February 19, 2016 was an unusual day in the world history of torture when Ashwani Kumar, a senior advocate and former Union minister of law, filed a petition before the Supreme Court of India to ensure a standalone law compliant with the UN Torture Convention. The Rajya Sabha Committee’s unanimous report (December 10, 2012) virtually rewrote the Torture Bill passed by the Lok Sabha on December 6, 2010. On July 8, the Union sought the advice of the Law Commission of India with specific reference to the pending constitutional litigation. It responded (October 30, 2017) with a torture bill of 2017, which mostly followed the Rajya Sabha Standing Committee and the UN Convention. The SC was expected to perform its nudge function, exercising its demosprudential adjudicatory leadership, as it has done frequently.
But this year on November 26 (otherwise the day on which the Constitution came into force), the SC dismissed the petition. Relying on judicial observations as widely reported in the media, the court mentioned three related grounds. First, Chief Justice Dipak Misra asked: “How can we compel the government to make a law? Can we ask the government to ratify a treaty by way of a mandamus?” Second, Justice D.Y. Chandrachud said “the government has to take a political decision on whether it should ratify the treaty”. Third, when Ashwani Kumar maintained that it was the duty of the court to fill the gaps in written law, Justice A.M. Khanwilkar observed: “But it is a policy matter”.
The learned chief justice was correct in the abstract but disappointing in the context; the petitioner did not ever ask for a mandamus in the first place because it would violate the supremacy of Parliament in its own legislative domain. The prayers before the Court did not ask for enforcing a treaty by a court order. The question of compelling the legislature to make a law also never arose. The suggestive jurisprudence of the SC is as old as the court itself and the petitioner painstakingly demonstrated this. The SC has used this power on many subjects concerning, for example, participative decision-making, forest rights, right to information, ragging on campus, right to education, judicial services, inter-country adoptions, consumer jurisprudence, sustainable development law, and privacy rights. The SC remains open to nudge a slow moving legislature into quick action.
This nudging role becomes most crucial for effectively preventing and punishing the rampant torture practices in policing and security operations. The SC is no stranger to such requests for advancing constitutional civilisation. It has already steadily converted adjudication into the site of demosprudence and issued several directions desiring an abatement of this practice. The writ assumed importance because nearly two decades after India signed the Torture Convention, the Indian state practice has been, to say the least, lackadaisical.
Justice Chandrachud was also broadly justified in saying that treaty ratification was a matter of political choice. True, all governance is a matter of political choice, but political choices must remain subject to some constitutional discipline, lest a set of governance dispositions renders citizens into mere rightless subjects. And if the anti-torture norms have become part of customary international law binding on all states, does not the constitutional concern require the Indian state to follow it? The 273rd Report of the Law Commission has now clearly stated that anti-torture norms are jus cogens, or peremptory norms of international law, which do not depend on state consent.
Equally legitimate is Justice Khanwilkar’s concern about “political matter” but the SC in its demosprudential leadership of the nation has not abstained from making new policies. In fact, it has done so in custodial deaths and encounter killings; so also, it has evolved a compensation policy for violation of fundamental rights.
Overall, the problem becomes one of understanding and explaining the reluctance of the SC in expressing its constitutional anxiety concerning the standalone torture legislation. It is unworthy to suggest that the recent Law Day spat between the executive and judiciary animated summary dismissal. Yet such a disposal — after nearly one and half years, and involving the Law Commission — that relegates the matter to the legislature for ill-stated reasons raises concerns about a just constitutional response.
The petition disturbingly demonstrates the penchant of state inaction although from 2007 onwards India has committed to taking steps to ratify the torture convention. Despite this, no steps have been taken to enact a suitable enabling law required for accessing the UN convention, which is what the Rajya Sabha Standing Committee did after hearing all concerned parties. In preparing a bill, consented to by all political parties, the committee functions as a mini-Parliament and its draft bill should have been enacted.
Custodial torture, and even custodial death in India is a norm rather than exception. It flies in the face of substantive due process now enshrined as an aspect of the basic structure of the Constitution. Very recently, the SC issued directions about extra-judicial killings in Manipur. Many states especially urged India (in the Universal Periodic Review, 2012) to “finalise” accession to the UN Torture Convention, endorsed by the UN Human Rights Council. Neither “internal political compulsions” and “weaknesses in the implementation” may produce legitimate law. If, as the SC has recognised, “even while dealing with the ‘enemy’ the rule of law would apply” and “police or the armed forces who have committed the excesses which do not have a reasonable connection with the performance of their official duty would be liable”, should the norm for dealing with co-citizens be any different?
How does it happen that custodial deaths, custodial and interrogational torture are rarely prosecuted? Why do state apparatuses continue to tolerate such abuse against human dignity and rights when a code of law reform and a speedy ratification of the UN Torture Convention remain available? State impunity for acts of torture must surely find a dignified funeral at least after seven decades of India’s independence.