Q.12 Judicial legislation is antithetical to the doctrine of separation of powers as envisaged in the Indian Constitution. In this context justify the filing of a large number of public interest petitions praying for issuing guidelines to executive authorities.

Model Answer :

Introduction

The doctrine of separation of powers is a fundamental principle in the Indian Constitution, delineating the roles and responsibilities of the executive, legislature, and judiciary. However, the rise of judicial activism and the increasing use of public interest litigation (PIL) have led to debates about the judiciary's role in policymaking and its potential encroachment on the functions of other branches of government.

Body

Judicial legislation, where courts effectively create new laws or policies through their judgments, is often criticized as overstepping the judiciary's constitutional mandate. The primary argument against this practice is that it violates the separation of powers by allowing judges to assume the role of lawmakers, a function traditionally reserved for the legislature.

However, the filing of numerous public interest petitions seeking guidelines for executive authorities can be justified on several grounds - 

• Protecting Fundamental Rights: PILs have been instrumental in safeguarding fundamental rights enshrined in the Constitution. In the landmark case of Vishaka v. State of Rajasthan (1997), the Supreme Court issued guidelines to prevent sexual harassment in the workplace, filling a legislative void and protecting women's right to work with dignity.
• Addressing Legislative Inaction: When the legislature fails to address pressing social issues, PILs provide a mechanism for the judiciary to intervene. In M.C. Mehta v. Union of India (1988), the Supreme Court issued directives to combat air pollution in Delhi, compensating for the lack of comprehensive environmental legislation.
• Ensuring Good Governance: PILs have been used to promote transparency and accountability in governance. In Vineet Narain v. Union of India (1998), the Court issued guidelines for the functioning of the Central Bureau of Investigation, addressing concerns about political interference in investigations.
• Interpreting Constitutional Provisions: The Supreme Court, through PILs, has expanded the interpretation of fundamental rights. In Olga Tellis v. Bombay Municipal Corporation (1985), the Court held that the right to livelihood is an integral part of the right to life under Article 21, broadening the scope of constitutional protections.
• Upholding the Rule of Law: PILs have been used to ensure that executive actions align with constitutional principles. In S.P. Gupta v. Union of India (1981), the Court established guidelines for judicial appointments, promoting transparency in the process.
• Addressing Systemic Issues: PILs allow the judiciary to address widespread, systemic problems that may not be adequately addressed through individual cases. In People's Union for Civil Liberties v. Union of India (2001), the Court issued orders to implement food security measures, effectively creating a right to food.

However, it's important to note that the judiciary has also recognized the need for restraint. In cases like Divisional Manager, Aravali Golf Club v. Chander Hass (2008), the Supreme Court cautioned against judicial overreach and emphasized the importance of respecting the separation of powers.

Conclusion

The judiciary's role in issuing guidelines through PILs can be seen as a necessary evolution of its constitutional mandate to protect fundamental rights and uphold the rule of law. However, a balance must be struck to ensure that judicial activism complements rather than replaces the functions of the legislature and executive

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