Should the judiciary direct the Executive to frame regulatory policy? Critically analyse in light of the separation of powers.

Separation of powers is part of the Constitution's basic structure (Kesavananda Bharati, 1973). India practises a functional separation with checks and balances, not a rigid division of powers. On 30 October 2026, a Bench headed by CJI Surya Kant directed MeitY to frame measures against the commercial misuse of live-streamed court proceedings [1]. The order revives the question of whether courts should direct policy.

Case for judicial direction

• Filling a vacuum: The Vishaka (1997) guidelines governed workplace sexual harassment until the POSH Act, 2013 replaced them. Prakash Singh (2006) pushed stalled police reforms.
• Enforcing rights: Articles 32 and 142 allow the Court to act when executive inaction harms Article 21 rights.
• Protecting the institution: Article 129 makes the Supreme Court a court of record. Monetised and manipulated clips threaten its dignity [1].
• Dialogic, not usurping: The Court gathered suggestions from High Courts and asked the expert ministry to design the rules [1]. The Executive still writes the policy.

Case against

• Democratic legitimacy: Policy involves trade-offs that elected bodies should make. Aravali Golf Club (2008) warned courts against encroaching on executive functions.
• Institutional competence: Courts lack technical expertise. For example, a proposed watermark on official clips [1] can show a clip is genuine, but it cannot stop a genuine clip from being cut out of context.
• Judge in its own cause: Here the speech being regulated is speech about the Court itself. That raises the risk of overbroad limits on Article 19(1)(a).
• Implementation gap, not policy gap: The 2021 Model Rules already gave courts copyright over the feed and allowed prosecution under the Copyright Act, IT Act and contempt law [2]. These rules were circulated to the High Courts [3].

Assessment Judicial direction is legitimate when:

• rights or institutional integrity are at stake;
• the Executive has failed to act;
• the Court sets the goal and the Executive chooses the means;
• the direction has a time limit.

The MeitY order largely meets these tests. MeitY can build on its February 2026 IT Rules amendment on AI-generated content, which requires labelling and provenance [4], instead of creating a separate judicial code.

Directing the Executive to frame policy is defensible as a last-resort, consultative tool, not as routine governance. The courts should prompt action, the Executive should frame the rules, and Parliament should legislate. That division keeps the checks and balances the basic structure requires and upholds both open justice and constitutional morality.