Indispensable Judicial Creativity in Today’s Realm


Acting as a major part of the checks and balances, the judiciary often tends to take up the responsibility of acting as an uncalled saviour. It is so because it is the only body that can declare a law constitutionally void. The acts of both the legislature and executive are often filtered through the organ of the judiciary. The independence that is enjoyed by the judiciary often leaves the public with an image that the judiciary often stands as the superior among all the three organs of the government. It may be to protect such generated image or to actually correct the hidden faults of the system the judiciary often tends to pick up on matters that are not brought in front of it by anyone, but what it in itself considers violative of people’s fundamental rights. Some scholars say that this is a mere extension of the power to safeguard fundamental rights that have been derived from the constitution. Others opinionated that the judiciary often oversteps its bounds and violates the doctrine of separation of powers by encroaching upon the acts that are to be done by either the legislature or the executive.

The power that has been provided by the constitution to protect the other organs from encroaching on each other’s powers is being used to instill supremacy of the judiciary. But sometimes it comes up as a saviour where certain issues are not reported especially when linked to politics and religion. Judiciary exists with the sole purpose of ensuring safety to both the constitution as well as the fundamental rights that are provided by it to its citizens. Simply speaking its powers are meant to act as a filter from total tyranny, but its powers also let it not only criticize acts that are done by the legislature but also in certain cases to subject itself to lawmaking.

Similar, but different – Judicial Creativity and Judicial Overreach

The definition of judicial creativity and its interpretation itself involve some amount of creativity. In essence judicial creativity is a term quoted by the pro-judicial group. As the name indicates they state that it is termed so because it involves the application of creative mind and innovative thinking by the judges to the ever-evolving norms of the society. On the other hand, or the anti-judicial groups seem to be coming up with the definition of judicial overreach. They state that judicial overreach is when the courts leave their traditional roles such as:-

  • Declaring laws unconstitutional,
  • Overruling precedents, or
  • Interpreting the constitution

And they start meddling in affairs in which the intervention of the court was not something that was requested for, or out of its own interests, and more often than not they involve issues that are political. This is often termed to be a violation of the doctrine of separation of powers.

It is important to understand that the judiciary can never replace the legislature or the executive. It is a body to make sure that they both actually do what they were intended to do by the constitution and not overstep their bounds.  Technically the most powerful organ must be the parliament because democracy signifies that the power lies in the hands of the people. But there is a chance that if the power is handed over to a group of individuals they will definitely try and misuse it because power corrupts and absolute power corrupts absolutely. Hence the judiciary was given the role of keeping a check on things done by both of these bodies.

When the judiciary has the power to strike down laws made by the parliament which derives its power from the people themselves, it can be said that the judiciary is given such power so as to act as a supervisor. But then again power corrupts, in essence, the court using this power may indulge itself in such issues that do not come under its ambit or purview. It is when judicial overreach occurs. Is it a good thing or a bad thing? The answer to this question really does depend and vary based on the facts and circumstances. Every system suffers from a flaw, the flaw in the doctrine of separation of powers is that inevitably there is one organ among the three that ultimately prevails or tries to prevail over the others. This is when the powers are seen to be misused to encroach i.e., the parliament not respecting the judgments of the apex court by passing legislations that nullify the effect of such judgments. Whereas the judiciary can use this power of judicial creativity to exert the same impact on the legislative and executive actions of the government.

The Supreme Court in the judgment of P.Ramachandra Rao v. State of Karnataka[1] clearly stated that “key function of the judiciary being the interpretation of law, it shall not encroach upon law-making areas that are properly and specifically reserved for the legislature. It may, however, lay down principles and guidelines in the field unoccupied by the legislature.” Needless to say that if the legislature chooses to make any such law after the issuance of such guidelines, they prevail or take precedence over the guidelines issued by the court.

