Home judicial restraint Judicial restraint

judicial restraint

Judicial restraint

September 6, 2022

6575

This article is written by Prabha Dabral from IMS Unison University, Dehradun. This is an exhaustive article highlighting the importance of judicial activism and judicial restraint along with their limits.

It has been published by Rachit Garg.

Table of Contents

Introduction

There is a concept of separation of powers in our Constitution according to which a balance of power must be maintained between the three branches of the government (legislature, executive, and judiciary). The legislature passes the law, the executive is responsible for implementing the laws, and the judiciary interprets the law. Any citizen who suffers due to any action or any inaction of the executive appears before the judiciary to seek justice. Since the judiciary is the guardian of our Constitution and preserves our rights, it is considered the last resort of every citizen.

The judiciary is not just a mere spectator. Under judicial activism, the judiciary has the power to review the actions of the other two branches of the government through the process of judicial review. It is the proactive role of the judiciary in protecting the rights of citizens. Sometimes, the judiciary encroaches into the domain of the legislature or executive. This practice of the judiciary is known as judicial overreach and has often been criticised for its over-interference. Hence, the concept of judicial restraint was introduced. These are the two alternative judicial philosophies that judges use while making a decision.

Judicial activism and judicial restraint are two sides of the same coin. Hence, one can not speak of judicial restraint as a concept without speaking of judicial activism. This article covers all the aspects of judicial restraint, along with a brief introduction to judicial activism and judicial overreach.

Judicial activism

It is presumed that laws are capable of solving any dispute before the court; therefore, the legislature makes laws to protect the rights of the citizens. But what happens when there is absolutely no guidance for addressing a factual situation before the court? This is when judicial activism comes into the picture.

Sometimes, the judiciary has to come forward and review the actions of the executive to protect the rights of the people and provide socio-economic justice to the people. This happens when legislation is not able to properly perform its function. This is judicial activism. In other words, judicial activism is the active role of the judiciary in preserving the constitutional and legal system of the country by upholding the rights of the citizens.

One of the methods of judicial activism is judicial review. As per Article 13 of the Constitution of India, if any law made by the legislature does not conform to the Constitution, then the judiciary can declare that particular law to be null and void. Judicial activism acts as an effective tool for implementing constitutional principles and citizens’ rights when the executive and legislation fail to do so.

The approach of judicial activism has become quite effective since the days when a national emergency was declared in the year 1975. That happened because the power of the Lok Sabha was misused by the government. That was considered a black day for the whole country. As the emergency ended, the judiciary became very active, and in recent times, the active role of the judiciary has increased many folds. It has been really active in reminding the government servants to do their duties properly, warning the officers to look after the environmental pollution, taking steps to stop illegal construction going somewhere on the roadside, etc.

The landmark case of Vishaka v. State of Rajasthan (1997) perfectly defines the need for judicial activism. In this case, the Supreme Court stated that it has become important for the Court to lay down guidelines for the proper treatment of women in workplaces since there is an absence of enactment related to gender equality laws against sexual harassment. The Court even directed that these guidelines be treated as a law under Article 141 of the Constitution until and unless legislation has been enacted for the same. This case led to the passing of the Prevention of Sexual Harassment at Workplace Act 2013, also known as the POSH Act. Similar to the Vishaka guidelines, POSH laws adopt the three-pronged approach of prohibition, prevention, and redressal to deal with the menace of sexual harassment. The POSH laws go one step ahead of the Vishaka guidelines by providing details and expanding various aspects of the law provided by the Vishaka guidelines.

Methods of judicial activism

Judicial activism can take place through various methods. They are as follows:

Judicial review

The most common method is judicial review, in which legislative and executive actions are reviewed by the judiciary. It basically gives power to the Supreme Court to examine the constitutionality of any law. It can even declare a law unconstitutional in the event that a law is found to be inconsistent with the provisions of the Constitution.

Public Interest Litigation (PIL)

In this, a suit is filed in a court of law for the protection of the public interest. Initially, PIL was initiated to improve the disadvantaged sections of society who were not in a position to seek justice. The first case of PIL was Hussainara Khatoon v. State of Bihar (1979). In this case, an article was published stating the inhuman conditions of undertrial prisoners. The apex court accepted it and held that under Article 21 of the Indian Constitution, the right to a speedy trial is a fundamental right.

