NIRMA UNIVERSITY

INSTITUTE OF LAW B.Com., LL.B. (Hons.) Course ACADEMIC YEAR 2013-2014

CONCEPT ON INTERPRETATION OF STATUTES COURTS NOT TO LEGISLATE

TITLE JUDICIAL ACTIVISM OR JUDICIAL RESTRAINT: SHOULD THERE BE A LEASH ON COURTS POWER TO LEGISLATE?

SUBMITTED BY:
ROHIT LALWANI (10BBL035) IPR GROUP VIII SEMESTER

SUBMITTED TO:
DR. RASHMI KHURANA NAGPAL INTERPRETATION OF STATUTES

Judicial Activism or Judicial Restraint: Should there be a leash on Courts power to Legislate?

The Indian constitution which was drafted in 1950 is one of the well compiled and well planned constitutions. The constitution defines the powers and functions of all the pillars, i.e., the judiciary, legislature and the executive and these are meant for a safe and fair indirect parliamentary democracy in India. Hence, the essential feature of our political system is the supremacy of parliament. The Supreme Court, being the apex court has to act as the guardian and protector of the constitution. It prevents parliament from enacting any legislation against the spirit and letter of the constitution. For creatively and genuinely discharging their assigned duties conscientiously, the Indian courts have often gained respect from all over the world. As a written and rigid constitution and a federation consisting of separations of powers among the different organs and grant of fundamental rights to its citizens, the Indian constitution consists of all essential requisites for the exercise of judicial review; including judicial activism and judicial restraint. Judicial review is the power conferred upon the apex court by constitution, the power to hold any law, official action based on a law, any other action by a public official that deems to be in conflict with constitution. The Supreme Court has the power to review the acts and orders of the executive and the legislative wings of the parliament under the concept of judicial review. They are thus, directed to act within their ambit for fair and smooth administration. An amazing achievement of the makers of the Indian constitution is the way they have enshrined a complete harmony between judicial review and parliamentary supremacy. The Executive, Judiciary and the Legislature all have their own broad areas of operation under the Constitution and usually, it is not proper for any of these organs to interfere in the domain of the other, otherwise the fragile balance in the Constitution will be upset, and there will be a reaction. Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like Emperors. There is broad separation of powers under the Constitution and each organ of the State the legislature, the executive and the judiciary must have respect for the others and must not encroach into each others domains.

Judges must exercise judicial restraint and must not encroach into the executive or legislative domain. A few recent cases on the same heated issue include the case of Indian Drugs & Pharmaceuticals Ltd. v. The Workman of Indian Drugs & Pharmaceuticals Ltd.1 and S.C. Chandra and Ors. v. State of Jharkhand and Ors.2 In this research paper, I have made an attempt to discuss judicial activism with relation to judicial restraint and how these two are inter-connected and how the judiciary sometimes needs to be reminded of its limitations and of the fact that it cannot trespass the powers of the other organs of a democracy, i.e., the legislature and the executive. Judicial activism and judicial restraint have been the source of a heated discussion lately, mainly because of the recent developments that have taken place in the past few years. The judges of the Apex Court as well as various High Courts of the states have again set off this controversial issue by giving some controversial decisions. What Judicial Activism and Judicial Activism actually mean is still not clear because there is no particular definition given to it. Over the years, various jurists have defined it with their own understanding of it but these definitions have often been contrary to each other and thus this is an attempt to interpret how both these concepts are necessary for the proper functioning of judiciary in India through various judgments of the court and also it would be analyzed how there should be some limitations on how the court should be allowed to exercise their powers and under what circumstances.

1 2

(2007) 1 SCC 408. 2007 (10) 4 SC 272.