...author, through the medium of this essay tries to analyse the economic aspect of judicial activism in India with regard to transaction costs and opportunity costs. The author will first introduce judicial review and its correlation with judicial activism talking about instances when the latter is helpful and can be used, and the concept of separation of powers. Following which the author, once having clarified the concepts, will discuss the economic aspect of it. This analysis will determine whether judicial activism in the area of siphoning of government funds, provides any cost benefits, as to reduction of costs and the magnitude of its impact on the economy. To meet the ends of justice and ensure equality to all sections of the society especially the disadvantaged one, PIL was brought into effect in India with a view to fulfil these objectives which are in consonance with the objects enshrined in the Article 39A of the Constitution of India. During emergency there was lot of repression and governmental lawlessness; thousands of people were sent to jail with complete denial of their civil and political rights. Post emergency two judges Justices P.N. Bhagwati and V.R. Krishna Ayer have played a key role in promoting this avenue of approaching the apex court to the poor and the disadvantaged section of the society, seeking legal remedies in areas where public interests are at stake. The first reported case of PIL was in 1979 focussed on inhuman conditions of prisoners and under trial...
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...Judicial review has been an element of judiciary power in the United States since Marbury v. Madison in 1805. From the beginning, the role of the Supreme Court has been to express and clarify the Constitution’s meanings and intents. In modern day there is more and more power being given to the Supreme Court Justices and the rise of judicial activism has become more apparent over the decline of judicial restraint. The idea of judicial policy-making has become a hot topic for debate. While the Supreme Court does not have the democratic legitimacy to make political decisions, as the citizen’s do not elect them, their premier role of upholding constitutional values is necessary in maintaining individual rights. In the case of Roe v. Wade the Supreme...
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...Legislature and Executive. By doing so it reposes people’s faith constitutional setup .It doesn’t mean that the other two organs of the Government are subsidiary to Judiciary but every branch is supreme in its own right and is complementary and supplementary in nature. Without judiciary we would have been like Iraq, Afghanistan, Pakistan etc. hence it saved the nation from eminent collapse. But at the same time this active role of judiciary is good only in the short run because the Judges lack in technicality of subject matter and they are not elected by the people and hence not accountable to them Judiciary is only a temporary respite or a painkiller and not a permanent solution of the maladies of the system. Keywords: separation of powers, legislature, executive, judiciary, constitutional setup. Judiciary: An Alarmbell not a Timekeeper With the expansionist role of the Government in the developing countries the necessity of judicial control over administration became much more pronounced. The main task of judiciary is to protect individual citizens whenever the official authority encroaches on their constitutional or statutory rights. This necessity of control has given birth to the doctrine Judicial Review, Rule of Law and Separation of Powers. The judiciary can interfere with the administrative orders whenever they cause prejudice to the rights of persons due to lack of jurisdiction,...
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...Different Models of Judicial Law Making -Rachi Singh and Viplav Baranwal ABSTRACT: I believe that we must do away with 'the childish fiction' that law is not made by the judiciary- Sabyasachi Mukharji, C.J This paper seeks to analyze different models of judicial law making keeping in mind the changing needs of the society. It begins with the need to fill in the gap between the existing law and the law ought to be. It goes on to analyze different models of judicial law making like the interpretation, Article 142, in the absence of codified law to the new concept of Public Interest Litigation and Appointment of Judges . It also discusses the basic attributes that have undergone a change. It ends with the authors providing their views that a mean has to be found between too much and too little activism. INTRODUCTION I believe that we must do away with 'the childish fiction' that law is not made by the judiciary- Sabyasachi Mukharji, C.J. Whenever legislature enacts any law, in spite of keeping everything in mind and putting in their best efforts, it cannot visualize all possible situations in the future to which that law requires application. In today’s world everything is constantly changing. Nothing is static. As a result new situations develop and therefore law has to be interpreted accordingly. Herein, the role of judicial creativity comes into play i.e. to fill in the gap between the existing law and the law as it ought to be. The Judges have to be aware about the...
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...Judicial activism is a concept that raises a lot of concerns over the judges’ competence in law interpretation and application in certain cases that require more than the mere application of existing laws. The critics of judicial activism fault it for violation of application of available or pre-existing laws but rather the judge decides cases based on his own emotional persuasion and views on a case. Judges constitute members of the society whose actions should impact it positively (Harten, 2013). The architects of the Constitution anticipated a judiciary that can effectively tackle various issues like injustices and address discontentment even in the absence of applicable law. For instance, the Canadian ruling on the status of Métis and non-status...