Constitutional interpretation

It is a method in which interpretation is done through the text of the Constitution and its “original history”.

There are many other examples of judicial activism. For example, in the case of, G. Satyanarayana v. Eastern Power Distribution Company (2004), it was held that if a worker is dismissed on the ground of misconduct, then a mandatory inquiry should be conducted. This judgement given by Justice Gajendragadkar added regulations to labour law which were ignored by legislation.

What is judicial restraint

Judicial restraint is a concept that encourages the judiciary to limit the exercise of their judicial powers. In other words, a judge is restrained from injecting his or her own preferences into the legal proceedings.

Judicial restraint is considered the opposite of judicial activism, in which judges are restricted from interfering with democratic politics. It is necessary as it lets the ordinary political process operate. It favours democratic self-governance by leaving the policy to the policymakers.

The concept of judicial restraint clearly states that the judiciary must be careful. The role of judges should be limited, and their job must be to interpret the laws. In other words, the court should not unnecessarily interfere with the organs of the government.

Methods of judicial restraint

There are various methods through which judicial restraint takes place. They are as follows:

Through precedents

Precedents are the past decisions in earlier cases. The judges respect the principle of upholding established precedent handed down by past judges. This principle is also known as stare-decisis.

By referring to the intent of the framers of the Constitution

Judges refer to the original intent of the legislature that wrote the law in making their decision.

There are many examples of judicial restraint. For example, in the case of the State of Rajasthan v. Union of India (1977), the Supreme Court decided not to indulge in the matter because it involved some political inquiry. Therefore, supporting the principle of judicial restraint.

Significance of judicial restraint

The significance of judicial restraint is mentioned as follows:

It helps in maintaining the separation of powers. Instead of the court legislating from its bench, the executive and the legislature are doing what they are actually responsible for.
It allows courts to focus on delivering their own duties. It saves time as there have been cases pending before the court for half-a-century. The court won’t waste any of its time on unnecessary domains like. Rather, it should nudge the executive to come up with laws in a specific period of time.

In the year 2007, there was a case of Divisional Manager, Aravali Golf v. Chander Hass & Anr. on 6 December, (2007), in which the Supreme Court asked the subordinate courts to exercise judicial restraint. It was held that each organ must have respect for other organs as per the doctrine of separation of powers. The Court also laid down two crucial functions of judicial restraint. The first function of judicial restraint is to encourage equality among the three branches by minimising inter-branch interference by the judiciary. The second function is to protect the independence of the judiciary. If judges act like administrators or legislators, then it follows that they should be elected like legislatures or selected and trained like administrators, and this would be counterproductive. Moreover, the Court even quoted from the book ‘The Spirit of Law’ by Montesquieu in the judgement. The Court said that the warning given by the French political philosopher on the consequences of not maintaining separation of powers among the 3 organs is very apt for the Indian judiciary today. As in this era very often, the judiciary is criticised for overreach and encroachment on the domains of the executive and legislature.

Judges on judicial restraint

The Constitution of India has not made the judiciary a substitute for the other two organs. Therefore, the need arises for the judiciary to lay down its limitations.

The former Chief Justice of India (CJI), Justice A.S. Anand, talked about judicial restraint in a public lecture. He said that judges need to be self-disciplined while discharging their judicial functions. The worst result of judicial activism is unpredictability. There may come a time when judges may issue directions as per their personal fancies. Hence, judges must exercise judicial restraint so that judicial activism does not become judicial adventurism, which is an extreme form of judicial activism.

In the case of S.R. Bommai v. Union of India (1994), the Supreme Court held that the exercise of power under Article 356 of the Constitution was a political question. Therefore, the judiciary should not interfere. Justice Ahmadi said that if the courts examine the political decisions then they would be entering the political domain and questioning the political wisdom. And this is what the court must avoid.

Another case of Almitra H. Patel v. Union of India (2000) talked about making Delhi clean. The issue, in this case, was whether directions regarding making Delhi clean should be issued to the Municipal Corporation. The Court held that it could only direct the authorities to carry out their duties. It is not for the Supreme Court to direct them as to how to carry out their basic functions and resolve their difficulties.

The Indian Supreme Court had been conservative in the initial years but later became active through judicial activism. For example, Article 37 states that the Directive Principles of State Policy (DPSP) are unenforceable. But the Supreme Court has made many of the DPSPs enforceable by reading them with certain fundamental rights. Just like in Unnikrishnan’s case, where the right to education was read into Article 21.

