Judicial Activism vs. Judicial Restraint in Bangladesh Constitution

Abstract

This thesis examines the interplay between judicial activism and judicial restraint within the constitutional framework of Bangladesh, exploring their implications for constitutional supremacy, governance, and societal transformation. Judicial activism, characterized by proactive judicial interventions through tools like public interest litigation (PIL) and suo motu powers, has emerged as a vital mechanism for addressing governance deficits and protecting fundamental rights in Bangladesh’s evolving democracy. Conversely, judicial restraint, emphasizing deference to legislative and executive authority, seeks to preserve institutional balance and democratic legitimacy. This study investigates how these competing judicial philosophies shape Bangladesh’s judiciary, particularly in the context of its turbulent political history and constitutional developments, such as the Basic Structure Doctrine established in Anwar Hossain Chowdhury v. Bangladesh (1989). Employing a mixed-method approach, the research combines doctrinal analysis of landmark cases, comparative perspectives from South Asian jurisdictions, and empirical assessments of judicial trends to evaluate the efficacy and impact of activist and restraint-oriented decisions. Key areas of inquiry include the judiciary’s role in upholding constitutional rights, the effectiveness of remedies like PIL, and the challenges of balancing judicial power with separation of powers principles. The study critically analyzes historical and contemporary cases, constitutional amendments, and procedural innovations to identify patterns of judicial behavior and their socio-political consequences. By addressing gaps in existing literature such as the under-exploration of judicial restraint and empirical data on judicial outcomes this thesis contributes to a nuanced understanding of Bangladesh’s judiciary. It proposes recommendations for a contextually grounded judicial approach that harmonizes activism’s transformative potential with restraint’s stabilizing function, offering insights for policymakers, scholars, and jurists navigating Bangladesh’s constitutional landscape.