WILLIAM MARBURY v.

JAMES MADISON,

SECRETARY OF STATE OF THE UNITED STATES, (1803) 1 Cranch

(U.S.) 137. 2 L. Ed. 60.

4.1 CONSTITUTIONAL LAW -I

SUBMITTED TO:
Dr. V.P. Tiwari,
Associate Professor of Law

SUBMITTED BY:
Ritika Rajawat
UG2017-84
IV SEMESTER
II YEAR
Academic year: 2018-19

MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

 TABLE OF CONTENTS

TABLE OF STATUTES........................................................................................................... II

TABLE OF CASES ................................................................................................................. III

TABLE OF ABBREVIATIONS .............................................................................................IV

INTRODUCTION ..................................................................................................................... 1

OVERVIEW .......................................................................................................................... 1

RESEARCH OBJECTIVES .................................................................................................. 2

RESEARCH METHODOLOGY........................................................................................... 2

RESEARCH SCHEME/ CHAPTERISATION ..................................................................... 2

THE BACKGROUND HISTORY ............................................................................................ 3

FACT SUMMARY OF THE CASE.......................................................................................... 3

ISSUES ...................................................................................................................................... 4

COURT ...................................................................................................................................... 4

BENCH ...................................................................................................................................... 5

DECISION ................................................................................................................................. 5

JUDGEMENT............................................................................................................................ 8

RATIO ....................................................................................................................................... 9

RELEVANCE .......................................................................................................................... 10

CONCLUSION ........................................................................................................................ 13

BIBLIOGRAPHY .................................................................................................................... 14

BOOKS ................................................................................................................................ 14

WEB BASED ARTICLES .................................................................................................. 14

I
 TABLE OF STATUTES

1. Constitution of India, 1950.

2. Constitution of United States, 1789.

II
 TABLE OF CASES

1. Dhulabhai v. State of M.P., AIR 1969 SC 78. ............................................................... 9

2. Golak Nath v. State of Punjab, AIR 1967 SC 1643. ...................................................... 8
3. Institute of Chartered Accountnts of India v. L.K. Ratna, (1986) 4 SCC 537: (1986) 1
ATC 714......................................................................................................................... 9
4. K.S. Venkataraman & Co. (P) Ltd. v. State of Madras, AIR 1966 SC 1089. ................ 9
5. Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225. .......................................... 8
6. Marbury v. Madison, (1803) 1 Cranch (U.S.) 137. 2 L. Ed. 60. .................................... 6
7. State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534. ............. 8
8. Tilokchand Motichand v. H.B. Munshi, (1969) 1 SCC 110. ......................................... 8
9. United States v. Morrison, 529 U.S. 598 (2000). .......................................................... 7

III
 TABLE OF ABBREVIATIONS

AIR All India Reporter

ATC Administrative Tribunal Cases

LJ Law Journal

L.Ed. Lawyers Edition

M.P. State of Madhya Pradesh

Ors. Others

Rev. Review

s. Section

SC Supreme Court

SCC Supreme Court Cases

UOI Union of India

U.S. United states of America

v. Versus

IV
 INTRODUCTION

OVERVIEW
The judiciary, which is one of the three branches of government, can check abuses of office by
both the executive and legislative branches. It has the authority to declare acts of the legislature
and the executive unconstitutional.1 “Judicial review” refers to the court’s inherent power to
review the action of other branches or levels of Government, and in particular, the court’s
power to invalidate legislative and executive action as being unconstitutional.2 It is based on
the fundamental principle, inherent throughout the legal system, that powers can be validly
exercised only within their true limits. Its purpose is to prevent excess or abuse of power,
whether legislative or executive.3 Judicial review is the most effective instrument of
governance of the state by administration of justice, established way back in 1803 by Chief
Justice John Marshall, who held the belief that legislative enactments must be subservient to
the Constitution and it was function of the court alone to decide whether the legislation was
valid or not (Marbury v. Madison4). In this celebrated case decided in 1803, Chief Justice
Marshall applied for the first time in the name of the Supreme Court the principle that the
federal judiciary enjoyed the power of passing upon the constitutionality of the acts of
Congress.5 This case is rightly regarded as having laid the foundation of judicial review, and
indeed, the ratio in this case has been adopted, not only in numerous subsequent cases, but has
been incorporated into a number of constitutions worldwide. This decision6 was noteworthy in
that it was the first occasion on which the Supreme Court asserted such a right, and it has since
come to be looked upon as the cornerstone of judicial supremacy.7 Before we proceed to a
detailed study of this case, it needs to be remembered that the American constitution did not
expressly confer any power of judicial review on the courts. Also, in America, the judges of

