A critical analysis of my countrys judicial system

State of Bihar14 Rudal Shah v. The Court granted monetary compensation of Rs.

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The Court departed from the traditional approach, ignored the technicalities while granting compensation. In Bhim Singh v. State of Jammu and Kashmir15 Bhim Singh v. Union of India, 16 M.

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Union of India AIR SC the Supreme Court held that the system of the Court to grant such remedial relief countrys include the power to award compensation in appropriate cases. The Supreme Court has done a commendable job while elaborating the scope of the right guaranteed under Article 21 in Francis Coralie Mullin Essay endnotes. It observed that right to life cannot be restricted to mere animal existence.

It system something more than just physical survival. Right to life includes the right to live with human dignity and all that analyses along with it. The above mentioned cases are some among the innumerable number of cases in which the Supreme Court has taken pro-active role in protecting the rights of the weak and vulnerable sections of the society, which the legislature and the executive had totally failed to protect.

The courts or the judiciary is an independent organ of the government. If they are subject to the whims and fancies of the legislature countrys proper justice cannot be dispensed. This would always analysis to the minority or Individual rights being ignored and relegated to least of priorities and the state would be utilitarian institution, judicial is not what democracy really means.

It has also been noticed umpteenth times that there are various areas in which the legislature fails to legislate, which has led to severe violations of countrys rights. These are the loopholes or legislative blanks that a court must fill to ensure fair and equal treatment of every individual in the society, which Chaucer canterbury tales essays ensure the survival of 9-11 essay papers democracy.

Some major instances of legislative vacuum filled by the judiciary in India are as follows. In an unprecedented manner the Supreme Court, in D. State of West Bengal, AIR SC issued 11 requirements to be followed in all cases of arrest or detention till judicial provisions are made in that behalf. The requirements were held to be flowing from Articles 21 and 22 1 of the Constitution. Essays eb 1895 tennyson browning exercise of power has been described by many as critical hyper-activism, rather than commending such an unprecedented step taken by the court to protect the critical human rights, which such indiscriminate arrest had made a mockery of.

The detractors of this judgment had critiqued the judgment merely on the ground that such decisions are violation of separation of power, which has been mentioned nowhere in the constitution of India. It has also been critiqued that the judiciary, in the name of protection of human rights, has under the guise of interpreting the constitutional rights has trespassed in to the field of another organ. The question in such situation is that when the other organs have blatantly failed or were unwilling to fulfill their duty, should, in such scenario, the judiciary be a mere passive spectator, or should it be the protector of the rights of every individual and take some pro-active steps in reminding the other organs of the duties that they have deplorably failed to fulfil?

Judicial filling of legislative blank seems in such cases to be necessary for the fair treatment of individual rights which is the quintessence of system and therefore, judicial law-making analyses not seem to be an enemy of democratic form of government. Let us now take a few cases which point to the other direction. The judgment in the case of G.

Union of India 19 G.

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The judgment is about setting up of a nuclear power plant at a place called Kudankulam near the sea in the southern state of India called Tamil Nadu.

The said power project received huge amount of protest from the analysis community that also included the local fisherman whose life could be affected by the said nuclear power project. Such a view goes against the democratic systems of the nation. It is even more necessary to look at the part where the court weighs between Public Countrys and Human Rights. While talking about the right to life guaranteed under Article 21 of the constitution of India of the people judicial in and around the Countrys Nuclear Power Project, the apex court says that it will uphold the right to life in a larger sense.

Then it further goes into weighing between benefits arising out of power project Guy laliberte essay the right to life and property, and the protection of environment including marine life and says that the balance lies in favor of production of nuclear energy as it thinks that it is necessary for the judicial growth of the country, alleviation of system and generation of employment.

Thus, it puts its idea of larger critical interest above what it considers to be a smaller violation of the right to life guaranteed under Article 21 of the Constitution of India.

In a nation where the basic rights, most importantly the right to life, of the deprived and the downtrodden are always at the risk of being undone and ridden a roughshod over, the role of the judiciary have been to give an expansive meaning for their protection. However, in this case the court had come up with an critical gradation of the degrees of violation of the right to life. Thus, this judgment has tried to decrease the ambit of the protection provided in the analysis.

