DR. ASHWANI KUMAR versus UNION OF INDIA AND ANOTHER

[2019] 12 S.C.R. 30

[2019] 12 S.C.R.

DR. ASHWANI KUMAR

UNION OF INDIA AND ANOTHER

(Miscellaneous Application No. 2560 of 2018)

(Writ Petition (Civil) No. 738 of 2016)

SEPTEMBER 05, 2019

[RANJAN GOGOI, CJI, DINESH MAHESHWARI ANDSANJIV KHANNA, JJ.]

Custodial Torture: Writ petition filed under Art.32 of theConstitution – Seeking effective and purposive legislativeframework/law based upon the ‘Convention against torture andOther Cruel, inhuman or Degrading Treatment or Punishment’Dadopted by the United Nations General Assembly – Prayer ofapplicant was that custodial torture being crime against humanitywhich directly infracts and violates Art.21, this court should invokeand exercise jurisdiction under Arts.141, 142 for protection andadvancement of human dignity, core and non-negotiableconstitutional right – Held: It is true that in some extraordinaryEcases where notwithstanding the institutional reasons and thedivision of power, this Court has laid down general rules/guidelineswhen there has been clear, substantive and gross human rightsviolation, which significantly outweighed and dwarfed anylegitimising concerns based upon separation of powers, lack ofFexpertise and uncertainty of the consequences – However, mereallegation of violation of human rights or plea raisingenvironmental concerns cannot be the ‘bright-line’ to hold that self-restraint must give way to judicial legislation – Where and whendirections should be issued by Court are questions and issuesinvolving constitutional dilemmas that mandate larger debate andGdiscussion – Such directions are to be issued with great care andcircumspection and certainly not when the matter is already pendingconsideration and debate with the executive or Parliament – This isnot case which requires Court’s intervention to give suggestionfor need to frame law as the matter is already pending active

consideration – Any direction at this stage would be interpreted asjudicial participation in the enactment of law – When the matter isalready pending consideration and is being examined for thepurpose of legislation, it would not be appropriate for this Court toenforce its opinion, be it in the form of direction or even request,for it would clearly undermine and conflict with the role assignedto the judiciary under the Constitution – No directions can be givento the executive to ratify the UN Convention for it would virtuallyamount to issuing directions to enact laws in conformity with theUN Convention – Constitution of India – Arts.21, 32, 141, 142.

Supreme Court Employees’ Welfare Association v. Unionof India and Another(1989) 4 SCC 187 : [1989] 3SCR 488;V.K. Naswa v. Home Secretary, Union of Indiaand Others (2012) 2 SCC 542 : [2012] 2 SCR 912;State of Himachal Pradesh and Others v. Satpal Saini(2017) 11 SCC 42 : [2017] 1 SCR 658 – relied on.

Union of India and Another v. Azadi Bachao Andolanand Another (2004) 10 SCC 1 : [2003] 4 Suppl. SCR222;Rosiline George v. Union of India and Others(1994) 2 SCC 80 : [1993] 3 Suppl. SCR 141;Sakshi v.Union of India and Others (2004) 5 SCC 518 : [2004]2 Suppl. SCR 723;P.B. Samant and Others v. Union ofIndia and Others AIR 1994 Bom 323;Sheela Barse v.State of Maharashtra (1983) 2 SCC 96 : [ 1983] 2 SCR337;State of Madhya Pradesh v. Shyamsunder Trivediand Others (1995) 4 SCC 262 : [1995] 1 Suppl. SCR44;Nilabati Behera (Smt) alias Lalita Behera (Throughthe Supreme Court Legal Aid Committee) v. State ofOrissa and Others(1993) 2 SCC 746 : [1993] 2 SCR581; Prithipal Singh and Others v. State of Punjaband Another (2012) 1 SCC 10 : [2012] 14 SCR 862;S.Nambi Narayanan v. Siby Mathews and Others(2018)10 SCC 804 : [2018] 12 SCR 51 – referred to.

Regina (Countryside Alliance) and Others v. AttorneyGeneral and Another (2008) 1 AC 719 – referred to.

Constitution of India: Separation of powers – India has awritten Constitution which is supreme and adumbrates as well as

Adivides powers, roles and functions of the three wings of the State -the legislature, the executive and the judiciary – These divisionsare boundaries and limits fixed by the Constitution to check andprevent transgression by any one of the three branches into thepowers, functions and tasks that fall within the domain of the otherwing – The three branches have to respect the constitutional divisionBand not disturb the allocation of roles and functions between thetriad – Adherence to the constitutional scheme dividing the powersand functions is guard and check against potential abuse of powerand the rule of law is secured when each branch observes theconstitutional limitations to their powers, functions and roles –CModern theory of separation of powers does not accept that thethree branches perform mutually isolated roles and functions andaccepts need for coordinated institutional effort for goodgovernance, albeit emphasise on benefits of division of power andlabour by accepting the three wings do have separate and distinctroles and functions that are defined by the Constitution – All theDinstitutions must act within their own jurisdictions and not trespassinto the jurisdiction of other – By segregating the powers andfunctions of the institutions, the Constitution ensures structurewhere the institutions function as per their institutional strengths.

Constitution of India: Powers and functions of legislature –EHeld: The legislature as an elected and representative body enactslaws to give effect to and fulfil democratic aspirations of the people– Legislature functions as deliberative and representative body –It is directly accountable and answerable to the electorate andcitizens of this country – This representativeness and principle ofFaccountability is what gives legitimacy to the legislations and lawsmade by Parliament or the state legislatures.

Constitution of India: Arts.73 and 162 – Powers and functionsof executive – Held: The executive has the primary responsibility offormulating government policies and proposing legislations whichGwhen passed by the legislature become laws – By virtue of Arts.73and 162 of the Constitution, the powers and functions of theexecutive are wide and expansive, as they cover matters in respectof which Parliament/state legislature can make laws and vests withthe executive the authority and jurisdiction exercisable by theGovernment of India or the State Government, as the case may be –H

As delegate of the legislative bodies and subject to the terms ofthe legislation, the executive makes second stage laws known as‘subordinate or delegated legislation’ – In fields where there is nolegislation, the executive has the power to frame policies, schemes,etc., which is co-extensive with the power of Parliament or the statelegislature to make laws – At the same time, the political executive isaccountable to the legislature and holds office till they enjoy thesupport and confidence of the legislature – Thus, there isinterdependence, interaction and even commonality of personnel/members of the legislature and the executive – The executive,therefore, performs multi-functional role and is not monolithic.Constitution of India: Role of judiciary – Judges unlikemembers of the legislature represent no one, strictly speaking noteven the citizens – Judges are not accountable and answerable asthe political executive is to the legislature and the electedrepresentatives are to the electorate – This independence ensuresthat the judges perform the constitutional function of safeguardingthe supremacy of the Constitution while exercising the power ofjudicial review in fair and even-handed manner without pressureand favours – As an interpreter, guardian and protector of theConstitution, the judiciary checks and curbs violation of theConstitution by the Government when they overstep theirconstitutional limits, violate the basic structure of the Constitution,infringe fundamental rights or act contrary to law – Power of judicialreview has expanded taking within its ambit the concept of socialand economic justice – Yet, while exercising this power of judicialreview, the courts do not encroach upon the field marked by theConstitution for the legislature and the executive, as the courtsexamine legality and validity of the legislation or the governmentalaction, and not the wisdom behind the legislative measure or relativemerits or demerits of the governmental action – Neither does theConstitution permit the courts to direct, advise or sermonise othersin the spheres reserved for them by the Constitution, provided thelegislature or the executive do not transgress their constitutionallimits or statutory conditions.

Doctrines/Principles: Doctrine of separation of power – Thedoctrine restrains the legislature from declaring the judgment of acourt to be void and of no effect, while the legislature still possesses

Athe legislative competence of enacting validating law whichremedies the defect pointed out in the judgment – However, thisdoes not ordain and permit the legislature to declare judgment asinvalid by enacting law, but permits the legislature to take awaythe basis of the judgment by fundamentally altering the basis onwhich it was pronounced – Therefore, while exercising all importantBchecks and balances function, each wing should be conscious ofthe enormous responsibility that rests on them to ensure thatinstitutional respect and comity is maintained – Constitution of India

– Judgment/Order – Legislation.

His Holiness Kesavananda Bharati Sripadagalvaru v.CState of Kerala and Another (1973) 4 SCC 225 : [1973]0 Suppl. SCR 1; State of Rajasthan and Others v. Unionof India and Others (1977) 3 SCC 592 : [1978] 1 SCR1;I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu(2007) 2 SCC 1 : [2007] 1 SCR 706;State of TamilDNadu v. State of Kerala(2014) 12 SCC 696 : [2014] 12SCR 875 – followed

Binoy Viswam v. Union of India and Others(2017) 7SCC 59 : [2017] 7 SCR 1;Kalpana Mehta and Othersv. Union of India and Others (2018) 7 SCC 1 : [2018]E4 SCR 1 – relied on

Doctrines/Principles: Doctrine of separation of power –Distinction between interpretation and adjudication by the courtson one hand and the power to enact legislation by the legislatureon the other – Adjudication results in what is often described asFjudge made law, but the interpretation of the statutes and the rightsin accordance with the provisions of Articles 14, 19 and 21 in thecourse of adjudication is not an attempt or an act of legislation bythe judges – Legislature itself entrusts the judiciary to lay downparameters in the form of precedents which is oft-spoken as judgemade law – Such law, even if made by the judiciary, would notGinfringe the doctrine of separation of powers and is in conformitywith the constitutional functions – Thus, law-making within certainlimits is legitimate element of judge’s role, if not inevitable – Ajudge has to adjudicate and decide on the basis of legal provisions,which when indeterminate on particular issue require elucidationHand explanation – This requires judge to interpret the provisionsto decide the case and, in this process, he may take recourse andrely upon fundamental rights, including the right to life, but eventhen he does not legislate law while interpreting such provisions– Such interpretation is called ‘judge made law’ but not legislation– Constitution of India – Judge made law.