1
Hariharan G., Understanding Constitutional Law, (2001-02) 1 Law Rev. GLC 83, 83-94, (Oct. 31, 2018, 06:27
PM).
2
Black’s Law Dictionary, 7th Edn.
3
Madhavi Goradia Divan, Judicial Review: Supremacy of the Courts or of the Constitution, SCC Journal J-25,
23-48, (2009) 10 SCC (J), (oct. 31 2018, 09:07 PM).
4
Marbury v. Madison, (1803) 1 Cranch (U.S.) 137. 2 L. Ed. 60.
5
See generally, CHARLES A. BEARD, SUPREME COURT AND THE CONSTITUTION, New York: The
Macmillan Company, (1962).
6
Marbury v. Madison, (1803) 1 Cranch (U.S.) 137. 2 L. Ed. 60.
7
Grant, J. (1929), Marbury v. Madison Today, American Political Science Review, 23(3), 673-681.
doi:10.2307/1945317, (Oct. 31, 2018, 08:10 PM), < https://www.cambridge.org/core/journals/american-political-
science-review/article/marbury-v-madison-today/139643887F108910C7D1C9985C9AAF64# >

1
the Supreme Court are appointed by the president and their appointments has to be confirmed
by the senate. This results in appointment of judges along party lines.8

RESEARCH OBJECTIVES
The main objective of the project is to study and analyse the case of Marbury v. Madison. The
researcher has tried to achieve the following objectives:

1. To analyse the landmark case of Marbury v. Madison, (1803) 1 Cranch (U.S.) 137. 2 L. Ed.
60.

2. To determine the validity and correctness of the judgement.

3. To develop criticism, if any.

RESEARCH METHODOLOGY
The researcher has used the doctrinal or principle method of approach to research for the paper.
For the purpose of the research, the researcher has referred to various books, Articles, and
websites to gather the information regarding the case, Marbury v. Madison.9 The researcher
has used secondary sources of the material available in the library during the course of research.
Other cases are also discussed here which are in sync with the concept of Marbury v. Madison.
The Researcher has thoroughly analysed the case, and the view of Supreme Court in the Case.
The present cases are also seen at a glance.

RESEARCH SCHEME/ CHAPTERISATION

The present case deals with the principle that the federal judiciary enjoyed the power of passing
upon the constitutionality of the acts of Congress. For the convenience of the reader the
researcher has divided the paper into two parts. The first part deals with the overview of the
case. In the first part the researcher covers fact summary of the case, the background history of
the case, issues, similar cases and judgement given by the Trial Court, High Court and the
Supreme Court. The second part deals with analysis of judgement and principles given in the
judgement. Finally, the researcher shall conclude the paper and shows whether or not the
objectives have been successfully carried out with the help of the above done research.

8
Hariharan G., Understanding Constitutional Law, (2001-02) 1 Law Rev. GLC 83, 83-94, (Oct. 31, 2018, 06:27
PM).
9
Marbury v. Madison, (1803) 1 Cranch (U.S.) 137. 2 L. Ed. 60.

