UPSC Mains Answer: 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.

Difficulty Level: Hard

Pre-requisite: Foundational understanding of the doctrine of separation of powers as enshrined in the Indian Constitution, including its historical evolution (Montesquieu’s theory, U.S. model vs. Indian flexible model), key constitutional provisions (Articles 50, 12

Sub-category: Polity and Governance: Separation of Powers, Judicial Activism, and Public Interest Litigation

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The doctrine of separation of powers, enshrined in the Indian Constitution, delineates distinct roles for the legislature, executive, and judiciary to prevent concentration of power and ensure checks and balances. Judicial legislation, wherein the judiciary assumes legislative functions by framing guidelines or policies, is often viewed as antithetical to this doctrine, as it blurs the functional boundaries between organs of the state. However, the proliferation of Public Interest Litigations (PILs) seeking judicial guidelines for executive authorities can be justified on several grounds, reflecting the dynamic and adaptive nature of India’s constitutional framework.
Historically, the Indian judiciary has played an activist role in addressing governance gaps, particularly where executive inaction or legislative inertia has led to violations of fundamental rights. The Supreme Court, in landmark cases like Kesavananda Bharati (1973) and Maneka Gandhi (1978), expanded the scope of judicial review, emphasizing that the Constitution is a living document. PILs, introduced in the 1980s through cases like S.P. Gupta (1981) and Bandhua Mukti Morcha (1984), were a judicial innovation to ensure access to justice for marginalized sections. When executive authorities fail to implement laws or policies effectively, the judiciary steps in not to usurp legislative functions but to enforce constitutional mandates and protect public interest.
Moreover, the Constitution’s flexible separation of powers, as opposed to a rigid model, allows for judicial intervention in exceptional circumstances. Article 32 and Article 226 empower the judiciary to issue writs and directions to enforce fundamental rights, even if it necessitates filling legislative or executive voids. For instance, in Vishaka v. State of Rajasthan (1997), the Supreme Court laid down guidelines to address sexual harassment at workplaces due to the absence of legislation. Such judicial legislation is not arbitrary but rooted in constitutional principles and aimed at upholding justice.
Critics argue that judicial overreach undermines democratic accountability, as judges are not elected representatives. However, the judiciary’s role in PILs is often a response to systemic failures, ensuring that governance remains accountable to constitutional values. The large number of PILs seeking guidelines reflects public trust in the judiciary’s ability to deliver justice where other organs falter. Moving forward, a collaborative approach—where the judiciary nudges the executive and legislature to act, rather than permanently occupying their space—can strike a balance between judicial activism and the separation of powers.