JUDICIAL CREATIVITY vis-à-vis THE ACTIVIST APPROACH OF

JUDICIARY IN CONSTITUTIONAL INTERPRETATION

C.E.Pratap

INTRODUCTION

In democratic countries the judiciary is given a place of great significance. The courts

perform the key role of expounding the provisions of the Constitution. The courts act as the

supreme interpreter, protector and guardian of the supremacy of the Constitution. The judiciary

has to perform an important role in the interpretation and enforcement of human rights inscribed

in the fundamental law of the country. Therefore, it is necessary to consider what should be the

approach of the judiciary in the matter of constitutional interpretation. The judiciary has to

devise a pragmatic wisdom to adopt a creative and purposive approach in the interpretation of

various rights embodied in the Constitution. The task of interpreting the constitution is a highly

creative judicial function which must be in tune with the constitutional philosophy. A democratic

society lives and swears by certain values such as individual liberty, human dignity, rule of law,

constitutionalism etc. and it is the duty of the judiciary to so interpret the constitution and the law

as to constantly inculcate these values on which democracy thrives. The predominant positivist

approach of interpretation followed by the Indian Judiciary emanates from the basic traditional

theory that a judge does not create law but merely declares the law. The Indian judiciary

underwent a sea change in terms of discarding its traditional approach by charting out a new

horizon of dynamic concept of judicial activism with many facets and dimensions which paved

way for the activist liberal judicial approach to Constitutional interpretation. This paper attempts

to trace out the evolution of judicial activism in India and the pro-active role played by the

higher judiciary in applying judicial creativity for interpretation of the Constitution.


Advocate, High Court of Madras.
MEANING OF JUDICIAL ACTIVISM

The term judicial activism has acquired multifarious meanings and there is no explicit

statutory definition. Etymologically speaking judicial activism is the progressive judicial

thinking wherein the court involves in developing a creative thought process to display the

pulsating initiative of the judiciary which represents its active role in promoting justice. The

expression judicial activism has eluded a precise definition as it mean different things to different

people. It might mean dynamism to the Judges, judicial creativity to some, judicial legislations to

some others, while there may be some who view it as a tool for social engineering.

In simple words it can be said that it is an active role on the part of the judiciary to

implement the provisions contain in Part III of the Constitution. The Hon’ble Supreme Court of

India in many of its landmark judgments 1 held that judicial activism is the active process of

implementation of the rule of law, essential for the preservation of a functional democracy and

justice to individual or group of individuals or to the society in general is ensured through the

active role of judiciary. According to Justice P.N.Bhagwati judicial activism is:

“The Indian judiciary has adopted an activist goal oriented approach in the matter of

interpretation of fundamental rights. The judiciary has expanded the frontiers of

fundamental rights and the process rewritten some part of the Constitution through a

variety of techniques of judicial activism. The Supreme Court of India has undergone a

radical change in the last few years and it is now increasingly identified by the justice as

well as people the last resort for the purpose bewildered.”2

Therefore, judicial activism is nothing but the creativeness or innovations of the judiciary.

1
Ratlam Municipality v Vardichand AIR 1980 SC 1622,Bandhua Mukti Morcha v Union of India AIR 1984 SC 802
Sunil Batra v. Delhi Administration AIR 1978 SC 1675, Olga Tellis v. Municipal Corporation AIR 1986 SC 180,
Hussainara Khatoon v. State of Bihar AIR 1979 SC 1360.
2
Justice P.N.Bhagwati, “Enforcement of Fundamental Rights – Role of the Courts” Indian Bar Review Vol.24,
(1997) p.19.
FUNCTIONAL DIMENSIONS OF JUDICIAL ACTIVISM

India is described as the world’s largest democracy on account of its population. Its

independent judiciary is at the heart of the structure of constitutional control which not only

ensures a credible system of checks and balances in governance, but also acts as an instrument of

social change and development. Since the formation of the independent Indian republic, the

nation’s Supreme Court has vigorously exercised full checks on the legislative and executive

branches. In numerous instances where these limbs of governance have not lived up to the

expectations of the people, or have failed to safeguard constitutional guarantees, the higher

judiciary has asserted its position not only as a protector of the Constitution but has also

interpreted its provisions in a dynamic way to respond to the needs of the times. Judicial activism

is the process of filling up the vacuum due to the inaction of any one of the organs of the

