SC Refuses to Direct Parliament To Enact Stand-Alone Law Against Custodial Torture

The Centre, in its response to the Court, attributed the delay in enacting such a law to a combination of factors including necessity for due debate.

New Delhi: A three-judge bench of the Supreme Court comprising Chief Justice of India Ranjan Gogoi, Justice Dinesh Maheshwari and Justice Sanjiv Khanna, on Thursday, refused to issue a direction to the Centre to enact a stand-alone law against custodial torture. 

The bench’s decision was in response to an application moved by former Union law minister, Ashwani Kumar, who had in his writ petition, sought an effective and purposive legislative framework and law against custodial torture and punishment.

The law, Kumar pleaded, should be based upon the ‘Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ adopted by the United Nations General Assembly and opened for signature, ratification and accession on December 10, 1984.

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India had signed the UN Convention on October 14, 1997, but has not ratified it yet.  

The Supreme Court had disposed of Kumar’s writ petition on November 27, 2017, based on the Centre’s undertaking that it was considering the enactment of such a legislation, on the lines recommended by the Law Commission.

Indian statutory law, at present, is not in harmony with the UN Convention and falls short on several accounts, both procedurally and substantively. Thus, many feel that there is an urgent and immediate need for an all-embracing standalone law in this regard.

Articles 51(c) and 253 of the Constitution underscore the ‘constitutional imperative’ of aligning domestic laws with international law and obligations. 

Kumar, concerned with the delay in enacting such a legislation, moved his application praying for suitable directions to the Centre.

The directions, he claimed, would be justified and are necessary in view of the delay and inaction in enacting the law, notwithstanding the recommendations made by the National Human Rights Commission, the report of the Law Commission of India in October 2017, and the report of the Select Committee of Parliament dated December 2, 2010. Repeated commitments have been made by the Centre as well. 

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This inordinate delay, he claimed, reflects unreasonable and unacceptable conduct of the government in shielding infringement of Article 21 and violates Article 14 of the Constitution of India.

Ashwani Kumar was the chairperson of the Select Committee of the Rajya Sabha that had submitted a report on custodial torture, stressing on the need for a comprehensive stand-alone legislation. 

The Centre, in its response to the Court, attributed the delay to the requirement of consultation with state governments. 

However, all the states and Union Territories gave their suggestions on the proposed law in February this year. When this was disclosed in court, the Centre contended that the “nuances, niceties and spectrum of divergent views and choices is a complex and challenging task.”

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“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, the Court was told. 

The bench disagreed with the petitioners that it had the power, as part of judicial review, to issue directions to the Centre to enact laws in conformity with the UN Convention. 

The bench, however, added that this would not in any way affect the jurisdiction of the courts to deal with individual cases of alleged custodial torture and pass appropriate orders and directions in accordance with the law.