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PRINCIPLES OF INTERPRETATION OF CONSTITUTION IN

INDIA

VARDHMAN SIDDHARTH PANWAR

6TH SEMESTER
201152

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ABSTRACT
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.

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TABLE OF CONTENTS
1.
2.
3.
4.
5.
6.
7.

INTRODUCTION...1
MEANINGOFJUDICIALACTIVISM....1
FUNCTIONALDIMENSIONSOFJUDICIALACTIVISM.....2
DEVELOPMENTOFJUDICIALACTIVISMININDIA..6
ROLE OF ACTIVIST JUDGES IN JUDICIAL CREATIVITY.7
JUDICIAL CREATIVITY vis-a-vis CONSTITUTIONAL INTERPRETATION..8
ACTIVIST APPROACH OF JUDICIARY: DYNAMISM OF JUDICIAL
ACTIVISM...............................................................................................................11
8. TRANSGRESSING BORDERS A LEEWAY TO JUDICIAL EXCESSIVISM.14
9. CONCLUDING REMARKS19

Table cases

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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
B.P. Achala Anand v S.Appi Reddy and Anr (2005) 3 SCC 313
Goodyear India Ltd v State of Haryana AIR 1990 SC 781
Municipal Corporation of Greater Bombay v. Indian Oil Corporation Ltd. AIR1991
SC 686
Southern Pacific Co. v. Jensen, (1916) 244 US 205 at 221
B.P. Achala Anand v S.Appi Reddy and Anr (2005) 3 SCC 313
Kariapper v Wijesinha (1968) AC 717
Laxmikant Pandey v Union of India AIR 1987 SC 232
Gaurav Jain v Union of India AIR 1997 SC 3021
D.K.Basu v State of West Bengal AIR 1997 SC 610
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
Justice A.M.Ahmadi, Judicial Process: Social Legitimacy Institutional Viability,
(1996) 4 SCC (J)
E.P.Royappa v. State of Tamil Nadu AIR 1974 SC 555
Anwar Ali Sarkar v. State of West Bengal AIR 1952 SC 75
Krishna Dalmia v. Justice Tendolkar AIR 1958 SC 538
Francis Coralie v Administrator, Union Territory of Delhi AIR 1981 SC 746,
Chameli Singh v State of Uttar Pradesh AIR 1996 SC 1051
PUCL v Union of India AIR 1997 SC 568, CERC v Union of India AIR 1995 SC 922
Maneka Gandhi v. Union of India AIR 1976 SC 1207
A.D.M. Jabalpur v. Shukla AIR 1978 SC 597

List of authorities

V.R. Krishna Iyer, Judicial Activism and Administrative Autonomy, The

Administrator, Vol.XLII, April-June 1997, p.4
L.K. Jha Memorial Lecture, Bhartiya Vidya Bhavan (1996). As quoted in M.V.
Pylee, Constitutional Government in India, (S. Chand Publication, Delhi 2004), at
350
S.P.Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits,
Oxford University Press,2002 p.242
T.R.Andhyarujina, Judicial Activism in Public Interest Litigation, Halsburys Law
Monthly, August 2008 available at http://www.LexisNexis.com last visited on
05/03/2013 at 19.50 hrs IST

Page | 5

Justice K.G.Balakrishnan,Constitutional Control Praxis in the present day,Lecture

