This article is written by Kanika Bhakhna.

Introduction

Are lawyers allowed to use creative mindset? This question stands for different opinions of legal experts. Lawyers are trapped in traditional ways of approaching their legal issues. From their office furniture to the language they use with their clients, everything represents legal practices in the 19th century. Recently, Chief Justice of India S A Bobde asked the Supreme Court registry to replace the use of legal size paper for internal communication, concerning every level. Our country’s legal system has been practising British laid rules for decades. As it is said, “old habits die hard in legal practice”. Hence, it took over 50 years to end the British laid system of using legal documents and shift to more economised A4 sized sheets for legal work.

We still don’t see uniformity in the use of the same legal sheets size at a different level. Thinking out of the box comes with many challenges in the legal field. Changing what has been going through the system for years can take real convincing time. For eg, Indian laws still stand confused about marital rape. It is a crime that is still to get criminalised recognition. The unwilling sexual intercourse between husband and wife above the age of 15years is excluded from the definition of rape under Section 375 of Indian Penal Code, Exception II. The ongoing fight between the old law and the need for reforming it is still going on. This shows how difficult it is to get rid of what is already being practised and adapting what should be practised.

Our law barriers are constantly trying to save legal tradition. Sometimes, this makes them inconsistent with creativity. Starting from the first day of the law school, lawyers are told to use analytical skills to deal with problems. They are moulded in the ways that they feel most comfortable with their analytical reasoning and ignores the importance of creative thinking in the field. There are some fundamental changes that have to be considered to bring creativity in legal minds. In order to understand the true essence of creative thinking, it is important to know what exactly the process means. 

Importance of creative thinking in law

Creative thinking is an art of moving towards something new and innovative. Through Creative thinking, a person knows how to apply a different approach to solve a problem rather than just simply criticising it. In legal society, advocates have been working through critical reasoning. It is the essence of our legal system for centuries. Our eminent jurists and law school professor teaches how to find the faulty area in a case and back it up with already existing laws. 

No one could change social evils like SATI and child marriage if we continuously accepted what was told to us and failed to involve the sense of thinking in it. Rules need to change in order to make a better healthy social environment. Apart from dishonesty towards society, there are multiple challenges that come in the following case laws without innovative thinking. Case laws sometimes adopt rigidity in the laws that demand flexibility. There are constant political, economic and social changes happening in the society. The previous law can be inconsistent with the present changes. Rigid case laws can act as interference in providing individuals justice. Also, facts and circumstances differ from case to case.

The ruling of one landmark case might not be as beneficial as it was 25 years before. Changes in society can make changes in the demand for justice. But sometimes, judges get bound to fear of ruling against cases previously decided by eminent senior judges. As overruling an authority comes with a lot of responsibility. It makes them answerable to various authorities. Because of which judges, even when having conflicting opinions tries to avoid their opinion and follow already laid case rules. Courts have now and then realised the importance of thinking beyond case laws while making judicial decisions. In the case of Megh Singh Vs. The state of Punjab has held that “Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases or between two accused in the same case. Each case depends on its own facts and a close similarity between one case and another is not enough because a single significant detail may alter the entire aspect.” 

Sailing over new horizons

In advocacy, dealing with the archaic approach of case laws can be harmful to the outcome of the case. There will be times when the judge will stop considering the role of the previous case in the present scenario due to various factors. If the representing lawyers stick to the archaic approach of dealing with the case it might cause him to lose his case despite merits. It is not what you deliver in court that matters, but how you deliver it matters a lot. And your approach will always govern how you deliver your argument in the courtroom. 

Sometimes, when a lawyer thinks about new aspects of the case, it can give him an opportunity to set new precedents. The innovative approach makes him capable of looking into loopholes in the already existing laws. By pointing out these loopholes, he can successfully help the court in setting up a new precedent for the betterment of society. For eg. the landmark Golaknath case lead to a major change in the constitution of India. And after that Kesavananda Bharati Vs. The state of Kerala detected legal mistakes in the decision made in the previous cases and made many important decisions for the improvement of the Indian legal system. It was named as “The case that saved Indian democracy”. Had there been a rigid mind of legal experts to follow already laid cases in the above landmark cases it would lead to great chaos in the functioning of the country.

People would be afraid of the government and many political sabotaging was to be seen. But thinking through things made legal experts save the democracy of India. But the problem arises when lawyers try to prove legal mistakes in 45 years old judgement. For eg. a hypothetical situation in which a lawyer or a judge finds a mistake in Kesavananda Bharati judgement, he will face many psychological challenges before facing legal challenges to work towards curing that legal mistake. His constant fear of a rigid legal system will make him eventually accept the case law rather than working on the mistake.

Had Kesavananda Bharati’s judgment not happened, there would have been many unfavourable conditions in the country by now. Politicians would use their power to mould the constitution as per their requirements. Hence, it is important to think and analyse the legal problem beyond the rules and strategies explained in the law schools. 

Law depending on case laws are not comprehensive. Lawyers should know how to read facts and laws in its accordance through new ideas. Just depending on case laws can make the case weak. Most importantly, it will make our legal system weak. Everything on a lawyer’s desk should go through new avenues of ideas and legal knowledge. A lawyer should know how to balance the already existing laws and necessary innovative ideas in dealing with laws. As a lawyer, a person should stop criticising himself for going against established rules and thinking deeper about the case and public welfare. 

Conclusion

Legal Creativity is important more today than ever. The first reason is definitely that the legal field owes to serve society always. But there are many laws that are developing with time. Laws like Intellectual Property and Cyber Crimes etc cannot work on the sole ground of case laws. There is now and then something new and challenging happening that would require thinking about laws that were never in existence. Foundation of protecting intellectual properties was itself very creative. Though the law came into force in around the 17th century it has changed a lot in every 10 years as per the need of the old society and legal system. This could only be possible because of the creativity involved in the minds of legal experts in dealing with intellectual laws. Legal debates about triple talaq and forming of big law firms working together, these all are the result of creative thinking and not sticking to old modus operandi of rules. 

When people ask you to “think like a lawyer”, they want you to be smart, careful and more analytical about dealing with things. Being a lawyer comes with great responsibility. It demands you to think about a situation not from one side about from all its dimensions. There should be no faulty area. And most importantly, whatever the case may be, justice should be served at the end. Humans have been living humanely because of disciplines and laws in society. Developing these laws majorly requires thinking about things that have never been thought about before. Hence, killing creativity will make a lawyer fail his duties. Bringing out creativity will make him bring much needed yet neglected changes in laws dealing with justice.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: