"Judicial Activism and Creativity of The Supreme Court - The Tools and Techniques" by Sanjeyvignesh.J

“Judicial Activism And Creativity Of The Supreme Court - The Tools And Techniques” by Sanjeyvignesh.
J, Page 1 of 38
1. INTRODUCTION:
“Judicium Non debet esse illusorium, suum effectum habere debet”

(A Judgement ought not to be illusory; it ought to have its proper effect)
In democratic countries the judiciary is given a place of great significance. The

courts perform the key role of expounding the provisions of the Constitution. The courts
act as the supreme interpreter, protector and guardian of the supremacy of the
Constitution. The judiciary has to perform an important role in the interpretation and
enforcement of human rights inscribed in the fundamental law of the country. Therefore,
it is necessary to consider what should be the approach of the judiciary in the matter of
constitutional interpretation.
The judiciary has to devise a pragmatic wisdom to adopt a creative and purposive
approach in the interpretation of various rights embodied in the Constitution. The task of
interpreting the constitution is a highly creative judicial function which must be in tune
with the constitutional philosophy. A democratic society lives and swears by certain
values such as individual liberty, human dignity, rule of law, constitutionalism etc. and it
is the duty of the judiciary to so interpret the constitution and the law as to constantly
inculcate these values on which democracy thrives. The predominant positivist approach
of interpretation followed by the Indian Judiciary emanates from the basic traditional
theory that a judge does not create law but merely declares the law.
The Indian judiciary underwent a sea change in terms of discarding its traditional
approach by charting out a new horizon of dynamic concept of judicial activism with
many facets and dimensions which paved way for the activist liberal judicial approach to
Constitutional interpretation. This assignment is about the judicial activism in India and
the pro-active role played by the Supreme Court in applying judicial creativity for
interpretation of the Constitution.
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“Judicial Activism And Creativity Of The Supreme Court - The Tools And Techniques” by Sanjeyvignesh.J, Page 2 of 38
2. JUDICIAL ACTIVISM:
2.1. MEANING:
Judicial Activism is considered as a philosophy of administering justice whereby

judges allow their personal views about Public Policy, ignoring Precedents. It is an
innovative, dynamic and law making role of the court with a forward looking attitude
discarding reliance on old cases and also mechanical, conservative and static view.
Judicial activism is a progressive judicial thinking, developing the law for

handling constructively the contemporary problems of the Society 1. It is a creative
thought process through which the court displays vigour, enterprise, initiative pulsating
with the urge of creating new and refined principles of Law.
Infact, judicial activism is a sort of judicial creativity. It is an apparent power of

judges to modify the scope and pattern of existing legal decision by application of mind
and as guided by law. It is also sometimes used as meaning simply the law established by
judicial precedent.
Ironically, as the term “Judicial Activism” is defined in a number of desperate,

even contradictory ways scholars and judges recognise this problem yet persist in
speaking about the concept without defining it. Thus, the problem continues unabated;
people talk past one another, using the same language to convey very different concepts.
To say that the idea of Judicial Activism has been around far longer than the term. Before
the 20th century, Legal scholars squared off over the concept of Judicial Legislation, (ie,)
Judges making positive Law.
The five core meanings of "judicial activism" are 2:
(1) Invalidation of the arguably constitutional actions of other branches,

(2) Failure to adhere to precedent,
(3) Judicial "legislation,"
(4) Departures from accepted interpretive methodology, and
(5) result-oriented judging.
1. Dr.G.P.Tripathi, Judicial Process by Central Law Publications 2013.

2. The origin and current meanings of “Judicial Activism” by Keenan D.Kmiec, CLR – 2004,
Scale - *1444
2.2. ORIGIN OF JUDICIAL ACTIVISM IN UNITED STATES:
Arthur Schlesinger Jr. introduced the term "Judicial Activism" to the public in a
Fortune magazine article in January 1947.3 Schlesinger's article profiled all nine Supreme
Court justices on the Court at that time and explained the alliances and divisions among
them. The article characterized Justices Black, Douglas, Murphy, and Rutlege as the
"Judicial Activists" 4 and Justices Frankfurter, Jackson, and Burton5 as the "Champions of
Self Restraint." Justice Reed and Chief Justice Vinson comprised a middle group.
By 1947, none of the justices openly questioned the constitutionality of the New
Deal. Instead, the Court split over the interpretation of legislation and "the proper
function of the judiciary in a democracy."
In its early days, the term "judicial activist" sometimes had a positive connotation,
much more akin to "civil rights activist" than "judge misusing authority." For example,
references to the late Justice Frank Murphy. Albon P. Man observed that "Murphy's votes
in civil rights cases reflect not only his objectivity and independence as a judge but also
his position as perhaps the outstanding judicial activist on the Court 6." Alfred L. Scanlan
offered similar praise for Justice Murphy's judicial activism in civil rights issues,
answering the criticism that such activism is undemocratic by replying.
For example, a 1949 article observed, "Mr. Brandeis was a pragmatic judicial
activist who saw in the courts a powerful instrument to be grasped by the people in
ameliorating social and economic conditions." 7 Yet even in the early days of its use, the
term was most often considered a slight. As now-judge Louis Pollak observed in 1956, "It
seems safe to say that most judges regard 'judicial activism' as an alien 'ism' to which
their misguided brethren sometimes fall prey." 8 By the mid-1950s, the term had taken on
a generally negative connotation, even if its specific meaning was hard to pin down.
3. Arthur M. Schlesinger, Jr., The Supreme Court: 1947, Fortune, Jan. 1947, at 202, 208.
4. Schlesinger, supra note 22, at 74-76.
5. Based on Justice Burton, Notes in “Memoriam - Harold Hitz Burton” 78 Harv. L. Rev. 799, 799 (1965).
6. Albon P. Man, Jr., Mr. Justice Murphy and the Supreme Court, 36 Va. L. Rev. 889, 916 (1950).
7. Administrative Law: Judicial Review Denied Attorney General's Order for Removal of Enemy Alien, 34
Cornell L.Q. 425, 429 (1949).
8. Louis H. Pollak, Review: The Supreme Court in the American System of Government, 65 Yale L.J. 749,
752 n.11 (1956).
First Judicial Use of "Judicial Activism" by Judge Joseph C. Hutcheson, Jr. While
the exact origins of the term "judicial activism" in legal scholarship are hard to pin down
with certainty, there is no question that Joseph C. Hutcheson, Jr. was the first to use it in a
judicial opinion. A hard but dedicated judge who "barely missed out on an appointment
to the Supreme Court which went to Hugo Black," 9 Judge Hutcheson's contributions to
legal scholarship and service on the bench are generally praiseworthy.
A 1999 Fourth Circuit concurrence by Chief Judge J. Harvie Wilkinson III adopts
and expands upon many of the themes discussed in Turpin. The case, Brzonkala v.
Virginia Polytechnic Institute and State University,10 invalidated a portion of the Violence
Against Women Act as exceeding "Congress' [s] power under both the Commerce Clause
of Article I, Section 8, and the Enforcement Clause of Section 5 of the Fourteenth
Amendment." Judge Wilkinson concurs, admitting that "it is a grave judicial act to nullify
a product of the democratic process" but concludes that this case merits such an act.
Judge Wilkinson suggested that judicial activism is alive and well in the United
States. In the twentieth century, he explains, it "falls into three general stages."
The first stage was the Lochner era, "beginning roughly with the decision in
Lochner v. New York,11 and continuing through the early New Deal," which "is still
widely disparaged for its mobilization of personal judicial preference in opposition to
state and federal social welfare legislation."
The second stage took place during the "Warren and Early Burger Courts,"
roughly the 1950s through the early 1970s, which "focused on finding new substantive
rights in the Constitution and down played that document's structural mandates." As
Judge Wilkinson sees it, "Although many of its individual decisions were overdue and
salutary, when the era is considered as a whole, the states were relegated to a second-
class constitutional status."
Finally, the third stage of judicial activism "probably began with New York v.
United States 12," and continues into the twenty-first century.
9. Anne S. Emanuel, Forming the Historic Fifth Circuit: The Eisenhower Years, 6 Tex. F. on C.L. & C.R.
233, 234 (2002).
10. 169 F.3d 820 (4th Cir. 1999)
11. 198 U.S. 45 (1905).
12. 505 U.S. 144 (1992).
2.3. ORIGIN OF JUDICIAL ACTIVISM IN INDIA:
The nature of judicial process in India has undergone a metamorphosis expanding

the scope of judicial review legitimately through judicial legislation. Judges have been
traditional law makers. The judicial activism has flourished in India and has acquired
enormous legitimacy with the Indian public.
According to Hon’ble Mr.Justice A.M.Ahmadi, the former Chief Justice of India,

