About the Author: Sneha Raj is a Student of the Chanakya National Law University, Patna.
INTRODUCTION
Conventional wisdom suggests that the judiciary’s role is primarily reactive, which implies that it will come into play when the legislature and executive overreach their authority or enact unconstitutional legislation. Gradually, the entrenched philosophical idea has undergone evolution to include the view that the judiciary has a vital role in safeguarding and promoting the rights of the citizens of India.
Judicial activism is thereby opposed to another doctrine, known as “judicial restraint,” which can be looked at as the judiciary holding judges from exercising their power until it is needful to declare an unconstitutional law void. The line drawn between judicial activism and judicial overreach is a very thin one. By extending the power of the judiciary to meddle in matters of the legislature and executive, this balance can be achieved through judicial restraint.
EXPLORING JUDICIAL ACTIVISM
Judicial activism was a concept that great historian Arthur Schlesinger first used in the year 1947, and the practice was traced from the US. In India, Justice O. Chinnappa Reddy lifted Justice D.A. Desai, Justice V.R. Krishna Iyer, and Justice P.N. Bhagwati to form the genesis of judicial activism. The concept of judicial activism is based on the separation of power and the rule of law. It is very dynamic from the point of view of the judicial process in a society in constant evolution. This theory is said to operate in a situation where the legislature and executive have abandoned their duties, leaving a gap that is filled by the judiciary itself.
A well-reputed jurist has explained judicial activism as: “Judicial Activism is that way of expressing judicial power which seeks fundamental recodification of power relations among the dominant institutions of State, manned by members of the ruling class.”[1]
The two very principles of Natural justice uphold that no person shall be a judge in their cause and that no one shall face judgment without a fair hearing. Came into existence because of the theory of judicial activism and these principles have been used time and again to deliver justice, maintain peace, and uphold fairness.[2]
The theory of judicial activism has thus progressed for several reasons. Since the judiciary is the guardian of the constitution, it has contributed a lot to fill the lacunae left by the legislative and executive branches. This role becomes more pertinent when government machinery fails to address violations and encroachments of one’s fundamental rights. The judiciary, serving as an agent of social change, also promotes progressive and necessary reforms in society via judicial activism. Additionally, judicial activism enriches and strengthens public faith in the judiciary as it continues to serve justice and fairness through its judgments.
TRENDS IN JUDICIAL ACTIVISM
The Indian judiciary, via leveraging judicial activism, has taken a vigilant role in shaping the nation’s legal and societal framework. At the outset of India’s independence, the judiciary was adhering to a conservative approach. Moreover, as time progressed, the judiciary began to adopt a more proactive approach, especially in addressing the issues that impacted the rights and freedom of citizens. The drastic shift in the approach of the judiciary was highly influenced by economic, social, and political challenges that the nation faced, which compelled the judiciary to participate actively to safeguard democratic values.
One of the most conspicuous cases of judicial activism would be Kesavananda Bharati v. State of Kerala.[3] In this case, the Supreme Court held that Parliament does not have the power to alter the basic structure of the Constitution. It has given birth to one of the most important doctrines of history, a basic structure doctrine limiting and restraining the amending power of parliament, which could not tamper with such Core values as democracy, the rule of law, and separation of powers. This extraordinary and unforgettable judgment is a landmark testament to the activism of the judiciary in protecting the Constitution’s soul.
Similarly, Vishaka v. State of Rajasthan[4] is another historical judgment where the Supreme Court laid down guidelines for preventing sexual harassment in the workplace. As at that time, there was no such legislation that dealt with this recurrent issue, these guidelines ensured a safe and secure workplace for women. The court also directed that these guidelines will remain in effect till legislation is passed on this matter via legislation. This case highlighted the judiciary’s activism in dealing with societal issues.
These cases have been worked to prove that the judiciary has an active role in ensuring justice and fairness via judicial activism. This theory has shaped India into a justifiable country, which ensures that social justice is served and the fundamental rights of every individual are protected.
EXPLORING JUDICIAL RESTRAINT
Judicial restraint urges that judges limit their exercise of the power that supports it. It requires that a judge hesitate before declaring a law null and void, except in cases where it violates the Constitution. It believes in ensuring a clear boundary between judicial activism and judicial overreach via practising judicial restraint. It can be regarded as both A substantive and procedural perspective on judicial review. Judicial restraint is regarded as a balanced approach, incorporating both substantive and procedural aspects in judicial review; it is procedural because it calls for judges to avoid resolving questions of law, especially constitutional ones, unless necessary for the resolution of a Concrete conflict between opposing parties. As a substantive doctrine, judicial restraint requires judges to exercise restraint in interpreting the law rather than making policy. This prescript involves caution as it seeks that judicial review not be invoked in support of new ideas or new policy preferences unless strictly necessary.
