Judicial Creativity by Lord Denning

This blog is inscribed by Tejaswini Gangwal.

Denning L.J. in Seaford Court Estates Ltd. v. Asher, (1949) 2 K.B. 481 (498), on the need for statutory interpretation, observes;

“It is not within human powers to foresee the manifold sets of facts which may arise; and that; even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticized. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judge’s trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this, not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give ‘force and life’ to the intention of the legislature.

To put into other words: A judge should ask himself the question: If the makers of the Act had themselves come across this luck in the texture of it, how would they have straight ended it out? He must then do as they would have done. A judge must not alter the material of which it is woven, but he can and should iron out the creases”.

The above statement which has been made by Lord Denning, describes the role, importance and scope of Judicial Creativity in Statutory Interpretation. Before discussing the statement, let us understand the meaning of Judicial Creativity and the role of the courts in interpreting the Constitution and the other laws in the country. The judiciary is granted a high level of importance in democratic countries. The courts play a crucial role in interpreting the Constitution’s provisions. The courts serve as the chief interpreter, protector, and defender of the Constitution’s supremacy. The judiciary must play a critical role in the understanding and implementation of human rights enshrined in the country’s fundamental law. As a result, it is important to understand what the judiciary’s approach to constitutional interpretation should be. In simple terms, it can be said that the judiciary plays an active role in enforcing the provisions of the various laws of the country. In several of its landmark judgments, the Hon’ble Supreme Court of India has held that judicial creativity is the active process of implementing the rule of law, which is essential for the preservation of a functioning democracy, and that the active role of the judiciary ensures justice to individuals, groups of individuals, and society as a whole.[1]

The meaning of Judicial Creativity can be well understood from the above paragraph. Coming back to Lord Denning’s statement, it can be said that the statement has multiple dimensions. The first line of the statement – 

“It is not within human powers to foresee the manifold sets of facts which may arise; and that; even if it were, it is not possible to provide for them in terms free from all ambiguity.” 

This sentence potentially brings out the very important problem in the process of legislation and its interpretation. It points out that any legislature is not made with divine precision as it is not possible for the legislators to foresee all the possibilities that may arise. In any case, any kind of factual matrix may arise and even though there are laws governing the basics, it is not possible for the legislators to include every possible situation and make laws for each one of them. It can be safely said that there will be some limitations in a legislation. Howsoever meticulous a legislation may be, there will always be some provisions where the judges will need to be creative in interpreting the provisions in order to apply them in the factual matrix of the case. 

Let us take an example – the legislature makes laws relating to maternity, the laws which are made are directed towards the mother carrying the baby. The laws are made in order to provide some reliefs to a pregnant woman. Maternity laws also protect a woman who has just given birth, so that the mother can take the required care of the baby after it is born. Although, multiple circumstances can arise which the legislators might not have foreseen while making these laws. 

Situation 1: If a couple has a baby through surrogacy. In this case, there will be two women in need of protection under these laws – the surrogate and the woman who will be taking care of the baby after it is born. In this case, the judges will have to use their creativity to offer justice to both these women. 

Situation 2: if due to an unfortunate incident, the mother dies immediately after the birth of the child. In this case, the father of the child will have to take care of the new born baby like any other mother. In this case, the privileges offered to a woman after the birth of her child must also be provided to the father. Although, if there are no laws governing such situations, the judges will have to again use their creativity. 

It is beyond human abilities to predict the numerous permutations and combinations that can occur during the actual execution of a particular law, let alone to account for each one in terms that are clear and unambiguous. As a result, interpreting laws becomes a never-ending process as new facts and circumstances emerge. 

“The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised.”

The second problem that I raised in this statement can be clearly understood from the above line. The language used for legislations is not of mathematical precision meaning that, understanding what the law necessarily means or wants to convey can be interpreted in various ways. It is said that the English language is very funny. This is because, one word can have multiple meanings and can be used in different contexts[2]. It is important to understand the meaning of a word along the lines of the provision it is used in. 

The interpretation of a particular sentence can change if certain conjunctions or punctuation marks or helping verbs are changes[3]. To understand this, let us take an example- 

Sentence 1- Twenty five-dollar bills. ($100)

Sentence 2- Twenty-five dollar bills. ($25)

The first sentence means that there are twenty bills of 5 dollars each while the second sentence says that there are twenty-five dollar bills. The placement of the hyphen is therefore very important to understand the meaning of the two sentences. 

