Supreme Court gives landmark day long hearing to plea seeking law on custodial torture

The Supreme Court Wednesday accorded a day-long hearing to a PIL seeking a direction to the Centre to frame a law on custodial torture and inhuman treatment as India was a signatory to the United Nations' convention on torture after petitioner and former Law Minister Ashwini Kumar submitted that he has not been heard. A bench headed by Chief Justice Ranjan Gogoi took note of the submission of the senior lawyer Kumar and said that today it will only hear him and reminded him that the apex court has to deal with the grievances of "1.3 billion people which is half of the population of the world".

"Everybody seems to say this that they are not being heard. Let us discharge the board today and hear only this. We have been on that side and now on this side. We know the compulsions. We know how many cases are begging for our attention. "Please do not remind us of Supreme Courts (of other countries) that have ten cases before them. With the population and the numbers we are dealing, the situation is very different," the bench, which also comprised Justices Dinesh Maheswari and Sanjiv Khanna, said.

The former law minister and senior advocate said India has been a signatory of the United Nations' Convention Against Torture since 1997 and has not ratified it so far since ratification required enabling legislation to reflect the definition and punishment for 'torture'. He said that slight "nudge" from the court would force Parliament to make the law in view of the fact that only seven countries of the world are yet to frame it and moreover, "five persons are killed every day in custody in the country".

The CJI was visibly unhappy when Kumar said that he has not been heard in the important matter and earlier in 2017, the matter was disposed off after Attorney General had assured that the Centre would consider framing the law after following the procedures. The PIL filed in 2016 by Kumar, who is a Congress leader, was disposed of on November 27, 2017, and since then there has been no progress, prompting him to approach the court again.

The bench then asked Kumar as to what directions the apex court can pass till the Centre comes out with the legislation. "Ok. We will right now issue a writ and ask the Government of India, please fulfil 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 Parliament on the request of a former law minister," the bench asked. "Don't be in a hurry. Proceed as you may. We are hearing you and nobody else," the CJI said, adding that the court would hear the petitioner tomorrow and day after also if it remained inconclusive.

The former law minister said that he would proceed if the bench was not angry. "We are always angry. Our anger has no meaning. We will hear no other cases today or tomorrow or even on Friday. Now that the grievance has been voiced by such a senior lawyer that he has not been heard, we will make up for it" the bench said.

In the day-long hearing, Ashwini Kumar referred to various judgements and said that India was under an obligation to make the law. "I do not know much about the law, but what I know is that it is the Constitution which is Supreme and not the Parliament. Your Lordships have a very wide power of judicial review to nudge the Parliament. I am espousing a cause. It is nothing adversarial," he said.

Attorney General K K Venugopal said that the Centre has acted as per the direction of the court and several states have given their objections and suggestions to the draft legislation and the government would come back to the court after completing the process of getting the opinions of states. He also said that law and order and the police are the state subject and the Centre was duty bound to take their views on the proposed law.

"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 issue guidelines," Venugopal said. He said besides, the courts, National Human Rights Commission has already issued detailed guidelines in this regard.

To direct Parliament to enact a law would infringe the powers of the Parliament, he said, adding, "Give us some time to apply our minds and arrive at a conclusion. Then we would come to the court". The NHRC supported the petition and said, "we have been approaching government after government to bring out legislation" but it has not been made.

Senior advocate Colin Gonsalves, who is assisting the court as an amicus curiae, supported the plea and said the offence torture has not been defined in the IPC and a stand-alone was needed. The bench would resume the hearing on Thursday.

Earlier, the apex court had directed chief secretaries of all state governments to give within three weeks their feedback on the Centre's draft law to prevent custodial torture and inhuman treatment. Venugopal had said that the central government has circulated the draft bill to all the states for their feedback.

The Rajya Sabha MP had also narrated the sequence of events as to how the bill was passed in Lok Sabha in 2010, but Upper House sent it to the select committee. Kumar, in his PIL, sought directions to frame an effective law on the issue and empower agencies like the NHRC with necessary enforcement capabilities and mechanisms to implement its orders and directions.

(With inputs from agencies.)