Judicial Creativity In Constitutional Adjudication In India

The American Supreme Court has since 1787 functioned in such a manner that the doctrine of separation of powers entrenched in the Constitutionhas become questionable. The basic controversy veers round the role of the court. The very premise of the doctrine of Separation of powers is that the courts do not create new law but merely declare fresh applications of the ancient rule. It means that the judiciary is only priest of law." Modern jurisprudence contradicts this and there is ample evidence to the effect that judiciary creates new rules of law albeit under the guise of declaring the law. Hart observes that it is only the tradition that judges 'find' and do not 'make' law." The validity of judge-made law has been accepted.

Salmond says that "judicial decisions have the force of law is legally ultimate and underived. These ultimate principles are the grundnorms or basic rules of recognition of the legal system. Hart also accepts this validity through his 'rule of recognition'. It is only the tradition that judges ''find" and do not "make" law. By interpretative technique the judges not only make and state what the law is but they also assert what it ought to be. There has been all round expansion of the frontiers of judicial activism. This trend has been since the decision of Golak Nath.

The post Maneka Gandhi syndrome has given new fillip making articles 14 and 21 omnipotent for judicial law making. In fact what the U.S. Supreme Court has done under the Commerce Clause, our Supreme Court has achieved under articles 14 and 21 of the Constitution. Post Maneka Gandhi rulings of the apex court have clearly authenticated the view that judges of the Indian Supreme Court not merely declare the law, or apply it, but they also create the Constitution. In this way the Supreme Court has turned itself into a continuing constitutional convention.^[1]Judges must be sometimes cautious and sometimes bold. Judges must respect both the traditions of the past and the convenience of the present. Judges must reconcile liberty and authority; the whole and its parts. Impartial, independent and positive justice is the foundation of the efficiency of the government. Governance is the prerogative of the legislature being a popularly elected body of the people. The executive is responsible for the proper enforcement of the laws made by the legislature. But when the legislature does not bother about the rights and liberties of the individuals and the executive becomes apathetic in the matters of implementation of the laws, the judiciary is the only way out to act as the engine of social welfare to secure justice for every citizen in the various spheres of life whether it is child labour or infringement of fundamental rights or environment or human rights. Judicial creativity is nothing but an expanded role of the judiciary as it encompasses an area of the legislative vacuum. It is an effort to revitalize the system through the provision of simplest, fastest and inexpensive access to individual^[2].

Judicial Creativity In Constitutional Adjudication

It is only the tradition that judges ''find" and do not "make" law. By interpretative technique the judges not only make and state what the law is but they also assert what it ought to be^[3].

The emphatic assertion of judicial law making started with the right to property. The beginning was made by the Patna High Court in Kameshwar Singh v. State of Bihar^[4] although the challenge to the Bihar Land Reforms Act 1950 was made under article 14 and not under article 31 of the Constitution^[5] . This decision led to the First Constitutional Amendment in 1951. In State of West Bengal v. Bela Banerjee^[6] the court invalidated the West Bengal Land Act and held that "compensation" means just equivalent or full indemnification. This case was followed by the court in State of West Bengal v. Subodh Gopal^[7]and Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co^[8] . These rulings were set aside by the Constitution (Fourth Amendment) Act 1955. This amendment made adequacy of compensation a non-justiciable issue. But, in the Bank Nationalisation ^[9], case the Supreme Court by a majority of 10 : 1 declared that the Constitution guarantees a right to compensation an equivalent in money of property compulsorily acquired. This is the basic guarantee^[10].

In Kesavananda ,^[11] although at the same time, introduced the 'essential features' which, according to the court, could not be reached by the Parliament. This view was endorsed by the court in Minerva Mills Ltd . v. Union of India ^[12].

In judicial process the role of a Judge is more important than the written words of a statute Justice Krishna Iyer has rightly observed:-

"A socially sensitized Judge is better statutory armour against gender outrage than long clauses of a complex section with all protections into it."

Social and political reforms can hardly be introduced through judicial process. Judicial process must function within the prevailing social, economic and political atmospheres. In England both Lord Mansfield and Lord Bentham were eager to introduce new legislation and reforms. The former preferred judicial legislation and the latter parliamentary legislation. It was lord Bentham who succeeded. Judicial process can only give direction to the spirit of law. Basic reforms whether social or political do not fall within the jurisdiction of the courts.^[13]

Judicial process has emerged as an important part of the administration of justice. The conceptual dogma of separation of powers has lost its vitality if not validity. The judges are neither deputies to legislators nor mere interpreters of law. They not only enunciate the new norms by judicial construction of legislation but also re-structure the legislative edifice by bulldozing the legislation if need be. The history of constitutional amendments resulting from the decisions of the court starting from Kameshwar Singh v. State of Bihar , and culminating in Kesavananda Bharati v. State of Kerala , testifies the emergence of the courts as "the capitals of law's empire" and the "judges" as their "princes". The most disturbing feature of the judicial process, however, is the free for all outlooks of the judges of the superior courts in India. The veneration to precedent and judicial procedures has been relegated to the store. The judicial priorities have been fixed suiting to the concept of justice of individual justices. The emergence of PIL had made a good beginning but this issue has been quickly oversubscribed. Thus, it has resulted in dislocation of the judicial schedule of the apex court. It has also created a tug of war between the judiciary and the two other limbs of the state- legislature and the executive. Most of the decisions of the Supreme Court in the newly fashioned segments of its jurisdiction have been ignored by the executive. Thus, the over activism of the court in PIL cases has reduced the effectiveness of its rulings. This, how- ever, does not mean that the court should not play any role. In the prevailing atmosphere of "lawlessness" in the executive and legislative constituencies, the judiciary should not follow the suit but it must maintain restraint. The judicial process must be attuned to the philosophy in which the judges play the role of accompanists of legislators as well as of the Constitution. To define the limits of judicial creativity is neither possible nor desirable but the difference between legislation and adjudication must be maintained.

Views are personal.