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Judicial Legislation is antithetical to the doctrine of…..

By April 28, 2022May 22nd, 2023GS 2, Polity and Governance, Uncategorized

Judicial Legislation is antithetical to the doctrine of separation of Power as envisaged in the Indian Constitution. In this context justify the filling of Large number of PIL’s, praying for issuing guidelines to executive authority. UPSC 2020 PYQ – 15 Marks -250 words.

  • Doctrine of separation of power, forms the part of the basic structure of Indian constitution as envisaged by Supreme Court in Keshava Nanda Bharathi case of 1973. This doctrine is manifested in Indian Constitution through Ar. 50,121 and 211.
  • However, in the recent times, Judicial legislation has come under scrutiny as it is seen as an encroachment on power of legislature and executive by judiciary, therefore disturbing the delicate balance between three organs of government in ways such as –
    • Directive by Supreme Court to play National Anthem in cinema halls.
    • MC Mehta case – Ban on BS 4 vehicles.
    • Ban on alcohol on roads by Supreme Court.
    • Arun Gopal case – Fixed timings for fireworks on Diwali.
  • But on the other side, PIL as an instrument of judicial activism on the other hand has also led to a delivering of the several important judgements such as –
    • Assuring social justice – The vulnerable groups like workers, prisoners, elders etc. get justice through PIL. Example in Hussinara Khatoon Case 40,000 undertrials were released from jail.
    • Enforcing rights of the weaker sections, thus making the justice more inclusive. Example in Asiad workers case, Supreme Court ruled that workers not getting minimum wage can approach Supreme Court directly.
    • Putting legislative and executive bodies into action – Example Vishakha guidelines provided the framework for Sexual Harassment Prevention and Prohibition Act of 2013.
    • Environmental protection – Supreme Court directed the central government to form an EPCA for Delhi environment betterment, directions regarding smog towers etc.
    • Election Reforms – Supreme Court has spearheaded the process of electoral reforms through various judgements. Example the PIL filed by Lily Thomas and Lok Prahar resulted into disqualification of convicted MP’s.
    • Filling the vacuum created by inaction of legislature and executive, PIL acts as a route through which people seek redressal for inaction.
  • Thus, PIL is an effective powerful instrument of legislation when used judiciously and in order to check the misuse of PIL, Supreme Court has given guidelines in State of Uttaranchal versus Balwant Singh case. These guidelines must be followed by all court so that judicial activism does not turn into judicial adventurism.