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JUDICIAL ACTIVISM/CREATIVITY

(Institutional Liability of the Judiciary)

Judicial Activism, according to Krishna Iyer, J:


that, function of the court is not merely to interpret law but to make it by
imaginative sharing of the passion of the Constitution for social justice
1. The traditional view of the law making process is that Parliament makes the law through
acts of parliament and delegated legislation and judges merely apply it in court to the
cases presented before them. The main reason for this being that Members of Parliament
are democratically elected to make law. Whereas, judges are appointed to decide cases.
2. Coke, Hale and Blackstone believed that judges play no role in law making. On the
contrary other judges and jurists are of the opinion that judges do and must legislate.
According to Holme the judiciary can make law only 'interstitially' by filling up the gaps
within the law. Judicial creativity may be safely permissible, where citizens are suffering
due to lethargy of legislative inaction.
Doctrine of Precedent
3. Judges can and do make law through the operation of the doctrine of judicial precedent
and statutory interpretation. There are many areas of law which owe their existence to
decisions by judges. Eg. In the Criminal Law the judges played a major role in
developing the law on intention (Mensrea); and the relationship of foresight of
consequences to intention has also been formulated by judicial decisions.
The law of negligence in the law of tort is another area which has been developed and
refined by judicial decisions. Eg. The development of the neighbour principle in the case
Donoghue v Stevenson which is the leading case when trying to establish whether a duty
of care is owed.
4. The doctrine of Precedent is the process whereby judges should follow previous decisions
in similar cases to help maintain a degree of consistency in the way the law is applied in
similar cases. It is based on the maxim stare decisis which means stand by what has
been decided.

The Ratio Decidendi (reasons for deciding) is the binding part of a judges decision but
how judges interpret this can vary thus changing the impact it can have on future
decisions
The obiter dicta (things said by the way) though not binding can still be used as
persuasive precedent and so a judges influence can extend beyond that provided by the
rules of precedent.
Apart from the Obiter dicta there are other forms of persuasive precedent which although
are not binding can still have an impact on the decisions of judges e.g. decisions of courts
lower in the hierarchy.
5. The court hierarchy plays a big part in deciding which decisions have more weight.
Though the rules of precedent are applied rigidly and dont appear to allow scope for
creativity, there are ways in which the doctrine of precedent can be avoided thus
allowing judges to create new law.
Distinguishing- This is a method which can be used by a judge to avoid following a past
decision which he would otherwise have to follow. It means that the judge finds that the
material facts of the case he is deciding sufficiently different for him to draw a distinction
between the present case and the previous precedent. He is then not bound by the
previous case. This way of changing precedent can be used by a judge in at any level of
court.
Original Precedent The courts will on some occasions have to create new law when
deciding a case on an area of law for which no law exists. A court may come across an
original case that highlights a point of law that has not been discussed before. When an
original case comes before a judged he may have to interpret the statute and create new
precedent. In statutory interpretation the judges are being asked to decide the meanings of
an act of Parliament.
6. a. Some follow the Literal Rule which states the words must be given their plain,
ordinary, grammatical meaning. This can mean using the literal meaning of the words
even if the result is not sensible. But the judges recognize that on some occasions other
methods of interpreting the words were needed.
b. The golden rule is a modification of the literal rule. if the literal rule leads to an
absurd result or repugnant result, or even if there is some ambiguous wording in the act.
In the narrow application of the golden rule the courts may only choose between the
possible meanings of a word or phrase. [R v. Allen (1872) LR 1 CCR 367]- Bigamy
case). Or in the wider application of the golden rule it is used when the words only have
one clear meaning but that would lead to an absurd result. In these cases the courts will

