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Question
Answer the question.
Distinguish between judicial activism and judicial restraint.
Solution
Judicial activism and judicial restraint are two opposing approaches. It is related to the judicial system of a country and it is a means to check against the misuse of a power of government or any constitutional body. The difference between the two is as follows;
Judicial activism refers to the interpretation of the Constitution to support current values and conditions. Conversely, judicial restraint delimits the powers of the judges to strike down a law.
In judicial restraint, the court should support every action of the Congress and the state legislatures unless it is found to be violating the Constitution of the country. In judicial restraint, the courts usually submit to interpretations of the Constitution by the Congress or any other constitutional body. In the case of judicial activism, the judges have the power to amend any injustice specifically when the other constitutional bodies do not act. Hence, judicial activism has a major role in formulating social policies pertaining to issues, such as protection of rights of an individual, public morality, civil rights, and political unfairness.
Judicial restraint and judicial activism have different objectives. Judicial restraint helps to maintain a balance among the three organs of government, viz., judiciary, executive and legislative. The judges and the court are encouraged to review a current law instead of modifying it. Judicial activism gives them the power to overrule some previous acts or judgments. For example, the Supreme Court or an appellate court has the power to reverse previously taken decisions if they were found to be faulty.
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The following is a statement about Ecuador. What similarities or differences do you find between this example and the judicial system in India?
“It would be helpful if a body of common law, or judicial precedent, existed that could clarify a journalist’s rights. Unfortunately, Ecuador’s courts don’t work that way. Judges are not forced to respect the rulings of higher courts in previous cases. Unlike the US, an appellate judge in Ecuador (or elsewhere in South America, for that matter) need not provide a written decision explaining the legal basis of a ruling. A judge may rule one way today and the opposite way, in a similar case, tomorrow, without explaining why.”
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Judicial activism is significant today.
______ implies pro-active approach of the judiciary towards prevailing socio-economic and political apathy in the country.
Give one word/term for the following:
An approach to jurisprudence which believes that the courts can and should go beyond the letter of the law and narrow interpretation to consider broader social implications of their decisions.
