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(2012) 3.1 GNLU L. Rev. 17
From Activism to Restraint: Retrograde Judicial Philosophy or Merely

Controverting Judicial Overreach
FROM ACTIVISM TO RESTRAINT: RETROGRADE JUDICIAL PHILOSOPHY OR MERELY

CONTROVERTING JUDICIAL OVERREACH
by
Pubali Sinha Chowdhury1
A lot has been discussed, in the past decade, regarding the attitude of the Indian
judiciary; whether the acts of judicial activism are desirable and necessary in public
interest or whether judicial activism is dangerously overstepping into the realm of
judicial adventurism, something which is not permitted in a democratic set up.
Towards the latter half of the decade, in the light of severe criticism of judicial over
activism, there happened to be a shift in the judicial paradigm and courts wanted to
exercise judicial restraint. The doctrine gained prominence in the apex judiciary and
judicial pronouncements were made in consistence with preserving the balance
between the three branches of the government. The courts attempted to refrain from
taking up contemporary socio-political issues and issuing directives, suo motu. This
phenomenon, what appears to be a shift in the judicial philosophy, is not
unprecedented in India and is rather a retrograde step taken by the judiciary.
However, the judiciary has not been guided by the philosophy of restraint in the
strictest sense and Court directives in the field of legislative process as well as
administrative policy issues have made the headlines in the
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ending years of the last decade. This article analyses whether the Indian judiciary has
finally closed the book on judicial activism and whether it is desirable for the same to
be done. The article also traces the journey of legitimization of acts of judicial
positivism since independence to the present day.
INTRODUCTION
According to Justice Stephen G. Breyer2 , Associate Justice, United States Supreme
Court, judicial restraint was the original notion — judicial restraint activism; activism
is an insult and judges don't like being called activists.3 The term ‘judicial activism’
was first coined by Arthur Schlesinger in an article first published in the Fortune
magazine in 1947. However, the concept of judicial activism is said to have older
foundations.4 Schlesinger identified four Justices as exemplars of activism, particularly
Hugo Black and William O. Douglas and three others as heroes of self-restraint
especially Felix Frankfurter and Robert Jackson.5 Thus with the origin of the term
judicial activism, was conceptualized the expression judicial restraint, two opposite
philosophies forming the judicial mind set from time to time.
Judicial activism in general terms is the process of judicial decision making based
on personal social or political ideology. It generally involves judicial participation in law
making process or matters relating to policy issues, sometimes leading to overruling of
existing law and creating new legal doctrines. Judicial restraint on the other hand, is
entirely an opposite
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philosophy to that of activism. The theory of restraint proposes to check the

