The judiciary is a cornerstone of democratic governance, interpreting and applying laws to uphold justice and ensure that government actions are within constitutional bounds. Two contrasting philosophies guide judicial decision-making: judicial activism and judicial restraint. Judicial activism occurs when judges apply their personal views on public policy to guide their decisions, often leading to the creation of new policies or laws. Judicial restraint, in contrast, advocates for a more limited role for judges, emphasizing adherence to precedent and deferring to the decisions of the legislative and executive branches.

Historical Context
Judicial activism and judicial restraint have historical roots in both Indian and international jurisprudence. In the United States, judicial activism is often associated with the Warren Court of the 1950s and 60s, which issued landmark rulings expanding civil rights and liberties. In India, judicial activism gained prominence with the rise of Public Interest Litigation (PIL) in the 1980s, allowing courts to address a range of social and economic issues.

Defining Judicial Activism and Judicial Restraint
Judicial Activism: Judges take an active role in policy-making by interpreting the constitution and laws broadly. This approach often involves overturning precedents or striking down legislation. Judicial Restraint: Judges maintain a more passive role, focusing on interpreting the law as it is written and deferring to the decisions of other branches of government unless there is a clear constitutional violation.

Arguments in Favor of Judicial Activism:

Arguments in Favor of Judicial Activism:

• Protection of Rights: Activist judges can protect minority rights and ensure justice in cases where legislative or executive actions are inadequate or unjust. For instance, in Navtej Singh Johar v. Union of India (2018), the Supreme Court of India decriminalized consensual same-sex relations, protecting the rights of the LGBTQ community despite societal and legislative reluctance.
• Dynamic Interpretation: Judicial activism allows the constitution to evolve with changing societal norms and values. This approach was evident in Obergefell v. Hodges (2015), where the US Supreme Court recognized same-sex marriage, reflecting evolving societal views on marriage equality.
• Check on Power: It provides a necessary check on the other branches of government, preventing abuses of power. In Kesavananda Bharati v. State of Kerala (1973), the Indian Supreme Court established the Basic Structure Doctrine, limiting the power of Parliament to amend the constitution in a way that would alter its fundamental framework.

Arguments in Favor of Judicial Restraint:

• Democratic Legitimacy: Judicial restraint respects the decisions made by elected representatives, preserving the democratic process. This philosophy was articulated by Justice Felix Frankfurter, who emphasized that judges should not impose their personal views and should defer to the decisions of elected officials.
• Stability and Predictability: By adhering to precedent, judicial restraint ensures consistency in the law, making it predictable and stable. Chief Justice John Roberts has noted that "stare decisis promotes the evenhanded, predictable, and consistent development of legal principles."
• Judicial Competence: Judges are not policymakers; they may lack the expertise and information needed to make complex policy decisions. Justice Antonin Scalia argued for judicial restraint, stating that "the Constitution is not a living organism... It's a legal document, and it says what it says and doesn't say what it doesn't say."

 

Comparative Analysis

Interpretation of the Constitution:

• Judicial Activism: Interprets the constitution as a living document, allowing for broad interpretations that can address contemporary issues. For example, in Maneka Gandhi v. Union of India (1978), the Indian Supreme Court broadened the interpretation of Article 21, expanding the scope of the right to life and personal liberty.
• Judicial Restraint: Stresses a more literal and originalist interpretation, adhering closely to the text and the framers' intent. This approach was seen in District of Columbia v. Heller (2008), where Justice Scalia's majority opinion relied heavily on the original meaning of the Second Amendment.

Impact on Society:

• Judicial Activism: Can lead to significant social and political changes, as seen in landmark cases such as Brown v. Board of Education (1954) in the US, which ended racial segregation in public schools. In India, the Vishaka v. State of Rajasthan (1997) case established guidelines for preventing sexual harassment at the workplace, addressing a critical social issue.
• Judicial Restraint: Emphasizes maintaining the status quo and allowing elected bodies to make changes, potentially leading to slower societal progress. For instance, in S.R. Bommai v. Union of India (1994), the Indian Supreme Court upheld the federal structure by asserting that the dismissal of state governments should be based on objective material, demonstrating restraint in executive overreach.

