Centre for Advanced Legal Studies and Research, (CALSAR), Thiruvananthapuram


Sruthi Kannan 8th semester BA.LLB (UG Student)


Covid-19 pandemic has a significant toll on people across the world, a widespread of such level was never anticipated. This pandemic hit the lives of millions of people around the globe. A paucity of medical facilities, infrastructure and doctors has been witnessed worldwide. Coming to the concept of judicial activism, when the courts issue an order or a decree which leads to the expansion of the judicial power it is known as Judicial Activism Judicial restraint on the other hand, restricts the judiciary to make different decisions which are constitutional in nature unless it is extremely necessary that such a decision must be made, which makes it totally opposite from the concept of Judicial activism. The concept of Judicial restraint was introduced because of the ideology of the separation of powers and the power to make laws is in hands of the legislature not in the hands of the judicial system.

Judicial System and Covid – 19

Since the first lockdown in March, 2020 which is due to the Covid-19, there have been many instances of deprivation of basic human rights, either legitimately or in a roundabout way. [1]Agreeing to a report distributed by National Judicial Data Grid[2] expresses that general pendency of cases has expanded essentially at each degree of the legal progressive system in the most recent decade. From 2006 till now, there has been a general increment by 22% in the pendency of cases over all courts in the country. Presently the test before the Indian Judiciary is to settle upon the forthcoming cases by all accounts is more troublesome in the midst of the flare-up of COVID-19. Right to a Speedy Trial is an essential aspect of the standards of fair trial but due to this pandemic no one can avail his or her right of speedy justice, many prisoners are confined to jail only, as they can’t be released until the case comes to a definite conclusion.

Judicial Restraint and its Relevance in the Present Scenario

Judicial Restraint is a procedural or meaningful way to deal with the exercise of judicial review and it initially leads to avoiding the legal issues,[3] even if it is important for the resolution of the disputes. In the State of U.P. v. Jeet Singh Bisht[4], J. Katju remarked that the Judiciary must show self- restraint and forgo going into the areas of legislature and executive. Judicial Restraint ensures the freedom of Judiciary.[5]

Judicial activism can turn into an unguided rocket if not pointed accurately. Article 142 provides the power to the Supreme Court that they can pass any order or decree for doing complete justice in any case. Judiciary in many of the cases have applied Article 142, for example, the Taj Trapezium case[6], where appropriate measures were enforced to prevent the weakening of Makrana white marble of Taj mahal by expulsion of Mathura refinery, block furnaces and different industries from the region. In the same way,[7] Art. 142 of constitution has also been used in Union Carbide case[8]. In this case, the court granted a pay of 470 million to the victims, stating that to do justice it can supersede laws made by parliament. It was restrained in Supreme Court Bar Association v. Association of India[9], where it was held that Article 142 can only be used to supplement the law and not supplant the existing law. In K. Puttaswamy v. UOI[10] , which includes Right to security under Article 21, recommending guidelines for BCCI and so forth the Supreme Court has abused its powers under Art. 142.[11] It can be seen that such activism has neglected to maintain harmony in different parts of government. Because of which the Supreme Court requests the courts to curb Judicial activism as it disturbs the harmony between the organs. Judicial Restraint has been introduced to restrict the formation of government of judges and this was introduced because of the doctrine of separation of powers. During the pandemic of COVID-19 we have seen that there are many actions which took place and were not planned such as lockdown and problems related to migrant laborers from the side of both the Central government and State governments which all has resulted in compromising with the social, economic and political justice.[12]


Judges can’t tackle all the issues in the society and they can’t perform all the functions and the duties of the legislative and executive. There is a doctrine of separation of powers and the judiciary must work according to it only. Judges can no doubt, intervene in some outrageous cases, yet else they neither have the power nor assets to tackle serious issues in the public arena.

But during this Covid-19 outbreak, the judges can’t check upon the activities of the executives and ensure that the citizens of the country have their opportunity to enjoy the fundamental rights and all other constitutional rights which are referenced in the Constitution of India because it is the kind of emergency where there are many other different problems which are also to be considered and judiciary must restraint themselves to their powers only.

[1] Anon., 2021. Judicial Activism and Judicial Restraint.html. [online] Available at: <http://www.legalservicesindia.com/article/2019/Judicial-Activism-and-Judicial-Restraint.html> [Accessed 22 May 2021].

[2] Anon., 2021. Impact of Covid 19 on the Judicial System | ProBono India. [online] Available at: <http://probono india.in/blog-detail.php?id=155> [Accessed 22 May 2021].

[3] Anon., 2021. Judicial Restraint – Definition, Examples, Cases. [online] Available at: <https://legaldictionary.net/judicial-restraint/> [Accessed 22 May 2021].

[4] (2007) 6 SCC 586 275.

[5] Mahmic-Kaknjo, M., 2017. http://cejpaediatrics.com/index.php/pt/article/view/282/pdf. The Central European Journal of Paediatrics, 13(1), pp.42-45.

[6] 1987 AIR 1086, 1987 SCR (1) 819

[7] Anon., 2021. Justice online: Pandemic gives India. [online] Available at: <https://indianexpress.com/article/opinion/covid-19-pandemic-virtual-courts-indian-judiciary-6416212/> [Accessed 22 May 2021].

[8] 1990 AIR 273, 1989 SCC (2) 540

[9] Supreme Court Bar Association Vs. Union of India & Anr [1998] INSC 225 (17 April 1998)

[10] Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors.

[11] Anon., 2021. Judicial Activism and Judicial Restraint in India Notes for UPSC. [online] Available at: <https://gradeup.co/judicial-activism-and-judicial-restraint-in-india-i> [Accessed 22 May 2021].

[12] Waltman, J., 2015. A Constitutional Theory of Judicial Restraint. Principled Judicial Restraint, pp.57-82.

Author Name: Sruthi Kannan.
Designation : 8th semester BA.LLB (UG Student)
University/College Name – Kerala Law Academy Law College, Thiruvananthapuram.
Email ID: sruthikannan37@gmail.com
Contact no- 8921194385

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