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THE TECHNIQUES OF JUDICIAL CREATIVITY
Introduction
Positive outcome of the judicial creativity is to innovation of hidden Constitutional rights for protection of citizens from State actions. It has always been a burning question as to whether the judicial creativity is permissible or inevitable and if so, up to what extend?
Judicial Creativity and its Permissible Limits
Coke, Hale and Blackstone have 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 legislates. 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.
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.
According to Blackstone , the duty of the court is not to “pronounce a new law but to maintain and expound the old one” and that “if it is to be found that the former decision is manifestly unjust or absurd, it is declared, not that such sentence was bad law, but that it was not the law”. [Vide his Commentaries pp. 69-70. ]
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.
Often a question arose for discussion that – Whether the judges are as competent as the legislators to meet out the needs, requirements and aspirations of the people? Judges have limited scope in law making. In this respect, three things need to be kept in mind. 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 prepares 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.
Several suggestions have been made to fix the limits of judicial creativity. 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.
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.” – 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.” According to Cardozo “the great generalities of the Constitution”……and ”the content of which has been and continues to be supplied by courts from time to time.” He had further opined that constitutional provisions which “have a content and a significance that vary from age to age”. Benjamin Cardozo, opined that:—-
“A Constitution states or ought to state not rules for the passing hour but the principles for an expanding future”.
(see Cardozo’s ‘The Nature of the Judicial Process’).
Again, Justice Cardozo said that though the powers of interpretation of the Courts are narrow, yet they can fill up gaps. He said :–
“No doubt, the limits for the judge are narrower. He legislates only between gaps. He fill the open spaces in the law.”
(B. Cargozo, The Nature of the Judicial Process (1921) at p. 131).
Judges have power and right to make law. In this context the following words of Justice Holmes are apposite. He said :–
“I recognize without hesitation that Judges do and must legislate, but they do so only interstitially; they are confined from molar to molecular motion” (1917) (Southern Pacific Co. v. Jensen, (1916) 244 US 205 at 221).
Law is a social engineering and an instrument of social change evolved by a gradual and continuous process. As Banjamin 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.
Changing demands of society.
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.
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.
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.
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.
Law created for betterment of people
Any one 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. Therefore the Creativity of the Supreme Court and High Courts shall always remain as a high benchmark of Judicial Creativity in India. 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 Rajsthan (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. 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. [See S. N. Mukherjee v. Union of India, (1990) 4 SCC 594 and 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. (Annual Survey of Indian Law, 2002 at p.251, 254).
In T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481, 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” (Annual Survey of Indian Law, 2002 at p.256).
Articles 141 of the Constitution
Articles 141 and 142 to point out that they 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 favourable principles.
Interpretation of Constitution :
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 environmental including right be clear water, air rater 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.
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”, AIR 2007 SUPREME COURT 71, the Apex 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. Some of these principles may be so important and fundamental, as to qualify as “essential features” or part of the “basic structure” of the Constitution, that is to say, they are not open to amendment.
In “Minerva Mills Ltd. v. Union of India”, AIR 1980 SUPREME COURT 1789, 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.
Expanded Scope of Articles 14, 19, 20, 21.
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. The Scope of Articles 14, 19 and 21 of the constitution was expanded with brooding omni-presence of Judicial Process.
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 ( AIR 1983 SC 473), when S. 303 of the I.P.C., was struck down on the ground that it violates Article 21.
Creation of various Rights
In a large number of cases the Supreme Court during the course of judicial process adopted creative interpretation & recognized various rights as under:–
Right to livelihood, Right to go abroad, Right to privacy, Right against solitary confinement, Right to shelter, Right to legal aid & speedy Trial, Right against Bar fetters, Right against handcuffing, Right against delayed execution, Right against custodial Violence, Right to doctor’s assistance, Right to water, Right to food, Right to clean air and healthy environment, Right to pollution free water. Right to free education up to the age of 14 years, and Right of every child to full development, Right against illegal arrest, are all indeed judicial creativity and the result of the creative interpretation.
