In modern societies, the concept of maximized justice of individuals, especially that of the subaltern section of the society, comes in conflict with that of the interest of the state and societal perceptions of restrictive justice. It can be often seen that this restrictive form of justice favours the male-dominated society where rules are carefully formulated in their favour. Social media in no way offers a fair platform for women to express their individual opinion without fear. Violence is perpetrated against women through social media platforms like any other institution of society in order to ensure the dominance of men and patriarchal social values. Feminism addresses this character and intention of violence directed against women. Hence, it is considered to be an efficient theory to understand the reason and causes for increasing violence against women in social media.

With the advent of social media platforms, women worldwide have turned vulnerable to technological crimes like morphing, fake profiling, and cyber bullying. Though the provisions of IPC and provisions of the Information Technologies Act try to prevent these crimes to an extent, the efficiency of these laws is still a matter of doubt. Further, society trains women to ignore the cyber bullying that they face in social media. Thus, even these digital platforms have turned into a space of male dominance. Feminist activists who express their personal opinions have been hunted down by the rivals using social media platforms. They use social media as a means for character assassination, for making sexual remarks, and even to make rape threats. Thus, the choice of speech and expression of women are limited in social media. These offenses continue to increase regardless of strict actions on the part of police and the state. The offenders also prefer social media to do the same as it acts as a veil that protects their identity. Here the state not only fails to ensure women protection against cyber violence but also fails to ensure their freedom of speech and expression guaranteed under the Indian constitution. This inaction of the state forces the women to keep themselves out of these platforms or hide their identity while being on these platforms. 

Though cyber violence against women raises serious concerns regarding their freedom of speech and expression, it remains unaddressed by the legislature and judiciary. This might even be due to the reason of lack of awareness among women regarding their rights in cyberspace or might be due to the failure to understand the scope of Article 19 (1) (a) in cyberspace. Further, women who are forced to remain in silence can in no way be said to live with dignity. Thus, it not only leads to the violation of freedom of speech and expression but also leads to the violation of the right to dignity.

Indian constitution is based upon two pillars, one being the pillar of democracy and the other being the pillar of justice. Though one may feel that India as a democracy is technically fulfilling all the essential requirements of democracy, it remains a fact that democratic justice is still a forbidden fruit to the subaltern class of the society, especially to the women. As a democratic and civilized nation, the system at times fails to identify the existence of the justice pillar of the constitution. The Justice pillar of the constitution guarantees justice to all the sections of the society regardless of one’s class, caste, sex, or any other modes of affiliations. Justice can be said to be done only when what is due to the aggrieved is provided. When the law fails to provide victims of violence justice, it essentially proves the need to strengthen the justice pillar guaranteed by the constitution. The reason for the failure of the justice pillar of the constitution in providing justice to the subaltern class of the society, especially women, maybe due to the flawed base on which laws are based upon. One can find a solution to this existing problem by identifying the jurisprudence that can isolate and study the reason for continuing increase of crimes against women.

Article 21 guarantees one the right to enjoy his life in its fullest form. Mere survival will only provide for partial satisfaction of Article 21. When violence is used as a tool to pull out a section of the society from the public platforms, it not only leads to violation of the right to life but also leads to subsequent violations of Article 19 (1)(a) and Article 14 of the constitution. Usually, such violations are used as a tool to keep the underprivileged and especially the women of the society suppressed. Violence against women thus constitutes the major obstacle for achieving the true meaning of the term women’s human rights. The theoretical and legal framework of feminism recognizes physical, sexual, psychological, economic, and institutional violence against women. However, it is essential to understand the current definition of the term “violence against women” so as to clearly identify the extent of injustice done to them. Article 1 of Convention on Elimination of All Forms of Discrimination Against Women define violence as:

“Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women irrespective of their marital status on a basis of equality of men and women, of human rights and fundamental freedoms in political, economic social cultural, civil or any other field.” 

The main reason for the increasing violence against women is due to the power inequalities that exist between women and men. Violence against women is thus not only a gendered act that violates the fundamental human rights of women, but it is also a means of discrimination. Women who are engaged in the field of politics, social services media, and academics are particularly vulnerable to the violence in social media as they challenge the existing notions of patriarchy. Social media is a very easily accessible platform for women in this technologically advanced world. It can also be used as a vital tool to turn the world’s attention towards the injustices that women are facing in society. Campaigns like that of #MeToo have shed light on the issue of abuse of women. While women are still underrepresented in all other institutions of the patriarchal society, social media offers them a more level playing ground allowing views of women from different backgrounds to be heard out loud in the society. However, like any other institution of patriarchal society, women are more likely to be subjects of cyber abuse on social media platforms. Social media is notorious for its wild nature, anonymity, and massive reach, which creates a multitude of hostile gender abuse.

Violence against women in social media curtails their fundamental right of freedom of speech and expression by discouraging them from involving equally in the public space. General macho aggressive tone and abuse content are so similar and widespread that they are credible evidence of severe backlash and rising hostility of women in cyberspace. Women are also thus hostile to meaningful sharing of the power. Rather than focusing on fighting back or teaching women to ignore violence, we need to look up for the reasons for such a high level of machismo online. Mere muttering about either patriarchy or approaches to control violence is of no use. The leading cause for abuse against women in social media platforms is that “men are effectively using the social systems to keep the women suppressed and even the system sides with such attempts.” Thus the law should be victim-oriented, and the focus should be on protecting the victim and not on punishing individual perpetrators for tackling the problem embedded in unequal sharing of gender power. Then only the constitutional pillar of justice will be strengthened.

India lacks a nationwide comprehensive study on the issue of violence against women in social media. India also has no dedicated legislation to deal with violence against women in social media. The two central legislations that remotely address this issue of violence against women in social media are the Indian Penal Code of 1860 and the Information Technology Act of 2000. However, it remains the fact that the objective of the IT Act is not to deal with these kinds of offenses but to reduce the risk of transacting online. Further, even when the cases are registered, the onus is put on women to ensure that their private information is not leaked. Victim blaming by law officials has become a usual scenario. Thus the victims are often reluctant to approach the police or other law enforcement officials seeking justice. Thus women in general and activists and professionals are particularly vulnerable to receiving sexist and misogynistic comments that often escalate to criminal abuse in the form of rape and death threats. Women who face online abuse often exit or suppress their further visibility online. Multitude of abusers works in tandem, and they are often referred to as troll army. Concerns about internet freedom further bring tension to this issue.

Sexism and misogyny in electronic media have increased dramatically during recent days. The daily newspaper report, which cites instances of social media platforms being used as an effective tool to perpetrate violence against women, raises genuine concerns. It shows how social media platforms act as an effective catalyst by providing a safe harbour for the perpetrators of violence. Social media is answerable for the massive increase in sex trafficking, pornography, revenge pornography, sexting, and cyber bullying. Women are easily targeted in social media for expressing their views. Thus social media has become a powerful vehicle for misogynistic threats and harassment, which subsequently result in the silencing of women. Online violence and abuse of women deny them the right to express themselves freely and equally without fear. A 2017 international study by Amnesty International provides that over more than 76% of women had experienced abuse or harassment in social media. Thus, violence against women in social media is a global problem. This demands the legal fraternity to examine the basic lacunas in the current jurisprudential understanding of such crimes and examine the same from the perspective of the abused, which in this case are the women.

Violence against women human rights defenders and activists in social media aims to damage their credibility as public workers by diminishing their voices and restricting their already limited public space. When one looks into the case studies, it is very evident that victims of violence in social media face damage to their freedom of speech and expression, economic, social, political, and cultural spheres of their life. As observed by Japleen Pasricha in her article Violence Online in India: Cybercrimes Against Women and Minorities on Social Media:

“What we have today is a flawed internet that reflects the offline world we live in where women and marginalize communities are abused, harassed, threatened, stalked, and violated daily it discourages marginalised groups from using the internet to access important news and discourages them from voicing their opinions.”

Here comes the relevance of a jurisprudential theory that will give one the right diagnoses of the cause for the increasing violence against women. Being the most vulnerable amongst the subaltern class in a society dominated by patriarchy, it is necessary to look into this issue through the eyes of a jurisprudential theory that protectively discriminates women from others. Feminism, in particular, appears to be the best diagnostic technique available for us to find the cause and suggest a remedy to this issue. Feminists view society as one that is dominated by men in which women are oppressed, and they seek to abolish patriarchy in order to “liberate everyone from an unjust society by challenging the existing societal norms and restrictions.” These include but are not limited to opposing the sexual objectification of women, violence against women, and challenging the concept of gender roles. Feminism diagnoses the root cause for the violence against women in patriarchal gender relations. This theory argues that a patriarchal society view women as someone other to the male norm and such have been systematically oppressed and marginalized by the social system which is in place. Even the justice system is designed in favour of men, giving them an unfair advantage and an extra edge over women. Thus the technology, which is supposed to be a liberating force which is having the power to resolve the existing gaps and disadvantages that women are facing in society, has, however, proved counterproductive by siding itself with the historical institutions of patriarchy. 

“We are deeply disturbed by the diabolical recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new peril when the guardians of the law gore human rights to death. ”

BACKGROUND

The phenomenon of custodial violence is not new in India, and its presence, in various forms, can be traced throughout the history. From Kautilya’s Arthashastra to Manu’s laws to the atrocities in British Raj, every age has witnessed it. However, the situation currently prevailing in the country is the legacy given to us mostly by the colonizers. The colonizers were infamous for employing custodial violence, in order to make people confess a crime, which they had not even committed most of the time. Torture in various forms, including denying food, giving insufficient quantity of food, or whipping people, were applied.

It is also pertinent to note that these horrendous acts were committed by the servants of the colonizers. Their motive was not to gain appreciation and respect of their subjects, but to create an era of terror and oppression. The term ‘Police’ started to symbolize repression. Unfortunately, the laws that are currently prevailing in India are the very ones that were created by the foreign government. Without various amendments, the same model and the same penal code are still being followed. For instance, the Prison Act of 1894 stands unchanged, and it still authorizes jail officials to punish the prisoners upon breaking of rules by them.

There are various faces of Custodial Violence some of which include, Police torture, degradation in the quality of life of the detainees, under-trial torture and many more, some of which leading to the death of the person including gross violation of his basic rights even enshrined under Article 21.

PROBABLE REASONS BEHIND CUSTODIAL VIOLENCE

There can be many reasons pertaining to the commission of Custodial Violence, some of which are listed below:

1) Overburdened Police Force- There are plethora of matters in which the police is investigating and in order to complete the investigation on time and to record the statements police often retorts to the third degree, leading to the custodial violence. The latest BRPD data shows there are 138 police personnel per lakh population and the sanctioned strength is 181 personnel per lakh population .

2) Lack of proper training and Greed for money- The social menace of Corruption is holding the Police machinery from the roots, which has been evident in various real scenarios. The draconian old principle of, “Law of the Mighty” comes into the picture, when the incident of Custodial Violence takes place on account of unjust monetary enrichment. Furthermore, the police constables or any other person concerned with the investigation, are not specifically trained from the Psychological perspective as how to use the other means to extract the information. Sometimes, the shortest means is to use the torture and other strict mechanism and they easily fall prey to it.

3) Lack of Accountability- The greed for money and unethical practices of corruption has led to a serious issue of accountability on the police and other concerned authorities.

CUSTODIAL VIOLENCE: A CONSTITUTIONAL PERSPECTIVE

The Rule of Law principle, provides for the effective application and implementation of Article 14, which is the constitutional mandate for the noble idea of “Rule of Law”. This Noble Idea, is pivoted on the idea of equal treatment under equal circumstances and by virtue of Article 21, the right to life has an essential trait attached with it, “due procedure of law”. The Right to life enshrined under Article 21 cannot be suspended even in the time of emergency, but on account of Custodial Violence, the detainee is deprived of his quality of life, which can never be justified. This principle finds its origin from the Jurisprudence of Natural Rights and as elucidated by Thomas Aquinas,

“Unjust Law is no law”

We can clearly find this idea, to be self-explanatory, as Article 21 is shadowed by the ideology of “due procedure established by law” and no law which is violative of Fundamental Rights of any individual can be justified.