the initial years of the Supreme Court of India saw the adoption of an approach
characterised by caution and circumspection.13 The expanding role of judiciary in law
making in recent times has major reasons such as growth of parliamentary system and
statutory intervention in the expansion of legislation has brought about a parallel
expansion of judge-made law. This can be better understood by analyzing certain vital
factors like degree of creativity, the modes, limits and legitimacy of law making through
courts. By reason of judicial activism, much good or harm could be brought about by the
Judges by resorting to innovative interpretation. Since judicial interpretation always
involves some degree of law making, the creative character of judicial function and the
degree of creativity depends on the most activist and dynamic nature of the judge.
Judicial activism in India has not been a spontaneous development. It is the

consequence of a situation which necessitated it. 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. The activist judges to an extent laid down law to fill the vacuum created by
the legislature.
The judges assuming an activist role applied their creative skills by introducing
very many number of principles of interpretation of Constitutional provisions, especially
in respect of the provisions relating to fundamental rights. In this context it is apt to quote
Justice Oliver Wendell Holmes:
“I recognize without hesitation the judges must and do legislate, but they do so
only interstitially; they are confined from molar to molecular motions.” 14
13. Justice A.M.Ahmadi, Judicial Process: Social Legitimacy and Institutional Viability,
(1996) 4 SCC (J) p.4
14. Southern Pacific Co. v. Jensen, (1916) 244 US 205 at 221
It is pertinent to draw the attention to a parallel statement made by Benjamin

15
Cardozo while discussing the role of activist judges in his classic text The Nature of
Judicial Process.
“He (the judge) legislates only between gaps. He fills the open spaces in law.
How far he may go travelling beyond the walls of interstices cannot be staked
out for him on a chart.”
Judges do and must make law but not in the manner of legislatures. Judges have
power and right to make law. There is much scope for creative judicial activism in the
interpretative functions of judges, on the choices inherent in their function and in the gaps
in legal rules, as has been done by superior courts in several countries for many years.
The law creative function of judges will be of a much greater degree in a situation where
there is a legislative vacuum.
The genesis of Judicial Activism in India started as an off-spring of judicial

review from the mid seventies when the judiciary as an activator infused in to the stream
of judicial system many revolutionary changes. After 1975 the judiciary has become
unelected representative of the people 16.
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. Judicial
activism earned a human face in India by liberalizing access to justice and under their
leadership the Supreme Court gained in stature and legitimacy. It is pertinent to quote
Rajeev Dhavan’s observation on Indian judiciary who states that “Owing to indigenous
pressure, the court has been mechanical in its approach to the problem on which it was
called upon to adjudicate. The Supreme Court rarely exhibited any activist tendency
before the eighties more precisely before emergency 1975.” 17
15. Benjamin N.Cardozo, The Nature of the Judicial Process (1927) p.91-93

16. Justice M.Jagannadha Rao: What is the Secret of Judicial Creativity and Innovation?, Judiciary in
India Constitutional Perspectives, Edited by Prof.G.Manoher Rao, Dr.G.B.Reddy & V.Geeta
Rao (Asia Law House, Hyderabad 1st Edn., 2009)
17. Rajeev Dhavan: The Supreme Court of India - A Socio Legal Critique of its juristic techniques
(Bombay 1977p.421)
3. JUDICIAL CREATIVITY AND PRECEDENTS:
3.1. STARE DECISIS AND RATIO DECIDENDI:
Stare Decisis is Latin phrase. It means to stand by the decided cases to uphold the
precedent, to maintain a former adjudication. The purpose is to have uniformity for
having certainty. It is based on the public policy. Public policy is the major objectives of
any legal system are certainty, predictability and stability.
The maxim is “Stare decisis et non quieta movere”. Means – to stand by the
decision and not to disturb what is settled. “Those things which have been no often
adjudged ought to rest in peace”.
The Supreme Court of India is not bound by its own earlier decision. It can
overrule prospectively as well as retrospectively. Infact, the case law is a source of
knowledge, provides basis of arguments, expounds the implications of law and
sometimes even supplies the want of the legislatures.
The purpose of the judiciary is to implement the statutes in all its intents and
implications. In doing so, the judges introduce their own philosophies and attitudes of life
which is reflected in their judgments. The part of the judgment is called precedent which
is rationale of the decision is called “ratio decidendi” of the case due to this ratio, a case
is remembered and acknowledged as Law.
There are two theories of practices that are seen among the Judges, they are:
1) Declaratory Theory
2) Constitutive Theory
 Judges declare law that already exists incognito. They find it and apply to case
before them. This view is based on the judicial process as it has been Savigny
(German), Maine (English), Hugo (German), Burke (English), Bicko (Italy),
Montesquieu (France) subscribe to this thought.
 The reality in law is first, decision according to the law is thereafter.
 According to constitutive theory, a judge is not a legislator and cannot be so, but
laws are not made only by Legislatures.
 Article 145 of the Constitution of India empowers The Supreme Court of India to
make rules for regulating practice and procedure by rules of court.
 The objections against the judge making laws are based on Separation of Power
which has not been accepted in India in the way it operates in European Countries
(France) and U.S.A.
Lord Becon stated that in new cases (Unprecedented) where statutory guidance is
not available, where the constitution does not help the judge, the judges place reliance of
Logic, reasoning and analogy, philosophy, custom, tradition to decide the new case. It is
the permissible by judicial process. Justice Cardozo, approved these in “Judicial
Process”.
 The laws relating to trust, notice, fraud are creation of equity.

 Gray says “that the power to interpret law is not different from power to make
law. Infact, it is the judge who has final word to say what law on any point and
this is real Law making and person doing it lawfully is true law maker”.
 Hale held, “Judges only declare what law is, they do not make it, but, uphold rule
of law, they develop law and in doing so, they make law,
3.2. PRECEDENTS:
Precedent played a significant role in ensuring that ideals like creativity, stability
and uniformity gave the law a garb of reasonableness and legitimacy. The pleas for
judicial creativity within the precedent regime continued with Mansfield clarifying
that the spirit of the case and not the letter of particular precedents make law.
According to Holmes, the need of the law to evolve and develop by defining the
judges' role to be confined from 'molecular to molar motions'. He agrees that judges do,
in substance, legislate, but they do so interstitially that is they legislate within the gaps
left by the law made by the 1egislature.18
The judge made law may not be so perfect because of the personal thinking,
attitude, and the consciousness of the judge lies the subconscious force of humanness,
the likes, dislikes, prejudices, instincts, habits and convictions. For this reason it is
necessary to subject judicial creative requires constant testing, revision and readjustment.
18. THE COMMON LAW, By Oliver Wendell Holmes, Jr. 1881
4. JUDICIAL ACTIVISM AND CREATIVITY OF THE SUPREME

COURT:
4.1. ROLE OF ACTIVIST JUDGES IN JUDICIAL CREATIVITY
The activist judges play a vital role in exhibiting their judicial creativity and they
subjected the new legislation to their creative skills by introducing very many principles
of interpretation. Judicial creativity requires a great skill and high creative ability. The
judges evolved a number of principles while interpreting the Constitutional provisions,
especially in respect of the provisions relating to fundamental rights.
The recent trend adopted by the Supreme Court has been to interpret our
fundamental rights in the light of international conventions which are yet to be enacted in
to our domestic laws. In all these cases the judges of the Apex Court excelled in their
creative skills. Anyone 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 society in
India and enhanced the people’s quality of life.
Creativity in law through judicial process is one area that is greatly benefited by
the innovative and creative interpretation of the Supreme Court and High Courts.
Therefore the Creativity of the Supreme Court and High Courts shall always remain as a
high benchmark of judicial creativity in India. On the contrary, it is also possible that in
the process of creativity and innovation, there could sometimes be some errors, but such
errors could be corrected or modified or refined either in appeal, or in a latter case, and
the latter judgment would be one step more in the progress of the law.19
Cardozo while analyzing judicial process20 concludes that there is an element of

