Roll No: BA0130041

INTERPRETATION OF STATUTES

(SYNOPSIS)

JUDICIAL ACTIVISM V. JUDICIAL RESTRAINT

AIMS AND OJECTIVES: Primary objective of the research paper is to examine the evolution of
the process where there is use of the court as an apparatus for intervention over the decisions of
policymakers through precedents (Judicial Activism) as opposed to the traditionally conservative
view (Judicial Restraint). And, also to study the philosophy of Judicial Activism and Judicial
Restraint in USA and India.

HYPOTHESIS: Though there is a broad separation of powers, it is pertinent that judges are more activist
than self-restraining themselves, albeit in rare and exceptional cases. Also, the benefits of Judicial
Activism outweigh that of Restraint. The research is primarily doctrinal in nature. The researcher
has used various primary sources and secondary sources to collect data for this project by using
different books, judgments, and various published articles.

SOURCES

Primary Sources: Judgments

Secondary Sources: Books, Articles.

LITERATURE REVIEW:

CASE LAWS

Marbury vs. Madison (1803): the historical decision of the US Supreme Court relating
to Judicial Activism: theConstitution, not Parliament, which is supreme in the
country.
West Virginia State Board of Education vs. Barnette, 319 US 624 (1943): it is vital that
it should be exercised with rigorous self-restraint.
Brown vs. Board of Education
 Asif Hameed vs. The State of Jammu & Kashmir, AIR 1989 SC 1899: The legislature,
executive, and judiciary have to function within their own spheres demarcated in the
Constitution. No organ can usurp the function of another.

BOOKS

1. Kermit Roosevelt III, The Myth of Judicial Activism ; First Indian Reprint, Universal
Law Publishing Co. Pvt. Ltd, 2008: Resourceful in shedding light on the question of what
justifies a constitutional decision. Also, offers the idea of legitimacy.
2. S.P. Sathe, Judicial Activism in India; 10th Edition, Oxford University Press, 2013: Gives
an elaborate idea on the development of Judicial Activism in India and also the debate
regarding it.
3. O. Chinnappa Reddy, The Court and the Constitution of India ; 6th Edition, Oxford
University Press, 2013: Focuses on the dichotomy observed in the judicial process:
unelected Judges versus democratically elected legislatures; result-oriented judging
versus principles decision-making; law versus politics and so on.

ARTICLES

1. Separation of Powers, Judicial Review and Judicial Activism ; Markandey Katju: This
article provided the much needed insight and global review on Judicial Activism and
Judicial Restraint in both India and in USA.
2. The Legislative Aspect of the Judiciary: Judicial Activism and Judicial Restraint ;
Justice B.S. Chauhan: This speech highlights the doctrine of Separation of Powers,
limited role of the Judges as a Law Giver, and also the criticisms of the Power of Judicial
Review.
3. The Philosophy of Judicial Restraint; Markandey Katju, The Express Tribune, 2012:
Emphasizes on broad Separation of Powers under the Constitution and also how Judicial
activism should be done in rare cases.