overreaching exercise of judicial power and confine the same strictly to matters of
adjudication and interpretation of law.
Thus the principle of judicial restraint denotes self - controlled exercise of judicial
power and restricting judicial function within the constitutional framework. This
philosophy seeks to acknowledge the intrinsic value of democracy and respect the
independence or freedom of the lawmaking and the administrative wings. Thus the
doctrine of judicial restraint in a way preserves the virtue of separation of power.
A lot has been discussed, in the past decade, regarding the attitude of the Indian
judiciary; whether the acts of judicial activism are desirable and necessary in public
interest or whether judicial activism is dangerously overstepping into the realm of
judicial adventurism, something which is not permitted in a democratic set up.
Towards the latter half of the decade, in the light of severe criticism of judicial over-
activism, there happened to be a shift in the judicial paradigm and courts wanted to
exercise judicial restraint. The doctrine gained prominence in the apex judiciary and
rulings were made in consistence with preserving the balance between the three
branches of the government. Honourable Justice Markande Katju, often called the
voice of judicial restraint6 , among other justices at the Apex Court, explicitly spoke in
favour of judicial restraint and made many judicial pronouncements, guided by the
principle of restraint. The courts attempted to refrain from taking up contemporary
socio-political issues and issuing directives, suo motu. In other words Indian judiciary
attempted to draw a line between essential judicial participation and judicial overreach
and restrict its functions within constitutional limits.
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I. JUDICIAL RESTRAINT: NOT A NEW PHILOSOPHY
Judicial restraint is not a new judicial philosophy, at least not in India. In fact, very
much like what Justice Breyers has stated, it was the original notion, the initial judicial
mind set at the commencement of India's journey as a free country.
India remained under colonial rule for over two hundred years until it gained
freedom in 1947 and started the process of establishing itself as an independent
democracy. Thereafter, the great legal minds of the country undertook the primary
responsibility of putting together a grundnorm which would form the foundation of the
country for being guided by the rule of law. The Constitution of India, thus framed,
laid down the broad framework of powers and duties of different organs and governing
bodies of the state, along with, guaranteeing the fundamental rights and freedoms to
the people of the country. One of the striking features of the Indian Constitution, apart
from being the most elaborately written constitution, is that, it has borrowed and
incorporated the best features of all the other Constitutions in the world. One such
characteristic feature is the separation of powers7 in the hands of three different
organs, each independently dealing with three important functions-framing,
implementing and interpreting the law. However, the principle of separation of powers
is not exactly very rigidly practiced; it is tempered with the doctrine of checks and
balances.8
Another aspect borrowed into our Constitution is the Parliamentary form of
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democracy, as practiced in Britain. Such model along with ideas borrowed from
eminent political thinkers like Locke, Montesquieu,
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Aristotle, etc. guide the parliamentary system of our country. Now, these two distinct
features of our Constitution had a combined effect on the judicial mind set to follow
the principle of restraint in the beginning few decades of independent India. Not that
these features were absent in the decades that followed thereafter, but the same had
a circumstantial impact on Indian judiciary. Post 1947 was the time when our country
had just freed itself from colonial rule, rule by a country which observes Parliamentary
supremacy. Judicial temperament was influenced by parliamentary sovereignty and
independence, as was in practice in pre-independent India. The judiciary exercised
maximum caution in deciding matters of constitutionality and seldom decided against
legislative policy. The period from 1950 till early 1970s witnessed the judicial trend of
non interference.
The judicial mind in the period 1950-70s can be best discussed in reference with
evolution of the doctrine of basic structure of the Constitution. The question whether
amendment under Article 368 can be made to fundamental rights had come up come
up for consideration by the Supreme Court in the case Shankari Prasad Singh Deo v.
Union of India9 . In this case, the validity of the Constitution (First Amendment) Act,
1951, which inserted inter alia, Articles 31-A and 31-B (amendment in the right to
property) to the Constitution, was challenged. The amendment was challenged on the
ground that it purported to take away or abridge the rights conferred by Part III10
which fell within the prohibition of Article 13(2) and hence was void. It was argued
that the ‘State’ in Article 12 included Parliament and the word ‘Law’ in Article 13(2),
therefore must include Constitutional amendment, as it was the Parliament which was
effecting a Constitutional amendment. The judiciary, in this matter, carefully protected
the legislative intention behind enacting legislation
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for lawful acquisition of private property by the government. The Apex Court agreed to
the argument put forward by the State that the word ‘amendment’ was not included in
the definition of ‘law’ under Article 13(3) and therefore was not to be tested for
constitutionality under Article 13(2).
In a similar manner, the decision in Sajjan Singh v. State of Rajasthan11 reflected

the restraining attitude of the Supreme Court with respect to the process of judicial
review. The Court held that ‘amendment of the Constitution’ meant and included
amendment of all the provisions of the Constitution, including the fundamental rights.
The judiciary was further of the opinion that if the Constitution-makers intended to
exclude the fundamental rights from the scope of amending power they would have
made a clear provision to such effect. In other words, the judiciary refrained from
intervening in the legislative process even in the face of the weakening strength of
fundamental rights.
Thereafter, the decision in C. Golak Nath v. State of Punjab12 was sort of a turning
point in the approach of the judiciary. The Supreme Court was inclined to recognize its
inherent power of judicial review and stated for the first time that the power to amend
the Constitution given under Article 368 was indeed limited and not unconfined. The
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Court interpreted that an amended provision of the Constitution would have the same
binding effect as that of any other provision of law, thereby bringing ‘amendments’
into the domain of law. Therefore, such an amendment bearing the same effect as that
of any other legal provision could not be made, violating the mandate under Article 13
(2) of the Constitution. This decision led the way for the establishment of the doctrine
of basic structure of the Constitution.13 Subsequently, in 1973, the landmark
judgment in
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Kesavananda Bharati v. State of Kerala14 led to the consolidation of the doctrine of

