Critical Appraisal Of Judicial Creativity With Reference To Part III Of Constitution


Judicial creativity holds significant importance in shaping the interpretation of constitutional provisions. The judiciary is recognized as a vital institution responsible for interpreting and applying the Constitution’s provisions. Throughout history, the judiciary has demonstrated a creative approach to interpreting the Constitution, addressing the evolving societal needs. However, the concept of judicial creativity remains contentious, with critics arguing that it undermines democracy and the rule of law. This essay critically examines judicial creativity in the context of interpreting Part III provisions of the Constitution of India. It will explore instances of judicial creativity in constitutional interpretation and the methods through which judicial creativity is manifested.

Concept of Judicial Creativity:

Judicial creativity refers to the approach adopted by judges in interpreting and applying the law in a manner that is not explicitly stated in the text of the law and in a flexible and innovative way. This approach is particularly relevant in the context of the Constitution, where the provisions of the Constitution are often ambiguous or open to interpretation. The Constitution of India is the supreme law of the land, and its provisions are subject to interpretation by the judiciary. The interpretation of the Constitution has been a matter of intense debate, as it involves balancing the competing interests of the legislature, executive, and judiciary. The judiciary has been recognized as the guardian of the Constitution and has the responsibility of ensuring that the Constitution is interpreted in a manner that is relevant, responsive and reflects the changing needs of society.

Judicial Creativity and its Critics:

Judicial creativity is a critical aspect of the judicial process, which allows judges to develop new legal principles and policies that are not explicitly stated in the Constitution or other legal texts. However, critics argue that this approach is problematic as it confers an enormous amount of power to the judiciary, which can lead to judicial activism and judicial tyranny. Moreover, judicial creativity can also undermine the democratic process as unelected judges are making decisions that are outside the purview of the elected representatives of the people.

Additionally, critics argue that judicial creativity is a threat to the rule of law as it allows judges to make decisions that are not based on the law but on their own personal preferences and biases. Furthermore, judicial creativity can also lead to legal uncertainty as it creates a situation where the law is constantly evolving, making it difficult for individuals and businesses to understand their legal obligations and rights.

Despite these criticisms, judicial creativity has played a critical role in the development of the law, particularly in the constitutional context, where the text of the Indian Constitution is often open to interpretation.

Instances of Judicial Creativity in the Interpretation of Part III of the Constitution of India

The Part III provisions of the Constitution of India embodies fundamental rights, which are the cornerstone of India’s democratic system. Over the years, the judiciary has interpreted these provisions in various innovative and creative ways to protect the rights of citizens, sometimes departing from literal interpretations and relying on the principles of natural justice and fairness. Some of the significant instances of judicial creativity in the interpretation of Part III provisions of the Constitution of India are as follows:

Expanding the scope of Article 21:

Article 21 of the Constitution of India provides that no person shall be deprived of their life or personal liberty except according to the procedure established by law. The judiciary has interpreted this provision in a broad manner to include within its ambit various other rights such as the right to live with dignity, the right to privacy, and the right to clean environment, among others.

For instance, in the case of Olga Tellis v. Bombay Municipal Corporation, the Supreme Court held that the right to livelihood is a fundamental right under Article 21 of the Constitution. Similarly, in the case of K.S. Puttaswamy v. Union of India, the Supreme Court held that the right to privacy is a fundamental right under Article 21 of the Constitution.

Right to travel abroad:

In Maneka Gandhi v. Union of India, the Supreme Court held that the right to life and personal liberty under Article 21 includes the right to travel abroad, and that the procedure established by law must be fair, just, and reasonable. The court adopted a creative interpretation of the term “personal liberty” to include the right to travel abroad, even though this right is not explicitly mentioned in the Constitution.

