The Contribution of Jurisprudence To Evolution Of Law
- shrey singh
- Feb 28, 2020
- 26 min read
INTRODUCTION
The word “jurisprudence” is derived from a Latin word jurisprudential, which in its widest sense, means “knowledge of law” or skill in law. The Latin word ‘juris’ means law and “prudential” means skill or knowledge.[1] Jurisprudence consists of the study of the nature of law and its related ideas. Many of the difficult problems are purely philosophical. The following are such problems, and you will be expected to develop your own views in relation to them. What is definition? What is a rule? What is law? What is morality? What is justice? What is a critical standpoint? But there are also interesting questions of political morality which impinge on your life. Examples are: Should the law enforce conventional morality? What is the relationship between freedom and equality? How should difficult legal cases be decided? Can equality take into account differences between sexes? Should judges be concerned with economic questions? What follows from a person’s ‘having a right’ to something? What is the justification, if any, for punishing people? Should ‘hate speech’ be a criminal offence? Jurisprudence will help you formulate your convictions on these vital questions.
Jurisprudence is full of outstanding thinkers. Austin and Bentham –both of whom, in their own ways could be claimed to be the founders of legal education at the University of London, thought law was about power. Hart and Kelsen thought it was imbued with authority – although not moral authority as did Fuller of the Harvard Law School and as does Dworkin. Austin thought judges were deputy legislators. Dworkin thinks that judges only create law that is largely coherent with existing legal practice. Marxists think that law only serves the interests of the powerful and the rich. The ‘critical legal scholars’ think law schools provide a veneer of respectability over chaos and conflict. Some jurists believe that courts enforce moral rights; others, such as Bentham, think that this idea is ‘nonsense upon stilts’.
The theories propounded by these eminent jurists contributed a lot in development of law and some very important law are the products of these jurisprudential schools and the theories propounded by their profounder.
Jurisprudential Schools and Laws
Law, as we know it today, is dynamic and ever-changing. It moulds and changes with time, government, society, needs etc. A lot of factors contribute in giving shape to a law. The Laws, as it has developed today, has undergone immense changes umpteen number of times, through ages. In ancient time and in near history also, huge number of philosophers have contributed in giving meaning to the word- “law”.
As such, various philosophers’ philosophies were categorized as different schools of law. Those who perceived law in the framework of “what it ought to be” were called proponents of “Natural School of Law”. Philosophers who interpreted law as it is i.e. whatever is written “in black and white”[2], were famously called the School of Analytical Positivism. Similarly, there was Sociological school of law, Historical school of Law etc. Later on, American Realism also emerged, though it wasn’t considered a school of law. These schools of law contributed immensely in the development of law as we know it today.
Although, the world has changed drastically, nevertheless, these schools of law and their philosophies still hold water and have proved to be relevant in the deciding of the day to day cases, ranging from minor case to case of utter importance and cases involving utter legal complexities.
An in-depth study of the relevance and the contribution of various schools of law in the present legal system will help us in developing a better understanding of the present legal system and its various aspects. It will help us to know the rationale behind specific type of judgments, what governs the minds of the judges while they give their decision in a case, what governs the minds of the lawyers while they fight the case. It will also help us to know and understand which way is the best to “Justice” and what if the approach to Justice dispensation changes- whether “Justice” will also change along with it?
NATURAL SCHOOL OF LAW
The history of natural law is a tale of the search of mankind for absolute justice and of its failure .It would be a simple to dismiss the whole idea of natural law as a hypocritical disguise for concrete political aspiration and no doubt it has sometimes exercised little more than this function. But there is infinitely more in it.[3]
It would thus be seen that there is no unanimity about the definition and exact meaning of natural and the term “natural law theory” has been interpreted differently at different times depending on the need of the developing legal thought. But the greatest attribute of the natural law theory is its adaptability to meet new challenges of the transient society.[4]
It is said that the exponent of natural law philosophy conceive that it is a law which is inherent in the nature of man and is independent of convention, legislation or any other institution devices.
Natural Law that lead to evolution of law in India.
