constitutional law and
is therefore violative of Article 14.”

– But, while resolving the validity of policy issues like the
age of retirement, it is not proper to put the conflicting
claims in a sensitive judicial scale and decide the issue
by finding out which way the balance tilts.That is an
exercise which the administrator and the legislature
have to undertake.

A classification of theaters for license fees, and graded according to,
prices of admission was not held to be arbitrary and unreasonable.
– The court observed that :
– We must not forgot that in complex economic matters every
decision is necessarily empiric and it is based on
experimentation or what one may call ‘trail and error method’
and therefore its validity cannot be tested on any rigid a priori
(knowledge which proceeds from theory rather than
observation and experience) considerations or on application of
any strait jacket formula.
Metropolis
Theatre Co.
v.
Chicago
(1912)

– The court must while adjudging the constitutional
validity of an executive decision relating to economic
matter grant a certain measure of freedom to the
executive.
– Mere errors of govt are not subject to judicial review
– It is only arbitrary exercises which can be declared
void

– The court cannot strike down a policy decision taken by
the government merely because it feels that another
policy decision would have been fairer or wiser or more
scientific or logical.
– The court can interfere only if the policy decision is
arbitrary, discriminatory or malafide.

– Price of sugar fixed by the government by grouping
sugar factories on the basis of geographical location.
The said action was challenged by certain sugar
companies as arbitrary, unreasonable and ultra-vires.
– Dismissing the petition and holding it to be a policy
decision of the central government the court observed
that it is a matter of
Shri Sitaram
Sugar Co. ltd
v.
Union of
India(1990)

– What is best for the sugar industry
– And in what manner the policy should be formulated and
implemented bearing in mind the fundamental object of
the statute
– Supply and equitable distribution of essential
commodities at fair prices in the best interest of the
general public.
–Is a matter for decision exclusively within the province of
the central govt.
–Such matters do not ordinarily attract the power of judicial
review.

– The validity of establishment of large dam was questioned.
– Describing it to be a policy decision the majority said:
– It is now well-settled that the courts, in the exercise of their jurisdiction,
will not transgress into the field of policy decision.
– Whether to have an infrastructural project or not and what is the type of
project to be undertaken and how it has to be executed, are part of
policy making process and the Courts are ill equipped to adjudicate on a
policy decision so undertaken.
– The Court, no doubt, has a duty to see that in the undertaking of a
decision, no law is violated and peoples fundamental rights are not
transgressed upon except to the extent permissible under the
Constitution.
Narmada
Bachao Andolan
v.
Union of India
(2000)

– Supreme court held that there can be judicial review of a policy
decision on the following grounds :
1. if it is unconstitutional
2. If it is dehors (goes outside the scope) of the act and the
regulation
3. If the delegatee has acted beyond the power of delegation;
and
4. if the executive policy is contrary to the statutory or a larger
policy.
DDA
V
Joint Action
Committee (2008)

– The govt also has the power to change the policy
– The executive power is not limited to frame a particular policy, they also
have the power to change, re-change, adjust and re-adjust the policy
taking into account the relevant considerations.
– It is entirely in the discretion of the govt. how a policy should be shaped.
– It should not however be
- Arbitrary
- capricious or
- unreasonable
Change in policy

– As per the old policy of promotion the petitioner who was serving as Air
Vice Marshal was considered eligible to be promoted as air marshal.
– However, the policy was changed by the govt. as per the changed policy,
the petitioner was not considered eligible for the promotional post.
– He challenged the said decision by filing a petition under art 226 of the
constitution and the high court allowed it holding that “ the new
promotion policy was not framed after in-depth study” and directed the
govt. to consider the case of the petitioner on the based on the old
policy.
– The govt. approached the SC
Union of India
v.
S.L Dutta (1991)

– SC observed:
– A consideration of policy followed in Indian Air Force regarding
promotional chances of officers in the navigation stream of the flying
branch in the air force and the other branches would necessarily involve
- scrutiny of desirability of such a change which would require
considerable knowledge of modern aircraft, scientific and technical
equipment available in such aircraft to guide in navigating the same,
tactics to be followed by the Indian air force and so on. These are
matters regarding which the judge or lawyers of court can hardly be
expected to have much knowledge by reasons of their training and
experience.