basic structure, further strengthened by other Supreme Court decisions.
Apart from this, another instance of judicial control can be traced, again midway in
the twentieth century, in the A.K. Gopalan verdict15 . The apex judiciary deemed it fit
to uphold the process of law as supreme and refrained from interfering in legislative
policy, regardless of the absence of reasonableness or fairness in the process of law in
question. It was only after the long waiting period of twenty eight years that the A.K.
Gopalan judgment was overruled by the decision in Maneka Gandhi v. Union of India16
and Article 21 of the Constitution came to be interpreted in the new light of due
process of law.
Further, in ADM, Jabalpur v. Shivakant Shukla17 the Court decided to permit civil
liberties to be suspended during the Emergency of 1975. Such suspension was
permitted under the provisions of the Constitution. The judiciary chose the philosophy
of restraint even at the cost of striking a heavy blow to the rights and civil liberties of
the people. This decision was widely condemned in the latter years, laying the initial
cornerstones of judicial activism.
Not just this, there has been in existence since the commencement of the
Constitution, a presumption of non-interference, a principle adopted by the Courts in
interpretation of statutes. The Courts have ruled that even the charge of excessive
delegation of legislative power is also untenable for being a part of broad legislative
policy.18 Also it has been held that the
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Courts are not to review economic policies pursued by the legislature or the
government.19
II. JUDICIAL ACTIVISM: TURNING A NEW LEAF

The decision in Minerva Mills Ltd. v. Union of India20 paved way for the doctrine of
judicial review to be recognized as a basic feature of the Constitution, thereby making
room for the judiciary to carry out its task of ‘checks and balances’, in coexistence with
the system of separation of powers. But it's not just this decision, the doctrine of
checks and balances is inherently present in the Indian Constitution and the principle
of separation of powers has never been practiced in India in its strictest sense. Thus
the judiciary has got the authority to review the constitutionality of any legislative or
administrative action.
From about 1970 onwards, there occurred a drastic shift in the judicial paradigm.
Ending the established practice of stringent judicial control, the judiciary ventured into
a new dimension of judicial function of active participation in the law making and
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administrative work of the country. Thus began the phase of, what came to be called
as, judicial activism.
In the past few decades, our courts have increasingly been enacting ‘judicial
legislation’, a task that is meant for the judiciary, but for the legislature and elected
representatives. Few instances of judges making law can be noted very distinctively.
Starting with the Vishaka matter, it can be said that the guidelines laid down in the
significant case of Vishaka v. State of Rajasthan21 with regard to protection of working
women from sexual violence at workplaces, undoubtedly constitute a judge-made law.
In this instant case, the Supreme Court felt that it was incumbent to at least
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issue guidelines for safeguarding fundamental rights of women workers guaranteed

