This Article explores the concept of judicial restraint in the Indian legal
system, its historical background, and its significance in maintaining a balance
between the judiciary's role as a guardian of the Constitution and the
principles of representative governance. Judicial restraint is a concept in
judicial interpretation that encourages judges to restrict the use of their
Judges should be cautious when invalidating laws unless they violate the
Constitution. It stands in direct opposition to the theory of Judicial Activism,
which advocates for judges to engage in shaping and influencing public policy
actively. In contrast, judicial restraint emphasizes the need for judges to
exercise self-restraint and refrain from encroaching upon the authority of the
executive and legislative branches.
This theory calls for the judiciary to
engage in judicial activism but with the limitation of avoiding judicial
overreach. The study highlights the requisites of judicial restraint, including
recognition of the separation of powers, deference to legislative intent,
limited role of the judiciary, presumption of constitutionality, and avoidance
of overreach. Judicial restraint promotes the separation of powers by preventing
the court from overstepping its role and engaging in legislative activities.
Instead, it allows the executive and legislature to fulfil their respective
responsibilities. Courts can concentrate on fulfilling their duties by
exercising judicial restraint, which is crucial given the significant backlog of
cases. This approach ensures that the court can save time on irrelevant matters
and encourages the executive to promptly enact necessary laws within a specified
This Article discusses the evolution of judicial restraint in India
from the initial years of independence to the period of judicial activism and
subsequent course correction. The Article also examines how the Indian
Constitution implicitly incorporates principles of judicial restraint and
examines notable case studies that highlight the application of judicial
restraint in specific contexts. Finally, the Article discusses proposed reforms
and alternative approaches to enhance the effectiveness of judicial restraint in
India's legal system.
Background of Judicial Restraint in India
Judicial restraint implies that judges should exercise self-restraint and limit
their power of judicial review when interpreting and applying constitutional
provisions. It recognizes the need for judges to defer to the elected branches
of government and refrain from encroaching upon their policy-making domain. The
principle of judicial restraint finds its roots in the doctrine of separation of
powers, a fundamental feature of the Indian Constitution. It aims to balance the
judiciary's role as a guardian of the Constitution and the democratic principles
of representative governance.
The framers of the Indian Constitution envisioned an independent judiciary that
would act as a check and balance on potential executive and legislative
excesses. However, they also recognized the importance of judicial
self-restraint to prevent judicial activism from undermining the legitimate
powers of the elected branches.
Over the years, the Supreme Court of India has articulated and applied the
concept of judicial restraint through various judgments. The court has
emphasized the importance of giving due deference to legislative decisions,
respecting the separation of powers, and avoiding judicial overreach. The goal
is to ensure that the judiciary acts as a neutral arbiter rather than an
While judicial restraint has been integral to the Indian constitutional
framework, it has also been subject to criticism and controversy. Some argue
that excessive restraint may result in the judiciary abdicating its duty to
protect constitutional rights and uphold justice. Others contend that judicial
activism is necessary in certain circumstances to address systemic issues and
preserve fundamental rights.
Understanding the background and evolution of judicial restraint in the Indian
Constitution is essential for conducting a critical study on its effectiveness
and implications in the Indian legal system.
Purpose and Significance of the Study
Citizens adversely affected by any action or inaction of the executive have the
right to seek justice through the judiciary. As the guardian of our Constitution
and defender of our rights, the judiciary is widely regarded as the final
recourse for every citizen. It is not a passive entity; instead, it actively
engages in judicial activism, exercising the power of judicial review to assess
the actions of the other branches of government. This proactive role of the
judiciary is aimed at safeguarding the rights of citizens.
However, there are instances when the judiciary's intervention extends beyond
the boundaries of the legislature or executive, leading to judicial overreach.
Judicial restraint was introduced to address this concern, providing an
alternative approach for judges to consider when making decisions. Judicial
restraint prevents judges from allowing their personal views to interfere with
their duty to interpret the law[i].
Overview of Judicial RestraintMeaning and Requisites of Judicial Restraint
Judicial restraint is a principle that advocates for the judiciary to exercise
restraint and limit the use of its judicial powers. In simpler terms, it
involves judges refraining from injecting their personal preferences into legal
Judicial restraint stands in contrast to judicial activism, which entails judges
refraining from interfering with democratic politics. It is essential as it
allows the normal political process to function and promotes democratic
self-governance by entrusting policy decisions to elected officials.
The concept of judicial restraint emphasizes the need for caution within the
judiciary. Judges should have a limited role, focusing primarily on interpreting
laws. In other words, the court should avoid unnecessary interference with the
functioning of the government branches.
