TMI Blog2019 (9) TMI 1601X X X X Extracts X X X X X X X X Extracts X X X X ..... arameters 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 Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia had signed the UN Convention on 14th October 1997. However, India has not ratified the UN Convention. 3. Writ Petition (Civil) No. 738 of 2016 was disposed of vide order dated 27th November 2017, which reads as under: Mr. K.K. Venugopal, learned Attorney General for India submitted that the prayer made in the writ petition has been the subject matter of discussion in the Law Commission and the Law Commission has already made certain recommendations. He would further submit that the report is being seriously considered by the Government. In view of the aforesaid statement, we do not intend to keep this writ petition pending and it is accordingly disposed of. There shall be no order as to costs. 4. The Applicant predicating his case on the right to life and liberty and judgments of this Court had argued that custodial torture being crime against humanity which directly infracts and violates Article 21 of the Constitution, this Court should invoke and exercise jurisdiction Under Articles 141 and 142 of the Constitution for the protection and advancement of human dignity, a core and non-negotiable constitutional right. In D.K. Basu v. State of West Bengal (1997) 1 SCC 416 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was argued, is baffling and unintelligible. Indian statutory law at present is not in harmony and falls short on several accounts, both procedurally and substantively, with the UN Convention and, thus, there is an urgent and immediate need for an all-embracing standalone enactment based on the UN Convention. Articles 51(c) and 253 of the Constitution underscore the 'constitutional imperative' of aligning domestic laws with international law and obligations. The legislation as prayed, it was submitted, would fulfil the constitutional obligations of the Government of India and the constitutional goals which the Government ought to achieve. Accordingly, the directions as prayed for would not entrench upon Parliament's domain to enact laws as they directly relate to the protection and preservation of human rights. The directions are justified and necessary in view of the delay and inaction in enacting the law, notwithstanding the recommendations made by the National Human Rights Commission, report of the Law Commission of India in October 2017, and report of the Select Committee of Parliament dated 2nd December 2010 and repeated commitments made by the Indian Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of India and, therefore, comments and views of the State Governments/Union Territories were solicited on the recommendations made by the Law Commission of India. There may have been some delay as some States did not furnish their response, albeit the Union of India took steps by sending reminders on 27th June 2018, 27th November 2018 and 20th December 2018. Subsequent affidavit dated 12th February 2019 discloses that all States and Union Territories have filed their inputs/suggestions and that the question of enacting a legislation is under consideration. A legislation of this nature given the nuances, niceties and spectrum of divergent views and choices is a complex and challenging task. 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. Parliament as an elected body representing the citizenry is bestowed with constitutional power to enact laws, which create rights, obligations and duties with attendant penalties. Existing municipal laws ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e three wings do have separate and distinct roles and functions that are defined by the Constitution. All the institutions must act within their own jurisdiction and not trespass into the jurisdiction of the other. Beyond this, each branch must support each other in the general interest of good governance. This separation ensures the Rule of law in at least two ways. It gives constitutional and institutional legitimacy to the decisions by each branch, that is, enactments passed by the legislature, orders and policy decisions taken by the executive and adjudication and judgments pronounced by the judiciary in exercise of the power of judicial review on validity of legislation and governmental action. By segregating the powers and functions of the institutions, the Constitution ensures a structure where the institutions function as per their institutional strengths. Secondly, and somewhat paradoxically, it creates a system of checks and balances as the Constitution provides a degree of latitude for interference by each branch into the functions and tasks performed by the other branch. It checks concentration of power in a particular branch or an institution. 11. The legislature as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elates to Services under the Union and the States , i.e., recruitment, tenure, terms and conditions of service, etc., of persons serving the Union or a State and accords them a substantial degree of protection. Office of profit bar, as applicable to legislators and prescribed vide Articles 102 and 191, is to ensure separation and independence between the legislature and the executive. 13. The most significant impact of the doctrine of separation of powers is seen and felt in terms of the institutional independence of the judiciary from other organs of the State. Judiciary, in terms of personnel, the Judges, is independent. Judges unlike members of the legislature represent no one, strictly speaking not even the citizens. Judges are not accountable and answerable as the political executive is to the legislature and the elected representatives are to the electorate. This independence ensures that the judges perform the constitutional function of safeguarding the supremacy of the Constitution while exercising the power of judicial review in a fair and even-handed manner without pressure and favours. As an interpreter, guardian and protector of the Constitution, the judiciary che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine restrains the legislature from declaring the judgment of a court to be void and of no effect, while the legislature still possesses the legislative competence of enacting a validating law which remedies the defect pointed out in the judgment. 2 However, this does not ordain and permit the legislature to declare a judgment as invalid by enacting a law, but permits the legislature to take away the basis of the judgment by fundamentally altering the basis on which it was pronounced. Therefore, while exercising all important checks and balances function, each wing should be conscious of the enormous responsibility that rests on them to ensure that institutional respect and comity is maintained. 15. In Binoy Viswam v. Union of India and Ors. (2017) 7 SCC 59, this Court referring to the Constitution had observed that the powers to be exercised by the three wings of the State have an avowed purpose and each branch is constitutionally mandated to act within its sphere and to have mutual institutional respect to realise the constitutional goal and to ensure that there is no constitutional transgression. It is the Constitution which has created the three wings of the State and, thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cracy, the essential morality that flows from the Constitution, interest of the citizens in certain spheres like environment, sustenance of social interest, etc. and empowering the populace with the right to information or right to know in matters relating to candidates contesting election. There can be many an example where this Court has issued directions to the executive and also formulated guidelines for facilitation and in furtherance of fundamental rights and sometimes for the actualisation and fructification of statutory rights. 18. D.Y. Chandrachud, J., in his separate and concurring judgment for himself and A.K. Sikri, J. in Kalpana Mehta (supra) had referred to the nuanced 'doctrine of functional separation' that finds articulation in the articles/books by Peter A. Gerangelos in his work titled 'The Separation of Powers and Legislative Interference in Judicial Process, Constitutional Principles and Limitations' 3 , M.J.C. Vile's book titled 'Constitutionalism and the Separation of Powers' 4 , Aileen Kavanagh in her work 'The Constitutional Separation of Powers' 5 and Eoin Carolan in his book titled 'The New Separation of P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forms part of this obligation. (emphasis in original) xx xx xx 251. In Supreme Court Advocates-on-Record Assn. v. Union of India, Madan B. Lokur, J. observed that separation of powers does not envisage that each of the three organs of the State -- the legislature, executive and judiciary -- work in a silo. The learned Judge held: (SCC p. 583, para 678) 678. There is quite clearly an entire host of parliamentary and legislative checks placed on the judiciary whereby its administrative functioning can be and is controlled, but these do not necessarily violate the theory of separation of powers or infringe the independence of the judiciary as far as decision-making is concerned. As has been repeatedly held, the theory of separation of powers is not rigidly implemented in our Constitution, but if there is an overlap in the form of a check with reference to an essential or a basic function or element of one organ of State as against another, a constitutional issue does arise. It is in this context that the 99th Constitution Amendment Act has to be viewed--whether it impacts on a basic or an essential element of the independence of the judiciary, namely, its decisional indep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be invalidated where the enacting legislature lacks legislative competence or where there is a violation of fundamental rights. A law which is constitutionally ultra vires can be declared to be so in the exercise of the power of judicial review. Judicial review is indeed also a part of the basic features of the Constitution. Entrustment to the judiciary of the power to test the validity of law is an established constitutional principle which co-exists with the separation of powers. Where a law is held to be ultra vires there is no breach of parliamentary privileges for the simple reason that all institutions created by the Constitution are subject to constitutional limitations. The legislature, it is well settled, cannot simply declare that the judgment of a court is invalid or that it stands nullified. If the legislature were permitted to do so, it would travel beyond the boundaries of constitutional entrustment. While the separation of powers prevents the legislature from issuing a mere declaration that a judgment is erroneous or invalid, the law-making body is entitled to enact a law which remedies the defects which have been pointed out by the court. Enactment of a law which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the justice is delivered. In a way, therefore, 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. This distinction between the two has been aptly expressed by Aileen Kavanagh in the following words: In general, the ability and power of the courts to make new law is generally more limited than that of the legislators, since courts typically make law by filling in gaps in existing legal frameworks, extending existing doctrines incrementally on a case-by-case basis, adjusting them to changing circumstances, etc. Judicial lawmaking powers tend to be piecemeal and incremental and the courts must reason according to law, even when developing it. By contrast, legislators have the power to make radical, broad-ranging changes in the law, which are not based on existing legal norms.... 