“JUDICIAL ACTIVISM V. JUDICIAL RESTRAINT” AIMS AND OJECTIVES Primary objective of the research paper is to examine the evolution of the process where there is use of the court as an apparatus for intervention over the decisions of policymakers through precedents (Judicial Activism) as opposed to the traditionally conservative view (Judicial Restraint). And, also to study the philosophy of Judicial Activism and Judicial Restraint in USA and India. TENTATIVE CHAPTERIZATION 1. Overview 1.1 Origin and History 2. US Constitution and the Evolution of Judicial Activism in US 3.
Judicial Restraint v Judicial Activism: District of Columbia v Heller, 2008 The Constitution states that the “judicial Power of the United States, shall be vested in one supreme Court,” a court made up of justices from different backgrounds, races, religions, and most importantly political views. The Court has the ultimate responsibility of overseeing all affairs of Congress and – when deemed necessary – acting to overturn decisions found not in accordance with the Constitution. When deciding cases that could potentially violate the Constitution, justices use judicial restraint or judicial activism in their decision-making. Judicial activism is a term used for instances in which judges “creatively (re)interpret the texts of the Constitution and the laws, ” allowing them to meet the needs of the people that would not be met otherwise; justices essentially act as policy makers. The fault in this lies in the motivation behind the justices’ decisions; with judicial activism, it is nearly impossible to view law as objective and free of bias.
CHAPTER 4 : JUDICIAL REVIEW 4.1. MEANING Judicial review is the doctrine in democratic theory under which legislative and executive action is subject to invalidation by the judiciary.It is Examination by a country's courts of the actions of the legislative, executive, and administrative branches of government to ensure that those actions conform to the provisions of the constitution. In other words it is the control of two branches of the government (i.e. the Executive and the legislature) by the third branch (i.e. the Judiciary) only to the extant that their actions are in conformity with and not in violation of the constitution.
However, there were also many who believed that Judicial Review would lead to Justice-created policy. Cases such as Barron v Baltimore settled much of this debate, declaring the United States Bill of Rights did not have power over state governments. This ruling echoed the sentiment of the people over judicial power rather than sentiment towards state power. The judicial independence of the Justices worried those who believed that judicial rulings would reflect the moral and political views of the Court, rather than of the Constitution. This led to controversies over what exactly this commitment looks like in practice, as well as citizens questioning the legitimacy and authority of the rulings.
Robert Isenhour Federal Government 110 10/10/17 Judicial Review Judicial Review had been obsolete until 1803 when the need for it arose in the case of Marbury vs. Madison, where it was then found to become a new component to the Judicial Branch. I am here to discuss why judicial review is and shall remain a doctrine commonly used in constitutional law. Judicial Review is the power for courts to review other government branches to determine the validity of its actions whether it be constitutional or unconstitutional. These ‘acts’ can be described as legislation passed by congress, presidential orders and actions, or all state and local governmental actions. It was first generated into a doctrine after the case of Marbury vs Madison.
2. The judiciary will deicide matters before it impartially on the basis of facts and in accordance with the law without any restrictions, improper influences, inducements, pressures, threats, and interferences direct or indirect from any quarter or for any reason. 3. The judiciary will have jurisdiction over all issues of a judicial nature and will have exclusive authority to decide whether an issue submitted for its decision with its competence as defined by law. 4.
The term judicial review is nothing but the procedure of examining the three wings actions such as legislative, executive and administrative law. Additional judicial review also analyze whether such actions are consistent with the constitution of the country.The doctrine of judicial review has acquired different nuances during the course of its evolution in UK, USA, and India. Its origins can be traced to UK which has no written Constitution. It has become firmly established in USA with a written Constitution establishing a federal polity. In administrative law, administrative action judicial review process has been started first from Britain.Further based on this foundation, Indian Courts built control mechanism superstructure.
In order to establish justice, laws need to be interpreted and judged. When the contents of a law are used to “honor” the criminal's actions the judicial branch will bring justice to the victim and the law. The judicial branch does not prejudice, therefore they judge fairly and justly. The way the judicial branch works makes it so that it establishes justice. In Article Three of the Constitution, it states “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” This means that the judicial branch is the only branch that can judge whether or not an act is considered treason.
The new nation will follow the American Model of constitutional review, suggesting that any law can be declared unconstitutional by any judge at any time. Because it can be carried out at any time, it is referred to as judicial review. In this model, the branches are separate by equal branches of government, allowing the separation of powers in Entdeckungland to be kept strong in all areas, not having any fall off the wagon. This allows for the country to stay stabilized, as one branch will not have more control over the next. A concrete posteriori constitutional review is used in this system.
Rationale: The Hon’ble Court found that for testing the validity of the selection it was necessary to determine if the power exercised was an administrative or quasi-judicial one. The court here determined that power exercised by the selection board is an administrative one. The court further held that if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner then the whole concept of rule of law would lose its importance. The administrative