Role Of Judiciary Research Articles

Legal Reasoning in a Slave Society (Brazil, 1860–88)

AbstractThis article analyses arguments used in an 1866 Brazilian freedom suit to highlight a substantive legal perspective. Historians of Brazilian slavery law have given attention to the politics of freedom suits, largely disregarding the role of law in their origins, developments, and outcomes. By looking at legal arguments, we show how law and political views mutually framed each other. We focus on the impact of 19th century legal modernizations in the distinction and contradictions between the law of status and property law, the legal translations of freedom, and the uses of arguments based on codes, natural law, and pragmatic considerations about the judiciary's role in a slave society. This is a micro-history of a suit that, with the help of other 19th-century freedom suits and legal doctrine, allows us to move up and down different historical scales to understand law's centrality in the political perpetuation and demise of slavery in Brazil.

JUDICIAL ACTIVISM – AN ASSET TO JUDICIARY BY INDIAN CONSTITUTION

Constitution means the structure of a body, organism or organization i.e. what constitutes it or of what it consists of. Constitution of a country spells out the basic fundamental principles or established precedents on which the state is organized. It lays down the structure of the political system under which its people are to be governed. It establishes the main organs of the State-the legislature, the executive and the judiciary, demarcates their responsibilities and regulates their relationships with each other and with the people. All authority in the hands of any organs, institutions or functionaries of the state flow from the Constitution. In a country like ours, adopting a written Constitution which mandates Judicial Review of the constitutionality of State activity in cases needing it and the laws enacted by legislature, the role of Judiciary cannot be restricted to the primitive function of dispensing justice. The role of judiciary in enforcing judicial review, must for all purposes keep the Government in good tune with the changing times and it should not be allowed to drift to become anachronistic or out of reasoning with the need of the day.

Meghalaya Transfer of Land (Regulation) Act, 1971 : A Critical Analysis

Meghalaya is the state comprises of different tribes mainly Khasi and Garos. Culturally they are different. Land transfer in the State is governed by the Meghalaya Transfer ofLand(Regulation)Act,1971,which has been amended in 2010. The objective of the Act is to protect the interest of tribals. By the amendment word 'will' has been included in the detention of Transfer that created confusion .Although,the court has said that the 'will' should not be included in the definition of transfer but still it is there. In this paper the analysis of the Act of 1971 has been done. How far the SARFAESI Act,2002 is relevant here has been discussed. And also,the role of judiciary has been highlighted

Role of Judiciary In Protecting & Promoting The Environment

Role of Judiciary In Protecting & Promoting The Environment

A Survey of the Role of Judiciary in Validating Military and Authoritarian Regimes in Pakistan

Pakistan has faced manifold crises in its seventy years history. But the most fatal of all crises it faced is the failure democratic institutions and the Martial law regimes. At an early phase this country remained under the sway of authoritarian ruler and military dictators. Due to different internal and external factors the military gradually got strong hold of politics in the due course of time. This study aims at sorting out factors behind the failure of civilian rule over time and deepening role of military in politics. Also, a very important research question is answered – why the Judiciary failed to play the role of a true third pillar? It also aims at sorting out the role played by judiciary in validating different unconstitutional, authoritative and emergency acts under the maxim of, the so called “doctrine of necessity”.

The Constitutional Court Ruling against Child Marriages in Zimbabwe: A Landmark Decision for Advancing the Rights of the Girl Child

On the 20th of January 2016, the Constitutional Court of Zimbabwe went a step ahead to protect children's rights by banning child marriages and other harmful practices that are detrimental to childhood. The ruling comes at an opportune time to denounce the inadequacy of marriage laws, and to ban all archaic practices responsible for an upsurge in child brides. This is undeniably a groundbreaking ruling in the eyes of diverse actors who for long have been battling it out against the upsurge and impact of child marriages. This article goes beyond acknowledgement of the ruling to commend the judiciary's role in ending harmful practices, and to decipher post-ruling strategies to end child marriages. Amongst other efforts, the legislature is urged to expedite harmonisation and alignment of marriage laws to the 2013 Constitution, and other international best practices as well as implementation of innovative and multi-sectoral approaches in tackling child marriages. The paper advocates for litigation in lower courts, as well as widespread awareness campaigns at all levels of society to rethink attitudes, beliefs and practices which are inconsistent with best practices in child protection.

