Apr 21, · The concept of judicial activism is both malleable and hollow. It has little substantive political content, and as a consequence can be used for a wide variety of political purposes. By being so malleable, the charge of judicial activism doesn’t tell us much about what the Court has actually done or the mistakes it might have made Mar 24, · Judicial activism occurs any time the judiciary strikes down an action of the popular branches, whether state or federal, legislative or executive. Judicial review, in other words, produces one of two possible results: If the court invalidates the government action it is reviewing, then it is being activist; if it upholds the action, it is blogger.comted Reading Time: 6 mins Judicial Activism vs. Judicial Restraint Essay. Words2 Pages. Judicial Activism vs. Judicial Restraint Judicial activism and judicial restraint are two opposing philosophies when it comes to the Supreme Court justices' interpretations of the United States Constitution; justices appointed by the President to the Supreme Court serve for life,and thus whose decisions shape the lives of "We the
Judicial Activism Essays: Examples, Topics, Titles, & Outlines
Home — Essay Samples — Law — Judiciary — Judicial System — Judicial activism and judicial restraint. Judicial Restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional. Judicially-restrained judges respect stare-decisis, the principle of upholding established precedent handed down by past judges.
Judicial restraint is a procedural or substantive approach to the exercise of judicial review. As a procedural doctrine, the principle of restraint urges judges to refrain from deciding legal issues, and especially constitutional ones, unless the decision is necessary to the resolution of a concrete dispute between adverse parties. As a substantive one, it urges judges considering constitutional questions to grant substantial deference to the views of the elected branches and invalidate their actions only when constitutional limits have clearly been violated.
Compare judicial activism. The courts should hesitate to use judicial review to promote new ideas or policy preferences. In short, the courts should interpret the law and not intervene in policy-making, judicial activism essay. Judicial activism is a dynamic process of judicial outlook in a changing society. Arthur Schlesinger Jr. In recent years law making has assumed new dimensions through judicial activism of the courts. The judiciary has adopted a healthy trend of interpreting law in social context.
Judicial activism describes judicial rulings suspected of being based on personal or political considerations rather than on judicial activism essay law. Sometimes judges appear to exceed their power in deciding cases before the Court. They are supposed to exercise judgment in interpreting the law, according to the Constitution.
Judicial activists, however, seem to exercise their will to make law in judicial activism essay to legal issues before the Court.
The question of judicial activism is closely related to constitutional interpretation, statutory construction and separation of powers. It is sometimes used as an antonym of judicial restraint. According to the idea of judicial activism, judges should use their powers to correct injustices, especially when the other branches of government do not act to do so.
In short, the courts should play an active role in shaping social policy on such issues as civil rights, protection of individual rights, political unfairness, and public morality. There is broad though not absolute separation of powers in the Indian Constitution.
The Constitution of India did not provide for the judiciary to be a super legislature or a substitute for the failure of the other two organs. Thus, the need arises for the judiciary to lay down its own limitations.
One of the examples of judicial restraint is the case of State of Rajasthan v Union of India, in which the court rejected the petition on the ground that it involved a political question and therefore the court would not go into the matter. The exercise of power under Art. Ahmadi J, judicial activism essay. said that it was difficult to evolve judicially manageable norms to scrutinize the political decisions and if the courts do it then it would be entering the political thicket and questioning the political wisdom, which the court must avoid, judicial activism essay.
In Almitra H. Patel Vs. Union of India, where the issue was whether directions should be issued to the Municipal Corporation regarding how to make Delhi clean, the Court held that it was not for the Supreme Court to direct them as to how to carry out their most basic functions and resolve their difficulties, and that the Court could only direct the authorities to carry out their duties in accordance with what has been assigned to them by law.
Justice A. The worst result of judicial activism is unpredictability. Unless judges exercise self-restraint, each judge can become a law unto himself and issue directions according to his personal fancies, judicial activism essay, which will create chaos. Reservations have been expressed in many quarters about some very recent decisions of the Supreme Court. The Indian Supreme Court, judicial activism essay, while conservative in the initial years, had later a burst of judicial activism through the social philosophies of Justice Gajendragadkar, Krishna Lyer, P.
Bhagwati, etc. who in the garb of interpretation of Art. Part III of the Indian Constitution enumerates certain Fundamental Rights which are enforceable e.
freedom of speech, liberty, equality, freedom of religion, etc, judicial activism essay. On the other hand Part IV called the Directive Principles of State Policy judicial activism essay certain socio-economic ideals e. right to work, to education, to a living wage, to health etc.
which though unenforceable are ideals which the State is directed to strive for. Though Art. The Indian Constitution, promulgated inlargely borrowed its principles from Western models — parliamentary democracy and an independent judiciary from England, the Fundamental Rights from the Bill of Rights, and federalism from the federal structure in the U.
Constitution and the Directive Principles from the Irish Constitution. These modern principles and institutions were borrowed from the West and then imposed from above on a semi-feudal, semi-backward society in India. The Indian judiciary, being a wing of the State, has thus played a more activist role than its U. counterpart in seeking to transform Indian society into a modern one, by enforcing the modern principles and ideas in the Constitution through Court verdicts, judicial activism essay.
In the early period of its creation the Indian Supreme Court was largely conservative judicial activism essay not activist. In that period, which can broadly be said to be up to the time Justice Gajendragadkar became Chief Justice of India inthe Indian Supreme Court followed the traditional British approach of Judges being passive and not activist.
There were very few law creating judgments in that period. Justice Gajendragadkar, who became Chief Justice inwas known to be very pro-labor. Much of the Labor Law which he developed was judge made law e. that if a worker in an industry was sought to be dismissed for a misconduct there must be an enquiry held in which he must be given an opportunity to defend himself.
In the Supreme Court in Golak Nath case held that the fundamental rights judicial activism essay Part III of the Indian Constitution could not be amended, even though there was no such restriction in Article which only required a judicial activism essay of two third majorities in both Houses of Parliament.
Judicial activism essay, in Keshavanand Bharti v. State of Kerala, a 13 Judge Bench of the Supreme Court overruled the Golakh Nath decision but held that the basic structure of the Constitution could not be amended. The point to note, judicial activism essay, however, is that Article nowhere mentions that the basic structure could not be amended.
The decision has therefore practically amended A- A large number of decisions of the Indian Supreme Court where it has played an activist role relate to Article 21, and hence we are dealing with it separately, judicial activism essay. Gopalan v. State of Madras, the Indian Supreme Court rejected the argument that to deprive a person of judicial activism essay life or liberty not only the procedure prescribed by law for doing so must be followed but also that such procedure judicial activism essay be fair, reasonable and just.
To hold otherwise would be to introduce the due process clause in article 21 which had been deliberately judicial activism essay when the Indian Constitution was being framed. However, subsequently in Maneka Gandhi v. Union of India, judicial activism essay, this requirement of substantive due process was introduced into Article 21 judicial interpretation. Thus, the due process clause, which was consciously and deliberately avoided by the Constitution makers, was introduced by judicial activism of the Indian Supreme Court.
These are ways of interpreting the Constitution. A judge who is a strict constructionist might rule in cases in a way that reads the Constitution very literally or relies on the original intent of the framers. A judge that is a judicial activist might rule in a very broad manner that takes judicial activism essay account how times have changed since Judicial Activism and Judicial Restraint are two opposite approaches. Judicial activism and judicial restraint, which are very relevant in the United States, are related to the judicial system of a country, and they are a check against the fraudulent use of powers of the government or any constitutional body.
In judicial restraint, the courts generally defer to interpretations of the constitution by the congress or any other constitutional body. Judicial restraint helps in preserving a balance among the three branches of government, judiciary, executive, and legislative.
In this case, judicial activism essay, the judges and the court encourage reviewing an existing law rather than modifying the existing law. This essay has been submitted by a student. This is not an example of the work written by our professional essay writers. You judicial activism essay order our professional work here.
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Judicial Activism vs. Judicial Restraint Essay. Words2 Pages. Judicial Activism vs. Judicial Restraint Judicial activism and judicial restraint are two opposing philosophies when it comes to the Supreme Court justices' interpretations of the United States Constitution; justices appointed by the President to the Supreme Court serve for life,and thus whose decisions shape the lives of "We the Apr 21, · The concept of judicial activism is both malleable and hollow. It has little substantive political content, and as a consequence can be used for a wide variety of political purposes. By being so malleable, the charge of judicial activism doesn’t tell us much about what the Court has actually done or the mistakes it might have made Oct 17, · Essay, Pages 9 ( words) Views. Judicial activism continues to attract a heated debate in many parts of the world. Judicial activism can in general terms be defined as judge legislating on the bench. Judicial activism is a situation where the presiding judge or jury issues a judgment on a case based on his or her political or personal thoughts
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