TOOLS AND TECHNIQUES OF JUDICIAL CREATIVITY, AND PRECEDENT: A

CRITICAL ANALYSIS

Awadhesh Pratap Singh

Neha Diwakar
Batch 2019-21
M.J.P.Rohilkhand University, Bareilly
Mobile No. 8318102315
7055339394
Email- singhap875@gmail.com
nehadiwakar301094@gmail.com

Abstract
Human is a social Person. He conducts his activities by staying in the society.It is the
responsibility of the state to guide and ensure a just life in the society.Population, definite
territory, government and sovereignty constitute a state.The government is the think tank of
the state. The combined form of legislature, executive and judiciary is called government. The
above various organs of the government are legally empowered and accountable for
performing their respective functions. The legal strength of the government reinforces the
accountability of the organs of the government. Law making is a major responsibility of the
legislature. The legislature also delegates its legislative power due to work overload, subject-
specialization and other reasons, the law made by which is called delegated legislation. In
addition to all this, through judicial creativity, law making is also done, which is considered
more clear and binding. Judicial creativity is the result of the judicial discretion of the judge
through logic, reasoning and interpretation at the time of interpretation of statutes and
decision of cases. In the exercise of judicial discretion, judges make judicial laws with the help
of various types of legal means, tricks and discretion in the process. Some (political pressure,
problem of laws, delay in delivery of justice, criticism of judges, problem of corruption etc.)
have been objected to judicial law making.These raised objections are not baseless. The danger
of disintegration of the basic structure of the society has arisen due to these rising objections.
The same state or government is considered best, and decision of cases The purpose of this
paper is to strengthen the rule of law and social system by analyzing judicial law making and its
means and techniques in the light of the rising objections.

Keyword - Society, state, government, law making and judicial creativity

Introduction
Human is a social person, he conducts his activities by living in the society.Society is the
focal point of his activities.The society makes its own rules and laws for how a person should
behave while living in the society.Its compliance is expected from all.It doesn't matter if people
follow it, but when it is violated then the balance of the society gets disturbed.This happens
because man, being a rational intellect, keeps striving for the fulfillment of his interests, desires
and aspirations.In doing so, a situation of mutual conflict and conflict arises.In this way, there is
a fear of disintegration of the basic structure of the society.To save the basic structure of the
society from disintegration, judicial process is required.No state can escape from its liability, the
same government or state is considered best, whose judicial process is well-organized.

Judicial process
Judicial process civilized through which justice is delivered is an accepted fact.Judicial
Process mean such a process there are two main aspects of judicial process:
1. Judicial causality, it has the power of reasoning, which is called reasoning skill of
propriety.
2. The study of judicial decision making is called the process of decision making.

Evils and vices are redressed by the judiciary through judicial process, in which decisions
and orders are passed using prior decisions, arguments, interpretation and discretionary
power.Due to judicial activism, the election of law takes place in a different form, in which the
judges exercise their discretion.Judges make laws by deciding disputes and interpreting the
law.This law making combines ductility with the element of permanence in law which is the
result of the judge's discretion.Now it has become a common principle.
In the words of Pollock, no jurist at the present time will pretend that the decisions of the
court do not contribute or change the law.
Judicial law making is the law making done by the judges.Elements of judicial creativity
are visible in many of the judgments delivered by our judges.Many techniques and tools are used
by judges for judicial creativity.Judges interpret the law.Many times the errors of the omissions
of law in this interpretation are seen by the judges, they make up the laws by giving decisions at
their discretion.

The main instrument of judicial creativity is the selection of laws established by the
legislature.And it is used within the intention of the legislature.So it is only an assumption that
judges only find the law.Through election law, judges not only make laws but also establish what
the law should be.

In the Constitution of India, the Supreme Court has been considered a vigilant watchdog
of the Fundamental Rights and has been given the power of judicial review.If any law passed by
the legislature takes away or abridges the rights conferred by Part III of the Constitution, such
law shall be void1.The creative right of law has been provided by Article 32 (Supreme Court) and
Article 226 (High Court) of the Indian Constitution.

