Debating the Indian Supreme Court: Equality, Liberty, and the Rule of Law

2015 ◽  
Vol 13 (3) ◽  
pp. 353-368 ◽  
Author(s):  
Jinee Lokaneeta
Keyword(s):  
Supreme Court ◽  
Due Process ◽  
Political Liberty ◽  
The Rule Of Law ◽  
Criminal Defendant ◽  
Recent Scholarship ◽  
The Supreme Court ◽  
Indian State ◽  
Indian Supreme Court

In this essay, I explore some of the contemporary debates on the role of the Indian Supreme Court in the context of equality and liberty at a moment when it appears that the very reasons for the celebration of judicial review and interventions are under attack by progressive scholars and activists. In reviewing the debates on the role of the Court, I focus on one particular contention that since the realm of social/equality was paramount for the Indian state as a whole, and the Supreme Court post-emergency, the realm of political/liberty was consequently ignored. By revisiting the debate on equality trumping liberty, I acknowledge the critiques of the Court but also point to ways in which certain facets of political liberty do get addressed even in the absence of a focus on liberty. Even if by themselves these judicial interventions may be inadequate to create a due process revolution as far as criminal defendant rights are concerned, they create an “arsenal of tools” available for those concerned with liberty and justice. At the very least, such a conception portrays the Court as less unidimensional than characterized by recent scholarship and retains the Court as a productive site of contestation.

The Role of Courts in Rifted Democracies

1999 ◽  
Vol 33 (2) ◽  
pp. 216-258 ◽  
Author(s):  
Ruth Gavison
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Judicial Review ◽  
Public Life ◽  
The Political ◽  
The Rule Of Law ◽  
Independent Judiciary ◽  
The Supreme Court ◽  
Harsh Criticism

A discussion of the role of courts in Israel today demands some introductory remarks. The Supreme Court and the President of the Supreme Court enjoy great acclaim and respect within Israel and abroad, but have recently come under attack from a variety of sources. These attacks are often confused, and many of them are clearly motivated by narrow partisan interests and an inherent objection to the rule of law and judicial review. But these motives do not necessarily weaken the dangers which the attacks pose to the legitimacy of the courts in general, and the Supreme Court in particular, in Israel's public life. The fact that in some sectors extremely harsh criticism of the court is seen to be an electoral boost, testifies to the serious and dangerous nature of the threat. This situation creates a dilemma for those who want a strong and independent judiciary, believing it is essential for freedom and democracy, but who also believe that, during the last two decades, the courts have transgressed limits they should respect. The dilemma becomes especially acute when the political echo sounds out in one's criticism, and when one is part of the group that believes that the legal and the judicial systems have made some contribution to the prevalence of these hyperbolic and dangerous attacks, as I am.

scholarly journals Rights or Benefits? The Indian Supreme Court and Criminal Procedure

2019 ◽  
Vol 6 (1) ◽  
pp. 12-20
Author(s):  
Abhinav Sekhri
Keyword(s):  
Supreme Court ◽  
Due Process ◽  
Criminal Procedure ◽  
Criminal Process ◽  
The Supreme Court ◽  
Scant Attention ◽  
Indian Law ◽  
Indian Supreme Court ◽  
The Right ◽  
Procedural Rights

This article suggests that the recent decisions by the Indian Supreme Court in Mohan Lal v. State of Punjab, and Varinder Kumar v. State of H.P., are perhaps indicative of a more pervasive trend that stretches back to the dawn of the due process era in Indian law. This trend is one where the Supreme Court is confronted with systemic issues in the criminal process while dealing with petitions brought by singularly oppressed litigants, and it treats the litigation itself as a means to solve the perceived problem. The tool to solve these problem in the criminal process is the creation of new criminal procedure rights through the vehicle of Article 21. In its reformist zeal, scant attention is paid to the several important questions of scope and consequential remedy that are inherent to any notion of rights. Over time though, the Court seems to realise that hard cases make bad law. And when cases involving seemingly undeserving litigants start invoking those procedural rights, the Court signals a retreat and transforms the ‘right’ into a ‘benefit’, that it can dole out in only the most deserving cases. This is not a definitive study, but only offers a different perspective to examine the Supreme Court’s contribution to the field of criminal procedure.