– Principles of natural justice do not apply to policy decisions
by the govt. or the authorities.
– Thus, it cannot be contended that the person who would
be affected while formulating policy or effecting change in
the prevailing policy must be heard.
Policy Decisions
and Natural
Justice

– Normally, the court while exercising the power of judicial
review will not interfere with the policy of the govt.
– The questions as to whether a policy is good or bad, wise or
foolish should not be the concern of the court.
– It is not for the court to advise the govt. to adopt another
policy because in the opinion of the court it is fairer, wiser
and more scientific.
– It is risky for the court to take and unknown path thus it is
better to leave such exercise to the experts.
Conclusion

– At the same time, the court can adjudge (determine)
constitutional validity of an executive action. If the policy
adopted by the government is
– Arbitrary
– Discriminatory (The Secretary, Ministry of Defence v. Babita
Puniya & Ors 2020)
– Mala fide
– Unreasonable
– Ultra vires
– Unconstitutional (Majority judgement in Bennett Coleman & Co
v.Union of India (1972))
– The court has the power and duty to interfere with the
decision.

Introduction
– Sec 11 CPC embodies the doctrine of Res Judicata or the
rule of conclusiveness of judgement.
– It states that once a matter has be decided by a
competent court no party can be permitted to re-open it
in a subsequent litigation.
– In the absence of such rule there will be no end to
litigation the parties would be put to constant trouble,
harassment and expenses.

Doctrine of Res Judicata = Bar on Re-Litigation

Satyabhama
Ghosal
v.
Derain Debi
(1960)
– J. Gupta – explained the doctrine in the simplest possible manner
– The principle of res judicata is based on the need of giving a finality to
judicial decisions.
– What it (doctrine) says is that once a res (particular thing) is judicata
(finally decided), it shall not be adjudged again.
– Primarily it applies as between past litigation and future litigation.
– When a matter - whether on a question of fact or on a question of law-
has been decided between two parties in one suit or proceeding and the
decision is final,

either because -
– no appeal was taken to a higher court or
– because the appeal was dismissed,
– or no appeal lies,
– neither party will be allowed in a future suit or
proceeding between the same parties to canvass the
same matter again.

RES JUDICATA ADJUDGED AGAIN
PATICULARTHING
FINALLY DECIDED

3 Maxims
– The doctrine is based on 3 maxims
– nemo debit bis vexer pro una et Eidem causa
Nobody Vexed Cause
No man shall be vexed (troubled) twice for the same
cause

– Interest republican Ut sit fines lithium
Interest state finish/ end litigation
It is in the interest of the state that there
should be an end to a litigation

– Res Judicata pro vitiate occipitur
A judicial decision must be accepted as correct

ResJudicata
andWrit
Petitions
– MSM Sharma v. Shree Krishan Sinha (1960)
– For the first time SC held that the general principle of res judicata
apply even to writ petition filed under Art 32 of the constitution of
India
– Thus once a petition filed under Art 32 of the constitution is
dismissed by court, subsequent petition is barred.
– Similarly, if writ petition filed by a party under Art 226 is
considered on merits as a contested matter and is dismissed, the
decision pronounced would continue to bind on parties unless

– Unless the petition is ,
– modified or reversed in appeal
– Or in other appropriate proceedings permissible
under the constitution.
– It would not be open to a party to ignore the said
judgement and move to the high court or the
supreme court on the same facts and for obtaining
the same or similar orders or writs.

Grih kalyan
KendraWorkers’
Union
v.
Union of India
(1991)
– The employees of kendra where paid only honorarium
(payment at the discretion of the payer) and not regular
pay and other benefits as paid to government servants.
– The employees therefore filed a petition under Art 32,
equal pay for equal work.
– The SC requested the former CJI (Shri Y.V Chandrachud) to
make recommendations in the matter.

– According to him, employment in kendra was unique
in character as there is no restriction regarding age,
education qualification, retirement etc.
– He was the opinion that the employees of the kendra
would not be said to be govt. or semi-govt.
employees. Thus the kendra has not violated the
doctrine of equal pay for equal work
– The accepted this report and dismissed the petition.

– The respondent implemented the recommendations
i.e stepping up of honorarium on ad hoc basis
– But once again the same question was raised by the
employees by filing a fresh petition under art 32 of
the constitution
– The court held that it is not open for the parties to
challenge and reopen the the findings by filing a
fresh petition and the petition was dismissed

Ashok Kumar
v
Union of India
(1991)
– The constitutional validity of sec 433A of CrPC was
challenged by the petitioner by filing a petition under
Art 32 of the constitution.
– The vires of sec 433A was decided by the constitution
bench in Maru Ram v. Union of India (1981), and the
said provision was upheld.
– It was however argued that the case was not examined
of a historical perspective and certain arguments
where not advanced before the court in Maru Ram.

