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Judicial Review – Marbury v/s Madison

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Updated: May 20, 2020

The doctrine of Judicial Review can be followed to Marbury v/s Madison of the U.S Supreme Court. it was held by Chief Justice Marshall that the Judicial Act of 1789 was ultra vires the Constitution.

This concept is in Art- 13 of our Indian Constitution.

Art- 13 states as follows:-

1)- PRE – CONSTITUTIONAL LAW- Art- 13 (1) ,. All laws in force in India as on 26-1-1950 which are inconsistent shall be void to the extent of the inconsistency.

2)- POST- CONSTITUTIONAL LAW– Any law made by the State which takes away or abridges the Fundamental rights, shall be void to the extent of the contraventions.

3)– The terms law is also defined in broad terms to include any rules, regulations, ordinance, by-laws, notifications, custom or usage.

Thus, the Supreme Court and the High Court may issue writs to declare the law as ultra vires the Constitution if it is not according to the Constitution.

BASIC STRUCTURE– The Supreme Court in Keshvananda Bharti’s Case has held that judicial structure of the Constitution.

CONSTITUTIONAL AMENDMENT– For purpose of Art- 13 law does not include a Constitutional Amendment Act.

NOT RETROSPECTIVE

In Keshaava Madhava Menon v/s State of Bombay, the supreme court held, that Art- 13 was not retrospective i.e it is operative from- 26-1- 1950. Hence, a trial for an offence under a pre- Constitutional Law which is inconsistent with the Constitutional, is not removed out on 26-1-1950, but may be continued. However, all procedural law is held to be prospective.

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