Supreme Court Refuses to Direct Parliament to Enact Standalone Law on Custodial Torture: Ashwani Kumar vs. Union of India (2019)

Date of the Judgment: 05 September 2019

Citation: 2019 INSC 826

Judges: Ranjan Gogoi, CJI., Dinesh Maheshwari, J., Sanjiv Khanna, J.

Can the Supreme Court compel the Indian Parliament to enact a specific law? This question was at the heart of a recent case where the Court was asked to direct the government to create a standalone law against custodial torture. The Supreme Court, in its judgment, addressed the limitations of its power in directing the legislature. The bench comprised Chief Justice Ranjan Gogoi, Justice Dinesh Maheshwari, and Justice Sanjiv Khanna, with the judgment authored by Justice Sanjiv Khanna.

Case Background

The case arose from a Miscellaneous Application filed by Dr. Ashwani Kumar, a former Law Minister and Member of Parliament, who sought a direction from the Supreme Court to the Central Government to enact a comprehensive law against custodial torture. This plea was based on the argument that custodial torture violates Article 21 of the Constitution, which guarantees the right to life with dignity. The applicant argued that despite India signing the UN Convention against Torture in 1997, the government has failed to ratify it or enact a corresponding law. The applicant also highlighted the numerous recommendations made by the National Human Rights Commission, the Law Commission of India, and a Select Committee of Parliament, all advocating for a standalone legislation.

The applicant, Dr. Ashwani Kumar, sought a direction to the Central Government to enact a comprehensive law against custodial torture, arguing that such torture is a grave violation of human rights and Article 21 of the Constitution. The Union of India, the first respondent, stated that a draft legislation was under consideration and that they had sought inputs from all States and Union Territories. The National Human Rights Commission was the second respondent in the case.

Timeline:

Legal Framework

The judgment discusses several key legal provisions:

• Article 21 of the Constitution of India: Guarantees the right to life and personal liberty, which the applicant argued includes the right to be free from custodial torture.
• Article 14 of the Constitution of India: Guarantees equality before the law and equal protection of the laws.
• Articles 51(c) and 253 of the Constitution of India: Underscore the constitutional imperative of aligning domestic laws with international law and obligations.
• Article 32 of the Constitution of India: Grants the Supreme Court the power to issue directions or orders for the enforcement of fundamental rights.
• Article 141 of the Constitution of India: Declares that the law declared by the Supreme Court shall be binding on all courts within the territory of India.
• Article 142 of the Constitution of India: Empowers the Supreme Court to pass such decree or make such order as is necessary for doing complete justice in any cause or matter.
• Article 245 of the Constitution of India: Empowers Parliament and the state legislatures to enact laws for the whole or a part of the territory of India.
• Article 246 of the Constitution of India: Deals with the subject matter of laws made by Parliament and by the Legislatures of States.
• Article 253 of the Constitution of India: Empowers Parliament to make laws for implementing any treaty, agreement or convention with any other country.
• Sections 330 and 331 of the Indian Penal Code (IPC): Relate to voluntarily causing hurt or grievous hurt to extort a confession.

The Court also referred to the ‘Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (UN Convention), which India signed in 1997 but has not ratified. The applicant argued that the absence of a standalone law is a violation of India’s obligations under international law and the Constitution.

Arguments

Applicant’s Submissions:

• The applicant argued that custodial torture is a crime against humanity and a direct violation of Article 21 of the Constitution.
• It was submitted that the Court should invoke its powers under Articles 141 and 142 of the Constitution to protect human dignity.
• The applicant highlighted that despite existing laws and judicial decisions, custodial torture remains widespread in India.
• It was contended that the government’s reluctance to ratify the UN Convention and enact a comprehensive law is baffling and violates Articles 51(c) and 253 of the Constitution.
• The applicant relied on the reports of the National Human Rights Commission, the Law Commission of India, and the Select Committee of Parliament, all recommending a standalone legislation.
• Reference was made to the judgment in *Tehseen S. Poonawalla v. Union of India and Others* where the Court had highlighted the need for a suitable legislation to deal with mob violence/lynching in the country.
• It was argued that the delay in implementing the constitutional obligation since 1997 reflects unreasonable conduct by the government and violates Article 14 of the Constitution.

Respondent’s Submissions (Union of India):

• The Union of India stated that the draft legislation based on the Law Commission’s report is under active consideration.
• It was submitted that the matter was referred to stakeholders, including States and Union Territories, for their inputs.
• The respondent highlighted that ‘Criminal Laws’ and ‘Criminal Procedure’ fall in the Concurrent List of the Seventh Schedule to the Constitution, necessitating state consultations.
• The Union of India argued that any direction by the Court to frame a law would violate the doctrine of separation of powers, a basic feature of the Constitution.
• It was contended that Parliament, as an elected body, has the constitutional power to enact laws, and existing municipal laws apply to custodial torture.

Amicus Curiae Submissions:

• The amicus curiae submitted that directions can be given to the executive to ratify the UN Convention.

National Human Rights Commission Submissions:

• The National Human Rights Commission supported the need for a standalone legislation.

