When Judges Rewrite the Constitution: Evidence from Indian High Courts

Abstract

In this paper, we study the fast expanding phenomenon of judicial activism. Focused on the Indian judiciary, we show how judges may reinterpret the constitution to wrest control of judge appointments from the executive and legislature. By making their own rules, courts asserted their independence from the executive and legislative branches in the appointment process. Drawing from about 10 million judicial cases in constitutional courts of India, we show that this “re-interpretation” of the constitution by the Supreme Court of India transmitted to the High Courts, increasing the independence of the judiciary. Our findings highlight judicial activism, which has been the subject of much recent debate, can increase judicial independence and has far-reaching implications on decision quality and the formation of new jurisprudence.