GS Paper II 2026 · Q12
15 marks · 250 words Separation of powers & dispute redressal X-Ray · Core #15What is meant by judicial legislation ? In this context, discuss the verdicts of the apex court allowing “passive euthanasia” and a “living will”.
🧭 How to think about this question · directive: “what / discuss”
Decode the demand
- Two directives: 'what is meant by' asks for a definition with the constitutional hooks and a classic example; 'discuss' asks you to read the euthanasia and living-will verdicts through that lens, showing both their value and their cost.
- The issue in one line: when Parliament stays silent on a fundamental right, the Supreme Court writes the rule itself; the euthanasia verdicts are the fullest recent instance.
- Three things to answer: what judicial legislation is (Articles 32, 141, 142, Vishaka route); what Aruna Shanbaug, Common Cause 2018 and the 2023 revision actually laid down; whether such law-making is legitimate and what should follow.
- The trap: narrating the euthanasia cases as a medical-law story. The examiner wants the link: which part of each verdict was interpretation and which part was legislation.
Think in a structure
- Open with a crisp definition and name Common Cause as the example in the same breath, so the two halves of the question are tied from line one.
- Concept first: a flowchart of how a court-made rule is born and later replaced by a statute; then points with a jurist's idea and the Vishaka example.
- Verdicts as a table: year, what was allowed, what the Bench wrote; then one point per case, ending with the observation that right, procedure and safeguards all came from the Court.
- Legitimacy both ways, three for and three against, each with a thinker or report; end with concrete steps and the Vishaka-to-POSH precedent as the anchor.
Facts checked at source (6)· open
- Article 142(1): the Supreme Court may pass any decree or order necessary for doing complete justice in any cause or matter before it.The Constitution of India (as on 1 May 2024) - Legislative Department, Article 142 ↗“may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it”
- Common Cause (2018): the right to die with dignity of a terminally ill person falls within Article 21, but only passive euthanasia, not active euthanasia.Supreme Court Reports 2018 (official SCR digest, sci.gov.in hosting), Common Cause v. Union of India ↗“As part of right to die with dignity in case of dying man who is terminally ill or in a persistent vegetative state only passive euthanasia would come within the ambit of Art.21 and not the one which would fall within the description of active euthanasia”
- The Common Cause Bench itself prescribed the procedure for advance directives: who may execute them, how they are recorded and preserved, and when they take effect.Supreme Court Reports 2018 (official SCR digest, sci.gov.in hosting), Common Cause v. Union of India ↗“Advance Directives – Safeguards to be followed as to who can execute the advance directive and how; what should it contain; how should it be recorded and preserved; when and by whom can it be given effect to”
- After Aruna Shanbaug, the Law Commission's 241st Report recognised passive euthanasia, but no law was enacted.Supreme Court Reports 2018 (official SCR digest, sci.gov.in hosting), Common Cause v. Union of India ↗“Post Aruna Shanbaug, the 241st report of the Law Commission of India on Passive Euthanasia has also recognized passive euthanasia, however, no law as such has been enacted”
- Parliament enacted the workplace sexual-harassment (POSH) law in 2013, as Act 14 of 2013.Sexual Harassment of Women at Workplace Rules, 2013 (Delhi Police, Government of NCT of Delhi) ↗“Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (14 of2013)”
- In the Netherlands, euthanasia and assisted suicide are legal only when the criteria of the Termination of Life on Request and Assisted Suicide (Review Procedures) Act are fully observed.Government of the Netherlands - Euthanasia, assisted suicide and non-resuscitation on request ↗“Euthanasia and assisted suicide are legal only if the criteria laid down in the Dutch Termination of Life on Request and Assisted Suicide (Review Procedures) Act are fully observed.”
Question: UPSC's CS (Main) 2026, GS Paper II — paper ↗. Guidance: Minimalist IAS, checked 8 Nov 2026 (how we verify). ·
Model answer· 614words · Minimalist IAS
Judicial legislation is law-making by courts: binding rules of general application framed under Articles 32, 141 and 142 where Parliament has left a vacuum. Common Cause (2018), which read a right to die with dignity into Article 21 and then wrote the entire living-will procedure, is its clearest recent example.