Apart from the fact that modern Indian judicial system having been founded on the British pattern, the fine principles of equity, Justice and good conscience and natural Justice occupy an important place in the Indian law. The higher values of universal validity, righteousness, duty, service to mankind, sacrifice, non violence etc. were already incorporated in the ancient legal system. for ancient Indian philosophers, natural law (i.e. the Dharma) was neither a cult, nor a creed or an ideology in western sense of the term, but it was righteous code of conduct prescribed for living an orderly life in society. The Vedic concept of Riti has referred to law of nature which when applied to modern world, signifies the mortal law or the eternal law of right and ‘reason’. The principle of natural law embodied in dharma referred to duties of man towards god, sages, men, lower animals and creatures. it has been characterized ‘as a belief in the conservation of moral values’.
It must be stated that the principles of natural law find a prominent place in the Constitution of India. The provisions related to the preamble, fundamental rights, and directive principles of state policy amply show that the framers of the Indian Constitution were particularly conscious about the inclusion of natural rights in the Constitutional document. The Right to Equal Justice and Free legal aid (Art.39a)[5] and workers participation in management of industries(Art. 43a)[6] have further been inserted in the Constitution by the Constitution(42nd amendment) Act, 1976 to ensure adequate protection to poor and indigent persons.
Article 15(4)[7] which was added by the 1st Constitution (Amendment) Act, 1951 provides for special provision for advancement of backward classes by way of exception to Art. 15(1)[8] & 15(2)[9] and Art. 29(2)[10]. The clause is applicable both socially and educationally backward classes. The imports of natural law theory in this provision of the Constitution are meant for the protection of the backward classes of citizens against discrimination.
The Constitutional protection against double jeopardy and prohibition against self incrimination as provided in arts. 20(2) & 20(3)[11] of the Constitution respectively embodies the principles of natural law theory. Again, safeguards against arbitrary arrest and detention envisaged by Art. 22[12] of the Constitution also contain the element of natural law philosophy by guaranteeing to the person who is arrested under any ordinary law, four rights, namely (1) the right to be informed ‘as soon as may be’ the ground of arrest, (2) the right to consult and to be represented by a lawyer of his choice, (3) the right to be produced before the magistrate within 24 hours, (4) the freedom of detention beyond the said period except by an order of the magistrate.
The provisions of Art. 311[13] of the Constitution which provides adequate protection to civil servants against arbitrary dismissal, removal from the office or reduction in the rank is also based on the principles of natural law theory.
In the case of Union of India v. Tulsiram Patel[14] the Supreme Court held that “the dismissal, removal or reduction in the rank of a government servant under the second proviso of Art. 311(2[15]) without holding enquiry is in public interest, and therefore, not violative of Art. 311(2) and 14[16] of the Constitution. the second proviso to Art. 311(2)[17] expressly that the “audi altrem partem” rule of the natural Justice shall not apply in three circumstances and the petitioner’s case fell in one such circumstances. Therefore, it leaves no scope for any kind of opportunity and hence Art. 14[18] was not violated.”
The basic structure theory propounded by the Supreme Court of India in Kesavananda Bharti v. State of Kerala[19], furnishes the best illustration of judiciary’s zeal to incorporate the principles of natural law theory in the Constitutional jurisprudence. adopting the 20th century revivalist approach to the natural law philosophy, the Supreme Court ruled that “fundamental rights are not absolute and immutable but they are relative in nature and changeable in order to build a just social order[20]. The Supreme Court affirmed the doctrine of basic structure in Minerva Mill Ltd. v. Union of India[21]. the Court held that the fundamental rights enshrined in part iii and the directive principles of state policy contained in part iv of the Constitution , taken together constitute the core of the Indian Constitution and form its conscience. The doctrine has given a new shape to the Indian Constitutional mechanism by postulating new ideals and values in order to strengthen the cause of democracy. It has become a sheet anchor of individual liberty and social Justice.[22]”
The principle of Natural Justice was earlier confined to only judicial and quasi judicial enquiries and did not extend to administrative Actions. But with the decision in Maneka Gandhi’s case[23], the scope of natural Justice Principle now extends even to purely Administrative Actions. The Supreme Court, in this case noted , “ for the applicability of the doctrine of natural Justice, there can be no distinction between quasi judicial and an administrative function. the aim of both administrative enquiry as well as quasi judicial enquiry is to arrive at a just decision and if a rule of natural Justice is calculated to secure Justice, or to put it negatively , to prevent miscarriage of Justice, it is difficult to see why it should be not applicable to an administrative function.”
