Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Dr. Ashwani Kumar VS Respondent: Union of India and another
Court Name: Supreme Court of India Judge(s): Sanjiv Khanna, Dinesh Maheshwari, Ranjan Godoi Title: Dr. Ashwani Kumar vs Union of India and another Case No.:Miscellaneous Application No. 2560 of 2018 IN Writ Petition (Civil) No. 738 of
2016 Date of Judgment:2019-09-05 Reported As: KLR 2021 Supreme Court Cases 1, 2021 P SC 4 Result: Order accordingly Judgment ORDER SANJIV KHANNA, J.--- 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:
---
## Page 2
"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 pendin g 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 nonpegotiable constitutional right. In D.K. Basu v. State of West Bengal 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 Others , 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 Corahe Mullin v. Administrator , Union Territory vi Delhi and Others , this Court had observed that torture in any, form is inhuman, degrading and offensive to, human dignity anti 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 Others 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 cons titutional values. Reference was also made to the decision in Romila Thapar and Others v. Union of India and Others 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 information and data furnished by the Government of India in Parliament, ackno wledging 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. {{FOOT NOTE}} 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 {{FOOT NOTE}} 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 legislatio n, it was argued, is baffling and uninte lligible. 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 protec tion and preservation of human rights. The directions are justified and necessary in view of the delay and inactio n 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 2nd December 2010 and repeated commitments made by the Indian1 2 3 4 5
---
## Page 3
Government. Reference was made to Tehseen S. Poonawalla v. Union of India and Others 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 Others Vineet Narain and Others v. Union of India and Another , Destruction of Public and Private Properties, In RE v. State of Andhra Pradesh and Others , Lakshmi Kant Pandey v. Union of India , State of West Bengal and Others v. Sampat Lal and Others , K Veeraswami v. Union of India and Others and Delhi Judicial Service Association, T is. Hazari Court, Delhi v . State {{FOOT NOTE}} 1 (2018) 9 SCC 501 2 (1997) 6 SCC 241 3 (1998) 1 SCC 226 4 (2009) 5 SCC 212 5 (1984) 2 SCC 244 6 (1985) 1 SCC 317 7 (1991) 3 SCC 655 {{FOOT NOTE}} of Gujarat and Others . While referring to Mahender Chawla and Others v. Union of India and Others , 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 Constitut ion 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 {{FOOT NOTE}} 1. (1991) 4 SCC 406 2. (2018) SCC Online 2679 {{FOOT NOTE}} is a complex and challenging task. Laws 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 attenda nt penalties. Existing municipal laws gove rning the field as interpreted by the Courts apply in matters of custodial torture.5 6 7 8 9 10 11 12 13
---
## Page 4
7. We have in addition to Dr. Ashwani Kumar and Mr. KK. Venugopal., learned Attorney General of India, heard Mr. Cohn 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 Montesq uieu 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 branch observes the constitutional limitations to their powers, functions and roles. 10. Modern theory of separation of powers does not accept that the three branche s 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 Constit ution 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 representa tiveness 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 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
---
## Page 5
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 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 observed' 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 {{FOOT NOTE}} Asif Hameed & Others v. State of Jamm u & 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." {{FOOT NOTE}} Kesavananda Bharati Sripadagalvaru v. State of Kerala and Another , State of Rajasthan and Others v. Union of India and Others I.R. Coelho (Dead) by LRs, v. State of Tamil Nadu and State of Tamil Nadu v. State of Kerala 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 are1 2 3 4
---
## Page 6
apparent. Constitution has made demarcation, without drawing formal lines, among st 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 constitution al scheme incorporating checks and balances. As a sequitur; the doctrine restrains the legislature from declaring the judgment of a court to be void and of no effect, while the legislature still possesses 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. 15. Binoy Viswam v. Union of India and Others , this Court referring to the Constitution had observed that the powers to be exercised by the three wings of the State have an avowed purpose and each branch is constitutionally mandated to act within its sphere and to have mutual institutional respect to realise the constitutional goal and to ensure that there is no constitutional transgression. it is the Constitution which has created the three wings of the State and, thus, each branch must oblige the other by not stepping beyond its territory . 16. In Kalpana Mehta and Others v . Union of India and {{FOOT NOTE}} 1 (1973)4 SCC 225 2 (1977) 3 SCC 592 3 (2007) 2 SCC 1 4 (2014) 12 SCC 696 5 Shri Prithvi Cotton Mills Ltd. and Another v . Broach Borough Municipality and Others, (1969) 2 SCC 283 6 (2017) 7 SCC. 59 {{FOOT NOTE}} Others , Mr. Justice Dipak Misra, the then Chief Justice of India, under the headings 'Supremacy of the Constitution'," Power of judicial review' and 'Doctrine of separation of powers, has held that the Constitution is a supreme fundamental law which requires that all laws, actions and decisions of the three organs should be in consonance and in accord with the constitutional limits, for the legislature, the executive and the judiciary derive their authority and jurisdiction from the Constitution. Legislature stands vested with an exclusive authority to make laws thereby giving it a supremacy in the field of legislation and law-making, yet this power is distinct from and not at par with the supremacy of the Constitution, as: 41. This Court has the constitutional power and the authority to interpret the constitutional provisions as well as the statutory provisions. The conferment of the power of judicial review has a great sanctity as the constitutional court has the power to declare any law as unconstitutional if there is lack of competence of the legislature keeping in view the field of legislation as provided in the Constitution or if a provision contrave nes or runs counter to any of the fundamental rights or any constitutional provision or if a provision is manifestly arbitrary ." 17. Having said so, Dipak Misra, CJ went on to observe: "42. 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." Earlier , Dipak Misra, CJ had observed: "39. From the above authorities, it is quite vivid that the concept of constitutional limitation is a facet of the doctrine of separation of powers. At this stage, we may clearly state that there can {{FOOT NOTE}} 1 (2018) 7 SCC 15 6 1
---
## Page 7
{{FOOT NOTE}} really be no straitjacket…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.