Passage Based Questions: English - 15 | Passage Based Questions for CLAT Preparation PDF Download

Directions: Study the following l information carefully and answer the questions given below:
Law is inherently political. The law is interpreted, and like all interpretations, it is naturally influenced by political loyalties, ideologies and policy preferences. Courts can make policy through norm enforcement. Norms are political because various positions on norms can be help and which one is enforced will have political foundations and political repercussions. Courts are political institutions. Courts are established, run and funded by states. Recently we have seen a growth in the reliance on courts to deal with some of the most fundamental political dilemmas. Judicial independence is important to consider when we study whether judges are politicians. Judges need to be independent from the other branches of the State so that they can adjudicate without fear or favour. There is often no “fundamental difference between the position of judges and the position of policymaking officials” The close relationship between judges’ preferences and the preferences of those in government may stem from different sources. Judges may strategically avoid dissenting with powerful actors early on to enhance their authority in time. This would lead them to coordinate their judgements with the goals of those in power in the short run. This is particularly relevant when analysing emerging democracies. In emerging democracies courts do not have the same level of legitimacy or independence as those in developed democracies. In practice this means that elected officials do not hesitate to undermine and countermand court decisions. The Tatarstan Case 1992 is an example of this. In this example judges struck down a question for a referendum which they deemed unconstitutional. Despite Parliamentary support for the judgement the Tatarstan government ignored it and held the referendum. The decision was rendered meaningless. This demonstrates that newly established constitutional courts are forced to adhere to the views of the governing majority as they work to build their authority. This causes judges to be politicians whether they know it or not because they are simply acting as a means of extending the government’s agenda.
This does not occur in the same way in developed democracies. In developed democracies courts may make decisions that challenge the government. For example, in the UK case Council for Civil Service Unions v. Government Central Communication Headquarters the judicial review resulted in a judgement relating to the Royal Prerogative which went against the wishes of the government.  However, despite the scope for judges’ dissent, according to Epstein et al. (2001), in every democracy constitutional courts must be alert to the preferences of external actors if they wish to advance their own goals because judges rely on the governing majorities to give weight to their decisions. Consequently, judges benefit from appeasing both the public and the government.