In Raghubir Singh v State of Haryana, Hon’ble SC obtained a pragmatic approach and held police torture and custodial violence to be “disastrous to our human rights awareness and humanist constitutional order”.

“We are deeply disturbed by the diabolical recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under the new peril when the guardians of the law gore human rights to death”

In CERC v UOI , the Hon’ble SC held that equality is the basic feature of the Article 21 and in the celebrated case of Francis Coralie v Delhi Administration , the Hon’ble SC held that Right to life under Article 21 does not mean mere animal like existence. The basic tenets associated with life includes life with dignity and respect. When a person is subjected to Custodial Violence, including all forms of the torture used by the officials, then the basic Jurisprudence of the Article 21 is shattered into the pieces. The deprivation of the quality of life which brings him under different scenario from rest of the people or detainees, is a sheer mockery of the doctrine of Rule of Law under Article 14.

CONCLUSION

Sometimes, the force used against the person is disproportional to the degree of harm caused by him, which again proves this practice to be ‘unreasonable’ when viewed from the realm of Article 19 of the Constitution. The malpractice of Custodial Violence, is a direct assault on the cannons of Criminal Jurisprudence, where a person is deemed to be innocent until proven guilty and the treatment inflicted upon a person is no less than a punishment. Therefore, these practices not only defeat the Constitutional mandates of Article 14,19 and 21 respectively, but also nullify the rights of the arrested enshrined under the Code of Criminal procedure Code, 1973.

In my last piece, I had continued with my discussion on Section 124A of the IPC with reference to Constituent Assembly Debates to demonstrate that the framers of the Constitution were aware of the limitations imposed on the interpretation of the provision by British Indian Courts. This awareness led to the replacement of the term ‘sedition’ by Shri K. M. Munshi in Draft Article 13 of the Draft Constitution, which later became Article 19, with the words “which undermines the security of, or tends to overthrow, the State”. Shri Munshi underscored the point that the only reason for the replacement was to ensure against misuse of sedition and not to give free pass to acts against the State (which was distinguished from the government). Following are a few more relevant excerpts from the Debates of December 1, 1948:

“Shri K. M. Munshi: I was pointing out that the word ‘sedition’ has been a word of varying import and has created considerable doubt in the minds of not only the members of this House but of Courts of law all over the world. Its definition has been very simple and given so far back as 1868. It says “Sedition embraces all those practices whether by word or deed or writing which are calculated to disturb the tranquility of the State and lead ignorant persons to subvert the Government”. But in practice it has had a curious fortune. A hundred and fifty years ago in England, holding a meeting or conducting a procession was considered sedition. Even holding an opinion against, which will bring ill-will towards Government, was considered sedition once. Our notorious Section 124-A of Penal Code was sometimes construed so widely that I remember in a case a criticism of a District Magistrate was urged to be covered by Section 124-A. But the public opinion has changed considerably since and now that we have a democratic Government a line must be drawn between criticism of Government which should be welcome and incitement which would undermine the security or order on which civilized life is based, or which is calculated to overthrow the State. Therefore the word ‘sedition’ has been omitted. As a matter of fact the essence of democracy is criticism of Government.

The party system which necessarily involves an advocacy of the replacement of one Government by another is its only bulwark; the advocacy of a different system of Government should be welcome because that gives vitality to a democracy. The object therefore of this amendment is to make a distinction between the two positions. Our Federal Court also in the case of Niharendu Dutt Majumdar Vs King, in III and IV Federal Court Reports, has made a distinction between what ‘Sedition’ meant when the Indian Penal Code was enacted and ‘Sedition’ as understood in 1942. A passage from the judgment of the Chief Justice of India would make the position, as to what is an offence against the State at present, clear. It says at page 50:

“This (sedition) is not made an offence in order to minister to the wounded vanity of Governments but because where Government and the law ceases to be obeyed because no respect is felt any longer for them, only anarchy can follow. Public disorder, or the reasonable anticipation or likelihood of public disorder is thus the gist of the offence. The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency.”

This amendment therefore seeks to use words which properly answer to the implication of the word ‘Sedition’ as understood by the present generation in a democracy and therefore there is no substantial change; the equivocal word ‘sedition’ only is sought to be deleted from the article. Otherwise an erroneous impression would be created that we want to perpetuate 124-A of the I.P.C. or its meaning which was considered good law in earlier days. Sir, with these words, I move this amendment.”

In light of the above, critics of Section 124A can, at best, rely on the Debates to demonstrate that the framers dropped the word ‘sedition’ from the Constitution and replaced it with “which undermines the security of, or tends to overthrow, the State” to strike a balance between the right to free speech and the reasonable restrictions that may be imposed on it. However, the intent of the framers was never to do away with the essence of sedition, which is to seek to undermine the edifice of the State. Simply put, Section 124A, as it stood in 1950, was meant to be interpreted in line with the words “which undermines the security of, or tends to overthrow, the State”.

What strengthens the case for Section 124A after 1950 is the fact that the scope of restrictions on free speech under Article 19(2) was enlarged by way of the first amendment to the Constitution which was effected in 1951 under the Prime Ministership of Shri Jawaharlal Nehru with the Dr. Ambedkar as the Law Minister. Following was the language of Article 19(2) as it stood in 1950:

“Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law insofar as it relates to, or prevents the State from making any law relating to, libel, slander, defamation, contempt of court or any other matters which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.”

After the first amendment of 1951, Article 19(2) reads as under till date:

“2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”

Taking this amendment into account, the history of Section 124A and its treatment by British Indian Courts, following were the observations of a Constitution Bench of the Supreme Court in the landmark judgement of Kedarnath Singh v. State of Bihar (1962) wherein the constitutional validity of Section 124A was upheld:

“With reference to the constitutionality of s. 124A or s. 505 of the Indian Penal Code, as to how far they are consistent with the requirements of cl. (2) of Art. 19 with particular reference to security of the State and public order, the section, it must be noted, penalises any spoken or written words or signs or visible representations, etc., which have the effect of bringing, or which attempt to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law” has to be distinguished from the person’s for the time being engaged in carrying on the administration. “Government established by law” is the visible symbol of the State.

The very existence of the State will be in jeopardy if the Government established by law is subverted. Hence the continued existence of the Government established by law is an essential condition of the stability of the State. That is why ‘sedition’, as the offence in s. 124A has been characterised, comes under Chapter VI relating to offences against the State. Hence any acts within the meaning of s. 124A which have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence. In other words, any written or spoken words, etc., which have implicit in them the idea of subverting Government by violent means, which are compendiously included in the term ‘revolution’, have been made penal by the section in question.

But the section has taken care to indicate clearly that strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not come within the section. Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.

It has not been contended before us that if a speech or a writing excites people to violence or have the tendency to create public disorder, it would not come within the definition of ‘sedition’. What has been contended is that a person who makes a very strong speech or uses very vigorous words in a writing directed to a very strong criticism of measures of Government or acts of public officials, might also come within the ambit of the penal section. But, in our opinion, such words written or spoken would be outside the scope of the section. In this connection, it is pertinent to observe that the security of the State, which depends upon the maintenance of law and order is the very basic consideration upon which legislation, with a view to punishing offences against the State, is undertaken. Such a legislation has, on the one hand, fully to protect and guarantee the freedom of speech and expression, which is the sine quo non of a democratic form of Government that our Constitution has established.

This Court, as the custodian and guarantor of the fundamental rights of the citizens, has the duty cast upon it of striking down any law which unduly restricts the freedom of speech and expression with which we are concerned in this case. But the freedom has to be guarded again becoming a licence for vilification and condemnation of the Government established by law, in words which incite violence or have the tendency to create public disorder. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder. The Court, has, therefore, the duty cast upon it of drawing a clear line of demarcation between the ambit of a citizen’s fundamental right guaranteed under Art. 19(1)(a) of the Constitution and the power of the legislature to impose reasonable restrictions on that guaranteed right in the interest of, inter alia, security of the State and public order. We have, therefore, to determine how far the ss. 124A and 505 of the Indian Penal Code could be said to be within the justifiable limits of legislation.

…Now, as already pointed out, in terms of the amended cl. (2), quoted above, the expression “in the interest of…public order” are words of great amplitude and are much more comprehensive than the expression “for the maintenance of”, as observed by this Court in the case of Virendra v. The State of Punjab….. Viewed in that light, we have no hesitation in so construing the provisions of the sections impugned in these cases as to limit their application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.”

The judgement in Kedarnath Singh remains valid till date. Therefore, to cite instances of deliberate abuse by governments to question the constitutional validity of Section 124A is a strawman argument against the provision. Unfortunately, instead of taking the middle path of seeking amendments to the provision to bring greater clarity and specificity to its language, the critics of Section 124A are often seen arguing against the very idea of sedition itself on tenuous constitutional grounds. Going by this logic, every provision which has been misused either by Governments or its intended beneficiaries must be scrapped, which, needless to say, is an absurd position to take. It would be a textbook case of throwing the baby out with the bathwater. One hopes that arguments on such sensitive issues are presented with some degree of concern for larger issues such as security of the state instead of resorting to populism and sensationalism.

J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.

The Supreme Court of India has pronounced numerous judgments from January, 2021 to May, 2021. In this write-up, some of the important pronouncements are briefly discussed.

BHAVEN CONSTRUCTION V. EXECUTIVE ENGINEER SARDAR SAROVAR NARMADA NIGAM LTD. & ANR., CIVIL APPEAL NO. 14665 OF 2015

A Bench of Justices N.V. Ramana, Surya Kant and Hrishikesh Roy observed that it is prudent for a Judge to not exercise discretion to allow judicial interference beyond the procedure established under an enactment. The Bench held that the power of the High Courts under Article 226 and 227 of the Constitution of India to interfere with an arbitration process needs to be exercised in exceptional rarity, wherein one party is left remediless under the statute or a clear bad faith is shown by one of the parties. The high standard set by the Court is in terms of the legislative intention to make the arbitration fair and efficient. The Bench also set aside the judgment of Gujarat High Court by allowing a writ petition challenging the jurisdiction of the arbitrator.

CHINTELS INDIA LTD. V. BHAYANA BUILDERS PVT. LTD., CIVIL APPEAL NO. 4028 OF 2020

A Bench of Justices R. F. Nariman, Navin Sinha and K.M. Joseph held that an appeal under section 37(1) (c) of the Arbitration Act, 1996 would be maintainable against an order refusing to condone delay in filing an application under section 34 of the Arbitration Act, 1996 to set aside an award. The Bench observed that it is important to note that the expression “setting aside or refusing to set aside an arbitral award” does not stand by itself. The expression has to be read with the expression that follows “under section 34”. Section 34 is not limited to grounds being made out under section 34 (2) and a literal reading of the provision would show that a refusal to set aside an arbitral award as delay has not been condoned under sub-section (3) of section 34 would certainly fall within section 37(1)(c).

LAXMIBAI CHANDARAGI & ANR. V. THE STATE OF KARNATAKA & ORS., WRIT PETITION CRIMINAL NO. 359/2020.

A Bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy observed that educated younger boys and girls are choosing their life partners which in turn is a departure from the earlier norms of society where caste and community play a major role. This is the way forward where caste and community tensions will reduce by such inter marriage but these youngsters face threats from the elders and the Courts have been coming to the aid of these youngsters. The consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock and that their consent has to be piously given primacy. The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. Such a right or choice is not is not expected to succumb to the concept of class honour or group thinking.

COMPACK ENTERPRISES INDIA (P) LTD. V. BEANT SINGH, SPECIAL LEAVE PETITION (CIVIL) NOS. 2224­2225 OF 2021

A Bench of Justices Mohan M. Shantanagoudar and Vineet Saran reiterated that a consent decree would not serve as an estoppel, where the compromise was vitiated by fraud, misrepresentation, or mistake. The Bench held that in the exercise of its inherent powers it may also unilaterally rectify a consent decree suffering from clerical or arithmetical errors, so as to make it conform with the terms of the compromise. The Bench observed that it has to be cautious in exercising the inherent power to interfere in the consent decree, except where there is any exceptional or glaring error apparent on the face of the record.

