Judicial Restraint v Judicial Activism: District of Columbia v Heller, 2008 The Constitution states that the “judicial Power of the United States, shall be vested in one supreme Court,” a court made up of justices from different backgrounds, races, religions, and most importantly political views. The Court has the ultimate responsibility of overseeing all affairs of Congress and – when deemed necessary – acting to overturn decisions found not in accordance with the Constitution. When deciding cases that could potentially violate the Constitution, justices use judicial restraint or judicial activism in their decision-making. Judicial activism is a term used for instances in which judges “creatively (re)interpret the texts of the Constitution and the laws, ” allowing them to meet the needs of the people that would not be met otherwise; justices essentially act as policy makers. The fault in this lies in the motivation behind the justices’ decisions; with judicial activism, it is nearly impossible to view law as objective and free of bias.
For the first era of the Constitutional System, the right of pursuit of happiness was directly equated with Property Rights. Legislators, however, had trouble with the precise application of constitutional law. In attempting to resolve the issues of the scope of protections to different rights, the concept of Judicial Review became the process for declaring legislation unconstitutional. Judicial Review, however, was not concrete as it was influenced by the everchanging constitutional thought of the time. In the beginning of the United States, Property Rights were the most protected rights.
It is closely related to constitutional interpretation, statutory construction and Separation of power. It is an inscriptive term and has a different meaning for different people. It implies going beyond the normal constraints which are applied to jurists and the constitution and this gives right to jurists to cut off any legislation or rule which goes against the constitution or against the precedent. The clear concept of judicial activism was set forth by Chief Justice P.N.Bhagwati and Professor Upendra Baxi.As an ideology of the judicial process, ‘judicial activism’ implies the “use of the court as an apparatus for intervention over the decisions of policymakers through precedent in case law.” Merriam Websters Dictionary of Law define Judicial activism as "The Practice in the Judiciary of protecting or expanding individual rights through decisions that deport from established precedent or are independent of or in opposition to supposed constitutional or legislative intent".The roots of Judicial activism are to be seen in the court’seasy assertion regarding judicial restraint.In A.K.Gopalan v Madras,although the court conceived its role in a narrow manner. It asserted that its power of judicial review was inherent.Judicial Activism can be positive as well as negative.
In hard cases, judges are not legislating, as Hart’s positivists assert, they are inducing based on principle. Judges have a duty not only to apply the rules, but also to make sure that the legal system is consistent with the principles of the society. When judges are said to legislate, they are not making the rules but discovering them.  According to Dworkin understanding the role of the courts is to defend the rights of citizens from the likelihood of unfair rules or other circumstances in which the written laws do not satisfactorily defend their natural rights.  Since judges have a duty to defend rights, they must step in and make rulings to defend such rights.
Judges has various roles and2 duties in the constitutional democracy of Canada. They interpret the law, assess the evidence presented, and control how hearings and trials unfold in their courtrooms. Most important of all, judges are impartial decision-makers in the pursuit of justice. (Canadian Superior Courts Judges Association, n.d.). The Canadian Judiciary is an adversarial system of justice and the legal cases are challenged between opposing sides, which assures that evidences and legal disputes will be completely and forcefully presented.
Judicial Activism succeeded in providing a ‘safety valve’ to a democracy like India by ensuring a glimmering hope to its people that justice is not beyond their reach and by delivering relief to the disadvantaged groups. Judicial Activism enhances and enriches social betterment and upgrades the functioning of various government machineries. In India Judicial Activism has in fact earned a human face by delivering justice to the poor and the
The inquiry in the inquisitorial system is usually controlled and conducted by judge. The judge is quite active while the lawyers have a more passive role. Witnesses are called by the court, and the judges determine the order of trial and conduct most of the examinations. If experts are needed, it is the judge who designates and initially examines the expert. The proceedings are conducted in a fact-finding, less formal, and less confrontational manner.
The prosecutor or the police having separate law to deal with their conduct may misuse their power and is likely to exceed their authority, which they are not entitled to. Supremacy of law and equal treatment of the law for all segments of the society is not entertained. (C, 1996) After a close analysis of the inquisitorial and adversarial system of justice l came to the conclusion that the systems have provided an interesting comparative insights. Those attempts reveal important contemporary goals of criminal procedure.
It is crucial the judge is independent and impartial. In Art 7 Act of Settlement !701, it states that Judges hold office during good behavior and can only be removed by an address to the Crown by both houses of Parliament. From the case Starrs v Chalmers, we observed that a judge has the independent