2019 (9) TMI 1601 - SC - Indian Laws

Supreme Court Upholds Separation of Powers in Custodial Torture Legislation

The Supreme Court declined to direct Parliament to enact a standalone comprehensive legislation against custodial torture aligned with the UN Convention. ... Right to life with dignity Under Article 21 - Seeking 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 - 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? HELD THAT:- Having elucidated the doctrinal basis of separation of powers and mutual interaction between the three organs of the State in the democratic set-up, it would be important to draw clear 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 - the legislature itself entrusts the judiciary to lay down parameters in the form of precedents which is oft-spoken as judge made law. This is true of many a legislations. 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. It is apparent that 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 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. 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 - For the grant of compensation, therefore, proceedings Under Article 32 or 226 of the Constitution are entertained when violation of the fundamental rights granted Under Article 21 is established. In such cases, claims of a citizen are tried on the principle of strict liability where defence of sovereignty may not be available. The contention of the Applicant is that this Court must direct the legislature, that is, Parliament, to enact a suitable standalone comprehensive legislation based on the UN Convention and this direction, if issued, would be in consonance with the Constitution of India. This prayer must be rejected - Application disposed off. Issues Involved:1. Whether the Supreme Court can direct Parliament to enact a standalone comprehensive legislation against custodial torture based on the UN Convention.2. The constitutional doctrine of separation of powers and its implications on judicial directives to the legislature.3. The judiciary's role in protecting fundamental rights and addressing custodial torture within existing legal frameworks.Issue-wise Detailed Analysis:1. Whether the Supreme Court can direct Parliament to enact a standalone comprehensive legislation against custodial torture based on the UN Convention:The Applicant, a senior advocate and former Law Minister, sought a directive from the Supreme Court to the Central Government to enact legislation against custodial torture, aligning with the UN Convention against Torture, which India signed but has not ratified. The Court noted that the matter was already under consideration by the Government, with inputs being solicited from States and Union Territories. The Court emphasized that directing Parliament to enact a specific law would violate the doctrine of separation of powers, a fundamental principle of the Constitution. The Court concluded that it could not issue such a directive as it would encroach upon the legislative domain, which is constitutionally vested in Parliament.2. The constitutional doctrine of separation of powers and its implications on judicial directives to the legislature:The judgment extensively discussed the doctrine of separation of powers, highlighting that while the three branches of government (legislature, executive, judiciary) are interdependent, they must respect constitutional boundaries. The Court reiterated that the judiciary's role is to interpret and apply the law, not to legislate. The Court cited several precedents affirming that it cannot direct the legislature to enact or amend laws, as this would undermine the democratic process and the principle of legislative supremacy. The Court referenced judgments such as Kesavananda Bharati, which established that the doctrine of separation of powers is part of the basic structure of the Constitution.3. The judiciary's role in protecting fundamental rights and addressing custodial torture within existing legal frameworks:The Court acknowledged its responsibility to protect fundamental rights, including the right to life and liberty under Article 21 of the Constitution. It cited past judgments where it had issued guidelines to safeguard the rights of individuals in custody, such as in D.K. Basu, which laid down detailed procedures to prevent custodial torture. The Court emphasized that while it can issue guidelines to protect fundamental rights, it cannot mandate the legislature to enact specific laws. The Court maintained that existing legal provisions, such as Sections 330 and 331 of the Indian Penal Code, address custodial torture, and the judiciary can provide remedies and compensation for violations through public law proceedings.Conclusion:The Supreme Court rejected the Applicant's prayer to direct Parliament to enact a standalone comprehensive legislation against custodial torture based on the UN Convention. The Court underscored the importance of adhering to the constitutional doctrine of separation of powers, which precludes the judiciary from directing the legislature to enact specific laws. The Court affirmed its role in protecting fundamental rights and addressing custodial torture through existing legal frameworks and judicial guidelines. The judgment emphasized judicial restraint and the need for each branch of government to respect its constitutional limits.