judicial protection to substantive economic liberties through the Due Process Clauses of the Fifth and Fourteenth Amendments. 2. In , during the constitutional revolution wrought by the New Deal, West Coast Hotel v. Parrish repudiated the Lochner era’s special judicial protection for business interests, marking the first death of ‘Judicial activism’ is the current term in use. If we have a judiciary it is to be hoped that its members will be active, but the term activism of course implies blogger.comted Reading Time: 4 mins Judicial Activism - essay example for free Newyorkessays - database with more than college essays for studying 】Estimated Reading Time: 2 mins
Judicial Activism Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire
Home — Essay Samples — Law — Judiciary — Judicial System — Judicial activism and judicial restraint, judicial activism essay. 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, judicial activism essay. Judicially-restrained judges respect stare-decisis, the principle of upholding established precedent handed down by past judges.
Judicial restraint is a procedural judicial activism essay 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 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 essay. Judicial activism describes judicial rulings suspected of being based on personal or political considerations rather than on existing 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 response 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. 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 judicial activism essay, which the court must avoid.
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, judicial activism essay. 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, which will create chaos. Reservations have been expressed in many quarters about some very recent decisions of the Supreme Court. The Indian Supreme Court, 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, judicial activism essay, freedom of judicial activism essay, etc. On the other hand Part IV called the Directive Principles of State Policy contain 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, judicial activism essay, 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, judicial activism essay 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. In the early period of its creation the Judicial activism essay Supreme Court was largely conservative and 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 judicial activism essay fundamental rights in Part III of the Indian Constitution could not be amended, even though there was no such restriction in Article which only required a solution of two third majorities in both Houses of Parliament. Subsequently, 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, however, is that Article nowhere mentions that the basic structure could not be amended. The decision judicial activism essay 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.
Gopalan v. State of Madras, the Indian Supreme Court rejected the argument that to deprive a person of his life or liberty not only the procedure prescribed by law for doing so must be followed but also that such procedure must be fair, judicial activism essay, reasonable and just. To hold otherwise would be to introduce the due process clause in article 21 which had been deliberately omitted when the Indian Constitution was being framed, judicial activism essay.
However, subsequently in Maneka Gandhi v, judicial activism essay. Union of India, 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 into account how judicial activism essay have changed since Judicial Activism and Judicial Restraint are two opposite approaches.
Judicial activism and judicial restraint, judicial activism essay, 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 judicial activism essay 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, judicial activism essay, and legislative.
In this case, the judges and the court encourage reviewing an existing law rather than modifying the existing law, judicial activism essay. This essay has been submitted by a student. This is not an example of the work written by our professional essay writers. You can order our professional work here. We use cookies to offer you the best judicial activism essay. By continuing to use this website, you consent to our Cookies policy.
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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’ is the current term in use. If we have a judiciary it is to be hoped that its members will be active, but the term activism of course implies blogger.comted Reading Time: 4 mins Called "judicial activism," the process of using judicial power to influence the law is an inevitable part of the American justice system and an inevitable component of American political culture. Judicial activism can be loosely defined as "decisions that overturn laws and overrule precedents," (Chemerinsky, )
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