‘The Constitutional Separation of Powers’ by AieleenKavanagh – referred to.

Legislation: Power/Duty of legislature and judiciary –Distinction between – Held: Legislating or law-making involves achoice to prioritise certain political, moral and social values overthe others from wide range of choices that exist before thelegislature – It is balancing and integrating exercise to giveexpression/meaning to diverse and alternative values and blend itin manner that it is representative of several viewpoints so that itgarners support from other elected representatives to passinstitutional muster and acceptance – Legislation, in the form of anenactment or laws, lays down broad and general principles – It isthe source of law which the judges are called upon to apply – Judges,when they apply the law, are constrained by the rules of languageand by well identified background presumptions as to the mannerin which the legislature intended the law to be read – Application oflaw by the judges is not synonymous with the enactment of law bythe legislature – Judges have the power to spell out how preciselythe statute would apply in particular case – In this manner, theycomplete the law formulated by the legislature by applying it – Thispower of interpretation or the power of judicial review is exercisedpost the enactment of law, which is then made subject matter ofinterpretation or challenge before the courts.

Interpretation of statutes: While exercising the interpretativepower, the courts can draw strength from the spirit and propellingelements underlying the Constitution to realise the constitutionalvalues but must remain alive to the concept of judicial restraintwhich requires the judges to decide cases within defined limits ofpower – Thus, the courts would not accept submissions and passorders purely on matter of policy or formulate judicial legislationwhich is for the executive or elected representatives of the peopleto enact.

[2019] 12 S.C.R.

D.K. Basu v. State of West Bengal (1997) 1 SCC 416 :[1996] 10 Suppl. SCR 284;Sunil Batra v. DelhiAdministration and Others (1978) 4 SCC 494 : 1979(1) SCR 392;Francis Coralie Mullin v. Administrator,Union Territory of Delhi and Others (1981) 1 SCC 608: 1981 (2) SCR 516;K.S. Puttaswamy and Another v.Union of India and Others(2017) 10 SCC 1 : [2017]10 SCR 569;Romila Thapar and Others v. Union ofIndia and Others (2018) 10 SCC 753 : [2018] 11 SCR951;Tehseen S. Poonawalla v. Union of India andOthers (2018) 9 SCC 501 : [2018] 9 SCR 291;Vishakaand Others v. State of Rajasthan and Others (1997) 6SCC 241 : [1997] 3 Suppl. SCR 404;Vineet Narainand Others v. Union of India and Another(1998) 1SCC 226 : [1997] 6 Suppl. SCR 595;Destruction ofPublic and Private Properties, In RE v. State of AndhraPradesh and Others (2009) 5 SCC 212;Lakshmi KantPandey v. Union of India (1984) 2 SCC 244;State ofWest Bengal and Others v. Sampat Lal and Others(1985) 1 SCC 317;K. Veeraswami v. Union of Indiaand Others (1991) 3 SCC 655[:][; ]Delhi Judicial ServiceAssociation, Tis Hazari Court, Delhi v. State of Gujaratand Others (1991) 4 SCC 406;Mahender Chawla andOthers v. Union of India and Others (2018) SCC Online2679;Shri Prithvi Cotton Mills Ltd. and Another v.Broach Borough Municipality and Others(1969) 2 SCC283 : [1970] 1 SCR 388;Union of India v. V. Sriharanalias Murugan and Others (2016) 7 SCC 1 : [2015] 14SCR 613;P. Ramachandra Rao v. State of Karnataka(2002) 4 SCC 578;Bhim Singh v. Union of India (2010)5 SCC 538 : [2010] 6 SCR 218; Manoj Narula v. Unionof India(2014) 9 SCC 1[:] [2014] 9 SCR 965; GaindaRam and Others v. Municipal Corporation of Delhi andOthers (2010) 10 SCC 715 : [2010] 12 SCR 996;Common Cause: Registered Society v. Union of India(2017) 7 SCC 158 : [2017] 3 SCR 291 – referred to.

DR. ASHWANI KUMAR v. UNION OF INDIA AND ANOTHER

CIVIL ORIGINAL JURISDICTION: Miscellaneous ApplicationNo. 2560 of 2018. Writ Petition (Civil) No. 738 of 2016

Mr. Colin Gonsalves, Sr. Adv. (AC)

K. K. Venugopal, AG, Ms. Madhavi Divan, ASG, Ms. Divia Bang,Ms. Raushan Tara Jaswal, Ms. Tanushree Nigam, R. Balasubramanian,Ms. Shraddha Deshmukh, B. V. Balram Das, Siddhesh Kotwal,EMs. Bansuri Swaraj, Ms. Shreya Bhatnagar, Raghunatha Sethupathy,Gagan Narang, Ms. Arshiya Ghose, Ms. Astha Sharma, Ms. ShobhaGupta, Sourav Roy, Ms. Swarupama Chaturvedi, Anoop Kandari, NishantR. Katneshwarkar, V. N. Raghupathy, Sibo Sankar Mishra, NiranjanSahu, Leishangthem Roshmani Kh., Ms. Anupama Ngangom,Ms. Maibam Babina, M. Yogesh Kanna, S. Partha Sarathi, S. RajaFRajeshwaran, Shuvodeep Roy, Kabir Shankar Bose, Rijuk Sarkar, K. V.Jagdishvaran, Mrs. G. Indira, Suhaan Mukerji, Ms. Astha Sharma, AmitVerma, Ms. Dimple Nagpal, (For M/s PLR Chambers & Co.), M. ShoebAlam, Ujjwal Singh, Gautam Prabhakar, Mojahid Karim Khan,Mrs. K. Enatoli Sema, Amit Kumar Singh, Ms. Aruna Mathur, AvneeshGArputham, Ms. Anuradha Arputham, Ms. Geetanjali, G. Prakash, JishnuM. L., Mrs. Priyanka Prakash, Mrs. Beena Prakash, V. G. Pragasam,S. Prabu Ramasubramanian, S. Manuraj, Advs. for the appearing parties.

Dr. Ashwini Kumar- Applicant-in-person.

The Order of the Court was passed by

SANJIV KHANNA, J.

1. This order would dispose of Miscellaneous Application No.2560 of 2018 filed by Dr. Ashwani Kumar, applicant in-person, who is asenior advocate and former Law Minister and Member of Parliament,praying for the following relief:

“In the aforesaid premises, it is therefore respectfully prayed thatsince no action has been taken by the Government pursuant tothe statement of the Hon’ble Attorney General, the stand takenby the National Human Rights Commission and the LawCommission of India in its report of October 2017 and becausethe merit of the prayer is virtually admitted and conceded beforethis Hon’ble Court, the National Human Rights Commission, theLaw Commission of India and by Select Committee of Parliament,as an integral constituent of the right to life with dignity underArticle 21, this Hon’ble Court may be pleased to direct the CentralGovernment to enact suitable stand-alone, comprehensivelegislation against custodial torture as it has directed in the caseof 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 aneffective and purposive legislative framework/law based upon the‘Convention against Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment’ (“UN Convention”, for short) adopted by theUnited Nations General Assembly and opened for signature, ratificationand accession on 10[th] December 1984. India had signed the UNConvention on 14[th] October 1997. However, India has not ratified theUN Convention.

3. Writ Petition (Civil) No. 738 of 2016 was disposed of videorder dated 27[th] November 2017, which reads as under:

“Mr. K.K. Venugopal, learned Attorney General for India submittedthat the prayer made in the writ petition has been the subjectmatter of discussion in the Law Commission and the LawCommission has already made certain recommendations. Hewould further submit that the report is being seriously consideredby the Government. In view of the aforesaid statement, we do

40SUPREME COURT REPORTS

Anot intend to keep this writ petition pending and it is accordinglydisposed of. There shall be no order as to costs.”

