POLITICAL QUESTION DOCTRINE : CONSTITUTIONAL LAW

Political Question Doctrine The political question doctrine holds that some questions, in their nature, are fundamentally political, and not legal, and if a question is fundamentally political ... then the court will refuse to hear that case. It will claim that it doesn't have jurisdiction. And it will leave that question to some other aspect of the political process to settle out. — John E. Finn The political question doctrine is closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. This is because the court system only has authority to hear and decide a legal question, not a political question. Legal questions are deemed to be justiciable, while political questions are nonjusticiable. A ruling of non justiciability will ultimately prohibit the issue that is bringing the case before the court from being able to be heard in a court of law. A court can only decide issues based on law. The Constitution dictates the different legal responsibilities of each respective branch of government. If there is an issue where the court does not have the Constitution as a guide, there are no legal criteria to use. When there are no specific constitutional duties involved, the issue is to be decided through the democratic process. The court will not engage in political disputes. DEFINITIONS A doctrine which prevents a court of law from determining issues which are essentially political; within the purview of the executive branch of government.- Duhaime's Law Dictionary In 1803, Chief Justice John Marshall of the United States Supreme Court wrote, in Marbury v Madison "The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court." In El-Shifa Pharmaceutical Industries Co. v. US, Justice Thomas Griffiths of the United States Court of Appeals has before him this set of facts: "In 1998, the President of the United States ordered a missile strike against a pharmaceutical plant in Sudan that he believed was connected to the terrorist activities of Osama bin Laden. The owners of the plant sued the United States, challenging several allegedly defamatory statements made by senior executive branch officials justifying the strike as well as the government's failure to compensate them for the destruction of the plant." The Court confirmed the dismissal of the complaint on the ground that it presents a nonjusticiable political question: "(The political question) doctrine prohibits the judiciary from reviewing policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch." A further example of the doctrine was exhibited in Omar v Harvey. In that case, Justice Tatel of wrote: "The political question doctrine puts beyond judicial cognizance political decisions that are by their nature committed to the political branches. For example ... the doctrine bars courts from considering claims whose adjudication would require judicial wading into foreign policy or military waters. Thus, we invoked the political question doctrine to dismiss a claim that would have required us to second-guess U.S. policy towards Chile. Similarly, we dismissed a complaint that would have required us to review the manner in which the United States established a military base in the Indian Ocean." In 2008, the opinion of Justice Pogue of the United States Court of International Trade in Totes-Isotoner Corp. v. US included this: "The political question doctrine, recognizing our constitutional separation of powers principle, does exclude some disputes from judicial determination. Under this doctrine, a subject matter is not appropriate for judicial resolution where it is exclusively assigned to the political branches or where such branches are better-suited than the judicial branch to determine the matter. The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch. The Judiciary is particularly ill suited to to make such decisions, as courts are fundamentally under equipped to formulate national policies or develop standards for matters not legal in nature." ORIGIN: The doctrine has its roots in the historic Supreme Court case of Marbury v. Madison (1803). In that case, Chief Justice John Marshall drew a distinction between two different functions of the U.S. Secretary of State. Marshall stated that when the Secretary of State was performing a purely discretionary matter, such as advising the President on matters of policy, he was not held to any legally identifiable standards. Therefore, some of the Secretary's actions are unable to be reviewed by a court of law. The doctrine is grounded in the federal judiciary's desire to avoid inserting itself into conflicts between branches of the federal government. It is justified by the notion that there exist some questions best resolved through the political process, voters approving or correcting the challenged action by voting for or against those involved in the decision. The leading Supreme Court case in the area of political question doctrine is Baker v. Carr (1962). In the opinion written for Baker, the Court outlined six characteristics of a political question. These include: 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 for a court's independent resolution without expressing a lack of respect for a coordinate branch of the government; or" The "impossibility of deciding the issue without an initial policy decision, which is beyond the discretion of the court; 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." OTHER APPLICATIONS: Impeachment: The president, judges including chief justice of supreme court and high courts can be impeached by the parliament before the expiry of the term for violation of the Constitution. Other than impeachment, no other penalty can be given to a president in position for the violation of the Constitution under Article 361 of the constitution. Since the Constitution placed the sole power of impeachment in two political bodies, it is qualified as a political question. As a result, the decision of the Houses to impeach or a vote to remove a President or any other official can be appealed to any court. Foreign policy and war A court will not usually decide if a treaty has been terminated, because on that