Judicial Activism vs. Judicial Restraint in Developing Democracies: A Comparative Study

Abstract

This paper examines the dynamics of judicial activism and judicial restraint in developing democracies, with a comparative focus on India, Pakistan and South Africa. It explores how courts navigate the tension between enforcing constitutional rights, maintaining institutional legitimacy and promoting democratic governance in contexts marked by political instability, socio-economic inequalities and evolving legal frameworks. Drawing on theoretical perspectives such as legal realism, public interest theory and the separation of powers doctrine, the study analyzes the advantages and challenges of activism and restraint, highlighting their context-dependent effectiveness. Case studies reveal that judicial activism enables courts to protect fundamental rights, ensure accountability and address institutional gaps, while judicial restraint preserves stability, respects legislative prerogatives and enhances long-term legitimacy. The paper emphasizes that a context-sensitive, hybrid approach, balancing activism and restraint, is essential for consolidating democracy in developing states. Lessons from these comparative experiences offer guidance on how judiciaries can adapt their interventions to uphold constitutional governance, protect rights and maintain public trust without destabilizing political institutions.