The Limits of Judicial Creativity
Chapter Fifteen
Syllabus topic 1, "Nature of judicial process"
Pages 62 to 66 of 356
In one line
A court may develop the law only where the law leaves room, only by reasons it can publish, and only up to the point where it would be governing rather than deciding.
In the wording a student can write in an exam: judicial creativity is bounded by four kinds of limit. There are textual limits, because a clear provision must be applied whatever the court thinks of it. There are institutional limits, because a court is not equipped to do what a legislature or an executive does. There are constitutional limits, because the separation of powers assigns law-making and administration elsewhere. And there are practical limits, because a court cannot enforce what it decrees.
1. Textual limits
A clear provision governs. Where words admit of only one meaning, the court applies it. Creativity operates on ambiguity, on silence and on conflict, and where none of those is present there is nothing to work on. A court that departs from clear words is not being creative; it is exceeding its jurisdiction, and the remedy is appeal.
A binding precedent governs. A smaller Bench cannot depart from a larger one. Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673, states the rule.
Facts. A petition of 1986 sought reconsideration of a 1962 Constitution Bench decision and had been directed to a seven judge Bench. An application asked that it instead be listed before a Bench of two or three judges, relying on Bharat Petroleum Corporation v. Mumbai Shramik Sangha and four later Constitution Bench decisions.
Held. A decision of a Bench of larger strength binds a Bench of smaller strength. A Bench of lesser quorum cannot express disagreement with, or question the correctness of, the view of a Bench of larger quorum. Only a Bench of the same quorum may doubt a co-ordinate Bench, and then the matter goes to a larger quorum. A two judge Bench not inclined to follow a three judge Bench may not say so; it may only request the Chief Justice to place the matter before a three judge Bench.
Why it matters here. Creativity is distributed unevenly through the hierarchy. What a nine judge Bench may do, a two judge Bench may not, and most judges most of the time are bound.
Amendment forecloses interpretation. Where the legislature has amended a provision to reverse a judicial construction, the court must give effect to the amendment, unless the amendment is itself unconstitutional.
2. Institutional limits
A court hears two parties. The record is built to decide a dispute, not to survey a problem. A legislature can call for evidence, consult affected interests, cost the alternatives and revise after a year. A court sees the fragment the litigation presents.
The Limits of Judicial Creativity
A court cannot consult. It cannot ask the public what it thinks, and it must not.
A court cannot experiment or revise. A statute can be amended next session; a judgment is corrected only when another case arrives.
A court has no expertise in polycentric problems. Where a decision has many interdependent consequences, adjudication is a poor instrument, because changing one element changes all the others and the court sees only the element before it.
A court cannot allocate money. A direction to build hospitals is a direction to take money from something else, and the court is not told what.
Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, is the Court stating this against itself.
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; they must know their limits, must not try to run the government, and must have modesty and humility.
Why it matters here. It is the sharpest judicial statement of the institutional limit in Indian law, and it was delivered in the same decade as the boldest examples of creativity, which is what makes it authoritative rather than merely critical.
Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, states the same limit in constitutional terms.
Facts. Unsuccessful candidates for MBBS and BDS admission in Jammu and Kashmir challenged the selection procedure, and the High Court gave directions to the State Government including a direction to constitute a statutory body for selections.
Held. While the legislature, the executive and the judiciary have to function within their own spheres, no organ can take over the functions assigned to another. A court exercising judicial review does not sit as an appellate authority over the executive and cannot advise the executive in matters of policy; its function is to see that the executive acts within the limits of its authority and that its acts do not infringe the law.
Why it matters here. It supplies the constitutional vocabulary for the limit that Aravali Golf Club states colloquially.
3. Constitutional limits
The separation of powers. Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, holds that the Indian Constitution does not contemplate an absolute separation but recognises a broad demarcation.
The Limits of Judicial Creativity
Facts. Publishers of school textbooks complained that the Punjab Government's policy of nationalising textbooks, carried out by executive notifications without legislation, destroyed their business and violated Article 19(1)(g).
Held. The executive function comprises both the determination of policy and its execution, and includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy and the general administration of the State. The executive may act without a statute so long as it does not infringe a legal right. The Constitution does not contemplate an absolute separation of powers but a broad demarcation, with the executive answerable to the legislature.
Why it matters here. It fixes the frame. Because the demarcation is broad rather than absolute, the boundary is a matter of degree, which is precisely why the argument about overreach never ends.
Democratic legitimacy. Judges are not elected and cannot be removed by an electorate. A rule they create binds people who had no say in it, and there is no complete answer to that objection. The partial answers are that creation operates only where the elected branches have not spoken, that they may speak afterwards, and that the reasons are published and open to criticism.
