SC reserves verdict on plea seeking law to prohibit custodial torture

The Supreme Court on Thursday (Feb 14) reserved its verdict on a PIL by former Union Law Minister and Senior Advocate Ashwini Kumar seeking legislation to prevent custodial torture in pursuance of India’s obligation to the international treaty.

At today’s hearing, the amicus Colin Gonsalves informed the bench comprising CJI Ranjan Gogoi and Justices Dinesh Maheshwari, Sanjiv Khanna that Article 73 is different from Article 253 and it empowers the parliament to ratify an act. Parliament has power to make laws in respect of conventions and treaties under the union list, Gonsalves said.

To which the CJI said “there is no prayer that the court must make a direction to the government. We can express the need for a law to the government and cannot direct it to make a law.”

Gonsalves replied: “Once you ratify a convention you must bring a law. Once ratification is made and the government had not enacted a law then there opens a window for the court to direct the government to enact a law.

“On Sep 14, 1997, India signed the convention. Signing means it is a good faith intention that I will ratify. In 2012 India says that it will promptly ratify the convention.”

CJI said: “You intend to show us that India has said a multiple times that it will ratify the convention but it has not ratified it. I think this ratification business should be stopped now. Because it is not a subject matter of the writ petition and India has its commitments to the International community.

“Why should a court of law give an order and leave it to the discretion of the government and later feel helpless when the government does not act upon it. Nowhere in the petition there is a mention of ratification of the convention.”

Gonsalves pleads that an opportunity must be given to amend the petition and cites a 1973 judgment saying that the learned judge observed that if a convention is ratified then if such a convention adds to the rights of the citizens then there is no need of a legislation and if the convention takes away the right then a law must be made.

“Ratification of a convention takes a nation a step further and then the government will not have the discretion of going in default as it will have international commitments,” Gonsalves pointed out.

CJI countered the arguments and said: “It is not a question of default it is a question of the court sending a direction. We are on an uncertain voyage where we are virtually directing the government to ratify the convention and pass the law. There is absolute no from the state and they say that the views of all the states and UTs have come and we are considering the bill.

“The bill has lapses and the procedure has begun again and they are saying that the options are open and we are examining the views. Personally each one of us are in agreement with you that a law should be made but we have to act according to the procedure. The government has not said no to the bill and there is not a complete closure of the chapter.”

Gonsalves replied: “Now there is more than a mere hope and the process should be expedited.”

Senior Advocate and petitioner Ashwini Kumar make his final submission and says that the inaction on the part of the government since 1997 is an infringement of the rights of the citizens.

The matter was reserved for judgment.

—India Legal Bureau