DR. ASHWANI KUMAR versus UNION OF INDIA AND ANOTHER

Citation: [2019] 12 S.C.R. 30 · Decided: 05-09-2019 · Supreme Court of India · Bench: RANJAN GOGOI · Disposal: Disposed off

Cited by 6 judgment(s) · cites 22 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 12 S.C.R.
DR. ASHWANI KUMAR
v.
UNION OF INDIA AND ANOTHER
(Miscellaneous Application No. 2560 of 2018)
In
(Writ Petition (Civil) No. 738 of 2016)
SEPTEMBER 05, 2019
[RANJAN GOGOI, CJI, DINESH MAHESHWARI AND
SANJIV KHANNA, JJ.]
Custodial Torture: Writ petition filed under Art.32 of the
Constitution – Seeking effective and purposive legislative
framework/law based upon the ‘Convention against torture and
Other Cruel, inhuman or Degrading Treatment or Punishment’
adopted by the United Nations General Assembly – Prayer of
applicant was that custodial torture being crime against humanity
which directly infracts and violates Art.21, this court should invoke
and exercise jurisdiction under Arts.141, 142 for protection and
advancement of human dignity, a core and non-negotiable
constitutional right – Held: It is true that in some 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 consequences – 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
directions should be issued by Court are questions and issues
involving constitutional dilemmas that mandate a larger debate and
discussion – Such directions are to 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
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consideration – Any direction at this stage would be interpreted as
judicial participation in the enactment of law – 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 – No directions can be given
to the executive to ratify the UN Convention for it would virtually
amount to issuing directions to enact laws in conformity with the
UN Convention – Constitution of India – Arts.21, 32, 141, 142.
Supreme Court Employees’ Welfare Association v. Union
of India and Another (1989) 4 SCC 187 : [1989] 3
SCR 488; V.K. Naswa v. Home Secretary, Union of India
and Others (2012) 2 SCC 542 : [2012] 2  SCR 912;
State of Himachal Pradesh and Others v. Satpal Saini
(2017) 11 SCC 42 : [2017] 1 SCR 658 – relied on.
Union of India and Another v. Azadi Bachao Andolan
and Another (2004) 10 SCC 1 : [2003] 4 Suppl. SCR
222; Rosiline George v. Union of India and Others
(1994) 2 SCC 80 : [1993] 3 Suppl. SCR 141; Sakshi v.
Union of India and Others (2004) 5 SCC 518 : [2004]
2 Suppl. SCR 723; P.B. Samant and Others v. Union of
India and Others AIR 1994 Bom 323; Sheela Barse v.
State of Maharashtra (1983) 2 SCC 96 : [ 1983] 2 SCR
337; State of Madhya Pradesh v. Shyamsunder Trivedi
and Others (1995) 4 SCC 262 : [1995] 1 Suppl. SCR
44; Nilabati Behera (Smt) alias Lalita Behera (Through
the Supreme Court Legal Aid Committee) v. State of
Orissa and Others (1993) 2 SCC 746 : [1993] 2 SCR
581;  Prithipal Singh and Others v. State of Punjab
and Another (2012) 1 SCC 10 : [2012] 14 SCR 862; S.
Nambi Narayanan v. Siby Mathews and Others (2018)
10 SCC 804 : [2018] 12 SCR 51 – referred to.
Regina (Countryside Alliance) and Others v. Attorney
General and Another (2008) 1 AC 719 – referred to.
Constitution of India: Separation of powers – India has a
written Constitution which is supreme and adumbrates as well as
DR. ASHWANI KUMAR  v. UNION OF INDIA AND ANOTHER
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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 – 

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