The Judicial Creativity of the Supreme Court of India
Chapter Fifty
Syllabus topic 3, "Judicial Process in India"
Pages 203 to 206 of 356
In one line
No supreme court in the world has made more law out of an unamended text than the Supreme Court of India, and the record divides into five clear periods.
In the wording a student can write in an exam: the judicial creativity of the Supreme Court of India has developed through five periods: a formal period from 1950 to 1967; a period of struggle over the amending power from 1967 to 1973; the failure of 1975 to 1977; the transformative period from 1978 to the early 1990s; and a period of consolidation and self-criticism from the mid-1990s to the present.
1950 to 1967: the formal period
The Court read the Constitution as a lawyer's document.
A.K. Gopalan v. State of Madras, AIR 1950 SC 27, is the emblem.
Facts. The petitioner, detained under the Preventive Detention Act 1950, sought habeas corpus under Article 32, arguing that the Act violated Articles 13, 19, 21 and 22.
Held. The majority upheld the Act except for section 14, which was severable. The fundamental rights were read as separate and self-contained: a law of preventive detention was to be tested against Article 22 alone; Article 19 had no application to a person lawfully detained; and "procedure established by law" in Article 21 meant procedure laid down by a duly enacted law. Fazl Ali J. dissented, holding that the articles overlap and that the procedure must satisfy natural justice.
Why it matters here. It is the baseline against which everything after 1978 is measured, and its dissent is the seed of what followed.
Also in this period: Sri Sankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458, upholding the First Amendment, and Bengal Immunity Co. Ltd. v. State of Bihar, (1955) 2 SCR 603, establishing that the Court may depart from its own decisions.
The most revealing of the early amendment cases is Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845, because of what two judges said while agreeing with the result.
Facts. After the First and Fourth Amendments, State land reform measures were still being struck down, so Parliament enacted the Constitution (Seventeenth Amendment) Act 1964, again amending Article 31A and adding forty four Acts to the Ninth Schedule. Persons affected by those Acts challenged the Seventeenth Amendment, contending that Sankari Prasad had been wrongly decided.
Held. The majority followed Sankari Prasad and upheld the Seventeenth Amendment, holding again that an amendment made under Article 368 is not law within Article 13(2) and so is not void for abridging a fundamental right. Two judges, Hidayatullah and Mudholkar JJ., expressed doubts, Mudholkar J. asking whether the Constitution has basic features that the amending power cannot touch.
The Judicial Creativity of the Supreme Court of India
Why it matters here. Those doubts are the first appearance in Indian law of the idea that became the basic structure doctrine eight years later. It is the best illustration in the formal period of how a proposition enters the law: not by being decided, but by being raised in a judgment that decides the other way and then taken up when a later Bench needs it.
1967 to 1973: the struggle over the amending power
I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643, held that fundamental rights could not be abridged by amendment, and applied prospective overruling. Parliament answered with the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments, and Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, produced the basic structure doctrine.
Facts of Kesavananda. The head of a religious mutt in Kerala challenged Kerala land reform legislation, and the petition grew into a challenge to those three amendments. Thirteen judges heard it.
Held. Parliament's power to amend under Article 368 is wide but not unlimited: it does not extend to altering the basic structure or essential features of the Constitution. Golak Nath was overruled so far as it had denied the power to amend Part III, but no amendment may damage or destroy the basic structure, and the lists given were expressly illustrative.
Why it matters here. It is the largest single act of judicial creativity in Indian law and the one MU's questions most often assume.
1975 to 1977: the failure
Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207, and the supersession that followed it. An honest chronology includes it, because the transformative period is unintelligible without it.
1978 to the early 1990s: the transformative period
The doctrinal foundation. Maneka Gandhi v. Union of India, AIR 1978 SC 597, held that Articles 14, 19 and 21 form a single scheme and that procedure under Article 21 must be right, just and fair.
The procedural foundation. S.P. Gupta v. President of India, AIR 1982 SC 149, on standing, and Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802, on epistolary jurisdiction and commissioners.
The substantive expansion. Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360, speedy trial and legal aid; Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746, dignity and the bare necessaries; Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, livelihood; M.C. Mehta v. Union of India, AIR 1987 SC 1086, absolute liability; Subhash Kumar v. State of Bihar, AIR 1991 SC 420, pollution free water and air; Mohini Jain v. State of Karnataka, AIR 1992 SC 1858, and Unni Krishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178, education; Nilabati Behera v. State of Orissa, AIR 1993 SC 1960, public law compensation.
