INTRODUCTION

“Judicium Non debet esse illusorium, suum effectum habere debet”

(A Judgement ought not to be illusory; it ought to have its proper effect )
 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.
 INTRODUCTION CONT…
 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.
 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.
JUDICIAL ACTIVISM:
MEANING
 Judicial Activism is considered as a philosophy of administering justice whereby
judges allow their personal views about Public Policy, ignoring Precedents.
 It is an innovative, dynamic and law making role of the court with a forward
looking attitude discarding reliance on old cases and also mechanical,
conservative and static view.
 Judicial activism is a progressive judicial thinking, developing the law for
handling constructively the contemporary problems of the Society .
 It is a creative thought process through which the court displays vigour,
enterprise, initiative pulsating with the urge of creating new and refined
principles of Law.
 Infact, judicial activism is a sort of judicial creativity. It is an apparent power of
judges to modify the scope and pattern of existing legal decision by application
of mind and as guided by law.
CAUSES OF JUDICIAL ACTIVISM

 Invalidation of the arguably constitutional actions of other branches

 Failure to adhere to precedent,
 Judicial "legislation,"
 Departures from accepted interpretive methodology, and
 Result oriented judging
ORIGIN OF JUDICIAL ACTIVISM
 Truly the movement of judicial activism got “momentum on the soil” of “America”
and under the shadow of first ever written constitution.
 It emerged first in the case of “Holmes Vs. Walton” in the form of judicial review,
 Though it was not expressly provided for in constitution. The case of Holmes vs
Walton was the first instance of an American court's assuming the authority to
pronounce upon the constitutionality of an act of the Legislature.
 Holmes v. Walton, case decided by the Supreme Court of New Jersey in 1780.
The Legislature of New Jersey had, in 1779, passed an act making lawful a trial
before a jury of six men. In this case, the constitutionality of this act was
questioned, and upon its being decided unconstitutional by the Court of Appeals,
that portion of the act was repealed and a constitutional jury of twelve men
substituted.
DEVELOPMENT OF CONCEPT OF
JUDICIAL ACTIVISM
 The concept of judicial activism which is another name for innovative
interpretation was not of the recent past
 it was born in 1804 when Chief Justice Marshall, the greatest Judge of the
English-speaking world, decidedMarbury v.Madison .
 Marbury was appointed Judge under the Judiciary Act of 1789 by the U.S.
Federal Government. Though the warrant of appointment was signed it could
not be delivered. Marbury brought an action for issue of a writ of mandamus.
 By then, Marshall became the Chief Justice of the Supreme Court having been
appointed by the outgoing President, who lost the election.
 Chief Justice Marshall declined the relief on the ground that Section 13 of the
Judiciary Act of 1789, which was the foundation for the claim made by Marbury,
was unconstitutional
DEVELOPMENT OF CONCEPT OF
JUDICIAL ACTIVISM CONT….
 since it conferred in violation of the American Constitution, original jurisdiction
on the Supreme Court to issue writs of mandamus. He observed that the
Constitution was the fundamental and paramount law of the nation and "it is for
the court to say what the law is".
The next important development in judicial activism in the United States was
noticed in the first and secondBrown cases , when the Court, under the
leadership of Chief Justice Earl Warren, disallowed racial segregation in public
schools and extended that prohibition to all public facilities.
ORIGIN OF JUDICIAL ACTIVISM IN INDIA
 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.
The Supreme Court rarely exhibited any activist tendency before the eighties
more precisely before emergency 1975.”
JUDICIAL CREATIVITY AND
PRECEDENTS
 STARE DECISIS AND RATIO
DECIDENDI AND PRECEDENT
 Stare Decisis is Latin phrase. It means to stand by the decided cases to
uphold the precedent, to maintain a former adjudication.
 The maxim is “Stare decisis et non quieta movere ”. Means – to stand by the
decision and not to disturb what is settled. “Those things which have been no
often adjudged ought to rest in peace”.
 The Supreme Court of India is not bound by its own earlier decision. It can
overrule prospectively as well as retrospectively. Infact, the case law is a source
of knowledge, provides basis of arguments, expounds the implications of law
and sometimes even supplies the want of the legislatures.
 . The part of the judgment is called precedent which is rationale of the decision
is calledratio
“ decidendi ” of the case due to this ratio, a case is remembered and
acknowledged as Law.
JUDICIAL ACTIVISM AND
CREATIVITY OF THE
SUPREME COURT
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 many
principles of interpretation.
 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. 
 JUDICIAL CREATIVITY OF
SUPREME COURT OF INDIA
 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
 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
asA.K.Gopalan v. State of Madras AIR 1951 SC 21 and the activist role of the Indian
judiciary was clearly evident Golak
in  Nath v. State of Punjab .
 The high water mark of judicial activism in India has been reached by the Court in the
landmark case of Kesavananda Bharati v. State of Kerala AIR 1973 SC
1461 popularly known as Fundamental Rights Case wherein the Supreme Court
propounded the Doctrine of Basic Structure through its judicial creativity and
activist approach.
JUDICIAL CREATIVITY OF SUPREME
COURT OF INDIA CONT….
 In a series of decisions, starting with Menaka Gandhi v. Union of India , AIR 1978 SC
597 the court widened the ambit of constitutional provisions and held that the
provisions of Part III should be given widest possible interpretation to expand the
reach of fundamental rights rather than to attenuate their meaning and content.
 In the post–Menaka period court’s activism blossomed and flourished with
doctrinal creativity and procedural innovations.
 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/
 it introduced processual innovations with a view to making itself more accessible to
disadvantaged sections of the society giving rise to the phenomenon of Public
Interest Litigation.
JUDICIAL CREATIVITY OF SUPREME
COURT OF INDIA CONT….
 
