Judiciary has acquired the role of both, a legislature and an executive in recent years. Examine with suitable examples. (2017, 20 Marks)
India never adopted a rigid separation of powers; Ram Jawaya Kapur v. State of Punjab (1955) described a functional division with checks and balances. Judicial review lets courts invalidate what the other organs do. The claim examined here is that the higher judiciary now also makes the rule and runs the programme. The evidence largely supports it, with a significant recent retreat.
The judiciary as legislature
- Guidelines as law under Article 141: Vishaka (1997) on workplace harassment, in force until the 2013 Act; D. K. Basu (1997) on arrest and custody; Lalita Kumari (2013) making FIR registration mandatory for cognisable offences.
- Filling silence: Common Cause (2018) recognised passive euthanasia and framed a full “living will” procedure, simplified by the Court itself in 2023.
- Suspending a statute: in S. G. Vombatkere (2022) the sedition provision was kept in abeyance pending review, a power no text confers.
- Article 142 as a lawmaking power: divorce on irretrievable breakdown without statutory basis (2023); nationwide demolition safeguards (2024); and in State of Tamil Nadu v. Governor (April 2025), timelines for Governors and the President plus deemed assent to ten bills.
The judiciary as executive
- Forest administration: in T. N. Godavarman Thirumulpad (from 1996) a forest bench and its Central Empowered Committee regulate felling and diversion nationwide.
- Pollution control: CNG conversion of Delhi’s public transport (1998–2002), bans on older diesel vehicles, and recurring firecracker orders, including a limited green-cracker window in October 2025.
- Running institutions: Lodha Committee reforms imposed on the BCCI (2016), run by court-appointed administrators.
- Licensing and regulation: the highway liquor ban within 500 metres (State of Tamil Nadu v. K. Balu, December 2016), diluted within months; the national anthem in cinemas (2016, made optional in 2018); the Court directing that NEET govern medical admissions from 2016.
- Beyond the Supreme Court: the Allahabad High Court (2015) directed that children of public servants attend government schools; the Bombay High Court (2017) had a committee view Jolly LLB 2 before release.
- Appointments and negotiation: the NJAC judgment (2015) kept an executive function, appointments, inside the collegium; in January 2021 the Court stayed the farm laws and set up a negotiating committee.
Examination
Why it happened. Executive non-implementation, legislative vacuum, Article 142’s open-ended remedy and PIL’s relaxed standing drew the courts in. Pratap Bhanu Mehta called the outcome “the rise of judicial sovereignty” (Journal of Democracy, 2007).
Where it is defensible. Vishaka and D. K. Basu enforced Article 21 entitlements where no law existed; the first was expressly interim, and the second’s arrest safeguards later entered the Criminal Procedure Code. That is gap-filling, not usurpation.
Where it fails. Liquor distances, fuel technology and cricket governance are polycentric choices in Lon Fuller‘s sense. They need data and trade-offs a bench lacks. The Court’s own retreats — liquor ban diluted, anthem order recalled, farm-law committee report never used — show the cost. In November 2020 Vice-President M. Venkaiah Naidu cited the firecracker ban as overreach. On the 2025 Presidential Reference a five-judge bench held (20 November 2025) that courts cannot fix assent timelines and that deemed assent is contrary to the Constitution.
Accountability gap. Voters can remove legislators and ministers; a court that legislates or administers answers to no one.
Conclusion
The judiciary has indeed acquired quasi-legislative and quasi-executive roles, mostly by default of the other organs rather than by design. The legitimate core is interim, rights-enforcing and time-bound. The rest exceeds judicial competence. The 2025 self-correction shows the Court can find the line; the durable fix is for legislators and administrators to govern, so courts need not.