Introduction
The judiciary has been given a role to enquire about the legal validity, implementation and interpretation of legislation. The judiciary is responsible to safeguard the rights and freedom of all the citizens while serving fair and equitable justice, but as society is changing, the citizens also expect a change in the functioning of the judiciary. This poses a challenge in front of the judiciary. Judicial activism and judicial restraint are the two tools used by the judiciary to overcome this challenge. These tools are used to define the philosophy used by the judges to uphold judicial decisions. Judicial activism considers the changing outlook of society and the spirit of the law while judicial restraint depends upon strict interpretation of laws and the importance of legal precedent. Thus both judicial activism and judicial restraint are the exact opposite of each other.
Judicial activism
Judicial activism ensures that the judges perceive the judicial outlook according to the changing society. According to Black Law’s Dictionary, judicial activism is a philosophy that initiates the judges to depart from the traditional precedents in favour of new social policies. Whenever the executive causes redress to the public, the judiciary comes in to resolve the grievances. This gives rise to the concept of judicial Activism which gives importance to social welfare. Sometimes, the judges rule in favour of the existing ideologies rather than those formulated during the framing of the Constitution. Hence, Judicial activism means exercising a judge’s will in responding to legal issues while at the same time keeping in mind the present-day social needs.
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.
Judges should act more boldly when making decisions on cases.
- Law should be interpreted and applied based on ongoing changes in conditions and values.
- As society changes and their beliefs and values change, courts should then make decisions in cases that 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.
Case laws – Judicial activism
The Supreme Court held that ‘the procedure established by law’ is included in Article 21 of the Constitution which is given as ‘due process of law’ or the procedure that ensures justice, equity and good conscience.
Judicial activism was used to interpret the terms ‘concurrence’ and ‘consultation’ under Article 124.
Judicial restraint
Judicial restraint is a judicial theory that depicts that the judges should exercise powers that are influenced only by Constitutional or statutory mandates and not by their preferences. In short, it means that a law can be struck down only if it is unconstitutional, otherwise, the judges must hesitate to do so. supporters of judicial restraint argue that judges do not possess any policy-making powers and should rely on the legislature, stare decisis and strict judicial interpretation.
According to Eastern Michigan University, judicial restraint is defined as “A jurist (judge or justice) who adheres to a philosophy of restraint can be characterized as one who believes that democracy has intrinsic, not just instrumental, value; that the judiciary is the least powerful of the three branches of government; and reverses the values of stability and predictability in lawmaking.”
As per judicial restraint, the judiciary is expected to follow:
- The intention of the makers of the Constitution
- Precedents
- Not indulge in policymaking
Case laws – Judicial Restraint
As per the principle of judicial restraint, the Court decided not to indulge in this matter as it involved political inquiry.
The Supreme Court held that the case was related to political inquiry and hence the Courts did not involve. Justice Ahmadi stated that if the courts advance judicially sensible standards to investigate political choices, then it would be entering the political brush and scrutinizing the political knowledge, which the court must evade.
The Supreme Court held that it was not the duty of the court to direct the Municipality regarding how their tasks have to be performed until there is a clear violation.
| SRNO. | Judicial activism | Judicial restraint |
| 1 | Interprets Constitution to advocate
contemporary values and conditions. |
Limits the power of the judges to strike down a law |
| 2 | The court uploads all acts of the congress and the state legislatures unless they violate the Constitutional provision | Courts defer interpreting the Constitution by the congress or any other Constitutional body |
| 3 | Judges use their power to correct any injustice especially when the other Constitutional bodies are not acting | Helps in preserving a balance among the three branches of government, judiciary, executive and legislative |
| 4 | Gives the power to overrule certain acts or judgments | The judges and the court review an existing law rather than modifying the existing law |
| 5 | Judges look beyond the original intention of the framers | Judges refer to the original intention of the writers of the Constitution |
Conclusion
Judicial activism and judicial restraint are ways of interpreting the Constitution. A strict constructionist judge may rule cases in a way that reads the Constitution literally and relies on the original intent of the framers whereas a judicial activist may rule in a very broad aspect that takes into account the changing scenario of the society.
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