Judicial Activism vs Judicial Restraint: Meaning, Arguments and the Indian Experience

Justice Anthony Kennedy is reported to have said, "An activist court is a court that makes a decision you don't like." The line is funny, and it also points to the real difficulty. Ask ten people what judicial activism means and you may get ten answers, each shaped by whether they liked the last big judgment.

This blog lays out the meaning of judicial activism and judicial restraint, where the term came from, the arguments on both sides, and how the idea has played out in India. It draws on a Wikipedia article on judicial activism, so treat it as a broad overview, and check case titles and details against a law report or your own notes before using them in an answer.

Two ideas, set side by side

The source adds that the definition itself is contested. What counts as an activist decision is a political question as much as a legal one.

Where the term came from

Arthur Schlesinger Jr. introduced "judicial activism" in a January 1947 Fortune article called "The Supreme Court: 1947." Craig Green later criticised Schlesinger's use of the term as "doubly blurred," because Schlesinger neither explained what counts as activism nor said whether it was good or bad.

The idea is older than the phrase. Thomas Jefferson called the judiciary a "despotic branch" when Federalist judges, notably Chief Justice John Marshall, dominated it.

How scholars try to pin it down

•        Black's Law Dictionary: A decision-making philosophy in which judges let personal views on public policy, among other factors, guide their rulings.

•        Bradley Canon: Six dimensions for judging activism: majoritarianism, interpretive stability, interpretive fidelity, substance or democratic process, specificity of policy, and availability of an alternate policymaker.

•        David A. Strauss: A narrow test. Activism means overturning laws as unconstitutional, overturning judicial precedent, or ruling against a preferred constitutional interpretation.

•        Kermit Roosevelt III: The term is often little more than a rhetorically charged shorthand for rulings the speaker dislikes.

For exam answers, the lesson is useful. Do not define activism with a single sentence and move on. Show that the concept has no fixed boundary, then pick a working definition and apply it.

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The case for activism

Defenders say activism can be a legitimate form of judicial review and that legal interpretation must change with the times. Brian Z. Tamanaha argued that even judges of the formalist era recognised gaps in the law that forced them to make choices. On this view, judicial discretion cannot be avoided, so the real question is how it is used.

Some supporters add that courts should counter transient majoritarianism, meaning a passing majority mood, in order to protect minorities. Activism is most justified, they say, when it checks majorities acting from passion or prejudice instead of reasoned deliberation.

The case for restraint

Critics argue that activism takes over the power of elected branches and agencies. They say this harms the rule of law and democracy. Supporters of minimalist democracy stress that electoral accountability is the source of legitimacy, and judges are not elected.

The source also contrasts two ideas. Parliamentary sovereignty holds that the legislature is supreme, while constitutionalism holds that the constitution is supreme. Critical legal studies adds a third angle, that political and legal argument cannot be fully separated.

A balanced answer should present both cases and then say where the line should fall. Examiners usually reward a clear stand that is supported by reasons.

The Indian story

Why activism grew after the Emergency

According to the source, Indian judicial activism grew largely after the Emergency, when the government tried to control the judiciary. The courts then devised Public Interest Litigation (PIL), so that people could reach them directly. A litigant need not be the victim. Courts could also take suo motu cognizance, which means taking up a matter on their own initiative.

The source credits Justice V. R. Krishna Iyer with introducing PIL and says this expanded the scope of activism. The trend has been both supported and criticised.

The constitutional background

•        Before and during the Emergency, courts avoided "wide and elastic" readings, which the source calls "Austinian," partly because the Directive Principles of State Policy are non-justiciable.

•        B. R. Ambedkar argued in the Constituent Assembly Debates that judicial review, especially writ jurisdiction, could give quick relief against abridgment of Fundamental Rights.

•        Fundamental Rights have been widely interpreted to include a right to privacy, a right to livelihood and a right to education.

