Professional Documents
Culture Documents
Submitted By:
Ravi Pandey
Astt. Professor
ACKNOWLEDGEMENT
TABLE OF CONTENT
Kmiec, Keenan. The Origin and Current Meanings of "Judicial Activism", California Law Review (2004)
http://www.fjc.gov/public/pdf.nsf/lookup/CivilLaw.pdf/$file/CivilLaw.pdf
The present day judicial system in India is quite complicated. It consists of a Supreme Court
at its top, High Courts in the middle and the Subordinate Courts at the bottom. On January
26, 1950, the Federal Court gave way to the Supreme Court (inaugurated on January 28,
1950) under the new Constitution and thus began an exciting new era in Indian Legal History.
The Supreme Court, highest court of the land enjoys a very wide jurisdiction. Under Article
131 of the Constitution the Supreme Court has an exclusive original jurisdiction in cases arise
from the centre and the constituent States or between the States inter se. The Court even has
appellate jurisdiction in case of appeals from its lower courts. Under article 32 of the
Constitution the Court can issue directions, orders or writs for enforcement of the
fundamental rights granted to the people. The President in case of matters related to public
importance or treaties etc even seek the advice of the Supreme Court.
Second in the hierarchy come the High Courts. As mentioned above the first High Court in
the country was formed under the Act of 1861. But after independence the High Courts have
also become the courts of record with appellate and original jurisdiction. They have been
conferred the power to issue writs. The High Courts have superintendence over all the courts
within its territorial jurisdiction. The decisions of the High Courts become precedents and are
followed by the courts subordinate to it. Each State has its own High Court and a common
High Court for two or more States can also be made.
Whether they are interpreting the common law, statutes or constitutions, American judges
respect their own precedents as a "principle of policy" rather than as an "inexorable
command." American judges find it easiest to overturn precedents when experience has
proved them to be unworkable or a long line of subsequent cases has gradually undermined
their foundations. They find it hardest to do so when property, contracts, or liberty is at stake.
Reason is the ultimate measure of the law, but judicial departures from precedent require
special justification to warrant the inevitable damage they cause to the settled expectations of
a law-abiding society.
In the United States, courts seek to follow precedent whenever possible, seeking to maintain
stability and continuity in the law. Devotion to stare decisis is considered a mark of judicial
restraint, limiting a judge's ability to determine the outcome of a case in a way that he or she
might choose if it were a matter of first impression. Take, for example, the precedent set in
ROE V. WADE,
410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, the 1973 decision that defined a
The U.S. Supreme Court rarely overturns one of its precedents, but when it does, the ruling
usually signifies a new way of looking at an important legal issue. For example, in the
landmark case BROWN V. BOARD OF EDUCATION, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873
(1954), the Supreme Court repudiated the SEPARATE-BUT-EQUAL doctrine it endorsed in
PLESSY V. FERGUSON,
163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896). The Court ignored
stare decisis, renouncing a legal precedent that had legitimated racial Segregation for almost
sixty years.
Hughes, 13.
Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001), citing Anastasoff v. United States, 223 F.3d 898, vacated as
moot on reh'g en banc, 235 F.3d 1054 (8th Cir. 2000).
5
Michael J. Gerhardt, The Power of Precedent (New York: Oxford University Press, 2008), 59.
4
in 2007, about one-fifth of federal appellate cases were published and thereby became
binding precedents, while the rest were unpublished and bound only the parties to each case.6
Daniel A. Farber and Suzanna Sherry, Judgment Calls: Principle and Politics in Constitutional Law (New York:
Oxford University Press, 2008), 70-71.