issue, "governmental action ... must be regarded as of controlling importance". Given the sensitive problems of holding a war to be illegal, most issues relating to the constitutionality of a war may well be nonjusticiable. Gerrymandering Gerrymandering is a practice intended to establish a political advantage for a particular party or group by manipulating district boundaries. It is also a political question, hence nonjusticiable. Challenges to partisan gerrymandering may also pose a nonjusticiable political question. In Vieth v. Jubelirer, the plaintiffs brought a challenge to the electoral map drawn by a state assembly, alleging that the map “constitutes a political gerrymander.” A plurality of the Court ruled that claims alleging political gerrymandering were nonjusticiable political questions because there were no “judicially discernable and manageable standards” to adjudicate them. In doing so, the Court overruled its decision 18 years earlier in Davis v. Bandemer, in which the Court had ruled that such claims were justiciable. Some lower courts have determined that discretionary military decisions are textually committed to the political branches and the judiciary lacks manageable standards to review them. The court explained that, at least in cases concerning national security and foreign relations, “the presence of a political question ... turns not on the nature of the government conduct under review but more precisely on the question the plaintiff raises about the challenged action.”Lower courts have also dismissed claims as nonjusticiable political questions because adjudication would show a lack of respect for a coordinate branch of government—Baker’s fourth factor IMPLICATION ON THE SEPERATION OF POWERS: Where courts may decline to adjudicate a case on political question grounds may have important implications for the separation of powers, at least as between Congress and the executive branch. Finding a political question in a case where no disagreement exists between the political branches can be understood as an exercise of judicial minimalism without important consequences for the relationship between Congress and the executive branch. In contrast, finding a political question in a case where a core issue presented is whether the executive branch is bound by a statute obviously can impact the separation of powers. Such judicial reluctance to enforce a statute, one might argue, leaves resolution of such questions to the political branches, and allows some constitutional questions to be resolved via a struggle between the political branches, rather than by the courts. Others have argued, however, that the practice actually favors the executive branch at the expense of Congress. Instead of determining a statute’s constitutionality, the argument goes, courts effectively decline to force the executive branch to comply with congressional will—essentially expanding executive branch power. WHY THE DOCTRINE IS BOTH JURISDICTIONAL AND PRUDENTIAL An analysis of the six Baker factors indicates that the best answer to the question of whether the political question doctrine is jurisdictional or prudential is that the first factor is jurisdictional and the other five factors are prudential. Such an answer is not unusual. Other justiciability doctrines also contain mixed jurisdictional and prudential elements. For example, standing has jurisdictional elements (injury-in-fact, traceability, and redressability) as well as prudential elements (zone-of-interest and third-party standing). Ripeness is “drawn both from limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Therefore, making a similar division within the political question doctrine would not be at all novel or contrary to how the Court has treated other justiciability doctrines. SITUATION IN AMERICA: A ruling of nonjusticiability will ultimately prohibit the issue that is bringing the case before the court from being able to be heard in a court of law. In the typical case where there is a finding of nonjusticiability due to the political question doctrine, the issue presented before the court is usually so specific that the Constitution gives all power to one of the coordinate political branches, or at the opposite end of the spectrum, the issue presented is so vague that the United States Constitution does not even consider it. A court can only decide issues based on law. The Constitution dictates the different legal responsibilities of each respective branch of government. If there is an issue where the court does not have the Constitution as a guide, there are no legal criteria to use. When there are no specific constitutional duties involved, the issue is to be decided through the democratic process. The court will not engage in political disputes. A constitutional dispute that requires knowledge of a non-legal character or the use of techniques not suitable for a court or explicitly assigned by the Constitution to the U.S. Congress, or the President of the United States, is a political question, which judges customarily refuse to address. Origin in America The doctrine has its roots in the historic Supreme Court case of Marbury v. Madison (1803). In that case, Chief Justice John Marshall drew a distinction between two different functions of the U.S. Secretary of State. Marshall stated that when the Secretary of State was performing a purely discretionary matter, such as advising the President on matters of policy, he was not held to any legally identifiable standards. Therefore, some of the Secretary's actions are unable to be reviewed by a court of law. Chief Justice Marshall, in addressing whether the judiciary could issue a writ of mandamus against an executive branch official, distinguished between individual rights dependent on executive branch legal duties on the one hand, and political matters left to presidential discretion on the other. While the former are justiciable, the latter might not be. The doctrine is grounded in the federal judiciary's desire to avoid inserting itself into conflicts between branches of the federal government. It is justified by the notion that there exist some questions best resolved through the