Assignment submitted

In partial fulfillment of odd semester internal evaluation

Submitted to
Ekta Gahlawat ma’am
ICFAI Law School
ICFAI University, Dehradun
TOPIC – “CASE STUDY AND DISCUSSION, JUDICIAL REVIEW IN
REFERENCE TO MARBURY v. MADISON”

Academic session 2021-22

Submitted by: Shreya Agrawal Submitted to: Ekta Gahlawat

Ma’am
Name: Shreya Agrawal Faculty-In-charge
Course: BBA-LLB (Hons.) 4th year
Enrollment No-18FLICDDN01133
Section-C
Subject- Comparative Constitution

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ABSTRACT

The Indian constitution was amended in the year 1951 for the first time and this amendment led
to several modifications in the fundamental rights and started the era of land reform through
constitutional mechanism, and the Supreme Court of India which has the prime responsibility of
interpreting and protecting it. It also acts as the guardian of the Fundamental Rights of the
people. For this, the Supreme Court exercises the power to determine the constitutional validity
of all laws. It has the power to reject law or any of its part which is found to be unconstitutional.
This power of the Supreme Court is also called the judicial review power. State High Courts also
exercise this power but their judgements are often rejected or modified or upheld by the Supreme
Court. The principle of the judicial review became an important feature of written Constitutions
of many countries. The power of judicial review has in itself the concept of separation of powers
an important component of the rule of law, which is the basic feature of the Indian Constitution.
The power of Judicial Review is included in the Articles 226 and 227 of the Constitution
regarding the High Courts are concerned and in the Articles 32 and 136 of the Constitution
regarding the Supreme Court. The judiciary in India has come to control by judicial review in
every aspect of governmental and public functions. Judicial review is basically a process under
which the legislative or the executive actions are subject to review by the judiciary. A court
authoritatively for judicial review may invalidate laws, acts and governmental actions that are
incompatible with a higher authority: an executive decision could also be invalidated for being
unlawful or a statute could also be invalidated for violating the terms of a constitution. The
Supreme Court’s power of judicial review extends to the Constitutional Amendments. However,
review of constitutional Amendments by judiciary in reference to Fundamental Rights and its
legal Validity has been a Contentious Political issue. This paper will be dealing with introducing
the topic judicial review along with its background, features and its legal outlook with references
to landmark case laws. Judicial review is often understood by two distinct but parallel legal
systems, firstly the civil law and secondly the common law, and also by two distinct theories of
democracy regarding the manner in which the government should be organized with reference to
the principles and doctrines of legislative supremacy and therefore the separation of powers.
Following the period of emergency, the judiciary was on the end for having delivered a series of
judgments which were recognized by many as violative of the basic human rights of Indian

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citizens and changed the way it looked at the constitution and the Supreme Court said that any
legislation is amenable to judicial review.

KEYWORDS

Amendment, constitution, India, articles, cases.

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INTRODUCTION

Judicial review is an important approach by which the court examines the actions of the
executive the legislature and the other governmental agencies and later decide whether the
actions are valid or not and are within the limits set in the constitution. This method or approach
has also been closely associated with the judicial activism, as judicial activism is nothing but the
exercise of the power of judicial review to set aside government acts. It also tends to assess the
judiciary to the rank of super legislature. Moreover, the judicial review exercised by the supreme
court and high court do play an important role in establishing constitutional government in India
by keeping the union and the state governments within their respective jurisdictional spheres.
Judicial review is nothing but a type of proceeding in the court where a judge reviews the
lawfulness of the decision or the action which is made by the public body. These are also a
challenge to the way in which the decision is made rather than the rights or wrongs of the
conclusion reached.

