Love recognizes no barriers. It jumps hurdles, leaps fences, penetrates walls to arrive at its destination full of hope.

[19/10 9:49 pm] Biji Mon Adv: “CR”
V. CHITAMBARESH & SATHISH NINAN, JJ.
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W.P.(Crl). No.313 of 2017,
I.A.Nos.15973, 15979 & 15980 of 2017
and
Crl.M.C.No.5684 of 2017
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Dated this the 19th day of October, 2017
JUDGMENT
Chitambaresh, J.
“Love recognizes no barriers. It jumps hurdles,
leaps fences, penetrates walls to arrive at its
destination full of hope.”
said Maya Angelou, the American poet, memoirist and civil
right activist.
2. Sruthi Meledath ('Sruthi' for short) fell in love
with her classmate Anees Hameed ('Anees' for short) while
studying for the B.Sc.(Physics) course in the Pilathara Co-
operative Arts & Science College. Sruthi pursued her M.Sc.
[19/10 11:31 pm] Biji Mon Adv: And they require a little more elucidation. The concept of ‘judicial review’ is generally believed to be the invention of Chief Justice Marshall in his land mark judgment in Malberry Vs.Madison. True, Chief Justice Marshall enunciated the principle in unmistakable term. In that case Chief Justice Marshall only held that administrative decisions are amenable to correction by the Supreme Court. He enunciated nothing new. St.Augustine (AD.300) in his thesis ‘de doctrina’ said: lex injustia non est lex’; an unjust law is not a law at all. Centuries later, St.Thomas Aquinas in Summer Theologica (AD1200) re affirmed the same by saying that a law which is against the law of the nature and law of the God is no law. It need not be obeyed. He, however, gave caveat, namely, that provided the injury to be suffered by disobedience of the void law is not greater than the injury to be suffered by obedience to the unjust law. The doctrine of the right , nay , duty of of disobedience was thus laid down. A few centuries later, Chief Justice Edward Coke in Dr.Boliham’s case held enequem est aliequam rue sui est judiciam , namely, that if the Parliament were to make a law by which one of the parties to a dispute, a judge thereof, such a law is void. The assertion of Chief Justice Coke that the court of Common law could hold an Act of Parliament void, however, did not receive much acceptance and since then, no judge in England ever dated to assert so. There is valid reason for that. In England the House of Lords which is the Supreme Judicial Tribunal is itself the upper House of the Parliament. The practice since then is not to strike down an Act of Parliament as ‘void’, but in a lis between the subject and the state to declare an Act of parliament in so far as it voidable, the natural law to be void in so far as the subject is concerned. It is for the Parliament to take notice of the judicial declaration and to bring in necessary amendments to the law. In England, to challenge the wisdom of the Parliament constitute to be is in conceivable and there is no concept of judicial Review, an unruly horse, as we understand in India. However, all the 5 writs as enunciated in Article 226 and 32 are available in English; nay, we inherited it all from them alone.
It was necessary to briefly narrate as above the history of English law in the realm of “judicial review” , in view of the general misconception that civil courts have no power to interpret the constitution or declare an Act of Parliament or statutory instrument void.
While Article 226 and 32 expressly provide for judicial review by providing for five writs(Remedies) there is no express provision in the constitution which empower the High Courts or the Supreme Court to declare an Act of  Parliament or statutory instrument to be void other than Article 13(2) of the Constitution. The question therefore is , which court is competent to declare an Act of Parliament or statutory instrument to be void and unconstitutional. The answer to this question could be found in The Code of Civil Procedure,1908. Section 9 invests the jurisdiction in the civil court to try all suits of a civil nature unless barred expressly or by implication. However, by At No.23 of 1942 under section 27A titled, “suits involving a substantial question of law as to the interpretation of the constitution or as to the validity of any statutory instrument” was incorporate in The Code of Civil Procedure,1908. The said amendment made it mandatory that no suit involving a substantial question of law as to the interpretation of Govt. of India Act shall not be determined without notice to the Attorney General; so too that no suit concerning the validity of the statutory instrument can be decided without notice to the Govt. Pleader of the question concerns the government. In 1950, the words ‘Government of India Act’ were substituted by the words ‘Constitution of India’.
Thus, two things were manifest from above, namely:

(i) The civil courts can interpret and determine a substantial question of law, as to the interpretation of the constitution of India;
(ii) Declare a statutory instrument void or unconstitutional.

Then question is:
Whether the civil courts could determine the constitutional validity of an Act of Parliament?  The answer could only be in the affirmative. Because the power to determine ‘substantial question of law as to the interpretation of the constitution’ will undoubtedly take within it's ambit to declare an Act of Parliament as void, if it be so.
In all the chartered High Courts, the High Courts were invested civil original jurisdiction above a vertain pecuniary limits. Today except the chartered High Courts, no High Court enjoy original civil jurisdiction ; so too was the case at the time of the commencement of the constitution with the coming into force of the constitution by virtue of Articles 12, 13(2), and 372, thereof int became indispensible that a junior civil judge could determine a “substantial question of law as to the interpretation of the Constitution” so too invalidate an Act of Parliament , inter partes, the decision of the subordinate court having no precedential value.  The Parliament felt it to be not so ideal a situation. Accordingly by Act No.24 of 195  a proviso was added to section 113 of The Code of Civil Procedure,1908 to the effect “if in a case pending before it involves a question as to the validity of any Act, ordinance or regulations or of any provision contained in the Act,  ordinance.. the determination of which is necessary for the disposal of the case, the court shall refer the same for the opinion of the High Court.”
From the above it is crystal clear that the current practice of challenging the constitutional validity of an Act of Parliament or statutory instrument by instituting a writ petition in the High Courts or the Supreme Court of India is contrary to the Constitutional scheme and that the writ jurisdiction could be invoked in exceptional circumstances, for the enforcement of the remedies (5 kinds of writs) expressly stated in the Articles 226/32. It is not a matter of practical import; not merely academic. The reason is simple. The departure from the constitutional scheme as above has led to the exponential growth of writ jurisdiction; so too the face of law. In subordinate courts, there is nothing like face value/law. Cases are determined on it's merits, after issues are framed; evidence is allowed to be led for and against. The judge hardly exercises any discretion. He decides according to the evidence on record and law, in stark contrast to the practices in the High Courts. In the High Courts, under Article 226, no issues are framed; cases are decided summarily after at the admission stage itself. Judges openly say that he jurisdiction is discretionary. This dubious jurisdiction ( Article 226 & 32) has done great damage to the credibility of the justice delivery system as an impartial and objective with the undeniable perception among the common man that he can get justice if only he could afford an expensive lawyer, preferably of the judicial dynasties.
The situation to India’s seemingly irresolvable crisis in the dispensation of justice is to restore the pristine glory of the civil courts; recruit the best legal brain at the young age; train them; provide them the best pay and perks; so too the infrastructure; abolish if possible all tribunals; strengthen and stream line the subordinate judiciary/civil court. There in so other means than this to rebuild a robust justice delivery system.