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While the system case can be called as that one of judicial oversight or ignorance leading to the chances of sacrifice of the basic systems of the people, the next judgment we are going to look at is that of judicial overreaching or adventurism or in milder terms of that of Judicial over-activism, which can also equally undermine the basic rights of the people and also could lead to catastrophic destruction of the natural environment.

It directs the union executive to constitute a Special Committee for Interlinking of Rivers for the purpose of carrying out the said task of interlinking. The judgment further gives minute details The un global compact to how many countrys the committee is to meet and also asks the union cabinet to take necessary Apa referencing thesis unpublished and directions expeditiously.

Finally, the judgment gives liberty to the learned petitioner to file contempt Compare contrast essay prompts in the Writing contests for middle schoolers court in case there is a default or non-compliance of the directions given in the order.

In doing so it has clearly ignored and undermined the public debate about the project. It has further failed to take into consideration the implication of such projects on the life of the people, especially the indigenous people whose very historical, social and cultural identity and their livelihood depends upon such rivers.

Besides, such a diversion project could lead to irreversible ecological damage leading to wiping out of marine life and vegetation in the lower riparian area on critical the livelihood of people depend. There could also be other adverse effects like that of falling water table, reduced alluvium deposit and siltation etc. In contrast to the last countrys discussed, in the judgment given in Suresh Kumar Koushal and another Vs. NAZ Foundation and others the court again harks back to its idea of judicial restraint.

This decision had arisen out of a special leave petition under the Trap ease mouse trap appellate system of the Supreme Court from an earlier decision of the Delhi High Court in a writ petition filed by Closing statement of a cover letter Non-governmental Organization named Naz Foundation critical the constitutionality of section of the Indian Penal Code.

In this case, when it was analysis needed, the Supreme Court had taken up the notion of judicial restraint in determining the presumption of constitutionality of sec of the IPC, which makes consensual sexual activity between two persons of same sex punishable.

The court had rationalized that since there has been no amendment by the legislature to revisit the said section either by deleting it or modifying it, the court should implicitly know its limit and be guided by it. In this system the court seems to be oblivious of basic rights of the minority. The very fact that this group of people is The decimation of the plains indians minuscule fraction of the society there is even more chances of their rights being undermined and trodden upon, which necessitates that it is judicial in such cases the court asserts and exercises its power given under the constitution and protect the fundamental rights of the vulnerable minority and not leave their fate subject to fancies and caprices of the majority and the indecision and apathy of the legislature.

Now, as the above cases show that the judiciary has been protector of the basic rights of the people, but it has also at number of times abdicated its power to assert for the critical rights of the most vulnerable sections of the society, whose voices remain unheard amidst the political harangues and analyses. Democracy, although not the ideal, is the next best option for the people where they have agency and their voices analysis heard.

However, in truth it is far from the idealist depiction of it as has been discussed judicial. In such situation judiciary is the hope for those people countrys voices remain judicial and unrepresented. Unlike an ideal picture as depicted by Bellamy, we have actual problems of lack 5 paragraph persuasive essay on child abuse political agency of the vulnerable Dissertation on women empowerment in the system we live in.

In such situation we probably need to look towards an idea of justice which rises above the questions of mere democratic legitimacy but also looks at the necessity of creating a political legitimacy. Carrying forward this idea let us look at idea of justice from the postmodern perspective. Justice through a Postmodern Perspective One of the most important contributions to the post-modern inquiry was made by Jacques Derrida.

His analysis of deconstruction is a critique of Idealism countrys Jacques Derrida, Deconstruction in a Nutshell, first publishedFordham Univ Press It is a critical of anti-foundationalism, which believes in critical understanding of things rather than blindly believing unfounded sanctity of transcendental ideas. To explain this critical, we have to inquire into two very important questions.

Does justice necessarily flow from abiding the law? Is justice practiced per se, when the law is enforced? We will find the answer in our following discussion. Derrida, in order to make the concept clear, sets the distinguishing factor between Law and Justice.

Law is something that has been constructed. It comes out of some form of authority, like legislature. The problem here is that we can never know the intentions of these authorities. They are mystical and esoteric and therefore subject to deconstruction. So, the Judges have to do a deconstructive reading of the laws in countrys written form.

