" Judicial Activism And Creativity Of The Supreme Court - The Tools And Techniques” by Sanjeyvignesh.J, age 1 of 46 1. INTRODUCTION: “Judicium Non debet esse illusorium, suum effectum habere debet (A Judgement ought not to be illusory; it ought to have its proper effect) In democratic countries the judiciary is given a place of great significance, The courts perform the key role of expounding the provisions of the Constitution. The courts act as the supreme interpreter, protector and guardian of the supremacy of the Constitution. The judiciary has to perform an important role in the interpretation and enforcement of human rights inscribed in the fundamental law of the country. Therefore, it is necessary to consider what should be the approach of the judiciary in the matter of constitutional interpretation, The judiciary has to devise a pragmatic wisdom to adopt a creative and purposive approach in the interpretation of various rights embodied in the Constitution, The task of interpreting the constitution is a highly creative judicial function which must be in tune with the constitutional philosophy. A democratic society lives and swears by certain values such as individual liberty, human dignity, rule of law, constitutionalism ete. and it is the duty of the judiciary to so interpret the constitution and the law as to constantly inculeate these values on which democracy thrives. The predominant positivist approach of interpretation followed by the Indian Judiciary emanates from the basic traditional theory that a judge does not create law but merely declares the law. The Indian judiciary underwent a sea change in terms of discarding s traditional approach by charting out a new horizon of dynamic concept of judicial activism with many facets and dimensions which paved way for the activist liberal judicial approach to Constitutional interpretation. This assignment is about the judicial activism in India and the pro-active role“Judicial Activism And Creativity Of The Supreme Court- The Tools And Techniques” by Sanjeyvignesh,J, ‘age 2 of 46 played by the Supreme Court in applying judicial creativity for interpretation of the Constitution. eos os os os os 2. JUDICIAL ACTIVISM: 2.1. MEANING: Judicial Activism is considered as a philosophy of administering justice whereby judges allow their personal views about Public Policy, ignoring Precedents. It is an innovative. dynamic and law making role of the court with a forward looking attitude discarding reliance on old cases and also mechanical, conservative and static view. Judicial activism is a progressive judicial thinking, developing the law for handling constructively the contemporary problems of the Society '. It is a creative thought process through which the court displays vigour, enterprise, initiative pulsating with the urge of creating new and refined principles of Law. Infact, judicial activism is a sort of judicial creativity. It is an apparent power of judges to modify the scope and pattern of existing legal decision by application of mind and as guided by law. It is also sometimes used as meaning simply the law established by judicial precedent. Ironically, as the term “Judicial Activism” is defined in a number of desperate, even contradictory ways scholars and judges recognise this problem yet persist in speaking about the concept without defining it. Thus, the problem continues unabated; people talk past one another, using theJudicial Activism And Creativity Of The Supreme Court - The Tools And Techniques” by Sanjeyvignesh.J, age 3 of 46 same language to convey very different concepts. To say that the idea of Judicial Activism has been around far longer than the term. Before the 20" century, Legal scholars squared off over the concept of Judicial Legislation, (ie,) Judges making positive Law. The five core meanings of "judicial activism" are *: (1) Invalidation of the arguably constitutional actions of other branches, (2) Failure to adhere to precedent, (3) Judicial "legislation," (4) Departures from accepted interpretive methodology, and (5) result-oriented judging. 1, Dr.G.P. Tripathi, Judicial Process by Central Law Publications 2013. 2. The origin and current meanings of “Judicial Activism” by Keenan D.Kmiec, CLR — 2004, Scale - *1444 2.2. ORIGIN OF JUDICIAL ACTIVISM IN UNITED STATES: Arthur Schlesinger Jr. introduced the term "Judicial Activism” to the public in a Fortune magazine article in January 1947.