Don`t Worry! This report is 100% safe & secure. It`s not available publically and it`s not accessible by search engines (Google, Yahoo. Bing, etc) Sentence INTRODUCTION: Judicial Creativity is the application of law by a judge in a way that it provides just and better solutions to the victims. Indian Judiciary is an independent judiciary system where it interprets the law and provides justice to its citizens. It not only interprets law, but it also does various others functions like administering justice, creating judge made laws, protecting fundamental rights, serving as the guardian of constitution, supervising, administrating, and advising the subordinate courts1. While performing the judiciary function, the judges cannot apply the law strictly because with the passage of time the law also needs to be changed. When certain aspects of law are not clear and or when the law is silent on certain aspects, the judges need to apply their mind in a creative way in order to provide justice. In other words, it could said that Judges using their wisdom and innate sense of justice give meaning to the letter of the law that is relevant to the time and more importantly is relevant to the facts of the case2. In India judicial creativity had been applied in number of cases various new concepts and guidelines were found. Some of them are Kesavananda Barathi case, IR Cohelo case, and section 377 case. NEED FOR JUDICIAL CREATIVITY: Judicial creativity is highly needed to protect the fundamental rights, to bring innovative concepts, and to upgrade the law to the current society. By applying their creative minds judges not only apply law to the letters but they are also moulding it to suit the current situation and scenario. The growth of parliamentary system and statutory intervention in the expansion of legislation has brought about a parallel expansion of judge-made law. This can be better understood by analyzing certain vital factors like degree of creativity, the modes, limits and legitimacy of law making through courts. Also, 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 legislation3. Many Judges 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 played an important role in the field of justice by applying their judicial creativity with their able umpiring and proactive judgments4. In a nutshell Judicial Creativity is needed to To introduce principles of interpretations of constitutional provisions. To sustain the constitution’s relevance with the changing social, economic, and political scenarios. To expand the level of judicial activism. To find out the intent of law. To safeguard the provision of fundamental rights. To Understand Judge made laws. To lay down detailed guidelines on various spheres of law. To fill the gaps left by legislation. To cull out unenumerated rights. To bring Indian law in conformity with global trends in human rights jurisprudence. VIEWPOINTS ABOUT JUDICIAL CREATIVITY BY VARIOUS JUDGES: Various Judges had applied their creative minds in writing the judgments and many of them had talked a lot about judicial creativity in their judgments. The importance of judicial creativity would be understood by their words. Some of their words are mentioned over here. While Lord Denning L.J. was talking about the need for statutory interpretation in Seaford Court Estates Ltd v. Asher5, He emphazised the role, importance, and scope of judicial creativity in statutory interpretation. “It is not within the human powers to forsee the manifold set of facts which may arise; and that if even if it were it is not possible to provide for them in terms free from all ambuigity. The English language is not an instrument of mathematical precision. Our literature were much poorer if it were. This is were the Acts of Parliament have often been unfairly criticized. A Judge believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsman provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judge’s trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In absence of it, when a defect appears, a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from the consideration of the social conditions which gave rise to it, and the mischief which it was passed to remedy and then he must supplement the written word so as to give ‘force and life’ to the intention of the legislature”. Benjamin Cardazo6 had quoted that “The Judge legislates only between the gaps. He fills the open spaces in law. How far he may go travelling beyond the walls of interstices cannot be stalked out for him on a chart. ” H.L.A.Hart “judges have an interstitial law-making function in so-called penumbral cases that are not clearly covered by existing law.”7 JUDICIAL CREATIVITY TECHNIQUES TO BE FOLLOWED: Nothing is absolute. Likewise even the judicial creativity is not absolute. While applying the judicial creativity the judges must follow certain techniques. Those are • Creativity must be based on principles • Creativity must be based on changing demands of the society Creativity must be based on principles: Mr. Justice Cardozo has observed that Judge can make law but he is not wholly free to make law "The Judge