What is meant by judicial legislation? In this context, discuss the verdicts of the apex court allowing “passive euthanasia” and a “living will”. (2026, 15 Marks)

Paper	GS Paper 2
Word Limit	250 words
Syllabus Topic	Indian Polity – Judiciary; Judicial Activism

Judicial Legislation and Passive Euthanasia: Model Answer

Judicial legislation means courts creating binding rules to fill a gap when the legislature has not acted. It arises from judicial activism and Article 142. The apex court’s rulings on passive euthanasia and the living will are leading examples.

Judicial Legislation

• Examples: Vishaka (1997) guidelines on sexual harassment, and D.K. Basu (1997) guidelines on arrest.
• Supporters call it needed protection of rights; critics say it breaches separation of powers.

Passive Euthanasia Verdicts

• Gian Kaur (1996): the right to life under Article 21 does not include a right to die, but includes dying with dignity.
• Aruna Shanbaug (2011) allowed passive euthanasia under court supervision, and laid down guidelines until a law is made.
• Common Cause v. Union of India (2018): a Constitution Bench held passive euthanasia and advance medical directives (living will) valid under Article 21.
• In 2023, the Court simplified the living-will procedure.

Conclusion

The verdicts protect dignity in dying, but a comprehensive law from Parliament is the best long-term answer, keeping the judiciary within its role.

Value Addition: Judicial Legislation and Euthanasia Facts

• Active euthanasia means a direct act to end life and is not permitted. Passive euthanasia means withholding or withdrawing life support from a terminally ill or irreversibly unconscious patient.
• A living will (advance medical directive) is a written document made while healthy, that states what treatment a person refuses if they become unable to decide.
• Article 142 lets the Supreme Court pass orders needed to do “complete justice”. Article 21 is the base for the right to die with dignity.
• The Court in Common Cause (2018) prescribed safeguards, including review by medical boards, before life support is withdrawn.
• Article 50 and the separation of powers are the main reasons for criticism of judicial overreach.
• Read the judgments on the Supreme Court of India website. Read also our answers on public interest litigation and Lok Adalats and tribunals.

Related PYQs

• Explain the reasons for the growth of public interest litigation in India. As a result of it, has the Indian Supreme Court emerged as the world’s most powerful judiciary? (2024)
• Explain and distinguish between Lok Adalats And Arbitration Tribunals. Whether they entertain civil as well as criminal cases? (2024)

FAQs on Passive Euthanasia and Living Will

Is passive euthanasia legal in India?

Yes. The Supreme Court allowed it in Aruna Shanbaug (2011) and Common Cause (2018), under safeguards.

What is a living will?

A written advance directive that tells doctors not to give life-sustaining treatment if the person later cannot decide.

Is active euthanasia allowed?

No. The Court has not permitted active euthanasia.

Which GS paper covers judicial activism?

GS Paper 2 (Polity: judiciary).