creation and discovery where the judge can play a creative role in matter of constitutional
interpretations. Each case coming before the judge has its own peculiarities requiring
application of fresh mind and skill. The judge has constantly to be a creative artist. His
work, therefore, requires constant thinking and display of talent and creativity.21
19. Justice M.Jagannadha Rao: What is the Secret of Judicial Creativity and Innovation?, Judiciary in
India Constitutional Perspectives, Edited by Prof.G.Manoher Rao, Dr.G.B.Reddy & V.Geeta Rao
(Asia Law House, Hyderabad 1st Edn, 2009) p.140
20. Prof (Dr.) A.Raghunadha Reddy: From Jurisprudence to Jurimetrics: A Critical Evaluation of the
Emerging Tools in the Judicial Process,
21. All India Judges' Association v. Union of India AIR 1993 SC 2493
When judges interpret the law or a constitution by not merely giving effect to the
literal meaning of the word, but trying to provide an interpretation consistent with the
spirit of that statute or constitution, they are said to be activist judges. The function of the
higher courts in this country has not been limited to exploring what the Constitution-
makers meant when they wrote those words but also to develop and adapt the law so as to
meet the challenges of contemporary problems of the society and respond to the needs of
the society.
4.2. JUDICIAL CREATIVITY OF SUPREME COURT OF INDIA
A written constitution is not a self-executing document, and meanings of several

provisions may not always be self-evident. The Courts cannot interpret a statute, much
less a constitution, in a mechanistic manner. In the case of a statute, a court must
determine the actual intent of the authors. In the case of a Constitution, a court must
sustain the constitution’s relevance to changing social, economic, and political scenarios.
The courts must adopt a judicially positivist and pro-activist liberal approach in
constitutional interpretation since the law-creative function of the judges is very well
recognised now. Judges who interpret a written constitution cannot merely apply the law
to the facts that come before them. The scope of judicial creativity expands the degree of
activism when a constitution contains a bill of rights. In the words of Justice Benjamin
Cardozo, a court must give to the words of a constitution “a continuity of life and
expression.” 22
The judiciary at times is forging new tools, devising new strategies for the
purpose of making fundamental rights meaningful for the large masses of the people. In
the words of H.L.A.Hart “judges have an interstitial law-making function in so-called
penumbral cases that are not clearly covered by existing law.” 23 The liberal, purposive,
law-creative interpretation of the constitution must be used by the courts “with insight in
to social values, and with suppleness of adaptation to changing needs.” 24 It is a matter of
judicial attitudes and choices as to how the judges approach the task of constitutional
interpretation. The degree of necessary creativity might be well higher in constitutional
adjudication than is usually the case for ordinary statutory adjudication.25
22. Benjamin N.Cardozo, The Nature of the Judicial Process (1927) p.92-94

23. H.L.A.Hart, The Concept of Law, (Oxford University Press, London, 1961) p.125
24. Kariapper v Wijesinha (1968) AC 717
25. Mauro Cappelletti, The Judicial Process in Comparative Perspective, p.29
The higher judiciary in India has been endowed with the onerous task of
upholding the fundamental rights of the citizens. Therefore the judicial interpretation and
enforcement of social rights necessarily implies a high degree of creativity by virtue of
the activist approach of higher judiciary in construing and declaring the fundamental
rights. The judiciary in a constitutional democracy can play an active role through the
medium of judicial review. This proposition is squarely applicable to the Indian context
and it is evident from the judicial precedents that the judiciary especially the Supreme
Court has started playing an activist role occasionally from its rulings in cases such as
A.K.Gopalan v. State of Madras 26 and the activist role of the Indian judiciary was clearly
evident in Golak Nath v. State of Punjab 27.
The high water mark of judicial activism in India has been reached by the Court in
28
the landmark case of Kesavananda Bharati v. State of Kerala popularly known as
Fundamental Rights Case wherein the Supreme Court propounded the Doctrine of Basic
Structure through its judicial creativity and activist approach.
Chief Justice Marshall of American Supreme Court laid down the basic principle
29
of judicial review of legislation in Marbury v. Madison , our Supreme Court went
further, on what Cardozo would call, “the felt necessities of the time” For the first time a
court held that a constitutional amendment duly passed by the legislature was invalid as
damaging or destroying its basic structure. This was a gigantic innovative judicial leap
unknown to any legal system.30 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.31 In the post-Emergency era, the Apex Court sensitized by the perpetration of
large scale atrocities during the Emergency donned an activist mantle. The Emergency of
1975 and its aftermath constituted defining moments for judicial activism in India.
26. AIR 1951 SC 21

27. AIR 1962 SC 723
28. AIR 1973 SC 1461
29. (1803) 5 U.S. (1Cranch) 137
30. Anil Divan, Judicial Activism and Democracy, Article published in editorial, The Hindu, Chennai
Edition dated April 2, 2007 p.12
31. Lalit Narayan Mishra Institute of Economic Development and Social Change, Patna v. State of Bihar
AIR 1988 S C 1136
In the infamous decision in A.D.M. Jabalpur v. Shukla32 famously known as
Habeas Corpus Case, the Supreme Court used its active judicial power permitted civil
liberties in Part III to be suspended during the Emergency. Therefore, permitting civil
liberties to be suspended during the Emergency would arguably have constituted

deference both to the intent of the framers of the Constitution and to legislative wisdom
or judicial restraint.
Thus judicial activism during the Emergency was clearly the need of the hour and
it had a strong moral basis after Emergency and the judges ought to have been activist. In
a series of decisions, starting with Menaka Gandhi v. Union of India,33 the court widened
the ambit of constitutional provisions and held that the provisions of Part III should be
given widest possible interpretation to expand the reach of fundamental rights rather than
to attenuate their meaning and content. In the post–Menaka period court’s activism
blossomed and flourished with doctrinal creativity and processual innovations.
The Supreme Court has infused new vigor in the moribund Article 21 by giving
an expansive interpretation to the word ‘life’ as therein as meaning not only mere ‘animal
existence’ but ‘live with human dignity’. The Supreme Court has thus infused a
qualitative concept in Article 21 as a result of which this constitutional provision has
become a reservoir of Fundamental Rights.
The Supreme Court of India developed a vast jurisprudence of interpretation of

Constitutional provisions and other statutes. Over the years, the Supreme Court has culled
out several un-enumerated rights as being implied within the enumerated fundamental
rights contained in Part III of the constitution. The Apex Court widened the ambit of
constitutional provisions to enforce the human rights of citizens and sought to bring the
Indian law in conformity with the global trends in human rights jurisprudence.
Simultaneously, it introduced processual innovations34 with a view to making itself more
accessible to disadvantaged sections of the society giving rise to the phenomenon of
Public Interest Litigation. The judiciary has moved beyond being a mere legal institution;
its decisions have tremendous social, political and economic ramifications.
32. AIR 1976 SC 1207

33. AIR 1978 SC 597
34. Justice A.M.Ahmadi, Judicial Process: Social Legitimacy and Institutional Viability,
(1996) 4 SCC (J) P.5
The judicial creativity in constitutional interpretation is not only confined to

explore the true intent of Article 21, the horizon of activist approach of higher judiciary
extends interalia to other provisions enshrined in Part III of the Constitution. A classic
example of this judicial activism and innovativeness in interpreting Article 14 could be
well explained by referring to the landmark case of the Supreme Court
in E.P.Royappa v. State of Tamil Nadu 35, the Apex Court challenged the traditional
concept of equality which was based on reasonable classification and has laid down a
new concept of equality. Justice P.N.Bhagwati delivering the judgment on behalf of
himself, Justice Y.V.Chandrachud and Justice V.R.Krishna Iyer, propounded the new
concept of equality in the following words “Equality is a dynamic concept with many
aspects and dimensions and it cannot be ‘cribbed, cabined and confined’ within
traditional and doctrinaire limits.”
The Supreme Court has set aside the classic formulation of the “Doctrine of
reasonable classification” as held in the case of Anwar Ali Sarkar v. State of West
Bengal.36 reformulated in Ram Krishna Dalmia v. Justice Tendolkar.37 and in “In re
Special Courts Bill, 1978,” held the field and became formally recognised as the
touchstone for testing legislative and executive violations of Article 14. The Apex Court
has rightly admitted that Article 14 of the Constitution of India has received a liberal
interpretation over the years. Its scope has also been expanded by creative interpretation
of the Court.38 Thus the activist approach of Supreme Court paved way for introducing a
new dimension of right to equality by setting aside the mechanical notion of traditional
juridical concept.
The Supreme Court keeping in tune with the technological advancements in a

phased manner is applying the tools of creativity to forge the interpretation of
Constitution to suit the societal needs in the present era of technology. The Apex Court
has observed that creative interpretation of the provisions of the statute demands that with
the advance in science and technology, the Court should read the provisions of a statute
in such a manner so as to give effect thereto.39
35. AIR 1974 SC 555

36. AIR 1952 SC 75
37. AIR 1958 SC 538
38. Food Corporation of India v. M/s. Seil Ltd. AIR 2008 SC 1101
39. Suresh Jindal v. BSES Rajdhani Power Ltd. AIR 2008 SC 280
A Constitution Bench of the Apex Court has observed that 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.40
4.3. REFORMATIVE EFFECT OF JUDICIAL CREATIVITY BY SUPREME

COURT:
A great transformation has come about in the judicial attitude towards the
protection of personal liberty in the post-emergency period. The Court has re-interpreted
Article 21 and practically overruled A.K.Gopalan’s case in Menaka Gandhi which can be
regarded as a highly creative judicial pronouncement on the part of the Supreme Court.
Judicial activism of the post-emergency period means liberal interpretation of
constitutional provisions like Articles 21 and 14, and reconceptualization of the judicial
process by making it more accessible and participatory.41
The most significant aspect of Menaka Gandhi was that the Court laid down a
seminal principle of constitutional interpretation. The Court held that there cannot be a
mere textual construction of the words of the Constitution. Those words are significant
with meanings that unfold when different situations arise. Another strategy adopted by
the Supreme Court with a creative fashion to expand the ambit of Article 21 and to imply
certain bundle of rights.
However, judicial activism in India has now taken on an interesting face. The
courts in India pursue a form of review which can be described as best as ‘dialogic’ – a
term used famously by Peter Hogg and Allison Bushell in the context of the Canadian
Supreme Court’s decisions.42 The Indian Supreme Court has enforced socio-economic
rights, though they are not considered enforceable by the Constitution such as the right
against malnutrition and the right to shelter. The judiciary has started issuing guidelines
increasingly in legislative spheres, one such occasion in a landmark judgment
in Vishaka v. State of Rajasthan.43
40. Indra Sawhney v. Union of India AIR 1993 SC 477

41. S.P.Sathe, Judicial Activism: The Indian Experience, Journal of Indian School of Political Economy
(1998 & 1999), Journal of Law & Policy (2001, Vol.6:29), P.51
42. Abhinav Chandrachud, Dialogic judicial activism in India, Article published in editorial, The Hindu,
Chennai edition dated July 18, 2009 P.10
43. AIR 1997 SC 3011
The Supreme Court has laid down exhaustive guidelines to prevent sexual
harassment of working women in work places until a suitable legislation is enacted for
the purpose. The Court relied on International Conventions and made a significant
interpretation of guarantee of gender equality, right to work with human dignity and
safeguards against sexual harassment implicit under Articles 14, 15(3), 19(1)(a) and 21 of
the Constitution and filled the gap in legislative vacuum.
The dynamics of judicial process has a new enforcement dimension which

includes ‘rights mobilization’ without which the rights and interests of the poor and
illiterate silent majority would become sterile.44 The Supreme Court has not confined
itself to judge-made law in the traditional sense of the term, but has embarked upon
legislation to fill in the gaps left by legislature. The role of judicial interpretation has to
play far more active, creative and purposeful role in deciding what is according to
law. The judiciary by invoking its activist approach with a camouflage of creativity laid
down detailed guidelines on various spheres of law including the process of inter-country
adoptions,45 rehabilitation of children of commercial sex workers,46 and the procedure to
be followed by police officers prior to arrest, mildly similar to the American Miranda
rights propounded ‘Basu rights’47. Thus, when a competent legislative fails to act
legislatively and make a necessary law to meet the societal needs, the courts play an
active role and often indulge in judicial legislation to fill the void created by the
legislature’s abdication of responsibility.
While the Part IV deals with the Directive Principles of State Policy that largely
enumerate objectives pertaining to socio-economic entitlements. They are the creative
part of the Constitution, and fundamental to the governance of the country. However, the
key feature is that the Directive Principles are non-justiciable.48 Despite the fact that the
Constitution did not permit socio-economic rights to be justiciable or enforceable, the
Indian judiciary taught that express constitutional provisions may not necessarily
translate in to social legitimacy.
44. I.P.Massey, Administrative Law, (Eastern Book Company, Lucknow, 5th Edn, 2001) Pg. 261
45. Laxmikant Pandey v Union of India, AIR 1987 SC 232
46. Gaurav Jain v Union of India, AIR 1997 SC 3021
47. D.K.Basu v State of West Bengal, AIR 1997 SC 610
48. Justice K.G.Balakrishnan, Constitutional Control Praxis in the present day, Lecture at Brazilian
Supreme Court Pg.5
The principle of harmonious construction in interpreting the relationship between

Part III and Part IV of the Constitution has been reiterated in number of cases 49 decided
by the Supreme Court and consistently maintained that the Fundamental Rights and the
Directive Principles of State Policy constitute the conscience of the constitution. The
judiciary under our constitutional scheme has to take up a positive and creative function
in securing socio-economic justice to the people.
50
In State of Bihar v. Bal Mukund Sah it was held that the judiciary has,
therefore, a socio-economic destination and a creative function. In S. P. Gupta v.
President of India51 it was held that the judiciary cannot remain a mere bystander or
spectator but it must become an active participant in the judicial process ready to use law
in the service of social justice through, a pro-active goal oriented approach. It was
emphasized that the judiciary has to adopt a positive and creative approach.
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.52
The Supreme Court 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.53
The Apex Court goes to say that notwithstanding the conventional principle that
the duty of judges is to expound and not to legislate. The Courts have taken the view that
the judicial art of interpretation and appraisal is imbued with creativity.54
49. Minerva Mills Ltd. v Union of India, AIR 1980 SC 1789,

Waman Rao v Union of India, AIR 1981 SC 271,
Sanjeev Coke Manufacturing Co. v Bharat Coking Coal Ltd. AIR 1983 SC 239,
50. AIR 2000 SC 1296
51. AIR 1982 SC 149
52. A.Laxminath, Precedent in Indian Law, Second Edition, 2005, Pg.32
53. Jagdambika Pratap Narain Singh v. Central Board of Direct Taxes, AIR 1975 SC 1816
54. Bhatia International v. Bulk Trading S. A., AIR 2002 SC 1432
5. TOOLS AND TECHNIQUES OF CREATIVITY:

5.1. 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 [as than he was]:-
"The Judge is not to innovate at pleasure. He is not a knight-errant
roaming at will in pursuit of his own ideal of beauty or of goodness." 54
 Again, Justice Cardozo said that though the powers of interpretation of the Courts
are narrow, yet they can fill up gaps. He said:-
o "No doubt, the limits for the judge are narrower. He legislates only
between gaps. He fill the open spaces in the law." 55
 Judges have power and right to make law. In this context the following words of
Justice Holmes are apposite. He said:-
o "I recognize without hesitation that Judges do and must legislate, but they
do so only interstitially; they are confined from molar to molecular
motion" 56
Law is a social engineering and an instrument of social change evolved by a

gradual and continuous process. As Benjamin 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.
5.2. Creativity based on changing demands of society:
57
In Bengal Immunity Company Limited v. State of Bihar, 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 to the changing demands of society.
54. Mr. Justice Benjamin Cardozo, LL.D, The Nature of the Judicial Process, page 141.
55. Mr. Justice Benjamin Cardozo, LL.D, The Nature of the Judicial Process, page 131.
56. Southern Pacific Co. v. Jensen, (1916) 244 US 205 at 221 – Yr.1917
57. AIR 1955 SC 661
In Shah Bano’s case58 it is interpreted that every woman has right to live with
human dignity, irrespective of her cast. In "Mohinder Singh Gill v. Chief Election
Commissioner, New Delhi",59 the Supreme Court has held that today, in our
jurisprudence, the advances made by natural justice far exceed old frontiers and if judicial
creativity be lights penumbral areas it is only for improving the quality of government by
injecting fair play into its wheels.
5.3. Creation of Right to Education
In case of Unni Krishnan & others v. State of A.P.60, the Apex Court held that the
every Child/citizen has a right to free education until he completes the age of 14 years.
This right flows from Article 21. This is a good example of the judicial creativity.
5.4. Creativity in open space
There is no law on social disorder called Sexual harassment of a woman at

work place. In Vishaka Case 61 The Supreme Court 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. It has been 10 years since the Hon’ble Supreme Court issued
Vishaka guidelines regarding sexual harassments but still a draft bill on the subject is
waiting for enactment. As per these guidelines, every organization, whether Government
or Public, is to have an Internal Complaints Committee to investigate complaints
regarding sexual harassment at workplace. A code of conduct is prepared for all
employees and that should be incorporated in the service rules/standing instructions.
Sexual harassment at work place is a criminal offence and the accused would face civil as
well as criminal liabilities.
Judge made Law
Duty to assign reasons is, however, a judge made law. There is dispute as to
whether it comprises of a third pillar of natural justice.62
58. Mohd. Ahmad Khan V. Shah Bano Begum, AIR 1985 SC 945
59. AIR 1978 S C 851
60. (1973) 1 SCC 645
61. Vishaka v. State of Rajasthan (AIR 1977 SC 3011)
62. S. N. Mukherjee v. Union of India, (1990) 4 SCC 594 & Reliance Industries Ltd. v. Designated
Authority and Others, AIR 1990 SC 1984.
What would be, if not permitted?
The Constitution Bench speaking through Chief Justice Pathak in Raghubir

