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.
Approach · directive: “justify”
What it asks · Justify the surge of PILs seeking judicial guidelines for the executive despite separation of powers: explain India's functional separation, why courts issue guidelines in a vacuum, and the limits.
The question has 3 parts — answer each
- Acknowledge the tension: judicial legislation versus the separation of powers as the Indian Constitution envisages it
- Justify the large number of PILs seeking guidelines for executive authorities — constitutional warrant, legislative vacuum, landmark examples
- Mark the limits: when guidelines become usurpation, and the balance courts should keep
Open with · India follows a functional, not rigid, separation of powers (Ram Jawaya Kapur, 1955), yet guidelines issued in the absence of law, as in Vishaka, raise the charge of judicial legislation.
Cover
- Doctrine: overlap is allowed (Ram Jawaya Kapur, 1955), but separation of powers is basic structure, so courts must not usurp the legislature's role.
- Why PILs seek guidelines: legislative silence and executive inaction on harassment, custodial abuse, police reform and pollution, where victims cannot litigate alone.
- Constitutional warrant: Articles 32 and 226 writs, Article 141 (law declared by the Court binds), Article 142 ('complete justice') and an expansive Article 21.
- Landmarks: Vishaka (1997) on workplace harassment, later replaced by the 2013 Act; D. K. Basu (1996) on arrests; Prakash Singh (2006) on police reform.
- Limits and criticism: courts lack expertise and resources, cannot ensure compliance, and may set policy without accountability; Article 142 cannot override express statutory provisions.
- Misuse: 'publicity interest' litigation clogs courts, so the Court has laid down PIL guidelines and costs for frivolous petitions.
- Balance: keep guidelines temporary and limited to the vacuum, hear all stakeholders, defer on resource-heavy policy, and expect the legislature to act.
Close with · PILs seeking guidelines are justified where rights are violated and law is silent, but courts should act as a stopgap, leaving lasting policy to the legislature and executive.
Add value (verified)
- Article 32(2) itself gives the Supreme Court power to issue 'directions or orders or writs' to enforce fundamental rights, the textual basis for guidelines. The Constitution of India (as on 1 May 2024), Article 32(2) — Legislative Department ↗“The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.”
Question: UPSC's CS (Main) 2020, GS Paper II — paper ↗. Approach: Minimalist IAS, checked 30 Sept 2026 (how we verify) — UPSC publishes no model answers. ·
Model answer · 350 words (UPSC limit 250) · Minimalist IAS
India adopts a functional, not rigid, separation of powers (Ram Jawaya Kapur, 1955): organs overlap, but none may take over another's core function, and the principle is part of the basic structure. Guidelines framed by courts where no law exists, as in Vishaka, therefore invite the charge of judicial legislation.
The tension
- Article 50 asks the State to separate the judiciary from the executive; law-making belongs to legislatures, and enforceable judicial codes look like legislation without electoral accountability.
Why the petitions are justified
- Textual warrant: Article 32(2) empowers the Supreme Court to issue 'directions or orders or writs' to enforce fundamental rights, Article 226 gives High Courts the same reach, Article 141 makes the law declared binding and Article 142 permits orders for 'complete justice'.
- A vacuum, not a rival code: guidelines run only until the legislature acts. Vishaka (1997) governed workplace harassment for sixteen years until the 2013 Act replaced it; D. K. Basu (1996) on arrest and custody and Prakash Singh (2006) on police reform addressed executive inaction that no election had cured.
- Access to justice: victims of custodial abuse, pollution or harassment seldom can litigate alone; PIL lets citizens and groups bring executive failure before the court.
- Rights do not wait on legislative silence: an expansive Article 21 obliges courts to give content to life and liberty when the State does not.
- Accountability, not usurpation: directions bind executive authorities to act within existing law and constitutional duties; they do not create offences or taxes.
Limits the courts must respect
- Courts lack expertise, resources and enforcement machinery, and cannot weigh budgets or trade-offs; Article 142 cannot override express statutory provisions.
- 'Publicity interest' litigation clogs dockets; the Court has framed PIL guidelines and imposes costs for frivolous petitions.
- Discipline: keep guidelines temporary and confined to the gap, hear all stakeholders, defer on resource-heavy policy, and press the legislature to act.
PILs praying for guidelines are justified as a constitutional stopgap where rights are violated and law is silent; they stay legitimate only so long as the courts treat them as a bridge to legislation, not a substitute for it.
Written by Minimalist IAS from facts checked at source (how we verify) — a little fuller than exam length, so every part of the question is covered; in the hall, keep the structure and trim the detail. UPSC publishes no model answers: compare your structure and coverage with this, then write your own.