The which justice, social, economic and political shall

The Supreme Court of
India plays a pivotal role in the Indian political economy. In a society, which
is fractured and polarized on communal lines, and where ideology has reached a
vanishing point, the Supreme Court, despite occasional failures and not
measuring up to the

expectations of various
sections, has become an institution on whose legitimacy there seems to be
national consensus.1

According to former
Chief Justice of India A.M Ahmadi, judicial activism is a necessary adjunct of
the judicial function since the protection of public interest as opposed to
private interest happens to be its main concern.2  

According to Black’s
Law Dictionary,  judicial activism is “a
philosophy of judicial decision-making whereby judges allow their personal
views about public policy, among other factors, to guide their decisions, with
the suggestion that adherents of this philosophy tend to find constitutional
violations and are willing to ignore precedent”.3

Government lawlessness
means (i) government not doing what the law enjoins it to do and (ii) doing
what the law prohibits it to do.4 Government
lawlessness may be corrected by (i) political pressure; (ii) administrative
supervision; (iii) legislative process; or (iv) judicial intervention. Whether
lawlessness is malfeasance or nonfeasance, its rectification depends upon
access to the remedial forums and also the response of those forums.5

The Constitution
enjoins the state to take steps for ‘securing and protecting as effectively as
it may a social order in which justice, social, economic and political shall
inform all the institutions of the national life.’6
But it is useless to expect that the state alone will achieve this. Those who
wield power on behalf of the state need to be pressurized to do what they are
legally bound to do and this requires greater public participation in the
developmental efforts. Public participation envisages education of the people,
that is of those who are beneficiaries of the social change, and their
activisation towards asserting their rights. This is activism.7

Legal activism merely
means actively using law for bringing about social change. For the purpose of
this paper, change means movement towards the goal of a just society as
envisaged by the Constitution. The legislature may initiate a change on its own
or it may act in response to a demand for a change. Similarly, the courts might
act to recognise the rights not so far recognised or create new ones through
interpretation of the constitution or of the laws. All this is legal activism. Legal
activism includes efforts of social action groups through law as well as
initiative and response of the legislature / administrative / judicial authorities.8

The Judicial Review
power of the judiciary aims at activising herself in retaining her domain of
judicial activity over the State inactivity – legislative and executive.9
This judicial activism is twofold, viz., first judicial policy, and, second,
legal services or social action litigation, which clearly shows that any public
minded citizen can approach the court with grievances of the poor and the
illiterate, who in Shakespeare’s language: “You take my life when you do take
the means whereby I Live”, is the silent majority.10

If the law is to
operate today so as to serve social justice to all, who else can do it but
judges whose constitutional task as well as vow is to apply and interpret the
law. Take away judicial activism and tyranny will step in to fill the vacant
space.11

 

The
difference between Restraint and Activism

Judicial restraint is a procedural or substantive
approach to the exercise of judicial review.
As a procedural doctrine, the principle of restraint urges judges to refrain
from deciding legal issues, and especially constitutional ones, unless the
decision is necessary to the resolution of a concrete dispute between adverse
parties. As a substantive one, it urges judges considering constitutional
questions to grant substantial deference to the views of the elected branches
and invalidate their actions only when constitutional limits have clearly been
violated.12 

The philosophy behind
the doctrine of judicial restraint is that there is broad separation of powers
under the Constitution and the three organs of the State, the legislature, the
executive, and the judiciary must respect each other and must not ordinarily
encroach into each other’s domain, otherwise the system cannot function
properly. Also, the judiciary must realise that the legislature is a
democratically-elected body which expresses the will of the people (however
imperfectly) and in a democracy this will is not to be lightly frustrated or thwarted.13

In Asif Hameed v. The State
of Jammu & Kashmir,14
 the Indian Supreme Court observed: “Although
the doctrine of separation of powers has not been recognised under the
Constitution in its absolute rigidity, the Constitution makers have
meticulously defined the functions of various organs of the State. The
legislature, executive, and judiciary have to function within their own spheres
demarcated in the Constitution. No organ can usurp the function of another.
While exercise of powers by the legislature and executive is subject to
judicial restraint, the only check on our own exercise of power is the
self-imposed discipline of judicial restraint.”

