One clear example of over-extrapolation is in Griswold v. Connecticut(1965) which secured a woman’s right to contraception as an issue of privacy. In this case, the court concluded seven to two that although the Constitution doesn’t explicitly state a right to privacy, it is implied in the spirit of the constitution by other Amendments such as the Self-Incrimination Clause in the Fifth Amendment: “nor shall be compelled in any criminal case to be a witness against himself,” the Freedom of Association Clause in the First Amendment: “or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances,” and the Due Process Clause of the Fourteenth Amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” While Griswold v. Connecticut may have resulted in a more progressive and pleasing result and was a win for personal freedoms, the Supreme Court over-extrapolated, creating a “fundamental right” that didn’t exist from legal basing or precedent, even if it was in line with the classical liberal ideals of the framers. While over-extrapolation can lead to unconstitutional judicial legislation, at times extrapolation is necessary to protect the Constitution
Since its inception, the law on adultery in India has been subject to controversy with regard to several fundamental issues. The legitimacy of these laws in India has been argued based on deep-rooted obsolete assumptions predominantly premised on gender discrimination and the wife's sexuality. The Apex Court has failed time and again to have a deeper insight into the gender-biased law of adultery. K.I. Vibhute in his critical analysis of the constitutionality of adultery laws in India stated that that such gender-discriminatory and proprietary-oriented laws of "adultery” contradicts the very essence of equality of status guaranteed under the Constitution of India.
When evidence is introduced that the accused and the complainant have either been married or have been living together for a period of time, and in situations such as this, it’s the judge’s duty to direct the jury that any inference can have no bearing on the issues to be decided. Section 41 (3) (c), shows what amounts to similarity between the complainant’s behaviour and that alleged to have occurred as part of, or about the same as the occasions in question. According to Lord Clyde in R v A , the similarity need be neither ‘rare’ nor ‘bizarre’. The question in R v A was whether or not the defendant was allowed to cross examine the
For these reason, Briggs LJ dismissed the appeal (Briggs LJ para 60). RATIO DECIDENDI In the present case, it was incompatible with the European Convention article 8 right to respect for her ‘private and family life’ (para 14) and there was no breach by the Secretary of State of her public law duty to act fairly and the Secretary of State did not have responsibilities for the general unfairness, that was the result of action which caused by St Stephen’s (Sales LJ para 25). The purpose of the PBS was to simplify the procedure for applying for leave to enter or remain in the United Kingdom, it was in the interests of all applicants (Sales LJ para 28). Therefore, it was not suitable and fair to expect the Secretary of State to investigate, it would cause an inroad into the simplicity, predictability and relative speed of the PBS. As a result, it would lead the unfair outcome for the applicant (Briggs LJ para
The initial case to examine is DPP v Smith, where the House of Lords held that an objective stance was applicable in establishing oblique intent if a person intended the natural and probable consequence of his actions. However, this legal position was overturned and reversed by the passing of the Criminal Justice Act 1967. Through statute, Parliament intended for s8 of the Criminal Justice Act 1967 to define the meaning of oblique intent, to include that a court or jury, when, ‘determining whether a person has committed an offence- (a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions;’ but more essentially, ‘(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.’ The courts ruled that a subjective test be required when determining oblique intent, answering the first two questions given above, but giving rise to a series of consecutive issues regarding the penultimate question: how probable is it that the adverse effect will occur but more essentially, does it have to be virtually certain to occur or does it have to be mere
This type of confession is commonly made to with the desire to protect the criminal (Deffenbacher, 1996), due to the inability to differentiate one’s fantasy and the reality, or to satisfy the need for attention (Gudjonsson, 2003). As an illustration, high-profile cases such as Nicole Brown Simpson murders in 1994, tends to attract a larger amount of voluntary false confession cases (Corwin, 1996). Another type
If a partner is abusive than due to that he can go to any extreme level for controlling and isolating the abuse victim. One more reason is that the person who is getting abuse feels that it is normal to become victim of the abuse and thus due to that for them this type of abusive relationship feels normal. Women feels that all the intimate relationships require some form of psychological and physical violence. When they are in a relationship in which a father abuses her mother than they find it normal to get emotional and physical violence against them. Sometime when a women is having emotional and physical attachment with his partner than due to that they give preferences for staying in the abusive relationships.
Here is where the contrast between the two approaches is the most dramatic. The U.S. Supreme Court has been unwilling to look to the experience of other countries or to rely on principles of international law, most notably the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), when confronted with problems of violence against women. The Supreme Court of India, relying on international law, has approached the problem of gender violence as an equality issue, finding that freedom from gender violence is a fundamental constitutional
As an aside, the Court added that since polygamy had economic, religious and social justifications, it could not be regarded as discrimination “only” on the grounds of sex (as is required by the Indian Constitution) and if reviewed, could not be held to be unconstitutional. This case is important because several judgments from Supreme Court of India have used it as a point of reference subsequently. The Narsu Appa Malli case illustrates two important tendencies that have been reflected in judicial discourse in the following years. The
In the novelty and strength of the play, Karnad elaborates his mature philosophical exploration of love, jealousy, desire, betrayal and violence between men and women. It presents ties of blood and marriage, intimate personal acts and seriousness of the characters in their religious belief and practice and the promise of motherhood beyond boundaries of marriage as a motivating force. Queen’s refusal to sacrifice the dough cock stems not so much from her non-violence as from the fact that she did not consider sex with the Mahout as harmful or sinful. It is not so much a matter of sacrifice to her; she would have declined any rite or ritual for her act. For her, no ideology or concept should intrude to put down these moments.