An Analysis on Compounding of Offences

(By U. Ravisankar, Advocate, Trichur)

Whether S.320 (1) & (2) of Criminal Procedure Code for compounding of offences, a necessary legislation ?

It is true that the intention of Parliament while enacting this provision is to minimize considerably the pendency of litigation in criminal courts and also with a view to reduce the enemity between the victim and the offender or between two offenders standing in opposite directions.

On a clear analysis about the very beneficial legislation, upto what extent this provision is going to be utilized in its correct perspective ? There are Deterrent theory, Reformative theory & Retributive theory etc. in our legal jurisprudence. What actually these theories mean or is there any sanctity for these theories ? Do we expect a situation where the offender (I mean one who really committed a crime) will have ‘repentance’ in his mind if he is completely absolved from all criminal liabilities when the offence he has committed falls within the purview of S.320 (1) & (2) ? At this juncture the observation made by the Hon’ble High Court of Kerala in its recent ruling reported in Santhosh v. State of Kerala (2008 (3) KLT 240) that compounding of offences other than the offences punishable with death or imprisonment for life can be compounded by the person aggrieved if the offence alleged in the assessment of the court is purely personal between the offender and the aggrieved…..is striking my mind ! With due respect I personally feel that if such a system is introduced, then what would be the result if those particular class of offences which are at present not included in S.320 (1) & (2) (of course I do not mean the offences punishable with death and life imprisonment) are also brought or included under the above provision in future ? It is quite common that in most of the cases where compounding is permissible, is compounded not at the free will of the victim ! But it so happen depending upon the state of mind of the victim. Perhaps it happens in an untoward circumstances of the victim such as threat for life, embarrassment or requirement of money etc. Suppose those particular class of offences which are at present not included in S.320 (1) & (2) are also included for the purpose of compounding of offences (except offences punishable with death or life imprisonment) then what would be the consequences ? No doubt that the offenders especially- habitual offenders may develop in their minds to commit offences other than the offences for which death sentence or life imprisonment (fortunately or unfortunately such class of persons are also well versed in legal positions now a days) and continue to do their criminal activities ! 

It is well settled that by sending an accused to prison or awarding him appropriate punishment by a Court of law if charges alleged against him are proved, not for isolating him from the entire society ; but to give him an opportunity for realizing the wrong he has committed and opportunity to ‘repenting’ himself and thereby converting himself into a ‘good personality’. If that be the truth, then can we expect this if all offences other than death sentence and life imprisonment are permitted to be compounded ? My respectful suggestion would be the provision for compounding itself should be declared unconstitutional.

Role of the State in Promoting and Regulating Self-financing

Professional Educational Institutions 

(By Pauly Mathew Muricken, Advocate, High Court of Kerala)

A Welfare State in the present day context has diverse roles to play - as the Provider, Protector, Regulator and Entrepreneur.  However, State’s legislative action- whether primary or delegated, has always been a contentious issue in the past in the realm of Self-financing Professional Educational Sector. Views in favour and against are focused in.  Some say that State has absolutely no power in this arena, but only to remain as a mute spectator. Others point out that State can effectively regulate within the permissible limits without crossing the constitutional barrier.  Where exactly lies the line of control?  What are the areas of Self-financing Professional Educational Sector falling within the ambit of regulatory power of the State?  What are its inbuilt constitutional limits?  For what purposes regulations can be made?  Can there be total take over/closure of a professional educational institution including a minority run institution under the guise of regulation?  This paper makes a voyage into these complex, delicate, puzzling and sensitive areas of contemporary social, legal and constitutional significance. 

Education is understood to be continued growth of personality, steady development of character and the qualitative improvement of life.  Education is training the mind and not mere stuffing the brain.  It is national wealth, essential for nation’s progress and prosperity. Therefore, it has to be distributed equally and widely, as far as possible, in the interest of creating an egalitarian society, to enable the Country to rise high and face global competition.  Any tireless pursuit stretching its arms towards perfection would not be successful unless strengthened by education. In the era of professional education in different spheres of human specialization, right to education also means right to professional education and State would be competent to legislate in this area drawing the legislative power under Arts.245 & 246 and Entry 11 of List II or Entry 25 of List III of Schedule VII, aiming at accomplishing the goals set out in the Constitution. 