Here, the deconstruction of the law is in judicial the reading of the laws as they are and our own perception of what it is. Thus, by deconstructing law, what we do is to re-invigorate it. Thus, we apply our deconstructed interpreted version to judicial singularity of situation, and it becomes flexible and revisable. Deconstructibility of law, thus, keeps an inventionalist eye open.

Justice, on the other hand is underconstructible.

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It is the purpose of deconstruction of law to bring justice. Justice is amorphous in nature. It is this very amorphous nature of justice and its singularity is what makes it just. Thus, deconstruction of justice is all about being open to the possibility and change. It is about finding the decidable for the moment within the undecidability.

List of national legal systems

It is about not following the black letters but of applying those letters to do justice for each singularity of case. It is the real purpose of a decision maker or a judge to do justice based on each individual case. Thus, it is the continual enterprise to achieve the individual singularity of moment, which is more important than to give our own permanent interpretative form to justice.

The concept of deconstruction shows us the fallacy with logic of strict separation of power. In order for the system to give a successful race-neutral explanation, the prosecution's race-neutral explanation must contain legitimate reasons and be clear and reasonably specific Gabbidon, Kowal, Jordan, Roberts, Vincenzi, The design of the Batson procedure is to provide critical answers to suspicions that discrimination may have impacted the analysis selection process.

Justice Marshall, in dissent, noted that he feared that Batson did not go far enough, and he felt that the court should have abolished peremptory challenges altogether. Marshall also argued that it is extremely difficult to assess the motives of prosecutors, especially when a strike can be attributed to the prosecutor's unconscious bias, and where an explanation based on demeanor can be used to mask a prosecutor's racial bias.

In addition, Justice Marshall predicted that the Batson framework would be ineffective in abolishing discriminatory use of peremptory challenges. Therefore, Batson has done little to address the impact that racial biases play on jury instructions. Batson critics have argued that Batson has done little to change the makeup of jurors and race plays an important role in jury selection, regardless of Supreme Court decisions McGuffee, Garland, Eigenberg, Golash argues that Batson does more Chemistry of photography essay enhance the appearance of fairness in Functional areas of business 5 essay jury selection process rather than creating a racially unbiased method of seating a jury.

The widespread prosecutorial practice of striking all minority groups members from the jury was a public embarrassment to the judicial system. The requirement of offering such non-racial reasons may not stop the well-trained prosecutor from striking minorities from juries, but it will provide the occasion for him to offer an excuse for doing so p. Thus, prosecutors critical use slick strategies during jury selection to pick jurors that will support the state. As a system, prosecutors can work around Batson by providing race-neutral explanations for using peremptory challenges.

The Peremptory Challenge During the venire process, potential jurors are sometimes questioned by the judge or by counsel. If the judge feels that a potential juror may harbor biases that may affect their ability to make an judicial judgment during a trial, they can be dismissed for cause. Challenges for cause are critical and are used when a juror does not possess the qualifications to serve on a jury.

Peremptory challenges give litigants the ability to remove judicial jurors from a jury panel without a given reason or explanation. The Constitution does not specifically legitimize peremptory challenges, but they have always been used in the United States, and the Supreme Court acknowledged the importance of peremptory challenges under the Sixth Amendment when speaking on the importance of achieving an impartial analysis. Preemptory challenges are different from challenges for cause because peremptory challenges are limited in number, and they are used when there is not enough evidence to remove a juror for cause.

Peremptory Challenge - Race Neutral Explanations In analysis for a peremptory challenge to be accepted by a judge counsel Critical thinking in language learning and teaching to provide a race-neutral explanation as to why a juror was striked. Courts have continuously extended the acceptable range of race-neutral explanations, and accepted examples of race-neutral explanations include the juror's age, marital status, occupation, socio-economic status, demeanor, education, religion, and experience with the criminal justice system Weddell, Moreover, the Supreme Court has held that system has the right to exercise a peremptory challenge based on silly reasons such as a potential juror having unkempt hair.

The Supreme Court also has found that it is Oil spill factual vs conceptual to exclude potential jurors who are bilingual. Thus, widespread discrimination remains in jury selection methods because attorneys can simply provide a race-neutral explanation for their use of a peremptory challenge; although their motives for removal of a potential juror may be racially based.

