Judicial Activism, Judicial Overreach and Judicial Self Restraint. The recent controversy over judicial “overreach “and “judicial
activism,” is totally unwarranted. The Chief justice of India dismissed it by suggesting not to worry too much about this approach of the court. The court exercises Activisms and Restraint according to the facts of each case. It has not consistently maintained one approach or the other. It also depends upon the thinking and the philosophy of the judges. Ehlrich, the great American judge therefore said, Court is known by the personality of judge. The judiciary has its own role to play in the democracy. It cannot adopt hands off policy when unconstitutional steps are taken by the Government or when it comes to its notice that the basic human rights granted under the constitution is being violated flagrantly with the active connivance of the state.

If the court, instead of issuing seminal directions, dismissed the petitions filed before it, on mere technical grounds of its maintainability, the country could have seen the gross violations of basic human rights of bonded labourers, exploitation of asiad labouers by the state, and sufferings of thousands of citizens because of air noise and water pollution.

After the elections are over the elected government forgets its accountability towards the people. It is the judiciary who has kept  the government in check. The question often arises about the accountability of the judiciary. However, Judicial accountability is fixed within the provisions of the constitutions. The judge’s accountability rest with his conscience, while doing justice, he has with him this inclination which plays important role in decision making process.

The arguments that activist approach of the court puts hindrances for the government in formulating its policies and enacting the legislations, are also not correct. If we go by the records, very few legislations have been declared void and unconstitutional by the apex court in last sixty eight years.

The broad meaning of restraint according to Posner is nothing but the structural restraint by which he tried to limit the courts power over other government institutions.

In the history of sixty years of Indian Judiciary, and hundreds of pronouncements made by it has proved proved one point beyond reasonable doubt that it is only and only the judiciary who has kept his head high. And it really established and proved to be the people’s court.

Answering to the questions of Activism and Restraint, Gobind Das said. “The court has throughout sought to be defender of the rights of the people against the excesses of executives… when the executive  was weak or negligent the courts were obliged to step in to ensure that the needs of the people were met. Sr. Advocate Sorabjee also maintains that, except in some cases of PIL judicial intervention cannot be termed as overreach.

“Many judicial decisions implicating activism and self restraint have nothing to do with the power of the court but rather deals with the power of other branches. Any activism or restraint is limited to public law, it is not extended to private law”.

-Robert Posner

Bundhi Mukti Mocha (1984 3 SCC 161), Asid labour case (A.I.R. 1987 S.C. 656) and M.C. Mehta (A.I.R. 1986 S.C. 180) are the landmark judgments showing Judicial Activism.

“People could be persuaded to realize that judges are human being it would be great help to jurisprudence, such realization would be a special assistance to judicial administration.”

-Alliven Wendel Holmes

“Activism and Self Restraint are two extremes of a continuum. We can speak of degrees of activism and degree of self restraint these are no criteria for defining activism and self restraint.”

BY LAWZ BUREAU