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 selfrestraint 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. Constitution of India: Separation of powers – India has a written Constitution which is supreme and adumbrates as well as 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 – The three branches have to respect the constitutional division and not disturb the allocation of roles and functions between the triad – Adherence to the constitutional scheme dividing the powers and functions is a guard and check against potential abuse of power and the rule of law is secured when each branch observes the constitutional limitations to their powers, functions and roles – Modern theory of separation of powers does not accept that the three branches perform mutually isolated roles and functions and accepts a need for coordinated institutional effort for good governance, albeit emphasise on benefits of division of power and labour by accepting the three wings do have separate and distinct roles and functions that are defined by the Constitution – All the institutions must act within their own jurisdictions and not trespass into the jurisdiction of other – By segregating the powers and functions of the institutions, the Constitution ensures a structure where the institutions function as per their institutional strengths. Constitution of India: Powers and functions of legislature – Held: The legislature as an elected and representative body enacts laws to give effect to and fulfil democratic aspirations of the people – Legislature functions as a deliberative and representative body – It is directly accountable and answerable to the electorate and citizens of this country – This representativeness and principle of accountability is what gives legitimacy to the legislations and laws made by Parliament or the state legislatures. Constitution of India: Arts.73 and 162 – Powers and functions of executive – Held: The executive has the primary responsibility of formulating government policies and proposing legislations which when passed by the legislature become laws – By virtue of Arts.73 and 162 of the Constitution, the powers and functions of the executive are wide and expansive, as they cover matters in respect of which Parliament/state legislature can make laws and vests with the executive the authority and jurisdiction exercisable by the Government of India or the State Government, as the case may be – As a delegate of the legislative bodies and subject to the terms of the legislation, the executive makes second stage laws known as ‘subordinate or delegated legislation’ – In fields where there is no legislation, the executive has the power to frame policies, schemes, etc., which is co-extensive with the power of Parliament or the state legislature to make laws – At the same time, the political executive is accountable to the legislature and holds office till they enjoy the support and confidence of the legislature – Thus, there is interdependence, interaction and even commonality of personnel/ members of the legislature and the executive – The executive, therefore, performs multi-functional role and is not monolithic. Constitution of India: Role of judiciary – Judges unlike members of the legislature represent no one, strictly speaking not even the citizens – Judges are not accountable and answerable as the political executive is to the legislature and the elected representatives are to the electorate – This independence ensures that the judges perform the constitutional function of safeguarding the supremacy of the Constitution while exercising the power of judicial review in a fair and even-handed manner without pressure and favours – As an interpreter, guardian and protector of the Constitution, the judiciary checks and curbs violation of the Constitution by the Government when they overstep their constitutional limits, violate the basic structure of the Constitution, infringe fundamental rights or act contrary to law – Power of judicial review has expanded taking within its ambit the concept of social and economic justice – Yet, while exercising this power of judicial review, the courts do not encroach upon the field marked by the Constitution for the legislature and the executive, as the courts examine legality and validity of the legislation or the governmental action, and not the wisdom behind the legislative measure or relative merits or demerits of the governmental action – Neither does the Constitution permit the courts to direct, advise or sermonise others in the spheres reserved for them by the Constitution, provided the legislature or the executive do not transgress their constitutional limits or statutory conditions. Doctrines/Principles: Doctrine of separation of power – The doctrine restrains the legislature from declaring the judgment of a court to be void and of no effect, while the legislature still possesses the legislative competence of enacting a validating law which remedies the defect pointed out in the judgment – However, this does not ordain and permit the legislature to declare a judgment as invalid by enacting a law, but permits the legislature to take away the basis of the judgment by fundamentally altering the basis on which it was pronounced – Therefore, while exercising all important checks and balances function, each wing should be conscious of the enormous responsibility that rests on them to ensure that institutional respect and comity is maintained – Constitution of India – Judgment/Order – Legislation. Doctrines/Principles: Doctrine of separation of power – Distinction between interpretation and adjudication by the courts on one hand and the power to enact legislation by the legislature on the other – Adjudication results in what is often described as judge made law, but the interpretation of the statutes and the rights in accordance with the provisions of Articles 14, 19 and 21 in the course of adjudication is not an attempt or an act of legislation by the judges – Legislature itself entrusts the judiciary to lay down parameters in the form of precedents which is oft-spoken as judge made law – Such law, even if made by the judiciary, would not infringe the doctrine of separation of powers and is in conformity with the constitutional functions – Thus, law-making within certain limits is a legitimate element of a judge’s role, if not inevitable – A judge has to adjudicate and decide on the basis of legal provisions, which when indeterminate on a particular issue require elucidation and explanation – This requires a judge to interpret the provisions to decide the case and, in this process, he may take recourse and rely upon fundamental rights, including the right to life, but even then he does not legislate a law while interpreting such provisions – Such interpretation is called ‘judge made law’ but not legislation – Constitution of India – Judge made law. ‘The Constitutional Separation of Powers’ by Aieleen Kavanagh – referred to. Legislation: Power/Duty of legislature and judiciary – Distinction between – Held: Legislating or law-making involves a choice to prioritise certain political, moral and social values over the others from a wide range of choices that exist before the legislature – It is a balancing and integrating exercise to give expression/meaning to diverse and alternative values and blend it in a manner that it is representative of several viewpoints so that it garners support from other elected representatives to pass institutional muster and acceptance – Legislation, in the form of an enactment or laws, lays down broad and general principles – It is the source of law which the judges are called upon to apply – Judges, when they apply the law, are constrained by the rules of language and by well identified background presumptions as to the manner in which the legislature intended the law to be read – Application of law by the judges is not synonymous with the enactment of law by the legislature – Judges have the power to spell out how precisely the statute would apply in a particular case – In this manner, they complete the law formulated by the legislature by applying it – This power of interpretation or the power of judicial review is exercised post the enactment of law, which is then made subject matter of interpretation or challenge before the courts. Interpretation of statutes: While exercising the interpretative power, the courts can draw strength from the spirit and propelling elements underlying the Constitution to realise the constitutional values but must remain alive to the concept of judicial restraint which requires the judges to decide cases within defined limits of power – Thus, the courts would not accept submissions and pass orders purely on a matter of policy or formulate judicial legislation which is for the executive or elected representatives of the people to enact.