What judicial legislation means
- Legislative vacuum
- Right violated, Article 32 petition
- Court frames guidelines under Article 142
- Binding on all under Article 141
- Parliament enacts a statute
- Rules, not readings: the Court moves beyond interpreting a statute to framing fresh norms for everyone, a legislative function in form.
- Complete justice: Article 142 lets the Court pass any order necessary for complete justice, the textual hook for gap-filling guidelines.
- Interstitial law-making (Holmes): judges do legislate, but only in the gaps the legislature leaves; the test is restraint, not abstention.
- Vishaka (1997): workplace sexual-harassment guidelines held the field until the POSH Act, 2013 replaced them.
- D.K. Basu (1996) on arrest safeguards and Prakash Singh (2006) on police reform followed the same route.
The verdicts on passive euthanasia and the living will
| Verdict | What it allowed | What the Bench wrote |
|---|---|---|
| Aruna Shanbaug (2011) | Passive euthanasia, case by case | High Court approval route |
| Common Cause (2018) | Right to die with dignity under Article 21; living will | Full procedure: execution, custody, effect |
| Common Cause (2023) | Same right, easier access | Simplified safeguards for hospitals |
- Gian Kaur (1996): a Constitution Bench held Article 21 does not include a right to die, so active euthanasia stayed closed.
- Aruna Shanbaug (2011): passive euthanasia allowed in principle, with High Court approval in each case, because no law existed.
- Common Cause (2018): a Constitution Bench placed the right to die with dignity of a terminally ill or vegetative patient within Article 21, for passive euthanasia alone.
- The Bench itself prescribed who may execute an advance directive, how it is recorded and preserved, and when and by whom it takes effect.
- 2023 revision: the Court simplified its own safeguards to make living wills workable in hospitals.
- Legislation in full: the right, the procedure and the safeguards all came from the Bench; Parliament has still not enacted a word.
Legitimacy: the case for and against
- For, rights in silence: the Law Commission's 241st Report recognised passive euthanasia, yet no law followed; the Court filled a real gap.
- For, core jurisdiction: dignity and bodily autonomy fall within Article 21, which Article 32, Ambedkar's 'heart and soul' of the Constitution, obliges the Court to enforce.
- For, rights as trumps (Dworkin): a dying patient's autonomy cannot wait on legislative convenience.
- Against, separation of powers: Montesquieu's warning applies; a morally contested question was settled without Parliament's debate.
- Against, democratic deficit: no committee scrutiny, public consultation or amendment route exists for court-made codes except another petition.
- Against, workability: court-drafted procedure proved hard for families and doctors, as the 2023 revision itself concedes.
- Netherlands: euthanasia is lawful only under its Termination of Life on Request and Assisted Suicide (Review Procedures) Act, a statute, not a judgment.
Way forward
- Enact an end-of-life care law: codify the 2018-2023 framework with a usable advance-directive registry, as POSH codified Vishaka.
- Build palliative capacity: dignity in dying needs pain relief and hospice beds, not only a legal right; the National Programme for Palliative Care needs funding and reach.
- Hospital ethics committees: institutional boards to apply directives, so families stop needing courts.
- Judicial self-restraint: guidelines framed as interim, lapsing once Parliament legislates, so court-made law stays a bridge, not a destination.
Vishaka's guidelines waited sixteen years for the POSH Act, 2013; the euthanasia guidelines have waited since 2011. Separation of powers is best honoured when Parliament completes what the Court began and makes dignity in dying a usable right.
Prepared by Minimalist IAS to the answer standard of Shivam Singh (mentor, 7 years) · facts checked against official sources (how we verify) · updated 8 Nov 2026. UPSC publishes no model answers: compare your structure and coverage with this, then write your own.
