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*The Tools And Techniques Of Judicial Creativity And Precedent Differences
*The Tools And Techniques Of Judicial Creativity And Precedent In India
*The Tools And Techniques Of Judicial Creativity And Precedent Definition
*The Tools And Techniques Of Judicial Creativity And Precedent Study
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 j
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*The Tools And Techniques Of Judicial Creativity And Precedent Differences
*The Tools And Techniques Of Judicial Creativity And Precedent In India
*The Tools And Techniques Of Judicial Creativity And Precedent Definition
*The Tools And Techniques Of Judicial Creativity And Precedent Study
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 j
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