^ the Constitution of the United States separation of powers is

more rigid than it is under the Indian Constitution. In the United

States, therefore, the courts have developed a doctrine of “ political
questions” which are regarded as beyond the reach of judicial review.
In the very first decision in which the Supreme Court o f the U nited
States asserted the power o f judicial review of legislation, namely,
Marbury v, Madisori^^ Chief Justice M arshall recognised this in the
following words :
By the Constitution of the United States, the President is
invested with certain im portant political powers, in the exercise
of which he is to use his own discretion, and is accountable
only to his country in his political character and to his own
conscience...The subjects are political. They respect the
nation, not individual rights, and being entrusted to the Exe
cutive, the decision of the Executive is conclusive.
The immunity of certain subject-m atters from judicial review is
alternatively referable to other causes, namely, lack of standing and
lack o f justiciability. The concepts of standing and justiciability are
basic to administrative law and deserve notice in any discussion of
administrative law.
S. Standing or locus standi
Courts decide a question only in a litigation brought before them
by parties and petitioners. The legal entitlem ent of a party to seek the
decision of the court against administrative action is called the standing
or locus standi of the petitioner. As was observed by me elsewhere.^®
It is to be distinguished from the substantive right or interest
possessed by the petitioner which is alleged to be infringed or
endangered. Standing is a right to review. It is the personal
qualification of the petitioner to challenge an illegal adm inis
trative or legislative action.
13. See N. Masthan Sahib v. Chief Commissioner o f Pondicherry, (1962) Supplement
1 S.C.R. 981 and 997 at 1017 referring to the observations o f Lawrence, L.J.,
in TIte Fagernes 1927 Probate 311 at 329.
X 4. (J 803) 2 Lawyers Edition 60.
15. “ Standing and Justiciability” 13 Journal o f the Indian Law Institute 153 at 134-
155 (1971).Standing may arise either because a private right of the petitioner has
been infringed by adm inistrative action or because some public interest
is harm ed thereby. The standing of a person complaining o f harm
done to his private interest such as his property or reputation is clear
enough. But when a person complains of an injury to public interest,
the question arises whether any member o f the public has standing to
challenge adm inistrative action alleged to be prejudicial to the public
interest in a court o f law. The general answer to such a question is that,
a member of the public m ust be affected by the com plained injury to
public interest in some special way or more than an ordinary member of
the public is affected thereby. T hat is to say, in addition to the general
interest of the public, the petitioner m ust have some special interest of
his own if he is to be held to have standing to challenge adm inistrative
action alleged to be contrary to public interest though not directed
against any private individual.^®
The m odern trend is to broaden the basis of standing. At times
the injury to public interest is so undesirable that courts are inclined to
grant standing to sue in favour o f any mem ber of the public even
though he may not have been specially aggrieved by the injury to the
public interest. F or instance, the proposed construction of a highway
in a scenic river area was objected to by a group of citizens residing in
that area on the ground th a t the statutory requirem ents had not been
followed. A Federal C ourt o f Appeals in the United States ruled that
such a group of citizens had the standing to sue on the following
ground ;
The public interest in environmental resources is a legally
protected interest affording these plaintiffs, as responsible repre
sentatives o f the public, standing to obtain judicial review of
agency action alleged to be in contravention of th at public
interest.^’
In Radhey Shyam 's case referred to above, it was held th a t the peti
tioner had more interest in the construction o f a childrens’ park by the
m unicipal corporation than the other members of the public had
because he was residing very close to the plot of land on which the
childrens’ park had to be constructed while other members o f the public
were not residing that close to the plot. It is to be noted th at the
Federal Court o f Appeals did not rest its finding as to the standing o f
the plaintiffs on such a distinction. It merely stated th at the plaintiffs
represented the public interest. I f this argum ent is carried to its logical
16. -RaMey S/iyam
Lt. Governor, X.L.R. (1970) II VeJhi 260.
17.
Citizen’s Committee v. Volpe, 425 F. 2nd 97 at 105 (2nd Circuit 1970).
administrativelaw
345346 THE INDIAN LEGAL SYSTEM
conclusion, any member of the public would be able to sue on the
ground of injury to the public interest. For, he would in some measure
represent the public.
It would appear that there is a clear distinction between a person
specially aggrieved and a person generally aggrieved along with the
other members of the public. The more accepted view is that it is the
form er who has the standing to sue. The latter does not have a
standing to sue unless he can prove that over and above the other
members of the pubhc he is specially aggrieved by the injury to the
public interest. The question whether standing should be restricted to
the specially aggrieved person or should be extended to the generally
aggrieved persons is of great importance. Generally speaking, courts
are reluctant to decide academic questions. Unless the controversy is
sharpened in the light of the particular facts of a case and is argued in
the light of the prejudice to the particular interest of the petitioner, the
decision o f the controversy would not be restricted to the individual
case but would have wider general repercussions. The essential diffe
rence of a court and the expression of an opinion on a general question
is that the form er is restricted to the facts of the particular case and
would be applicable to other cases only if the facts are similar. The
dilference in the facts of a case is likely to make a difference in the
decision. It is necessary, therefore, to restrict the effect of a judicial
decision to the facts o f the particular case and one way to do this is to
restrict the standing to sue to a specially aggrieved person. Otherwise
there is a danger of judicial decisions becoming expressions of general
opinions. They would not then be distinguishable from other expres
sions of general opinions not based on the facts of a particular case such
as those expressed by academic writers or public-spirited citizens.
To day such academic writings and statements are no t binding on
any one. They are mere/y a persuasive performance. This particularisa
tion enables courts to decide questions of facts before them contrary to
such expressions of general opinions. But if the decisions of the courts
are themselves to become so general and not based on the facts of a
particular case then they are also likely to lose their special authority
and they would not be distinguishable from other expressions o f general
opinions.
6. Justiciability
The relation of standing to justiciability may be likened to the
relation o f entry into the court to exit out o f it. A petitioner cannot
enter a law court unless he has standing. It gives him entry. But the
petitioner is likely to be thrown out of court if the question raised byhim is not justiciable. Broadly speaking, adm inistrative
actions touch
iug the interests o f individuals are justiciable while those concerned with
state policy are non-justiciable. But w hat is a m atter o f state policy
and w hat is a m atter of individual rights is itself to be decided accord
ing to the existing law. F or instance, in the U nited States the
proceedings of legislatures and the delim itation o f constituencies from
which members o f the state and the federal legislatu