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 Justice Krishna Iyer’s use in 1974 Activism viewed as struggle over supremacy or power between Judiciary and other branches of Government. 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 Pre-Kesavananda Bharati Supersession of three senior judges Supersession of three senior judges Appointment of A. N. Ray as Chief Justice Appointment of A. N. Ray as Chief Justice

Declaration of Emergency : July 25, 1975 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 39 th and 42 nd Amendments 39 th and 42 nd Amendments Suspension of Fundamental Rights of Part III 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?