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Dr. Ashwani Kumar v. Union of India & Anr.

Miscellaneous Application · 2019 INSC 1007Decided 5 Sept 2019
Miscellaneous Application No. 2560 of 2018
Chief Justice Ranjan Gogoi · Justice Dinesh Maheshwari · Justice Sanjiv Khanna

Background

Dr. Ashwani Kumar, a senior advocate and former Union Law Minister, had earlier filed a writ petition asking the Supreme Court to direct the government to frame a comprehensive, standalone law against custodial torture, based on India's 1997 signing (but non-ratification) of the UN Convention against Torture. That petition was disposed of in 2017 after the Attorney General told the Court the Law Commission's recommendations on the subject were under serious government consideration. When no legislation followed, Dr. Kumar filed this fresh application asking the Court to now actually direct Parliament to enact such a law, drawing an analogy to the Court's earlier directions on mob lynching.

Decision Breakdown

The Court extensively reviewed its own precedents on custodial torture and the right to life and dignity under Article 21, including D.K. Basu's landmark safeguards for arrest and detention, and reaffirmed that it has the power to issue guidelines to improve on existing safeguards in an appropriate case with a proper factual record before it. However, the Court held that what the applicant was actually asking for, a direction compelling Parliament itself to enact specific standalone legislation, crossed into the exclusive domain of the legislature and would violate the separation of powers between the judiciary and Parliament. The Court therefore rejected the prayer for a legislative direction, while clarifying that this rejection does not affect the power of courts to deal with individual cases of alleged custodial torture and grant appropriate relief under existing law and precedent.

Lesson Learnt

Courts in India can lay down guidelines to fill gaps in protecting fundamental rights and can grant relief in individual cases, but they cannot order Parliament to pass a specific law, making new legislation remains a power the Constitution reserves for the legislature alone, not the judiciary.

Official source (sci.gov.in)View Judgment (PDF)

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