o ° © eecnaoecenras poe CONTENTS Conclusion & suggestions 18eoceac oe A. INTRODUCTION + DEFINING JUDICIAL PROcE: ratcn of justice or the function of a judge. jons directed 10 some end or continuous action or series of hangs nd totale aconing to acinepocedre Judicial Process Means Judicial And Process read together means everything done by judge in the process of delivery of justice. It basically confines itself to the study of “is” to “ought” ofthe law. Judicial proces is basically “whole complex phenomenon of court working” ‘The judicial process sa set of interelated procedures and roles for desing disputes by an authoritative person or persons whose decisions are regularly ‘obeyed. The disputes are fo be decided according toa previously agreed upon set of procedures and in conformity with prescribed rules, As an incident, or ‘consequence, of their dispute-deciding function, those who decide make ‘authoritative statements of how the rules are to be applied, and these statements have prospective generalized impact on the behavior of many besides the ‘immediate parties to the dispute. Hence the judicial process is both a means of resolving disputes between identifiable and specified persons and a process for ‘making public policies." "adil recess yO. ay Chine7090990000000005 + NATURE OF JUDICIAL PROCESS: In the Nature of the Judicial Process Benjamin Cardozo, who later seved on the Supreme Cout of Amaia, aceed the fit tt judges do make law. However, he stated hat: "He (the judge) leislates only between gaps, He fils the open spaces in the law. How far he may go without travelling beyond the wall of he nurses cant be sake ‘xt ohm on achat He must ka ifr himself as be grins he sere of fines ane proporion shatsomes wih year of habia in de performance ofan" Cardo fer sts iat sic, ccotingtolaw mens "The judge, even when he is fe, is still not wholly free. He is net mete at plesur. Heis na nighterartreaning at will in pursuit of his own ideal of beauty ot (of goodness. He i to daw his inion fram conseted pincpes. He is not wo yield © spastic siment 0 vague an umes benevolence. He isto exercise discretion informed by wadition, methodized by analogy, disciplined by system, and sbordnted to the primar ncesty of onkr in the social life. Wide enough in all ‘conseienee isthe field of discretion hat esis + RELEVANT PROVISIONS RELATING TO JUDICIAL PROCESS CONSTITUTION OF INDIA Article 14 casts a duty onthe state which also includes judiciary to provide justice by giving equal protection of laws to all its citizens. Butt has been seen that ‘on many occasions judiciary has failed to provide the justice acconding to the provisions of constitution and statutes Inthe hierarchical system of the Cours in Insia our Constitution specifically lays down the proposition of judicial process in. [Art Lélwhich says that “the law declared by the Supreme Court shall be binding, cor all Court within the territory of Indi.”° ° ° ° oO eeveeeoceoeceo sooo Article 228 gives jurisdiction to the exiting High Courts and gives the power of administration of justice in the Cour, including any power to make rules of Court and to regulate the siting of the Court and of members thereof sitting alone ot in Division Cours, Article 256 gives a supervisory power tote union overstate For compliance ofa ae Article 356 real with Article 365 is th consunti eau for noncompliance of constitutional obligations by the state. The Supreme Court acting within the 4 walls ofthe constitutional provisions sometimes acted in its anxiety to protect harem gts ties undtaken the oes of bh ‘orgs ofthe government he lature andthe executive The Constitution dos netconi sich cormipeurt power on the Judy, Juciryhas invented novel forms of action to provide relief tothe poor, underprivileged, downtrdden sections of the society. Era ofepistolary jurisdiction is emerging. Epistolary jurisdiction allows scoess to justice to the poor and the weaker section of the society, The court enterins a letter as writ petition ignoring all procedural nams and tchicalties. The eis wstcton anew ste aot bythe juicy fi tert of men igh of the ‘vulnerable sections of the society?B, JUDICIAL CREATIVITY + INTRODUCTION ‘The traditional view of the law making proces is that Parliament makes the law trough acts of parliament and delegated legislation and judges merely apply it in court to the cases presented before them. The main reason for ths being that Members of Parliament are democratically electod to make lew. Although ‘theoretically this shouldbe tre in reality judges ean and do make law through the ‘operation ofthe doctrine of judicial precedent and sattory interpretation, + JUDICIAL PRECEDENTS. ‘As a matter of degree, the Courts tend to atach grater weight to their ovm previous decisions than to the views of text writers, A judicial precedent specks with authority. Its an evidence of law and souree of i The authority of precedents is great because of power, skill and professional reputaton of judges who make them. Judicial precedent means the process whereby judges follow previously eciled cases where the fact are of sufficient similarity. ‘The doctrine of judicial precedent involves an appl cation of the principle of | stare decisis, which is Latin for "let the decision stan ito stand by the decided In practice, this means that inferior courts are bound to apely the legal principles set ‘down by superior cours in earlier cases. Judge made law via the eases upon which they decide is one ofthe oldest sources of law. Tis provies in the law consistency and