political process, voters approving or correcting the challenged action by voting for or against those involved in the decision. But its modern application stems from Baker v. Carr, which provides six independent factors that can present political questions. These factors encompass both constitutional and prudential considerations, but the Court has not clearly explained how they are to be applied. Supreme Court case law after Baker fails to resolve the matter. The Court has historically applied the doctrine in a small but disparate number of cases, without applying clear rules for lower courts to follow. Possibly as a result of the murky nature of the doctrine, it has regularly been invoked in lower federal courts in cases concerning foreign policy. However, a recent Supreme Court case, Zivotofsky v. Clinton, appears to have narrowed the scope of the political question doctrine. In a suit seeking the vindication of a statutory right in the foreign affairs context, the Court reversed a lower court’s finding that the case posed a political question. The Court explained that the proper analysis in such a situation begins not by asking whether adjudicating the case would require review of the foreign policy decisions of the political branches, but instead examining whether the plaintiff correctly interpreted the statute, followed by determining whether the statute was constitutional. The Court’s opinion appears to restrict the types of claims that can pose political questions, and seems to encourage courts to decide more statutory claims on the merits. In turn, the decision could lead to increased judicial resolution of controversies concerning the separation of powers, rather than resolutions between the political branches themselves. Because the doctrine implicates the separation of powers, application of the political question doctrine has sparked controversy. For example, the doctrine has regularly been invoked in federal courts in cases concerning foreign policy As a preliminary matter, it is important to distinguish the political question doctrine from cases presenting political issues. Courts adjudicate controversies with political ramifications on a regular basis. For example, the Supreme Court has held that certain electoral processes deny citizens the right to vote based on their skin color, and has upheld a subpoena directed against the President of the United States. Both decisions necessarily had political consequences. Instead, the political question doctrine applies to issues that courts determine are best resolved within the politically accountable branches of government—Congress or the executive branch. Understanding exactly when the doctrine applies, however, can be difficult. The “precise contours of the doctrine are murky and unsettled,” without a clear consensus among the members of the Supreme Court or academia.The Supreme Court itself has noted that the political question doctrine has caused “much confusion”; and determining if it applies to a given case requires “a delicate exercise in constitutional interpretation.” Court cases Important cases discussing the political question doctrine: Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), the origin of the phrase. Luther v. Borden, 48 U.S. 1 (1849) – Guarantee of a republican form of government is a political question to be resolved by the President and the Congress; Coleman v. Miller, 307 U.S. 433 (1939) – Mode of amending federal Constitution is a political question; Colegrove v. Green, 328 U.S. 549 (1946) – Apportionment of Congressional districts is a political question [Overruled by Baker v. Carr]; Baker v. Carr, 369 U.S. 186 (1962) – Apportionment of state legislatures in which the court ruled that this was not a political question; Powell v. McCormack, 395 U.S. 486 (1969) – Congressional authority to exclude members who have met qualifications to serve is not a political question; Goldwater v. Carter, 444 U.S. 996 (1979) – Presidential authority to terminate treaties is a political question; INS v. Chadha, 462 U.S. 919 (1983) – Constitutionality of one house legislative veto is not a political question; Nixon v. United States, 506 U.S. 224 (1993) – Senate authority to try impeachments and impeachment are political questions. POSITION OF THIS DOCTRINE IN INDIA: A generation of Indian law scholars has roundly, and rightly, criticized the Supreme Court’s invocation of the political question doctrine to deprive tribes of meaningful judicial review when Congress has acted to the detriment of tribes. Similarly, many Indian law scholars view the plenary power doctrine — that Congress has expansive, virtually unlimited authority to regulate tribes — as a tool that fosters and formalizes the legal oppression of Indian people by an unchecked Federal government. The way courts have applied these doctrines in tandem has frequently left tribes without meaningful judicial recourse against breaches of the federal trust responsibility or intrusions upon tribal interests and sovereignty. Furthermore, there is a troubling inconsistency in the courts’ application of these doctrines to questions of inherent tribal sovereignty. For example, courts consider congressional abrogation of a treaty a kind of political question beyond the reach of the judiciary. At the same time, challenges to the inherent, or aboriginal, authority of tribes are deemed justiciable. The Court’s approach represents a kind of “heads I win; tails you lose” application of the political question and plenary power doctrines in Indian affairs. The position of this doctrine in India can be understand properly with the help of case laws in which the Indian court had recognised this principle: Gurudevdatta Vksss Maryadit & Ors vs State Of Maharashtra & Ors on 22 March, 2001 In this case, as both Houses of the State Legislature are not in session and the Governor of Maharashtra is satisfied that the circumstances exist which render it necessary for him to take immediate action further to amend the Maharashtra Co-operative Societies Act, 1960 (Mah. XXIV of 1961), for the purpose of aforesaid, this Ordinance is promulgated. On an analysis of the statement as noticed in the