BACKGROUND

At first the word judicial review was used in the court of law in the case of Thomas Bonham v.
College of Physicians (1610) 8 Co Rep 114, where Dr Bonham was forbidden to practice in
London by the Royal college of physicians as he was not having a license for the same. This case
is also known for the violation of Principals of Natural Justice as in this case there is pecuniary
bias. As Dr Bonham is fined for his without a license, practicing the fine would be distributed
between the king and the college itself. Later judicial review was also summarized in Marbury v.
Madison 5 U.S. 1 (137) 1803, where the term period of President Adam belonging to the
federalist party came to an end and Jefferson the anti-federalist came to power. On his last day,
Adam appointed the members of the federal party as judges. But when Jefferson came to power,
he was against this. So, he later stopped Madison the secretary of state, from sending the
appointment letter to the judges. Marbury (one of the judges) approached the Supreme Court and
filed a writ of mandamus and here the Court refused to entertain the plea and at first opposed the
order of the legislature i.e., Congress and hence the US Supreme court developed the doctrine of
judicial review.

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FEATURES OF JUDICIAL REVIEW -

• Power of judicial review can be exercised by both the Supreme Court and High Courts, as
under Article 226 a person can approach the High Court for violation of any fundamental
right or for any legal right. Moreover, under the Article 32 a person can move to the
Supreme Court for any violation of the fundamental right or for any question of law.
However, the final power to interpret the constitution lies with the Supreme Court. The
Supreme Court is the highest court of the land and its decisions are binding all over the
country.

• Judicial Review of both state and central laws which means that laws made by centre and
state both are the subject to the judicial review, altogether the laws, order, constitutional
amendments, bye-laws, ordinance and all other notifications are subject to judicial review
which are included in Article 13(3) of the constitution of India.

• Judicial review is not applied automatically which means that the concept of judicial
review needs to be attracted and applied. The apex court doesn’t itself apply for judicial
review; it can be used only when a question of law or rule is challenged before the
Hon’ble court.

• Judicial Review is governed by the principle of procedure which is established by law as

given under the Article 21 of the Indian Constitution. However, the law has to pass the
test of constitutionality if it qualifies then it can be made a law and on the other side, the
court can declare it to be null and void.

• Judicial review of Ordinances, here, Article 123 and 213 of the Indian constitution gives
the president and the governor of the state to pass an ordinance. And an act of ordinance
by the president or the governor is within the same restrictions which are placed on
parliament which makes any law. This power is used by the president or governor in
exceptional conditions only and this power should not be used mala fide.

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 • Judicial review of Money Bill, here, Article 110(3) of the constitution of India states that
whenever a question arises for whether a bill is a money bill or not the decision of the
speaker of Lok Sabha shall be final. In the present situation, a money bill is beyond the
power of Judicial Review.

• Grounds for Judicial Review, where the Constitutional Amendment Judicial Review in
this phase is done for all the constitutional amendments done by the authority. All the
amendments which are in violation of the fundamental rights are declared to be void and
it is held to be unconstitutional. Altogether, the judicial review for the constitutional
amendments can be traced in history.

The extent of this judicial review in the Indian courts emerged in three dimensions; first, to
establish the fairness in administrative action, second, to protect the guaranteed constitutional
fundamental rights and finally, to rule on questions of legislative competence between the Centre
and the states.

THE JUDICIAL REVIEW (AS A PART OF THE BASIC STRUCTURE) -

• In the landmark case of Kesavananda Bharati v. the State of Kerala AIR

1973 SC 1461, which was decided by a nine judge bench the doctrine of the basic structure
was laid down, which stated that any law that is made should not be in violation of the
fundamental rights and if the amendments are made then it should be made as such that they do
not eradicate the basic structure.
• Basically, the legislature has power to amend the Constitution, but such amendments
shall not change the basic structure of the Constitution. However, it was further noted that the
basic structure was built on the foundation of dignity and freedom of the individual which
undoubtedly couldn’t be amended.
• It was also noted that in this case the above are only illustrative and not comprehensive of
all the limitations on the power of amendment of the Constitution. It was also observed that
fundamental rights are of utmost importance and they should be preserved with all due respect
by the state and provisions should be made to protect them and abrogate them. Along with this
notion, this case raised questions on the constitutionality of the 25th amendment and hence,

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declared that the basic structure of the fundamental rights should not be violated by the
legislature or the state under the provisions of the Article 368 and the second part of the Article
gave the jurisdiction of the court, a boot.
• In another important case of Minerva Mills Ltd. v. Union of India AIR 1980

SC 1789, the extended portion of Article 31C was eradicated completely with the rationale that
it attacked the fundamental rights under Article 368. In this the judgment also stood up for the
concept of the judicial review which is not made available to the people in case of infringement
of the fundamental rights.