2
 THE BACKGROUND HISTORY

The Constitution called for the creation of a federal government with the following three
branches, or parts: legislative, executive, and judiciary. Article I created Congress, the
legislative, or law making, body. Article II established the office of the President, who
executes, or carries out, the laws. Article III created the federal court system consisting of one
Supreme Court and other lower courts. As with most aspects of the U.S. Constitution, the
meaning of Article III was left open to interpretation. In 1789, shortly after the Constitution
was ratified, Congress passed the Judiciary Act of 1789, which established the federal court
system. Congress created a Supreme Court, three circuit courts, and 13 district courts. There
was one district court for each of the 13 states. The Constitution did not specify the number of
justices that could be appointed to the Supreme Court. Through the Judiciary Act, though,
Congress provided for a Chief Justice and five Associate Justices. However, the Constitution
and Congress left the scope of the Court's power undefined. These powers would gradually be
defined through the Court's interpretation of the Constitution in particular cases. The earliest
Chief Justices had very little impact on the direction of the Supreme Court. But John Marshall,
who served from 1801 to 1835, influenced the action of the Supreme Court in ways still felt in
the United States today. Early in Marshall's term as Chief Justice, a seemingly insignificant
case came before the Supreme Court. However, that case, Marbury v. Madison, became one of
the most important Supreme Court decisions in United States history.10

FACT SUMMARY OF THE CASE

On his last day in office, President John Adams named forty-two justices of the peace and
sixteen new circuit court justices for the District of Columbia under the Organic Act. The
Organic Act was an attempt by the Federalists to take control of the federal judiciary before
Thomas Jefferson took office.11

The commissions were signed by President Adams and sealed by acting Secretary of State John
Marshall (who later became Chief Justice of the Supreme Court and author of this opinion),
but they were not delivered before the expiration of Adams’s term as president. Thomas

10
Marbury v. Madison, (1803) 1 Cranch (U.S.) 137. 2 L. Ed. 60, p.151-153.
11
Marbury v. Madison, (1803) 1 Cranch (U.S.) 137. 2 L. Ed. 60, p.138.

3
Jefferson refused to honor the commissions, claiming that they were invalid because they had
not been delivered by the end of Adams’s term.12

William Marbury was an intended recipient of an appointment as justice of the peace. Marbury
applied directly to the Supreme Court of the United States for a writ of mandamus to compel
Jefferson’s Secretary of State, James Madison, to deliver the commissions. The Judiciary Act
of 1789 had granted the Supreme Court original jurisdiction to issue writs of mandamus “to
any courts appointed, or persons holding office, under the authority of the United States.”13

ISSUES

The main issues that arises are:14

1. Whether Marbury have a right to the commission?
2. Whether the law grant Marbury a remedy?
3. Whether the Supreme Court have the authority to review acts of Congress and
determine whether they are unconstitutional and therefore void?
4. Whether Congress expand the scope of the Supreme Court’s original jurisdiction
beyond what is specified in Article III of the Constitution?
5. Whether the Supreme Court have original jurisdiction to issue writs of mandamus?

COURT

The case came before the U.S. Supreme Court by the original jurisdiction given in section 2
under Article III of the U.S. Constitution. Section 2 states that:

Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials

“ (The judicial Power shall extend to all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made, or which shall be made, under
their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all
Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall
be a Party; to Controversies between two or more States; between a State and Citizens of
another State; between Citizens of different States; between Citizens of the same State claiming

12
Ibid.
13
Ibid.
14
Id at 154.

4
Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign
States, Citizens or Subjects.)

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a
State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases
before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact,
with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall
be held in the State where the said Crimes shall have been committed; but when not committed
within any State, the Trial shall be at such Place or Places as the Congress may by Law have
directed.”

BENCH

The bench which delivered the judgement consists of eminent justices of America at that time,
they were: Chief Justice John Marshall along with the Associate Justices William Cushing,
William Paterson, Samuel Chase, Bushrod Washington, Alfred Moore.

DECISION

On February 24, 1803, the Court rendered a unanimous (4–0) decision against Marbury. The
Court's opinion was written by the Chief Justice, John Marshall. Marshall structured the Court's
opinion around a series of three questions that Marshall answered in turn:

1. First, did Marbury have a right to his commission?

2. Second, if Marbury had a right to his commission, was there a legal remedy for him to
obtain it?
3. Third, if there was such a remedy, what was it, and could the Supreme Court legally
issue it?

Marbury’s commission and legal remedy

The Court quickly answered the first two questions affirmatively. First, Marshall wrote that
Marbury had a right to his commission because all appropriate procedures were followed the
commission had been properly signed and sealed. On this point Madison contended that the
commissions were void if not delivered. The Court disagreed, and said that the delivery of the
commission was merely a custom, not an essential element of the commission itself. The

5
transmission of the commission is a practice directed by convenience, but not by law. It cannot
therefore be necessary to constitute the appointment, which must precede it and which is the
mere act of the President.