preceding paragraph Mr. Bobde contended that the whole purpose of promulgation of the Ordinance has been purposive and to scruttle a free and fair election. It has been contended that legislation cannot be a tool to satisfy a political end and the conclusion is irresistible in the contextual facts on this count only if English words are given ordinary common English parlance. The factum of having a confusion while preparing the voters list as stated in the statement of objects and reasons, negates the basis of the High Court judgment to wit: the voter list stands prepared and concluded by 30th June, 2000. Mr. Bobde contended that by reason of so-called confusion (as noticed above), the Ordinance stands promulgated as the legislature was not in session by way of a clarificatory order. The submissions apparently, apart from being attractive seems to be of some consequence rendering it an obligation for the Court to delve into the issue in slightly more greater detail. We need to recapitulate the law as regards the jurisdiction of the court to assess the question of justiciability of the legislation by one of the wings of the Constitution. Doctrine of separation of powers have been the basic tenet of our constitutional framework since in terms therewith each of the three organs of the State viz., the judiciary, executive and the legislature would be operating on its own spheres and fields. It is to be noted that there has been a catena of cases wherein this judicial reluctance have been noticed and it is now well-settled both in this country and United States of America as well as in United Kingdom that certainty and finality about the status of a statute, contribute to judicial reluctance to inquire whether it complied with all requisite formalities, but the decisions are not very uncommon which have laid down in no uncertain terms that there is no blanket rule of such a judicial reluctance neither the judiciary would stand impotent before an obvious instance of exercise of a manifestly unauthorised power: 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. This however, needs to be emphasised that the same stands subject to the facts of each case and it is almost a well-neigh impossibility to even adumbrate as to what will and what will not constitute judicial reluctance to interfere, except however, the field which can be described to be as ad hominem nor even any attempt to draw the line since each case is to be decided on the given facts. In this context the decision of the Privy Council in the case of Liyanage and others v. Reginam (1966 1 All ER 650) ought also to be noticed wherein, Their Lordships of the Privy Council introduced the concept of legislation ad hominem and struck down a legislation by reason therefor. Lord Pearce in his inimitable style observed as below: “Wherein this Court in no uncertain terms observed that since the primary law making authority under the Constitution is the Legislature and not the Executive and it is possible that circumstances may arise which render it necessary to take immediate action when the Legislature is not in session, in such a case and in order that public interest may not suffer by reason of the failure of the legislature to deal with the emergent situation, the Governor is vested with the power to promulgate the Ordinance” This Court further observed that the power to promulgate Ordinance is essentially a power to be used to meet an extra- ordinary situation though it cannot be allowed to be perverse to serve political ends. It is on this count of judicial ad-negation Mr. Bobde found fault with the judgment under appeal since the instant Ordinance, as appears from the Statement of objects and reasons, cannot but be so declared. The law thus remains clarified that judicial reluctance cannot be faulted in any way unless of course an element of constitutionality of the legislation comes up for consideration. The issue of political question as argued before this Court in the matter and noticed above, pertains however to the judicial review of legislation. The political question doctrine has however, to be treated to be a tool for maintenance of governmental order but as noticed above, there is no blanket rule of judicial reluctance since the question arises as to whether the case presents the political question and for this purpose, facts of each case shall have to be considered in its proper perspective so as to assess the situation. This however, opens up a wider debate on to the different issue of Article 123 and 213 and the action is legislative in character. It is not an administrative or executive action but being legislative in nature, it is subject only to constitutional limitations applicable to an ordinary statute. The Ordinance, if, does not infringe the constitutional safeguards, cannot be examined nor the motive for such a promulgation can be in question. Mr. Desai appearing for Respondent very strongly urged that the Court cannot examine the satisfaction of the Governor in promulgating an ordinance and the law is well settled on this count by this Court in the Nagarajs case (K. Nagaraj and others v. State of Andhra Pradesh and Another : 1985 (1) SCC 523) wherein this court held that it is impossible to accept the submission that the ordinance can be invalidated on the ground of non-application of mind. It is a power of the Executive to legislate and this power is plenary within its field like the power of the State Legislature to pass the laws. The Constitution Benchs judgment in T. Venkata Reddys case (T. Venkata Reddy and Others v. State of Andhra Pradesh : 1985 (3) SCC 198) wherein the earlier judgment of the Federal Court in Laxmi Narain Das v. Province of Bihar (1949 FLR 693) have been followed, re- affirmed the observations in Nagarajas case, the Constitution Bench observed that the motive of Legislature in passing a statute is beyond the scrutiny of the courts. It is not only the propriety to follow the Constitutional Bench judgment but we are definitely of the opinion and view that by no stretch, the courts can interfere a legislative malice in passing a statute. Interference is restrictive in nature and that too on the