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In the last two posts(Part I and
Part II), I discussed various arguments that were raised in the case of Suresh
Kumar Koushal & Anr. v. Naz Foundation & Ors. This is the third part of
the series. In the present article I will explain the Principle of Presumption
of Constitutionality and the Doctrine of Severability as discussed by the court
in this case.
Presumption of
Constitutionality
The principle of Presumption of
Constitutionality was succinctly enunciated by a Constitutional Bench in Ram
Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors.[1]:
“… (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;”
In John Vallamattom and
Anr. v. Union of India[2], the 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 legal
scenario and having regard to the Declaration on the Right to Development
adopted by the World Conference on Human Rights as also Article 18 of the
United Nations Covenant on Civil and Political Rights, 1966, the court also
observed:
“It is trite that having
regard to Article 13(1) of the Constitution, the constitutionality of the
impugned legislation is required to be considered on the basis of laws existing
on 26-1-1950, but while doing so the court is not precluded from taking into
consideration the subsequent events which have taken place thereafter. It is
further trite that the law although may be constitutional when enacted but with
passage of time the same may be held to be unconstitutional in view of the
changed situation.”
Finally, the court held that every
legislation 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. Hence, this principle was applicable in the
present case as well.
Doctrine of
Severability
In R.M.D. Chamarbaugwalla
v. The Union of India (UOI)[3], a Constitution Bench of the
Apex Court noted several earlier judgments on the issue of severability and
observed as follows:
“The doctrine of severability
rests, as will presently be shown, on a presumed intention of the legislature
that if a part of a statute turns out to be void, that should not affect the
validity of the rest of it, and 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.”
The court further said that:
“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.”
Following explanations are also relevant
here.
Cooley's Constitutional
Limitations[4]-
If the valid and invalid provisions are so inextricably mixed up that they
cannot be separated from one another, then the invalidity of a portion must
result in the invalidity of the Act in its entirety. On the other hand, if they
are so distinct and separate that after striking out what is invalid, what
remains is in itself a complete code independent of the rest, then it will be
upheld notwithstanding that the rest has become unenforceable.
Crawford on Statutory
Construction[5]-
Even when the provisions which are valid are distinct and separate from those
which are invalid, if they all form part of a single scheme which is intended
to be operative as a whole, then also the invalidity of a part will result in
the failure of the whole.
It was also said that:
“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.
The court can resort to
reading down a law in order to save it from being rendered unconstitutional. But
while doing so, it cannot change the essence of the law and create a new law
which in its opinion is more desirable.”
Applying the afore-stated
principles to the case in hand, the court observed that while the High Court
and Supreme Court are empowered to review the constitutionality of Section 377
IPC and strike it down to the extent of its inconsistency with the
Constitution, self-restraint must be exercised and the analysis must be guided
by the presumption of constitutionality.
Hence, the court held that unless
a clear constitutional violation is proved, the Court is not empowered to
strike down a law merely by virtue of its falling into disuse or the perception
of the society having changed as regards the legitimacy of its purpose and its
need.
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