# DR. ASHWANI KUMAR v. UNION OF INDIA AND ANOTHER

- **Citation:** [2019] 12 S.C.R. 30
- **Court:** Supreme Court of India
- **Decided:** 2019-09-05
- **Case number:** Miscellaneous Application No. 2560 of 2018
- **Bench:** Ranjan Gogoi, Dinesh Maheshwari, Sanjiv Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-ashwani-kumar-v-union-of-india-and-another-33178
- **Pages:** 40

## Headnote

Custodial Torture: Writ petition filed under Art.32 of the
Constitution - Seeking effective and purposive legislative
framework/law based upon the 'Convention against torture and
Other Cruel, inhuman or Degrading Treatment or Punishment'
adopted by the United Nations General Assembly - Prayer of
applicant was that custodial torture being crime against humanity
which directly infracts and violates Art.21, this court should invoke
and exercise jurisdiction under Arts.141, 142 for protection and
advancement of human dignity, a core and non-negotiable
constitutional right - Held: It is true that in some extraordinary
cases where notwithstanding the institutional reasons and the
division of power, this Court has laid down general rules/guidelines
when there has been a clear, substantive and gross human rights
violation, which significantly outweighed and dwarfed any
legitimising concerns based upon separation of powers, lack of
expertise and uncertainty of the consequences - However, a mere
allegation of violation of human rights or a plea raising
environmental concerns cannot be the 'bright-line' to hold that selfrestraint must give way to judicial legislation - Where and when
directions should be issued by Court are questions and issues
involving constitutional dilemmas that mandate a larger debate and
discussion - Such directions are to be issued with great care and
circumspection and certainly not when the matter is already pending
consideration and debate with the executive or Parliament - This is
not a case which requires Court's intervention to give a suggestion
for need to frame a law as the matter is already pending active
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consideration - Any direction at this stage would be interpreted as
judicial participation in the enactment of law - When the matter is
already pending consideration and is being examined for the
purpose of legislation, it would not be appropriate for this Court to
enforce its opinion, be it in the form of a direction or even a request,
for it would clearly undermine and conflict with the role assigned
to the judiciary under the Constitution - No directions can be given
to the executive to ratify the UN Convention for it would virtually
amount to issuing directions to enact laws in conformity with the
UN Convention - Constitution of India - Arts.21, 32, 141, 142.
Supreme Court Employees' Welfare Association v. Union
of India and Another (1989) 4 SCC 187 : [1989] 3
SCR 488; V.K. Naswa v. Home Secretary, Union of India
and Others (2012) 2 SCC 542 : [2012] 2 SCR 912;
State of Himachal Pradesh and Others v. Satpal Saini
(2017) 11 SCC 42 : [2017] 1 SCR 658 - relied on.
Union of India and Another v. Azadi Bachao Andolan
and Another (2004) 10 SCC 1 : [2003] 4 Suppl. SCR
222; Rosiline George v. Union of India and Others
(1994) 2 SCC 80 : [1993] 3 Suppl. SCR 141; Sakshi v.
Union of India and Others (2004) 5 SCC 518 : [2004]
2 Suppl. SCR 723; P.B. Samant and Others v. Union of
India and Others AIR 1994 Bom 323; Sheela Barse v.
State of Maharashtra (1983) 2 SCC 96 : [ 1983] 2 SCR
337; State of Madhya Pradesh v. Shyamsunder Trivedi
and Others (1995) 4 SCC 262 : [1995] 1 Suppl. SCR
44; Nilabati Behera (Smt) alias Lalita Behera (Through
the Supreme Court Legal Aid Committee) v. State of
Orissa and Others (1993) 2 SCC 746 : [1993] 2 SCR
581; Prithipal Singh and Others v. State of Punjab
and Another (2012) 1 SCC 10 : [2012] 14 SCR 862; S.
Nambi Narayanan v. Siby Mathews and Others (2018)
10 SCC 804 : [2018] 12 SCR 51 - referred to.
Regina (Countryside Alliance) and Others v. Attorney
General and Another (2008) 1 AC 719 - referred to.
Constitution of India: Separation of powers - India has a
written Constitution which is supreme and adumbrates as well as
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divides powers, roles and functions of the three wings of the State -
the legislature, the executive and the judiciary

## Text

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DR. ASHWANI KUMAR
v.
UNION OF INDIA AND ANOTHER
(Miscellaneous Application No. 2560 of 2018)
In
(Writ Petition (Civil) No. 738 of 2016)
SEPTEMBER 05, 2019
[RANJAN GOGOI, CJI, DINESH MAHESHWARI AND
SANJIV KHANNA, JJ.]
