Judicial Activism and Judicial Restraint : Meaning, Justification, Activators and Apprehensions

Monday, September 21, 2020

Judicial Activism for the first time was introduced in USA in 1947. The concept of Judicial Activism was first proposed by Arthur Schlesinger Junior (an American historian and educator).

In India, the Judicial Activism was first introduced in mid-1970s, by justices, V.R. Krishna Iyer, P.N. Bhagwati, M Chinappa Reddy and D.A. Desai.

Also Read: All About Public Interest Litigation (PIL)

Meaning of Judicial Activism

Judicial Activism is a proactive role played by judiciary to protect individual rights and perform social justice, which can not be possible otherwise.

Judicial Activism is a way of exercising judicial powers in which judges depart from the traditionally practised rule of strict adherence to the 'Judicial Precedent' in favour of progressive and new social policies.

Judicial Activism is marked by decisions which favour social engineering and these decisions are generally seen as intrusion into the Legislature and Executive.

Judicial Activism is also called as 'Judicial Dynamism', which is opposite to the Judicial Restraint, which means the self control practised by judges.

PIL is the result of Judicial Activism role played by the judiciary system. In fact PIL is the most popular form of judicial Activism 

Justifications for Judicial Activism

According to Subhash Kashyap, Judicial activism is required in following situations.

  1. When legislature and executive fail to fulfill responsibilities. 
  2. When a government formed by the way of coalition of more than one party. In such situations, government is afraid of taking harsh decisions(essential for national interests) because it may hurt certain sections of society, which may lead to fall of the Government. 
  3. When a strong Central Government tries to overpower the courts and some times such Governments try to influence judges to satisfy their ulterior motives. 
  4. When Legislature and Executive fail to protect the basic human rights of citizens. 
  5. When judges or courts knowingly or unknowingly become victim of power play, playing the media, hogging the headlines and and publicity stunts.

Activators of the Judicial Activism

The activators of the Judicial Activism role of judiciary are citizens, Bonded labour groups, (Children's Rights, Women's Rights, Social Protection and Environmental) Groups, NGOs, Environmentalists etc.

Apprehensions/Fears of Judicial Activism

1. Ideological Fears

Judicial activism may lead to encroachment on powers of legislature and executive by judiciary.

2. Epistemic Fears

It is not necessary for the judges to be experts of economics, science, politics, society etc. hence decisions taken on these matters may have flaws.

3. Management Fears

The courts are already overloaded with the cases pending from many years and an extra addition for another litigations may create issues of case management and timely delivery of judgements.

4. Legitimation Fears

The courts may loose their authority and power, as a decision or order given by a court in a PIL can be ignored or bypassed by legislature or executive. It will malign the reputation of judiciary in the eyes of the public.

5. Democratic Fears

Very large number of PILs are pending in Indian courts which might deplete potential of judicial activism in future.

Judicial Restraint

This term defines that the role of judges is limited and they are merely to say, what the law is?, leaving the law making process where it belong to i.e. Legislature and Executive.

Under no circumstances judges should be allowed to colour their judicial opinions on the basis of the personal/political/religious views. 

While delivering ata judgement Supreme Court called for the judicial restraint and asked courts not to take over the functions of legislature and executive, saying that there is a broad separation of powers among the different organs of the Government of India in constitution and each organ should respect others and should not encroaches on others.