– The supreme court held that it is not open to the
petitioner to reopen the case and challenge on
“specious plea” (false statement ) that a particular
argument was not put forward before the court.

Avinash Nagra
v.
Navodaya
Vidyalaya
Samiti
(1997)
– A petition was filed by the petitioner under Art 226 of the
constitution against an order terminating his service.
– The petition was permitted to be withdrawn by the High
Court without grant of liberty to file a second petition.
– Thereafter again a fresh petition was filed which was
dismissed by the high court as not maintainable.
– Upholding the order passed by the high court, the supreme
court observed that the second petition was barred by
constructive res judicata.

DOCTRINE OF
RES JUDICATA
HABEAS CORPUS
PETITION

Summary
dismissal of
writ petition
– Q. A petition may be dismissed by court in limine
without admitting it for final hearing. Will such
dismissal of petition operate as res judicata?
(dismissed in limine means that even in prima
facie (first impression), the appeal is devoid of any
merit (worthless) to warrant its admission)

– Answer – no hard and fast rule can be laid down depends on
– The facts and circumstance of each case and
– Upon the nature of the order
For eg -
– If order is on merit bar
– If the order shows that the dismissal (petitioner has alternate
remedies) was for a reason then no bar.
– If the petition is dismissed in limine even without passing a
speaking order (reasoned order) then no bar i.e. no res judicata
– If the petition is dismissed as withdrawn, it cannot be a bar to
subsequent petition under Art 32 – because in such case there is
no decision on merit by the court.
Amounts
to

Summary
– Res Judicata means bar on re-litigation
– Why? – to put an end to litigation
– Based on 3 maxims
– The doctrine is applicable on writ petition as laid down in
MSM Sharma v Shree Krishna Sinha (1960)
– Not applicable on Habeas Corpus Petition
– Is the doctrine applicable on petitions dismissed by court
in limine without admitting it for final hearing?
- depends on the facts and circumstances of each case

QUESTIONS
OF FACT OF LAW MIXED

Question of
fact
– If the question is purely of fact, decided in an earlier
proceeding by a competent court, then in a
subsequent proceeding between the same parties it
must be regarded as finally decided and cannot be
re-opened.

Examples
If A is accused killing B
– Question of fact
- Who fired the shot?
- At whom?
- Where was the target?
- Is the accused a continuing threat to the society?
(US – Jury to decide)

– Question of law
- Is the accused guilty of culpable homicide or
murder?
(US – Judge or judiciary to decide)

Mixed
Question of
Fact and Law
– When the existence of certain facts and the legal effects
thereof are to be found before the question is decided
one way or the other it can be said to be a mixed question
of law and fact.
– Existence of certain fact + legal effects = Mixed Question
– A mixed question of law and fact determined in the
earlier proceeding between the same parties will operate
as res judicata and cannot be questioned in a subsequent
proceeding

Example
– Whether a tenancy is or is not of a permanent nature ?
– Whether or not a decree is capable of execution ?
- is the execution effected by limitation – question of law
- is the subject matter still there (flood) – question of fact
– Whether a particular custom is or is not opposed to public
policy ?
the decisions thereof are as much res judicata as one on
a question of fact.
What is the custom-fact IPC-law

Summary
– Question of law
– Question of fact
– Mixed question
Res
Judicata
The courts will not
exercise its review
jurisdiction
No Res
Judicata Provided there is an appeal

Laches
– Unreasonable delay in ascertaining a claim, which
may result in its dismissal.

You were late Claim is dismissed
As a result of
which your

– The doctrine of laches is built on the concept
Vigilantibus non dormientius aequitas subventil
– means law protects even the indolent (slow and lazy
person), the vigilant (alert) but not the ones who sleep over
their rights.
– The court shall, in compliance with this act or doctrine,
preserve the rights of people who are aware of their rights,
not of those who have fallen asleep on their rights.
vigilant

– The doctrine is used by the court to deal with
inordinate delay, which happens when filing a
petition or a complaint.
– That is if you have a legal claim you have to
approach the court in a timely manner.
– If there is unreasonable delay in approaching the
court he court will look into the issue through the
prism of doctrine of laches.

– The court will particularly look into 3 elements
– knowledge of delay – whether you were aware of
the delay
– Whether the delay is reasonable or unreasonable?
– Have you neglected this claim before, and are you
raising it now to purposefully harm the defendant.