The setting up of administrative tribunals, family Courts, consumer redressal forums, free legal aid services, Lok Adalats, human rights commissions, women’s commission etc. are directed towards promoting the cause of social Justice and providing speedy relief to the aggrieved persons against in Justices. The Supreme Court’s contribution to human rights jurisprudence through judicial Activism and public interest litigation[24] has revived people’s faith in Justice delivery system in India. These new developments evince that the principles of natural law and natural Justice which embody higher values of life, liberty, equality, and Justice have gained increasing importance in the Indian legal system so that a social order with just and human conditions may be accomplished as contemplated by the framers of the Constitution.
ANALYTICAL SCHOOL OF LAW
The major premise of the analytical school of the jurisprudence is to dealt with law as it is exits in the present form. It seeks to analyse the first principles of law as they actually exit in a given legal system. The exponents of analytical school of jurisprudence consider that the most important aspect of law its relation to State. They treat law as a command emanating from the sovereign, namely, the State. This school is therefore, also called the “Positive School of School”.The advocates of this school are neither concerned with the past of the law nor with the future of it, but they are confine themselves to study of law as it actually exists i.e. positus.[25]. It is for this reason that it is termed as Positive School of jurisprudence.
Analytical positivism of Austin, Kant and Hart which dominated the English legal system for more than a century was mainly founded on three basic assumptions, namely : (1)The Sovereign as the law creating authority , (2) emphasis on law ‘as it is’ and exclusion of morality; and (3) insistence on sanction which was a coercive force behind enforcement of laws.Thus analytical positivism presuppose that sovereign or the law-maker is over and above law and the law is solely based on coercion force and it has nothing to do with the concepts of morality, justice or ethics.
As far as the Indian legal system is concern in this sphere, before the advent of the British rule in India the legal system consisted mainly of customary, moral cum religious as ordained in the Dharmshastras. A true king was always subject to dharma or ordained in Dharmshastras and interpreted by sages and was never a prototype of Austinian sovereign callous to values of Justice and morality.
With the advent of the British rule, they to suit their interests of imperialism and absolutism, no theory of law could fit in so pre-eminently as that of Austin’s analytical jurisprudence which only meant absolute despotism, police state, gun man rule, anti people administration devoid of morality and Justice. India before 1947 was Austinian in origin, thought and content which was extolled by Indian judges, lawyers and jurists as a hall mark and great contribution of the west to the east.
With the adoption of the Constitution in 1950, Indian legal theory and legal notions acquired new dimension with freedom, liberty, equality and social Justice as signature tune of the Indian Constitutional jurisprudence. In the prophetic words[26] of Justice Krishna Iyer,
“The Constitution became the national charter pregnant with social revolution. not a legal parchment barren of militant values, to usher in a democratic, secular, socialist society which equally belongs to the masses including harijan and girijan millions hungering for a humane deal after feudal colonial history’s long night.”
Thus in India there is urgency to part company with Austinian positivism being a relic of the colonial jurisprudence essentially being pro foreign, status quo oriented and anti Indian in slant.
