Judicial Activism and the Supreme Court of India
The Supreme Court of India has emerged as the most powerful organ of State and amongst the foremost constitutional courts in the world through the instrument of Public Interest Litigation (PIL), the exercise of writ jurisdiction and the expansive interpretation of fundamental rights guaranteed by the Constitution of India. Judicial activism impinging on every facet of governance has become the norm in recent times. This paper traces the evolution of judicial activism since Independence through pronouncements of the Supreme Court. It brings out distinct phases in this evolution – the initial phase of judicial restraint, the first phase of an activist judiciary where the Supreme Court primarily was concerned with protection of fundamental rights and humane treatment of citizens; the second phase where the Supreme Court took keen interest in preservation and protection of the environment; the third phase where the Supreme Court extended its reach into the socio-economic arena and the fourth phase when issues of transparency and probity in governance led to interventions by the Supreme Court. The paper illustrates through judgements of the Supreme Court that the instrument of the PIL and the exercise of writ jurisdiction by the Supreme Court go beyond the traditional postulates of judicial processes and political theory on separation of powers between the organs of State.
The Origin and Current Meanings of Judicial Activism
Introduction ............................................................................................ 1442 I. Early History of the Term "Judicial Activism" .............................. 1444 A. In Search of the Earliest Use ..................................................... 1444 B. First Recorded Use: Arthur Schlesinger in Fortune M agazine ..................................................................... 1445 C. Early Usage of "Judicial Activism" ......................................... 1450 D. Early Scholarly Examination of Judicial Activism ................... 1452 E. First Judicial Use of "Judicial Activism": Judge Joseph C. Hutcheson, Jr .................................................. 1455 F. Other Noteworthy Discussions of "Judicial Activism" in Judicial O pinions ...................................................................... 1459 II. Definitions of Judicial Activism ...................................................... 1463 A. Striking Down Arguably Constitutional Actions of O ther B ranches ......................................................................... 1463 B . Ignoring Precedent .................................................................... 1466 1. Vertical versus Horizontal Precedent .................................... 1466 2. Constitutional versus Statutory versus Common Law Precedents .................................................................. 1469 C . Judicial Legislation ................................................................... 1471 D. Departures from Accepted Interpretive Methodology .............. 1473 E. Result-O riented Judging ........................................................... 1475 C onclusion ............................................................................................. 14 76
Ablest Judge of His Generation
It is an honor to have been asked to join in the tributes to Chief Justice Traynor. Although distance kept us apart, especially in recent years, he was often in my thoughts. These were not only of huge admiration but of deep affection. My first meeting with Justice Traynor occurred while I was still a novice in the judging profession. In the early sixties I was asked to participate with an otherwise distinguished group in the dedication of the new home of the Duke University Law School. Professor Brainerd Currie invited me to dine at his house with Roger and Madeleine. I was prepared to behold greatness and I did. We ate well, drank well, and talked interminably. Thereafter we met frequently, on both coasts. Roger was a faithful participant in the sessions of the Council of the American Law Institute in New York and Washington. He intervened only when intervention was needed. After he spoke, there was no more to say. Also, during the later sixties, my wife and I often traveled to Berkeley to spend the Christmas holiday with our daughter, her law professor husband, and their children, and the Traynors lavished the season's hospitality upon us. On another occasion, when I had been invited to speak at Boalt Hall, our daughter arranged a dinner attended mainly by members of the faculties of the California and Stanford law schools and their spouses. The decibel level was high during the cocktail hour. Suddenly there was a hush. I asked my neighbor what had happened; he answered, "The Traynors have arrived." I have never seen such reverence displayed to any judge save Cardozo. Needless to say, Roger did not allow the hush to last more than a moment. Who will ever forget his resonant voice and inimitable chuckle? My thesis is simply stated: For the thirty years of his service on the Supreme Court of California, from 1940 to 1970, Roger Traynor was the ablest judge of his generation1 in the United States. I say this without hesitation, qualification, limitation, or fear of successful contradiction. Justices of the United States Supreme Court, of course,