JUDICIAL PROCESS AND INTERPRETATION OF

STATUTES ASSIGNMENT

RESEARCH PAPER ON –

CRITICAL APPRAISAL OF JUDICIAL CREATIVITY IN THE

DEVELOPMENT OF CONSTITUTIONAL JURISPRUDENCE
WITH SPECIFIC REFERENCE TO CONSTITUTIONAL REMEDY
FOR THE VIOLATION OF FUNDAMENTAL RIGHTS.

SUBMITTED TO:

Prof. ASHUTOSH PANCHBHAI

NAME: ISHITA AGARWAL

PRN: 19010122096

CLASS: Ist year LLB

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 TABLE OF CONTENTS

TABLE OF CONTENTS……………………………………………………………………...2
ABSTRACT…………………………………………………………………………………...3

INTRODUCTION…………………………………………………………………………….4

JUDICIAL CREATIVITY AND ACTIVISM IN INDIA………………………6

CRITICAL APPRAISAL OF JUDICIAL CREATIVITY IN
ARTICLE 32 AND 226
 THE ROLE OF RES JUDICATA………………………………………..6
 POWERS OF THE COURTS TO ISSUE WRITS
FOR REMEDY…………………………………………………………..9
 REMEDY THROUGH PIL UNDER ARTICLE 132…………………..11
CONCLUSION………………………………………………………………...12
BIBLIOGRAPHY…………………………………………………………...…13

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ABSTRACT

In a democratic country like India, the judiciary is given a place of great importance. The
courts perform the key role of expounding the provision of constitution. The court acts as the
supreme interpreter, protector and guardian of the supremacy of the constitution. The best
conferment of the Indian constitution is the fundamental rights. Somehow or the other, they
frame the rampart of our constitution. The judiciary has been assigned this active role to
secure the enforcement of the long list of fundamental rights, which is contained in the part
III of the constitution, that is, article (12-35).

This research paper emphasises on the pro-active role played by the courts in applying
judicial creativity to provide remedy for the violation of fundamental rights. It would mainly
focus on the widening powers exercised by the courts within the purview of the article 32 and
226 of the constitution.

The author focuses on the concept of remedy through WRITS and gives a dynamic approach
to the Public Interest Litigation (PIL) for granting relief to the people, whose fundamental
rights has been infringed, under the ambit of article 32 and 226 of the constitution of India.

The author also analyses the historical judgements of various landmark cases, where the
courts have went beyond the legislation in interpretation of statutes and has used its
discretionary powers to render justice, which has contributed in the development of
constitutional jurisprudence.

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INTRODUCTION

The objective of inclusion of fundamental rights in the part III of Constitution is not merely
to provide security and equality to the citizens but also equality of justice and fair play.

It is true that declaration of fundamental right is meaningless unless there is effective

machinery for the enforcement of the right.

Ubi jus ibi remedium, which means that there is no right at all without the remedy and the
remedy to approach the courts to enforce fundamental rights is incorporated under article 32
and 226 of the constitution. The holders of fundamental rights cannot waive them nor can it
be curtailed by amendments, if it is against the basic structure of constitution.

Article 32 is itself a FR and is described as a soul and heart of the constitution by Dr. B.R
Ambedkar. It guarantees that, if there is a violation of fundamental rights, any person can
move the supreme court for an appropriate remedy. Under this, the court is empowered to
relax the traditional rule of locus standi and provide relief to various types of litigants such as
bonded labourers, undertrial prisoners etc. 1

Article 226 on the other hand, guarantees an individual to move to the high court for seeking
remedy, not only for the infringement of fundamental rights but for other purposes also. The
powers of high court under the said article is comparatively higher than powers of supreme
court in article 36.

It should also be noted that both the courts under the said articles are given the powers to
issue writs, intended to be applied in exceptional cases as an extra ordinary remedy. The five
types of writs mentioned are habeas corpus, mandamus, prohibition, quo warranto and
certiorari, which are prerogative writs emerging from English law.

The remedy for violation of FR can also be provided through PIL (Public Interest Litigation)
by filing a petition in supreme court and high court under the article 32 and 226 of
constitution, which would be discussed in later in detail.

1
RAMANJEET – Constitutional Philosophy Of Writs A Detailed Analysis

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JUDICIAL CREATIVITY AND ACTIVISM IN INDIA

ln countries with written constitutions, judiciary reaches the zenith of creativity when it is
active in interpreting the constitution. The role of judiciary is not merely identified for
interpretation of statutes, enacted by parliament but also creation of legal concept.