Basic Structure:

One of the most significant instances of judicial creativity in constitutional interpretation in India is the doctrine of basic structure. In Kesavananda Bharati v. State of Kerala, the Supreme Court held that certain provisions of the Constitution cannot be amended, as they are part of the basic structure of the Constitution, thereby limiting the power of the legislature to amend the Constitution. This doctrine has been used by the judiciary to strike down laws that are deemed to be in violation of the basic structure of the Constitution. This decision was a significant example of judicial creativity as it relied on the principles of implied limitations and constitutional morality to prevent arbitrary changes to the Constitution.

 Triple Talaq:

Judicial creativity was demonstrated in the landmark Supreme Court case of Shayara Bano, which dealt with the practice of triple talaq (instant divorce) in Muslim personal law. The Supreme Court held that the practice of triple talaq was unconstitutional and violated the fundamental rights of Muslim women. This decision was widely celebrated as a landmark victory for women’s rights in India.

Other Landmark instances:

The Navtej Singh case is another important example of judicial creativity, as it struck down Section 377 of the Indian Penal Code, which criminalized homosexuality. The court held that criminalizing consensual sexual acts between adults of the same sex violated the fundamental rights of equality, dignity, and privacy.

In State of Bihar v. Bal Mukund Sah, the Supreme Court held that the right to life and personal liberty under Article 21 of the Constitution includes the right to speedy trial. The court relied on the principles of natural justice and fairness to ensure that individuals are not held in custody for an unreasonable length of time.

In Vishaka v. State of Rajasthan, the Supreme Court recognized sexual harassment at the workplace as a violation of the fundamental rights of women. The court relied on international conventions and principles of gender equality to interpret the Constitution in a way that protects women’s rights at the workplace.

Finally, in the DK Basu case, the Supreme Court laid down guidelines for the protection of the rights of arrested persons, including the right to be informed of the grounds of arrest, the right to legal representation, and the right to medical examination. The court relied on the principles of natural justice and fairness to ensure that the rights of arrested persons are protected.

Overall, the above-mentioned cases demonstrate the important role of judicial creativity in the interpretation of Part III provisions of the Indian Constitution. The Supreme Court has adopted a flexible and innovative approach to interpreting the Constitution, ensuring that it remains responsive to changing societal needs and protecting the fundamental rights of Indian citizens.

Judicial Review:

One instance of creative interpretation within the judiciary concerning Part III provisions is the concept of “judicial review.” This principle empowers the judiciary to assess the actions of the executive and legislative branches of government, invalidating any action that violates the Constitution. Although the Constitution of India does not explicitly mention the doctrine of judicial review, it has been derived from various provisions such as Articles 13, 32, 226, and 227. Through the application of judicial review, the Supreme Court of India has invalidated several legislative and executive actions that were deemed unconstitutional. Examples of such actions include the National Judicial Appointments Commission Act (NJAC), the Aadhaar Act, and the Prevention of Terrorism Act (POTA).

An appraisal of means by which judicial creativity is actualized

Judicial creativity finds expression through various means, including textual interpretation, purposive interpretation, and the utilization of precedents. Textual interpretation involves analyzing the literal language of the Constitution, while purposive interpretation focuses on understanding and achieving the Constitution’s underlying goals and objectives.

The use of precedents is another important avenue for judicial creativity in constitutional interpretation. By relying on past judgments, the judiciary develops new legal principles and interprets the Constitution. This approach follows the principle of stare decisis, whereby the decisions of higher courts bind lower courts. However, the reliance on precedents can invite criticism as it may perpetuate outdated legal doctrines. Thus, the judiciary must strike a balance between consistency and innovation.

The actualization of judicial creativity in India can be attributed to several factors. Firstly, the Indian Constitution is a dynamic document intended to adapt to changing societal needs. It includes provisions for amendment to ensure its relevance. Secondly, the judiciary possesses the power of judicial review, allowing it to invalidate laws that conflict with the Constitution. This power safeguards citizens’ fundamental rights. Lastly, the Indian judiciary is renowned for its impartiality and independence, enabling it to interpret the law without bias or fear.

