Judicial Activism vs. Judicial Restraint in Bangladesh Constitution

Abstract

This thesis presents a comprehensive analysis of the dynamic interplay between judicial activism and judicial restraint within the constitutional framework of Bangladesh. The research investigates the central problem of the judiciary's oscillating approach, which alternates between a proactive, policy-shaping role and a deferential, restrained posture, creating uncertainty in constitutional jurisprudence. The study is grounded in a qualitative, doctrinal methodology, involving an in-depth examination of the Constitution of Bangladesh, landmark Supreme Court judgments, and relevant scholarly literature. The thesis traces the historical evolution of this judicial dialectic, from the foundational assertion of the Basic Structure Doctrine in the Eighth Amendment Case to the innovative use of Public Interest Litigation (PIL) and suo motu powers. Through a systematic case analysis, it demonstrates that the Supreme Court of Bangladesh engages in strategic balancing, tending towards activism in areas of fundamental rights and governance while exercising restraint in matters of high politics and economic policy. The study further reveals that procedural innovations have been the primary drivers of substantive activism, yet their effectiveness is consistently undermined by a significant enforcement gap due to executive non-cooperation. The core argument of this thesis is that the tension between activism and restraint is a necessary and defining feature of Bangladesh's constitutional democracy, reflecting the judiciary's ongoing negotiation of its role as the guardian of the Constitution. The study concludes by proposing a set of recommendations, including the development of a principled framework for judicial review, the institutionalization of compliance mechanisms, and the promotion of dialogic remedies. This research contributes to a deeper understanding of judicial behavior in Bangladesh and offers insights for strengthening constitutional governance through a more predictable and effective balance of judicial power.