REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

MISCELLANEOUS APPLICATION NO. 2560 OF 2018

IN

WRIT PETITION (CIVIL) NO. 738 OF 2016

DR. ASHWANI KUMAR ….. APPLICANT(S)

VERSUS

UNION OF INDIA AND ANOTHER ….. RESPONDENT(S)

O R D E R

SANJIV KHANNA, J.

This order would dispose of Miscellaneous Application No.

2560 of 2018 filed by Dr. Ashwani Kumar, applicant in-person, who

is a senior advocate and a former Law Minister and Member of

Parliament, praying for the following relief:

“In the aforesaid premises, it is therefore respectfully

prayed that since no action has been taken by the

Government pursuant to the statement of the Hon’ble

Attorney General, the stand taken by the National

Human Rights Commission and the Law Commission

of India in its report of October 2017 and because the

merit of the prayer is virtually admitted and conceded

before this Hon’ble Court, the National Human Rights

Commission, the Law Commission of India and by

Select Committee of Parliament, as an integral

constituent of the right to life with dignity under Article

21, this Hon’ble Court may be pleased to direct the

Central Government to enact a suitable stand-alone,

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 1 of 48

comprehensive legislation against custodial torture as

it has directed in the case of mob violence/lynching

vide its judgment 17

th

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 10

th

December 1984. India

had signed the UN Convention on 14

th

October 1997. However,

India has not ratified the UN Convention.

3.Writ Petition (Civil) No. 738 of 2016 was disposed of vide order

dated 27

th

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

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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

1

custodial torture and violence was described as a wound

inflicted on the soul, so painful and paralysing that it engenders

fear, rage, hatred and despair, and denigrates the individual. In

Sunil Batra v. Delhi Administration and Others

2

, this Court had

observed that the prisoners have enforceable liberties, though

devalued but never demonetised and, therefore, it is within the

jurisdictional reach and range of this Court’s writ to deal with prison

and police caprice and cruelty. Similarly, in Francis Coralie Mullin

v. Administrator, Union Territory of Delhi and Others

3

, this

Court had observed that torture in any form is inhuman, degrading

and offensive to human dignity and constitutes an inroad into the

right to life and is prohibited by Article 21 of the Constitution, for no

law authorises and no procedure permits torture or cruelty,

inhuman or degrading treatment. Reference was made to Article 5

of the Universal Declaration of Human Rights and Article 7 of the

International Covenant on Civil and Political Rights which prohibits

torture in all forms in absolute terms. Recently, in K.S.

Puttaswamy and Another v. Union of India and Others

4

this

1

(1997) 1 SCC 416

2

(1978) 4 SCC 494

3

(1981) 1 SCC 608

4

(2017) 10 SCC 1

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Court had once again emphased on the right to human dignity

which, first and foremost, means the dignity of each human being

‘as a human being’. When human dignity in a person’s life is

infringed and physical or mental welfare is negated and harmed,

the Court would intervene to protect and safeguard constitutional

values. Reference was also made to the decision in Romila

Thapar and Others v. Union of India and Others

5

claiming that

despite existing law and repeated judicial decisions, 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 1

st

April 2017 to 28

th

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

5

(2018) 10 SCC 753

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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 2

th

December 2010 and repeated commitments made by the Indian

Government. Reference was made to Tehseen S. Poonawalla v.

Union of India and Others

6

wherein this Court had highlighted the

need for enactment of a suitable legislation to deal with mob

violence/lynching in the country. Reliance was placed on

judgments of this Court in Vishaka and Others v. State of

Rajasthan and Others

7

, Vineet Narain and Others v. Union of

6

(2018) 9 SCC 501

7

(1997) 6 SCC 241

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India and Another

8

, Destruction of Public and Private

Properties, In RE v. State of Andhra Pradesh and Others

9

,

Lakshmi Kant Pandey v. Union of India

10

, State of West Bengal

and Others v. Sampat Lal and Others

11

, K. Veeraswami v.

Union of India and Others

12

and Delhi Judicial Service

Association, Tis Hazari Court, Delhi v. State of Gujarat and

Others

13

. While referring to Mahender Chawla and Others v.

Union of India and Others

14

, and other decisions including

Tehseen S. Poonawalla (supra), it was argued that this Court has

not flinched from suggesting, recommending, advising, guiding and

directing the Government of India with respect to statutory

enactments. It was submitted that the delay and inaction in

implementing the constitutional obligation relates back to the year

1997 when India had signed the UN Convention, but the

Government has failed to enact a comprehensive legislation

despite commitments and recommendations made and noticed

above. This, it was submitted, reflects unreasonable and

unacceptable conduct of the Government in shielding infringement

of Article 21 and violates Article 14 of the Constitution of India.

Thus, the Court may issue directions to the Union of India to enact

8

(1998) 1 SCC 226

9

(2009) 5 SCC 212

10

(1984) 2 SCC 244

11

(1985) 1 SCC 317

12

(1991) 3 SCC 655

13

(1991) 4 SCC 406

14

(2018) SCC Online 2679

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a law dealing with custodial torture in terms of the U.N.

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 27

th

June 2018, 27

th

November

2018 and 20

th

December 2018. Subsequent affidavit dated 12

th

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

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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 governing the field as interpreted by the

Courts apply in matters of custodial torture.

7.We have in addition to Dr. Ashwani Kumar and Mr. K.K. Venugopal,

learned Attorney General of India, heard Mr. Colin Gonsalves,

senior advocate and amicus curiae, and Ms. Shobha Gupta,

counsel for the National Human Rights Commission, the second

respondent before us.

8.At the outset, we must clarify that by the present order, we would

be deciding a very limited controversy, viz. the prayer of the

applicant that this Court should direct Parliament to enact a

standalone and comprehensive legislation against custodial torture

based on the UN Convention. The prayer made requires the Court

to examine and answer the question that whether within the

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constitutional scheme, this Court can and should issue any

direction to the Parliament to enact a new law based on the UN

Convention.

9.Classical or pure theory of rigid separation of powers as advocated

by Montesquieu which forms the bedrock of the American

Constitution is clearly inapplicable to parliamentary form of

democracy as it exists in India and Britain, for the executive and

legislative wings in terms of the powers and functions they exercise

are linked and overlap and the personnel they equip are to an

extent common. However, unlike Britain, India has a written

Constitution, which is supreme and adumbrates as well as divides

powers, roles and functions of the three wings of the State – the

legislature, the executive and the judiciary. These divisions are

boundaries and limits fixed by the Constitution to check and

prevent transgression by any one of the three branches into the

powers, functions and tasks that fall within the domain of the other

wing. The 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.

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 9 of 48

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 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.

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 10 of 48

It checks concentration of power in a particular branch or an

institution.

11.The legislature as an elected and representative body enacts laws

to give effect to and fulfil democratic aspirations of the people. The

procedures applied are designed to give careful thought and

consideration to wide and divergent interests, voices and all

shades of opinion from different social and political groups.

Legislature functions as a deliberative and representative body. It is

directly accountable and answerable to the electorate and citizens

of this country. This representativeness and principle of

accountability is what gives legitimacy to the legislations and laws

made by Parliament or the state legislatures. Article 245 of the

Constitution empowers Parliament and the state legislatures to

enact laws for the whole or a part of the territory of India, and for

the whole or a part of the State respectively, after due debate and

discussion in Parliament/ the state assembly.

12.The executive has the primary responsibility of formulating

government policies and proposing legislations which when passed

by the legislature become laws. By virtue of Articles 73 and 162 of

the Constitution, the powers and functions of the executive are

wide and expansive, as they cover matters in respect of which

Parliament/state legislature can make laws and vests with the

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executive the authority and jurisdiction exercisable by the

Government of India or the State Government, as the case may be.

As a delegate of the legislative bodies and subject to the terms of

the legislation, the executive makes second stage laws known as

‘subordinate or delegated legislation’. In fields where there is no

legislation, the executive has the power to frame policies,

schemes, etc., which is co-extensive with the power of Parliament

or the 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

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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 checks and curbs violation of the

Constitution by the Government when they overstep their

constitutional limits, violate the basic structure of the Constitution,

infringe fundamental rights or act contrary to law. Power of judicial

review has expanded taking within its ambit the concept of social

and economic justice. Yet, while exercising this power of judicial

review, the courts do not encroach upon the field marked by the

Constitution for the legislature and the executive, as the courts

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examine legality and validity of the legislation or the governmental

action, and not the wisdom behind the legislative measure or

relative merits or demerits of the governmental action. Neither does

the Constitution permit the courts to direct, advise or sermonise

others in the spheres reserved for them by the Constitution,

provided the legislature or the executive do not transgress their

constitutional limits or statutory conditions. Referring to the phrase

“all power is of an encroaching nature”, which the judiciary checks

while exercising the power of judicial review, it has been observed

15

that the judiciary must be on guard against encroaching beyond its

bounds since the only restraint upon it is the self-imposed

discipline of self-restraint. Independence and adherence to

constitutional accountability and limits while exercising the power of

judicial review gives constitutional legitimacy to the court decisions.

