What is meant by judicial legislation? In this context, discuss the verdicts of the apex court allowing "passive euthanasia" and a "living will".
Judicial legislation refers to the process whereby courts, in the absence of legislative action or where existing laws are inadequate, formulate binding norms that effectively function as law. In India, this stems from the Supreme Court's powers under Articles 32, 141, and 142 and the constitutional mandate to protect fundamental rights.
Instances include Vishaka guidelines (1997), directions on police reforms (Prakash Singh), and environmental jurisprudence (M.C. Mehta).
Passive Euthanasia and the Living Will:
Aruna Shanbaug v. Union of India (2011):
The SC permitted passive euthanasia (withdrawal of life support) in exceptional cases, subject to High Court approval — filling the legislative vacuum on end-of-life care.
Common Cause v. Union of India (2018):
A Constitution Bench recognised the right to die with dignity as part of Article 21. It legalised passive euthanasia and endorsed an Advance Medical Directive ("Living Will") allowing individuals to refuse future life-support treatment. Elaborate procedural safeguards were laid down — attestation before a magistrate, medical boards, and judicial review.
2023 Modification:
The SC simplified the process — replacing the JMFC with a gazetted officer/notary, and reducing bureaucratic layers to make the right meaningfully accessible.
Judicial Legislation — Assessment:
- Justified: Fills legislative vacuum; protects dignity and autonomy under Article 21; consistent with Puttaswamy privacy jurisprudence.
- Concerns: Crosses into legislative domain (separation of powers); guidelines lack democratic deliberation; risks misuse without robust regulatory framework.
Way forward: Parliament must enact a comprehensive End-of-Life Care Act, replacing judicially crafted procedures with democratically legitimate legislation, thereby restoring the constitutional balance.
Answered By:
Harsh Raj
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