Question

Consider the concepts of "judicial activism" and "judicial restraint." Can you give examples of each? Please do so. Which judicial behavior do you believe best serves the country? Why?

Answer 1

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Abstract

A) Judicial Activism and Judicial Restraint are two opposite approaches. Judicial activism and judicial restraint, which are very relevant in the United States, are related to the judicial system of a country, and they are a check against the fraudulent use of powers of the government or any constitutional body.

1. Judicial activism is the interpretation of the constitution to advocate contemporary values and conditions.

On the other hand, judicial restraint is limiting the powers of the judges to strike down a law.

2. In the judicial restraint, the court should upload all acts of the congress and the state legislatures unless they are violating the constitution of the country.

In judicial restraint, the courts generally defer to interpretations of the constitution by the congress or any other constitutional body.

3. In the matter of judicial restraint and judicial activism, the judges are required to use their power to correct any injustice especially when the other constitutional bodies are not acting.

This means that Judicial activism has a great role in formulating social policies on issues like protection of rights of an individual, civil rights, public morality, and political unfairness.

4. Judicial activism and judicial restraint have different goals.

Judicial restraint helps in preserving a balance among the three branches of government, judiciary, executive, and legislative. In this case, the judges and the court encourage reviewing an existing law rather than modifying the existing law.

5. When talking about the goals of judicial activism, it gives the power to overrule certain acts or judgments.

For example, the Supreme Court or an appellate court can reverse some previous decisions if they were faulty. This judicial system also acts as checks and balances and prevents the three branches of government, judiciary, executive and legislative from becoming powerful.

B) Example of Judicial Activism Case

The most recent case on judicial activism was the case of Aruna Ramchandra Shanbaug Vs. Union of India and Others,Aruna Shanbaug, a nurse in 1973, while working at a Hospital at Mumbai, was sexually assaulted and has been in a permanent vegetative state since the assault.

In 2011, after she had been in this status for 37 years, the Supreme Court of India heard the petition to the plea for euthanasia filed by a social activist claiming to be Aruna’s friend.

The Court turned down the petition, but in its landmark judgment (authored by the writer) it allowed passive euthanasia i.e. withdrawal of life support to a person in permanently vegetative state, subject to approval by the High Court.

Example of Judicial Restraint Case

In Almitra H. Patel Vs. Union of India, where the issue was whether directions should be issued to the Municipal Corporation regarding how to make Delhi clean, the Court held that it was not for the Supreme Court to direct them as to how to carry out their most basic functions and resolve their difficulties, and that the Court could only direct the authorities to carry out their duties in accordance with what has been assigned to them by law.

C) Judicial Behavior

The extent to which judges choose to move beyond their policy preferences divides the field of law and politics.

Normatively, influences over what judges ought to do include evaluating legal rules such as precedent or legislative intent, in an attempt to find the best answers to cases before them.

Thus, in addition to the judges’ own preferences, legal influences should be useful in explaining judicial behavior, though the extent to which it does undoubtedly varies throughout the judicial system.

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