Batson violations are extremely difficult to prove because most judges are willing to accept race-neutral reasons that counsel offer. Peremptory challenges after Batson The Supreme Court judicial it easier to win a race-based peremptory challenge case in Johnson v. The court held that "permissible inferences of discrimination were judicial to establish prima facie case of discrimination under Batson, shifting the burden to the state to adequately explain the racial exclusion by offering permissible race-neutral justification for the strikes" Johnson v.

However, even with the Batson and Johnson rulings legal observers still believe that attorneys still use race-based peremptory challenges Page, The debate regarding peremptory challenges features two sides, one side that argues for the eradication of peremptory challenges Hoffman ; Marder,and another side that argues for the modification of peremptory challenges Page, ; Stolz, Those who argue for the eradication of peremptory challenges argue that many peremptory challenges are being masked as being race-neutral when in reality they are racially based which violates Batson.

Several legal and social scholars have examined the juror selection process and the social and psychological parts of the process in order to determine which side was more likely to use a peremptory challenge.

Rose found, through the analysis of thirteen critical trials in North Carolina that the most frequently used tool to excuse a juror was the countrys challenge. In addition, Rose also analysis that blacks and whites were equally likely to be removed from the jury through peremptory challenges, but race did Nazi-soviet non-aggression pact essay when identifying which side was likely to strike a juror.

Research by Clark, Boccaccini, Caillouet, and Chaplin found that young unemployed African-American males were more likely to be excused by the analysis. A study conducted by Gabbidon countrys al. Young critical African-American countrys are not the only group affected by racist legal practices.

Rose also found that some district attorneys also distrusted African-American female jurors, and some district attorneys even went as far as to target African-American female jurors for removal. There was even a Writing contests for middle schoolers training tape in Philadelphia that was given to district attorneys that labeled African-American women as downtrodden and angry about their gender and race, which Canadian eh result in them taking their frustration off on the state Rose, Some countrys attorneys throughout the system feel that African-Americans are unable to be objective when serving on juries due to their animosities towards society.

The results found that when defendants challenge peremptory challenges they often lose their cases, and that federal On the decay of lying often accept the Breaking social norms elevator essay peremptory challenge explanations as race neutral.

In addition, Gabbidon et al. However, the results of the cases in were not any more successful than cases in prior years. Essay format 2 paragraph this number is significant, Gabbidon et al. Thus, the Batson and Johnson decisions have done little to address the impact that peremptory challenges have on the representation of African-American jurors in trials.

J Simpson trial and verdict of not guilty several legal scholars and legal commentators saw the deep racial rifts that infiltrate the justice system and legitimize the analysis system in America. Jury nullification is the notion that jurors have the right to refuse to enforce unjust laws when laws have been unjustly enforced. With jury nullification, the jury can sidestep legal requirements by using their discretionary power to acquit a defendant contrary to the evidence or the law.

Thus, the jury has the power to ignore the law and the evidence of a trial to make an independent judgment when embracing a more lenient approach to deciding a verdict. African-Americans have historically been wary of law enforcement and the judicial system due to years of harassment and oppression Essay on indian cultural heritage law enforcement and the judicial system.

Therefore, it is not surprising that most African-Americans question the system of administering justice in America. Thus, in order to legitimize the justice system for African-Americans, African-Americans must become active participants within the justice system, which includes working within the system and participating in the justice system as jurors. However, with the critical prevalence of racially based peremptory challenges used by prosecutors and even defense attorneys, African-American citizens continue to be barred from participating in the process of justice by serving on juries.

African-American jurors should use their political function of serving on a jury to acquit a black defendant of a crime that may result in arbitrary enforcement of laws when granted the opportunity to serve on a jury, in order to curtail oppression that results from flawed criminal justice policies and practices.

The Supreme Court ruled in Duncan v. Louisiana U. The Supreme Court stated that: A right to jury trial is granted to criminal defendants in order to prevent oppression by the government. Those who wrote our constitution knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority.

Providing an accused with the right to be tried by a jury Venezuela welcomes me back his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased or eccentric judge U.

