Judicial Activism vs Judicial Restraint: Impact on Law and Society

Introduction

Predominantly, the judiciary system in a country has an influential role as it directs and defines the laws in the legal frameworks. It is aided by two approaches that influence the judges specifically: judicial activism and judicial restraint. Conventionally, Judicial activism witnesses the increased involvement of the judges and bestows upon courts the role of interpreting the law liberally at times to address social issues and protect the rights of an individual when the legislature and executive branches are inadequate. These activist judges might be enhancing the constitutional rights of the statutes in light of contemporary values or may even overthrow laws by saying they are unconstitutional.

Contrarily, the philosophy of judicial restraint goes further in conservatism. Here, the judge refrains from making decisions, leaves them in the hands of those elected by the legislature, and embraces the prior legal principle of conservatism. They argue that a law should only be changed where it is impossible not to have an unconstitutional outcome. This respect for democratic separation of power makes it possible for democratic processes to take their due course with a limited interaction of the court system.

Such varied judicial philosophies exist and produce their effect; they can be found in various legal systems[1]. For instance, India has seen enormous judicial activism over the past years. It is evident from Landmark judgments such as the Kesavananda Bharati vs State of Kerala 1973[2] established the ‘basic structure doctrine’ The basic structure doctrine is a predominant concept whereby the fundamental essence cannot be altered even by the parliament, thus retaining the sacredness of the Constitution. Further, the Supreme Court has extended the right to life under Article 21, upholding that it includes the right to protect human dignity and a speedy trial, evident from two essential cases of Maneka Gandhi v. Union of India[3] and Hussainara Khatoon v. State of Bihar.

It illustrates how the Indian Supreme Court is there to safeguard the rights of the people of India and address the concerns in society that are being addressed. This further reveals judicial activism, in which the Court has exceeded traditional legal norms to safeguard the rights of individuals, such as minorities and undertrial prisoners. Nevertheless, the Court has shown discipline by declining to get involved in political issues like enforcing the President’s rule according to Article 356. The importance of not replacing local authorities or meddling in executive policy matters is underscored in cases such as Almitra H. Patel v. Union of India[4], further emphasising the principle of non-interference. In general, the Indian legal system has been instrumental in protecting fundamental rights while honouring other governmental branches’ limits.

Instances of Judicial Activism in Comparative International Perspective

The role of judicial activism is not an exclusive monopoly of India, nor is it unique to India; it is an international notion, too. In the United States, the Supreme Court has been part of landmark cases like Brown v. Board of Education in 1954, where a distinct perspective was given to segregation in public schools to become part of the civil rights movement. Judicial activism is essential for social change, a fact well evidenced through the case law in the European Court of Human Rights in Dudgeon v. United Kingdom[5]. The Court protected individual rights against laws that placed homosexual relationships within the purview of criminal offences, proof that the judiciary sometimes achieves an incremental change in society. In sum, judicial activism is a potent tool for ensuring societal change and equality worldwide.

The Role of Judicial Restraint[6]

Conversely, judicial activism, especially in multilateral systems, tends to make more controversial decisions than judicial restraint. The basic tenet of judicial restraint lies at the root of the separation of power doctrine. It helps check the law-making agents. Courts in a democracy should not interfere with the other organs as interference may undermine public trust. Judicial activism may not respect nations’ sovereignty and often faces complex political and cultural contexts. The courts need to balance dealing with laws and respecting the legislative autonomy of states. Proper principles of restraint allow the courts to exercise benign influence in nation-state relations, encourage international cooperation and harmony[7], and orient the interpretations in line with agreed political contexts.

The role of public opinion and media in judicial decision-making

The mass media, as one of its primary carriers, public opinion is an essential but more complex component of judicial decision-making. Judges can only act based on the legal requirements that require them to maintain an impartial view of the continual cases that they are presented with, together with the responsibility of ensuring justice prevails. However, in doing so, they have to exist in a social world that involves emotions and reporting.

Media influence

There is a far more significant overlap between public opinion and constitutional interpretation than between Public Opinion and the public good. Such changes in public opinion can even precede or potentially contribute to causing changes in the judicial construction of the very constitutional rights. Concerning the latter, it can be argued that the U. S. Supreme Court’s same-sex marriage ruling in Obergefell v Hodges (2015) originated in changes in public opinion on recognising the rights of LGBTQ+ people. Although the Court held from the constitutional provisions that warranted its intervention, the changing society probably played a role in determining the timing and direction of the ruling.

