Supreme Court Refuses to Direct Parliament To Enact A Law Against Custodial Torture Citing Lack Of Power To Do So

A three-judge bench of the Supreme Court comprising Chief Justice of India Ranjan Gogoi, Justice Dinesh Maheshwari and Justice Sanjiv Khanna has refused to issue a direction to the central government to enact a stand-alone law against custodial torture.

The Supreme Court disagreed with the petitioner that it had the power, as part of judicial review, to issue directions to the central government to enact laws in conformity with the UN’s ‘Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’.

The SC decision was in response to an application moved by former union law minister Ashwani Kumar, who had in his writ petition, sought an effective law against custodial torture and punishment.

The application stated that such a law 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.

In this connection, it may be recalled that India had signed the UN Convention on October 14, 1997, but has not ratified it yet.

It may be noted that presently, Indian statutory law is not in harmony with the UN Convention and falls short on several accounts, both procedurally as well as substantively. As a matter of fact, Articles 51(c) and 253 of the Constitution underscore the “constitutional imperative” of aligning domestic laws with international law and obligations.

Kumar’s petition stated that the inordinate delay in doing so reflects the unreasonable and unacceptable conduct of the government in shielding infringement of Article 21 which violates Article 14 of the Constitution of India.

Earlier, the central government, in its response to the Supreme Court, had attributed the delay to “the requirement of consultation with state governments”.

However, all states and union territories gave their suggestions about the proposed law in February 2019 itself. When this was disclosed to the Supreme Court, the central government contended that any direction by this court requiring the parliament to frame a law or modify an enactment in a particular manner would violate the doctrine of “separation of powers”, which is a basic feature of the Constitution.