RACHNA & ORS. V. UNION OF INDIA & ANR., WRIT PETITION (CIVIL) NO(S). 1410 OF 2020

A Bench of Justices A.M. Khanwilkar, Indu Malhotra and Ajay Rastogi reiterated that policy decisions are open for judicial review for a very limited purpose and the Supreme Court can interfere into the realm of public policy so framed if it is either absolutely capricious, totally arbitrary or not informed of reasons. The Bench observed that judicial review of a policy decision and to issue mandamus to frame policy in a particular manner are absolutely different. It is within the realm of the executive to take a policy decision based on the prevailing circumstances for better administration and in meeting out the exigencies but at the same time, it is not within the domain of the Courts to legislate. The Courts do interpret the laws and in such an interpretation, certain creative process is involved. The Courts have the jurisdiction to declare the law as unconstitutional. The Court is called upon to consider the validity of a policy decision only when a challenge is made that such policy decision infringes fundamental rights guaranteed by the Constitution or any other statutory right.

APARNA BHAT & ORS. V. STATE OF MADHYA PRADESH & ANR. CRIMINAL APPEAL NO. 329 OF 2021

A Bench of Justices A. M. Khanwilkar and S. Ravindra Bhat observed that using rakhi tying as a condition for bail, transforms a molester into a brother, by a judicial mandate which is wholly unacceptable, and has the effect of diluting and eroding the offence of sexual harassment. The Bench further observed that the act perpetrated on the survivor constitutes an offence in law, is not a minor transgression that can be remedied by way of an apology, rendering community service, tying a rakhi or presenting a gift to the survivor, or even promising to marry her, and, the law criminalizes outraging the modesty of a woman. The Bench also issued a slew of directions in dealing with bail in sexual harassment cases and highlighted the need for sensitivity to be displayed by the judges in such cases. Some of the guidelines issued by the Bench were – bail conditions should not mandate, require or permit contact between the accused and the victim, such conditions should seek to protect the complainant from any further harassment by the accused; where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, or upon apprehension expressed, after calling for reports from the police, the nature of protection shall be separately considered and appropriate order made, in addition to a direction to the accused not to make any contact with the victim; in all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and copy of the bail order made over to him/her within two days; bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the Cr. PC, in other words, discussion about the dress, behaviour, or past conduct or morals of the prosecutrix, should not enter the verdict granting bail; the courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions or encourage any steps towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction; sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix, during the proceedings, or anything said during the arguments; judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court; courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that women are physically weak and need protection, women are incapable of or cannot take decisions on their own, are the head of the household and should take all the decisions relating to family, women should be submissive and obedient according to our culture, good women are sexually chaste, motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother, women should be the ones in charge of their children, their upbringing and care, being alone at night or wearing certain clothes make women responsible for being attacked, a woman consuming alcohol, smoking, etc.

STATE OF GOA & ANR. V. FOUZIYA IMTIAZ SHAIKH & ANR., CIVIL APPEAL NO. 881 OF 2021

A Bench of Justices Rohinton Fali Nariman, B.R. Gavai and Hrishikesh Roy held that the State Election Commissioner has to be a person who is independent of the State Government as he is an important constitutional functionary who is to oversee the entire election process in the state qua panchayats and municipalities. The importance given to the independence of a State Election Commissioner is explicit from the provision for removal from his office made in the proviso to clause (2) of Article 243K. The manner and the ground for his removal from the office has been equated with a Judge of a High Court. Giving an additional charge of such an important and independent constitutional office to an officer who is directly under the control of the State Government is a mockery of the constitutional mandate. The Bench held that all State Election Commissioners appointed under Article 243K in the length and breadth of India have to be independent persons who cannot be persons who are occupying a post or office under the Central or any State Government. The Bench also held that if there are any such persons holding the post of State Election Commissioner in any other state, such persons must be asked forthwith to step down from such office and the State Government concerned be bound to fulfil the constitutional mandate of Article 243K by appointing only independent persons to this high constitutional office.

GOVERNMENT OF MAHARASHTRA (WATER RESOURCES DEPARTMENT) V. M/S BORSE BROTHERS ENGINEERS & CONTRACTORS PVT. LTD., CIVIL APPEAL NO. 995 OF 2021

A Bench of Justices Rohinton Fali Nariman, B.R. Gavai and Hrishikesh Roy held that the object of speedy disposal sought to be achieved under the Arbitration Act and the Commercial Courts Act, for appeals filed under section 37 of the Arbitration Act that are governed by Articles 116 and 117 of the Limitation Act or section 13 (1A) of the Commercial Courts Act, a delay beyond 90 days, 30 days or 60 days, respectively, is to be condoned by way of exception and not by way of rule. In a fit case in which a party has otherwise acted bona fide and not in a negligent manner, a short delay beyond such period can, in the discretion of the court, be condoned, always bearing in mind that the other side of the picture is that the opposite party may have acquired both in equity and justice, what may now be lost by the first party’s inaction, negligence or laches. The Bench overruled the judgment in N.V. International v. State of Assam, (2020) 2 SCC 109 which held that a delay beyond 120 days for arbitration appeal under section 37 cannot be condoned.

AMWAY INDIA ENTERPRISES PVT. LTD. V. RAVINDRANATH RAO SINDHIA & ANR., CIVIL APPEAL NO. 810 OF 2021

A Bench of Justices Rohinton Fali Nariman and B.R. Gavai held that whatever be the transaction between the parties, if it happens to be entered into between persons, at least one of whom is either a foreign national, or habitually resident in, any country other than India; or by a body corporate which is incorporated in any country other than India; or by the Government of a foreign country, the arbitration becomes an international commercial arbitration notwithstanding the fact that the individual, body corporate, or government of a foreign country carry on business in India through a business office in India.

