In SMT. PUTTAMMA V.

STATE OF KARNATAKA & ANR AIR 2009 Kart 93 while

deciding on an issue as to whether granting a subsidy to a particular sector of farmers while
excluding others violated the fundamental right of being treated equally and thus should be
reviewed, the Karnataka High Court held in the negative. The tests relied on by the Court were
derived from previous decisions of the High Court and Supreme Court of India which can be
summarized to say that The right to equality does not forbid classification or differentiation upon
reasonable grounds of distinction and the varying needs of different classes of persons require
different treatment. Classification is allowed if it is founded on an intelligible differentia and the
differentia must have a rational relation to the object sought to be achieved by the statute in
question. As such, the Court will not interfere in the matter of providing subsidy as it is
essentially a matter of policy and the Courts would refrain from a policy decision unless such is
arbitrary, illegal or ex facie bad in law.
The position is far from being as straightforward as the judgment makes it look. The
justiciability of policy decisions has been attracting arguments and counter-arguments both from
an academic and judicial standpoint. Lord Bingham of Cornhill observed in R. (Gentle)  v  Prime
Minister [2008] A.C. 1356, para.8, “there are issues which judicial tribunals have traditionally
been very reluctant to entertain because they recognise their limitations as suitable bodies to
resolve them. This is not to say that if the claimants have a legal right the courts cannot decide
it’.” The decisions of the English Courts suggests that the Government needs to consider
relevant factors before making a policy decision an example of this can be found in R. (on the
application of KE) v Bristol City Council [2018] EWHC 2103 (Admin); R. (on the application of
KS) v Haringey LBC [2018] EWHC 587 (Admin); [2018] A.C.D. 51, where it was held that
housing authority was under an obligation to consider whether its housing allocations policy
contained a discretion to award additional priority to those who would not normally fall within the
categories of most urgent housing need. It has been held in R. (on the application of Medway
Council) v Secretary of State for Transport, Local Government and the Regions [2002] EWHC
2516; [2003] J.P.L. 583 that the courts will no longer avoid adjudicating on the legality of a
decision merely because it relates to nationally important policy pursued by a Minister
accountable to Parliament.
Judicial review goes some way to answering the age old question of “who guards the
guards?” by ensuring that public authorities responsible for ensuring accountability of
government do so within the boundaries of their own lawful powers. Just because the granting
of the stimulus package is a policy decision made by the Government in itself will not take it out
of the circle of Judicial Scrutiny.