predictability, ical Process: Maser ey© ROLE OF ACTIVIST JUDGES IN JUDICIAL CREATIVITY, The activist judges play a vital role in exhibiting thee judicial creativity and they subjected the new legislation fo 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 interreting the Constitutional provisions, especially in respect of the provisions relatrg to fundamental rights. The recent ‘tend adopted by the Supreme Court has been to interpret our Fundamental rights in the light of intemational conventions which ar: yet to be enacted into our domestic favs, 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 people's quality of life. Creativity inlaw through Judicial provess is one area that is greatly benefited by the innovative and creative ‘interpretation ofthe Supreme Court and igh Cours. ‘Therefore the Creativity of the Supreme Court and High Courts shall always remain asa high benchmark of judicial creativity in Indi On the contrary, itis 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 Inter case, and the latter judgment would be one step more in the progres ofthe law. Sw lanyard com(STITUTIONAL INTERPRETA ‘A written constitution is not a selfexecuting document, and meanings of several provisions may not always be self-evident. The Courts cannot interpret & statue, much les a constitution, in a mechanistic manner. In the cae ofa statute, & ‘cout must determine the actual intent ofthe authors. Inthe case of a Constitution, @ ‘court must sustain the constitution's relevance to changing social, economic, and politcal scenarios. The courts must adopt a judicially positivist and pro-actvist liberal approach in constitutional interpretation since the law-creatve function of the judges is very well recognised now. Judges who interpret @ written constitution cannot merely apply the lw to ‘the facts that come before them. The scope of judicial creativity expands the degree ‘of sctivism when a constitution contains a bill of rights. Inthe words of Justice Benjamin Cardozo, a court must give tothe words of a constitution “a continuity of life and expression.” The judiciary at times is forging new tools, devising new strategies for the purpose of making fundamental rights meaningful forthe large ‘masses of the people, In the words of HL. A. Hart “judges have an interstitial law- ‘making function in so-called penumbral cases that are not clearly covered by existing law. The liberal, purposive, law-creative interpretation ofthe constitution ‘must be used by the cours “with insight in wo socal values, and with suppleness of ‘adaptation to changing needs." Iisa matter of judicial attitudes and choices as to how the judges approach he task of constitutional interpretation ‘The degree of necessary creativity might be well higher in constitutional ‘adjudication than is usually the case for ordinary statutory adjudication. The higher judiciary in India has been endowed with the onerous task of upholding the fundamental sights 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 eeative, dynamic, activist character of the judicial process in eases of class action and public interest litigation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 itis evident from the judicial precedents thatthe judiciary especially the Supreme Court has started playing an activist role occasionally from its rulings in cases such as [Link], State of Madras andthe activist role ofthe Indian judiciary was clearly evident in Golak Nath v State of Punjab.S ‘The judicial creativity in conatittional interpretation is not only enfin 40 explore the tue intent of Article 21, the horizon of activist approwch of higher judiciary extends intealia to other provisions enshrined in Par Ill of the ‘Constitution. A classic example of this judicial activism and innovativeness in interpreting Article 14 could be well explained by refering to the landmark case of the Supreme Court in F.P. Royappa'v. State of Tamil Nadu‘, the Apex Court challenged the traditional concept of equality which was based on reasonable classifiation and has laid down anew concept of equality Justice PIN, Bhagwati delivering the judgment on behalf of himself, Justice Y.V. Chandrachud and Justice V.R-Krishne Iyer, propounded the new concept of ‘equality in the following words “Equality isa dynamic concept with many aspects and dimensions and it cannot be ‘cribbed,cabined and confined” within traditional and doctrnaire limits” * we layerscubinda com “non gre sessC. JUDICIAL ACTIVISM + 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 supreme interpreter, protector and guardian ofthe supremacy ‘of the Constitution. The judiciary has to perform an important role in the interpretation and enforcement of human Fights inseribed inthe fundamental law of the country. ‘Therefore, it is necessary to consider what should be the approach of the {iuiciary in the matter of constitutional interpretation. The judiciary bas 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 isa highy 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 la, constituionlism etc. and itis the duty ofthe {iuiciary to so interpret the constitution and the law as to constantly inculeate 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 eeate lw but merely declares the law, ‘The Indian juticiary underwent a sca change in terms of discarding its ‘traditional approach ty charting out a new horizon of dynamic concept of judicial activism with many fees and dimensions which paved way for the activist liberal judicial approsch 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 jndicinry