RAMESH BHAVAN RATHOD V. VISHANBHAI HIRABHAI MAKWANA MAKWANA (KOLI) & ANR., CRIMINAL APPEAL NO 422 OF 2021

A Bench of Dr Dhananjaya Y Chandrachud and M R Shah held that the Court granting bail cannot obviate its duty to apply a judicial mind and to record reasons, brief as they may be, for the purpose of deciding whether or not to grant bail. The consent of parties cannot obviate the duty of the High Court to indicate its reasons why it has either granted or refused bail. This is for the reason that the outcome of the application has a significant bearing on the liberty of the accused on one hand as well as the public interest in the due enforcement of criminal justice on the other. The rights of the victims and their families are at stake as well. These are not matters involving the private rights of two individual parties, as in a civil proceeding. The proper enforcement of criminal law is a matter of public interest. The Bench observed that grant of bail under Section 439 of the CrPC is a matter involving the exercise of judicial discretion. Judicial discretion in granting or refusing bail as in the case of any other discretion which is vested in a court as a judicial institution is not unstructured. The duty to record reasons is a significant safeguard which ensures that the discretion which is entrusted to the court is exercised in a judicious manner. The recording of reasons in a judicial order ensures that the thought process underlying the order is subject to scrutiny and that it meets objective standards of reason and justice.

DR. JAISHRI LAXMANRAO PATIL V. THE CHIEF MINISTER & ORS. CIVIL APPEAL NO. 3123 OF 2020

A Constitution Bench of the Supreme Court comprising Justices Ashok Bhushan, S.A. Nazeer, L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat, while striking down the Maratha quota, held there were no exceptional circumstances justifying the grant of reservation to Marathas in excess of 50% ceiling limit as a socially and economically backward class. The Bench also held that there was no need to revisit the 50% ceiling limit on reservation laid down by the 9-judge bench decision in Indra Sawhney v. Union of India, 1992 Suppl. (3) SCC 217. The Bench observed that neither the Gaikwad Commission nor the High Court have made out any situation for exceeding the ceiling of 50% reservation for the Marathas.

GAUTAM NAVLAKHA V. NATIONAL INVESTIGATION AGENCY, CRIMINAL APPEAL NO.510 OF 2021

A Bench of Justices Uday Umesh Lalit and K.M. Joseph held that custody under Section 167 CrPC has been understood as police custody and judicial custody, with judicial custody being conflated to jail custody ordinarily. The concept of house arrest as part of custody under Section 167 has not engaged the courts, however, when the issue has come into focus, and noticing its ingredients, it involves custody which falls under Section 167. The Bench observed that under Section 167 in appropriate cases, it will be open to courts to order house arrest as well. The Bench observed that in order to house arrest a person, courts can consider criteria like age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody and the ability to enforce the terms of the house arrest.

While dismissing a petition by four advocates challenging the Delhi government’s order to wear masks as part of Covid-19 protocol even while travelling alone in a personal vehicle, the Delhi High Court as recently as on April 7, 2021 has observed without mincing any words in a strongly worded judgment titled Saurabh Sharma vs Sub-Divisional Magistrate (East) & Ors. in W.P.(C) 6595/2020 & CM APPL. 23013/2020 that, “Advocates as a class owing to their legal training have a higher duty to show compliance especially in extenuating circumstances such as the pandemic. Wearing of masks cannot be made an ego issue.” If advocates who are the biggest upholders of law and who are the officers of the court and the real crown of the judicial system themselves start disregarding the rule of wearing masks at a time when the corona pandemic has engulfed nearly all the countries and has killed more than lakhs of people in India itself, then what message will go out to others? People in general will also start emulating the lawyers and this can have a cascading effect in spreading this deadly virus all across! So it merits no reiteration that complacency of any score on this front cannot be condoned under any circumstances!

Needless to say, this alone explains why a Single Judge Bench of Justice Pratibha M Singh who authored this extremely brilliant, brief, bold and balanced judgment too underscored that due to their legal training, advocates and lawyers were expected to aid measures to contain the pandemic rather than “questioning the same”. It is the bounden duty of all the lawyers all across the country to adhere unflinchingly to what Justice Pratibha M Singh of the Delhi High Court has held so elegantly, eloquently and effectively! There can be no denying it.

To start with, a Single Judge Bench of Justice Pratibha M Singh of the Delhi High Court sets the ball rolling by first and foremost pointing out in para 1 that, “These are four writ petitions filed challenging the imposition of fine of Rs.500/-, on the Petitioners, for non – wearing of face masks while travelling alone in a private car. The brief facts of each of the cases are captured below.”

While elaborating on the petitioner’s case, the Bench then puts forth in para 2 that, “In W.P.(C) 6595/2020, the Petitioner’s case is that he is a practicing advocate for the last 20 years. On 9th September, 2020, at about 11.00 A.M., he was driving a Honda City DL 13CC 1479, and was stopped by the police near Geeta Colony, New Delhi. It is not disputed that he was travelling alone in his car. After the car was stopped, an Executive Magistrate, along with a Police Constable and a Delhi Police Inspector, informed the Petitioner that a fine of Rs. 500/- is being imposed on him for not wearing a mask in a public place. The Petitioner challenged such imposition of fine before the officials, on the ground that since he was travelling alone in his car, the said car does not constitute a public place and would be a private zone. Accordingly, it is prayed that the challan bearing challan no. 2993, dated 9th September, 2020, be quashed and the amount of Rs. 500/- be refunded. In addition, compensation of Rs.10,00,000/- is sought on the ground of alleged mental harassment publicly caused to the Petitioner.”

To put things in perspective, the Bench then elucidates in para 3 stating that, “In W.P.(C) 8455/2020, the facts are that the Petitioner is a lawyer who was stated to be on his way to his chambers at Tis Hazari Courts, around 12.00 noon on 9th August, 2020. He was driving his privately owned car, a Maruti Suzuki Swift and was stopped near Aruna Asaf Ali Hospital, Rajpur Road, Civil Lines by the Police. The Petitioner was in his car travelling alone, with his mask hanging on his face, from one of his ears. The case of the Petitioner is that since he was in his car alone, he had not put the face mask on and that he had intended to wear the mask as soon as he stepped out of the car. It is highlighted that the four windows of the Petitioner’s car were closed. When the police official stopped his car, he was informed that the non-wearing of mask by him is in violation of the Delhi Epidemic Diseases (Management of COVID-19) Regulations, 2020 (hereinafter referred to as ‘the Regulations of 2020’) and a sum of Rs. 500/- was imposed on him as fine. In this petition, apart from quashing of challan bearing challan no. A22062, dated 9th August, 2020, a declaration is sought to the effect that privately owned cars are private places for the purpose of the Regulations of 2020. Apart from refund of the amount of Rs. 500/- paid by the Petitioner as fine, a compensation of Rs. 5,00,000/- is sought in the present petition for mental harassment.”