4. The applicant predicating his case on the right to life and libertyand judgments of this Court had argued that custodial torture being crimeagainst humanity which directly infracts and violates Article 21 of theBConstitution, this Court should invoke and exercise jurisdiction underArticles 141 and 142 of the Constitution for the protection andadvancement of human dignity, core and non-negotiable constitutionalright. In D.K. Basu v. State of West Bengal[1] custodial torture and violencewas described as wound inflicted on the soul, so painful and paralysingthat it engenders fear, rage, hatred and despair, and denigrates theCindividual. In Sunil Batra v. Delhi Administration and Others[2], thisCourt had observed that the prisoners have enforceable liberties, thoughdevalued but never demonetised and, therefore, it is within the jurisdictionalreach and range of this Court’s writ to deal with prison and police capriceand cruelty. Similarly, in Francis Coralie Mullin v. Administrator,DUnion Territory of Delhi and Others[3], this Court had observed thattorture in any form is inhuman, degrading and offensive to human dignityand constitutes an inroad into the right to life and is prohibited by Article21 of the Constitution, for no law authorises and no procedure permitstorture or cruelty, inhuman or degrading treatment. Reference was madeto Article 5 of the Universal Declaration of Human Rights and Article 7Eof the International Covenant on Civil and Political Rights which prohibitstorture in all forms in absolute terms. Recently, in K.S. Puttaswamyand Another v. Union of India and Others[4] this Court had once againemphased on the right to human dignity which, first and foremost, meansthe dignity of each human being ‘as human being’. When human dignityFin person’s life is infringed and physical or mental welfare is negatedand harmed, the Court would intervene to protect and safeguardconstitutional values. Reference was also made to the decision in RomilaThapar and Others v. Union of India and Others[5] claiming that despiteexisting law and repeated judicial decisions, custodial torture still remainsrampant and widespread in India. Our attention was drawn to the reportGof Asian Centre for Human Rights which was based, inter alia, on the

1 (1997) 1 SCC 4162 (1978) 4 SCC 4943 (1981) 1 SCC 6084 (2017) 10 SCC 1H5 (2018) 10 SCC 753

information and data furnished by the Government of India in Parliament,acknowledging 1674 custodial deaths, including 1530 deaths in judicialcustody and 144 deaths in police custody during the period 1[st] April 2017to 28[th] February 2018. India has consistently and unequivocallycondemned and deprecated custodial torture at international forums andhas signed the UN Convention but the Government’s reluctance to ratifythe UN Convention, which envisages comprehensive and standalonelegislation, it was argued, is baffling and unintelligible. Indian statutorylaw at present is not in harmony and falls short on several accounts, bothprocedurally and substantively, with the UN Convention and, thus, thereis an urgent and immediate need for an all-embracing standaloneenactment based on the UN Convention. Articles 51(c) and 253 of theConstitution underscore the ‘constitutional imperative’ of aligning domesticlaws with international law and obligations. The legislation as prayed, itwas submitted, would fulfil the constitutional obligations of the Governmentof India and the constitutional goals which the Government ought toachieve. Accordingly, the directions as prayed for would not entrenchupon Parliament’s domain to enact laws as they directly relate to theprotection and preservation of human rights. The directions are justifiedand necessary in view of the delay and inaction in enacting the law,notwithstanding the recommendations made by the National HumanRights Commission, report of the Law Commission of India in October2017, and report of the Select Committee of Parliament dated 2[th]December 2010 and repeated commitments made by the IndianGovernment. Reference was made to Tehseen S. Poonawalla v. Unionof India and Others[6] wherein this Court had highlighted the need forenactment of suitable legislation to deal with mob violence/lynching inthe country. Reliance was placed on judgments of this Court in Vishakaand Others v. State of Rajasthan and Others[7], Vineet Narain andOthers v. Union of India and Another[8], Destruction of Public andPrivate Properties, In RE v. State of Andhra Pradesh and Others[9],Lakshmi Kant Pandey v. Union of India[10], State of West Bengal andOthers v. Sampat Lal and Others[11], K. Veeraswami v. Union of India

6 (2018) 9 SCC 501

7 (1997) 6 SCC 241

8 (1998) 1 SCC 226

9 (2009) 5 SCC 212

10 (1984) 2 SCC 244

11 (1985) 1 SCC 317

Aand Others[12] and Delhi Judicial Service Association, Tis HazariCourt, Delhi v. State of Gujarat and Others[13]. While referring toMahender Chawla and Others v. Union of India and Others[14], andother decisions including Tehseen S. Poonawalla (supra), it was arguedthat this Court has not flinched from suggesting, recommending, advising,guiding and directing the Government of India with respect to statutoryBenactments. It was submitted that the delay and inaction in implementingthe constitutional obligation relates back to the year 1997 when Indiahad signed the UN Convention, but the Government has failed to enacta comprehensive legislation despite commitments and recommendationsmade and noticed above. This, it was submitted, reflects unreasonableCand unacceptable conduct of the Government in shielding infringementof Article 21 and violates Article 14 of the Constitution of India. Thus,the Court may issue directions to the Union of India to enact lawdealing with custodial torture in terms of the U.N. Convention.

5. It may be noted here that the applicant was the Chairperson ofDthe Select Committee of the Rajya Sabha that had submitted the reporton custodial torture depicting the need for comprehensive standalonelegislation.

6. Respondent No.1 – Union of India, in its response, has statedthat the draft legislation prepared on the basis of the Law Commission’sEreport 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 ofIndia and, therefore, comments and views of the State Governments/Union Territories were solicited on the recommendations made by theFLaw Commission of India. There may have been some delay as someStates did not furnish their response, albeit the Union of India took stepsby sending reminders on 27[th] June 2018, 27[th] November 2018 and 20[th]December 2018. Subsequent affidavit dated 12[th ]February 2019 disclosesthat all States and Union Territories have filed their inputs/suggestionsGand that the question of enacting legislation is under consideration. Alegislation of this nature given the nuances, niceties and spectrum ofdivergent views and choices is complex and challenging task. Laws

12 (1991) 3 SCC 65513 (1991) 4 SCC 406H14 (2018) SCC Online 2679

are legislated after due debate, deliberation and once the requiredconsensus is formed. Any direction by this Court requiring the Parliamentto frame law or modify an enactment in particular manner wouldviolate doctrine of separation of powers, basic feature of theConstitution. Parliament as an elected body representing the citizenry isbestowed with constitutional power to enact laws, which create rights,obligations and duties with attendant penalties. Existing municipal lawsgoverning the field as interpreted by the Courts apply in matters ofcustodial 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 forthe National Human Rights Commission, the second respondent beforeus.

8. At the outset, we must clarify that by the present order, wewould be deciding very limited controversy, viz. the prayer of theapplicant that this Court should direct Parliament to enact standaloneand comprehensive legislation against custodial torture based on the UNConvention. The prayer made requires the Court to examine and answerthe question that whether within the constitutional scheme, this Courtcan and should issue any direction to the Parliament to enact new lawbased on the UN Convention.

9. Classical or pure theory of rigid separation of powers asadvocated by Montesquieu which forms the bedrock of the AmericanConstitution is clearly inapplicable to parliamentary form of democracyas it exists in India and Britain, for the executive and legislative wings interms of the powers and functions they exercise are linked and overlapand the personnel they equip are to an extent common. However, unlikeBritain, India has written Constitution, which is supreme and adumbratesas well as divides powers, roles and functions of the three wings of theState – the legislature, the executive and the judiciary. These divisionsare boundaries and limits fixed by the Constitution to check and preventtransgression by any one of the three branches into the powers, functionsand tasks that fall within the domain of the other wing. The three brancheshave to respect the constitutional division and not disturb the allocationof roles and functions between the triad. Adherence to the constitutionalscheme dividing the powers and functions is guard and check againstpotential abuse of power and the rule of law is secured when each

Abranch observes the constitutional limitations to their powers, functionsand roles.

10. Modern theory of separation of powers does not accept thatthe three branches perform mutually isolated roles and functions andaccepts need for coordinated institutional effort for good governance,Balbeit emphasises on benefits of division of power and labour by acceptingthe three wings do have separate and distinct roles and functions thatare defined by the Constitution. All the institutions must act within theirown jurisdiction and not trespass into the jurisdiction of the other. Beyondthis, each branch must support each other in the general interest of goodgovernance. This separation ensures the rule of law in at least two ways.CIt gives constitutional and institutional legitimacy to the decisions by eachbranch, that is, enactments passed by the legislature, orders and policydecisions taken by the executive and adjudication and judgmentspronounced by the judiciary in exercise of the power of judicial reviewon validity of legislation and governmental action. By segregating the

Dpowers and functions of the institutions, the Constitution ensures astructure where the institutions function as per their institutional strengths.Secondly, and somewhat paradoxically, it creates system of checksand balances as the Constitution provides degree of latitude forinterference by each branch into the functions and tasks performed bythe other branch. It checks concentration of power in particular branchEor an institution.

11. The legislature as an elected and representative body enactslaws to give effect to and fulfil democratic aspirations of the people.The procedures applied are designed to give careful thought andconsideration to wide and divergent interests, voices and all shades ofFopinion from different social and political groups. Legislature functionsas deliberative and representative body. It is directly accountable andanswerable to the electorate and citizens of this country. Thisrepresentativeness and principle of accountability is what gives legitimacyto the legislations and laws made by Parliament or the state legislatures.GArticle 245 of the Constitution empowers Parliament and the statelegislatures to enact laws for the whole or part of the territory of India,and for the whole or part of the State respectively, after due debateand discussion in Parliament/ the state assembly.