In the case of S.P. Sampath Kumar v. Union of India (1987) 1 SCC 124 at 128
relying on Minerva Mills Ltd. Case it was stated that it was well settled and established that
judicial review was a basic and essential feature of the Constitution. Moreover, if the power of
judicial review was absolutely eliminated, the Constitution would lose its basic structure.

JUDICIAL REVIEW WITH REFRENCE TO ARTICLES 31-A, 31-B, 31-C

• Article 31-A was added to the Constitution of India by the First Amendment, 1951. The
fourth amendment substituted various clauses in it. This Article of Indian Constitution gave the
people of India the right to hold and dispose of their property as they see fit. According to which,
the government can acquire the property of the people and by doing so, the fundamental rights
mentioned in Article 14 and 19 of Indian Constitution should not be violated.
• Moreover, in other words, Article 31 A of Indian Constitution was immune to Article 14
and 19 of Indian Constitution that provide for right to equality and the right to freedom
respectively, and this amendment helped in the abolition of the Zamindari system as the
government took the land from the Zamindars and used it for public welfare by either
redistribution or agriculture. The government also took control of different private companies in
order to use them for enhanced growth.
• However, this could be done for a fixed amount of time after which, the control had to be
returned and the government redistributed the mining rights from mine lords and took control of
the production and the distribution of various other resources.

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• In Waman Rao & ors v. Union of India & ors (1981) 2 SCC 362 and I R

Coelho v. State of Tamil Nadu 2007 (1) SC 137 case, the first amendment in which the
Article 31A was introduced and the fourth amendment was held to be constitutional, which
substituted the new clauses to this Article. Hence, relying on the judgments of Minerva Mills
case and Waman Rao case and I R Coelho case Article 31A can be stated as constitutionally
valid.

• Article 31-B is also the result of the 1st Amendment Act of 1951, it was added as a
constitutional device to protect the specified statutes from any attack on the basis that they
infringe Part III of the Constitution. Moreover, it has retrospective effect which is clear from the
words ever to have become void. It is in reference with the acts and laws mentioned in the IX
Schedule of the Indian Constitution, moreover, the IX Schedule of Indian Constitution is a list of
acts and laws which in the court of law cannot be challenged. In other words, basically any such
acts mentioned in this schedule are out of the reach of the Indian judiciary. Article 31b of the
Indian Constitution states that the provisions mentioned in Article 31a are immune from Indian
judiciary and therefore cannot be invalid on the basis that they might violate the fundamental
rights under the Articles 14, 19 and 31 of Indian Constitution.

• Article 31-C of Indian Constitution was included through the 25th amendment act of
1971 through which the government tried to give primacy to some Directive Principles of State
Policy over the fundamental rights. It also provides immunity from any challenge on the basis of
violation of the Articles 14, 19 and 31, and any law enacted for implementing the directives in
clause (b) and (c) of Article 39. The Supreme Court in the case of Sanjeev Coke Manufacturing
Company v. M/s. Bharat Coking Coal Ltd. AIR 1983 SC 239, struck down article 31C as
unconstitutional (Amended portion in 42nd Amendment Act) on the ground that it destroys the
basic features of the Constitution. The objectives were set out in the Part IV has to be achieved
without abrogating the means provided for by Part III. Thus, there’s no conflict between the
directive principles and the fundamental rights as these are meant to supplement one another and
the Court held that article 31C as originally introduced by the 25th Amendment is
constitutionally valid.

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There are two conditions which must be fulfilled for the execution of the Article 31 C; firstly, a
law for giving affect to the policy of the state to implement a Directive Principle in Article 39(b)
or (c).Secondly, the Legislature made a declaration to that effect.
However, the question that whether or not the act is meant to secure the aim contained in Article
39(b), (c) doesn’t depend on the declaration made by the legislature but on the contents of the act
as found by the court.

A LEGAL OUTLOOK IN REGARD TO CONSTITUTIONAL

AMENDMENTS -

• Judicial Review in this period is done for all the constitutional amendments done by the
authority and all those amendments which are in violation of fundamental rights are declared to
be void and it is held to be unconstitutional. All the judicial review for the constitutional
amendments can be traced in history. We have already seen in the above-mentioned case laws
that the constitutional amendments were challenged and all those against the constitution are
declared unconstitutional and held void. We can trace the marks of judicial review of the
constitutional amendment in the above-mentioned cases. The role of Judicial Review in Indian
Constitution is to protect and provide liberty and freedom to the people.
• Some thinkers of India have observed that the scope of judicial review in India is very
limited and the courts in India do not enjoy as wide jurisdiction as the courts in America. The
right to constitutional remedies is itself a fundamental right and can be enforced in the form of
writs evolved in common law such as first, habeas corpus which is to direct to release a person
who is detained unlawfully, second, mandamus which is to direct a public authority to do its
duty, third, quo warranto which is to direct a person to leave an office assumed wrongfully,
fourth, prohibition which is to prohibit a lower court from proceeding on a case and lastly,
certiorari where the power being given to the higher court to remove a proceeding from a lower
court and bring it before itself.
• The review of constitutional Amendments by judiciary in relation to Fundamental Rights
and its legal Validity has been a debatable Political issue. The doctrine of basic Structure has
allowed the application of judicial review to Constitutional amendments involving Fundamental
Rights also. This doctrine evolved in Kesavananda Bharati case, 1973, moreover, the parliament

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can amend the constitution under the Article 368 but such amendments should not take away or
violate the fundamental rights and any law made in contravention with this rule shall be made
void (Article 13).
• As we have seen in the Kesavananda Bharati case the constitutional validity of 24 th
amendment (Enables Parliament to dilute Fundamental Rights through Amendments of the
Constitution, and empowers it to amend any provision of the Constitution), 25 th amendment (The
amendment also exempted any law giving effect to the article 39(b) and (c) of Directive
Principles of State Policy from judicial review, even if it violated the Fundamental Rights) and
29th amendment was challenged. The Court upheld the 24th Amendment Act and held that even
though the Parliament is entitled to amend any provision of the Constitution it is void since it
takes away invaluable fundamental rights.

Even in the case of Golak Nath vs. State of Punjab AIR 1967 SC 1643,
the Validity of three constitutional amendments (1st, 4th and 17th) was challenged and it
was upheld that Amending power and legislative Power of the Parliament were
essentially the same. Which means that the Amendment Acts under Article 368 Cannot
amend Fundamental Rights, as it Would Violate Article 13. In this case it for the first
time the doctrine of prospective overruling was applied and it was held that the 17 th
amendment will be valid.

The court regarding the judicial review process has evolved few guidelines which are to be used
as guide in the process, which are;

• Doctrine of Severability- While interpreting the impugned law, the court needs to see
whether or not the law as a whole or some parts of it is unconstitutional. The Court can
declare the impugned law, as an entire or a part of it, unconstitutional as the case may be.

• When the Constitutional validity of any law is challenged, the court will not hold it to be
ultra vires unless the invalidity is obvious from all doubts, for there is always a
presumption in favour of its validity. The court always begins with this presumption that
the legislature doesn’t exceed its powers, nor does it make any law that’s inconsistent
with the spirit of the Constitution.

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 Judicial review in the United States of America

• One of the fundamental processes in the America to determine the validity of law is
Judicial Review. In the United States, the judiciary can check the actions of Congress and the
action of the President, if it is contrary to the Constitution then the judiciary will declare null and
void.

• The Constitution of the United States doesn’t provide express provisions for Judicial
Review. But, the power of judicial review to declare the laws unconstitutional and to scrutinize
the validity of law implicitly incorporated in the Art.III and IV.

Marbury v. Madison - 5 U.S. 137, 2 L. Ed. 60, 1803

FACTS:

At the end of the term of his presidency, President John Adams nominated plaintiff
William Marbury and three other men to serve as justices of the peace in the District of
Columba. The U.S. Senate consented to the appointments, and President Adams signed
the commissions, affixing the seal of the United States. Shortly thereafter, Thomas
Jefferson was sworn in as President. Plaintiff and the three men did not receive their
commissions. They moved the United States Supreme Court for a rule requiring
defendant (then acting in his capacity as Secretary of State of the United States) to show
cause why a mandamus should not issue commanding to deliver the commissions. The
Court granted the rule. Defendant did not deliver the commissions, and plaintiff filed a
motion for mandamus, seeking an order compelling the delivery of his commission.

