Judicial Creativity: Techniques with Case Laws

In any state, it is the Parliament that can pass laws almost on any subject matter. But over the years, the
legislative and judicial needs of a modern state have expanded so vividly and rapidly that it has become
almost impossible to continue the practice. In the efforts to bring out far-reaching and consequential social
changes by way of legislation and justice delivery, ample problems cropped up. The process of getting these
laws on the statute book would have led to an increasing amount of legislative time, and in the end, conflicts
of interest. Thus, a balance of contrary facets became necessary to fulfil the principles enshrined in the
Constitution and preserve sovereignty through judicial creativity. Judges use their wisdom and
intrinsic sense of justice and give life to the letter of the law that is relevant to the time and
crucially, relevant to the facts of the case. The intention is to adjudicate the matter according to
the requirement and ensure that the supremacy of the Constitution is interpreted, protected, and defended by
the courts.

The Constitution of India is the supreme law of the land, and its provisions are subject to interpretation by
the judiciary. The interpretation of the Constitution has been a matter of intense debate, as it involves
balancing the competing interests of the legislature, executive, and judiciary. The judiciary has been
recognized as the guardian of the Constitution and has the responsibility of ensuring that the Constitution is
interpreted in a manner that is relevant, responsive and reflects the changing needs of society.

Judicial creativity refers to the approach adopted by judges in interpreting and applying the law in a manner
that is not explicitly stated in the text of the law and in a flexible and innovative way. This approach is
particularly relevant in the context of the Constitution, where the provisions of the Constitution are often
ambiguous or open to interpretation. Judicial creativity holds significant importance in shaping the
interpretation of constitutional provisions. Throughout history, the judiciary has demonstrated a creative
approach to interpreting the Constitution, addressing the evolving societal needs. However, the concept of
judicial creativity remains contentious, with critics arguing that it undermines democracy and the rule of
law.

Techniques of Judicial Creativity:

Followings are the different techniques of judicial creativity implemented by the higher judiciary for giving
a justice in true sense by moulding the judicial process.

Epistolary Jurisdiction:

The Indian Judiciary, at times, is forging new tools, devising new strategies for the purpose of making
fundamental rights meaningful for the large masses of the people. Epistolary jurisdiction allows access to
justice to the poor and the weaker section of the society.

In Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802 case, where an organization dedicated to
the cause of release of bonded labours informed the Supreme Court through a letter that there were a large
number labours working in the stone-quarries situated in Faridabad District under inhuman and intolerable
conditions and many of them were bonded labours. The court treated the letter as a writ petition. The
Supreme Court held that when the poor comes before the court, particularly for enforcement of their
fundamental rights, it is necessary to depart from the adversarial procedure and to evolve a new procedure.
Judiciary has invented novel forms of action to provide relief to the poor, under privileged, downtrodden
sections of the society. The court after inquiry ordered release and rehabilitation of bonded labours.

In Sunil Batra v. Delhi Administration (1980) Cri.L.J. 1099 case, where a prisoner Sunil Batra had
written a letter from Tihar Jail, Delhi to the Supreme Court informing about the torture in prison. It was
treated as petition.
Compensatory Jurisdiction:

There is no express provision in the Constitution of India for grant of compensation for violation of a
fundamental right to life and personal liberty. But the judiciary has evolved a right to compensation in cases
of illegal deprivation of personal liberty.

In Rudal Shah v. State of Bihar AIR 1983 SC 1086 case, the Supreme Court granted monetary
compensation of Rs.35, 000 against the Bihar Government for keeping a person in illegal detention for 14
years even after his acquittal. In this case, the Court departed from the traditional approach, ignored the
technicalities while granting compensation.

In Bhim Singh v. State of Jammu and Kashmir, 1985(4) SCC 677 case, where a member of the
Legislative Assembly of Jammu and Kashmir was arrested by the police mala fide and he was not produced
before the Magistrate within the required time. Holding that his fundamental rights under Article 21 and 22
(1) were violated, the Court observed that when there is mala fide arrest, the invasion of constitutional or
legal right is not washed away by his being set free and in ‘appropriate cases’ the Court has jurisdiction to
compensate the victim by awarding suitable monetary compensation. The Court awarded Rs.50,000 as
monetary compensation by way of exemplary costs to the petitioner to compensate him.