The Judicial Creativity of the Supreme Court of India
The character of the period. Rights read expansively, procedure opened, remedies invented, and the State directed to act. Everything in [The Tools and Techniques of Judicial Creativity] was used.
The mid-1990s to the present: consolidation and self-criticism
Institutional creativity. The Second Judges case, (1993) 4 SCC 441; the Third Judges case, (1998) 7 SCC 739; L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.
Legislative vacuums filled. Vishaka v. State of Rajasthan, AIR 1997 SC 3011; Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715.
Self-criticism. Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683; State of U.P. v. Jeet S. Bisht, (2007) 6 SCC 586; State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402.
A second wave of expansion. Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, privacy; Shayara Bano v. Union of India, AIR 2017 SC 4609; Navtej Singh Johar v. Union of India, (2018) 10 SCC 1; Common Cause v. Union of India, (2018) 5 SCC 1.
The point of the fifth period. Creativity did not stop; it acquired a critical vocabulary about itself, which is a sign of institutional maturity rather than retreat.
Critical analysis, which MU asks for twice
The achievements. A Constitution kept workable for seventy five years without significant amendment of Part III; rights made effective for people the political process does not reach; and doctrines, absolute liability and public law compensation among them, that other jurisdictions have borrowed.
The costs. Doctrine that is judge-made and can be unmade; uncertainty, since the content of the basic structure is settled case by case; an enormous discretionary power in an unelected body; and orders that outrun the capacity to enforce them.
The unevenness. The Court has been expansive on personal liberty and cautious on economic regulation and taxation, which is defensible on competence grounds and looks like selectivity from outside.
The dependence on composition. A doctrine that rests on how a bench reads an open text will vary with the bench, which is what Gopalan and Maneka Gandhi demonstrate on identical words.
A worked example
Trace one provision through the five periods. Article 21.
1950. Gopalan: procedure means whatever a valid statute lays down.
1976. ADM Jabalpur: the right is suspendable and leaves nothing behind.
1978. Maneka Gandhi: procedure must be right, just and fair.
1981 to 1993. Dignity, livelihood, pollution free water, education.
2017 and 2018. Privacy; dignity in dying.
The Judicial Creativity of the Supreme Court of India
What changed in the text. Nothing. Every development is the judicial process working on the same fourteen words.
Quick revision
- Five periods: formal 1950 to 1967; struggle over amendment 1967 to 1973; failure 1975 to 1977; transformative 1978 to early 1990s; consolidation and self-criticism from the mid-1990s.
- Gopalan is the baseline; Kesavananda is the largest single act of creativity; ADM Jabalpur is the failure.
- Maneka Gandhi is the doctrinal foundation of the transformative period; S.P. Gupta and Bandhua Mukti Morcha are its procedural foundation.
- The fifth period combines institutional creativity, vacuum-filling, self-criticism and a second wave of expansion.
- Achievements: a workable Constitution without amending Part III, effective rights for those outside the political process, exported doctrines.
- Costs: judge-made doctrine, uncertainty of content, discretionary power in an unelected body, orders beyond enforcement capacity.
- Article 21 traced through all five periods shows the whole story on an unamended text.
Test yourself
1. Name the five periods of Indian judicial creativity with a case for each. Formal, 1950 to 1967, A.K. Gopalan; struggle over the amending power, 1967 to 1973, Golak Nath and Kesavananda; failure, 1975 to 1977, ADM Jabalpur; transformative, 1978 onwards, Maneka Gandhi with the public interest line; consolidation and self-criticism, from the mid-1990s, the Judges cases and Chandra Kumar with Aravali Golf Club and Chaufal.
2. Why must an honest chronology include 1975 to 1977? Because the transformative period is unintelligible without it. The expansion of rights and the opening of procedure after 1978 followed an episode in which the Court had held that no detenu could ask any High Court whether his detention was lawful, and in which the dissenting judge was superseded. The institution had standing to rebuild, and the record shows it rebuilding.
3. Give two achievements and two costs of the Court's creativity. Achievements: a Constitution kept workable for seventy five years without significant amendment of Part III, and rights made effective for people the political process does not reach. Costs: doctrine that is judge-made and therefore unmakeable by the same route, and an enormous discretionary power exercised by an unelected body whose choices are settled case by case.
4. What does tracing Article 21 through the five periods demonstrate? That the entire development, from procedure meaning whatever a statute lays down, through the suspension reasoning of 1976, to fair procedure in 1978, dignity, livelihood, education and pollution free water in the 1980s and 1990s, and privacy and dignity in dying in 2017 and 2018, was accomplished on fourteen words that have never been amended. The change was in the judicial process and nowhere else.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.