The Indian parliament accordingly embarked on an ambitious legislative program to give fair deal to weaker sections and suppressed masses of the society. However, in giving effects to land and agrarian reforms and other industrial and economic reforms, the Supreme Court of India came into conflict with such parliamentary efforts especially in Shankari Prasad[27] and Sajjan Singh[28] in regard to the validity of the land acquisition. The question whether the word ‘law’ in Art. 13(2)[29] include ‘Constitutional amendment came for consideration for the first time before the Supreme Court in Shankari Prasad. It was held that the law does not include a Constitutional amendment. Law under Art.13 (2)[30] means a law made in exercise of legislative power and not Constitutional amendment which is made in exercise of the Constitutional power of the parliament. this view was reiterated and followed in Sajjan Singh.
however, the Supreme Court adopted positivist approach in Golak Nath[31] in determining what parliament can do and what it cannot do by arrogating to itself the supra legislative power. it was held by 6 to 5 that article 13(2)[32] does not exclude a Constitutional amendment. Constitutional amendment is a legislative power and is law within Art. 13(2) and 245[33]. Fundamental rights are outside the amendatory process. The majority decision in Golak Nath created a difficulty for the parliament. In order to do away with this difficulty, the parliament passed the 24th amendment Act, 1971. It added clause (4) to Art. 13[34] which provided that, “Nothing in this article shall apply to any amendment of this Constitution made under Art. 368[35]. The validity of this amendment was challenged in Keshvananda Bharti case before the Supreme Court. Court overruled Golak Nath and upheld the validity of the 24th amendment. it further held that the Art. 368[36] does not entitle parliament to alter the basic structure of the Constitution.
The glimpse of positivism in the Indian law are also discernible in the draconian enactments of the Parliament to meet the external and internal dangers to public peace, and integrity and security of India.The security measures such as Prevention Detention act,1950,MISA[37], TADA[38] etc. are examples which confer extensive powers to the executive to impose restriction on individual’s freedom are some of the omnipotence of the sovereign.
Gopalan case[39]– Austinianism revived.
The expression ’procedure established by law’ came for interpretation before the Supreme Court in Gopalan in which the Court took a rigid and strict view of this term. It held that the term ‘law’ in Art. 21[40] could not be understood as principles of natural Justice. in its normal connotation the expression ’procedure established by law’ means enacted law or state made law and not the American concept of ‘procedural due process’ which simply means vague and uncertain rules of natural Justice. Gopalan case is characterized as the ‘high water mark of legal positivism’ in the sense that Court patently acknowledged the final say of the legislature in matters of personal liberty without being bound by procedural rules.
Gopalan case rejected natural law as the criterion for determining the law. Therefore, according to the Court so long as the preventive detention law satisfied the requirements of Art. 22[41], it would not be within the terms of Art. 21 and it would not be required to meet the challenges of the Art. 19[42]. another fillip to positivism in India is Kesavananda Bharti where in the apex Court dethroned from the category of fundamental right the right to property to a mere ordinary legal right, which the parliament may change , modify or delimit to meet social Justice and fulfill public interest.
In A.K. Roy[43], a positivist posture is discernible wherein the apex Court validated the Constitutional validity of the National Security Act, 1980 by holding that preventive detention was not incompatible with guarantees provided in Art. 19[44] and 21[45]. Terrorist and disruptive Activities (Prevention) Act, 1987 is another facet of Indian positivism.
However, in Maneka Gandhi, Justice Bhagwati and Justice Iyer refused to be tied down by Austinian analytical jurisprudence and Art. 21 was made vaster as compared to the narrow view taken in Gopalan.
HISTORICAL SCHOOL OF LAW
The exponents of the historical school of the jurisprudence take social institutions in their sequence with primacy to primitive legal institutions of the society. Thus the school does not attach importance to relation of law to the State but gives primacy to the social institutions in which law develop itself. Historical jurist banished ethical consideration from jurisprudence and rejected all creative participation of Judge and Jurist or law-giver in the making of law. They propounded the view that all universal ideal principle to which positive law must conform were not the principles of moral but principles of customary action. They could be traced not only by reasoning but by historical study. Frederick Pollock, one of the ardent supporters of historical school firmly believe thats morals, as such were out of the domain of Judge or Jurist.[46] It is, however, a different matter that even customs immemorial should not be opposed to morality.
It would, therefore, be seen that the historical school emerged as a reaction to legal theories propounded by the analytical positivists and the natural law philosophers. The later believed that the law was founded on the abstract notions of human conscience and reasons.
