REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

MISCELLANEOUS APPLICATION NO. 2560 OF 2018 IN

WRIT PETITION (CIVIL) NO. 738 OF 2016

DR. ASHWANI KUMAR …..            APPLICANT(S)

VERSUS

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

O R D E R

SANJIV KHANNA, J.

This order would dispose of  Miscellaneous Application No.

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

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

Parliament, praying for the following relief:

“In the aforesaid premises, it  is therefore respectfully prayed  that  since  no  action  has  been  taken  by  the Government pursuant to the statement of the Hon’ble Attorney  General,  the  stand  taken  by  the  National Human Rights Commission and the Law Commission of India in its report of October 2017 and because the merit of the prayer is virtually admitted and conceded before this Hon’ble Court, the National Human Rights Commission,  the  Law  Commission  of  India  and  by Select  Committee  of  Parliament,  as  an  integral constituent of the right to life with dignity under Article 21,  this  Hon’ble  Court  may be pleased to direct  the Central  Government  to enact  a suitable stand-alone,

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

comprehensive legislation against custodial torture as it  has directed  in  the  case of  mob violence/lynching vide its judgment 17th July 2018.”

2. The applicant had filed the above-captioned Writ Petition (Civil) No.

738 of  2016 under  Article  32 of  the Constitution of  India for  an

effective and purposive legislative framework/law based upon the

‘Convention  against  Torture  and  Other  Cruel,  Inhuman  or

Degrading Treatment or Punishment’ (“UN Convention”, for short)

adopted by the United Nations General Assembly and opened for

signature, ratification and accession on 10th December 1984.  India

had signed the UN Convention on 14th October 1997. However,

India has not ratified the UN Convention.

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

dated 27th November 2017, which reads as under:

“Mr.  K.K.  Venugopal,  learned  Attorney  General  for India submitted that the prayer made in the writ petition has been the subject matter of discussion in the Law Commission  and  the  Law  Commission  has  already made  certain  recommendations.  He  would  further submit that the report is being seriously considered by the Government.  In view of the aforesaid statement, we do not intend to keep this writ petition pending and it is accordingly disposed of. There shall be no order as to costs.”  

4. The applicant predicating his case on the right to life and liberty

and judgments of this Court had argued that custodial torture being

crime against humanity which directly infracts and violates Article

21  of  the  Constitution,  this  Court  should  invoke  and  exercise MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 2 of 48

jurisdiction under Articles 141 and 142 of the Constitution for the

protection and advancement  of  human dignity,  a  core and non-

negotiable  constitutional  right.  In  D.K.  Basu  v.  State  of  West

Bengal1 custodial torture and violence was described as a wound

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

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

Sunil Batra v.  Delhi Administration and Others2, this Court had

observed  that  the  prisoners  have  enforceable  liberties,  though

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

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

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

v.  Administrator,  Union  Territory  of  Delhi  and  Others3,  this

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

and offensive to human dignity and constitutes an inroad into the

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

law  authorises  and  no  procedure  permits  torture  or  cruelty,

inhuman or degrading treatment. Reference was made to Article 5

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

International Covenant on Civil and Political Rights which prohibits

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

Puttaswamy and Another v.  Union of  India  and Others4 this

1 (1997) 1 SCC 416 2 (1978) 4 SCC 494 3 (1981) 1 SCC 608 4 (2017) 10 SCC 1 MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 3 of 48

Court  had  once  again  emphased on  the  right  to  human dignity

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

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

infringed and physical or mental welfare is negated and harmed,

the Court would intervene to protect and safeguard constitutional

values.  Reference  was  also  made  to  the  decision  in  Romila

Thapar and Others  v.  Union of India and Others5 claiming that

despite  existing  law  and  repeated  judicial  decisions,  custodial

torture still remains rampant and widespread in India. Our attention

was drawn to the report of Asian Centre for Human Rights which

was based, inter alia, on the information and data furnished by the

Government of India in Parliament, acknowledging 1674 custodial

deaths, including 1530 deaths in judicial custody and 144 deaths in

police  custody  during  the  period  1st April  2017 to  28th February

2018.  India  has  consistently  and  unequivocally  condemned  and

deprecated custodial torture at international forums and has signed

the UN Convention but the Government’s reluctance to ratify the

UN Convention, which envisages a comprehensive and standalone

legislation,  it  was  argued,  is  baffling  and  unintelligible.  Indian

statutory law at present is not in harmony and falls short on several

accounts,  both  procedurally  and  substantively,  with  the  UN

Convention and, thus, there is an urgent and immediate need for

5 (2018) 10 SCC 753 MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 4 of 48

an  all-embracing  standalone  enactment  based  on  the  UN

Convention. Articles 51(c) and 253 of the Constitution underscore

the  ‘constitutional  imperative’  of  aligning  domestic  laws  with

international law and obligations. The legislation as prayed, it was

submitted,  would  fulfil  the  constitutional  obligations  of  the

Government  of  India  and  the  constitutional  goals  which  the

Government  ought  to  achieve.  Accordingly,  the  directions  as

prayed for would not entrench upon Parliament’s domain to enact

laws as they directly relate to the protection and preservation of

human rights. The directions are justified and necessary in view of

the  delay  and  inaction  in  enacting  the  law,  notwithstanding  the

recommendations  made  by  the  National  Human  Rights

Commission,  report  of  the Law Commission of  India  in  October

2017, and report of the Select Committee of Parliament dated 2 th

December 2010 and repeated commitments made by the Indian

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

Union of India and Others6 wherein this Court had highlighted the

need  for  enactment  of  a  suitable  legislation  to  deal  with  mob

violence/lynching  in  the  country.  Reliance  was  placed  on

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

Rajasthan and Others7,  Vineet Narain and Others  v.  Union of

6 (2018) 9 SCC 501 7 (1997) 6 SCC 241 MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 5 of 48

India  and  Another8,  Destruction  of  Public  and  Private

Properties,  In  RE  v.  State  of  Andhra  Pradesh  and  Others9,

Lakshmi Kant Pandey v. Union of India10, State of West Bengal

and  Others  v.  Sampat  Lal  and  Others11,  K.  Veeraswami  v.

Union  of  India  and  Others12 and  Delhi  Judicial  Service

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

Others13.  While  referring  to  Mahender  Chawla  and  Others  v.

Union  of  India  and  Others14,  and  other  decisions  including

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

not flinched from suggesting, recommending, advising, guiding and

directing  the  Government  of  India  with  respect  to  statutory

enactments.  It  was  submitted  that  the  delay  and  inaction  in

implementing the constitutional obligation relates back to the year

1997  when  India  had  signed  the  UN  Convention,  but  the

Government  has  failed  to  enact  a  comprehensive  legislation

despite  commitments  and  recommendations  made  and  noticed

above.  This,  it  was  submitted,  reflects  unreasonable  and

unacceptable conduct of the Government in shielding infringement

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

Thus, the Court may issue directions to the Union of India to enact 8 (1998) 1 SCC 226 9 (2009) 5 SCC 212 10 (1984) 2 SCC 244 11 (1985) 1 SCC 317 12 (1991) 3 SCC 655 13 (1991) 4 SCC 406 14 (2018) SCC Online 2679 MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 6 of 48

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

Convention.

