The Case of Judicial Activism

So-called judicial overreach is the direct result of legislative and executive underreach

01 May 2011
The Indian constitution, which allocates authority to both the states and the Union, requires the Supreme Court serve as a final arbiter.
B MATHUR / REUTERS
The Indian constitution, which allocates authority to both the states and the Union, requires the Supreme Court serve as a final arbiter.
B MATHUR / REUTERS

IN COUNTRIES WITH A WRITTEN CONSTITUTION, the reach of judicial power is almost unlimited—it is only in the wisdom of its exercise that the balance of a written constitution is maintained.

Judge Thijmen Koopmans from the Netherlands—a judge reared in the civil law—was once asked how it was that in its interpretative role, that great transnational court on which he sat (the European Court of Justice) had gone much further than the text of the Treaty of Rome, which established that court. The answer he gave was disarmingly frank. He said:

What the Luxembourg Court has done is a common phenomenon of all courts, national and international. There is a natural tendency for judges to write a larger role for themselves.

Fali S Nariman is a constitutional jurist and senior advocate in the Supreme Court of India. He is also president emeritus of the Bar Association of India.

Keywords: Manmohan Singh Indian Supreme Court chief justice high court judicial activism
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