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SUPREME COURT OF INDIA
RANJAN GOGOI, CJI., SANJIV KHANNA, DINESH MAHESHWARI, JJ.
Dr. Ashwani Kumar – Appellant
Versus
Union of India and Another – Respondents
Miscellaneous Application No. 2560 of 2018 In Writ Petition (Civil) No. 738 of 2016
Decided On : 05-09-2019
(a) Constitution of India - Separation of powers - Cannot be as rigid as in America - In India functions of executive and legislative wings overlap and personnel are common - Divisions between executive, legislative and judiciary wings in India - Are boundaries and limits fixed by the Constitution to check and prevent transgression by any one of the three branches into the powers, functions and tasks falling within domain of the other wing - Need for coordinated institutional effort for good governance - Articles 245, 73, 162, 102 and 191 - The degree of separation, within the interdependence, acts as a mechanism to check interference and protect the non-political executive. (Para 9, 10, 12)
(b) Constitution of India - Separation of powers - Judiciary - Institutional independence of the judiciary - Judges represent no one, not accountable and answerable to anyone - Ensures performing constitutional function of safeguarding supremacy of Constitution - Yet courts do not encroach upon the field marked by the Constitution for the legislature and the executive - Constitution does not permit the courts to direct, advise or sermonise the other wings. (Para 13)
(c) Constitution of India - Separation of powers - Judiciary and legislature - Interpretation and adjudication by judiciary and legislation by legislature - Judge made law - Interpretation of statutes and the rights in accordance with the provisions of Articles 14, 19 and 21 in the course of adjudication - Not an attempt or an act of legislation by the judges - Yet, law-making within certain limits is a legitimate element of a judge’s role - Application of law by judges - Not synonymous with the enactment of law by legislature. (Para 21, 23)
(d) Constitution of India - Separation of powers - Judicial legislation - Permissible to guard the rights of individuals so that no person or citizen is wronged - Even then these directions were given subject to the legislature enacting the law and merely to fill the vacuum until the legislative takes upon it to legislate - Interim in nature - Such enactment, even if assumably contrary to the directions or guidelines issued by the Court cannot struck down by reason of the directions/guidelines - Such directions must be issued with great care and circumspection - Certainly not when the matter is already pending consideration and debate with the executive or Parliament - Direction for ratification of UN Convention - Cannot be issued - Would virtually amount to issuing directions to enact laws in conformity with the UN Convention - A power not ‘possessed’ by Court while exercising power of judicial review. (Para 27, 28, 32, 33)
(e) Constitution of India - Articles 253, 245, 246 - Making law for giving effect to international agreements - Custodial torture - Mere ratification of UN Convention would not result in an enactment. (Para 34)
(f) Constitution of India - Separation of powers - Custodial torture - Directions in D.K.Basu reiterated - Sections 330 and 331, Indian Penal Code, 1860 lays down law in this regard - Direction for enactment cannot be issued. (Para 37, 38)
(g) Constitution of India - Separation of powers - Custodial torture - Court cannot direct Parliament to enact law in accordance with the UN Convention - Court however can give appropriate direction in individual cases involving human rights and Article 21. (Para 40, 41)
Facts of the case:
This case raises the question of custodial torture seeking a comprehensive standalone legislation on the subject.
Finding of the Court:
Court cannot direct Parliament to enact a law.
Result: Application dismissed.
ORDER :
SANJIV KHANNA, J.
1. This order would dispose of Miscellaneous Application No. 2560 of 2018 filed by Dr. Ashwani Kumar, applicant in-person, who is a senior advocate and a former Law Minister and Member of Parliament, praying for the following relief:
“In the aforesaid premises, it is therefore respectfully prayed that since no action has been taken by the Government pursuant to the statement of the Hon’ble Attorney General, the stand taken by the National Human Rights Commission and the Law Commission of India in its report of October 2017 and because the merit of the prayer is virtually admitted and conceded before this Hon’ble Court, the National Human Rights Commission, the Law Commission of India and by Select Committee of Parliament, as an integral constituent of the right to life with dignity under Article 21, this Hon’ble Court may be pleased to direct the Central Government to enact a suitable stand-alone, comprehensive legislation against custodial torture as it has directed in the case of mob violence/lynching vide its judgment 17th July 2018.”
2. The applicant had filed the above-captioned Writ Petition (Civil) No. 738 of 2016 under Article 32 of the Constitution of India for an effective and purposive legislative framework/law based upon the ‘Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (“UN Convention” for short) adopted by the United Nations General Assembly and opened for signature, ratification and accession on 10th December 1984. India had signed the UN Convention on 14th October 1997. However, India has not ratified the UN Convention.
3. Writ Petition (Civil) No. 738 of 2016 was disposed of vide order dated 27th November 2017, which reads as under:
“Mr. K.K. Venugopal, learned Attorney General for India submitted that the prayer made in the writ petition has been the subject matter of discussion in the Law Commission and the Law Commission has already made certain recommendations. He would further submit that the report is being seriously considered by the Government. In view of the aforesaid statement, we do not intend to keep this writ petition pending and it is accordingly disposed of. There shall be no order as to costs.”
4. The applicant predicating his case on the right to life and liberty and judgments of this Court had argued that custodial torture being crime against humanity which directly infracts and violates Article 21 of the Constitution, this Court should invoke and exercise jurisdiction under Articles 141 and 142 of the Constitution for the protection and advancement of human dignity, a core and nonnegotiable constitutional right. In D.K. Basu vs. State of West Bengal, (1997) 1 SCC 416 custodial torture and violence was described as a wound inflicted on the soul, so painful and paralysing that it engenders fear, rage, hatred and despair, and denigrates the individual. In Sunil Batra vs. Delhi Administration and Others, (1978) 4 SCC 494 this Court had observed that the prisoners have enforceable liberties, though devalued but never demonetised and, therefore, it is within the jurisdictional reach and range of this Court’s writ to deal with prison and police caprice and cruelty. Similarly, in Francis Coralie Mullin vs. Administrator, Union Territory of Delhi and Others, (1981) 1 SCC 608 this Court had observed that torture in any form is inhuman, degrading and offensive to human dignity and constitutes an inroad into the right to life and is prohibited by Article 21 of the Constitution, for no law authorises and no procedure permits torture or cruelty, inhuman or degrading treatment. Reference was made to Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights which prohibits torture in all forms in absolute terms. Recently, in K.S. Puttaswamy and Another vs. Union of India and Others, (2017) 10 SCC 1 this Court had once again emphased on the right to human dignity which, first
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