Judicial Activism and Restraint- Striking a Balance
When the judicial decision making by the judges regarding a public policy is done on the basis of their personal views and opinions instead of the constitution’s views, it is known as judicial activism. Sometimes the judges feel that for the purpose of delivering justice, they need to step out of the limits of the constitution.
On the other hand, the theory of judicial interpretation that limits the Judges to exercise their own power is called Judicial Restraint. It implies that the judges should hesitate to declare laws unconstitutional unless they really are. Unnecessary striking of laws leads to the judiciary entering the sphere of the legislature that is making laws.
Neither Activism, nor restraint have desirable outcomes when exercised to their extreme capacities. Judicial Activism has been evident during the reign of the BJP government as well as the Congress government. The verdicts delivered in India have always been in the spirit of positive activism. For instance, it was fair to use judicial activism in the Kesavananda Bharati case to keep up with contemporary times. However, activism can also be used in its negative sense. Judges in alignment with the government can use this theory to deliver desired verdicts for the government.
On the other hand, when the judiciary strikes too many laws, it basically does the work of the legislature that is law making. This impacts the system of division of powers between the legislature and judiciary. Exercising the power of judicial review unnecessarily leads to concentration of power in the hands of the judiciary. Without judicial restraint, courts tend to participate in criticizing the government instead of ensuring the rights of the citizens.
Therefore, both judicial activism and judicial restraint should be used for their true purpose. Where Activism should be used for considering broader societal implications and restraintrant is only useful for better functioning of the organs of the government when it is not exercised for the purpose of criticising the government and actually implemented for the welfare of the people.