WHY?
– High chance of memory loss or being fade away.
– With delay there is always a chance of vital evidence
loss
– To put an end to anticipation
– Law does not support persons who sleep over their
right
– One who claims equity must do equity.

Art 32 and
laches
– Now, when it comes to writ petition the time limit
for filing the same is not mentioned any where in the
limitation act.
– Thus the same is entirely based on the discretion of
the court.

TrilokChand
Motichand
v.
H.B. Munshi
(1970)
– The main question before the Court was whether there is any
period of limitation prescribed within which the remedy under
Article 32 is to be invoked.
– The petition, in this case, was filed after a delay of 10 years;
the plea was dismissed for delay.
– The judges who comprised the bench in this case however
differed with respect to the time period after which laches
should apply.

– Sikri, J., opined that three years will be the proper
yardstick for measuring a reasonable time for
preferring a writ petition.
– Bachawat, J., put it as one year.

– On the other hand, Justice Hegde suggested that the law on
limitation has no application on the proceedings that take place
under Article 32 and as such the Court cannot refuse a petition
based on delay.
– In this regard, however, Chief Justice Hidayatullah felt that no
hard and fast rule should be adopted. He stated that the issue
should be dealt with by the Court on a case to case basis.
– The whole issue is dependent on
– what the breach of a fundamental right is,
– what the remedy is and
– why did the delay in question arise in the first place.

V. Bhasker Rao
v.
State of
Andhra
Pradesh
(1993)
– Here, the petitioners and respondents are District
and Sessions Judges in the State of Andhra Pradesh.
– The seniority list was published twelve times during
eight years showing the petitioner below the
respondents (thought he was appointed earlier to
service) but the petitioner never challenged.
– On filing a petition it was held that he was not
entitled to challenge it under Article 32 of the
Constitution of India

Ravindra
KumarJain
v.
Union of India
(2015)
– In this case the petitioner claimed compensation
under the 2013 Land Acquisition, Rehabilitation and
Re-settlement Act
– However, the land was acquired under the 1894 act.
– Thus since the claim was delayed the petition was
rejected by court citing the doctrine of laches.
– Till date no SC decision was over-ruled this decision.

Summary
– Laches = unreasonable delay
– Based on the maxim = Vigilantibus non dormientius
aequitas subventil (law protects even the indolent
and the vigilant but not the one who sleeps over
their rights)
– Why ? Memory loss, put an end to anticipation, one
who seek equity must do equity
– Art 32 and laches – yes (Ravindra kumar Jain v.
Union of India (2015))

Exhaustion of
Alternative Remedy

CGIT - ID
DRT - DRAT
LOWER COURTS +
TRIBUNAL
HIGH COURTS
SUPREME COURTS

– Thus the doctrine directs that a litigant must
approach the forum that is nearest to him/her in the
chain of the judicial structure, so that precious
judicial resources, both at the higher level, and at
the lower (which is perhaps the specialized level) is
not wasted in the wake of a forum shopping
exercise.

WHY?
– Despite, Articles 32 and 226 of the Constitution which is specifically
provided for the enforcement of fundamental rights.
– And moreover Art 32 itself being a Fundamental right.
– And in spite of cases like
– M/s Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad
(1969)
held that, once the violation of the fundamental right is
established, it is not only the right and power but the duty and
obligation of the Supreme Court to see that the petitioner's
fundamental right is protected and safe-guarded.
–

YET,THE DOCTRINE !
- The rule has been born out of convenience
- It was never a rule in strict sense
- Used by the judiciary for disallowing a case
- As per the doctrine discretion of court is paramount

Reasons
1. Widespread growth of tribunalization.
There are tribunals for several areas perceived as
within the province of specialized laws, including
income tax, elections, industrial disputes, etc. in
certain cases tribunals are more apt to decide
matters than the courts.
2. Due to severe constrain of time as Judicial time is
the most precious asset.