One of the most obvious
obstacles to following what the Constitution says is the difficulty of knowing
what it says. The magnitude of this difficulty is crucial. No one believes that
all cases can be disposed of, each with a unique solution, predetermined by
“black letter law.” Even the strongest advocates of “judicial
restraint” present rules of interpretation which are implicit recognitions
that obvious, all-encompassing, and uniquely predetermined solutions cannot be
presupposed. However, it does not require a precise mathematical formula,
specifying the location of a series of points, in order to know whether those
points lie within certain boundaries. The real question is whether the jurist
is searching for such boundaries or for escape from such boundaries– whether
what is involved in the interpretive process is a genuine dilemma or tactical
agnosticism.15

What is at issue
between those who urge judicial restraint and those who urge judicial activism
is not whether there is, or should be, morality in the law? What is at issue is
the institutional source of that morality. A contemporary exponent of judicial
restraint, Judge Robert H. Bork, has summarized the argument as: “In a
constitutional democracy, the moral content of the law must be given by the
morality of the framer or the legislator, never by the morality of the
judge.”16 Once
again, it is necessary to state the position of the advocates of judicial
restraint at some length because the opposing views of the judicial activists
do not simply disagree with their premises, reasoning, or conclusions, but
often debate an entirely different range of issues– whether or to what extent
there should be morality in the law, what kind of morality it should be
(utilitarian, contractarian, etc.), and the moral bases of disobedience of the
law, for example.17 It
is difficult to get the issues between them joined, much less resolved.

It has also been observed
by Justice AS Anand, former Chief Justice of India: “Courts have to function within the established parameters and
Constitutional bounds. With a view to see that judicial activism does not
become judicial adventurism; the
courts must act with caution and proper restraint. They must remember that
judicial activism is not an unguided missile. Failure to bear this in mind
would lead to chaos. Public adulation must not sway the judges. They must
remember that they cannot run the government.”18

A proper balance indeed
needs to be struck between activism and restraint as neither provides a full
proof solution to the dilemma of constitutional interpretation.

1S. P. SATHE, JUDICIAL ACTIVISM IN
INDIA, TRANSGRESSING BODERS AND ENFORCING LIMITS, Introduction (Oxford
University Press, 2nd ed., 2002).

2 A H.
Ahmadi, ‘Judicial Process: Social
Legitimacy and Institutional Viability’, 4 SCC (jour) 1-10 (1996).

3CHOUDHURY RAM KISHORE, TAPUSH-GAM
CHOUDHURY, JUDICIAL REFLECTIONS OF JUSTICE BHAGWATI 262 (Eastern Publication,
2008).

4 S.P.
SATHE, ADMINISTRATIVE LAW 373 (N.M. Tripathi Pvt Ltd; Bombay, 4th
ed., 1984).

5SATHYA NARAYAN, SELECTED
WORKS OF S.P. SATHE, SOCIAL JUSTICE AND LEGAL TRANSFORMATION 564 (Oxford
University Press, Volume 3, 1st ed., 2015).

6 Constitution
of India, Article 38 (1).

7 supra note 5.

8 ibid at 565.

9 K.L. BHATIA, JUDICIAL
REVIEW AND JUDICIAL ACTIVISM 7 (Deep and Deep Publication, 1997).

10
Ibid.

11 ibid at 8.

12Kermit
Roosevelt III, Judicial Restraint, Encyclopedia
Britannica http://www.britannica.com/EBchecked/topic/1676695/judicial-restraint  (last visited, Mar. 27, 2015).

13Markandy
Katju, The Philosophy of Judicial Restraint, The Express Tribune http://tribune.com.pk/story/406897/the-philosophy-of-judicial-restraint/
(last visited, Mar. 25, 2015).

