On reservation of Judgment on PIL for Anti-Torture Law CJI observes: Fulfillment of International Commitments Can’t Be Subject to Petition under Art 32.

Team SoOLEGAL 15 Feb 2019 1:00pm

On reservation of Judgment on PIL for Anti-Torture Law CJI observes: Fulfillment of International Commitments Can’t Be Subject to Petition under Art 32.

On Thursday the reservation of the judgement was done by the Supreme Court on PIL of former Union Law Minister and Senior Advocate Ashwani Kumar for an effective and purposeful legislation to check instances of custodial torture. Amicus Curiae Colin Gonsalves repeated by resuming his submission that under Article 73 of Indian Constitution the executive power of the Union to give consent to the UN Convention Against Torture is entirely different of the enactment by the Parliament of a stand-alone law on the subject, to implement the said Convention in exercise of its power under Article 253.

He replied that after UNCAT was signed by India in 1997, after that country is constantly standing at the human rights review in Geneva from last few years and trying that it remains committed to the ratification of the Convention, which also included taking a unilateral pledge to ratify in the hope of becoming a member of the UN Human Rights Council.

It was suggested by Mr.Gonsalves that upon UNCAT’s ratification, it would no longer be a viable option for India if they will stay in default by abstaining from enacting a separate comprehensive legislation. And also court would be provided with a platform by ratification to require a special law to be introduced.

 Chief Justice Ranjan Gogoi observed that the fulfilling India's international commitments cannot be the subject of the petition under Article 32.

"This court can articulate the need for a law but to issue directions to the government to ratify the Convention and practically mandate the enactment of the law? For a court of law to pass an order and then feel helpless when the government wills not to act accordingly?"

Chief Justice Gogoi acknowledged the need of the law and focused on that though the 2010 Bill lapsed, the government is still facing the issue and dealing with that- "they say they are mulling over the opinions of the states and exploring all options. There is also no total aversion to the idea of a law"

On Wednesday it was remarked by CJI Gogoi, in context of the prayer for a direction to the Parliament to introduce a law on the lines of the Prevention of Torture Bill of 2010, "okay, we will issue a writ. Government of India, please fulfill your constitutional promise towards human dignity! Where does it take you? And how would we look to the rest of the world?

The Supreme Court of India Issuing directions to the Parliament on the request of a former law minister?"

Further it was argued by Attorney General K. K. Venugopal, in trail of Court’s last order, views of several states has been entered suggesting that a separate law is not necessary and that the existing provisions in the IPC and the Cr. P. C. may be suitably amended. He further mentioned that in view of the State List and the Concurrent List, police, public order, prisons, criminal law and criminal procedure are also within the realms of the state government.

 The AG precisely said "In a federal set-up, if you are making a law on a subject that is within the states' powers, the states' role is important. The Centre cannot intervene directly but only issue advisories and guidelines..."

"To direct the Parliament to enact a law like the 2010 Bill would be to infringe its can't ask the Parliament to do something as that would be beyond your jurisdiction...Give us some time to apply our minds and arrive at a conclusion. Then we would come to the court and Your Lordships may go into the nitty-gritties of what orders may or may not be issued", he had recommended.

Tagged: Senior Advocate Ashwani Kumar   CJI Gogoi   Supreme Court   PIL   Article 73  
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