Evolution of Judicial Activism :
The Supreme Court of India
T. N. Srinivasan
Indira Gandhi Institute of Development Research
December 1, 2012
Introduction
Origins Apacara of Judicial Surrender to
the Executive during Emergency
Expansive Process of Activism:
Prayaschitta since Emergency
Economic and Legal Issues arising from
Judicial Activisim
Conclusions
Introduction
Connotations of Judicial Activism – Justice
Balakrishna
Activism v/s Restraint
Activism as overstepping by the Judiciary into
domains of Executive and Legislatures
Separation of Powers in the Constitution.
Judicial Activism – Run-up to Emergency
Sparse mention of Activism
-- Justice Krishna Iyer’s use in 1974
Activism viewed as struggle over supremacy or power between
Judiciary and other branches of Government.
Manifestation of struggle: Judicial Review and Parliament’s Power to
amed the Constitution.
Pre-Kesavananda Bharati
Supersession of three senior judges
Appointment of A. N. Ray as Chief Justice
Declaration of Emergency : July 25, 1975
Origins in Raj Narain’s 1971 Election Petition against Indira Gandhi
and the movement of J. P. Narayan.
Dark Days of Emergency : Apacaras on the Constituion
39th and 42nd Amendments
Suspension of Fundamental Rights of Part III
Abject Judicial Surrender to the Executive in ADM Jabalpur v/s Shiv
Kanti Shukla in 1976
People vote out Mrs. Gandhi : End of Emergency, 1977
Prayaschittas of the Constitution
Justic Bhagwati on his role in both
Apacaras and Prayaschitta
Public Interest Litigation
Expansive Reading of Articles 14 and 21
beyond their Core Right to Liberty in a
Physical sense.
Prayaschittas of the Constitution
The steep slope from Gopalan v/s. State of
Tamil Nadu in 1950 to Chameli Singh v/s. State
of U.P. in 1996
Arbitrariness concept in Royappa v/s. State of
Tamil Nadu
Maneka Gandhi v/s. Union of India 1978
Shetty v/s. IAAI, 1978
Prayaschittas of the Constitution
Linking of Part III and Part IV
Justic Katju on the expansive reading of
Article 21
Interpretation of Constitution : original
intent
Economic Spill-Overs of Judicial Decisions
Who pays the bill?
Social Cost Benefit Analysis and its Absence in
Judicial Decision Making
Economic Logic of Separation of Part III and IV
Examples of Distributionalyl Regressive and
Socially costly decisions
Conclusion
Judicial Activisim in aRepresentative Democracy
Substitute for failure of other branches of
Government and contribution to Good
Governance?
Grave Threat to the Core of Democracy by
Substituting for failures of the Electorate, the
Ultimate Stake Holders of a Democracy?