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9. Dr. L.M. Singhvi submitted that the question of death penalty cannot be foreclosed for ever on the abstract doctrine of stare decisis by a previous decision of this Court. It is emphasised that the very nature of the problem is such that it must be the subject of review from time to time so as to be in tune with the evolving standards of decency in a maturing society.

10. The learned Solicitor-General, Shri Soli Sorabji opposed the request of Shri Garg for referring the matter to a larger Bench because such a course would only mean avoidable delay in disposal of the matter. At the same time, the learned Counsel made it clear that since the constitutionality of the death penalty for murder was now sought to be challenged on additional arguments based on subsequent events and changes in law, he would have no objection on the ground of stare decisis, to a fresh Consideration of the whole problem by this very Bench.

This approach to the problem still holds the field. The observations in Chamarbaugwala, extracted above, were recently quoted with approval by V.R. Krishna Iyer, J., while delivering the judgment of the Bench in Fatehchand Himmatlal & Ors. v. Suite of Maharashtra .

27. In A.K. Gopalan v. The State of Madras [1960] 1 SCR 88, all the six learned Judges constituting the Bench held that punitive detention or imprisonment awarded as punishment after conviction for an offence under the Indian Penal Code is outside the scope of Article 19, although this conclusion was reached by them by adopting more or less different approaches to the problem.

48. Secondly, a survey of the decisions of this Court since A. K. Gopalan, shows that the criterion of directness which is the essence of the test of direct and indirect effect, has never been totally abandoned. Only the mode of its application has been modified and its scope amplified by judicial activism to maintain its efficacy for solving new constitutional problems in tune with evolving concepts of rights and obligations in a strident democracy.

49. The test of direct and indirect effect adopted in A. K. Gopalan was approved by the Full Court in Ram Singh v. State of Delhi. [1951] SCR 451 Therein, Patanjali Sastri, J. quoted with approval the passages (i) and (ii) (which we have extracted earlier) from the judgment of Kania, C. J. Although Mahajan and Bose, JJ. differed on the merits, there was no dissent on this point among all the learned Judges.

66. A contrary trend, however, is discernible in the recent decisions of this Court, which start with the initial presumption in favour of the constitutionality of the statute and throw the burden of rebutting that presumption on the party who challenges its constitutionality on the ground of Article 19.

67. In B. Banerjee v. Anita Pan . this Court, speaking through V.R. Krishna Iyer, J., reiterated the ratio of Ram Krishna Dalmia's case [1959] SCR 279, 297-propositions (b) & (c) that :

there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attack it to show that there has been a clear transgression of the constitutional principles"; and "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.