Analyse the functioning of judicial review in India.

Introduction

Judicial review in India is a critical component of the constitutional framework, ensuring the supremacy of the Constitution and the protection of fundamental rights. The functioning of judicial review involves the power of the judiciary to review and potentially invalidate government actions that contravene constitutional principles. The Indian judiciary, particularly the Supreme Court, plays a pivotal role in exercising this power.

1. Constitutional Basis and Scope**

The constitutional basis for judicial review in India is enshrined in Articles 13, 32, and 226 of the Indian Constitution. Article 13 declares that any law inconsistent with or in derogation of fundamental rights shall be void, while Article 32 grants the right to move the Supreme Court for the enforcement of fundamental rights. Article 226 confers similar powers to the High Courts. The scope of judicial review extends to legislative and executive actions, ensuring their conformity with the Constitution.

2. Writ Jurisdiction of the Supreme Court**

The Supreme Court, through its writ jurisdiction under Article 32, is a key institution for judicial review in India. Writs such as habeas corpus, mandamus, prohibition, quo warranto, and certiorari empower the court to safeguard individual liberties, restrain unlawful exercises of power, and correct administrative errors. This jurisdiction allows the Supreme Court to act as a constitutional watchdog and protector of citizens' rights against arbitrary state action.

3. High Courts' Writ Jurisdiction**

In addition to the Supreme Court, High Courts in India possess writ jurisdiction under Article 226. While the scope is similar to that of the Supreme Court, the High Courts primarily focus on cases involving state governments and entities falling within their territorial jurisdiction. This dual system allows for a more decentralized approach to judicial review, ensuring access to justice at regional levels.

4. Public Interest Litigation (PIL)**

The evolution of Public Interest Litigation (PIL) has expanded the horizons of judicial review in India. PIL allows individuals or organizations to approach the courts on behalf of those unable to seek redress themselves, leading to the adjudication of issues of public importance. The judiciary's proactive role in entertaining PIL petitions has been instrumental in addressing systemic issues and promoting social justice.

5. Judicial Activism and Restraint**

The functioning of judicial review in India is marked by a delicate balance between activism and restraint. Judicial activism involves the judiciary taking an active role in addressing societal concerns, even if not explicitly brought before the court. While this approach has led to significant advancements in human rights and environmental protection, concerns have been raised about the potential overreach of the judiciary. Striking the right balance between activism and restraint remains a continuous challenge.

6. Checks and Balances**

Judicial review in India operates within a system of checks and balances, ensuring that the judiciary does not exceed its constitutional mandate. The doctrine of separation of powers is crucial in this regard, preventing any one branch of government from dominating the others. The judiciary's power of judicial review serves as a check on legislative and executive actions, ensuring their conformity with constitutional principles.

7. Challenges and Criticisms**

Despite its vital role, the functioning of judicial review in India is not without challenges and criticisms. Backlogs in the judicial system, delays in delivering justice, and the potential for judicial overreach are persistent issues. The subjective nature of judicial interpretation can lead to varying opinions, contributing to debates on the judicialization of governance.

Conclusion

In conclusion, the functioning of judicial review in India is integral to upholding the rule of law, protecting fundamental rights, and ensuring the supremacy of the Constitution. The constitutional provisions, coupled with the writ jurisdiction of the Supreme Court and High Courts, create a robust framework for scrutinizing legislative and executive actions. Striking a balance between judicial activism and restraint, addressing challenges, and maintaining checks and balances are essential for a vibrant and effective system of judicial review in India.