Custodial Torture: Writ petition filed under Art.32 of the
Constitution - Seeking effective and purposive legislative
framework/law based upon the 'Convention against torture and
Other Cruel, inhuman or Degrading Treatment or Punishment'
adopted by the United Nations General Assembly - Prayer of
applicant was that custodial torture being crime against humanity
which directly infracts and violates Art.21, this court should invoke
and exercise jurisdiction under Arts.141, 142 for protection and
advancement of human dignity, a core and non-negotiable
constitutional right - Held: It is true that in some extraordinary
cases where notwithstanding the institutional reasons and the
division of power, this Court has laid down general rules/guidelines
when there has been a clear, substantive and gross human rights
violation, which significantly outweighed and dwarfed any
legitimising concerns based upon separation of powers, lack of
expertise and uncertainty of the consequences - However, a mere
allegation of violation of human rights or a plea raising
environmental concerns cannot be the 'bright-line' to hold that selfrestraint must give way to judicial legislation - Where and when
directions should be issued by Court are questions and issues
involving constitutional dilemmas that mandate a larger debate and
discussion - Such directions are to be issued with great care and
circumspection and certainly not when the matter is already pending
consideration and debate with the executive or Parliament - This is
not a case which requires Court's intervention to give a suggestion
for need to frame a law as the matter is already pending active
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consideration - Any direction at this stage would be interpreted as
judicial participation in the enactment of law - When the matter is
already pending consideration and is being examined for the
purpose of legislation, it would not be appropriate for this Court to
enforce its opinion, be it in the form of a direction or even a request,
for it would clearly undermine and conflict with the role assigned
to the judiciary under the Constitution - No directions can be given
to the executive to ratify the UN Convention for it would virtually
amount to issuing directions to enact laws in conformity with the
UN Convention - Constitution of India - Arts.21, 32, 141, 142.
Supreme Court Employees' Welfare Association v. Union
of India and Another (1989) 4 SCC 187 : [1989] 3
SCR 488; V.K. Naswa v. Home Secretary, Union of India
and Others (2012) 2 SCC 542 : [2012] 2 SCR 912;
State of Himachal Pradesh and Others v. Satpal Saini
(2017) 11 SCC 42 : [2017] 1 SCR 658 - relied on.
Union of India and Another v. Azadi Bachao Andolan
and Another (2004) 10 SCC 1 : [2003] 4 Suppl. SCR
222; Rosiline George v. Union of India and Others
(1994) 2 SCC 80 : [1993] 3 Suppl. SCR 141; Sakshi v.
Union of India and Others (2004) 5 SCC 518 : [2004]
2 Suppl. SCR 723; P.B. Samant and Others v. Union of
India and Others AIR 1994 Bom 323; Sheela Barse v.
State of Maharashtra (1983) 2 SCC 96 : [ 1983] 2 SCR
337; State of Madhya Pradesh v. Shyamsunder Trivedi
and Others (1995) 4 SCC 262 : [1995] 1 Suppl. SCR
44; Nilabati Behera (Smt) alias Lalita Behera (Through
the Supreme Court Legal Aid Committee) v. State of
Orissa and Others (1993) 2 SCC 746 : [1993] 2 SCR
581; Prithipal Singh and Others v. State of Punjab
and Another (2012) 1 SCC 10 : [2012] 14 SCR 862; S.
Nambi Narayanan v. Siby Mathews and Others (2018)
10 SCC 804 : [2018] 12 SCR 51 - referred to.
Regina (Countryside Alliance) and Others v. Attorney
General and Another (2008) 1 AC 719 - referred to.
Constitution of India: Separation of powers - India has a
written Constitution which is supreme and adumbrates as well as
DR. ASHWANI KUMAR v. UNION OF INDIA AND ANOTHER
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divides powers, roles and functions of the three wings of the State -
the legislature, the executive and the judiciary - These divisions
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 that fall within the domain of the other
wing - The three branches have to respect the constitutional division
and not disturb the allocation of roles and functions between the
triad - Adherence to the constitutional scheme dividing the powers
and functions is a guard and check against potential abuse of power
and the rule of law is secured when each branch observes the
constitutional limitations to their powers, functions and roles -
Modern theory of separation of powers does not accept that the
three branches perform mutually isolated roles and functions and
accepts a need for coordinated institutional effort for good
governance, albeit emphasise on benefits of division of power and
labour by accepting the three wings do have separate and distinct
roles and functions that are defined by the Constitution - All the
institutions must act within their own jurisdictions and not trespass
into the jurisdiction of other - By segregating the powers and
functions of the institutions, the Constitution ensures a structure
where the institutions function as per their institutional strengths.