use the rule to modify the wording of the statute (Re Sigsworth-inheriting money from
the mother he killed).
c. The mischief rule gives a judge much more discretion than the golden rule. When
using this rule the judge should look to see what the law was before the act was passed in
order to discover what gap or mischief the act was intended to cover. The court should
then interpret the act so the gap is covered (Smith v Hughes prostitutes soliciting from a
window)
d. A more recent form of statutory interpretation is the purposive approach. This goes
beyond the mischief approach as it is not just looking to see what the gap was in the law;
the judges actually decide what they believe parliament intended by the act. This gives
the judges the most opportunity to create law and perhaps even distort what parliament
intended. However when making statutes Parliament may base proposed statutes on
hypothetical situations and it is not possible for parliament to predict every possible
future situation that could arise. And so it may be necessary for a judge to interpret a
statute so it can be applied to those unforeseen situations.
Do Judges Make law?
7. Judges in using these methods of avoiding precedent or interpreting statutes are not
making law; they are merely developing the law which already exists. As Parliament is
the elected law making body in the country it would be undemocratic to allow judges to
have too great an influence in law making. For this reason precedent is subordinate to
statute law and delegated law and delegated legislation. Therefore if an act of
parliament is passed that contradicts a previously decided case, then the case decision
will cease to have effect.
8. Compared to parliament, judges can only create or change law when a suitable case is
taken to court. Even then they can only change the law on the point of law raised by the
case they are hearing. This limits their law making potential. Even when they do have an
opportunity to change the law, they will never have the choice to tackle all the problems
that are known to exist in the law. This wouldnt be a problem if parliament was more
active in reforming the law, but parliament has been very reluctant to change the law even
though there is great need for the law to be reformed.
In "A.K. Singh v. Uttarakhand Jan Morcha", AIR 1999 SUPREME COURT 2193,
the Supreme Court has imposed restriction on Judicial creativity saying that, no doubt,
role of the judiciary has been expanded to newer dimensions in recent past, but that is no
justification for using judicial power for imposing such unbearable burden on the State
which in turn would be compelled to extract money out of common man's coffers to meet
such massive financial burden. Suffice it to say that the above direction issued by the
High Court cannot stand judicial scrutiny and it is hereby set aside.

In "Indra Sawhney v. Union of India", AIR 1993 SUPREME COURT 477, the Court
has observed that we are very much alive to the fact that the issues with which we are
now facing are hypersensitive, highly explosive and extremely delicate. Therefore, the
permissible judicial creativity in tune with the Constitutional objectivity is essential to the
interpretation of the Constitutional provisions so that the dominant values may be
discovered and enforced.
Judicial Creativity and its Permissible Limits
9. It has always been a burning question (i) whether the judicial creativity is permissible
or inevitable and if so, up to what extend? And (ii) whether the judges are as
competent as the legislators to meet out the needs, requirements and aspirations of
the people?
10. Need. Judges have limited scope in law making. Need is felt on four counts. Firstly, if the
judges are considered sufficiently qualified to correctly decide upon the morality of the
people then there is no reason to consider them incompetent to gauge the needs of the
people in law making. Secondly, how much effort do the legislators actually expend in
understanding the true needs of the people and the social implications of the law. It is not
unknown that now a days bureaucrats prepare draft of the proposed legislation and
without any serious discussion in the house, same are passed as usual. Thirdly, judges
rarely create a law from scratch; their legislative role is largely restricted to filling up the
gaps in the law. Fourthly, the liability/responsibility/duty of the SC/ judiciary is
increased for judicial intervention at proper time in the case of urgency ie Institutional
Liability of the Judiciary.
Creativity must be based on Principles
11. Judges are not competent to legislate, because by virtue of the separation of powers, this
task is assigned to the legislators. The judge must restrict his creativity only to the space
left by the legislators and within the boundaries and parameter fixed by the Constitution.
Further, the perception of the Judge should not be subjective depending upon his social
philosophy and conception of judicial function. Judge can make law but he is not wholly
free to make law as observed by Mr. Justice Cardozo of the U.S. Supreme Court:-"The Judge is not to innovate at pleasure. He is not a knight-errant roaming at will in
pursuit of his own ideal of beauty or of goodness." - Cardozo (The Nature of the Judicial
Process, page 141). Further he went on to say that: -- He is to draw his inspiration from
settled principles. He is not to yield to spasmodic sentiment, to vague and unregulated
benevolence. He is to exercise a discretion informed by tradition, methodized by analogy,
disciplined by system, and subordinated to "promotional necessity of order in the social
life."