How is it different than laws in the US

The Constitution of the US has created a federal system of government in which power is shared between the two governments, i.e., the federal government and the state government. Due to this federalism, both governments have their own systems of courts.

As per the American legal theory, the judiciary is there to check whether the legislative and executive are functioning properly. It says that the judges in the federal or any other courts in the United States are undemocratic, i.e., they are non-elective. They are not there to represent the decisions of the citizens of America and do not represent the popular will of the country. Those judges are there because they belong to the judicial class. Hence, they can not interfere with the functioning of the legislative and executive. The power to make laws must be given to more democratic forms of government. This is why judicial restraint is considered desirable there. Moreover, being a court of law, an inheritor and custodian of the Anglo-American legal tradition, it ought not to go too far to the level of politics, the law being the reason for judgement.

The term judicial restraint has a long history in American legal theory. In one of the cases, Fletcher vs. Peck (1810), the US Supreme Court stated that judges should strike down a law only if they feel a clear and strong conviction. In the second half of the 20th century, judicial restraint became a common conservative political theme during the tenure of Chief Justice Earl Warren (1953-69). In general, judicial restraint was considered desirable on the grounds that the role of making policies must be given to democratically elected officials only.

There are several points that make the concept of judicial restraint in the US different. One of them is that in the US, if the judiciary crosses its limit, then the judiciary is itself at risk. The reason being that the powers of their judiciary are dependent upon the Congress of the United States (consisting of the lower body, the House of Representatives, and the upper body, the Senate), and if they try to cross the limits, the Congress may restrict such action.

The Ashwander Rules

In the case of Ashwander v. Tennessee Valley Authority (TVA) (1936), Justice Brandeis put forward certain rules for the US Supreme Court for it to decide constitutional matters only when it is necessary. These rules are known as the Ashwander rules or Brandeis rules.

The rules are as follows-

The rule against feigned or collusive lawsuits

The court must not pass its judgement upon the constitutionality of legislation in a friendly, non-adversary proceeding. Deciding such questions is legitimate only if it is extremely necessary.

Ripeness

The court must not resolve constitutional matters prematurely, i.e., before it is extremely necessary.

Judicial minimalism

The questions of Constitutional law must be decided narrowly. The court must not formulate a law more broadly than is required by the precise facts to which it is to be applied.

The last resort rule

The court must prioritise resolving a case on non-constitutional grounds rather than on constitutional grounds.

Standing and mootness

The complainant should suffer an actual injury before the court may pass upon the validity of a statute.

Constitutional estoppel

A party must not challenge the constitutionality of a law when he himself enjoys the benefits of it. The court must not pass an order on the constitutionality of a statute in such an instance.

Constitutional-doubt canon

If a serious doubt about constitutionality is raised, the court will first ascertain whether a construction of the statute is possible by which the question may be avoided.

Reasons for exercising judicial restraint

If the judiciary is interfering with the proper functioning of the other two branches, then it is violating the doctrine of separation of powers. So, judicial restraint helps limit the powers of the judiciary so that all three organs can function without entering into the domain of each other.
The administrative authorities (i.e., district officers, income tax chief commissioner, etc.) are there because they are the experts in their particular field. If they have taken a decision in their official capacity, then it must be given respect. The judiciary must not embarrass the administrative authorities while giving judgement and must not humiliate them by interfering in their domain. If their decision is to be criticised, then it should be done with proper logic and manner. Hence, judicial restraint is important.
The judiciary has a lot of pending cases, thereby, they must focus more on disposing of the pending cases.
In a democratic country like India, if the legislative and executive organs of the government are not functioning properly, then the citizens have the right to revolt against the corrupt government and remind them of their duties. One of the ways of protesting is through peaceful demonstrations or peaceful strikes. The judiciary need not interfere every single time. It can merely give a mild reminder to the other organs rather than make laws themselves.

Its relevance to the concept of democracy

The basic difference between democracy and the other forms of government is that in a democracy, the people’s will is supposed to be run through an elective representative that represents them. The elective representatives are the MLAs (Members of the Legislative Assembly) and MPs (Members of Parliament). They are there because they derive their authority from the election. They are elected by the people and represent the will of those people. Therefore, whatever they say is assumed to have the blessings of the people who have voted for them.