Constitution of India: Powers and functions of legislature -
Held: The legislature as an elected and representative body enacts
laws to give effect to and fulfil democratic aspirations of the people
- Legislature functions as a deliberative and representative body -
It is directly accountable and answerable to the electorate and
citizens of this country - This representativeness and principle of
accountability is what gives legitimacy to the legislations and laws
made by Parliament or the state legislatures.
Constitution of India: Arts.73 and 162 - Powers and functions
of executive - Held: The executive has the primary responsibility of
formulating government policies and proposing legislations which
when passed by the legislature become laws - By virtue of Arts.73
and 162 of the Constitution, the powers and functions of the
executive are wide and expansive, as they cover matters in respect
of which Parliament/state legislature can make laws and vests with
the executive the authority and jurisdiction exercisable by the
Government of India or the State Government, as the case may be -
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As a delegate of the legislative bodies and subject to the terms of
the legislation, the executive makes second stage laws known as
'subordinate or delegated legislation' - In fields where there is no
legislation, the executive has the power to frame policies, schemes,
etc., which is co-extensive with the power of Parliament or the state
legislature to make laws - At the same time, the political executive is
accountable to the legislature and holds office till they enjoy the
support and confidence of the legislature - Thus, there is
interdependence, interaction and even commonality of personnel/
members of the legislature and the executive - The executive,
therefore, performs multi-functional role and is not monolithic.
Constitution of India: Role of judiciary - Judges unlike
members of the legislature represent no one, strictly speaking not
even the citizens - Judges are not accountable and answerable as
the political executive is to the legislature and the elected
representatives are to the electorate - This independence ensures
that the judges perform the constitutional function of safeguarding
the supremacy of the Constitution while exercising the power of
judicial review in a fair and even-handed manner without pressure
and favours - As an interpreter, guardian and protector of the
Constitution, the judiciary checks and curbs violation of the
Constitution by the Government when they overstep their
constitutional limits, violate the basic structure of the Constitution,
infringe fundamental rights or act contrary to law - Power of judicial
review has expanded taking within its ambit the concept of social
and economic justice - Yet, while exercising this power of judicial
review, the courts do not encroach upon the field marked by the
Constitution for the legislature and the executive, as the courts
examine legality and validity of the legislation or the governmental
action, and not the wisdom behind the legislative measure or relative
merits or demerits of the governmental action - Neither does the
Constitution permit the courts to direct, advise or sermonise others
in the spheres reserved for them by the Constitution, provided the
legislature or the executive do not transgress their constitutional
limits or statutory conditions.
Doctrines/Principles: Doctrine of separation of power - The
doctrine restrains the legislature from declaring the judgment of a
court to be void and of no effect, while the legislature still possesses
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the legislative competence of enacting a validating law which
remedies the defect pointed out in the judgment - However, this
does not ordain and permit the legislature to declare a judgment as
invalid by enacting a law, but permits the legislature to take away
the basis of the judgment by fundamentally altering the basis on
which it was pronounced - Therefore, while exercising all important
checks and balances function, each wing should be conscious of
the enormous responsibility that rests on them to ensure that
institutional respect and comity is maintained - Constitution of India
- Judgment/Order - Legislation.
His Holiness Kesavananda Bharati Sripadagalvaru v.
State of Kerala and Another (1973) 4 SCC 225 : [1973]
0 Suppl. SCR 1; State of Rajasthan and Others v. Union
of India and Others (1977) 3 SCC 592 : [1978] 1 SCR
1; I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu
(2007) 2 SCC 1 : [2007] 1 SCR 706; State of Tamil
Nadu v. State of Kerala (2014) 12 SCC 696 : [2014] 12
SCR 875 - followed
Binoy Viswam v. Union of India and Others (2017) 7
SCC 59 : [2017] 7 SCR 1; Kalpana Mehta and Others
v. Union of India and Others (2018) 7 SCC 1 : [2018]
4 SCR 1 - relied on
Doctrines/Principles: Doctrine of separation of power -
Distinction between interpretation and adjudication by the courts
on one hand and the power to enact legislation by the legislature
on the other - Adjudication results in what is often described as
judge made law, but the interpretation of the statutes and the rights
in accordance with the provisions of Articles 14, 19 and 21 in the
course of adjudication is not an attempt or an act of legislation by
the judges - Legislature itself entrusts the judiciary to lay down
parameters in the form of precedents which is oft-spoken as judge
made law - Such law, even if made by the judiciary, would not
infringe the doctrine of separation of powers and is in conformity
with the constitutional functions - Thus, law-making within certain
limits is a legitimate element of a judge's role, if not inevitable - A
judge has to adjudicate and decide on the basis of legal provisions,
which when indeterminate on a particular issue require elucidation
and explanation - This requires a judge to interpret the provisions
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to decide the case and, in this process, he may take recourse and
rely upon fundamental rights, including the right to life, but even
then he does not legislate a law while interpreting such provisions
- Such interpretation is called 'judge made law' but not legislation
- Constitution of India - Judge made law.