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...TOPIC #1 EXAM 3 Grace Abushalback Introduction to Law November 14, 2017 The Supreme Court can choose how politically active they are. Their decisions influence and impact public policy as well as the current laws in place. They can either choose to interpret a case and use judicial activism or judicial restraint. Judicial activism is the Court’s inclination to enact change in society. It is done in order to adjust to the needs of society in a way which the Justices deem acceptable. On the contrary, there is judicial restraint which is in direct opposition to judicial activism. It allows for the Justices to curtail their powers and they, in turn, avoid making significant changes in public policy. There are three notable processes...
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...Preface Throughout the following paper, I will make an argument as to what the essential characteristics of President-Elect Donald Trump’s Supreme Court Justice nominee are. The characteristics presented will be supported by several popular and several scholarly sources, which explain why these attributes are so valuable to a Supreme Court Justice. As the rhetor, a Republican, and a conservative, I am arguing for the sake of Republican and conservative values, both of which have created the United States into the prosperous and universally admired nation it is today. The issue at hand is that the Supreme Court of the United States is divided between four liberal and four conservative justices. The fate of the balance of the Supreme Court lies...
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...that the power of the Supreme Court cannot be justified in a democracy. The Supreme Court: Functions of judiciaries; judicial independence. Membership, appointment process and issues of judicial review; accountability and democratic control. Theories of judicial activism and restraint. The supreme Court is the head of the judicial part of Government in the USA, it acts as an appellant court which can also on occasion deal with ambassadorial and diplomat cases. It is separate from the other 2 branches of government in order to remain independent and provides a powerful check on those branches. However it has been criticised by being called democratically lacking. The members have a significant amount of power however are unelected and unable to be dismissed. The most significant issue with the Supreme Court’s power is its (lack of) accountability, this is largely caused by the appointment process. The Supreme court has had significant influence over public legislation since the Marbury vs Madison case of 1803 and increasingly so since Chief Justice Warren’s court who made controversial decisions regarding segregation (Brown vs Topeka) and Abortion (Roe vs Wade). This has continued to more recent court cases such as the 2012 Windsor vs USA which recognised gay marriage striking down DOMA (the 1996 Defence of Marriage Act) which stated that only heterosexual marriage would be federally recognised. This has led to the appointment process of Supreme Justices to come under...
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...Supreme Court justices are just politicians in black robes Supreme court justices are politicians. They are politicians alongside their duties of judges of the highest court in the land. The most basic definition of a politician is, a person that achieves a position of policy making over an organized community. Judges, in theory, should be fair, unbiased, neutral, impartial and not based or linked to any political party or movement. However, decisions made by the Supreme Court judges have had huge political significance. While it’s not the standard in lower courts, the United States Supreme Court is forced to make political and judicial decisions. A judicial decision is based on the question was a law broken. However, because the Supreme Court is the highest court of the land, they also must make political decisions some of which have been more powerful that the actual laws congress had written. The Supreme Court is in charge of making sure congress and the president don’t overstep their authority, and to do this job of keeping these branches accountable it would be impossible for the justices to not be politicians yielding real power. One of the examples of the supreme courts political power the court case Griswold v. Connecticut (1965). Estelle Griswold was the executive director of Planned Parenthood in Connecticut; she and Dr. Buxton of Yale Medical School opened a clinic in Waterbury and after only serving 10 patients Griswold and Buxton were arrested and convicted...
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...U.S. District courts are the lowest federal courts. Any federal cases are argued in these courts. They follow Supreme Court decisions. So there is room for misunderstanding. It’s not common for losing parties to appeal. U.S. courts of appeals are the ones that go from district to federal. This court bases their decision on the lower court’s records. There are 13 appeal courts. One of them has jurisdiction over patents and international trade. There are 4-6 judges in each court, but it’s rare for all of them to be there. Each circuit in monitored by a Supreme Court Justice. The Supreme court reviews less than 1 percent of the cases heard by federal appeals courts (389). Special U.S. courts include Claims Courts. Cases where the U.S. Government...