government, since law does not operate in vacuum. As social norms and values change, laws too

have to be reinterpreted, and recast. Law is really a dynamic instrument fashioned by society for

the purposes of achieving harmonious adjustment, human relations by elimination of social

tensions and conflicts.3

Judicial activism is nothing but a way of exercising judicial power which motivates the

judges to depart from normally practiced strict adherence to judicial precedents. The judiciary is

one of the most important and indispensable organs of the State. It plays a pivotal role in the

areas of making the welfare state act as a custodian of the Constitution and the judiciary plays a

catalytic role to interpret constitutional matters by way of judicial review and judicial activism

which are generally considered to be the fulcrum of the very scheme of the constitution.4 Judicial

3
B.P. Achala Anand v. S.Appi Reddy and Anr (2005) 3 SCC 313.
4
S.V.Satya Subrahmanyam :“Dynamics of Judicial Activism in the Indian Constitutional Perspective – A Case
Study”, in Prof.G.Manoher Rao, Dr.G.B.Reddy & V.Geeta Rao (ed.) Judiciary in India Constitutional Perspectives,
(Asia Law House, Hyderabad 1st Edn., 2009) p.245.
activism of the Supreme Court has paved way for new emerging jurisprudence in India which

has been contributing significantly not only in interpreting the law but also making the law from

time to time. The Supreme Court has emphasized that the judicial approach to the Constitution

should be dynamic rather than static, pragmatic and not pedantic, elastic rather than rigid. It is to

be construed not as mere law but as the machinery by which laws are to be made. 5 Judicial

activism has taken a paradigm shift from the traditional system to a modern new dimension of

functional approach in constitutional interpretation. Judge is called upon to 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. 6 From

the above observation it may be understood that the concept of judicial review aims at

interpretation of the law in the light of constitutional parameters to suit the changing social and

economic scenario to accomplish the ideals enshrined in the Constitution real and meaningful.

DEVELOPMENT OF JUDICIAL ACTIVISM IN INDIA

The nature of judicial process in India has undergone a metamorphosis expanding the

scope of judicial review legitimately through judicial legislation. Judges have been traditional

law makers. The judicial activism has flourished in India and has acquired enormous legitimacy

with the Indian public. According to Hon’ble Mr.Justice A.M.Ahmadi, the former Chief Justice

of India, the initial years of the Supreme Court of India saw the adoption of an approach

characterised by caution and circumspection.7 The expanding role of judiciary in law making in

recent times has major reasons such as growth of parliamentary system and statutory intervention

5
Goodyear India Ltd v. State of Haryana AIR 1990 SC 781.
6
Municipal Corporation of Greater Bombay v. Indian Oil Corporation Ltd. AIR1991 SC 686.
7
Justice A.M.Ahmadi, “Judicial Process: Social Legitimacy and Institutional Viability”, (1996) 4 SCC (J) p.4.
in the expansion of legislation has brought about a parallel expansion of judge-made law. The

scope of judicial law making in the name of judicial activism paved way towards the growth of

active judicial role in declaring fundamental rights through constitutional interpretation that

greatly entrenched the potential creativity of judges. This can be better understood by analyzing

certain vital factors like degree of creativity, the modes, limits and legitimacy of law making

through courts. By reason of judicial activism, much good or harm could be brought about by the

Judges by resorting to innovative interpretation. Since judicial interpretation always involves

some degree of law making, the creative character of judicial function and the degree of

creativity depends on the most activist and dynamic nature of the judge.

Judicial activism in India has not been a spontaneous development. It is the consequence

of a situation which necessitated it. When the Parliament enacted laws and the laws were

intended to cover new fact situations, the judges’ creativity and innovation revived in the matter

of filling in the gaps. Apart from filling in the gaps in the legislation, the judges revived their

creativity in all other areas which were not covered by legislation. The activist judges to an

extent laid down law to fill the vacuum created by the legislature. The judges assuming an

activist role applied their creative skills by introducing very many number of principles of

interpretation of Constitutional provisions, especially in respect of the provisions relating to

fundamental rights. In this context it is apt to quote Justice Oliver Wendell Holmes:

“I recognize without hesitation the judges must and do legislate, but they do so only

interstitially; they are confined from molar to molecular motions.”8

It is pertinent to draw the attention to a parallel statement made by Benjamin Cardozo9

while discussing the role of activist judges in his classic text The Nature of Judicial Process.

