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TMI Blog2019 (9) TMI 1601X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court may be pleased 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 vide its judgment 17th July 2018. 2. The Applicant had filed the above-captioned Writ Petition (Civil) No. 738 of 2016 Under Article 32 of the Constitution of India for an effective and purposive legislative framework/law based upon the 'Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment' ("UN Convention", for short) adopted by the United Nations General Assembly and opened for signature, ratification and accession on 10th December 1984. India 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, custodial torture still remains rampant and widespread in India. Our attention was drawn to the report of Asian Centre for Human Rights which was based, inter alia, on the information and data furnished by the Government of India in Parliament, acknowledging 1674 custodial deaths, including 1530 deaths in judicial custody and 144 deaths in police custody during the period 1st April 2017 to 28th February 2018. India has consistently and unequivocally condemned and deprecated custodial torture at international forums and has signed the UN Convention but the Government's reluctance to ratify the UN Convention, which envisages a comprehensive and standalone legislation, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Convention. 5. It may be noted here that the Applicant was the Chairperson of the Select Committee of the Rajya Sabha that had submitted the report on custodial torture depicting the need for a comprehensive standalone legislation. 6. Respondent No. 1-Union of India, in its response, has stated that the draft legislation prepared on the basis of the Law Commission's report is under active consideration and was referred to stakeholders, that is, the States and Union Territories for their inputs and suggestions. It was highlighted that the 'Criminal Laws' and the 'Criminal Procedure' fall in the Concurrent List of the Seventh Schedule to the Constitution 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he three branches have to respect the constitutional division and not disturb the allocation of roles and functions between the triad. Adherence to the constitutional scheme dividing the powers and functions is a guard and check against potential abuse of power and the Rule of law is secured when each branch observes the constitutional limitations to their powers, functions and roles. 10. Modern theory of separation of powers does not accept that the three branches perform mutually isolated roles and functions and accepts a need for coordinated institutional effort for good governance, albeit emphasises on benefits of division of power and labour by accepting the 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 decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... state legislature to make laws. At the same time, the political executive is accountable to the legislature and holds office till they enjoy the support and confidence of the legislature. Thus, there is interdependence, interaction and even commonality of personnel/members of the legislature and the executive. The executive, therefore, performs multi-functional role and is not monolithic. Notwithstanding this multifunctional and pervasive role, the constitutional scheme ensures that within this interdependence, there is a degree of separation that acts as a mechanism to check interference and protect the non-political executive. Part XIV of the Constitution relates 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 ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I.R. Coelho (Dead) by L.Rs. v. State of Tamil Nadu (2007) 2 SCC 1 and State of Tamil Nadu v. State of Kerala (2014) 12 SCC 696 have uniformly ruled that the doctrine of separation of powers, though not specifically engrafted, is constitutionally entrenched and forms part of the basic structure as its sweep, operation and visibility are apparent. Constitution has made demarcation, without drawing formal lines, amongst the three organs with the duty of the judiciary to scrutinise the limits and whether or not the limits have been transgressed. These judgments refer to the constitutional scheme incorporating checks and balances. As a sequitur, the doctrine 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omes within the conception of judicial restraint. The principle of judicial restraint requires that Judges ought to decide cases while being within their defined limits of power. Judges are expected to interpret any law or any provision of the Constitution as per the limits laid down by the Constitution. Earlier, Dipak Misra, CJ had observed: 39. From the above authorities, it is quite vivid that the concept of constitutional limitation is a facet of the doctrine of separation of powers. At this stage, we may clearly state that there can really be no straitjacket approach in the sphere of separation of powers when issues involve democracy, 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. Chan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice the evolution of separation of powers doctrine, traditionally the checks and balances dimension was only associated with governmental excesses and violations. But in today's world of positive rights and justifiable social and economic entitlements, hybrid administrative bodies, private functionaries discharging public functions, we have to perform the oversight function with more urgency and enlarge the field of checks and balances to include governmental inaction. Otherwise we envisage the country getting transformed into a state of repose. Social engineering as well as institutional engineering therefore 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cies and administers the law. The judiciary decides and adjudicates upon disputes in the course of which facts are proved and the law is applied. The distinction between the legislative function and judicial functions is enhanced by the basic structure doctrine. The legislature is constitutionally entrusted with the power to legislate. Courts are not entrusted with the power to enact law. Yet, in a constitutional democracy which is founded on the supremacy of the Constitution, it is an accepted principle of jurisprudence that the judiciary has the authority to test the validity of legislation. Legislation can 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 sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reference in this regard can be made to the opinion expressed by F.M. Ibrahim Kalifulla, J. in Union of India v. V. Sriharan alias Murugan and Others (2016) 7 SCC 1 who had, in the context of capital punishment for offences Under Section 302 of the Indian Penal Code ("IPC", for short), held that the lawmakers have entrusted the task of weighing and measuring the gravity of the offence with the institution of judiciary by reposing a very high amount of confidence and trust. It requires a judge to apply his judicial mind after weighing the pros and cons of the crime committed in the golden scales to ensure 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Transgressing Borders and Enforcing Limits," evaluating the legitimacy of judicial activism, wherein it was observed: Directions are either issued to fill in the gaps in the legislation or to provide for matters that have not been provided by any legislation. The Court has taken over the legislative function not in the traditional interstitial sense but in an overt manner and has justified it as being an essential component of its role as a constitutional court. (p. 242) In a strict sense these are instances of judicial excessivism that fly in the face of the doctrine of separation of powers. 