JUDICIAL ACTIVISM AND JUDICIAL RESTRAINT

In author’s view, in India the idea of judicial activism is much more prominent than judicial
restraint. As per the Black Law Dictionary the meaning of judicial activism is ‘it is process of
judicial making whereby the Judges depart from the traditional method and allow their
personal opinion and views to set new social policies’. The term judicial activism coined by
Arthur Schlesinger Jr. in 1947 in his work ‘Supreme Court 1947’ has now more importance
than ever. In the Indian case, though not anywhere explicitly mention the separation of power
as the part of the constitution, but it is indeed a very important part of it as the Supreme Court
in the case of State of Bihar vs. Bal Mukund Shah 1 has pointed out that separation of power
is one of the basic feature of the constitution. As per this doctrine the organs of government
have the fullest power in their own field and they are no unnecessary intervention by other
organs in each other’s field which basically means that the work of the Judiciary is just to
implement the laws as John Austin has said that the judiciary and judges are only there to
implement the will of the sovereign. However in the present times, there are numerous
example where the judges have crossed its limits and assumed the role of law-maker, such a
work by the judiciary sometimes been called as the ‘Judicial Legislation’. The most famous
example in India, is the Vishakha Guidelines, where courts framing the guidelines against
sexual harassment at workplace till a proper legislations comes into force.

Article 21 of the Indian constitution has a long history with the concept of judicial activism.
Where the meaning of the word ‘life’ has been given literally the broadest possible meaning
by the courts. As happened in the case of Francis Coralie vs. Union Territory of Delhi2 where
the court said that the right to life is not restricted to mere animal existence, it is more than
just the physical existence of a being. Again in the case of Bodhisattwa Gautam vs. Subhra
Chakraborty3 where the court again interpreting the term life in board sense said that the rape
is the violation of person’s Article 21. The recent been the right to privacy been read under
article 21 as per the case of Justice K.S. Puttaswamy (Retd.) vs. Union of India4 one of the
milestone ruling by the Indian Supreme Court.

These are just a few example where the court used the concept of Judicial Activism has given
boarder interpretation or has made social policies for the welfare of the general public and
society.

1 (2000) 4 SCC 640

2 AIR 1978 SC 597
3 AIR 1966 SC 922
4 Writ Petition (CIVIL) NO. 494 of 2012
What the author here is trying to say is that in Indian case the courts have assumed upon
themselves the rule law maker and has at times over used its power as the final interpreter of
the Constitution of India.

The term which is exactly opposite of judicial activism is judicial restraint, which is more like
a theory of the interpretation where by the Judges are asked to limit their power and not strike
any legislation as unconstitutional unless proven beyond reasonable doubt, the example of
this could be the doctrine of the breaking down wherein there are two interpretation of any
legislation the court is supposed to go down with the interpretation that favours the
constitutionality of the legislation as happened in the case of the Kedar Nath Singh vs. State
of Bihar 5 where the court favoured the constitutionality of section 124A of the Indian Penal
Code. The idea of judicial restraint is sometimes may be mistaken with the new concept of
Judicial Overreach. However, in this work the author would like to make a note that both the
concepts are quite different and there is thin line difference between them. As for the case of
Overreach it is in the author’s view is the consequence of not following the idea of judicial
restraint wherever required as a result the judiciary steps into the shoes of legislator when it
clearly should not.

However, there is constant debate what is the actual limit of the judiciary, where should it
stop. This questions has started to take place in the critics now more than ever, because of
certain case of the overreach of the power by the judiciary. The examples could be the case of
implementation of the national anthem in every cinema or the infamous case of censorship of
the movie Jolly LLB 2 or the liquor ban on the state highways or the national roads. These
certain actions by the court has made people question the very notion of separation of power
and inbuilt system of checks and balance of the Indian Constitution to prevent the
concentration of power with single organ of the government.

The author is very much on the same page as our constitutional law makers were when they
emphasised the need of an independent judiciary to save the Indian democracy and its
advantages. But, with time the concept is changing although the author is not saying that
every intervention by the judiciary is bad in law, some proved to be very useful or the
betterment of the society as a whole, nevertheless it needs to be understood not all glitters are
gold, so as not all Jurist are the same. It is highly possible that the personal opinion might be
implemented under the disguise of judicial activism with the name of ‘for the betterment of

5 1962 AIR 955

the people’. The example could when the Rajasthan HC Judge saying on record that peacock
should be the national animal of India, because it reproduce without having sex.

So with this work the author is still trying to figure the limit of the judiciary andr where the
line should be drawn.