8
Southern Pacific Co. v. Jensen, (1916) 244 US 205 at 221.
9
Benjamin N.Cardozo, The Nature of the Judicial Process (1927) pp.91-93.
 “He (the judge) legislates only between gaps. He fills the open spaces in law. How far he

may go travelling beyond the walls of interstices cannot be staked out for him on a chart.”

Judges do and must make law but not in the manner of legislatures. Judges have power

and right to make law. There is much scope for creative judicial activism in the interpretative

functions of judges, on the choices inherent in their function and in the gaps in legal rules, as has

been done by superior courts in several countries for many years. The law creative function of

judges will be of a much greater degree in a situation where there is a legislative vacuum.

The genesis of Judicial Activism in India started as an off-spring of judicial review from

the mid seventies when the judiciary as an activator infused in to the stream of judicial system

many revolutionary changes. After 1975 the judiciary has become unelected representative of the

people. Some prominent Indian legal luminaries who adorned the bench of Supreme Court like

Justice V.R.Krishna Iyer, Justice P.N.Bhagwati, Justice O.Chinnappa Reddy, Justice J.S.Verma,

Justice Kuldip Singh, Justice A.S.Anand have sensitized the democratic principles in the country

and played an important role by way of judicial activism and judicial creativity with their able

umpiring and proactive judgments.

Judicial activism earned a human face in India by liberalizing access to justice and under

their leadership the Supreme Court gained in stature and legitimacy. It is pertinent to quote

Rajeev Dhavan’s observation on Indian judiciary who states that “Owing to indigenous pressure,

the court has been mechanical in its approach to the problem on which it was called upon to

adjudicate. The Supreme Court rarely exhibited any activist tendency before the eighties more

precisely before emergency 1975.”10

10
Rajeev Dhavan: The Supreme Court of India A Socio Legal Critique of its juristic techniques (Bombay 1977,
p.421).
ROLE OF ACTIVIST JUDGES IN JUDICIAL CREATIVITY

The activist judges play a vital role in exhibiting their judicial creativity and they

subjected the new legislation to their creative skills by introducing very many principles of

interpretation. Judicial creativity requires a great skill and high creative ability. The judges

evolved a number of principles while interpreting the Constitutional provisions, especially in

respect of the provisions relating to fundamental rights. The recent trend adopted by the Supreme

Court has been to interpret our fundamental rights in the light of international conventions which

are yet to be enacted in to our domestic laws. In all these cases the judges of the Apex Court

excelled in their creative skills. 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 people’s quality of life. 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. Therefore the Creativity of the Supreme Court and High Courts shall always remain as a

high benchmark of judicial creativity in India. On the contrary, it is also possible that in the

process of creativity and innovation, there could sometimes be some errors, but such errors could

be corrected or modified or refined either in appeal, or in a latter case, and the latter judgment

would be one step more in the progress of the law.11

While referring to innovations in our own Constitutional law we have had our great

creative judges in the Supreme Court of India who evinced interest in giving a new dimension

the provisions of the Constitution with a flavour of dynamic judicial activism. Cardozo while

Justice M.Jagannadha Rao: “What is the Secret of Judicial Creativity and Innovation?”, in Prof.G.Manoher Rao,
11

Dr.G.B.Reddy & V.Geeta Rao (ed.) Judiciary in India Constitutional Perspectives, (Asia Law House, Hyderabad 1 st
Edn., 2009) p.140.
analyzing judicial process12 concludes that there is an element of creation and discovery where

the judge can play a creative role in matter of constitutional interpretations. 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.13 When judges interpret the law or a constitution by not merely giving

effect to the literal meaning of the word, but trying to provide an interpretation consistent with

the spirit of that statute or constitution, they are said to be activist judges. The function of the

higher courts in this country has not been limited to exploring what the Constitution-makers

meant when they wrote those words but also to develop and adapt the law so as to meet the

challenges of contemporary problems of the society and respond to the needs of the society.

