This article has been written by Priyanka Sharma pursuing LLB from Symbiosis Law School, Pune and the article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders).
Table of Contents
Introduction
The judiciary play a crucial role in interpreting the Constitution’s provisions. The court serves as the sole interpretator, protector and caretaker of the Constitutional’s supremacy. The judiciary must play a crucial role in interpreting and enforcing the country’s human rights, which are codified in the country’s fundamental law. As a result, it is important to understand the judiciary’s approach to constitutional interpretation, and a judiciary must formulate realistic wisdom after adopting an innovative and purposeful approach to the interpretation of various constitutional rights.
The issue arises if more time has elapsed for such laws to become outdated and no longer relevant this is where judicial imagination comes into play. The spirit of the law that is applicable to the moment and, more importantly, relevant to the facts of the case is given interpretation by judges using their knowledge and natural sense of justice.
The Judicial system experienced a revolutionary change in terms of abandoning its conventional approach and establishing a new frontier of diverse judicial activism with many aspects and dimensions, paving the way for an activist liberal judicial mechanism based on the Constitution.
Statement analysis
As a casual observer, many consider law to be the laws and regulations enacted by the government. Judicial creativity can be viewed as the flexible part of the law. As when required the laws are not been rigid and judgments are delivered on the basis of the facts by the judges using their wisdom.
The courts in Kesavananda Bharati exercised their creativity to ensure that the foundations of the constitution are preserved and that the ultimate goal of democracy is preserved by creating a basic structure doctrine. The constitutional rights, judicial review, and other aspects of our Constitution is embodied in this doctrine.
Validity
At times the validity of the decisions might be questioned. When the society revolts against the judiciary’s judgments, the issue of the judiciary’s legitimacy arises, since it lacks common approval. That is why renowned legal scholars have advised the judiciary to exercise extreme caution when ruling legislative acts unconstitutional. The judicial override must only be used in situations where there is “no space for reasonable doubt.”
No legislature can predict future events with a fair degree of accuracy, and any enacted statute will inevitably expose some holes that the judiciary will be required to fill. This is referred to as judicial legislation. Although acknowledging this self-evident fact, Justice Oliver Wendell Holmes observed:
“… I recognise without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions.”
In the case of Seaford Court Estates Ltd. v. Asher, According to the judge the people who have made the law cannot be blamed for not making laws required to the current situations but the laws can be introduced or altered keeping the basic structure the same as when required on the basis of the facts of the case.
Like it was done in this case when the landlord proved the valid reason to increase the rent of the apartment as he was providing the extra facilities to the tenant.
Language of interpretation
The term “judicial interpretation” might refer to many different things. This word applies to any idealisation of a normative concept to a norm-formulation in its broadest sense. When interacting with legal words and language, this sense of “interpretation” is making the use of the language in a particular context.
The English language is technical jargon and interpretation becomes difficult.
Many legal interpretation issues occur as a result of a misalignment seen between structure of our universal grammar and the objectives of a context in rule of law.
This conflict is an unavoidable result of the human experience. To add to the linguistic intrigue, the legislation has been known to incorporate linguistic concepts as constitutional concepts in order to overcome linguistic vagueness.
With so many moving pieces, it’s no surprise that the legal system struggles to overcome linguistic ambiguity. The fact that judges have started to include linguistic context to analysis in their array of interpretive resources should be beneficial to the linguistic system.
Indian perspective
In India, the concept of judicial creativity has been implied as the judges have been delivering the judgments in the spirit of laws and interpreting them in context of the facts. The judges are using their wisdom and natural sense of justice and not just the literal meaning of the stated law. It is very important to do so or else it would be difficult to make the right judgments. It’s been a while where judges alter and introduce the law as and when they are required to update the system by making it more efficient in current time.
For example:
“Article 21 – Protection of Life and Personal Liberty – Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law”.
The Supreme Court of India’s judicial activism, a slew of privileges have been held to be derived from Article 21. However, some of these orders can raise serious concerns.
For instance – Rape has been declared a violation of a person’s right to a fundamental life protected by Art. 21. The right to life includes the right to live with dignity. As a result, the right to life will include all facets of life that contribute to making lives better, effective, and worthwhile.
Rape is therefore not only a crime against a woman’s individual (victim), but also a crime against society as a whole. It devastates a woman’s entire psyche and drives her into intense emotional turmoil. Only through her sheer willpower does she rehabilitate herself in a world that, upon learning of the abuse, looks down on her with scorn and disgust.
