Summary
An application sought a judicial direction compelling Parliament to enact comprehensive legislation against custodial torture based on the UN Convention. The Court held that separation of powers precluded commanding legislation or treaty ratification, particularly while legislation was under active consideration. It distinguished such a command from adjudicating rights and issuing appropriate protective guidelines. Courts’ powers to remedy individual cases of custodial torture were expressly preserved.
Issues
- Whether the Court could direct Parliament to enact a comprehensive anti-torture law.
- Whether the executive could be directed to ratify the Convention.
- Whether refusal affected judicial protection against custodial torture.
Held
- Separation of powers permits checks, balances and constitutional adjudication but reserves the essential legislative function to the legislature. Judicial interpretation and incremental development of law do not confer authority to command a particular enactment. (¶¶ 9, 10, 13, 14, 21, 22, 23, 24, 25, 26)
- Exceptional interim guidelines protecting fundamental rights in a legal vacuum differ from directing legislation. Here the legislative proposal was already under active consideration, making the requested intervention inappropriate. (¶¶ 27, 28, 29, 30, 31, 32)
- A direction to ratify the Convention would effectively compel conforming legislation. Ratification involves political and consultative choices, and does not itself replace domestic law; that direction was also unavailable. (¶¶ 33, 34)
- Torture violates constitutional rights. Courts retain power to adjudicate individual violations, award appropriate public-law relief and, on a suitable factual foundation, improve protective guidelines. Those powers were not curtailed by rejecting this particular prayer. (¶¶ 35, 36, 37, 38, 39, 40, 41)
Result
The prayer to compel a standalone enactment was rejected and the miscellaneous application disposed of. The Court expressly preserved jurisdiction to decide individual allegations of custodial torture and pass appropriate lawful orders and directions.