Turning to the second question, the Court said that the laws clearly afforded Marbury a remedy.
Marshall built upon the traditional Roman legal maxim ubi jus ibi remedium.i.e., where there
is a legal right, there is also a legal remedy” which was well established in the early Anglo-
American common law.15 In one of the most important and inspiring passages of the opinion,
Marshall wrote: “The very essence of civil liberty certainly consists in the right of every
individual to claim the protection of the laws whenever he receives an injury.”16The specific
issue, however, was whether the courts, part of the judicial branch of the government, could
give Marbury a remedy against Madison, who as Secretary of State was part of the executive
branch of the government. The Court held that so long as the remedy involved a mandatory
duty to a specific person, and not a political matter left to discretion, the courts could provide
the legal remedy. In a now well-known line of the opinion that borrows a phrase John Adams
had drafted in 1779 for the Massachusetts State Constitution, Marshall wrote: “The government
of the United States has been emphatically termed a government of laws, and not of men.”

Jurisdiction

After concluding that Marbury had a right to his commission and that a legal remedy existed
to provide it to him, Justice Marshall then confirmed that a writ of mandamus was the proper
remedy for Marbury's situation. This brought justice Marshall to the most important issue of
the opinion: the propriety of the Supreme Court's jurisdiction over the matter, which would
determine whether or not the Court had the power to issue the writ Marbury requested. This
issue depended entirely on how the Court interpreted a certain section of a law Congress had
passed that regulated the Supreme Court's writs of mandamus.

Congress had passed the Judiciary Act of 1789 to establish the American federal court system,
since Article III of the U.S. Constitution only specifies that there is to be a Supreme Court, and
leaves the rest of the federal judicial power to reside in “such inferior Courts as the Congress
may from time to time ordain and establish.” The law contains a section that defines areas in

15
Amar, Akhil Reed, Marbury, Section 13, and the Original Jurisdiction of the Supreme Court, Faculty
Scholarship Series Paper 1026, p. 1485-86,(1989), (Jan. 6th, 2019, 01:45 PM),
<http://digitalcommons.law.yale.edu/fss_papers/1026>.
16
Amar, Akhil Reed, Of Sovereignty and Federalism, Faculty Scholarship Series Paper 1021, p.1486, (1987),
(Jan. 6, 2019, 02: 06 PM), < http://digitalcommons.law.yale.edu/fss_papers/1021>.

6
which the Supreme Court has original jurisdiction, and areas in which it has appellate
jurisdiction. Marbury argued that this section of the Judiciary Act gave the Supreme Court the
authority to issue writs of mandamus when hearing cases under original jurisdiction. Though
the clause on writs of mandamus appears in the part of the law on appellate jurisdiction,
Marshall quoted only that part in the opinion, omitting the part on original jurisdiction
entirely.17 The Court agreed with Marbury, and interpreted the relevant section of the Judiciary
Act to authorize mandamus on original jurisdiction. However, Marshall then noted that this
authorization clashed with the Constitution, which establishes the judicial branch of the U.S.
government.

The section of Article III of the Constitution establishes that the Supreme Court only has
original jurisdiction over cases where a U.S. State is a party to the lawsuit, or where the lawsuit
involves foreign dignitaries. Neither of these categories covered Marbury's justice of the peace
commission, and so, according to the Constitution, the Court could only have heard Marbury's
case while exercising appellate jurisdiction. However, Justice Marshall had interpreted the
Judicial Act to have given the Court original jurisdiction over the matter, this meant that the
Judicial Act apparently took the initial scope of the Supreme Court's original jurisdiction,
which was limited to cases either directly involving States or involving foreign dignitaries and
expanded it to include issuing writs of mandamus. Justice Marshall ruled that Congress cannot
increase the Supreme Court's original jurisdiction as it was set down in the Constitution, and
therefore that the relevant portion of Section 13 of the Judiciary Act violated Article III of the
Constitution.

