A PIL for every ill?

What is judicial activism? It denotes a judiciary in which judges discharge their functions in a vigorous and decisive manner to achieve an end. What is that end? Dispensing justice with a view to righting wrongs, enlarging and protecting the human rights of our people and fashioning effective remedies.

Judicial activism has been displayed in private law also. A notable instance is the decision of the House of Lords in Donoghue v. Stevenson in 1932 in which Lord Atkin evolved the ‘neighbour principle’ and imposed upon a manufacturer of an article a duty of care to the consumer of that article. The House of Lords in its majority decision in Home Office v. Dorset Yacht Co. further developed the common law of negligence and evolved a presumptive duty of care by an activist judicial approach.

Another instance of judicial activism is the rule about giving reasons for a decision even when the statute does not expressly so provide. Justice Subba Rao as a judge of the Madras High Court enunciated this rule way back in 1952 and the same has subsequently been approved by our Supreme Court. The same principle was enunciated in 1992 in England and by the Privy Council in 1999. This rule promotes good governance and fair administration by ensuring transparency and openness in decision-making. This salutary development was thanks to ‘judicial activism’ displayed by ‘activist judges’.

A classic instance of judicial activism is the judgment of the US Supreme Court in Griswold v. Connecticut, popularly known as the contraceptive case. A law in Connecticut made the use of contraceptives a criminal offence and empowered the police to barge into the sacred precincts of marital bedrooms and search for telltale signs of used condoms. The law was struck down on the ground that it violated the right of privacy. Privacy is not expressly mentioned in the US Bill of Rights. However, the US Supreme Court deduced it on the reasoning that various guarantees in the Bill of Rights create zones of privacy. The minority dissented on the ground that it was not for the court to create a right of privacy. Our Supreme Court in R. Rajagopal has adopted the majority view. Strangely, the recent judgment in Chander Hass of Justices A.K. Mathur and Katju, places reliance on the minority judgment and is regressive.

The Supreme Court of the Republic of Ireland and the Supreme Court of Canada have also adopted a similar judicial technique of spelling out fundamental rights not expressly mentioned in the Constitution. These examples are given to dispel the impression that judicial activism is an infectious disease which has recently afflicted our judiciary.

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