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TMI Blog2013 (12) TMI 1454X X X X Extracts X X X X X X X X Extracts X X X X ..... hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality." 3. The Background facts: (i) Respondent No.1 is a Non-Governmental Organisation (NGO) registered under the Societies Registration Act, 1860 which works in the field of HIV/AIDS intervention and prevention. Its work has focussed on targeting 'men who have sex with men' (MSM) or homosexuals or gays in consonance with the integrationist policy. Alleging that its efforts have been severely impaired by the discriminatory attitudes exhibited by State authorities towards sexual minorities, MSM, lesbians and transgender individuals and that unless self respect and dignity is restored to these sexual minorities by doing away with discriminatory laws such as Section 377 IPC it will not be possible to prevent HIV/AIDS, NAZ Foundation filed WP(C) No. 7455/2001 before the Delhi High Court impleading the Government of NCT of Delhi; Commissioner of Po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e right to liberty under Article 21 under the privacy and dignity claim. It was further pleaded that Section 377 IPC is not a valid law because there exists no compelling State interest to justify the curtailment of an important fundamental freedom; that Section 377 IPC insofar as it criminalises consensual, non-procreative sexual relations is unreasonable and arbitrary and therefore violative of Article 14. (iv) Another plea taken by respondent No.1 was that Section 377 creates a classification between "natural" (penile-vaginal) and "unnatural" (penile- non-vaginal) penetrative sexual acts. The legislative objective of penalising unnatural acts has no rational nexus with the classification between natural (procreative) and unnatural (non-procreative) sexual acts and is thus violative of Article 14. 4. By an order dated 2.9.2004, the Division Bench of the High Court dismissed the writ petition by observing that no cause of action has accrued to respondent No.1 and purely academic issues cannot be examined by the Court. The review petition filed by respondent No.1 was also dismissed by the High Court vide order dated 3.11.2004. 5. Respondent No.1 challenged both the orders in SLP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided with access to NACO services. 7. On behalf of the Ministry of Home Affairs, Government of India, Shri Venu Gopal, Director (Judicial) filed an affidavit and pleaded that Section 377 does not suffer from any constitutional infirmity. Shri Venu Gopal further pleaded that an unlawful act cannot be rendered legitimate because the person to whose detriment it acts consents to it; that Section 377 has been applied only on complaint of a victim and there are no instances of arbitrary use or application in situations where the terms of the section do not naturally extend to Section 377 IPC; that Section 377 IPC is not violative of Articles 14 and 21 of the Constitution. According to Shri Venu Gopal, Section 377 IPC provides a punishment for unnatural sexual offences, carnal intercourse against the order of nature and does not make any distinction between procreative and non-procreative sex. 8. Joint Action Council Kannur and Shri B.P. Singhal, who were allowed to act as interveners, opposed the prayer made in the writ petition and supported the stand taken by the Government. Another intervener, i.e., Voices Against 377, supported the prayer of respondent No.1 that Section 377 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Austin in "The Indian Constitution - Cornerstone of A Nation", "they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India". In the words of Justice V.R. Krishna Iyer these rights are cardinal to a decent human order and protected by constitutional armour. The spirit of Man is at the root of Article 21, absent liberty, other freedoms are frozen. A number of documents, affidavits and authoritative reports of independent agencies and even judgments of various courts have been brought on record to demonstrate the widespread abuse of Section 377 IPC for brutalizing MSM and gay community persons, some of them of very recent vintage. If the penal clause is not being enforced against homosexuals engaged in consensual acts within privacy, it only implies that this provision is not deemed essential for the protection of morals or public health vis-a-vis said section of society. The provision, from this perspective, should fail the "reasonableness" test." 10. The High Court discussed the question whether morality can be a ground for imposing restriction on fundamental rights, referred to the judgments in Gobind v. State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex conduct does not serve any public interest. The compelling state interest rather demands that public health measures are strengthened by de- criminalization of such activity, so that they can be identified and better focused upon. For the above reasons we are unable to accept the stand of the Union of India that there is a need for retention of Section 377 IPC to cover consensual sexual acts between adults in private on the ground of public morality." 11. The High Court then considered the plea of respondent No.1 that Section 377 is violative of Article 14 of the Constitution, referred to the tests of permissible classification as also the requirements of reasonableness and non-arbitrariness as laid down by this Court and held that the classification created by Section 377 IPC does not bear any rational nexus to the objective sought to be achieved. The observations made by the High Court on this issue are extracted below: "It is clear that Section 377 IPC, whatever its present pragmatic application, was not enacted keeping in mind instances of child sexual abuse or to fill the lacuna in a rape law. It was based on a conception of sexual morality specific to Victorian era draw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has the effect of viewing all gay men as criminals. When everything associated with homosexuality is treated as bent, queer, repugnant, the whole gay and lesbian community is marked with deviance and perversity. They are subject to extensive prejudice because what they are or what they are perceived to be, not because of what they do. The result is that a significant group of the population is, because of its sexual nonconformity, persecuted, marginalised and turned in on itself. [Sachs, J. in The National Coalition for Gay and Lesbian Equality v. The Minister of Justice, para 108]. 