the tools and techniques of judicial creativity and precedent

The predominant positivist approach of interpretation followed by the Indian Judiciary emanates from the basic traditional theory that a judge does not create law but merely declares the law. and it is the duty of the judiciary to so interpret the constitution and the law as to constantly inculcate these values on which democracy thrives.

A democratic society lives and swears by certain values such as individual liberty, human dignity, rule of law, constitutionalism etc. The task of interpreting the constitution is a highly creative judicial function which must be in tune with the constitutional philosophy. The judiciary has to devise a pragmatic wisdom to adopt a creative and purposive approach in the interpretation of various rights embodied in the Constitution. Therefore, it is necessary to consider what should be the approach of the judiciary in the matter of constitutional interpretation. The judiciary has to perform an important role in the interpretation and enforcement of human rights inscribed in the fundamental law of the country. The courts act as the supreme interpreter, protector and guardian of the supremacy of the Constitution. The courts perform the key role of expounding the provisions of the Constitution. In democratic countries the judiciary is given a place of great significance.

JUDICIAL ACTIVISM AND JUDICIAL CREATIVITY OF THE SUPREME COURT IN CONSTITUTIONAL INTERPRETATION

The tools and techniques of judicial creativity and precedent