is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness." Again, Justice Cardozo said that though the powers of interpretation of the Courts are narrow, yet they can fill up gaps. "No doubt, the limits for the judge are narrower. He legislates only between gaps. He fill the open spaces in the law." Judges have power and right to make law. In this context the following words of Justice Holmes are opposite. He said:- "I recognize without hesitation that Judges do and must legislate, but they do so only interstitially; they are confined from molar to molecular motion" Law is a social engineering and an instrument of social change evolved by a gradual and continuous process. As Benjamin Cardozo has put it in his "Judicial Process," life is not a logic but experience. History and customs, utility and the accepted standards of right conduct are the forms which singly or in combination shall be the progress of Law8. Creativity must be based on changing demands of the society In Bengal Immunity Company Limited v. State of Bihar, the Supreme Court has observed that it was not bound by its earlier judgments and possessed the freedom to overrule its judgments when it thought fit to do so to keep pace with the needs of changing times. The acceptance of this principle ensured the preservation and legitimation provided to the doctrine of binding precedent, and therefore, certainty and finality in the law to the changing demands of society. JUDICIAL CREATIVITY AND ARTICLE 21: Article 21 of the Indian Constitution says that “No person shall be deprived of his life and personal liberty except according to procedure established by law”. Article 21 provides the most important fundamental right. Though this article seems to be very short in reading, it had been interpreted in a wide manner to bring out its scope. The Supreme Court with the judicial activism and judicial creativity had converted the article 21 from negative right to positive right and it directed the state to take all necessary steps to guarantee a quality, dignified, and meaningful life. In the past, right to life meant only physical liberty but with the application of judicial creativity the judges have extended the scope of right to life to personal liberty too9. And using judicial creativity, the Supreme Court has brought enormous rights under the ambit of Article 21. Some of the rights created with the judicial creativity are Right to food Right to shelter Right to health Right to Education Right to clean environment Right against bonded labor Right to livelihood Right against tourcher Right against solitary confinement Right against handcuffing Right to free legal aid Right against illegal detention Right to speedy trial Right to privacy Right to work in open place PROS AND CONS OF JUDICIAL CREATIVITY: PROS: Brings out new innovative rights under the ambit of Article 21 with changing dimensions of society Curtails the lacuna in legislation Enhances people faith in judiciary Brings out guidelines on the interpretation of existing law with current social scenario CONS: Decisions and orders can be influenced for personal gain. Sometimes the application of judicial creativity may curtails the rights of citizens May commit errors in the judgments by virtue of judicial creativity When the Judiciary deprive the rights of the citizens by the application of judicial creativity, and if it commits mistake then the Higher court may correct it. Hence constant examination of the judgements are needed. Report Title: JUDICAL CREATIVITY Report Link: (Use this link to send report to anyone) https://www.check-plagiarism.com/plag-report/854970b1d6a95dc7ad199e7a9b0c776 8184311658105498 Report Generated Date: 18 July, 2022 Total Words: 1494 Total Characters: 9466 Keywords/Total Words Ratio: 0% Excluded URL: No Unique: 72% Matched: 28% Sentence wise detail: INTRODUCTION: Judicial Creativity is the application of law by a judge in a way that it provides just and better solutions to the victims. Indian Judiciary is an independent judiciary system where it interprets the law and provides justice to its citizens. It not only interprets law, but it also does various others functions like administering justice, creating judge made laws, protecting fundamental rights, serving as the guardian of constitution, supervising, administrating, and advising the subordinate courts1. While performing the judiciary function, the judges cannot apply the law strictly because with the passage of time the law also needs to be changed. When certain aspects of law are not clear and or when the law is silent on certain aspects, the judges need to apply their mind in a creative way in order to provide justice. (0) In other words, it could said that Judges using their wisdom and innate sense of justice give meaning to the letter of the law that is relevant to the time and more importantly is relevant to the facts of the case2. In India judicial creativity had been applied in number of cases various new concepts and guidelines were found. Some of them are Kesavananda Barathi case, IR Cohelo case, and section 377 case. NEED FOR JUDICIAL CREATIVITY: Judicial creativity is highly needed to