Question

Critically examine judicial review with reference to India.

Answer 1

Judicial review is the power of the Supreme Court and High Courts to examine the constitutionality of legislative enactments and executive actions of both the central and state governments. Though not explicitly mentioned in the Constitution, it is derived from Articles 13, 32, 226, and 227 and has been affirmed by landmark judgments.

• Article 13 → Declares laws inconsistent with Fundamental Rights as void.
• Article 32 → Empowers the Supreme Court to enforce Fundamental Rights.
• Articles 226 & 227 → Grant High Courts the power to issue writs and supervise subordinate courts.

The 42nd Amendment (1976) attempted to restrict High Courts from reviewing central laws, but the 43rd Amendment (1977) repealed this, restoring their authority.

• The Protects Fundamental Rights Act acts as a shield against unconstitutional actions.
• Upholds Constitutional Supremacy and ensures all laws align with constitutional principles.
• Checks Abuse of Power Controls arbitrary actions by the legislature and executive.
• Strengthens Democracy, preserves the rule of law, and promotes democratic governance.

Criticisms:

• The lack of a clear codification of judicial review leads to a broad interpretation.
• Judicial overreach is when the courts intrude on policy matters beyond their mandate.
• Nature is that the Unelected judges can nullify decisions made by elected representatives.
• Delayed Justice refers to lengthy legal processes that hinder the swift enforcement of constitutional rights.