Law: Judicial Activism

I. HISTORICAL AND THEORETICAL BACKGROUND Judicial activism has become a subject of controversy in India.1 Recent and past attempts to hinder the power of the courts, as well as access to the courts, included indirect methods of disciplining the judiciary, such as supersession of the judges2 and transfers of inconvenient judges.3 Critics of judicial activism say that the courts usurp functions allotted to the other organs of government. On the other hand, defenders of judicial activism assert that the courts merely perform their legitimate function. According to Mr. Justice A. H. Ahmadi, the former Chief Justice of India, judicial activism is a necessary adjunct of the judicial function because the protection of public interest, as opposed to private interest, is the main concern.4 Courts cannot interpret a statute, much less a constitution, in a mechanistic manner. In the case of a statute, a court must determine the actual intent of the authors. In the case of a constitution, a court People’s understanding of judicial activism depends on their conception of the proper role of a constitutional court in a democracy. Those who conceive the role of a constitutional court narrowly, as restricted to mere application of the pre-existing legal rules to the given situation, tend to equate even a liberal or dynamic interpretation of a statute with activism. Those who conceive a wider role for a constitutional court, expecting it to both provide meaning to various open textured expressions in a written constitution and apply new meaning as required by the changing times, usually consider judicial activism not as an aberration, but as a normal judicial function. C. Judicial Review in India Unlike the United States Constitution, the Indian Constitution expressly provides for judicial review in Article 13, clause (1), that says that all laws that were in force in the territory of India