Role Of Judiciary For Maintaining The Standards Of Public Order And Morality

In the constitution of India the state authorities have been allowed to exercise their right for maintaining public order and morality only in emergent situation and in a reasonable manner. For this Art 19(2) of the constitution guarantees fundamental rights to every citizens. Art 19(2) to 6 contain the nature of reasonable restrictions. The has to keep a vigil on the reasonability of restrictions imposed by the state in exercise of its power to maintain public order and morality. The criminal procedure code also contain certain provisions where the executive magistrate can take preventive actions in the event of likely hood of breach of peace under Sec 144,145 Cr.p.c. In maintaining law and order the state agencies has extra ordinary powers and if these powers are exercised unreasonably there is a great danger to freedom and liberties of citizen. The fundamental human rights are of highest value and should be exercised not to adversely effect to general public and social interest. There should be a balance to maintain between fundamental rights and interest of society on one hand and the rights and interests of individual on the other side. Care should be taken for exercising the public morality but no private morality can be imposed.

Heightening Political Awareness, Legal Education and Judicial Independence for Sustainable Democracy

This work discusses the continuous relevance of legal education in Nigeria viewed against the background of the need to establish rule of law on the wake of return to democratic rule in the country after long years of military intervention in Nigerian politics and governance. The work discusses the history and importance of legal education in Nigeria; the role of judiciary in governance among others, and concluded that an independent judiciary paves way for just and fearless dispensation of justice which in the end help to sustain democratic governance.

Role of Judiciary to social Justice in Guwahati city: a social geographic analysis

The prevalence of social justice is very high among the affluent sections of the society. It is also necessary where the violation of constitutional or legal rights of a large number of people including the poor, ignorant or socially or economically disadvantaged takes place. Further, due to legislative insecurity and lack of appropriate action taken by the administration or authorities in time, people suffer from social justice in a variety ways and at the same time the people of all ladders, i.e. from the higher to the bottom socio-economic levels cannot fight equally for social justice, when such an occasion arises. Here arises the need to protect the people for social justice and therefore, the role of judiciary is highly crucial for delivering justice to the deprived. Thus, law is the vehicle of social justice and judiciary being the guardian of social justice, executive being the distribution of social justice, legislative shall be for social legislations, the executive and the judiciary together can make untiring efforts for providing the underprivileged and poor for securing social justice in time. In this paper an attempt has been made to throw light on the role of judiciary in access to social justice in Guwahati city, as the state administration as well as judiciary has completely failed to ensure to this group of people in the city of Guwahati both spatially and socially. The paper has been done on the basis of both primary and secondary data.

Sharpening the Theoretical Principles for Responding to Environmental Conflicts Possible Legal Recommendations for Promoting the Judicial Activism in the Issues Relating to Sustainable Development in Sri Lanka

The inherent value of the principle of sustainable development is predicated on the practical implementation, which extends beyond its normative character. Despite the fact that, environmental soft-law instruments which enriched the values of sustainable development have imposed specific obligations on state parties for pursing their national commitments, the task of adopting international accords into domestic enforcements still remains in an unsatisfactory position in the eyes of the law. In Sri Lanka, although a wide range of legislative enactments and national strategies have been formulated concerning the sustainable development, the existing framework has failed to eliminate the major confronted challenges on sustainability: such as illegal mining, illegal exporting of endangered species, environmental issues related with major development projects, deforestation for human settlements, unauthorised capturing and illegal possessing of wildlife, impact of micro hydroelectric power plants on ecosystems, conversion of paddy lands for constructions. As per the findings of the study, it is obvious that, the legal inadequacies embodied with this area; especially, non-recognition of the right to a healthy environment, as a fundamental right, restrictions on locus standi, deficiencies in the EIA process and controversial statutory provisions negatively impacts on the environmental litigation process. On the other hand, inaccessibility to environmental justice process, the lack of awareness, political influence on the decision-making process, performance deficiency in enforcement agencies are the highlighted practical obstructions for achieving the task of explicating the sustainable development. Therefore, in order to eliminate the aforesaid gaps and shortcomings in the existing framework, importantly, the creative role of the judiciary via strengthening the public interest litigations, public trust doctrine, social justice approach and purposive approach in statutory interpretation is highly appreciated in achieving the aspirations of sustainable development to vindicate the environmental justice in national level. The main objective of this research is to examine the role of the judiciary in promoting the principle of sustainable development in Sri Lanka, in the light of the judicial activism in selected South Asian countries: namely, India, Pakistan and Bangladesh. This is a qualitative research, mainly carried out by the reference of secondary data. Keywords: Sustainable development, Judiciary role, Public interest litigation