As far as Indian Legal System is considered, in India a reaction and protest against foreign rule, foreign language and foreign law developed in the 19th century under the aegis of Arya Samaj, Brahma Samaj, Servants of India society. These gave rise to the growth of Indian spirits- Indian geist.
Unlike romanticism in art, literature and language there was no corresponding developments in legal history and historical jurisprudence in India. No Indian jurists like Savigny, Puchta or Burke protested against the enforcement of British legal system which had corrupting influence on our indigenous and traditional legal philosophy.
The advent of British rule in India from 1754 brought about the decline of Dharmashastra law and Moulvis and Pandits were appointed by Hastings in 1772 to interpret the Muslim and the Hindu law respectively. This practice was abolished in 1864 and Courts took upon themselves the responsibility of interpreting the law. This marked the beginning of the institutions of lawyers, advocates and barristers to do the work which was hitherto done by Pandits and Moulvis.
The changing socio political conditions brought about the downfall of ancient Indian law. in short, the law contained in Dharmshastra or Arthasastra which at one time governed the entire gamut of human Activity- civil, criminal and others, was modified, supplemented and finally superseded by various legislations such as the Indian Penal Code (1860), the Evidence Act(1872), the Special Marriage Act(1877), the Transfer of Property Act(1872) etc.
This historical changes in the perception of law and legal institutions from ancient time to modern age indicate that the laws ordained in dharama was not only of divine origin but it also had the attributes of morality, humanity and above all some degree of permanence. As against this, modern man-made law may vanish with variation in pattern of the government change in the political ideologies. It is dynamic, fluid and pragmatic in approach.
The Indian Independence brought in its wake a new era in the development of Indian jurisprudence with emphasis on justice, equality, liberty and individual freedom and individual freedom and rights. The preamble to the constitution along with the chapter on fundamental rights, and directive principles of state policy constitute the core of Indian constitution philosophy. The insertion of word ‘secular’,’unity’ and ‘integrity’ etc by the Constitution 42 Amendment Act,1976 makes India a secular state maintaining complete neutrality in matter of religion.[47] The Constitution guarantees constitutional freedom of religion to all persons and does not assign a special position to any particular religion.[48]Secularism as a positive concept implies complete tolerance impartiality and equal protection of the interest of all religion.[49]
The constitutional law enshrined in the Indian Constitution provides for special care, attention and protection to weaker section of the people including Schedule Castes,Schedule Tribes[50] and other backward classes.It also protects and promotes the interest of minorities[51],women[52],workers[53],children[54],aged[55] and disabled persons[56].
In the ultimate analysis, it may be stated that the modern Indian jurisprudence has a glorious historical past embedded in the ancient scriptures and Hindu codes. Therefore, historical approach to the study of modern Indian law and legal system is relevant even to this day in order to appreciate its evolution and various phases of development.
SOCIOLOGICAL SCHOOL OF LAW
Sociological school of jurisprudence has emerged as a result of synthesis of various jurist thoughts. The exponent of this school considered law as a social phenomenon. They are mainly concerned with the relationship of law to other contemporary social institutions. They insist that the jurists should focus their attention on social purposes and interest served by the law rather than on individuals and their Abstract Rights. According to this school,the essential characteristic of law should be to present common interaction of men in social groups, whether past or present, ancient or modern[57].
The main concern of sociological jurists is to study the effect of law and society on each other. They treat law as an instrument of social progress.The relation between positive law and ideals of justice also effect the sociology of law.[58]
As a the evolution of law is concerned from Sociological School of Law, sociological school of jurisprudence has much relevance in terms of realization of the social and economic goals of the community. Law in India is being adjusted to serve the common needs and ends of society along with individual interests.
The welfare legislations enacted during the post independence era amply demonstrate that the British oriented Austinian concept of law has no place in the modern Indian democracy and has been completely discarded and replaced by pound’s theory of law as an instrument of social change. The establishment of human rights commission, women’s commission, family Courts, industrial tribunals , administrative tribunals, Panchayati Raj, Lok Adalats, etc. are only a few illustrations to suggest that the sole objective is to make Justice available to a common man and ameliorate the sufferings of the masses .