•        The basic structure doctrine holds that the Constitution's basic structure cannot be altered, despite Parliament's amendment powers under Article 368.

•        The page cites Article 39A as a basis for the force of the rulings. Check the precise link between Article 39A and any case before you write it in an answer.

A turning point

The source dates the modern trend to 1973, when the Allahabad High Court rejected Indira Gandhi's candidature in a case it names as State of Uttar Pradesh v. Raj Narain. Verify the exact case title and court from a law report before quoting it, because the page presents it only in brief.

Examples the source gives

•        The Supreme Court ordered Delhi's auto-rickshaws to be converted to CNG, a move believed to have reduced smog. The page notes that smog has reportedly returned.

•        Courts closed much of the iron-ore-mining industry to curb corruption, and ruled that politicians facing criminal charges could not seek re-election, according to Gardiner Harris of the New York Times, whom the page quotes.

•        Parliament has passed several constitutional amendments in response to Supreme Court rulings, which shows open conflict between the Court and Parliament over decades.

Notice how these examples cut both ways. The CNG order shows a court acting for public health, and the smog that reportedly returned shows the limits of a court solving a policy problem.

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Criticism of the Indian trend

The source mentions several critics. Commentators have argued that judicial independence is eroding, citing a 2020 Washington Post opinion by Rana Ayyub. Other critiques include T. R. Andhyarujina's 2012 article in The Hindu, "Disturbing trends in judicial activism," and an economic analysis by Anant and Singh (2002).

A quick look abroad

The list shows that different people label different cases as activist, depending on the outcome they prefer. That is exactly Roosevelt's point.

How to use this in an answer

A strong answer on activism has four moves. Define the term and admit it is contested. Give the case for activism and the case for restraint. Support your view with Indian examples such as PIL, suo motu cognizance, the basic structure doctrine and the CNG order. Then reach a measured conclusion, for example that courts should act when rights are at stake and the other branches have not, while leaving policy detail to elected bodies.

A question may also be framed as a statement, such as "Judicial activism is a threat to democracy." In that case say in the first line which part you accept and which you dispute, then spend your time on the disputed part.

Frequently Asked Questions

Q1. What is judicial activism?

A judicial philosophy holding that courts can and should go beyond the applicable law to consider the broader effects of their decisions.

Q2. What is judicial restraint?

The approach in which courts defer to the elected branches and avoid striking down their actions.

Q3. Who introduced the term judicial activism?

Arthur Schlesinger Jr., in a January 1947 Fortune article titled "The Supreme Court: 1947."

Q4. Why did judicial activism grow in India?

The source says it grew largely after the Emergency, when the government attempted to control the judiciary.

Q5. What is Public Interest Litigation?

A device created by courts so that people can reach them directly. The litigant need not be the victim.

Q6. What is suo motu cognizance?

It lets a court take up a case on its own initiative.

Q7. What does the basic structure doctrine say?

The basic structure of the Constitution cannot be altered, even though Parliament has amendment powers under Article 368.

Q8. Which Indian example of activism does the source give about pollution?

The Supreme Court ordered Delhi's auto-rickshaws to be converted to CNG, which was believed to have reduced smog, although smog has reportedly returned.

Q9. Why do critics oppose activism?

They say it takes over the power of elected branches and agencies, and harms the rule of law and democracy.

Q10. Why do supporters defend activism?

They say legal interpretation must change with the times, judicial discretion is unavoidable, and courts should protect minorities from transient majorities.

Think like a judge, write like a scholar

Judicial activism and restraint are not simple opposites. They are two ways of answering one question: how far should a court go when the other branches do not act? A good aspirant can argue both sides and still reach a clear view.

Nitesh Sir and the Aashayein Judiciary team teach concepts like this through Judiciary Notes, Judiciary Study Material, PYQ discussion and Mock Test practice. Join our Online Judiciary Coaching to build answers that examiners remember in the Civil Judge Exam, PCS J Exam and APO Exam.