JUDICIAL CREATIVITY

INTRODUCTION:

Judicial creativity in India has been a very integral part of the justice system and has been
a cornerstone is providing a modern outlook to the judiciary. Judges have been not only
applying the law to the letter but also moulding it to suit the present time and situation.
Judicial creativity is very important to provide true justice to the citizens of the country, as
many times the legislation is not clear on certain aspects of the law or is silent on them. It is
in these scenarios that the creativity of the judge comes into the picture, the judge can apply
the law in a way which is truly just and provides a better resolution to the victims. This
becomes even more important in the case of The Constitution as it is not only the law of the
land but a 70-year-old document at this point.

Explanation of the concept

Judicial creativity can be described as the fluid part of the law, as a layman we understand
law to be the rules and regulations made by the government. The problem comes when enough
time has passed that those rules seem archaic and now do not seem relevant, it is here that the
judicial creativity comes into the picture. Judges using their wisdom and innate sense of justice
give meaning to the letter of the law that is relevant to the time and more importantly is relevant
to the facts of the case.

SKIN TO SKIN CONTACT

Skin-to-skin contact (SSC), also called Kangaroo care is a technique used in newborn care where
babies are kept chest-to-chest and skin-to-skin with a parent, mostly with the mothers. There is
evidence that it is effective in reducing infant mortality, the risk of hospital-acquired infection,
increasing weight gain, increasing rates of breastfeeding, and other advantages for both mother
and baby.

Attorney General for India v. Satish

This term describing pure intimacy between a parent and their child got a whole different
meaning when it found a mention in one of the controversial judgements of Bombay High Court.
In January 2021, the Nagpur Bench of the Bombay High Court had acquitted an accused
observing that groping of the breasts of a minor girl over her clothes will not amount to the
offence of 'sexual assault' under Section 8 of POCSO. Holding that there should be 'skin to skin'
contact to attract the offence under Section 8 POCSO, the High Court instead held that it
amounted to molestation, an offence punishable lesser under Section 354 IPC.

In the case, as per the FIR, the accused took the young girl to his house on the pretext of giving
her a guava, pressed her breast and attempted to remove her salwar. The mother of the girl
reached there and saved her daughter. 

Supreme Court, quashed a Bombay High Court Judgement which held that 'skin-to-skin' contact

is necessary for the offence of sexual assault to be made out under the Protection of Children
from Sexual Offences(POCSO) Act.

The court observed that restricting the meaning of expression 'touch' and 'physical contact' under
Section 7 of POCSO to "skin to skin contact" would not only be a narrow and pedantic
interpretation but will also lead to the absurd interpretation of the provision.

The most important ingredient for constituting the offence of sexual assault under Section 7 of
the Act is the “sexual intent” and not the “skin-to-skin” contact with the child”. “The very object
of enacting the Pocso Act is to protect the children from sexual abuse, and if such a narrow
interpretation is accepted, it would lead to a very detrimental situation, frustrating the very object
of the Act,” the bench said.

Kesavananda Bharati v State of Kerala

Facts:

o He challenged the Kerala land reforms legislation in 1970, which imposed restrictions

on the management of religious property.
o The case was challenged under Article 26, concerning the right to manage religiously
owned property without government interference.
o A 13-judge Bench was set up by the Supreme Court, the biggest so far, to hear the case.
 o Question underlying the case also included: Was the power of Parliament to amend the
Constitution unlimited? In other words, could Parliament alter, amend, abrogate any
part of the Constitution even to the extent of taking away all fundamental rights?
Judgement:
o The landmark judgement was delivered on 24th April 1973 by a thin majority of
7:6 wherein the majority held that any provision of the Indian Constitution can be
amended by the Parliament in order to fulfill its socio-economic obligations that
were guaranteed to the citizens as given in the Preamble, provided that such
amendment did not change the Constitution’s basic structure.
o The minority, however, in their dissenting opinion, were wary of giving the
Parliament unlimited amending power.
o The court held that the 24th Constitutional Amendment was entirely valid. But it
found the second part of the 25th Constitutional Amendment to be ultra vires.
o The Supreme Court declared the Article 31C as unconstitutional and invalid on the
ground that judicial review is basic structure and hence cannot be taken away.
o Despite the ruling that Parliament cannot breach fundamental rights, the court
upheld the amendment that removed the fundamental right to property.
o The court ruled that in spirit, the amendment would not violate the “basic structure”
of the Constitution.
I.R. Coelho v State of Tamil Nadu
FACTS:

1. This is also known as the ninth schedule case, the court upheld the judgement delivered by 9
judges’ bench on the validity of the doctrine of basic structure in the Kesavananda Bharati
case.
2. Court also upheld the power of the judiciary to review the law which violates the doctrine of
the basic structure of the constitution. Thus, in this way, this case brings an end to the entire
dispute regarding the validity and implementation of the above-said doctrine.
3. This case arises because Supreme Court struck down the reserved land in the Janman Estates
in the state of Tamil Nadu as per Gudalur Estates (Abolition and Conversion into Ryotwari)
Act, 1969 in Balmadies Plantations Ltd vs. State of Tamil Nadu because this was not found
to be an agrarian reform protected under Article 31-A of the Indian Constitution.
4. Therefore, 9 judges’ bench was asked to review the Waman Rao Judgement and determine if
it needs to be overruled.

ISSUES FRAMED:

1. Is the 9th schedule allowed to be protected from the judicial review of the Supreme Court?
2. Whether the basic structure test include judicial review of the laws of the Ninth Schedule on
the Fundamental Rights test?
JUDGEMENT:

Court held that it was not possible for the legislature to escape the scrutiny of the doctrine of basic
structure. This doctrine is an essence of the Indian Constitution and any act, rule and regulation that
violates its essence cannot be allowed in this way. If any law in the 9th schedule were inconsistent
with Part III, they are liable to be struck down by the court. Therefore, the court has the power to
review schedule 9 w.e.f. April 24th, 1973.