5. It may be noted here that the applicant was the Chairperson of the

Select Committee of the Rajya Sabha that had submitted the report

on  custodial  torture  depicting  the  need  for  a  comprehensive

standalone legislation.

6. Respondent No.1 – Union of India, in its response, has stated that

the draft legislation prepared on the basis of the Law Commission’s

report  is  under  active  consideration  and  was  referred  to

stakeholders,  that  is,  the  States  and  Union  Territories  for  their

inputs and suggestions. It was highlighted that the ‘Criminal Laws’

and  the  ‘Criminal  Procedure’  fall  in  the  Concurrent  List  of  the

Seventh  Schedule  to  the  Constitution  of  India  and,  therefore,

comments and views of the State Governments/Union Territories

were  solicited  on  the  recommendations  made  by  the  Law

Commission of India. There may have been some delay as some

States did not furnish their response, albeit the Union of India took

steps  by  sending  reminders  on  27th June  2018,  27th November

2018  and  20th December  2018.  Subsequent  affidavit  dated  12th

February 2019 discloses that all States and Union Territories have

filed their inputs/suggestions and that the question of enacting a

legislation is under consideration. A legislation of this nature given MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 7 of 48

the nuances, niceties and spectrum of divergent views and choices

is a complex and challenging task.  Laws are legislated after due

debate, deliberation and once the required consensus is formed.

Any direction by this Court requiring the Parliament to frame a law

or  modify  an  enactment  in  a  particular  manner  would  violate

doctrine  of  separation  of  powers,  a  basic  feature  of  the

Constitution.  Parliament  as  an  elected  body  representing  the

citizenry is bestowed with constitutional power to enact laws, which

create  rights,  obligations  and  duties  with  attendant  penalties.

Existing municipal  laws governing the field as interpreted by the

Courts apply in matters of custodial torture.  

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

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

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

counsel for the National Human Rights Commission, the second

respondent before us.

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

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

applicant  that  this  Court  should  direct  Parliament  to  enact  a

standalone and comprehensive legislation against custodial torture

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

to  examine  and  answer  the  question  that  whether  within  the MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 8 of 48

constitutional  scheme,  this  Court  can  and  should  issue  any

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

Convention.  

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

by  Montesquieu  which  forms  the  bedrock  of  the  American

Constitution  is  clearly  inapplicable  to  parliamentary  form  of

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

legislative wings in terms of the powers and functions they exercise

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

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

Constitution, which is supreme and adumbrates as well as divides

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

legislature,  the  executive  and  the  judiciary.  These  divisions  are

boundaries  and  limits  fixed  by  the  Constitution  to  check  and

prevent transgression by any one of the three branches into the

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

wing. The three branches have to respect the constitutional division

and not disturb the allocation of roles and functions between the

triad. Adherence to the constitutional scheme dividing the powers

and  functions  is  a  guard  and  check  against  potential  abuse  of

power and the rule of law is secured when each branch observes

the constitutional limitations to their powers, functions and roles.

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10. Modern theory of separation of powers does not accept that the

three branches perform mutually isolated roles and functions and

accepts  a  need  for  coordinated  institutional  effort  for  good

governance, albeit emphasises on benefits of division of power and

labour by accepting the three wings do have separate and distinct

roles  and functions that  are  defined  by  the Constitution.  All  the

institutions must act within their own jurisdiction and not trespass

into the jurisdiction of  the other. Beyond this,  each branch must

support each other in the general interest of good governance. This

separation ensures the rule of law in at least two ways. It  gives

constitutional and institutional legitimacy to the decisions by each

branch, that is, enactments passed by the legislature, orders and

policy  decisions  taken  by  the  executive  and  adjudication  and

judgments pronounced by the judiciary in exercise of the power of

judicial review on validity of legislation and governmental action. By

segregating  the  powers  and  functions  of  the  institutions,  the

Constitution ensures a structure where the institutions function as

per  their  institutional  strengths.  Secondly,  and  somewhat

paradoxically, it creates a system of checks and balances as the

Constitution provides a degree of latitude for interference by each

branch into the functions and tasks performed by the other branch.

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

It  checks  concentration  of  power  in  a  particular  branch  or  an

institution.

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

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

procedures  applied  are  designed  to  give  careful  thought  and

consideration  to  wide  and  divergent  interests,  voices  and  all

shades  of  opinion  from  different  social  and  political  groups.

Legislature functions as a deliberative and representative body. It is

directly accountable and answerable to the electorate and citizens

of  this  country.  This  representativeness  and  principle  of

accountability is what gives legitimacy to the legislations and laws

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

Constitution  empowers  Parliament  and  the  state  legislatures  to

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

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

discussion in Parliament/ the state assembly.

12. The  executive  has  the  primary  responsibility  of  formulating

government policies and proposing legislations which when passed

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

the  Constitution,  the  powers  and  functions  of  the  executive  are

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

Parliament/state  legislature  can  make  laws  and  vests  with  the MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 11 of 48

executive  the  authority  and  jurisdiction  exercisable  by  the

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

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

the legislation, the executive makes second stage laws known as

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

legislation,  the  executive  has  the  power  to  frame  policies,

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

or the state legislature to make laws. At the same time, the political

executive is accountable to the legislature and holds office till they

enjoy the support and confidence of the legislature. Thus, there is

interdependence,  interaction  and  even  commonality  of

personnel/members  of  the  legislature  and  the  executive.  The

executive,  therefore,  performs  multi-functional  role  and  is  not

monolithic. Notwithstanding this multifunctional and pervasive role,

the constitutional scheme ensures that within this interdependence,

there is a degree of separation that acts as a mechanism to check

interference and protect the non-political executive. Part XIV of the

Constitution relates to “Services under the Union and the States”,

i.e.,  recruitment, tenure, terms and conditions of service, etc., of

persons  serving  the  Union  or  a  State  and  accords  them  a

substantial degree of protection. “Office of profit” bar, as applicable

to legislators and prescribed vide Articles 102 and 191, is to ensure

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 12 of 48

separation  and  independence  between  the  legislature  and  the

executive.   

13. The most significant impact of the doctrine of separation of powers

is seen and felt in terms of the institutional independence of the

judiciary  from  other  organs  of  the  State.  Judiciary,  in  terms  of

personnel, the Judges, is independent. Judges unlike members of

the  legislature  represent  no  one,  strictly  speaking  not  even  the

citizens.  Judges  are  not  accountable  and  answerable  as  the

political  executive  is  to  the  legislature  and  the  elected

representatives are to the electorate. This independence ensures

that the judges perform the constitutional function of safeguarding

the supremacy of  the Constitution while exercising the power of

judicial review in a fair and even-handed manner without pressure

and  favours.  As  an  interpreter,  guardian  and  protector  of  the

Constitution,  the  judiciary  checks  and  curbs  violation  of  the

Constitution  by  the  Government  when  they  overstep  their

constitutional limits, violate the basic structure of the Constitution,

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

review has expanded taking within its ambit the concept of social

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

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

Constitution  for  the  legislature  and  the  executive,  as  the  courts

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 13 of 48

examine legality and validity of the legislation or the governmental

action,  and  not  the  wisdom  behind  the  legislative  measure  or

relative merits or demerits of the governmental action. Neither does

the Constitution permit  the courts to direct,  advise or  sermonise

others  in  the  spheres  reserved  for  them  by  the  Constitution,

provided the legislature or  the executive do not  transgress their

constitutional limits or statutory conditions. Referring to the phrase

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

while exercising the power of judicial review, it has been observed15

that the judiciary must be on guard against encroaching beyond its

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

discipline  of  self-restraint.  Independence  and  adherence  to

constitutional accountability and limits while exercising the power of

judicial review gives constitutional legitimacy to the court decisions.