under Articles 14, 19 and 21 of the Constitution, especially when a legislation is
absent on this subject. The Protection of Women against Sexual Harassment at
Workplace Bill was drawn up based on these guidelines issued in 1997, and on
November 4, 2010, the central cabinet welcomed the introduction of the said Bill in
the Parliament.22
The apex judiciary further took liberty in relaxing the procedural norms and started
a new form of instituting legal action in the nature of Public Interest Litigation. In
1975, Justice V.R. Krishna Iyer for the first time in the Bar Council of India case23 ,
advocated the liberal interpretation of locus standi in public interest litigation.
Thereafter, the concept of public interest litigation took a clearer shape through the
remarkable judgment, in what is popularly known as the case of the ‘judges’ transfer'.
Justice Bhagwati observed that there is an urgent need to innovate new methods and
devise new strategies for the purpose of providing access to justice to the large
masses of people who are denied their human rights and to whom freedom and liberty
have no meaning.24
Further deciding in the matter of bigamous marriages, the Supreme Court, in the
case Lily Thomas v. Union of India25 held that if a Hindu, even after conversion to
Islam, marries a second time during the life time of his wife, such marriage apart from
being void under sections 11 and 17 of the Hindu Marriage Act, would also constitute
an offence and that person would be liable to be prosecuted under Section 494 of the
Penal Code, 1860. The Court actually ruled on law relating to personal matters and
imposed compulsory penal liability with respect to bigamous marriages.
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Apart from playing a part in the country's law making process the Courts have freely
issued directives to the administration too. The Supreme Court issued directions to the
CBI with regard to the manner and method of investigation;26 interrogated with regard
to Mayavati's prosecution and issued guidelines in 2006 to reform the police
administration27 , a State subject on which only the State Assemblies can legislate.
Thus it became fairly clear that the judiciary was becoming an active participant in
the legislation as well as the law implementation process. In fact, Justice Bhagwati,
Justice Kuldip Singh, Justice Krishna Iyer, made it explicit that the apex judiciary has
taken the work of the judiciary as not only a mere function of interpretation of
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questions of law and administering justice by words, but has considered substantial
participation in the process of governance whether in legislation or in implementation,
where and if the authorities concerned have faltered.
III. CRY FOR JUDICIAL RESTRAINT
The judiciary's over-involvement invited caustic remarks and criticisms from not
only the legislature and the administration but also from the judicial fraternity within
the judiciary itself. Failing to draw a line between active or essential judicial
participation and judicial over-reach, the Courts
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were being criticized of over-activism or even adventurism. It has even been stated
that the judicial process has been impaired due to unnecessary involvement in non-
judicial functions and that the already burdened Court of law is wasting its time and
resources in the process of working a stringent form of checks and balances. It was
feared that the Supreme Court was acting ‘Supreme’, and the country was heading
towards being ‘governed by judges’. It was then that the apex court judges called out
for self control and advised fellow judges to restrain their activities to judicial nature
only.
Former Chief Justice of India, K.G. Balakrishnan cautioned his fellow judges from
acting in excess of authority vested in the hands of the judiciary.28 Justice Katju,
Associate Justice at the Supreme Court, India expressed his views as to how the
judiciary is constantly overstepping its boundaries in the name of affirmative action,
thereby, causing judicial despotism. In the opinion of Justice Katju, judges ought to
know their limits and must not try to run the government; they must have modesty
and humility, and not behave like emperors.29 He pointed out the Jagadambika Pal
case of 1998 and the Jharkhand Assembly case of 2005 as clear instances of judicial
overreach and glaring examples of deviation from the clearly provided constitutional
scheme of separation of powers.
Justice Katju has voiced his opinion in rulings made by him in various matters. In a
matter relating to restructuring of consumer fora at the district, state and national
levels, Justice Katju remarked that it was not the judiciary's job to decide with regard
to the scheme of consumer courts in the country and doing so would be in absolute
disregard for the
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legislature and contravention of the provisions of the Consumer Protection Act.30
Again in the case, Aravali Golf Club v. Chander Hass31 , Justice Katju ruled that it
was not permitted for the High Court to create a post to ensure the reinstatement of
an employee when the position did not originally exist. He categorically stated that
judges should not cross their limits in the name of judicial activism; judiciary needs to
tread its path cautiously and not cross the thin line between activism and overreach.
Recently, in State of Haryana v. Kashmir Singh32 , decided in October 2010, Justice
Katju ruled that matters concerning transfer of police officers are purely administrative
in nature thus requiring that Courts don't interfere and maintain judicial restraint. He
further stated that transfer ordinarily is an incidence of service, and the Courts should
be very reluctant to interfere in transfer orders as long as they are not clearly illegal.
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Taking heed from the apex judiciary, the High Courts have also adopted the practice
of cautious exercise of judicial power. The Delhi High Court severely rebuked the State
Consumer Commission on account of not exercising judicial restraint and acting
against the provisions of the Consumer Protection Act. Where the Commission had
ordered a penalty of Rs. 10 lakhs to the Standard Chartered Bank for sending muscle
men for the recovery of debt, Justice Pradeep Nandrajog, of the Delhi High Court
quashed the order of the Commission for its order given beyond jurisdiction and
mostly given perversely out of vengeance. According to the High Court, an FIR could
be filed with regard to the inappropriate action taken by the Bank, but such penalty
imposed could not be upheld
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for it would amount to a despotic judicial action.33 Further, the Madras High Court
quoted the Supreme Court's decision in the case, Tata Cellular v. Union of India34 , and
held that the power of judicial review available to the Court is limited in nature and
judicial restraint must be exercised until firm grounds of arbitrariness or violation of
principles of natural justice are made out.35
IV. EXERCISING JUDICIAL RESTRAINT: CLOSING THE BOOK OF JUDICIAL ACTIVISM?