13. The High Court also discussed the case of Anuj Garg v. Hotel Association of India in detail and made reference to the principles of strict scrutiny and proportionality review as borrowed from the jurisprudence of the US Supreme Court, the Canadian and European Courts and proceeded to observe: "On a harmonious construction of the two judgments, the Supreme Court must be interpreted to have laid down that the principle of 'strict scrutiny' would not apply to affirmative action under Article 15(5) but a measure that disadvantages a vulnerable group defined on the basis of a characteristic tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s true that the courts should ordinarily defer to the wisdom of the legislature while exercising the power of judicial review of legislation. But it is equally well settled that the degree of deference to be given to the legislature is dependent on the subject matter under consideration. When matters of "high constitutional importance" such as constitutionally entrenched human rights - are under consideration, the courts are obliged in discharging their own sovereign jurisdiction, to give considerably less deference to the legislature than would otherwise be the case. In the present case, the two constitutional rights relied upon i.e. 'right to personal liberty' and 'right to equality' are fundamental human rights which belong to individuals simply by virtue of their humanity, independent of any utilitarian consideration. A Bill of Rights does not 'confer' fundamental human rights. It confirms their existence and accords them protection. After the conclusion of oral hearing, learned ASG filed his written submissions in which he claimed that the courts have only to interpret the law as it is and have no power to declare the law invalid. According to him, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009 ) Suresh Kumar Koushal & & Petitioners (Not parties before the High Court ) Petitioners are citizens of India who believe they have the moral responsibility and duty in protecting cultural values of Indian society. Samajik Ekta Party Intervener - IA No. 4/2009 The applicant is a political party registered by the Election Commission of India under Sec 29A, Representation of People Act, 1951 vide order dt. 20.4.1995. It is interested in the welfare of the citizens, their rights, functioning of the State and interest of public at large Page 16 Mr. Shyam Benega Intervener - IA No. 6/2009 The applicant is a film maker and a citizen. He seeks impleadment in the SLP in light of the fact that due to the misunderstanding and confusion of thought with regard to homosexuality, all points of view must be projected before this Hon'ble Court. Trust God Missionaries Interveners - IA No. 7/2010 The applicant is a registered charitable trust having the main aim to preserve and protect life for humanity and ear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... human rights, sexuality studies and law, criminal justice, and cultural studies and law, and feminist legal theory. They are concerned with the correct interpretation of statutes and the constitutional validity of Section 377 IPC. SLP (C) No. 24334/2009 Delhi Commission for Protection of Child Rights Petitioner (Not parties before the High Court) The petitioner has been constituted under the Commissions for Protection of Child Rights Act, 2005 read with GoI MHA notification dt. 15.1.2008. Under Sec 13(1j) the Commission is empowered to take suo moto notice of deprivation and violation of child rights, non implementation of laws providing for protection and development of children, and non compliance of policy decisions, guidelines or instructions aimed at mitigating hardship and ensuring welfare of children and providing relief. Its functions include: study and monitor matters relating to constitutional and legal rights of children; examine and review safeguards for protection of child rights and effective implementation of the same; review existing law and recommend amendments; look into complaints of taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are of the general public and it has done tremendous work in public interest SLP (C) No. 36216/200 Krantikati Manuvadi Morcha Party & Anr. Petitioner (not a party before the High Court) Krantikari Manuwadi Morcha (Revolutionary Manuist Front), is a Hindutva political organisation in India. It is one of the registered unrecognized political parties in India. The president of KMM is Ram Kumar Bhardwaj, grandson of freedom fighter Rudra Dutt Bhardwaj. CC No. 19478/2009 Utkal Christian Council rep. by Secretary Miss Jyotsna Rani Patro Petitioner (not a party before the High Court) Note: There is no information on the petitioner in the SLP CC No. 425/2010 All India Muslim Personal Law Board Petitioner (not a party before the High Court) The petitioner is a registered society established to protect and preserve Muslim Personal Laws. It strives to uphold the traditional values and ethos of the Muslim community and promotes essential values of Islam and also a national ethos among Muslims. The members of the society are religious scholars (u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, Kannur (SLP (C) No.286/2010), Ajay Kumar for the appellant - S.K. Tijarawala (SLP(C) No.20913/2009), Praveen Agrawal, counsel for the appellant -Suresh Kumar Koushal (SLP(C) No.15436/2009, H.P. Sharma, counsel for the appellant - B.P. Singhal (SLP(C) No.22267/2009), K.C. Dua, counsel for appellant - S.D. Pritinidhi Sabha Delhi (SLP(C) No.CC 14042/2009), P.V. Yogeswaran for appellant - Bhim Singh (SLP(C) No.25346/2009), Lakshmi Raman Singh, counsel for appellant - Tamil Nadu Muslim Munn. Kazhgam and Mushtaq Ahmad, counsel for appellant - Raza Academy (SLP(C) No.873/2010). Shri Amarendra Sharan made the following arguments: 16.2 That the High Court committed serious error by declaring Section 377 IPC as violative of Articles 21, 14 and 15 of the Constitution insofar as it criminalises consensual sexual acts of adults in private completely ignoring that the writ petition filed by respondent no.1 did not contain foundational facts necessary for pronouncing upon constitutionality of a statutory provision. Learned counsel extensively referred to the averments contained in the writ petition to show that respondent no.1 had not placed any tangible material before the High Court to show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the order of nature" and does not adequately show how the section violates the right to privacy and that also the right to privacy can be curtailed by following due process of law and the Code of Criminal Procedure prescribes a fair procedure, which is required to be followed before any person charged of committing an offence under Section 377 IPC can be punished. The right to privacy does not include the right to commit any offence as defined under Section 377 IPC or any other section. 16.7 That the legislature has treated carnal intercourse against the order of nature as an offence and the High Court has not given reasons for reading down the section. The presumption of constitutionality is strong and the right claimed should have been directly violated by the statute. Indirect violation is not sufficient for declaring Section 377 IPC violative of Articles 14, 15 and 21 of the Constitution. 