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

strengthens and promotes the rule of law.  

15 Asif Hameed & Others v. State of Jammu & Kashmir & Others, 1989 Supp. (2) SCC 364 quoting with approval dissenting opinion of Frankfurter J. in Trop v. Dulles. Frankfurter J. had observed:

“Rigorous observance of the difference between limits of power and wise exercise of power — between questions of authority and questions of prudence — requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail  to disregard one’s own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the court’s giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the executive branch do.”

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

14. Constitutional  Bench  judgments  in His  Holiness  Kesavananda

Bharati Sripadagalvaru v. State of Kerala and Another16 , State

of Rajasthan and Others  v.  Union of India and Others17, I.R.

Coelho (Dead) by LRs.  v.  State of Tamil Nadu18 and State of

Tamil  Nadu  v.  State  of  Kerala19 have  uniformly  ruled  that  the

doctrine of separation of powers, though not specifically engrafted,

is constitutionally entrenched and forms part of the basic structure

as its sweep, operation and visibility are apparent. Constitution has

made demarcation, without drawing formal lines, amongst the three

organs with the duty of  the judiciary to scrutinise the limits  and

whether or not the limits have been transgressed. These judgments

refer  to  the  constitutional  scheme  incorporating  checks  and

balances. As a sequitur, the doctrine restrains the legislature from

declaring the judgment of a court to be void and of no effect, while

the  legislature  still  possesses  the  legislative  competence  of

enacting a validating law which remedies the defect pointed out in

the  judgment.20 However,  this  does  not  ordain  and  permit  the

legislature to declare a judgment as invalid by enacting a law, but

permits the legislature to take away the basis of the judgment by

fundamentally  altering  the  basis  on  which  it  was  pronounced.

16 (1973) 4 SCC 225 17 (1977) 3 SCC 592 18 (2007) 2 SCC 1  19 (2014) 12 SCC 696

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

MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 15 of 48

Therefore,  while  exercising  all  important  checks  and  balances

function,  each  wing  should  be  conscious  of  the  enormous

responsibility that rests on them to ensure that institutional respect

and comity is maintained.

15. In  Binoy  Viswam  v.  Union  of  India  and  Others21,  this  Court

referring to the Constitution had observed that the powers to be

exercised by the three wings of the State have an avowed purpose

and  each  branch  is  constitutionally  mandated  to  act  within  its

sphere  and  to  have  mutual  institutional  respect  to  realise  the

constitutional  goal  and  to  ensure  that  there  is  no  constitutional

transgression.  It  is  the Constitution which has created the three

wings of the State and, thus, each branch must oblige the other by

not stepping beyond its territory.

16. In Kalpana Mehta and Others v. Union of India and Others22, Mr.

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

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

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

Constitution is a supreme fundamental law which requires that all

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

consonance  and  in  accord  with  the  constitutional  limits,  for  the

21 (2017) 7 SCC 59 22 (2018) 7 SCC 1 MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 16 of 48

legislature,  the executive  and  the  judiciary  derive their  authority

and  jurisdiction  from the  Constitution.  Legislature  stands  vested

with  an  exclusive  authority  to  make  laws  thereby  giving  it  a

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

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

Constitution, as:

“41. This  Court  has the constitutional  power  and the authority  to  interpret  the  constitutional  provisions  as well as the statutory provisions. The conferment of the power  of  judicial  review has a great  sanctity  as  the constitutional court has the power to declare any law as unconstitutional if there is lack of competence of the legislature keeping in  view the field  of  legislation as provided  in  the  Constitution  or  if  a  provision contravenes or runs counter to any of the fundamental rights or any constitutional provision or if a provision is manifestly arbitrary.”

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

“42. When we speak  about  judicial  review,  it  is  also necessary  to  be  alive  to  the  concept  of  judicial restraint.  The  duty  of  judicial  review  which  the Constitution has  bestowed  upon  the  judiciary  is  not unfettered;  it  comes within  the conception of  judicial restraint. The principle of judicial restraint requires that Judges ought to decide cases while being within their defined  limits  of  power.  Judges  are  expected  to interpret any law or any provision of the Constitution as per the limits laid down by the Constitution.”

Earlier, Dipak Misra, CJ had observed:

“39. From the above authorities, it is quite vivid that the concept  of  constitutional  limitation  is  a  facet  of  the doctrine of separation of powers. At this stage, we may clearly  state  that  there  can  really  be  no  straitjacket approach in the sphere of separation of powers when issues involve democracy, the essential  morality  that

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

flows from the Constitution, interest of the citizens in certain spheres like environment, sustenance of social interest,  etc.  and empowering the populace with  the right to information or right to know in matters relating to candidates contesting election. There can be many an example where this Court has issued directions to the  executive  and  also  formulated  guidelines  for facilitation and in furtherance of fundamental rights and sometimes  for  the  actualisation  and  fructification  of statutory rights.”

18. D.Y. Chandrachud, J., in his separate and concurring judgment for

himself and A.K. Sikri, J. in Kalpana Mehta (supra) had referred to

the nuanced ‘doctrine of functional separation’ that finds articulation

in the articles/books by Peter A. Gerangelos  in his work titled ‘The

Separation  of  Powers  and  Legislative  Interference  in  Judicial

Process, Constitutional Principles and Limitations’23,  M.J.C. Vile’s

book  titled ‘Constitutionalism  and  the  Separation  of  Powers’24,

Aileen  Kavanagh  in  her  work  ‘The  Constitutional  Separation  of

Powers’25 and Eoin Carolan in his book titled ‘The New Separation

of Powers – A Theory for the Modern State’26. These authors in the

context  of  modern  administrative  State  have  reconstructed  the

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

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

highlighting the need of interaction and interdependence amongst

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

23 Hart Publishing, 2009 24 Oxford University Press, 1967 25 David Dyzenhaus and Malcolm Thorburn (eds.), Philosophical Foundations of Constitutional Law

(Oxford: Oxford University Press, 2016)  26 Oxford University Press, 2009 MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 18 of 48

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

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

the  machinery  of  the  State.  Independent  judiciary  acts  as  a

restraining influence on the arbitrary exercise of power.

