Judicial Activism and Judicial Restraint


The judiciary has been assigned active role under the constitution. Judicial activism and judicial
restraint are facts of that encourage creativity and pragmatic wisdom.
The concept of judicial activism and judicial restraint is thus the polar opposite of judicial
restraint. Judicial activism and judicial restraint are the two terms used to describe the
philosophy and motivation behind some judicial decision. At most level, judicial activism refers
to a theory of judgment that takes into account the spirit of the law and the changing times, while
judicial restraint relies on a strict interpretation of the law and the importance of legal precedent.

Judicial Restraint
Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise
of their own power. It asserts that judges should hesitate to strike down laws unless they are
obviously unconstitutional. Judicially restrained judges respect stare devises, the principle of
upholding established precedent handed down by past judges.

Judicial Activism
The expression ‘judicial activism’ is often used to contrast to another expression ‘judicial
restraints’. Judicial activism is a dynamic process of judicial outlook in a changing society.
Arthur Schlesinger Jr. Introduced the term “judicial activism” in January 1947 Fortune magazine
article titled “The Supreme Court 1947”.

Trends in Judicial Restraint
There is broad (though not absolute) separation of powers in the Indian Constitution vide
Divisional Manager, Aravali Golf Course vs. Chander Haas,2008. The Constitution of India did
not provide for the judiciary to be a super legislature or a substitute for the failure of the other
two organs. Thus, the need arises for the judiciary to lay down its own limitations.

Judicial activism in Indian scenario
The Indian Constitution promulgated in 1950, largely borrowed its principles from Western
models- parliamentary democracy and an independent judiciary from England, the Fundamental
Rights from the bill of Rights, and federalism from the federal structure in the U.S. Constitution,
and the Directive Principles from the Irish Constitution. These modern principles and institutions
were borrowed from above on a semi-feudal, semi-backward society in India.

Judicial Activism vs. Judicial Restraint
The difference between judicial activism (loose constructionist) and judicial restraint (strict
constructionist). These are ways of interpreting the Constitution. A judge who is strict
constructionist might rule in cases in a way that reads the Constitution very literally or relies on
the original intent of the farmers. A judge that is a judicial activist might rule in a very broad
manner that takes into account how times have changed since 1787.

Judicial Activism and Judicial Restraint are two opposite approaches. Judicial activism and
judicial restraint, which are very relevant in the United States, are related to the judicial system
of a country, and they are check against the fraudulent use of powers of the government or any
constitutional body.

1. Judicial activism is the interpretation of the constitution to advocate contemporary values
and conditions. On the other hand, judicial restraint is limiting the powers of the judges to
strike down a law.
2. In the matter of judicial restraint and judicial activism, the judges are required to use their
power to correct any injustice especially when the other constitutional bodies are not
acting.
3. Judicial restraint and judicial activism have different goals.
4. When talking about the goals of judicial activism, it gives the power to overrule certain
acts of judgments.
5. Judicial activism is the interpretation of the constitution to advocates contemporary
values and conditions. Judicial restraint is limiting the powers of the judges to strike
down a law.
6. Judicial restraint Judges should look at the intent of the legislature that wrote the law and
the text of the law in making decisions any changes to the original Constitution language
can only be made by constitutional amendments.

Conclusion
When Judges start thinking they can solve all the problems in society and start
performing legislative and executive functions, all kinds of problems are bound to arise.
Judges can no doubt intervene in some extreme cases, but otherwise they neither have the
expertise nor resources to solve major problems in society. Also, such encroachment by
the judiciary into the domain of the legislature or executive will almost invariably have a
strong reaction from politicians and others.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.