16.8 That Article 21 provides that the right to life and liberty is subject to procedure prescribed by law. He referred to the judgments of this Court in A.K. Gopalan v. State of Madras 1950 SCR 88, R.C. Cooper v. Union of India (1970) 1 SCC 248, Maneka Gandhi v. Union of India (1978) 1 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to "you are dust and go back to dust". Learned senior counsel concluded by emphasising that if the declaration made by the High Court is approved, then India's social structure and the institution of marriage will be detrimentally affected and young persons will be tempted towards homosexual activities. 16.13 Shri V. Giri, learned senior counsel argued that Section 377 IPC does not classify people into groups but it only describes an offence. He submitted that the High Court made two wrong assumptions: one, that sexual orientation is immutable and two, that sexual orientation can be naturally demonstrated only in a way as contemplated in Section 377 IPC. Learned senior counsel submitted that what has been criminalized by Section 377 IPC is just the act, independent of the sex of people or sexual orientation. Shri Giri further submitted that sufficient evidence is not available to support the statement that Section 377 IPC helps with HIV/AIDS prevention. He referred to the scientific study conducted by the National Institute of Health on behavioral patterns and AIDS which shows that HIV/AIDS is higher among MSM. Learned counsel submitted that same sex is more harmful to public he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n including Clauses 361 and 362 of the Draft Penal Code, 1837 which preceded the enactment of Section 377 IPC in its present form and made the following arguments: 17.1 Interpretation of Section 377 is not in consonance with the scheme of the IPC, with established principles of interpretation and with the changing nature of society. 17.2 That Section 377 punishes whoever voluntarily has carnal intercourse against the order of nature. This would render liable to punishment- (a) Any person who has intercourse with his wife other than penile - vaginal intercourse; (b) Any person who has intercourse with a woman without using a contraceptive. 17.3 When the same act is committed by 2 consenting males, and not one, it cannot be regarded as an offence when- (i) The act is done in private; (ii) The act is not in the nature of sexual assault, causing harm to one of the two individuals indulging in it; and (iii) No force or coercion is used since there is mutual consent. 17.4 Section 377 must be read in light of constitutional provisions which include the "right to be let alone". The difference between obscene acts in private and public is statutorily recognized in Section 294 IPC. 17.5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GBT community. These were based on paras 33 and 35 of the Writ Petition filed by the Naz Foundation challenging the vires of Section 377. It was supported by various documents brought on record, such as Human Rights Watch Report, July 2002 titled, "Epidemic of Abuse: Police Harassment of HIV/AIDS Outreach Workers in India"; Affidavits giving instances of torture and sexual abuse; Jayalakshmi v. State, (2007) 4 MLJ 849 dealing with sexual abuse and torture of a eunuch by police; An Order of a Metropolitan Magistrate alleging an offence u/s 377 against two women even though there is an express requirement of penetration under the Explanation to Section 377. 17.10 Section 377 is ultra vires of Article 14 as there is no classification apparent on the face of it. 17.11 The appellants contend that Section 377 is too broadly phrased as it may include: (1) Carnal intercourse between husband and wife; (2) Carnal intercourse between man and woman for pleasure without the possibility of conception of a human being; (3) Use of contraceptives between man and woman; (4) Anal sex between husband and wife; (5) Consenting carnal intercourse between man and man; (6) Non consenting carnal intercour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing home the point that LGBT persons have been targeted by the police with impunity and the judiciary at the grass route level has been extremely slow to recognize harassment suffered by the victims. He also relied upon 'Homosexuality: A Dilemma in Discourse, Corsini Concise Encyclopaedia of Psychology and Behavioural Science', articles written by Prof. Upendra Baxi and Prof. S.P. Sathe, 172nd Report of the Law Commission which contained recommendation for deleting Section 377 IPC and argued that Section 377 has been rightly declared unconstitutional because it infringes right to privacy and right to dignity. He relied upon the statement made by the Attorney General on 22.3.2012 that the Government of India does not find any legal error in the order of the High Court and accepts the same. Shri Divan further argued that Section 377 IPC targets LGBT persons as a class and is, therefore, violative of Articles 14 and 15 of the Constitution. 19. Shri Anand Grover, learned senior counsel for respondent No.1 made the following submissions: 19.1 Section 377 criminalises certain sexual acts covered by the expressions "carnal intercourse against the order of nature" between consenting adul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l intercourse that heterosexual persons can indulge in. The expression of homosexual orientation which is an innate and immutable characteristic of homosexual persons is criminalised by Section 377. The section ends up criminalising identity and not mere acts as it is usually homosexual or transgender persons who are associated with the sexual practices proscribed under Section 377 (relied on National Coalition for Gay and Lesbian Equality v. Minster of Justice & Ors. 1998 (12) BCLR 1517 (CC), Queen Empress v. Khairati 1884 ILR 6 ALL 204, Noshirwan v. Emperor). While the privacy of heterosexual relations, especially marriage are clothed in legitimacy, homosexual relations are subjected to societal disapproval and scrutiny. The section has been interpreted to limit its application to same sex sexual acts (Govindrajulu, in re, (1886) 1 Weir 382. Grace Jayamani v. E Peter AIR 1982 Kar 46, Lohana Vasantlal Devchand v. State). Sexual intimacy is a core aspect of human experience and is important to mental health, psychological well being and social adjustment. By criminalising sexual acts engaged in by homosexual men, they are denied this fundamental human experience while the same is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CL v. UoI & Anr (1997) 3 SCC 433, Apparel Export Promotion Council v. A.K. Chopra (1999) 1 SCC 759, Pratap Singh v. State of Jharkhand (2005) 3 SCC 551, PUCL v. UoI & Anr. (2005) 2 SCC 436, Entertainment Network (India) Ltd. v. Super Cassette Industries (2008) 12 SCC 10, Smt. Selvi v. State of Karnataka (2010) 7 SCC 263). 