Issue of Guidelines:

In D.K. Basu v. State of W.B., AIR 1997 SC 610 case, the Supreme Court issued 11 requirements
(guidelines) to be followed in all cases of arrest or detention till legal provisions are made in that
behalf. The case sounds death-knell to Montesquieu theory of separation of powers amongst three organs of
the State. The Supreme Court arrogated to itself the constituent or at least legislative power in laying down
these requirements.

The guidelines, framed by the Supreme Court of India in Vishaka v. State of Rajasthan, AIR 1997 SC
3011 case must be followed by both government and private institutions and employers should not be
allowed to violate the fundamental rights of women at the workplace.

Taking a Step as Legislator:

In Vishaka v. State of Rajasthan, 1997 (6) SCC 241 case, the Supreme Court has virtually enacted a piece
of legislation on the ground that there is a vacuum in the legislative field of sexual harassment of working
women. There is a paragraph similar to the statement of objects and reasons. There is a definition clause and
there are 12 points similar to 12 sections. The Supreme Court laid down some guidelines and norms which
are directed to be treated as law. It is submitted that these guidelines cannot be treated as laying down a
precedent under Article 141, but this should be treated as unauthorized ad-hoc legislation by the judiciary.

Giving Legal Aid to Poor:

In Hussainara Khatoon’s case AIR 1979 SC 1377case, The Supreme Court reiterated the right of every
accused person who is unable to engage a lawyer due to poverty, indigence or incommunicado situation, to
have free legal services provided to him by the State for obtaining bail as well as for defence at the time
of the trial. The court added a further protection to this right by holding that if free legal services are not
provided to such an accused, the trial itself may run the risk of being vitiated as contravening Article 21.

In Madhav Hayawadanrao Hoskot v. State Of Maharashtra, AIR 1978 SC 1548 case, the Supreme
Court observed that where the prisoner is disabled from engaging a lawyer, on reasonable grounds such as
indigence or incommunicado situation, the Court shall, if the circumstances of the case, the gravity of the
sentence and the ends of justice so require, assign competent counsel for the prisoner’s defence, provided the
party does not object to that lawyer. The State shall pay to assigned counsel such sum as the court may
equitably fix.

Rule of Absolute Liability and Strict Liability:

The rule of strict liability evolved through the case of Rylands vs Fletchers in 1868, the rule simply stated
that any person keeping any hazardous substance on his premises would be held liable if such substance
escapes and causes harm to any other person and it would be immaterial whether due care and caution was
taken by the defendant. However strict liability has various exceptions like Acts of God, Plaintiff’s own
fault, acts of a third party, Act done by a statutory authority. The rule of absolute liability is similar to the
rule of strict liability with some modification. This rule applies without any limitation or exception and
creates an individual completely liable for any fault.

By Explaining the rule of No fault liability Blackburn J. said that “We think that the rule of the law is that
the person who for his own purposes brings on his lands and collects and keeps there anything likely to do
mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all
the damage which is the natural consequence of its escape.”

In his judgement, Blackburn J. referred the liability as ‘absolute’. But the liability in fact is strict and in no
way absolute. The rule in Rylands v. Fletcher is subject to so many exceptions that in fact very little of the
rule is left. The recent trend is to limit the scope of the rule, and to bring it adjacent to the modern theory that
there will be no liability without any fault. In view of these reasons, the term ‘absolute liability’ is misnomer
and the appropriate term is ‘Strict Liability

In M.C. Mehta v UOI case 1987 SCR (1) 819 and Bhopal Gas Leak AIR 1992 SC 248 cases, the Apex
Court maximise the limit of rule of Ryland V. Fletcher. The rule laid down by the SC is much wider with
respect to the rule laid down by House of Lords.

