UMESH CHANDRA BANERJEE, C. J.

( 1 ) THE doctrine of judicial reviewability has a special significance in public law, particularly in the countries having a written Constitution, since in common acceptation, the doctrine of judicial review works through the remedies of appeal and revision as prescribed by the prevalent procedural law. The Constitution is a legal instrument and this law is superior in status to the laws made by the Legislature. Dr. Basu in his Tagore Law Lectures very succinctly stated the broad features of the doctrine to the following effect: "where the Constitution operates as a higher law, any act which transgresses the mandates of that higher law becomes unconstitutional and since not only the Executive but the Legislature itself is limited by that higher law, as in the U. S. A. or in India, a legislative act, too, would be unconstitutional and invalid when it contravenes the Constitution. The peculiarity of judicial review in the Constitutional sphere is that this power is wielded by the Judiciary, not over any inferior Tribunal, but over co-ordinate authorities viz. , the Legislature and the Executive".

( 2 ) BE it noted that prior to the advent of constitutionalism the law Courts had to deal with the issue of judicial reviewability on the basis of the doctrine, as propounded by Coke, C. J. , in Bonham s case (1610 : 8 Co. 114 (a) ). Subsequently, however, upon adoptation of a written Constitution in the united States, law Courts did find a more tangible foundation for the claim in favour of fundamental law embodied in the Constitution. Marshall, C. J. , in the case of Merbury vs. Madson stated: "the powers of the Legislature are defined and limited and those limits may not be mistaken or forgotten, the Constitution is written. . . . . . . . . . . . . . . Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation and consequently. . . . . . . . . . . . . . an act of the Legislature repugnant to the Constitution is void",

( 3 ) DR. Basu, in his lecture stated that wherever there is a written Constitution imposing legal limitation upon the organs of the Government, there must be an interpreter of the Constitution and that function must be entrusted to the judiciary which alone is competent to interpret legal instruments. In fine, dr. Basu stated the doctrine under three several counts as follows: " (i) Since the Court is to regard the Constitution as superior to an Act of the Legislature, it is for the Courts, in case of conflict, to declare which law shall prevail and to disregard the repugnant Act, which is no law, in determining the case before it. (ii) Since the Constitution is the paramount law of the nation being the declared will of the people themselves, an Act of the Legislature (whose powers are limited by the Constitution) which is repugnant to it must be void. (iii) It is the province and duty of the judicial department to say what the law is and if two laws conflict with each other the Courts must decide on the operation of each".

( 4 ) OURS is a written Constitution having three independent organs viz. , the Legislature, the Executive and the Judiciary: Whereas the Legislature legislates and the Executive administers, the Judiciary is the controlling factor in regard to the abuse of power - be it the Executive or the Legislature: It is the Constitution which is supreme and it is the Constitution itself which has conferred power on to the judiciary to discharge its role effectively in terms of the provisions of the Constitution.

( 5 ) BE it noted, that we ourselves have conferred on to ourselves this constitution of ours as a sovereign, socialist, secular and democratic republic. Democratic policy is the basic fervour of our Constitution and it is the judiciary alone which maintains this basic fervour by reason of the powers conferred on to it and is authorised to strike down the award of legislative impertinence whenever

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