 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
E.P.Royappa v. State of Tamil Nadu   AIR 1974 SC 555, the
Supreme Court in 
Apex Court challenged the traditional concept of equality which was based on
reasonable classification and has laid down a new concept of equality
 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 era of technology.
TOOLS AND TECHNIQUES
OF CREATIVITY
 Creativity must be based on Principles
a. It should be based on basic principal of justice
b. There should not be misuse of power
c. He legislate on between gaps

 Creativity based on changing demands of society

a. InBengal 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.
b. InMohd. Ahmad Khan V.  Shah Bano Begum , AIR 1985 SC 945 . It is interpreted
that every women have right to get maintenance and to live with dignity
irrespective of there caste or religion.
  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.

 Creativity in open space

  There was no law on social disorder called Sexual harassment of a woman at work
place. InVishaka Case 61 The Supreme Court created law of the land observing that
Articles 14,
the right to be free from sexual harassment is a fundamental right under
15 & 21 of the Constitution. Hon’ble supreme court issue guideline regarding that to
govt. to make a law in that regard
 Creativity in Interpretation of Constitution
a. In Bombay Dyeing 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 under Article 21 of the Constitution.
b. FormerC.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. 
c. 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.
 Creativity in basic structure of the constitution
a.    The theory of basic structure of   the Constitution is a result of the creative
interpretation of the Supreme Court.
b. In "M. Nagaraj v. Union of India", AIR 2007 SC 71 the Supreme Court has held
that this development is the emergence of the constitutional principles in their
own right. 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.
c.   In "Minerva Mills Ltd. v. Union of India", AIR 1980 SC 1789 the Supreme Court
has held that Parliament cannot, underArt.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.
  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

        InOlga 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
 Balancing technique 
a. In "Lalit Narayan Mishra Institute of Economic Development and Social Change,
Patna v. State of Bihar " 71, 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.
b.  In "State of T.N. v. L. Abu Kavur Bai "72, it was held that although the directive
principles are not enforceable yet the Court should make a real attempt at
harmonizing and reconciling. 
 Creative interpretation  
a. In "Suresh Jindal v. BSES Rajdhani Power Ltd. ", AIR 2008 SC 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.
            