Judicial review and striking down the law

After ruling that it conflicted with the Constitution, Justice Marshall struck down the relevant
portion of the Judiciary Act in the U.S. Supreme Court's first ever declaration of the power of
judicial review. Marshall ruled that American federal courts have the power to refuse to give
any effect to congressional legislation that is inconsistent with the Supreme Court’s
interpretation of the Constitution. The U.S. Constitution does not explicitly give the American
judiciary the power of judicial review. Justice Marshall stated that deciding the constitutionality
of the laws it applies is an inherent part of the American judiciary's role. He reasoned that the
Constitution places limits on the American government’s powers, and that those limits would

17
William W. Van Alstyne, A Critical Guide to Marbury v. Madison, duke law journal 1, 15, (1969)
<https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2205&context=dlj>

7
be meaningless unless they were subject to judicial review and enforcement. In what has
become the most frequently quoted line of the opinion, Marshall wrote: “It is emphatically the
province and duty of the judicial department to say what the law is.” He further reasoned that
the written nature of the Constitution inherently established judicial review.18 Marshall also
argued that the authorization in Article III of the Constitution that the Court can decide cases
arising “under this Constitution” implied that the Court had the power to strike down laws
conflicting with the Constitution. Lastly, Marshall argued that judicial review is implied in
Article VI of the Constitution, since it declares the supreme law of the United States to be not
the Constitution and the laws of the United States in general, but rather the Constitution and
laws made “in Pursuance thereof.”

JUDGEMENT

Marshall swiftly upholds that Marbury has the right to the commission. The order granting the
commission takes effect when the Executive’s constitutional power of appointment has been
exercised, and the power has been exercised when the last act required from the person
possessing the power has been performed. The grant of the commission to Marbury became
effective when signed by President Adams. Failure to deliver the applied commission is to be
seen as a violation of a vested legal right, which Marshall believes is possessed by every
individual under the Constitution. Given the violation, it is thereby assumed and subsequently
upheld that Marbury must be granted a remedy. The very essence of civil liberty certainly
consists in the right of every individual to claim the protection of the laws whenever he receives
an injury. One of the first duties of government is to afford that protection. Where a specific
duty is assigned by law, and individual rights depend upon the performance of that duty, the
individual who considers himself injured has a right to resort to the law for a remedy. The
President, by signing the commission, appointed Marbury a justice of the peace in the District
of Columbia. The seal of the United States, affixed thereto by the Secretary of State, is
conclusive testimony of the verity of the signature, and of the completion of the appointment.
Having this legal right to the office, he has a consequent right to the commission, a refusal to
deliver which is a plain violation of that right for which the laws of the country afford him a
remedy. Congress cannot expand the scope of the Supreme Court’s original jurisdiction beyond
what is specified in Article III of the Constitution. The Constitution states that “the Supreme

18
Saikrishna B. Prakash and John C. Yoo, The Origins of Judicial Review, 70 The University of Chicago Law
Review, pp. 887-982,(2003), (Jan. 7, 2019, 08:32 PM), <http://www.jstor.org/stable/1600662>.

8
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.” If it had been intended to leave it in the discretion of the
Legislature to apportion the judicial power between the Supreme and inferior courts according
to the will of that body, this section is mere surplus age and is entirely without meaning. If
Congress remains at liberty to give this court appellate jurisdiction where the Constitution has
declared their jurisdiction shall be original, and original jurisdiction where the Constitution has
declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form
without substance. Throughout the opinion, Marshall essentially critiques the Judiciary Act of
1789 and questions whether Marbury’s application for a writ of mandamus was the proper
means by which to seek remedy for the commission. The Chief Justice upheld that under the
Act the Supreme Court does have original jurisdiction over this particular case because it
directly affects a public officer. However, through similar legal reasoning Marshall affirms that
Congress does not possess the right to modify the Supreme Court’s jurisdiction, which is
effectually what the Judiciary Act accomplished. Essentially, the Act and the Constitution
conflict each other. Marshall upheld the notion that the Constitution supersedes the laws of the
United States, affirming the Supremacy Clause. Furthermore, it was concluded that based on
the preceding reasoning the Court lacked the jurisdiction because section 13 of the Act was
deemed unconstitutional for authorizing the Court to issue the writ of mandamus, thus
invalidating Marbury’s request. The Supreme Court has the authority to review acts of
Congress and determine whether they are unconstitutional and therefore void. It is emphatically
the 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 the rule. If two laws conflict with
each other, the Court must decide on the operation of each. If courts are to regard the
Constitution, and the Constitution is superior to any ordinary act of the legislature, the
Constitution, and not such ordinary act, must govern the case to which they both apply.19

