What is meant by judicial legislation ? In this context, discuss the verdicts of the apex court allowing “passive euthanasia” and a “living will”.
15 marks · answer in 250 words · directive: Discuss
The core of a good answer
Judicial legislation is courts laying down binding norms where the legislature has not acted; the euthanasia line of cases (Aruna Shanbaug 2011, Common Cause 2018 and its 2023 modification, Harish Rana 2026) is a clear instance, as the Supreme Court read a right to die with dignity into Article 21 and framed detailed procedural guidelines in the absence of a statute.
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What the question asks
First define judicial legislation and its constitutional basis (Articles 32, 141, 142) and the separation of powers concern. Then 'discuss' the euthanasia and living will judgments as a case study: what each held, how the guidelines function like law, and whether this was legitimate gap-filling or overreach.
Answer outline
Introduction
Judicial legislation refers to courts creating general, binding rules, usually through guidelines under Articles 32 and 142 that operate under Article 141 until the legislature enacts a law.
Meaning and basis of judicial legislation
- Distinct from interpretation: the court frames rules of general application, often stated to hold 'until Parliament legislates'.
- Constitutional basis: Article 32 and 226 remedies, Article 141 (law declared by the Supreme Court binds all courts) and Article 142 (complete justice).
- Earlier instances: Vishaka v State of Rajasthan (1997) guidelines on sexual harassment at work, later replaced by the POSH Act, 2013; D.K. Basu v State of West Bengal (18 December 1996) arrest guidelines.
- Concern: separation of powers and democratic legitimacy, since courts are not accountable to voters and cannot consult as widely as a legislature.
Road to passive euthanasia
- Gian Kaur v State of Punjab (1996, five judges): right to life does not include the right to die, but the right to live with dignity includes dignity in the process of dying.
- Aruna Ramchandra Shanbaug v Union of India (7 March 2011, two judges): rejected active euthanasia but permitted passive euthanasia (withdrawal of life support) for persons in a permanent vegetative state, subject to High Court approval.
- Law Commission's 241st Report ('Passive Euthanasia: A Relook') again proposed legislation on passive euthanasia and prepared a draft bill.
Common Cause and the living will
- Common Cause v Union of India (9 March 2018, five-judge bench headed by CJI Dipak Misra): right to die with dignity is part of Article 21; recognised advance medical directives (living wills) and laid down a procedure involving medical boards and a Judicial Magistrate, to operate until legislation.
- Modification (24 January 2023, five-judge bench headed by Justice K.M. Joseph): removed the Magistrate's approval, allowed attestation by a notary or gazetted officer, and simplified the procedure as the 2018 steps had proved cumbersome.
- Harish Rana v Union of India (11 March 2026): first judicially permitted withdrawal of life-sustaining treatment, for a man in a vegetative state for 13 years; held clinically assisted nutrition and hydration is medical treatment, and urged the Union to consider end-of-life legislation.
Assessment
- In favour: filled a vacuum affecting dignity and patient autonomy; Parliament had not legislated despite the Law Commission's report; guidelines are procedural and protective.
- Against: detailed procedures are a legislative task; repeated judicial revision (2018, 2023, 2026) shows the limits of rule-making through litigation.
- Balance: the Court framed the guidelines as interim and repeatedly called on Parliament to act.
Conclusion
The euthanasia rulings show judicial legislation at its most defensible, rights-protective and expressly temporary; a comprehensive end-of-life care law would restore the proper balance between the Court and Parliament.
Examples and data to cite
- Aruna Ramchandra Shanbaug v Union of India (2011): passive euthanasia allowed with High Court oversight.
- Common Cause v Union of India (2018): living wills recognised under Article 21.
- Common Cause v Union of India, modification order (24 January 2023): Magistrate approval removed.
- Harish Rana v Union of India (11 March 2026): first permitted withdrawal of life support under the guidelines.
- Vishaka v State of Rajasthan (1997): guidelines that held the field until the POSH Act, 2013.
- Law Commission of India, 241st Report, 'Passive Euthanasia: A Relook'.
Facts to remember
- Article 141: law declared by the Supreme Court is binding on all courts in India.
- Article 142: the Supreme Court may pass any order necessary for doing complete justice.
- Active euthanasia remains illegal in India; only withdrawal or withholding of life-sustaining treatment is permitted.
- Section 115 of the Mental Healthcare Act, 2017 presumes severe stress in a person who attempts suicide.
- The Common Cause bench in 2018 had five judges, as did the bench that modified the guidelines in 2023.
Where it sits in the syllabus
- GS2: Separation of powers, dispute redressal
Separation of powers between various organs, dispute redressal mechanisms and institutions.
- GS2: Executive, judiciary, pressure groups
Structure, organization and functioning of the Executive and the Judiciary; Ministries and Departments of the Government; pressure groups and formal/informal associations and their role in the Polity.