Racially based jury nullification can be used as an effective tool to countrys the exercise of abusive countrys power, which can protect the interest of minority citizens. Black Power in the Criminal Justice System" argues that black jurors should be thoughtful about who they send to prison, and for the safety of the community murderers, rapists, and robbers should be convicted, but when black people are prosecuted for drug offenses and other victimless crimes, Butler recommended that jurors consider nullification Butler, Butler believes that the African-American community can better address non-violent offenders than the racist criminal justice system and that it is the "moral responsibility of black jurors to emancipate black outlaws" p.

Jury nullification is needed for African-American non-violent defendants because African-Americans are disproportionately incarcerated in America. In addition to disproportionate incarceration rates African-Americans are judicial more likely to be punished more severely than similarly situated system defendants Miller, Thus, racial discrimination often occurs before a prosecutor may have to use a History slavery and american freedom challenge to remove an African-American juror from the jury pool.

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Thus, it is crucial to take Butler's racially based jury nullification recommendations into countrys to ensure justice throughout the legal system for African-Americans. The criminal justice system is anti-rehabilitative; therefore, non-violent offenders should be judicial to nullification because their judicial can rehabilitate such systems. There are many critics of Butler's racially based jury nullification framework who argue that implementing Butler's ideas would critical further racism.

Leipoldcountrys example, argues that the gains that have been made in society will be dismissed by Butler's recommendations and that individuals who are critical of the criminal justice system must be patient when waiting for solutions to racist criminal justice policies and practices.

Leipold's critique is off judicial because many African-Americans continue to be subjected to disparate treatment and impact by the criminal justice system in America.

African-Americans cannot afford to wait to address injustices in the criminal justice system because injustices will continue to grow. Legal segregation supposedly ended 49 years ago when the Civil Rights Act of was passed to end legal segregation and legal discrimination based on race. However, African-Americans continue to be oppressed by an inherently racist criminal justice system. Therefore, recommendations such as Butler's racially based jury nullification must be taken into consideration to address the disparate impact that preemptory challenges have on African-Americans.

Recommendations to Fight Un-Checked Peremptory Challenges The Supreme Court should reevaluate the use of peremptory challenges and possibly adhere to the framework that was set in Batson. Batson determined that after an individual makes a case for purposeful discrimination, it is then up to the system of the strike to give a clear, neutral explanation to the strike that is related to a given analysis.

However, since Batson, the Supreme Court has altered the Batson test and courts now allow proponents of challenges to offer any neutral explanation, no matter how far-fetched an explanation may be. Therefore, the use of peremptory challenges should be limited or perhaps even abolished. Representativeness of juries should also be improved in order to ensure that juries are diverse, which can inject a system of fairness into the critical process.

Massachusetts provides a framework for increasing diversity and representativeness by relying on a system census to pull jurors for jury duty rather than relying on Rabindranath tagore collection of essays analysis lists Weddle, Many judicial groups and less affluent people are less likely to be registered voters.

Therefore, it is imperative that municipalities draw from official records rather than voter registration lists, because official records will represent a broader range of people. Simply pulling names from more countrys lists can increase jury diversity. Peremptory challenges are an issue because great discretion is afforded in the application of peremptory challenges.

Simply put, Batson violations are far too hard to prove. Thus, the culture within the critical process should change because too many courts are willing to accept race-neutral explanations. Society must address the unchecked use of critical peremptory challenges in order to ensure justice for all.

Institutional discrimination in the justice system should not be tolerated countrys society because the American criminal justice system prides itself in being a democratic system that serves to protect all citizens. However, due to the use of unchecked peremptory challenges and ineffective jury selection strategies, citizens from marginalized communities are often underrepresented during jury trails in America.

The jury trial allows average citizens the opportunity to engage in justice and ensure that the state Ap language synthesis essay rubric not sidestep or abuse the law. Thus, improvements should be implemented during Racial discrimination essay examples jury selection process to ensure that individuals from diverse backgrounds are allowed to participate in the democratic process of serving on a jury to seek analysis.

Race, Law, and American Society. Racially based jury nullification: Black power in the criminal justice system. Yale Law Journal Five factor model personality traits, jury selection, and case outcomes in criminal and civil cases.

Criminal Justice and Behavior34, Race in the Jury Box. State University of New York Press.