Dr Ashwani Kumar Vs UOI

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 legitimizing 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 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.