Tuesday, February 03, 2009

Addressing Judicial Activism in the Indian Supreme Court

The term "judicial activism" is used unhesitatingly to describe the working of the Indian Supreme Court. In an attempt to understand and critique the usage of this term, I examine the manner in which it has been employed within the legal discourse in India in an article in the new issue of the Hastings International and Comparative Law Review (Addressing Judicial Activism in the Indian Supreme Court: Towards an Evolved Discourse, 32 HASTINGS INTERNATIONAL & COMPARATIVE LAW REVIEW 55 (2009); available on westlaw and lexisnexis). The abstract of the article is as follows:

"The Indian Supreme Court has invited a great deal of interest for its alleged activism and the role which it has begun to play in Indian governance. Recent years have been witness to substantial prolonged intellectual debate on the Court’s functioning, with scholars positing views and raising concerns with considerable passion. This paper analyzes the judicial activism discourse in the Indian Supreme Court by focusing on the contributions of Professor Upendra Baxi. It argues that, despite the attention the Court has received on the question of judicial activism, the debate in this area has, for the most part, failed to engage with the meaning of the term “judicial activism” and examine the manner in which it is determined. This paper contends that a recent model measuring judicial activism proposed by Cohn and Kremnitzer can fill this void. It applies the model to three major cases of the Indian Supreme Court to demonstrate how it can enable us to arrive at a sophisticated understanding of when decisions are activist, and how decisions may be activist by some parameters and restrained by others. In particular, it illustrates that commentary on the Court needs to evolve and engage with judicial decision-making in a far more rigorous fashion. Through its analysis, this paper suggests that the Cohn-Kremnitzer model can play an important role in moving beyond the current impasse in the debates on judicial activism in the Indian Supreme Court."

I look forward to comments on the paper. Especially on: (a) which other Indian scholars, apart from Baxi, must be studied to further the argument attempted in the paper; (b) which decisions, apart from the three examined in the paper, will help to both further and refute the argument attempted in the paper; and (c) what possible frameworks can be developed to enable the Cohn and Kremnitzer model to overcome some of its methodological difficulties.
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