[This article was authored by Isha Rai & Janhvi Tripathi, students at Faculty of Law, Banaras Hindu University. It discusses the concept of ‘demosprudence’ or democratically-oriented judicial creativity.]
Demosprudence, which is a term of fairly recent origin, can be summed up as democratically-oriented judicial creativity. It uses the prudence of the demos or the people to ensure that the fundamental wrongs which they were hitherto subject to are transformed into fundamental rights. In a vibrant democracy like that of India, the practice of demosprudence embodies the transformative spirit of the Indian Constitution and translates the hopes and aspirations of people into remedies for their maladies. In the recent times, there have been increasing instances of the Apex Court invoking its power to do “complete justice.” This has, in turn, paved the way for the Apex Court to ensure that the interests of the ‘people’, who are at the heart of the Constitution of India, are protected. As a result, the debate centred around demosprudence and its relationship with the Indian Constitution has intensified.
This article seeks to analyse India’s tryst with demosprudence in a comprehensive manner. The central theme of the article is to undertake an analysis of the contribution of the application of demosprudence by the Apex Court in shaping the ever-ephemeral contours of the Indian Constitution. For a well-rounded perspective, the problematic areas in this voyage of transformation have also been identified in this article and an attempt has been made to provide suggestions for realization of the demos-oriented prudence of the Apex Court in a better manner.