THE LIVING GAPS: THE JURISPRUDENTIAL NECESSITY OF JUDICIAL DISCRETION IN THE FACE OF CONSTITUTIONAL SILENCE

Written constitutions are partial in nature. None of the constitutional documents, however elaborated, can predict all the social, political, and technological possibilities that can emerge with time. Such unavoidable gaps, termed in this paper as living gaps, result in constitutional silence, where clear instruction is lacking in the text. The paper discusses the jurisprudential imperative of judicial discretion in dealing with such silences, the main view being the Indian constitutional law and a comparative constitutional view. The paper presents its case by arguing that judicial discretion is not some constitutional aberration but a functional and normative requirement to maintain constitutional values like dignity, liberty, equality and the rule of law. The interpretive broadening of Article 21 by the Indian Supreme Court to cover privacy, environmental conservation, sexual autonomy rights is an example of how the courts have articulated the constitutional gaps to reflect current social realities. Meanwhile, the recent interventions on executive inaction, especially the use of gubernatorial powers, can be used to show that judicial discretion is used to avoid constitutional stalemate due to textual vacuity. Placing Indian constitutional practice in the context of a larger comparative context including the jurisprudence of the United States and other constitutional democracies, this paper demonstrates the global inexplicability of judicial gap-filling. Although it is important to recognize the fears of judicial activism and democratic constitutionalism, the paper argues that restrained judicial discretion in terms of constitutional morality and structural boundaries is the only way to allow the Constitution to remain a vital and a living law. In conclusion, the research paper concludes that the constitutional silence is not a failure of the constitution but rather an indication of the need to have principled judicial participations in order to sustain constituti...