The Constitution cannot be a living and dynamic instrument if it lives in the past only and

does not address the present and the future.14 The judges cannot be idle and silent spectators

when the times go on changing. As the persons involved in interpreting and applying a law

which is not static but dynamic, the judges would like to participate in the social reforms and

changes that take place due to the changing times. Even though the words of the Constitution

remain the same but their significance changes from time to time through judicial interpretation

applied by the Supreme Court. For interpreting a dynamic constitution as the Constitution of

India is, a creative attitude is necessary. If such an attitude is not adopted Indian Constitution will

cease to be a social document which it is. 15 The Courts start with the premise that the

12
Prof (Dr.) A.Raghunadha Reddy: “From Jurisprudence to Jurimetrics: A Critical Evaluation of the Emerging
Tools in the Judicial Process”, in Prof.G.Manoher Rao, Dr.G.B.Reddy & V.Geeta Rao (ed.) Judiciary in India
Constitutional Perspectives, (Asia Law House, Hyderabad 1 st Edn., 2009) p.152.
13
All India Judges' Association v. Union of India AIR 1993 SC 2493.
14
Dr. Justice A.S.Anand, “Protection of Human Rights — Judicial Obligation or Judicial Activism”, delivered at
Justice N.D. Krishna Rao Memorial Lecture, (1997) 7 SCC (Jour) 11.
15
T.K. Tope, “Supreme Court of India and Social Jurisprudence”, (1988) 1 SCC (Jour) 8.
Constitution being the fundamental law of the land should be given somewhat different treatment

and interpreted more liberally than an ordinary statute.

JUDICIAL CREATIVITY vis-a-vis CONSTITUTIONAL INTERPRETATION

A written constitution is not a self-executing document, and meanings of several

provisions may not always be self-evident. The Courts cannot interpret a statute, much less a

constitution, in a mechanistic manner. In the case of a statute, a court must determine the actual

intent of the authors. In the case of a Constitution, a court must sustain the constitution’s

relevance to changing social, economic, and political scenarios. The courts must adopt a

judicially positivist and pro-activist liberal approach in constitutional interpretation since the

law-creative function of the judges is very well recognised now. Judges who interpret a written

constitution cannot merely apply the law to the facts that come before them. The scope of judicial

creativity expands the degree of activism when a constitution contains a bill of rights. In the words

of Justice Benjamin Cardozo, a court must give to the words of a constitution “a continuity of

life and expression.”16 The judiciary at times is forging new tools, devising new strategies for the

purpose of making fundamental rights meaningful for the large masses of the people. In the

words of H.L.A.Hart “judges have an interstitial law-making function in so-called penumbral

cases that are not clearly covered by existing law.” 17 The liberal, purposive, law-creative

interpretation of the constitution must be used by the courts “with insight in to social values, and

with suppleness of adaptation to changing needs.”18 It is a matter of judicial attitudes and choices

as to how the judges approach the task of constitutional interpretation.

16
Benjamin N.Cardozo, The Nature of the Judicial Process (1927) p.92-94.
17
H.L.A.Hart, The Concept of Law, (Oxford University Press, London, 1961) p.125.
18
Kariapper v Wijesinha (1968) AC 717.
 The degree of necessary creativity might be well higher in constitutional adjudication
19
than is usually the case for ordinary statutory adjudication. The higher judiciary in

India has been endowed with the onerous task of upholding the fundamental rights of the

citizens. Therefore the judicial interpretation and enforcement of social rights necessarily implies

a high degree of creativity by virtue of the activist approach of higher judiciary in construing and

declaring the fundamental rights. This is explicitly inferred from the creative, dynamic, activist

character of the judicial process in cases of class action and public interest litigation. At one

time, a court may indulge in judicial passivism and at other time the same court may show signs

of judicial activism depending upon the pre-disposition of the judges as well as the type of

legislation being considered by them. The higher judiciary in India plays an active role while

upholding the supremacy of the Constitution, protecting the fundamental rights and freedoms of

the citizens and while interpreting the Constitution with due regard to the intention of the framers

of the Constitution. The judiciary in a constitutional democracy can play an active role through

the medium of judicial review. This proposition is squarely applicable to the Indian context and

it is evident from the judicial precedents that the judiciary especially the Supreme Court has

started playing an activist role occasionally from its rulings in cases such as A.K.Gopalan v.

State of Madras20 and the activist role of the Indian judiciary was clearly evident in Golak Nath

v. State of Punjab21.