Some of the post independence socio-economic legislations to meet the social needs and establish a social order as contemplated by the Constitution are as follows-
The Civil Rights Act,1955
The Immoral Traffic (prevention) Act, 1956
The Probation of Offenders Act,1958
The Medical Termination of Pregnancy Act, 1971
The Equal Remuneration Act,1976
The Family Courts Act, 1984
The Child Labour (Prohibition and Regulation) Act, 1986
The Environment (Protection) Act, 1986
The SC & ST (Prevention of Atrocities) Act, 1989
Pre natal Diagnostic Techniques Act, 1994.
The Protection of Women from Domestic Violence Act, 2005
These socio-economic measures are meant to protect the dignity of human personality and to ensure prosperity of people as also of the state.
The developing trend in public interest litigation has opened up new vistas for interpreting law in the context of social setting. The contribution of judges notably, Dr. P.B. Gajendragadkar , P.N. Bhagwati, D.A. Desai, Krishna Iyer shows that law can effectively be used as a tool of social transformation for creating a new social order with primacy to social Justice.
In S.P. Gupta v. Union of India, chief Justice of India, P.N. Bhagwati, observed:
“Today a vast social revolution is taking place in the judicial process, the law is fast changing and the problems of the poor are coming to the forefront. The Court has to innovate new methods and device new strategies for providing access to Justice to large masses of the people who are denied their basic human rights and to whom freedom and liberty has no meaning”[59].
Again, in Indra Sawhney v. Union of India[60], he observed:
“The Constitution being essentially a political document has to be interpreted to meet the “felt necessities of the time”. Our Constitution, unlike many others, incorporates in the framework of the social change that is desired to be brought about. the change has to be ushered in as expeditiously as possible but at the same time with least friction and dislocation in national life.”
In S.R. Bommai v. Union of India[61], a special 9 judge bench passed a landmark verdict on the issue of secularism and held that the state is enjoined to award equal treatment to all religions and religious denomination.
Art. 25[62] of the Constitution empower the State to make legislations for social reforms in the semi religious matters. Accordingly, in persuasion of policy of rendering social Justice and economic security to a divorced wife and protecting her against social misery and economic impoverishment, the Supreme Court, in Shah Bano[63] case applied Section 125 of the Cr.P.C., 1973[64] which provides for the duty of maintenance and observed that the payment of mehar and maintenance during iddat period did not absolve the Muslim husband from the duty to maintain his divorced wife and he was under an obligation to pay maintenance to his divorced wife beyond the iddat period. However, in order to appease the minority, the parliament enacted Muslim women (protection of rights on divorce) Act, 1986 and absolved the Muslim husband to pay the divorced wife beyond iddat period.
In the significant Judgment in Noor Saba Khatoon v. Mohd. Quasim[65], the apex Court held that a divorced Muslim woman is entitled to claim maintenance for her children till they become major.
The Hindu marriage Act, 1955, introduced the concepts of monogamy, inter caste marriage and matrimonial remedies like divorce by consent, alimony etc. the Hindu succession Act, 1956 recognized widow’s absolute right to property of her husband.
Judiciary’s favorable response to sociological jurisprudence and social Justice is also reflected in its exercise of the power of judicial review in land reform legislation. The agrarian reforms introduced by the government as a social welfare measure were struck down by the apex Court[66] holding that Constitution amendment Act was a law within the meaning of Art. 13[67] and as such Parliament could not take away or abridge the fundamental rights.
The Constitution of India has established ‘rule of law’ by incorporating the principles of natural Justice as an integral part of Indian jurisprudence. Part III[68] and IV[69] provide for a just social mechanism and Art. 226[70], 227[71],136[72] and 32[73] further seek to make human rights a living reality by protecting people against tyranny, discrimination or exploitation. in order to strengthen natural law and ‘rule of law’ , the apex Court, in Kesvananda Bharti case, handed down the theory of ‘basic structure’ which restricted the unlimited power of the parliament to amend any part of the Constitution.