'The Constitutional Separation of Powers' by Aieleen
Kavanagh - referred to.
Legislation: Power/Duty of legislature and judiciary -
Distinction between - Held: Legislating or law-making involves a
choice to prioritise certain political, moral and social values over
the others from a wide range of choices that exist before the
legislature - It is a balancing and integrating exercise to give
expression/meaning to diverse and alternative values and blend it
in a manner that it is representative of several viewpoints so that it
garners support from other elected representatives to pass
institutional muster and acceptance - Legislation, in the form of an
enactment or laws, lays down broad and general principles - It is
the source of law which the judges are called upon to apply - Judges,
when they apply the law, are constrained by the rules of language
and by well identified background presumptions as to the manner
in which the legislature intended the law to be read - Application of
law by the judges is not synonymous with the enactment of law by
the legislature - Judges have the power to spell out how precisely
the statute would apply in a particular case - In this manner, they
complete the law formulated by the legislature by applying it - This
power of interpretation or the power of judicial review is exercised
post the enactment of law, which is then made subject matter of
interpretation or challenge before the courts.
Interpretation of statutes: While exercising the interpretative
power, the courts can draw strength from the spirit and propelling
elements underlying the Constitution to realise the constitutional
values but must remain alive to the concept of judicial restraint
which requires the judges to decide cases within defined limits of
power - Thus, the courts would not accept submissions and pass
orders purely on a matter of policy or formulate judicial legislation
which is for the executive or elected representatives of the people
to enact.
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D.K. Basu v. State of West Bengal (1997) 1 SCC 416 :
[1996] 10 Suppl. SCR 284; Sunil Batra v. Delhi
Administration and Others (1978) 4 SCC 494 : 1979
(1) SCR 392; Francis Coralie Mullin v. Administrator,
Union Territory of Delhi and Others (1981) 1 SCC 608
: 1981 (2) SCR 516; K.S. Puttaswamy and Another v.
Union of India and Others (2017) 10 SCC 1 : [2017]
10 SCR 569; Romila Thapar and Others v. Union of
India and Others (2018) 10 SCC 753 : [2018] 11 SCR
951; Tehseen S. Poonawalla v. Union of India and
Others (2018) 9 SCC 501 : [2018] 9 SCR 291; Vishaka
and Others v. State of Rajasthan and Others (1997) 6
SCC 241 : [1997] 3 Suppl. SCR 404; Vineet Narain
and Others v. Union of India and Another (1998) 1
SCC 226 : [1997] 6 Suppl. SCR 595; Destruction of
Public and Private Properties, In RE v. State of Andhra
Pradesh and Others (2009) 5 SCC 212; Lakshmi Kant
Pandey v. Union of India (1984) 2 SCC 244; State of
West Bengal and Others v. Sampat Lal and Others
(1985) 1 SCC 317; K. Veeraswami v. Union of India
and Others (1991) 3 SCC 655:; Delhi Judicial Service
Association, Tis Hazari Court, Delhi v. State of Gujarat
and Others (1991) 4 SCC 406; Mahender Chawla and
Others v. Union of India and Others (2018) SCC Online
2679; Shri Prithvi Cotton Mills Ltd. and Another v.
Broach Borough Municipality and Others (1969) 2 SCC
283 : [1970] 1 SCR 388; Union of India v. V. Sriharan
alias Murugan and Others (2016) 7 SCC 1 : [2015] 14
SCR 613; P. Ramachandra Rao v. State of Karnataka
(2002) 4 SCC 578; Bhim Singh v. Union of India (2010)
5 SCC 538 : [2010] 6 SCR 218; Manoj Narula v. Union
of India (2014) 9 SCC 1: [2014] 9 SCR 965; Gainda
Ram and Others v. Municipal Corporation of Delhi and
Others (2010) 10 SCC 715 : [2010] 12 SCR 996;
Common Cause: A Registered Society v. Union of India
(2017) 7 SCC 158 : [2017] 3 SCR 291 - referred to.
