Introduction
The Indian Constitution establishes a functional Separation of Powers (SoP) among the legislature, executive, and judiciary, reflected in provisions such as Article 50. Judicial legislation—wherein courts formulate policies, prescribe behavioral codes, or lay down binding guidelines—is ostensibly antithetical to this doctrine because the primary law-making prerogative rests exclusively with elected representative bodies.
Why Judicial Legislation is Antithetical to the Separation of Powers
- Lack of Institutional Competence: As noted in Asif Hameed v. State of J&K (1989), the judiciary lacks the specialized administrative machinery, financial expertise, and empirical apparatus essential for comprehensive socio-economic policy formulation.
- Absence of Democratic Accountability: Unlike legislators who are accountable to the electorate, judges are unelected. Judicial law-making bypasses parliamentary debate and public scrutiny, distorting the constitutional equilibrium affirmed in Ram Jawaya Kapur v. State of Punjab (1955).
- Risk of Judicial Adventurism and Docket Explosion: Entertaining excessive policy-driven interventions blurs the boundary between legitimate judicial activism and judicial overreach, simultaneously aggravating court pendency.
Justification for PILs Seeking Guidelines
Notwithstanding the theoretical friction with the doctrine of Separation of Powers, filing PILs requesting guidelines remains constitutionally legitimate and necessary on several grounds:
- Filling Legislative Vacuums: When the legislature fails to address urgent rights-based issues, the judiciary intervenes on an interim basis. In Vishaka v. State of Rajasthan (1997), the Supreme Court framed binding guidelines to prevent sexual harassment at the workplace, operating as law until the enactment of the POSH Act, 2013.
- Countering Executive Inertia: When administrative machinery fails to discharge statutory and constitutional duties, PILs serve as a corrective mechanism. In Vineet Narain v. Union of India (1997), judicial guidelines insulated investigating agencies such as the Central Bureau of Investigation (CBI) and Central Vigilance Commission (CVC) from political interference.
- Enforcing Fundamental Rights via Article 142: Under Article 142, the Supreme Court has the power to pass orders to do 'complete justice' and safeguard fundamental rights under Article 21. In D.K. Basu v. State of West Bengal (1997), the court instituted mandatory arrest and custody guidelines to curb custodial violence.
- Democratising Access to Justice: Relaxing the traditional rule of locus standi under Article 39A empowers public-spirited citizens to protect marginalized communities and public goods, as seen in the extensive environmental jurisprudence developed through the M.C. Mehta cases.
Conclusion
While Public Interest Litigations are indispensable for rectifying executive apathy and legislative inertia, the judiciary must exercise constitutional humility. Strict adherence to the benchmarks set in State of Uttaranchal v. Balwant Singh Chaufal (2010) is necessary to curb frivolous litigation and prevent the judiciary from morphing into a super-legislature.