Supreme Court Declines to Direct Parliament to Enact Law Against Custodial Torture, Upholds Separation of Powers Doctrine

SC Emphasizes Judicial Restraint and Constitutional Limits, Affirms Legislature’s Exclusive Role in Law-Making on Custodial Torture

In a landmark judgment delivered on September 5, 2019, the Supreme Court of India, comprising Chief Justice Ranjan Gogoi along with Justices Dinesh Maheshwari and Sanjiv Khanna, firmly reaffirmed the constitutional doctrine of separation of powers by declining to direct Parliament to enact a standalone, comprehensive law against custodial torture. The judgment arose from a petition filed by Dr. Ashwani Kumar, a senior advocate, former Law Minister, and Member of Parliament, who sought a judicial directive for the Central Government to legislate a law against custodial torture based on the United Nations Convention Against Torture (UN Convention), which India has signed but not ratified.

The petitioner argued that custodial torture is a crime against humanity infringing the fundamental right to life and dignity under Article 21 of the Constitution. He highlighted the grave statistics of custodial deaths in India and contended that the absence of a specific law violates India’s constitutional and international obligations. He also cited several Supreme Court judgments where custodial torture was condemned and emphasized the urgent need for a legislative framework to curb such violations.

However, the Union of India informed the Court that the Law Commission of India had prepared a draft legislation based on extensive consultations with States and Union Territories. The Government stated that the matter was under active consideration, highlighting the complexity of the law-making process given the division of powers under the Constitution, particularly as ‘police’ and ‘prisons’ are State subjects.

The Court took cognizance of the constitutional scheme dividing powers among the legislature, executive, and judiciary. It reiterated that the role of the judiciary is to interpret and apply law, safeguard fundamental rights, and exercise judicial review but not to legislate or direct the legislature on policy matters or enactment of laws. The Court observed that while judicial interpretation may sometimes create ‘judge-made law’, it is distinct from legislation which involves political, moral, and social value choices made by elected representatives in Parliament or State Legislatures.

The judgment extensively reviewed the doctrine of separation of powers, noting that:

- The legislature is the sole body vested with the authority to enact laws after deliberation and debate, accountable to the electorate.

- The executive formulates policies and administers laws but cannot legislate beyond delegated powers.

- The judiciary is an independent organ that adjudicates disputes, interprets laws, and protects constitutional rights but must exercise judicial restraint and respect the domains of the legislature and executive.

The Court cited precedents including D.K. Basu v. State of West Bengal and Sunil Batra v. Delhi Administration which recognized custodial torture as a violation of Article 21 and issued procedural safeguards. It reiterated that these judicial interventions were interim measures pending legislation and did not amount to judicial legislation.

The Court underscored that issuing a direction to Parliament to enact a law on custodial torture based on the UN Convention would amount to judicial legislation, breaching the basic structure of the Constitution and the doctrine of separation of powers. It noted that similar directions in the past, such as those relating to mob lynching laws, were issued only when there was a legislative vacuum, which is not the case here as the matter is under active legislative consideration.

The Court also addressed the issue of treaty implementation, clarifying that under Article 253 of the Constitution, Parliament has the power to enact laws for implementing international treaties and conventions, including those which may encroach upon State subjects. The executive’s signing and ratification of treaties is a political act requiring consultation and enabling legislation, further emphasizing that the judiciary cannot compel ratification or legislation.

While rejecting the petitioner’s prayer for a direction to enact a law, the Court reaffirmed its commitment to protect fundamental rights by ensuring that cases of custodial torture continue to be addressed through judicial intervention on a case-by-case basis within the existing legal framework. The Court encouraged the legislature and executive to expedite the law-making process but emphasized that such processes must respect constitutional boundaries.

This judgment serves as a strong reminder of the constitutional architecture in India, emphasizing the primacy of the legislature in law-making and the role of the judiciary in ensuring adherence to constitutional limits through judicial review without transgressing into legislative functions.

Statutory provisions

Articles 14, 21, 32, 41, 73, 73, 102, 141, 142, 144, 153, 162, 191, 224, 245, 246, 253 of the Constitution of India, Indian Penal Code Sections 330, 331, Code of Criminal Procedure provisions on custody and trial procedures, United Nations Convention Against Torture (not ratified by India)

Dr. Ashwani Kumar v. Union of India (SC) : Law Finder Doc Id # 1577824