19.12 Section 377 violates the right to privacy, dignity and health guaranteed under Article 21 of all persons especially homosexual men. 19.13 Section 377 fails the criteria of substantive due process under Article 21 as it infringes upon the private sphere of individuals without justification which is not permissible. The principle has been incorporated into Indian jurisprudence in the last few years after the Maneka Gandhi case. The test of whether a law is just fair and reasonable has been applied in examining the validity of state action which infringes upon the realm of personal liberty (Mithu v. State of Punjab (1983) 2 SCC 277, Selvi v. State of Karnataka (2010) 7 SCC 263, State of Punjab v. Dalbir Singh (2012) 2 SCALE 126, Rajesh Kumar v. State through Govt of NCT of Delhi (2011) 11 SCALE 182). 19.14 The guarantee of human dignity forms a part of Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to addressing the needs of those at the greatest risk of HIV including MSM and transgendered persons. The risk of contracting HIV through unprotected penile anal sex is higher than through penile vaginal sex. The HIV prevalence in MSM is 7.3% which is disproportionately higher than in that of the general population which is less than 0.5%. The prevalence continues to rise in many States and this is because of the stigmatisation of the MSM population due to which they are not provided with sexual health services including prevention services such as condoms. Due to pressure, some MSM also marry women thus acting as a bridge population. Criminalisation increases stigma and discrimination and acts as a barrier to HIV prevention programmes. Section 377 thwarts health services by preventing collection of HIV data, impeding dissemination of information, forcing harassment, threats and closure upon organisations who work with MSM, preventing supply of condoms as it is seen as aiding an offence; limits access to health services, driving the community underground; prevents disclosure of symptoms; increases sexual violence and harassment against the community; and creates an absence of saf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot hold valid today. (refer to DS Nakara v. UoI (1983) 1 SCC 305, Kartar Singh v. State of Punjab (1994) 3 SCC 569, M Nagaraj v. UoI (2006) 8 SCC 212, Anuj Garg v. Hotel Association of India (2008) 3 SCC 1, Deepak Sibal v. Punjab University (1989) 2 SCC 145, Suchita Srivastava v. Chandigarh Administration). 19.18 Section 377 is disproportionate and discriminatory in its impact on homosexuals. The law must not only be assessed on its proposed aims but also on its implications and effects. Though facially neutral, the section predominantly outlaws sexual activity between men which is by its very nature penile non vaginal. While heterosexual persons indulge in oral and anal sex, their conduct does not attract scrutiny except when the woman is underage or unwilling. In fact, Courts have even excluded married heterosexual couples from the ambit of Section 377. When homosexual conduct is made criminal, this declaration itself is an invitation to perpetrate discrimination. It also reinforces societal prejudices. (Anuj Garg v. Hotel Association of India, Peerless General Finance Investment Co. Ltd. v. Reserve Bank of India (1992) 2 SCC 343, Grace Jayamani v. EP Peter AIR 1982 Kant. 46, La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f how laudable the object is. If a law operates to discriminate against some persons only on the basis of a prohibited ground, it must be struck down. (M Nagaraj v. UoI, Anuj Garg v. Hotel Association of India, Toonen v. Australia, Egan v. Canada, Vriend v. Alberta, Punjab Province v. Daulat Singh AIR 1946 PC 66, State of Bombay v. Bombay Education Society [1955] SCR 568 ). Shri Grover also submitted that the Courts in other countries have struck down similar laws that criminalise same-sex sexual conduct on the ground that they violate the right to privacy, dignity and equality. 20. Shri Ashok Desai, learned senior counsel, who appeared for Shri Shyam Benegal argued that Section 377 IPC, which is a pre-Constitution statute, should be interpreted in a manner which may ensure protection of freedom and dignity of the individuals. He submitted that the Court should also take cognizance of changing values and temporal reasonableness of a statute. Shri Desai emphasized that the attitude of the society is fast changing and the acts which were treated as offence should no longer be made punitive. He referred to medical literature to show that sexuality is a human condition and argued that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ministry of Home Affairs, referred to the affidavit filed before the Delhi High Court wherein the Ministry of Home Affairs had opposed de-criminalisation of homosexuality and argued that in its 42nd Report, the Law Commission had recommended retention of Section 377 IPC because the societal disapproval thereof was very strong. Learned Additional Solicitor General submitted that the legislature, which represents the will of the people has decided not to delete and it is not for the Court to import the extra-ordinary moral values and thrust the same upon the society. He emphasized that even after 60 years of independence, Parliament has not thought it proper to delete or amend Section 377 IPC and there is no warrant for the High Court to have declared the provision as ultra vires Articles 14,15 and 21 of the Constitution. 23. Shri Mohan Jain, learned Additional Solicitor General who appeared on behalf of the Ministry of Health, submitted that because of their risky sexual behaviour, MSM and female sex workers are at a high risk of getting HIV/AIDS as compared to normal human beings. He pointed out that as in 2009, the estimated number of MSM was 12.4 lakhs. 24. We have considered t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en shall, on ground only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to - (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained whole or partly out of State funds or dedicated to the use of general public. (3) Nothing in this article shall prevent the State from making any special provision for women and children. (4) Nothing in this article or in clause (2) or article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. (5) Nothing I this article or in sub-clause (g) of clause () of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizen or for the Scheduled Castes or Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub- clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,- (i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise. 21. Protection of life and personal liberty. - No person shall be deprived of his life or personal liberty except according to procedure established by law. 32. Remedies for enforcement of rights conferred by this Part.- (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated. (4) The power conferred on a High Court by this Article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32. 372. Continuance in force of existing laws and their adaptation.