Introduction

Lord Denning (Statement Analysis)

The statement made by Lord Denning comfortably summarises the premise or the bedrock
upon which the principles of Judicial Creativity lies. From this observation, we can deduce
some basic principles of Judicial Creativity that have to a great extent stood the test of time.

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.”

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.” 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.” 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. 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,  and the activist role of the
Indian judiciary was clearly evident in Golak Nath v. State of Punjab.
The high-water mark of judicial activism in India has been reached by the Court in 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 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. 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 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. The judiciary, in the common law system, plays an innovative role
by articulating, devising and at times breaking down juristic principles from within the
community's thoughts and opinions, and by adapting legal concepts to changing times, thus
making laws more flexible and adding the necessary posterity in their exercise in a country 1.
An important example can be taken behind the legislative intention concerning Article 17 of
the Constitution of India, wherein other Articles from Part III confer rights, this Article
provides for the declaration of untouchability as an offense. The intention of the maker of this
provision, Dr B.R. Ambedkar is that his struggle to uplift the untouchables and his life’s
endeavour is reflected in the section. This judicial interpretation and creativity must be done
to supplement the word of the statute and not replace its meaning, as was conveyed when he
stated that “he must supplement the written word to give ‘force and life’ to the intention of
the legislature.”.

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Here, Lord Denning also draws an analogy to supplement his point by stating that “A judge
must not alter the material of which it is woven, but he can and should iron out the creases”.
Meaning that the judge must not alter the intention of the legislature itself, indicating towards
its permanence in meaning, as the intention of the lawmakers, when determined in the context
of its time and circumstances surrounding its implementation, shall remain the same where
the judge must make the meaning known through judicial creativity in the form of
interpretation.

Oliver Wendell Holmes (Statement Analysis)

Oliver Wendell Holmes, in his observation, has interpreted a limitation towards judicial
creativity. He, like Lord Denning, recognises the need and the importance of judicial
creativity and thus states that “judges do and must legislate”. Later, Oliver Wendell Holmes
goes on to state that the scope of activity with which the judges must exercise judicial
creativity is limited, wherein, to compare the same, he has used analogies from the sphere of
Chemistry. He states that “they can do it only interstitially; they are confined from molar to
molecular actions” when this can be connoted to mean that the interstitial places between the
atoms (interstitial space) are used as a simile to describe the extent to which judges may
diverge from the intention of the legislature. In the latter half of the sentence, where he draws
a comparison to the sizes of molars and molecules, he meant that the scope of judicial
creativity is not to expand the scope of a legal provision but to clarify it. Bringing the point to
light, according to Holmes, would justify a cautious use of judicial creativity, wherein, the
fact must be understood so that judicial law can be strengthened by minimising it.

Benjamin Cardozo (Statement Analysis)

In the mentioned observation, Benjamin Cardozo has focussed primarily on the limitations of
judicial creativity. He too, like Holmes and Denning believes that there must be specific
limitations on the exercise of judicial creativity by the judges, that judges have to be bound
by a certain set of established principles to interpret a statute, here, in this case being the
intention of the legislature and that the judge is not a “Knight-Errant” and that his ideals of
justice are not of relevance in comparison to the established principles.
A judge’s work is not to draw new interpretations of the legislature’s intention but to
establish newer angles from which it can be analysed. However, where he adds to the
principles of judicial creativity is in his observation is when he states that the judge should
not be guided by ‘spasmodic sentiments’ and not give in to the temptation of setting an
irregular precedent but be dictated by the existing norms.

Critical Appraisal

While the observations of the above jurists are visionary and ground-breaking, they are in no
way absolute. As regards the second observation by Oliver Wendell Holmes, the scope for
judicial creativity has been criminally throttled in my opinion, contrasting to his realist
ideology. The Supreme Court and High Courts' ingenuity is held up as a high bar for judicial
innovation in India. However, merely interpreting the intention of the legislature is not
enough as the process of making laws in the legislature, has often been preceded by a
judicially pronounced case-law made by the judge, for example, in the case of Vishaka v.
State of Rajasthan, the guidelines to prevent sexual harassment at the workplace were
translated into law, emphasizing on the power of the law-making power of the judges through
judicial precedent and activism. Each case that comes before the judge has its unique aspects
that necessitate the use of a fresh mind and ability. The judge must be a talented artist at all
times. As a result, his work necessitates intense thought and the demonstration of talent and
imagination. When a responsible legislative body fails to act legislatively to pass a required
statute to satisfy public needs, the courts step in to fill the blank left by the legislature's
inaction by enacting judicial laws.

The intention of the legislature, as was held by all three of the above observations was the
paramount guiding force behind the exercise of judicial creativity, however, in terms of the
Constitution, another important aspect to consider is the exercise of fundamental rights of
citizens. In India, the exercise of judicial creativity has been given higher leverage in terms of
constitutional interpretation as compared to statutory interpretation. This can be observed in
several case laws such as Kesavananda Bharti v. Union of India, the Supreme Court has gone
above and beyond to protect the fundamental rights of citizens, even to the extent of
overriding legislative authority. The judiciary is also responsible, through the power of
judicial creativity, to create new laws as the protector of fundamental rights.
In Olga Tellis v. B.M.C., the right to livelihood was included within the ambit of Article 21
of the Constitution, which was an effective and rational way of guaranteeing justice and the
exercise of the right by citizens. In despotic regimes, the intention of the legislature cannot be
described as being bona fide every time, in such a circumstance, it is the duty of the judiciary
that fundamental rights are not violated by the government by providing judge-made laws in
the form of precedents.

While coming to Cardozo’s statement of adhering to existing principles, the same has not
been practicable in every sense. Judicial activism is an important aspect towards the
development of civil and political liberties in India, which has constantly required overruling
existing precedents, which can be reflective of the judge’s ideologies and value systems of its
own time. This was seen especially in the case of A.D.M. Jabalpur, wherein the judiciary was
complicit in the suspension of civil liberties during the emergency period, setting a bad
precedent, it has been the duty of the judiciary to learn from its mistakes and improve upon
them and not blindly follow them, as was held by the Supreme Court in Bengal Immunity
Company Limited v. State of Bihar, that it was not bound by its previous judgments and that
it had the authority to overrule them as it saw fit to do so to keep up with changing times.
Thus, ensuring the evolution of the law with the society.