In olga Tellis V. B.M.C. (1985) 3 SCC 545, – 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.
Prisoners Rights
The creative interpretation of the Apex Court went on to held that even prisoner has right to life and liberty subject to reasonable prison law, which cannot be taken away arbitrarily by the jail authorities. A prisoner has right to food, right to remission, and right to humanitarian conditions in the prisons. All these right are innovated by the Apex Court while interpreting Article 21.
Opinion of CJI in Judges’ Appointment
In “Supreme Court Advocates-on-Record Association v. Union of India”, AIR 1994 SUPREME COURT 268, the Apex Court has held that the opinion of the Chief Justice of India (CJI) has primacy in the matter of appointment of the High Court and the Supreme Court, Judges. There is no such provision in the Constitution, but it is only a creative technique of the Judges mind.
Balancing technique
In “Lalit Narayan Mishra Institute of Economic Development and Social Change, Patna v. State of Bihar”, AIR 1988 S C 1136, 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”, AIR 1984 SUPREME COURT 326, 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 the point that although the directive principles are not enforceable yet the Court should make a real attempt at harmonizing and reconciling the directive principles and the fundamental rights. Reading fundamental rights in the Directive Principles is a technique of judicial creativity.
Creative interpretation
In “Suresh Jindal v. BSES Rajdhani Power Ltd.”, AIR 2008 SUPREME COURT 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.
Creative interpretation of Art. 14
In “Food Corporation of India v. M/s. Seil Ltd.”, AIR 2008 SUPREME COURT 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.
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. (Precedent in Indian Law, A. Laxminath, Second Edition 2005, p. 32).
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. (Precedent in Indian Law, A. Laxminath, Second Edition 2005, p. 68).
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”, AIR 2003 SUPREME COURT 2363, 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.
PIL, A New Creativity
In “BALCO Employees Union (Regd.) v. Union of India”, AIR 2002 SUPREME COURT 350, the Apex Court has cautioned that there are some of the dangers in public interest litigation which the Court has to be careful to avoid. It is also necessary for the Court to bear in mind that there is a vital distinction between locus standi and justifiability and it is not every default on the part of the State or a public authority that is justiciable. 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. It is a fascinating exercise for the Court to deal with public interest litigation because it is a new jurisprudence which the Court is evolving a jurisprudence which demands judicial statesmanship and high creative ability.
Socio-economic justice
In “State of Bihar v. Bal Mukund Sah”, AIR 2000 SUPREME COURT 1296, the Supreme Court has emphasized its creative role in achieving the goal of socio-economic justice. 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”.
The judiciary under our constitutional scheme has to take up a positive and creative function in securing socio-economic justice to the people.
Continuity is essential to law as a whole, but the continuity must be creative. [ A. Cox – The Court and the Constitution. ]
Creativity in special situations
In “Raj Deo Sharma v. State of Bihar”, AIR 1999 SUPREME COURT 3524 , the 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.”
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, (AIR 1979 SC 1360), 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.
Judge is a creative artist
In “All India Judges’ Association v. Union of India”, AIR 1993 SUPREME COURT 2493, the Supreme Court has rightly observed that 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.
Creativity needed to harmonise the law
In “Municipal Corporation of Greater Bombay v. Indian Oil Corporation Ltd. AIR1991 SUPREME COURT 686, has held that keeping in view the social, economic and political goal setting in which it is intended to operate , Judge is called upon the perform a creative function. He has to inject flesh and blood in the dry skeleton provided by the legislature and by a process of creative interpretation, invest it with a meaning which will harmonise the law with the prevailing concepts and values and make it an effective instrument for delivering justice.