12. The executive has the primary responsibility of formulatingHgovernment policies and proposing legislations which when passed by

the legislature become laws. By virtue of Articles 73 and 162 of theConstitution, the powers and functions of the executive are wide andexpansive, as they cover matters in respect of which Parliament/statelegislature can make laws and vests with the executive the authority andjurisdiction exercisable by the Government of India or the StateGovernment, as the case may be. As delegate of the legislative bodiesand subject to the terms of the legislation, the executive makes secondstage laws known as ‘subordinate or delegated legislation’. In fieldswhere there is no legislation, the executive has the power to framepolicies, schemes, etc., which is co-extensive with the power of Parliamentor the state legislature to make laws. At the same time, the politicalexecutive is accountable to the legislature and holds office till they enjoythe support and confidence of the legislature. Thus, there isinterdependence, interaction and even commonality of personnel/members of the legislature and the executive. The executive, therefore,performs multi-functional role and is not monolithic. Notwithstandingthis multifunctional and pervasive role, the constitutional scheme ensuresthat within this interdependence, there is degree of separation thatacts as mechanism to check interference and protect the non-politicalexecutive. Part XIV of the Constitution relates to “Services under theUnion and the States”, i.e., recruitment, tenure, terms and conditions ofservice, etc., of persons serving the Union or State and accords thema substantial degree of protection. “Office of profit” bar, as applicable tolegislators and prescribed vide Articles 102 and 191, is to ensure separationand independence between the legislature and the executive.

13. The most significant impact of the doctrine of separation ofpowers is seen and felt in terms of the institutional independence of thejudiciary from other organs of the State. Judiciary, in terms of personnel,the Judges, is independent. Judges unlike members of the legislaturerepresent no one, strictly speaking not even the citizens. Judges are notaccountable and answerable as the political executive is to the legislatureand the elected representatives are to the electorate. This independenceensures that the judges perform the constitutional function of safeguardingthe supremacy of the Constitution while exercising the power of judicialreview in fair and even-handed manner without pressure and favours.As an interpreter, guardian and protector of the Constitution, the judiciarychecks and curbs violation of the Constitution by the Government whenthey overstep their constitutional limits, violate the basic structure of theConstitution, infringe fundamental rights or act contrary to law. Power

CDE

Aof judicial review has expanded taking within its ambit the concept ofsocial and economic justice. Yet, while exercising this power of judicialreview, the courts do not encroach upon the field marked by theConstitution for the legislature and the executive, as the courts examinelegality and validity of the legislation or the governmental action, and notthe wisdom behind the legislative measure or relative merits or demeritsBof the governmental action. Neither does the Constitution permit thecourts to direct, advise or sermonise others in the spheres reserved forthem by the Constitution, provided the legislature or the executive do nottransgress their constitutional limits or statutory conditions. Referring tothe phrase “all power is of an encroaching nature”, which the judiciaryCchecks while exercising the power of judicial review, it has beenobserved[15] that the judiciary must be on guard against encroaching beyondits bounds since the only restraint upon it is the self-imposed discipline ofself-restraint. Independence and adherence to constitutionalaccountability and limits while exercising the power of judicial reviewgives constitutional legitimacy to the court decisions. This is essence ofDthe power and function of judicial review that strengthens and promotesthe rule of law.

14. Constitutional Bench judgments in His Holiness KesavanandaBharati Sripadagalvaru v. State of Kerala and Another[16] , State ofRajasthan and Others v. Union of India and Others[17],I.R. CoelhoE(Dead) by LRs. v. State of Tamil Nadu[18]and State of Tamil Nadu v.

15 Asif Hameed & Others v. State of Jammu & Kashmir & Others, 1989 Supp. (2) SCC364 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 wiseFexercise of power — between questions of authority and questions of prudence— requires the most alert appreciation of this decisive but subtle relationshipof two concepts that too easily coalesce. No less does it require disciplinedwill to adhere to the difference. It is not easy to stand aloof and allow want ofwisdom to prevail to disregard one’s own strongly held view of what is wise inthe conduct of affairs. But it is not the business of this Court to pronouncepolicy. It must observe fastidious regard for limitations on its own power,Gand this precludes the court’s giving effect to its own notions of what is wise orpolitic. That self-restraint is of the essence in the observance of the judicialoath, for the Constitution has not authorized the judges to sit in judgment onthe wisdom of what Congress and the executive branch do.”16 (1973) 4 SCC 22517 (1977) 3 SCC 592H18 (2007) 2 SCC 1

State of Kerala[19] have uniformly ruled that the doctrine of separation ofpowers, though not specifically engrafted, is constitutionally entrenchedand forms part of the basic structure as its sweep, operation and visibilityare apparent. Constitution has made demarcation, without drawing formallines, amongst the three organs with the duty of the judiciary to scrutinisethe limits and whether or not the limits have been transgressed. Thesejudgments refer to the constitutional scheme incorporating checks andbalances. As sequitur, the doctrine restrains the legislature fromdeclaring the judgment of court to be void and of no effect, while thelegislature still possesses the legislative competence of enacting avalidating law which remedies the defect pointed out in the judgment.[20]However, this does not ordain and permit the legislature to declare ajudgment as invalid by enacting law, but permits the legislature to takeaway the basis of the judgment by fundamentally altering the basis onwhich it was pronounced. Therefore, while exercising all important checksand balances function, each wing should be conscious of the enormousresponsibility that rests on them to ensure that institutional respect andcomity is maintained.15. In Binoy Viswam v. Union of India and Others[21], this Courtreferring to the Constitution had observed that the powers to be exercisedby the three wings of the State have an avowed purpose and each branchis constitutionally mandated to act within its sphere and to have mutualinstitutional respect to realise the constitutional goal and to ensure thatthere is no constitutional transgression. It is the Constitution which hascreated the three wings of the State and, thus, each branch must obligethe other by not stepping beyond its territory.

16. In Kalpana Mehta and Others v. Union of India andOthers[22], Mr. Justice Dipak Misra, the then Chief Justice of India, underthe headings ‘Supremacy of the Constitution’, ‘Power of judicialreview’ and ‘Doctrine of separation of powers’,has held that theConstitution is supreme fundamental law which requires that all laws,actions and decisions of the three organs should be in consonance and inaccord with the constitutional limits, for the legislature, the executiveand the judiciary derive their authority and jurisdiction from the

19 (2014) 12 SCC 696

20Shri Prithvi Cotton Mills Ltd. and Another v. Broach Borough Municipality andOthers, (1969) 2 SCC 283

21 (2017) 7 SCC 59

22 (2018) 7 SCC 1

AConstitution. Legislature stands vested with an exclusive authority tomake laws thereby giving it supremacy in the field of legislation andlaw-making, yet this power is distinct from and not at par with thesupremacy of the Constitution, as:

“41. This Court has the constitutional power and the authority tointerpret the constitutional provisions as well as the statutoryprovisions. The conferment of the power of judicial review has agreat sanctity as the constitutional court has the power to declareany law as unconstitutional if there is lack of competence of thelegislature keeping in view the field of legislation as provided inthe Constitution or if provision contravenes or runs counter toany of the fundamental rights or any constitutional provision or ifa 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 tobe alive to the concept of judicial restraint. The duty of judicialreview which the Constitution has bestowed upon the judiciary isnot unfettered; it comes within the conception of judicial restraint.The principle of judicial restraint requires that Judges ought todecide cases while being within their defined limits of power.Judges are expected to interpret any law or any provision of theConstitution 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 conceptof constitutional limitation is facet of the doctrine of separationof powers. At this stage, we may clearly state that there canreally be no straitjacket approach in the sphere of separation ofpowers when issues involve democracy, the essential moralitythat flows from the Constitution, interest of the citizens in certainspheres like environment, sustenance of social interest, etc. andempowering the populace with the right to information or right toknow in matters relating to candidates contesting election. Therecan be many an example where this Court has issued directionsto the executive and also formulated guidelines for facilitation andin furtherance of fundamental rights and sometimes for theactualisation and fructification of statutory rights.”

18. D.Y. Chandrachud, J., in his separate and concurring judgmentfor himself and A.K. Sikri, J. in Kalpana Mehta (supra) had referred tothe nuanced ‘doctrine of functional separation’ that finds articulation inthe articles/books by Peter A. Gerangelos in his work titled ‘TheSeparation of Powers and Legislative Interference in JudicialProcess, Constitutional Principles and Limitations’[23], M.J.C. Vile’sbook titled ‘Constitutionalism and the Separation of Powers’[24], AileenKavanagh 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 ofmodern administrative State have reconstructed the doctrine as consistingof two components: ‘division of labour’ and ‘checks and balances’, insteadof isolated compartmentalisation, by highlighting the need of interactionand interdependence amongst the three organs in way that each branchis in cooperative engagement but at the same time acts, when necessary,to check on the other and that no single group of people are able tocontrol the machinery of the State. Independent judiciary acts as arestraining 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 thedoctrine of separation of powers limits the “active jurisdiction” ofeach branch of Government. However, even when the activejurisdiction of an organ of the State is not challenged, the doctrineallows for methods to be used to prod and communicate to aninstitution either its shortfalls or excesses in discharging its duty.The Court recognised that fundamentally, the purpose of thedoctrine is to act as scheme of checks and balances over theactivities of other organs. The Court noted that the modern conceptof separation of powers subscribes to the understanding that itshould not only demarcate the area of functioning of various organsof the State, but should also, to some extent, define the minimumcontent in that delineated area of functioning. S.B. Sinha, J.addressed the need for the doctrine to evolve, as administrative

23 Hart Publishing, 2009

24 Oxford University Press, 1967

25 David Dyzenhaus and Malcolm Thorburn (eds.), Philosophical Foundations ofConstitutional Law (Oxford: Oxford University Press, 2016)

26 Oxford University Press, 2009

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bodies are involved in the dispensation of socio-economicentitlements: (SCC p. 619, para 83)

“83. If we notice the evolution of separation of powers doctrine,traditionally the checks and balances dimension was onlyassociated with governmental excesses and violations. But intoday’s world of positive rights and justifiable social and economicentitlements, hybrid administrative bodies, private functionariesdischarging public functions, we have to perform the oversightfunction with more urgency and enlarge the field of checks andbalances to include governmental inaction. Otherwise we envisagethe country getting transformed into state of repose. Socialengineering as well as institutional engineering therefore formspart of this obligation.”