The difference between Strict and Absolute liability rules was laid down by Supreme Court in M.C. Mehta
v. Union of India, where the court explains as:

o Firstly, In Absolute Liability only those enterprises shall be held liable which are involved in
hazardous or inherently dangerous activities, this implies that other industries not falling in the above
ambit shall be covered under the rule of strict liability.
o Secondly, the escape of a dangerous thing from one’s own land is not necessary; it means that the rule
of absolute liability shall be applicable to those injured within the premise and person outside the
premise.
o Thirdly, the rule of Absolute liability does not have an exception, whereas as some exception were
provided in rule of Strict Liability.
o Fourthly, the Rule of Ryland V Fletcher apply only to the non-natural use of land but the new rule of
absolute liability apply to even the natural use of land. If a person uses a dangerous substance which
may be natural use of land & if such substance escapes, he shall be held liable even though he have
taken proper care

In M.C. Mehta v UOI (Oleum Gas Leak Case), 1987 SCR (1) 819 case, Mr. M.C Mehta, a social activist
filed a writ petition in the Supreme Court of India for the closure of Shriram Industries and its various plants
for manufacturing hazardous substances like Sulphuric acid and Caustic Chlorine. The same industry was
responsible for the leakage of Oleum gas that led to the death of one person and injured several others. In his
observations Justice Bhagwati stated that the rule of strict liability was evolved in 19th century, the time
when nature industrial developments was at primary stage, in today’s modern industrial society where
hazardous or inherently dangerous industries are necessary to carry out development programme, thus this
old rule cannot be held relevant in present day context. Also one cannot feel inhibited by this rule which was
evolved in the context of totally different social and economic structure.
The absolute liability rule applies to both natural and non-natural use of land while strict liability applies to
only non-natural use of land. The Supreme Court said strict liability has four essentials:

1. The nature of industry must be hazardous.

2. It is not important to escape if a person is injured either outside or inside the premises.
3. The lack of any exceptions as defined by strict responsibility, and
4. The size and scope of the industry will determine the number of damages to be paid.

Order Against the Executive to Enforce the Fundamental Rights / Writs:

Fundamental Rights are guaranteed against the actions of the Legislatures, the Executive and any other
authorities instituted by the government. If any act of Legislature or the Executive takes away or limits any
of the Fundamental Rights it will be invalid. We can challenge such laws of the central and state
governments. The Supreme Court and High Courts have the power to issue directions, orders or writs for the
enforcement of the Fundamental Rights. They can also award compensation, to the victims and punishment
to the violators.

A writ petition can be termed as a formal written order issued by a judicial authority who possesses the
authority to do so. There are five types of writs viz: Habeas Corpus, Mandamus, Certiorari, Prohibition, and
Quo Warranto,

In Sunil Batra v. Delhi Administration, AIR 1980 SC 1579 case, an application was made to the Supreme
Court through a letter written by a co-convict on the maltreatment of the prisoners. This letter was taken up
by the Supreme Court and it issued the writ of habeas corpus stating that this writ can not only be used
against illegal arrest of the prisoner but also for his protection against any maltreatment or inhuman
behaviour by the detaining authorities.

In Kanu Sanyal v. District Magistrate Darjeeling, AIR 1974 SC 510 case, the Supreme Court held that
rather than focusing on the defined meaning of Habeas Corpus, i.e. produce the body, there should be a
focus on the examination of the legality of the detention by looking at the facts and circumstances of the
case. It stated that this writ is a procedural writ and not a substantive writ. This case dealt with the nature and
scope of the writ of habeas corpus.

In All India Tea Trading Co. v. S.D.O., AIR 1962 Ass 20 case, the Land Acquisition Officer erroneously
refused to pay the interest on compensation amount. A writ of mandamus was issued against the Land
Acquisition Officer directing him to reconsider the application for the payment of interest.

