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4. The applicant predicating his case on the right to life and liberty and judgments of this Court had argued that custodial torture being crime against humanity which directly infracts and violates Article 21 of the Constitution, this Court should invoke and exercise jurisdiction under Articles 141 and 142 of the Constitution for the protection and advancement of human dignity, a core and non- negotiable constitutional right. In D.K. Basu v. State of West Bengal1 custodial torture and violence was described as a wound inflicted on the soul, so painful and paralysing that it engenders fear, rage, hatred and despair, and denigrates the individual. In Sunil Batra v. Delhi Administration and Others2, this Court had observed that the prisoners have enforceable liberties, though devalued but never demonetised and, therefore, it is within the jurisdictional reach and range of this Court’s writ to deal with prison and police caprice and cruelty. Similarly, in Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Others 3, this Court had observed that torture in any form is inhuman, degrading and offensive to human dignity and constitutes an inroad into the right to life and is prohibited by Article 21 of the Constitution, for no law authorises and no procedure permits torture or cruelty, inhuman or degrading treatment. Reference was made to Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights which prohibits torture in all forms in absolute terms. Recently, in K.S. Puttaswamy and Another v. Union of India and Others4 this (1997) 1 SCC 416 (1978) 4 SCC 494 (1981) 1 SCC 608 (2017) 10 SCC 1 Court had once again emphased on the right to human dignity which, first and foremost, means the dignity of each human being ‘as a human being’. When human dignity in a person’s life is infringed and physical or mental welfare is negated and harmed, the Court would intervene to protect and safeguard constitutional values. Reference was also made to the decision in Romila Thapar and Others v. Union of India and Others 5 claiming that despite existing law and repeated judicial decisions, custodial torture still remains rampant and widespread in India. Our attention was drawn to the report of Asian Centre for Human Rights which was based, inter alia, on the information and data furnished by the Government of India in Parliament, acknowledging 1674 custodial deaths, including 1530 deaths in judicial custody and 144 deaths in police custody during the period 1 st April 2017 to 28th February 2018. India has consistently and unequivocally condemned and deprecated custodial torture at international forums and has signed the UN Convention but the Government’s reluctance to ratify the UN Convention, which envisages a comprehensive and standalone legislation, it was argued, is baffling and unintelligible. Indian statutory law at present is not in harmony and falls short on several accounts, both procedurally and substantively, with the UN Convention and, thus, there is an urgent and immediate need for (2018) 10 SCC 753 an all-embracing standalone enactment based on the UN Convention. Articles 51(c) and 253 of the Constitution underscore the ‘constitutional imperative’ of aligning domestic laws with international law and obligations. The legislation as prayed, it was submitted, would fulfil the constitutional obligations of the Government of India and the constitutional goals which the Government ought to achieve. Accordingly, the directions as prayed for would not entrench upon Parliament’s domain to enact laws as they directly relate to the protection and preservation of human rights. 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 2 th December 2010 and repeated commitments made by the Indian Government. Reference was made to Tehseen S. Poonawalla v. Union of India and Others6 wherein this Court had highlighted the need for enactment of a suitable legislation to deal with mob violence/lynching in the country. Reliance was placed on judgments of this Court in Vishaka and Others v. State of Rajasthan and Others7, Vineet Narain and Others v. Union of (2018) 9 SCC 501 (1997) 6 SCC 241 India and Another8, Destruction of Public and Private Properties, In RE v. State of Andhra Pradesh and Others 9, Lakshmi Kant Pandey v. Union of India10, State of West Bengal and Others v. Sampat Lal and Others11, K. Veeraswami v. Union of India and Others 12 and Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and Others13. While referring to Mahender Chawla and Others v. Union of India and Others14, and other decisions including Tehseen S. Poonawalla (supra), it was argued that this Court has not flinched from suggesting, recommending, advising, guiding and directing the Government of India with respect to statutory enactments. It was submitted that the delay and inaction in implementing the constitutional obligation relates back to the year 1997 when India had signed the UN Convention, but the Government has failed to enact a comprehensive legislation despite commitments and recommendations made and noticed above. This, it was submitted, reflects unreasonable and unacceptable conduct of the Government in shielding infringement of Article 21 and violates Article 14 of the Constitution of India. Thus, the Court may issue directions to the Union of India to enact (1998) 1 SCC 226 (2009) 5 SCC 212 (1984) 2 SCC 244 (1985) 1 SCC 317 (1991) 3 SCC 655 (1991) 4 SCC 406 (2018) SCC Online 2679 a law dealing with custodial torture in terms of the U.N. Convention.

34. Mr. K.K. Venugopal, learned Attorney General, in his submissions has rightly urged that Article 253 of the Constitution which deals with the legislation for giving effect to international agreements, confers power on Parliament to make laws for the whole or any part of the territory of India for implementing any treaty, agreement or convention, notwithstanding anything contained in the foregoing provisions of Chapter XI of the Constitution. Thus, notwithstanding Articles 245 and 246 of the Constitution, Parliament has the supreme power to make laws for implementing any treaty or (2008) 1 AC 719 convention which may even encroach upon the exclusive legislative competence of the States. The executive action under Article 73 of signing and ratifying the convention can be implemented without any violation of the State’s right when the legislation is passed by the Parliament under Article 253. ‘Police’ and ‘Prisons’ are State subjects. Ratification of the UN Convention would require enactment of laws under Article 253 of the Constitution, for mere ratification would not affect and undo the existing laws or result in the enactment of new laws. Ratification, as is well recognised, is a political act and would require consultation with the State Governments/Union Territories and subsequent deliberation of their comments by the Union of India. Union of India has pointed out that they have a reservation on Article 20 of the UN Convention. Reference is also made to the Vienna Convention on the Law of Treaties, 1969, to which India is not a party but which provisions are reflected in the Standard Operating Procedure issued by the Ministry of External Affairs in respect of Memorandum of Understanding/Agreement with foreign countries. The Standard Operating Procedure, clause (iv) under Heading D – Treaty Making Formalities which relates to ratification, states that where a treaty does not provide for its entry into force only upon its signature and makes it subject to ratification, the treaty requires ratification. In order to ensure that India is in a position to efficiently discharge all obligations emanating from treaties/ agreements, such ratification should be undertaken only after relevant domestic clauses have been amended and the enabling legislations enacted when there is absence of domestic law on the subject. On the issue that the treaty making power is a political act, reference has been made to the following decisions: