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An Eponymous Corollary: Judicial Activism or Judicial Overreach?

Time and again, we have found ourselves debating over the vague lines that exist between judicial activism and overreach. Interestingly, in each instance, we have witnessed public opinion getting more and more polarized, but with a broad-based definition, judicial activism is not concretely defined, often being subjected to differing interpretations by different judges, making the matter highly disputed, especially on ideological grounds.

Revisiting the Vishaka and Others v/s State of Rajasthan case

In light of being the landmark judgement and the breakthrough in the sphere of protection of women’s rights in India, the Vishaka and others vs. The State of Rajasthan case is an internationally renowned and celebrated example of judicial activism. The bigger jurisprudential question this article seeks to answer is, when is it just for the judiciary to cross its ambit and overstep into the boundaries of legislation? And when is the anticipated outcome of the judgement nefarious the ideals of separation of power?

A case originating from activism met with brutal gang rape. Further accompanied by woeful policing and a regrettable acquittal of the accused precedes the birth of the Sexual Harassment at the Workplace Guidelines we currently, at least try to abide by. This incident united agitated women activists across the nation under the umbrella term ‘Vishaka’, after a number of legislative attempts failed to file a writ petition that would sustain the right to a safe workspace under Articles 14, 15, 19, 21, 42, and 51A of the Constitution.

The case not only shed light on the gaping absence of a domestic law tackling toxic and predatory workplace behaviour but also showcased that such acts inflicted upon women pose grave threats to their incentive to exist and work in a professional environment. This unruly behaviour is more than just a fly in the ointment to a worker, and such treatment might even mitigate in graver instances of harm.

Until the genesis of the Sexual Harassment at the Workplace law, Sections 354 and 354A of the Indian Penal Code itemized, “Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.”

Surprisingly they were used to prosecute events of sexual advancement at workplaces. The major predicament of this law was the blanket coverage of sexual assault and the blindness towards the intersectionality between such acts and the autonomy of handling such cases at a workplace.

The Supreme Court found it imperative to make the employers, both public and private entities, responsible and obligated to take measures to ensure the safety of their female employees. These regulations were added to enforce a workplace with greater levels of accountability in the hands of the employers and to induce sensitivity towards such issues among the workforce, as a trickle-down effect.

In the course of this judgement, the Supreme Court took the liberty of citing treaties and conventions that India is a signatory of. It referred to the “Beijing Statement of Principles on the independence of Judiciary in the LAWASIA region” which demands the judiciary to function as a guardian of citizens’ rights and independently take the liberty to make laws in the absence of any legislative framework.

The Court also took reference from the provisions of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW): “Article 11 (1) (a) & (f)- which states that the State takes all appropriate measures to eliminate discrimination against women in the field of employment. Article 24- which states that the State shall undertake to adopt all necessary measures at the national level aimed at achieving the full realization.”

A Mercurial Nature or Anticipated?

In the course of judicial activism, the most imperative notion to be considered is that a judgement addressing social problems must be perceived by the anticipated outcomes it aims to accomplish and the manner it espouses to partake. And that outcome is mechanised to serve as a saviour to the stakeholders affected by that social problem. In fact, how well of a precedent a judgment might act is highly uncertain and is subject to one or a few judges’ interpretations of the situation.

One of the major defining aspects defending the Judicial interventions is that, at moments when the legislature and the executive fail to serve their people, and the lingering matter at hand is a grave threat to the masses, the judiciary needs to take charge.

Even though from a utilitarian aspect, the reasoning seems sound at the face of it, it overlooks an integral aspect: Is this democratic? No! Something the proponents might also believe. But taking the proposition of such activism entails, is a situation in the context of an emergency where they imply that democratic entities are rendered useless. Emphasising that only crisis management can be done by the judiciary. Even in such a situation, the lack of deliberation and expertise has a probability of being a major setback concerning judicial legislation. This might even endure the possibility of being counter-productive.

The Creed of Onus

In a democratic set up the biggest power a citizen holds is the power of voting. This acts as a determining incentive for the governments to either work or even pretend that they are doing something for their beloved vote masses. Because if they fail to do so, they are going to end up losing their power. This sense of responsibility and the propensity of changing the concerned authorities is a contrasting feature for elected entities.

Even if a judgement pronounced by a judge is met with major backlash by the public, they will not yield much power at hand to do something about it. In cases where the anticipated outcome of a judgement is negative, all such stark metrics come into play.

In the case of the Vishaka Judgement, the court used its power of Article 144 which reads, “Law declared by Supreme Court to be binding on all courts The law declared by the Supreme Court shall be binding on all courts within the territory of India.” Pronouncing that the said guidelines formulated by the court will be treated as precedent by all other courts until official legislation is formulated.

Acceptable Activism

Why then is the Vishaka judgement justified on the grounds of acceptable activism at the hands of the judiciary? Why isn't there any backlash of causality? Well, Vishaka came at a time and at the place where the gravity of the matter demanded immediate care, and there was no legislation regulating the matter at hand. In a case where an individual’s personal life and liberty are at stake, and the workplace has been rendered an environment inhabitable, the need for a temporary law is imperative.

The Judiciary did the exact thing by using its power of Article 144, imposing it until the parliament could ideate, deliberate, and take expert opinions on the concerned matter. Subsequently, setting at hand a set of general guidelines to follow. These would take care of the pre-existing perpetration of such crimes, as the repercussions of harms existing in a status quo where such a domestic law doesn’t exist are extremely menacing.

The facts at hand are that it took fifteen years to formulate and pass an act on the mentioned case. The judgement was pronounced in 1997 and the Act came into power in 2013. The presence of a pro tem protection provided the lawmakers with more time to deliberate and pay attention to every intrinsic nuance. It played a detrimental role in assessing the predicaments generated from such events. Depicting that the power is not completely taken away from other structures of governance, but in matters of extreme necessity, a non-conventional method of bringing regulations in place can be mechanised.

Even though the author of this piece does not propound this to be a norm, the subjectivity and gravity of the situation, on an impactful basis does justify its course. In the Vishaka Case, the anticipated outcome was not on the lines of uncertainty, the probability of such regulations ending in a disaster was highly minuscule.

Essentiality of clarity

One of the stark examples of a clear case of judicial adventurism, when the judiciary overstepped its mandate into the territory of the executive and the legislative, is the recent stay by the Allahabad High Court. The stay on inducing a total lockdown in Five cities in Uttar Pradesh on the claims that the system would collapse marks the nature of overstepping.

The need of the hour is the kind of activism the judiciary endured in cases like Vishaka, channelling its way through lack of legal regulation and calling upon the legislation to make laws on such grey areas. Then in matters of immediately needed regulation adapting a rare policy of introducing a pro-term precedent till the time a comprehensive law is not in place.

The current scenario of events has been plagued by episodes of judicial activism which could not essentially justify their need. They stand out to be mere unnecessary disruptions to the separation of power doctrine. The anticipated outcomes keeping in mind all the impacts generated and the mechanism used to impose direction by the courts on the executive if not yield benefits which are close to flawlessness the idea of activism will always be seen as an overarching power at the hands of the judiciary meant to disrupt the separation of power doctrine and in the process infiltrate regulations formulated by a nominated autocracy.


By Gauri Srivastava

A second-year Philosophy Major, Hindu College, Delhi University. Wagering through a storm by holding onto the precipice of her interests in law, criminology, politics and crime documentaries.

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