The Supreme Court has dismissed a plea of Former Law Minister and Senior Advocate Dr. Ashwani Kumar, seeking a direction to Central Government to enact a stand alone comprehensive legislation against custodial torture.
Earlier, the Senior lawyer had approached the Apex Court seeking a direction for an 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 and opened for signature, ratification and accession on 10th December 1984. The said writ petition was disposed of recording the submission made by the Attorney General that the same is subject matter of discussion in the Law Commission and the Law Commission has already made certain recommendations and that the report is being seriously considered by the Government. Alleging that no action was taken pursuant to the report, the former law minister had filed an application before the Apex Court.
While dismissing the petition, the court made reference to various judgments and said:
It is outside the power of judicial review to issue directions to the legislature to enact a law in 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.
The court, however, referring to recent cases including Nambi Narayan's case, said that, it 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 case and other cases when conditions stated therein are satisfied.
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