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.2

Some prominent Indian legal luminaries has adored the bench of supreme court like Justice
V.R Krishna Iyer, P.N Bhagwati, O. Chinappa Reddy, J.S Verma, Kuldip Singh etc, who
have sensitized the democratic principles in the country and played an important role by way
of judicial creativity with their able umpiring and pro active judgements.

Judicial activism is a sort of judicial creativity. It is an apparent power of judges to modify

the scope and pattern of existing legal decision by application of mind and as guided by law.
The judicial activism in India can be witnessed with reference to the review power of
supreme court under article 32 and 226 of constitution particularly under PIL.

There have been instances in which Indian judiciary evolved and introduced certain values
and norms, not certainly mentioned in the constitution and applied for the purpose of
interpreting the constitution.3

Ex: A.K.Gopalan v. State of Madras4, Golak Nath v. State of Punjab5

The supreme court played crucial role in formulating several principles in PIL. For instance,
the principal of “ABSOLUTE LIABLITY” was propounded in absolute oleum gas leak case6,
PUBLIC TRUST DOCTRINE in Kamal Nath Case7, etc.
2
SANJEYVIGNESH J- Judicial Activism and Creativity Of The Supreme Court The Tools And Techniques Of
Creativity.
3
V.R JAYADEVAN – Judicial Creativity in constitutional interpretation, August 1999.
4
AIR 1951 SC 21
5
AIR 1962 SC 723
6
MC MEHTA V UOI , AIR 1987 SC 965
7
MC MEHTA V KAMALNATH, (1998) 1 SCC 388

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Further, the Supreme Court also gave variety of guidelines in various cases of PIL.

E.g.: Ratlam Municipality case, Taj Trapezium Case, Ganga Pollution Case etc.

The first widespread recognition of judicial creativity in India has been reached by the Court
in the landmark case of KESAVANANDA BHARTI V STATE OF KERALA8 popularly
known as Fundamental Rights Case wherein the Supreme Court propounded the Doctrine of
Basic Structure that was not explicitly mentioned or even implied in any part of the
constitution. This is an example of where court extended its power of interpretation to protect
the rule of law in the country.

CRITICAL APPRAISAL OF JUDICIAL CREATIVITY IN ARTICLE 32 and 226.

 THE “ROLE OF RES JUDICATA” –

A problem for elucidation on which the constituent assembly debates did not shed any light
on was, whether an application under article 32 was maintainable after the similar application
under article 226?
This clarification was done from the case,
DARYAO AND ORS V STATE OF UTTAR PRADESH9.
It was held by the SC that, if a writ petition filed by a party under article 226 is considered on
the merits as a contested matter and was dismissed the decision would continue to bind the
parties unless, it was otherwise modified or reversed by appeal or other appropriate
proceedings permissible under the Constitution. 10

 POWERS OF THE COURTS TO ISSUE WRITS FOR REMEDY-

The writ of Habeas corpus was an exception to the rule of res-judicata. So, where a writ of
habeas corpus has been refused by the HC, the petitioner may file the independent petition for

8
AIR 1973 SC 1461
9
Writ Petition No. 66 of 1956. Judgment dated March 27, 1961
10
K. B. N- Article 32 of the Constitution and Res judicata—Article 226 and the Constitution (Eleventh)
Amendment Bill, 1961

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the same writ under article 32. 11 Not only that, repeated petitions can also be filed under the
article 32.12

It should also be noted that both the courts under the said articles are given the powers to
issue writs, intended to be applied in exceptional cases as an extra ordinary remedy. The five
types of writs mentioned are habeas corpus, mandamus, prohibition, quo warranto and
certiorari, which are prerogative writs emerging from English law.

It is by means of these very writs that the Supreme Court and the High Courts can invalidate
a law, duly enacted by the legislature, which has transgressed a mandatory provision of the
Constitution. This power is called the "Judicial review'".

It is clear from the article 32(4) of the constitution that the right to move SC for the
enforcement of fundamental rights shall not be suspended except under article 359, which
empowers the president to suspend the enforcement of fundamental rights when the
proclamation of emergency is in operation.

In the infamous decision, A.D.M. JABALPUR V SHUKLA13 famously known as Habeas

Corpus Case, is debatably the most controversial decision of Supreme Court, where a
constitutional bench unabashedly declared that under emergency provisions no one could
seek the assistance of any court in India to try and save his liberty, life or limb threatened to
be taken away by the State.

It all started with the STATE OF U.P V RAJ NARAIN14 verdict of Allahabad high court,
where the court held Indira Gandhi guilty of election malpractices and invalidated her
election and further barred her for 6 years from contesting elections.