AMERICAN REALISM
American realism had its core in a reaction to the ‘black letter’ approach to the law which advocates the formal syllogistic application of law to the facts, an approach sometimes labelled as ‘formalism’ or the ‘mechanical’ approach to jurisprudence. The main concern of this school is the desire to discover how judicial decisions were reached in reality, which involved a playing down of the role of established rules, or the ‘law of book’, is discover the ‘law in action’. Once the realist had deciphered the factors that lead to judicial decisions , both non-legal and legal, they were concerned with the prediction of future decisions. The realist adamant that only when the ‘law in action’ was properly understood could a more accurate prediction of judicial decisions be made. In addition, they were of the opinion that judicial decision making would be more amenable to the need of society if judges were more open about the non-legal factors which had influenced their decision,instead of instinctively trying to submerge them behind the facade of syllogistic legal reasoning.
The legal philosophy of realist school has not been accepted in India for obvious reason that the texture of Indian social life is different from that of the American life. The recent trends in PIL which Professor Upendra Baxi prefers to call as ‘social action litigation’ have, however, widened the scope of judicial activism to a great extent but the judges have to formulate their decisions within the limits of the constitutional frame of the law by using their imperative skill. Besides, the doctrine of precedent which has no place in the realist philosophy plays a significant role in the Indian judicial system. Because according to realist philosophers it is believed that “the law is never is,it is always about to be.It is realised only when it is emboded in a judgement and in being realise it expires”[74]
They are, however, free to overrule the previous decision on the grounds of inconsistency, incompatibility, vagueness, change of conditions etc. thus the Indian legal system, though endow the judges with extensive judicial discretion, does not make them omnipotent in the matter of formulation of law.
In short, it may be reiterated that though Indian jurisprudence does not formally subscribe to the realist’s philosophy, it does lay great emphasis on the functional aspect of the law and relates law to the realities of social life. It refuses to accept the realist’s view that the judge- made law is the only real ‘law’ and other laws are worthless, but at the same time it does not completely ignore the role of the judges in shaping the law. Undoubtedly, the Indian judges have the liberty of interpreting law in its contextual and social setting keeping in view the social, economic, political, cultural, historical and geographical variations of the Indian society. The power of Review and the doctrine of overruling its earlier decisions have enabled the Supreme Court to effectuate the socio-economic contents of the constitutional mandate through the process of judicial interpretation and use of its inherent powers. Thus the Apex Court in Bengal Immunity case overruled its earlier decision in Dwarkadas v. Sholapur Spinning & Weaving Co.[75]. and observed that “ the court is bound to obey the constitution rather than any decision of the court, if the decision is shown to have been mistaken.” Justifying its stand, the Court further observed that where a constitutional decision affects the lives and property of the public and where the Court finds that its earlier decision is manifestly wrong and injurious to the public interest, it should not hesitate to overrule the same.
Adopting the same line of approach, Justice Gajendragadkar, in Keshav Mills v. Income Tax Commissioner[76] observed that the Supreme Court has inherent jurisdiction to reconsider and revise its earlier decision if it does not serve the interest of public good.
In the case of Golak Nath v. State of Punjab[77], the Supreme Court speaking through Subba Rao CJ, inter –alia, observed:-
“While ordinarily the Supreme Court will be reluctant to revise its previous decision, it is its duty on the constitutional field to correct itself as early as possible, for otherwise the further progress of the Country and happiness of the people will be at stake….”
