Judicial Activism

Judicial activism refers to a judicial method in which judges actively shape social and legal policies. The term refers to how the judge chooses to perform a greater part in the interpretation of the law, often resulting from the making of new legal principles. Judicial Activists have the power to cancel laws that they, through their personal judgment, think unconstitutional, despite them being representative of a majority opinion or reflection of the present political climate of that time. Critics of judicial activism suggest that it undermines the democratic process through the very measure of allowing the unelected judges to give their personal interpretations of what the people should believe.

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.

Judicial Restrain

Judicial Restrain calls for the judiciary to take a more passive role, with little involvement in the responsibilities of the legislative and executive departments. Proponents of judicial restraint argue that judges should use prudence and avoid exceeding their constitutional authority by delving into policymaking topics. Judicial restraint, by contrast, is an ideology that supports the adoption of a very passive role for judges. Judges who are exercising the quality of restraint are highly inclined to accept the decisions of the appointing bodies of government, conceiving the law to be narrow and not creating fresh legal principles.

In 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.

Trends in Judicial Activism

Although "judicial activism" is not particularly referred to in the Indian Constitution, it has emerged as an intrinsic part of judicial interpretation. Judicial activism has grown with innovations in standing and judicial review, as also with amendments and the development of Public Interest Litigation—in effect, Social Action Litigation

It was in the judgment of Kesavananda Bharati v. State of Kerala that the Supreme Court evolved, by a thin majority, the theory of basic structure or fundamental features. It said that amendments affecting the basic features of the Constitution, such as democracy, rule of law, federalism, secularism, and judicial independence, could be struck down as unconstitutional.

Article 21 and Judicial Activism

Article 21 of the Indian Constitution protects life and personal liberty: "No person shall be deprived of his life or personal liberty except according to procedure established by law." Judicial activism in India expanded this fundamental right, interpreting it. In fact, it has been one of the main factors which envisioned the legal scenario of India.

Expanding Scope of Rights:

Right to Privacy: The scope of Article 21 was expanded by way of judicial activism in India, particularly in cases like K.S. Puttaswamy v. Union of India (2017), wherein interpretation evolved so that any invasion of a person's right to privacy thus became a fundamental right. Further in Shayara Bano v. Union of India (2017), Supreme Court overturned a practice that had been followed for centuries, using its judicial authority to protect fundamental rights and promote gender equality. The Supreme Court has interpreted Articles 21 as including within their ambit not only protection of individuals' physical life and liberty but also protection from denial of dignity and personal autonomy and liberty against arbitrary state action.

Prisoners' Rights: Activist judgments have brought reforms in prison conditions, access to legal aid for underprivileged, and rights of prisoners, all falling under the umbrella of Article 21.

Environmental Protection: In the scheme of Article 21, the Judiciary has used it very effectively to enforce laws relating to the environment, thereby ensuring the right to a clean environment and ecology and sustainable development.

Protection against Arbitrary State Action:

Procedural Safeguards: Judicial activism has harped on the requirement that procedures in deprivation of life and liberty have to be fair, just, and reasonable. That is, the laws and procedures themselves must be.

Preventive Detention: The courts have struck down laws permitting preventive detention on the grounds that they violated the safeguards under Article 21.

Judicial Criticism and Balancing:

While broadly interpreting Article 21 in the light of protection of FR, the judiciary has to maintain a fine line and not encroach on the legislative functions by respecting separation of powers.

Consequently, judicial activism in the enforcement of Article 21 of the Indian Constitution has gone a long way: broadening the fundamental rights, saving people against arbitrary state actions, and emphasizing social justice and human dignity.

Trends in Judicial Restraint

In the context of trends in judicial restraint, State of Rajasthan v Union of India case comes to mind. The court refused to hear the petition on grounds that it was a political question, which the judiciary's realm does not extend to.

Likewise, the legendary case of S.R. Bommai v Union of India, 1994, the judiciary clearly mentioned the existence of issues impregnated with political considerations wherein judicial review would not be possible. Invoking of power under Article 356 of the Constitution was considered a political question wherein courts would not interfere. It held that the formulation of judicially manageable standards for controlling the political decision would ultimately fall into a matter of political judgment, which the courts need to refrain from.

Separation of powers and Judicial restraint

One of the cardinal principles of democratic systems is the separation of powers. It is the division of different powers and responsibilities among the legislative, executive, and judicial to avoid a situation where any one limb or organ of government gets too powerful in its operation. dividing governmental authority between three distinct branches: legislative, executive, and judiciary. Judicial restraint is related to this principle as a judicial philosophy in a very direct way.

Judicial Restraint within Separation of Powers:

Judicial restraint refers to the philosophy whereby judges actually constrain themselves from exercises of their own power by sticking closer to the textual meaning of laws, and deferring as much as possible to legislative and executive decisions. It respects the will of the legislature as laid down in legislation.

The exercising restraint keeps them out of invading the roles and functions of the other two branches of government. This preserves the balance of powers envisioned by the separation of powers doctrine.

Essentially, judicial restraint works within the separation of powers to ensure respect by the judiciary for legislative intent and not to overreach in areas reserved for policy-making by the elective branches. It helps safeguard the integrity of courts as a neutral interpreter of laws while maintaining checks and balances that are characteristics of democratic governance.

Judicial Activism V Judicial Restraint

The difference between judicial activism and judicial restraint or strict constructionism refers to techniques of constitutional interpretation. A judge who looks more to the original Constitution, and less to larger contemporary norms in most instances of making decisions on a case, is called a strict constructionist. On the other hand, the activist judge broadly interprets the Constitution.

The main differences between these two approaches are as follows:

• Judicial activism is when the Constitution is interpreted according to the prevailing values and circumstances. Judicial restraint refers to the constraining of judicial powers to declare a law null and void.

• A court operating within judicial restraint usually accepts the decisions of the legislative except in clear violations of the constitutional provisions. On its part, judicial activism may allow for independent interpretation of the Constitution and sometimes the courts' decision may deviate from how the legislature has interpreted it.

The goals of judicial activism are different from judicial restraint. While judicial restraint desires to strike a balance among the judiciary, executive, and legislative branches through promotion of review other than change on the existing laws, on the other end, judicial activism gives courts the power to annul certain laws or decisions.

Conclusion

Judicial activism and judicial restraint describe two divergent approaches concerning the role of judges in interpreting and applying every law in society. The former refers to active pursuits of laws, whereby the judge may dissect the statute widely, fill out gaps left by the legislator, or correct the felt-sensed injustice. Judicial restraint simply argues for obedience to the exact words of the law, faithfulness to the legislative intent, and a limited role for the courts to make policy.

Pros and Cons of Judicial Activism:

Pros:

Judicial activism works to secure the protection of individual rights and liberties through broad interpretations of laws, stretching them to suit changing norms of society.

It enables judges to correct the apparent failures of the legislature or executive and thus makes law enforcement fair and just.

Activist decisions allow for adaptation of legal principles to changed conditions in society and to technological advances.

Cons:

Activist decisions may blur the boundaries between the judiciary, legislature, and executive, threatening an encroachment upon the roles that other branches of government could play.

It invites political opposition and accusations of judicial over-reach, in ways which may undermine public faith in the impartiality of the courts.

Such overbroad interpretations by the courts may result in vagueness and inconsistency in judicial decisions, which can be detrimental to the factors of predictability and consistency in the application of the law.

While judicial activism can bring in elements of justice and responsiveness, judicial restraint must temper it in equal measure so that the rule of law is upheld, institutional integrity preserved, and democratic processes respected. The balance between these two is important for an effective functioning of governments while preserving the constitutional ethos.