Judicial Activism Vs Judicial Restraint In Constitutional Interpretation

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T20:24:52.571721+00:00

Updated: 2026-08-30T07:09:41.052Z

JUDICIAL ACTIVISM VS JUDICIAL RESTRAINT IN

CONSTITUTIONAL INTERPRETATION Somya Krishna Tuli, Vivekananda Institute of Professional Studies Ginni Chopra, Vivekananda Institute of Professional Studies

ABSTRACT

In the democratic structure of India, there is a constant tug-of-war between two contrary philosophies i. e. judicial activism and judicial restraint. Judicial activism involves having courts make, and shape laws and policies, considering everything to deal with various social, political, and economic issues. This finds glaring expression through many landmark decisions in courts. However, judicial restraint is the belief that seeks a minimal role for the judiciary, refrains from interfering with the activities of legislatures and executive branches and stays away from past judgments and political decisions. Evidence of this can be drawn from various cases.

Although judicial activism may help fine-tune the government's delivery of justice by filling in legal gaps and moving towards expediting the process, it can also be tantamount to judicial overreach and encroachment into the separation of powers. In such a scenario, judicial restraint is preferred by advocates of stability and moderation and those who dislike judicial overreaching, but it may set a limitation on the judiciary's capacity to deal with crying social maladies. Elements of judicial activism and restraint can find a balanced approach in the form of promotion of advancing Indian democracy through fair rulings, in light of the realities of their own limitations.

Introduction

India is diverse in various sections of society such as religion, customs, languages, people, etc. Still, to manage all these sections of the country, we have the three pillars of India i. e. Legislature, Executive, and Judiciary. India is a country with a parliamentary form of government i. e. a country where the parliament is the supreme authority and where the government is formed by the political party that obtains the most seats in the legislature or Parliament. The Legislature is a governmental body that makes laws for the country which is made up of the Indian Parliament, Lok Sabha (House of the people), and Rajya Sabha (council of states). The Executive is the part of government which executes the law made by the legislature, it includes the Prime Minister, the ministers, and the administrative machinery.

The two pairs help each other as the Legislature approves the laws, but the executive is the one who formulates and implements the laws in the country. Now, let’s come to the main attribute which is the Judiciary of India, the judicial system of India is a structure that interprets the law, settles disputes, and provides justice to the citizens. The judiciary is mainly made up of three components i. e. The Apex Court of India (Hon’ble Supreme Court of India) which is Enshrined in the Article 124 of the Indian constitution and is the guardian of our Indian Constitution as the Supreme Court's decisions on constitutional issues are almost final and can only be changed by a constitutional amendment or a new ruling by the Supreme Court, it has the power of Judicial review to ensure that rule of law is applied.

The second component is the high court which is enshrined in Article 214 of the Indian Constitution and is 25 in total in today’s India, the first being the High Court of Judicature at Fort William which is now known as The High Court of Calcutta. The third component is the District Courts which are established in various cities and regions across India. In the district and the High court, there are high pendency rates which are over 90% of cases unresolved. What is Judicial Activism and Judicial Restraint Judicial activism refers to the philosophy where the higher authority of the judiciary, the apex court which is the Honorable Supreme Court, can pass a judgment that includes any new law for the betterment of the country's citizens. We can take the example of the Vishakha and others v.

the Union of India1 where the Supreme Court passed the sexual harassment of Women in the Workplace (prevention, prohibition, and Redressal) Act 2013 which gave the Vishakha

1 Vishakha and others v. the Union of India, (1997) 6 SCC 241

guidelines. Vishaka guidelines involved making a compliant mechanism committee in the office where most of the members are women, making a safe working environment for the women. We can take another example of Kesvananda Bharti v State of Kerala2 where the Supreme Court laid down the basic structure doctrine which tells us about the criteria to amend the constitution. We can also take the example of K Puttuswamy v Union of India3 which laid down the principle of the right to privacy under Article 21 of our constitution. Judicial activism mainly means the active role of the judicial in making new rules and regulations for the country. It is mainly done to provide speedy justice to individuals who need urgent help such as in the case of rape, abolition of fundamental rights, etc. An example is S. R. Bommai v. Union of India (1994)4.

