Judicial Legislation is antithetical to the doctrine of separation of powers as envisaged in the Indian…

Question

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.

Ghissu Editorial · Accepted Answer

Judicial legislation strains the separation of powers, but public interest petitions seeking guidelines are justified where executive and legislative silence leaves fundamental rights unprotected. The Vishaka guidelines of 1997 held the field until Parliament enacted the POSH Act 2013.

**Introduction**

Separation of powers is basic structure (Kesavananda Bharati, 1973), and Aravali Golf Club (2008) warned judges against legislating. Yet petitions seeking executive guidelines multiply because citizens find the other organs silent.

**Why Public Interest Petitions for Guidelines Are Justified**

SKETCH: flow | From Vacuum to Law
- Executive inaction
- Rights violated
- PIL under Article 32
- Interim guidelines
- Legislation enacted

1. **Legislative vacuum**: Vishaka (1997) framed workplace harassment guidelines under Articles 32 and 141 that held the field until the POSH Act 2013.
2. **Executive inaction**: D.K. Basu (1997) set arrest safeguards, Lalita Kumari (2014) made FIRs mandatory, and Prakash Singh (2006) ordered long-ignored police reforms.
3. **Access and new threats**: S.P. Gupta (1981) relaxed locus standi, and Tehseen Poonawalla (2018) issued anti-lynching guidelines while urging Parliament to legislate.

**Keeping Judicial Guidelines Within Constitutional Limits**

1. **Constitutional basis**: Article 142 permits complete justice, Ram Jawaya Kapur (1955) held that India has no strict separation, and guidelines lapse once Parliament legislates.
2. **Risk of overreach**: K. Balu (2016) banned liquor within 500 metres of highways and later diluted the order after States cited lost jobs and revenue, while Balwant Singh Chaufal (2010) set filters against frivolous PILs.

**Way Forward**

1. **Dialogic, time-bound remedies**: Courts should first set deadlines for governments to frame policy, issue guidelines only on default, and give them a review date that prompts legislation.

**Conclusion**

Judicial legislation strains the separation of powers, but guidelines are justified where silence leaves fundamental rights unprotected. Used as a temporary, dialogic remedy, they uphold constitutional morality rather than unsettle the balance among the organs.

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.

Model answer

Practise this question

Separation of Powers between Various Organs4 questions

Ghissu