Relaxation of Rule of Locus-Standi:

The doctrine of locus standi is an old doctrine. The doctrine signifies appearance before the court or before
anybody on a given question. According to the doctrine of locus standi, a person who is stranger to a
disputed matter cannot be allowed to interfere in the judicial proceedings. Only a person whose legal right
has been violated, that is the aggrieved person against whom a decision has been pronounced, is allowed to
bring an action in the court.

In S.P Gupta vs Union of India, AIR 1982 SC 149 case, the Supreme Court observed that in India a large
number of persons are exploited and ignorant of their legal rights. These weaker sections of the country are
not in a position to approach the court for judicial remedy. So in order to provide justice to these people, the
principle of locus standi should be relaxed. It further held that whenever the legal rights of a person or class
of persons is violated and by any reason they cannot approach the court, then any public spirited person can
file a petition on behalf of them under Articles 226 and 32 of the Indian Constitution in high court and
Supreme Court respectively.
In Akhil Bhartiya Soshit Karmachari Sangh v. Union of India, AIR 1981 SC 298 case, where the Apex
Court had ruled that although the Akhil Bhartiya Soshit Karmachari Sangh (Railway) was an unregistered
association, it was eligible to file a writ-petition under Article 226 of the Indian Constitution, in order to get
redressal of a popular grievance. The Court had further held that constitutional jurisprudence provides access
to justice by means of class actions, public interest litigation, and representative proceedings.

Social Action Litigations:

In order to deal with such a situation, initiative was taken by the social workers and conscious persons and
social organizations to take such matters in which there is a wide public interest to the court and there was
success in this, this was called social action Litigation. Visakha case is a case of Social Action Litigation.

Expansion of Scope of Article 21:

Article 21 is also called as heart and soul of Constitution of India. It states that “No person shall be deprived
of his life or personal liberty except according to a procedure established by law.” The main aim of this
article is to secure two aspects, first being right to life and second right to personal liberty. The primary
notion of the right to life is the bare essentials, minimal and basic necessities that are vital and inescapable
for a person. This right includes the unadorned necessities of life, such as proper nutrition, clothing, and
shelter over one’s head, as well as amenities for learning, writing, and conveying information in various
forms, liberally moving about, and mixing and socialising with fellow humans, must encompass the right to
basic necessities, as well as the capacity to hold out functions and activities that comprise the bare minimum
expression of human-self.

Right to Privacy:

The Oxford Dictionary of Law defines privacy as the “right to be left alone”. The right to privacy is the right
to keep our personal information private. Personal information can include electronic communication, sexual
orientation, professional activities and even feelings or intellect. Despite the absence of any dedicated article
in the Indian Constitution, the Supreme Court of India has extended the purview of Article 21 and upheld
that the right to privacy is a fundamental right too.

Right to be Forgotten (RTBF):

It is the right to have publicly available personal information removed from the internet, search, databases,
websites or any other public platforms, once the personal information in question is no longer necessary, or
relevant. RTBF emerges from the right to privacy under Article 21 and partly from the right to dignity under
Article 14.

Right to be Left Alone:

It doesn’t mean that one is withdrawing from society. It is an expectation that society will not interfere in the
choices made by the person so long as they do not cause harm to others.

In Justice K. S. Puttaswamy (Retd) v. Union of India, Writ Petition Civil No. 494 of 2012, 26 September,
2018 case, the Right to Privacy was declared a fundamental right by the Supreme Court. The Court observed
the Right to Privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21
and as a part of the freedoms guaranteed by Part III of the Constitution.

Key conclusions from the Judgment:

 1. Life and personal liberty are inalienable rights. These are rights which are inseparable from a
dignified human existence. The dignity of the individual, equality between human beings and the
quest for liberty are the foundational pillars of the Indian Constitution;
2. Judicial recognition of the existence of a constitutional right of privacy is not an exercise in the nature
of amending the Constitution nor is the Court embarking on a constitutional function of that nature
which is entrusted to Parliament;
3. Privacy includes at its core the preservation of personal intimacies, the sanctity of family life,
marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone.
4. Personal choices governing a way of life are intrinsic to privacy.
5. Privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches
to the person since it is an essential facet of the dignity of the human being;
6. Technological change has given rise to concerns which were not present seven decades ago and the
rapid growth of technology may render obsolescent many notions of the present. Hence the
interpretation of the Constitution must be resilient and flexible to allow future generations to adapt its
content bearing in mind its basic or essential features;
7. Like other rights which form part of the fundamental freedoms protected by Part III, including the
right to life and personal liberty under Article 21, privacy is not an absolute right. A law which
encroaches upon privacy will have to withstand the touchstone of permissible restrictions on
fundamental rights.
8. Privacy has both positive and negative content. The negative content restrains the state from
committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an
obligation on the state to take all necessary measures to protect the privacy of the individual.
9. The right of privacy is a fundamental right. It is a right which protects the inner sphere of the
individual from interference from both State, and non-State actors and allows the individuals to make
autonomous life choices.
10. The privacy of the home must protect the family, marriage, procreation and sexual orientation which
are all important aspects of dignity.
11. In a country like ours which prides itself on its diversity, privacy is one of the most important rights
to be protected both against State and non-State actors and be recognized as a fundamental right.
12. The right of privacy cannot be denied, even if there is a miniscule fraction of the population which is
affected. The majoritarian concept does not apply to Constitutional rights…
13. Let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in part-III
of the Constitution of India, but subject to the restrictions 10 specified, relatable to that part. This is
the call of today. The old order changeth yielding place to new.

“Right against Sexual Harassment at Workplace” – The scope and substance of India’s constitutionally
guaranteed fundamental rights are broad enough to cover all aspects of gender equality, including the issue
of sexual harassment or abuse. The Supreme Court has ruled that sexual harassment of women is a violation
of one of the most prized fundamental rights, the Right to Life, as enshrined in Art. 21.

Right to Dignity:

The right to live with human dignity is one of the fundamental rights guaranteed under Article 21 in the
Indian Constitution. It means that every person has the inalienable right to live with dignified life without
discrimination. They are entitled to claim equal respect from the state as well as from other persons. Under
Article 21 of the Constitution is a privilege of an individual to be liberated from any limitation or
infringement where legitimately or in a roundabout way forced on a person.

In Maneka Gandhi v. Union of India, AIR 1978 SC 597 case, the Supreme Court broadened the scope of
the word individual freedom, it covers an assortment of a lot more crucial rights i.e., right to a speedy trial,
right to bail, right against torment, option to live with human pride, and so forth., and has made it mandatory
on some portion of the state to satisfy on many areas the concept of life and individual freedom. This case
gave another measurement to Article 21 and the Apex Court held that the option to live isn’t only bound to
physical existence but to lead a life with structured human dignity.

Right to Clean Environment:

The human right to a healthy environment brings together the environmental dimensions of civil, cultural,
economic, political, and social rights, and protects the core elements of the natural environment that enable a
life of dignity. The right to life (Article 21) has been used in a diversified manner in India. It includes, inter
alia, the right to survive as a species, quality of life, the right to live with dignity and the right to livelihood.

In Municipal Council, Ratlam v. Shri Vardhichand, AIR 1980 SC 1622 case, the Supreme Court stated
hat Right to life includes Right to a wholesome environment and the residents have the right to exercise it
against State. It acknowledged the effects on poor of deteriorating environment and compelled the
municipality to build proper sanitation and drainage.

In AP Control Pollution Board vs. Prof M V Nayadu, 27 January, 1999 case, the Supreme Court held
that it is better to take precautions to protect the environment from harm than to wait for the issue to
materialize. It is important to take steps even if there is no scientific evidence of the potential harm to the
environment.

Right to Livelihood /Shelter/Food/Health:

Right to Livelihood:

Livelihood can include basic shelter, food, education, occupation and medical care.

In Olga Tellis v. Bombay Municipal Corporation, popularly known as the “Pavement Dwellers Case,
AIR 1986 SC 180, where a five-judge bench of the Court now implied that ‘right to livelihood’ is borne out
of the ‘right to life’, as no person can live without the means of living, that is, the means of Livelihood.

