Judgments

DR. ASHWANI KUMAR VS UNION OF INDIA : CASE SUMMARY

The Supreme Court in Dr. Ashwani Kumar Vs. Union of India  (2019) 12 SCR 30   has held that any direction to Parliament to enact legislative framework based upon the “Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment” adopted by United Nations General Assembly  will be in violation of principle of separation of powers enshrined in the Constitution.

FACTS OF THE CASE

Dr. Ashwani Kumar, former Law Minister and Member of Parliament, has filed Petition under Article 32 of the Constitution of India before the Supreme Court for issuing direction to the Parliament to enact legislative framework based upon the “Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment” adopted by United Nations General Assembly.

The aforesaid convention adopted by United National General Assembly was opened for signature, ratification and accession on 10th December, 1984.    India has signed the convention on 14th October, 1997 but has not ratified the same.

The issue before the Supreme  Court was whether the Supreme Court has power to give directions to the Parliament to enact legislative framework  based on UN Convention.

FINDINGS OF THE COURT

The Supreme Court noted that strict separation of powers as propounded by Montesquieu which is a feature of American constitution is not a feature of India or Great Britain. There are overlapping between Executive and Legislature in Parliamentary Democracy. But India has a written constitution which divides roles and functions of different organs of State. Adhering to Constitutional limits by every organ of state is a check against potential abuse of power.

The Constitution has specified roles for each organ of State. The Constititon empowers Parliament and State Legislatures to enact laws. The Executive has the primary responsibility for formulating policies and proposing legislations. Interpretation of laws and adjudication is function of judiciary. The Court noted that although the scope of judicial review has expanded, the Courts do not encroach upon field marked for Executive or Legislature.

The Supreme Court noted that it has in its various judgments ie. Kesavananda Bharti Vs State of Kerala, (1973 ) 4 SCC 225 , State of Rajasthan Vs Union of India, (1977) 3 SCC 592,  I R Coelho Vs State of Tamil Nadu, (2007) 2 SCC 1, State of Tamil Nadu Vs State of Kerala, (2014 )12 SCC 696   held that separation of powers is part of basic structure of the Indian Constitution. Constitution has made demarcation among three organs without drawing formal lines.

The Supreme Court noted that there is clear distinction between interpretation and adjudication by Courts and power of enact legislation. It is legitimate for a judge to make law within certain limits. Such law-making is in the process of elucidation and explanation. Such law-making is called “judge made law” and not legislation.

The Supreme Court observed that process and method of legislation and judicial adjudication are entirely different. 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 Supreme Court noted that judicial legislation will be against constitutional supremacy and subvert the legislative process.

The Supreme Court noted that Article 253 of the Constitution grants exclusive power on the Parliament to make laws for giving effect to any international agreement, treaty or convention. Further, treaty making is a political act which requires extensive consultation.

The Supreme Court observed that Supreme Court can always step in to protect Fundamental Rights. The Supreme Court noted that it has made interventions for protection of human rights in the Past. The Supreme Court  in Sheela Basre Vs State of Maharastra (1983) 2 SCC 96 has issued guidelines for protection of rights of arrested persons including female prisoners. The Supreme Court has highlighted human rights aspects in Nelabati Behera Vs. State of Orissa, (1993) 2 SCR 581.  The Supreme Court in D. K. Basu Vs. State of West Bengal (1997) 1 SCC 416   has issued directions for procedures followed during arrest.

The Supreme Court noted that Supreme Court will be within its powers to improve upon direction given in aforesaid cases but it can not give direction to Parliament to enact law and dismissed the Petition.

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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

Mukesh Kumar Suman

Mukesh Kumar Suman

Mukesh Kumar Suman is an advocate based at Delhi. He has rich experience in civil, criminal, commercial, arbitration and corporate insolvency matters. He regularly appears before District Courts, NCLT, NCLAT, High Court and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

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