This is essence of the power and function of judicial review that

strengthens and promotes the rule of law.

15

Asif Hameed & Others v. State of Jammu & Kashmir & Others, 1989 Supp. (2) SCC 364 quoting

with approval dissenting opinion of Frankfurter J. in Trop v. Dulles. Frankfurter J. had observed:

“Rigorous observance of the difference between limits of power and wise exercise of

power — between questions of authority and questions of prudence — requires the

most alert 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.”

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 14 of 48

14.Constitutional Bench judgments in His Holiness Kesavananda

Bharati Sripadagalvaru v. State of Kerala and Another

16

, State

of Rajasthan and Others v. Union of India and Others

17

, I.R.

Coelho (Dead) by LRs. v. State of Tamil Nadu

18

and State of

Tamil Nadu v. State of Kerala

19

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.

20

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.

16

(1973) 4 SCC 225

17

(1977) 3 SCC 592

18

(2007) 2 SCC 1

19

(2014) 12 SCC 696

20

Shri Prithvi Cotton Mills Ltd. and Another v. Broach Borough Municipality and Others, (1969) 2

SCC 283

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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 Others

21

, 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, thus, each branch must oblige the other by

not stepping beyond its territory.

16.In Kalpana Mehta and Others v. Union of India and Others

22

, Mr.

Justice Dipak Misra, the then Chief Justice of India, under the

headings ‘Supremacy of the Constitution’, ‘Power of judicial review’

and ‘Doctrine of separation of powers’, has held that the

Constitution is a supreme fundamental law which requires that all

laws, actions and decisions of the three organs should be in

consonance and in accord with the constitutional limits, for the

21

(2017) 7 SCC 59

22

(2018) 7 SCC 1

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 16 of 48

legislature, the executive and the judiciary derive their authority

and jurisdiction from the Constitution. Legislature stands vested

with an exclusive authority to make laws thereby giving it a

supremacy in the field of legislation and law-making, yet this power

is distinct from and not at par with the supremacy of the

Constitution, as:

“41. This Court has the constitutional power and the

authority to interpret the constitutional provisions as

well as the statutory provisions. The conferment of the

power of judicial review has a great sanctity as the

constitutional court has the power to declare any law

as unconstitutional if there is lack of competence of the

legislature keeping in view the field of legislation as

provided in the Constitution or if a provision

contravenes or runs counter to any of the fundamental

rights or any constitutional provision or if a provision is

manifestly arbitrary.”

17. Having said so, Dipak Misra, CJ went on to observe:

“42. When we speak about judicial review, it is also

necessary to be alive to the concept of judicial

restraint. The duty of judicial review which the

Constitution has bestowed upon the judiciary is not

unfettered; it comes 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

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 17 of 48

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’

23

, M.J.C. Vile’s

book titled ‘Constitutionalism and the Separation of Powers’

24

,

Aileen Kavanagh in her work ‘The Constitutional Separation of

Powers’

25

and Eoin Carolan in his book titled ‘The New Separation

of Powers – A Theory for the Modern State’

26

. These authors in the

context of modern administrative State have reconstructed the

doctrine as consisting of two components: ‘division of labour’ and

‘checks and balances’, instead of isolated compartmentalisation, by

highlighting the need of interaction and interdependence amongst

the three organs in a way that each branch is in cooperative

23

Hart Publishing, 2009

24

Oxford University Press, 1967

25

David Dyzenhaus and Malcolm Thorburn (eds.), Philosophical Foundations of Constitutional Law

(Oxford: Oxford University Press, 2016)

26

Oxford University Press, 2009

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 18 of 48

engagement but at the same time acts, when necessary, to check

on the other and that no single group of people are able to control

the machinery of the State. Independent judiciary acts as a

restraining influence on the arbitrary exercise of power.

19.Referring to the functional doctrine, D.Y. Chandrachud, J., had

cited the following judgements:

“249. In State of U.P. v. Jeet S. Bisht, the Court held

that the doctrine of separation of powers limits the

“active jurisdiction” of each branch of Government.

However, even when the active jurisdiction of an organ

of the State is not challenged, the doctrine allows for

methods to be used to prod and communicate to an

institution either its shortfalls or excesses in

discharging its duty. The Court recognised that

fundamentally, the purpose of the doctrine is to act as

a scheme of checks and balances over the activities of

other organs. The Court noted that the modern

concept of separation of powers subscribes to the

understanding that it should not only demarcate the

area of functioning of various organs of the State, but

should also, to some extent, define the minimum

content in that delineated area of functioning. S.B.

Sinha, J. addressed the need for the doctrine to

evolve, as administrative bodies are involved in the

dispensation of socio-economic entitlements: (SCC p.

619, para 83)

“83. If we notice 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

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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 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 independence.”

20.Thereafter, D.Y. Chandrachud, J. had observed:

“254. While assessing the impact of the separation of

powers upon the present controversy, certain precepts

must be formulated. Separation of powers between the

legislature, the executive and the judiciary is a basic

feature of the Constitution. As a foundational principle

which is comprised within the basic structure, it lies

beyond the reach of the constituent power to amend. It

cannot be substituted or abrogated. While recognising

this position, decided cases indicate that the Indian

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 20 of 48

Constitution does not adopt a separation of powers in

the strict sense. Textbook examples of exceptions to

the doctrine include the power of the executive to

frame subordinate legislation, the power of the

legislature to punish for contempt of its privileges and

the authority entrusted to the Supreme Court and the

High Courts to regulate their own procedures by

framing rules. In making subordinate legislation, the

executive is entrusted by the legislature to make

delegated legislation, subject to its control. The rule-

making power of the higher judiciary has trappings of a

legislative character. The power of the legislature to

punish for contempt of its privileges has a judicial

character. These exceptions indicate that the

separation doctrine has not been adopted in the strict

form in our Constitution. But the importance of the

doctrine lies in its postulate that the essential functions

entrusted to one organ of the State cannot be

exercised by the other. By standing against the

usurpation of constitutional powers entrusted to other

organs, separation of powers supports the rule of law

and guards against authoritarian excesses.

255. Parliament and the State Legislatures legislate.

The executive frames policies 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 simple reason that all

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 21 of 48

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 takes away the basis of the judgment (as

opposed to merely invalidating it) is permissible and

does not constitute a violation of the separation

doctrine. That indeed is the basis on which validating

legislation is permitted.

256. This discussion leads to the conclusion that while

the separation of powers, as a principle, constitutes the

cornerstone of our democratic Constitution, its

application in the actual governance of the polity is

nuanced. The nuances of the doctrine recognise that

while the essential functions of one organ of the State

cannot be taken over by the other and that a sense of

institutional comity must guide the work of the

legislature, executive and judiciary, the practical

problems which arise in the unfolding of democracy

can be resolved through robust constitutional cultures

and mechanisms. The separation doctrine cannot be

reduced to its descriptive content, bereft of its

normative features. Evidently, it has both normative

and descriptive features. In applying it to the Indian

Constitution, the significant precept to be borne in mind

is that no institution of governance lies above the

Constitution. No entrustment of power is absolute.”

21.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.

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 22 of 48

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.

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

27

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:

27

(2016) 7 SCC 1

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 23 of 48

“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

28

had, while interpreting Articles 21, 32, 141 and 142 of

the Constitution, held that prescribing period at which criminal trial

would terminate resulting in acquittal or discharge of the accused,

or making such directions applicable to all cases in present or in

future, would amount to judicial law-making and cannot be done by

judicial directives. It was observed that the courts can declare the

law, interpret the law, remove obvious lacuna and fill up the gaps,

but they cannot entrench upon the field of legislation. The courts

can issue appropriate and binding directions for enforcing the laws,

lay down time limits or chalk out a calendar for the proceeding to

follow to redeem the injustice and for taking care of the rights

violated in the given case or set of cases depending on the facts

brought to the notice of the court, but cannot lay down and enact

the provisions akin to or on the lines of Chapter XXXVI of the Code

28

(2002) 4 SCC 578

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 24 of 48

of Criminal Procedure, 1973. Drawing distinction between

legislation as the source of law which consists of declaration of

legal rules by a competent authority and judicial decisions

pronounced by the judges laying down principles of general

application, reference was made to Salmond on Principles of

Jurisprudence (12

th

Edition) which says:

“we must distinguish law-making by legislators

from law-making by the courts. Legislators can lay

down rules purely for the future and without reference

to any actual dispute; the courts, insofar as they create

law, can do so only in application to the cases before

them and only insofar as is necessary for their solution.