constitutionality aspect and not beyond the same. R.C. Poudyal And Anr. Etc vs Union Of India And Ors. Etc. on 10 February, 1993 In this case two important question arises before the court: Whether the questions raised in the petitions pertaining as they do to the terms and conditions of accession of new territory are governed by rules of public international law and are non-justiciable on the "political questions doctrine"? (b)Whether clause (f) of Article 371 F of the Constitution of India, introduced by the Constitution (36th Amendment) Act, 1975 is violative of the basic features of democracy? The learned Attorney-General for the Union of India and Sri Parasaran sought to contend 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 as these questions lack adjudicative disposition. This political thickets doctrine as a restraint on judicial power has been the subject of forensic debate, at once intense and interesting, and has evoked considerable judicial responses. Prior to the decision of the Supreme Court of the United States in Baker v. Carr, 369 US 186 the cases challenging the distribution of political power through apportionment and districting, weighed-voting, and restrictions on political action were held to present non- justiciable political questions. The basis of this doctrine was the "seeming conviction of the courts that the issues raised were well beyond the judicial responsibility". In Baker v. Carr, the Court undertook a major rationalisation and formulation of the 'political question doctrine' which led to considerable narrowing of its application. The effect Baker v. Carr., and the later decision in Poweel v. McCormack, 395 US 486 is that in the United States of America certain controversies previously immune from adjudication were held justiciable and decided on the merits. The rejection of the political thickets arguments in these cases marks a narrowing of the operation of the doctrine in other areas as well. In Japan Whaling Ass'n v. American Cetacean Society, 478 [1986] US 221 the American Supreme Court said "We address first the Japanese petitioners' contention that the present actions are unsuitable for judicial review because they involve foreign relations and that a federal court, therefore, lacks the judicial power to command the Secretary of Commerce, an Executive Branch official, to dishonor and repudiate an international agreement. Relying on the political question doctrine, and quoting Baker v. Carr.,the Japanese Petitioners argue that the danger of "embarrassment from multifarious pronouncements by various departments on one question" bars any judicial resolution of the instant controversy." "We disagree. Baker carefully pointed out that not every matter touching on politics is a political question specifically, that it is "error to suppose that every case of controversy which touches foreign relations lies beyond judicial cognizance." The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch. The Judiciary is particularly ill-suited to make such decisions, as "courts are fundamentally under equipped to formulate national policies or develop standards for matters not legal in nature." "As Bakerplainly held, however, the courts have the authority to construe treaties and executive agreements, and it goes without saying that interpreting congressional legislation is a recurring and accepted task for the federal courts. It is also evident that the challenge to the Secretary's decision not to certify Japan for harvesting whales in excess of IWC quotas presents a purely legal question of statutory interpretation. 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." Our Court has received and viewed this doctrine with a cautious reservation. In A.K Roy v. Union of India, [1982] 2 SCR 272 at 296-7, Chief Justice Chandrachud recognised that the doctrine, which was essentially a function of the separation of powers in America, was to be adopted cautiously and said "It must also be mentioned that in the United States itself, the doctrine of the political question has come under a cloud and has been the subject matter of adverse criticism. It is said that all that the doctrine really means is that in the exercise of the power of judicial review, the courts must adopt a 'prudential' attitude, which requires that they should be wary of deciding upon the merit of any issue in which claims of principle as to the issue and claims of expediency as to the power and prestige of courts are in sharp conflict. The result, more or less, is that in America the phrase "political question' has become 'a little more than a play of words". Dhronamrajti Satyanarayana vs N.T. Rama Rao And Ors. on 2 January, 1988 Locus standi doctrine is called in the United States Public Law as standing of the petitioner to maintain an action in Court. Political questions, it is true, are not adjudicated by Court. What are political questions,? The dominant consideration in determining whether a question falls within the category of political question as laid down by the United States Supreme Court in Coleman v. Miller. (1938) 307 US 433 are : "the appropriateness under our system of Government of attributing finality to the action of political department" and (2) "the lack of satisfactory criteria for a judicial determination". 