in applying judicial eeatvty for itarpretation of the Conatittion,+ MEANING OF JUDICIAL ACTIVISM, ‘The term judicial activism has acquired multifarious meanings ard there is no explicit statuory definition. Exymologically speaking judicial activism isthe progressive judicial thinking wherein the court involves in developing a creative ‘thought process to display the pulsating initiative ofthe judiciary which represents its active role in promoting justice. The expression judicial activism ha eluded a precise definition as it mean diferent 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 sa tool fr social enginering, In simple words it can be sad that i is an active role on the fart ofthe judiciary to implement the provisions contain in Part If of the Constintion, The Hon'ble Supreme Court of India in many of its landmark judementsheld that judicial activism isthe ative process of implementation ofthe rule ofl, essential {or 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. According to Justice P.N, Bhagwali judicial activism is “The Indian judiciary has adopted an activist goal oriented approach inthe matter of interpretation of fundamental rights. The judiciary has expanded the Fontes of ‘fundamental rights and the process rewritten some par of the Constitticn through 1 variety of techniques of judicial sctivism. The Supreme Court of India has undergone a radical change in the last few years and itis now increasingly idemitied by the justice as well as people the last resort for the purpose bewildered.” ‘Therefore, judicial activism i nothing but the eretiveness ot innev the judiciary” ions of rhyme(SIONS OF JUDICIAL ACTIVISM India is described as the world’s largest democracy on account of its ‘population. ts independent judiciary is atthe heart ofthe structure of constitutional contol which not only ensures a credible system of checks and balances in ‘governance, bu also acts as an instrument of social change and development. Since the formation of the independent Indian republic, the nation’s Supreme Court has vigorously exercised fll checks on te levislative 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 hs also interpreted its provisions in a dynamic way to respond to ‘the needs ofthe times, Judicial sctvism isthe process of filing 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 relly a dynamic instrument fashioned by society for the purposes of achieving harmonious adjustment, human relations by elimination of social tensions and confit Judicial activism is nothing but a way of exercising judicial power which ‘motivates the judges to depart from normally practiced sret adherence to judicial ‘precedents. The judiciary is one ofthe mest 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 eatlytic 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, Jodicial activism of the Supreme Court has paved way for new emerging 10Jurlprudence jn India which has been contibuting significantly mot only in imorpreting the law but also making the law fous tit ne, ‘The Supreme Court has emphasized that the judicial approach 10 the ‘Constitution should be dynamic rather than static, pragmatic and not pedantic, clastic rather than rigid. Is to be construed not as mee law but asthe machinery bby which laws are to be made. Judicial activism has taken a paradigm shift fom the traditional system to @ modem new dimension of functional approach in constitutional imerpretation. 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 wil harmonise the law with the prevailing concepts and values and make it an effective instrument for delivering justice. From the sbove observation it may be understood that the concept of judicial review sims at interpretation of the law in the light of constitutional parameters to suit the changing social and economic scenario to accomplish the deals enchvine inthe Canettin rel and mening? + DEVELOPMENT OF JUDICIAL ACTIVISM IN INDI ‘The nature of judicial process in India has undergone a metamorphosis ‘expanding the scope cf judicial review legitimately though judicial legislation. Judges have been tradtional law makers. The judicial activism bas flourished in India and has acquired enormous legitimacy with the Indian public, According to Hon'ble 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 cicumspetion, "Tail Proces by Or ay Onis * wut lanes com a‘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 lepislation 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 sndges. “This can be better understood by analyzing certain vital factors like degree of creativity, the modes, limits and legitimacy of law making through counts. 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 dee. Judicial activism in India has not been a spontaneous development. Is the consequence of situation which necessitated it. When the Parliament enacted laws ‘andthe laws were intended to cover new fact situations, the judges’ creativity and ‘innovation revived inthe matter of filing in the gaps. Apart from filing in the gaps inthe legislation, the judges revived their ereativty in all other areas which were ‘not covered by legislation." ‘The activist judges to an extent lad down law to ill the vacuum created by ‘he legislature. The judges assuming an activist role applied ther creative skills by introducing very many number of principles of interpretation of Constitutional provisions, especially in respec ofthe provisions relating to fundamental rights. In this context itis pt to quote Justice Oliver Wendell Holmes: “Lrecognize without hesitation the