Judicial law-making is incidental to the solving of legal

disputes; legislative law-making is the central function

of the legislator.”

Reference was also made to Professor S. P Sathe’s work on

“Judicial Activism in India ─ 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

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 25 of 48

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.

29

A judge

has to adjudicate and decide on the basis of legal provisions, which

when indeterminate on a particular issue require elucidation and

explanation.

30

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.

Aileen Kavanagh, in explaining the aforesaid position, had

observed:

“...If there has not been a case in point and the judge

has to decide on the basis of legal provisions which

may be indeterminate on the issue, then the judge

cannot decide the case without making new law...This

is because Parliament has formulated the Act in broad

terms, which inevitably require elaboration by the

courts in order to apply it to the circumstances of each

new case. Second, even in cases where judges apply

29

Lord Irvine: ‘Activism and Restraint: Human Rights and Interpretative Process’, (1999) 4 EHRLR

350

30

Aileen Kavanagh: ‘The Elusive Divide between Interpretation and Legislation under the Human

Rights Act 1998’ (2004) 24 Oxford Journal of Legal Studies, 259–285

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 26 of 48

existing law, they cannot avoid facing the question of

whether to change and improve it.... Interpretation has

an applicative and creative aspect.”

Legislating or law-making involves a choice to prioritise

certain political, moral and social values over the others from a

wide range of choices that exist before the legislature. It is a

balancing and integrating exercise to give expression/meaning to

diverse and alternative values and blend it in a manner that it is

representative of several viewpoints so that it garners support from

other elected representatives to pass institutional muster and

acceptance. Legislation, in the form of an enactment or laws, lays

down broad and general principles. It is the source of law which the

judges are called upon to apply. Judges, when they apply the law,

are constrained by the rules of language and by well identified

background presumptions as to the manner in which the legislature

intended the law to be read. Application of law by the judges is not

synonymous with the enactment of law by the legislature. Judges

have the power to spell out how precisely the statute would 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.

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 27 of 48

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.

31

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

31

D. Kyritsis, Constitutional Review in a Representative Democracy (2012) 32 Oxford Journal of Legal

Studies

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 28 of 48

substantially divided on the relevant issues

32

. In Bhim Singh v.

Union of India

33

, while observing that the Constitution does not

strictly prohibit overlapping of functions as this is inevitable in the

modern parliamentary democracy, the Constitution prohibits

exercise of functions of another branch which results in wresting

away of the regime of constitutional accountability. Only when

accountability is preserved, there will be no violation of principle of

separation of powers. Constitution not only requires and mandates

that there should be right decisions that govern us, but equal care

has to be taken that the right decisions are made by the right body

and the institution. This is what gives legitimacy, be it a legislation,

a policy decision or a court adjudication.

25.It is sometimes contended with force that unpopular and difficult

decisions are more easily grasped and taken by the judges rather

than by the other two wings. Indeed, such suggestions were

indirectly made. This reasoning is predicated on the belief that the

judges are not directly accountable to the electorate and, therefore,

enjoy the relative freedom from questions of the moment, which

enables them to take a detached, fair and just view.

34

The position

that judges are not elected and accountable is correct, but this

32

Lord Browne-Wilkinson in Airedale NHS Trust v. Bland [1993] AC 789 (p. 879-880)

33

(2010) 5 SCC 538

34

See observations of Lord Neuberger in Regina (Nicklinson) and Another v. Ministry of Justice and

Others [2014] UKSC 38

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 29 of 48

would not justify an order by a court in the nature of judicial

legislation for it will run afoul of the constitutional supremacy and

invalidate and subvert the democratic process by which legislations

are enacted. For the reasons stated above, this reasoning is

constitutionally unacceptable and untenable.

26.Dipak Misra, CJ in Kalpana Mehta’s case, under the heading

‘Power of judicial review’ had examined several judgments of this

Court to reflect upon the impressive expanse of judicial power in

the superior courts that requires and demands exercise of

tremendous 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

Corpn. is quite instructive. In the said case, a prayer

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 30 of 48

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 India wherein it was held that no court can

direct a legislature to enact a particular law and

similarly when an executive authority exercises a

legislative power by way of a subordinate legislation

pursuant to the delegated authority of a legislature,

such executive authority cannot be asked to enact a

law which it has been empowered to do under the

delegated authority.”

27.It can be argued that there have been occasions when this Court

has ‘legislated’ beyond what can be strictly construed as pure

interpretation or judicial review but this has been in cases where

the constitutional courts, on the legitimate path of interpreting

fundamental rights, have acted benevolently with an object to

infuse and ardently guard the rights of individuals so that no person

or citizen is wronged, as has been observed in paragraph 46 of the

judgment of Dipak Misra, CJ in Kalpana Mehta’s case. Secondly,

these directions were given subject to the legislature enacting the

law and merely to fill the vacuum until the legislative takes upon it

to legislate. These judgments were based upon gross violations of

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 31 of 48

fundamental rights which were noticed and in view of the vacuum

or absence of law/guidelines. The directions were interim in nature

and had to be applied till Parliament or the state legislature would

enact and were a mere stop-gap arrangement. These guidelines

and directions in some cases as in the case of Vishaka (supra)

had continued for long till the enactment of ‘The Sexual

Harassment of Women at Workplace (Prevention, Prohibition and

Redressal) Act, 2013’ because the legislature (it would also include

the executive) impliedly and tacitly had accepted the need for the

said legislation even if made by the judiciary without enacting the

law. Such law when enacted by Parliament or the state legislature,

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

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 32 of 48

consequences.

35

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 & Others v. State of Jammu & Kashmir & Others 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

Another

36

had directed that no court can direct the legislature to

enact a particular law. Similarly, when an executive authority

35

See Aileen Kavanagh, Judicial Restraint in the Pursuit of Justice (2009) University of Oxford Legal

Research Paper Series

36

(1989) 4 SCC 187

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 33 of 48

exercises the legislative power by way of subordinate legislation

pursuant to delegatory authority of the legislature, such executive

authority cannot be asked to enact a law which it has been

empowered to do under delegated authority. Again, we would

quote from Dipak Misra, CJ in Kalpana Mehta’s case, in which it

was observed:

“44. Recently, in Census Commr. v. R. Krishnamurthy,

the Court, after referring to Premium Granites v. State

of T.N., M.P. Oil Extraction v. State of M.P., State of

M.P. v. Narmada Bachao Andolan and State of Punjab

v. Ram Lubhaya Bagga, held: (R. Krishnamurthy case,

SCC p. 809, para 33)

“33. From the aforesaid pronouncement of

law, it is clear as noonday that it is not within

the domain of the courts to embark upon an

enquiry as to whether a particular public

policy is wise and acceptable or whether a

better policy could be evolved. The court can

only interfere if the policy framed is

absolutely capricious or not informed by

reasons or totally arbitrary and founded ipse

dixit offending the basic requirement of

Article 14 of the Constitution. In certain

matters, as often said, there can be opinions

and opinions (sic) but the court is not

expected to sit as an appellate authority on

an opinion.”

29.In V.K. Naswa v. Home Secretary, Union of India and Others

37

,

this Court in clear and categoric terms had observed that we do not

issue directions to the legislature directly or indirectly and any such

directions if issued would be improper. It is outside the power of

judicial review to issue directions to the legislature to enact a law in

37

(2012) 2 SCC 542

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 34 of 48

a particular manner, for the Constitution does not permit the courts

to direct and advice the executive 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 Others v. Satpal Saini

38

, 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. Further, the courts do not have competence to issue

38

(2017) 11 SCC 42

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 35 of 48

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

39

in which a discordant note struck

by two judges in Gainda Ram and Others v. Municipal

Corporation of Delhi and Others

40

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 Parliament and, therefore,

no directions can be issued by this Court. It was observed:

“6. The grievance, in our view, has a sound

constitutional foundation. The High Court has while

issuing the above directions acted in a manner

contrary to settled limitations on the power of judicial

review under Article 226 of the Constitution. A

direction, it is well settled, cannot be issued to the

legislature to enact a law. The power to enact

legislation is a plenary constitutional power which is

vested in Parliament and the State Legislatures under

Articles 245 and 246 of the Constitution. The

legislature as the repository of the sovereign legislative

power is vested with the authority to determine

whether a law should be enacted. The doctrine of

separation of powers entrusts to the court the

constitutional function of deciding upon the validity of a

law enacted by the legislature, where a challenge is

brought before the High Court under Article 226 (or this

Court under Article 32) on the ground that the law lacks

in legislative competence or has been enacted in

violation of a constitutional provision. But judicial

review cannot encroach upon the basic constitutional

function which is entrusted to the legislature to

determine whether a law should be enacted. Whether

a provision of law as enacted subserves the object of

the law or should be amended is a matter of legislative

policy. The court cannot direct the legislature either to

39

(2014) 9 SCC 1

40

(2010) 10 SCC 715

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 36 of 48

enact a law or to amend a law which it has enacted for

the simple reason that this constitutional function lies in

the exclusive domain of the legislature. For the Court

to mandate an amendment of a law — as did the

Himachal Pradesh High Court — is a plain usurpation

of a power entrusted to another arm of the State.

There can be no manner of doubt that the High Court

has transgressed the limitations 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 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

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 37 of 48

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)

“19. … it is not possible for this Court to give

any directions for amending the Act or the

statutory Rules. It is for Parliament to amend

the Act and the Rules.”

xx xx xx

12. The judiciary is one amongst the three branches of

the State; the other two being the executive and the

legislature. Each of the three branches is co-equal.

Each has specified and enumerated constitutional

powers. The judiciary is assigned with the function of

ensuring that executive actions accord with the law

and that laws and executive decisions accord with the

Constitution. The courts do not frame policy or

mandate that a particular policy should be followed.

The duty to formulate policies is entrusted to the

executive whose accountability is to the legislature

and, through it, to the people. The peril of adopting an

incorrect policy lies in democratic accountability to the

people. This is the basis and rationale for holding that

the court does not have the power or function to direct

the executive to adopt a particular policy or the

legislature to convert it into enacted law. It is wise to

remind us of these limits and wiser still to enforce them

without exception.”

31.Even more direct on the facts of the present case would be

judgement by one of us, (Mr. Justice Ranjan Gogoi, the Chief

Justice), in Common Cause: A Registered Society v. Union of

India

41

to the following effect:

“18. There can be no manner of doubt that the

parliamentary wisdom of seeking changes in an

existing law by means of an amendment lies within the

exclusive domain of the legislature and it is not the

41

(2017) 7 SCC 158

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 38 of 48

province of the Court to express any opinion on the

exercise of the legislative prerogative in this regard.

The framing of the Amendment Bill; reference of the

same to the Parliamentary Standing Committee; the

consideration thereof by the said Committee; 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.”

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 Others v. Attorney General

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 39 of 48

and Another

42

, though made in a different context, to the following

effect:

“...The democratic process is liable to be subverted if,

on a question of moral and political judgment,

opponents of the Act achieve through the courts what

they could not achieve in Parliament.”

33.Confronted with the present situation, Mr. Colin Gonsalves, learned

amicus curiae, had submitted that directions can be given to the

executive to ratify the UN Convention. We do not think that any

such direction can be issued for it would virtually amount to issuing

directions to enact laws in conformity with the UN Convention, a

power which we do not ‘possess’, while exercising power of judicial

review.

34.Mr. K.K. Venugopal, learned Attorney General, in his submissions

has rightly urged that Article 253 of the Constitution which deals

with the legislation for giving effect to international agreements,

confers power on Parliament to make laws for the whole or any

part of the territory of India for implementing any treaty, agreement

or convention, notwithstanding anything contained in the foregoing

provisions of Chapter XI of the Constitution. Thus, notwithstanding

Articles 245 and 246 of the Constitution, Parliament has the

supreme power to make laws for implementing any treaty or

42

(2008) 1 AC 719

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 40 of 48

convention which may even encroach upon the exclusive

legislative competence of the States. The executive action under

Article 73 of signing and ratifying the convention can be

implemented without any violation of the State’s right when the

legislation is passed by the Parliament under Article 253. ‘Police’

and ‘Prisons’ are State subjects. Ratification of the UN Convention

would require enactment of laws under Article 253 of the

Constitution, for mere ratification would not affect and undo the

existing laws or result in the enactment of new laws. Ratification,

as is well recognised, is a political act and would require

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

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 41 of 48

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 Another v. Azadi Bachao Andolan and

Another

43

; Rosiline George v. Union of India and Others

44

;

Sakshi v. Union of India and Others

45

; and P.B. Samant and

Others v. Union of India and Others

46

.

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, therefore, any form of torture would violate

the right to life and is prohibited by Article 21 of the Constitution.

Such action would be unconstitutional under Article 21 and would

fail the test of non-arbitrariness under Article 14 of the Constitution.

