Judicial Creativity Through Denning’s Lens


It is an indisputable truth that if legislation could be drafted with holy precision and perfect clarity a judge would be saved from the ordeal of giving force and life to mere sets of words through judicial creativity. A law ought to be time and subject matter tested as it has to take into account all circumstances which are presented before the courts to be adjudged and for justice to be delivered. But often, in emergencies, particular provisions of law fail to cater to the situation or an evident defeat appears on the application. It is then when a judge is expected to not take a back seat and wait for the legislators to make requisite amends; rather a duty is cast upon the judge to come at the forefront and figure out the intention of the Parliament to serve the purpose not only from the language of the statutes but also from the
pertaining to social aims.

The contribution of one such judge, popularly known as “Lord Denning” cannot be forgotten. After receiving his degree from Oxford University, Lord Alfred Thompson Denning was admitted to the bar and later held the position of Master of Rolls. He believed in delivering complete and full justice. He supported the preservation and maintenance of the rule of law. As a result, he read statutory provisions in the context of justice as the ultimate objective. Despite limitations to the judge's powers, he asserted that it was possible to uphold justice by interpreting the law as per the circumstances of the case at hand.

Observation of Denning L.J in the case of Seaford Court Estates Ltd. v. Asher highlights the value he holds towards upholding judicial creativity that suggests that law does not operate in isolation and that it fulfills a social mission and the judges must be capable of adjusting or creating a law to meet the needs of a changing society in addition to interpreting statutes which still holds relevant in today’s time and is our matter of deliberation for this piece.

Thus, the present critical appraisal tries to study the concept of judicial creativity from the lens of Denning by prima facie defining it. The author further delves into the significance of the values attached to the principle, the key dimensions, the tools and techniques used to achieve it, and finally the challenges. The analysis ends with a conclusion suggesting the way forward.


In any state, it is the Parliament that can pass laws on any subject matter. No other institution has similar legislative authority to warrant binding rules for the community as a whole. But over the years, the legislative and judicial needs of a modern state have expanded so vividly that it has become almost impossible to continue the practice. In the present era, the sheer bulk of the workload of the legislation is so immense that if the legislative function is performed by Parliament alone the lawmaking machinery would clog up and granulate to a standstill.

This problem was first appreciated when the dictatorial and hegemonizing character of the state began to shift towards social welfare, reform, and reorganization. In the efforts to bring out far-reaching and consequential social changes by way of legislation and justice delivery, ample problems cropped up. The potential solution was to make bills lengthier and more complex as an attempt to communicate ideas to the judiciary that had not before been stated in any statutory form. 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. Moreover, even when these laws witnessed the dawn, a new set of legal challenges would have popped up which demanded equal attention from the Parliament. Assistance was sought necessary for the task yet no absolute free rein to frame whimsical laws was to be meted out to other authorities. Thus, a balance of contrary facets became necessary to fulfill the principles enshrined in the Constitution and preserve sovereignty through judicial creativity.


Judicial creativity is the fluid aspect of law. As discussed above, the letter of law falls short of serving all kinds of factual matrixes that arise before it and therefore, this is when the spirit of the law is to be interpreted and applied. Thus, 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 Hon'ble Supreme Court of India has held in several landmark judgments that judicial creativity is the active process of implementing the rule of law, which is necessary for the survival of a functioning democracy, and that the judiciary’s active role ensures justice to individuals, groups of individuals, and society as a whole (1).


Denning’s statement has three fundamental dimensions attached to it. These are the three probable reasons which justify why judges are called upon to create law, over and above the letters of codified law.

1. Interpretation of Legislative Provisions: Letter of Law & Spirit of Law

Legislators can’t consider every possible scenario and enact legislation for each one. Provisions of law prima facie look simple but they can be difficult to interpret as they have a deeper meaning embedded in it which has to be used to resolve factual matrixes falling under its domain. This spirit of law might not come to the surface very readily, it might be latent, behind the curtain, and thus, the judges ought to use the guiding rationale and travel in the mind and intent of those who drafted it before delivering a judgment.

Additionally, the law is not represented in binary or pictorial form. It is done in language and words are capable of holding multiple meanings; the mere use of punctuation marks brings drastic changes. For example, how “life” is interpreted in Article 21 (2) is way too different from how it is seen in the Transplantation of Human Organs and Tissues Act, of 1994. Thus, language per se doesn’t hold crystal clear meaning and as an instrument, it is plagued with ambiguity. Therefore, there is a high chance that there might be a clash in the letter of law and spirit of the law which needs to be determined by the court.

2. Judicial Reasoning in Course of Interpretation

The judges aren’t responsible to merely adjudge the matter and determine the applicability of the rule, rather they are obligated to substantiate their answer with detailed and elaborate reasoning as to why they have come to that particular end. They have to forward the justification by adding literature to facilitate similar future cases and provide appropriate precedents. And thus, this creates the need for judicial interpretation. Example: Theory developed by the court (Vishakha guidelines (3) ) or any document.