° Schlesinger's article profiled all nine Supreme Court justices on the Court at that time and explained the alliances and divisions among them. The article characterized Justices Black, Douglas, Murphy, and Rutlege as the "Judicial Activists" 4 and Justices Frankfurter, Jackson, and Burton’ as the "Champions of Self Restraint." Justice Reed and Chief Justice Vinson comprised a middle group. By 1947, none of the justices openly questioned the constitutionality of the New Deal. Instead, the Court split over the interpretation of legislation and "the proper function of the judiciary in a democracy." In its early days, the term "judicial activist" sometimes had a positive connotation, much more akin to "civil rights activist" than "judge misusing authority." For example, references to the late Justice FrankJudicial Activism And Creativity Of The Supreme Court - The Tools And Techniques” by Sanjeyvignesh.]. age 4 of 46 Murphy. Albon P. Man observed that "Murphy's votes in civil rights cases reflect not only his objectivity and independence as a judge but also his position as perhaps the outstanding judicial activist on the Court °." Alfred L. Scanlan offered similar praise for Justice Murphy's judicial activism in civil rights issues, answering the criticism that such activism is undemocratic by replying. For example, a 1949 article observed, "Mr. Brandeis was a pragmatic judicial activist who saw in the courts a powerful instrument to be grasped by the people in ameliorating social and economic conditions." 7 Yet even in the early days of its use, the term was most often considered a slight. As now-judge Louis Pollak observed in 1956, "It seems safe to say that most judges regard ‘judicial activism’ as an alien 'ism' to which their misguided brethren sometimes fall prey." * By the mid-1950s, the term had hard to pin down, 3. Arthur M. Schlesinger, Jr., The Supreme Court: 1947, Fortune, Jan. 1947, at 202, 208. 4, Schlesinger, supra note 22, at 74-76. 5, Based on Justice Burton, Notes in “Memoriam - Harold Hitz Burton” 78 Harv. L. Rev. 799, 799 (1965). 6. Albon P. Man, Jr., Mr. Justice Murphy and the Supreme Court, 36 Va. L. Rev. 889, 916 (1950). 7. Administrative Law: Judicial Review Denied Attorney General's Order for Removal of Enemy Alien, 34 Cornell L.Q. 425, 429 (1949). 8. Louis H. Pollak, Review: The Supreme Court in the American System of Government, 65 Yale LJ. 749, 752 n.L1 (1956). First Judicial Use of "Judicial Activism" by Judge Joseph C. Hutcheson, Jr. While the exact origins of the term "judicial activism" in legal scholarship are hard to pin down with certainty, there is no question that Joseph C. Hutcheson, Jr. was the first to use it in a judicial opinion. A hard but dedicated judge who "barely missed out on an appointment ta the"Judicial Activism And Creativity Of The Supreme Court - The Tools And Techniques” by Sanjeyvignesh.J, age 5 of 46 Supreme Court which went to Hugo Black,” Judge Hutcheson's contributions to legal scholarship and service on the bench are generally praiseworthy. A 1999 Fourth Circuit concurrence by Chief Judge J. Harvie Wilkinson II adopts and expands upon many of the themes discussed in Turpin. The case, Brzonkala v, Virginia Polytechnic Institute and State University," invalidated a portion of the Violence Against Women Act as exceeding "Congress' [s] power under both the Commerce Clause of Article I, Section 8, and the Enforcement Clause of Section 5 of the Fourteenth Amendment." Judge Wilkinson concurs, admitting that "it is a grave judicial act to nullify a product of the democratic process" but concludes that this case merits such an act. Judge Wilkinson suggested that judicial activism is alive and well in the United States. In the twentieth century, he explains, it "falls into three general stages." The first stage was the Lochner era, "beginning roughly with the decision in Lochner v. New York,'! and continuing through the early New Deal," which "is still widely disparaged for its mobilization of personal judicial preference in opposition to state and federal social welfare legislation." The second stage took place during the "Warren and Early Burger Courts," roughly the 1950s through the early 1970s, which "focused on finding new substantive rights in the Constitution and down played that document's structural mandates." As Judge Wilkinson sees it, "Although many of its individual decisions were overdue and salutary, when the era is considered as a whole, the states were relegated to a second-class constitutional status." Finally, the third stage of judicial activism "probably began with New York v. United States *," and continues into the twenty-first century.