While continuing in a similar vein, the Bench then enunciates in para 4 stating that, “The Petitioner in W.P.(C) 8588/2020 is also a practicing advocate who states that he was crossing Vikas Marg area near Laxmi Nagar Metro Station on 20th August, 2020 in his privately owned car, with all windows of the car closed. However, officials of the Delhi Police stopped his car on the ground that he was not wearing a face mask in his car. Similarly, an amount of Rs. 500/- was imposed on him as fine for violations of the Regulations of 2020. In this case, a direction is sought that the Respondent-Authorities ought not to fine people for not wearing a face mask while in their own car. Refund of Rs. 500/- is sought, along with compensation of an unascertained sum.”

Of course, the Bench then states in para 5 that, “In W.P.(C) 9408/2020, the Petitioner is a lawyer stated to be practicing at Karkardooma Courts, New Delhi. On 25th October, 2020, he was travelling in his i-10 Grand bearing no. DL8CAE1725, along with his wife and had reached a spot in front of the of D.C. Office, Nand Nagri at about 1.50 P.M. It is stated that a Civil Defence Personnel forced him to stop his car. After the Petioner’s car was stopped, the Civil Defence Personnel, along with a member of the Enforcement Team of SDM, Shahdara, informed him that since he is not wearing a face mask but only a cotton safa/dupatta/scraf around his mouth and nose, he would be liable to pay a fine of Rs. 500/-. In this petition also, quashing of the challan dated 25th October, 2020 is prayed for. Along with the quashing of the challan, a refund of Rs.500/- paid as fine is prayed for, as also compensation of Rs. 10,00,000/- for the harassment and insult allegedly caused to the Petitioner, and for alleged misuse of legal provisions to exhort Rs. 500/- from the Petitioner.”

As a corollary, the Bench then holds in para 6 that, “From the facts of the above four cases, it is clear that in two of the cases, the Petitioners were not wearing any face masks; in one of the cases case, the Petitioner had a mask which was dangling from one of his ears; and, in the fourth case, the Petitioner was not wearing a mask, but was wearing a safa/dupatta/scraf covering his nose and mouth.”

As we see, the Bench then while elaborating on the questions arising in these writ petition states forth in para 7 that, “The questions which arise in these writ petitions are three-fold. First, whether it is compulsory for persons driving alone in their own private cars to wear face masks and the manner in which such masks ought to be worn. Secondly, if as per the various guidelines, orders and notifications issued, the fine imposed on the Petitioners is valid and legal. Thirdly, if any compensation is liable to be granted.”

After hearing the submissions from both sides, the Bench then observes in para 23 that, “From the submissions made herein above, broadly three issues arise –

i. What is the ambit of the power to issue guidelines under the provisions of EDA and DMA?

ii. Whether under the guidelines which have been issued under the April Order by the DMA and June Notification, wearing of face masks is compulsory even when an individual is travelling in a privately owned car. If so, in what manner is the face mask to be worn?

iii. Whether the Executive Magistrates who have issued the challans and imposed the fines of Rs. 500/- each were properly authorised in law?”

In the 13th century there was a heated discussion taking place between a judge and a lawyer. Both of them while arguing on merits of the case did not see eye-to-eye on a particular issue when the lawyer stated that the judge was obligated to follow precedence otherwise, he did not understand the law. The judge emphatically replied that “it is the will of the Justices” and this statement sums up the start of judicial creativity in the legal fraternity. While earlier the notion of law was merely restricted to giving decisions based on precedents, judges slowly started playing an active role in interpreting law and trying to weave new law to protect and ensure welfare of citizens under the grunt norm which is the Constitution. So the debate that has always ensued is whether judges make law or merely interpret law?

Legal philosophers have been divided on this notion as many such as Dworkin , Darwin , Montesquieu merely believe that judges have been given the function of interpreting law and while some judicial creativity can be exercised, the same must be restricted and not give the judge a free hand to do as he pleases. But the idea of Roscoe Pound to treat jurisprudence as social engineering advances the idea of judicial creativity as he states that larger interests in society must be catered to and law must focus on reconciling interests of members in society while harmonizing inter-relations. This portrays Roscoe Pound’s interest in advancing law from merely advocating cases to being an impetus of social change. Another iteration of creativity would be the realist school of thought which focuses more on what judges have to say as compared to general guidelines which enunciates the importance of the court and use of judicial creativity by the said institution.

Though conflicting opinions exist in judiciary, judicial creativity has emerged as important facet from the 19th century in India. Courts have time and again explained that law does not operate in a vacuum and hence it also serves a social purpose whereby in addition to interpreting statutes it must be able to adjust or introduce law with the requirements of a dynamic society. Hence the paper makes a novel attempt to critically analyze statements made by three judges against judicial creativity and seeks to further analyze as to why judicial creativity is the need of the hour.

STATEMENT ANALYSIS

1. The statement made by Lord Denning LJ in Seaford Court Estates Ltd. v Asher represents the formative thought that existed before judicial creativity took over mere ruling based on present laws. Lord Denning’s observation that legislators while drafting cannot foresee and visualize all facts or scenarios that are bound to change or emerge and hence cannot thus cover all aspects in a document. He goes a step further to state that even if they could do so, the text written would not be crystal clear and totally unambiguous. An example of this would be the 86th Constitutional Amendment in India whereby though legislators in the Constituent Assembly had made special provisions for children and women under Article 15(3), yet an ambiguity as to its fulfilment was not given. The said article effectively exemplifies what Denning said where the judges creatively interpreted Article 15(3) for the benefit of women and children and hence gave creative interpretation to the same under many notable judgments.

Denning continues by stating that there is a quantifiable difference between literature and mathematics whereby in the former there is no perfect and right answer or way to enunciate something; mostly it needs to be evolved, for a particular event, at a particular instance. He goes on say that it is grossly unfair to lament on the drafting of the legislators as they aren’t god and hence divine precision and the ability to judge future situations were not been bestowed upon them.

