The Nature of Judicial Power: Constitutional Ethos

Judicial Review, as is well known, lies against the decision-making process and not the merits of the decision itself. If the decision-making process is flawed inter alia by violation of the basic principles of natural justice, is ultra-vires the powers of the decision maker, takes into consideration irrelevant materials or excludes relevant materials, admits materials behind the back of the person to be affected or is such that no reasonable person would have taken such a decision in the circumstances, the Court may step in to correct the error by setting aside such decision and requiring the decision maker to take a fresh decision in accordance with the law. The Court, in the garb of Judicial Review, cannot usurp the jurisdiction of the decision maker and make the decision itself.

It needs no emphasis that complex Executive Decisions in economic matters are necessarily empiric and based on experimentation. Its validity cannot be tested on any rigid principles or the application of any straitjacket formula. The Court while adjudging the validity of an Executive Decision in economic matters must grant a certain measure of freedom or play in the joints to the Executive. Not mere errors, but only palpably arbitrary decisions alone can be interfered with in Judicial Review.

The Court should therefore be loath to interfere with such recommendation of an Expert Body, and accepted by the Government, unless it suffers from the vice of arbitrariness, irrationality, perversity or violates any provisions of the law under which it is constituted. Any action falling foul of the constitutional guarantees will call for corrective action in Judicial Review to ensure adherence to the constitutional ethos. But so long as the fabric of the constitutional ethos is not set asunder, the Court will have to exercise restraint, more particularly in matters concerning Domain Experts, else the risk of justice being based on individual perceptions which may render myths as realities inconsistent with the constitutional ethos.

The need for Judicial Restraint with regard to recommendations of Expert Committees, more particularly in matters relating to finance and economics, was considered in BALCO Employees’ Union (Regd.), (2002) 2 SCC 333. Similar view was taken in Government of Andhra Pradesh, (2008) 4 SCC 720 The need for Judicial Restraint in economic and financial matters based on reports of Domain Experts was again considered in Tamil Nadu Generation and Distribution Corporation Ltd., (2017) 4 SCC 318.”

Hon’ble Justice Navin Sinha, Vasavi Engineering College Parents Association v. State of Telengana, [Civil Appeal No. 5133 of 2019].