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...done by changing the Judicial Branch. Strict constructionists are people that will uphold the Constitution to the letter, and will put aside personal opinions. William Rehnquist’s confirmation process was very rough and he had a lot of opposition because of his views that he had expressed at a younger age. Roe v. Wade was about a woman who did not want to have her unborn child, but Texas was very strict about no abortion unless the mother’s life is at risk. Roe v. Wade is significant because it supported abortion and women’s rights. It also gave a woman a choice about what she wanted to do with her life. Justice Blackmun’s opinion made the statement that the government does not have any...
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...Judicial activism can have both positive and negative impacts on American society either as a whole or as individuals depending on which side of the particular subject that is taken or the interpretation of it. As judicial analyst and former Judge Andrew Napolitano once said, “There is no such thing as an activist judge. An activist judge is one whose ruling you disagree with. And if you agree with what the judge has done, you call them heroic and honest” (Wojdacz, 2009). Usually a judge is called an activist when they make a ruling that is based on their interpretations of the Constitution or laws. After all, the job of the Supreme Court is to interpret the law where it is unclear or in question and when laws or rulings of lower courts are challenged, it is the Supreme Court justices that must examine the law and determine if the intention of the law has...
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...The Supreme Court added three more members to it-two former judges and Director, RAW-and rechristened it as SIT. Even now the investigation will be done by the police, but what is unprecedented is that the SIT will report to a former judge. Under the Cr. Pc., the court cannot take over investigation though it can appoint any one to investigate impartially to its satisfaction. In another case, Nandini Sundar- vs- Chhattisgarh, the apex court declared the appointment of special police officers (SPO) under the policy of arming of a civilian vigilante group, the Salwa Judum. In both these cases, the court has lambasted the neo-liberal economic policy of the government and held it responsible for the growth of black money and invidious inequality which has led to the menace of Naxalism. Both judgments are replete with condemnation of the state’s “amoral” economic policies in florid language. The question is: Are judges competent to do it? Chief Justice of India S. H. Kapadia, while delivering the Motilal Setalvad Memorial Lecture, diagnosed the disease properly and cautioned his colleagues against breaching the doctrine of separation of powers: “We do not have the competence to make policy choices and run the administration…Under the doctrine of separation of powers, each of the above organs must stay within the powers allocated by the constitution.” Justice Kapadia rightly raised the issue of accountability. If one examines all the above cases it is pretty clear that judicial activism...
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...The judiciary is a government branch responsible for interpreting the constitution. Strict constructionists and judicial activism are two sides of the same body that guide a judge in the decision making of court cases. Strict construction is defined as the interpretation of the law while basing the argument on the narrow and literal meaning of the law. It does not make exceptions for the difference in times of writing the constitution and conditions experienced today, changes in the society and innovations. Judicial activism, on the other hand, considers what the language of the policy maker intended to capture from an extended point of view to consider the societal complexity and current standards of conduct for humans (Pandey, 2012). The strict constructionist limits the judicial discretion, restricting judges in determining legal cases and especially those outlined in the Constitution. Their discretion is only allowed when the decision is necessary for resolving a substantial dispute between antagonizing parties. It expects judges faced with constitutional questions to allow substantive deference to ideas argued by elected branches and restrain their actions only when there are clear violations of the constitutional limits (Mark, 2012). The concept controls the court to interpret laws and take part in policy-making. Judges are expected to pass...
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...I. On January 22, 1973 the Supreme Court decided one of the most controversial cases in United States history, but the debate was just beginning. The landmark case of Jane Roe v. Dallas County District Attorney Henry Wade was not only symbolic of the progress of women’s rights, but an indication of judicial activism and its potentially damaging affects. It began as a fight for an unmarried young woman and her desire to terminate her pregnancy, even though it did not pose serious physical danger to her health. But, in the process of this struggle, an unprecedented judicial involvement emerged. II. This paper will first provide the necessary expository information, highlighting the central characters in this historical case, the political climate of the Supreme Court Justices during the trial, as well as a earlier case, Griswold v Connecticut which preceded Roe v. Wade. The paper will discuss the proceedings of the case at both the District and Supreme Court levels. Following, this paper will debate the surface issues of the abortion controversy, Roe as a precedent for future cases (Planned Parenthood v. Casey, Stenberg v. Carhart, and the breaking news decision of Gonzales v. Carhart), and the implied right(s) of the Constitution. III. In the 1970s, Linda Coffee and Sarah Weddington, two hot shot young lawyers from Texas, recruited Norma McCorvey as lead plaintiff under the alias “Jane Roe” in a class action suit lawsuit on behalf of US women everywhere...
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