Abstract

http://ssrn.com/abstract=1601843
 


 



Indian Judiciary: From Activism to Restraint


Gautam Jayasurya


Rajiv Gandhi National University of Law

May 7, 2010


Abstract:     
In this paper, we have taken an endeavour to discuss judicial activism vis-à-vis judicial restraint as how one poses problems for another and keeps a corresponding relationship through out. Judicial activism has always been a source of heated debate, especially in the light of recent developments in this regard. Over the last few years with various controversial decisions, judges of the Supreme Court as well as various High Courts have once again triggered off the debate that has always generated a lot of heat. But still, what the term “judicial activism” actually connotes is still a mystery. From the inception of legal history till date, various critics have given various definitions of judicial activism, which are not only different but also contradictory. This is an attempt to bring out the exact connotation of “judicial activism” and to find out its effects on today’s changing society.

The Indian constitution which was drafted in 1950 is one of the well compiled and well planned constitutions. It is a constitution which defined powers and functions of the organs of the government, which are meant for a safe and fair indirect parliamentary democracy in India. Hence supremacy of parliament is the essential feature of our political system. The Supreme Court acts as the guardian and the protector of the constitution. It prevents parliament from enacting any legislation against the spirit and letter of the constitution. Courts in India respected reputation for creatively and genuinely discharging their assigned duty conscientiously.

The Indian constitution consists of all essential requisites for the exercise of judicial review – as a written and rigid constitution, federation having division of powers and fundamental rights. 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 power of judicial review enables the Supreme Court to review the acts and the orders of the legislative and executive wings of the government. They are directed to act within their ambit for fair and smooth administration. A complete harmony between judicial review and parliamentary supremacy is an outstanding achievement of the architects of the Indian constitution.

Both U.S and U.K adopted the extremes of supremacy of American judiciary and supremacy of British parliament, whereas Indian constitution has adopted a golden mean between the two. No supreme court can stand in judgement of sole will of the parliament, representing the will of the entire community. But when there is a question regarding the future of the community, judiciary can pull up that sovereign power.

Number of Pages in PDF File: 14

Keywords: Indian Constitution, Judicial activism, Judicial Restraint, Indian Judiciary

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Date posted: May 11, 2010  

Suggested Citation

Jayasurya, Gautam, Indian Judiciary: From Activism to Restraint (May 7, 2010). Available at SSRN: http://ssrn.com/abstract=1601843 or http://dx.doi.org/10.2139/ssrn.1601843

Contact Information

Gautam Jayasurya (Contact Author)
Rajiv Gandhi National University of Law ( email )
Mohindra Kothi, Fountain Chowk
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Patiala, PA Punjab 147001
India
+91-9780655139 (Phone)
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