protect the fundamental rights, to bring innovative concepts, and to upgrade the law to the current society. By applying their creative minds judges not only apply law to the letters but they are also moulding it to suit the current situation and scenario. The growth of parliamentary system and statutory intervention in the expansion of legislation has brought about a parallel expansion of judge-made law. This can be better understood by analyzing certain vital factors like degree of creativity, the modes, limits and legitimacy of law making through courts. (1) Also, 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 (0) Also, When the Parliament enacted laws and the laws were intended to cover new gaps. (1) Also, When the Parliament enacted laws and the laws were intended to cover new Apart from filling in the gaps in the legislation, the judges revived their creativity in all other areas which were not covered by legislation3. (1) Many Judges like Justice V. R. Krishna Iyer, Justice P. N. (1) Many Judges like Justice V. R. Bhagwati, Justice O. (6) Many Judges like Justice V. R. Chinnappa Reddy, Justice J. S. (1) Many Judges like Justice V. R. Verma, Justice Kuldip Singh, Justice A. S. (8) Anand have played an important role in the field of justice by applying their judicial creativity with their able umpiring and proactive judgments4. In a nutshell Judicial Creativity is needed to To introduce principles of interpretations of constitutional provisions. To sustain the constitution’s relevance with the changing social, economic, and political scenarios. To expand the level of judicial activism. To find out the intent of law. To safeguard the provision of fundamental rights. To Understand Judge made laws. To lay down detailed guidelines on various spheres of law. To fill the gaps left by legislation. To cull out unenumerated rights. To bring Indian law in conformity with global trends in human rights jurisprudence. VIEWPOINTS ABOUT JUDICIAL CREATIVITY BY VARIOUS JUDGES: Various Judges had applied their creative minds in writing the judgments and many of them had talked a lot about judicial creativity in their judgments. (1) The importance of judicial creativity would be understood by their words. Some of their words are mentioned over here. While Lord Denning L. J. was talking about the need for statutory interpretation in Seaford Court Estates Ltd v. Asher5, He emphazised the role, importance, and scope of judicial creativity in statutory interpretation. “It is not within the human powers to forsee the manifold set of facts which may arise; and that if even if it were it is not possible to provide for them in terms free from all ambuigity. The English language is not an instrument of mathematical precision. (8) Our literature were much poorer if it were. This is were the Acts of Parliament have often been unfairly criticized. A Judge believing himself to be fettered by the supposed rule that he must look to the language and (8) This is were the Acts of Parliament have often been unfairly criticized. It would certainly save the Judgeâs trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. (8) This is were the Acts of Parliament have often been unfairly criticized. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from (8) the language of the statute, but also from the consideration of the social conditions which gave rise to it, and the mischief which it was passed to remedy and then he must supplement the written word so as to give âforce and lifeâ to the intention of the (8) the language of the statute, but also from the consideration of the social conditions which gave rise to it, and the mischief which it legislatureâ. (8) Benjamin Cardazo6 had quoted that “The Judge legislates only between the gaps. He fills the open spaces in law. (1) How far he may go travelling beyond the walls of interstices cannot be stalked out for him on a chart. ” H. L. A. Hart “judges have an interstitial law-making function in so-called penumbral cases that are not clearly covered by existing law. (1) ”7 JUDICIAL CREATIVITY TECHNIQUES TO BE FOLLOWED: Nothing is absolute. Likewise even the judicial creativity is not absolute. While applying the judicial creativity the judges must follow certain techniques. Those are • Creativity must be based on principles • Creativity must be based on changing demands of the society Creativity must be based on principles: Mr. Justice Cardozo has observed that Judge can make law but he is not wholly free to make law The Judge is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. (8) Justice Cardozo has observed that Judge can make law but he is not wholly free to make law The Judge is not to innovate at pleasure. " ï Again, Justice Cardozo said that though the powers of interpretation of the Courts are narrow, yet they can fill up gaps. (8) Justice Cardozo has observed that Judge can make law but he is not wholly free to make law The Judge is not to innovate at pleasure. ï§ "No doubt, the limits for the judge are narrower. (8) Justice Cardozo has observed that Judge can make law but he is not wholly free to make law The Judge is not to innovate at pleasure. He