ISSUES:

1. Does the U.S. Supreme Court have the authority to review acts of Congress to
determine constitutionality?

2. Did plaintiff have a right to delivery of his commission?

3. If plaintiff had a right to the commission, would he have an available remedy
(mandamus) under the laws of the United States of America?

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 4. If plaintiff had a remedy, does the U.S. Supreme Court have original jurisdiction to
issue a writ of mandamus?

ANSWER:

1. Yes 2. Yes 3. Yes 4. No

CONCLUSION:

1. The courts are bound to take notice of the Constitution, and it is emphatically the
province and duty of the judicial department to say what the law is. Those who apply
the rule to particular cases, must of necessity expound and interpret that rule. If two
laws conflict with each other, the courts must decide on the operation of each. So if a
law be in opposition to the Constitution; if both the law and the Constitution apply to
a particular case, so that the court must either decide that case conformably to the
law, disregarding the Constitution; or conformably to the Constitution, disregarding
the law; the court must determine which of these conflicting rules governs the case.
This is of the very essence of judicial duty.

2. The Court ruled that the appointment was not revocable and vested in the applicant
legal rights that were protected by the laws of the United States of America. The
Court held that to withhold the applicant’s commission was an act not warranted by
law and violated the applicant’s vested legal right.

3. The Court noted that whenever there is a right to execute an office, perform a service,
or exercise a franchise (more specifically if it be in a matter of public concern, or
attended with profit) and a person is kept out of the possession, or dispossessed of
such right, and has no other specific legal remedy, the court ought to assist by
mandamus, upon reasons of justice, as the writ expresses, and upon reasons of public
policy, to preserve peace, order and good government. This writ ought to be used
upon all occasions where the law has established no specific remedy, and where in
justice and good government there ought to be one.

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 4. A writ of mandamus to a public officer belonged to original jurisdiction. The
Supreme Court’s jurisdiction is limited to the powers set out for it in the U.S.
Constitution. The Constitution vests the whole judicial power of the United States in
the Supreme Court, and such inferior courts as Congress shall, from time to time,
ordain and establish. This power is expressly extended to all cases arising under the
laws of the United States; and consequently, in some form, may be exercised over the
present case; because the right claimed is given by a law of the United States. In the
distribution of this power it is declared that the Supreme Court shall have original
jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and
those in which a state shall be a party. In all other cases, the Supreme Court shall
have appellate jurisdiction. Accordingly, the statute relied upon by plaintiff for relief,
§ 13 of the Act of 1789, giving the Court authority to issue writs of mandamus to an
officer, was contrary to the Constitution as an act of original jurisdiction, and
therefore void. The rule was discharged and plaintiff did not receive his commission.

RULE:

The Supreme Court of the United States does not have original jurisdiction to hear
disputes not enumerated in the U.S. Constitution; however, it has appellate jurisdiction
over all judicial proceedings and is emphatically the province and duty of the judicial
department to say what the law is.

LIMITATIONS OF JUDICIAL REVIEW

When we talk about come judicial review of administrative action though the presumption of
validity is not as strong in the case of administrative action as in the case of statutes. However,
when the legislature expressly leaves a matter to the discretion of an administrative authority the
courts have adopted an attitude of restraint. It is also said that the question the legality of the
exercise of discretionary power cannot be questioned unless and until it is an abuse of
discretionary power, which includes mala fide exercise of power or, exercising the power for an
improper motive or, decision based on irrelevant considerations or in disregard of relevant
consideration, and in some cases the unreasonable exercise of power and the non-exercise of
discretion which comes when the power is exercised without proper delegation and when it is
acted under dictation.
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Current Position of Judicial Review in U.K.

• In U.K., present scenario is much deviated to the judicial review. The Courts in U.K.
strictly followed the principles of judicial review with regard to administrative actions
and secondary legislations. So far as primary legislations are concerned, they are outside
the purview of judicial review but with some exceptional cases.

