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Hastings International and Comparative Law Review

Authors

Madhav Khosla

Abstract

The Indian Supreme Court has invited a great deal of interest for its alleged activism and the role that it has begun to play in Indian governance. Recent years have been witness to substantial 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.

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