 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. 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.
 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. In the casePeoples
" Union for Civil Liberties (PUCL) v.
Union of India “AIR 2003 SC 2363.
 Creativity in  special situations
In Raj Deo Sharma v. State of Bihar, AIR 1999 SC 3524 the Apex Court has
observed that, if V.V.I.P. accused dealt by routinely procrastinating legal process
can cause interminable delay. Then court must be creative in innovating
procedures compelled by special situations.
 Creation of Right to Speedy Trial
Though entitlement of the accused to speedy trial 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,78 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 reasonable, just or fair so as to be in
conformity with the requirement of Article 21
 Creativity needed to harmonise the law
In Municipal corporationof Greater Bombay v. Indian Oil Corporation Ltd .79, has
held that keeping in view  the social, economic and political goal setting in which
it is intended to operate ,  Judge is called upon to perform a creative function.
 Iron out the crease
    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.
By way of creative approach in Ramanna Shetty's case,80 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 in the field of other wings
     The Supreme Court further cautioned itself in the S. P Gupta case83 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
legislature by the constitution. Judicial creativity require great skill and high
creative ability.
 JUDICIAL CREATIVITY &
PUBLIC INTEREST LITIGATION
One of the earliest cases of public interest litigation was reported asHussainara
Khatoon (I) v.State of Bihar. 1980) 1 SCC 81 This case was concerned with under
trial prisoners in the state of Bihar. A writ petition was filed by an advocate drawing
the Court’s attention to the deplorable plight of these prisoner in jail for longer
periods than the maximum permissible sentences for the offences they had been
charged with. The Supreme Court accepted their locus standi to represent the
suffering masses and passed guidelines and orders that greatly ameliorated the
conditions of these people.
 In other matter a journalist Ms Sheela Barse , inSheela Barse v.State of Maharashtra,
(1983) 2 SCC 96 took up the plight of women prisoners who were confined in the
police jails in the city of Bombay. She asserted that they were victims of custodial
violence. The Court ordered Director of College of Social Work, Bombay to visit the
Bombay Central Jail and conduct interviews of various women prisoners in order to
ascertain whether they had been subjected to torture or ill-treatment. Based on his
findings, the Court issued directions such as the detention of female prisoners only
in designated female lock-ups guarded by female constables and that accused
females could be interrogated only in the presence of a female police official.
 Public interest litigation acquired a new dimension – namely that of e ‘ pistolary
jurisdiction ’ with the decision in the case ofSunil Batra v.Delhi Administration,
(1978) 4 SCC 494 It was initiated by a letter that was written by a prisoner lodged
in jail to a Judge of the Supreme Court. The prisoner complained of a brutal
assault committed by a Head Warder on another prisoner. The Court treated that
letter as a writ petition.
 InParmanand Katara v.Union of India, (1989) 4 SCC 286 the Supreme Court
accepted an application by an advocate. The petitioner brought to light the
difficulties faced by persons injured in road and other accidents in availing urgent
and life-saving medical treatment, since many hospitals and doctors refused to
treat them unless certain procedural formalities were completed in these medico-
legal cases. The Supreme Court directed medical establishments to provide
instant medical aid to such injured people, notwithstanding the formalities to be
followed under the procedural criminal law.
 A powerful thrust to public interest litigation was given by a 7-judge bench in the
case ofS.P. Gupta v.Union of India. 95 The judgment recognized thelocus standi of
bar associations to file writs by way of public interest litigation. In this case, it was
accepted that they had a legitimate interest in questioning the executive’s policy of
arbitrarily transferring High Court judges, which threatened the independence of
the judiciary.
 The unique model of public interest litigation that has evolved in India not only
looks at issues like consumer protection, gender justice, prevention of
environmental pollution and ecological destruction, it is also directed towards
finding social and political space for the disadvantaged and other vulnerable
groups in society.
 The Courts have given decisions in cases pertaining to different kinds of
entitlements and protections such as the availability of food, access to clean air,
safe working conditions, political representation, affirmative action, anti-
discrimination measures and the regulation of prison conditions among others
 InPeople’s Union for Democratic Rights v.Union of India , . AIR 1982 SC 1473 a
petition was brought against governmental agencies which questioned the
employment of underage labourers and the payment of wages below the
prescribed statutory minimum wage-levels to those involved in the construction
of facilities for the then upcoming Asian Games in New Delhi .
 The Court ruled that they violated constitutional guarantees. The employment
of children in construction-related jobs clearly fell afoul of the constitutional
prohibition on child labour and the non-payment of minimum wages was
equated with the extraction of forced labour. .
 InBandhua Mukti Morcha v.Union of India, AIR (1984) 3 SCC 161 the Supreme
Court’s attention was drawn to the widespread incidence of the age-old practice
of bonded labour which persists despite the constitutional prohibition.
 Likewise many cases of general importance admitted by supreme court through
public interest litigation and issue direction also to cure the problems.
 CONCLUSION
 Judicial innovation was essential to adapt the constitutional provisions to
modern changed context.
 “Creativity of the Court has been mainly in the creation and introduction of
certain new concepts not found in any specific provision of the Constitution
which, but were essential for its meaningful interpretation”.
 Independence of the judiciary, basic structure and certain elements of social
justice are cherished.
 The second aspect of creativity lies in the attempt of the Court to construe
provisions in the Constitution with a view to upholding and maintaining the
concepts so infused into the Constitution.
 The Supreme Court was successful in its attempt in construing the
constitutional provisions in tune with the judicially introduced concepts with the
aid of the Tools and Techniques under the heads of Judicial Activism.