legislates only between gaps. (8) Justice Cardozo has observed that Judge can make law but he is not wholly free to make law The Judge is not to innovate at pleasure. He fill the open spaces in the law. (8) Justice Cardozo has observed that Judge can make law but he is not wholly free to make law The Judge is not to innovate at pleasure. " ï Judges have power and right to make law. (1) In this context the following words of Justice Holmes are opposite. He said:- "I recognize without hesitation that Judges do and must legislate, but they do so only interstitially; they are confined from molar to molecular motion" Law is a social engineering and an instrument of social change evolved by a gradual and continuous process. (8) As Benjamin Cardozo has put it in his "Judicial Process," life is not a logic but experience. History and customs, utility and the accepted standards of right conduct are the forms which singly or in combination shall be the progress of Law8. Creativity must be based on changing demands of the society In Bengal Immunity Company Limited v. State of Bihar, the Supreme Court has observed that it was not bound by its earlier judgments and possessed the freedom to overrule its judgments when it thought fit to do so to keep pace with the needs of changing times. (8) State of Bihar, the Supreme Court has observed that it was not bound by its earlier judgments and possessed the The acceptance of this principle ensured the preservation and legitimation provided to the doctrine of (8) binding precedent, and therefore, certainty and finality in the law to the changing demands of society. JUDICIAL CREATIVITY AND ARTICLE 21: Article 21 of the Indian Constitution says that “No person shall be deprived of his life and personal liberty except according to procedure established (8) JUDICIAL CREATIVITY AND ARTICLE 21: Article 21 of the Indian Constitution says that “No by lawâ. (8) Article 21 provides the most important fundamental right. Though this article seems to be very short in reading, it had been interpreted in a wide manner to bring out its scope. The Supreme Court with the judicial activism and judicial creativity had converted the article 21 from negative right to positive right and it directed the state to take all necessary steps to guarantee a quality, dignified, and meaningful life. In the past, right to life meant only physical liberty but with the application of judicial creativity the judges have extended the scope of right to life to personal liberty too9. And using judicial creativity, the Supreme Court has brought enormous rights under the ambit of Article 21. Some of the rights created with the judicial creativity are Right to food Right to shelter Right to health Right to Education Right to clean environment Right against bonded labor Right to livelihood Right against tourcher Right against solitary confinement Right against handcuffing Right to free legal aid Right against illegal detention Right to speedy trial Right to privacy Right to work in open place PROS AND CONS OF JUDICIAL CREATIVITY: PROS: Brings out new innovative rights under the ambit of Article 21 with changing dimensions of society Curtails the lacuna in legislation Enhances people faith in judiciary Brings out guidelines on the interpretation of existing law with current social scenario CONS: Decisions and orders can be influenced for personal gain. Sometimes the application of judicial creativity may curtails the rights of citizens May commit errors in the judgments by virtue of judicial creativity When the Judiciary deprive the rights of the citizens by the application of judicial creativity, and if it commits mistake then the Higher court may correct it. (8) Hence constant examination of the judgements are needed. Match Urls: 0: https://www.academia.edu/15357708/JUDICIAL_ACTIVISM_AND_CREATIVITY_OF_THE_SUPREME_COURT_THE_TOOLS_AND _TECHNIQUES_OF_CREATIVITY 1: https://www.lawyersclubindia.com/articles/Judicial-Creativity-in-Constitutional-Interpretation-5749.asp 2: https://www.drishtiias.com/to-the-points/Paper2/judicial-activism-restraint-overreach 3: https://www.coursehero.com/file/146421048/JUDICIAL-ACTIVISM-AND-CREATIVITY-OF-THEdocx/ 4: https://indianlawportal.co.in/judicial-creativity-by-lord-denning/ 5: https://environlaw.wordpress.com/2016/04/25/first-blog-post/ 6: https://bommesh.weebly.com/blog/the-tools-and-techniques-of-judicial-creativity-and-precedent 7: https://www.insightsonindia.com/2020/04/10/article-21-of-the-constitution-provides-no-person-shall-be-deprived-of-his-lif e-or-personal-liberty-except-according-to-the-procedure-established-by-law-analyse-the-value-principle/ 8: https://www.rcgroups.com/forums/showthread.php?4141601-Please-clarify-my-violation-so-I-may-correct-it-Thanks Keywords Density One Word 2 Words 3 Words creativity 4.15% judicial creativity 3.15% changing demands society 0.43% judge 3.72% article 21 0.86% judicial creativity judges 0.43% judicial 3.58% creativity based 0.57% rights ambit article 0.29% judges 2% judge law 0.57% life personal liberty 0.29% justice 2% creativity judges 0.43% based changing demands 0.29% Plagiarism Report By check-plagiarism.com