- (1) Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority. (2) For the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the President may by order make such adaptations and modifications of such law, whether by way of repeal or amendment, as may be necessary or expedient, and provide that the law shall, as from such date as may be specified in the order, have effect subject to the adaptations and modificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt to test the laws of the land on the touchstone of the Constitution and provide appropriate remedy if and when called upon to do so. Seen in this light the power of judicial review over legislations is plenary. However, keeping in mind the importance of separation of powers and out of a sense of deference to the value of democracy that parliamentary acts embody, self restraint has been exercised by the judiciary when dealing with challenges to the constitutionality of laws. This form of restraint has manifested itself in the principle of presumption of constitutionality. 27. 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 words: "... (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." Referring to that case, the Court in Anuj Garg v. Hotel Association of India and Ors. (2008) 3 SCC 1, while dealing with the constitutionality of Section 30 of Punjab Excise Act, 1914, this Court observed: "7. The Act is a pre-constitutional legislation. Although it is saved in terms of Article 372 of the Constitution, challenge to its validity on the touchstone of Articles 14, 15 and 19 of the Constitution of India, is permissible in law. While embarking on the questions raised, it may be pertinent to know that a statute although could have been held to be a valid piece of legislation keeping in view the societal condition of those times, but with the changes occurring therein both in the domestic as also international arena, such a law can also be declared invalid." In John Vallamattom and Anr. v. Union of India AIR 2003 SC 2902, this Court, while referring to an amendment made in UK in relation to a provision which was in pari materia with Section 118 of Indian Succession Act, observed: "The constitutionality of a provision, it is trite, will have to be judged keeping in view the interpretative changes of the statute affected by passage of time." Referring to the changing l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that that intention is to be ascertained from the terms of the statute. It is the true nature of the subject-matter of the legislation that is the determining factor, and while a classification made in the statute might go far to support a conclusion in favour of severability, the absence of it does not necessarily preclude it. When a statute is in part void, it will be enforced as regards the rest, if that is severable from what is invalid. It is immaterial for the purpose of this rule whether the invalidity of the statute arises by reason of its subject-matter being outside the competence of the legislature or by reason of its provisions contravening constitutional prohibitions. 26. That being the position in law, it is now necessary to consider whether the impugned provisions are severable in their application to competitions of a gambling character, assuming of course that the definition of 'prize competition' in s. 2(d) is wide enough to include also competitions involving skill to a substantial degree. It will be useful for the determination of this question to refer to certain rules of construction laid down by the American Courts, where the question of severabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Vide Sutherland on Statutory Construction, Vol. 2, p. 194. 7. In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, its object, the title and the preamble to it. Vide Sutherland on Statutory Construction, Vol. 2, pp. 177-178." 30. Another significant canon of determination of constitutionality is that the Courts would be reluctant to declare a law invalid or ultra vires on account of unconstitutionality. The Courts would accept an interpretation, which would be in favour of constitutionality rather than the one which would render the law unconstitutional. Declaring the law unconstitutional is one of the last resorts taken by the Courts. The Courts would preferably put into service the principle of 'reading down' or 'reading into' the provision to make it effective, workable and ensure the attainment of the object of the Act. These are the principles which clearly emerge from the consistent view taken by this Court in its various pronouncements including the recent judgment in Namit Sharma v. Union of India (2013)1 SCC 745. In D.S. Nakara and Ors. v. Union of India (UO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sales Tax, Madhya Pradesh, Indore and Ors. v. Radhakrishan and Ors. (1979) 2 SCC 249 in the following words: "In considering the validity of a statute the presumption is in favour of its constitutionality and the burden is upon him who attacks it to show that there has been a clear transgression of constitutional principles. For sustaining 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 it must always be presumed that the Legislature understands and correctly appreciates the need of its own people and that discrimination, if any, is based on adequate grounds. It is well settled that courts will be justified in giving a liberal interpretation to the section in order to avoid constitutional invalidity. These principles have given rise to rule of reading down the section if it becomes necessary to uphold the validity of the sections." In Minerva Mills Ltd. and Ors. v. Union of India (UOI) and Ors. (1980) 3 SCC 625, the Court identified the limitations upon the practice of reading down: "69. The learned Attorney Genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution, cannot be read down to save the said provision from constitutional invalidity by bringing or adding words in the said legislation such as saying that it implies that reasons for the order of termination have to be recorded. In interpreting the provisions of an Act, it is not permissible where the plain language of the provision gives a clear and unambiguous meaning can be interpreted by reading down and presuming certain expressions in order to save it from constitutional invalidity." 31. From the above noted judgments, the following principles can be culled out: (i) The High Court and Supreme Court of India are empowered to declare as void any law, whether enacted prior to the enactment of the Constitution or after. Such power can be exercised to the extent of inconsistency with the Constitution/contravention of Part III. (ii) There is a presumption of constitutionality in favour of all laws, including pre-Constitutional laws as the Parliament, in its capacity as the representative of the people, is deemed to act for the benefit of the people in light of their needs and the constraints of the Constitution. iii) The doctrine of severability seeks to ensure that onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - First.-Against her will. Secondly.-Without her consent. Thirdly.