Indeed, the courts have been at the forefront in protecting and

safeguarding individual rights. In 1982, on the basis of a letter

43

(2004) 10 SCC 1

44

(1994) 2 SCC 80

45

(2004) 5 SCC 518

46

AIR 1994 Bom 323

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 42 of 48

written by a journalist complaining of custodial violence suffered by

women prisoners in police lock-ups in the city of Bombay, this

Court in Sheela Barse v. State of Maharashtra

47

had issued the

guidelines to safeguard the rights of arrested persons including

female prisoners to afford them protection in police lock-ups from

possible torture or ill-treatment. A person detained in a prison is

entitled to live with human dignity and his detention in prison

should be regulated by a procedure established by law which must

be reasonable, fair and just. This can be done by applying,

elucidating and even creatively expanding existing laws and

principles on case to case basis. Judiciary while exercising its

jurisdiction in this manner is not enacting or legislating but applying

the Constitution and protecting fundamental rights under Article 21

of the Constitution.

36.This human right aspect was again highlighted in Nilabati Behera

(Smt) alias Lalita Behera (Through the Supreme Court Legal

Aid Committee) v. State of Orissa and Others

48

to state that the

convicts, prisoners or under-trials must not be denuded of their

fundamental rights under Article 21 and only such restrictions as

are permitted by law can be imposed. It is the responsibility of the

prison authority and the police to ensure that the person in custody

47

(1983) 2 SCC 96

48

(1993) 2 SCC 746

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 43 of 48

is not deprived of his right to life, even if his liberty is circumscribed

by the fact that the person is in confinement. Even 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 Others

49

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

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.

49

(1995) 4 SCC 262

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 44 of 48

(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 has been arrested and is being

detained at the particular place, unless the attesting

witness of the memo of arrest is himself such a friend

or a relative of the arrestee.

(4)The time, place of arrest and venue of custody of an

arrestee must be notified by the police where the next

friend or relative of the arrestee lives outside the

district or town through the Legal Aid Organisation in

the District and the police station of the area

concerned telegraphically within a period of 8 to 12

hours after the arrest.

(5)The person arrested must be made aware of this right

to have someone informed of his arrest or detention as

soon as he is put under arrest or is detained.

(6)An entry must be made in the diary at the place of

detention regarding the arrest of the person which shall

also disclose the name of the next friend of the person

who has been informed of the arrest and the names

and particulars of the police officials in whose custody

the arrestee is.

(7)The arrestee should, where he so requests, be also

examined at the time of his arrest and major and minor

injuries, if any present on his/her body, must be

recorded at that time. The "Inspection Memo" must be

signed both by the arrestee and the police officer

effecting the arrest and its copy provided to the

arrestee.

(8)The arrestee should be subjected to medical

examination by a trained doctor every 48 hours during

his detention in custody by a doctor on the panel of

approved doctors appointed by Director, Health

Services of the concerned State or Union Territory.

Director, Health Services should prepare such a penal

for all Tehsils and Districts as well.

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 45 of 48

(9)Copies of all the documents including the memo of

arrest, referred to above, should be sent to the illaqa

Magistrate for his record.

(10)The arrestee may be permitted to meet his lawyer

during interrogation, though 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 IPC 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 not only to civilise public power but also to

ensure that the citizens live under a legal system where their rights

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 46 of 48

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.

Siby Mathews and Others

50

where criminal proceedings were

initiated against Nambi Narayanan but it was found that the

prosecution story was a sham, compensation of Rs. 50 lakhs was

awarded for the anxiety suffered and maltreatment meted out to

him.

40.We have no hesitation in observing that notwithstanding the

aforesaid directions in D.K. Basu (supra) and the principles of law

laid down in Prithipal Singh and Others v. State of Punjab and

Another

51

and S. Nambi Narayanan (supra), this Court can, in an

appropriate matter and on the basis of pleadings and factual matrix

before it, issue appropriate guidelines/directions to elucidate, add

and improve upon the directions issued in D.K. Basu (supra) and

other cases when conditions stated in paragraph 27 supra are

satisfied. However, this is not what is urged and prayed by the

applicant. The contention of the applicant is that this Court must

50

(2018) 10 SCC 804

51

(2012) 1 SCC 10

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 47 of 48

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 in light of the

aforesaid discussion.

41.Notwithstanding rejection of the prayer made by the applicant, we

would in terms of the above discussion clarify 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 law.

......................................CJI.

(RANJAN GOGOI)

......................................J.

(DINESH MAHESHWARI)

.......................................J.

(SANJIV KHANNA)

NEW DELHI;

SEPTEMBER 05, 2019.

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