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.

The charge: judicial legislation versus separation

• Articles 50, 122, 212 and the basic structure all assume distinct organs; Kesavananda and later cases treat separation as a constitutional principle, not a slogan.
• When a Bench writes a code on sexual harassment, arrests, or undertrials, it occupies a field that Article 245 gave to legislatures.
• The executive, not the Court, has personnel, budget, and democratic mandate to run prisons, police, and welfare. Guidelines can become a continuing mandamus that looks like a third government.

Why the Indian scheme still allows a judicial role

• Unlike a pure Westminster myth, India has a written Constitution with justiciable fundamental rights; Article 13 makes law void if it offends Part III, and Article 32 is itself a right.
• Separation here is checks and balances: judicial review is the Court’s assigned power, not a theft of Parliament’s.
• When the legislature is silent and the executive is the violator — custodial torture, workplace sexual harassment, bonded labour — a rights court that waits for a Bill abandons Article 21.

Justifying PILs that seek guidelines

• Vishaka v. State of Rajasthan (1997) laid down workplace sexual-harassment guidelines until a statute arrived; the POSH Act, 2013, later occupied the field. That is gap-filling, not a permanent parallel parliament.
• D.K. Basu v. State of West Bengal set arrest-and-detention safeguards because police practice was eating Article 21; those directions operationalised rights the executive would not write against itself.
• Environmental and food-right PILs (Mehta line, PUCL) used guidelines because diffuse harm has no single plaintiff and the executive was the reluctant duty-bearer.
• Articles 32 and 226, plus epistolary jurisdiction, were designed for the poor and the unorganised; volume of PILs is a symptom of executive gap, not proof of judicial appetite alone.
• Guidelines typically bind the executive as Article 141 law until Parliament speaks; they are expressly interim in the better-reasoned cases.

Discipline so justification does not become a blank cheque

• Courts should prefer directing the executive to frame a policy within a time, or reading a statute purposively, over writing a full code.
• Frivolous and donor-driven PILs deserve early dismissal; the justification is for genuine rights vacuums, not for governance by amicus.
• Once a competent legislature enacts — POSH after Vishaka — the Court should retreat to review, not run the ministry.

Synthesis

• Judicial legislation, if it means a court pretending to be Parliament forever, is antithetical to separation.
• PILs praying for executive guidelines are justifiable when they are a temporary rights prosthesis in an executive or legislative vacuum, under Articles 32 and 226, with a door left open for statute.