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Mathew J. in Keshavananda Bharti v. State of Kerala quoted Lord Reid to say,
“.. there was a time when it was almost indecent to suggest that judges make law- they only declare it. But we do not believe in fairly tales anymore and the function of this Court is not only to declare but also to make law that is binding on all the Courts of this Country”
¬The following are to be addressed in the proposition;
1) In an era of judicial lawmaking, should the judiciary still/still not be a State under Article 12 of the Constitution ?
2) Does the Constitution empower the judiciary with the power of law-making?
3)Whether the function of the Supreme Court under Article 141 is Constitutive or Declaratory in nature ?
4) Judicial activism v. judicial restraint.
“To treat constitutional law same as the Constitution would then mean to submit to government by judiciary which is surely not intended in any democratic nation. Such would be utterly inconsistent with the very idea of rule of law.”
The above is Abhraham Lincoln’s criticism of the US Supreme Court decision of Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856). Chandrachud J. in In re Special Court’s Bill termed this decision as the ‘great usurpation of power’ and cautioned the Court.
The following issues are to be addressed in this propostion;
1) What role does the Basic Structure doctrine have in defining the contours of judicial supremacy in India?
2) The legitimacy of the Court as a undemocratic/unelected body making the law.
3) The legitimacy of judicial decisions when the Court introduces/ ‘reads in’ a concept not existent in the Constitution, i.e. ‘due process of law’ in Article 21 despite the framers specifically rejecting this concept.
3) Ancillary issues such as the power of contempt, the Court appointing its own judges, interfering with the working of the parliament/ assemblies etc…
That the Constitutional protection under Article 22 providing every detainee the right to be represented by a lawyer of his/her choice is sacred and held to be the foundation of our legal system. So much so, that the Court has stated that an accused may even be acquitted or a mistrial may be declared if found that he did not have a fair trial. (SD Kohli v. State of Maharashtra, jdg dtd. 18/12/2008 )
That the Advocates Act bars anyone from denying to take up a case on the ground that the accused had actually committed the crime.
That in light of this; Kudos to Anjaji Waghmare for having the courage to represent Ajmal Kasab.
I had earlier written about the Catch-22 situation about providing legal aid to Kasab. While the Shiv Sena has already attacked her house and created a ruckus, there was some deliberation in Court as to whether she would continue with her client. The Court has now provided security to her.
Readers may read Kevin John Heller’s post on “Why I am Advising Radovan Karadzic?” for a possible explanation why lawyers defend known criminals.
The previous post correctly states my view on this subject. However, no critique of an issue would be justified without putting forth the arguments for the other side. In this post, I try to look at the possible justifications at the sanction against conduct levied by non- state actors in what seems to be immoral according to them.
A year ago, when that actress Shilpa Shetty kissed Richard Gere, the Supreme Court stepped in to quash the charges against her. About a week ago, Justice Muralidhar gave a landmark judgment quashing the charges against a couple kissing in public. The law now seems to be becoming more and more clear as to what kind of conduct is morally permissible, an aspect that is laudatory of the Court.
However, leaving the harm principle as dealt with in the last post aside, is it that the Court is only speaking for the ‘socially elite’ in this circumstance while a major portion of the society still thinks women going to pubs is bad and that public display of affection (PDA) should not be permitted. Are we seeing a difference of opinion between the Court and the society as to what constitutes morally permissible behavior ?
A pub going woman would argue that she has a right to do whatever she wants with her life and that neither the state nor the other members of the society should interfere in this right of hers. Quite true and I agree with her.
But she hardly represents 1 % of the Indian woman population and in a country of more than a billion, she’s a minority. What might constitute moral to her and people like us sitting and surfing the net everyday might not be so to the millions at other places.
Counter questions arise; is the idea of morality to be determined by what a majority of the society think to be so ? Whose morality comes into play when we talk of Section 294 of the Indian Penal Code ? To what extent can the Indian public honor the right to privacy ?
About 3 decades ago when the ‘social elite’ longed to read DH lawerence’s ‘Lady Chatterlee’s Lover’, the Court in Ranjit Udeshi v. Union of India, stepped in and declared the banning of the book constitutionally permissible. Then it was representing the will of the majority that thought such conduct to be immoral. The perceptions of morality keep changing in a dynamic society like ours and perhaps the Ram Sene people should understand that too. But a movement to counter it cannot be successful by sending him ‘pink undergarments’ but only by making a serious effort to develop the perceptions of others as to what can be morally right according to our views.
It is a futile attempt for an English medium student living in an urban town like myself to even try to argue for Muthalik and his activities. I wouldn’t either because I think that he is wrong in all aspects. But the point that I am trying to get across is the idea of moral permissibility that is now creating differing opinions with the Court and the social pub going elite on one side and a majority of the Indian population on the other. Apart from Dworkin’s reasoning, what possible could be a justification for such acts when a vast majority think such conduct is bad ?
Leaders met on the 29th to discuss climate change and more importantly what they expect out of the upcoming Conference on Climate Change in Copenhagen, Denmark. Panelists included noted speakers like Al Gore and Thomas L Friedman.
(Video may not be accessible to NALSAR Students)
With the Kyoto Protocol being considered to be a failure and global warming becoming perhaps the biggest threat to planet earth, the leaders are meeting in Copenhagen end of this year to frame a binding convention on climate change. The biggest philip to this comes from the commitment of the Obama Administration to reduction of green house gases and ‘making earth a better place’. Al Gore stated;
time is running out and that a global agreement on tackling climate change is needed this year. “What we most need out of Copenhagen is a clear, shared vision of where the world is going in the future,” Gore said. He added that the new US administration is very serious about the issue and is ready to assume a leadership role. “President Obama is the greenest person [in the White House]. He is pushing hard for a dramatic and bold move in the right direction. If other governments do the same, then we can make the change to a low-carbon future.”
AF Rasmussen, the PM of Denmark stressed that targets, adequate funds and a transparent verification scheme are needed for countries to reach long-term goals. Industrialized countries should reduce their emissions by 80% in 2050, and should help developing countries adapt to climate change through technology transfer and a global fund.