TN Srinivasan

7/28/2019 TN Srinivasan

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Evolution of Judicial Activism :

The Supreme Court of India

T. N. Srinivasan

Indira Gandhi Institute of Development Research

December 1, 2012


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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


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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.


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Judicial Activism Run-up to Emergency

Sparse mention of Activism

-- Justice Krishna Iyers use in 1974

Activism viewed as struggle over supremacy or power between

Judiciary and other branches of Government.

Manifestation of struggle: Judicial Review and Parliaments Power to

amed the Constitution.

Pre-Kesavananda Bharati

Supersession of three senior judges

Appointment of A. N. Ray as Chief Justice


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Declaration of Emergency : July 25, 1975

Origins in Raj Narains 1971 Election Petition against Indira Gandhiand 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 ShivKanti Shukla in 1976

People vote out Mrs. Gandhi : End of Emergency, 1977


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Prayaschittas of the Constitution

Justic Bhagwati on his role in both

Apacaras and Prayaschitta

Public Interest Litigation

Expansive Reading of Articles 14 and 21beyond their Core Right to Liberty in a

Physical sense.


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The steep slope from Gopalan v/s. State ofTamil Nadu in 1950 to Chameli Singh v/s. Stateof U.P. in 1996

Arbitrariness concept in Royappa v/s. State ofTamil Nadu

Maneka Gandhi v/s. Union of India 1978

Shetty v/s. IAAI, 1978


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Linking of Part III and Part IV

Justic Katju on the expansive reading ofArticle 21

Interpretation of Constitution : originalintent


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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


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Conclusion

Judicial Activisim in aRepresentative Democracy

Substitute for failure of other branches of

Government and contribution to GoodGovernance?

Grave Threat to the Core of Democracy bySubstituting for failures of the Electorate, the

Ultimate Stake Holders of a Democracy?

TN Srinivasan

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