While the High court judgment was appealed to SC, Indira Gandhi, faced by
an unprecedented protest from an opposition united under J P Naryanan, invoked article 352
declaring National emergency on the grounds of threat from Internal disturbance.

Censorship muzzled the Press; the opposition was silenced and the common man terrorized.
The government made extensive use of preventive detention, arresting people not because
they have committed any offence, but on the apprehension that they may commit one.

11
GHULAM SARWAR V UNION OF India (1967 SC 1335)
12
SUNIL DUTT V UNION OF India, (1982) 3 SCC 405
13
AIR 1976 SC 1207
14
1975 AIR 865

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Many cases were filed in the courts against it and 9 High Courts gave judgments that even
during emergency the courts could entertain a writ of habeas corpus filed by a person
challenging his/her detention

The Government (read Indira Gandhi) decided to appeal against these decisions to the
Supreme Court. It was thus that the Constitutional bench of five Judges came to be
constituted to hear case, dubbed as A.D.M. Jabalpur vs. Shukla.

Supreme Court applied doctrine of procedure established by law in letter but not in spirit
and overturned the judgement by high courts, declaring that Article 32 ,the right to approach
to court to defend fundamental rights remains suspended under emergency.

The judgement thus closed the doors of judiciary for citizen during emergency.

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,15 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.
The suspension of enforcement of article 20 and 21 has, however, been excluded from article
359 by the constitution (44th Amendment) Act, 1978.

The case, SUNIL BATRA V DELHI ADMINISTRATION16, identifies the need of

protection of fundamental rights of the prisoners. In the said case twin writ petitions were
filed the petitioner under article 32 of constitution of India under article 14,19 and 21.

It was held by the SC that the writ of habeas corpus can be issued not only for releasing a
person from illegal detention but also protecting prisoners from inhuman and barbarous
treatment. Wherever the right of the prisoner is violated either under the Constitution or
under other laws, the writ power of the court can and should run to the rescue.

NILABATI BEHRA V STATE OF ORISSA17

15
AIR 1978 SC 597
16
AIR 1980 SC 1759
17
1993 SCR (2) 581

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In the instant case, the son of the petitioner was taken away by the Orissa police for the
purpose of interrogation. All the efforts made in order to trace him turned out to be futile. So
the writ petition of habeas corpus was filed in the court. During the pendency of the petition,
the dead body of the petitioner’s son was found on the railway track. The petitioner was
awarded compensation for Rs. 1,50,000.

The scope of habeas corpus developed through the case,

KANU SANYAL V DISTRICT MAGISTRATE DARJEELING AND ORS.18

In the instant case, it was held that instead of following the traditional method of producing
the body before the court there must be complete focus on the legality of the detention by
looking into the facts and circumstances of the case. This case majorly focused on the nature
and scope of the case and stated that this writ is a procedural writ and not a substantive writ.19

 REMEDY THROUGH PIL UNDER ARTICLE 32 –

The most important aspect of judicial creativity is emergence of PIL. Justice Bhagwati
opiniated that, it was necessary for the Judges to identify themselves with the misery and
suffering of the people to ensure the social justice.

This was implemented through article 32 of Indian constitution by justice Bhagwati, where it
would be enough if the poor and the disadvantaged addressed merely a letter to the court
setting out their grievances. He accepted and entertained letters from social action groups or
persons and treated those letters as writ petitions. The social action groups, who had been
wronged to bring in to the light the grievances of the poor but could not afford legal
representations.

Under these circumstances thus, started the protocol from entertaining letter petitions from
the “Public-Spirited citizens” who sometimes relying upon investigation reports in the
newspapers, some times out of their own experiences brought the cases of the poor before the
Apex Court. But these social action groups or persons face problems when it came to
production of evidence. These Commissions of Inquiry again were not to be found in so
many words in Art.32 or Art 226 but the court has immense powers of application in the
arena of dispensing justice.
18
1974 AIR 510
19
DIGANT RAJ SEHGAL- The Writ Of Habeas Corpus, (June28,2019)

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The traditional rule of “locus standi”, that a person whose rights has been infringed can only
file a petition, had been considerably relaxed in number of landmark cases by the supreme
court in its decisions.

One of the leading case, through which Justice had an opportunity to explain the purpose and
importance of public interest litigation, is the case of

S.P.GUPTA & ORS Vs PRESIDENT OF INDIA & 0RS20.