-With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly.-With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.-With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.-With or without her consent, when she is under sixteen years of age. Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.-Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. 376. Punishment for rape.--(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either descript ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children. Explanation 3.-"hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation. 377. Unnatural offences.--Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.-Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section." 35. Before proceeding further, we may also notice dictionary meanings of some words and expressions, which have bearing on this case. Buggery - a carnal copulation against nature; a man or a woman with a brute beast, a man with a man, or man unnaturally with a woman. This term is often used interchangeably with "sodomy". (Black's Law Dictionary 6th Edn. 1990) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c.31) and by Section 125 of the Criminal Law (India) Act 1828 (c.74). It was replaced by Section 15 of the Offences against the Person Act 1828, and ection 63 of the Criminal Law (India) Act 1828, which provided that buggery would continue to be a capital offence. With the enactment of the Offences against the Person Act 1861 buggery was no longer a capital offence in England and Wales. It was punished with imprisonment from 10 years to life. India 37. The offence of sodomy was introduced in India on 25.7.1828 through the Act for Improving the Administration of Criminal Justice in the East Indies (9.George.IV). Chapter LXXIV Clause LXIII "Sodomy" - "And it be enacted, that every person convicted of the abominable crime of buggery committed with either mankind or with any animal, shall suffer death as a felon". In 1837, a Draft Penal Code was prepared which included: Clauses 361 - "Whoever intending to gratify unnatural lust, touches for that purpose any person or any animal or is by his own consent touched by any person for the purpose of gratifying unnatural lust, shall be punished with imprisonment of either description for a term which may extend to fourteen years, and mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first act tending to it liable to the same punishment, if the Judge shall deem it proper, as the offence actually accomplished. This is a new principle, and it would have been better if the Commissioners had explained for what reason they adopted it, in respect to the offences here contemplated in particular. We conceive that there is a very weighty objection to the clauses in question, in the opening which they will afford to calumny, if for an act so slight as may come within the meaning of the word, "touches", a man may be exposed to such a revolting charge and suffer the ignominy of a public trial upon it. 453. Colonel Sleeman advises the omission of both these clauses, deeming it most expedient to leave offences against nature silently to the odium of society. It may give weight to this suggestion to remark that the existing law on the subject is almost a dead letter, as appears from the fact that in three years only six cases came before the Nizamut Adawlut at Calcutta, although it is but true, we fear that the frequency of the abominable offence in question "remains" as Mr AD Campbell expresses it, "a horrid stain upon the land. 454. Mr. Livingstone, we observe, makes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her organisation, for certain' clearly defined and limited objects. The primary object of the visiting organization is 'to obtain euphoria by means of a detent of the nerves consequent on the sexual crisis'." "But there is no intercourse unless the visiting member is enveloped at least partially by the visited organism, for intercourse connotes reciprocity. Looking at the question in this way it would seem that sin of Gomorrah is no less carnal intercourse than the sin of sodomy". "it is to be remembered that the Penal Code does not, except in Section 377, render abnormal sexual vice punishable at all. In England indecent assaults are punishable very severely. It is possible that under the Penal Code, some cases might be met by prosecuting the offender for simple assault, but that is a compoundable offence and in any case the patient could in no way be punished. It is to be supposed that the Legislature intended that a Tegellinus should carry on his nefarious profession perhaps vitiating and depraving hundreds of children with perfect immunity? I doubt not therefore, that cotius per os is punishable under Section 377, Indian Penal Code." Khandu v. Emperor 35 Cri LJ 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 377 of the Penal Code. The counsel of the respondents contends (in this argument the Public Prosecutor also supports him) that sexual act between the thighs is not intercourse. The argument is that for intercourse there must be encirclement of the male organ by the organ visited; and that in the case of sexual act between the thighs, there is no possibility of penetration. 19. The word 'intercourse' means 'sexual connection' (Concise Oxford Dictionary). In Khanu v. Emperor AIR 1925 Sind 286 the meaning of the word 'intercourse' has been considered: Intercourse may be defined as mutual frequent action by members of independent organization. Then commercial intercourse, social intercourse, etc. have been considered; and then appears: By a metaphor the word intercourse, like the word commerce, is applied to the relations of the sexes. Here also there is the temporary visitation of one organism by a member of the other organization, for certain clearly defined and limited objects. The primary object of the visiting organization is to obtain euphoria by means of a detent of the nerves consequent on the sexual crisis. But there is no intercourse unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh to include all acts against the order of nature. My view on the question is also that the words of Section 377 are simple and wide enough to include any carnal intercourse again tithe order of nature within its ambit. Committing intercourse between the thighs of another is carnal intercourse against the order of nature." In Fazal Rab Choudhary v. State of Bihar (1982) 3 SCC 9 - While reducing the sentence of the appellant who was convicted for having committed an offence under Section 377 IPC upon a young boy who had come to his house to take a syringe, the Court observed: "3. The offence is one under Section 377 I.P.C., which implies sexual perversity. No force appears to have been used. Neither the notions of permissive society nor the fact that in some countries homosexuality has ceased to be an offence has influenced our thinking. However in judging the Depravity of the action for determining quantum of sentence, all aspects