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Custody Torture: The SC cannot issue directions to the legislature to enact a legislation.

Supreme Court of India

Justice Sanjiv Khanna, CJI Ranjan Gogoi and Justice Dinesh Maheshwari

The SC {DR. ASHWANI KUMAR v. UNION OF INDIA AND ANOTHER } holds that, as per settled legal position, it cannot direct the legislature, that is, Parliament, to enact a  legislation based on the UN Convention and this direction, if given, would not be in consonance with the Constitution of India i.e. doctrine of separation of powers.

It was held that legal jurisprudence has developed for providing compensation for the unconstitutional deprivation of fundamental right to life and liberty as a public remedy in addition to claims in private law for damages by tortuous acts of public servants. In D.K. Basu  the public law remedy for award of compensation was elucidated as arising from indefeasible rights guaranteed under Article 21 and justified on the ground that the purpose of public law is not only to civilise public power but also to ensure that the citizens live under a legal system where their rights and interests are protected and preserved. For the grant of compensation, therefore, proceedings under Article 32 or 226 of the Constitution are entertained when violation of the fundamental rights granted under Article 21 is established. In such cases, claims of a citizen are tried on the principle of strict liability where defence of sovereignty may not be available. In S. Nambi Narayanan v. Siby Mathews and Others where criminal proceedings were initiated against Nambi Narayanan but it was found that the prosecution story was a sham, compensation of Rs. 50 lakhs was awarded for the anxiety suffered and maltreatment meted out to him.

In the present case, the directions were sought to Parliament to enact laws as they directly relate to the protection and preservation of human rights. It was alleged that the directions are justified and necessary in view of the delay and inaction in enacting the law, notwithstanding the recommendations made by the National Human Rights Commission, report of the Law Commission of India in October 2017, and report of the Select Committee of Parliament dated 2th December 2010 and repeated commitments made by the Indian Government. The said prayer was rejected, and the application in Writ Petition was dismissed by the SC.

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