What is meant by judicial legislation ? In this context, discuss the verdicts of the apex court allowing “passive euthanasia” and a “living will”.
Approach · directive: “what / discuss”
What it asks · Define judicial legislation, then analyse the euthanasia and advance directive rulings as examples, with the debate on their legitimacy.
The question has 3 parts — answer each
- What is judicial legislation: define it, with examples of the practice
- Discuss the apex court's verdicts on passive euthanasia and the living will as instances of judicial legislation
- Weigh their legitimacy, for and against, and indicate the way forward
Open with · Judicial legislation is law-making by courts — framing binding guidelines under Articles 32, 141 and 142 where the legislature has left a vacuum.
Cover
- Examples of the practice: Vishaka (1997) on workplace sexual harassment, D.K. Basu (1996) on arrest, Prakash Singh (2006) on police reform.
- Aruna Shanbaug (2011): passive euthanasia allowed in principle, with High Court approval, in the absence of law.
- Common Cause (2018): a Constitution Bench recognised the right to die with dignity under Article 21 and upheld advance medical directives (living wills).
- The 2018 guidelines set medical board and magistrate safeguards; in 2023 the Court simplified them to make living wills workable.
- For the practice: protects rights when Parliament is silent; the Law Commission had also favoured regulating passive euthanasia.
- Against: strains separation of powers, lacks democratic debate, and complex guidelines are hard for hospitals and families to use.
- Way forward: a comprehensive law on end-of-life care, palliative care access and hospital ethics committees.
Close with · Judicial legislation is a stop-gap for protecting rights; Parliament should take over through considered legislation.
Question: UPSC's CS (Main) 2026, GS Paper II — paper ↗. Approach: Minimalist IAS, checked 30 Sept 2026 (how we verify) — UPSC publishes no model answers. ·
Model answer · 315 words (UPSC limit 250) · Minimalist IAS
Judicial legislation is law-making by courts: binding rules framed under Articles 32, 141 and 142 to fill a gap the legislature has left, as distinct from interpreting a statute that already exists.
Meaning and examples
- Vishaka (1997) laid down workplace sexual-harassment norms that held the field until Parliament legislated in 2013; D.K. Basu (1996) set arrest safeguards; Prakash Singh (2006) directed police reform.
- In each, the Court performed the classic legislative function, framing rules of general application, justified as protecting fundamental rights in a vacuum.
Passive euthanasia and the living will
- Aruna Shanbaug (2011): passive euthanasia permitted in principle, case by case, with High Court approval, because no statute existed.
- Common Cause (2018): a Constitution Bench held the right to die with dignity part of Article 21 and recognised advance medical directives, prescribing medical boards and a magistrate's role.
- 2023 modification: the Court simplified its own scheme, with smaller boards, time limits and easier attestation, because the 2018 procedure had proved unworkable.
- Both rulings are judicial legislation in full: the substantive right, the procedure and the safeguards all came from the Bench, not Parliament.
Legitimacy: for and against
- For: rights cannot wait on a silent Parliament; the Law Commission had itself recommended regulating passive euthanasia; the guidelines are expressly interim, inviting legislation.
- For: end-of-life questions concern dignity and bodily autonomy, squarely within the Court's Article 21 jurisdiction.
- Against: it strains separation of powers and bypasses democratic deliberation on a morally contested subject.
- Against: court-written procedures are hard for hospitals and families to use, as the need for the 2023 revision itself showed.
Way forward
- A comprehensive law on end-of-life care, wider palliative care, and hospital ethics committees to make dignity in dying a practical right.
Judicial legislation is a stop-gap that protects rights when Parliament is silent; the euthanasia rulings show both its value and its limits, and the lasting answer lies in considered legislation.
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.