Assumptions of Judicial Restraint

In the USA, the doctrine of judicial restraint is based on the following six assumptions9 :

1. The Court is basically undemocratic because it is non- elective and presumably non-responsive to the popular will. Because of its alleged oligarchic composition the court should defer wherever possible to the 'more’ democratic branches of government.

2. The questionable origins of the great power of judicial review, a power not specifically granted by the Constitution.

3. The doctrine of separation of powers.

4. The concept of federalism, dividing powers between the nation and the states requires of the Court deference toward the action of state governments and officials.

5. The non-ideological but pragmatic assumption that since the Court is dependent on the Congress for its jurisdiction and resources, and dependent on public acceptance for its effectiveness, it ought not to overstep its boundaries without consideration of the risks involved.

6. The aristocratic notion that, being a court of law, and inheritor and custodian of the Anglo-American legal tradition, it ought not to go too far to the level of politics-law being the process of reason and judgment and politics being concerned only with power and influence.

From the above, it is clear that all the assumptions (except the second dealing with the judicial review) hold good in the Indian context too.