• Judicial review of administrative actions which are executive in nature are mostly subject
matter in the present scenario in U.K.

• In, R. v. Secretary of State for the Home Department, an immigration detainee who had
failed to take his medication for schizo-affective disorder and had gone on hunger strike,
but who did not lack mental capacity, failed to establish that his detention was unlawful
by virtue of his pre-existing serious mental illness where the facts indicated that his
actions were calculated to avoid deportation.

SUGGESTIONS AND CRITICISM POINTS -

• The observer describes the judicial review as an undemocratic system; it empowers the
court to make a decision on the fate of the laws passed by the legislature, which represent
the sovereign, will of the people.

• The Constitution of India doesn’t clearly describe the system of judicial review; it rests
upon the idea of several articles of the constitution.

• When a law is struck down by the Supreme court as to be unconstitutional, the decision
becomes effective from the date on which the judgement is been delivered. Moreover, a
law can face judicial review only when an issue of its constitutionality arises in any case
being heard by the Supreme Court. As such when the court rejects it to be as
unconstitutional, it creates the administrative problems and the judicial review decision
can create more problems than it solves.

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 • Moreover, many critics of the judicial review system as a reactionary system, as they say
that while determining the constitutional validity of any law, the Supreme Court often see
a legalistic and conservative approach, thus it can also reject progressive laws enacted by
the legislature.

• Judicial review may cause of delay and inefficiency. The people in general and the law-
enforcing agencies in especially sometimes plan to go slow or keep their fingers crossed
in respect of the implementation of a law. However, they too prefer to attend and let the
Supreme Court first decide its constitutional validity during a case which will precede it
at any time.

• It has been noted that on several instances the Supreme Court reversed its earlier
decisions. The judgment in the Golaknath case reversed the earlier judgments and the
judgment in the Kesavananda Bharati case reversed the judgment in the Golaknath case.
Same way the enactment was held justifiable, and then invalid and then again justifiable
and such reversals also reflect the element of subjectivity within the judgments.

A large number of the supporters of judicial review don’t accept the arguments of the critics;
they argue that judicial review is an essential and very useful system for Indian liberal
democratic and federal system. It has been playing an important role and desired in the
protection and development of the constitution. It is observed that Judicial Review is essential
for maintaining the supremacy of the Constitution and for checking the possible misuse of power
by the legislature and executive. It is also a device for protecting the rights of the people. The
grant of judicial review power to the judiciary is also important for strengthening the position of
judiciary. It is also important for securing the independence of the judiciary. It was noted that the
power of Judicial Review has helped the Supreme Court of India in exercising its constitutional
duties.

CONCLUSION

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As we know the judicial review is very important but at the same time absolute power to review
cannot be granted and by observing the judicial review as a part of basic aspect of the Indian
Constitution and the courts in India have given altogether a different meaning to the theory of
checks and balances. Judicial review also plays a vital role as protector of the values of the
constitutional and over the legislative action is vested in the high court’s and Supreme Court
under Articles 226 and 32 of the Indian constitution respectively. It is observed that the
Constitution of India, the supreme law of the land believes that amend your procedures and
doings to improve in the future. The Constitution 44th Amendment Act, 1978, signifies the
demise of the fundamental Right to Property, where the property right turned out to be the most
controversial right with lots of reforms and criticism along with it. With the Article 31, Article
19(1) (g) and Article 31C being stated as unconstitutional and its second part being shifted to
Article 300A for making the fundamental right a constitutional right, the property law kept
diminishing. Ultimately, we have developed the concept of judicial review and it has become the
part of basic structure in case of Minerva Mills v. Union of India, and the basic structure doctrine
also helps in preserving and protecting the spirit of the constitution and to preserve the nature of
democracy of India and protect the right of the people. Moreover, we also see that any
amendment or law which is violative of the rights of the people are struck down by the court on
the basis of the basic structure doctrine and thus any law that tries to change the basic structure
of the constitution is therefore invalid. So, it is correct to say that judicial review has grown to
safeguard the individual right, to stop the use of arbitrary power and to prevent the miscarriage
of justice.

REFRENCES

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