In the said case, the leading judgment for a seven member Bench of the Supreme Court of
India Justice has firmly stated that “any member of the public having sufficient interest and
has not acted with malafide or political motives can approach the Court for enforcing
Constitutional or legal rights of other persons and redressal for a common grievance”.

Thus, the principle of 'locus standi’ has been replaced by “sufficient interest".
Now, any “public-spirited citizen” can move or approach the court in the interest of public/
public violation by filing a petition under Article 32 and 226 of the constitution of India.

In the case of HUSSAINARA KHATOON v HOME SECRETARY, STATE OF

BIHAR21

In the instant case, the allegation is that there was large number of under trial prisoners kept
in various jails for several years without trial in the State of Bihar. This was brought to the
notice of the Supreme Court by a lady advocate under article 32 based on a News Paper
article claiming a writ of habeas corpus for the persons named in that Newspaper article. In
the present case, the Apex Court through Justice Bhagwati ordered that all such persons
whose names were submitted to the Court in the writ petition should be released forth with.

Since speedy trial was held to be a fundamental right guaranteed Article 21, the Supreme
Court considered its constitutional duty to enforce this right of the accused persons.

In the case of M.C Mehta v UNION OF INDIA22, the scope of PIL was further widened
under article 32 in the supreme court judgement by justice Bhagwati.
In the said case, Supreme Court ordered the closure of tanneries at Jammu near Kanpur,
polluting the river Ganga, which was a violation of article 21 of the constitution. The matter
was brought before the court through a PIL by the petitioner, a social worker.

20
AIR 1982 SC 149
21
AIR 1979 SC 1369
22
1987 (4) SCC 463

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The supreme court laid down various important guidelines:

(i)The poor in India can seek enforcement of the Fundamental Rights from Supreme Court by
writing a letter to any judge of the court even without the support of an affidavit.

(ii) Under Art 32 the Supreme Court has power to grant remedial relief which includes the
power to grant compensation in appropriate cases when the Fundamental Right of the poor
and disadvantaged persons are violated. However, Art.32 cannot be used as a substitute for
claiming compensation for the infringement of fundamental rights through the ordinary
process of a Civil Court. It can only be done where the violation of fundamental right of poor
is "gross and patent” and "affects persons on a large scale" or where it appears tb be "unjust
or unduly harsh or oppressive on account of their poverty or disability or socially or
economically disadvantage position to seek remedy in the civil court.

(iii) The Court can appoint socio-legal commissions or devise any procedure and fore any
tools it deems appropriate for the enforcement of fundamental rights of the poor.

In INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION V UNION OF INDIA23, the

supreme court has held that if by the action of private corporate bodies a person’s
fundamental rights are violated, the court would not accept the argument that it is not the
‘state’ within the meaning of article 12 and therefore action cannot be taken against it.

In this case, an environmentalist organisation filed a writ petition under article 32 before the
court complaining the plight of the people living in the vicinity of chemical industrial plants
in India and requesting for appropriate remedial measures.

CONCLUSION

From this research, it can be concluded that judicial innovation is eesential to adapt the
constitutional provisions to modern changed context. “Creativity of the court has been mainly
in the creation and introduction of certain new concepts not found in any specific provision of
the constitution which, but are essential for it’s meaningful interpretation”.24

23
(1996) 3 SCC212
24
MR JUSTICE BENJAMIN CARDOZO, LLD, The Nature Of The Judicial Process

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Then research paper has specifically focussed on the scope of article 32 and 226 and various
remedies available under these articles for protecting the fundamental rights of the people.

The research paper also shows how the honourable judges like justice Bhagwati, justice V.R
Krishnan Iyer etc has made momentous social inventions for rendering justice to the people
under the Art 32 and 226. Some of the being, generalizing the technique of liberalized rule of
“locus standi” by accepting letters from public citizens and converting them into writ petition.

Right of writ is being available to the people to enable the immediate determination of the
rights of an individual and help the person to achieve the benefit of his right.

The Art.32, which is a corner stone in the Indian Constitution apart from the under privileged,
poor, under trail prisoners who were languished in the jails for years, children in jails,
sexually abused women in protected homes etc, have been protected and the issues of
national importance are brought in to light by the strategy of PIL.

BIBLIOGRAPHY

 BOOKS
MAHENDRA PAL SINGH- V.N SHUKLA’S Constitution Of India, (13th Edition)
DR. JN. PANDEY – Constitutional Law Of India (52nd Edition)
H.M SEERVI – Constitutional Law Of India (3rd Edition, Volume 1)
S.P SATHE- Judicial Activism In India (2nd Edition)

 WEBSITES

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SCC ONLINE
MANUPATRA
JSTOR

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