In the good old times, education was seen as charity or philanthropy.  Gradually, it became an occupation and Courts have also considered it as an ‘Industry’.  However, it cannot be equated to a ‘trade or business’.  As of now, it requires to be pointed out that it has come to be a means of livelihood for some professionals and a mission in life for some altruists. 

The right to establish and administer educational institutions is guaranteed by the Constitution to all its citizens under Arts.19(1)(g) and 26 subject to Arts.19(6) and 26(a). This right is more specifically conferred on the religious and linguistic minorities under Art.30 subject to Arts.29(2) and 28(3).  But the right conferred by Art.30(1) of the Constitution on the religious and linguistic minorities  ‘to establish and administer’ educational institutions of their choice is not an absolute right and never was it intended to be so.  This means that this right is not free from State regulation.  State can regulate cautiously for maintaining the educational character and content of the minority institutions, without destroying the minority character. So also, regulatory measures can be pressed in, to ensure educational standards and to maintain academic excellence. Equally, regulatory power can be invoked for ensuring orderly, efficient and sound administration and/or to prevent and remedy maladministration. Checks on administration for making the same efficient and sound and to serve the academic needs of the institution are always sustainable.  As the Apex Court puts it in St. Xavier’s College v. State of Gujarat,(AIR 1974 SC 1389.) the right to administer implies a co-relative duty of good administration. Therefore, regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study, etc. remain protected and such regulations do not interfere with the right under Art.30 (1).

The right conferred on minorities under Art.30(1) is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-a-vis the majority. There is no reverse discrimination in favour of the minorities. Though Arts.29 and 30 are styled as rights, they in fact confer additional protection or a privilege to the minorities to instill confidence in them against any executive or legislative encroachment on their right to establish and administer educational institutions.  Hence, what may be permissible by way of a restriction under Art.19(6) may fall afoul of Art.30. 

The word ‘establish’ in Art.30(1) means to bring into existence an educational institution and the word ‘administer’ means the right to manage and conduct the affairs of the institution and the expression ‘ institutions of their choice’ indicate even professional educational institutions. It has now come to be recognized that the right to administer includes the right to choose its managing or governing body, to choose its teachers and non-teaching staff, to admit eligible students of their choice, to set up reasonable fee structure, to use its properties and assets for the benefit of the institution, to select its own medium of instruction, etc.(Supra Note 1 and  D.A.V.College  v. State of  Punjab(II), AIR 1971 SC 1737.)

Though Art.30 by itself does not lay down any limitation upon the right of a minority to administer its educational institutions, it is subject to reasonable regulations(All Saints College v. Govt. of A.P.AIR 1980 SC 1042.)  for the benefit of the institution as the vehicle of the education for the minority community consistent with the national interest, such as to maintain the educational character and standard of such institution. Thus, regulations laying down qualifications or conditions of service of staff; for securing appointment of good teachers; for ensuring interests of students; for maintaining a fair standard of teaching (In Re Kerala Education Bill Case, 1958 KLT 465 (SC) = AIR 1958 SC 956.) for ensuring orderly, efficient and sound administration and to prevent mal-administration (Sidhrajbhai v. State of Gujarat (1963) 3 SCR 837 and  Frank  Anthony Public School Employees Association  v. Union of IndiaAIR 1987 SC 311.) and to secure its proper functioning as an educational institution to ensure that its funds are spent for the betterment of education and not for extraneous purposes; to prevent anti-national activity; to enforce the general laws of the land applicable to all persons, e.g., taxation, sanitation (Azeez v. Union of India,AIR 1968 SC 662.),social welfare, economic regulations, public order, morality; to prescribe syllabus, curriculum of study(State of Tamil Nadu v. St. Joseph TTI, (1991) 3 SCC 87.) and regulate the appointment of teachers; to ensure efficiency and discipline of the institution(Virendra Nath v. Delhi, (1990) 2 SCC 307.) are all within reasonable and permissible limits.  Such regulation may be made either by legislation or by executive order.  But, it has to be taken note of that since the right to ‘administer’ confers upon the minority institutions, the right to manage the institution and the said right being absolute, no restriction can be imposed by the State on the right of the minority community to manage the institution (Mark Netto v.Govt. of Kerala,1978 KLT 798 (SC) =AIR 1979 SC 85).