The Supreme Court held that the exercise of power under Article 356 of the Constitution was a political question, and hence the judiciary should not interfere. According to Justice Ahmadi: If courts start examining the political decisions then they are entering into the political domain and questioning the political wisdom. And this is what the court must avoid. Another case of Almitra H. Patel v. Union of India5 (2000) has discussed making Delhi clean. The issue of this case was whether directions should be issued by the Court to the Municipal Corporation for making Delhi clean. The Court observed that it could direct only the authorities to perform their functions. It cannot order them how they should do their basic functions and remove their problems. The Indian Supreme Court had been conservative in the initial stages but gained activism through judicial activism over a period.

For example, Article

37 of the Constitution provided that DPSP is not justiciable. However, the Supreme Court has

made many of the DPSPs enforceable by reading them with certain fundamental rights. Just as in Unnikrishnan's case wherein the right to education was read into Article 21. On the other hand, we can talk about the provision of judicial restraint which restraints the judicial power to make laws. It follows the concept of stare decisis which means that the judges must follow and respect the previous higher court decisions and rulings. It is followed so that the provision of the separation of power where all the three powers of the government work separately is followed smoothly. It gives protection against the unnecessary interference of the judiciary in legislative work. We can talk about the case of Sakal Newspapers Pvt. The Newspaper Act of 1956 and the order of 1960 regulated the pages to the price of the newspaper;

2 Kesvananda Bharti v State of Kerala, AIR 1973 SC 1461;

3 K Puttuswamy v Union of India, (2017) 10 SCC 1

4 S.R. Bommai v. Union of India ,1994 AIR 1918

5 Almitra H. Patel v. Union of India, 1999(7) SCALE376,

thus, Ltd. v. Union of India (1962) involved the governmental regulation of the number of pages in proportion to the price of the newspaper. The Supreme Court ruled that newspapers cannot be subjected to the same regulations as other businesses since they are a forum for the exchange of ideas and information. This decision expanded the protections for free speech given by Article 19(1)(a) of the Constitution. We can also talk about Judicial Usurpation which is the term when the courts or judges overstep their given authority and effectively take on powers that belong to other branches of government, such as the legislature and the executive. This occurs when judges make decisions that create new laws or policies, rather than interpreting existing laws, which is their primary role.

As of now, we know that in judicial activism the judges mainly adopt a flexible explanation of the law, focusing on the principles of justice, equity, and good conscience. This also allows the judiciary to address gaps in the laws and rectify outdated provisions. Judicial activism protects fundamental rights particularly when the executive and the legislative actions are targeting the rights of the individuals. Courts can use the power of judicial review to strike down the unconstitutional laws passed by the legislative and executive. This power of judicial activism can also be used when the executive and the legislature are not taking any initiative in promoting progressive reforms. The judiciary in this situation can make the laws in cases involving social justice, equality, environmental protection, and minority rights.

Judicial activism promotes justice to the individuals even when the government is making unconstitutional laws to the constitution. Judicial activism is seen as a check on legislative and executive overreach. On the other hand, there are some drawbacks to the same as well as it overreaches to the checks and balances of the constitution as judicial activism allows the unelected judges to make the policies that should only be made by the executive or legislatures. Judges are not accountable to the people and judicial activism affects a lot of individuals so, it makes it difficult for the government to get the opinions of the people. Judicial restraints on the other hand have limited judicial review and tell that courts should exercise caution in declaring laws unconstitutional in respect to the separation of powers.

Judicial restraint provides a stable legal environment by adhering to the precedents and avoiding unpredictable or expansive rulings. Judicial restraints protect the judges as, merely interpreters of the Constitution and not lawmakers. This provides us with limited powers to the judges and also provides a separation of powers among the government. In some cases, judicial activism was important to provide justice to the individuals but on the other hand, the judicial restraints provide the stability of the democratic government. Sometimes we can see there is a lack of interpretations to the judgment presented by the court which the normal individual does not understand and also it hinders the powers of the executive and the legislature.

Judicial activism and judicial restraint these two concepts are poles apart but these concepts are how the judiciary in India works, these ways of working are the need of the hour in the country as in our judiciary, the Judges sometimes need freedom and sometimes need to be a restraint for the benefit and the purpose of providing justice. In the cases like RC. Cooper v Union of India (1970)6, the Supreme Court with the power of judicial activism struck down the Acquisition and Transfer of Undertakings) Act, known as the Bank Nationalization Act due to its unreasonableness and how it made it impossible for the banks to carry on their businesses. In the case of Maharajadhiraja Madhav Rao Jiwaji Rao Scindia vs Union of India7, the case revolved around the authority of the President to derecognize princes and abolish their petty purses.

