What is meant by judicial legislation? In this context, discuss the verdicts of the apex court allowing “passive euthanasia” and a “living will”.
Introduction
Judicial legislation refers to instances where courts, while interpreting the Constitution or statutes, create new legal principles or rules that have the effect of law — going beyond mere interpretation to fill legislative gaps. In India this occurs when the legislature is silent or slow, and the judiciary steps in under Article 32/226/141 to protect fundamental rights or public interest. The debate is about legitimacy (democratic mandate) vs necessity (rights protection).
Value Addition Block — Key Judicial Milestones (timeline)
What is judicial legislation — brief points
- Definition: Judicial creation of binding rules where no statute exists, often via interpretation of Article 21 (life and personal liberty).
- Rationale: Protects rights in emergencies, responds to social changes, corrects legislative omissions.
- Risk: Potential overreach; democratic accountability compromised.
Apex Court verdicts on passive euthanasia and living will
- Gian Kaur v. State of Punjab (1996)
- Held that right to life does not include a right to die; euthanasia not recognised as a constitutional right. ★
- Aruna Shanbaug v. Union of India (2011)
- While denying mercy killing plea, SC permitted passive euthanasia (withdrawal/withholding of life support) in exceptional cases with safeguards — procedure to be approved by High Court/medical board. ★
- Common Cause (A Regd. Society) v. Union of India (2018)
- Marked shift: recognised 'right to die with dignity' as part of Article 21; legally permitted passive euthanasia and validated living wills (advance directives).
- Emphasised procedural safeguards: capacity, written living will, witnesses, medical board review and oversight mechanisms to prevent abuse.
Way Forward / Balanced View
- Courts provided necessary protection but this amounts to judicial legislation; Parliament should enact a clear statute codifying procedures for living wills, capacity assessment, medical boards, review mechanism and penalties.
- Strengthen palliative care, national registry for living wills, training for clinicians and awareness campaigns.
Conclusion
The Supreme Court has progressively recognised passive euthanasia and living wills through judicial legislation to uphold dignity under Article 21. For democratic legitimacy and uniformity, a parliamentary statute with robust safeguards and palliative-care emphasis is the next logical step.