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Case Law Reference
[1996] 10 Suppl. SCR 284
referred to
Para 4
[1979] 1 SCR 392
referred to
Para 4
[1981] 2 SCR 516
referred to
Para 4
[2017] 10 SCR 569
referred to
Para 4
[2018] 11 SCR 951
referred to
Para 4
[2018] 9 SCR 291
referred to
Para 4
[1997] 3 Suppl. SCR 404
referred to
Para 4
[1997] 6 Suppl. SCR 595
referred to
Para 4
(2009) 5 SCC 212
referred to
Para 4
(1984) 2 SCC 244
referred to
Para 4
(1985) 1 SCC 317
referred to
Para 4
(1991) 3 SCC 655
referred to
Para 4
(1991) 4 SCC 406
referred to
Para 4
(2018) SCC Online 2679
referred to
Para 4
[1973] 0 Suppl. SCR 1
followed
Para 14
[1978] 1 SCR 1
followed
Para 14
[2007] 1 SCR 706
followed
Para 14
[2014] 12 SCR 875
followed
Para 14
[1970] 1 SCR 388
referred to
Para 14
[2017] 7 SCR 1
relied on
Para 15
[2018] 4 SCR 1
relied on
Para 16
[2015] 14 SCR 613
referred to
Para 21
(2002) 4 SCC 578
referred to
Para 22
[2010] 6 SCR 218
referred to
Para 24
[1989] 3 SCR 488
relied on
Para 28
[2012] 2 SCR 912
relied on
Para 29
[2017] 1 SCR 658
relied on
Para 30
[2014] 9 SCR 965
referred to
Para 30
[2010] 12 SCR 996
referred to
Para 30
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[2017] 3 SCR 291
referred to
Para 31
[2003] 4 Suppl. SCR 222
referred to
Para 34
[1993] 3 Suppl. SCR 141
referred to
Para 34
[2004] 2 Suppl. SCR 723
referred to
Para 34
AIR 1994 Bom 323
referred to
Para 34
[1983] 2 SCR 337
referred to
Para 35
[1993] 2 SCR 581
referred to
Para 36
[1995] 1 Suppl. SCR 44
referred to
Para 36
[2018] 12 SCR 51
referred to
Para 39
[2012] 14 SCR 862
referred to
Para 40
CIVIL ORIGINAL JURISDICTION: Miscellaneous Application
No. 2560 of 2018. Writ Petition (Civil) No. 738 of 2016
Mr. Colin Gonsalves, Sr. Adv. (AC)
K. K. Venugopal, AG, Ms. Madhavi Divan, ASG, Ms. Divia Bang,
Ms. Raushan Tara Jaswal, Ms. Tanushree Nigam, R. Balasubramanian,
Ms. Shraddha Deshmukh, B. V. Balram Das, Siddhesh Kotwal,
Ms. Bansuri Swaraj, Ms. Shreya Bhatnagar, Raghunatha Sethupathy,
Gagan Narang, Ms. Arshiya Ghose, Ms. Astha Sharma, Ms. Shobha
Gupta, Sourav Roy, Ms. Swarupama Chaturvedi, Anoop Kandari, Nishant
R. Katneshwarkar, V. N. Raghupathy, Sibo Sankar Mishra, Niranjan
Sahu, Leishangthem Roshmani Kh., Ms. Anupama Ngangom,
Ms. Maibam Babina, M. Yogesh Kanna, S. Partha Sarathi, S. Raja
Rajeshwaran, Shuvodeep Roy, Kabir Shankar Bose, Rijuk Sarkar, K. V.
Jagdishvaran, Mrs. G. Indira, Suhaan Mukerji, Ms. Astha Sharma, Amit
Verma, Ms. Dimple Nagpal, (For M/s PLR Chambers & Co.), M. Shoeb
Alam, Ujjwal Singh, Gautam Prabhakar, Mojahid Karim Khan,
Mrs. K. Enatoli Sema, Amit Kumar Singh, Ms. Aruna Mathur, Avneesh
Arputham, Ms. Anuradha Arputham, Ms. Geetanjali, G. Prakash, Jishnu
M. L., Mrs. Priyanka Prakash, Mrs. Beena Prakash, V. G. Pragasam,
S. Prabu Ramasubramanian, S. Manuraj, Advs. for the appearing parties.
Dr. Ashwini Kumar- Applicant-in-person.