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

cited the following judgements:

“249. In State of  U.P. v. Jeet  S.  Bisht,  the Court  held that  the  doctrine  of  separation  of  powers  limits  the “active  jurisdiction”  of  each  branch  of  Government. However, even when the active jurisdiction of an organ of the State is not challenged, the doctrine allows for methods to be used to prod and communicate to an institution  either  its  shortfalls  or  excesses  in discharging  its  duty.  The  Court  recognised  that fundamentally, the purpose of the doctrine is to act as a scheme of checks and balances over the activities of other  organs.  The  Court  noted  that  the  modern concept  of  separation  of  powers  subscribes  to  the understanding  that  it  should  not  only  demarcate  the area of functioning of various organs of the State, but should  also,  to  some  extent,  define  the  minimum content  in  that  delineated  area  of  functioning.  S.B. Sinha,  J.  addressed  the  need  for  the  doctrine  to evolve,  as  administrative  bodies  are  involved  in  the dispensation of socio-economic entitlements: (SCC p. 619, para 83)

“83. If we notice the evolution of separation of  powers  doctrine,  traditionally  the checks and  balances  dimension  was  only associated with governmental excesses and violations.  But  in  today's  world  of  positive rights  and  justifiable social  and  economic entitlements,  hybrid  administrative  bodies, private  functionaries  discharging  public functions, we have to perform the oversight function with more urgency and enlarge the field  of checks  and  balances to  include governmental  inaction.  Otherwise  we

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envisage the country getting transformed into a state of repose. Social engineering as well as  institutional  engineering  therefore  forms part of this obligation.”

(emphasis in original) xx xx xx

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

“678. There is quite clearly an entire host of parliamentary and legislative checks placed on  the  judiciary  whereby  its  administrative functioning  can  be  and  is  controlled,  but these do not necessarily violate the theory of separation  of  powers  or  infringe  the independence  of  the  judiciary  as  far  as decision-making is concerned. As has been repeatedly held, the theory of separation of powers  is  not  rigidly  implemented  in  our Constitution, but if there is an overlap in the form  of  a  check  with  reference  to  an essential  or  a  basic  function or  element  of one  organ  of  State  as  against  another,  a constitutional  issue does  arise.  It  is  in  this context  that  the  99th  Constitution Amendment Act has to be viewed—whether it impacts on a basic or an essential element of the independence of the judiciary, namely, its decisional independence.”

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

“254. While assessing the impact of the separation of powers upon the present controversy, certain precepts must be formulated. Separation of powers between the legislature, the executive and the judiciary is a basic feature of the Constitution. As a foundational principle which  is  comprised  within  the basic  structure,  it  lies beyond the reach of the constituent power to amend. It cannot be substituted or abrogated. While recognising this  position,  decided  cases  indicate  that  the  Indian

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Constitution does not adopt a separation of powers in the strict sense. Textbook examples of exceptions to the  doctrine  include  the  power  of  the  executive  to frame  subordinate  legislation,  the  power  of  the legislature to punish for contempt of its privileges and the authority entrusted to the Supreme Court and the High  Courts  to  regulate  their  own  procedures  by framing  rules.  In  making  subordinate  legislation,  the executive  is  entrusted  by  the  legislature  to  make delegated legislation, subject  to its control.  The rule- making power of the higher judiciary has trappings of a legislative character.  The power  of  the legislature  to punish  for  contempt  of  its  privileges  has  a  judicial character.  These  exceptions  indicate  that  the separation doctrine has not been adopted in the strict form  in  our  Constitution.  But  the  importance  of  the doctrine lies in its postulate that the essential functions entrusted  to  one  organ  of  the  State  cannot  be exercised  by  the  other.  By  standing  against  the usurpation of constitutional powers entrusted to other organs, separation of powers supports the rule of law and guards against authoritarian excesses.

255.  Parliament  and the State  Legislatures legislate. The executive frames policies and administers the law. The judiciary decides and adjudicates upon disputes in the course of which facts are proved and the law is applied. The distinction between the legislative function and  judicial  functions  is  enhanced  by  the  basic structure  doctrine.  The  legislature  is  constitutionally entrusted with the power to legislate.  Courts are not entrusted  with  the  power  to  enact  law.  Yet,  in  a constitutional  democracy  which  is  founded  on  the supremacy  of  the  Constitution,  it  is  an  accepted principle  of  jurisprudence  that  the  judiciary  has  the authority to test  the validity  of  legislation.  Legislation can be invalidated where the enacting legislature lacks legislative competence or where there is a violation of fundamental rights. A law which is constitutionally ultra vires can be declared to be so in the exercise of the power of judicial review. Judicial review is indeed also a  part  of  the  basic  features  of  the  Constitution. Entrustment to the judiciary of  the power to test  the validity of law is an established constitutional principle which co-exists with the separation of powers. Where a law  is  held  to  be  ultra  vires  there  is  no  breach  of parliamentary privileges for the simple reason that all

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institutions created by the Constitution are subject to constitutional  limitations.  The  legislature,  it  is  well settled, cannot simply declare that the judgment of a court  is  invalid  or  that  it  stands  nullified.  If  the legislature  were  permitted  to  do  so,  it  would  travel beyond the boundaries  of  constitutional  entrustment. While the separation of powers prevents the legislature from  issuing  a  mere  declaration  that  a  judgment  is erroneous or invalid, the law-making body is entitled to enact  a law which remedies the defects which have been  pointed  out  by  the  court.  Enactment  of  a  law which  takes  away  the  basis  of  the  judgment  (as opposed to  merely  invalidating it)  is  permissible and does  not  constitute  a  violation  of  the  separation doctrine. That indeed is the basis on which validating legislation is permitted.

256. This discussion leads to the conclusion that while the separation of powers, as a principle, constitutes the cornerstone  of  our  democratic  Constitution,  its application  in  the  actual  governance  of  the  polity  is nuanced. The nuances of the doctrine recognise that while the essential functions of one organ of the State cannot be taken over by the other and that a sense of institutional  comity  must  guide  the  work  of  the legislature,  executive  and  judiciary,  the  practical problems which  arise  in  the  unfolding  of  democracy can be resolved through robust constitutional cultures and mechanisms. The separation doctrine cannot be reduced  to  its  descriptive  content,  bereft  of  its normative  features.  Evidently,  it  has  both  normative and descriptive  features.  In  applying it  to  the Indian Constitution, the significant precept to be borne in mind is  that  no  institution  of  governance  lies  above  the Constitution. No entrustment of power is absolute.”

21. Having elucidated the doctrinal basis of separation of powers and

mutual  interaction between the three organs of  the State in  the

democratic set-up, it would be important to draw clear distinction

between interpretation and adjudication by the courts on one hand

and the power to enact legislation by the legislature on the other.

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Adjudication results in what is often described as judge made law,

but the interpretation of the statutes and the rights in accordance

with  the  provisions  of  Articles  14,  19  and  21  in  the  course  of

adjudication is not an attempt or an act of legislation by the judges.