Singh (dead) 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.63
In T.M.A. Pai Foundation v. State of Karnataka 64, 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" 65
5.5. Creativity in Interpretation of Constitution:
In Bombay Dyeing Co. Ltd. v. Bombay Action Group & Ors. 66, 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.
Former C.J.I. Dr. A.S. Anand observed that the Apex Court has given purposive
liberal and creative interpretation of Article 21 of the Constitution by giving it more
content, meaning and purpose. In expanding the ambit of right to life & personal liberty,
the court has evolved tools and techniques of compensatory jurisprudence, implemented
international conventions & treaties, and issued directions for environmental justice.
5.6. 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 "M. Nagaraj v. Union of India",67 the Supreme
Court has held that this development is the emergence of the constitutional principles in
their own right. It is not based on literal wordings. These principles are part of
Constitutional law even if they are not expressly stated in the form of rules. An instance
is the principle of reasonableness which connects Arts. 14, 19 and 21.
63. Annual Survey of Indian Law, 2002 at p.251, 254

64. (2002) 8 SCC 481
65. Annual Survey of Indian Law, 2002 at p.256.
66. AIR 2006 SC 1489
67. AIR 2007 SC 71
In "Minerva Mills Ltd. v. Union of India",68 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.
5.7. Innovation of minimum rationality
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,69 when S.303 of the I.P.C., was struck down on the ground that it
violates Article 21.
5.8 Creation of various Rights
In Olga Tellis v. B.M.C.70, 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.
5.9. Balancing technique
In "Lalit Narayan Mishra Institute of Economic Development and Social

Change, Patna v. State of Bihar" 71, 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"72, 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.
68. AIR 1980 SC 1789

69. AIR 1983 SC 473
70. (1985) 3 SCC 545
71. AIR 1988 SC 1136
72. AIR 1984 SC 326
5.10. Creative interpretation
In "Suresh Jindal v. BSES Rajdhani Power Ltd.", AIR 2008 SC 280, the Apex
Court has observed that Creative interpretation of the provisions of the statute demands
that with the advance in science and technology, the Court should read the provisions of a
statute in such a manner so as to give effect thereto.
5.11. Creative interpretation of Art. 14
In "Food Corporation of India v. M/s. Seil Ltd.", AIR 2008 SC 1101, the Apex
Court has rightly admitted that Article 14 of the Constitution of India has received a
liberal interpretation over the years. Its scope has also been expanded by creative
interpretation of the Court. The law has developed in this field to a great extent.
5.12. Keep the law abreast of the times
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.73
5.13. 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",74 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.
5.14. Creativity in Socio-Economic Justice
In "State of Bihar v. Bal Mukund Sah",75 the Supreme Court has emphasized
its creative role in achieving the goal of socio-economic justice.
73. Precedent in Indian Law, A. Laxminath, Second Edition 2005, Pg. 68.
74. AIR 2003 SC 2363
75. AIR 2000 SC 1296
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.76
5.15. Creativity in special situations
In Raj Deo Sharma case,77 the Apex Court has observed that even so, leaving
V.V.I.P. accused to be dealt with by the routinely procrastinating legal process is to
surrender to interminable delays as an inevitable evil. Therefore, we should not be finical
about absolute processual equality and must be creative in innovating procedures
compelled by special situations.
5.16. 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
Article 21. In Hussainara Khatoon v. Home Secretary, State of Bihar, 78 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 Court laid stress upon the need for enactment of law to
ensure reasonable, just and fair procedure which has creative connotation after Maneka
Gandhi's case, (1978) 1 SCC 248 in the matter of criminal trials.
5.17. Creativity needed to harmonise the law
In "Municipal Corporation of Greater Bombay v. Indian Oil Corporation Ltd.79,

has held that keeping in view the social, economic and political goal setting in which it is
intended to operate , Judge is called upon to perform a creative function.
76. A. Cox - The Court and the Constitution.

77. Raj Deo Sharma v. State of Bihar, AIR 1999 SC 3524
78. AIR 1979 SC 1360
79. AIR 1991 SC 686
5.18. 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,80 the Apex Court brought public sector corporations within the
scope and ambit of Art. 12 and subjected them to the discipline of fundamental rights.
5.19. Creativity is must in developing countries
The Supreme Court in Jagdambika Pratap Narain Singh v. Central Board of

Direct Taxes,81 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.
In "S. P. Gupta v. President of India",82 it was held that the judiciary has,
therefore, a socio-economic destination and a creative function. The judiciary cannot
remain a mere bystander or spectator but it must become an active participant in the
judicial process ready to use law in the service of social justice through, a pro-active goal
oriented approach. It was emphasized that the judiciary has to adopt a positive and
creative approach.
5.20. Creativity in the field of other wings
The Supreme Court further cautioned itself in the S. P Gupta case 83 that the court
must take care to see that it does not overstep the limits of its judicial function and
trespass into areas which are reserved to the Executive and the Legislature by the
Constitution. Judicial creativity requires a great skill and high creative ability. "Justice
Cardozo approvingly quoted President T. Roosevelt's stress on the social philosophy of
the Judges, who shakes and shapes the course of a nation and declares the law of the land,
must be in tune with the social philosophy of the Constitution”.
80. Ramana Dayaram Shetty v. The International Airport of India and others, AIR 1979 SC 1628
81. AIR 1975 SC 1816
82. AIR 1982 SC 149
83. S. P. Gupta v. President of India, AIR 1982 SC 149.
6. PURPOSE BEHIND JUDICIAL CREATIVITY & PIL
In "Delhi Transport Corporation v. D.T.C.Mazdoor Congress",84 It is true that

judicial jealousy of legislature in law making has long been outdrawn, but the strict
construction remains still an established rule. It is generally accepted principle that
Judges in interpreting statutes should give effect to the legislators' intent. By doing so, the
Courts do recognize their subordinate position and their obligation to help the legislature
to achieve its purpose. But in that effort, creativity is essential.
6.1. Demands of Changing Society
In "Union of India v. Raghubir Singh",85 it has been held that the Supreme Court
is not bound by its own previous decisions while permitting necessary scope for
judicial creativity and adaptability of the law to the changing demands of society
becomes inevitable.
In "Mohinder Singh Gill v. Chief Election Commissioner, New Delhi",86 the apex
Court has observed that if judicial creativity belights penumbral areas it is only for
improving the quality of government by injecting fair play into its wheels.
6.2. Usurpation of Legislative Functions
In "Municipal Committee, Patiala v. Model Town Residents Association", 87 The

court cannot usurp the functions assigned to the legislative bodies under the Constitution
and even indirectly require the legislature to exercise its power of law-making in
particular manner. The court cannot assume to itself a supervisory role for the law-
making power of the legislature under the provisions of the Constitution.
6.3. Reading Fundamental Rights into Directive Principles
In "State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat", 88 the Apex Court
has held that post Kesavananda Bharati so far as the determination of the position of
Directive Principles, vis-a-vis Fundamental Rights are concerned, it has been an era of
positivism and creativity.
84. AIR 1991 SC 101

85. AIR 1989 SC 1933
86. AIR 1978 SC 851
87. AIR 2007 SC 2844
88. AIR 2006 SC 212
Article 37 of the Constitution which while declaring the Directive Principles to be

unenforceable by any Court, but in “Kesavananda Bharati v. State of Kerala", AIR 1973
SC 1461, Court goes on to say - "that they are nevertheless fundamental in the
governance of the country". The end part of Article 37 - "It shall be the duty of the State
to apply these principles in making laws" is not a pariah but a constitutional mandate.
Supreme Court has held that, while interpreting the interplay of rights and restrictions,
Part-III (Fundamental Rights) and Part-IV (Directive Principles) have to be read
together.
6.4. Milestones of Public Interest Litigation in India
One of the earliest cases of public interest litigation was reported as Hussainara
Khatoon (I) v. State of Bihar.89 This case was concerned with a series of articles
published in a prominent newspaper - the Indian Express which exposed the plight of
under trial prisoners in the state of Bihar. A writ petition was filed by an advocate
drawing the Court’s attention to the deplorable plight of these prisoners. Many of them
had been in jail for longer periods than the maximum permissible sentences for the
offences they had been charged with. The Supreme Court accepted the locus standi of the
advocate to maintain the writ petition. Thereafter, a series of cases followed in which the
Court gave directions through which the ‘right to speedy trial’ was deemed to be an
integral and an essential part of the protection of life and personal liberty. Soon
thereafter, two noted professors of law filed writ petitions in the Supreme Court
highlighting various abuses of the law, which, they asserted, were a violation of Article
21 of the Constitution.90 These included inhuman conditions prevailing in protective
homes, long pendency of trials in court, trafficking of women, importation of children for
homosexual purposes, and the non-payment of wages to bonded labourers among others.
The Supreme Court accepted their locus standi to represent the suffering masses and
passed guidelines and orders that greatly ameliorated the conditions of these people.
In another matter, a journalist, Ms. Sheela Barse91, took up the plight of women
prisoners who were confined in the police jails in the city of Bombay. She asserted that
they were victims of custodial violence.
89. (1980) 1 SCC 81; Upendra Baxi, ‘The Supreme Court under trial: Undertrials and the Supreme Court’,
(1980) Supreme Court Cases (Journal section), at p. 35
90. Upendra Baxi (Dr) v. State of U.P., (1983) 2 SCC 308
91. Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96
The Court took cognizance of the matter and directions were issued to the
Director of College of Social Work, Bombay. He was ordered to visit the Bombay
Central Jail and conduct interviews of various women prisoners in order to ascertain
whether they had been subjected to torture or ill-treatment. He was asked to submit a
report to the Court in this regard. Based on his findings, the Court issued directions such
as the detention of female prisoners only in designated female lock-ups guarded by
female constables and that accused females could be interrogated only in the presence of
a female police official.
Public interest litigation acquired a new dimension – namely that of ‘epistolary

jurisdiction’ with the decision in the case of Sunil Batra v. Delhi Administration,92 It was
initiated by a letter that was written by a prisoner lodged in jail to a Judge of the Supreme
Court. The prisoner complained of a brutal assault committed by a Head Warder on
another prisoner. The Court treated that letter as a writ petition, and, while issuing various
directions, opined that:
“…technicalities and legal niceties are no impediment to the court entertaining

even an informal communication as a proceeding for habeas corpus if the basic facts are
found”.
In Municipal Council, Ratlam v. Vardichand,93 the Court recognized the locus

standi of a group of citizens who sought directions against the local Municipal Council
for removal of open drains that caused stench as well as diseases. The Court, recognizing
the right of the group of citizens, asserted that if the:
"…centre of gravity of justice is to shift as indeed the Preamble to the

Constitution mandates, from the traditional individualism of locus standi to the
community orientation of public interest litigation, the court must consider the issues as
there is need to focus on the ordinary men."
In Parmanand Katara v. Union of India,94 the Supreme Court accepted an

application by an advocate that highlighted a news item titled "Law Helps the Injured to
Die" published in a national daily, The Hindustan Times.
92. (1978) 4 SCC 494

93. (1980) 4 SCC 162
94. (1989) 4 SCC 286
The petitioner brought to light the difficulties faced by persons injured in road and
other accidents in availing urgent and life-saving medical treatment, since many hospitals
and doctors refused to treat them unless certain procedural formalities were completed in
these medico-legal cases. The Supreme Court directed medical establishments to provide
instant medical aid to such injured people, notwithstanding the formalities to be followed
under the procedural criminal law.
In many other instances, the Supreme Court has risen to the changing needs of
society and taken proactive steps to address these needs. It was therefore the extensive
liberalization of the rule of locus standi which gave birth to a flexible public interest
litigation system. A powerful thrust to public interest litigation was given by a 7-judge
bench in the case of S.P. Gupta v. Union of India.95 The judgment recognized the locus
standi of bar associations to file writs by way of public interest litigation. In this
particular case, it was accepted that they had a legitimate interest in questioning the
executive’s policy of arbitrarily transferring High Court judges, which threatened the
independence of the judiciary.
The unique model of public interest litigation that has evolved in India not only
looks at issues like consumer protection, gender justice, prevention of environmental
pollution and ecological destruction, it is also directed towards finding social and political
space for the disadvantaged and other vulnerable groups in society. The Courts have
given decisions in cases pertaining to different kinds of entitlements and protections such
as the availability of food, access to clean air, safe working conditions, political
representation, affirmative action, anti-discrimination measures and the regulation of
prison conditions among others.
For instance, in People’s Union for Democratic Rights v. Union of India,96 a

petition was brought against governmental agencies which questioned the employment of
underage labourers and the payment of wages below the prescribed statutory minimum
wage-levels to those involved in the construction of facilities for the then upcoming
Asian Games in New Delhi. The Court took serious exception to these practices and ruled
that they violated constitutional guarantees. The employment of children in construction-
related jobs clearly fell afoul of the constitutional prohibition on child labour and the non-
payment of minimum wages was equated with the extraction of forced labour.
95. (1981) Supp. SCC 87

96. AIR 1982 SC 1473
Similarly, in Bandhua Mukti Morcha v. Union of India,97 the Supreme Court’s

attention was drawn to the widespread incidence of the age-old practice of bonded labour
which persists despite the constitutional prohibition. Among other interventions, one can
refer to the Shriram Food & Fertilizer case98 where the Court issued directions to
employers to check the production of hazardous chemicals and gases that endangered the
life and health of workmen. It is also through the vehicle of PIL, that the Indian Courts
have come to adopt the strategy of awarding monetary compensation for constitutional
wrongs such as unlawful detention, custodial torture and extra-judicial killings by state
agencies.99
In the realm of environmental protection, many of the leading decisions have been
given in actions brought by renowned environmentalist M.C. Mehta. He has been a
tireless campaigner in this area and his petitions have resulted in orders placing strict
liability for the leak of Oleum gas from a factory in New Delhi, 100 directions to check
pollution in and around the Ganges river,101 the relocation of hazardous industries from
the municipal limits of Delhi,102 directions to state agencies to check pollution in the
vicinity of the Taj Mahal103 and several afforestation measures. A prominent decision was
made in a petition that raised the problem of extensive
97. (1984) 3 SCC 161

98. (1986) 2 SCC 176
99. See observations justifying the payment of compensation for human rights violations by state agencies
in the following decisions: Bhim Singh v. State of Jammu and Kashmir, (1985) 4 SCC 677;
Nilabati Behera v. State of Orissa, (1993) 2 SCC 746;
D.K. Basu v. Union of India, (1997) 1 SCC 416;
Also see: Lutz Oette, ‘India’s International obligations towards victims of human rights violations:
Implementation in domestic law and practice’ in C. Raj Kumar & K. Chockalingam (eds.),
Human rights, Justice and Constitutional empowerment (OUP, 2007) at p. 462-485
100. M.C. Mehta v. Union of India, (1987) 1 SCC 395

Also see Emily R. Atwood, ‘Preserving the Taj Mahal: India’s struggle to salvage cultural icons in
the wake of industrialisation’, 11 Penn State Environmental Law Review 101 (Winter 2002)
Vehicular air pollution in Delhi. The Court was faced with considerable statistical
evidence of increasing levels of hazardous emissions on account of the use of diesel as a
fuel by commercial vehicles. The Supreme Court decided to make a decisive intervention
in this matter and ordered government-run buses to shift to the use of Compressed
Natural Gas (CNG), an environment-friendly fuel.104 This was followed some time later
by another order that required privately-run ‘autorickshaws’ (three-wheeler vehicles
which meet local transportational needs) to shift to the use of CNG.
At the time, this decision was criticized as an unwarranted intrusion into the
functions of the pollution control authorities, but it has now come to be widely
acknowledged that it is only because of this judicial intervention that air pollution in
Delhi has been checked to a substantial extent. Another crucial intervention was made in
Council for Environment Legal Action v. Union of India,105 wherein a registered NGO
had sought directions from the Supreme Court in order to tackle ecological degradation in
coastal areas. In recent years, the Supreme Court has taken on the mantle of monitoring
forest conservation measures all over India, and a special ‘Green bench’ has been
constituted to give directions to the concerned governmental agencies. At present, I am
part of this Green bench and can vouch for the need to maintain judicial supervision in
order to protect our ecological resources from rampant encroachments and administrative
apathy.
An important step in the area of gender justice was the decision in Vishaka v.
State of Rajasthan.106 The petition in that case originated from the gang-rape of a
grassroots social worker. In that opinion, the Court invoked the text of the
“Convention for the Elimination of all forms of Discrimination against Women