The high water mark of judicial activism in India has been reached by the Court in the

landmark case of Keshavananda Bharati v. State of Kerala22 popularly known as Fundamental

Rights Case wherein the Supreme Court propounded the Doctrine of Basic Structure through its

19
Mauro Cappelletti, The Judicial Process in Comparative Perspective, p.29.
20
AIR 1951 SC 21.
21
AIR 1962 SC 723.
22
AIR 1973 SC 1461.
judicial creativity and activist approach. If Chief Justice Marshall of American Supreme Court

laid down the basic principle of judicial review of legislation in Marbury v. Madison 23 , our

Supreme Court went further, on what Cardozo would call, “the felt necessities of the time.” For

the first time a court held that a constitutional amendment duly passed by the legislature was

invalid as damaging or destroying its basic structure. This was a gigantic innovative judicial leap

unknown to any legal system.24 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.25

In the post-Emergency era, the Apex Court sensitized by the perpetration of large scale

atrocities during the Emergency donned an activist mantle. The Emergency of 1975 and its

aftermath constituted defining moments for judicial activism in India. In the infamous decision in

A.D.M. Jabalpur v. Shukla26 famously known as Habeas Corpus Case, the Supreme Court used

its active judicial power permitted civil liberties in Part III to be suspended during the

Emergency. Therefore, permitting civil liberties to be suspended during the Emergency would

arguably have constituted deference both to the intent of the framers of the Constitution and to

legislative wisdom or judicial restraint. Thus judicial activism during the Emergency was clearly

the need of the hour and it had a strong moral basis after Emergency and the judges ought to

have been activist. In a series of decisions, starting with Maneka Gandhi v. Union of India,27 the

court widened the ambit of constitutional provisions and held that the provisions of Part III

23
(1803) 5 U.S. (1Cranch) 137.
24
Anil Divan, Judicial Activism and Democracy, Article published in editorial, The Hindu, Chennai edition dated
April 2, 2007 p.12.
25
Lalit Narayan Mishra Institute of Economic Development and Social Change, Patna v. State of Bihar,
AIR 1988 S C 1136.
26
AIR 1976 SC 1207.
27
AIR 1978 SC 597.
should be given widest possible interpretation to expand the reach of fundamental rights rather

than to attenuate their meaning and content. In the post–Maneka period court’s activism

blossomed and flourished with doctrinal creativity and processual innovations. Thereafter, there

appeared era of progressive judicial activism wherein the judiciary has invented novel forms of

action to provide relief to the poor, underprivileged, downtrodden sections of the society. The

Supreme Court has infused new vigour in the moribund Article 21 by giving an expansive

interpretation to the word ‘life’ as therein as meaning not only mere ‘animal existence’ but ‘live

with human dignity’. The Supreme Court has thus infused a qualitative concept in Article 21 as a

result of which this constitutional provision has become a reservoir of Fundamental Rights.

The Supreme Court of India developed a vast jurisprudence of interpretation of

Constitutional provisions and other statutes. Over the years, the Supreme Court has culled out

several un-enumerated rights as being implied within the enumerated fundamental rights

contained in Part III of the constitution.28 The Apex Court widened the ambit of constitutional

provisions to enforce the human rights of citizens and sought to bring the Indian law in

conformity with the global trends in human rights jurisprudence. Simultaneously, it introduced

processual innovations29 with a view to making itself more accessible to disadvantaged sections

of the society giving rise to the phenomenon of Public Interest Litigation. The judiciary has

moved beyond being a mere legal institution; its decisions have tremendous social, political and

economic ramifications. Time and again, the Supreme Court of India has adopted an activist

approach and thereby sought to interpret constitutional provisions and the objectives sought to be

achieved by it and directed the executive to comply with its orders.

28
Justice M.Jagannadha Rao: “What is the Secret of Judicial Creativity and Innovation?”, in Prof.G.Manoher Rao,
Dr.G.B.Reddy & V.Geeta Rao (ed.) Judiciary in India Constitutional Perspectives, (Asia Law House, Hyderabad 1 st
Edn., 2009) p.147.
29
Justice A.M.Ahmadi, “Judicial Process: Social Legitimacy and Institutional Viability”, (1996) 4 SCC (J) p.5.
 The judicial creativity in constitutional interpretation is not only confined to explore the

true intent of Article 21, the horizon of activist approach of higher judiciary extends interalia to

other provisions enshrined in Part III of the Constitution. A classic example of this judicial

activism and innovativeness in interpreting Article 14 could be well explained by referring to the

landmark case of the Supreme Court in E.P.Royappa v. State of Tamil Nadu30 , the Apex Court

challenged the traditional concept of equality which was based on reasonable classification and

has laid down a new concept of equality. Justice P.N.Bhagwati delivering the judgment on behalf

of himself, Justice Y.V.Chandrachud and Justice V.R.Krishna Iyer, propounded the new concept

of equality in the following words “Equality is a dynamic concept with many aspects and

dimensions and it cannot be ‘cribbed, cabined and confined’ within traditional and doctrinaire

limits.”