A Dignidade Humana e a Eficácia dos Direitos Fundamentais Sociais

O presente trabalho se insere no Programa de pós-graduação stricto sensu – Mestrado em Direito, na área de concentração de direitos fundamentais, no contexto da produção do Grupo de pesquisa em direitos sociais, da Universidade do Oeste de Santa Catarina (UNOESC), sob a condução do primeiro coautor, com a colaboração dos demais coautores. O princípio da dignidade humana foi incluído no rol dos fundamentos da República Federativa do Brasil pela Constituição Federal de 1988, logo no primeiro artigo, abrindo o texto formal. A evolução paulatina do conceito, ao longo dos tempos ainda é objeto dessa pesquisa e volta-se ao conceito e sua aplicação como princípio norteador do Estado de Direito, tema, portanto, ainda, irrigado de controvérsias as mais diversas entre filósofos, antropólogos e juristas, sujeito às distintas abordagens interpretativas, e, por conseguinte, também distintas aplicação e efetivação. Nesse particular, com o objetivo de fornecer melhores condições de vida à população, os direitos fundamentais civis e principalmente os direitos sociais amparados pelo principio da dignidade humana, se submetem a debate contínuo acerca de sua efetividade. Os óbices à efetivação se situam no campo da normatividade e da necessária atividade interpretativa; do baixo teor de aprofundamento constitucional dos destinatários dos direitos sociais e da resistência dos Poderes constituídos, primeiro ao se omitirem, depois ao resistirem à atuação do Judiciário em garantir políticas públicas. Por fim tem-se que os tribunais superiores, notadamente o STF e o STJ consolidaram o emprego da dignidade humana como argumento de justificação das decisões concessivas de direitos sociais.

Balancing of competing rights through sustainable development: role of Indian judiciary

Sustainable development underlines strong bias for economic development and essentially promotes an idea that professes salvation by technology. Careful research has already revealed that this prophesy stands on a shaky and uncertain ground. The institutionalisation of the concept of sustainable development has been employed to forge a balance between the need to live within ecological limits and the agenda of progress. The Apex Court cemented the concept into a right framework by reading it as part of ‘right to life’ under the Constitution. This article, therefore, explores the role of judiciary, particularly in balancing competing rights between development and environment while using sustainable development as principal decisive factor. This article explores the juridification of ‘sustainable development’ in the Indian legal landscape. Further, it attempts to identify judicial intervention in different phases from introducing the concept to further cementing it in the fabric of environmental jurisprudence in order to draw a balance between development and environment. In conclusion, it enjoins immense trust on the judiciary in balancing the competing interest by progressive application of the concept of sustainable development in the backdrop of new-age environmental challenges.

Judicial Diversity After Shelby County v. Holder

In 2014, voters in ten of the fifteen states previously covered by the Voting Rights Act ("VRA") preclearance formula-including six of the nine states covered in their entirety-will go to the polls to elect or retain state supreme court justices. Yet despite the endemic underrepresentation of minorities on state benches and the judiciary's traditional role in fighting discrimination, scholars have seemingly paid little attention to how Shelby County v. Holder's suspension of the coverage formula in section 4(b) has left racial minorities vulnerable to retrogressive changes to judicial-election laws. The first election year following Shelby County thus provides a compelling opportunity to assess the VRA's ongoing role in the fight to diversify state benches.

Climate change: Reformative role of Judiciary

The role of judiciary in devising and directing the implementation of the policies made by the legislative organ of the State is abundantly evident in contemporary issues. The concepts such as the judicial activism and public interest litigations have remarkably shaped the potentiality of judiciary in performing corrective justice role in the society. The environmental issues encountered by the judiciary are outstanding and the reform followed by this judicial scrutiny is immense. The judiciary can render a clear and cogent direction that offers a potential model to ensure compliance of the environmental laws. The Court can also contribute a lot for the State to deploy of a adequate means to exercise best possible efforts to avoid environment threats and minimize the risk of damage. Under the context of the rejuvenating environmental role of the judiciary, the present paper is an attempt to trace out the sensitiveness of the judicial intervention for the climate change. This paper argues that the judiciary role on climate change, in addition to its conservative constitutional role, could reshape positively the existing reformative and preventive environmental approaches of the State by sensitizing State machineries on climate change issues.