RATIO

The ratio given in the judgement is, “Section 13 of the Judiciary Act of 1789 is unconstitutional
to the extent it purports to enlarge the original jurisdiction of the Supreme Court beyond that

19
Marbury v. Madison, (1803) 1 Cranch (U.S.) 137. 2 L. Ed. 60.

9
permitted by the Constitution. Congress cannot pass laws that are contrary to the Constitution,
and it is the role of the judiciary to interpret what the Constitution permits.”

RELEVANCE

This case is one of the first steps toward establishing the tradition and influence of judicial
review in the American judicial system. Also, it solidifies the power that the judicial branch
has in our government, and the power it does not. As an interpreter of the Constitution, it is
apparent that the Court possesses the power to reject or supersede any Act of Congress. The
fear is that this type of power allows the Court to essentially make decisions based on a small
group’s interpretation of the Constitution, which seems equally unconstitutional as allowing
Congress to pass acts that conflict with it. This shows the delicate balance of power and how
fragile and often vague the Constitution can be.20 In 2000, the Chief Justice of the United States
cites Marbury for that identical proposition. In 2001, a commentator claims that the Chief
Justice's interpretation of Marbury ignores the fact that the idea of judicial review in America
has always been confined by an overriding commitment to popular constitutionalism, and
asserts that for the Court to claim that “what the Constitution allows the political branches to
do is in all events to be decided by the Court” amounts to “judicial sovereignty”21.

The protection given to the power of judicial review in the constitution of the United States,
has been embodied in the Indian Constitution also and it will be found that the foundations of
such protection have been deeply laid in the preamble to the Indian Constitution, as well as in
Parts III and IV of the Indian Constitution, which explain and work out the intention expressed
in the preamble, namely, to secure to all its citizens, justice, social, economic and political, and
not merely to secure rights.22 Judicial review of laws and executive action is embedded in our
constitution by virtue of Art. 13 read with Arts. 32, 226 and 227 of the constitution. Judicial
review has been held to be an essential feature of the constitution23. As of today, judicial review
is possible in three cases24 “

20
Zachary Figueroa Professor Scott Waller Courts & Public Policy, 20 September 2012, Marbury v. Madison, 5
U.S. (1 Cranch) 137 (1803), (Dec. 3, 2018, 11:24 PM), < https://www.scribd.com/document/219901500/Marbury-
v-Madison >.
21
United States v. Morrison, 529 U.S. 598 (2000).
22
C.S. Subramania Iyer, Protection for “Judicial Review” under the Indian Constitution, (1955) 68 LW (JS) 31,
31-35, (Oct. 31, 2018, 07:19 PM).
23
Soli J. Sorabjee, Judicial Review in the Context of Alternative Statutory Remedies, SCC journal J-21,21-23,
(2009) 7 SCC(J).
24
Dr. K.N.C.Pillai, Judicial Review of Execution of Sentences, SCC journal J-17, 17-22, (2009) 10 SCC (J).

10
Firstly, it is the power of courts to review subordinate legislation and the acts of the executive
in terms of their compatibility with parent legislation. This is called ultra vires doctrine.

Secondly, under the federal Constitution, the courts have the power to enforce the schemes of
distribution of legislative powers between the State Governments and the Central Government.
This function is inherent in the written constitution irrespective of whether such power is
expressly conferred or necessarily inferred.

Thirdly, it is possible for the courts to declare the Acts of legislature as unconstitutional if such
legislation is repugnant to the constitution which is the fundamental law of the country.

