Parliament by reference to certain fundamental principles of natural justice
and of common law (See Willis on Constitutional Law– Edn. 1936 p. 76).
‘‘This dictum of Coke, announced in Dr. Monham’s case (1610) 8 Co. Rep.
118-A was soon repudiated in England, but the doctrine accounced in Coke’s
dictum found fertile soil in the United States and sprouted into such a
vigorous growth that it was applied by the United States Supreme Court in
the decision of cases coming before it, and it has been said that the doctrine of
the supremacy of the Supreme Court is the logical conclusion of Coke’s
doctrine of control of the Courts over legislation.’’
551. It seems to me that judicial review of all law making, whether it
appertains to the sphere of fundamental law or of ordinary law, is traceable
to this doctrine of judicial control by reference to certain basic principles,
contained in a Constitution and considered too inviolable to be easily
alterable. It may be that this doctrine is unsuitable for our country at a time
when it is going through rapid socio-economic transformation. Nevertheless,
so long as the doctrine is found embodied in our Constitution, we cannot
refuse to recognise it.
552. In America, there was some doubt whether the doctrine of judicial
review of al legislation naturally flowed out of the vesting of judicial power by
Section 1 of Ariticle 3 of their Constitution which says:
‘‘The judicial power of the United States shall be vested in one Supreme
Court, and in such inferior Courts as the Congress may, from time to time,
ordain and establish.’’
(Willis on Constitutional Law– p. 1020). There is no article there, like
Article 13 of our Constitution, which declared any kind of legislation
abridging or taking away fundamental rights to be ‘‘void’’. The doubt was not
without substance. It was removed by Chief Justice Marshall whose
judgment in Marbury v. Madison, 1803 Cranch 137 firmly established the
doctrine of judicial review and the supremacy of the Supreme Court of
America, in the judicial field of interpretion, as the mouthpiece of the
Constitution and therefore, of the ‘‘Real Will’’ of the people themselves. The
Constitution, as the basic or fundamental law of the land, was to operate
there as the touchstone of the validity of ordinary laws just as the validity of
laws made by British colonial legislatures was tested by reference to the
parential Act of the British Parliament.
553. Under our Constitution, by Article 141 of the Constitution, power is
vested only in the Supreme Court and in no other organ or authority of the
Republic to declare the law ‘‘which shall be binding on all courts within the
territory of India.’’ Article 143 of the Constitution of India also shows that
whenever questions of fact or law have either arisen or are likely to arise, the
President of India may, in view of their public importance seek the opinion of
the Supreme Court, by a reference made to the Court. The procedure on such
a reference is that of a judicial authority which hears those interested and
then gives its opinion. Article 32 of the Constitution gives a wide power to the
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