As a result, rape is by far the most despised crime. It is an offence toward basic human rights, as well as a violation of the victim’s most prized civil right, the right to life and dignity enshrined in Art 21.
The punishment for rape has not been standard or rigid. They all have differed on the basis of the facts of the cases and Judges practice judicial creativity and interpretation.
Critical appraisal
The judiciary plays an important role in a country’s citizens’ rights being upheld and promoted. Judicial advocacy refers to the judiciary’s active role in protecting citizens’ rights and maintaining the country’s constitutional and legal framework. This means, on occasion, intruding into the executive’s domain.
Judicial activism establishes a system of checks and balances for the government’s other branches. It emphasizes the importance of necessary creativity in the form of a solution. It encourages judges to use their own judgment in situations where the law fails to provide a balance. It builds the faith in judges and offers information about the issues. Judge’s oath of giving justice to the nation should not alter as a result of judicial activism. It just encourages judges to do what they think is appropriate within reasonable bounds. As a result, the confidence in the justice system and its decisions has been implanted. It aids the judiciary in reining in the state government’s abuse of power as it interferes with and hurts citizens. In the case of a plurality, it aids in the quick resolution of issues where the legislature is unable to take action.
Judicial activism and judicial restraint
“Judicial activism, is the exact opposite of judicial restraint. The two words used to characterize the ideology and purpose behind certain judicial decisions are judicial activism and judicial restraint. At its most basic level, judicial activism refers to a philosophy of judgment that considers the spirit of the law as well as the social changes. Judicial restraint, on the other hand, is based on a strict reading of the law and the value of precedent.”
Judicial activism and Parliament
Where there are any holes, ambiguities, or inconsistencies, the judges attempt to fill them in creatively, describe the complexities, and explain the ambiguity. While practicing that, the judges are acting as both an interpreter and a legislator. This position is evolving and taking on new facets. The judiciary is not only monitoring the abuse of authority by other state institutions, but it is also acting as a “activist.” The more ambiguous a statute is, the more room there is for judicial discretion in making decisions. Many new ideas have emerged as a result of judicial ingenuity that are not contained in any particular provision of the Constitution but are critical to its significance. To fill in the gaps the judiciary needs to step in.
Judicial activism and public interest litigation
In a welfare state ruled by the rule of law, where personal and group rights are protected and enforced, public interest litigation is a valuable impetus of judicial activism. The Supreme Court considered a document written by two law professors arguing that the residents of a protective home were living in inhumane conditions as a writ petition in Upendra Baxi v State of Uttar Pradesh. As a result of their precarious situation, such prisoners were unable to seek legal relief in the courts.
The court not only considered the letter as a writ petition, but also gave two law professors standing to continue the case.
As a direct consequence, the goal of public interest litigation is to ensure justice for the poorer members of society, while judicial advocacy is an attempt to ensure justice for all members of society. Ever since emergency, the Supreme Court and the High Courts have issued judgments in a variety of fields, including human rights, governance, and so on.
Judicial activism and human rights
“The basic requirement for a healthy functioning of the judicial process is the right consciousness amongst the people whereby all possible interests in the society are pressed upon the judicial system and the courts are able to strike a balance between these interests in the framework of the social objectives. The social acceptance of judicial process as an objective and rational agency of social orderings depends upon the intrinsic merit of the judicial pronouncements and their social consequences.
Actually, the judiciary draws strength from the people’s confidence that the judiciary shares the widely held values in the society and its policies are geared to the achievement of social goals. The right to access to justice is the most important of all human rights. By easing the rule of locus standi, the judiciary has attempted to alleviate the sufferings of a vast number of illiterate and disadvantaged citizens via the innovative mechanism of Public Interest Litigations (PILs).”
Conclusion
There are instances where a decision made one way or the other would have long-term consequences, advancing or delaying the progress of the law in a reasonable direction by a significant amount of time or a small amount of time. The judge has an ability to shape the law in these kinds of scenarios, where the judge must leap into the core of legal darkness, where the lights of tradition and common law values flicker and disappear and that the court is given the chance to form and guide the law.
Judges should not need to be embarrassed or apologetic about the law establishing positions. It is the court’s job to give sense to what the law has said, and it is this phase of interpretation that makes a court’s job the most innovative and exciting. The Supreme Court became a sign of hope for the Indian people in recent years as a result of its judicial activism.
Judicial activism has contributed in various areas as mentioned above and has led to deliver justice in the spirit of law.
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