at Brazilian Supreme Court p.5
I.P.Massey, Administrative Law, (Eastern Book Company, Lucknow, 5th Edn,
2001) p.261
0]Abhinav Chandrachud, Dialogic judicial activism in India, Article published in
editorial, The Hindu, Chennai
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
M.P.Jain, Indian Constitutional Law, (Wadhwa, Nagpur, 5th Edn, 2003) p.1085
Justice M.Jagannadha Rao: What is the Secret of Judicial Creativity and
Innovation?, Judiciary in India Constitutional Perspectives,
Dr. Justice A.S.Anand, Protection of Human Rights Judicial Obligation or
Judicial Activism, Justice N.D. Krishna Rao Memorial Lecture, (1997) 7 SCC
(Jour) 11
T.K. Tope, Supreme Court of India and Social Jurisprudence (1988) 1 SCC (Jour)
8
Benjamin N.Cardozo, The Nature of the Judicial Process (1927) p.92-94
H.L.A.Hart, The Concept of Law, (Oxford University Press, London, 1961) p.125
Mauro Cappelletti, The Judicial Process in Comparative Perspective, p.29
Anil Divan, Judicial Activism and Democracy, Article published in editorial, The
Hindu, Chennai edition dated April 2, 2007 p.12
Benjamin N.Cardozo, The Nature of the Judicial Process (1927) p.91-93
Rajeev Dhavan: The Supreme Court of India A Socio Legal Critique of its juristic
techniques (Bombay 1977p.421)
Justice M.Jagannadha Rao: What is the Secret of Judicial Creativity and
Innovation?, Judiciary in India Constitutional Perspectives,
Edited by Prof.G.Manoher Rao, Dr.G.B.Reddy & V.Geeta Rao (Asia Law House,
Hyderabad 1st Edn., 2009) p.140
Prof (Dr.) A.Raghunadha Reddy: From Jurisprudence to Jurimetrics: A Critical
Evaluation of the Emerging Tools in the Judicial Process,
Judiciary in India Constitutional Perspectives, Edited by Prof.G.Manoher Rao,
Dr.G.B.Reddy & V.Geeta Rao (Asia Law House, Hyderabad 1st Edn., 2009)
p.152

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

Page | 6

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 Honble Supreme Court of India in
many of its landmark judgments 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.1 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

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

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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 worlds 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 nations 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
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.
4 S.V.Satya Subrahmanyam :Dynamics of Judicial Activism in the Indian Constitutional Perspective A Case
Study, Judiciary in India Constitutional Perspectives, Edited by Prof.G.Manoher Rao, Dr.G.B.Reddy &
V.Geeta Rao (Asia Law House, Hyderabad 1st Edn., 2009) p.245

5 Goodyear India Ltd v State of Haryana AIR 1990 SC 781

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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 Honble 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:
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

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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 Dhavans 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
8 Southern Pacific Co. v. Jensen, (1916) 244 US 205 at 221
9 Benjamin N.Cardozo, The Nature of the Judicial Process (1927) p.91-93
10 Rajeev Dhavan: The Supreme Court of India A Socio Legal Critique of its juristic techniques
(Bombay 1977p.421)

P a g e | 10

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 peoples 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 concludes that there is an element of creation and discovery where
the judge can play a creative role in matter of constitutional interpretations. 12 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
11 Justice M.Jagannadha Rao: What is the Secret of Judicial Creativity and Innovation?, Judiciary in
India Constitutional Perspectives,
12 Prof (Dr.) A.Raghunadha Reddy: From Jurisprudence to Jurimetrics: A Critical Evaluation of the Emerging
Tools in the Judicial Process,Judiciary in India Constitutional Perspectives, Edited by Prof.G.Manoher Rao,
Dr.G.B.Reddy & V.Geeta Rao (Asia Law House, Hyderabad 1st 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,
Justice N.D. Krishna Rao Memorial Lecture, (1997) 7 SCC (Jour) 11

P a g e | 11

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
constitutions 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.

