Context: Judges are only interpreters and are not here to make the law or to evolve a policy and a balance has to be maintained between judicial activism and restraint, said Delhi High Court Chief Justice.

Key Points

• There is always a gap between justice and law. Merely because the law is enacted, there is no guarantee that justice will be done. 
• There is some role to be played by judges. And if there is any gap, a judge has to fill up the gap. That is known as judicial activism. 
• That is inevitable but as a matter of exception, and not as a matter of a rule.
• Judge are concerned with the law as it is and not with the law as it ought to be. It is a matter for parliament, and in the absence of law, it is for the executive to draft the policy as per the bifurcation of the power and the Constitution. 
• One has to maintain the balance between judicial activism and judicial restraint.

Judicial Activism

• It is doctrine which originated and developed in the USA.
• It was introduced in India during the mid-1970s.
• Black's Law Dictionary Definition: It is a judicial philosophy which motivate judges to depart from the traditional precedents in favour of progressive and new social policies.
• It gives an assertive role to the judiciary to force the legislature and executive to discharge their constitutional duties.
• Also known as “judicial dynamism”, it is an antithesis to judicial restraint.
• Manifestation of judicial dynamism is reflected in Public Interest Litigation (PIL).
• Activators of Judicial Activism are mainly social or human rights activists.

Criticism: describes judicial rulings suspected of being based on personal or political considerations rather than on existing law.

• Example: In Maneka Gandhi’s case, substantive due process was introduced into Article 21 by judicial interpretation.

Judicial Restraint

• Judicial Restraint is a theory of judicial interpretation that limits the exercise of judges’ powers.
• It believes that judges should not reflect their personal political values and policy agendas to while delivering judicial opinions.
• Basic ideology: The courts should interpret the law and not intervene in policy-making.

Judges should always try to decide cases on the basis of:

• The original intent of those who wrote the constitution.
• Precedent past decisions in earlier cases.
• The court should leave policy making to others.
• Example: In S.R. Bommai v Union of India the judges said that there are certain situations where the political element dominates and no judicial review is possible.

Basis of doctrine of judicial restraint

• The court is undemocratic because it is non-elective and presumably non-responsive to the popular will.
• The origin of the judicial review is being questioned, as it is not granted in the constitution.
• The doctrine of separation of powers.

By: Shubham Tiwari