14 Hameed v. The State of Jammu & Kashmir, AIR 1989 SC 1899.

15 Thomas
Sowell, Judicial Activism ReconsThe Supreme Court of
India plays a pivotal role in the Indian political economy. In a society, which
is fractured and polarized on communal lines, and where ideology has reached a
vanishing point, the Supreme Court, despite occasional failures and not
measuring up to the

expectations of various
sections, has become an institution on whose legitimacy there seems to be
national consensus.1

According to former
Chief Justice of India A.M Ahmadi, judicial activism is a necessary adjunct of
the judicial function since the protection of public interest as opposed to
private interest happens to be its main concern.2  

According to Black’s
Law Dictionary,  judicial activism is “a
philosophy of judicial decision-making whereby judges allow their personal
views about public policy, among other factors, to guide their decisions, with
the suggestion that adherents of this philosophy tend to find constitutional
violations and are willing to ignore precedent”.3

Government lawlessness
means (i) government not doing what the law enjoins it to do and (ii) doing
what the law prohibits it to do.4 Government
lawlessness may be corrected by (i) political pressure; (ii) administrative
supervision; (iii) legislative process; or (iv) judicial intervention. Whether
lawlessness is malfeasance or nonfeasance, its rectification depends upon
access to the remedial forums and also the response of those forums.5

The Constitution
enjoins the state to take steps for ‘securing and protecting as effectively as
it may a social order in which justice, social, economic and political shall
inform all the institutions of the national life.’6
But it is useless to expect that the state alone will achieve this. Those who
wield power on behalf of the state need to be pressurized to do what they are
legally bound to do and this requires greater public participation in the
developmental efforts. Public participation envisages education of the people,
that is of those who are beneficiaries of the social change, and their
activisation towards asserting their rights. This is activism.7

Legal activism merely
means actively using law for bringing about social change. For the purpose of
this paper, change means movement towards the goal of a just society as
envisaged by the Constitution. The legislature may initiate a change on its own
or it may act in response to a demand for a change. Similarly, the courts might
act to recognise the rights not so far recognised or create new ones through
interpretation of the constitution or of the laws. All this is legal activism. Legal
activism includes efforts of social action groups through law as well as
initiative and response of the legislature / administrative / judicial authorities.8

The Judicial Review
power of the judiciary aims at activising herself in retaining her domain of
judicial activity over the State inactivity – legislative and executive.9
This judicial activism is twofold, viz., first judicial policy, and, second,
legal services or social action litigation, which clearly shows that any public
minded citizen can approach the court with grievances of the poor and the
illiterate, who in Shakespeare’s language: “You take my life when you do take
the means whereby I Live”, is the silent majority.10

If the law is to
operate today so as to serve social justice to all, who else can do it but
judges whose constitutional task as well as vow is to apply and interpret the
law. Take away judicial activism and tyranny will step in to fill the vacant
space.11

 

The
difference between Restraint and Activism

Judicial restraint is a procedural or substantive
approach to the exercise of judicial review.
As a procedural doctrine, the principle of restraint urges judges to refrain
from deciding legal issues, and especially constitutional ones, unless the
decision is necessary to the resolution of a concrete dispute between adverse
parties. As a substantive one, it urges judges considering constitutional
questions to grant substantial deference to the views of the elected branches
and invalidate their actions only when constitutional limits have clearly been
violated.12 

The philosophy behind
the doctrine of judicial restraint is that there is broad separation of powers
under the Constitution and the three organs of the State, the legislature, the
executive, and the judiciary must respect each other and must not ordinarily
encroach into each other’s domain, otherwise the system cannot function
properly. Also, the judiciary must realise that the legislature is a
democratically-elected body which expresses the will of the people (however
imperfectly) and in a democracy this will is not to be lightly frustrated or thwarted.13

In Asif Hameed v. The State
of Jammu & Kashmir,14
 the Indian Supreme Court observed: “Although
the doctrine of separation of powers has not been recognised under the
Constitution in its absolute rigidity, the Constitution makers have
meticulously defined the functions of various organs of the State. The
legislature, executive, and judiciary have to function within their own spheres
demarcated in the Constitution. No organ can usurp the function of another.
While exercise of powers by the legislature and executive is subject to
judicial restraint, the only check on our own exercise of power is the
self-imposed discipline of judicial restraint.”