15 T.K. Tope, Supreme Court of India and Social Jurisprudence (1988) 1 SCC (Jour) 8
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

P a g e | 12

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 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 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 popularly known as Fundamental
Rights Case wherein the Supreme Court propounded the Doctrine of Basic Structure through
its judicial creativity and activist approach.22 If Chief Justice Marshall of American Supreme
Court laid down the basic principle of judicial review of legislation in Marbury v. Madison,
our Supreme Court went further, on what Cardozo would call, the felt necessities of the
time.23 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,
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
23 (1803) 5 U.S. (1Cranch) 137
24 Anil Divan, Judicial Activism and Democracy, Article published in editorial, The Hindu, Chennai edition
datedApril 2, 2007 p.12

P a g e | 13

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. Shukla 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.26 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, 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. 27 In the post
Maneka period courts 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 unenumerated 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 with a view to making itself more accessible to disadvantaged sections of the
25 Lalit Narayan Mishra Institute of Economic Development and Social Change, Patna v. State of BiharAIR
1988 S C 1136

26 AIR 1976 SC 1207

27 AIR 1978 SC 597
28 Justice M.Jagannadha Rao: What is the Secret of Judicial Creativity and Innovation?, Judiciary in
India Constitutional Perspectives, Edited by Prof.G.Manoher Rao, Dr.G.B.Reddy & V.Geeta Rao
(Asia Law House, Hyderabad 1st Edn., 2009) p.147

P a g e | 14

society giving rise to the phenomenon of Public Interest Litigation.29 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, the Apex
Court challenged the traditional concept of equality which was based on reasonable
classification and has laid down a new concept of equality.30 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 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.
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
29 Justice A.M.Ahmadi, Judicial Process: Social Legitimacy and Institutional Viability, (1996) 4 SCC
(J) p.5
30 AIR 1974 SC 555
31AIR 1952 SC 75
32 AIR 1958 SC 538
33 Food Corporation of India v. M/s. Seil Ltd. AIR 2008 SC 1101

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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.Gopalans 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 Gandhis 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
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, (Wadhwa, Nagpur, 5th Edn, 2003) p.1085
37 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

P a g e | 16

delivered by the Supreme Court.38 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 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. 39 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 Courts decisions.40 The Indian Supreme Court has enforced socioeconomic 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 Courts 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 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.41 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.
38 PUCL v Union of India AIR 1997 SC 568, CERC v Union of India AIR 1995 SC 922
39 Francis Coralie v Administrator, Union Territory of Delhi AIR 1981 SC 746, Bandhua Mukti Morcha v
Unionof 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 edition dated July 18, 2009 p.10

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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 legislatures 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
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. 47 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 it was
held that the judiciary has, therefore, a socio-economic destination and a creative function. 48
In S. P. Gupta v.President of India it was held that the judiciary cannot remain a mere
42 I.P.Massey, Administrative Law, (Eastern Book Company, Lucknow, 5th Edn, 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
46 Justice K.G.Balakrishnan,Constitutional Control Praxis in the present day,Lecture at Brazilian
Supreme Court p.5
47 Minerva Mills Ltd. v Union of India AIR 1980 SC 1789, Waman Rao v Union of India AIR 1981
SC 271,

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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.49
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
48 AIR 2000 SC 1296
49 AIR 1982 SC 149
50 A.Laxminath, Precedent in Indian Law, Second Edition, 2005 p.32
51 Jagdambika Pratap Narain Singh v. Central Board of Direct Taxes AIR 1975 SC 1816
52 Bhatia International v. Bulk Trading S. A. AIR 2002 SC 1432
53 S.P.Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits, Oxford
University Press,2002 p.242

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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 of the Indian Constitution. The activist role of the Judiciary is implicit in the
said power.55 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
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.57
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 judico54 T.R.Andhyarujina, Judicial Activism in Public Interest Litigation, Halsburys Law Monthly, August
2008available at http://www.LexisNexis.com last visited on 05/03/2014 at 19.50 hrs IST

55 State of A.P. v. Nikku Ram AIR 1996 SC 100

56 V.R. Krishna Iyer, Judicial Activism and Administrative Autonomy, The Administrator, Vol.XLII,
April-June 1997, p.4
57 L.K. Jha Memorial Lecture, Bhartiya Vidya Bhavan (1996). As quoted in M.V. Pylee,
Constitutional Government in India, (S. Chand Publication, Delhi 2004), at 350

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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 Courts 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.