Judicial Activism Vs Judicial Restraint

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“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. Evolution of Judicial Activism in India
4. Public Interest Litigation as an area of Judicial Activism
5. Implications of Judicial Activism on Indian Judiciary
6. Conclusion
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O. Chinnappa Reddy, The Court and the Constitution of India; 6th Edition, Oxford University Press, 2013: Focuses on the dichotomy observed in the judicial process: unelected Judges versus democratically elected legislatures; result-oriented judging versus principles decision-making; law versus politics and so on.
ARTICLES
1. Separation of Powers, Judicial Review and Judicial Activism; Markandey Katju: This article provided the much needed insight and global review on ‘Judicial Activism’ and ‘Judicial Restraint’ in both India and in USA.
2. The Legislative Aspect of the Judiciary: Judicial Activism and Judicial Restraint; Justice B.S. Chauhan: This speech highlights the doctrine of Separation of Powers, limited role of the Judges as a Law Giver, and also the criticisms of the Power of Judicial Review.
3. The Philosophy of Judicial Restraint; Markandey Katju, The Express Tribune, 2012: Emphasizes on broad Separation of Powers under the Constitution and also how Judicial activism should be done in rare cases.
RESEARCH METHODOLOGY
Research methodology is primarily doctrinal, based on secondary data. Approach adopted is analytical where principles or information which is already available is made as the basis of analysis for understanding the essence of Judicial Activism and Judicial
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Traditionally, judicial process entails that while the function of the legislature is to enact laws and the executive’s is to implement them, the judiciary’s function is to only to interpret them. In doing so, the Judiciary is sometimes required to play an assertive and active role in case of disputes and interpretation of fundamental rights and to play a larger role in ‘rule-making’ than is required of them. How the US and the Indian judiciary interpreted this power and the debate regarding ‘law making’ by the unelected guardians of the Constitution (the Judiciary) and the elected representatives of the people (the Legislature) shall be examined in this
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