The HRA allows a person to defend their rights in a UK court and forces public organisation- including the government to treat everyone with fairness, dignity and respect. It also gives the judges power to read and interpret other laws in a way which should be compatible with the conventional rights. Critics of the Human Rights act suggested that this power of interpretation involves a substantial destruction of the influence of parliament. Joshua Roseburg wrote in an article for the telegraph on the 2nd of October 2000 that the human rights act saw a 'subtle but undeniable shift in power from parliament to the judges.' This new power was put to the test in the case of Simms in 1999.
Therefore, no such law could be enacted. Thus the only possibility of enactment of such law under the constitution is under Article 368 only i.e. by way of a constitutional amendment. However, after the pronouncement of the Supreme Court judgement in Kesavananda Bharti's case, the scope of such amendment has further receded. The doctrine of ‘basic structure’ laid down by the Apex Court in this case, although does not specifically prohibit the amendment of fundamental rights under Article 368 of the constitution, but it puts a specific condition on this power of the constitution.
Judicial review means review by the courts to investigate the constitutional validity of the legislative enactments or executive actions. The power of judicial review in India stands between the American and British practices. The British parliamentary supremacy and the American judicial supremacy are two extremes. The power of judicial review stands the mid way. The power of judiciary to review and determine the validity of a law or an order may be described as the powers of Judicial Review.
Parliament sovereignty in its simplest form means the right to make, change or abolish any law (Haywood ???). Haywood (???) also discusses legal sovereignty as the ‘right’ to command obedience and political sovereignty as the ‘power’ to command obedience. Haywood goes on to discuss internal sovereignty as being the power authority within a given state such as the UK. External sovereignty would relate to the state/UK within the international spectrum and how the state uses its power to influence or be influenced by other states.
Beside customary law, there is also judicial decisions which the decision of high courts in previous cases must be followed by the lower courts in similar cases or situations. Judicial decisions can be obtained from the decision of the superior courts namely as Federal Court, Court of Appeal and High Court. Judicial decisions are divided to two categories which is binding and persuasive. In binding categories, all decisions of high courts bind the lower courts but the High Courts are bound by their own decisions. While in persuasive categories, High Court judges are not bound to follow the decisions of another High Court Judges but can refer to decisions from outside of the Malaysian courts (English Court).
That is, if the CHR is a constitutional commission, then the Supreme Court would have categorically stated that CHR has fiscal autonomy in accordance with Art. IX (A) Sec. 5. But the Supreme Court did not. CHR cannot be a constitutional commission.
It involves the administration of justice through the courts and the interpretation and application of the law enacted by the parliament as well as responsible for the proper function of the rule of law, that the executive acts within the framework of the law with the assistance of the Judicial Review. Blackstone observed that justice can not be administered if the judiciary is not separated in some form from the other two powers. Prior to the Constitutional Reform Act 2005 the appointment of the judges was performed by the Queen. What is more, the judiciary was subject to the socio-economic and educational background, that is, middle aged white male, from a middle or upper class background with Oxford or Cambridge education. After the 2005 Act, the selection of the judges is subject to the Judicial Appointments Commissions.
Holmes in “The Path Of The Law” has taken a pragmatic approach in understanding and evaluating law. Holmes’s arguments had a great impact in the formulation of the American legal realism. With his arguments on eradication of ‘naturals rights’ and ‘morals’ from law, Holmes helped the American legal realism reach where it is now. The Path Of The Law begins by providing reasons as to why people engage lawyers in the first place. One of the reasons being that, in many cases the command of the public force is entrusted with judges, and to enforce its decisions, the whole power of the state would be used.
It is closely related to constitutional interpretation, statutory construction and Separation of power. It is an inscriptive term and has a different meaning for different people. It implies going beyond the normal constraints which are applied to jurists and the constitution and this gives right to jurists to cut off any legislation or rule which goes against the constitution or against the precedent. The clear concept of judicial activism was set forth by Chief Justice P.N.Bhagwati and Professor Upendra Baxi.As an ideology of the judicial process, ‘judicial activism’ implies the “use of the court as an apparatus for intervention over the decisions of policymakers through precedent in case law.” Merriam Websters Dictionary of Law define Judicial activism as "The Practice in the Judiciary of protecting or expanding individual rights through decisions that deport from established precedent or are independent of or in opposition to supposed constitutional or legislative intent".The roots of Judicial activism are to be seen in the court’seasy assertion regarding judicial restraint.In A.K.Gopalan v Madras,although the court conceived its role in a narrow manner. It asserted that its power of judicial review was inherent.Judicial Activism can be positive as well as negative.
State of Karnataka , it was held by the Supreme Court of India that the results of the test cannot be admitted as an evidence even though consented by the accused because there is no conscious control is being exercised by the subject during the course of test but the court left one option that if the subject consented for the test then any material or information discovered that can be admitted under section 27 of the Indian Evidence Act, 1872. Further it was also held that according to section 25 of Evidence Act “Confession made before any police officer are not admissible as evidence before the court.” Thus the court is of the view that the statements made by the subject during custody are not admissible as evidence unless same has to be cross examined or judicially scrutinized. The court further held that too much reliance on results gathered from such scientific tests may lead to the hampering of an accused’s right to fair trial. And though public interest is an important factor to be kept in mind while deciding the relevancy or validity of such scientific techniques, but it cannot violate the provisions given under the constitution protecting the accused from