Exploring Judicial Review, Activism, and Restraint in Upholding Democracy

Introduction

The concept of judicial activism originated and developed in the USA. This term was first coined in 1947 by Arthur Schlesinger Jr., an American historian and educator. 

• In India, the doctrine of judicial activism was introduced in the mid-1970s. 
• Justice V.R. Krishna Iyer, Justice P.N. Bhagwati, Justice O. Chinnappa Reddy and Justice D.A. Desai laid the foundations of judicial activism in the country.

Judicial Activism Vs. Judicial Restraint

Judicial Restraint: Limiting the Role of Judges

• Under no circumstances should judges allow their personal political values and policy agendas to influence their judicial opinions.
• This perspective asserts that the “original intent” of the framers of the Constitution and its amendments is discernible and should serve as the guiding principle for the courts.

Supreme Court Observation:

The Supreme Court of India (2007) called for judicial restraint and asked the courts not to take over the functions of the legislature or the executive, saying there is a broad separation of powers under the Constitution and each organ of the state must have respect for others and should not encroach on others’ domain.

• Respect for Separation of Powers: Judges cannot cross their limits and try to take over functions that belong to another organ of the state.
• Importance of Judicial Humility: Judges must not try to run the government. They must have modesty and humility, and not behave like emperors.
• Concerns Regarding Judicial Overreach: The warning is particularly apt and timely for the Indian judiciary today since very often it is rightly criticized for ‘overreach’ and encroachment on the domain of the other two organs.
• Preventing Judicial Activism: Judges must exercise judicial restraint so that judicial activism does not become judicial adventurism, which is an extreme form of judicial activism. 
• Minimal Judicial Preferences: The bench warned the court’s Adjudication must be done within the system of historically validated restraints and conscious minimization of judges’ preferences.
• Respecting Administrative Expertise: The court must realize that administrative authorities have expertise in the field of administration while the court does not,  So court must not embarrass administrative authorities
• Maintaining Constitutional Balance: The remedy is not in the judiciary taking over the legislative or the executive functions, because that will violate the delicate balance of power enshrined in the Constitution.
  • The judiciary has neither the expertise nor the resources to perform these functions.

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