Abstract Judicial Creativity in Constitutional Interpretation Anita Fabiyola*

According to Blackstone the duty of the court is not to pronounce a new law but to maintain and expound the old one and that if it is to be found that the former decision is manifestly in just or absurd, It is declare not that such sentence was bad law, but that it was not the law. In Indra Sawhney v Union of India, Supreme Court stated that the permissible judicial creativity in time with the Constitutional objectivity is to interpret the constitutional provision so that the dominant values may be discovered and enforced. Thereby the gap in the intention of the legislature is bridged by the judiciary. Law is a social engineering and instrument of the social change evolved by the gradual and continues process. In Bengal Immunity Company Ltd v. State of Bihar, Supreme Court observed that it was not bound by its earlier judgments and possesses the freedom to overrule its judgments when it thought fit to do so, to keep pace with the needs of the change in time. This acceptance ensured the preservation and legitimation provided to the doctrine of binding precedent and therefore certainty and finality in the law is ensured, while permitting the necessary scope for the judicial creativity. Though the role of judges for the interpretation of Constitution is admirable one, still it needs some contribution for the same. In this paper an attempt has been made to explore and expanse the role of judges in the name of judicial creativity in the context of Constitutional Interpretation.

Junior Research Fellow, Department of Legal Studies, University of Madras, Chennai.