Judicial Activism as Judicial Creativity or Liberal Interpretation

Two sides of the same coin - The modern judge of the common law, in India, is controlled in any temptations to activism. The judge's boldest ambitions are held in check by opportunity, need, inclination and the judicial method. The community expects honesty, integrity and learning, of Judges. Increasingly, it also expects efficiency, timeliness and attention to case management. Prejudice and partiality have no place in the judicial function. The people have a right to expect the judge to be calm, objective and neutral.
Society is slowly and somewhat reluctantly coming to realize that the "fairytale" of the declaratory theory of the judicial function is false and always was. But there is no clear divide which marks off the limits of judicial creativity and activism and liberalism. Our communities have come to understand that some measure of "judicial activism" is not only permissible but is traditional in our system of law. Moreover, it is beneficial to the noble cause of justice under the law. The challenge for modern judges is to find where the line lies in a particular case, at a particular time and place. Each judge knows that limits exist.
A weak society leaves all or most of its hardest decisions to the courts. The burdens which society casts on its judges are greater today than ever before. The judges are the servants of the law and of the societies. They must continue to find the sources of our discipline in legal authority. But when new problems arise, when the common law has no exactly analogous decision or where (as it so often the case) the Constitution or the legislation is ambiguous, they must also look to legal principle and legal policy.
Judges do not usually have the privilege to decline the obligation of decision. Sometimes they will err, for that is inherent in the human condition. But if they search for the solution to the particular case with the illumination of legal authority, legal principle and legal policy and are sometimes called "judicial activists", one must accept that appellation with fortitude. Our activism has limits as every one of us knows. But in a real sense the common law itself is the product of "judicial activists". The most they can hope is that they are successors, worthy in their time, to the great spirits who have preceded them. It is not always possible to declare law in real life situations. Liberal Interpretation penetrate, slowly but steadily!

Therefore, there is a need for a midway to define the judge’s role. Judges may declare law by making it while discovering it within the domain of legal world. However, “Judges ought to remember that their office is ... to interpret law, and not to make law." "To know how ordinary people ... think and live.... You must have mixed with all kinds of people and got to know them.... If we are to remain a democratic people those who try to be guided by public opinion must go to the grass roots." To conclude I would like to conclude by stating,

Justice Stephen Breyer, was reported as saying that a "bright line" between permissible and impermissible judicial creativity did not exist not did liberal thinking. – Two sides of the same coin!!