Judicial Creativity in Constitutional Interpretation

JUDICIAL ACTIVISM AND JUDICIAL CREATIVITY OF THE SUPREME COURT IN CONSTITUTIONAL INTERPRETATION

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.

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.

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 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 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 Cardozo[9]while discussing the role of activist judges in his classic text The Nature of Judicial Process.

“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]

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 analyzing judicial process[12] 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 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.

The degree of necessary creativity might be well higher in constitutional adjudication than is usually the case for ordinary statutory adjudication.[19] 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 thcreative, 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 asA.K.Gopalan v. State of Madras[20] and the activist role of the Indian judiciary was clearly evident in Golak Nath v. State of Punjab[21].

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 Kerala[22] popularly known as Fundamental Rights Case wherein the Supreme Court propounded the Doctrine of Basic Structure through its judicial creativity and activist approach. If Chief Justice Marshall of American Supreme Court laid down the basic principle of judicial review of legislation inMarbury 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 inA.D.M. Jabalpur v. Shukla[26] 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 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 innovations[29] 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.

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 Nadu[30] , 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 Bengal[31]  reformulated in Ram Krishna Dalmia v. Justice Tendolkar[32] 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.

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 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 ofManeka 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 judgments[38] 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 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 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 AmericanMiranda 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.[46] Despite the fact that the Constitution did not permit socio-economic rights to be justiciable or enforceable, the Indian 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[47] 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 Sah[48] it was held that the judiciary has, therefore, a socio-economic destination and a creative function. In S. P. Gupta v.President of India[49] 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.[50] 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 and circumstances of each case.[51] 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.[52]

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.[53]

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 immediately corrected, the court may take prompt corrective measures, but not take over the administration itself or supplant the law.[54]

On the contrary it may be noted that the power of judicial review is recognised as part of the basic structure[55] 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 wrong[56]; the court will not be dysfunctional. A former judge of the Supreme Court of India, Justice S.Ratnavel Pandian while discussing on judicial creativity has rightly observed[57] that, it is obvious that unless the Executive and the Legislature begin to respond to the needs of the citizens and discharge their responsibilities, public interest litigation and judicial activism are bound to remain centre stage as long as courts continue to respond the way they do now.

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 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.

BIBLIOGRAPHY

1.  S.P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits, Oxford University Press, 2002 edition.

2. Prof. G. Manoher Rao, Dr. G.B. Reddy and V. Geeta Rao (ed.), Judiciary in India Constitutional Perspectives, Asia Law House, Hyderabad, 2009 edition.

3.  P. Jain, Indian Constitutional Law, Wadhwa, Nagpur, 5th Edn, 2003.