P. Rathinam v. Union of India - Cornell University

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91. The basic argument of Shri Sharma, learned counsel for the Union of India, was that allowing persons tocommit suicide would be against public policy. Though which public policy would be so affected was notspelt out by the learned counsel, we presume that the public policy to be so jeopardised is one which requirespreservation of human life. One of the objects of punishment to be inflicted when an offence is committed isprotection of society from the depredations of dangerous persons, as mentioned at p. 198 of Burton M.Leiser's Liberty, Justice and Morals. But insofar as suicide is concerned, this object does not get attractedbecause there is no question of protection of the society from depredation of dangerous persons, who by thevery nature of things have to be those who cause harm to others and not to themselves. Of course, we wouldconcede that one of the interests of the State has to be preservation of human life.92. The concept of public policy is, however, illusive, varying and uncertain. It has also been described as"untrustworthy guide", "unruly horse" etc. The leading judgment describing the doctrine of public policy hasbeen accepted to be that of Parke, B. in Egerton v. Brownlow 33 in which it was stated as below at p. 123, asquoted in paragraph 22 of Gherulal Parakh v. Mahadeodas Maiya34: "Public policy' is a vague andunsatisfactory term, and calculated to lead to uncertainty and error, when applied to the decision of legalrights; it is capable of being understood in different senses; it may, and does, in its ordinary sense, mean'political expedience' or that which is best for the common good of the community; and in that sense theremay be every variety of opinion, according to education habits, talents and dispositions of each person, who isto decide whether an act is against public policy or not. To allow this to be a ground of judicial decision,would lead to the greatest uncertainty and confusion. It is the province of the statesman and not the lawyer, todiscuss, and of the Legislature to determine what is best for the public good and to provide for it by properenactments. It is the province of the judge to expound the law only; the written from the statutes; theunwritten or common law from the decisions of our predecessors and of our existing courts, from text writersof acknowledged authority, and upon the principles to be clearly deduced from them by sound reason and justinference; not to speculate upon what is the best, in his opinion, for the advantage of the community. Some ofthese decisions may have no doubt bee nfounded upon the prevailing and just opinions of the public good; for instance, the illegality of covenants inrestraint of marriage or trade. They have become a part of the recognised law, and we are therefore bound bythem, but we are not thereby authorised to establish as law everything33 (1853) 4 HLC 12134 AIR 1959 SC 781 : 1959 Supp (2) SCR 406 425P.Rathinam vs Union Of India on 26 April, 1994which we may think for the public good, and prohibit everything which we think otherwise."93. In the aforesaid case a three-Judge Bench of this Court summarised the doctrine of public policy by statingat p. 795 that public policy or policy of law is an illusive concept; it has been described as "untrustworthyguide", "variable quality", "uncertain one", "unruly horse" etc.94. Different High Courts of the country have had also occasion to express their views on this concept in theirjudgments in Bhagwant Genuji Girme v. Gangabisan Ramgopal35; Mafizuddin Khan Choudhury v.Habibuddin Shekh36; Kolaparti Venkatareddi v. Kolaparti Peda Venkatachalam37 and Ratanchand Hirachandv. Askar Nawaz Jung38. In Kolaparti case37 it was stated that the term public policy is not capable of aprecise definition and whatever tends to injustice of operation, restraint of liberty, commerce and natural orlegal rights; whatever tends to the obstruction of justice or to the violation of a statute and whatever is againstgood morals can be said to be against public policy. These decisions have also pointed out that the concept ofpublic policy is capable of expansion and modification. In Ratanchand case38 a Bench of Andhra PradeshHigh Court speaking through Chinnappa Reddy, J. as he then was, quoted at p. 117 a significant passage fromProfessor Winfield, "Essay on Public Policy in the English Common Law" (42 Harvard Law Review 76). Thesame is as below: "Public policy is necessarily variable. It may be variable not only from one century toIndian Kanoon - http://indiankanoon.org/doc/542988/ 20
another, not only from one generation to another but even in the same generation. Further it may vary notmerely with respect to the particular topics which may be included in it, but also with respect to the rulesrelating to any one particular topic.... This variability of public policy is a stone in the edifice of the doctrineand not a missile to be flung at it. Public policy would be almost useless without it."95. As to how the "unruly horse" of public policy influenced English law has been narrated by W. Friedmanin his Legal Theory (5th Edn.) at p. 479 et seq in Part 111, Section 2 titled as "Legal Theory, Public Policyand Legal Evaluation". As to the description of public policy as "unruly horse", it may be stated that therehave been judges not to shy away from unmanageable horses. Lord Denning is one of them. What this noblejudge stated in Enderby Town Football Club Ltd. v. Football Association Ltd.39 at p. 606 is "With a goodman in the saddle, the unruly horse can be kept in control. It can take jump over obstacles." (See para 93 ofCentral Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly40.) But how many judges can beanywhere near Lord Denning ? He is sui generis.35 AIR 1940 Bom 369: 42 BLR 750: 191 IC 806 36 AIR 1957 Cal 33637 AIR 1964 AP 465: (1964) 1 Andh WR 248 38 AIR 1976 AP 112: ILR (1975) AP 843 :(1975) 1 APLJ(HC) 34439 (1971) Ch 591, 60640 (1986) 3 SCC 156: 1986 SCC (L&S) 429: (1986) 1 ATC 103 : AIR 1986 SC 1571426P.Rathinam vs Union Of India on 26 April, 199496. The magnitude and complexity of what is or is not public policy or can be a part of public policy, wouldbe apparent from bird's eye view of what has been stated regarding this at pp. 454 to 539 of Words andPhrases (Permanent Edn., Vol. 35, 1963). To bring home this a few excerpts would be enough. It has beenfirst stated under the sub-heading "In general" as below at pp. 455 and 456: " 'Public policy' importssomething that is uncertain and fluctuating, varying with the changing economic needs, social customs, andmoral aspirations, of the people. Barwin v. Reidy41.'Public policy' is in its nature so uncertain and fluctuating, varying with the habits and fashions of the day,with the growth of commerce and the usages of trade, that it is difficult to determine its limits with any degreeof exactness. It has never been defined by the courts, but has been let loose and free from definition in thesame manner as fraud. Pendeleton v. Greever42.'Public policy' is a term that is not always easy to define and it may vary as the habits, opinions and welfare ofa people may vary, and what may be the public policy of one State or country may not be so in another.Franklin Fire Ins. Co. V. Moll 43.97. In the aforesaid work under the sub-heading "Government by Constitution, laws or judicial decisions", thefollowing finds place at p. 481 under the further sub-heading "In general":"'Public policy' is a variable quantity and is manifested by public acts, legislative and judicial, and courts willnot hold a contract void. Draughton v. Fox Pelletir Corpn.44In a judicial sense, public policy does not mean simply sound policy, or good policy, but it means the policyof a State established for the public weal, either by law, by courts, or general consent. Clough v. Gardiner45."98. From the above, it can safely be said that it would be an uninformed man in law who would say with anydegree of definiteness that commission of suicide is against public policy; and, as such, a person attempting toIndian Kanoon - http://indiankanoon.org/doc/542988/ 21
Page 3 and 4: of misery and the accused also belo
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P. Rathinam v. Union of India - Cornell University

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