Reference in this regard can be made to the opinion expressed by

F.M. Ibrahim Kalifulla, J.  in  Union of India  v.  V. Sriharan alias

Murugan  and  Others27 who  had, in  the  context  of  capital

punishment  for  offences  under  Section 302 of  the Indian Penal

Code (“IPC”, for short), held that the lawmakers have entrusted the

task of weighing and measuring the gravity of the offence with the

institution of judiciary by reposing a very high amount of confidence

and  trust.  It  requires  a  judge  to  apply  his  judicial  mind  after

weighing the pros and cons of the crime committed in the golden

scales to ensure that the justice is delivered. In a way, therefore,

the legislature itself entrusts the judiciary to lay down parameters in

the form of  precedents which is  oft-spoken as  judge made law.

This is true of many a legislations. Such law, even if made by the

judiciary,  would not infringe the doctrine of separation of powers

and  is  in  conformity  with  the  constitutional  functions.  This

distinction between the two has been aptly expressed by  Aileen

Kavanagh in the following words:

27 (2016) 7 SCC 1 MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 23 of 48

“In general, the ability and power of the courts to make new  law  is  generally  more  limited  than  that  of  the legislators, since courts typically make law by filling in gaps in existing legal frameworks, extending existing doctrines  incrementally  on  a  case-by-case  basis, adjusting  them  to  changing  circumstances,  etc. Judicial lawmaking powers tend to be piecemeal and incremental and the courts must reason according to law, even when developing it. By contrast, legislators have  the  power  to  make  radical,  broad-ranging changes in the law, which are not based on existing legal norms....”

22. Seven Judges of this Court in  P. Ramachandra Rao  v.  State of

Karnataka28 had, while interpreting Articles 21, 32, 141 and 142 of

the Constitution, held that prescribing period at which criminal trial

would terminate resulting in acquittal or discharge of the accused,

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

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

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

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

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

can issue appropriate and binding directions for enforcing the laws,

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

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

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

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

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

28 (2002) 4 SCC 578 MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 24 of 48

of  Criminal  Procedure,  1973.  Drawing  distinction  between

legislation as the source of  law which consists  of  declaration of

legal  rules  by  a  competent  authority  and  judicial  decisions

pronounced  by  the  judges  laying  down  principles  of  general

application,  reference  was  made  to  Salmond  on  Principles  of

Jurisprudence (12th Edition) which says:  

“we  must  distinguish  law-making  by  legislators from  law-making  by  the  courts.  Legislators  can  lay down rules purely for the future and without reference to any actual dispute; the courts, insofar as they create law, can do so only in application to the cases before them and only insofar as is necessary for their solution. Judicial law-making is incidental to the solving of legal disputes; legislative law-making is the central function of the legislator.”

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

“Judicial Activism in India ─ Transgressing Borders and Enforcing

Limits,” evaluating the legitimacy of judicial activism, wherein it was

observed:

"Directions are either issued to fill  in the gaps in the legislation or to provide for matters that have not been provided by any legislation. The Court has taken over the legislative function not in the traditional interstitial sense but in an overt manner and has justified it  as being  an  essential  component  of  its  role  as  a constitutional court." (p.242)

“In  a  strict  sense  these  are  instances  of  judicial excessivism  that  fly  in  the  face  of  the  doctrine  of separation  of  powers.  The  doctrine  of  separation  of powers envisages that the legislature should make law, the  executive  should  execute  it,  and  the  judiciary should settle disputes in accordance with the existing law.  In  reality  such  watertight  separation  exists

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nowhere and is impracticable. Broadly, it  means that one organ of the State should not perform a function that essentially belongs to another organ. While law- making  through  interpretation  and  expansion  of  the meanings of open-textured expressions such as 'due process of law', 'equal protection of law', or 'freedom of speech and expression' is a legitimate judicial function, the  making  of  an  entirely  new  law  ...  through directions  ...  is  not  a  legitimate  judicial  function." (p.250)

23. From the above, it is apparent that law-making within certain limits

is a legitimate element of a judge’s role, if not inevitable.29 A judge

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

when indeterminate on a particular issue require elucidation and

explanation.30  This requires a judge to interpret the provisions to

decide the case and, in this process, he may take recourse and

rely upon fundamental rights, including the right to life, but even

then he does not legislate a law while interpreting such provisions.

Such interpretation is called  ‘judge made law’  but not legislation.

Aileen  Kavanagh,  in  explaining  the  aforesaid  position,  had

observed:

“...If there has not been a case in point and the judge has to decide on the basis of  legal provisions which may  be  indeterminate  on  the  issue,  then  the  judge cannot decide the case without making new law...This is because Parliament has formulated the Act in broad terms,  which  inevitably  require  elaboration  by  the courts in order to apply it to the circumstances of each new case.  Second, even in cases where judges apply

29 Lord Irvine: ‘Activism and Restraint: Human Rights and Interpretative Process’, (1999) 4 EHRLR 350

30 Aileen Kavanagh: ‘The Elusive Divide between Interpretation and Legislation under the Human Rights Act 1998’ (2004) 24 Oxford Journal of Legal Studies, 259–285

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existing law, they cannot avoid facing the question of whether to change and improve it.... Interpretation has an applicative and creative aspect.”

Legislating  or  law-making  involves  a  choice  to  prioritise

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

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

balancing and integrating exercise to give expression/meaning to

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

representative of several viewpoints so that it garners support from

other  elected  representatives  to  pass  institutional  muster  and

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

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

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

are  constrained  by  the  rules  of  language and by  well  identified

background presumptions as to the manner in which the legislature

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

synonymous with the enactment of law by the legislature. Judges

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

in  a  particular  case.  In  this  manner,  they  complete  the  law

formulated  by  the  legislature  by  applying  it.  This  power  of

interpretation or the power of judicial review is exercised post the

enactment  of  law,  which  is  then  made  subject  matter  of

interpretation or challenge before the courts.

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24. Legislature, as an institution and a wing of the Government, is a

microcosm of the bigger social community possessing qualities of a

democratic  institution  in  terms  of  composition,  diversity  and

accountability.  Legislature  uses  in-built  procedures  carefully

designed and adopted to bring a plenitude of representations and

resources as they have access to information, skills, expertise and

knowledge of the people working within the institution and outside

in the form of executive.31 Process and method of legislation and

judicial  adjudication  are  entirely  distinct.  Judicial  adjudication

involves applying rules of interpretation and law of precedents and

notwithstanding deep understanding, knowledge and wisdom of an

individual judge or the bench, it cannot be equated with law making

in a democratic society by legislators given their wider and broader

diverse polity. The Constitution states that legislature is supreme

and has a final  say in  matters of  legislation when it  reflects on

alternatives and choices with inputs from different quarters, with a

check in the form of democratic accountability and a further check

by the courts which exercise the power of judicial review. It is not

for the judges to seek to develop new all-embracing principles of

law in a way that reflects the stance and opinion of the individual

judges when the society/legislators  as a  whole  are  unclear  and

31 D. Kyritsis, Constitutional Review in a Representative Democracy (2012) 32 Oxford Journal of Legal  Studies  MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 28 of 48

substantially  divided on the relevant  issues32.  In  Bhim Singh v.