But it has to be emphatically stressed that a regulation would cease to be a regulation where the condition imposed is not related to any of the legitimate interests for which the State may intervene, such as efficiency, health, morality or the like and also will cease to be a regulation when the power conferred upon an extraneous authority, whether the State or the University is uncanalised or unreasonable in extent(Lily v. Lewina, 1978 KLT 723 (SC) = AIR 1979 SC 52.).  Suffice to say that such regulations are permissible only in so far as they do not restrict the right of administration of the minority community but facilitate and ensure better and more effective exercise of the right for the benefit of the institution. They must allow the institution to retain its minority character.  It follows that no such regulation would be valid if it has the effect of displacing the minority administration or to completely take away its autonomy or to have the effect of depriving the minority of its right to educate their children in its own institution(St.Stephen’s College v. University of Delhi, (1992) 1 SCC 558.)  like enabling the Government to take over the management of the institution or to compel the management to surrender its right of administration(Bihar State Madarasa Board v. Madarasa Hanafia, AIR 1990 SC 695.) or by providing that appointments and dismissals by the Governing Body were to be subject to absolute veto or prior approval of the State or the University.  Similarly, it is impermissible to resort to measures enabling the State to constitute a Managing Committee according to its order(Patro v. State of Bihar, AIR 1970 SC 259.) or to interfere with the minority’s choice of a Governing body by including persons other than members of that community or by enabling the State to place the Management in a body corporate which is not answerable to the founders of the institution or enabling the State to require the institutions to reserve seats under orders of the Government or imposing any language as the compulsory medium of instruction in a minority institution or by compelling the institution to refer to a Government nominated Arbitrator all disputes between the governing body and its staff or empowering the Government to dissolve or supercede the Managing committee and appoint adhoc Committees in its place.  Thus, it can be seen that a regulatory measure in order to be consonant with Art.30(1) must be reasonable and must also be regulative of the educational character of the institution and conducive to make the institution an effective vehicle of education for the minority community or other persons who resort to it. 

In State of Kerala v. Very Rev.Mother Provincial (1970 KLT 630 (SC).),a Constitution Bench of the Supreme Court explained the concept of ‘right to administer’ thus: “Administration means management of the affairs of the institution.  This management must be free of control so that the founders or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the interest of the community in general and the institution in particular will be best served. No part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right.”  The Court further held:

“The minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions, or under the guise of exclusive right of management, to decline to follow the general pattern.  While the management must be left to them, they may be compelled to keep in step with others”.

The scope and extent of minority’s right to administer educational institutions established by them is seen narrated by a 9 Judge Bench  in Ahmedabad St.Xavier’s College Society v. State((1974) 1 SCC 717.), by taking the view that prescription of condition of service would attract better and competent teachers and would not jeopardize the right of the management of minority institutions to appoint teachers of their choice. Court observed: “……..Autonomy in administration means right to administer effectively and to manage and conduct the affairs of the institution.  The right of administration is day-to-day administration. The choice in the personnel of management is a part of the administration. The University will always have a right to see that there is no mal-administration.  There may be control and check on administration in order to find out whether the minority institutions are engaged in activities which are not conducive to the interest of the minority or to the requirements of the teachers and the students.  Checks on the administration may be necessary in order to ensure that the administration is efficient and sound and will serve the academic needs of the institution……”

In T.M.A. Pai Foundation v. State of Karnataka((2002) 8 SCC 481.), an 11-Judge Bench of the Supreme Court while considering the scope of regulatory power available to the State held that in the case of un-aided minority institutions, regulatory measure should be minimal and administrative control over them would be beyond regulation. Matters relating to fee, appointment of staff cannot be regulated. But Capitation fee cannot be charged.

An impetus to the regulatory power of the State was laid down in Islamic Academy of Education v. State of Karnataka (2003 (3) KLT SN 88 (C.No.118) SC = (2003) 6 SCC 697.),by a 5-judge bench of the Apex Court by holding that minority institutions are subject to regulatory measures as much as that of the non-minority institutions.  Therefore, a minority institution crossing the permissible limits of regulation can be taken over with a view to maintain morality, public order, health, and national interest.  Similarly, for gross mismanagement and violation of the conditions of essentiality certificate, State may close down the institution.  But, in doing so, the executive policy of the State cannot be thrust upon without valid legislation.

In Modern School v. Union of India (2004 (3) KLT SN 13 (C.No.17) SC = (2004) 5 SCC 583.), Court has styled the right to establish and run educational institutions as an occupation subject to restrictions in terms of Art.19(6) on grounds of public interest and national interest and held that while invoking the regulatory power, balance should be struck between the autonomy of the institution and measures to be taken to prevent commercialization of education and the diversion of profit/surplus for any extraneous purpose or for personal gain or for other business or enterprise. 

