On 3 June the Supreme Court released a draft for public comment, titled, “Regulations for Use of Artificial Intelligence in Courts, 2026.” The instinct is sound since litigants, lawyers and Court already use AI and guardrails are long overdue. But the fine print presents a constitutional problem. The issue is that it is just not a set of housekeeping rules for the Court's own registry or administration as you may expect under Article 145. It is a binding regulatory code with definitions (Regulation 3), "absolute and non-derogable" prohibitions (Regulation 20), a permanent national bureaucracy (Regulations 22–34, establishing an Apex Body, five standing committees, a Centre of Research and Excellence, AI Committees and AI Secretariats), procurement rules (Regulation 46) and intellectual-property rules (Regulation 46(9)), disclosure duties for litigants and advocates (Regulation 43, read with Annexures I and II) and grievance remedies (Regulations 52–53), all meant to govern the entire judiciary within India. In fact, the draft Regulation 1(2) makes it clear that it comes into force when the Chief Justice notifies it, not by legislation. In short, the Court has proposed to legislate in a setting without any precedent.
Where is the source of power?
Every rule needs a source of authority and this draft names none. It is published merely “under the aegis of” the Court's AI Committee, an in-house body of judges set up in 2019 to build tools like the translation software SUVAS (Supreme Court Vidhik Anuvaad Software), not to make law. Article 145 lets the Supreme Court frame rules for its “own practice and procedure”, with the President's assent, not a code for every court in the land.
Further, the organisation of courts is, under Entry 11A (Administration of Justice; constitution and organisation of all courts, except the Supreme Court and the High Courts.) of the Concurrent List (7th Schedule), a subject for Parliament and the state legislatures. A document that creates institutions, creates a permanent, funded bureaucracy, directs budget allocations (Regs. 22, 28, 32, 34) and lays down binding prohibitions for all Courts or Tribunals performing adjudicatory function is doing a substantive legislative work and a court cannot do that without a statute enabling it or at least without usurping the power of legislature.
The High Courts are equals
The deeper problem is the High Courts. Both the Supreme Court and High Courts are constitutional courts of record (Articles 215 and 129). The hierarchy between them is adjudicatory and precedential, not administrative i.e., the law which the Supreme Court declares binds as a precedent under Article 141. But no provision makes a High Court administratively answerable to the Supreme Court; in fact its superintendence runs the other way, each High Court has superintendence over the courts beneath it (Article 227). The draft does let each High Court's Chief Justice choose when the Code will come into force, a genuine courtesy. Yet the substance is already fixed by the Supreme Court "Apex Body" which sets "minimum mandatory standards … for compliance by all Courts" (Regulation 24(a)) and a High Court may add only directions "not inconsistent with" them (Regulation 33(3)(c)). This again is without precedent.
It binds lawyers and litigants
While a court can set the rules of the game for those who come before it, and asking a litigant to declare that a pleading was prepared with AI is, in principle, the kind of thing a court may do. The trouble is not the idea, it is the source and the reach. A genuine procedural rule would be made by each court under its own rule-making power; this one sits in a national code issued by a committee with no such power and no statute behind it, binding every court in the land.
Regulation 43 fixes liability ("shall bear full responsibility") and imposes standing duties on advocates. A court may regulate the right to appear and act before it, the Supreme Court does precisely this through its Advocate-on-Record rules, made under Article 145 and expressly preserved by Section 52 of the Advocates Act, 1961. But that power is anchored in a statute and confined to the Court's own forum. Regulation 43 is neither as it cites no source and is issued not as Article 145 rules but as a committee's regulation, invites full responsibility and purports to bind advocates before every court in the country, a reach the Advocates Act gives the Supreme Court over no forum but only its own (Section 52), leaving each High Court its separate power over its own (Section 34). In any event, a court can already act against fabricated material through its contempt and perjury powers, so that part breaks little new ground.
The real overreach is Regulation 46(9), which bars any private firm from claiming intellectual-property rights over AI tools built using judicial data or public resources. This cannot be dressed up as a rule for litigants, the vendor it binds may never set foot in court. It is the allocation of property rights against outsiders, which is purely a matter of substantive law. And intellectual property in India exists only by statute, under the Copyright Act and the Patents Act. A court rewriting who owns technology is a clear example of how far past "practice and procedure" (as contemplated under Article 145), this draft has travelled.
Much of the rest is policy decisions, not procedure, a declared preference for "innovation over restraint," a blanket ban on algorithmic risk-scoring and a standing apparatus of committees, secretariats and budgets coordinated with the Central Government. These are value judgments and spending decisions that belong to elected lawmakers. Notably, the Supreme Court, in a seven-judge Bench decision in P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578, has held that its own earlier directions fixing mandatory trial timelines amounted to judicial legislation and disapproved them as beyond the judicial function. If it could not do that, it cannot legislate an AI code for the entire judiciary. The same principle applies. Where a judicial direction crosses from being a “procedure” into “rule-making” of a legislative character, it becomes a clear forbidden territory.
Why when other comparator jurisdictions chose a softer tool
Pertinently, the Courts and Tribunals Judiciary of England and Wales issued guidance to judges (Artificial Intelligence (AI) Guidance for Judicial Office Holders, first published in December 2023 and revised in October 2025); the Council of Europe's CEPEJ adopted a charter (European Ethical Charter on the Use of Artificial Intelligence in Judicial Systems and their Environment, 2018); UNESCO published guidelines (Guidelines for the Use of AI Systems in Courts and Tribunals, 2025); Singapore's Supreme Court Registrar issued a registrar's guide (Registrar's Circular No. 1 of 2024: Guide on the Use of Generative Artificial Intelligence Tools by Court Users, effective 01.10.2024); and the Supreme Court of New South Wales used a practice note (Practice Note SC Gen 23 on the Use of Generative Artificial Intelligence, commencing 03.02.2025). In addition, in jurisdiction such as California, where binding rules do exist, it has acted through the Judicial Council, the constitutionally recognised rule-making body for court administration, adopting Rule of Court 10.430 and Standard 10.80, effective 01.09.2025. Those instruments require courts that permit generative AI use to adopt their own policies, rather than having an apex court impose a single uniform operational code. However, among these comparator instruments, India's draft alone takes the form of a binding national code imposed from the top by the judiciary, without any competence.
None of this means the Court is helpless. It can make Article 145 rules for itself and it can offer a model framework that High Courts may or may not choose to adopt. What it cannot do is enact a binding code, with non derogable prohibitions and duties on the public or for co-equal courts.
It bears recalling that separation of powers is a constitutional principle, which has been held to be a part of our Constitution's basic structure by the Supreme Court. However, for a good cause, it itself risks breaching this principle.
Author is a Lawyer practicing in Delhi. Views are personal.