Union of India33, while observing that the Constitution does not

strictly prohibit overlapping of functions as this is inevitable in the

modern  parliamentary  democracy,  the  Constitution  prohibits

exercise of functions of another branch which results in wresting

away  of  the  regime  of  constitutional  accountability.  Only  when

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

separation of powers. Constitution not only requires and mandates

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

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

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

a policy decision or a court adjudication.

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

decisions are more easily grasped and taken by the judges rather

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

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

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

enjoy the relative freedom from questions of the moment, which

enables them to take a detached, fair and just view.34 The position

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

32 Lord Browne-Wilkinson in Airedale NHS Trust v. Bland [1993] AC 789 (p. 879-880) 33 (2010) 5 SCC 538 34 See observations of Lord Neuberger in Regina (Nicklinson) and Another v. Ministry of Justice and

Others [2014] UKSC 38  MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 29 of 48

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

legislation for it will run afoul of the constitutional supremacy and

invalidate and subvert the democratic process by which legislations

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

constitutionally unacceptable and untenable.  

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

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

Court to reflect upon the impressive expanse of judicial power in

the  superior  courts  that  requires  and  demands  exercise  of

tremendous responsibility by the courts. Thus, while exercising the

interpretative power, the courts can draw strength from the spirit

and propelling elements underlying the Constitution to realise the

constitutional values but must remain alive to the concept of judicial

restraint which requires the judges to decide cases within defined

limits of power. Thus, the courts would not accept submissions and

pass  orders  purely  on  a  matter  of  policy  or  formulate  judicial

legislation which is for the executive or elected representatives of

the people to enact. Reference was made to some judgments of

this Court in the following words:

“43. In S.C. Chandra v. State of Jharkhand, it has been ruled that  the judiciary  should  exercise restraint  and ordinarily  should  not  encroach  into  the  legislative domain.  In this regard, a reference to a three-Judge Bench  decision  in  Suresh  Seth v.  Indore  Municipal Corpn. is quite instructive. In the said case, a prayer

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

was  made  before  this  Court  to  issue  directions  for appropriate  amendment  in  the  M.P.  Municipal Corporation Act, 1956. Repelling the submission, the Court held that it is purely a matter of policy which is for the elected representatives of the people to decide and no directions can be issued by the Court in this regard.  The  Court  further  observed  that  this  Court cannot issue directions to the legislature to make any particular kind of enactment. In this context, the Court held that under our constitutional scheme, Parliament and Legislative Assemblies exercise sovereign power to  enact  law and no  outside power  or  authority  can issue  a  direction  to  enact  a  particular  kind  of legislation. While so holding, the Court referred to the decision in  Supreme Court Employees’ Welfare Assn. v. Union of India wherein it was held that no court can direct  a  legislature  to  enact  a  particular  law  and similarly  when  an  executive  authority  exercises  a legislative power by way of  a subordinate legislation pursuant  to  the  delegated  authority  of  a  legislature, such executive authority cannot be asked to enact a law  which  it  has  been  empowered  to  do  under  the delegated authority.”

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

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

interpretation or judicial review but this has been in cases where

the  constitutional  courts,  on  the  legitimate  path  of  interpreting

fundamental  rights,  have  acted  benevolently  with  an  object  to

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

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

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

these directions were given subject to the legislature enacting the

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

to legislate. These judgments were based upon gross violations of MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 31 of 48

fundamental rights which were noticed and in view of the vacuum

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

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

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

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

had  continued  for  long  till  the  enactment  of  ‘The  Sexual

Harassment of Women at Workplace (Prevention, Prohibition and

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

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

said legislation even if made by the judiciary without enacting the

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

even if assumably contrary to the directions or guidelines issued by

the  Court,  cannot  be  struck  down  by  reason  of  the

directions/guidelines; it  can be struck down only if  it  violates the

fundamental rights or the right to equality under Article 14 of the

Constitution. These are extraordinary cases where notwithstanding

the institutional reasons and the division of power, this Court has

laid down general rules/guidelines when there has been a clear,

substantive and gross human rights violation,  which significantly

outweighed  and  dwarfed  any  legitimising  concerns  based  upon

separation  of  powers,  lack  of  expertise  and  uncertainty  of  the

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

consequences.35 Same  is  the  position  in  cases  of  gross

environmental  degradation  and  pollution.  However,  a  mere

allegation  of  violation  of  human  rights  or  a  plea  raising

environmental concerns cannot be the ‘bright-line’ to hold that self-

restraint  must give way to judicial  legislation.   Where and when

court  directions  should  be  issued  are  questions  and  issues

involving constitutional dilemmas that mandate a larger debate and

discussion (see observations of  Frankfurter  J.  as quoted in  Asif

Hameed & Others v. State of Jammu & Kashmir & Others in foot

note 15 supra).

28. Such directions must be issued with great care and circumspection

and certainly not when the matter is already pending consideration

and debate with the executive or Parliament. This is not a case

which requires Court’s intervention to give a suggestion for need to

frame a law as the matter is already pending active consideration.

Any  direction  at  this  stage  would  be  interpreted  as  judicial

participation in the enactment of law. This Court in Supreme Court

Employees’  Welfare  Association  v.  Union  of  India  and

Another36 had directed that no court can direct the legislature to

enact  a  particular  law.  Similarly,  when  an  executive  authority

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

36(1989) 4 SCC 187 MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 33 of 48

exercises the legislative power by way of  subordinate legislation

pursuant to delegatory authority of the legislature, such executive

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

empowered  to  do  under  delegated  authority.  Again,  we  would

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

was observed:

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

“33.  From the  aforesaid  pronouncement  of law, it is clear as noonday that it is not within the domain of the courts to embark upon an enquiry  as  to  whether  a  particular  public policy is wise and acceptable or whether a better policy could be evolved. The court can only  interfere  if  the  policy  framed  is absolutely  capricious  or  not  informed  by reasons or totally arbitrary and founded ipse dixit  offending  the  basic  requirement  of Article  14  of  the  Constitution.  In  certain matters, as often said, there can be opinions and  opinions  (sic)  but  the  court  is  not expected to sit as an appellate authority on an opinion.”

29. In V.K. Naswa v. Home Secretary, Union of India and Others37,

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

issue directions to the legislature directly or indirectly and any such

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

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

37(2012) 2 SCC 542 MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 34 of 48

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

to direct and advice the executive in matters of policy. Parliament,

as  the  legislature,  exercises  this  power  to  enact  a  law and  no

outside authority can issue a particular piece of legislation. It is only

in exceptional  cases where there is  a  vacuum and non-existing

position that  the judiciary,  in exercise of  its constitutional  power,

steps in and provides a solution till the legislature comes forward to

perform its role.

30. In State of Himachal Pradesh and Others v. Satpal Saini38, this

Court  had overturned the directions given by the High Court  to

amend provisions of the state enactment after what was described

as  the  plight  of  large  population  of  non-agriculturist  himachalis.