Interpretation of Article 21 of the Constitution

The most important among fundamental rights according to Dr.BR Ambedkar was the right to constitutional remedies under Article 32. But as time passes the most important right applicable to the masses increasingly becomes Article 21. It started to become a storehouse of rights with the most recent addition (perhaps) being Right to privacy under the J.Kuppaswamy judgment. It used to be a normal and naturally derived to right namely right to life. It all started with the judgment of Francis Coralie v. Delhi[2]  in which Bhagwati J has stated that “ Right to life includes right to live with human dignity and all that goes along with it namely the bare necessaries of life such as adequate nutrition clothing and shelter over the head and facilities for reading writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings

After that, a lot of other rights have been added to the scope of article 21 as the right to life essentially and fundamentally includes almost everything that we are required and entitled to do on a day to day basis. The true expansion of article 21 has started with the landmark judgment of Maneka Gandhi v. Union of India[3]It has been stated that the Articles 14,19 and 21 are not mutually exclusive but consist of the golden triangle together. Maneka has brought the fundamental right of life and personal liberty into prominence; it is now regarded as the heart of fundamental rights.[4]

The trend of such expansion has continued to include many important rights such as right to live with human dignity[5], right to speedy trial[6], right to livelihood[7], right to shelter[8] etc. but does not include the right to die[9]. The ambit is so huge that it never stopped expanding. Judiciary also is more responsive to the situations outside in the society.

Some of these rights are unenforceable, because the courts fail to take into consideration how they can be enforced or upheld by the state but do feel that it forms a fundamental part of life and hence recognized right to sleep in Re Ramlila Maidan v. Home Secretary, Union of India and Ors.[10]falling under the right to life. Under the same category falls Right to make reproductive choice declared by the High Court of Kerala in ABC v. Union of India & Ors.[11]&High Court of Rajasthan in State of Rajasthan & Ors. v. S.

 Recently, during the pandemic in Shashank Deo Sudhi v. Union of India[12], the court has stated that “the Covid-19 tests shall be done free of cost in government as well as private labs as it is included in the right to life”. But in the current case, it is really not on the part of the court to make such a decision as it involves the ambit of financial planning along with infrastructural feasibilities to enforce such a measure. Here the court gave in to the situations. Interpreting a right into 21 is easy while the implementation on the part of the government is unplanned for it is a policy decision that was supposed to be taken by the executive.

Keeping in mind the Directive Principles of State Policy

When the constitution was being drafted, the constituent assembly had vast goals and ideals over what India should achieve. But India being a new independent state still was suffering from the lack of resources and organizational structures required to achieve these vast goals, so these goals could not be enacted as rights but as directions for the state to take if and when it feels that it has the requisite amount of resources and organizational capabilities. Because these are ideals set by the constitution makers themselves, a really strong argument is made in favour of the constitutionality of a law enacted to enforce the Directive Principles of State Policy.

But the current trend of the apex court considering itself the rightful warrior on the welfare of people using its judicial overreach often erases the line between the Directive Principles and Fundamental Rights, with the Directive Principles being unenforceable and non-justiciable vis-à-vis fundamental rights. Article 21 has been talked about before to be a really expansive and non – exhaustive fundamental rights provision. The same is being used to interpret the Directive Principles of State Policy into them.

It is done on various instances and one of the most classic examples is the case of Bandhua Muktimorcha V. Union Of India And Ors[13] Justice P.N.Bhagwati has stated that the DPSPs provide life to Article 21. In the current case, the directive principles in dispute were Article 39, 41, and 42. These deal with the responsibility of the state to provide “adequate livelihood to the citizens along with education, health, and humane working conditions. According to the court in this case, even though directive principles cannot be enforced, they provide guidance with respect to interpretation of the ‘right to life’ under Article 21.” It needs to be understood that by the reasoning provided in this judgment, almost each and every directive principle can be read into the ambit of article 21, which indirectly enforces the said DPSPs as rights. This not only violates Article 37 but also the doctrine of separation of powers because it encroaches upon the power and discretion provided to the parliament by the constitution to decide the appropriate time to enact the directive principles.

Another aspect where the Directive principles are enforced through judicial activism is where the executive through the powers of delegated legislation makes certain policy decisions and the court instead of deciding upon the legality of it passes orders upon specific enforcements that were forcibly read into the intentions of the legislature (i.e., enforcement of Directive principles). The same can be seen and understood in the case of State of Tamil Nadu v. K. Balu and Anr.[14]In this particular case, the court has imposed a ban on the sale of liquor within 500 meters of both state and national highways. Alcohol is a pretty important subject in regards to both the center and the state as it is not only a subject matter of revenue but the powers to prohibit the sale or rather the directions to do so exist in Article 47 of the Constitution. Here it can be seen that once again the court has interfered with a subject explicitly in the realm of the executive because it is a policy decision to be made. Although this decision may in itself not do much harm, this can be set as an example for many other decisions to turn into legislation rather than judgments. The said decision has been given under the ambit of Article 142 that provides the apex court with powers to do complete justice in any case. But the decision in the current case is a policy decision and potentially violates the doctrine of separation of powers.

The independent organ often seems a little arbitrary when it comes to defending its own cases. Take the classic example of the judgment of Supreme Court Advocate on Record Association v. Union of India[15] i.e., the second judges’ case. The term ‘consultation’ that has been mentioned under Article 124 with respect to the appointment of the judges has been interpreted to mean ‘concurrence’. This basically meant that, in making a decision regarding the appointment of the judges, the view or the opinion of the Chief Justice holds more importance than that of the executive body. This was justified stating that “the CJI is best equipped to know and assess the worth of candidates. The Supreme court basically took away the power of the president to appoint the judges.”

Sometimes it is rather a concerning topic as the court explicitly posts itself over the government. This can be seen in some decisions and wordings by the Supreme Court like the time when the then Chief Justice Ts Thakur stated that an audit needs to be conducted on the performance of the government. Not surprisingly such remarks were made when there was a delay by the then NDA government in power to evaluate the call on proposals of the supreme court to appoint the judges.

Inclusive of Gender Equality

Judicial activism has not always led to troubles rather sometimes it was much necessary because there existed a gap in the law or a ruling was urgently required. This although does not mean that such a move is not in violation of the doctrine of separation of powers, but at certain times the judiciary helped the people in dire need of a law that the government was perhaps in contemplation fearing vote bank fallouts (LGBT Case). Gender equality is something on which although laws can be made it finally comes down to how strictly they are being interpreted and what precedents are being set by the courts in their rulings based on such legislations.

The first and foremost case that comes to mind while talking about gender and activism is the landmark judgment of Vishakha v. State of Rajasthan[16]. In this case, the supreme court has laid down guidelines regarding sexual harassment at the workplace. The supreme court has used its creativeness to interpret that such sexual harassment at workplaces causes a violation of fundamental rights provided by the constitution under Articles 14, 15, and 21. Such decision was taken with the help of the powers provided to the court under Article 141 to provide complete justice. These guidelines although were a legislative function, the move was applauded by various sections of the society because such guidelines were actually the need of the hour.

A certain mention in this list would be the Navtej Singh Johar v. Union of India[17]which finally declared parts of section 377 of IPC as unconstitutional which dealt with “consensual sexual acts between adults. The other parts of the same section which dealt with bestiality, sex with minors, and sex without consent are still constitutionally valid.

While not losing sight of the latest judgment in gender equality that created a huge controversy was the ‘Sabarimala case’ i.e., Indian Young Lawyers Association v. State of Kerala[18]. In this case, the temple management was not allowing females of menstrual age citing age-old customs and traditions. The court stated that such discrimination cannot be made in places of worship and has removed the bar upon women entering the temple. Major riots took place by the devotees of the said temple when they blocked the entrance and were constantly monitoring it so that no women can go inside. It was a bold move by the Supreme Court, but people often forget the aftermath. The judgment although allowed gender equality, the devotees have stated that the Sabarimala ayyappa is a poor man’s god and people take part in religious rituals that progress for a minimum of 13 days to go to the said place. These rituals often involve behaviour that is very strict in nature, like abstaining from alcohol or women, and often help addicts cure themselves through mob behaviour. The place has gained certain importance all these years because of these specific rituals where he is believed to be the only god that was born out of a non-coital relationship and between two men.