Judicial review is essentially a power to interpret the legislation with a view to ensure that it 25

a) Does not violate any provisions of the Constitution and particularly its basic tenets and
features, and
b) That it is in furtherance of the aims and objects of the Constitution set out as directive
principles in Part IV of the Constitution.

Hence, a “judicial mind” applied to “review” a legislation cannot substitute its own view for it
or attempt to change it to what it considers to be better.

In several judgements including Kesavananda Bharti v. State of Kerala26, the Supreme Court
has declared judicial review as a “constituent power” and a vital part of the basic structure of
the constitution, beyond and out of reach of the power of amendment of the Constitution, so
that it cannot be abrogated and/or taken away and any attempt to do so would be void and of
no effect.27 Consequently, any law or even a constitutional amendment which purports to or
has the effect of abolishing judicial review or rendering its exercise practically impossible
would be unconstitutional.28 In Golak Nath v. State of Punjab29 the Supreme Court held that
law in Art. 13(2) also included constitutional amendments and therefore, any amendment of
the Constitution, which took away or abrogated the fundamental rights would be void, like any
other ordinary legislation. The issue was considered elaborately in Tilokchand Motichand v.
H.B. Munshi30. The majority held that exercise of the power of the Supreme Court under Art.

25
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534.
26
Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225.
27
Phiroza Anklesaria, Judicial Law- Making- Its Strength and Weaknesses, SCC Journal J-28,25-36, (2012) 1
SCC (J).
28
Soli J. Sorabjee, Judicial Review in the Context of Alternative Statutory Remedies, SCC journal J-21,21-23,
(2009) 7 SCC(J).
29
Golak Nath v. State of Punjab, AIR 1967 SC 1643.
30
Tilokchand Motichand v. H.B. Munshi, (1969) 1 SCC 110.

11
32 is discretionary. Justice K.S. Hegde in a powerful dissent ruled that citizens have a
fundamental right to approach this court under Art. 32 of our constitution and this court has a
duty to afford them appropriate relief and the power conferred by Art. 32 is not a discretionary
power. He observed that this power is not similar to the power conferred on the High Courts
under Art. 226 of the Constitution.

Despite the wide power conferred by Arts. 32, 226 and 227 the courts can and have imposed
certain self- limitations on the exercise of their constitutional powers. One of these is the
adequacy and availability of an alternative statutory remedy in respect of the impugned action.
At the same time there are certain well-recognised exceptions to this doctrine:

1. The first and foremost is where the writ petitioner challenges the constitutionality of
the statute under which the appellant or revisional authority or tribunal is constituted.
31
This is recognised in K.S.Venkataraman & Co.(P) Ltd. v. State of Madras and
Dhulabhai v. State of M.P.32
2. The second exception is where the impugned action is clearly in breach of a
fundamental right like Art. 14 or Art. 19(1)(a) or (g).33
3. Another well-recognised exception is where the impugned action is in breach of natural
justice and fair play and hence void. However, there is judicial thinking in some
quarters that breach of natural justice can be cured in the statutory appeal. Our Supreme
Court has rightly not accepted this position. In Institute of Chartered Accountnts Of
India v. L.K. Ratna34 the Supreme Court held that as a general rule a failure of natural
justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate
body.

31
K.S. Venkataraman & Co. (P) Ltd. v. State of Madras, AIR 1966 SC 1089.
32
Dhulabhai v. State of M.P., AIR 1969 SC 78.
33
Soli J. Sorabjee, Judicial Review in the Context of Alternative Statutory Remedies, SCC journal J-21, J-21-J-
23, (2009) 7 SCC(J).
34
Institute of Chartered Accountants of India v. L.K. Ratna, (1986) 4 SCC 537: (1986) 1 ATC 714.

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 CONCLUSION

Marbury v. Madison, was a U.S. Supreme Court case that established the principle of judicial
review in the United States, American courts have the power to strike down laws, statutes, and
some government actions that contravene the U.S. Constitution. It remains the single most
important decision in American constitutional law. The Court's landmark decision established
that the U.S. Constitution is actual “law”, not just a statement of political principles and ideals,
and helped define the boundary between the constitutionally separate executive and judicial
branches of the American form of government.

