Distributive policy

Successive government can review former government’s policy decision but must avoid waste of resources: Madras High Court

The Madras High Court ruled that if a decision made by a former government is good for the public and the society as a whole, the succeeding government may very well continue with the project, if it is not yet completed or halfway. -course, for which additional financial support is necessary.

The observation was made in a petition challenging the communication issued by the Registrar of Cooperative Societies halting the construction of the state-level Cooperative Training Institute of Yercaud, sanctioned by the previous AIADMK government. The second challenge was issued against a GO issued by the current DMK government by which the administrative and financial sanction already authorized for the institute was canceled.

The petitioner argued that the decision to abruptly halt construction was not taken by the government and was only taken at departmental level. He also stated that the earlier decision to build the Institute was taken by the government and therefore could not be stopped by the Registrar.

The court’s primary concern was whether the above decision to halt construction was a political decision or a decision made at the Departmental level. For this, the court asked for details of the decision. Respondents informed the court that the decision to stop construction work at Yercaud Institute was taken at a review meeting of the relevant department conducted by the Chief Minister on 03.07.2021. It is on the basis of the above decision that the Registrar made the communication dated 28.07.2021.

Political decision and judicial control

The court held that it was clear that the decision to stop construction had been taken by the government and the subsequent communication from the Registrar following the government’s decision. Thus, this decision could not be challenged on judicial review.

The Court relied on the Supreme Court’s decision in Union of India & Others v Kannadapara Sanghatanegala Okkuta & Kannadigara (2002) and the decision of the Madras High Court in Dr. G. Krishnamurthy v. Chief Secretary to the Government of Tamil Nadu and others (2015) and R.Veeramani c. The State of Tamil Nadu and Others (2013) in which it was clearly established that the political decision regarding the construction of certain buildings, etc. cannot be challenged through judicial review.

“….The scope of judicial control over political matters is very limited. Moreover, whether or not a particular type of training institute is required for the state is necessarily a political decision to be made, of course on the basis expert advice given in this regard, by the state government.So this type of training institute should be at state level or at national level also again be the political decision to be made by the state government.

He added,

If a political decision has already been made by the state government to establish a state-level training institute in Yercaud, of course, the successive government has taken another political decision for specific reasons that this type of state level institute is not required in the state because already two such state level institutes are located and functioning well, moreover spending a sum of Rs 61.80 crore, to establish another training institute at the state level is a wasteful expense, these reasons cannot be pierced by this Court by way of judicial review to give the answer that the subsequent policy decision is not correct and that the above is correct.

The Court stated that if an elected government has made a political decision under which a project is designed and implemented, when a succeeding government is elected through a democratic exercise, it is for the succeeding government to review that political decision, based on the policy under which they gave the election manifesto to the people who elected them to power and therefore the previous decision taken by the former government may very well be reviewed by the next government of course in the parameters or the four corners of the Constitution.

However, he added that when such a review is undertaken by the successive government, he must bear in mind that, if the previous decision taken by the previous government, for which, if the money from the Treasury had been spent , whether to allow it to be wasted or used for better alternative utility of the public.

During the hearing, the court also made certain suggestions to the Government:

  • Whenever a decision made by the previous government is good for the public and society at large, successive governments can continue the project if it is completed or halfway through and for which financial support is needed.
  • If, for a project of the previous government, a large sum of the public treasury has already been spent, the succeeding government will not allow this fund to be wasted.
  • Simply because the previous government was from a different political dispensation, all political decisions of the previous government may not be reviewed. Only such decisions, which are not good for the welfare of the population as a whole, can be reconsidered and a better alternative administrative solution can be offered.

In the present case, the Court said that the state administration took the decision to establish a national level institute in Kodaikanal, for which certain reasons were given, of course the said decision is not contested by the petitioner in these written petitions. Even the said decision cannot be declared invalid by the Court, unless and until the explicit arbitrariness affecting the constitutional parameters in this regard, as set out in various decisions of the Supreme Court, is available to judicial review.

The Court also pointed out that, in some areas, all successive governments for several decades in this state have consistently made a political decision that supports the decision of the previous government, regardless of the political dispensation.

Referring to the ban policy of the Tamil Nadu government under which the distribution of alcohol is done through TASMAC, said:

Such political decision of banning is certainly harmful and harmful to the people at large in this state and also against the growth of the state…Even such kind of political decisions, although harmful to the interest of the people, cannot be challenged by a review judge. The courts have dropped their hands when these policy decisions have been questioned.

Finally, the Court concluded that judicial review would not run counter to a political decision, unless there was a disguised exercise with endemic arbitrariness. The aforementioned decision taken to cancel the creation of the State Institute in Yercaud cannot be placed in the said category referred to above. Accordingly, such a policy decision cannot be challenged before this Court on judicial review.

Case title: G. Sendrayan c. The Registrar of Cooperative Societies and Others

Case no: WP n° 23369 and 25287 of 2021

Claimant’s advice: Mr. PH Aravind Pandian, Senior Advisor to Mr. LP Shanmugasundaram

Counsel for Respondents: Mr. R. Shanmugasundaram, Advocate General assisted by Mr. A. Selvendran, Government Special Advocate