Submissions of Parties

Issues Framed by the Supreme Court

The Supreme Court framed the following issue for consideration:

1. Whether within the constitutional scheme, this Court can and should issue any direction to the Parliament to enact a new law based on the UN Convention.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

The Court relied on several authorities to emphasize the importance of fundamental rights and the need to protect individuals from custodial torture. However, it also stressed the limitations of judicial power and the importance of maintaining the separation of powers. The Court cited D.K. Basu v. State of West Bengal [1997] 1 SCC 416* to highlight the guidelines for arrests and the severity of custodial torture. The Court also relied on K.S. Puttaswamy and Another v. Union of India and Others [2017] 10 SCC 1* to emphasize the right to human dignity. However, the Court also cited Supreme Court Employees’ Welfare Assn. v. Union of India [1989] 4 SCC 187* to reiterate that no court can direct a legislature to enact a particular law. The Court also relied on State of Himachal Pradesh and Others v. Satpal Saini [2017] 11 SCC 42* to emphasize that the courts do not have the competence to issue directions to the legislature to enact a law in a particular manner.

What weighed in the mind of the Court?

The Court’s decision was primarily influenced by the doctrine of separation of powers, which mandates that the judiciary cannot encroach upon the legislative domain. The Court emphasized that while it has the power to interpret laws and protect fundamental rights, it cannot direct the legislature to enact a specific law. The Court acknowledged the importance of the issue of custodial torture and the need for a comprehensive law, but it maintained that it is the prerogative of the Parliament to enact such legislation.

Sentiment Analysis of Reasons Given by the Supreme Court:

Fact:Law Ratio

Logical Reasoning:

The Court reasoned that while it recognizes the importance of protecting human rights and preventing custodial torture, its role is to interpret and apply existing laws, not to create new ones. The Court emphasized that the power to legislate lies with the Parliament, which is democratically elected and accountable to the people. The Court also noted that the matter was already under consideration by the government, and any direction from the Court would be seen as judicial interference in the legislative process.

The Court considered the argument that it has, in the past, issued directions in the absence of legislation to protect fundamental rights. However, it clarified that such directions were interim measures, and they were issued only in cases of gross violations of human rights. The Court also noted that such directions were given subject to the legislature enacting the law. The Court emphasized that the present case did not warrant such intervention because the matter was already under the consideration of the executive and Parliament.

The Court highlighted that the power of judicial review does not extend to directing the legislature to enact a law in a particular manner. The Court noted that the Constitution has demarcated the functions of the three organs of the State, and each organ must respect the constitutional division. The Court also emphasized that the legislature is supreme in the sphere of law-making and that the judiciary cannot interfere with the legislative process.

The Court also rejected the argument that it should direct the executive to ratify the UN Convention, noting that this would effectively amount to directing the enactment of laws, which is beyond the Court’s power.

The Court, however, clarified that its decision does not affect the jurisdiction of the courts to deal with individual cases of alleged custodial torture and pass appropriate orders and directions in accordance with law. The Court reiterated that the right to life and liberty are of utmost importance and that any form of torture is a violation of Article 21 of the Constitution.

The Court quoted from the judgment in *Kalpana Mehta and Others v. Union of India and Others [2018] 7 SCC 1* where it was observed that “When we speak about judicial review, it is also necessary to be alive to the concept of judicial restraint. The duty of judicial review which the Constitution has bestowed upon the judiciary is not unfettered; it comes within the conception of judicial restraint. The principle of judicial restraint requires that Judges ought to decide cases while being within their defined limits of power. Judges are expected to interpret any law or any provision of the Constitution as per the limits laid down by the Constitution.“

The Court also quoted from the judgment in *Common Cause: A Registered Society v. Union of India [2017] 7 SCC 158* where it was observed that “The constitutional doctrine of separation of powers and the demarcation of the respective jurisdiction of the Executive, the Legislature and the Judiciary under the constitutional framework would lead the Court to the conclusion that the exercise of the amendment of the Act, which is presently underway, must be allowed to be completed without any intervention of the Court. Any other view and any interference, at this juncture, would negate the basic constitutional principle that the legislature is supreme in the sphere of law-making.“

The Court also quoted from the judgment in *V.K. Naswa v. Home Secretary, Union of India and Others [2012] 2 SCC 542* where it was observed that “we do not issue directions to the legislature directly or indirectly and any such directions if issued would be improper.“

Key Takeaways

• The Supreme Court cannot direct Parliament to enact a specific law, as it violates the doctrine of separation of powers.
• The power to legislate lies with the Parliament, which isdemocratically elected and accountable to the people.
• The judiciary’s role is to interpret and apply existing laws, not to create new ones.
• The Court acknowledged the importance of a comprehensive law against custodial torture but maintained that it is the prerogative of the Parliament to enact such legislation.
• The Court rejected the argument that it should direct the executive to ratify the UN Convention, noting that this would effectively amount to directing the enactment of laws.
• The judgment does not affect the jurisdiction of courts to deal with individual cases of alleged custodial torture and pass appropriate orders and directions in accordance with law.
• The Court emphasized the importance of judicial restraint and the need for each organ of the State to respect the constitutional division of powers.

Conclusion

The Supreme Court’s judgment in *Ashwani Kumar vs. Union of India* is a significant ruling that reaffirms the principle of separation of powers. While the Court acknowledged the urgent need for a law against custodial torture, it declined to direct Parliament to enact such legislation. The Court emphasized that the power to legislate lies with the Parliament, and the judiciary cannot interfere with the legislative process. The judgment also highlights the importance of judicial restraint and the need for each organ of the State to respect the constitutional division of powers.

The judgment underscores the limitations of judicial power and the importance of maintaining the separation of powers. It also highlights the need for the government to take proactive steps to address the issue of custodial torture and enact a comprehensive law in line with India’s international obligations. While the Court did not direct the enactment of a specific law, it reiterated the importance of fundamental rights and the need to protect individuals from custodial torture. This ruling serves as a reminder that the judiciary’s role is to interpret and apply existing laws, not to create new ones, and that the power to legislate lies with the Parliament.