Right to Shelter:

Article 14, 21 and 15 of Indian constitution gives guarantee of substantive equality, obliging the state to take
affirmative action in facilitating opportunities for the disadvantages and prohibiting discrimination on the
ground of religion, race, caste, sex or place of birth read together this provision not only prohibit the
exclusion of those marginalized from basic housing needs and land rights, but also implicate state action in
redressing these deprivations.

In U.P. Avas Vikas Parishad v. Friends Coop. Housing Society Limited, AIR 1996 SC 114 case, the
right to shelter has been held to be a fundamental right which springs from the right to residence secured in
Article 19(1)(e) and the right to life guaranteed by Article 21.

Right to Food:

Article 39(a) of the Constitution, enunciated as one of the Directive Principles, fundamental in the
governance of the country, requires the State to direct its policies towards securing that all its citizens have
the right to an adequate means of livelihood, while Article 47 spells out the duty of the State to raise the
level of nutrition and standard of living of its people as a primary responsibility.

In Kishen Pattnayak v. State of Orissa, 9 May, 2003 case, the petitioner was a resident of a small village
in the Kalahandi district of Odisha wrote a letter to the Supreme Court of India addressing the issue of
extreme hunger and starvation in Kalahandi. People started selling their children in order to be able to buy
food. This was the first case to be filed on the right against hunger and starvation. The letter requested the
apex court to direct the state government to take immediate and adequate steps and measures to improve this
extreme condition and gave guideline to the State.

Right to Health:

India is a signatory of the Article 25 of the Universal Declaration of Human Rights (1948) by the United
Nations that grants the right to a standard of living adequate for the health and well-being to humans
including food, clothing, housing and medical care and necessary social services. Article 21 of the
Constitution of India guarantees a fundamental right to life & personal liberty. The right to health is inherent
to a life with dignity.

In Paschim Banga Khet Mazdoor Samity v. State of West Bengal, 1996 SOL Case No. 169 case the
Supreme Court held that in a welfare state, the primary duty of the government is to secure the welfare of the
people and moreover it is the obligation of the government to provide adequate medical facilities for its
people.

In Parmanand Katara Vs Union of India, AIR 1989 SC 2039 case, the Supreme Court had ruled that
every doctor whether at a government hospital or otherwise has the professional obligation to extend his
services with due expertise for protecting life.

Right to Legal Aid:

Legal aid is a constitutional right supported by Articles 21 and 39-A of the Constitution of India. This aid
will form a part of fair, just and reasonable procedure under Article 21 of the Indian Constitution.

In Hussainara Khatoon vs. State of Bihar, AIR 1979 SC 1369 case, it was established that if an accused
person cannot afford legal services, they have the right to free legal aid provided by the state. This ensures
that everyone can access legal representation regardless of their financial situation.

Right Against Torture:

In Sheela Barse v. Union of India, AIR 1986 SC 1773 case, the Supreme Court ruled that unless there is an
interim order issued by the superior Court or a deliberate delay on the part of the accused, it is obvious that
an accused’s fundamental Right to Speedy Trial would be violated if he is not tried quickly and his case is
left unsettled before the Magistrate or the Sessions Court for an excessive amount of time. Such a lag would
have the potential to have the prosecution invalidated as a result. According to the Apex Courts’ judicial
pronouncements, a speedy trial is an inherent right under the constitution’s Article 21. As a result, no one
may be deprived of their life or freedom without following the proper legal procedures, which must be
“fair,” “reasonable,” and “just.”

Right of prisoners

In Sunil Batra v. Delhi Administration case, a prisoner on the death row was held in the solitary
confinement since the date of conviction by the jail authorities. A writ petition was filed against this order in
Supreme Court. SC held that solitary confinement itself is a substantive punishment under the Indian Penal
Code, 1860 and conviction of a person for a crime does not reduce him to non-person vulnerable to a major
punishment imposed by jail authorities without observance of due procedural safeguards, thus violative of
Article 21.

Right to Marriage:

Unlike Article 16 of Universal Declaration of Human Rights, the right to marry is not expressly recognized
either as a fundamental or constitutional right under the Indian Constitution. Though marriage is regulated
through various statutory enactments, its recognition as a fundamental right has only developed through
judicial decisions of India’s Supreme Court.

In Lata Singh v. State of Uttar Pradesh, 7 July, 2006 case the Supreme Court ruled that because the
petitioner was a major, she had the right to marry whoever she wanted and that there was no statute
prohibiting an inter-caste marriage.

Right to Travel Abroad:

In Satish Chandra Verma v. Union of India, 9 April, 2019 case, where appellant IPS Officer Satish
Chandra Verma was denied permission to travel abroad on account of a pending departmental inquiry
against him. The Supreme Court held that right to travel abroad is an important basic human right.

Right to have Protection from Sexual Harassment at Workplace:

Sexual Harassment means an uninvited/unwelcome sexual favour or sexual gestures from one gender
towards the other gender. Sexual harassment hampers the right to life and the right to live a dignified life.
The basic requirement was that there should be the availability of safe working environment at workplace.

In Vishaka v. state of Rajasthan case, the Supreme Court ordered that the fundamental rights under Article
14, 19 and 21 of Constitution of India provides that, every profession, trade or occupation should provide
safe working environment to the employees. It hampered the right to life and the right to live a dignified life.
In this case, SC defined sexual harassment and established the guidelines that has to be followed by all
workplaces also known as ‘Vishakha guidelines.

Right to Sleep:

The Supreme Court broadened the ambit of right of life to bring in a citizen’s right to sleep peacefully under
it. A citizen has a right to sound sleep because it is fundamental to life, the Supreme Court said while ruling
that the police action on a sleeping crowd at Baba Ramdev’s rally at Ram Lila Maidan amounted to violation
of their crucial right.

Right to Die:

In Aruna Ramchandra Shanbaug v. Union of India, 7 March, 2011 case, the Supreme Court held that
passive euthanasia can be allowed under exceptional circumstances under the strict monitoring of the Court.

In Common Cause (A Regd. Society) v. Union of India, 9 March, 2018 case, a five-judge Constitution
Bench, judgment delivered by Chief Justice Deepak Mishra, gave legal sanction to passive euthanasia,
permitting ‘living will’ by patients on withdrawing medical support if they slip into irreversible state of
coma. The SC held that the right to die with dignity is a fundamental right.

Right to Social Security and Protection of Family:

In Calcutta Electricity Supply Corporation (India) Ltd. v. Subhash Chandra Bose, AIR 1992 SC
573 case, the Supreme Court found that under Art. 21, the right to economic and social fairness is a basic
right. The right to life and dignity of a human, as well as position without means, were superficial rights,
according to the learned jurist. As a result, socio-economic rights were fundamental goals for the meaning of
the right to life and the right to social security and protection of family were integral part of Article 21.

Conclusion:
The Constitution of India is a living document that is meant to evolve with changing times, and the judiciary
has a duty to ensure that it remains relevant to the needs of the society. However, the judiciary must balance
the need for consistency and predictability with the need for innovation and progress, and must be mindful
of the potential pitfalls of relying too heavily on precedents.

Judicial creativity is an essential component of constitutional interpretation in India. The judiciary has used
various means, such as textual and purposive interpretation, and the use of precedents, to develop new
principles of law and protect the rights of citizens. The doctrine of basic structure and the expansion of the
scope of Article 21 are important instances of judicial creativity in constitutional interpretation. While it has
been criticized as a form of judicial activism, it is important to recognize that judicial creativity is necessary
for the development of the law.

As long as judicial creativity is exercised within the bounds of the Constitution and the principles of natural
justice, it is a legitimate and necessary tool for the interpretation of the law. In the case of Part III provisions
of the Constitution of India, judicial creativity has been used to protect and expand the fundamental rights of
the citizens, which is essential for the development of a democratic and equitable society.