3. Felt the Necessities of time: Adaptability of law to meet the needs of society and ultimately deliver justice

The difficulty in interpretation of statutes becomes further complicated in terms of time as the context in which the law is framed might change with the passage of time or the perspective with which it was made may fall out of relevance. A drafter cannot be expected to mediate into time and foresee everything. The influence of time on legislation is paramount which is reflected by the fact that had the Law of Contract been drafted today, it would have used the word bike in place of a horse.

Every legal system is subject to change, and it is leaning towards more and more sophistication and trying to solve more complex problems which necessitates the need for judicial creativity. For instance, consumer protection has deep roots in Indian civilization; it has been mentioned in Arthasastra, and it was rigorously practiced by the Sultans. The Britishers used the Essential Commodities Act of 1955, the Prevention of Food Adulteration Act of 1954, and the Standard of Weights and Measures Act of 1976 to prevent gross violation of consumer rights, and in independent India, the Consumer Protection Act was introduced in 1986. But though consumer rights have existed since eternity, the associated violations and enforcements have shaped and re-shaped several times. The ambit of these laws has now evolved as the older legislations couldn’t have predicted the age and expansion of the virtual market and e-commerce. This is the reason why digitization has led to the Consumer Protection Act of 2019 to broaden the scope of consumer rights to include e-commerce, direct selling, teleshopping, and other multi-level marketing.

Law is a social science and society is dynamic. Therefore, the law has to be adaptable and cater to the needs of society according to the existing values of the time. This is the reason why the Hon’ble Supreme Court in India has time and again reiterated that the Constitution isn’t a pedantic text, it is a living & happening document (4)

Denning, despite recognizing the significance of judicial creativity, serves a note of caution. He holds that a judge must not alter the material of which it is woven but only iron out creases. It means that there should be a self-imposed restriction on the judges to ensure interpretation is within the permissible context and no conflict with the very intent of the law happens. Judges aren’t allowed to go beyond what the letter of law prescribes. It is true that the judges do and must legislate but only when there is a gap. They cannot altogether create a new law at their pleasure according to their ideals. Judges are bound by settled principles, and, thus, the scope of creativity is limited, and only constitutional objective and dominant values must be discovered and enforced. Judicial hyper-activism is discouraged and judicial restraint is appreciated.

1. Judicial Activism: Over time, judges have proven that they are not ivory towers but rather have done their best to reach out to the public. They have immensely contributed to the organic development of the Constitution by not only following the statute’s interpretation but also procedural interpretation. The evolution of PIL (5) is one of the most exemplary examples in terms of modifying the traditional requirement of locus standi, liberalization of procedure to file writ petitions, expansion of FR, overcoming evidentiary problems, and evolving innovative remedies.

2. Judicial Review: Judicial review is the power granted by the constitution to the court to scrutinize (6)legislative enactments and executive orders of all levels of government, whether state or federal. The origins of this concept can be traced back to the United States of America case of Marbury vs Madison. The most popular example is the quashing of 39th Amendment Clause 4 because it prohibited challenges to the Speaker and Prime Minister’s election and was deemed unlawful (7).

Women’s violence has long been acknowledged as a reality. For a number of reasons women from practically every level—from upper class to lower class, from educated to uneducated—are victims of domestic abuse. Numerous safeguards are offered by the Indian Constitution to protect women from discrimination, uphold their dignity, and increase their sense of authority. These include offering safety to women through the enactment of the Domestic Violence Act, 2005. The Act provides protection to women from men with whom they share a household. In our country, live-in relationships are a relatively recent social phenomenon but still due to changing societal norms, the Indian Supreme Court recognised a live-in relationship by interpreting Section 2 of the Act. Section 2(f) of the Act uses the phrase “lived together in a shared house ” to describe domestic relationships. Thus, the protection against domestic violence laws today is also extended to women living in live-in relationships (8) as society today accepts the right to choose a partner (9). The Parliament too considers ‘live in relationship’ as ‘ a relationship in the nature of marriage’  after the judgments. Live-in relationships are still stigmatised by society as wicked, yet they are not illegal as per law and thus, the rights of women are defended.
Written law is hardly self-contained and it is difficult to legislate with divine precision and arithmetical accuracy as there is always a grey area no matter what. It is beyond human capability or powers to anticipate or extend his vision to future circumstances or predict or forecast what kind of facts the application of the law would be subject to. Human errors are bound to happen no matter howsoever good they might be because they cannot cater to all upcoming problems. However, though this serves as a good enough reason to support judicial creativity, it is essential to understand that it can be applied only to an extent because a judgment once delivered cannot be revoked. Moreover, separation of power shouldn’t be encroached upon and judicial overreach must be avoided.


1 S.P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits, Oxford University Press, 2002 edition.
2 Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others, AIR 1981 SC 746 (India).
3 Vishaka & Ors. v State of Rajasthan (1997) 6 SCC 241.
4 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
5 Hussainara Khatoon & Ors vs Home Secretary, State of Bihar, 1979 AIR 1369.
6 Kesava Nanda Bharti Case Vs State of Kerala, AIR 1973 SC 1461.
7 Indira Nehru Gandhi V. Raj Narain AIR 1975 SC 865.
8 Nandakumar v. State of Kerala, (2018) 746 SCC 3.
9 Salamat Ansari and others versus the State of UP and others Crl. Misc. WP No. 11367 of 2020.
Shambhavi Sirothia
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