The Leaflet

| @theleaflet_in | September 5,2019

[dropcap]S[/dropcap]UPREME Court on Thursday rejected a petition filed by former Law Minister Dr. Ashwani Kumar, seeking a comprehensible legislation on custodial torture.

The petitioner had sought directions for the Parliament to enact an effective legislation based on the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the UN General Assembly and opened for signature, ratification and accession on December 10, 1984.

India had signed the UN Convention on October 14, 1997. However, it has not ratified the UN Convention.

The court accepted the contention of the Attorney General for India KK Venugopal 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 convention, which may even encroach upon the exclusive legislative competence of the states,” he stated.

Arguing before a three-judge bench comprising the Chief Justice of India Ranjan Gogoi and Justices Dinesh Maheshwari and Sanjiv Khanna, he said, “The contention of the applicant is that this court must direct the legislature, that is, Parliament, to enact a suitable standalone comprehensive legislation based on the UN Convention and this direction, if issued, would be in consonance with the Constitution of India. This prayer must be rejected.”

The central government had stated that the draft legislation prepared on the basis of the Law Commission’s report is under active consideration and was referred to stakeholders including the states and Union Territories for their inputs and suggestions.

“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,” the court noted.

The petitioner, predicating his case on the right to life and liberty and judgments of the apex court, had urged the Supreme Court to invoke and exercise jurisdiction under Articles 141 and 142 of the Constitution for the protection and advancement of human dignity, a core, and non-negotiable constitutional right. “Custodial torture being a crime against humanity, directly infracts and violates Article 21 of the Constitution,” he argued.

Amicus curiae, Colin Gonsalves, had submitted that directions could be given to the Executive to ratify the UN Convention.

The court, however, observed that it would virtually amount to issuing directions to enact laws in conformity with the UN Convention, saying “a power which we do not possess while exercising the power of judicial review.”

“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”, the court concluded.

Read the order here:

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