Similarly, in the Indian Evidence Act, 1872, the two phrases “may presume” and “shall presume” can be confusing. Although the act does give the meaning of these two phrases in the beginning itself, these terms can be overlapping when it comes to using them in the judicial course. The wordplay in the English language can be very tricky and must be interpreted with utmost clarity. 

Therefore, there is no need for interpretation when the statute’s language is clear and explicit. However, in some situations, the same word or phrase may have several meanings. As a result, it is important to interpret these provisions in order to determine their true meaning. 

“A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judge’s trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this, not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give ‘force and life’ to the intention of the legislature.”

This part of the statement given by Lord Denning tells us that not all laws are made with divine precision. In fact, no law is made with divine precision. When there arises a factual matrix where the provisions of law are not enough to settle the matter, the judges need to use their creativity and innovation to settle such matters. 

This sentence raises the question of ‘why is creativity important’ and ‘what is the recourse for a judge when the law does not provide for a particular factual matrix’ in the interpretation of statutes. Further, it goes on to provide two solutions itself – (1) the judges can blame the draftsmen for not making the law with precision, (2) the judges can use creativity and find the intention of the parliament. These two solution are given in the statement itself. The judges can either ridicule the draftsmen and blame them for not thinking so far ahead and making provisions fir for their particular factual matrix or the judges can use their creativity and try and find out the intention of the parliament behind making the provision. Although, a provision per say may not be capable enough to portray the desired intention of the legislature. Nevertheless, there are many factors that influence the parliament in making laws, the most important of them being the developments in society. By analysing these factors, the actual intention of the parliament can be recognized by the judges. 

It is understood that the judges must use their creativity instead of blaming the draftsmen. A judge cannot say that the draftsmen did not make a provision for a certain kind of situations, so we will also do nothing. It is the duty of the judge to look for an answer or use his mind and creativity to settle the matter. 

There are cases in the history of India, where the creativity of the judges gave us some very important precedents. The cases which I will be talking about below will mostly be about how the judges interconnected the Directive Principles of State Policy to the Fundamental Rights. The Directive Principles of State Policy guide the state in governance, although they are not capable to get actualised with the same force as the Fundamental Rights. 

 Example 1: ‘Equal pay for Equal Work’

Article 39(d) of Part IV of the Indian Constitution mentions the legal principle of “equal pay for equal work.” It notes that the government should guide its policies toward achieving the goal of equal pay for men and women. It means that where the job is the same and all the conditions and factors are the same, people in the same positions or ranks should not be treated differently because of their gender.

Although in this case the Supreme court in Randhir Singh v. Union of India[4] said that while this doctrine is listed in Part IV of the Constitution and does not have the status of a Fundamental Right, it must still be regarded as a constitutional goal. As a result, it can be enforced under Article 32 of the Constitution. 

In this case, the judges creatively made a constitutional goal enforceable under Article 32 of the Constitution. 

Example 2: Environment and the Constitution

The Constitution of India guarantees the right to life and personal liberty under Article 21. It says that no one’s life or personal liberty can be taken away from them unless they follow a legal process. The Supreme Court of India held in Rural Litigation and Entitlement Kendra v State of UP [5], also known as the Dehradun quarrying case, that pollution caused by quarries is harmful to people’s health and safety and should be stopped as a violation of Article 21. The Supreme Court held for the first time in this case that the right to a healthy environment is a component of the right to life and personal liberty guaranteed by Article 21.

Furthermore, the Supreme Court held in Subhash Kumar v State of Bihar[6] that the right to pollution-free water and air is a fundamental right under Article 21. The right to a pollution-free environment was incorporated under the heading of the right to life as a result of this judgement, and all the courts were required to adhere to it. This paved the groundwork for India’s environmental litigation.

Lastly, the Supreme Court held in the case of Municipal Corporation, Ratlam v Vardicharan[7], where pollution was caused by private polluters and haphazard town planning, that a pollution-free environment is an integral part of the right to life under Article 21.

In the above cases, the judiciary gave a new pathway to the Indian Laws by making ‘right to preserve environment’ an integral part of the Fundamental Right guaranteed under Article 21 of the Constitution. 