The court ruled that as per Article 53 of the Indian Constitution, the power of the executive must be exercised 'by the law', there could not be any destruction of the Constitution via this case the continuation of this rule was declared illegal. This case showed the Judiciary's role in protecting constitutional principles. In the case of A. R. Antulay v R. S Nayak (1984)8, a case involving prior sanction for prosecuting a public servant, in this case, Supreme Court stepped in to address the issue of public concern. The Supreme Court ruled that the member of the State legislature is a public servant and can be prosecuted under the Indian penal code. This showed why we need Judicial activism in India. In India, there have been many cases of Judicial restraint where the judges the Judges to avoid deferring to the elected government to avoid making policy decisions.

In the case of Divisional Manager, Aravali Golf vs Chander Hass & Anr. (2007)9 The Supreme Court revealed how judicial restraint works and held that the grievances of employees were valid but the judiciary should not interfere in the workings of executive and legislature functions by directing the regulations.

6 RC. Cooper v Union of India (1970), 1970 AIR 564

7 Maharajadhiraja Madhav Rao Jiwaji Rao Scindia vs Union of India, 1972 SC 202(7)

8 A.R. Antulay v R. S Nayak (1984),1988 AIR 1531

9 Divisional Manager, Aravali Golf vs Chander Hass & Anr. (2007), 2008 AIR SCW 406

This ensured that the Judicial interventions were made within the boundary. In the case of S. R. Bommai vs Union of India Supreme Court held that some certain matters are beyond Judicial Review. This decision marked a respect for democratic form of government and how there is a division of responsibilities among branches. In the case of Almitra H Patel vs Union of India (1998), the Supreme Court refused to directly intervene in the administrative decisions relating to waste management in Delhi but appointed a committee to examine and improve urban waste management. Both the concepts of judicial restraint and Judicial activism are important for India but Judicial activism should not turn into Judicial overreach which is when a court or judicial body goes beyond its legal authority and interferes in the work of the other branches of government.

There have been many instances where there has been Judicial overreach. In the case of Shyam Narayan Chouksey v. Union of India (2016)10, A PIL was filed for the National Anthem. Supreme court in the case issued directions and mandated National Anthem is to be played before the movie in Cinema halls. This judgment was criticized as it delved into Judicial overreach by the Supreme Court by entering areas managed by the executive and legislature. In the case of Arun Gopal v. Union of India (2017)11, the Supreme Court fixed timings for setting off fireworks during Diwali and banned the use of fireworks that were not environmentally friendly, despite no legal basis for these restrictions. In the both above-mentioned cases Supreme Court did not procure the authority to deliver these judgments went beyond its legal authority and interfered in the work of the government.

The court shall exercise its authority through judicial activism and judicial restraint as appropriate, ensuring justice without overstepping the legal boundaries or encroaching upon the functions of other branches of government. To conclude our article, we would like to say that judicial activism and judicial restraint represent two main approaches related to the functioning of the judiciary, particularly in India's democracy. Judicial activism essentially means the active role of the judiciary in creating new laws and policies in addressing problems related to social, political, and economic issues.

This approach was reflected in many landmark judgments such as Vishakha vs Union of India and Kesvananda Bharti vs State of Kerela, whereas judicial restraint provides for a limited role of the judiciary focusing on the role of the judges to avoid interference in the role of the legislature

10 Shyam Narayan Chouksey v. Union of India (2016), AIR 2018 SUPREME COURT 357

11 Arun Gopal v. Union of India (2017), AIR 2018 SUPREME COURT 5731

and executive. It emphasizes the Doctrine of separation of power, maintaining precedents, and respect for political decisions. The cases of S.R. Bommai v. Union of India and Almitra H. Petal v. Union of India underline the need for judicial restraint to maintain stability and prevent judicial overreach. Both approaches have their benefit and flow as excessive judicial restraint may lead to judicial overreach. Therefore, we need a judicial system that helps all the sectors of democracy and provides for a better understanding of the judicial system.