Such excesses ought to be prevented or minimized through judicial self. On Judicial Creativity,Tools and Techniques of Judicial Creativity and Precedent. The tools and techniques of judicial creativity and precedent. Legal development and creativity through legal reasoning under statutory and codified systems.

• The Tools And Techniques Of Judicial Creativity And Precedent In India

Since the formation of the independent Indian republic, the nation’s Supreme Court has vigorously exercised full checks on the legislative and executive branches. In numerous instances where these limbs of governance have not lived up to the expectations of the people, or have failed to safeguard constitutional guarantees, the higher judiciary has asserted its position not only as a protector of the Constitution but has also interpreted its provisions in a dynamic way to respond to the needs of the times.

This can be better understood by analyzing certain vital factors like degree of creativity, the modes, limits and legitimacy of law making through courts. By reason of judicial activism, much good or harm could be brought about by the Judges by resorting to innovative interpretation. Since judicial interpretation always involves some degree of law making, the creative character of judicial function and the degree of creativity depends on the most activist and dynamic nature of the judge. Judicial activism in India has not been a spontaneous development. It is the consequence of a situation which necessitated it. When the Parliament enacted laws and the laws were intended to cover new fact situations, the judges’ creativity and innovation revived in the matter of filling in the gaps.

Law must keep pace with society to retain its relevance, therefore, judicial creativity is necessary for meeting with the ends of justice. The theory of basic structure of the Constitution is a result of the creative interpretation of the Supreme Court. Union of India', AIR 2007 SUPREME COURT 71, the Apex Court has held that this development is the emergence of the constitutional principles in their own right. King of fighters 99 online.

State of Punjab (1983) 2 SCR 582 the Apex Court explained that 'The horizons of Article 21 are ever widening and the final word on its conspectus shall never have been said. So long as life lasts, so long shall it be the duty and endeavour of this Court to give to the provisions of our Constitution a meaning which will prevent human suffering and degradation. Therefore, Article 21 is as much relevant at the stage of execution of the death sentence as it is in the interregnum between the imposition of that sentence and its execution. The essence of the matter is that all procedure no matter the stage, must be fair, just and reasonable.' Article 21 thus received a creative connotation. The Supreme Court in Jagdambika Pratap Narain Singh v. Central Board of Direct Taxes, (AIR 1975 SC 1816), dealing with the question of limitation in granting a relief, has observed that any legal system, especially one evolving in a developing country, might permit judges to play a creative role and innovate to ensure justice without doing violence to the norms set by legislation.

If a statutory provision is open to more than one interpretation the court has to choose that interpretation which represents the true intention of the legislature. The function of the courts is only to expound and not to legislate. U.S.A [ ] Meaning [ ]. This section needs additional citations for. Unsourced material may be challenged and removed. (March 2016) () The interprets how legislation should apply in a particular case as no legislation unambiguously and specifically addresses all matters. Legislation may contain uncertainties for a variety of reasons: • Words are imperfect symbols to communicate intent.

United States, (1917), reasoning '[i]t is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain. The sole function of the courts is to enforce it according to its terms.' And if a statute's language is plain and clear, the Court further warned that 'the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion.' Rule against surplusage Where one reading of a statute would make one or more parts of the statute redundant and another reading would avoid the redundancy, the other reading is preferred. Eiusdem generis ('of the same kinds, class, or nature') When a list of two or more specific descriptors is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them. For example, where 'cars, motor bikes, motor powered vehicles' are mentioned, the word 'vehicles' would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes).

• United States of America v. Scrimgeour 636 F.2d 1019 (5th Cir.

The Tools And Techniques Of Judicial Creativity And Precedent In India

In all these cases the judges of the Apex Court excelled in their creative skills. Anyone who analyses the judicial process of the Supreme Court and High Courts would conclude that judicial process has developed some finest principles and Courts have made tremendous contribution in establishment of a rule of law society in India and enhanced the people’s quality of life.

Medical Law International. Peavy-Wilson Lumber Co., 49 F.