State’s power to regulate in public interest aiming towards maintenance of standard of education and to check maladministration was stressed again in Brahmo Samaj Educational Society v. State of West Bengal(2004 (2) KLT 742 (SC) = (2004) 6 SCC 224.). Commenting on the exercise of regulatory power, Apex Court held that reasonable restrictions necessary for proper maintenance of standard of education and to check maladministration in the interest of the public can be imposed under Art.19(6). However, the Court cautioned that under the guise of restriction, it cannot extend to control the day-to-day administration of the institution. It is permissible for the State to prescribe basic qualification for appointment of teachers. But selection and appointment from amongst qualified teachers is the exclusive right of the educational institution. Similar view was taken by the Supreme Court also in Usha Mehta v. State of Maharashtra(2004 (2) KLT 696 (SC) = (2004) 6 SCC 264.) and held that such regulatory measure shall not destroy the minority character of the institution.  

Aided institutions give instruction either in secular education or professional education.  Religious education is barred in educational institutions maintained out of State fund.  These aided educational minority institutions providing secular education or professional education should necessarily have standards comparable with non-minority educational institutions.  Such standards can be attained and maintained only by having well-qualified and professional teachers.  An institution can have the services of good qualified professional teachers only if the condition of service ensures security, contentment and decent living standards.  That is why State can regulate the service conditions of the employees of the minority educational institutions to ensure quality of education.  Consequently, any law intended to regulate the service conditions of employees of educational institutions will apply to minority institutions also, provided that such law does not interfere with the overall administrative control of the management over the staff.

 In P.A. Inamdar v. State of Maharashtra (2005 (4) KLT SN 3 (C.No.3) SC = (2005) 6 SCC 537.),a 7-Judge Bench of the Supreme Court while considering the scope of the right under Art.30(1) held that regulation is permissible under Art.19(6) in national interest based on considerations of public safety, national security, and national integrity whether un-aided or aided, unrecognized or recognized, affiliated or unaffiliated.  Such limitations must necessarily be read into Art.30. Similarly, in Manager, S.S. Higher Secondary School v. Ligin G.S. (2007 (3) KLT 663 = ILR 2007 (3) Ker.284), in the matter of appointment of Principal, it was held that promotion prospects of teachers have to yield to the right of minority management to administer the school.  However, Management of minority institutions cannot appoint an unqualified person from minority community as Principal.  In the absence of qualified hands from minority community, the qualified senior-most teacher should be appointed as Principal-in-Charge. 

The latest judicial attitude with reference to the regulatory power of the State is seen reflected in  Lisie Medical & Educational Institutions v. State of Kerala (2007 (1) KLT 409),  wherein a Division Bench of the Kerala High Court held that while invoking the regulatory power, a balance has to be struck out between the Government and the Management aiming to take education to its pinnacle. Self-financing Educational Institutions which are imparting quality education should be encouraged and unnecessary and unproductive regulations which may virtually amount to take over would become counter-productive. Day-to-day monitoring of the institution and chocking them financially may result in their closure. In this case, Court held that Ss.3, 7, 8(b) and (c) and 10 of the Kerala Professional Colleges and Institutions Act, 2006 and Rr.10 and 11 of the Rules are violative of Arts.14, 19(1)(g), 26(a) and 30 of the Constitution and hence unconstitutional.

Scope of State Regulation through Recognition or Aid

 Neither Art.30(1) nor any other provision in the Constitution confers any right upon the minority to obtain recognition or aid from the State.  This means that in considering for grant/aid or recognition to an institution coming under Art.30(1), the State may impose reasonable regulations for the purpose of ensuring competence of teachers, maintenance of discipline, conditions of service, providing for appeal against orders of termination, sanitation, etc.  In the case of aid, the State may also make regulation to ensure that the aid is utilized for the purpose for which it is granted (Manohar v. B. M. H. E. C, (1992) Supp. (2) SCC 301.). But the regulation cannot go to the extent of virtually annihilating the right guaranteed by Art.30 (1) by introducing regulations which are not related to the interest of the institution as an educational institution. Surrender of fundamental rights cannot be exacted as the price of aid doled out by the State.  Thus, the State cannot prescribe that an institution entitled to protection of Art.30(1) and seeking to receive a State aid must submit to the condition that State may take over the management of the institution or acquire it under certain contingencies, as such condition would completely destroy the right of the community to administer the institution.