Time has come to play creative role
In “Delhi Transport Corporation v. D. T. C. Mazdoor Congress”, AIR 1991 S C 101, SABYASACHI MUKHARJI, former CJI, said that I am definitely of the opinion that time has come for the judicial interpretation to play far more active, creative and purposeful role in deciding what is according to law. I believe that we must do away with ‘the childish fiction’ that law is not made by the judiciary. Austin in his Jurisprudence at page65, 4th Edn. has described the Blackstone’s principle of finding the law as ‘the childish fiction’. Chief Justice K. Subba Rao in L. C. Golak Nath v. State of Punjab (AIR 1967 SC 1643 at p. 1667) has referred to these observations. The Supreme Court under Art. 141 of the Constitution is enjoined to declare law. The expression ‘declared’ is wider than the words ‘found or made’. To declare is to announce opinion. Indeed, the latter involves the process, while the former expresses result. Interpretation, ascertainment and evolution, are parts of the process, while that interpreted, ascertained or evolved is declared as law. The law declared by the Supreme Court is the law of the land. To deny this power to the Supreme Court on the basis of some outmoded theory that the Court only finds law but does not make it, is to make ineffective the powerful instrument of justice placed in the hands of the highest judiciary of this country. I would, therefore, plead for a more active and creative role for the Courts in declaring what the law is.
Great artistry and skill is needed to fill in the gaps because Acts of Parliament were not drafted with divine prescience and perfect clarity. It is not possible for the legislators to foresee the manifold sets of facts and controversies which may arise while giving effect to a particular provision. Indeed, the legislators do not deal with the specific controversies. When conflicting interests arise or defect appears from the language of the statute, the Court by consideration of the legislative intent must supplement the written word with ‘force and life’. See, the observation of Lord Denning in Seaford Estate Ltd. v. Asher, (1949) 2 KB 481 at p. 498.
In Sher Singh v. State of Punjab (1983) 2 SCR 582 the Apex Court explained that “The horizons of Article 21 are ever widening and the final word on its conspectus shall never have been said. So long as life lasts, so long shall it be the duty and endeavour of this Court to give to the provisions of our Constitution a meaning which will prevent human suffering and degradation. Therefore, Article 21 is as much relevant at the stage of execution of the death sentence as it is in the interregnum between the imposition of that sentence and its execution. The essence of the matter is that all procedure no matter the stage, must be fair, just and reasonable.” Article 21 thus received a creative connotation.
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, (AIR 1979 SC 1628) the Apex Court brought public sector corporations within the scope and ambit of Art. 12 and subjected them to the discipline of fundamental rights.
Creativity for the human rights
In “M.C. Mehta v. Union of India”, AIR1987 SUPREME COURT 1086, it was held that, through creative interpretation and bold innovation of the court, the human rights jurisprudence has been developed in our country to a remarkable extent and this forward march of the human rights movement cannot be allowed to be halted by unfounded apprehensions expressed by status quoists.
Creativity is must in developing countries
The Supreme Court in Jagdambika Pratap Narain Singh v. Central Board of Direct Taxes, (AIR 1975 SC 1816), 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”,AIR 1982 SUPREME COURT 149, 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.
Encroachment in the field of other wings
The Supreme Court further cautioned itself in the S. P Gupta case [1] 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 Krishna Iyer goes on to say in his inimitable style :—
“Justice Cardozo approvingly quoted President T. Roosevelt’s stress on the social philosophy of the Judges, which shakes and shapes the course of a nation and, therefore, the choice of Judges for the higher Courts which makes and declares the law of the land, must be in tune with the social philosophy of the Constitution. Not mastery of the law alone, but social vision and creative craftsmanship are important inputs in successful justicing.”[1] As quoted in “S. P. Gupta v. President of India”, AIR 1982 S C 149.
Maneka Gandhi’s case
Creativity in Maneka Gandhi’s case is clearly visible when the Supreme Court has took the view that Article 21 affords protection not only against executive action but also against legislation and any law which deprives a person of his life or personal liberty would be invalid unless it prescribes a procedure for such deprivation which is reasonable, fair and just. The concept of reasonableness, it was held, runs through the entire fabric of the Constitution and it is not enough for the law merely to provide some semblance of a procedure but the procedure, for depriving a person of his life or personal liberty must be reasonable, fair and just.[1] “Maneka Gandhi v. Union of India”, AIR 1978 S C 597.