'this was followed in Baker v. Carr, (1962) 369 US 186 "The non- justiciability of a political question" observed Justice Brennam delivering the majority opinion in the Baker case as "primarily a function of the separation of powers .... Deciding whether a matter has in any measure been committed by the Constitution to another branch of Government, or whether the action of that branch exceeds whatever authority has been committed, is itself a. delicate exercise in constitutional interpretation, and as a responsibility of this Court as ultimate interpreter of the Constitution". The learned Judge held : "The political question doctrine, a tool for maintenance of governmental order, will not be so applied as to only disorder." The various formulations for ascertaining the political questions as enumerated by the learned judge are :"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 co-ordinate political department; or a lack of judicially discover-able 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 to co- ordinate 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." It will, therefore, be seen that merely because a question has a political colour, the Court cannot fold its hands in despair and declare "Judicial hands off". So long as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the Court. Indeed it would be its constitutional obligation to do so. It is necessary to assert in the clearest terms, particularly in the context of recent history, that the Constitution is Supreme the paramount law of the land, and there is no department or branch of Government above or beyond it. Every organ of Government, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the links of its authority. No one howsoever highly placed and no authority howsoever lofty can claim that it be the sole judge of the extent of its power under the Constitution or whether its action is within the confines of such power laid down by the Constitution. This Court is the ultimate interpreter of the Constitution and to this court is assigned the deficatet ask of determining what is the power conferred on each branch of Government, whether it is limited, and if so, what the limits are and whether any action of that branch transgresses such limits. It is for this court to uphold the constitutional values and to enforce the constitutional limitations. The test regarding the determination of what constitutes political question as laid down in Baker v. Carr ((1962) 369 CS 186) was approvingly referred to by Bhagwati, J. (as he then was), in the aforesaid case. The American doctrine regarding the adjudication of political questions was accepted by Venkatramiah J., in. his separate judgment. In V.W. Sreerwna Rao v. Telugu Desam, A Political Party, , the technicalities of locus did not stand in the way of this Court from inquiring into the plea raised by the President of a political party called "Sarvodaya Congress' opposing the, grant of election symbol to Telugu Desam party on the ground that it "preached chauvinism, propagates cessionist tendencies." P.A. Choudary, J., very realistically observed: 'Considering the fact that the issues raised by the writ petitioner are of paramount public importance to the democratic functioning of our society and taking into account the recent trends of. law funnelled by several court decisions freely upholding the right to sue as inhering even in those whose proprietary rights or personal interests are not directly affected, I reject the preliminary objection of Sri N.T. Rama Rao to the maintainability of this writ petition. The writ petitioner claims to be the President of a political party called "Sarvoyada Congress" and it undoubtedly appears to me that he is interested in a clean public life. He is not a mere interloper.' In our constitutional setup there are no two classes of people - one privileged and the other not so privileged. The principle of non-discrimination adumbrated in Art. 14 of the Constitution should not be allowed to be breached. The political executive - either the head of the Government or any member of the cabinet does not enjoy any immunity in respect of breaches of law of the land committed : they have no claim to be treated on a separate footing higher than ordinary citizens (State of Karnataka v. Union of India Rameshwar Prasad & Ors vs Union Of India & Anr on 24 January, 2006 It is further said that the political question doctrine, in particular, remits entire areas of public life to Congress and the President, on the grounds that the Constitution assigns responsibility for these areas to the other branches, or that their resolution will involve discretionary, polycentric decisions that lack discrete criteria for adjudication and thus are better handled by the more democratic branches. In fact, the scope of judicial review as enunciated in Bommai's case is in tune with the principles sought to be relied upon. R. Bommai And Others Etc. Etc. vs Union Of India And Others Etc. Etc. on 11 March, 1994 We may in this connection, refer to the principles of federalism and democracy which are embedded in our Constitution. Article 1 of the Constitution states that India shall be a Union of States. Thus the States are constitutionally recognised units and not mere convenient administrative divisions. Both the Union and the States have sprung from the provisions of the Constitution. The learned author, H.M. Seervai, in his commentary "Constitutional Law of India" has summed up the federal nature of our Constitution by observing that the federal principle is dominant in our Constitution and the principle of federalism has not been watered down for the following reasons : "(a) It is no objection to our Constitution being federal that the States were not independent States before they became parts of a Federation. A Federal situation existed, first, when the British Parliament adopted a federal solution in the Govt. of India. Act, 1935, and secondly, when the Constituent Assembly adopted a federal solution in our Constitution; Parliament's power to alter the boundaries of States without their consent is a breach of the federal principle, but in fact it is not Parliament which has, on its own, altered the boundaries of States. By extra constitutional agitation, the States have forced Parliament to alter the boundaries of States. In practice, therefore, the federal principle has not been violated; The allocation of the residuary power of legislation to Parliament (i.e. the Federation) is irrelevant for determining the federal nature of a Constitution. The U.S. and the Australian Constitutions do not confer the residuary power on the Federation but on the States, yet those Constitutions are indisputably federal; External sovereignty is not relevant to the federal nature of a Constitution, for such sovereignty must belong to the country as a whole. But the division of internal sovereignty by a distribution of legislative powers is an essential feature of federalism, and our Constitution possesses that feature. With limited exceptions, the Australian