Guidelines That Stand Until Parliament Legislates

In one line

Where a fundamental right is violated and no statute occupies the field, the Supreme Court has laid down guidelines declared to be binding until the legislature enacts a law, and the device is defended by its interim character and by the two occasions on which Parliament then legislated.

The conditions for its use

Four, and they should be given as conditions because the device is not general.

A fundamental right is engaged, so the court is not filling a policy gap but responding to a violation.

There is a legislative vacuum. No statute governs the matter, so the court is not displacing a legislative choice.

The violation is continuing, so a declaration alone would leave the position unchanged.

And the court can state a workable rule. Where the necessary rule requires resources, institutions or technical standards, guidelines are not available and the court gives directions to consider instead.

The constitutional basis

Article 32(2) permits directions or orders or writs, including writs in the nature of the five named. Including is not exhaustive.

Article 32 is itself a fundamental right, so the court is obliged to give relief.

Article 141 makes the law declared by the Supreme Court binding on all courts within the territory of India, which is what gives a set of guidelines the force of law.

And article 142 empowers the Court to pass such decree or order as is necessary for doing complete justice in any cause or matter before it.

The combination of 32(2), 141 and 142 is the answer to the objection that no power exists. Whether the power should be used so is a different question.

The two instances that vindicate it

Custodial arrest requirements

The Court laid down requirements to be followed in all cases of arrest and detention, including the arrest memo attested by a family member or respectable local person, information to a friend or relative, an inspection memo of injuries, medical examination every forty-eight hours, entries in the diary at the place of detention and identification of interrogating officers.

Parliament then amended the criminal procedure legislation to include provisions on informing a nominated person, on arrest memos, on medical examination and on the recording of reasons for arrest.

[Custodial Violence, and the Guidelines on Arrest] has the full sequence.

Workplace sexual harassment

Guidelines were laid down in a field where no statute existed, drawing their content from a Convention India had ratified, and declared binding until suitable legislation was enacted.

Parliament then enacted a statute covering the same ground.

[Guidelines Drawn from a Convention India Had Ratified] takes the method, which is the more interesting half: the content came from a treaty and the authority from article 21 read with articles 14 and 15.