Judicial Activism and Judicial Restraint

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Judicial activism and judicial restraint

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Judicial Restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional. Judicially-restrained judges respect stare-decisis, the principle of upholding established precedent handed down by past judges.

Judicial restraint is a procedural or substantive approach to the exercise of judicial review. As a procedural doctrine, the principle of restraint urges judges to refrain from deciding legal issues, and especially constitutional ones, unless the decision is necessary to the resolution of a concrete dispute between adverse parties. As a substantive one, it urges judges considering constitutional questions to grant substantial deference to the views of the elected branches and invalidate their actions only when constitutional limits have clearly been violated. Compare judicial activism.

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The courts should hesitate to use judicial review to promote new ideas or policy preferences. In short, the courts should interpret the law and not intervene in policy-making.

Judges should always try to decide cases on the basis of:

  1. The original intent of those who wrote the constitution.
  2. Precedent – past decisions in earlier cases.
  3. The court should leave policy making to others.

They “restrain” themselves from setting new policies with their decisions.

They make decisions strictly based on what the Constitution says.

Judicial Activism

The expression `judicial activism’ is often used in contrast to another expression `judicial restraint’. Judicial activism is a dynamic process of judicial outlook in a changing society. Arthur Schlesinger Jr. introduced the term “judicial activism” in a January 1947 Fortune magazine article titled “The Supreme Court: 1947”.

According to Black’s Law Dictionary judicial activism is a “judicial philosophy which motivates judges to depart from the traditional precedents in favor of progressive and new social policies”.

In recent years law making has assumed new dimensions through judicial activism of the courts. The judiciary has adopted a healthy trend of interpreting law in social context.

Judicial activism describes judicial rulings suspected of being based on personal or political considerations rather than on existing law.

Sometimes judges appear to exceed their power in deciding cases before the Court. They are supposed to exercise judgment in interpreting the law, according to the Constitution. Judicial activists, however, seem to exercise their will to make law in response to legal issues before the Court.

The question of judicial activism is closely related to constitutional interpretation, statutory construction and separation of powers. It is sometimes used as an antonym of judicial restraint.

Judges should act more boldly when making decisions on cases

  1. Law should be interpreted and applied based on ongoing changes in conditions and values.
  2. As society changes and their beliefs and values change, courts should then make decisions in cases they reflect those changes.

According to the idea of judicial activism, judges should use their powers to correct injustices, especially when the other branches of government do not act to do so. In short, the courts should play an active role in shaping social policy on such issues as civil rights, protection of individual rights, political unfairness, and public morality.

Examples- of judicial activism are the decisions by the Indian Supreme Court in Maneka Gandhi’s case as well as its decisions relating to Article 21 of the Indian constitution, etc.

Trends in Judicial Restraint

There is broad (though not absolute) separation of powers in the Indian Constitution. The Constitution of India did not provide for the judiciary to be a super legislature or a substitute for the failure of the other two organs. Thus, the need arises for the judiciary to lay down its own limitations.

One of the examples of judicial restraint is the case of State of Rajasthan v Union of India, in which the court rejected the petition on the ground that it involved a political question and therefore the court would not go into the matter.

In Bommai’s case judges said that there are certain situations where the political element dominates and no judicial review is possible.

The exercise of power under Art.356 was a political question and therefore the judiciary should not interfere. Ahmadi J. said that it was difficult to evolve judicially manageable norms to scrutinize the political decisions and if the courts do it then it would be entering the political thicket and questioning the political wisdom, which the court must avoid.

In Almitra H. Patel Vs. Union of India, where the issue was whether directions should be issued to the Municipal Corporation regarding how to make Delhi clean, the Court held that it was not for the Supreme Court to direct them as to how to carry out their most basic functions and resolve their difficulties, and that the Court could only direct the authorities to carry out their duties in accordance with what has been assigned to them by law.

Justice A.S. An and former Chief Justice of India, in a public lecture cautioned that with a view to see that judicial activism does not become “judicial adventurism”, judges need to be circumspect and self- disciplined in the discharge of their judicial functions. The worst result of judicial activism is unpredictability. Unless judges exercise self-restraint, each judge can become a law unto himself and issue directions according to his personal fancies, which will create chaos. Reservations have been expressed in many quarters about some very recent decisions of the Supreme Court.

The Indian Supreme Court, while conservative in the initial years, had later a burst of judicial activism through the social philosophies of Justice Gajendragadkar, Krishna Lyer, P.N. Bhagwati, etc. who in the garb of interpretation of Art.14, 19 and 21 of the Indian Constitution created a host of legal norms by judicial verdicts.

Part III of the Indian Constitution enumerates certain Fundamental Rights which are enforceable e.g. freedom of speech, liberty, equality, freedom of religion, etc.