Tools of Judicial Creativity of Law

It is universally accepted that judges make laws while settling disputes and electing law,
but judges make laws more definitively and authentically than legislatures.In making this law,
they have to adopt some means, which are as follows:

Article 32
Article 32 of the Indian Constitution empowers the Supreme Court to conduct appropriate
proceedings for the enforcement of Part III of the Constitution.The jurisdiction of the
Supreme Court under Article 32 is the basic structure of the Constitution, it cannot be
destroyed by amendment under Article 368. L. Chandra Kumar V. Union of India2.
Article 226
Article 226 provides that notwithstanding anything contained in Article 32Every High
Court shall have power to issue directions, orders or writs for the enforcement of the
Fundamental Rights of Part III of the Constitution or for any other purpose in all areas in
respect of which it exercises its jurisdiction.For other purposes the expression means any
legal right or legal duty3.

Article 136
Under Article 136, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, concept, sentence or order passed or made by any
court or tribunal in India in any suit or case.Use of Discretionary Power on the Principle
of Equity - Shivanand Gaurishankar Vasvanti Banmam Vishnu Textiles Mill4.

Article 137
Judges also create law by the power of review of the Supreme Court under Article 137 of
the Constitution of India.This Right Basis-
1. Disclosure of new and important cases of evidence.
2. An apparently visible error or error in judgment
3. Any other sufficient reason.

Article 141
The law declared by the Supreme Court under article 141 of the Constitution of India
shall be binding on all courts within the territory of India.
Now the question arises whether the Supreme Court is bound to follow its earlier
decisions?
From the expression sub-courts used in Article 141 makes it clear that it does not
include the Supreme Court. In other words, the Supreme Court is not bound by its own
decisions and in appropriate cases it can reverse its earlier decisions- Bengal immunity
Company v State of Vihar5
 In the case of Golaknath v state Punjab6, the Supreme Court revers its earlier
judgments in the case of shakariPrasad and sajjansingh. But in Kesavananda Bharati v
State of Kerala7, the Supreme reverse thedecision given in the case of Golaknath, it is
clear from the above examples that the principle of Precedents of Stare Decis is followed
to a very limited extent in India.
The House of Lords of England, which so far was strictly following the precedent, also
refused to accept it and said that its strict observance could cause injustice in a particular
case.
The Allahabad and Bombay High Courts have just held that the Supreme Court is also a
law within the meaning of Article 141 of the Obiter Dicta and is therefore binding on all
courts.
The Supreme Court itself in the case of Amritsar Municipality v. Hazara Singh8the
opinion expressed by him that the above general views are also binding on the
subordinate courts.
In case of conflict between the decision of the smaller bench of the Supreme Court and
the decision of the larger bench, the decision of the larger bench should be followed -
State of Uttar Pradesh v Ram Chandra Dwivedi9
The law declared by the Supreme Court under Article 141 is binding on all
irrespective of whether they take that actionWhether party to or not or notice has not been
given to them, M/s Diamond Company of India V Union of India 10Law of Judicial
Creativity

The judges use many techniques in the making of the law as well as the means, which are
provided to them by law.Are, as

1. Through the technology of election of statutes,

Although the Parliament has narrow power in the election of statutes, but the main
authority of the election of statutes is with the courts.Parliament has the power to declare
or repeal any judicial legislations which have misinterpreted or misinterpreted any
previous statute or to give retrospective effect to the enactment which is declaratory
orrepealed.’
 In the case State of Gujarat Vs. Jeena Bhai11, the Court held that if the intention of the
Legislature is not properly elected by a decision, Parliament can nullify its effect by
legislation. Parliament cannot declare the decision of the Court to be wrong.
The power to interpret statutes comes under the exclusive domain and exclusive control of the
court. One of the important reasons for the authenticity of judicial election is that the statute
makers are no more, the new statute makers cannot tell what the old makers meant.Not only this,
Parliament meetings are sometimes held. Therefore, there was a need for a continuously
functioning institution in the form of a court, which interprets the statutes in an objective
way.The principle of cover, the principle of abstraction, the principle of essence and substance,
the principle of color legislation, the principle of incompatibility, harmonious economic
development, through the means of economic development, etc.