Role of Public Interest Litigation (PIL):

• Judicial Activism: PILs have allowed the Indian judiciary to address issues like environmental protection, human rights, and corruption, significantly impacting public policy. Notable cases include M.C. Mehta v. Union of India, which led to various environmental reforms.
• Judicial Restraint: Critics argue that excessive reliance on PILs can undermine the separation of powers, with the judiciary overstepping its boundaries. Justice J.S. Verma cautioned against the misuse of PILs, emphasizing that "judicial activism should not become judicial adventurism."

Case Studies:

• India: The Supreme Court of India has shown both activism and restraint in various cases.
  • Judicial Activism: Kesavananda Bharati v. State of Kerala (1973) established the Basic Structure Doctrine, limiting Parliament's power to amend the constitution. This decision demonstrated the court's active role in safeguarding constitutional principles.
  • Judicial Restraint: In ADM Jabalpur v. Shivkant Shukla (1976), the court showed restraint by upholding the suspension of fundamental rights during the Emergency, deferring to executive power.

Statements of Jurists:

• In Favor of Activism: Justice P.N. Bhagwati, a proponent of judicial activism in India, argued that "the judiciary must interpret the constitution in a manner that it becomes an effective instrument for socio-economic transformation." Similarly, Justice V.R. Krishna Iyer emphasized that "the Supreme Court must become the Supreme Court of Indians and not just of India."
• In Favor of Restraint: Justice Antonin Scalia of the US Supreme Court advocated for judicial restraint, stating that "the Constitution is not a living organism... It's a legal document, and it says what it says and doesn't say what it doesn't say." Justice Felix Frankfurter also emphasized that judges should not impose their personal views and should defer to the decisions of elected officials.

Relevant Case Laws:

1. Judicial Activism:
   • India: Vishaka v. State of Rajasthan (1997): established guidelines for preventing sexual harassment at the workplace, showing the court's proactive role in addressing social issues. In Navtej Singh Johar v. Union of India (2018), the court decriminalized consensual same-sex relations, protecting the rights of the LGBTQ community.
   • United States: Roe v. Wade (1973): legalized abortion nationwide, reflecting the judiciary's intervention in contentious social matters. Brown v. Board of Education (1954) ended racial segregation in public schools, marking a significant step towards civil rights.
2. Judicial Restraint:
   • India: S.R. Bommai v. Union of India (1994): upheld the federal structure by asserting that the dismissal of state governments should be based on objective material, demonstrating restraint in executive overreach. In ADM Jabalpur v. Shivkant Shukla (1976), the court upheld the suspension of fundamental rights during the Emergency, deferring to executive power.
   • United States: Plessy v. Ferguson (1896): upheld racial segregation under the "separate but equal" doctrine, showing restraint in challenging legislative decisions (though later overturned by Brown v. Board of Education). In District of Columbia v. Heller (2008), the court's decision reflected a more restrained, originalist interpretation of the Second Amendment.

Conclusion
Judicial activism and judicial restraint represent two ends of the judicial philosophy spectrum. While judicial activism can promote progressive change and protect rights, it risks undermining democratic processes and separation of powers. Judicial restraint, while preserving democratic legitimacy and stability, may result in delayed justice and inadequate protection of minority rights. The ideal approach often lies in a balanced application, where courts act as guardians of the constitution and fundamental rights while respecting the roles and competencies of the legislative and executive branches.

References

• Maneka Gandhi v. Union of India, AIR 1978 SC 597.
• Vishaka v. State of Rajasthan, AIR 1997 SC 3011.
• S.R. Bommai v. Union of India, AIR 1994 SC 1918.
• ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207.
• Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.
• Justice P.N. Bhagwati's statements on judicial activism.
• Justice Antonin Scalia's statements on judicial restraint.