In  Re Kerala Education Bill Case (Supra Note 4.) the Supreme Court  pointed out that the fundamental right  given to  all minorities under Art.30(1)  to  establish and administer  educational institutions  of their choice does not  militate against  the claim of the State  to insist that  in granting  aid  the State may prescribe  reasonable regulations to ensure the  excellence  of the institutions. Accordingly, the Court in this case upheld certain conditions designed to give protection and security to the ill – paid teachers who were rendering service to the nation and protect the backward classes, as permissible restriction which the State can impose on minorities as a condition for granting aid to their educational institutions.

 Still stretching its arms further, in T.M.A.Pai (Supra Note 16),it was held by the larger bench that receipt of aid by a minority institution removes the protection under Art.30(1), by taking away its right to claim immunity from interference and therefore all regulations made by the State, governing the manner of making appointments and removal, as also the conditions of service of Principals and Lecturers, will be binding on such aided institutions. However, in Kurian Lizy v. State of Kerala(Kurian Lizy v. State of Kerala,2006 (4) KLT 264 (F.B.) = ILR 2006 (3) Ker. 579.)  a Full-Bench of the Kerala High Court has categorically held that in the matter of appointment of Headmaster in an Aided School, management of a minority educational institution has the freedom to appoint Headmaster or Principal of their choice and that R.44(1), Chap.XIV-A, KER cannot infringe  the right conferred by the Constitution.

Striking on same lines, in Malankara Syrian Catholic College v. Jose (2007 (1) KLT 22 (SC).),the Supreme Court after a careful analysis of the law governing minority rights enshrined in Art.30(1) held that extension of aid by State does not alter the nature and character of the minority institution.  At the same time conditions can definitely be imposed by State to ensure proper utilization of aid, without diluting or abridging the right under Art.30(1). Court held that S.57(3) of the Kerala University Act,1974 which provided that the post of Principal when filled by promotion is to be made on the basis of seniority-cum-fitness is violative of Art.30(1) and cannot therefore apply to minority-run educational institutions even if they are aided. 

As in the case of aid, so too in matters of recognition, though there is no constitutional or other vested right for a minority run educational institution to receive State recognition and though the State is entitled to impose reasonable conditions for receiving State recognition like prescription of the qualification of teachers to be employed by the institution, the State cannot impose conditions, the acceptance of which would virtually deprive a minority community of their right guaranteed by Art.30(1), like a condition that a certain percentage of seats must be reserved for students or teachers nominated by the Government (Sidhrajbhai, Supra Note 5.).

Thus, a regulation would be reasonable only if it reconciles or secures a reasonable balance between the two objectives of ensuring a standard of excellence in institution and of preserving the right of minority to administer the institution as a minority institution. But it has to be established that institutions are educational institutions of the minorities in truth and reality and not mere masked phantoms. A minority institution can always seek relief under Arts.32 or 226 if the State threatens to withdraw recognition or aid for failing to comply with unconstitutional demands. 

Control over minority institutions by the State through Universities and other affiliating/accrediting bodies

Just like recognition or aid, no vested right is conferred on minority institutions under Art.30(1) in matters of affiliation. But the right conferred by Art.30(1) would become hollow, if a minority institution cannot secure affiliation to the University. As condition for affiliation, a University can impose reasonable conditions upon a minority institution for maintaining the requisite educational standard and efficiency(Managing Board v. State of Bihar,AIR 1985 SC 1757.) in matters of qualifications of teachers to be appointed in the institution, conditions of service including age of superannuation of teachers, qualifications for entry of students, courses of study, hygiene and physical training of students.  But such terms or conditions will be violative of Art.30(1) if they are likely to oblige the minority to surrender its right to establish and administer educational institutions of its choice or to render it unreal or ineffective. A University cannot, in the name of affiliation, indirectly do what it cannot do directly.           