SUMMARY
TYPES OF MATTERS IN SUPREME COURT OF INDIA
Pending Matters –67,279 *
[As on 04.04.2021]
Admission Matters Regular Hearing Matters
(48,415) (18,864)
(Miscellaneous)
Complete
(Miscellaneous)
(35,615)
[In which all
Preliminaries are
Complete and ready
For hearing]
Incomplete
(Miscellaneous)
(12,800)
[Preliminaries not
complete like process
fee not paid/notice yet
not served/ Pleadings
not completed, etc.]
Ready
(Regular Hearing)
(18,793)
[All preliminaries
completed after
admission]
Not Ready
(Regular Hearing)
(71)
[Preliminaries not
completed like
notice of lodgement
of appeal Not
served/statement of
case not filed, etc.]
* 19.13 % matters are Incomplete / Not Ready required preliminaries to be completed.
* Number of Constitution Bench matters : 444 (48 main matters + 396 connected matters)
Total Main Connected
Five Judges Bench Matters 294 36 258
Seven Judges Bench Matters 15 7 8
Nine Judges Bench Matters 135 5 130
Total 444 48 396
* Out of 67,279 pending matters, 12,871 matters (12,800 incomplete Miscellaneous matters and
71 Not Ready Regular Hearing matters) are such matters which cannot be listed for ‘hearing’
before Hon’ble Court.
67,279 Supreme Court
46,00,000 High Courts
3.19 Crore Lower courts
PENDING CASES
As of Feb 16,2020

– The common criticism about the wave of judicial
activism is that the courts seem to have interfered in
the functions of the legislature and the executive.
Now here the judiciary is actually conceding from
exercising its jurisdiction.Thus it should be seen as a
positive attitude from the judiciary that is borne out
of necessity.
– The doctrine also ensures decentralisation of judicial
powers

Exceptions
Writ petition
filed for
enforcement
of F.R
violation of
the principles
of natural
justice
The authority
has no
jurisdiction
Vires of the
statute under
which the
authority acts
is challenged
Exceptions to the rule of Exhaustion
These exceptions to the rule of exhaustion under Article 226 have been laid
down by the Supreme Court, in a Division Bench ruling, in Whirlpool
Corporation v. Registrar ofTrade Marks, Mumbai 1998

Executive
Engineer, Bihar
State Housing
Board
v.
Ramesh
KumarSingh
(1996)
– The petitioner had approached the High Court under
Article 226 even before replying to a notice asking
him to show cause as to why he had been residing on
property belonging to the Board.
– There had been no violation of any fundamental
right, nor was it the case that the authority, which
had commenced proceedings against him, had not
the required jurisdiction.
–

– Therefore, the notice was not a nullity. Moreover,
the basic facts were disputed. The Supreme Court,
speaking through a Division Bench, declared that the
High Court had erred in taking up the case and
looking into the facts.
– The alternative remedy that had been provided for,
i.e., the proceedings before the Board and the
consequent appeal thereon, should have been
resorted to.

Radha Krishna
Industries
v.
State of
Himachal
Pradesh
(2021)
– In the present case, the High Court had dismissed
the writ petition instituted under Article 226 of the
Constitution challenging orders of provisional
attachment on the ground that an alternate remedy
is available.The appellant challenged the orders
issued on 28 October 2020 by the Joint Commissioner
of StateTaxes and Excise, Parwanoo provisionally
attaching the appellant’s receivables from its
customers.

– The provisional attachment was ordered while
invoking Section 83 of the Himachal Pradesh Goods
and ServiceTax Act, 2017 and Rule 159 of Himachal
Pradesh Goods and ServiceTax Rules, 20173 . While
dismissing the writ petition challenging orders of
provisional attachment the High Court noted that
although it can entertain a petition under Article 226
of the Constitution, it must not do so when the
aggrieved person has an effective alternate remedy
available in law.

U.K
– The doctrine of exhaustion finds wide mention in English
jurisprudence.
– However, the practice does not meet with the same
amount of enthusiasm.
– According to JusticeWade,
There ought to be no categorical rule requiring the
exhaustion of administrative remedies before judicial
review can be granted.
The no. of times this particular rule has been applied
should not transform it into a rule .

R.
v.
Birmingham
(1991)
– Review was denied because the statutory remedy
under the Consumer Protection Act, 1987, had not
been exhausted.
Additionally, the doctrine was applied because of the
"paramount need to protect the consumer “.
Nevertheless, the application of the doctrine
remains restricted in England.

Wade’s
Argument
“It does not seem right is to insist that there is
something exceptional about judicial review, that
remedies given for different purposes must be
exhausted first, and that the choice of remedies
depends upon convenience, speed, expertise and
other factors which are in principle irrelevant and
which, being imponderable, produce procedural
dilemmas and potential traps for litigant.”

USA
– The doctrine is well developed in USA.
– It is imagined as an expression of executive and
administrative autonomy – SOP.

