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This is an exhaustive article written by Shruti Kulshreshtha, from Symbiosis Law School, Hyderabad on the difference between judicial activism and judicial restraint in the Indian scenario. 

Introduction

The Judiciary holds a quintessential position in India as it is empowered to enquire legal validity, implementation and interpretation of the legislation. The judicial system is expected to function in such a manner so as to safeguard the rights and liberties of all the citizens while serving fair and equitable justice. In the rapidly changing Indian socio-economic-political scenario, citizens expect a change in the performance and duties by the judiciary in accordance with the changing perspectives, which poses a challenge in ensuring justice. Here, the concepts of judicial activism and judicial restraint comes into the picture. These concepts are used to define the philosophy used by the judges to uphold a judicial decision, being the exact opposite of each other. Basically, they describe how judges judge. While the former is a dynamic concept that considers the changing outlook of the society, the latter depends upon the strict interpretation of laws. Both of these concepts depend upon various other doctrines and ideologies which will be discussed.

To know more about Judicial Activism v. Judicial Restraint in brief, please refer to the video below:

Judicial Restraint

Judicial restraint is a theory of interpretation for the Judiciary. It is a notion which portrays that the judges should limit the exercise of their powers by not influencing the decision or the proceedings with their own preferences and perspectives, rather by the constitutional and statutory mandates. It propounds that judges must hesitate in striking down the laws until and unless these laws are unconstitutional. The jurists supporting judicial restraint argue that judges do not possess any policy-making powers and hence, they should rely upon the legislative intent, stare decisis and strict application of judicial interpretation. 

A famous definition of judicial restraint is given by the Eastern Michigan University published by the Fundamentals of Judicial Philosophy as, “A jurist (judge or justice) who adheres to a philosophy of restraint can be characterized as one who believes that democracy has intrinsic, not just instrumental, value; that the judiciary is the least powerful of the three branches of government; and reveres the values of stability and predictability in lawmaking.”  

As per this procedural doctrine, the judges are required to grant substantial deference in the cases dealing with constitutional issues and nullify their actions only when there is a coherent violation of constitutional principles. The notion of judicial review should be limited by the courts so that new ideas in policies can be promoted. Hence, the Judiciary must focus on the following aspects:

  1. The intention of the makers of the Constitution
  2. Precedents
  3. Not indulge in policy-making

The case of State of Rajasthan vs Union of India (1977) is a landmark judgement where the Court decided not to indulge into this matter as it involved political inquiry, thereby adhering to the principle of judicial restraint. Also, in S.R.Bommai vs Union of India, the Supreme Court held that the case pertained to political inquiry and so, the Courts ought not to meddle. Justice Ahmadi stated that it was hard to advance judicially sensible standards to investigate the political choices and if the courts do it then it would be entering the political brush and scrutinizing the political knowledge, which the court must evade. In another case, Almitra H.Patel vs Union of India, the Supreme Court observed that it was not the duty of the court to direct the Municipality about the manner in which their tasks have to be performed unless there is a clear violation. The court is empowered to only direct the authorities to conduct their activities as is laid down by the law.  

Judicial Activism

Judicial activism is a principle contrasting to judicial restraint whereby the jurists believe that the judges should perceive the judicial outlook according to the transforming society. As per the Black’s Law Dictionary, judicial activism is judicial philosophy which motivates judges to depart from the traditional precedents in favour of progressive and new social policies. When the executive does not make decisions in favour of the public, the Judiciary, with the powers vested by the Constitution, rules to solve such public grievances. This gave rise to the concept of judicial activism which has given importance to social welfare. Sometimes, the judges decide to interpret the law in such a manner which goes in consonance with the existing ideologies rather than those formulated during the drafting of the Constitution. Judicial activists hold decisions by exercising their own will in the cases and responding to legal issues by keeping in mind the social needs of the present day. 

The supporters of this principle believe that the law should be interpreted in accordance with the ongoing values and conditions since they change with the changing society. Hence, the judgments must reflect these changes too. The courts should utilize their powers to rectify injustice when the other branches of the government do not act in an expected manner. 

However, in recent times, the concept of judicial activism has been criticized by the legal fraternity since it goes against the doctrine of separation of powers by interfering into the fields of the other organs of the government. It also promotes the judges to not give a strict interpretation to the Indian Constitution, thereby reducing the sanctity of the grundnorm of the nation and opposing the intent of the makers of the Constitution. The leading judgment of Maneka Gandhi vs Union of India is an excellent example of judicial activism wherein the Supreme Court recited ‘the procedure established by law’ into Article 21 of the Constitution which is repositioned as ‘due process of law’ or the procedure that ensures justice, equity and good conscience. The interpretation given to the terms ‘concurrence’ and ‘consultation’ under Article 124 of the Constitution in the Second Judges Case also known as Advocate on  Record vs Union of India, is another example of the use of judicial activism by the court. 