2. By Writs:
Under Article 32 of the Constitution, the Supreme Court and Article 226 High
Court
1. Habeas Corpus, 2. Mandamus, 3. Prohibition, 4. Certiorari & 5. Quo Warranto

3. Discretionary remedy:
The discretion of the High Court, under Article 226 of the Constitution, is a
judicial discretion which must be exercised in a judicial manner in accordance with well-
established principles - Uttar Pradesh v. Mohammad Nuh12

Other provisions relating to judicial law making

1. According to section 23 of the Indian Contract Act, 1872 any contract when found to be
against public policy can be declared unlawful.When a judge decides whether it is against
public policy, he acts indirectly to make laws.
2. Article 13 of the Constitution gives wide powers to the Courts to declare which statute or
other legal rule is void by virtue of being inconsistent with the provisions of Part III of
the Constitution.
 3. Articles 14, 15 (1) and which classification is reasonable and lawful within the meaning
of 16(1) and which specific provisions are lawful within the meaning of Articles 15(3),
15(4) and 16(4).
4. Which of the restrictions are reasonable and in the public interest within the meaning of
Article 19(2) to (6) of the Constitution.
5. What is included in the right to life and right to personal liberty within the meaning of
Article 21, etc.

Judicial precedent
Under the judicial prejudgment method, the precedent is used as a sample paper,
on the basis of which another paper or document is prepared.Precedent means adopting
past decisions as a guide and applying them to future decisions.In other words, pre-
judicial judgments are such principles laid down by the court which are to be applied in
future similar suits to be decided before the court.It is noteworthy that all judicial
decisions do not take the form of prior judgments, but only such decisions have the
importance of aforesaid, which render a new rule or principle of law.
The decision reached by the adjudicating judge on the basis of material facts and
exclusion of material facts in a previous judgment is called adjudication.
Interpretation Such a statement of the judge which is not necessary for a particular
decision, is called cross-examination.

As a source of law, prejudicial judgment is of substantial importance.In Babylonia it was

customary to record court judgments before 2000 BC so that they could be used for legal
advice.Under Roman jurisprudence, the judges were instructed to follow the earlier decisions
given by eminent jurists in the cases.It is noteworthy that in the Continental System, prior
judgment is not considered binding and judges have the discretion whether to base their decision
on precedent or not.But in English law, in some cases, prior decisions have a binding effect, that
is, it is mandatory for the judges to follow the earlier decisions in similar cases.Doctrine of stare
decisis is a universal principle of English law.According to this principle, prior decisions are
authoritative and binding and must be followed.When a legal question is clearly decided by
several decisions, then the principle of following and not changing it is called the principle of
following decisions.Decisions made by the courts of England are binding on the courts of Britain
in cases of similar facts.That is why there pre-judicial judgments are recognized as the essential
source of law.Two things are necessary for adjudication:
(1) There should be a proper system of reporting the cases decided; and
(2) There should be a definite series of graded courts,
The decision of the Supreme Court of India, the decision of the High Court on all the courts of
India, is binding on all the subordinate courts of jurisdiction.
In the case of Saurashtra Cement and Chemical Industries v Union of India 13, it has been
held that adjudication has no statutory recognition, yet it is a rule of convenience and
understanding and above all
It is a rule of public policy. It is used in two senses:
1. In a loose sense
2. In a strict sense
Prejudgment is used in a loose sense in India.Our Supreme Court is not bound by its previous
decision, it can change or reverse its earlier decisions and it has done so many times in public
interest.
Prejudice as a part of law, if judicial pre-judgment is the authority or in other words they speak
the language of authority, then the principles they propound will be binding on future suits or
subsequent suits.
In the case of S.I. Ruplal vs. Lt. Governor of Delhi14, it has been held that prior judgments
which firmly express our rule of law, form the cornerstone of the administration of justice in our
legal system.
A creative prior decision is one that creates and uses a new method.When the judges interpret the
statute, they make the law i.e.
1. Finding out the real intent of the legislature
2. Resolving suspicious
3. Filling the gap (Gap)
4. Removing absurdity or difficulties
5. Harmonizing the statutes with the constitution and other laws do judges make laws
The answer to the question of whether judges make laws by harmonizing statutes with the
constitution and other laws is linked to the creative principle of prior judgment.According to
 the creative principle, judges create or create new rules through their decisions.In the case of
Golaknath v State of Punjab15, the Supreme Court, by applying the principle of
retrospective ruling to the domain of the Constitution, accepted that the courts make the law.