Judicial restraint refers to the approach taken by judges in exercising
self-restraint and prudence when interpreting and applying the law, particularly
in cases involving constitutional matters. It consists of principles and
guidelines that guide judges to limit their power and defer to the decisions and
actions of the elected branches of government, such as the legislature and
The Essential Requisites Of Judicial Restraint Include The Following:
- Recognition of Separation of Powers:
Judicial restraint recognizes and respects the separation of powers doctrine, which allocates distinct roles and powers to the judiciary, legislature, and executive branches of government. Judges exercise restraint by refraining from interfering with policy decisions that fall within the purview of the legislative and executive branches.
- Deference to Legislative Intent:
Judicial restraint entails deference to the legislature's intent and decisions when interpreting laws. It acknowledges that elected representatives are accountable to the public and are better positioned to make policy choices. Judges exercise restraint by interpreting statutes consistent with the legislature's intent rather than imposing their policy preferences.
- Limited Role of the Judiciary:
Judicial restraint recognizes that the judiciary's primary goal is to interpret and apply the law rather than engage in policy-making. It involves judges refraining from expanding their authority beyond what is necessary to resolve the legal issues before them.
- Presumption of Constitutionality:
Judicial restraint involves a presumption of constitutionality wherein judges presume that laws passed by the legislature are valid and constitutional. Judges exercise restraint by not striking down laws unless inconsistent with the constitutional framework.
- Avoidance of Overreach:
Judicial restraint emphasizes encouraging judges to respect the institutional competencies of the executive and legislative branches and refrain from substituting their judgment for that of elected representatives. Judges exercise restraint by showing deference to the political process and intervening only when necessary to safeguard constitutional rights.
By adhering to these principles, judges practising judicial restraint aim to
uphold the rule of law, promote democratic governance, and maintain the proper
balance among the branches of government. However, the precise application and
extent of judicial restraint can vary depending on the specific legal and
Evolution and Historical Context of Judicial Restraint in India
The historical context and evolution of judicial restraint in India can be
traced back to the framing of the Indian Constitution and subsequent judicial
interpretations over the years.
The framers of the Indian Constitution sought to establish a democratic and
egalitarian society while ensuring the independence of the judiciary. They
recognized the need for judicial review to protect fundamental rights and
maintain a check on executive and legislative actions. However, they also
emphasized the importance of judicial self-restraint to preserve the separation
In the initial years after independence, the Supreme Court of India adopted a
relatively restrained approach. It primarily focused on interpreting
constitutional provisions and upholding the rights of individuals while showing
deference to legislative decisions and executive actions.
From the 1970s onwards, there was a noticeable shift towards judicial activism,
marked by an increased willingness of the judiciary to intervene in matters of
public interest. The Supreme Court began interpreting fundamental rights
expansively and proactively addressing social and economic inequalities. This
period witnessed landmark judgments in environmental protection, public interest
litigation, and socio-economic rights.
As judicial activism gained prominence, there was growing criticism of judicial
overreach and the perceived encroachment on the policy-making domain of the
legislature and executive. Critics argued that the judiciary was assuming the
roles of legislator and administrator, potentially undermining the principle of
separation of powers. This led to the application of judicial restraint.
In response to the criticism, the Supreme Court of India sometimes demonstrated
a shift towards judicial restraint. The court acknowledged the need to respect
the separation of powers, show deference to elected representatives, and
exercise caution in intruding into policy matters. This marked a course
correction in certain areas while protecting fundamental rights and
Presently, the Indian judiciary continues to strike a balance between judicial
activism and restraint. They are the sides of the same coin. The courts exercise
judicial restraint by deferring to legislative intent, avoiding judicial
interference in policy matters, and emphasizing the importance of democratic
deliberation. However, the court also recognizes its responsibility to protect
constitutional rights and ensure the rule of law, leading to occasional
instances of judicial activism when necessary.
Indian Constitution and Judicial Restraint
Even though judicial restraint has not been specifically mentioned in our
Constitution, it can be derived from various Articles enshrined in the
The Indian Constitution enshrines the principle of separation of powers, which
assigns distinct roles and powers to the legislature, executive, and judiciary.
Articles 245 to 255 of the Constitution delineate the legislative powers of the
Union and states, ensuring that the judiciary does not encroach upon the
Article 13 of the Indian Constitution empowers the judiciary to review and
strike down laws inconsistent with the Constitution. However, Article 372
provides for the continuance of pre-constitutional laws unless they are
repugnant to the Constitution. This provision signifies the need for judicial
restraint in overturning existing laws, giving due deference to the
Part III of the Constitution guarantees fundamental rights to Indian citizens,
including the right to equality, freedom of speech, and protection from
discrimination. While the judiciary plays a crucial role in safeguarding these
rights, it also exercises restraint by recognizing the legislature's authority
to enact reasonable restrictions on these rights in the interest of public
order, morality, or security.