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The Order of the Court was passed by
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
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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 non-negotiable constitutional
right. In D.K. Basu v. State of West Bengal1 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 v. Delhi Administration and Others2, 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 v. Administrator,
Union Territory of Delhi and Others3, 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 v. Union of India and Others4 this Court had once again
emphased on the right to human dignity which, first and foremost, means
the dignity of each human being 'as a human being'. When human dignity
in a person's life is infringed and physical or mental welfare is negated
and harmed, the Court would intervene to protect and safeguard
constitutional values. Reference was also made to the decision in Romila
Thapar and Others v. Union of India and Others5 claiming that despite
existing law and repeated judicial decisions, custodial torture still remains
rampant and widespread in India. Our attention was drawn to the report
of Asian Centre for Human Rights which was based, inter alia, on the
1 (1997) 1 SCC 416
2 (1978) 4 SCC 494
3 (1981) 1 SCC 608
4 (2017) 10 SCC 1
5 (2018) 10 SCC 753
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information and data furnished by the Government of India in Parliament,
acknowledging 1674 custodial deaths, including 1530 deaths in judicial
custody and 144 deaths in police custody during the period 1st April 2017
to 28th February 2018. India has consistently and unequivocally
condemned and deprecated custodial torture at international forums and
has signed the UN Convention but the Government's reluctance to ratify
the UN Convention, which envisages a comprehensive and standalone
legislation, it was argued, is baffling and unintelligible. Indian statutory
law at present is not in harmony and falls short on several accounts, both
procedurally and substantively, with the UN Convention and, thus, there
is an urgent and immediate need for an all-embracing standalone
enactment based on the UN Convention. Articles 51(c) and 253 of the
Constitution underscore the 'constitutional imperative' of aligning domestic
laws with international law and obligations. The legislation as prayed, it
was submitted, would fulfil the constitutional obligations of the Government
of India and the constitutional goals which the Government ought to
achieve. Accordingly, the directions as prayed for would not entrench
upon Parliament's domain to enact laws as they directly relate to the
protection and preservation of human rights. The directions are justified
and necessary in view of the delay and inaction in enacting the law,
notwithstanding the recommendations made by the National Human
Rights Commission, report of the Law Commission of India in October
2017, and report of the Select Committee of Parliament dated 2th
December 2010 and repeated commitments made by the Indian
Government. Reference was made to Tehseen S. Poonawalla v. Union
of India and Others6 wherein this Court had highlighted the need for
enactment of a suitable legislation to deal with mob violence/lynching in
the country. Reliance was placed on judgments of this Court in Vishaka
and Others v. State of Rajasthan and Others7, Vineet Narain and
Others v. Union of India and Another8, Destruction of Public and
Private Properties, In RE v. State of Andhra Pradesh and Others9,
Lakshmi Kant Pandey v. Union of India10, State of West Bengal and
Others v. Sampat Lal and Others11, K. Veeraswami v. Union of India
6 (2018) 9 SCC 501
7 (1997) 6 SCC 241
8 (1998) 1 SCC 226
9 (2009) 5 SCC 212
10 (1984) 2 SCC 244
11 (1985) 1 SCC 317
DR. ASHWANI KUMAR v. UNION OF INDIA AND ANOTHER
[SANJIV KHANNA, J.]
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and Others12 and Delhi Judicial Service Association, Tis Hazari
Court, Delhi v. State of Gujarat and Others13. While referring to
Mahender Chawla and Others v. Union of India and Others14, and
other decisions including Tehseen S. Poonawalla (supra), it was argued
that this Court has not flinched from suggesting, recommending, advising,
guiding and directing the Government of India with respect to statutory
enactments. It was submitted that the delay and inaction in implementing
the constitutional obligation relates back to the year 1997 when India
had signed the UN Convention, but the Government has failed to enact
a comprehensive legislation despite commitments and recommendations
made and noticed above. This, it was submitted, reflects unreasonable
and unacceptable conduct of the Government in shielding infringement
of Article 21 and violates Article 14 of the Constitution of India. Thus,
the Court may issue directions to the Union of India to enact a law
dealing with custodial torture in terms of the U.N. Convention.
5. It may be noted here that the applicant was the Chairperson of
the Select Committee of the Rajya Sabha that had submitted the report
on custodial torture depicting the need for a comprehensive standalone
legislation.
6. Respondent No.1 - Union of India, in its response, has stated
that the draft legislation prepared on the basis of the Law Commission's
report is under active consideration and was referred to stakeholders,
that is, the States and Union Territories for their inputs and suggestions.