(emphasis in original)

xxxxxx

251. In Supreme Court Advocates-on-Record Assn. v. Unionof India, Madan B. Lokur, J. observed that separation of powersdoes not envisage that each of the three organs of the State —the legislature, executive and judiciary — work in silo. Thelearned Judge held: (SCC p. 583, para 678)

“678. There is quite clearly an entire host of parliamentaryand legislative checks placed on the judiciary whereby itsadministrative functioning can be and is controlled, but thesedo not necessarily violate the theory of separation of powersor infringe the independence of the judiciary as far as decision-making is concerned. As has been repeatedly held, the theoryof separation of powers is not rigidly implemented in ourConstitution, but if there is an overlap in the form of checkwith reference to an essential or basic function or element ofone organ of State as against another, constitutional issuedoes arise. It is in this context that the 99th ConstitutionAmendment Act has to be viewed—whether it impacts on abasic or an essential element of the independence of thejudiciary, namely, its decisional independence.”

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

“254. While assessing the impact of the separation of powersupon the present controversy, certain precepts must be

formulated. Separation of powers between the legislature, theexecutive and the judiciary is basic feature of the Constitution.As foundational principle which is comprised within the basicstructure, it lies beyond the reach of the constituent power toamend. It cannot be substituted or abrogated. While recognisingthis position, decided cases indicate that the Indian Constitutiondoes not adopt separation of powers in the strict sense.Textbook examples of exceptions to the doctrine include thepower of the executive to frame subordinate legislation, thepower of the legislature to punish for contempt of its privilegesand the authority entrusted to the Supreme Court and the HighCourts to regulate their own procedures by framing rules. Inmaking subordinate legislation, the executive is entrusted bythe legislature to make delegated legislation, subject to its control.The rule-making power of the higher judiciary has trappings ofa legislative character. The power of the legislature to punishfor contempt of its privileges has judicial character. Theseexceptions indicate that the separation doctrine has not beenadopted in the strict form in our Constitution. But the importanceof the doctrine lies in its postulate that the essential functionsentrusted to one organ of the State cannot be exercised by theother. By standing against the usurpation of constitutionalpowers entrusted to other organs, separation of powers supportsthe rule of law and guards against authoritarian excesses.

255. Parliament and the State Legislatures legislate. Theexecutive frames policies and administers the law. The judiciarydecides and adjudicates upon disputes in the course of whichfacts are proved and the law is applied. The distinction betweenthe legislative function and judicial functions is enhanced bythe basic structure doctrine. The legislature is constitutionallyentrusted with the power to legislate. Courts are not entrustedwith the power to enact law. Yet, in constitutional democracywhich is founded on the supremacy of the Constitution, it is anaccepted principle of jurisprudence that the judiciary has theauthority to test the validity of legislation. Legislation can beinvalidated where the enacting legislature lacks legislativecompetence or where there is violation of fundamental rights.A law which is constitutionally ultra vires can be declared tobe so in the exercise of the power of judicial review. Judicialreview is indeed also part of the basic features of the

ABCDE

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Constitution. Entrustment to the judiciary of the power to testthe validity of law is an established constitutional principle whichco-exists with the separation of powers. Where law is heldto be ultra vires there is no breach of parliamentary privilegesfor the simple reason that all institutions created by theConstitution are subject to constitutional limitations. Thelegislature, it is well settled, cannot simply declare that thejudgment of court is invalid or that it stands nullified. If thelegislature were permitted to do so, it would travel beyond theboundaries of constitutional entrustment. While the separationof powers prevents the legislature from issuing meredeclaration that judgment is erroneous or invalid, the law-making body is entitled to enact law which remedies thedefects which have been pointed out by the court. Enactmentof law which takes away the basis of the judgment (asopposed to merely invalidating it) is permissible and does notconstitute violation of the separation doctrine. That indeed isthe basis on which validating legislation is permitted.

256. This discussion leads to the conclusion that while theseparation of powers, as principle, constitutes the cornerstoneof our democratic Constitution, its application in the actualgovernance of the polity is nuanced. The nuances of the doctrinerecognise that while the essential functions of one organ of theState cannot be taken over by the other and that sense ofinstitutional comity must guide the work of the legislature,executive and judiciary, the practical problems which arise inthe unfolding of democracy can be resolved through robustconstitutional cultures and mechanisms. The separation doctrinecannot be reduced to its descriptive content, bereft of itsnormative features. Evidently, it has both normative anddescriptive features. In applying it to the Indian Constitution,the significant precept to be borne in mind is that no institutionof governance lies above the Constitution. No entrustment of

power is absolute.”

21. Having elucidated the doctrinal basis of separation of powersand mutual interaction between the three organs of the State in thedemocratic set-up, it would be important to draw clear distinction betweeninterpretation and adjudication by the courts on one hand and the powerHto enact legislation by the legislature on the other. Adjudication results in

what is often described as judge made law, but the interpretation of thestatutes 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 oflegislation by the judges. Reference in this regard can be made to theopinion 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 capitalpunishment for offences under Section 302 of the Indian Penal Code(“IPC”, for short), held that the lawmakers have entrusted the task ofweighing and measuring the gravity of the offence with the institution ofjudiciary by reposing very high amount of confidence and trust. Itrequires judge to apply his judicial mind after weighing the pros andcons of the crime committed in the golden scales to ensure that thejustice is delivered. In way, therefore, the legislature itself entrusts thejudiciary to lay down parameters in the form of precedents which is oft-spoken as judge made law. This is true of many legislations. Suchlaw, even if made by the judiciary, would not infringe the doctrine ofseparation of powers and is in conformity with the constitutional functions.This distinction between the two has been aptly expressed by AileenKavanagh in the following words:“In general, the ability and power of the courts to make new lawis generally more limited than that of the legislators, since courtstypically make law by filling in gaps in existing legal frameworks,extending existing doctrines incrementally on case-by-case basis,adjusting them to changing circumstances, etc. Judicial lawmakingpowers tend to be piecemeal and incremental and the courts mustreason according to law, even when developing it. By contrast,legislators have the power to make radical, broad-ranging changesin the law, which are not based on existing legal norms....”

22. Seven Judges of this Court in P. Ramachandra Rao v. Stateof Karnataka[28]had, while interpreting Articles 21, 32, 141 and 142 ofthe Constitution, held that prescribing period at which criminal trial wouldterminate resulting in acquittal or discharge of the accused, or makingsuch directions applicable to all cases in present or in future, would amountto judicial law-making and cannot be done by judicial directives. It wasobserved that the courts can declare the law, interpret the law, removeobvious lacuna and fill up the gaps, but they cannot entrench upon the

27 (2016) 7 SCC 1

28 (2002) 4 SCC 578

Afield of legislation. The courts can issue appropriate and binding directionsfor enforcing the laws, lay down time limits or chalk out calendar forthe proceeding to follow to redeem the injustice and for taking care ofthe rights violated in the given case or set of cases depending on thefacts brought to the notice of the court, but cannot lay down and enactthe provisions akin to or on the lines of Chapter XXXVI of the Code ofBCriminal Procedure, 1973. Drawing distinction between legislation asthe source of law which consists of declaration of legal rules by acompetent authority and judicial decisions pronounced by the judges layingdown principles of general application, reference was made to Salmondon Principles of Jurisprudence (12[th] Edition) which says:

C“we must distinguish law-making by legislators from law-makingby the courts. Legislators can lay down rules purely for the futureand without reference to any actual dispute; the courts, insofar asthey create law, can do so only in application to the cases beforethem and only insofar as is necessary for their solution. Judicial

Dlaw-making is incidental to the solving of legal disputes; legislativelaw-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 EnforcingLimits,” evaluating the legitimacy of judicial activism, wherein it wasEobserved:

“Directions are either issued to fill in the gaps in the legislation orto provide for matters that have not been provided by anylegislation. The Court has taken over the legislative function notin the traditional interstitial sense but in an overt manner and hasFjustified it as being an essential component of its role as aconstitutional court.” (p.242)