The then CJI Dipak Misra just before his retirement has given out judgments in numerous cases, one of them dealing with gender equality was where the provision of Section 497 of IPC was struck down citing it to be against gender equality. The women judge on the bench fully supported the judgment given by the chief justice in Joseph Shine v. Union of India[19]who stated that “Section 497 is a clear violation of fundamental rights granted in the Constitution and there is no justification for the continuation of the provision.” Simply stating the case in a few words the CJI has stated that “Adultery might not because of an unhappy marriage, it could be a result of an unhappy marriage.”

Sometimes the court leaned so much into gender justice that is often ignored basic principles of law as has been seen in the judgment of Om Prakash v. Dil Bahar[20] which has convicted a rape accused without any corroboration of evidence. Although the medical evidence has not supported the case of the victim, a punishment of 7 years has been awarded merely upon the victim’s statement as well as the eye witness.

The discussion of gender equality will be incomplete if the judgment of Air India v. Nargesh Meerza & Ors.[21] is omitted. This landmark judgment struck down the rule that required the female air hostess to retire at an age of 35 or if she marries within four years of joining service, or on first pregnancy while male cabin crew had the option to retire at 58. The judiciary has come a long way since then. Making significant, requisite, and important changes in the jurisprudence and taking steps towards gender equality, it is also important to remember the constitutional limitations upon the power that has been given to the judiciary. The power of judicial activism although is not bad in its entirety must definitely be used sparingly.


  • [1] P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 607.
  • [2] Francis Coralie v. Delhi, AIR 1981 SC 746,753.
  • [3] Maneka Gandhi v. Union of India, AIR 1978 SC 597.
  • [4] 8th Edn.MP Jain, p.1168.
  • [5] People’s Union for Democratic Rights v. Union of India, 1982 AIR 1473, Visakha v. State of Rajasthan, AIR 1997 SC 3011
  • [6] Hussainara Khatoon v. State of Bihar, 1980 SCC (1) 98.
  • [7] Olga Tellisv. Bombay Municipal Corporation, AIR 1986 AC 180.
  • [8] Chameli Singh v. State of Uttar Pradesh, AIR 1996 SC 1051.
  • [9] Gian Kaur v. State of Punjab, AIR 1996 SC 946.
  • [10] Re: Ramlila Maidan Incident v. Home Secretary, Union of India & Ors., Suo Motu Writ Petition (Crl.) No.122 of 2011
  • [11] ABC v. Union of India & Ors., W.P.C.TMP-9/2020.
  • [12] Shashank Deo Sudhi v. Union of India, WP. (Civ) D.No.10816/2020.[13]Bandhua Muktimorcha V. Union of India and Ors, AIR 1984 SC 802.
  • [14] State of Tamil Nadu v. K. Balu and Anr., CIVIL APPEAL Nos .12164-12166 OF 2016.
  • [15] Supreme Court Advocate on Record Association v. Union of India, (1993) 4 SCC 441.
  • [16] Vishakha v. State of Rajasthan, (1997) 6 SCC 241.
  • [17] Navtej Singh Johar v. Union of India2018 (10) SCALE 386.
  • [18] Indian Young Lawyers Association v. State of Kerala, 2018 SCC OnLine SC 1690.
  • [19] Joseph Shine v. Union of India, Writ Petition (Criminal) No. 194 Of 2017.
  • [20] Om Prakash v. Dil Bahar, Appeal (civil) 7040 of 2000.
  • [21] Air India v. Nargesh Meerza & Ors.1981 AIR 1829.

This article is authored by Sadhu Samba Kailash, student at Hidayatullah National Law University, Raipur.

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