[Solved] 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. (UPSC GS -2 Mains 2020)

The tenet of separation of powers conceives explicit powers given to the legislature, executive and the judiciary. It infers negligible obstruction by one organ in the working of another organ. This doctrine is one of the basic structures of the constitution. Various constitutional provisions like Article 50, 121, and 211, etc. embody the spirit of this doctrine.

Nonetheless, as of late legal enactment has arisen as a cycle in which the judiciary carries out the responsibility of the legislature and figures laws, rules and guidelines. For eg.- the Visakha rules which the SC detailed for the wellbeing of ladies at work environments and so forth Legal enactment is for the most part as legal activism however in some cases prompts legal exceed. Eg – restriction on alcohol shops inside 500m of any public or public interstate, and so on.

separation of powers

Need for PILs

  • Negligence of Duty: It is the duty of the legislature to make laws while the executive should implement it in a proper manner. However, many times the legislature fails to make the necessary legislation to suit the changing times and the executive fails to perform their administrative functions.
  • Erosion of Confidence: This leads to an erosion of the confidence of the citizens in constitutional values and democracy.
  • Need to Fill the Vacuum: In this vacuum, driven by the motive to help the poor, marginalized and underrepresented, ensuring accountability of various instruments and functionaries of the State, individuals resort to Public Interest legislation or public interest petitions.
  • Direct Access to Justice: In the Asiad Workers’ judgment case, Justice P.N. Bhagwati held that anyone getting less than the minimum wage can approach the Supreme Court directly without going through the labor commissioner and lower courts.

Benefits of PILs and separation of powers

  • Instrument of Social Change: According to the Supreme Court, the aim of PIL is to give to the common people of this country access to the Courts to obtain legal redress.
  • It is an important instrument of social change and for maintaining the Rule of law and accelerating the balance between law and justice.
  • Inclusive: PIL is a method to justice even to voiceless and vulnerable sections of society.

Monitoring of Institutions: It helps in judicial monitoring of state institutions like prisons, asylums, protective homes, etc. It is an important tool to make human rights reach those who have been denied rights. E.g.: issues related to degraded bonded laborers, tortured under trials and women prisoners, humiliated inmates of protective women’s homes, blinded prisoners, exploited children, beggars, and many others.

  • judicial legislation can’t be totally separated from the constitutionality of statutes and judicial review. With the social change, a social organization needs to be secured. Judiciary with its concern for social justice helps meet social ends.
  • Public interest petitions are necessary to bring about a new code of something when there is no legislative framework for it, nor it is possible to have it in the near future.
  • PILs falling under the categories such as bonded labor matters, neglected children, non-payment of minimum wages to workers and exploitation of casual workers, and petitions from jails complaining of harassment, against police for refusing to register a case, harassment by police, and death in police custody, against atrocities on women impact the lives of the marginalized and disadvantaged to a great extent.
  • Issuance of directives or guidelines related to such matters as a judicial intervention, in absence of any appropriate statutory arrangement, within the limits of the proper exercise of the judicial function, without infringing on the legislative function, doesn’t attract the charge of usurpation.

Notwithstanding, the regular court could always refrain from acting as an executive court and passing legislative orders.

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