On the other hand, a judge is appointed and not elected by the common people. Hence, there can not be too much power in the hands of those who are not elected by the people. They should not be given too much power to decide what the law must be. Otherwise, it would go against the system of democracy. That is why judicial restraint plays an important role in our system.

Difference between judicial restraint and judicial overreach

When the judiciary uses judicial authority to define and enforce what is right for society, it is known as judicial activism. But when the judiciary exceeds its jurisdiction and interferes with the legislative and executive branches of the government, it is known as judicial overreach. In other words, when judicial activism crosses its limit, it is called judicial overreach.

On the other hand, judicial restraint is the exact opposite of judicial activism. It is a theory that restricts judges from exercising their own power. In other words, it encourages judges to interpret the law rather than intervene in policy making.

Here are some of the cases of judicial overreach. The judiciary tends to overreach, and this often causes conflict between legislature and judiciary. Here are some examples. In a recent case, Rajib Sharma v. The State of West Bengal (2019), a BJP (Bharatiya Janata Party) Yuva Morcha leader, Priyanka Sharma, shared a meme on a social networking site. In her bail order, the Supreme Court asked her to apologise for sharing such a meme. The court said that the freedom of speech under Article 19(1)(a) of the Indian Constitution ends when it infringes upon others’ rights.

The following are the major differences between the two-

S.No.	Judicial restraint	Judicial overreach
	Judicial restraint is the antithesis (opposite) of judicial activism.	When judicial activism goes overboard, it is referred to as judicial overreach.
	Judicial restraint is a theory that encourages judges to limit the exercise of their own power.	Judicial overreach refers to the act of the judiciary interfering with the proper functioning of the legislative and executive organs of the government.
	Judicial restraint is desirable as the courts are supposed to interpret the law and not intervene in policy-making.	Judicial overreach is undesirable in a democratic country as it breaches the principle of separation of powers.

Difference between judicial activism, judicial overreach and judicial restraint

Difference	Judicial activism	Judicial overreach	Judicial restraint
Meaning	It is the proactive approach of the judiciary.	It is a situation when judicial activism goes overboard or crosses its limits.	It limits the powers of the judges to strike down the law.
Desirability	Desirable only if the court intends to preserve the rights of the people and not criticise the government.	Undesirable	Desirable
Usage	When there is a need for judicial intervention to preserve the legal system.	No usage in a democratic system as it breaches the principle of separation of powers.	When another grievance redressal mechanism is available and there is scope to maintain separation of powers.
Examples	The courts taking up suo moto cases, the introduction of PIL	Censorship of the Film Jolly LLB II in, where the Supreme Court acted as a censor and violated both the Cinematograph Act, 1952 and Article 19(2) of the Indian Constitution.	When the court refuses to interfere with legislative decisions unless they explicitly violated the Constitution.
Famous Supreme Court cases	Vishaka vs. State of Rajasthan (1997)	Shyam Narayan Chouksey v. Union of India (2017)	S.R. Bommai vs. Union of India (1994)

Conclusion

From the history of the country, it is very clear that judicial activism has played an important role in taking care of the evils in our society relating to jail reform, the environment, personal liberty, etc. But this role must have limits too. Just like any other organ of the government, the judiciary also must know the limits. They must stop unjustifiably trying to perform the functions of the legislature and the executive.

When the judiciary starts thinking that they can solve all the problems in society, the judiciary can no doubt intervene in extreme cases as well. This can violate the delicate balance of power that is enshrined in the Indian Constitution. Instead of interfering in the domains of the other two organs, the judiciary can nudge the two organs to function properly.

Frequently Asked Questions (FAQs)

When should the court use judicial restraint?

Judicial restraint is a theory of judicial interpretation. Judges are supposed to exercise judicial restraint if they are hesitant to strike down laws which seem obvious to not be unconstitutional.

How are judicial activism and judicial review related?

Judicial activism refers to the pro-active approach of the judiciary to solving or improving a situation. On the other hand, judicial review is one of the methods of judicial activism.

Judicial review refers to the act of the judiciary determining the validity of a law passed by the parliament. For example, if parliament passes a law which is not in compliance with the Constitution of India, then the judiciary can strike down such a law under the power of judicial review.

Judicial restraint

Introduction

Judicial activism