of the matter must be kept in view. We feel there is some scope for modification of sentence. Having examined all the relevant aspects bearing on the question of nature of offence and quantum of sentence, we reduce the substantive sentence to R.I. for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appetite, would be an act punishable under Section 377, IPC. 10. In Corpus Juris Secundum, Volume 81, op. 368-370, the following comments have been made. "Words used in statutory definitions of the crime of Sodomy have been frequently construed as more comprehensive and as not depending on, or limited by the common law definition of the crime, at least as not dependent on the narrower definition of sodomy afforded by some of the common law authorities and are generally interpreted to include within their provisions all acts of unnatural copulation, whether with mankind or beast. Other authorities, however, have taken a contrary view, holding that the words used in the statute are limited by the common law definition of the crime where the words of the statute themselves are not explicit as to what shall be included. It is competent for the legislature to declare that the doing of certain acts shall constitute the crime against nature even-though they would not have constituted that crime at common law, and the statutory crime against nature is not necessarily limited to the common law crime of sodomy, but in imposing a punishment for the common law crime it is not necessary for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce' is applied to the relations of the sexes. Here also there is the temporary visitation of one organism by a member of the other organisation, for certain clearly defined and limited objects. The primary object of the visiting organisation is to obtain euphoria by means of a detent of the nerves consequent on the sexual crisis. But there is no intercourse unless the visiting member is enveloped at least partially by the visited organism, for intercourse connotes reciprocity, and in this view it would seem that sin of Gomorrah is no less carnal intercourse than the sin of sodomy. These aspects have been illuminatingly highlighted in Khanu's case (supra). 12. In Stroud's Judicial Dictionary, the word 'buggery' is said to be synonymous with sodomy. In K. J. Ayer's Manual of Law Terms and Phrases (as Judicially Expounded), the meaning of the word 'sodomy' is stated to be a carnal knowledge committed against the order of Nature by a man with a man or in the same unnatural manner with a woman, or by a man or woman in any manner with a beast. This is called buggery. As observed in Lohan Vasantlal Devchand's case (supra), sodomy will be a species and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Section 13 of the repealed Act is inconsistent with Section 14 of the 2003 Act, the same would be arbitrary by reason of being discriminatory in nature and ultra vires Article 14 of the Constitution of India on the premise that charging section provides for levy of tax on sale and consumption of electrical energy, while the exemption provision purports to give power to exempt tax on "electricity sold for consumption" and makes no corresponding provision for exemption of tax on electrical energy self- generated and consumed." In Seema Silk and Sarees v. Directorate of Enforcement (2008) 5 SCC 580, this Court considered challenge to Sections 18(2) and (3) of the Foreign Exchange Regulation Act, 1973, referred to paragraphs 69, 70 and 74 of the Southern Petrochemical Industries v. Electricity Inspector (supra) and observed: "In absence of such factual foundation having been pleaded, we are of the opinion that no case has been made out for declaring the said provision ultra vires the Constitution of India." 40. The writ petition filed by respondent No.1 was singularly laconic inasmuch as except giving brief detail of the work being done by it for HIV prevention targeting MSM comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws. 3. The Constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The Courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary. 4. The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian Territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. 9. If the legislative policy is clear and definite and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as a piece of discriminatory legislation. In such cases, the power given to the executive body would import a duty on it to classify the subject-matter of legislation in accordance with the objective indicated in the statute. If the administrative body proceeds to classify persons or things on a basis which has no rational relation to the objective of the legislature, its action can be annulled as offending against the equal protection clause. On the other hand, if the statute itself does not disclose a definite policy or objective and it confers authority on another to make selection at its pleasure, the statute would be held on the face of it to be discriminatory, irrespective of the way in which it is applied. 10. Whether a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution. 44. The vagueness and arbitrariness go to the root of a provision and may render it unconstitutional, making its implementation a matter of unfettered discretion. This is especially so in case of penal statues. However while analyzing a provision the vagaries of language must be borne in mind and prior application of the law must be considered. In A.K. Roy and Ors. v. Union of India and Ors. (1982) 1 SCC 271, a Constitution Bench observed as follows: "67. The requirement that crimes must be defined with appropriate definiteness is regarded as a fundamental concept in criminal law and must now be regarded as a pervading theme of our Constitution since the decision in Maneka Gandhi [1978] 2 SCR 621 . The underlying principle is that every person is entitled to be informed as to what the State commands or forbids and that the life and liberty of a person cannot be put in peril on an ambiguity. However, even in the domain of criminal law, the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance with the intention of the legislature. Thus if the law is open to diverse construction, that construction which accords best with the intention of the legislature and advances the purpose of legislation, is to be preferred. Where however the law admits of no such construction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution as was done in the case of the Goonda Act. This is not application of the doctrine of due process. The invalidity arises from the probability of the misuse of the law to the detriment of the individual. If possible, the Court instead of striking down the law may itself draw the line of demarcation where possible but this effort should be sparingly made and only in the clearest of cases." 