It was highlighted that the 'Criminal Laws' and the 'Criminal Procedure'
fall in the Concurrent List of the Seventh Schedule to the Constitution of
India and, therefore, comments and views of the State Governments/
Union Territories were solicited on the recommendations made by the
Law Commission of India. There may have been some delay as some
States did not furnish their response, albeit the Union of India took steps
by sending reminders on 27th June 2018, 27th November 2018 and 20th
December 2018. Subsequent affidavit dated 12th February 2019 discloses
that all States and Union Territories have filed their inputs/suggestions
and that the question of enacting a legislation is under consideration. A
legislation of this nature given the nuances, niceties and spectrum of
divergent views and choices is a complex and challenging task. Laws
12 (1991) 3 SCC 655
13 (1991) 4 SCC 406
14 (2018) SCC Online 2679
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are legislated after due debate, deliberation and once the required
consensus is formed. Any direction by this Court requiring the Parliament
to frame a law or modify an enactment in a particular manner would
violate doctrine of separation of powers, a basic feature of the
Constitution. Parliament as an elected body representing the citizenry is
bestowed with constitutional power to enact laws, which create rights,
obligations and duties with attendant penalties. Existing municipal laws
governing the field as interpreted by the Courts apply in matters of
custodial torture.
 7. We have in addition to Dr. Ashwani Kumar and Mr. K.K.
Venugopal, learned Attorney General of India, heard Mr. Colin Gonsalves,
senior advocate and amicus curiae, and Ms. Shobha Gupta, counsel for
the National Human Rights Commission, the second respondent before
us.
8. At the outset, we must clarify that by the present order, we
would be deciding a very limited controversy, viz. the prayer of the
applicant that this Court should direct Parliament to enact a standalone
and comprehensive legislation against custodial torture based on the UN
Convention. The prayer made requires the Court to examine and answer
the question that 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.
9. Classical or pure theory of rigid separation of powers as
advocated by Montesquieu which forms the bedrock of the American
Constitution is clearly inapplicable to parliamentary form of democracy
as it exists in India and Britain, for the executive and legislative wings in
terms of the powers and functions they exercise are linked and overlap
and the personnel they equip are to an extent common. However, unlike
Britain, India has a written Constitution, which is supreme and adumbrates
as well as divides powers, roles and functions of the three wings of the
State - the legislature, the executive and the judiciary. These divisions
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 that fall within the domain of the other wing. The three branches
have to respect the constitutional division and not disturb the allocation
of roles and functions between the triad. Adherence to the constitutional
scheme dividing the powers and functions is a guard and check against
potential abuse of power and the rule of law is secured when each
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branch observes the constitutional limitations to their powers, functions
and roles.
10. Modern theory of separation of powers does not accept that
the three branches perform mutually isolated roles and functions and
accepts a need for coordinated institutional effort for good governance,
albeit emphasises on benefits of division of power and labour by accepting
the three wings do have separate and distinct roles and functions that
are defined by the Constitution. All the institutions must act within their
own jurisdiction and not trespass into the jurisdiction of the other. Beyond
this, each branch must support each other in the general interest of good
governance. This separation ensures the rule of law in at least two ways.
It gives constitutional and institutional legitimacy to the decisions by each
branch, that is, enactments passed by the legislature, orders and policy
decisions taken by the executive and adjudication and judgments
pronounced by the judiciary in exercise of the power of judicial review
on validity of legislation and governmental action. By segregating the
powers and functions of the institutions, the Constitution ensures a
structure where the institutions function as per their institutional strengths.
Secondly, and somewhat paradoxically, it creates a system of checks
and balances as the Constitution provides a degree of latitude for
interference by each branch into the functions and tasks performed by
the other branch. It checks concentration of power in a particular branch
or an institution.
11. The legislature as an elected and representative body enacts
laws to give effect to and fulfil democratic aspirations of the people.
The procedures applied are designed to give careful thought and
consideration to wide and divergent interests, voices and all shades of
opinion from different social and political groups. Legislature functions
as a deliberative and representative body. It is directly accountable and
answerable to the electorate and citizens of this country. This
representativeness and principle of accountability is what gives legitimacy
to the legislations and laws made by Parliament or the state legislatures.
Article 245 of the Constitution empowers Parliament and the state
legislatures to enact laws for the whole or a part of the territory of India,
and for the whole or a part of the State respectively, after due debate
and discussion in Parliament/ the state assembly.