The Supreme Court has set aside the classic formulation of the “Doctrine of reasonable

classification” as held in the case of Anwar Ali Sarkar v. State of West Bengal31 reformulated

in Ram Krishna Dalmia v. Justice Tendolkar32 and in In re Special Courts Bill, 1978, held the

field and became formally recognised as the touchstone for testing legislative and executive

violations of Article 14. 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.33 Thus the activist approach of Supreme Court paved way for

introducing a new dimension of right to equality by setting aside the mechanical notion of

traditional juridical concept.

30
AIR 1974 SC 555.
31
AIR 1952 SC 75.
32
AIR 1958 SC 538.
33
Food Corporation of India v. M/s. Seil Ltd. AIR 2008 SC 1101.
 The judiciary has never failed to take in to account of the developments in the society

while interpreting the provisions of the Constitution. The Supreme Court keeping in tune with

the technological advancements in a phased manner is applying the tools of creativity to forge

the interpretation of Constitution to suit the societal needs in the present era of technology. 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. 34 A Constitution Bench of 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.35

ACTIVIST APPROACH OF JUDICIARY: DYNAMISM OF JUDICIAL ACTIVISM

A great transformation has come about in the judicial attitude towards the protection of

personal liberty in the post-emergency period. The Supreme Court was influenced by liberal

tendencies in the matter of interpreting Fundamental Rights, particularly Article 21. Since, then

the Supreme Court has shown great sensitivity to the protection of personal liberty. The Court

has re-interpreted Article 21 and practically overruled A.K.Gopalan’s case in Maneka Gandhi

which can be regarded as a highly creative judicial pronouncement on the part of the Supreme

Court.36 The judiciary expressed its dynamism on assuming a pro-active role in interpretative

process more particularly in guaranteeing fundamental rights of the citizens. This case has acted

as a catalytic agent for transformation of the judicial view on Article 21. After this phase of

judicial renovation, the Supreme Court adopted an activist approach has given broader and

34
Suresh Jindal v. BSES Rajdhani Power Ltd. AIR 2008 SC 280.
35
Indra Sawhney v. Union of India AIR 1993 SC 477.
36
M.P.Jain, Indian Constitutional Law, 5th Edn., (Nagpur: Wadhwa, 2003) p.1085.
broader interpretation so as to imply many more fundamental rights. Article 21 which had lain

dormant for nearly three decades has been brought to life and has assumed a highly activist

magnitude. Judicial activism of the post-emergency period means liberal interpretation of

constitutional provisions like Articles 21 and 14, and reconceptualization of the judicial process

by making it more accessible and participatory.37

The reincarnation of Article 21 which Maneka Gandhi’s case brought about has been

exerting a deep impact on contemporary constitutional jurisprudence. A very fascinating

development in the Indian Constitutional jurisprudence is the extended dimension given to

Article 21 by the Supreme Court in the post-Maneka era. The most significant aspect of Maneka

Gandhi was that the Court laid down a seminal principle of constitutional interpretation. The

Court held that there cannot be a mere textual construction of the words of the Constitution.

Those words are significant with meanings that unfold when different situations arise. Another

strategy adopted by the Supreme Court with a creative fashion to expand the ambit of Article 21

and to imply certain bundle of rights, has been to interpret Article 21 along with international

charters on Human Rights has been fundamentally transformed as a result of judicial creativity.

This kind of judicial approach can be seen in number of judgments38 delivered by the Supreme

Court. The Supreme Court has used Article 21 in a very creative manner to improve the quality

of life. The Higher Judiciary, by and large, protected the rights of the citizens and in particular,

the Supreme Court, by proactive interpretation process in diverse fields.

A grand step was taken by the Court in expanding the scope of Article 21 and the

Supreme Court has openly asserted a law creative role for itself. The Court has thus given very

37
S.P.Sathe, “Judicial Activism: The Indian Experience”, Journal of Indian School of Political Economy
(1998 & 1999), Journal of Law & Policy (2001, Vol.6:29), p.51.
38
PUCL v. Union of India AIR 1997 SC 568, CERC v. Union of India AIR 1995 SC 922.
extensive parameters to Article 21 by its creative interpretation in various cases 39 and come to

impose positive obligation upon the state to take steps for ensuring to the individual a better

enjoyment of his life and dignity by its activist approach. Article 21 has become the means by

which the Supreme Court applies innovational technique of judicial creativity to create new

rights and entitlements on legitimate concerns of judicial activism because the Court was called

upon to articulate the rights guaranteed by the Constitution. However, judicial activism in India

has now taken on an interesting face. The courts in India pursue a form of review which can be

described at best as ‘dialogic’ – a term used famously by Peter Hogg and Allison Bushell in the

context of the Canadian Supreme Court’s decisions.40 The Indian Supreme Court has enforced

socio-economic rights, though they are not considered enforceable by the Constitution such as

the right against malnutrition and the right to shelter. Activist judges in India have consequently

fashioned innovative remedies to enforce socio-economic rights.

The Indian Supreme Court’s gaze has now gone beyond the protection of socially and

economically downtrodden, and in to the realm of public administration. The judicial opinions

often resemble aspirations rather than binding pronouncements. The judiciary has started issuing

guidelines increasingly in legislative spheres, one such occasion in a landmark judgment in

Vishaka v. State of Rajasthan 41 the Supreme Court has laid down exhaustive guidelines to

prevent sexual harassment of working women in work places until a suitable legislation is

enacted for the purpose. The Court relied on International Conventions and made a significant

interpretation of guarantee of gender equality, right to work with human dignity and safeguards

39
Francis Coralie v. Administrator, Union Territory of Delhi AIR 1981 SC 746, Bandhua Mukti Morcha v. Union
of India AIR 1984 SC 802, Chameli Singh v. State of Uttar Pradesh AIR 1996 SC 1051
40
Abhinav Chandrachud, Dialogic judicial activism in India, Article published in editorial, The Hindu, Chennai
edition dated July 18, 2009 p.10.
41
AIR 1997 SC 3011
against sexual harassment implicit under Articles 14, 15(3), 19(1)(a) and 21 of the Constitution

and filled the gap in legislative vacuum.

The dynamics of judicial process has a new enforcement dimension which includes

‘rights mobilization’ without which the rights and interests of the poor and illiterate silent

majority would become sterile.42 The Supreme Court has not confined itself to judge-made law

in the traditional sense of the term, but has embarked upon legislation to fill in the gaps left by

legislature. The role of judicial interpretation has to play far more active, creative and purposeful

role in deciding what is according to law. The judiciary by invoking its activist approach with a

camouflage of creativity laid down detailed guidelines on various spheres of law including the

process of inter-country adoptions,43 rehabilitation of children of commercial sex workers,44 and

the procedure to be followed by police officers prior to arrest, mildly similar to the American

Miranda rights propounded ‘Basu rights’ 45 . Thus, when a competent legislative fails to act

legislatively and make a necessary law to meet the societal needs, the courts play an active role

and often indulge in judicial legislation to fill the void created by the legislature’s abdication of

responsibility.

While the fundamental rights of citizens enumerated in Part III of the Constitution are

justiciable before the higher judiciary, Part IV deals with the Directive Principles of State Policy

that largely enumerate objectives pertaining to socio-economic entitlements. They are the

creative part of the Constitution, and fundamental to the governance of the country. However,

the key feature is that the Directive Principles are non-justiciable. Despite the fact that the

Constitution did not permit socio-economic rights to be justiciable or enforceable, the Indian

42
I.P.Massey, Administrative Law, 5th Edn., (Lucknow: Eastern Book Company, 2001) p.261.
43
Laxmikant Pandey v. Union of India AIR 1987 SC 232.
44
Gaurav Jain v. Union of India AIR 1997 SC 3021.
45
D.K.Basu v. State of West Bengal AIR 1997 SC 610.
judiciary taught that express constitutional provisions may not necessarily translate in to social

legitimacy. The principle of harmonious construction in interpreting the relationship between

Part III and Part IV of the Constitution has been reiterated in number of cases 46 decided by the

Supreme Court and consistently maintained that the Fundamental Rights and the Directive

Principles of State Policy constitute the conscience of the constitution. The judiciary under our

constitutional scheme has to take up a positive and creative function in securing socio-economic

justice to the people. In State of Bihar v. Bal Mukund Sah47 it was held that the judiciary has,

therefore, a socio-economic destination and a creative function. In S. P. Gupta v. President of

India48 it was held that 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.

