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Judicial Creativity
&
Discuss in detail the tools and Techniques of Judicial Creativity
and Activism in India.
&
Critically analyse the role of supreme Court with special
reference to Judicial creativity in India. Briefly explain the tools
and techniques of Judicial Creativity along with its limitations in
present scenario.
Or
Logic, History, Custom and accepted standard of right conduct
are the forces, which shape the process of law.
1. JUDICIAL CREATIVITY
The Hon’ble Supreme Court of India has held in several
landmark judgments that judicial creativity is the active process of
implementing the rule of law, which is necessary for the survival of
a functioning democracy, and that the judiciary’s active role ensures
justice to individuals, groups of individuals, and society as a whole.
2. NEED FOR JUDICIAL CREATIVITY
a. Interpretation of Legislative Provisions: Letter of Law
& Spirit of Law - Provisions of law prima facie look
simple but they can be difficult to interpret as they have a
deeper meaning embedded in it which has to be used to
resolve factual matrixes falling under its domain.
The language and words are capable of holding multiple meanings;
the mere use of punctuation marks brings drastic changes. For
example, how “life” is interpreted in Article 21 (2) is way too
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different from how it is seen in the Transplantation of Human Organs
and Tissues Act, of 1994.
b. Judicial Reasoning in Course of Interpretation -
They have to forward the justification by adding literature
to facilitate similar future cases and provide appropriate
precedents. And thus, this creates the need for judicial
interpretation. Example: Theory developed by the court
(Vishakha guidelines (3) ) or any document.
c. Necessities of time: Adaptability of law to meet the
needs of society and ultimately deliver justice - The
influence of time on legislation is paramount which is
reflected by the fact that had the Law of Contract been
drafted today, it would have used the word bike in place of
a horse.
3. TOOLS & TECHNIQUES OF JUDICIAL CREATIVITY
1. Judicial Activism: Over time, judges have immensely
contributed to the organic development of the Constitution by
not only following the statute’s interpretation but also
procedural interpretation. The evolution of PIL through
Hussainara Khatoon & Ors vs Home Secretary, State
of Bihar, 1979 is one of the most exemplary examples in terms
of modifying the traditional requirement of locus
standi, liberalization of procedure to file writ petitions,
expansion of FR, overcoming evidentiary problems, and
evolving innovative remedies.
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2. Judicial Review: Judicial review is the power granted by the
constitution to the court to scrutinize legislative enactments
and executive orders of all levels of government, whether state
or federal.
Indira Nehru Gandhi V. Raj Narain 1975 quashing of 39th
Amendment Clause 4 because it prohibited challenges to the Speaker
and Prime Minister’s election and was deemed unlawful.
What would be, if not permitted?
The Constitution Bench speaking through Chief Justice
Pathak in Raghubir Singh by LRs.'s case, opined that if that was not
permitted, the march of Judge-made law and the development of
constitutional jurisprudence would come to a standstill. In T.M.A.
Pai Foundation v. State of Karnataka, are so broadly formulated that
they provide sufficient leeway to subsequent Courts in applying
those principles while the lack of clarity in the judgment allows
judicial creativity"
3. TOOLS And TECHNIQUE OF JUDICIAL
CREATIVITY
1. Creativity in Interpretation of Constitution:
In Bombay Dyeing Co. Ltd. v. Bombay Action Group &
Ors., the Apex Court laid down the principle that - the court normally
would lean in favour of environmental protection in view of the
Creative interpretation made by the Supreme Court in finding a right
of environmental including right be clear water, air under Article 21
of the Constitution.
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Shah Bano case (Mohd. Ahmad Khan V. Shah Bano Begum AIR
1985 SC 945) is an example of the tools and techniques of judicial
creativity and precedent, in which it is interpreted that every woman
has right to live with human dignity, irrespective of her cast.
2. Creativity in basic structure of constitution
The theory of basic structure of the Constitution is a result
of the creative interpretation of the Supreme Court. In "Minerva
Mills Ltd. v. Union of India", the Supreme Court has held that
Parliament cannot, under Art.368, expand its amending power so as
to acquire for itself the right to repeal or abrogate the Constitution or
to destroy its basic and essential features. This is an example of the
technique of creative interpretation of the Constitution.
3. Balancing technique
In Patna v. State of Bihar, the Apex Court has adopted balancing
technique in holding that the provisions of the Constitution,
particularly the provisions relating to the fundamental rights, should
not be construed in a pedantic manner, but should be construed in a
manner that would enable the citizens to enjoy the rights in the fullest
measure. In State of T.N. v. L. Abu Kavur Bai, it was held that on a
careful consideration of the legal and historical aspects of the
directive principles and the fundamental rights, there appears to be
complete unanimity of judicial opinion of the various decisions of
the Supreme Court on point that although the directive principles are
not enforceable yet the Court should make a real attempt at
harmonizing and reconciling.