12. The executive has the primary responsibility of formulating
government policies and proposing legislations which when passed by
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the legislature become laws. By virtue of Articles 73 and 162 of the
Constitution, the powers and functions of the executive are wide and
expansive, as they cover matters in respect of which Parliament/state
legislature can make laws and vests with the executive the authority and
jurisdiction exercisable by the Government of India or the State
Government, as the case may be. As a delegate of the legislative bodies
and subject to the terms of the legislation, the executive makes second
stage laws known as 'subordinate or delegated legislation'. In fields
where there is no legislation, the executive has the power to frame
policies, schemes, etc., which is co-extensive with the power of Parliament
or the state legislature to make laws. At the same time, the political
executive is accountable to the legislature and holds office till they enjoy
the support and confidence of the legislature. Thus, there is
interdependence, interaction and even commonality of personnel/
members of the legislature and the executive. The executive, therefore,
performs multi-functional role and is not monolithic. Notwithstanding
this multifunctional and pervasive role, the constitutional scheme ensures
that within this interdependence, there is a degree of separation that
acts as a mechanism to check interference and protect the non-political
executive. Part XIV of the Constitution relates to "Services under the
Union and the States", i.e., recruitment, tenure, terms and conditions of
service, etc., of persons serving the Union or a State and accords them
a substantial degree of protection. "Office of profit" bar, as applicable to
legislators and prescribed vide Articles 102 and 191, is to ensure separation
and independence between the legislature and the executive.
13. The most significant impact of the doctrine of separation of
powers is seen and felt in terms of the institutional independence of the
judiciary from other organs of the State. Judiciary, in terms of personnel,
the Judges, is independent. Judges unlike members of the legislature
represent no one, strictly speaking not even the citizens. Judges are not
accountable and answerable as the political executive is to the legislature
and the elected representatives are to the electorate. This independence
ensures that the judges perform the constitutional function of safeguarding
the supremacy of the Constitution while exercising the power of judicial
review in a fair and even-handed manner without pressure and favours.
As an interpreter, guardian and protector of the Constitution, the judiciary
checks and curbs violation of the Constitution by the Government when
they overstep their constitutional limits, violate the basic structure of the
Constitution, infringe fundamental rights or act contrary to law. Power
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of judicial review has expanded taking within its ambit the concept of
social and economic justice. Yet, while exercising this power of judicial
review, the courts do not encroach upon the field marked by the
Constitution for the legislature and the executive, as the courts examine
legality and validity of the legislation or the governmental action, and not
the wisdom behind the legislative measure or relative merits or demerits
of the governmental action. Neither does the Constitution permit the
courts to direct, advise or sermonise others in the spheres reserved for
them by the Constitution, provided the legislature or the executive do not
transgress their constitutional limits or statutory conditions. Referring to
the phrase "all power is of an encroaching nature", which the judiciary
checks while exercising the power of judicial review, it has been
observed15 that the judiciary must be on guard against encroaching beyond
its bounds since the only restraint upon it is the self-imposed discipline of
self-restraint. Independence and adherence to constitutional
accountability and limits while exercising the power of judicial review
gives constitutional legitimacy to the court decisions. This is essence of
the power and function of judicial review that strengthens and promotes
the rule of law.
14. Constitutional Bench judgments in His Holiness Kesavananda
Bharati Sripadagalvaru v. State of Kerala and Another16 , State of
Rajasthan and Others v. Union of India and Others17, I.R. Coelho
(Dead) by LRs. v. State of Tamil Nadu18 and State of Tamil Nadu v.
15 Asif Hameed & Others v. State of Jammu & Kashmir & Others, 1989 Supp. (2) SCC
364 quoting with approval dissenting opinion of Frankfurter J. in Trop v. Dulles.
Frankfurter J. had observed:
"Rigorous observance of the difference between limits of power and wise
exercise of power - between questions of authority and questions of prudence
- requires the most alert appreciation of this decisive but subtle relationship
of two concepts that too easily coalesce. No less does it require a disciplined
will to adhere to the difference. It is not easy to stand aloof and allow want of
wisdom to prevail to disregard one's own strongly held view of what is wise in
the conduct of affairs. But it is not the business of this Court to pronounce
policy. It must observe a fastidious regard for limitations on its own power,
and this precludes the court's giving effect to its own notions of what is wise or
politic. That self-restraint is of the essence in the observance of the judicial
oath, for the Constitution has not authorized the judges to sit in judgment on
the wisdom of what Congress and the executive branch do."
16 (1973) 4 SCC 225
17 (1977) 3 SCC 592
18 (2007) 2 SCC 1
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State of Kerala19 have uniformly ruled that the doctrine of separation of
powers, though not specifically engrafted, is constitutionally entrenched
and forms part of the basic structure as its sweep, operation and visibility
are apparent. Constitution has made demarcation, without drawing formal
lines, amongst the three organs with the duty of the judiciary to scrutinise
the limits and whether or not the limits have been transgressed. These
judgments refer to the constitutional scheme incorporating checks and
balances.