One of the most obvious
obstacles to following what the Constitution says is the difficulty of knowing
what it says. The magnitude of this difficulty is crucial. No one believes that
all cases can be disposed of, each with a unique solution, predetermined by
“black letter law.” Even the strongest advocates of “judicial
restraint” present rules of interpretation which are implicit recognitions
that obvious, all-encompassing, and uniquely predetermined solutions cannot be
presupposed. However, it does not require a precise mathematical formula,
specifying the location of a series of points, in order to know whether those
points lie within certain boundaries. The real question is whether the jurist
is searching for such boundaries or for escape from such boundaries– whether
what is involved in the interpretive process is a genuine dilemma or tactical
agnosticism.15

What is at issue
between those who urge judicial restraint and those who urge judicial activism
is not whether there is, or should be, morality in the law? What is at issue is
the institutional source of that morality. A contemporary exponent of judicial
restraint, Judge Robert H. Bork, has summarized the argument as: “In a
constitutional democracy, the moral content of the law must be given by the
morality of the framer or the legislator, never by the morality of the
judge.”16 Once
again, it is necessary to state the position of the advocates of judicial
restraint at some length because the opposing views of the judicial activists
do not simply disagree with their premises, reasoning, or conclusions, but
often debate an entirely different range of issues– whether or to what extent
there should be morality in the law, what kind of morality it should be
(utilitarian, contractarian, etc.), and the moral bases of disobedience of the
law, for example.17 It
is difficult to get the issues between them joined, much less resolved.

It has also been observed
by Justice AS Anand, former Chief Justice of India: “Courts have to function within the established parameters and
Constitutional bounds. With a view to see that judicial activism does not
become judicial adventurism; the
courts must act with caution and proper restraint. They must remember that
judicial activism is not an unguided missile. Failure to bear this in mind
would lead to chaos. Public adulation must not sway the judges. They must
remember that they cannot run the government.”18

A proper balance indeed
needs to be struck between activism and restraint as neither provides a full
proof solution to the dilemma of constitutional interpretation.

1S. P. SATHE, JUDICIAL ACTIVISM IN
INDIA, TRANSGRESSING BODERS AND ENFORCING LIMITS, Introduction (Oxford
University Press, 2nd ed., 2002).

2 A H.
Ahmadi, ‘Judicial Process: Social
Legitimacy and Institutional Viability’, 4 SCC (jour) 1-10 (1996).

3CHOUDHURY RAM KISHORE, TAPUSH-GAM
CHOUDHURY, JUDICIAL REFLECTIONS OF JUSTICE BHAGWATI 262 (Eastern Publication,
2008).

4 S.P.
SATHE, ADMINISTRATIVE LAW 373 (N.M. Tripathi Pvt Ltd; Bombay, 4th
ed., 1984).

5SATHYA NARAYAN, SELECTED
WORKS OF S.P. SATHE, SOCIAL JUSTICE AND LEGAL TRANSFORMATION 564 (Oxford
University Press, Volume 3, 1st ed., 2015).

6 Constitution
of India, Article 38 (1).

7 supra note 5.

8 ibid at 565.

9 K.L. BHATIA, JUDICIAL
REVIEW AND JUDICIAL ACTIVISM 7 (Deep and Deep Publication, 1997).

10
Ibid.

11 ibid at 8.

12Kermit
Roosevelt III, Judicial Restraint, Encyclopedia
Britannica http://www.britannica.com/EBchecked/topic/1676695/judicial-restraint  (last visited, Mar. 27, 2015).

13Markandy
Katju, The Philosophy of Judicial Restraint, The Express Tribune http://tribune.com.pk/story/406897/the-philosophy-of-judicial-restraint/
(last visited, Mar. 25, 2015).

14 Hameed v. The State of Jammu & Kashmir, AIR 1989 SC 1899.

15 Thomas
Sowell, Judicial Activism Reconsidered,
http://www.tsowell.com/judicial.htm (last visited, Mar. 22, 2015).

16  Robert Bork, Tradition
and Morality in Constitutional
Law 11 (1984).

17  RONALD DWORKIN, TAKING RIGHTS SERIOUSLY, 134 (Harvard
University Press, 1978).

18 supra note 13.idered,
http://www.tsowell.com/judicial.htm (last visited, Mar. 22, 2015).

16  Robert Bork, Tradition
and Morality in Constitutional
Law 11 (1984).

17  RONALD DWORKIN, TAKING RIGHTS SERIOUSLY, 134 (Harvard
University Press, 1978).

18 supra note 13.