45. We may now deal with the issue of violation of Article 21 of the Constitution. The requirement of substantive due process has been read into the Indian Constitution through a combined reading of Articles 14, 21 and 19 and it has been held as a test which is required to be satisfied while judging the constitutionality of a provision which purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the personal liberty guaranteed by Article 21 has still to meet a possible challenge under other provisions of the Constitution like, for example, Articles 14 and 19." 46. The right to privacy has been guaranteed by Article 12 of the Universal Declaration of Human Rights (1948), Article 17 of the International Covenant of Civil and Political Rights and European Convention on Human Rights. It has been read into Article 21 through an expansive reading of the right to life and liberty. The scope of the right as also the permissible limits upon its exercise have been laid down in the cases of Kharak Singh v. State of UP & Ors. (1964) 1 SCR 332 and Gobind v. State of MP (1975) 2 SCC 148 which have been followed in a number of other cases. In Kharak Singh v. The State of U.P. and Ors. (supra) the majority said that 'personal liberty' in Article 21 is comprehensive to include all varieties of rights which make up personal liberty of a man other than those dealt with in Article 19(1) (d). According to the Court, while Article 19(1) (d) deals with the particular types of personal freedom, Article 21 takes in and deals with the residue. The Court said: "We have already extracted a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right need not be considered for the purpose of this case and therefore we refuse to enter the controversial thicket whether enforcement of morality is a function of state. 23. Individual autonomy, perhaps the central concern of any system of limited government, is protected in part under our Constitution by explicit Constitutional guarantees. "In the application of the Constitution our contemplation cannot only be of what has been but what may be." Time works changes and brings into existence new conditions. Subtler and far reaching means of invadings privacy will make it possible to be heard in the street what is whispered in the closet. Yet, too broad a definition of privacy raises serious questions about the propriety of judicial reliance on a right that is not explicit in the Constitution. Of course, privacy primarily concerns the individuals. It therefore relates to and overlaps with the concept of liberty. The most serious advocate of privacy must confess that there are serious problems of defining the essence and scope of the right. Privacy interest in autonomy must also be placed in the context of other rights and values. 24. Any right to privacy must encompass and prote ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acterize as a fundamental right, we do not think that the right is absolute." 48. The issues of bodily integrity and the right to sexual choices have been dealt with by this Court in Suchita Srivastava and Anr. v. Chandigarh Administration (2009) 9 SCC 1, in context of Section 3 of the Medical Termination of Pregnancy Act, 1971, observed: "11. A plain reading of the above-quoted provision makes it clear that Indian law allows for abortion only if the specified conditions are met. When the MTP Act was first enacted in 1971 it was largely modelled on the Abortion Act of 1967 which had been passed in the United Kingdom. The legislative intent was to provide a qualified 'right to abortion' and the termination of pregnancy has never been recognised as a normal recourse for expecting mothers. There is no doubt that a woman's right to make reproductive choices is also a dimension of 'personal liberty' as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman's right to privacy, dignity and bodily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solute and may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others. 28. Having regard to the fact that the appellant was found to be HIV(+), its disclosure would not be violative of either the rule of confidentiality or the appellant's Right of Privacy as Ms. Akali with whom the appellant was likely to be married was saved in time by such disclosure, or else, she too would have been infected with the dreadful disease if marriage had taken place and consummated." 50. The right to live with dignity has been recognized as a part of Article 21 and the matter has been dealt with in Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors. (1981) 1 SCC 608 wherein the Court observed: "8. But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and Ors. v. State of Bihar : 1955CriLJ374 a contention was raised that a provision of law may not be discriminatory but it may land itself to abuse bringing about discrimination between the persons similarly situated. This court repelled the contention holding that on the possibility of abuse of a provision by the authority, the legislation may not be held arbitrary or discriminatory and violative of Article 14 of the Constitution. 13. From the decided cases in India as well as in United States of America, the principle appears to be well settled that if a statutory provision is otherwise intra-vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra-vires or unconstitutional. In such cases, "action" and not the "section" may be vulnerable. If it is so, the court by upholding the provision of law, may still set aside the action, order or decision and grant appropriate relief to the person aggrieved. 14. In Mafatlal Industries Ltd. and Ors. v. Union of India and Ors. : 1997(89)ELT247(SC) , a Bench of 9 Judges observed that mere possibility of abuse of a provision by those in charge of administering it cannot be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of capital punishment either as a detterent or as appropriate retribution. There is large volume of evidence compiled in the West by kindly social reformers and research workers to confound those who want to retain the capital punishment. The controversy is not yet ended and experiments are made by suspending the death sentence where possible in order to see its effect. On the other hand most of these studies suffer from one grave defect namely that they consider all murders as stereotypes, the result of sudden passion or the like, disregarding motivation in each individual case. A large number of murders is undoubtedly of the common type. But some at least are diabolical in conception and cruel in execution. In some others where the victim is a person of high standing in the country society is liable to be rocked to its very foundation. Such murders cannot be simply wished away by finding alibis in the social maladjustment of the murderer. Prevalence of such crimes speaks, in the opinion of many, for the inevitability of death penalty not only by way of deterrence but as a token of emphatic disapproval by the society. 14. We have grave doubts about the expediency of transplant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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