Separation of powers and Judicial restraint

According to Montesquieu, the life and liberty of the citizens would be endangered if the judicial powers and legislative powers are merged, as then the judge would act as a legislator. Even if the judicial and executive powers are merged, the judge would act as an oppressor, which might result in arbitrary actions. Hence, he argues that the principle of separation of powers is eternal to the modern system of democratic governance. Prof. D.D.Basu has precisely explained the doctrine of separation of powers consisting of the following two cardinal principles:

  1. The Legislative, Executive and Judiciary cannot perform any function that belongs to either of the other two organs.
  2. The legislature cannot delegate its powers and duties.

Although this system is nowhere written in the Indian Constitution, it is followed for governance purposes. There are certain Articles in the Constitution that suggest this doctrine, but still, it is not stated expressly. In fact, the doctrine of separation of powers has been declared to be one of the basic features of the Constitution in the case of the State of Bihar vs Bal Mukund Shah.

This doctrine is not applied in the strict sense in India. The Constitution has attempted to follow it by entrusting each organ in a specific sense. For example, under Article 121 the Parliament is restricted to discuss the conduct of any judge of the Supreme Court or any High Court. Similarly, the Courts are restricted to inquire into the legislative proceedings under Article 212. Hence, it is clear that the Constitution does not see the judiciary as the substitute for the legislature or the executive upon their failure in any sense. The judiciary is required to set its own limitation. Here comes the role of judicial restraint.  

As discussed earlier, the case of State of Rajasthan vs Union of India is the perfect example of the application of the doctrine of separation of powers in promoting judicial restraint, where the court deemed it fit to not indulge in the matter as it was highly related to political matters. Justice A.S.Anand, former CJI said that judges must follow self-discipline in exercising their judicial functions as if judicial restraint is not observed, each judge will create a new law himself resulting in huge chaos. Thus, to limit the judges to exercise their powers according to their own opinions and personal fancies, judicial restraint is crucial. 

An example of the misuse of powers by the judiciary is J.P.Unnikrishnan vs State of Andhra Pradesh, where the courts read Article 37 while interpreting Article 21 of the Constitution. It is important to note that Article 37 is a Directive principle of State Policy, which is a socio-economic ideal, unenforceable in the law. On the other hand, Article 21 is a Fundamental Right. Hence, the principle of judicial activism led the court to follow a different path as compared to the intention of the makers of the constitution.  

As the principle of separation of powers is already established, the judge has a limited role to follow and apply the law made by the legislature. Supporters of the notion of judicial restraint believe that the judge is required to administer a law regardless of its fairness to the public policy. However, strict implementation can have adverse effects despite the pure object of any legislation. The evaluation of the role of the judiciary has disclosed that the duties of a judge are circumscribed to be that of a legislator too. The drafters of any legislation cannot comprehend the infinite possibilities of occurrences out of the same field of law. It is generally impossible for a law to cover all the prospects of a situation and make a provision for its mandate or rectification or remedy.

Therefore, the chances of outcome are vast making it inevitable for any enactment to leave some of the corners of possibilities unaddressed. There can be a set of facts which are unimaginable by a pre-existing generality of law. In such cases, the judge is bound to read into the minds of the makers of the legislation for the purpose of its interpretation and deliver an appropriate decision. Hence, the judge steps into the shoes of the legislator so as to decide upon the case. Here, the strict interpretation of judicial restraint and doctrine of separation of powers would render the judgement useless or maybe, non-viable.

Trends in Judicial Activism

The Indian Constitution does not mention the words judicial activism anywhere. However, it has become an integral part of judicial interpretation. The concept of judicial activism has expanded with the incoming and liberalization of locus standi, judicial review, amendments and the advent of Public Interest Litigation (PIL), also known as Social Action Litigation (SAL). With the emergence of public-spirited individuals and organizations, the active participation of the society in general and against arbitrary public actions increased, thereby advancing the role of access to justice. 

In the landmark judgment of Kesavananda Bharati vs State of Kerala, the Apex Court held that the amendments involving the basic features of the Constitution such as democracy, rule of law, the federal system, secularism and independence of the judiciary shall be held unconstitutional. This gave rise to the doctrine of the basic structure. Here, it is important to note that the doctrine of basic structure is not mentioned in the text of the Constitution but is established by the court. This is the best example of judicial activism in the Indian scenario as the court evaluated the misuse of policies promulgated by the organs of the government. Justice Bhagwati has also stated that judicial activism is the central feature of every political system which empowers the free and independent judiciary with adjudicatory powers.

