The Tools And Techniques Of Judicial Creativity And Precedent
Since judicial interpretation always involves some degree of law making, the creative character of judicial function and the degree of creativity depends on the most activist and dynamic nature of the judge. Blazedtv 6.0 keygen. Ahmad Khan V. Shah Bano Begum AIR 1985 SC 945) is an example of the tools and techniques of judicial creativity and precedent, in which it is interpreted that every woman has right to live with human dignity, irrespective of her cast.
Etymologically speaking judicial activism is the progressive judicial thinking wherein the court involves in developing a creative thought process to display the pulsating initiative of the judiciary which represents its active role in promoting justice. The expression judicial activism has eluded a precise definition as it mean different things to different people. It might mean dynamism to the Judges, judicial creativity to some, judicial legislations to some others, while there may be some who view it as a tool for social engineering. In simple words it can be said that it is an active role on the part of the judiciary to implement the provisions contain in Part III of the Constitution. The Hon’ble Supreme Court of India in many of its landmark judgments [1] held that judicial activism is the active process of implementation of the rule of law, essential for the preservation of a functional democracy and justice to individual or group of individuals or to the society in general is ensured through the active role of judiciary. According to Justice P.N.Bhagwati judicial activism is: “The Indian judiciary has adopted an activist goal oriented approach in the matter of interpretation of fundamental rights. The judiciary has expanded the frontiers of fundamental rights and the process rewritten some part of the Constitution through a variety of techniques of judicial activism.
But in that effort, creativity is essential. In 'State of Gujarat v.
Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.:' Consumer Product Safety Commission et al. GTE Sylvania, Inc. Et al.,447 U.S. '[I]n interpreting a statute a court should always turn to one cardinal canon before all others..[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.'
He had further opined that constitutional provisions which 'have a content and a significance that vary from age to age'. Benjamin Cardozo, opined that.
Has described the Blackstone's principle of finding the law as 'the childish fiction'. Chief Justice K. Subba Rao in L. Golak Nath v.
The Tools And Techniques Of Judicial Creativity And Precedent In India
[7] The expanding role of judiciary in law making in recent times has major reasons such as growth of parliamentary system and statutory intervention in the expansion of legislation has brought about a parallel expansion of judge-made law. The scope of judicial law making in the name of judicial activism paved way towards the growth of active judicial role in declaring fundamental rights through constitutional interpretation that greatly entrenched the potential creativity of judges. This can be better understood by analyzing certain vital factors like degree of creativity, the modes, limits and legitimacy of law making through courts. By reason of judicial activism, much good or harm could be brought about by the Judges by resorting to innovative interpretation. Since judicial interpretation always involves some degree of law making, the creative character of judicial function and the degree of creativity depends on the most activist and dynamic nature of the judge.
The Court must take care to see that it does not overstep the limits of its judicial function and trespass into areas which are reserved to the Executive and the Legislature by the Constitution. It is a fascinating exercise for the Court to deal with public interest litigation because it is a new jurisprudence which the Court is evolving a jurisprudence which demands judicial statesmanship and high creative ability. In 'State of Bihar v. Bal Mukund Sah', AIR 2000 SUPREME COURT 1296, the Supreme Court has emphasized its creative role in achieving the goal of socio-economic justice. The judiciary has, therefore, a socio-economic destination and a creative function. It has to use the words of G. Austin, to become an arm of the socio-economic revolution and perform an active role calculated to bring social justice within the reach of the common man.
[1] As quoted in 'S. President of India', AIR 1982 S C 149.
Indeed, the latter involves the process, while the former expresses result. Interpretation, ascertainment and evolution, are parts of the process, while that interpreted, ascertained or evolved is declared as law. The law declared by the Supreme Court is the law of the land. To deny this power to the Supreme Court on the basis of some outmoded theory that the Court only finds law but does not make it, is to make ineffective the powerful instrument of justice placed in the hands of the highest judiciary of this country. I would, therefore, plead for a more active and creative role for the Courts in declaring what the law is.