From court rulings to explicitly expressed points of view of the judiciary, it can be
noted that the judicial mood as of last few years, has been set on exercising restraint.
Advocates and judges quote the rulings of cases like Tata Cellular v. Union of India36
and B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd.37 attempting to reaffirm the
position of judiciary as that of a deciding body only. Clearly, as Justice Breyer has
explained, judges don't like being called activists; neither do they appreciate being
considered despots disrupting the functioning of a democracy. Thus perhaps, the
judiciary realized it's time to close the book on judicial activism and limit its venture to
interpretation of questions of law.
But the judicial practice today is completely different from what is being professed.
Despite continuous talks on judicial restraint on different levels within the judiciary,
the acts of judicial overreach don't even seem to have been toned down. Although
restraint appears to be a retrograde step chosen to be adopted by the judiciary, it
seems merely a tool for controverting judicial over-reach or over activism as accused.
Directives and guidelines issued almost every alternate day on current matters taken
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up by the Courts suo motu don't really substantiate what has been called self restraint
of judicial power. There is no doubt that active participation of the judiciary in either
legislative or administrative processes have almost always, brought good to the people
of this country and maybe the affirmative action of the judiciary ought to continue in
future, in public interest, but then, the judiciary at present, is deviating from what it
proposes to be the ideal path to tread. The judicial paradigm may have shifted from
activism to restraint in theory but the recent judicial pronouncements in and about
2010-2011, speak a different story.
The Supreme Court order in the ongoing PUCL case against corruption in the Food
Corporation of India has directed the distribution of food grains to the poor for free or
at vastly reduced rates, rather than letting the same to rot in poorly maintained store
houses. The Court further made it clear that the directive issued was in nature of an
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order and not a mere suggestion after the Union Agriculture Ministry considered it to
be the latter. The Court has not hesitated to interfere in the nitty gritty of government
action, not even in fine details relating to the amount of food grains the FCI should be
procuring, how they are to be stored, whether rented storage space should be used
etc.38 To this, the Union cabinet including the Prime Minister stated that they were
opposed to the directive of giving away food grains for free as it would take away all
incentives from farmers producing food grains. In this regard, the Prime Minister said
that the Supreme Court should refrain from interfering in policy issues.39
Further, in October, 2010, the Apex Court issued certain conditions for women
seeking maintenance in live-in relationships. The Court was
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of the opinion that live-in relations have come to be recognized today with not only by
the changing society but also legislations (Protection of Women from Domestic
Violence Act, 2005) expressly legitimizing such relationship. The Court mandated for
being entitled to maintenance, the couple must have held themselves out to society as
being akin to spouses; must have been of legal age to marry and also must have been
otherwise qualified to enter into a legal marriage (including being unmarried).40
Apart from these instances, the Court also issued a notice questioning the
proliferation of Mayawati statues, allegedly misusing worth crores of rupees, in Uttar
Pradesh.41 Matters, concerning budgetary allocations, are non-justiciable and do not
ought to attract judicial intervention.
V. BUT SOMEONE HAS TO DO IT
Clearly the judiciary has tried its best to fend off attacks made on account of acts of
judicial over adventurism. But the question isn't really whether the judiciary has kept
its word and abstained from divulging in matters of legislative or administrative
policy; the real question is whether there will be effective as well as well timed policies
in place in the absence of the judiciary's concern over the government's course of
action. It is undeniably a fact that there is a lack of strategy for effecting important
policies with the changing needs of the society even with the interference of the
judiciary, so what happens when the judiciary decides to take a backseat, who is going
to fill the void?
Judicial activism has come a long way and has got legitimized with time. Barring