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346, 353, 871 P.2d 1352, 1359 (1994). - New Mexico v. Juan, 2010-NMSC-041, August 9, 2010 •, 4th District: 'Our role in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law.

The activist judges to an extent laid down law to fill the vacuum created by the legislature. The judges assuming an activist role applied their creative skills by introducing very many number of principles of interpretation of Constitutional provisions, especially in respect of the provisions relating to fundamental rights. In this context it is apt to quote Justice Oliver Wendell Holmes: “I recognize without hesitation the judges must and do legislate, but they do so only interstitially; they are confined from molar to molecular motions.” [8] It is pertinent to draw the attention to a parallel statement made by Benjamin Cardozo [9]while discussing the role of activist judges in his classic text The Nature of Judicial Process.

In Hussainara Khatoon v. Home Secretary, State of Bihar, (AIR 1979 SC 1360), the Court while dealing with the cases of under-trials, who had suffered long incarceration held that a procedure which keeps such large number of people behind bars without trial so long cannot possibly be regarded as reasonable, just or fair so as to be in conformity with the requirement of Article 21. The Court laid stress upon the need for enactment of law to ensure reasonable, just and fair procedure which has creative connotation after Maneka Gandhi's case, (1978) 1 SCC 248 in the matter of criminal trials. In 'Municipal Corporation of Greater Bombay v. Indian Oil Corporation Ltd. AIR1991 SUPREME COURT 686, has held that keeping in view the social, economic and political goal setting in which it is intended to operate, Judge is called upon the perform a creative function.

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. 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. The Indian judiciary underwent a sea change in terms of discarding its traditional approach by charting out a new horizon of dynamic concept of judicial activism with many facets and dimensions which paved way for the activist liberal judicial approach to Constitutional interpretation.

In 'State of Bihar v. Bal Mukund Sah', AIR 2000 SUPREME COURT 1296, the Supreme Court has emphasized its creative role in achieving the goal of socio-economic justice. The judiciary has, therefore, a socio-economic destination and a creative function. It has to use the words of G.

There are numerous rules of statutory interpretation. The first and most important rule is the rule dealing with the statute's plain language. This rule essentially states that the statute means what it says. If, for example, the statute says 'motor vehicles', then the court is most likely to construe that the legislation is referring to the broad range of motorised vehicles normally required to travel along roadways and not 'aeroplanes' or 'bicycles' even though aeroplanes are vehicles propelled by a motor and bicycles may be used on a roadway. In Australia and in the United States, the courts have consistently stated that the text of the statute is used first, and it is read as it is written, using the ordinary meaning of the words of the statute. Below are various quotes on this topic from US courts: •: 'We begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself.

These were: the, the, and the. Statutes may be presumed to incorporate certain components, as Parliament is 'presumed' to have intended their inclusion. For example: • Offences defined in criminal statutes are presumed to require (a guilty intention by the accused),. • A statute is presumed to make no changes in the common law.

The role of the Court is creative rather than passive, and it assumes a more positive attitude in determining facts and circumstances of each case. 'Justice Cardozo approvingly quoted President T. Roosevelt's stress on the social philosophy of the Judges, which shakes and shapes the course of a nation and, therefore, the choice of Judges for the higher Courts which makes and declares the law of the land, must be in tune with the social philosophy of the Constitution. Not mastery of the law alone, but social vision and creative craftsmanship are important inputs in successful justicing.'

The word 'peculiar' is used to mean both specific and unusual, e.g. 'kangaroos are peculiar to Australia,' and 'it's very peculiar to see a kangaroo outside Australia.' [ ] • Unforeseen situations are inevitable, and new technologies and cultures make application of existing laws difficult. Does the use of a new cloning technique create an embryo within the meaning of statute enacted when embryos could only be created by fertilisation?) • Uncertainties may be added to the statute in the course of enactment, such as the need for compromise or catering to special. Therefore, the court must try to determine how a statute should be enforced. This requires statutory construction.