Constitutional Law: Judicial Creativity in India

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Judicial creativity in India has been a very integral part of the justice system and has been a cornerstone is providing a modern outlook to the judiciary. Judges have been not only applying the law to the letter but also moulding it to suit the present time and situation. Judicial creativity is very important to provide true justice to the citizens of the country, as many times the legislation is not clear on certain aspects of the law or is silent on them. It is in these scenarios that the creativity of the judge comes into the picture, the judge can apply the law in a way which is truly just and provides a better resolution to the victims. This becomes even more important in the case of The Constitution as it is not only the law of the land but a 70-year-old document at this point.

Explanation of the concept

Judicial creativity can be described as the fluid part of the law, as a layman we understand law to be the rules and regulations made by the government. The problem comes when enough time has passed that those rules seem archaic and now do not seem relevant, it is here that the judicial creativity comes into the picture. 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 case.

Examples of Judicial Creativity in Constitutional Law and the Provisions Involved

In India two major landmarks in judicial creativity were when the basic structure doctrine was introduced in Kesavananda Bharati v. State of Kerala and when the concept of judicial review was upheld in I.R. Coelho v. State of Tamil Nadu. In Kesavananda Bharati the judges recognized that there are certain basic parts of The Constitution that cannot be changed or amended as they form the core of The Constitution. This was named the “basic structure” of The Constitution.

In I.R. Coelho the judges at the time saw the tyranny caused as a result of Schedule 9 of The Constitution being kept out of the purview of judicial review and thus over turned the previous judgement and held that all laws placed under Schedule 9 are within the purview of judicial review.

Critical Analysis

The above stated case laws are a great examples for understanding the concept of judicial creativity. In Kesavananda Bharati the courts used their creativity to make sure the fundamentals of the constitution remain unchanged and hold the true essence of a democracy by making a basic structure doctrine. This doctrine encapsulated the essential elements of our constitution like the fundamental rights, judicial review etc. and the Courts held that the basic structure of the constitution cannot be changed and any law passed by the legislature will have to abide by and be in consonance with this basic structure. This ensured that the rights of the people cannot be violated by any legislation not only in the present but in the times to come as well.

In I.R. Coelho, the law on paper stated that laws under Schedule 9 were outside the purview of judicial review. The judges however used their understanding of the law and their innate sense of justice to recognize that this was in violation of the basic structure of The Constitution and thus could not be held valid.


Judicial creativity in constitutional law has been widely applied in India which helps in providing better justice to the citizens of the country however, there remains scope for improvement. Time and again we see cases where the law is applied but justice isn’t provided as just reading the law to the letter is not the solution. There remain a large number of cases where our courts, especially at the lower levels could provide better solutions by applying the law to the particular facts and moulding it to provide a better solution.

Author: Siddhant Singh from Symbiosis Law School, Pune.

Editor: Astha Garg, Junior Editor, Lexlife India

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