22. Seven Judges of this Court in P. Ramachandra Rao v. State of Karnataka (2002) 4 SCC 578 had, while interpreting Articles 21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The doctrine of separation of powers envisages that the legislature should make law, the executive should execute it, and the judiciary should settle disputes in accordance with the existing law. In reality such watertight separation exists nowhere and is impracticable. Broadly, it means that one organ of the State should not perform a function that essentially belongs to another organ. While law-making through interpretation and expansion of the meanings of open-textured expressions such as 'due process of law', 'equal protection of law', or 'freedom of speech and expression' is a legitimate judicial function, the making of an entirely new law ... through directions ... is not a legitimate judicial function. (p. 250) 23. From the above, it is apparent that law-making within certain limits is a legitimate element of a judge's role, if not inevitable. 7 A judge has to adjudicate and decide on the basis of legal provisions, which when indeterminate on a particular issue require elucidation and explanation. 8 This requires a judge to interpret the provisions to decide the case and, in this process, he may take recourse and rely upon fundamental ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring a plenitude of representations and resources as they have access to information, skills, expertise and knowledge of the people working within the institution and outside in the form of executive. 9 Process and method of legislation and judicial adjudication are entirely distinct. Judicial adjudication involves applying Rules of interpretation and law of precedents and notwithstanding deep understanding, knowledge and wisdom of an individual judge or the bench, it cannot be equated with law making in a democratic society by legislators given their wider and broader diverse polity. The Constitution states that legislature is supreme and has a final say in matters of legislation when it reflects on alternatives and choices with inputs from different quarters, with a check in the form of democratic accountability and a further check by the courts which exercise the power of judicial review. It is not for the judges to seek to develop new all-embracing principles of law in a way that reflects the stance and opinion of the individual judges when the society/legislators as a whole are unclear and substantially divided on the relevant issues 10 . In Bhim Singh v. Union of India ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made to some judgments of this Court in the following words: 43. In S.C. Chandra v. State of Jharkhand, it has been ruled that the judiciary should exercise restraint and ordinarily should not encroach into the legislative domain. In this regard, a reference to a three-Judge Bench decision in Suresh Seth v. Indore Municipal Corporation is quite instructive. In the said case, a prayer was made before this Court to issue directions for appropriate amendment in the M.P. Municipal Corporation Act, 1956. Repelling the submission, the Court held that it is purely a matter of policy which is for the elected representatives of the people to decide and no directions can be issued by the Court in this regard. The Court further observed that this Court cannot issue directions to the legislature to make any particular kind of enactment. In this context, the Court held that under our constitutional scheme, Parliament and Legislative Assemblies exercise sovereign power to enact law and no outside power or authority can issue a direction to enact a particular kind of legislation. While so holding, the Court referred to the decision in Supreme Court Employees' Welfare Assn. v. Union of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerns based upon separation of powers, lack of expertise and uncertainty of the consequences. 12 Same is the position in cases of gross environmental degradation and pollution. However, a mere allegation of violation of human rights or a plea raising environmental concerns cannot be the 'bright-line' to hold that self-restraint must give way to judicial legislation. Where and when court directions should be issued are questions and issues involving constitutional dilemmas that mandate a larger debate and discussion (see observations of Frankfurter J. as quoted in Asif Hameed and Ors. v. State of Jammu Kashmir and Ors. in foot note 15 supra). 28. Such directions must be issued with great care and circumspection and certainly not when the matter is already pending consideration and debate with the executive or Parliament. This is not a case which requires Court's intervention to give a suggestion for need to frame a law as the matter is already pending active consideration. Any direction at this stage would be interpreted as judicial participation in the enactment of law. This Court in Supreme Court Employees' Welfare Association v. Union of India and Anr. (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the state enactment after what was described as the plight of large population of non-agriculturist himachalis. Reference was made to Supreme Court Employees' Welfare Association (supra) that no writ of mandamus can be issued to the legislature to enact a particular legislation nor can such direction be issued to the executive which exercises the powers to make Rules in the nature of subordinate legislation. Reference was also made to V.K. Naswa (supra) wherein several earlier judgments were considered and it was held that the courts have a very limited role and, in its exercise, it is not open to make judicial legislation. Further, the courts do not have competence to issue directions to the legislature to enact a law in a particular manner. Reference was also made to the constitutional bench judgment in Manoj Narula v. Union of India (2014) 9 SCC 1 in which a discordant note struck by two judges in Gainda Ram and Ors. v. Municipal Corporation of Delhi and Ors. (2010) 10 SCC 715 was held to be contrary to the Constitution by observing that the decision whether or not Section 8 of the Representation of the People Act, 1951 should be amended is solely within the domain of P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition is well settled. Since the High Court has failed to notice it, we will briefly recapitulate the principles which emerge from the precedent on the subject. 