Difference Between Judicial Activism and Judicial Restraint (With Table)

Judiciary is one of the important sentinels guarding the democracy of a country. Judiciary consists of a code of conduct which is responsible for upholding the law and order on behalf of the state. It is one of the powerful tools in protecting the liberty and rights of all citizens.

Judiciary is also responsible for providing fair and unbiased justice for all on behalf of the state. The ever-changing dynamics in social, economic etc. of a state brings a moral necessity for the judiciary system to adapt to the evolving challenges.

Many concepts were developed to improve the judgmental actions taken by the judge for delivering the proper verdict. The two main concepts are judicial activism and judicial restraint. In fact, judicial restraint and judicial activism are the two sides of the same coin.

Both are opposite to each other in terms of ideas and philosophy. The above two concepts have various theories and doctrines on which it was built. Judicial activism refers to the philosophy insisting the judiciary body to go beyond theoretical laws to consider the wider community implication of their decision. It motivates the judicial body to take decisions based on the needs of society and its welfare.

Judicial restraint refers to the decisions taken by the judicial body purely on existing laws and doctrines. This concept emphasizes that the judiciary body should not intervene in the political decisions unless and until a clear violation is made against the legislature.

Judicial Activism vs Judicial Restraint

The difference between judicial activism and restraint is that judicial activism deals in taking judiciary decisions based on the present needs of the society. Whereas judicial restraint deals in taking decisions using the powers bestowed by the constitutional framework.

Judicial restraint tries to refrain from interfering in political decisions but judicial activism does not hesitate to interfere in political decisions.

Comparison Table Between Judicial Activism and Judicial Restraint

Parameters of ComparisonJudicial ActivismJudicial Restraint
DefinitionInvolves judiciary decision while keeping about the social implications in mind.Refers to the judicial decision taken by the judge which is purely based on the framework of the constitution.  
FunctionEmerging social dynamics is taken into account while a decision is made.Decisions purely based on statutory and constitutional mandates.
Dependent onPersonal and social interpretation by the judicial body.Purely on the constitution and the rules laid.
AdvantageEnsures that the decision covers the need for the various aspects of the dynamically changing society.Make sure that the decisions taken follow the protocols strictly laid by the constitution.
DrawbacksExcess judicial activism might turn the judiciary body into a legislative body.Excess judicial restraint might fail to consider the emerging dynamics in society.

What is Judicial Activism?

Judicial Activism refers to the philosophy of taking judiciary decisions based not only on traditional laws but also on changing dynamics happening in society. This term was coined by Arthur Schlesinger in the year 1947. Black’s Law Dictionary defines judicial activism as a philosophy which encourages judges or judiciary body to take decision favourable to new social and progressive policies despite shifting away from the traditional framework.

Judicial activism paved way for the interpretation of laws based on the wider social context. In judicial activism, the judicial decisions would have a mix of political and personal reflection of the judiciary body.

The judiciary body steps in to give decisions favourable to the public when the executive body or government fails to do so. It is this aspect of judicial activism which has gained both appreciation and criticism. Sceptics feel that judicial activism meddles in political decisions which should be kept separate from judiciary. Their point of the argument is that political decisions have wider motive apart from the announced motive which cannot be understood easily or explained due to some external or internal reasons.

Hence, there should be no directives from other body unless and until the fundamental right of a citizen is denied. But there are so many supporters for judicial activism. Supporters feel that it is judicial activism which motivates the judiciary body to go beyond theoretical laws in a judgement.

There are some decisions which are framed based on existing laws without considering the needs of the present dynamic scenario. It is judicial activism which empowers the judge to go against the decisions of the legislator if the situation demands.

What is Judicial Restraint?

Judicial restraint is another concept in the judiciary field which is opposite to that of judicial activism. It refers to the decision or judgements taken by the judge or the judiciary body purely on existing laws alone. It never meddles with the political decision unless a clear violation has been made by the governing body.

In judicial restraint, the judiciary body has deep respect towards the stability in lawmaking. According to ‘Fundamentals of Judicial Philosophy’, a judicial restraint judge believes that the judiciary remains the least powerful among the three government branches. The judge also believes that democracy has not only instrumental value but also intrinsic value.

Supporters of judicial restraint state that the judicial body should not interfere in political decisions as it does not have any policy-creating powers. The judicial body can only direct or guide the authorities to carry out the activities based on law.

Main Differences Between Judicial Activism and Judicial Restraint

  1. Judicial activism deals with the decision taken based on the needs of the society whereas judicial restraint is based on taking decisions purely on the rules and regulation laid by the constitution.
  2. Judicial activism takes into changing aspects of the society into account whereas judicial restraint is not obliged to consider the wider aspects.
  3. Judicial restraint never interferes with the decision taken by the legislative body unless a clear violation arises as directed by the constitution. But this is not the case with judicial activism.
  4. Judicial activism gives more priority to social welfare whereas judicial restraint focuses on laws laid by the constitution.
  5. Judicial activism motivates the personal minds and creativity of the judiciary body in taking decisions whereas judicial restraint does not.

Conclusion

Criticisms remain in both judicial activism and judicial restraint. Though judicial activism and restraint are the two sides of the same coin, the present society might require the combination of both in taking decisions by the judiciary. The extent to which the concepts have to be applied cannot be pre-fixed as it varies for every unique scenario. 

Reference

  1. https://www.jstor.org/stable/3481421?origin=JSTOR-pdf&seq=1
  2. http://www.legalservicesindia.com/article/2019/Judicial-Activism-and-Judicial-Restraint.html
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