Judicial legislation is antithetical to the doctrine of separation ... | UPSC Mains Model 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 numbers of public interest petitions praying for issuing guidelines to executive authorities.

Based on 40 evaluated answers to this question on CollectorBabu: here is what aspirants most often missed, the mistakes that cost marks, and a model answer.

What most aspirants missed

Continuing mandamus (Vineet Narain, MC Mehta) as the tool courts use to monitor executive compliance with guidelines
Vishaka guidelines filled a legislative vacuum for over 15 years until the POSH Act, 2013, which is the core justification for PILs
Article 32/226 as the constitutional route for PILs and Article 142 as the legal basis for issuing guidelines
Counter-argument that guidelines are interim and lapse once the legislature acts, preserving legislative supremacy
Criticism that judicial guidelines often lack implementation mechanisms and may bypass parliamentary debate
Need to tie the conclusion back to separation of powers and checks and balances

Common mistakes

Presenting the justification as a fence-sitting pros and cons list instead of taking a clear stand on whether judicial legislation is antithetical or a necessary check
Listing examples like Vishaka or MC Mehta without explaining why they justify PILs despite separation of powers concerns
Confusing judicial legislation with judicial activism and using the terms interchangeably
Citing inaccurate or off-target constitutional provisions and unverifiable cases, and inconsistent statistics on pendency

What the better answers did

Opening with the contradiction directly and then building the justification around Articles 32, 142 and 226
Using Vishaka as a detailed example of legislative vacuum and explaining the guidelines and their outcome
Explaining the limits such as the Lakshman Rekha, frivolous PIL concerns and interim nature of guidelines to show balance
Concluding by linking the argument back to checks and balances and separation of powers

Introduction

Open by naming the contradiction in the question, then state in one line that PILs are justified as a check when the legislature and executive fail, with Vishaka as the anchor.

Conclusion

Close by stating that PILs seeking guidelines are a legitimate checks-and-balances tool when they fill a genuine vacuum, stay temporary, and respect judicial restraint.

Model answer

Montesquieu's doctrine assigns distinct functions to the legislature, executive and judiciary to prevent concentration of power. Judicial law-making appears to breach this line. Yet PILs seeking guidelines are justified where fundamental rights are violated and the political organs stay silent, a role the Constitution itself contemplates through checks and balances.

Why PILs are justified

Constitutional basis: Articles 32 and 226 let citizens seek enforcement of fundamental rights, and Article 142 empowers the Supreme Court to issue directions for complete justice.
Legislative vacuum: In Vishaka v State of Rajasthan (1997), with no law on sexual harassment at the workplace, the Court laid down guidelines that operated for over 15 years until the POSH Act, 2013 was enacted.
Executive inaction: In the MC Mehta cases, the Court used continuing mandamus to monitor pollution control and compel agencies to act on the Ganga and vehicular pollution.
Checks and balances: Judicial review under Article 13 and the basic structure doctrine (Kesavananda Bharati, 1973) show that judicial oversight of other organs is part of the constitutional design.

Limits that keep PILs within separation of powers

Guidelines are interim and cease once Parliament legislates, preserving legislative supremacy.
Courts must avoid micromanaging policy. The 2G judgment's Lakshman Rekha reminds that activism protecting rights differs from overreach into policy choices.
Frivolous PILs burden courts. Subhash Kumar (1991) confined PIL to bona fide public interest.

Separation of powers in India is a flexible model of checks and balances, not a rigid wall. PILs seeking guidelines are justified when they fill genuine vacuums, remain temporary and respect judicial self-restraint, as opened by Lakshmi Kant Pandey (1984) and tested through Vishaka.

Write this answer and get it evaluated

Handwritten answers, expert-reviewed, back in under 24 hours. Start with the ₹49 Trial.

Evaluate my answer