Part IV of the Constitution contains the Directive Principles of State Policy
guidelines for the government to pursue social and economic welfare. While not
enforceable in courts, Article 37 emphasizes that these principles should inform
legislative and executive actions. Judicial restraint requires the judiciary to
respect the policy choices made by the elected representatives rather than
substituting its views.
Article 105 provides certain privileges and immunities to members of Parliament,
safeguarding their freedom of speech and enabling them to discharge their
legislative functions effectively. Judicial restraint requires the judiciary to
respect and refrain from undue interference with parliamentary proceedings,
preserving the legislature's integrity.
The amending power of the Indian Constitution is outlined in Article 368. While
the judiciary has the authority to review the constitutionality of amendments,
judicial restraint recognizes the limited scope of review and the need to
respect the constitutional amendment process, allowing the elected
representatives to exercise their amending powers.Case Studies:
- State of Rajasthan vs Union of India[ii]:
Rajasthan and six States filed suits in the SC to declare the letter of the Home Minister to advise Governor to dissolve the state assembly as illegal under Article 131. This Article deals with the original jurisdiction of the Supreme Court. A State can invoke Article 131 to approach the Supreme Court when another State or the Central government threatens or violates its legal right.
The SC held that the legal right here refers to that of a State and not the government in power. The court decided not to indulge in this matter as it involved political inquiry, thereby adhering to the principle of judicial restraint.
- S.R. Bommai vs. Union of India[iii]:
The Supreme Court held that exercising power under Article 356 of the Constitution was a political question. Therefore, the judiciary should not interfere. Justice Ahmadi said that if the courts examine the political decisions, they would enter the political domain and question the political wisdom. And this is what the court must avoid.
- Almitra H. Patel vs Union of India[iv]:
In this case, the Supreme Court refused to direct the Municipal Corporation on assigning responsibility for Delhi's cleanliness. It stated that it could only assign authorities to carry out the duty assigned as per law. It is not for the Supreme Court to direct them on how to carry out their essential functions and resolve their difficulties.
- Aravali Golf Club vs. Chander Hass [v]:
The Supreme Court scrutinized the principle of judicial restraint in this
case. Judicial activism and judicial restraint are two contrasting judicial
philosophies in the United States. Supporters of judicial restraint argue
that judges should have limited roles, simply interpreting the law without
engaging in lawmaking, which is the responsibility of legislators and
According to our Constitution, the legislative, executive, and judicial
branches have distinct authority areas. It is generally inappropriate for
any of these branches to trespass upon the jurisdiction of another, as it
would disrupt the delicate balance established by the Constitution and
likely trigger a negative response. Judges should recognize their
limitations and refrain from attempting to govern. They should display
modesty and humility, avoiding behaving like rulers. The Constitution
establishes a clear separation of powers, and each branch�the legislature,
executive, and judiciary�must respect the boundaries of the others and avoid
infringing upon their respective domains.
The Apex Court also shed light on the French philosopher Montesquieu's book "The
Spirit of Laws", where he propounded the theory of separation of power for the
first time. The book states how liberty is compromised when the legislative and
executive powers are consolidated in the same person or group.
In such a
situation, enacting and enforcing unjust laws is risky. Similarly, if the
judicial power is not separate from the legislative and executive, the life and
freedom of individuals can be subjected to arbitrary control. If the judiciary
is merged with the executive, judges may act with violence and oppression.
Maintaining the separation of these powers is crucial to prevent the
concentration of authority in a single entity, whether an individual or a
collective body, as it would undermine the foundations of a functioning society.
The Hon'ble Supreme Court held Montesquieu's warning particularly apt and timely
for the Indian Judiciary in recent times since it is often rightly criticized
for `over-reach' and encroachment into the domain of the other two organs.
Criticisms Against Judicial Restraint and Their Evaluation:
Inadequate Protection of Fundamental Rights:
Excessive judicial restraint may lead to inadequate protection of fundamental rights, especially in cases where the legislature fails to address violations or enact necessary safeguards. If the judiciary refrains from intervention and defers legislative choices, it could result in rights violations going unaddressed, impacting marginalized or vulnerable groups.
Flexibility to Changing Societal Needs:
Societal needs and values evolve, and judicial restraint may limit the judiciary's ability to adapt to these changes effectively. In cases where legislation needs to catch up to societal developments, strict adherence to judicial restraint may impede the judiciary's role in interpreting and applying the Constitution to address emerging issues and protect evolving rights.
