Evolution of Judicial Activism : The Supreme Court of India T. N. Srinivasan

1. Evolution of Judicial Activism : The Supreme Court of IndiaT. N. Srinivasan Indira Gandhi Institute of Development Research December 1, 2012

2. 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

3. 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.

4. 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

5. 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

6. 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.

7. 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

8. 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

9. 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

10. 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?