Constitution confers overlapping legislative powers on the States and the Commonwealth, whereas List II, Schedule VII of our Constitution confers exclusive powers of legislation on the States, thus emphasising the federal nature of our Constitution; The enactment in Article 352 of the emergency power arising from war or external aggression which threatens the security of India merely recognises de jure what happens de facto in great federal countries like the U.S., Canada and Australia in times of war, or imminent threat of war, because in war, these federal countries act as though they were unitary. The presence in our Constitution of exclusive legislative powers conferred on the States makes it reasonable to provide that during the emergency created by war or external aggression, the Union should have power to legislate on topics exclusively assigned to the States and to take corresponding executive action. The Emergency Provisions, therefore, do not dilute the principle of Federalism, although the abuse of those provisions by continuing the emergency when the occasion which caused it had ceased to exist, does detract from the principle of federal government. The amendments introduced in Article 352 by the 44th Amendment have, to a considerable extent, reduced the chances of such abuse. And by deleting clauses which made the declaration and the continuance of emergency by the President conclusive, the 44th Amendment has provided opportunity for judicial review which, it is submitted, the Courts should not lightly decline when as a matter of common knowledge, the emergency has ceased to exist. This deletion of the conclusive satisfaction of the President has been prompted not only by the abuse of the Proclamation of emergency arising out of war or external aggression, but, even more, by the wholly unjustified Proclamation of emergency issued in 1975 to protect the personal position of the Prime Minister; The power to proclaim an emergency originally on the ground of internal disturbance, but now only on the ground of armed rebellion, does not detract from the principle of federalism because such a power exists in indisputably federal constitutions. Deb Sadhan Roy v. The State of West Bengal has established that internal violence would ordinarily interfere with the powers of the Federal Government to enforce its own laws and to take necessary executive action. Consequently, such interference can be put down with the total force of the United States. And the same position obtains in Australia; The provisions of Article 355 imposing a duty on the Union to protect a State against external aggression and internal disorder are not inconsistent with the federal principle. The War Power belongs to the Union in all federal governments and therefore the defence of a State against external aggression is essential in any federal government. As to internal disturbance, the position reached in Deb's case shows that the absence of an application by the State does not materially affect the federal principle. Such application has lost its importance in the United States and in Australia; Since it is of the essence of the Federal principle that both Federal and State laws operate on the same individual, it must follow that in case of conflict of a valid Federal law and a valid State law, the Federal law must prevail and our Constitution so provides in Article 254, with an exception noted earlier which does not affect the present discussion; It follows from what is stated in (g) above, that Federal laws must be implemented in the States and that the Federal executive must have power to take appropriate executive action under Federal laws in the State, including the enforcement of those laws. Whether this is done by setting up in each State a parallel Federal machinery of law enforcement, or by using the existing State machinery, is a matter governed by practical expediency which does not affect the Federal principle. In the United States, a defiance of Federal law can be, and has been put down by the use of Armed Forces of the U.S. and the National Militia of the States. This is not inconsistent with the Federal principle in the United States. Our Constitution has adopted the method of empowering the Union Government to give directions to the States to give effect to the Union law and to prevent obstruction in the working of the Union law. Such a power, though different in form, is in substance the same as the power of the Federal government in the U.S. to enforce its laws, if necessary by force. Therefore, the power to give directions to the State governments does not violate the Federal principle; Article 356 read with Article 355 which provides for the failure of constitutional machinery was based of Article 4, Section 4 of the U.S. Constitution and Article 356, like Article 4, Section 4, is not inconsistent with the Federal principle. As stated earlier, these provisions were meant to be the last resort, but have been gravely abused and can therefore be said to affect the working of the Constitution as a Federal Government. But the recent amendment of Article 356 by the 44th Amendment, and the submission to be made hereafter that the doctrine of the Political Question does not apply in India, show that the Courts can now take a more active part in preventing a malafide or improper exercise of the power to impose a President's Rule, unfettered by the American doctrine of the political question; (k) The view that unimportant matters were assigned to the Stales cannot be sustained in face of the very important subjects assigned to the States in List II, and the same applies to taxing powers of the States, which are made mutually exclusive of the taxing powers of the Union so that ordinarily the States have independent source of revenue of their own. The legislative entries relating to taxes in List II show that the sources of revenue available to the States are substantial and would increasingly become more substantial. In addition to the exclusive taxing powers of the Stales, the States become entitled either to appropriate taxes collected by the Union or to a share in the taxes collected by the