4. Keep the law abreast of the times
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The Supreme Court, in its creative role under Article 141 and the
creative elements implicit in the very process of determining ratio
decidendi, it is not surprising that judicial process has not been
crippled in the discharge of its duty to keep the law abreast of the
times, by the traditionalist theory of stare decisis. Times and
conditions change with changing society, and, "every age should be
mistress of its own law" - and era should not be hampered by
outdated law.
5. Creativity in Socio-Economic Justice
In "State of Bihar v. Bal Mukund Sah", the Supreme Court
has emphasized its creative role in achieving the goal of socio-
economic justice.
The judiciary has, therefore, a socio-economic destination and a
creative function. It has to use the words of G. Austin, “to become an
arm of the socio-economic revolution and perform an active role
calculated to bring social justice within the reach of the common
man. It cannot remain content to act merely as an umpire but it must
be functionally involved in the goal of socio-economic justice".
Continuity is essential to law as a whole, but the continuity must be
creative.
6. Iron out the creases
It is true that one should iron out the creases and should take
a creative approach as to what was intended by a particular provision.
Court should take a creative, reasonable and rational approach in
interpreting the statute. By way of creative approach in Ramanna
Shetty's case, the Apex Court brought public sector corporations
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within the scope and ambit of Art. 12 and subjected them to the
discipline of fundamental rights.
7. Creativity is must in developing countries
The Supreme Court in Jagdambika Pratap Narain Singh v.
Central Board of Direct Taxes, dealing with the question of limitation
in granting a relief, has observed that any legal system, especially
one evolving in a developing country, might permit judges to play a
creative role and innovate to ensure justice without doing violence to
the norms set by legislation. The role of the Court is creative rather
than passive, and it assumes a more positive attitude in determining
facts and circumstances of each case.
8. PIL as a tool of Judicial Creativity
When the Parliament enacted laws and the laws were intended to
cover new fact situations, the judges’ creativity and innovation
revived in the matter of filling in the gaps. Apart from filling in the
gaps in the legislation, the judges revived their creativity in all other
areas which were not covered by legislation. Some prominent Indian
legal luminaries who adorned the bench of Supreme Court like
Justice V.R.Krishna Iyer, Justice P.N.Bhagwati, Justice
O.Chinnappa Reddy, Justice J.S.Verma, Justice Kuldip Singh,
Justice A.S.Anand have sensitized the democratic principles in the
country and played an important role by way of judicial activism and
judicial creativity with their able umpiring and proactive judgments.
PIL’s like Vishaka v. State of Rajasthan in which the Supreme Court
recognized sexual harassment at the workplace as a violation of the
fundamental rights of women and DK Basu case in which the
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Supreme Court laid down guidelines for the protection of the rights
of arrested persons, including the right to be informed of the grounds
of arrest, the right to legal representation, and the right to medical
examination were the PILs filed by NGO’s which made the change
in society.
4. JUDICIAL CREATIVITY AND ITS PERMISSIBLE
LIMITS
Coke, Hale and Blackstone have believed that judges play no role in
law making. According to Holme the judiciary can make law only
‘interstitially’ by filling up the gaps within the law. Judicial creativity
may be safely permissible, where citizens are suffering due to
lethargy of legislative inaction.
In “Indra Sawhney v. Union of India”, AIR 1993 SC 477, the Court
has observed that We are very much alive to the fact that the issues
with which we are now facing are hypersensitive, highly explosive
and extremely delicate. Therefore, the permissible judicial creativity
in tune with the Constitutional objectivity is essential to the
interpretation of the Constitutional provisions so that the dominant
values may be discovered and enforced.
In this respect, three things need to be kept in mind. Firstly, if the
judges are considered sufficiently qualified to correctly decide upon
the morality of the people then there is no reason to consider them
incompetent to gauge the needs of the people in law making.
Secondly, how much effort do the legislators actually expend in
understanding the true needs of the people and the social implications
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of the law. Thirdly, judges rarely create a law from scratch; their
legislative role is largely restricted to filling up the gaps in the law.
Several suggestions have been made to fix the limits of judicial
creativity. The judge must restrict his creativity only to the space left
by the legislators and within the boundaries and parameter fixed by
the Constitution. The limitations are as follows:
Creativity must be based on Principles
Judge can make law but he is not wholly free to make law as observed
by Mr. Justice Cardozo of the U.S. Supreme Court:
“The Judge is not to innovate at pleasure. He is to draw his inspiration
from settled principles.” He further opined that: “A Constitution
states or ought to state not rules for the passing hour but the principles
for an expanding future.” As Banjamin Cardozo has put it in his
“Judicial Process,” life is not a logic but experience. History and
customs, utility and the accepted standards of right conduct are the
forms which singly or in combination shall be the progress of law.
