Case: Suresh Kumar Koushal &amp; Another Vs. NAZ Foundation &amp; Others

for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment. Arguments which would be valid in respect of one area of the world may not hold good in respect of another area, in this context. Similarly, even if abolition in some parts of India may not make a material difference, it may be fraught with serious consequences in other parts. On a consideration of all the issues involved, the Commission is of the opinion, that capital punishment should be retained in the present state of the country.” The Court also referred to an earlier judgment in State of Madras v. V.G. Row 1952 SCR 597. In that case, Patanjali Sastri, CJ. observed: “It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and to abstract standard, or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable”. The responsibility of Judges in that respect is the greater, since the question as to whether capital sentence for murder is appropriate in modern times has raised serious controversy the world over, sometimes, with emotional overtones. It is, therefore, essential that we approach this constitutional question with objectivity and proper measure of self-restraint.” 53. The afore-stated judgment was relied upon in Surendra Pal v. Saraswati Arora (1974) 2 SCC 600. Learned counsel who appeared for the appellant in that case relied upon a passage from Halsbury’s Laws of England on the issue of presumption of undue influence in the case of parties engaged to be married. While refusing to rely upon the proposition laid down in Halsbury’s laws of England, this Court observed: “The family law in England has undergone a drastic change, recognized ?new social relationship between man and woman. In our country, however, even today a marriage is an arranged affair. We do not say that there are no exceptions to this practice or that there is no tendency, however imperceptible, for young persons to choose their own spouses, but even in such cases the consent of their parents is one of the desiderata which is sought for. Whether it is obtained in any given set of circumstances is another matter. In such arranged marriages in this country the question of two persons being engaged for any appreciable time to enable each other to meet and be in a position to exercise undue influence on one another very rarely arises. Even in the case of the marriage in the instant case, an advertisement was resorted to by Bhim Sain. The person who purports to reply is Saraswati’s mother and the person who replied to her was Bhim Sain’s Personal Assistant. But the social considerations prevailing in this country and ethos even in such cases persist in determining the respective attitudes. That apart, as we said earlier, the negotiations for marriage held in Saraswati’s sister’s house have all the appearance of a business transaction. In these circumstances that portion of the statement of the law in Halsbury which refers to the presumption of the exercise of undue influence in the case of a man to a woman to whom he is engaged to be married would hardly be applicable to conditions in this country. We have had occasion to point out the danger of such statements of law enunciated and propounded for meeting the conditions existing in the countries in which they are applicable from being blindly followed in this country without a critical examination of those principles and their applicability to the conditions, social norms and attitudes existing in this country. Often statements of law applicable to foreign countries as stated in compilations and learned treatises are cited without making a critical examination of those principles in the background of the conditions that existed or exist in those countries. If we are not wakeful and circumspect, there is every likelihood of their being simply applied to cases requiring our adjudication without consideration of the background and various other conditions to which we have referred. On several occasions merely because courts in foreign countries have taken a different view than that taken by our courts or in adjudicating on any particular matter we were asked to reconsider those decisions or to consider them for the first time and to adopt them as the law of this country. No doubt an objective and rational deduction of a principle, if it emerges from a decision of foreign country, rendered on pari materia legislative provisions and which can be applicable to the conditions prevailing in this country will assist the Court in arriving at a proper conclusion. While we should seek light from whatever source we can get, we should however guard against being blinded by it.” 54. In view of the above discussion, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable. 55.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The principle was succinctly enunciated by a Constitutional Bench in Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors. AIR 1958 SC 538 in the following(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles;(c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;(d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest;(e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and(f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminatinglegislation enacted by Parliament or State Legislature carries with it a presumption of constitutionality. This is founded on the premise that the legislature, being a representative body of the people and accountable to them is aware of their needs and acts in their best interest within the confines of the Constitution. There is nothing to suggest that this principle would not apply to pre-Constitutional laws which have been adopted by the Parliament and used with or without amendment. If no amendment is made to a particular law it may represent a decision that the Legislature has taken to leave the law as it is and this decision is no different from a decision to amend and change the law or enact a new law. In light of this, both pre and post Constitutional laws are manifestations of the will of the people of India through the Parliament and are presumed to beNo.1 attacked Section 377 IPC on the ground that the same has been used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community. In our opinion, this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section. It might be a relevant factor for the Legislature to consider while judging the desirability of amending Section 377view of the above discussion, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.