(CEDAW) and framed guidelines for establishing redressal mechanisms to tackle sexual
harassment of women at workplaces.
104. See decision in M.C. Mehta v. Union of India, (1998) 8 SCC 648; Also refer: Armin
Rosencranz & Michael Jackson, ‘The Delhi Pollution case: The Supreme Court of India
and the limits of judicial power’, 28 Columbia Journal of Environmental Law 223 (2003)
105. (1996) 5 SCC 281
106. (1997) 6 SCC 241; See D.K. Srivastava, ‘Sexual harassment and violence against women in India:
Constitutional and legal perspectives’ in C. Raj Kumar & K. Chockalingam (eds.), Human rights,
Justice and Constitutional empowerment (OUP, 2007) at p. 486-512
Though the decision has come under considerable criticism for encroaching into
the domain of the legislature, the fact remains that till date the legislature has not enacted
any law on the point. It must be remembered that meaningful social change, like any
sustained transformation, demands a long-term engagement. Even though a particular
petition may fail to secure relief in a wholesome manner or be slow in its implementation,
litigation is nevertheless an important step towards systemic reforms. A recent example
of this approach was the decision in People’s Union for Civil Liberties v. Union of
India,107 where the Court sought to ensure compliance with the policy of supplying mid-
day meals in government-run primary schools. The mid-day meal scheme had been
launched with much fanfare a few years ago with the multiple objectives of encouraging
the enrolment of children from low-income backgrounds in schools and also ensuring that
they received adequate nutrition. However, there had been widespread reports of
problems in the implementation of this scheme such as the pilferage of food grains. As a
response to the same, the Supreme Court issued orders to the concerned governmental
authorities in all States and Union Territories, while giving elaborate directions about the
proper publicity and implementation of the said scheme.
7. CONCLUSION:
The focus of study in this assignment is on judicial creativity in interpreting

provisions in certain crucial areas in the Constitution of India. Judicial innovation was
essential to adapt the constitutional provisions to modern changed context. “Creativity of
the Court has been mainly in the creation and introduction of certain new concepts not
found in any specific provision of the Constitution which, but were essential for its
meaningful interpretation”108. Independence of the judiciary, basic structure and certain
elements of social justice are cherished.
The second aspect of creativity lies in the attempt of the Court to construe
provisions in the Constitution with a view to upholding and maintaining the concepts so
infused into the Constitution. Introduction of those concepts into the Constitution by
Supreme Court is necessary and is justified. The Supreme Court was successful in its
attempt in construing the constitutional provisions in tune with the judicially introduced
concepts with the aid of the Tools and Techniques under the heads of Judicial Activism.
107. (2007) 1 SCC 728

108. Mr. Justice Benjamin Cardozo, LL.D, The Nature of the Judicial Process
CASE LAWS CITED:
S.No Case Law Journal & Pg No. Referred

. in Pg No.
1. Brzonkala v. Virginia Polytechnic Institute 169 F.3d 820 (4th 04

and State University Cir. 1999)
2. Lochner v. New York 198 U.S. 45 (1905). 04
3. New York v. United States 505 U.S. 144 (1992) 04
4. Southern Pacific Co. v. Jensen (1916) 244 US 205 05

at 221
5. All India Judges' Association v. Union of AIR 1993 SC 2493 09

India
6. Kariapper v Wijesinha (1968) AC 717 10
7. A.K.Gopalan v. State of Madras AIR 1951 SC 21 11, 14
8. Golak Nath v. State of Punjab AIR 1962 SC 723 11
9. Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461 11, 25
10. Marbury v. Madison (1803) 5 U.S. 11

(1Cranch) 137
11. A.D.M. Jabalpur v. Shukla AIR 1976 SC 1207 12
12. Menaka Gandhi v. Union of India AIR 1978 SC 597 12, 14
13. E.P.Royappa v. State of Tamil Nadu AIR 1974 SC 555 13
14. Anwar Ali Sarkar v. State of West Bengal AIR 1952 SC 75 13
15. Ram Krishna Dalmia v. Justice Tendolkar AIR 1958 SC 538 13
16. Food Corporation of India v. M/s. Seil Ltd. AIR 2008 SC 1101 13, 21

. in Pg No.
17. Suresh Jindal v. BSES Rajdhani Power Ltd. AIR 2008 SC 280 13
18. Indra Sawhney v. Union of India AIR 1993 SC 477 14
19. Vishaka v. State of Rajasthan AIR 1997 SC 3011 14,18, 29
20. Laxmikant Pandey v Union of India AIR 1987 SC 232 15
21. Gaurav Jain v Union of India AIR 1997 SC 3021 15
22. D.K.Basu v State of West Bengal AIR 1997 SC 610 15
23. Minerva Mills Ltd. v Union of India AIR 1980 SC 1789 16, 20
24. Waman Rao v Union of India AIR 1981 SC 271 16
25. Sanjeev Coke Manufacturing Co. v Bharat AIR 1983 SC 239 16

Coking Coal Ltd.
26. State of Bihar v. Bal Mukund Sah AIR 2000 SC 1296 16, 21
27. S. P. Gupta v. President of India AIR 1982 SC 149 16, 23, 27
28. Jagdambika Pratap Narain Singh v. Central AIR 1975 SC 1816 16, 23
Board of Direct Taxes
29. Bhatia International v. Bulk Trading S. A AIR 2002 SC 1432 16
30. Southern Pacific Co. v. Jensen (1916) 244 US 205 17

at 221 – Yr.1917
31. Bengal Immunity Company Limited v. State AIR 1955 SC 661 17

of Bihar
32. Mohd. Ahmed Khan v. Shah Bano Begum AIR 1985 S.C.945 18
And Ors
33. Mohinder Singh Gill v. Chief Election AIR 1978 S C 851 18, 24
Commissioner, New Delhi

. in Pg No.
34. Unni Krishnan & others v. State of A.P. (1973) 1 SCC 645 18
35. S. N. Mukherjee v. Union of India (1990) 4 SCC 594 18
36. Reliance Industries Ltd. v. Designated AIR 1990 SC 1984 18

Authority and Others
37. T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481 19
38. Bombay Dyeing Co. Ltd. v. Bombay Action AIR 2006 SC 1489 19
Group & Ors
39. M. Nagaraj v. Union of India AIR 2007 SC 71 19
40. Mithu v. State of Punjab AIR 1983 SC 473 20
41. Olga Tellis v. B.M.C. (1985) 3 SCC 545 20
42. Lalit Narayan Mishra Institute of Economic AIR 1988 SC 1136 20

Development and Social Change, Patna v.
State of Bihar
43. State of T.N. v. L. Abu Kavur Bai AIR 1984 SC 326 20
44. Suresh Jindal v. BSES Rajdhani Power Ltd. AIR 2008 SC 280 21
45. Peoples Union for Civil Liberties (PUCL) v. AIR 2003 SC 2363 21, 30
Union of India
46. Raj Deo Sharma v. State of Bihar AIR 1999 SC 3524 22
47. Hussainara Khatoon v. Home Secretary, AIR 1979 SC 1360 22, 25

State of Bihar
48. Municipal Corporation of Greater Bombay AIR 1991 SC 686 22

v. Indian Oil Corporation Ltd

. in Pg No.
49. Ramana Dayaram Shetty v. The AIR 1979 SC 1628 23

International Airport of India and others
50. Delhi Transport Corporation v. AIR 1991 SC 101 24

D.T.C.Mazdoor Congress
51. Union of India v. Raghubir Singh AIR 1989 SC 1933 24
52. Municipal Committee, Patiala v. Model AIR 2007 SC 2844 24

Town Residents Association
53. State of Gujarat v. Mirzapur Moti Kureshi AIR 2006 SC 212 24

Kassab Jamat
54. Upendra Baxi (Dr) v. State of U.P. (1983) 2 SCC 308 25
55. Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96 25
56. Sunil Batra v. Delhi Administration (1978) 4 SCC 494 26
57. Municipal Council, Ratlam v. Vardichand (1980) 4 SCC 162 26
58. Parmanand Katara v. Union of India (1989) 4 SCC 286 26
59. People’s Union for Democratic Rights v. AIR 1982 SC 1473 27

Union of India
60. Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161 28
61. Shriram Food & Fertilizer case (1986) 2 SCC 176 28
62. Bhim Singh v. State of Jammu and Kashmir (1985) 4 SCC 677 28
63. Nilabati Behera v. State of Orissa (1993) 2 SCC 746 28
64. D.K. Basu v. Union of India (1997) 1 SCC 416 28
65. M.C. Mehta v. Union of India (1987) 1 SCC 395 28

. in Pg No.
69. Council for Environment Legal Action v. (1996) 5 SCC 281 29

Union of India
LEXICANS REFERRED:
(1) P. Ramanatha Aiyar, Concise Law Dictionary, Wadhwa Nagpur, 3rd Edn. (Reprint
2008.)
(2) Wharton, Concise Law Dictionary, Universal Law Publishing Co., 15th Edn.
(2009)
(3) Black’s Law Dictionary
JOURNALS REFERRED:
(1) All India Reporter (A.I.R)

(2) Supreme Court Cases (SCC)
(3) Supreme Court Reporter (SCR)
(4) Madras Law Journal (MLJ)
STATUTES REFERRED:
(1) The Constitution of India

(2) The Indian Penal Code, 1860
(3) The Code of Criminal Procedure, 1973
BOOKS REFERRED:
1) Dr.G.P.Tripathi, Judicial Process by Central Law Publications 2013.

