A PIL for every ill?

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.

Our Supreme Court from its inception has deduced a few fundamental rights although they are not expressly mentioned. For example, freedom of the press, the right to privacy, the right to travel abroad, the right to education, freedom from cruel and inhuman punishment or treatment. Can anyone object to this activist judicial approach which has enlarged the fundamental rights of our people?

In its judgment in Keshavananda Bharati, the Supreme Court by majority ruled that the power of amending the Constitution under Article 368 which on a literal reading is unlimited, is yet subject to an implied limitation namely that the power of amendment cannot be exercised so as to damage the basic structure of the Constitution. The Supreme Court exercised supra legislative functions in Keshavananda Bharati and its decision was the zenith of judicial activism. But it protected the fundamental rights of our people against wanton legislative onslaughts.

In Vishaka the Supreme Court was confronted with the persistent problem of sexual harassment at the workplace. The Court issued several directions and virtually enacted a law of sexual harassment. The Court emphasised that these directions were pro temp until suitable legislation was enacted. It is shameful that as yet no legislation on sexual harassment has been enacted by Parliament which demonstrates that it is vain to invoke Parliament or the legislatures. The Vishaka judgment, no doubt laudable in intent and excellent in content, does tantamount to judicial legislation. It also breached the principle of separation of powers. But remember that every country has to work out its constitutional salvation according to its specific needs and peculiar problems. It is the peoples welfare which is decisive and not Montesquieu’s 18th century treatise on separation of powers.

There have been occasional judicial aberrations. For example, the directions given to the Speaker of the Jharkhand Assembly in March 2005 directing the Speaker how to proceed and to provide for a video recording of the proceedings. Again some orders and directions passed in public interest litigation (PIL) are beyond the judicial sphere. For example, directing the administration not merely to implement existing laws but further to construct roads, to erect buildings, and issuing ad-hoc directions for huge monetary payments for victims of riots or natural calamities. Such orders are in the realm of the legislature and the executive and have serious fiscal and budgetary implications. Such indefensible orders are the result of the mistaken belief in some judges that the judiciary can solve all problems that afflict our nation. It is forgotten that the PIL is not a pill for every ill. Every matter of public interest cannot be the basis of a PIL.

The crux of the matter is that justice is not dispensed by slot machines but by judges, who after all are human beings, not celestial bodies endowed with the gift of infallibility. Therefore occasional judicial idiosyncrasies and aberrations are unavoidable. But that is no reason to indiscriminately decry judicial activism. Judicial activism is not an attack on Indian democracy nor an encroachment on Parliament’s powers as Speaker Somnath Chatterjee would have us believe.

There is no universal prototype of judicial activism. It largely depends on the prevailing situation in a particular country, its laws or absence of laws and the quality of public administration. The value of judicial activism will also depend upon the approach of the judiciary. Is it mainly concerned with laws of property and contracts? Or is it taking human suffering seriously and responding to it with sensitivity? Judicial activism will be a blessing when judges exercise judicial power actively and vigorously without straying into forbidden fields. Thereby judicial activism will enable ‘We the People of India’ to live a life of dignity and fully realise their human personality.

The writer is a former attorney general for India