Judicial Activism vs. Judicial Restraint in Bangladesh Constitution

Abstract

This thesis critically examines the relationship between judicial activism and judicial restraint in the constitutional jurisprudence of Bangladesh. It focuses on the inherent tension arising from the Supreme Court’s dual responsibility to act as the guardian of the transformative ideals of the 1972 Constitution while simultaneously exercising restraint in respect of the democratic legitimacy of the elected executive and legislature. The study is situated within the broader scholarly debate on the proper limits of judicial power in a democratic polity. It argues that the oscillation between activism and restraint in Bangladesh is not merely a theoretical concern, but a practical constitutional reality with significant implications for constitutional stability, protection of fundamental rights, and the balance of power among state institutions. To address this issue, the research adopts a multi-methodological approach combining doctrinal analysis of landmark and contemporary judicial decisions, historical examination of constitutional amendments, and application of theoretical models drawn from comparative judicial politics, including legal, attitudinal, and strategic perspectives. The central argument advanced is that the Bangladesh Supreme Court does not consistently adhere to either judicial activism or judicial restraint as a fixed or absolute philosophy. Instead, it engages in a form of contextual judicial statecraft. In situations marked by governance failures, legislative inaction, or serious violations of fundamental rights, the Court has employed activist tools such as expansive interpretation of constitutional rights, public interest litigation (PIL), exercise of suo motu jurisdiction, and reliance on the basic structure doctrine. Conversely, in matters perceived to fall within the primary competence of the political branches or during periods of political sensitivity, the Court has exercised restraint through doctrines of deference, political question, and strict constitutional interpretation in order to preserve institutional legitimacy. While this strategic approach has strengthened constitutional supremacy and expanded rights protection, it has also resulted in inconsistency, legal uncertainty, and perceptions of contingent judicial independence. The thesis concludes that an ad-hoc balancing between activism and restraint is unsustainable for long-term constitutional governance and calls for a more principled and institutionalized framework to guide judicial conduct.