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.49 The Supreme Court 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

46
Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789, Waman Rao v. Union of India AIR 1981 SC 271,
Bhim Singhji v. Union of India (1981) 1 SCC 166, Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Ltd.
AIR 1983 SC 239, State of T.N. v. Abu Kavar Bai AIR 1984 SC 626, Tinsukhia Electric Supply Co. Ltd v. State of
Assam (1989) 3 SCC 709.
47
AIR 2000 SC 1296.
48
AIR 1982 SC 149.
49
A.Laxminath, Precedent in Indian Law, Second Edition, 2005 p.32.
and circumstances of each case. 50 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.51

TRANSGRESSING BORDERS – A LEEWAY TO JUDICIAL EXCESSIVISM

The instances of judicial excessivism may arise 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. The Courts should not 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.52

The judiciary should be so vigilant while exercising its law creative functions that it is

not encroaching in to the field of other organs and the Courts must draw a Lakshman Rekha

before assuming the activist role. The thin dividing line demarcating appropriate and

inappropriate judicial intervention is drawn on the basis of functions allocated to the different

branches by the Constitution. However, in the quest for justice the judiciary seems to overstep

the limits of its judicial function and trespass into the areas assigned to the executive and the

legislature. It is also the court's legitimate function to enforce the law, not of each and every

infraction, but in those cases where its disregard has grave consequences to the public. No

question of the court overreaching its powers can arise in such cases. In matters relating to

environment, where irreversible damage may be done unless the actions of the authorities are

50
Jagdambika Pratap Narain Singh v. Central Board of Direct Taxes, AIR 1975 SC 1816.
51
Bhatia International v. Bulk Trading S. A., AIR 2002 SC 1432.
52
S.P.Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits , Oxford University Press, 2002
p.242.
immediately corrected, the court may take prompt corrective measures, but not take over the

administration itself or supplant the law.53

On the contrary it may be noted that the power of judicial review is recognised as part of

the basic structure54 of the Indian Constitution. The activist role of the Judiciary is implicit in the

said power. Judicial activism is a sine qua non of democracy because without an alert and

enlightened judiciary, the democracy will be reduced to an empty shell. Judicial activism in its

totality cannot be banned. It is obvious that under a constitution, a fundamental feature of which

is the rule of law, there cannot be any restraint upon judicial activism in matters in which the

legality of executive orders and administrative actions is questioned. The courts are the only

forum for those wronged by administrative excesses and executive arbitrariness. The Court will

not and cannot fold up its hands and keep quiet if the Executive defaults in doing justice and

respecting the rights of citizens. It will be activated enough to render justice and right the

wrong55; the court will not be dysfunctional.

CONCLUDING REMARKS

The great contribution of judicial activism by Indian judiciary has been to provide a

safety valve in a democracy and a hope that justice is not beyond reach. Judicial activism in India

will prosper as long as the judicial creativity is expressed by the activist approach of higher

judiciary. The plants slowly nurtured by judicial craftsmanship have grown in to sturdy trees and

have blossomed with colourful and fragrant flowers. Judicial activism has added much needed

oxygen to a gigantic democratic experiment in India by the alchemy of judico-photosynthesis.

The only thing is to keep in mind that judicial creativity is permissible only in the area left open

53
T.R.Andhyarujina, Judicial Activism in Public Interest Litigation, Halsbury’s Law Monthly, August 2008
available at http://www.LexisNexis.com (Accessed on 05 Mar 2013).
54
State of A.P. v. Nikku Ram , AIR 1996 SC 100.
55
V.R. Krishna Iyer, “Judicial Activism and Administrative Autonomy”, The Administrator, Vol.XLII, April-June 1997,
p.4.
by the legislature and where it is necessary to fill up the gap in the statute so as to achieve real

intent of it. On the basis of the above discussion, it is clear that judicial creativity is not only

necessary but also inevitable. The Supreme Court has by and large played its constitutional role

very well and has always upheld the principle of constitutionalism. The new dimension of

judicial activism is measured by the interpretative fidelity and stability of the Court’s inferential

construction of constitutional provisions in accordance with the changing times and needs of the

society.