One of the core tenets of judicial restraint is preserving the separation of powers between the judiciary, executive, and legislature. It helps to maintain the boundary and assures that no other organ of government oversteps its authority, therefore, it can be regarded as maintaining the separation of power, which is a fundamental feature of democratic government. Additionally, it restricts the undue interference of the judiciary and ensures that the executive and legislative can carry out their respective duties. By controlling judicial overreach, the courts exhibit reverence for the Separation of powers and the specific responsibilities of each branch. This respect for the democratic process assures that the policy-making decisions remain in the hands of elected representatives rather than being influenced by judicial involvement. It does not transform or create new legal doctrines; rather, it sustains balance. It enunciates courses of action for reviewing existing laws. Indeed, it will respect the original intent of those who framed the Constitution, for it compels judges to overrule particular judgments or actions only because they are, in terms of clearly established principles of the Constitution, contrary to law.[5]
TRENDS IN JUDICIAL RESTRAINT
It was held in Divisional Manager, Aravali Golf Course v. Chander Haas[6], that separation of powers is mandated by the Indian Constitution in very broad terms, to some extent, however, exceptions are there. It further does not provide for super legislator status to the judiciary or make it an alternative to the inefficacy of the other two organs of the government. It thus leads to the need to define its boundaries by the judiciary.
S.R. Bommai v. Union of India [7]Is a landmark case that practically applied the doctrine of separation of powers under Article 356. This is one of the cases most often cited in favour of judicial restraint. The ruling stated that in some cases, even judicial review cannot be undertaken to examine the subject matter because it is political. The court held that the power under Article 356 was a political question, thus refusing to indulge in any judicial review. According to the court, if one tries to apply the norms of the judiciary in political matters, it is entering the arena of politics which must be avoided by the court.
The same view was reflected in the case of Almitra H. Patel v. Union of India.[8], in which the Supreme Court abstained from guiding the Municipal Corporation on the delegation of duties concerning cleanup in Delhi. The court stated that it would have to assign duties to authorities according to the provisions of law and could not encroach beyond those limits. Justice A.S. Anand, former Chief Justice of India, deprecated in a public lecture that activism should not slip into “judicial adventurism.” Judges, he emphasized, have to exercise restraint and self-restraint in their judicial functions.[9] This, he warned, could prove the worst effect of judicial activism: unpredictability. Without self-restraint on the part of judges, each judge could potentially act on personal whim, thus creating chaos.
CONCLUSION
Judicial Activism indeed has brought significant changes to form a just and equitable society, gaps in legislation, and executive inertia which has left behind some areas for judicial activism. These areas bring the risk of judicial overreach. Judicial restraint, on the other hand, points out how important it is to strike a delicate balance among the three organs in maintaining the smooth running of governance so that the judiciary does not stretch the limits and boundaries drawn by the legislation and executive. Two spheres of judicial thought thus come about through judicial activism and judicial restraint. Each of them has advantages and limitations of its own. The challenge lies in fusing these approaches to maintain a value structure as undergirded with democratic principles. It is by keeping the balance of these values The judiciary can continue to illuminate the path of justice, ensuring fairness and equity in India’s democratic framework.
References:
[1] Upendra Baxi, Courage, Craft and Contention – The Indian Supreme Court in the Eighties (N.M. Tripathi Pvt. Ltd. 1985) 9
[2] Dr. Smita Gupta, ‘Judicial Activism V Judicial Restraint’ (Galgotias University, 2005) <https://www.galgotiasuniversity.edu.in/pdfs/JudicialActivismV%20udicialRestraint.pdf > accessed 12 January 2025
[3] Kesavananda Bharati Sripadagalvaru v State of Kerala AIR 1973 SC 1461
[4] Vishaka & Ors v State of Rajasthan & Ors AIR 1997 SC 3011
[5] ‘Judicial Activism, Restraint & Overreach’ (Drishti IAS, 27 May 2022) <https://www.drishtiias.com/to-the-points/Paper2/judicial-activism-restraint-overreach> accessed 12 January 2025
[6] Divisional Manager, Aravali Golf Club & Anr v Chander Hass & Anr 2008 AIR SCW 406
[7] S.R. Bommai v Union of India 1994 AIR 1918
[8] Almitra H. Patel & Anr v Union of India & Ors AIR 1999 SC 415
[9] Kamalnath Nayak, ‘Judicial Activism v Judicial Restraint: Judicial Review’ (2016) 4(2) International Journal of Reviews and Research in Social Sciences 107 <https://ijrrssonline.in/HTMLPaper.aspx?Journal=International%20Journal%20of%20Reviews%20and%20Research%20in%20Social%20Sciences;PID=2016-4-2-10> accessed 12 January 2025