CONSTITUTIONAL SILENCE AND JUDICIAL CREATIVITY: HAR MONISING JUDICIAL INTERPRETATION WITH CONSTITUTIONAL PRINCIPLES IN INDIA

A recurring problem in Indian constitutional adjudication is constitutional silence. There are limits to what can be written into a written constitution: a rule may not be expressed in the Constitution but may nevertheless be determined by the courts, while the consequences of gov-ernmental inactivity may alter the distribution of constitutional power. This Article looks at the five ways in which the Supreme Court of India has dealt with constitutional silence: structural implication, rights-protective gap-filling, institutional design, statutory interpretation and re-medial innovation. It examines the landmark decisions and the Supreme Court jurisprudence of 2025 and 2026 on the topics of gubernatorial assent, judicial service, judicial removal pro-cedure, end-of-life decision-making and legislative limits using a doctrinal and analytical method. The analysis reveals that there is more than a single form of constitutional silence—deliberate openness, textual incompleteness, legislative failure and failure of implementation require different approaches by courts. Judge-made interpretations are best justified when they have roots in the text or structure of the constitution, when they are essential to avoid the frus-tration of another constitutional safeguard, when they are proportionate in remedial form or structure, when they are temporary in nature if legislation is available to fill the gap, and when they are respectful of functions delegated to other constitutional actors. The Article suggests that there should be a six-part Constitutional Harmony Test which includes silence identifica-tion, constitutional anchoring, necessity, remedial proportionality, temporal restraint and non-substitution. The cases cited recently show a growing gap between 'compelling' action, and substituting the result by judicial act, which provides a principled justification for the balance between effective judicial review, separation of powers and democratic responsibility.