Text and Textualism

2021 ◽  
pp. 17-34
Author(s):  
George Thomas
Keyword(s):  
Supreme Court ◽  
Due Process ◽  
Fourteenth Amendment ◽  
Bill Of Rights ◽  
The Supreme Court

This chapter focuses on Justice Hugo Black, the most prominent modern advocate of constitutional textualism to sit on the Supreme Court, revealing the unwritten understandings that drive Black’s textualist jurisprudence. Justice Black was most famous for advocating that the Fourteenth Amendment applied to the Bill of Rights to the states. Black argued that the liberty protected by the due process clause included, and only included, rights enumerated in the Bill of Rights. Black was famous for his constitutional literalism, pointing to his pocket Constitution to ask where a right like “privacy” was found in the Constitution. Yet Black’s own interpretation relied on his desire to cabin and limit judicial will much more than on constitutional text. It was Black’s understanding of the role of the judiciary in a democracy—and not constitutional text—that drove his jurisprudence of incorporation.

scholarly journals The role of interpretation of the law in the mechanism of bridging gaps in the law

2020 ◽  
pp. 107-112
Author(s):  
Yu. I. Matat
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Legal Regulation ◽  
Regulation Mechanism ◽  
Legal Cases ◽  
The Rule Of Law ◽  
Legal Norms ◽  
The Supreme Court ◽  
The Law

The article is devoted to the study of the legal nature of the interpretation of law, its features, as well as the role in overcoming gaps in the law. Attention is focused and substantiated that the interpretation of legal norms, being a necessary element of the legal regulation mechanism, plays the important role in the process of overcoming gaps in law. So, by means of various methods of interpretation, in particular, formal gaps are overcome, which, in turn, may arise as a result of an unsuccessful presentation of legal norms by the legislator. It is determined that when applying the rule of law by analogy, such a rule in the particular situation should be interpreted not as part of the institution from which it is borrowed, but as part of the institution, the gap in which it is designed to overcome. This is due to the fact that the rule applied by analogy is subject to double influence: on the one hand, it generally retains its original meaning, on the other - partially adapts to the characteristics of the institution in which the gap is overcome through it. The role of official interpretation in the process of application of the law in the conditions of gaps in the legislation is clarified, the role of recommendatory explanations provided by higher courts on the issues of application of the legislation is investigated. In Ukraine, these powers, in accordance with the Law of Ukraine "On the Judicial System and the Status of Judges" dated June 02, 2016, are assigned to the Plenum of the Supreme Court, in order to ensure the same application of the rules of law in solving certain categories of cases, generalizes the practice of applying substantive and procedural laws, systematizes and ensures the promulgation legal positions of the Supreme Court, as well as based on the results of the analysis of judicial statistics and generalization of judicial practice, it provides explanations of the recommendatory nature on the application of legislation in solving court cases. It is concluded that the importance of the interpretation of law is primarily to ensure full and accurate disclosure of the functions of legal acts as a source and form of existence of legal norms, other substantive elements of the legal system. The interpretation concretizes the law, which allows law enforcement agencies to ensure the resolution of legal cases in strict accordance with the constitutional principles of legal certainty, legality and the rule of law.

Back to Lotus? A Recent Decision by the Supreme Court of India on an Incident of Navigation in the Contiguous Zone

2014 ◽  
Vol 16 (1) ◽  
pp. 106-122
Author(s):  
Gian Maria Farnelli
Keyword(s):  
Supreme Court ◽  
Military Personnel ◽  
Law Of The Sea ◽  
Domestic Court ◽  
Criminal Courts ◽  
Coastal State ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Indian State ◽  
Indian Supreme Court

Abstract This article stems from a recent decision of the Indian Supreme Court concerning whether the criminal courts of the Indian State of Kerala have jurisdiction over two Italian marines accused of killing two Indian fishermen. The analysis is critical of the Court’s reasoning and findings over the two main defences raised by the accused: namely, the lack of jurisdiction of the coastal state on the basis of the law of the sea and in relation to the customary rule on the jurisdictional immunity of military personnel for acts carried out in their line of duty. Finally, this study also critically examines the operational decision of the Indian Supreme Court in providing for the establishment of a specific domestic court deemed competent to entertain its jurisdiction over the cause in view of its international nature.

DEKADENSI PEMILIHAN HAKIM AGUNG OLEH DPR RI

2020 ◽  
Vol 14 (1) ◽  
pp. 73-104
Author(s):  
Rustam Magun Pikahulan
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
House Of Representatives ◽  
Good Governance ◽  
Constitutional Court ◽  
Due Diligence ◽  
The Rule Of Law ◽  
The Supreme Court ◽  
Institutional Status ◽  
The Government

Abstract: The Plato's conception of the rule of law states that good governance is based on good law. The organization also spreads to the world of Supreme Court justices, the election caused a decadence to the institutional status of the House of Representatives as a people's representative in the government whose implementation was not in line with the decision of the Constitutional Court. Based on the decision of the Constitutional Court No.27/PUU-XI/2013 explains that the House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only approve or disapprove candidates for Supreme Court Justices that have been submitted by the Judicial Commission. In addition, the proportion of proposed Supreme Court Justices from the judicial commission to the House of Representatives (DPR) has changed, whereas previously the Judicial Commission had to propose 3 (three) of each vacancy for the Justices, now it is only one of each vacant for Supreme Court Judges. by the Supreme Court. The House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only "approve" or "disagree" the Supreme Judge candidates nominated by the Judicial Commission.

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