What is meant by judicial legislation? In this context, discuss the verdicts of the apex court allowing “passive euthanasia” and a “living will”.

What judicial legislation means

Judicial legislation is the making of binding general rules by a court in the absence of, or beyond, statute. It is the far end of a spectrum that begins with interpretation, passes through creative construction, and ends where the court supplies a detailed procedural code that Parliament has not enacted. Its constitutional foundation, where one is claimed, is Article 141 read with Article 142's power to do complete justice, and its constitutional problem is the separation of powers.

The euthanasia line

• P. Rathinam (1994) read a right to die into Article 21, and Gian Kaur (1996) overruled it, holding that the right to life does not include a right to die — while noting that the right to die with dignity at the end of a natural life span is distinct.
• Aruna Shanbaug (2011) permitted passive euthanasia — withdrawal of life support — for patients in a permanent vegetative state, and laid down a High Court-supervised procedure, expressly to operate until Parliament legislated.
• Common Cause v. Union of India (2018) held that the right to die with dignity is a facet of Article 21, recognised the living will or advance medical directive, and issued detailed guidelines on execution, custody and implementation.
• In 2023 a Constitution Bench simplified the 2018 safeguards, replacing the Judicial Magistrate's countersignature with attestation before a notary or gazetted officer and easing the medical board requirements, because the original procedure had proved unworkable.

Why this is judicial legislation

• Parliament has enacted no law on euthanasia or advance directives. The Court did not interpret a statute; it created the legal regime.
• The 2018 judgment prescribed who may execute a directive, in whose presence, how it is stored, which boards certify, and what happens on disagreement. That is legislative drafting in judicial form.
• The 2023 revision is the clearest proof: the Court amended its own scheme in the way a legislature amends a statute that has not worked.

The defence

• Article 21 rights cannot be held hostage to legislative inaction; a terminally ill patient cannot wait for a Bill.
• The Court expressly framed both 2011 and 2018 directions as interim, operative "until Parliament makes a law", which respects legislative primacy in form.
• Article 142 exists precisely for situations where existing law leaves a rights vacuum.

The critique

• Courts lack the tools of legislation: consultation, expert committee evidence, fiscal costing and post-enactment amendment. The 2023 correction demonstrates the cost of that gap.
• An "interim" regime that persists for years becomes a permanent law made by an unelected body.
• It weakens the incentive for Parliament to legislate, entrenching the vacuum it was meant to fill.
• Enforcement is uneven, since the Court cannot build the administrative machinery its own directions require.

Conclusion

The euthanasia verdicts are a defensible instance of judicial legislation: a genuine rights vacuum, an express interim framing, and a willingness to revise when the scheme failed in practice. They remain second-best. The right resolution is a statute on advance directives and end-of-life care, which would restore the boundary that Articles 245 and 246 draw. Our note on passive euthanasia and living wills sets out the current procedure.