“In strict sense these are instances of judicial excessivism thatfly in the face of the doctrine of separation of powers. The doctrineof separation of powers envisages that the legislature should makeGlaw, the executive should execute it, and the judiciary should settledisputes in accordance with the existing law. In reality suchwatertight separation exists nowhere and is impracticable. Broadly,it means that one organ of the State should not perform functionthat essentially belongs to another organ. While law-makingthrough interpretation and expansion of the meanings of open-

textured expressions such as ‘due process of law’, ‘equal protectionof law’, or ‘freedom of speech and expression’ is legitimatejudicial function, the making of an entirely new law ... throughdirections ... is not legitimate judicial function.” (p.250)

23. From the above, it is apparent that law-making within certainlimits is legitimate element of judge’s role, if not inevitable.[29] judgehas to adjudicate and decide on the basis of legal provisions, which whenindeterminate on particular issue require elucidation and explanation.[30]This requires 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 law whileinterpreting such provisions. Such interpretation is called ‘judge madelaw’ but not legislation. Aileen Kavanagh, in explaining the aforesaidposition, had observed:

“...If there has not been case in point and the judge has todecide on the basis of legal provisions which may be indeterminateon the issue, then the judge cannot decide the case without makingnew law...This is because Parliament has formulated the Act inbroad terms, which inevitably require elaboration by the courts inorder to apply it to the circumstances of each new case. Second,even in cases where judges apply existing law, they cannot avoidfacing the question of whether to change and improve it....Interpretation has an applicative and creative aspect.”

Legislating or law-making involves choice to prioritise certainpolitical, moral and social values over the others from wide range ofchoices that exist before the legislature. It is balancing and integratingexercise to give expression/meaning to diverse and alternative valuesand blend it in manner that it is representative of several viewpoints sothat it garners support from other elected representatives to passinstitutional muster and acceptance. Legislation, in the form of anenactment or laws, lays down broad and general principles. It is thesource of law which the judges are called upon to apply. Judges, whenthey apply the law, are constrained by the rules of language and by wellidentified background presumptions as to the manner in which the

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

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Alegislature intended the law to be read. Application of law by the judgesis not synonymous with the enactment of law by the legislature. Judgeshave the power to spell out how precisely the statute would apply in aparticular case. In this manner, they complete the law formulated by thelegislature by applying it. This power of interpretation or the power ofjudicial review is exercised post the enactment of law, which is thenBmade subject matter of interpretation or challenge before the courts.

24. Legislature, as an institution and wing of the Government, isa microcosm of the bigger social community possessing qualities of ademocratic institution in terms of composition, diversity and accountability.Legislature uses in-built procedures carefully designed and adopted toCbring plenitude of representations and resources as they have accessto information, skills, expertise and knowledge of the people workingwithin the institution and outside in the form of executive.[31] Process andmethod of legislation and judicial adjudication are entirely distinct. Judicialadjudication involves applying rules of interpretation and law of precedentsDand notwithstanding deep understanding, knowledge and wisdom of anindividual judge or the bench, it cannot be equated with law making in ademocratic society by legislators given their wider and broader diversepolity. The Constitution states that legislature is supreme and has finalsay in matters of legislation when it reflects on alternatives and choiceswith inputs from different quarters, with check in the form of democraticEaccountability and further check by the courts which exercise thepower of judicial review. It is not for the judges to seek to develop newall-embracing principles of law in way that reflects the stance andopinion of the individual judges when the society/legislators as whole

are unclear and substantially divided on the relevant issues[32]. In BhimFSingh v. Union of India[33],while observing that the Constitution doesnot strictly prohibit overlapping of functions as this is inevitable in themodern parliamentary democracy, the Constitution prohibits exercise offunctions of another branch which results in wresting away of the regimeof constitutional accountability. Only when accountability is preserved,there will be no violation of principle of separation of powers. ConstitutionGnot only requires and mandates that there should be right decisions thatgovern us, but equal care has to be taken that the right decisions are

31 D. Kyritsis, Constitutional Review in Representative Democracy (2012) 32 OxfordJournal of Legal Studies

32 Lord Browne-Wilkinson in Airedale NHS Trust v. Bland [1993] AC 789 (p. 879-880)H33 (2010) 5 SCC 538

made by the right body and the institution. This is what gives legitimacy,be it legislation, policy decision or court adjudication.

25. It is sometimes contended with force that unpopular and difficultdecisions are more easily grasped and taken by the judges rather thanby the other two wings. Indeed, such suggestions were indirectly made.This reasoning is predicated on the belief that the judges are not directlyaccountable to the electorate and, therefore, enjoy the relative freedomfrom questions of the moment, which enables them to take detached,fair and just view.[34] The position that judges are not elected andaccountable is correct, but this would not justify an order by court inthe nature of judicial legislation for it will run afoul of the constitutionalsupremacy and invalidate and subvert the democratic process by whichlegislations are enacted. For the reasons stated above, this reasoning isconstitutionally unacceptable and untenable.26. Dipak Misra, CJ in Kalpana Mehta’s case, under the heading‘Power of judicial review’ had examined several judgments of thisCourt to reflect upon the impressive expanse of judicial power in thesuperior courts that requires and demands exercise of tremendousresponsibility by the courts. Thus, while exercising the interpretativepower, the courts can draw strength from the spirit and propellingelements underlying the Constitution to realise the constitutional valuesbut must remain alive to the concept of judicial restraint which requiresthe judges to decide cases within defined limits of power. Thus, thecourts would not accept submissions and pass orders purely on matterof policy or formulate judicial legislation which is for the executive orelected representatives of the people to enact. Reference was made tosome judgments of this Court in the following words:

“43. In S.C. Chandra v. State of Jharkhand, it has been ruledthat the judiciary should exercise restraint and ordinarily shouldnot encroach into the legislative domain. In this regard, referenceto three-Judge Bench decision in Suresh Seth v. IndoreMunicipal Corpn. is quite instructive. In the said case, prayerwas made before this Court to issue directions for appropriateamendment in the M.P. Municipal Corporation Act, 1956. Repellingthe submission, the Court held that it is purely matter of policywhich is for the elected representatives of the people to decide

34 See observations of Lord Neuberger in Regina (Nicklinson) and Another v. Ministryof Justice and Others [2014] UKSC 38

Aand no directions can be issued by the Court in this regard. TheCourt further observed that this Court cannot issue directions tothe legislature to make any particular kind of enactment. In thiscontext, the Court held that under our constitutional scheme,Parliament and Legislative Assemblies exercise sovereign powerto enact law and no outside power or authority can issue directionBto enact particular kind of legislation. While so holding, the Courtreferred to the decision in Supreme Court Employees’ WelfareAssn. v. Union of India wherein it was held that no court candirect legislature to enact particular law and similarly when anexecutive authority exercises legislative power by way of aCsubordinate legislation pursuant to the delegated authority of alegislature, such executive authority cannot be asked to enact alaw which it has been empowered to do under the delegatedauthority.”

27. It can be argued that there have been occasions when thisDCourt has ‘legislated’ beyond what can be strictly construed as pureinterpretation or judicial review but this has been in cases where theconstitutional courts, on the legitimate path of interpreting fundamentalrights, have acted benevolently with an object to infuse and ardentlyguard 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, CJEin Kalpana Mehta’s case. Secondly, these directions were given subjectto the legislature enacting the law and merely to fill the vacuum until thelegislative takes upon it to legislate. These judgments were based upongross violations of fundamental rights which were noticed and in view ofthe vacuum or absence of law/guidelines. The directions were interim inFnature and had to be applied till Parliament or the state legislature wouldenact and were mere stop-gap arrangement. These guidelines anddirections in some cases as in the case of Vishaka (supra) had continuedfor long till the enactment of ‘The Sexual Harassment of Women atWorkplace (Prevention, Prohibition and Redressal) Act, 2013’because the legislature (it would also include the executive) impliedlyGand tacitly had accepted the need for the said legislation even if made bythe judiciary without enacting the law. Such law when enacted byParliament or the state legislature, even if assumably contrary to thedirections or guidelines issued by the Court, cannot be struck down byreason of the directions/guidelines; it can be struck down only if it violatesHthe fundamental rights or the right to equality under Article 14 of the

Constitution. These are extraordinary cases where notwithstanding theinstitutional reasons and the division of power, this Court has laid downgeneral rules/guidelines when there has been clear, substantive andgross human rights violation, which significantly outweighed and dwarfedany legitimising concerns based upon separation of powers, lack ofexpertise and uncertainty of the consequences.[35] Same is the position incases of gross environmental degradation and pollution. However, mereallegation of violation of human rights or plea raising environmentalconcerns cannot be the ‘bright-line’ to hold that self-restraint must giveway to judicial legislation. Where and when court directions should beissued are questions and issues involving constitutional dilemmas thatmandate larger debate and discussion (see observations of FrankfurterJ. as quoted in Asif Hameed & Others v. State of Jammu & Kashmir& Othersin foot note 15 supra).

28. Such directions must be issued with great care andcircumspection and certainly not when the matter is already pendingconsideration and debate with the executive or Parliament. This is not acase which requires Court’s intervention to give suggestion for need toframe law as the matter is already pending active consideration. Anydirection at this stage would be interpreted as judicial participation in theenactment of law. This Court in Supreme Court Employees’ WelfareAssociation v. Union of India and Another[36]had directed that no courtcan direct the legislature to enact particular law. Similarly, when anexecutive authority exercises the legislative power by way of subordinatelegislation pursuant to delegatory authority of the legislature, suchexecutive authority cannot be asked to enact law which it has beenempowered to do under delegated authority. Again, we would quotefrom Dipak Misra, CJ in Kalpana Mehta’s case, in which it wasobserved:

“44. Recently, in Census Commr. v. R. Krishnamurthy, the Court,after referring to Premium Granites v. State of T.N., M.P. OilExtraction v. State of M.P., State of M.P. v. Narmada BachaoAndolan and State of Punjab v. Ram Lubhaya Bagga, held: (R.Krishnamurthy case, SCC p. 809, para 33)

35 See Aileen Kavanagh, Judicial Restraint in the Pursuit of Justice (2009) University ofOxford Legal Research Paper Series36 (1989) 4 SCC 187

A“33. From the aforesaid pronouncement of law, it is clear asnoonday that it is not within the domain of the courts to embarkupon an enquiry as to whether particular public policy is wiseand acceptable or whether better policy could be evolved. Thecourt can only interfere if the policy framed is absolutely capriciousor not informed by reasons or totally arbitrary and founded ipseBdixit offending the basic requirement of Article 14 of theConstitution. In certain matters, as often said, there can be opinionsand opinions (sic) but the court is not expected to sit as an appellateauthority on an opinion.”

29. In V.K. Naswa v. Home Secretary, Union of India andCOthers[37],this Court in clear and categoric terms had observed that wedo not issue directions to the legislature directly or indirectly and anysuch directions if issued would be improper. It is outside the power ofjudicial review to issue directions to the legislature to enact law in aparticular manner, for the Constitution does not permit the courts to directDand advice the executive in matters of policy. Parliament, as the legislature,exercises this power to enact law and no outside authority can issue aparticular piece of legislation. It is only in exceptional cases where thereis vacuum and non-existing position that the judiciary, in exercise of itsconstitutional power, steps in and provides solution till the legislaturecomes forward to perform its role.E

30. In State of Himachal Pradesh and Others v. Satpal Saini[38],this Court had overturned the directions given by the High Court to amendprovisions of the state enactment after what was described as the plightof large population of non-agriculturist himachalis. Reference was madeto Supreme Court Employees’ Welfare Association (supra) that noFwrit of mandamus can be issued to the legislature to enact particularlegislation nor can such direction be issued to the executive whichexercises the powers to make rules in the nature of subordinate legislation.Reference was also made to V.K. Naswa (supra) wherein several earlierjudgments were considered and it was held that the courts have veryGlimited role and, in its exercise, it is not open to make judicial legislation.Further, the courts do not have competence to issue directions to thelegislature to enact law in particular manner. Reference was alsomade to the constitutional bench judgment in Manoj Narula v. Union

37 (2012) 2 SCC 542H38 (2017) 11 SCC 42

of India[39]in which discordant note struck by two judges in GaindaRam and Others v. Municipal Corporation of Delhi and Others[40]was held to be contrary to the Constitution by observing that the decisionwhether or not Section 8 of the Representation of the People Act, 1951should 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 sound constitutionalfoundation. The High Court has while issuing the above directionsacted in manner contrary to settled limitations on the power ofjudicial review under Article 226 of the Constitution. direction,it is well settled, cannot be issued to the legislature to enact law.The power to enact legislation is plenary constitutional powerwhich is vested in Parliament and the State Legislatures underArticles 245 and 246 of the Constitution. The legislature as therepository of the sovereign legislative power is vested with theauthority to determine whether law should be enacted. Thedoctrine of separation of powers entrusts to the court theconstitutional function of deciding upon the validity of law enactedby the legislature, where challenge is brought before the HighCourt under Article 226 (or this Court under Article 32) on theground that the law lacks in legislative competence or has beenenacted in violation of constitutional provision. But judicial reviewcannot encroach upon the basic constitutional function which isentrusted to the legislature to determine whether law should beenacted. Whether provision of law as enacted subserves theobject of the law or should be amended is matter of legislativepolicy. The court cannot direct the legislature either to enact alaw or to amend law which it has enacted for the simple reasonthat this constitutional function lies in the exclusive domain of thelegislature. For the Court to mandate an amendment of law —as did the Himachal Pradesh High Court — is plain usurpationof power entrusted to another arm of the State. There can beno manner of doubt that the High Court has transgressed thelimitations imposed upon the power of judicial review under Article226 by issuing the above directions to the State Legislature toamend the law. The Government owes collective responsibility

to the State Legislature. The State Legislature is comprised of

39 (2014) 9 SCC 1

40 (2010) 10 SCC 715

elected representatives. The law enacting body is entrusted withthe power to enact such legislation as it considers necessary todeal with the problems faced by society and to resolve issues ofconcern. The courts do not sit in judgment over legislativeexpediency or upon legislative policy. This position is well settled.Since the High Court has failed to notice it, we will brieflyrecapitulate the principles which emerge from the precedent onthe 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 Article226 has no power to direct the executive to exercise its law-making power.

8. In State of H.P. v. Parent of Student of Medical Collegethis Court deprecated the practice of issuing directions to thelegislature to enact law: (SCC p. 174, para 4)

“4. … The direction given by the Division Bench was reallynothing short of an indirect attempt to compel the StateGovernment to initiate legislation with view to curbing theevil of ragging….”

The same principle was followed in Asif Hameed v. State of J&Kwhere this Court observed that: (SCC p. 374, para 19)

“19. … The Constitution does not permit the court to direct oradvise the executive in matter of policy or to sermonise quaany matter which under the Constitution lies within the sphereof the legislature or executive….”

In Union of India v. Assn. for Democratic Reforms this Courtobserved that: (SCC p. 309, para 19)

“19. … it is not possible for this Court to give any directionsfor amending the Act or the statutory Rules. It is for Parliamentto amend the Act and the Rules.”

xxxxxx

12. The judiciary is one amongst the three branches of the State;the other two being the executive and the legislature. Each of thethree branches is co-equal. Each has specified and enumeratedconstitutional powers. The judiciary is assigned with the function

of ensuring that executive actions accord with the law and thatlaws and executive decisions accord with the Constitution. Thecourts do not frame policy or mandate that particular policyshould be followed. The duty to formulate policies is entrusted tothe executive whose accountability is to the legislature and, throughit, to the people. The peril of adopting an incorrect policy lies indemocratic accountability to the people. This is the basis andrationale for holding that the court does not have the power orfunction to direct the executive to adopt particular policy or thelegislature to convert it into enacted law. It is wise to remind us ofthese limits and wiser still to enforce them without exception.”

31. Even more direct on the facts of the present case would bejudgement by one of us, (Mr. Justice Ranjan Gogoi, the Chief Justice), inCommon Cause: Registered Society v. Union of India[41] to thefollowing effect:

“18. There can be no manner of doubt that the parliamentarywisdom of seeking changes in an existing law by means of anamendment lies within the exclusive domain of the legislature andit is not the province of the Court to express any opinion on theexercise of the legislative prerogative in this regard. The framingof the Amendment Bill; reference of the same to the ParliamentaryStanding Committee; the consideration thereof by the saidCommittee; the report prepared along with further steps that arerequired to be taken and the time-frame thereof are essentiallegislative functions which should not be ordinarily subjected tointerference or intervention of the Court. The constitutionaldoctrine of separation of powers and the demarcation of therespective jurisdiction of the Executive, the Legislature and theJudiciary under the constitutional framework would lead the Courtto the conclusion that the exercise of the amendment of the Act,which is presently underway, must be allowed to be completedwithout any intervention of the Court. Any other view and anyinterference, at this juncture, would negate the basic constitutionalprinciple that the legislature is supreme in the sphere of law-making.Reading down statute to make it workable in situation wherean exercise of amendment of the law is pending, will not be justifiedeither. perception, however strong, of the imminent need of the

DEFG

64SUPREME COURT REPORTS

Alaw engrafted in the Act and its beneficial effects on the citizenryof democratic country, by itself, will not permit the Court tooverstep its jurisdiction. Judicial discipline must caution the Courtagainst such an approach.”

32. When the matter is already pending consideration and is beingBexamined for the purpose of legislation, it would not be appropriate forthis Court to enforce its opinion, be it in the form of direction or even arequest, for it would clearly undermine and conflict with the role assignedto the judiciary under the Constitution. In this connection, we may referto the observation of Lord Bingham in Regina (Countryside Alliance)and Others v. Attorney General and Another[42], though made in

Cdifferent context, to the following effect:

“...The democratic process is liable to be subverted if, on questionof moral and political judgment, opponents of the Act achievethrough the courts what they could not achieve in Parliament.”

D33. Confronted with the present situation, Mr. Colin Gonsalves,learned amicus curiae, had submitted that directions can be given to theexecutive to ratify the UN Convention. We do not think that any suchdirection can be issued for it would virtually amount to issuing directionsto enact laws in conformity with the UN Convention, power which wedo not ‘possess’, while exercising power of judicial review.