2) The origin and current meanings of “Judicial Activism” by Keenan D.Kmiec,
CLR – 2004, Scale - *1444
3) Arthur M. Schlesinger, Jr., The Supreme Court: 1947, Fortune, Jan. 1947, at 202,
208.
4) Justice A.M.Ahmadi, Judicial Process: Social Legitimacy and Institutional
Viability, (1996) 4 SCC (J) p.4
5) Benjamin N.Cardozo, The Nature of the Judicial Process (1927) p.91-93
6) Justice M.Jagannadha Rao: What is the Secret of Judicial Creativity and
Innovation?, Judiciary in India Constitutional Perspectives, Edited by
Prof.G.Manoher Rao, Dr.G.B.Reddy & V.Geeta Rao (Asia Law House,
Hyderabad 1st Edn., 2009)
7) Rajeev Dhavan: The Supreme Court of India - A Socio Legal Critique of its
juristic techniques (Bombay 1977p.421)
8) THE COMMON LAW, By Oliver Wendell Holmes, Jr. 1881
9) Prof (Dr.) A.Raghunadha Reddy: From Jurisprudence to Jurimetrics: A Critical
Evaluation of the Emerging Tools in the Judicial Process
10) H.L.A.Hart, The Concept of Law, (Oxford University Press, London, 1961) p.125
11) Mauro Cappelletti, The Judicial Process in Comparative Perspective, p.29
12) I.P.Massey, Administrative Law, (Eastern Book Company, Lucknow, 5th Edn,
2001) Pg. 261
13) A.Laxminath, Precedent in Indian Law, Second Edition, 2005, Pg.32
14) A. Cox - The Court and the Constitution
15) D.K. Srivastava, ‘Sexual harassment and violence against women in India:
Constitutional and legal perspectives’ in C. Raj Kumar & K. Chockalingam (eds.),
Human rights, Justice and Constitutional empowerment (OUP, 2007) at p. 486-

512
16) Judicial Process by Dr.G.P.Tripathi.
ARTICLES REFERRED:
1) Based on Justice Burton, Notes in “Memoriam - Harold Hitz Burton” 78 Harv. L.

Rev. 799, 799 (1965).
2) Albon P. Man, Jr., Mr. Justice Murphy and the Supreme Court, 36 Va. L. Rev.
889, 916 (1950).
3) Administrative Law: Judicial Review Denied Attorney General's Order for
Removal of Enemy Alien, 34 Cornell L.Q. 425, 429 (1949).
4) Louis H. Pollak, Review: The Supreme Court in the American System of
Government, 65 Yale L.J. 749, 752 n.11 (1956).
5) Anne S. Emanuel, Forming the Historic Fifth Circuit: The Eisenhower Years, 6
Tex. F. on C.L. & C.R. 233, 234 (2002).
6) Anil Divan, Judicial Activism and Democracy, Article published in editorial,
The Hindu, Chennai Edition dated April 2, 2007 p.12
7) Justice A.M.Ahmadi, Judicial Process: Social Legitimacy and Institutional
Viability, (1996) 4 SCC (J) P.5
8) S.P.Sathe, Judicial Activism: The Indian Experience, Journal of Indian School of
Political Economy (1998 & 1999), Journal of Law & Policy (2001, Vol.6:29),
P.51
9) Abhinav Chandrachud, Dialogic judicial activism in India, Article published in
editorial, The Hindu, Chennai edition dated July 18, 2009 P.10.
10) Justice K.G.Balakrishnan, Constitutional Control Praxis in the present day,
Lecture at Brazilian Supreme Court Pg.5
11) Annual Survey of Indian Law, 2002 at p.251, 254 & 256
12) Emily R. Atwood, ‘Preserving the Taj Mahal: India’s struggle to salvage cultural
icons in the wake of industrialisation’, 11 Penn State Environmental Law Review
101 (Winter 2002)
WEBSITES REFERRED:
(1) www.indiakanoon.org
(2) www.lawteacher.net
(3) www.lawyersclub.com
(4) www.ebc-india.com
(5) www.manupatra.co.in

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“Judicial Activism And Creativity Of The Supreme Court - The Tools And Techniques” by Sanjeyvignesh.

“Judicium Non debet esse illusorium, suum effectum habere debet”

In democratic countries the judiciary is given a place of great significance. The

Judicial Activism is considered as a philosophy of administering justice whereby

Judicial activism is a progressive judicial thinking, developing the law for

Infact, judicial activism is a sort of judicial creativity. It is an apparent power of

Ironically, as the term “Judicial Activism” is defined in a number of desperate,

The five core meanings of "judicial activism" are 2:

(1) Invalidation of the arguably constitutional actions of other branches,

1. Dr.G.P.Tripathi, Judicial Process by Central Law Publications 2013.

2.2. ORIGIN OF JUDICIAL ACTIVISM IN UNITED STATES:

2.3. ORIGIN OF JUDICIAL ACTIVISM IN INDIA:

The nature of judicial process in India has undergone a metamorphosis expanding

According to Hon’ble Mr.Justice A.M.Ahmadi, the former Chief Justice of India,

Judicial activism in India has not been a spontaneous development. It is the

It is pertinent to draw the attention to a parallel statement made by Benjamin

The genesis of Judicial Activism in India started as an off-spring of judicial

15. Benjamin N.Cardozo, The Nature of the Judicial Process (1927) p.91-93

3. JUDICIAL CREATIVITY AND PRECEDENTS:

3.1. STARE DECISIS AND RATIO DECIDENDI:

 The laws relating to trust, notice, fraud are creation of equity.

18. THE COMMON LAW, By Oliver Wendell Holmes, Jr. 1881

4. JUDICIAL ACTIVISM AND CREATIVITY OF THE SUPREME

4.1. ROLE OF ACTIVIST JUDGES IN JUDICIAL CREATIVITY

Cardozo while analyzing judicial process20 concludes that there is an element of

4.2. JUDICIAL CREATIVITY OF SUPREME COURT OF INDIA

A written constitution is not a self-executing document, and meanings of several

22. Benjamin N.Cardozo, The Nature of the Judicial Process (1927) p.92-94

26. AIR 1951 SC 21

liberties to be suspended during the Emergency would arguably have constituted

The Supreme Court of India developed a vast jurisprudence of interpretation of

32. AIR 1976 SC 1207

The judicial creativity in constitutional interpretation is not only confined to

The Supreme Court keeping in tune with the technological advancements in a

35. AIR 1974 SC 555

interpretation of the Constitutional provisions so that the dominant values may be

4.3. REFORMATIVE EFFECT OF JUDICIAL CREATIVITY BY SUPREME

40. Indra Sawhney v. Union of India AIR 1993 SC 477

The dynamics of judicial process has a new enforcement dimension which

The principle of harmonious construction in interpreting the relationship between

49. Minerva Mills Ltd. v Union of India, AIR 1980 SC 1789,

5. TOOLS AND TECHNIQUES OF CREATIVITY:

5.1. Creativity must be based on Principles

Law is a social engineering and an instrument of social change evolved by a

5.2. Creativity based on changing demands of society:

5.3. Creation of Right to Education

5.4. Creativity in open space

There is no law on social disorder called Sexual harassment of a woman at

Judge made Law

The Constitution Bench speaking through Chief Justice Pathak in Raghubir

5.5. Creativity in Interpretation of Constitution:

5.6. Creativity in basic structure of constitution

63. Annual Survey of Indian Law, 2002 at p.251, 254

5.7. Innovation of minimum rationality

The Creativity in interpreting Article 21 related its, heights when the doctrine of

5.8 Creation of various Rights

5.9. Balancing technique

In "Lalit Narayan Mishra Institute of Economic Development and Social

68. AIR 1980 SC 1789

5.10. Creative interpretation

5.11. Creative interpretation of Art. 14

5.12. Keep the law abreast of the times