Changing demands of society.
In Bengal Immunity Company Limited v. State of Bihar, (AIR 1955
SC 661), the Supreme Court has observed that it was not bound by
its earlier judgments and possessed the freedom to overrule its
judgments when it thought fit to do so to keep pace with the needs of
changing times. The acceptance of this principle ensured the
preservation and legitimation provided to the doctrine of binding
precedent, and therefore, certainty and finality in the law, while
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permitting necessary scope for judicial creativity and adaptability of
the law to the changing demands of society.
Law created for betterment of people
Any one who analyses the judicial process of the Supreme Court and
High Courts would conclude that judicial process has developed
some finest principles and Courts have made tremendous
contribution in establishment of a rule of law in Indian society and
enhanced the people’s quality of life. Therefore the Creativity of the
Supreme Court and High Courts shall always remain as a high
benchmark of Judicial Creativity in India.
6. CREATIVITY IN OPEN SPACE
There is no law on social disorder called Sexual harassment of a
woman at work place. The Apex Court in Vishaka V. State of
Rajsthan (AIR 1977 SC 3011), created law of the land observing that
the right to be free from sexual harassment is a fundamental right
under Articles 14, 15 & 21 of the Constitution.
9. JUDGE MADE LAW
Duty to assign reasons is, however, a judge made law. There was
dispute as to whether it comprises of a third pillar of natural justice.
In in Kishan Lal v. UOI [1998] 97 Taxman 556 (SC) it was held to
be the third pillar.
10. CASE LAWS:
1. Innovation of minimum rationality
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The Creativity in interpreting Article 21 related its heights
when the doctrine of minimum rationality was also treated as part of
Article 21 by the Supreme Court in Mithu v. State of Punjab, when
S.303 of the I.P.C., was struck down on the ground that it violates
Article 21.
2. Creation of various Rights
In Olga Tellis v. B.M.C., the Creative interpretation of the
Apex Court is clearly visible when it is laid down that the right to life
guaranteed under Article 21 also included the right to livelihood
because no person can live without the means of living that is, the
means of livelihood.
3. Creation of Voter's right to know
For the first time the right to know about the candidate
standing for election has been brought within the sweep of Art.
19(1)(a) by the Supreme Court through its creative interpretation.
The Apex Court in "Peoples Union for Civil Liberties (PUCL) v.
Union of India", has held that Voter’s right to know about the
antecedents of the candidate contesting for the election falls within
the realm of freedom of speech and expression guaranteed by Art.
19(1)(a) and can be justified on good and substantial grounds.
4. Creation of Right to Speedy Trial
The entitlement of the accused to speedy trial has been
repeatedly emphasised by the Supreme Court. Though it is not
enumerated as a fundamental right in the Constitution, the Apex
Court has recognized the same to be implicit in the spectrum of
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Article 21. In Hussainara Khatoon v. Home Secretary, State of Bihar,
the Court while dealing with the cases of under-trials, who had
suffered long incarceration held that a procedure which keeps such
large number of people behind bars without trial so long cannot
possibly be regarded as reasonable, just or fair so as to be in
conformity with the requirement of Article 21.
The Navtej Singh case is another important example of judicial
creativity, as it struck down Section 377 of the Indian Penal Code,
which criminalized homosexuality. The court held that criminalizing
consensual sexual acts between adults of the same sex violated the
fundamental rights of equality, dignity, and privacy.
11. CONCLUSION
Written law is hardly self-contained and it is difficult to legislate with
divine precision and arithmetical accuracy as there is always a grey
area no matter what. It is beyond human capability or powers to
anticipate or extend his vision to future circumstances or predict or
forecast what kind of facts the application of the law would be subject
to. Human errors are bound to happen no matter howsoever good
they might be because they cannot cater to all upcoming problems.
However, though this serves as a good enough reason to support
judicial creativity, it is essential to understand that it can be applied
only to an extent because a judgment once delivered cannot be
revoked. The only thing is to keep in mind that judicial creativity is
permissible only in the area left open by the legislature and where it
is necessary to fill up the gap in the statute so as to achieve real intent
of it. Thus, it is clear that judicial creativity is not only necessary but
also inevitable. The Supreme Court has by and large played its
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constitutional role very well and has always upheld the principle of
constitutionalism. Judicial Creativity is a legitimate and necessary
tool for the interpretation of the law.