The critical importance of the case is the assumption of several powers by the Supreme Court.
One was the authority to declare acts of congress, and by implication, acts of the president,
unconstitutional if the exceeded the powers granted by the Constitution. But even more
important, the court became the arbiter of the Constitution, the final authority on what the
document meant. Marshall interposed the court as a check against legislative omnipotence and
affirmed the principles that lie at the root of constitutional government. The people, not the
government, are sovereign, and the constitution, reflects their will. By exercising Judicial
Review, the court was merely enforcing the will of the people as expressed in the constitution,
over the desire of the government as expressed in the statute. As such, the judiciary became in
fact as well as in theory, an equal partner in government, and it has played that role ever since.

13
 BIBLIOGRAPHY

BOOKS
1. Charles A. Beard, Supreme Court and The Constitution, New York: The Macmillan
Company, (1962).

WEB BASED ARTICLES

1. Soli J. Sorabjee, Judicial Review in the Context of Alternative Statutory Remedies,
SCC journal J-21, J-21-J-23, (2009) 7 SCC(J).
2. Phiroza Anklesaria, Judicial Law- Making- Its Strength and Weaknesses, SCC Journal
J-28,25-36, (2012) 1 SCC (J).
3. Zachary Figueroa Professor Scott Waller Courts & Public Policy, 20 September 2012,
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), (Dec. 3, 2018, 11:24 PM), <
https://www.scribd.com/document/219901500/Marbury-v-Madison >.
4. Dr. K.N.C.Pillai, Judicial Review of Execution of Sentences, SCC journal J-17, 17-
22, (2009) 10 SCC (J).
5. Grant, J. (1929). Marbury v. Madison Today. American Political Science Review,
23(3), 673-681. doi:10.2307/1945317, (Oct. 31, 2018, 08:10 PM),
<https://www.cambridge.org/core/journals/american-political-science-
review/article/marbury-v-madisontoday/139643887F108910C7D1C9985C9AAF64#>
6. Harold H. Burton, Cornerstone of Constitutional Law: The Extraordinary Case of
Marbury v. Madison, 36 A.B.A. J. 805 (1950), (Oct. 31, 2018, 08:04 PM).
7. Justice Syed Shah Mohammed Quadri, Judicial Review of Administrative Action,
(2001) 6 SCC J-1, (Oct. 31, 2018, 06:30 PM).
8. Hariharan G., Understanding Constitutional Law, (2001-02) 1 Law Rev. GLC 83, 83-
94, (Oct. 31, 2018, 06:27 PM).
9. Madhavi Goradia Divan, Judicial Review: Supremacy of the Courts or of the
Constitution, SCC Journal J-25, 23-48, (2009) 10 SCC (J), (Oct. 31 2018, 09:07 PM).
10. C.S. Subramania Iyer, Protection for “Judicial Review” under the Indian Constitution,
(1955) 68 LW (JS) 31, 31-35, (Oct. 31, 2018, 07:19 PM).
11. Justice M.N. Rao, Judicial Activism, SCC Journal, 1-11, (1997) 8 SCC J-1, (Oct.31,
2018, 07:14 PM).

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12. Amar, Akhil Reed, Marbury, Section 13, and the Original Jurisdiction of the Supreme
Court, Faculty Scholarship Series Paper 1026, p. 1485-86,(1989), (Jan. 6th, 2019,
01:45 PM), <http://digitalcommons.law.yale.edu/fss_papers/1026>.
13. Amar, Akhil Reed, Of Sovereignty and Federalism, Faculty Scholarship Series Paper
1021, p.1486, (1987), (Jan. 6, 2019, 02: 06 PM),
<http://digitalcommons.law.yale.edu/fss_papers/1021>.
14. William W. Van Alstyne, A Critical Guide to Marbury v. Madison, duke law journal
1, 15, (1969),
<https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article
=2205&context=dlj>
15. Saikrishna B. Prakash and John C. Yoo, The Origins of Judicial Review, 70 The
University of Chicago Law Review, pp. 887-982,(2003), (Jan. 7, 2019, 08:32 PM),
<http://www.jstor.org/stable/1600662>.

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