Departure from conventional principle.
In “Bhatia International v. Bulk Trading S. A.”, AIR 2002 SUPREME COURT 1432, 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 .
Whether Creativity by the Court is permissible?
In “P. Ramachandra Rao v. State of Karnataka”, AIR 2002 S C 1856, The primary function of judiciary is to interpret the law. It may lay down principles, guidelines and exhibit creativity in the field left open and unoccupied by Legislation. Patrick Devlin in ”The Judge” (1979) refers to the role of the Judge as lawmaker and states that there is no doubt that historically judges did make law, at least in the sense for formulating it.
To fill in the gaps in the legislation.
“legislating” exactly in the way in which a Legislature legislates and he observes by reference to a few cases that the guidelines laid down by court, at times, cross the border of judicial law making in the realist sense and trench upon legislating like a Legislature. “Directions are either issued to fill in the gaps in the legislation or to provide for matters that have not been provided by any legislation. Statute has to be interpreted as a whole and with reference to specific context in question. If it appears to the Court any gap in the legislation, unmerited prejudice and hardship have been caused to the to the citizens, the Court may have to depend on its own creativity so that hardship is not meted out to the people.
Judicial Excessivism
“In a strict sense these are instances of judicial excessivism they fly in the face of the doctrine of separation of powers. The doctrine of separation of powers envisages that the legislature should make law, the executive should execute it, and the judiciary should settle disputes in accordance with the existing law.
Transgressing Borders
Professor S.P. Sathe, in his work (Year 2002) “Judicial Activism in India – Transgressing Borders and Enforcing Limits”, touches the topic “Directions: A New Form of Judicial Legislation”, Evaluating legitimacy of judicial activism, the learned author has cautioned against Courts not to cross the border in the name of creativity . The Court has taken over the legislative function not in the traditional interstitial sense but in an overt manner and has justified it as being an essential component of its role as a constitutional court”, (p.242).
Imposing unbearable Financial Burden.
In “A.K. Singh v. Uttarakhand Jan Morcha”, AIR 1999 SUPREME COURT 2193, the Apex Court has observed that Judicial creativity has, no doubt, expanded to newer dimensions in recent past, but the Apex Court has Cautioned the High Courts that there 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.
Values of the Constitution may be discovered.
A Constitution Bench in “Indra Sawhney v. Union of India”,
AIR 1993 SUPREME COURT 477, 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.
Purpose behind Judicial Creativity.
In “Delhi Transport Corporation v. D. T. C. Mazdoor Congress”, AIR 1991 SUPREME COURT 101, 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.
Demands of Changing Society.
In “Union of India v. Raghubir Singh”, AIR 1989 SUPREME COURT 1933, 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” , AIR 1978 SUPREME COURT 851, 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.
Usurpation of Legislative Functions.
In “Municipal Committee, Patiala v. Model Town Residents Assocn.”, AIR 2007 SUPREME COURT 2844, 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.
Reading Fundamental Rights into Directive Principles.
In “State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat” , AIR 2006 SUPREME COURT 212, 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 . 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 S C 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.
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. [Holmes, The Common Law, ]
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.
On the basis of the above discussion, it is clear that judicial creativity is not only necessary but also inevitable. The only thing is to keep in mind that Judicial creativity is permissible only in the area left open by the legislature and where it is necessary to fill up the gap in the statute so as to achieve real intent of it. If law is available on the subject, then, judicial creativity must be restricted to “interstitial” creation of law, otherwise it would become judicial excess in the domain of legislature. A Judge can discharge his creative role only when he has acquired sufficient knowledge, tools and techniques and interpretive skill of judicial creativity.
Within England, Parliament is the sole law making body. It is sovereign. The question then, as to whether judges should make the law is inevitably deep and extensive. According to William Blackstone's declaration theory, judges no not create the law, they merely discover and declare the law as its always been. To quote Blackstone himself, 'it has always been an established rule to abide by former precedent where the same points come again in litigation a well as to keep the scale of justice even and steady and not liable to waver with every new judges opinion.