The necessity of judicial activism in the present scenario

In order to understand the need of judicial activism, we need to analyze the reasons due to which the judiciary was forced to play an active role. There were times when it was evident that corruption was setting foot in the organs of the government, be it the money power in politics, the callous framework of the executive, parliamentary ignorance, subversion of democracy etc. In such a scenario, it was difficult for the judiciary to become a mere spectator with immense powers in their hands that could modify certain ill deeds taking place in society. The rule of law mandates to uphold the constitutional obligation of maintaining democracy and it is the role of the judiciary to bring the society onto the right tracks. Courts realised that if they remain to be reluctant to step in some areas of blurred boundaries, the basic structure of democracy would be compromised. 

Justice Gajendragadkar introduced various regulations in the labour law regime by way of his judgments as he felt the need of having rules beyond the legislations. One of such examples is that he directed a worker dismissed due to the reason of misconduct, a mandatory enquiry shall be held to give an opportunity to defend himself as held in the case of G. Satyanarayana vs Eastern Power Distribution Company. 

The case of Vishaka vs State of Rajasthan clearly discusses the need of judicial activism. The Supreme Court stated that due to the absence of enactment with regards to enforcement of gender equality laws against sexual harassment, it has become imperative for the court to lay guidelines to be followed at all workplaces to observe proper treatment to women. Further, the court directed that these guidelines shall be treated as a law under Article 141 of the Constitution until legislation for this purpose has been enacted by the Parliament. Such cases portray the need for implementation of judicial activism in India.  

Article 21 and Judicial Activism

According to Article 21 of the Indian Constitution, no person shall be deprived of life and liberty except by the procedure established by law. In A.K.Gopalan vs State of Madras, the Supreme Court ordered that not only a procedure established by law is required for upholding the life and liberty of an individual, but it is quintessential for such procedure to be just, fair and reasonable. Justice Harilal rejected the contention and interpreted the word ‘procedure’ under Article 21. However, the Court by a majority held that it shall not enquire into the reasonableness of the procedure given by the legislature. This was the position in the 1950s.

In the 1960s, with the Golaknath case, the country witnessed the protective attitude of the judiciary when it was ruled that the Parliament itself does not have any right to take away the fundamental rights of the citizens by way of any further legislation. For those enactments already passed and implemented, the rule of prospective overruling shall be applicable. 

In the post-emergency period, India saw the liberalization of interpretation of fundamental rights. The narrow interpretation given to ‘procedure established by law’ was disposed of and the Supreme Court gave a liberal interpretation to Article 21 via Maneka Gandhi vs Union of India and Others. In this case, the ambit of ‘public interest’ was widened and the court gave liberal interpretation to ‘procedure established by law’ under Article 21 of the Constitution. A few years later, the judiciary noticed that victims of the violations of fundamental rights were not being able to seek redressal for a plethora of reasons, majorly the lack of finances and literacy to approach the judiciary. Hence, the Courts expanded the concept of locus standi to introduce Public Interest Litigation with the purpose of a better representation of all strata of the society. PILs are the most fruitful results of judicial activism by the judiciary.

Another prospect of judicial activism was opened when the ‘right to privacy’ was read under Article 21 in the case of R.Rajagopal vs State of Tamil Nadu wherein the Supreme Court stated that every citizen has a right to protect the privacy of his own person, family, marriage, procreation etc. The right to livelihood was included in the right to life under Article 21. Kapila Hingorani vs Union of India observed that right to food is also a part of the right to life under article 21 and it is the duty of the State to provide the means of livelihood to all the citizens of India as a fundamental right. The purview of judicial activism kept on expanding when numerous other rights which were not originally mentioned in the text of the Constitution were read into Article 21 by the judiciary. This includes the right to a fair trial, right to water, right to health and medical care, right to a speedy trial, right to legal aid and many more.  

Hence, we can see that there has been a rising use of the principle of judicial activism in the interpretation of Article 21. However, the people who are against this principle wonder that there is a limit for reading other rights into Article 21. 

Conclusion

It is true that if judges take up the tasks of the executive and legislature in their own hands then some issues are bound to arise such as lack of expertise and distorting the doctrine of separation of powers. But then the Indian scenario also requires the creativity and application of personal minds of the judges while interpretation due to the complexity of cases in the present times. 

References


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