INTERPRETATION OF STATUTES

(DRAFT 2)
Judicial Activism constitutes contingent judicial responses;
-- at least 2 kinds of judicial activism reactinoaryand progressive- not referring to clective and opportunistic;
nehruvian era activism on issues of land reform and right to property, and the pro-emergency activism typified in
shiv kant shukla manifests reactionary activism;; progressive judicial activism commences with Golak nath
and kesavananda bharathicases how fractured is progressive judical activism
-- sometimes, judicial activism is needed to comabt various emerging forms of constitutional nihilism
---- http://www.jstor.org/stable/pdf/1322284.pdf?acceptTC=true
-- openpage@thehindu.co.in
http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/TPL
_Summer14_Teapot.pdf
-- What is meant when people refer to the judicairy as being an activist? Activism in the common parlance
means.......; The phrase Judicial Activism1 is used to denote an apparent judicial activity which might be beyond
its powers. The foundational constitutional law case, Marbury v. Madison2, is about the infamous appointment of
midnight judges (appointment of William Marbury as the Justice of the Peace in the Dsitrict of Columbia), the
commissioned letters which were supposed to be delivered but remained undelivered (the new Secretary of State,
James Madisonn was to deliver the documents), and a writ of Mandamus that was denied by the court due to a
procedural error i.e. lack of jurisdiction beyond which Article III of the U.S. Constitution established. This case
established the Supreme Court as the ultimate determiner of constitutional interpretation, over the authority of all
lower courts and elected offices including the Congress and the President. Chief Justice John Marshall stated, It is
emphatically the province and duty of the judical department to say what the law is. 3 It aslo laid down the concept
of Judicial review. Also, the U.S. Supreme Court struck down a provision of the Judiciary Act, 1789, as

1 Blacks Law Dictionary, defines judicial activism as a philosophy of judicial decision-making whereby judges allow their
personal views about public policy, among other factors, to guide their decisions, usually wuith the suggestion that adhrents of
this philopshy tend to find constitutional vioaltions and are willing to ignore precedeents. It was coined by Arthur Schlesinger
Jr. In the January 1947 Fortune magazine article.
2 William marbury v. James Madison, Secretary of State of the United States, 5 U.S. 137; 1803 U.S. LEXIS 352
3 http://plaza.ufl.edu/edale/marbury.htm ; visited on 14th March 2016 at 3:21PM.

unconstitutional; which enabled Marbury to recourse to the SC, by holding that a law repugnant to the Constitution
is void4.
One of the foremost arguemnts put forth agianst this activist appracoh by courts was by Prof. James Bradley Thayer,
who argued that the courts shouldnt be eager to strike down legislations as that would dwarf the political capacity
of people (meaning the legislature) and deaden their sense of moral responsisbility. 5 That was his reasoning as to
why judiciary should excercise restraint and only to strike down laws where a harmonious construction with the
Constitution was not possible. This philosophy of judicial restriant was followed by Cheif Justice John Roberts of the
U.S. Supreme Court

4 Ibid.
5 James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, Harv. Law Review (1893);
http://www.jstor.org/stable/pdf/1322284.pdf?acceptTC=true