certain rare irrational directives, the Courts have actually taken up the task of social
reform, working hand-in-hand with the
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legislature and the administration. Sure, foreign policy is non justifiable and is out of
purview of judicial interference, but the Court's mandate to the government to try and
ameliorate the conditions of the Indians in Australia, facing racially motivated attacks
isn't a step taken by the judiciary quite worth criticizing.42 While the entire world
witnessed attempts to pacify the said situation of racial attacks, working only in
theory, the Indian judiciary felt appropriate to issue a binding directive on the
government and get the wheels turning.
Again in the matter of allowing a curative petition in the Bhopal Gas leak matter,
the Supreme Court has not done anything wrong but has only intended to do justice to
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the inadequately compensated victims.43 There are multiple other instances wherein,
the Court has endeavoured to ensure safety and dignity of human survival. From
protection of the environment from pollution and hazardous emissions to granting the
accused of their Miranda rights through guidelines laid down in the D.K. Basu
judgment, the Court has acted in public interest something mandated in the interest
of justice as per our Constitution itself. The Court's decisions like allowing Public
Interest Litigations for safeguarding human rights or giving relief to the ever
discriminated women from atrocities through various measures don't really qualify as
misuse of judicial function.
It is true that the judiciary is already at odds with the government and is often
attacked on grounds of lack of judicial accountability; however, it is also true that
without the judiciary's assistance, evils like lobbying or nepotism will go unchecked.
For instance, advantaging from the judiciary present stand of self restraint, Tata Group
Chairman Ratan Tata moved before the Supreme Court seeking judicial restraint on
the publication of
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transcripts of phone intercepts of top corporate lobbyist Nira Radia with leading
business, media and political figures on the ground of right to privacy.44 A similar
petition had been filed before the Delhi High Court by Radia herself, where Radia's
plea was denied on the ground that people of the country have the right to know the
truth. Although the government has been presently instructed to investigate into the
matter of unauthorized leak of tapes, what is to be noted is that the Court's restraint
principle if applied stringently could lead to denial of access to knowledge, a
fundamental right, to the public.
It is not that policy decisions will be shrouded in darkness without the court's
interference but the judiciary's point of view is nonetheless important, for the judiciary
is nothing but ensuring that the country is governed by rule of law. What must be
understood is that judicial activism in India does not connote the dictionary meaning
of philosophy of judicial decision-making influenced by personal views about public
policy, but signifies a much needed effort for bringing about social reform.
In the words of Justice Chandrachud, ‘the highest judicial duty is to recognise the
limits on judicial power and to permit the democratic processes to deal with matters
falling outside of those limits…’45 but what cannot be denied, not even by the
judiciary, is that it is the constitutional duty which requires judges to read the
grundnorm in a manner that secures social interest and do anything necessary to
achieve the objects of a true democracy.
———
1 Student, 4th Year, B.A. LL.B (Hons.), Rajiv Gandhi National University of Law, Punjab, Patiala.
2 Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court, appointed by Democratic President
Bill Clinton in 1994, known for his pragmatic approach to constitutional law and association with the more liberal
side of the Court.
3 Justice Stephen Breyer, In Conversation with Jeffrey Rosen, Aspen Ideas Festival (unpublished TV interview
July 7, 2007), online at http://vodpod.com/watch/4756876-stephen-breyer-activist-judges-and-judicial-restraint
(visited Feb 3, 2011).
4 Craig Green, An Intellectual History of Judicial Activism, 58 Emory Law Journal 1195, 1200 (June 2009).
5 Arthur M. Schlesinger Jr, The Supreme Court: 1947, Fortune 201 (Jan 1947).
6
Tannu Sharma, Justice Katju, The Voice of Judicial Restraint, Indian Express (April 21, 2008), online at
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http://www.indianexpress.com/news/justice-katju-the-voice-of-judicial-restraint/299530/ (visited Feb 3, 2011).