Union." Rajasthan Cricket Association ... vs State Of Rajasthan on 20 December, 2004 "Judicial Review of the President's satisfaction regarding the necessity to issue an Ordinance is not totally excluded. As to whether the precondition to the exercise of power under Article 123 have been satisfied or not cannot be regarded as a purely political question and kept beyond the judicial review. The doctrine of the political question was evolved in the United States based on rigid. Separation of powers and does not strictly apply in India. The position and power of the Indian President are different. C. Chandy vs R. Balakrishna Pillai on 19 August, 1985 The Division Bench placed reliance on the doctrine of political question enunciated in Baker v. Carr. We notice that even in the country of its birth, this doctrine has only little application, as observed in Powell v. Mccormack, (1969) 395 U.S. 486. In the view we have taken, it is not, however, necessary to go into the details of this aspect of the matter. To compel the Court to decide a political question may be 'to charge the judiciary with duties beyond its equipment's," as stated by Frankfurter J., in (1950) 341 US 494 at 551. Indira Nehru Gandhi vs Shri Raj Narain & Anr on 7 November, 1975 The Judiciary cannot exercise powers which are to be found in the other two departments of Government which are normally legislative or powers which are generally executive in their nature. All matters relating to or affecting elections are political question and, as such, are not questions for the Judiciary. All matters relating to or affecting elections are, in the absence of controlling constitutional or statutory provisions to the contrary, political questions and, as such, are not questions for the Judiciary. So, subject to express constitutional restrictions, all matters relating to the holding of elections and determining their results, including contests are political question A contested election case is a proceeding in which the public is interested, since it is for the public good. An election contest is not me In America disputed elections are decided by the Legislature. In Taylor v. Beckham the American Supreme Court held that a determination of an election contest for the office of the Governor is a political question and is not justifiable. In Truman H. Newberry v. United States of America, the American Supreme Court held that the manner of elections can be controlled. In David S. Barry v. United States of America Ex. Rel. Thomas W. Cunninggham the decision of the American Supreme Court in Charles W. Baker v. Joe C. Carr was referred to in order to find out as to what aspects of elections would be justiciable and not a political question. In Baker v. Carr the delimitation of constituencies was held to be a justiciable issue. In Julian Bond v. James 'Sloppy' Floyd the exclusion of an elected representative because of his statement attacking the Vietnam policy was held to be justiciable on the ground that it was not within the jurisdiction of the Legislature to find out whether a member was sincere in. The rigid separation of powers as under the American Constitution or under the Australian Constitution does not apply to our country. Many powers which are strictly judicial have been excluded from the purview of the courts. The whole subject of election has been left to courts traditionally under the Common Law and election disputes and matters are governed by the Legislature. The question of the determination of election disputes has particularly been regarded as a special privilege of Parliament in England. It is political question in the United States. Under our Constitution Parliament has inherited all the privileges, powers and immunities of the British House of Commons. In the case of election disputes Parliament has defined the procedure by law. It can at any time change that procedure and take over itself the whole question. There is, therefore, no question of any separation of powers being involved in matters concerning elections and election petitions. CONCLUSION The political question doctrine seeks to preserve an important foundational principle of our system of government: the separation of powers. To more clearly define the scope of the doctrine, the Supreme Court laid out six factors for consideration when deciding any political question issue. However, the Court failed to specify whether this doctrine is jurisdictional or prudential. Although cases have been decided without explicitly answering that question, the consequences of an answer are significant and both courts and litigators deserve clarity on the issue. An analysis of the six Baker factors shows that only the first factor poses a jurisdictional question, and the remaining five consist of only prudential considerations. Courts should conduct their analyses in accordance with these distinctions, and any prior decisions finding political questions should be evaluated in light of which factors motivated the courts’ conclusions in those cases. In this way, the political question doctrine will be better applied when it is invoked by litigants and courts, and the six Baker factors will be applied with proper consideration of how each one relates to the goal of preserving the separation of powers in our federal government. In India, the doctrine has been recognized by many case law and we have adopted a similar position as that in America. The doctrine is still used by our judiciary and in a recent judgement it refuses to interfere in the matter related to qualification of MP’s and MLA’s. The petition behind the S.C is to prohibit the MP’s or MLA’s those who have been convicted or charged of any serious crime such as murder but the S.C out-rightly rejected the petition on the ground that it is a political issue and it has no jurisdiction to entertain the same and requested the appropriate authority I.e, parliament or state legislature to make law for the same. This is how courts even today use the doctrine to determine political questions and then not to entertain the same, if it proves to be not a legal questions. This doctrine has wide acceptance through out the federal democracies.