held that since the validation of the Prime Minister’s election was not applying any law, therefore it offended the Rule of Law . According to Mathew, J. Clause (4) of Article 329-A offended the Rule of Law which postulates the pervasiveness of the spirirt of law throughout the whole range of government in the sense of excluding arbitrary official action in any sphere . Referring to the same constitutional provision, Beg, J. observed that the jurisdiction of the Supreme Court to try a case on merits cannot be taken away without injury to the basic postulates of the Rule of Law and of Justice within a politically democratic constitutional structure. A study of keshavnand, Indira Gandhi, and other habeas corpus cases, “provides a distillation of judicial thought on the conception of the Rule of Law, which has evolved well over a quarter century.
The legislative branch makes the laws, the judicial branch interprets the laws, and the executive branch enforces the laws. The Supreme Court of the United States falls under the judicial branch of government. The role of the Supreme Court is to practice judicial review by deciding whether the laws in question are constitutional or not. In the case of Obergefell v. Hodges the Supreme Court did more than just interpret the law and decide if it is constitutional, the justices of this case took the duties of the legislative branch by adding their own views and establishing law. The unelected Supreme Court justices did not find anywhere in the Constitution that established marriage as a fundamental right that needed protection.
MODERN NATURAL PHILOSPHERS 1) Lon .N. Fuller: He was a great legal philosopher, who criticized legal positivism and appreciated a secular and procedural form of natural law theory. He does not said that the principles of the legal system should adhere to the rules of morality or such any other standard. According to him morality can be broadly classified into A) Substantive morality (ii) procedural morality. He believes that law is essentially subject to a procedural morality.
It is not a case of (sometimes criticised, sometimes admired) dynamic interpretation since the judgment did not even attempt to reason out the fine distinctions and nuances concerning “fair dealing”, “fair use” and “enumerated exceptions”. The judgment, in fact, went beyond the realms of extant jurisprudential understanding without even discussing them especially when precedents are binding in a common law jurisdiction like India. Of course, the judiciary in India is free to take an altogether different path in jurisprudence and interpretation. But it should be mandatorily based on reason. Reason pervades the Indian polity, thanks to Constitutionalism and Rule of Law.
The holdings and collective rationale of Courts can be studied only in retrospect, and not by anticipatory analysis of any sort. However, it can be argued that one may validate this premise by the virtue of applied logic alone, as follows: first, that federal judges do, at this moment, maintain a schematic of strict life tenure granted to them by the Constitution. Second, that the actions of federal judges in the context of these executive orders were at conflict with the intentions of the executive. Third, that these actions by the judiciary – irrespective of personal political belief and assured by rigorous congressional scrutiny upon the judicial appointments of its officers – resulted from the courts interpreting the Constitution to the best of their respective wisdom and legal
In this case it shows that even if something is found to be offensive or an act that not everybody agrees with does not be it can be prohibited by anyone, including the national government. Finally, the last Supreme Court case I will provide is Tinker v. Des Moines (1969). This court case I find crucial to me personally because it shows that no matter what your age, social standing, or political affiliations you cannot be ordered to repress your personal beliefs if they are not hurting anybody. Court cases such as these would not have the same outcome if it was the state fighting against the national
Raj Narain held that Judicial evaluate in election disputes became not a compulsion as it is not a part of simple structure. In S.P. Sampath Kumar v. Union of India , P.N. Bhagwati, C.J., relying on Minerva turbines Ltd. declared that it turned into nicely settled that judicial evaluation become a basic and vital feature of the Constitution. If the electricity of judicial review turned into certainly taken away, the constitution could cease to be what it changed into.
The basis of modern democracy promotion is the concept of Democratic Peace, which states that two democracies will never go to war with each other due to existing freedoms and civil rights. Therefore, many efforts, especially by the United States, to resolve conflicts in instable regions like the Middle East take the form of trying to establish democratic institutions. However, this promotion is not functioning as it is envisaged to do, and is leading to an overall loss of freedom. This essay argues that while the Middle East could be compatible with a variant of democracy, the promotion through other states is not leading and cannot lead to less war. This will be done by first explaining the concept of Democratic Peace further and examining
Although the President is at liberty for granting or rejecting the petition on advice of the Council of Minister, but this should not be seen as being obliged to defer to the advice of the Council of Ministers. But in a case where there is an unreasonable delay on the part of the council of ministers in arriving at the decision, the President should make prudent use of his power and dispose of the petition. However the indefinite delay in a decision regarding a mercy petition is undesirable as it casts a bad light on the constitutional power of executive clemency bestowed on the President. Proposing a Mature and Self-Restraining Model of Judicial Review As discussed earlier there can be certain instances of arbitrary use of the power of Executive Clemency bestowed on the president by the virtue of Article 72. Hence, a mechanism of review to check that this power is not exercised in a mercurial manner is essential.
It seems no longer appropriate to create new rights and remedies simply because the justice of the case requires it. Any new rules must be shown to have evolved from accepted foundations. So, equity has not past the age of childbearing, but it is sure that “its progeny must be legitimate—by precedent out of principle”. This aspect is well showed by Lord Denning’s essay “The need of a new equity”. Lord Denning started his reflection on Equity’s role with the examination of the relation between law and society: when the rules are given the force of law, they must be obeyed because they are law and not because people accept and agree with the reasons on which they are founded.