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Judicial Activism and Judicial Restraint

The Judiciary has been assigned active role under the constitution. Judicial activism and judicial restraint are facets of that courageous creativity and pragmatic wisdom.

The concept of Judicial activism is thus the polar opposite of Judicial restraint. Judicial activism and Judicial restraint are the two terms used to describe the philosophy and motivation behind some judicial decision. At most level, judicial activism refers to a theory of judgment that takes into account the spirit of the law and the changing times, while judicial restraint relies on a strict interpretation of the law and the importance of legal precedent.

Judicial Restraint:

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, 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. 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.

Trends in judicial restraint:

One of the examples of judicial restraint is the case ofState 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 S.R. Bommai v Union of India (1994),the 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. The court held 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 (1998),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.

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

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.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 by taking into consideration the following aspects:

  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 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.

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 activism:

In 1967 the Supreme Court in Golakh Nath v. State of Punjab (1967), 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 resolution of two third majorities in both Houses of Parliament. Subsequently, in Keshavanand Bharti v. State of Kerala (1973), 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 Article 368.

A large number of decisions of the Indian Supreme Court where it has played an activist role relate to Article 21 of the Indian Constitution.Article 21 states: 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 (1950), 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 (1978), this requirement of substantive due process was introduced into Article 21 by 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.

The Supreme Court in Francis Coralie vs. Union Territory of Delhi (1981)held that the right to live is not restricted to mere animal existence. It means something more than just physical survival. The Court held that:� the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing one-self in diverse forms, freely moving about and mixing and comingling with fellow human beings.

The right to privacy which is a new right was read into Article 21 in R. Rajagopal Vs. State of Tamil Nadu (1994). The Court held that a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education, among other matters.

The right to food as a part of right to life was also recognised in Kapila Hingorani Vs. Union of India (2003)whereby it was clearly stated that it is the duty of the State to provide adequate means of livelihood in the situations where people are unable to afford food.

The Court has also held that the right to safe drinking water is one of the Fundamental Rights that flow from the right to life. Right to a fair trial, right to health and medical care, protection of tanks, ponds, forests etc which give a quality life, right to Family Pension, right to legal aid and counsel, right against sexual harassment, right to medical assistance in case of accidents, right against solitary confinement, right against handcuffing and bar fetters, right to speedy trial, right against police atrocities, torture and custodial violence, right to legal aid and be defended by an efficient lawyer of his choice, right to interview and visitors according to the Prison Rules, right to minimum wages etc. have been ruled to be included in the expression of 'right to life' in Article 21.

Thus we see that a plethora of rights have been held to be emanating from Article 21 because of the judicial activism shown by the Supreme Court of India.

Judicial activism vs. Judicial restraint:

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.

The points of difference between the two are as follows:

  1. Judicial activism is the interpretation of the constitution to advocate contemporary values and conditions. On the other hand, judicial restraint is limiting the powers of the judges to strike down a law.
  2. In the judicial restraint, the court should uphold all acts of the congress and the state legislatures unless they are violating the constitution of the country. In judicial activism, the courts generally defer to interpretations of the constitution by the congress or any other constitutional body.
  3. Judicial activism and judicial restraint have different goals. 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.Judicial activism gives the power to overrule certain acts or judgments.
  4. Judicial restraint Judges should look to the original intent of the writers of the Constitution. Judicial activism judges should look beyond the original intent of the framers.

Thus judicial activism has contributed to the developed interpretation of law. However, When Judges start thinking they can solve all the problems in society and start performing legislative and executive functions (because the legislature and executive have in their perception failed in their duties), all kinds of problems are bound to arise.

Judges can no doubt intervene in some extreme cases, but otherwise they neither have the expertise nor resources to solve major problems in society. Also, such encroachment by the judiciary into the domain of the legislature or executive will almost invariably have a strong reaction from politicians and others.� ��

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