Changing demands of Society


12. a. In Bengal Immunity Company Limited v. State of Bihar, (AIR 1955 SC 661), the
Supreme Court has observed that it was not bound by its earlier judgments and possessed
the freedom to overrule its judgments when it thought fit to do so to keep pace with the
needs of changing times. The acceptance of this principle ensured the preservation and
legitimation provided to the doctrine of binding precedent, and therefore, certainty and
finality in the law, while permitting necessary scope for judicial creativity and
adaptability of the law to the changing demands of society.
b. Shah Bano case (Mohd. Ahmad Khan V. Shah Bano Begum AIR 1985 SC 945) is
an example of the tools and techniques of judicial creativity and precedent, in which it is
interpreted that every woman has right to live with human dignity, irrespective of her
cast.
c. In "Mohinder Singh Gill v. Chief Election Commissioner, New Delhi", AIR 1978 S
C 851, 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.
d. Creation of Right to Education. In case of Unni Krishnan & others V. State of A.P.
(1973) 1 SCC 645, 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.
e. Law created for betterment of people. 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 peoples quality of life. Therefore the Creativity
of the Supreme Court and High Courts shall always remain as a high benchmark of
Judicial Creativity in India.
(i) Creativity in open space. There is no law on social disorder called Sexual
harassment of a woman at work place. The Apex Court in Vishaka V. State of
Rajasthan (AIR 1977 SC 3011), created law of the land observing that the right
to be free from sexual harassment is a fundamental right under Articles 14, 15 &
21 of the Constitution. 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.

(ii) Good Governance. There were no rules or regulations or orders regarding


functioning of the CBI. The SC in Vineet Narian V. UoI (AIR 1998 SC 889)
formulated and laid down the guideline for good governance of the CBI.
(iii) Against abuse of power in the field of politics. In SR Bommai v. UoI, AIR
1994 Sc 1918, the SC discussed thread bare the provisions of Art 356.
What would be, if not permitted?
13.

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. (Annual
Survey of Indian Law, 2002 at p.251, 254).
Articles 141 and 142 are couched in such wide and elastic terms as to enable the
Supreme Court to formulate legal doctrines to meet the ends of justice. The only
limitation therein is reason, restraint and injustice. These Articles are designedly made
comprehensive to enable the Supreme Court to declare law and to give such direction or
pass such order as is necessary to do complete justice. This is a powerful instrument of
justice placed in the hands of the highest judiciary of our country. The court has evolved
tools and techniques of compensatory jurisprudence and granted various safeguards and
reliefs innovating favorable principles.
In Bombay Dyening Co. Ltd. V. Bombay Action Group & Ors , AIR 2006 SC 1489 ,
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 environment includes right to clear water and 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.
Law must keep pace with society to retain its relevance; therefore, judicial creativity is
necessary for meeting with the ends of justice.

Conclusion

14. Judicial Activism fosters social action groups or individuals on behalf of powerless
groups. Legitimacy of judicial activism increased when courts started entertaining PIL
against lawlessness. Judiciary becomes strong only when people repose faith in it. Such
faith of the people constitutes the legitimacy of the courts and of Judicial Activism.
15. Judicial Activism is not an aberration but an essential aspect of the dynamics of a

constitutional court. It does not mean governance by judiciary; but entails functioning
within the limits of the judicial process. Judicial Activism has to be distinguished from
judicial populism and judicial excessivism. If judicial activism goes beyond a point then
it is against the principles of Judicial restraint.

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