7. In Mallikarjuna Rao v. State of A.P. and in V.K. Sood v. Deptt. of Civil Aviation this Court held that the court Under Article 226 has no power to direct the executive to exercise its law-making power. 8. In State of H.P. v. Parent of a Student of Medical College this Court deprecated the practice of issuing directions to the legislature to enact a law: (SCC p. 174, para 4) 4. ... The direction given by the Division Bench was really nothing short of an indirect attempt to compel the State Government to initiate legislation with a view to curbing the evil of ragging.... The same principle was followed in Asif Hameed v. State of J K where this Court observed that: (SCC p. 374, para 19) 19. ... The Constitution does not permit the court to direct or advise the executive in matter of policy or to sermonise qua any matter which under the Constitution lies within the sphere of the legislature or executive.... In Union of India v. Assn. for Democratic Reforms this Court observed that: (SCC p. 309, para 19) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed to be completed without any intervention of the Court. Any other view and any interference, at this juncture, would negate the basic constitutional principle that the legislature is supreme in the sphere of law-making. Reading down a statute to make it workable in a situation where an exercise of amendment of the law is pending, will not be justified either. A perception, however strong, of the imminent need of the law engrafted in the Act and its beneficial effects on the citizenry of a democratic country, by itself, will not permit the Court to overstep its jurisdiction. Judicial discipline must caution the Court against such an approach. 32. 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. In this connection, we may refer to the observation of Lord Bingham in Regina (Countryside Alliance) and Ors. v. Attorney General and Anr. (2008) 1 AC 719, though made in a different context, to the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd Operating Procedure, Clause (iv) under Heading D-Treaty Making Formalities which relates to ratification, states that where a treaty does not provide for its entry into force only upon its signature and makes it subject to ratification, the treaty requires ratification. In order to ensure that India is in a position to efficiently discharge all obligations emanating from treaties/agreements, such ratification should be undertaken only after relevant domestic clauses have been amended and the enabling legislations enacted when there is absence of domestic law on the subject. On the issue that the treaty making power is a political act, reference has been made to the following decisions: Union of India and Anr. v. Azadi Bachao Andolan and Anr. (2004) 10 SCC 1; Rosiline George v. Union of India and Ors. (1994) 2 SCC 80; Sakshi v. Union of India and Ors. (2004) 5 SCC 518; and P.B. Samant and Ors. v. Union of India and Ors. AIR 1994 Bom 323. 35. However, this is not to state that the courts would not step in, when required, to protect fundamental rights. It is indisputable that the right to life and the right to liberty are of foremost importance in a democratic state and, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revails. 37. We would take note of the judgment of this Court in D.K. Basu (supra) wherein the following directions/guidelines with respect to rights/custodial torture were issued: (1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by atleast one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g hurt to extort confession or to compel restoration of property' and 'voluntarily causing grievous hurt to extort confession or to compel restoration of property' respectively. 39. In terms of the aforesaid edicts, legal jurisprudence has developed for providing compensation for the unconstitutional deprivation of fundamental right to life and liberty as a public remedy in addition to claims in private law for damages by tortuous acts of public servants. In D.K. Basu (supra) the public law remedy for award of compensation was elucidated as arising from indefeasible rights guaranteed Under Article 21 and justified on the ground that the purpose of public law is not only to civilise public power but also to ensure that the citizens live under a legal system where their rights and interests are protected and preserved. 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. In S. Nambi Narayanan v. Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the executive branch do. 2Shri Prithvi Cotton Mills Ltd. and Anr. v. Broach Borough Municipality and Ors., (1969) 2 SCC 283 3Hart Publishing, 2009 4Oxford University Press, 1967 5David Dyzenhaus and Malcolm Thorburn (eds.), Philosophical Foundations of Constitutional Law (Oxford: Oxford University Press, 2016) 6Oxford University Press, 2009 7Lord Irvine: 'Activism and Restraint: Human Rights and Interpretative Process', (1999) 4 EHRLR 350 8Aileen Kavanagh: 'The Elusive Divide between Interpretation and Legislation under the Human Rights Act 1998' (2004) 24 Oxford Journal of Legal Studies, 259-285 9D. Kyritsis, Constitutional Review in a Representative Democracy (2012) 32 Oxford Journal of Legal Studies 10Lord Browne-Wilkinson in Airedale NHS Trust v. Bland [1993] AC 789 (p. 879-880) 11See observations of Lord Neuberger in Regina (Nicklinson) and Anr. v. Ministry of Justice and Ors. [2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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