It is the settled law that the power to affiliate cannot be used by the University to interfere with the day-to-day administration of the institution(Mustaq Ali v. Magadh University, AIR 1974 Pat. 341.) or the right of management belonging to the minority community; to interfere with the aims, ideals and objects sought to be achieved by the institution; to require that all appointments or dismissals by the Governing body must be subjected to the approval of the University or subject to the undefined and unlimited power of appeal of the Vice-Chancellor; to constitute or reconstitute or suspend the Governing Body or require its approval for constitution of that body; to prescribe that the teaching in the institution shall be conducted by the University itself and that affiliated institution shall be a part and parcel of the University; to place the administration in a body in the selection of which the founders have no say; to displace the domestic jurisdiction of the Governing Body in settling disputes with the members of the teaching staff and to refer it to a Tribunal; to impose on a minority institution a script or medium of instruction other than its own, etc.

Even though no institution has any legal right to affiliation, a University cannot deny affiliation to any institution on the sole ground that it is managed by a religious or linguistic minority or on illusory grounds that do not exist or without giving sufficient reason for such refusal.

Conclusion

From the above discussion, it becomes abundantly clear that there are two sources of power for the State to regulate Self-financing professional educational institutions including minority run institutions-(1) On the settled principle that right to administer does not include the right to mal-administer; (2) In exercise of the power to enact conditions accompanying affiliation/recognition or grant of aid. The State may stretch its regulatory arms either directly or through its agencies like Universities or affiliating or accrediting bodies. However, in regulating minority run professional educational institutions, a balance has to be struck between the twin objectives, namely, (a) that of ensuring the standard of excellence of the institution and (b) that of preserving the right of the minority conferred under Arts.30 and 29. Subject to the same and still further, any regulation accompanying affiliation/recognition or grant of aid must satisfy four tests-(1) reasonableness and rationality, (2) effective vehicle of education, (3) maintenance of excellence, (4) protection of  minority character.

Stop Press

*Lawyers can now advertise their services

(Press Trust of India, New Delhi, July 28)

LAWYERS, like other professionals, are now free to advertise their services on Internet as the Bar Council of India (BCI) on Monday informed the Supreme Court that it has relaxed its rules on the issue in view of the changing global scenario.

In an affidavit filed through its secretary S.Radhakrishnan, the BCI submitted that it has decided to permit such advertisements.

The BCI’s latest turnaround marks a significant departure from its earlier stand that the legal profession was not a trade and, hence, advocates could not be permitted to advertise about their services.

For this purpose, it has amended R.36, Section IV of the BCI which earlier prohibited the legal fraternity from advertising their services. Under the amended rule, advocates can mention in their chosen websites, their names, telephone numbers, e-mail ID, professional qualifications and areas of specialisation.

However, the BCI submitted that such advertisements can be issued only within the parameters fixed by it under the amended regulations, and any breach of the same would invite disciplinary action. The regulatory body had earlier taken the view that unlike western countries where lawyers were permitted to advertise their services, the same cannot be permitted in India as it “cherished different ethos, social values and ethical norms.”

A Bench headed by Justice B.N. Aggarwal which is hearing the matter took on record the BCI’s latest affidavit. A section of the lawyers had challenged the BCI’s regulations on advocates advertising their services. 

* This is an Extract from 'Indian Express' Kochi Edn. dated 28.7.2008.

Marbury v. Madison

(By P.G. Rajagopalan, Advocate, Ernakulam)

Lawyers and Judges quote, Chief Justice Marshall in Marbury v. Madison: “It is, emphatically, the province and duty of the judicial department, to say what the law is. Those who apply this 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 the case, conformable to the law, disregarding the constitution, or conformable to the constitution, disregarding the law, the court must determine which of these conflicting rules govern the case; this is of the very essence of judicial duty. If then, the 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 give the case to which they both apply” and state that this is the case in which the United States Supreme Court for the first time held the right of judicial review and that the act of legislature and executive can be invalidated by the courts. But most of the lawyers and judges might not have read the decision as such or known that political intrigue, historical setting and bias of the Judge involved in the case. Most of them might have read the passage from either text books or decisions which quoted this passage.

Marshall was the Secretary of States, of the President John Adams. Marbury was appointed by out going President at the end of his term in office; he was one of the group of Federalists to whom judicial position was given as a political patronage. Marshall as Secretary of States affixed the seal of the United States, but the warrant was not delivered due to the extreme hurry in the office of the Secretary of States. Jefferson won a land slide victory over John Adams. Jefferson’s Secretary of States, Madison took possession of the office. John Adams nominated Marshall as Chief Justice in January 1801 and took his oath of office on 4-2-1801. Marshall continued to act as Secretary of States through March 3, 1801, to the end of Adam’s term (See Gunther: Constitutional Law, 1985 Ed., Ch.I, S.1 page 10 to 11) . The motion for writ of mandamus was supported by an affidavit of James Marshall, brother of the Chief Justice Marshall.