Concluding Remarks

In conclusion, judicial creativity is an essential component of constitutional interpretation in India. The judiciary has used various means, such as textual and purposive interpretation, and the use of precedents, to develop new principles of law and protect the rights of citizens. The doctrine of basic structure and the expansion of the scope of Article 21 are important instances of judicial creativity in constitutional interpretation. While it has been criticized as a form of judicial activism, it is important to recognize that judicial creativity is necessary for the development of the law.

The Constitution of India is a living document that is meant to evolve with changing times, and the judiciary has a duty to ensure that it remains relevant to the needs of the society. However, the judiciary must balance the need for consistency and predictability with the need for innovation and progress, and must be mindful of the potential pitfalls of relying too heavily on precedents.

As long as judicial creativity is exercised within the bounds of the Constitution and the principles of natural justice, it is a legitimate and necessary tool for the interpretation of the law. In the case of Part III provisions of the Constitution of India, judicial creativity has been used to protect and expand the fundamental rights of the citizens, which is essential for the development of a democratic and equitable society.


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  2. Corwin, The Constitutionand what it means today 5 (14th rev. ed. H. Chase & C. Ducat 1978).
  3. Jain M.P., “Indian Constitutional Law”, 5th Edition, Vol. 1, 1174-1198.
  4. INDIA CONST. art. 13, 32, 226,141, 142. Judicial activism means that the judiciary interferes with the functions performed by the legislature orexecutive organs of the government. It is against the doctrine of SOP but encourage judges to look beyond the established precedents and give a progressive interpretation that favour the new social policies. Judicial Restraint encourages a judge to put restraints on the exercise of their own power.
  5. Sudhanshu Ranjan, , Justice, Judocracy and Democracy in India: Boundaries and Breaches, 106 (1st Ed. 2012).
  6. Roger J. Traynor, The Limits of Judicial Creativity, 29 Hastings L.J. 1025 (1978).
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  8. Evans, Jim (1987). Change in the Doctrine of Precedent During the Nineteenth Century. In L. Goldstein, Laurence (ed), Precedent in Law, 35-72. Oxford: Clarendon Press
  9. Abhinav Chandrachud, Dialogic judicial activism in India, The Hindu, Chennai  ed July,18 (2009) p.10
  10. Olga Tellis v. Bombay Municipal Corporation1985 SCC (3) 545.
  11. Justice K.S. Puttaswamy (Retd) v. Union of India, (2017) 10 SCC 1 (India). This petition challenged the constitutional validity of Aadhaar. Also See, People’s Union for Civil Liberties v. Union of India, AIR 1991 SC 207, Selvi v. State of Karnataka, 2010 (7) SCC 263
  12. Maneka Gandhi v. Union of India, AIR 1978 SC 1643
  13. Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461: (1973) 4 SCC 2
  14. Shayara Bano V. Union of India, AIR 2017 9 SCC 1 (SC).
  15. Navtej Singh Johar V. Union of India AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016
  16. State of Bihar v. Bal Mukund Sah, AIR 2000 SC 1296.
  17. Vishaka v. State of Rajasthan, AIR 1997 SC 3011
  18. K. Basu Versus State of West Bengal (1997 (1) SCC 416)
  19. India Const. art. 226 and 227 of the Constitution for High Courts and Art. 32 and 136 of the Constitution for the Supreme Court. Judicial Review is the power of the judiciary to pronounce upon the Constitutional validity of the acts of public authorities, both executive and legislature.
  20. 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.31-43
  21. Chandrachud, Chintan, Constitutional Interpretation (November 18, 2015). The Oxford Handbook of the Indian Constitution (2016),
  22. Nick Robinson et al, ‘Interpreting the Constitution: Supreme Court Constitution Benches Since Independence’ (2011) 46(9) Economic and Political Weekly 27.
  23. Keith E Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (University Press of Kansas 1999) 6.
  24. Devesh Kapur and Pratap Bhanu Mehta, ‘The Indian Parliament as an Institution of Accountability’ (2006) UNRISD Democracy, Governance and Human Rights Working Paper No 23.
  25. Philip Bobbitt, Constitutional Interpretation (Blackwell 1991) 17.
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