' This traditional view has been adopted by many judges who, on the grounds of policy, do not believed that they, an unelected body, should be the creators of law. Lord Salmon in R v Abbott is quoted having said 'Judges have no power to create new criminal offences, nor in their Lordships' opinion, for the reason already stated, have they the power to invent a new defence to murder'. Lord Slynn argued, in the case of Brown, that law making in sensitive areas of public policy should be left to Parliament. However, as the R v R case illustrates this is not always reflected in reality.
In this case the contemporary factors to consider were that men and women are now viewed as equal in partnership within a marriage. Therefore, it cannot be accepted that a man should dictate to his lawfully married wife, when they should have intercourse. The right of a woman's autonomy over her own body was weighed against the principle of stare decisis that had stood for more than two hundred years. Lord Chief Justice Cane stated 'this is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it'.
The House of Lords held that a husband no longer had the right to enforce rights to sex and that therefore, the change in this area of law was necessary. Additionally, judges can also exercise judicial creativity by expanding or developing already existing law. For example, in Ireland the offence of assault was held to include mental harm and more recently there has been a ruling in the case of Dica 2005 that the purposeful transfer of HIV constitutes GBH. Judges can be legally creative through numerous ways, including the use of Statutory Interpretation and Precedent.
The system of precedent is based on the Latin maxim 'stare decisis et non quieta movere' which mean to stand by previous decisions and not to unsettle the established. This then translates into the simple principle that when a ruling is made in relation to particular case, if the facts of a later cases are similar, the principle of the previous case should again be used. The reasoning for the doctrine of precedent is to ensure uniformity, consistency and certainty thus guarantying justice for all and there are three types, original, binding and persuasive.
In order for precedent to be exercised correctly the hierarchy of the English courts must also be taken into consideration. It is the lower courts who must follow the decisions made by a higher court within the system. The House of Lords, the highest of the courts within the U. K (only bound by the European Court of Justice), previously regarded itself bound by its own previous decisions and rulings, as established in London Tramways v London County Council. However under the 1966 Practice Statement, the House of Lords can now depart from its previous decisions where it appears 'right to do so'.
'Their Lordships recognises that the rigid adherence to precedent may lead to injustice in particular cases and also unduly restrict the proper development of law'. The first time the House of Lords departed from a precedent set by their own court was in the Herrington case when the Addie v Dumbreck decision was overruled. The House of Lords held that the social and physical conditions had changed therefore the law should change also. This then signifies that although the law may appear rigid at first, there will always be opportunity for development and change, if it is felt right to do so.
The Court of Appeal is also bound by its own previous decisions, however there are three exceptions, set out in Young v Bristol Aeroplane, where the court can depart from a previous decision. One of which is if a previous decision was made per incuriam (carelessly or by mistake) i. e. R v Taylor. The Court of Appeal will then no longer bound by precedent. This is again reinforces that fact that mistakes do sometimes and occur and in order for the problem to be rectified, judges must be allowed to express a certain amount of creativity.
Distinguishing also allows for flexibility within the rules of precedent as it is a method used by judges to avoid following what would otherwise be a binding precedent. For this to be done, a judge will point out some difference in the facts between the previous precedent and the present case that he is trying (he draws a distinction between the two cases). As a result of this, he can say that he need not follow the previous decision because it was based on a different set of facts. For example, the case of Wilson was later distinguished from the likes of Brown in relation to rules of consent on the grounds of public policy.
This will allow for creativity as it enables unique judgements to be formed on the facts of the case that are evident. Judicial creativity can also be seen in Statutory Interpretation. In the English legal system Parliament is sovereign, which means that laws made by Parliament must be obeyed. In order for judges to apply the law, they must interpret it. A series of approaches have been developed to aid judges in the interpretation of statutes. They are known as the literal, golden and mischief approach. Some judges prefer one rule to another and other judges choose whichever approach suits their needs at the time.