It is to deliver this controversial warrant appointing Marbury as District Federal Judge, the Supreme Court was moved on the original side under a congressional legislation, the Judiciary Act of 1789.

Jefferson was of the view that the Courts have no jurisdiction to issue a mandamus against President or his Secretary and no law can be invalidated by the Supreme Court. The position of the Supreme Court at that time was weak when compared with Executive and Legislature. John Jay, the first Chief Justice resigned the post to contest for election as Governor of New York. Alexander Hamilton declined the post to renew his law practice and political activities. These incidents show the low prestige of the U.S. Supreme Court at that time. Therefore, if a mandamus was issued it would not have been carried out; and the Supreme Court would have emerged as fatally wounded from a direct clash with the Executive. Marshall was between the horns of a dilemma. He escaped through the horns of dilemma advoitly and that was considered as a political victory by some persons.

The first part of the Judgment deals with the question whether a mandamus could be issued against Secretary of States and if so whether this is a fit case for issuance of the mandamus. Marshall asserted that a mandamus could be issued and this is a fit case for issuance of such mandamus. Then he took up the point whether the U.S. Supreme Court has got original jurisdiction in the matter under S.13 of the Judiciary Act, 1789. Marshall held that Judiciary Act which empowers original jurisdiction is unconstitutional. The scheme of United States Constitution does not empower the Congress to confer an original jurisdiction and hence it is invalid. The judicial review was invoked to refuse the relief which Marbury had sought for. Obviously Marbury would not have contended for the position. Madison did not enter appearance and show cause against issuance of mandamus. Thus Marshall while asserting the judicial review of Legislative and executive action declined to give relief on the ground that the Supreme Court has no original jurisdiction. Jefferson could not have complained because no mandamus was issued and at the same time court has asserted the right of judicial review. Bernard Schwartz in his Tagore Law Lecturer, Some Makers of American Law, says: “From a strategic point of view, a better case could not have been chosen for declaration of the power which has ever since been considered the palladium of the American Constitutional structure. Since the Courts’ decision denied relief, there was nothing to execute, nothing which would bring on a direct conflict with Jefferson Administration. More than that, the assertion of the greatest of all judicial powers was made in a case that ostensibly denied authority to the court.” 

The judicial review of Legislative and Executive action is firmly established in American Constitutional jurisprudence. As far as India is considered the question is only academic, the Constitution of India recognises the judicial review by empowering the Supreme Court and the High Courts under Arts.32 and 226 of the Constitution such a right.

But then, the lucid and clear exposition of law was appreciated by one and all. It is not as if that the judiciary was invalidating legislative action for the first time, in colonial countries local legislations were struck down as opposed to Parliamentry legislation of the United Kingdom. It may be interesting to note Madison who introduced Bill of Rights as amendment to the constitution observed “independent tribunals of Justice will consider-themselves in a peculiar manner the guardian of those right”. Alexander Hamilton who took active part in framing the Constitution and getting it ratified wrote: “The interpretation of the law is the proper and peculiar province of the Courts. A Constitution is, infact, and must be regarded by the Judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred to the statute, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents”. (See Gabriel: Selections from Fedaralist Papers (1954) Ed). Bernard Schwartz in his Tagore Law Lecture gave tribute to foresight of Marshall and said: “Had Marshall not confirmed review power at the outset in his magisterial manner, it is entirely possible it would never have been insisted upon, for it was not until 1857 that the authority to invalidate a federal statute was not exercised by the U.S.Supreme Court”. A later President, James A.Garfield said: He (Marshall) found a skeleton and he clothed it with flesh and blood”.

Books consulted:-

1)The Justices of the United States Supreme Court 1789 to 1969. Their lives and Major opinions. Vol.1.

2)Bernard Schwartz. Some Makers of American Law. (Tagore Law Lectures).

3)Gunther: Constitutional Law. 1985 Ed.

4)Ronald D.Rotunda: Modern Constitutional Law Cases and Notes. 3rd Ed. 1990.

5)Hamilton, Madison and Jay on the Constitution (Selections from the Federalist Paper; Edited by Ralp H.Gatried Liberal Art Press. 1954.