Creation, not Discovery

2. A rule of substantive law created against contrary authority. Absolute liability in M.C. Mehta v. Union of India, AIR 1987 SC 1086, worked in [What the Judicial Process Is]. The Court said in terms that law has to grow and that Indian courts must build their own jurisprudence.

3. A remedy created that the Constitution does not mention. Compensation in public law, in Nilabati Behera v. State of Orissa, AIR 1993 SC 1960.

Facts. A mother wrote to the Supreme Court after her son, aged twenty two, was taken into police custody and his body was found on a railway track the next day with multiple injuries. The letter was treated as a writ petition under Article 32.

Held. An award of compensation in a proceeding under Article 32 or Article 226 is a remedy available in public law, based on strict liability for contravention of fundamental rights, to which the defence of sovereign immunity does not apply, even though it may be available in a private law action in tort. Compensation was awarded to the mother, leaving her ordinary civil remedies intact.

Why it matters here. Articles 32 and 226 speak of writs, directions and orders. They say nothing about damages. The monetary remedy for a constitutional wrong is a judicial creation, and it is now the ordinary relief in custodial death cases.

4. A code of conduct created for the whole country. The guidelines in Vishaka v. State of Rajasthan, AIR 1997 SC 3011, worked in [The Judicial Process as an Instrument of Social Ordering], governed Indian workplaces for sixteen years before Parliament legislated.

Why the Court can do this, and on what terms

Creation is not lawlessness, and MU's examiner will expect the student to say what disciplines it.

It happens only in the gap. Where the text or a binding precedent governs, the court applies it. Creation is confined to the residue described in [The Gap in the Law].

It must be justified in writing. The court must connect the new rule to existing constitutional materials, and in each of the four examples it did: the basic structure to the Preamble and the scheme of Part III; absolute liability to the inadequacy of a nineteenth century English rule for Indian conditions; public law compensation to the enforcement obligation in Article 32; the Vishaka guidelines to Articles 14, 15, 19(1)(g) and 21 and to India's treaty obligations.

It is provisional. The legislature may displace it, and did so for sexual harassment in 2013. Judicial creation fills a vacuum; it does not occupy the field permanently.

It is subject to correction. A larger Bench may overrule. Mohini Jain v. State of Karnataka, AIR 1992 SC 1858, was confined within a year by Unni Krishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178.

The objections

The democratic objection. Judges are not elected and cannot be removed by an electorate. A rule they create binds a population that had no say in it. This is the most serious objection and it has no complete answer; the partial answers are that creation operates only where the elected branches have not spoken, and that they may speak afterwards.

The competence objection. Courts hear two parties on a record built for a dispute, not a survey of a problem. In Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, the Court itself warned that judges must not try to run the government.

Facts. Two workmen employed as tractor drivers claimed regularisation against the post of tractor driver, a post which did not exist in the sanctioned strength. The labour court and the High Court directed their regularisation, in effect creating a post.

Held. The directions were set aside. Creating a post is an executive or legislative function and directing it is unconstitutional. In the name of judicial activism judges cannot cross their limits and take over functions belonging to another organ of the State; judges must exercise judicial restraint and must not encroach into the executive or legislative domain, must know their limits, must not try to run the government, and must have modesty and humility.

Why it matters here. It is the Court's own statement of where creation stops, delivered in the same decade as the boldest examples of it. Quoting it is what separates an answer that describes the judicial process from one that celebrates it.

The retrospectivity objection. A created rule is applied to conduct that preceded it. The device that meets it is prospective overruling, used in I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643.

The certainty objection. If the highest court may create, no advice is safe. The answer is that creation is rare, is confined to the gap, and is announced with reasons that themselves become predictable material.

A worked example

Suppose the Supreme Court is asked to hold that a gig worker delivering food is a workman entitled to statutory benefits, the statutes having been drafted before such work existed.

The discovery account would say that the answer is latent in the definition of workman and needs only to be brought out. That is unconvincing: the definition was written with factory and shop employment in view.

The creation account says the Court must decide, on the materials available, whether to extend the category, and that whichever way it decides, the rule that results is new. It will justify the extension by reference to the purpose of the legislation, the constitutional commitment in Articles 39 and 43, and the social fact of a workforce without protection. Those are Cardozo's methods of philosophy and sociology at work.

The honest description of what has happened is that the Court has made law for a class of workers, and that it did so because the elected branches had not.

What beginners get wrong

Dropping "at its highest reaches". It converts a defensible claim about hard cases in final courts into an indefensible claim about all judging.

Treating creation as automatically good. ADM Jabalpur was also a creative reading, and it was a catastrophic one.

Treating creation as unconstrained. Gap, written justification, provisionality and correction are the four constraints, and an answer that lists them is stronger than one that merely asserts that judges make law.

Quick revision

1. Cardozo: at its highest reaches the judicial process is not discovery but creation. MU set this on 3 July 2026.
2. Three claims: creation is real; it is confined to the highest reaches; what emerges is genuinely new.
3. Indian proofs: the basic structure in Kesavananda; absolute liability in M.C. Mehta; public law compensation in Nilabati Behera; the Vishaka guidelines.
4. Constraints: it operates only in the gap, must be justified in writing from existing materials, is provisional against the legislature, and is correctable by a larger Bench.
5. Objections: democratic, competence, retrospectivity, certainty.
6. Aravali Golf Club, (2008) 1 SCC 683, is the Court's own statement of the limit.

Test yourself

1. Why does "at its highest reaches" matter, and what happens to the argument if it is dropped? It confines the claim to hard cases in appellate courts, where the authorities do not settle the question. Dropped, the proposition becomes the claim that all judging is creation, which is false of the great majority of cases and easy for an opponent to refute.

2. Give an Indian example of each of a created doctrine, a created rule of substantive law and a created remedy. Doctrine: the basic structure, in Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461. Rule: absolute liability for hazardous enterprise, in M.C. Mehta v. Union of India, AIR 1987 SC 1086. Remedy: compensation in public law for breach of a fundamental right, in Nilabati Behera v. State of Orissa, AIR 1993 SC 1960.

3. State the four constraints that distinguish judicial creation from legislation. It arises only where the existing law does not decide; it must be justified in a written judgment by reference to existing legal materials; it is provisional, because the legislature may displace it, as Parliament did in 2013 for sexual harassment; and it is correctable by a larger Bench, as Mohini Jain was confined by Unni Krishnan within a year.

4. Why should an answer on judicial creativity cite Aravali Golf Club? Because it is the Court's own limit on itself, delivered in the same period as its boldest creations. It holds that creating a post is an executive function, that in the name of activism judges cannot take over the functions of another organ, and that judges must not try to run the government. Citing it shows that the student is describing the judicial process rather than praising it.