He moves to the judicial aspect by stating that if acts of parliament were divine and perfect, the role of judges would certainly become easier as they merely would have to read the law and apply it. But, having seen certain amount of lacunae in any statute it becomes pertinently important for a judge to interpret the law and not merely follow it while blaming the legislator. Hence the judge is obligated to locate the intention of the parliament while drafting and adopting the law by paying attention to three aspects which include understanding the language of the statute, formatting an ideal social condition in which the law was drafted and the mischief or lacunae that the law was made to remove. Having identified these aspects during the course of hearing, he/she must give intention of the legislature force and life by implementing the same in the case even though the written word may appear different. An example of this would be the Sabarimala Judgment whereby under Article 26 of the Constitution religious denominations are allowed to maintain their place of worship, carry on with their customs etc. But the Supreme Court having understood the intention of the legislature stated that this was to be administered in accordance with public interest and the act of not allowing women to enter constituted violation of fundamental rights.

Lord denning concludes by stating that a judge should think, how would a legislator react if he found the text of the Act and saw an anomaly? A judge should then do what he expects out of the legislator. A judge must be careful not to alter the base or the primary source of the law or Act, but if it on the face of it or unconsciously it isn’t ideal, he/ she is obligated and bound by law to iron out the anomalies. Recently, the SC recognized that the Contempt of Courts Act was pre-historic and hence while the precedents indicated otherwise, the court ironing out the creases convicted members of the society for having spoken degradingly about the constitutional upholder in the country.

2. Justice Holmes J. in Southern Pacific Co. v Jensen made a key observation where he said that judges must legislate rather than merely abiding by the law of the land, but they cannot do it in every situation and must restrict themselves to only unique circumstances which demands the law or rule to be rewritten or reinterpreted. He went on to say that the power to legislate must be confined from molar to molecular which essentially in organic chemistry refers to small to smaller. This essentially means that the power of judicial creativity cannot be used as a big brush on the canvas of justice but needs to be used as a 2b pencil on an A4size paper. The principle argument of Justice Oliver Holmes was to say that judicial creativity does exist and must be used but not at the freewill of judges but only through a narrow sense where its use is absolutely essential.

3. While judicial creativity went through a sea of change from not being recognized to being considered as a key element of judges, Benjamin Cardozo’s statement reveals as to whether judicial creativity is absolute and can be used according to the discretion of judges or whether the same is restricted or guarded with certain established principles. Though Justice Cardozo recognizes judicial creativity he states that such creativity cannot be used at a judge’s pleasure which means it can’t be used basis the judge’s discretion. While the king of a land is allowed to pursue his ideal of goodness and administer it amongst his subjects, a judge is restricted from imposing his individual ideals in a case as he does not administer justice under his name whereas does the same under the institution of judiciary. Hence the judge must not innovate or create but pass judgments and reviews according to the institutionalized practices. Justice Cardozo further states that the judge while delivering a judgment and using his creativity borrow from established principles of the court rather than going on a fact-finding mission. The inspiration a judge draws is to be precedents, policies or rules which have already been administered and his ruling or decisions must be come from spree of the moment, must not be vague or misleading and must not arise due to the goodness of his heart. The way a judge should function must be regulated by the tradition laid down by courts and his sister and brother judges earlier in court, there must be a method to his behavior and functioning and he must adhere to the prevailing system and not bring a sea change in the same as he is merely an officer of the court.

Though the above statements recognize the need for judicial creativity, they all state that judicial creativity must be restricted and there must be certain limits to it otherwise judges may turn around the become law makers. But, the counter argument to this is in today’s scenario where government action infringes on rights of people the courts are people’s last resort to get justice and if the court merely interprets law, the majoritarian perspective or the government’s perspective will always have more merit. Hence, this paper argues for judicial activism in India through using judicial creativity as judges have always used judicial creativity but have always respected their boundaries. The paper also seeks to question as to what boundaries are necessary when using judicial creativity.

CRITICAL ANALYSIS

The earliest notion of law did not recognize judicial creativity and the role of a judge was merely to read the law and apply it to a given circumstance. In fact, Montesquieu through his writings emphasized on the separation of powers which strictly called for the three pillars of democracy to work independently. In fact, in State of Bihar v Bal Mukund Shah and Rai Sahib Ram Jawaya Kapur v The State of Punjab the judiciary held that separation of powers constituted a part of basic structure of the Constitution. Hence the prevailing thought in India and abroad was that judges could not legislate and were merely there to read the law and pass a judgment. But soon the tide of merely reading law changed to using creativity as the statements made above started realizing that a judge’s role also includes interpretation and application of law while keeping society in mind. The court in Hunter v Southam Inc. held that a law or policy change must meet the new social, political and historical realities often not imagined by its framers and hence if the judge believes that the law does not possess the same, he is obligated to include or exclude the parts. The judge is protector of the constitution and hence any decision passed or law made or overturned must keep the grunt norm and the effect on society when he/she does bring about a change.

There are several significant tools and techniques which have been developed in India and abroad which portray the advancement of the judicial creativity and activism and hence is monumental to be quoted:

BASIC STRUCTURE

Before the emergency was declared in India, the court was run by the majoritarian government whereby any dissent against the central government would not be looked in good light. But soon after the emergency was declared, several judges started implementing judicial creativity and activism by way of protecting the Constitution. While some judges were ignored and the junior was made CJI yet the basic structure debate was the first time, judicial activism was visible in the Indian subcontinent. The court through Kesavananda Bharati v State of Kerala held that basic structure of the constitution could not be amended and through it started taking down laws which were against the basic structure for example the 39th amendment. Through the basic structure the court also restricted the power bestowed by Article 368 upon the central government. The doctrine was also successful in holding the 10th schedule to be against it and hence took it down.

This itself shows that the Denning notion and Holmes’s notion on judicial creativity were replaced as the law in India started benchmarking all laws against the constitution and the judiciary was also actively playing the role of an interpreter and constitutional upholder by taking down legislations which did not align with the basic structure.