Potential for Tyranny of Legislative Majoritarianism:
Judicial restraint may inadvertently enable legislative majoritarianism, where the majority will prevail without sufficient judicial scrutiny. This can be a concern when the majority may pass laws that infringe upon minority rights or violate constitutional principles.
Preservation of Status Quo and Social Inequality:
Excessive judicial restraint may lead to preserving the status quo,
maintaining existing power structures and perpetuating social inequalities.
When the judiciary refrains from intervening in social and economic
inequality matters, it may limit the scope for transformative change and
hinder efforts to achieve a more just and equitable society.
While judicial restraint may limit the judiciary's ability to address social
inequality directly, it is not the sole mechanism for promoting equality. The
judiciary can still play a vital role in ensuring equal protection, striking
down discriminatory legislation, and interpreting constitutional provisions
Proposed Reforms and Alternative Approaches
Establishing comprehensible criteria for judicial review can guide the judiciary
in exercising restraint. This could include outlining specific principles or
tests to determine when and how the courts should intervene in matters of policy
or legislation. Such clarity can help balance judicial review and respect for
the legislative and executive branches.
Enhancing judicial education and training programs can contribute to a better
understanding of the principles and nuances of judicial restraint. This would
enable judges to make well-informed decisions, considering the constitutional
framework and the separation of powers while respecting the role of elected
representatives and the democratic process.
Promoting more meaningful consultation between the judiciary, legislature, and
executive can foster a better understanding of each branch's roles and
responsibilities. Regular interactions and discussions can build mutual trust,
reduce misunderstandings, and encourage a more collaborative approach to
addressing constitutional issues and policy matters.
Emphasizing robust legislative scrutiny mechanisms can reduce the need for
judicial intervention. Enhanced parliamentary committees, rigorous debate, and
consultations during the legislative process can lead to well-crafted laws that
consider constitutional principles, avoiding the need for subsequent judicial
Increasing public awareness about the judiciary's role, the separation of
powers, and the importance of judicial restraint can foster a more informed and
engaged citizenry. This can encourage public scrutiny of legislative actions,
promote responsible governance, and contribute to a more effective balance of
Ensuring a transparent and merit-based process for judicial appointments can
help maintain the independence and integrity of the judiciary. A
well-functioning appointment process can result in the selection of judges
committed to upholding constitutional values and principles, including judicial
India has a democratic form of government. The main distinction between
democracy and other forms of government is that in a democracy, the people's
will is channelled through elected representatives who act on their behalf.
These representatives derive their authority from elections and are chosen by
the people to represent their interests. Consequently, their statements and
actions are assumed to reflect the desires of the voters who elected them.
In contrast, judges are appointed rather than elected by the general public.
Therefore, limiting the power vested in those not selected by the people is
crucial. Granting them excessive authority to determine the law would contradict
the principles of democracy. This is why exercising judicial restraint is vital
in our system.
Judicial restraint is a principle of judicial interpretation that advocates for
judges to limit the exercise of their power and defer to the elected branches of
government. It recognizes the importance of the separation of powers. It aims to
balance the judiciary's role as a guardian of the Constitution and the
democratic principles of representative governance.
The concept of judicial restraint has evolved in the Indian legal system since
the framing of the Constitution. While the judiciary is tasked with protecting
fundamental rights and ensuring the rule of law, it also acknowledges the need
for self-restraint to prevent judicial overreach. Over the years, the Supreme
Court of India has emphasized the importance of deference to legislative
decisions, respecting the separation of powers, and avoiding unnecessary
interference in policy matters.
However, judicial restraint has faced criticism for potentially inadequate
protection of fundamental rights, limitations in adapting to changing societal
needs, enabling legislative majoritarianism, and preserving social inequalities.
Striking the right balance between judicial intervention and restraint is
crucial to address these concerns.
In practice, the Indian judiciary strives to balance judicial activism and
restraint. While showing deference to the decisions and actions of elected
representatives, the court also recognizes its responsibility to protect
constitutional rights and ensure the rule of law. The precise application of
judicial restraint may vary depending on the specific legal and constitutional
Understanding judicial restraint's background, requisites, and implications is
essential for critically analyzing its effectiveness in the Indian legal system.
By adhering to the principles of judicial restraint, the judiciary aims to
uphold the rule of law, promote democratic governance, and maintain the delicate
balance among the branches of government.
- 1977 AIR 1361, 1978 SCR (1) 1
- 1994 AIR 1918, 1994 SCC (3) 1
- AIR 2000 SC 1726
- 2008 (1) SCC 683
Award Winning Article Is Written By: Ms.Arpita Ananya Mohapatra
Authentication No: JL319324096492-12-0723