Judges Role to Interpret Flashcards
Relevant Doctrine
Judicis est jus dicere non-dare
It is the judge’s role to state the law, not to give it
What is the declaratory theory
- Propounded by Hale and Blackstone and supported by Dr Carten
- According to this theory, “No law is created by the Judge”
- Courts of justice have a duty to ascertain and declare what laws are and not to make law (Judicis est jus dicere non-dare
- Judges only discover existing laws. Their interpretation may give new shape to existing law
- The effect of the decision is retrospective. They declare not what the law is but what it always has been.
Case regarding Declaratory theory
Union Of India v. Deoki Nandan Agarwal
The power to legislate has not been conferred on the courts. Courts cannot add words to a statute or read words into it which are not there.
Which article deals with separation of powers
Article 50 of the Constitution provides for the separation of the judiciary from the executive. The state is tasked with taking steps to separate the two.
Which case held that separation of powers is a part of the basic structure
Raj Narain v. Indira Gandhi
P. Ramachandra Rao v. State of Karnataka [Make notes]
Legislative Theory [Judicial Activism]
- Supported by Jeremy Bentham
- According to this theory judges not only declare law but also make them
- Judges are not lawmakers but they can make law in a strictly limited manner
- Lawmaking power is limited to the cases before a judge, they cannot overrule statute
Forms of judicial activism practices in India
Judicial Review, PIL, Judicial legislation, Creating interpretation and drafting
Judicial Overreach
Judicial activism when the court goes beyond all reasonable limits. Judicial overreach happens when the court intrudes into the domain of the legislature.
- Against separation of power
- Against rule of law
Solution to judicial overreach
(stupid question) judicial restraint
