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2019 (9) TMI 1601 - SC - Indian LawsRight 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.
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