Judicial Activism vs Judicial Restraint

In News

• Recently, retiring Delhi HC Chief Justice stressed the need for a balance between judicial activism and judicial restraint.

Observations of Chief Justice

• There is always a gap between justice and law. Merely because the law is enacted, there is no guarantee that justice will be done.
• If there is any gap, a judge has to fill up the gap. 
• In the absence of law, it is for the executive to draft the policy as per the bifurcation of the power and the Constitution. 

Judicial Activism

• Introduced by: 
  • Arthur Schlesinger Jr. introduced the term “judicial activism” in a January 1947 Fortune magazine article titled “The Supreme Court: 1947”.
• About:
  • Judicial activism is a dynamic process of judicial outlook in a changing society. 
  • Judicial activism is an approach to the exercise of judicial review, or a description of a particular judicial decision, in which a judge is generally considered more willing to decide constitutional issues and invalidate legislative or executive actions.
  • In recent years, law making has assumed new dimensions through judicial activism of the courts. 
• Brief History:
  • The case of Vishaka vs State of Rajasthan clearly discusses the need for judicial activism. 
  • The Supreme Court stated that due to the absence of enactment with regards to enforcement of gender equality laws against sexual harassment, it has become imperative for the court to lay guidelines to be followed at all workplaces to observe proper treatment to women. 
  • After that, the judiciary decided to use immense powers in their hands that could modify certain ill deeds taking place in society. 
• Cases:
  • The leading judgement of Maneka Gandhi vs Union of India is an excellent example of judicial activism wherein the Supreme Court recited ‘the procedure established by law’ into Article 21 of the Constitution which is repositioned as ‘due process of law’ or the procedure that ensures justice, equity and good conscience. 
  • The interpretation given to the terms ‘concurrence’ and ‘consultation’ under Article 124 of the Constitution in the Second Judges Case also known as Advocate on  Record vs Union of India, is another example of the use of judicial activism by the court. 
• Advantages of Judicial Activism:
  • Addresses inaction on part of Legislature and Executive.
  • Makes the judiciary vibrant and pro-people.
  • Promotes transparency and accountability in Governance.
  • Ensures checks and balances on the Executive

Negatives of Judicial Activism

• Exceeding Power: 
  • Judges are supposed to exercise judgement in interpreting the law, according to the Constitution.
  • But sometimes they appear to exceed their power in deciding cases before the Court. 
• Hampering Spirit of Constitution:
  • It destroys the spirit of the constitution as democracy stands on the separation of powers between the organs.
• Tyranny of Unelected:
  • Results in tyranny of the unelected as Judges assumes central role in day to day decision making.
• Personal Agenda: 
  • Judicial activism describes judicial rulings suspected of being based on personal or political considerations rather than on existing law.
• Trust Deficit: 
  • It diminishes the trust of the people in public institutions which can be dangerous for democracy.

Judicial Restraint

• About:
  • 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. 
• Criteria: Judges should always try to decide cases on the basis of –
  • The original intent of those who wrote the constitution.
  • Precedent – past decisions in earlier cases.
  • The court should leave policy making to others.
• Cases where Restraint was practised: 
  • The case of State of Rajasthan vs Union of India (1977) is a landmark judgement where the Court decided not to indulge into this matter as it involved political inquiry, thereby adhering to the principle of judicial restraint. 
  • In S.R.Bommai vs Union of India, the Supreme Court held that the case pertained to political inquiry and so, the Courts ought not to meddle. 
  • In Almitra H.Patel vs Union of India, the Supreme Court observed that it was not the duty of the court to direct the Municipality about the manner in which their tasks have to be performed unless there is a clear violation. The court is empowered to only direct the authorities to conduct their activities as is laid down by the law.  

Separation of Powers

• Article 121: 
  • Under Article 121 the Parliament is restricted to discuss the conduct of any judge of the Supreme Court or any High Court. 
• Article 212:
  • The Courts are restricted to inquire into the legislative proceedings under Article 212. 

Way Ahead

• It is clear that the Constitution does not see the judiciary as the substitute for the legislature or the executive upon their failure in any sense but each organ has to practice its own limited activism and monitored restraint.
• Indian scenario requires the creativity and application of personal minds of the judges while interpretation due to the complexity of cases in the present times. 

Source: IE