Example 3: ‘Right to Legal Aid’ 

In Part IV of the Indian Constitution, the Directive Principles of State Policy, which stresses the social security character of the state and thereby imposes certain duties on the state to take positive measures to promote the welfare of society, the principle of legal aid is enshrined. According to Article 39-A, the State is required to ensure that the legal system promotes justice on the basis of equal opportunity and to provide free legal assistance to economically disadvantaged groups by appropriate legislation, schemes, or other means. The milestone in this context was Supreme Court’s ardent announcement with regard to the rights of the poor and destitute people in judgment of Hussainara Khatoon v State of Bihar[8] in which the court observed the importance of Article 39A which emphasizes that free legal service was an inalienable element of reasonable, fair and just procedure and that the right to free legal services is impliedly guaranteed under Article 21 of the Indian Constitution. 

In State of Haryana v Darshan Devi[9], the Supreme Court stated that the poor could not be excluded from the justice market on the basis of court fees and failure to enforce the exempted provisions of Order XXXIII, Civil Procedure Code.

In the case of Air India Statutory Corporation v. United Labor Union[10], the Supreme Court stated that Article 39A provides a beacon light that justice is done on the basis of equal opportunity and that no one is denied justice because of economic or other limitations.

Right to Legal Aid was a constitutional goal, provided for under the Directive Principles of State Policy. It was included within the ambit of Article 21 by the judge’s creativity. 

Therefore, when the cases presented themselves, the judges instead of blaming the draftsmen for not making the law with precision, used their creativity and innovation to overcome the obstacles and do justice to the parties. The judges must try to unfold the provisions as well as the intention of the legislature. 

To put into other words: A judge should ask himself the question: If the makers of the Act had themselves come across this luck in the texture of it, how would they have straight ended it out? He must then do as they would have done. A judge must not alter the material of which it is woven, but he can and should iron out the creases”.

We observed above that, if a statute does not have provisions for a particular factual matrix, the judges must use their creativity and unfold the intention of the parliament, instead of blaming them for not making laws with divine precision. 

Another solution to the problem identified above (what is the recourse for a judge when the law does not provide for a particular factual matrix), is given in these statements. 

Lord Denning says that, when a judge does not find the relevant provision in law, he should contemplate as to what the draftsmen would have done if this situation was brought to their notice and then do as they would have done. 

The judge must not interpret in a way that will alter the meaning or the purpose of the provision. The judge should nevertheless, remove the minute discrepancies, if any, and interpret accordingly. 

To understand this let us take the example of the Kesavananda Bharti Case[11], the basic structure of the Constitution was determined by this decision. The Supreme Court ruled that, while no aspect of the Constitution, including Fundamental Rights, was beyond Parliament’s amending power, the “basic structure of the Constitution could not be abrogated even by a constitutional amendment.” This is the legal basis in India for the judiciary to overturn a Parliamentary amendment that contradicts the Constitution’s basic structure. This judgement did not change the basic fabric of the existing law, but made the necessary corrections in law by not allowing even the Parliament to amend the Fundamental Rights that were guaranteed by the Constituent Assembly. 

This case can help us understand the scope for judicial creativity in a definitive manner. It restricts the judiciary to innovate at its own free will and not become a knight-errant where they want to demonstrate judicial powers, but also protect the citizens and the law of the country. 

Thus, the meaning and scope of Judicial Creativity is extremely wide and a part of it is explained in the article above. 

To conclude, I would like to point out that the esteemed judges of our country have given us a creative way of interpreting statutes by setting an excellent example for us. 


[1] S.P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits, Oxford University Press, 2002 edition.

[2] ABNER J. MIKVA & ERIC LANE, LEGISLATIVE PROCESS 111 (2d ed. 2002)

[3] Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 528 (1947)

[4] Randhir Singh v. Union of India, (1982) LLJ 344

[5] Rural Litigation and Entitlement Kendra v State of UP, AIR 1985 SC 652

[6] Subhash Kumar v. State of Bihar, AIR 1991 SC 420

[7] Municipal Corporation, Ratlam v Vardicharan, AIR 1980 SC 1622

[8] Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98

[9] State of Haryana v. Darshan Devi, AIR 1972 SC 855

[10] Air India Statutory Corporation v. United Labor Union, AIR 1997 SC 645

[11] Kesavananda Bharti Sripadagalvaru & Ors. v. State of Kerala & Anr., (1973) 4 SCC 225

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