November 2 – GS2/Polity: 2025 | UPSC Daily Answer Writing Practice PDF Download

Judicial Legislation is antithetical to the doctrine of separation of powers as envisaged in the Indian Constitution. In this context justify the filing of large number of public interest petitions praying for issuing guidelines to executive authorities. (UPSC GS2 Mains)

Judicial Legislation’ can be defined as laws which are created by the pronouncements of a judge who departs from a strict interpretation of law according to the manifest intention of the legislature. Judicial legislation in context of Indian constitution is opposed to the doctrine of separation of power.
The constitution of India provides the power to legislate only to Indian Parliament and states legislatures. However, any judgment of Supreme Court and High Court regarding any legislation is considered as law in Indian context, which infringes the separation of power jurisdiction.
How is Judicial Legislation antithetical to the doctrine of separation of powers? 

• The power of judicial review over legislative action vested in the High Court under Article 226 and in the Supreme Court under Article 32 of the Constitution. 
• It is an integral and essential feature of the Constitution which constitutes part of its basic structure. 
• It empowers the Supreme Court and High court to curtail any legislation which infringes fundamental rights of the citizens. 
• But, a large number of public interest petitions praying for issuing guidelines to executive authorities under article 32 and Article 226 has called the courts to intervene in number of cases. 
• These petitions are completely based on loopholes of different legislations citing need of court’s intervention for social welfare and public interest. 
• When the court intervenes in such conditions, it sometime pronounces changes in legislation which undermines the power of parliament. 
• Further, some of the petitions are related to those subjects which do not come under any legislations. 
• Under such circumstances the court legislates by judgments instead of directing the legislature to enact laws upon the aforesaid subject. Judicial legislations on different subject matters in recent past due to PILs 
• In recent past judiciary has intervened in matters pertaining to subjects such as bonded labour matters, neglected children, non-payment of minimum wages to workers and exploitation of casual workers, and petitions from jails complaining of harassment, against police for refusing to register a case, harassment by police and death in police custody, against atrocities on women impact the lives of the marginalized and disadvantaged. 
• In absence of any appropriate statutory arrangement for these subjects issuance of directives or guidelines by the judiciary is a clear case of judicial intervention. 
• Although, these subjects are related to infringement of fundamental rights, but the judiciary should direct the central government for guidelines instead of its own guidelines. 

Conclusion 
Although judicial review is part of basic structure of the constitution, it provides for ‘Checks’ on government’s legislative overreach rather than providing an instrument to judiciary to legislate. As ‘Custodian of the Indian Constitution’, the apex court must limit the use of instruments such as ‘Public Interest Litigations’. It must maintain ‘Separation of Powers’ among different organs of the government i.e. Legislature, Executive and Judiciary by exercising instrument of ‘Checks and balances’.

Topics covered - Judicial Legislation, Judicial Activism