UnitedStates
v.
SingTuck
(1904)
– In this case for the first time the doctrine was firmly
applied by the US Supreme Court
– The petitioners sought judicial review of a decision by an
immigration inspector who denied them entry into the
country, instead of appealing to the Secretary of
Commerce and Labour, as provided by statute.
– Justice Oliver Wendell Holmes famously stated that "the
preliminary sifting (to sieve) process must be gone through
before the courts may be called upon."

Reiter
v.
Cooper
(1993)
– The rule was re-instated
– "Where relief is available from an administrative
agency, the plaintiff is ordinarily required to pursue
that avenue of redress before proceeding to the
courts, and until that recourse is exhausted, suit is
premature and must be dismissed."

McKart
v.
UnitedStates
(1969)
– It was laid down
– "that no one is entitled to judicial relief for a
supposed or threatened injury until the prescribed
administrative remedy has been exhausted.”

Federal
Administrative
ProcedureAct,
1946
– The doctrine is reflected in Sec 10(c) of the federal
Administrative Procedure Act
—Every agency action made reviewable by statute and every
final agency action for which there is no other adequate
remedy in any court shall be subject to judicial review.
– Thus the courts cannot review the agency action,
unless specified otherwise by statute, till the final
decision in review of that action is taken by the highest
appellate authority,
– Because of the simple reason that the decision is not
final until that time.

Schlesinger
Secretary of
Defense
v.
Councilman
(1975)
– A fairly straightforward application of the doctrine is
found in the case
– Here a serviceman was charged with the crime of
possession of marijuana by military authorities. The
serviceman could show no harm other than that
"attendant to resolution of his case in the military court
system." Therefore, the Court held that in the absence of
any extenuating (mitigating) circumstance, the federal
district courts must refrain from intervention, by way of
injunction or otherwise. The remedy by way of the military
tribunal must be exhausted before approaching the
courts.

Summary
– The doctrine of exhaustion of alternative remedies is
thus borne out of necessity.
– The judiciary, with its mounting piles of arrears, has
really no other option but to exercise its discretion
and apply the rule.
– Although there is no real constitutional basis for
such a rejection of a writ petition, it is in fact in the
interests of justice that the courts are forced to take
such a step.

– On comparison it is evident that the doctrine has
been applied in the United States over the years. The
English system, although aware of the doctrine,
seems wary and reluctant to apply it.

– Sovereign act of state cannot be questioned in a court
of law
– An act of state is excluded under the doctrine of Judicial
Review

What is act of
state ?
– Under English law act of state is an act of executive done in the course of
its relationship with another state or with the subjects of that state.
– It is an act of sovereign against another sovereign in the contest of
foreign relations or act done by or with the authority of crown.
– Thus a declaration whether a state of war exist,
– Whether a particular country is hostile
– Whether a particular govt. should be recognized as independent
state or sovereign country are all act of state.
– Likewise, decision relating to war, treaty, dissolution of parliament,
mobilizing armed force, etc. cannot be subject matter of Judicial
review.

– Conferral of power on the administrative authority completely
on the basis of their satisfaction is another instance of
exclusion of Judicial Review
– Is found in Preventive Detention Laws such as
– Preventive Detention Act, 1950
– Maintenance of Internal Security Act, 1971
– National Security act, 1980
– Conservation of Foreign Exchange and Prevention of
Smuggling Act, 1974 and
– Prevention of Black Marketing and Maintenance of Supplies
of Essential commodities act, 1980 to name a few

Sec 3 of PDA
act
– Power to Make Orders Detaining Certain Persons. - (1) The Central
Government or the State Government may-
(a) if satisfied with respect to any person that with a view to preventing
him from acting in any manner prejudicial to-
(i) the defence of India, the relations of India with foreign persons, or
the security of India, or
(ii) the security of the State or the maintenance of public order, or
(iii) the maintenance of supplies and services essential to the
community; or
(b) if satisfied with respect to any person who is a foreigner within the
meaning of the Foreigners Act, 1946-(31 of 1946), that with a view to
regulating his continued presence in India or with a view to making
arrangements for his expulsion from India it is necessary so to do, make
an order directing that such person be detained.

– No judicial review was envisaged
– However, resort to Art 32 and 226 for a writ of
habeas corpus was permitted

Emergency
– Satisfaction of president so as to declare emergency
is not open to Judicial Review.
– The satisfaction is subjective in nature and normally
it cannot be interfered with.
– But if t is shown that there is,
–no material whatsoever for the satisfaction of the
president or
– no reasonable man could have come to such a
conclusion
–Or if the action was mala fide then the court will
interfere.

Exclusion of Judicial Review

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Exclusion of Judicial Review