On the other hand Part IV called the Directive Principles of State Policy contain certain socio-economic ideals e.g. right to work, to education, to a living wage, to health etc. which though unenforceable are ideals which the State is directed to strive for. Though Art. 37 states that these Directive Principles are unenforceable, the Indian Supreme Court has enforced many of them often by reading them into certain Fundamental Rights e.g. in Unnikrishan’s case the right to education was read into Article 21.

Judicial activism in Indian scenario

The Indian Constitution, promulgated in 1950, largely borrowed its principles from Western models – parliamentary democracy and an independent judiciary from England, the Fundamental Rights from the Bill of Rights, and federalism from the federal structure in the U.S. Constitution and the Directive Principles from the Irish Constitution. These modern principles and institutions were borrowed from the West and then imposed from above on a semi-feudal, semi-backward society in India.

The Indian judiciary, being a wing of the State, has thus played a more activist role than its U.S. counterpart in seeking to transform Indian society into a modern one, by enforcing the modern principles and ideas in the Constitution through Court verdicts.

In the early period of its creation the Indian Supreme Court was largely conservative and not activist. In that period, which can broadly be said to be up to the time Justice Gajendragadkar became Chief Justice of India in 1964, the Indian Supreme Court followed the traditional British approach of Judges being passive and not activist. There were very few law creating judgments in that period.

Justice Gajendragadkar, who became Chief Justice in 1964, was known to be very pro-labor. Much of the Labor Law which he developed was judge made law e.g. that if a worker in an industry was sought to be dismissed for a misconduct there must be an enquiry held in which he must be given an opportunity to defend himself.

In 1967 the Supreme Court in Golak Nath case held that the fundamental rights in Part III of the Indian Constitution could not be amended, even though there was no such restriction in Article 368 which only required a solution of two third majorities in both Houses of Parliament. Subsequently, in Keshavanand Bharti v. State of Kerala, a 13 Judge Bench of the Supreme Court overruled the Golakh Nath decision but held that the basic structure of the Constitution could not be amended. As to what precisely is meant by `basic structure’ is still not clear, though some later verdicts have tried to explain it. The point to note, however, is that Article 368 nowhere mentions that the basic structure could not be amended. The decision has therefore practically amended A- 368.A large number of decisions of the Indian Supreme Court where it has played an activist role relate to Article 21, and hence we are dealing with it separately

Article 21 and Judicial Activism

Article 21states: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

In A.K. Gopalan v. State of Madras, the Indian Supreme Court rejected the argument that to deprive a person of his life or liberty not only the procedure prescribed by law for doing so must be followed but also that such procedure must be fair, reasonable and just. To hold otherwise would be to introduce the due process clause in article 21 which had been deliberately omitted when the Indian Constitution was being framed.

However, subsequently in Maneka Gandhi v. Union of India, this requirement of substantive due process was introduced into Article 21 judicial interpretation. Thus, the due process clause, which was consciously and deliberately avoided by the Constitution makers, was introduced by judicial activism of the Indian Supreme Court.

Another great arena of judicial activism was begun by the Indian Supreme Court when it interpreted the word `life’ in Article 21 to mean not mere survival but a life of dignity as a human being.

The difference between judicial activism (“loose constructionist”) and “judicial restraint (“strict constructionist”)

These are ways of interpreting the Constitution. A judge who is a strict constructionist might rule in cases in a way that reads the Constitution very literally or relies on the original intent of the framers. A judge that is a judicial activist might rule in a very broad manner that takes into account how times have changed since 1787.

Judicial Activism and Judicial Restraint are two opposite approaches. Judicial activism and judicial restraint, which are very relevant in the United States, are related to the judicial system of a country, and they are a check against the fraudulent use of powers of the government or any constitutional body.

  1. Judicial activism is the interpretation of the constitution to advocate contemporary values and conditions.
  2. On the other hand, judicial restraint is limiting the powers of the judges to strike down a law.

  3. In the judicial restraint, the court should upload all acts of the congress and the state legislatures unless they are violating the constitution of the country.
  4. In judicial restraint, the courts generally defer to interpretations of the constitution by the congress or any other constitutional body.

  5. In the matter of judicial restraint and judicial activism, the judges are required to use their power to correct any injustice especially when the other constitutional bodies are not acting. This means that Judicial activism has a great role in formulating social policies on issues like protection of rights of an individual, civil rights, public morality, and political unfairness.
  6. Judicial activism and judicial restraint have different goals.
  7. Judicial restraint helps in preserving a balance among the three branches of government, judiciary, executive, and legislative. In this case, the judges and the court encourage reviewing an existing law rather than modifying the existing law.

  8. When talking about the goals of judicial activism, it gives the power to overrule certain acts or judgments.

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