judges must and do legislate, but they do so only interstitial; they are confined from molar to molecular motions." ‘The genesis of Judicial Activism in India started as an off-pring of judicial review from the mid-seventes when the judiciary a8 an sctivator infused in tothe al Proce: Maser Ky 2stream of judicial sytem many revolutionary changes. After 1975 the judiciary has ‘become unelected representative of the people. Some prominent Indian legal luminaries who adomed the bench of Supreme Cour like Justice V.R Krishna Iyer, Justice [Link], Justice O. Chinnappa Reddy, Justice [Link], Justice Kuldip Singh, Justice [Link] have sensitized the democratic principles in the ‘country and played an important role by way of judicial activism and judicial creativity with ther able umpiring and proactive judgment, Judicial sctivism eared a human face in India by liberalizing access to Justice and under their leadership the Supreme Court gained in stature and legitimacy. Itis pertinent to quote Rajeev Dhavan's observation on Indian judiciary ‘ho states that “Owing to indigenous pressure, the court has been mechanical in its approach tothe 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." ‘+ ACTIVIST APPROACH OF JUDICIARY: DYNAMISM OF SUDICIAL ACTIVISM, ‘A great transformation has come about in the judicial attitude towards the protection of personal liber In the postemergency 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 th protetion of persona liberty. The Court has reinterpreted Astcle 21 and practically overruled [Link]'s casein Mancka Gandhi which ean be: regarded as a highly creative judicial pronouncement on the part ofthe Supreme: Court. The judiciary expressed its dynamism on assuming a pro-active tle in Interpretative process more particularly in guaranteeing fundamental rights ofthe citizens. This ease has acted asa catalytic agent for transformation ofthe judicial view on Anicle 21. After this phase of judicial renovation, the Supreme Court ‘adopted an activist approach has given broader and broader interpretation 5035 to {imply many more fundamental rights. 2Anicle 21 which had lain dormant for ncary three decades has Seen ‘brought to life and as assumed a highly activist magnitude. Judicial activism ofthe postemergency period means liberal interpretation of constitational provisions ike ‘Aicles 21 and 14, and reconceptualization of the judicial process by making it ‘more accessible and participtory ‘The reincamation of Article 21 which Maneka Gandhi's case brought shout has been exerting a deep impact on contemporary constitutional jurisprudence. A. very fascinating cevelopment in the Indian Constitutional jurisprudence is the extended dimension given to Anicle 21 by the Supreme Court in the post-Maacka The most sgnifcant aspect of Maneka Gandhi was that the Court laid éowm 4 seminal principle of constitutional interpretation. The Court held that thete cannot ‘be # mere textual construction of the words of the Constittion. Those words are significant with meanings that unfold when different situations arse, 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 Artice 1 slong with international charters on Human Rights has been fundamertlly ‘transformed asa result of judicial creativity. ‘This kind of judicial approach canbe seen in number of Judgments delivered by the Supreme Court. The Supreme Court has used Article 21 ina very creative manner to improve the quality of life. The Higher Judiciary, by snd large, protected the rights ofthe citizens and in particular, the Supreme Court, by proactive interpretation process in divers fields" ‘A grand stop 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 Anicle 21 by its ereatve interpretation. in various cases and come to impose positive obligation upon the state to take steps for ensuring tothe individual a better enjoyment of his life and dignity ty i sctvist approach. yin, Consol am 44Amite 21 has become the means by which the Supreme Court applies innovational technique of judicial ereativity to create new rights and entitlements on legitimate concems of judicial activism because the Court was called upon to aticulate the rights guaranteed by the Constitution. However, judicial activism in India has now taken on an interesting face. The cours in India pursue a form of review which can be described as best ialogic’ ~ a term used famously by Peter Hogg and Allison Bushell in the context of the Canadian Supreme Court's decisions. The Indian Supreme Court has enforced socio-economic rights, though they are not considered enforceable bythe ‘Constitution such asthe right against malnutition andthe right to shelter. Activist judges in india have consequently fashioned innovatwe remedies to enforce socio economic rights. ‘The Indian Supreme Cours 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 landmark judgment in Vishakav. State of [Rajasthan the Supreme Cour hs laid dow exhaustive guidelines to prevent exval ‘harassment of working women in workplaces until a suitable legislation is enacted for the purpose. The Court relied on Intemational 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)@) and 21 ofthe Constitution and filled the gap in legislative vacuum, “The dynamics of judicial process has a new enforcement dimension which includes ‘ights mobilization’ without which the rights and interests ofthe poor and iterate silent majority would become sterile, The Supreme Court has not confined itself to judge-made law in the taditional sense ofthe 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.