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. (UPSC 2020, 15 Marks, )

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The doctrine of separation of powers is a fundamental principle in the Indian Constitution, which divides the powers of the government into three branches - the legislature, the executive, and the judiciary. Judicial legislation, where the judiciary creates laws through its judgments, goes against this principle.

Judicial Legislation is Antithetical to the Doctrine of Separation of Powers

• Separation of Powers:
• The doctrine of separation of powers ensures that the legislative, executive, and judiciary function independently. Each branch should not intrude into the functions of the other.
• In India, while a strict separation of powers does not exist, a system of checks and balances ensures that no branch oversteps its authority.
• Judicial Legislation:
• When the judiciary steps beyond its constitutional role of interpreting the law and starts making laws, it becomes "judicial legislation."
• This overreach by the judiciary undermines the legislative function, which is constitutionally vested in the Parliament.
• Case Reference: In India, judicial overreach was seen in cases such as Vishakha v. State of Rajasthan, where the court issued guidelines on sexual harassment in the absence of laws. Though well-intended, this was viewed as judicial legislation.
• Contradiction to Separation of Powers:
• Judicial activism can lead to judicial overreach, where the judiciary performs functions reserved for the legislature or executive.
• The Indian Constitution adopts a flexible separation of functions, but judicial legislation risks undermining this balance​(GS 2 01 Polity MAB).

Justification for Filing Public Interest Petitions for Issuing Guidelines to Executive Authorities

• Public Interest Litigations (PILs):
• PILs enable citizens to approach courts in matters concerning the public interest, often where the executive or legislative branches have failed.
• In the Indian context, PILs are important to address social injustices, violations of fundamental rights, or failures in governance.
• They allow the judiciary to issue directions to the executive in cases where it has been inactive, ensuring justice and upholding constitutional principles.
• Judicial Intervention via Guidelines:
• Courts have frequently issued guidelines to executive authorities when existing laws are inadequate or when the executive fails to act. These guidelines serve as temporary laws until proper legislation is enacted.
• Examples: In the Vishakha case, the court issued guidelines on workplace sexual harassment due to the absence of legislation. Similarly, courts have intervened in environmental protection cases through PILs.
• Checks on Executive Inaction:
• Judicial intervention in the form of guidelines can be justified when the executive fails in its duties. It ensures constitutional provisions are upheld and prevents executive tyranny.
• PILs also act as a mechanism to bring the state machinery to account for inaction or negligence

Judicial legislation is antithetical to the doctrine of separation of powers in the Indian Constitution as it undermines the role of the legislature, lacks accountability, promotes judicial activism, and impacts the balance of power between the branches of government. It is essential to uphold the principles of separation of powers to ensure a functioning democracy.