Reference  was  made  to  Supreme  Court  Employees’ Welfare

Association (supra) that no writ of mandamus can be issued to

the  legislature  to  enact  a  particular  legislation  nor  can  such

direction be issued to the executive which exercises the powers to

make rules in the nature of subordinate legislation. Reference was

also  made  to  V.K.  Naswa  (supra)  wherein  several  earlier

judgments were considered and it was held that the courts have a

very limited role and, in its exercise, it is not open to make judicial

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

38(2017) 11 SCC 42 MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 35 of 48

directions to the legislature to enact a law in a particular manner.

Reference was also made to the constitutional bench judgment in

Manoj Narula v. Union of India39 in which a discordant note struck

by  two  judges  in  Gainda  Ram  and  Others  v.  Municipal

Corporation of Delhi and Others40 was held to be contrary to the

Constitution by observing that the decision whether or not Section

8  of  the  Representation  of  the  People  Act,  1951  should  be

amended is solely within the domain of Parliament and, therefore,

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

“6.  The  grievance,  in  our  view,  has  a  sound constitutional  foundation.  The  High  Court  has  while issuing  the  above  directions  acted  in  a  manner contrary to settled limitations on the power of judicial review  under  Article  226  of  the  Constitution.  A direction,  it  is  well  settled,  cannot  be  issued  to  the legislature  to  enact  a  law.  The  power  to  enact legislation  is  a  plenary  constitutional  power  which  is vested in Parliament and the State Legislatures under Articles  245  and  246  of  the  Constitution.  The legislature as the repository of the sovereign legislative power  is  vested  with  the  authority  to  determine whether  a  law  should  be  enacted.  The  doctrine  of separation  of  powers  entrusts  to  the  court  the constitutional function of deciding upon the validity of a law enacted by the legislature,  where a challenge is brought before the High Court under Article 226 (or this Court under Article 32) on the ground that the law lacks in  legislative  competence  or  has  been  enacted  in violation  of  a  constitutional  provision.  But  judicial review cannot encroach upon the basic constitutional function  which  is  entrusted  to  the  legislature  to determine whether a law should be enacted. Whether a provision of law as enacted subserves the object of the law or should be amended is a matter of legislative policy. The court cannot direct the legislature either to

39(2014) 9 SCC 1 40(2010) 10 SCC 715 MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 36 of 48

enact a law or to amend a law which it has enacted for the simple reason that this constitutional function lies in the exclusive domain of the legislature. For the Court to  mandate  an  amendment  of  a  law  — as  did  the Himachal Pradesh High Court — is a plain usurpation of  a  power  entrusted  to  another  arm  of  the  State. There can be no manner of doubt that the High Court has  transgressed  the  limitations  imposed  upon  the power of  judicial  review under Article 226 by issuing the above directions to the State Legislature to amend the  law.  The  Government  owes  a  collective responsibility  to  the  State  Legislature.  The  State Legislature  is  comprised  of  elected  representatives. The law enacting body is entrusted with the power to enact such legislation as it considers necessary to deal with  the  problems  faced  by  society  and  to  resolve issues of concern. The courts do not sit in judgment over legislative expediency or upon legislative policy. This position is well settled. Since the High Court has failed  to  notice  it,  we  will  briefly  recapitulate  the principles  which  emerge  from the  precedent  on  the subject.

7. In Mallikarjuna Rao v. State of A.P. and in V.K. Sood v. Deptt. of Civil Aviation this Court held that the court under Article 226 has no power to direct the executive to exercise its law-making power.

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

“4.  …  The  direction  given  by  the  Division Bench was really nothing short of an indirect attempt to compel the State Government to initiate legislation with a view to curbing the evil of ragging….”

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

“19. … The Constitution does not permit the court  to  direct  or  advise  the  executive  in matter  of  policy  or  to  sermonise  qua  any matter  which  under  the  Constitution  lies

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

within  the  sphere  of  the  legislature  or executive….”

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

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

xx xx xx

12.  The judiciary is one amongst the three branches of the State; the other two being the executive and the legislature.  Each  of  the  three  branches  is  co-equal. Each  has  specified  and  enumerated  constitutional powers. The judiciary is assigned with the function of ensuring  that  executive  actions  accord  with  the  law and that laws and executive decisions accord with the Constitution.  The  courts  do  not  frame  policy  or mandate  that  a  particular  policy  should  be  followed. The  duty  to  formulate  policies  is  entrusted  to  the executive  whose  accountability  is  to  the  legislature and, through it, to the people. The peril of adopting an incorrect policy lies in democratic accountability to the people. This is the basis and rationale for holding that the court does not have the power or function to direct the  executive  to  adopt  a  particular  policy  or  the legislature to convert it into enacted law. It is wise to remind us of these limits and wiser still to enforce them without exception.”

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

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

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

India41 to the following effect:

“18.  There  can  be  no  manner  of  doubt  that  the parliamentary  wisdom  of  seeking  changes  in  an existing law by means of an amendment lies within the exclusive domain  of  the legislature and it  is  not  the

41(2017) 7 SCC 158 MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 38 of 48

province of  the Court  to express any opinion on the exercise  of  the  legislative prerogative  in  this  regard. The framing of  the Amendment Bill;  reference of  the same to  the  Parliamentary  Standing  Committee;  the consideration thereof by the said Committee; the report prepared along with further steps that are required to be  taken  and  the  time-frame  thereof  are  essential legislative  functions  which  should  not  be  ordinarily subjected to interference or intervention of the Court. The constitutional doctrine of separation of powers and the  demarcation  of  the  respective  jurisdiction  of  the Executive, the Legislature and the Judiciary under the constitutional  framework would lead the Court  to the conclusion that the exercise of the amendment of the Act, which is presently underway,  must be allowed to be  completed  without  any  intervention  of  the  Court. Any other view and any interference, at this juncture, would negate the basic constitutional principle that the legislature  is  supreme  in  the  sphere  of  law-making. Reading  down  a  statute  to  make  it  workable  in  a situation where an exercise of amendment of the law is pending,  will  not  be  justified  either.  A  perception, however  strong,  of  the  imminent  need  of  the  law engrafted in the Act and its beneficial  effects  on the citizenry  of  a  democratic  country,  by  itself,  will  not permit  the  Court  to  overstep  its  jurisdiction.  Judicial discipline  must  caution  the  Court  against  such  an approach.”

32. When the matter  is  already  pending  consideration and  is  being

examined for the purpose of legislation, it would not be appropriate

for this Court to enforce its opinion, be it in the form of a direction

or even a request, for it would clearly undermine and conflict with

the role assigned to the judiciary under  the Constitution.  In  this

connection, we may refer to the observation of Lord Bingham in

Regina (Countryside Alliance) and Others v. Attorney General

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

and Another42, though made in a different context, to the following

effect:

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

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

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

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

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

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

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

review.   

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

has rightly urged that Article 253 of the Constitution which deals

with  the  legislation  for  giving  effect  to  international  agreements,

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

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

or convention, notwithstanding anything contained in the foregoing

provisions of Chapter XI of the Constitution. Thus, notwithstanding

Articles  245  and  246  of  the  Constitution,  Parliament  has  the

supreme  power  to  make  laws  for  implementing  any  treaty  or

42(2008) 1 AC 719 MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 40 of 48

convention  which  may  even  encroach  upon  the  exclusive

legislative competence of the States. The executive action under

Article  73  of  signing  and  ratifying  the  convention  can  be

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

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

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

would  require  enactment  of  laws  under  Article  253  of  the

Constitution,  for  mere ratification would  not  affect  and undo the

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

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

consultation  with  the  State  Governments/Union  Territories  and

subsequent deliberation of their comments by the Union of India.