7 The doctrine of separation finds its home in the U.S. Constitution. The doctrine owes its origin also to the
political thinkers like Montesquieu who found that concentration of power in one person or a group of people
results in tyranny.
8 In Britain with the theory of supremacy of the parliament the judiciary does not have the power of checks and
balances. In USA, under the doctrine of limited and constitutional government, this power has become very
important.
9 1951 SCC 966 : AIR 1951 SC 458.

10The said amendment would affect the fundamental right to property, earlier vested under Article 19(1)(f) of
the Constitution.
11 AIR 1965 SC 845 : (1965) 1 SCR 933.
12 AIR 1967 SC 1643.

13The doctrine of basic structure was previously discussed in Shankari Prasad Singh Deo v. Union of India, 1951
SCC 966 : AIR 1951 SC 458 and Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845 : (1965) 1 SCR 933.
14 (1973) 4 SCC 225 : AIR 1973 SC 1461.
15 See A.K. Gopalan v. State of Madras, 1950 SCC 228 : AIR 1950 SC 27 : 1950 SCR 88.
16 (1978) 1 SCC 248 : AIR 1978 SC 597.
17 (1976) 2 SCC 521.
18See R.K. Garg v. Union of India, (1981) 4 SCC 675 : (1982) 1 SCR 947; Prag Ice & Oil Mills v. Union of India,
(1978) 3 SCC 459 : (1978) 3 SCR 293; Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248 : (1970) 3
SCR 530; D.S. Garewal v. State of Punjab, AIR 1959 SC 512 : 1959 Supp (1) SCR 792.
19 See R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183 : AIR 1984 SC 684; See also. Rai Sahib Ram Jawaya Kapur
v. State of Punjab, AIR 1955 SC 549 : (1955) 2 SCR 225.
20 (1980) 3 SCC 625.
21 (1997) 6 SCC 241.
22 Cabinet Clears Sexual Harassment Bill, CNN-IBN (Nov 4, 2010), online at http://ibnlive.in.com/news/cabinet-
clears-sexual-harassment-bill/134405-3.html?from=tn (visited Feb 3, 2011).
23 See Bar Council of Maharashtra v. M.V. Dabholkar, (1975) 2 SCC 702 : (1976) 1 SCR 306.
24
See S.P. Gupta v. Union of India, 1981 Supp SCC 87 : AIR 1982 SC 149.
25 (2000) 6 SCC 224.
26 Supreme Court has issued directions to the CBI in various matters from time to time. Recently, in December
2010, the Supreme Court took charge of the 2G spectrum scam probe being conducted by the Central Bureau of
Investigation and widened its scope. It asked the CBI to register an FIR and investigate the grant of licences
from 2001 to 2006-07, with particular emphasis on the loss caused to the public exchequer and corresponding
gain made by the licensees and service providers.
27 See Prakash Singh v. Union of India, (2006) 8 SCC 1. A PIL was filed by Prakash Singh, seeking to reform
existing criminal justice system to establish better rule of law in the country. The Supreme Court has issued
seven point directives to the centre as well as states to immediately implement the same. The Court ordered to
implement the order on the recommendations of the National Police Commission (1977) recommendations.
Recently in an order dated 08.11.2010, the Court got tough on the Chief Secretary of four states for non
compliance of such directions and mandated compliance of the same. See also.
http://indialawyers.wordpress.com/2010/11/10/apex-court-gets-tough-on-police-reforms/ (visited Feb 3, 2011).
28
Judges Must Also Observe Judicial Restraint: SC, Zee News Network (Apr 16, 2009), online at
