"What Is Meant by Judicial Legislation? Discuss the Apex Court's Verdicts on Passive Euthanasia and the Living Will" — UPSC Mains 2026 GS2
A complete, examiner-standard 250-word model answer for the UPSC Mains 2026 GS Paper 2 question on judicial legislation — with a case timeline, a defence-vs-critique panel, static core content, and the March 2026 Harish Rana judgment.
UPSC Mains 2026 GS Paper 2 asked candidates to define judicial legislation and discuss it through the euthanasia and living will verdicts. Below is a full model answer, with a static-portion refresher and the March 2026 Harish Rana development.
"What is meant by judicial legislation? In this context, discuss the verdicts of the apex court allowing 'passive euthanasia' and a 'living will'." (250 words)
Model Answer
Introduction
Judicial legislation refers to judicially crafted norms that operate with the force of law in the absence of statute — where courts move beyond interpretation to lay down binding, prospective rules, typically invoking Article 141 (law declared by the Supreme Court is binding) and Article 142 (complete justice). The euthanasia jurisprudence is its clearest contemporary illustration.
Part I: Meaning and Constitutional Basis
- Beyond interpretation — ordinary adjudication applies existing law; judicial legislation supplies a detailed procedural code where the legislature is silent, filling a vacuum rather than resolving ambiguity.
- Established precedents — Vishaka v. State of Rajasthan (1997) framed workplace sexual harassment guidelines later codified as the POSH Act, 2013; D.K. Basu (1997) laid down arrest safeguards subsequently absorbed into the CrPC; the collegium system was judicially constructed through the Judges' cases.
- Self-limiting design — such guidelines are expressly declared to operate "until the legislature enacts a law," signalling that the Court sees itself as a gap-filler, not a substitute legislature.
Part II: The Euthanasia and Living Will Verdicts
Gian Kaur
Right to life excludes right to die; dignity in dying noted
Aruna Shanbaug
Passive euthanasia allowed with High Court approval
Common Cause
Right to die with dignity under Art. 21; living wills legalised
Modified Guidelines
Magistrate attestation removed; two-tier medical boards
Harish Rana
First substantive application; CANH held withdrawable
- Common Cause v. Union of India (2018) — a Constitution Bench held that the right to live with dignity under Article 21 includes the right to die with dignity, legalised passive euthanasia and Advance Medical Directives, and issued a detailed procedural code covering execution, custody and revocation of living wills — expressly to remain in force until Parliament legislates.
- Modification (2023) — acting on a plea by the Indian Society of Critical Care Medicine that the 2018 procedure was unworkable, the Court removed the judicial magistrate's countersignature (a notary or gazetted officer now suffices), reduced the medical-experience threshold for board members, allowed multiple nominees, and linked living wills to digital health records.
- Harish Rana v. Union of India (11 March 2026) — the first substantive application of the framework. A Bench of Justices Pardiwala and Viswanathan permitted withdrawal of Clinically Assisted Nutrition and Hydration for a patient in a persistent vegetative state for 13 years, holding CANH to be "medical treatment" withdrawable on the best-interest test, directing palliative care at AIIMS, and again urging Parliament to legislate.
Part III: Assessment
Case For
- Fills a genuine legislative vacuum
- Gives content to Article 21 dignity
- Prevents rights becoming illusory through inaction
- Self-limiting: "until Parliament legislates"
Case Against
- Separation of powers concern
- Courts lack medical and empirical expertise
- No stakeholder consultation or committee scrutiny
- 2018 guidelines proved unworkable in practice
- The 2023 correction proves both sides — that guidelines needed revision within five years shows the limits of judicial rule-making; that the Court was willing to revise them shows responsiveness. In 2023 the Bench itself observed that the legislature has greater expertise and that the Court must recognise its limitations.
- Implementation gap — despite eight years of the framework, Harish Rana in 2026 was the first substantive application, and the Court had to constitute medical boards manually for want of a standing mechanism, illustrating that judicial norms without administrative machinery deliver limited practical relief.
Conclusion
The euthanasia verdicts show judicial legislation at its most defensible — protecting a fundamental right where Parliament had not acted — and at its most constrained, since courts can declare rights but cannot build hospitals, train boards or fund palliative care. The Court's repeated appeals for legislation in 2018, 2023 and 2026 confirm that judicial law-making is best understood as a transitional constitutional expedient, not a permanent substitute for statute.
Constitutional basis: Article 141 (law declared by the Supreme Court binding on all courts), Article 142 (complete justice), Article 32 and 226 (writ jurisdiction), Article 21. Related concepts: judicial activism, judicial overreach, Public Interest Litigation, the "continuing mandamus" device, the doctrine of separation of powers.
Case line: Gian Kaur v. State of Punjab (1996) — right to life does not include right to die, but dignity extends to the process of dying; Aruna Ramachandra Shanbaug v. Union of India (2011) — passive euthanasia permitted with High Court approval; Common Cause v. Union of India (2018) 5 SCC 1 — Constitution Bench headed by CJI Dipak Misra; Common Cause (2023) 14 SCC 131 — modified guidelines, Bench led by Justice K.M. Joseph; Harish Rana v. Union of India, Misc. Application No. 2238 of 2025, decided 11 March 2026. Other judicial-legislation examples: Vishaka (1997) → POSH Act, 2013; D.K. Basu (1997); Lakshmi Kant Pandey (1984) on adoption; Second and Third Judges cases on the collegium. Note: active euthanasia remains an offence under the Bharatiya Nyaya Sanhita, 2023.
Answer Writing Tips for This Question
- Define judicial legislation precisely — courts supplying binding procedural norms where statute is silent, distinct from ordinary interpretation. A vague "judiciary making law" opening loses the conceptual mark.
- Anchor the concept in Articles 141 and 142 and give one or two non-euthanasia examples (Vishaka, D.K. Basu) before turning to the named verdicts.
- Use a case timeline — Gian Kaur → Aruna Shanbaug → Common Cause 2018 → 2023 modification → Harish Rana 2026. The evolution is the argument.
- The 2023 modification is the analytical goldmine — it simultaneously demonstrates the weakness of judicial rule-making (guidelines proved unworkable) and its responsiveness (the Court fixed them). Use it on both sides.
- Cite Harish Rana (March 2026) — the first substantive application, holding CANH to be withdrawable medical treatment. It is the freshest possible current affairs anchor for this question.
- On a question touching life, death and dignity, stay legal and analytical rather than moralising. Present the constitutional reasoning and the separation-of-powers debate; the examiner is testing legal understanding, not personal ethical position.