Union of  India  has pointed out  that  they have a  reservation on

Article 20 of the UN Convention. Reference is also made to the

Vienna Convention on the Law of Treaties, 1969, to which India is

not  a  party  but  which  provisions  are  reflected  in  the  Standard

Operating Procedure issued by the Ministry of External Affairs in

respect of Memorandum of Understanding/Agreement with foreign

countries.  The  Standard  Operating Procedure,  clause (iv)  under

Heading D – Treaty Making Formalities which relates to ratification,

states that where a treaty does not provide for its entry into force

only  upon  its  signature  and  makes  it  subject  to  ratification,  the

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

treaty  requires  ratification.  In  order  to  ensure  that  India  is  in  a

position  to  efficiently  discharge  all  obligations  emanating  from

treaties/ agreements, such ratification should be undertaken only

after  relevant  domestic  clauses  have  been  amended  and  the

enabling legislations enacted when there is absence of domestic

law on the subject. On the issue that the treaty making power is a

political act, reference has been made to the following decisions:

Union  of  India  and  Another  v.  Azadi  Bachao  Andolan  and

Another43;  Rosiline  George  v.  Union  of  India  and  Others44;

Sakshi  v.  Union of India and Others45;  and  P.B.  Samant and

Others v. Union of India and Others46.

35. However, this is not to state that the courts would not step in, when

required, to protect fundamental rights. It  is indisputable that the

right to life and the right to liberty are of foremost importance in a

democratic state and, therefore, any form of torture would violate

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

Such action would be unconstitutional under Article 21 and would

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

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

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

43(2004) 10 SCC 1 44(1994) 2 SCC 80 45(2004) 5 SCC 518 46AIR 1994 Bom 323 MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 42 of 48

written by a journalist complaining of custodial violence suffered by

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

Court in  Sheela Barse v. State of Maharashtra47 had issued the

guidelines  to  safeguard  the  rights  of  arrested  persons  including

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

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

entitled  to  live  with  human  dignity  and  his  detention  in  prison

should be regulated by a procedure established by law which must

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

elucidating  and  even  creatively  expanding  existing  laws  and

principles  on  case  to  case  basis.  Judiciary  while  exercising  its

jurisdiction in this manner is not enacting or legislating but applying

the Constitution and protecting fundamental rights under Article 21

of the Constitution.

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

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

Aid Committee) v. State of Orissa and Others48 to state that the

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

fundamental rights under Article 21 and only such restrictions as

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

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

47(1983) 2 SCC 96 48(1993) 2 SCC 746 MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 43 of 48

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

by the fact that the person is in confinement. Even limited liberty is

precious and it is the duty of the State to ensure that even a person

in  custody  is  dealt  with  in  accordance  with  the  procedure

established  by  law.   In  the  State  of  Madhya  Pradesh  v.

Shyamsunder  Trivedi  and  Others49 this  Court  had  highlighted

that  a  sensitive  and  realistic  rather  than  a  narrow  technical

approach is required while dealing with cases of custodial crime.

The court must act within its powers and as far as possible try that

the guilty should not escape to ensure that the rule of law prevails.

37. We would take note of the judgment of this Court in  D.K. Basu

(supra) wherein the following directions/ guidelines with respect to

rights/custodial torture were issued:  

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

(2) That  the police officer  carrying  out  the arrest  of  the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by atleast one witness, who may be either a member of the family of the  arrestee  or  a  respectable  person  of  the  locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.

49(1995) 4 SCC 262 MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 44 of 48

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

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend  or  relative  of  the  arrestee  lives  outside  the district or town through the Legal Aid Organisation in the  District  and  the  police  station  of  the  area concerned telegraphically  within  a  period  of  8  to  12 hours after the arrest.

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

(6) An entry  must  be made in the diary at  the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should,  where he so requests,  be also examined at the time of his arrest and major and minor injuries,  if  any  present  on  his/her  body,  must  be recorded at that time. The "Inspection Memo" must be signed  both  by  the  arrestee  and  the  police  officer effecting  the  arrest  and  its  copy  provided  to  the arrestee.

(8) The  arrestee  should  be  subjected  to  medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved  doctors  appointed  by  Director,  Health Services  of  the  concerned  State  or  Union  Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.

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

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

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

38. The law in this regard is also laid down in Sections 330 and 331 of

the IPC which relate to ‘voluntarily causing hurt to extort confession

or  to  compel  restoration  of  property’  and  ‘voluntarily  causing

grievous  hurt  to  extort  confession  or  to  compel  restoration  of

property’ respectively.

39. In terms of the aforesaid edicts, legal jurisprudence has developed

for providing compensation for the unconstitutional deprivation of

fundamental right to life and liberty as a public remedy in addition

to  claims in  private  law for  damages by  tortuous  acts  of  public

servants. In D.K. Basu (supra) the public law remedy for award of

compensation was elucidated as arising from indefeasible rights

guaranteed under Article 21 and justified on the ground that the

purpose of public law is not only to civilise public power but also to

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

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and  interests  are  protected  and  preserved.  For  the  grant  of

compensation,  therefore, proceedings under Article 32 or 226 of

the Constitution are entertained when violation of the fundamental

rights granted under Article 21 is established. In such cases, claims

of a citizen are tried on the principle of strict liability where defence

of sovereignty may not be available. In  S. Nambi Narayanan v.

Siby  Mathews  and  Others50 where  criminal  proceedings  were

initiated  against  Nambi  Narayanan  but  it  was  found  that  the

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

awarded for the anxiety suffered and maltreatment meted out to

him.

40. We  have  no  hesitation  in  observing  that  notwithstanding  the

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

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

Another51 and S. Nambi Narayanan (supra), this Court can, in an

appropriate matter and on the basis of pleadings and factual matrix

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

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

other  cases  when  conditions  stated  in  paragraph  27  supra  are

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

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

50(2018) 10 SCC 804 51(2012) 1 SCC 10 MA No. 2560 of 2018 in WP (C) No. 738 of 2016 Page 47 of 48

direct  the  legislature,  that  is,  Parliament,  to  enact  a  suitable

standalone comprehensive legislation based on the UN Convention

and  this  direction,  if  issued,  would  be  in  consonance  with  the

Constitution of India. This prayer must be rejected in light of the

aforesaid discussion.

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

would in terms of the above discussion clarify that this would not in

any way affect the jurisdiction of the courts to deal with individual

cases of alleged custodial torture and pass appropriate orders and

directions in accordance with law.

......................................CJI.                                                          (RANJAN GOGOI)    

......................................J.         (DINESH MAHESHWARI)

.......................................J. (SANJIV KHANNA)

NEW DELHI; SEPTEMBER 05, 2019.

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