This places the Judiciary in the spotlight and exposes the court procedures and judgements, making it even act as a check on judicial power. The judgment delivered in 2018 allowed the live streaming of the Indian Supreme Court (Swapnil Tripathi v. Supreme Court of India[8]) to be made partly to clear the observations regarding the increase in transparency and also to understand the judiciary process.

Public Backlash in Judicial Restraint 

Sometimes, judicial restraint is occasioned by the fear of receiving a backlash from members of the public, and just like in the case of Shah Bano, 1985,[9] who stated that Muslim women could make alimony claims, and the decision had stirred a great controversy among the public. The political reaction that followed ensured the enactment of the Muslim Women (Protection of Rights on Divorce) Act of 1986 and, therefore, dismissed this Court’s decision. That episode was the testimony on how the Judiciary operates within the context of public opinion and legislative action; now, the findings move on to analyse the effects of social media on the Judiciary, focusing on accountability. Now, the constant flow of social activity is coming up with new forms of social activities related to the judicial one. For instance, the Supreme Federal Court in Brazil employed this platform to announce government decisions regarding measures it had taken regarding COVID-19. It is, therefore, utilized in communications with the public directly to increase clarity of judgments made by the institution.

‘Judicial Independence as opposed to Public Opinion’

It remains the task of the courts to remain impartial while at the same time not being oblivious to the changing trends in society. An example can also be seen in the recent Indian Supreme Court judgment that removed the criminalization of homosexuality under Section 377 of I.P.C. in Navtej Singh Johar v. Union of India (2018)[10]. The judgment was focused on constitutional rights but pointed more so for referring to the changing social culture of the LGBTQ+ person.

Critiques of Judicial Activism and Judicial Self-Restraint 

Activism is, thus, always balanced with restraint in all these contentious discussions about what the judicial role should or should not be. The opponents of judicial activism[11] are those who believe that it leads to judicial legislation, which, in a way, means that the courts overstep the constitutionally delimited mandate, hence encroaching on the political process and undermining the role of the Parliament. The supporting arguments include those in which the courts make some decisions that the public does not receive well. However, the drawback of judicial restraint can be seen as the possibility of letting all legislative actions, especially where persecuted minorities, turn to the courts to demand justice. In that regard, when the legislative branch fails to act, the judiciary may perpetuate social injustices and undermine the judiciary’s role in protecting individual rights.

Conclusion

In a multilateral context, the actions of Judges can serve as both Judicial Activism and restraint because these are two primary components of how judicial activism influences[12] the formulation of legal systems that have greater protection for society to preserve its constitutional values. Judicial activism fills the shadows of legal positives, while judicial restraint conforms to a check and balance upon the separation of powers serving as legislation. Neither of these two philosophies can be seen in the future as incomplete, whatever their function, as societies continue to evolve  yet must operate together if justice and the rule of law are respected. These philosophies inform the Court’s engagement and exemplify its function as a guardian of democracy and individual liberties in an intricate legal climate. In upholding these twin tasks of justice and rights, the judiciary must respect legislative intent while tending to societal needs.

Author: Mr. Rohaan Thyagaraju, a third-year law student pursuing BBA LLB from Symbiosis Law School.

[1] Semwal, M. M., & Khosla, S. (2008). JUDICIAL ACTIVISM. The Indian Journal of Political Science, 69(1), 113–126. http://www.jstor.org/stable/41856396

[2] Har Naraini Devi v. Union of India, 2022 SCC OnLine SC 1265

[3] Maneka Gandhi v. Union of India

[4] Almitra H. Patel v. Union of India, (2003) 12 SCC 254

[5] European Court of Human Rights in Dudgeon v. United Kingdom

[6] Sharma, S. (2008). Myth of Judicial Overreach. Economic and Political Weekly, 43(10), 15–18. http://www.jstor.org/stable/40277222

[7] Bendor, A. L. (2011, March 4). THE RELEVANCE OF THE JUDICIAL ACTIVISM VS. JUDICIAL RESTRAINT DISCOURSE. The university of tulsa. https://digitalcommons.law.utulsa.edu/cgi/viewcontent.cgi?article=2816&context=tlr

[8] Swapnil Tripathi v. Supreme Court of India, (2018) 10 SCC 639

[9] Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, (1988) 1 SCC 530

[10] State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501

[11] , 2004 SCC OnLine Mad 798

[12] Tulkens, F. (2022, August 30). Judicial activism v judicial restraint: Practical experience of this (false) dilemma at the European Court of Human Rights. Brill. https://brill.com/view/journals/eclr/3/3/article-p293_002.xml?language=en