Role of judiciary in the effective implementation of domestic violence act, 2005

Role of judiciary in the effective implementation of domestic violence act, 2005

Of politics, self-preservation, and symbolism: An investigation of jurisdiction-stripping and legislative redistricting

Jurisdiction-stripping has long been a questionable component of Congress's power to supervise the judiciary's policymaking role. It has gained notoriety in recent debates surrounding judicial involvement in areas including religious establishment and privacy issues such as abortion and same-sex marriage. Most scholarship equates the advocacy of jurisdiction-stripping measures with symbolic position-taking that is unmotivated by the goal of traditional policy success. This work, a quantitative case study of the first such measure to pass the House of Representative since Reconstruction, seeks to isolate legislative motivations for exerting jurisdictional controls against the Supreme Court. Legislators’ votes on this measure were multifaceted. While those decisions were guided in part by the symbolic and representational considerations that traditionally underlie the advocacy of such legislation, there is also evidence more substantive motivations played a part. The study highlights the evolving objectives of jurisdiction-stripping's advocates and, more broadly, Congress's objectives vis-à-vis the courts.

Environment and Water Issues in Pakistan

Pakistan is divided into three major geographic areas: the northern highlands; the Indus River plain, with two major subdivisions corresponding roughly to the provinces of Punjab and Sindh; and the Baluchistan Plateau , it is blessed with immense gifts of God, four weathers, one out of seven of the largest mangrove eco systems in the world in the Indus, freshwater blind dolphins in the Indus, cholistan and tharparkar (deserts), second highest mountain K-2 in the world and whose outstanding heritage sites having cultural or natural importance to the common heritage of the humanity have also been listed by the United Nations Educational, Scientific and Cultural Organization (UNESCO) on its world heritage sites, which are Archaeological Ruins at Mohenjo-Daro, Buddhist Ruins of Takht-i-Bahi and Neighboring City Remains at Sahr-i-Bahlol, and Taxila, Lahore Fort, Rohtas Fort and Shalamar Gardens and Historical Monuments at Makli. Irrespective of all these rewards due to un-planned way of life our eco system is deteriorating in every sphere of life, ours water is going to be contaminated, air is polluted, food is un-hygienic, health care declined vigor than to cure, tourist sites are unsupervised and have become addict dens. These problems need to be addressed on war basis as to keep water clean and pure is equally important for maintenance of eco cycle; however I am here to discuss only one aspect damaging our environment; i.e. water pollution, its root causes, relevant laws, role of Judiciary in prevention and cure.

Special Economic Zones - Economic Panacea or Legal Nightmare? A Discussion on Elements of Public Law in SEZs.

SEZs. Chinese model of economic enclaves. Governed by SEZ act of 2005. Land acquisition by State significant feature. Nandigram incident has thrown certain issues into relief. Elements of Public Law in SEZ controversy - Constitutional and Judicial interpretation thereof: Right to Property, Doctrine of Eminent Domain, Concept of Public Purpose, Judicial Review, Competing Interest. Role of judiciary in resolution.

The Impact of Bureaucratic Structures of the Regulatory Authorities on Diffusion of Telecommunication Technology: A Cross-National Analysis of the Regulatory Governance and its Impact on VoIP Regulation

The Impact of Bureaucratic Structures of the Regulatory Authorities on Diffusion of Telecommunication Technology: A Cross-National Analysis of the Regulatory Governance and its Impact on VoIP Regulation

Sustainable Development and Indian Judiciary

The main motto of the Stockholm Conference was to meets the needs of the present without compromising the ability of future generations to meet their own needs and after that be a part of the conference, Indian Judiciary have taken various steps to incorporate various treaties of the Conference to be binding through various leading cases on its subordinate court of law but sometimes we found that Indian Judiciary did not fulfill their goal. In this paper, I am being somehow critical about the role of the Indian Judiciary and also discuss about the role of Judiciary maintaining Sustainable Development.