34. Mr. K.K. Venugopal, learned Attorney General, in hissubmissions has rightly urged that Article 253 of the Constitution whichdeals with the legislation for giving effect to international agreements,confers power on Parliament to make laws for the whole or any part ofthe territory of India for implementing any treaty, agreement or convention,Fnotwithstanding anything contained in the foregoing provisions of ChapterXI of the Constitution. Thus, notwithstanding Articles 245 and 246 of theConstitution, Parliament has the supreme power to make laws forimplementing any treaty or convention which may even encroach uponthe exclusive legislative competence of the States. The executive actionGunder Article 73 of signing and ratifying the convention can beimplemented without any violation of the State’s right when the legislationis passed by the Parliament under Article 253. ‘Police’ and ‘Prisons’ areState subjects. Ratification of the UN Convention would require enactmentof laws under Article 253 of the Constitution, for mere ratification would

not affect and undo the existing laws or result in the enactment of newlaws. Ratification, as is well recognised, is political act and wouldrequire consultation with the State Governments/Union Territories andsubsequent deliberation of their comments by the Union of India. Unionof India has pointed out that they have reservation on Article 20 of theUN Convention. Reference is also made to the Vienna Convention onthe Law of Treaties, 1969, to which India is not party but whichprovisions are reflected in the Standard Operating Procedure issued bythe Ministry of External Affairs in respect of Memorandum ofUnderstanding/Agreement with foreign countries. The StandardOperating Procedure, clause (iv) under Heading – Treaty MakingFormalities which relates to ratification, states that where treaty doesnot provide for its entry into force only upon its signature and makes itsubject to ratification, the treaty requires ratification. In order to ensurethat India is in position to efficiently discharge all obligations emanatingfrom treaties/ agreements, such ratification should be undertaken onlyafter relevant domestic clauses have been amended and the enablinglegislations enacted when there is absence of domestic law on the subject.On the issue that the treaty making power is political act, referencehas been made to the following decisions: Union of India and Anotherv. Azadi Bachao Andolan and Another[43]; Rosiline George v. Unionof India and Others[44]; Sakshi v. Union of India and Others[45]; andP.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 theright to life and the right to liberty are of foremost importance in ademocratic state and, therefore, any form of torture would violate theright to life and is prohibited by Article 21 of the Constitution. Suchaction would be unconstitutional under Article 21 and would fail the testof non-arbitrariness under Article 14 of the Constitution. Indeed, thecourts have been at the forefront in protecting and safeguarding individualrights. In 1982, on the basis of letter written by journalist complainingof custodial violence suffered by women prisoners in police lock-ups inthe city of Bombay, this Court in Sheela Barse v. State of Maharashtra[47]43 (2004) 10 SCC 1

44 (1994) 2 SCC 80

45 (2004) 5 SCC 518

46 AIR 1994 Bom 323

47 (1983) 2 SCC 96

Ahad issued the guidelines to safeguard the rights of arrested personsincluding female prisoners to afford them protection in police lock-upsfrom possible torture or ill-treatment. person detained in prison isentitled to live with human dignity and his detention in prison should beregulated by procedure established by law which must be reasonable,fair and just. This can be done by applying, elucidating and even creativelyBexpanding existing laws and principles on case to case basis. Judiciarywhile exercising its jurisdiction in this manner is not enacting or legislatingbut applying the Constitution and protecting fundamental rights underArticle 21 of the Constitution.

36. This human right aspect was again highlighted in NilabatiCBehera (Smt) alias Lalita Behera (Through the Supreme Court LegalAid Committee) v. State of Orissa and Others[48] to state that theconvicts, prisoners or under-trials must not be denuded of theirfundamental rights under Article 21 and only such restrictions as arepermitted by law can be imposed. It is the responsibility of the prisonDauthority and the police to ensure that the person in custody is not deprivedof his right to life, even if his liberty is circumscribed by the fact that theperson is in confinement. Even limited liberty is precious and it is theduty of the State to ensure that even person in custody is dealt with inaccordance with the procedure established by law. In the State of

Madhya Pradesh v. Shyamsunder Trivedi and Others[49]this CourtEhad highlighted that sensitive and realistic rather than narrow technicalapproach is required while dealing with cases of custodial crime. Thecourt must act within its powers and as far as possible try that the guiltyshould not escape to ensure that the rule of law prevails.

37. We would take note of the judgment of this Court in D.K.FBasu (supra)wherein the following directions/ guidelines with respectto rights/custodial torture were issued:

“(1)The police personnel carrying out the arrest and handlingthe interrogation of the arrestee should bear accurate, visibleand clear identification and name tags with their designations.GThe particulars of all such police personnel who handleinterrogation of the arrestee must be recorded in register.

(2)That the police officer carrying out the arrest of the arresteeshall prepare memo of arrest at the time of arrest and48 (1993) 2 SCC 746H49 (1995) 4 SCC 262

such memo shall be attested by atleast one witness, whomay be either member of the family of the arrestee or arespectable person of the locality from where the arrest ismade. It shall also be counter signed by the arrestee andshall contain the time and date of arrest.

(3)A person who has been arrested or detained and is beingheld in custody in police station or interrogation center orother lock-up, shall be entitled to have one friend or relativeor other person known to him or having interest in his welfarebeing informed, as soon as practicable, that he has beenarrested and is being detained at the particular place, unlessthe attesting witness of the memo of arrest is himself sucha friend or relative of the arrestee.

(4)The time, place of arrest and venue of custody of an arresteemust be notified by the police where the next friend orrelative of the arrestee lives outside the district or townthrough the Legal Aid Organisation in the District and thepolice station of the area concerned telegraphically withina period of 8 to 12 hours after the arrest.

(5)The person arrested must be made aware of this right tohave someone informed of his arrest or detention as soonas he is put under arrest or is detained.

(6)An entry must be made in the diary at the place of detentionregarding the arrest of the person which shall also disclosethe name of the next friend of the person who has beeninformed of the arrest and the names and particulars of thepolice officials in whose custody the arrestee is.

(7)The arrestee should, where he so requests, be also examinedat the time of his arrest and major and minor injuries, if anypresent on his/her body, must be recorded at that time. The“Inspection Memo” must be signed both by the arresteeand the police officer effecting the arrest and its copyprovided to the arrestee.

(8)The arrestee should be subjected to medical examinationby trained doctor every 48 hours during his detention incustody by doctor on the panel of approved doctorsappointed by Director, Health Services of the concerned

AState or Union Territory. Director, Health Services shouldprepare such penal for all Tehsils and Districts as well.

(9)Copies of all the documents including the memo of arrest,referred to above, should be sent to the illaqa Magistratefor his record.

(10)The arrestee may be permitted to meet his lawyer duringinterrogation, though not throughout the interrogation.

(11)A police control room should be provided at all district andstate headquarters, where information regarding the arrestand the place of custody of the arrestee shall beCcommunicated by the officer causing the arrest, within 12hours of effecting the arrest and at the police control roomit should be displayed on conspicuous notice board.”

38. The law in this regard is also laid down in Sections 330 and331 of the IPC which relate to ‘voluntarily causing hurt to extortDconfession or to compel restoration of property’ and ‘voluntarily causinggrievous hurt to extort confession or to compel restoration of property’respectively.

39. In terms of the aforesaid edicts, legal jurisprudence hasdeveloped for providing compensation for the unconstitutional deprivationEof fundamental right to life and liberty as public remedy in addition toclaims in private law for damages by tortuous acts of public servants. InD.K. Basu (supra)the public law remedy for award of compensationwas elucidated as arising from indefeasible rights guaranteed under Article21 and justified on the ground that the purpose of public law is not only toFcivilise public power but also to ensure that the citizens live under legalsystem where their rights and interests are protected and preserved.For the grant of compensation, therefore, proceedings under Article 32or 226 of the Constitution are entertained when violation of thefundamental rights granted under Article 21 is established. In such cases,claims of citizen are tried on the principle of strict liability where defenceGof sovereignty may not be available. In S. Nambi Narayanan v. SibyMathews and Others[50]where criminal proceedings were initiated againstNambi Narayanan but it was found that the prosecution story was asham, compensation of Rs. 50 lakhs was awarded for the anxiety sufferedand maltreatment meted out to him.

H50 (2018) 10 SCC 804

40. We have no hesitation in observing that notwithstanding theaforesaid directions in D.K. Basu (supra) and the principles of law laiddown in Prithipal Singh and Others v. State of Punjab and Another[51]and S. Nambi Narayanan (supra),this Court can, in an appropriatematter and on the basis of pleadings and factual matrix before it, issueappropriate guidelines/directions to elucidate, add and improve upon thedirections issued in D.K. Basu (supra) and other cases when conditionsstated in paragraph 27 supra are satisfied. However, this is not what isurged and prayed by the applicant. The contention of the applicant isthat this Court must direct the legislature, that is, Parliament, to enact asuitable standalone comprehensive legislation based on the UN Conventionand this direction, if issued, would be in consonance with the Constitutionof 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 inany way affect the jurisdiction of the courts to deal with individual casesof alleged custodial torture and pass appropriate orders and directions inaccordance with law.

Devika Gujral

M.A. disposed of.

51 (2012) 1 SCC 10