Social change effected by judicial decree. The doctrine that the judicial branch especially the federal courts, may interpret the constitution by deviating from legal precedent as a means of effecting legal and social change.
Judicial activism is a time honored trait of judicial function and to give up that trait is to surrender before these two mightier organs of the state. History bounds in scintillating examples of judicial activism, when the judiciary came face to face with legislative arbitrariness or executive abuses or interference in the due course of legal proceedings.
Before we dwell on the cause and features of judicial activism, let us first understand what it is. A modern democratic state is built on the principle of trichotomy of powers, i.e. the judiciary, executive and legislative have to perform their won designed functions. However, it has been observed that even in developed politics, the functioning of the legislative and executive leave a lot to be desired. Instead of being vigilant and acting is check on executive prosecution, legislative becomes its hand maiden. In addition, it is negligent in enacting laws. To fill the vacuum resulting from this legislative, executive malfunctioning, judiciary has to assert itself by providing relief to the sufferers of tyranny and by interpreting laws, which are either deficient or vague.
Historically, the architect of judicial activism was Chief Justice John Marshal of the United States. In two landmark cases, Marbury versus Madison and Mccullough against Maryland, laid the function of the doctrine of judicial review i.e. the judiciary should have the power to determine whether a law enacted by the legislative or an act done by the executive was constitutional or not.
Judicial system in the subcontinent was provided by the British government that did not interfere with the personal laws of its subjects. Muslims were governed by their laws... [continues]
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