http://www.zeenews.com/news524148.html (visited Feb 3, 2011).
29 See Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683.
30 Dhananjay Mahapatra, Judicial Restraint: SC Judges Slug it Out, Times of India (May 26, 2007), online at
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http://timesofindia.indiatimes.com/india/Judicial-restraint-SC-judges-slug-it-out/articleshow/2075222.cms
31 (2008) 1 SCC 683.
32 (2010) 13 SCC 306.
33 State Consumer Forum to Maintain Judicial Restraint: HC, The Financial Express (Mar 23, 2007).
34 (1994) 6 SCC 651.
35
See B. Muraliharan v. Union of India, (2011) 1 CTC 428 (Mad)
36 (1994) 6 SCC 651.
37 (2006) 11 SCC 548.
38
Judicial restraint (Editorial), The Financial Express (Sept 2, 2010), online at
http://www.financialexpress.com/news/fe-editorial-judicial-restraint/675966/0 (visited Feb 3, 2011).
39 Rotting of Foodgrains ‘Extremely Serious’ Matter: Supreme Court, Times of India (Oct 18, 2010), online at
http://timesofindia.indiatimes.com/india/Rotting-of-foodgrains-extremely-serious-matter-Supreme-
Court/articleshow/6769938.cms (visited Feb 3, 2011).
40 See D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469.
41 Mayawati and the 40 Statues, The Economic Times (July 1, 2009), online at
http://economictimes.indiatimes.com/opinion/editorial/mayawati-and-the-40-statues/articleshow/4722566.cms
42 SC Seeks Centre's Explanation on Racial Attacks in Australia, Times of India (Jun 22, 2009), online at
http://timesofindia.indiatimes.com/india/SC-seeks-Centres-explanation-on-racial-attacks-in-Australia/article
show/4688524.cms (visited Feb 3, 2011).
43 SC Reopens Bhopal Case, Notices to Accused on Homicide Charge, Times of India (Sept 1, 2010), online at
http://timesofindia.indiatimes.com/india/SC-reopens-Bhopal-case-notices-to-accused-on-homicide-
charge/articleshow/6469576.cms (visited Feb 3, 2011).
44
SC Issues Notices on Tata Plea on Radia Tapes, Times of India (Dec 3, 2010), online at
http://timesofindia.indiatimes.com/india/SC-issues-notices-on-Tata-plea-on-Radia-
tapes/articleshow/7031860.cms (visited Feb 3, 2011).
45 See Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : AIR 1980 SC 898.
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Page 1 Wednesday, October 04, 2023

(2012) 3.1 GNLU L. Rev. 17

From Activism to Restraint: Retrograde Judicial Philosophy or Merely

FROM ACTIVISM TO RESTRAINT: RETROGRADE JUDICIAL PHILOSOPHY OR MERELY

philosophy to that of activism. The theory of restraint proposes to check the

I. JUDICIAL RESTRAINT: NOT A NEW PHILOSOPHY

In a similar manner, the decision in Sajjan Singh v. State of Rajasthan11 reflected

Kesavananda Bharati v. State of Kerala14 led to the consolidation of the doctrine of

II. JUDICIAL ACTIVISM: TURNING A NEW LEAF

issue guidelines for safeguarding fundamental rights of women workers guaranteed

legislature and contravention of the provisions of the Consumer Protection Act.30

IV. EXERCISING JUDICIAL RESTRAINT: CLOSING THE BOOK OF JUDICIAL ACTIVISM?

http://www.indianexpress.com/news/justice-katju-the-voice-of-judicial-restraint/299530/ (visited Feb 3, 2011).

9 1951 SCC 966 : AIR 1951 SC 458.

12 AIR 1967 SC 1643.

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