Objections on Judicial Creativity

1. Courts seem to be acting as a conservative force, such as land reform laws (1951-1953),
nationalization of banks, declaring laws related to appointment in the judiciary illegal.
2. There appears to be a situation of uncertainty in the law of the land due to the change of
its earlier decisions by the court.
3. Courts seem to be encroaching on constitutional limits, such as judicial review between
1964 and 1971.There was a struggle over declaring it unconstitutional.
4. There seems to be a conflict situation between the judiciary and the legislature, as there
was a struggle to declare the amendments made in the Election reform act
(Representation of the people act) as unconstitutional happen.
5. There seems to be a decrease in social, economic and political stability, such as declaring
special rules, policies and programs of the Central and State Governments from time to
time as illegal.

Problems of accountability of the judiciary

Court is the temple of our faith and belief.Keeping the judiciary free from the influence of
the legislature and executive means that the courts should be free from any pressure or
influence.The job of a judge is not only to provide justice, but it is also that they should be
honest about their profession and get justice done in an honest and fair manner.At the time of
judicial review, they are expected to be more careful, because at that time the judges use their
discretion more, the responsibility of the judiciary to keep itself independent and impartial is
huge.But at present, there are many problems in the responsibility of the judiciary to provide free
and fair justice, which are facing the judges, such as-
1. Political pressure
2. Problem of laws,
3. Delay in providing justice
4. Sufficient Lack of judicial officers
 5. E-judiciary,
6. Criticism of judges,
7. Problem of corruption, etc.

Conclusion
1. Various articles and sections of the Constitution and statutes of India respectively provide
for judicial law making.
2. The judges, drawing power from the Constitution and statutes of India, try to ensure social
order through judicial creativity.
3. Judicial creativity is now a widely accepted fact of civilized society.
4. Excess of general legal statement is a mirror of independence and clarity of judicial rule.
5. The allegations on judicial creativity are not baseless.

Suggestion
Judiciary is an important pillar in democracy, whose responsibility is very important and
sensitive for the society and the people.The ability of the judiciary is affected in the light of
the rising objections to judicial law making and the problems of accountability of the
judiciary.The predominance of justice is the philosophy of civilized society and systematic
judicial process is the basis of the predominance of justice.The same state or government is
considered best whose judicial process is well organized.
The following measures can be taken to ensure the governance of the democratic spirit and
the full utilization of the capacity of the judiciary -
1. Judicial decisions should be strictly followed.
2. Persons of excellent character and hard work should be appointed as judges.
3. By amending the Prevention of Corruption Act, stringent provisions should also be made
against people who offer bribes to judges.
4. The systems of the judiciary (long, expensive and boring judicial system, appointment and
transfer etc.) should be improved.
5. The problems of the judiciary (lack of advanced resources etc.) should be effectively
resolved.Reference
Bibliography
1. Constitution of India
2. Indian Contract Act, 1872
3. Chaturvedi, Dr. Murlidhar, Constitution of India, Allahabad Law Agency Publication,
2012
4. Dr. Basanti Lal, Constitution of India, Central Law Publications, 2013
5. Pandey,Dr. J. N., Constitution of India, CentralLa Agency
6. Tripathi,Dr. B. N. Mani, Jurisprudence and Legal Theory Central Law Publication
7. Paranjpe,Dr.N V,Jurisprudence and Principles of Law, Central Law Publication
8. Prasad, Aniruddha, Fundamentals of Jurisprudence, Eastern Book Company
9. Babel, Dr.Basantilal, Judicial Process Central Law Publication
10. Verma, Shyamlal, Judicial Process, India Publishing Company Indore
11. A I R

REFERENCE LIST
1. Article 13,Constitution of India
2. AIR 1997 SC 1125
3. Tope Pro T K Constitutional Law India, 1982 ed., page. 501
4. A I R 2009 SC 825
5. A I R 1955 SC 661
6. AIR 1967 SC 1043
7. A I R 1973 SC1461
8. A I R 1975 SC 1087
9. (1997 ) M N P 855
10. A I R 1987 SC 179
11. (1972 ) 1 UM N P 41
12. AIR 1959 SC861
13. AIR 2001 SC 8
14. AIR 2000 SC 594
15. A I R 1967 SC 1043