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 expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld apply in a particular case. In this manner, they complete the law formulated by the legislature by applying it. This power of interpretation or the power of judicial review is exercised post the enactment of law, which is then made subject matter of interpretation or challenge before the courts. 24. Legislature, as an institution and a wing of the Government, is a microcosm of the bigger social community possessing qualities of a democratic institution in terms of composition, diversity and accountability. Legislature uses in-built procedures carefully designed and adopted to bring 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 stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emendous responsibility by the courts. Thus, while exercising the interpretative power, the courts can draw strength from the spirit and propelling elements underlying the Constitution to realise the constitutional values but must remain alive to the concept of judicial restraint which requires the judges to decide cases within defined limits of power. Thus, the courts would not accept submissions and pass orders purely on a matter of policy or formulate judicial legislation which is for the executive or elected representatives of the people to enact. Reference was 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature, even if assumably contrary to the directions or guidelines issued by the Court, cannot be struck down by reason of the directions/guidelines; it can be struck down only if it violates the fundamental rights or the right to equality Under Article 14 of the Constitution. These are extraordinary cases where notwithstanding the institutional reasons and the division of power, this Court has laid down general rules/guidelines when there has been a clear, substantive and gross human rights violation, which significantly outweighed and dwarfed any legitimising concerns 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive in matters of policy. Parliament, as the legislature, exercises this power to enact a law and no outside authority can issue a particular piece of legislation. It is only in exceptional cases where there is a vacuum and non-existing position that the judiciary, in exercise of its constitutional power, steps in and provides a solution till the legislature comes forward to perform its role. 30. In State of Himachal Pradesh and Ors. v. Satpal Saini (2017) 11 SCC 42, this Court had overturned the directions given by the High Court to amend provisions 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. Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tations imposed upon the power of judicial review Under Article 226 by issuing the above directions to the State Legislature to amend the law. The Government owes a collective responsibility to the State Legislature. The State Legislature is comprised of elected representatives. The law enacting body is entrusted with the power to enact such legislation as it considers necessary to deal with the problems faced by society and to resolve issues of concern. The courts do not sit in judgment over legislative expediency or upon legislative policy. This position 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e; the report prepared along with further steps that are required to be taken and the time-frame thereof are essential legislative functions which should not be ordinarily subjected to interference or intervention of the Court. The constitutional doctrine of separation of powers and the demarcation of the respective jurisdiction of the Executive, the Legislature and the Judiciary under the constitutional framework would lead the Court to the conclusion that the exercise of the amendment of the Act, which is presently underway, must be allowed 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. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quire consultation with the State Governments/Union Territories and subsequent deliberation of their comments by the Union of India. Union of India has pointed out that they have a reservation on Article 20 of the UN Convention. Reference is also made to the Vienna Convention on the Law of Treaties, 1969, to which India is not a party but which provisions are reflected in the Standard Operating Procedure issued by the Ministry of External Affairs in respect of Memorandum of Understanding/Agreement with foreign countries. The Standard 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 bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limited liberty is precious and it is the duty of the State to ensure that even a person in custody is dealt with in accordance with the procedure established by law. In the State of Madhya Pradesh v. Shyamsunder Trivedi and Ors. (1995) 4 SCC 262 this Court had highlighted that a sensitive and realistic rather than a narrow technical approach is required while dealing with cases of custodial crime. The court must act within its powers and as far as possible try that the guilty should not escape to ensure that the Rule of law prevails. 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 witne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not throughout the interrogation. (11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. 38. The law in this regard is also laid down in Sections 330 and 331 of the Indian Penal Code which relate to 'voluntarily causing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail to disregard one's own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the court's giving effect 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 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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