Uttarakhand Jan Morcha', AIR 1999 SUPREME COURT 2193, the Supreme Court has imposed restriction on Judicial creativity saying that, no doubt, role of the judiciary has been expanded to newer dimensions in recent past, but that is no justification for using judicial power for imposing such unbearable burden on the State which in turn would be compelled to extract money out of common man's coffers to meet such massive financial burden. Suffice it to say that the above direction issued by the High Court cannot stand judicial scrutiny and it is hereby set aside. Often a question arose for discussion that – Whether the judges are as competent as the legislators to meet out the needs, requirements and aspirations of the people? Judges have limited scope in law making. In this respect, three things need to be kept in mind.
By doing so, the Courts do recognize their subordinate position and their obligation to help the legislature to achieve its purpose. But in that effort, creativity is essential.
It has to use the words of G. Austin, to become an arm of the socio-economic revolution and perform an active role calculated to bring social justice within the reach of the common man.
Articles 141 and 142 to point out that they are couched in such wide and elastic terms as to enable the Supreme Court to formulate legal doctrines to meet the ends of justice. The only limitation therein is reason, restraint and injustice.
Therefore, Article 21 is as much relevant at the stage of execution of the death sentence as it is in the interregnum between the imposition of that sentence and its execution. The essence of the matter is that all procedure no matter the stage, must be fair, just and reasonable.'
Abu Kavur Bai', AIR 1984 SUPREME COURT 326, it was held that On a careful consideration of the legal and historical aspects of the directive principles and the fundamental rights, there appears to be complete unanimity of judicial opinion of the various decisions of the Supreme Court on the point that although the directive principles are not enforceable yet the Court should make a real attempt at harmonizing and reconciling the directive principles and the fundamental rights. Reading fundamental rights in the Directive Principles is a technique of judicial creativity. For the first time the right to know about the candidate standing for election has been brought within the sweep of Art. 19(1)(a) by the Supreme Court through its creative interpretation. The Apex Court in 'Peoples Union for Civil Liberties (PUCL) v. Union of India', AIR 2003 SUPREME COURT 2363, has held that Voter's right to know about the antecedents of the candidate contesting for the election falls within the realm of freedom of speech and expression guaranteed by Art.
In order to understand the increasing weakening circumstance of judicial precedents in India it will be better to understand the meaning and concept of judicial precedent prevailing in the c ountry. Again the same way. The method adopted in any problem solving exercise is to find out if a similar problem has been tackled before. If yes, then the next step is to find out the degrees of similarity that exists between the problems. If the similarities are found to be significant then next it needs to be analyzed whether the same principle that was applied to the previously solved problem can be applied successfully to solve the problem at hand. This way the precedent works as an effective guide to solve new problems having similarity with the earlier one. This helps in achieving consistency and certainty in legal matters.
Acosta (2002) 29 Cal.4th 105, 112 [124 Cal.Rptr.2d 435, 52 P.3d 624].)' Alford v. Superior Court (People) (2003) 29 Cal.4th 1033, 1040 •: 'As in all statutory construction cases, we begin with the language of the statute. The first step is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.' 438, 450 (2002) '[U]nless otherwise defined, statutory words will be interpreted as taking their ordinary, contemporary, common meaning.' United States v. Piervinanzi, 23 F.3d 670, 677 (2d Cir.
This court is very hesitant to interpret a legislative act in a manner contrary to its express language, unless it is clear that a drafting error or omission has circumvented legislative intent.' Farrell, 365 Ark. 465, 231 S.W.3d 619. Far cry 4 game profile.xml. (2006) •: 'The principal command of statutory construction is that the court should determine and effectuate the intent of the legislature using the plain language of the statute as the primary indicator of legislative intent.' Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994) 'The words of a statute..
541, 542 (1929). •: 'In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage.' BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996); •: 'When reviewing issues of statutory interpretation, we keep in mind that the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. When a statute is clear, however, it is given its plain meaning, and this court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used.