The court must not decide political questions as such. It decides whether power was exercised lawfully, not whether it was exercised wisely.
4. Practical limits
A court cannot implement. Its orders are carried out by an administration it does not control. The gap between direction and compliance is treated in [New Dimensions of Judicial Activism, and the Structural Challenges].
A court depends on being obeyed. Its authority rests on acceptance, and a court that decrees what will not be obeyed spends that authority. The aftermath of Indian Young Lawyers Association v. State of Kerala, decided on 28 September 2018, showed how quickly this cost is incurred.
A court cannot select its cases. It gets the litigation that arrives.
Retrospectivity. A created rule applies to conduct that preceded it. Prospective overruling mitigates this and is rarely used.
The internal limit: the least destructive tool
There is also a limit the courts impose on themselves in the exercise of the techniques. Where a defect can be cured by severance, by reading down or by reading in, the court prefers that to striking down, because the enactment is Parliament's and as much of it as can stand should stand.
A worked example
A High Court, hearing a petition about garbage in a city, directs the municipal corporation to appoint two thousand sanitation workers within three months and to purchase four hundred vehicles.
The Limits of Judicial Creativity
Is there a gap? Yes, in the sense that no statute says how many workers a corporation must employ.
Is the direction within the textual limit? The relevant Act imposes a duty to keep the city clean, so a direction to perform the duty is within it. A direction fixing the number of employees and vehicles is not; nothing in the Act gives the court that power.
Is it within the institutional limit? No. The court has not been told the corporation's revenue, its other obligations, or what else the money would have paid for.
Is it within the constitutional limit? No, on the reasoning of Aravali Golf Club: creating posts is an executive function.
What would be within all three? A direction that the corporation prepare and file a plan for discharging its statutory duty within a fixed period, with liberty to apply. The obligation is enforced; the choices remain the corporation's.
What beginners get wrong
Treating the limits as optional. MU asks for them expressly, and a court itself has stated them in Aravali Golf Club and Asif Hameed.
Confusing a limit with a criticism. That courts cannot allocate money is a fact about adjudication, not a complaint about judges.
Assuming the limits are fixed. They are matters of degree, and where the line falls has moved several times in Indian history.
Quick revision
- Four kinds of limit: textual, institutional, constitutional, practical.
- Textual: a clear provision governs; a larger Bench binds a smaller, per Dawoodi Bohra; an amendment forecloses interpretation.
- Institutional: two parties and a partial record, no consultation, no revision, no expertise in polycentric problems, no power to allocate money.
- Aravali Golf Club, (2008) 1 SCC 683: creating a post is an executive function; judges must not try to run the government.
- Asif Hameed, AIR 1989 SC 1899: a court on judicial review is not an appellate authority over the executive and cannot advise on policy.
- Constitutional: broad demarcation of powers per Ram Jawaya Kapur, AIR 1955 SC 549; democratic legitimacy; political questions.
- Practical: no power to implement, dependence on acceptance, no control over the docket, retrospectivity.
- Internal limit: prefer severance or reading down to striking down.
Test yourself
1. Name the four kinds of limit on judicial creativity and give one instance of each. Textual, as where a larger Bench binds a smaller under Dawoodi Bohra; institutional, as where a court cannot allocate money because it is not told what the expenditure displaces; constitutional, as in Asif Hameed, where a court on review may not advise the executive on policy; and practical, as where an order depends for its effect on an administration the court does not control.
2. Why is Aravali Golf Club a stronger authority for the limits than academic criticism? Because it is the Court's own statement, made while setting aside directions of a High Court, and delivered in the same period as the boldest instances of creativity. It holds that creating a post is an executive function, that judges cannot take over functions belonging to another organ in the name of activism, and that they must not try to run the government.
The Limits of Judicial Creativity
3. Rewrite an excessive direction so that it falls within the limits. Instead of directing a municipal corporation to appoint a fixed number of workers and buy a fixed number of vehicles, direct it to prepare and file a plan for discharging its statutory duty to keep the city clean within a stated period, with liberty to apply. The statutory obligation is enforced while the choices about how to discharge it, and what they displace, remain with the body that has the information and the budget.
4. State the democratic objection and the best partial answer to it. That judges are unelected and irremovable by an electorate, so a rule they create binds people who had no say in it. The partial answer is that creation operates only where the elected branches have not spoken, that those branches may displace the rule afterwards as Parliament did in 2013 for sexual harassment, and that the reasons are published and open to criticism in a way an administrative decision is not.
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.