The observations made by Justice Ramaswamy deserve a special mention in context of realism in interpretation of the Constitution and the law of the land. He remarked:-
“The judge is the living oracle working in dry light of realism pouring life or force into the dry bones of law to articulate the felt necessities of time…”
Chipman Gray propounded his “creative theory of law” according to which judges are “law-maker”.Creative theory of law pre-suppose that the laws do not of themselves decides the diputes,for they have to be applied to the case at hand.The function of judge is to discover in the existing rules of law, the particular principles that governs the facts of individuals cases.Thus Judges are not only ‘law-maker’ but also ‘law-finders’.In short, legal thinking should be creative and purposive and not mechanical and haphazard.Though subjectivity in judicial decision cannot be altogether excluded, but an objective approach in terms of logic,philosophy,history,tradition etc need to be taken into consideration in arriving at a righteous judicial decision.[78]
In the ultimate analysis, suffice it to say that in the emerging jurisprudence of 21st century, greater stress should be on the accountability of the judiciary to the people of India rather than making it supreme in the process of formulation of law.This realist and moderate approach avoiding extremes is perhaps most suited to the present-day Indian conditions.
[1] Paranjapee,Dr. N. V. .”Studies In Jurisprudence And Legal Theory”. 6 th Edition 2011.
[2] Laws in the statutes,acts etc.
[3] See Virally, La pensee Juridique, 76 et seq , especially 84 -87.
[4] Lloyd :Introduction to jurisprudence, pp. 79-81
[5] It states “that the citizens, men and women equally, have the right to an adequate means of livelihood”
[6] Living wage, etc., for workers.—“The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas.”
[7]Its states that “Nothing in this article or in clause (2) of 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.” Article 29:Cultural and Educational Right: Protection of interests of minorities.
[8] It states that “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”
[9] It states that “No citizen shall, on grounds 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—
access to shops, public restaurants, hotels and places of public entertainment; or
the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.”
[10]It states that “ No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.”
[11] Protection in respect of conviction for offences.—(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.
[12] Protection against arrest and detention in certain cases. —(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
[13]It is about Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.
[14] (1985) 3 SCC 398
[15] It states that “No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:
Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply—
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.”
[16] Equality before law.
[17] supra
[18] supra
[19] AIR 1973 SC 1461
[20] Observation of Mathew J. in Kesavananda Bharti case.
[21] AIR 1980 SC 1789
[22] Article 39
[23] AIR 1978 SC 597
[24] S.P. Gupta v. Union of India, AIR 1982 SC 149
[25] Paranjapee,Dr. N. V. .”Studies In Jurisprudence And Legal Theory”. 6 th Edition 2011. Pg 16
[26] A.B.S.K. Sangh v. Union of India, (1981) 1 SCC 246
[27] AIR 1951 SC 458
[28] AIR 1955 SC 845
[29] It states that “The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”
[30] supra
[31] AIR 1967 SC 613
[32] It states that “The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”
[33] Extent of laws made by Parliament and by the Legislatures of States.
[34] Laws inconsistent with or in derogation of the fundamental rights.
[35] Power of Parliament to amend the Constitution and procedure therefor.
[36] Power of Parliament to amend the Constitution and procedure therefor
[38] Terrorist and Disruptive Activities (Prevention) Act (TADA) was repealed in 1995 due to allenged misuse of it by the enforcement agecies
[39] A.K. Gopalan v. State of Madras, AIR 1950 SC 27
[40] supra
[41] Protection against arrest and detention in certain cases.
[42] Protection of certain rights regarding freedom of speech, etc.
[43] A.K. Roy v. Union of India, AIR 1982 SC 710
[44] supra
[45] Protection of life and personal liberty.
[46] Pollock:essay in Jurisprudence & Ethics 25-26 (1882)
[47] Article 1(2), 17, 25 and 26 of the constitution of India.
[48] Allexander C.M. :Constitutional Development of India (1964) p. 16.Article 25 of Contitution.
[49] Rev. slainislaus V state of M.P. AIR 1997 SC 908;S.P. Mittal V. Union of India, AIR 1983 SC 1.
[50] Article 224:244A, 275, 330,332,335,338,339 and 342,see also SC & ST(Prevention of Atrocities) Act, 1989.
[51] Art. 29 and 30
[52] Art. 15,16, 399(a),42 etc ,see also Protection of Women From Domestic Violence Act,2005.
[53] Art. 43,43-A, and various labour welfare legislation such Factories Act,Industrial Dispute Act, Minimum wage act,Payment of Bonus act etc
[54] Article23 and 24 and also see Child Marriage restraint Act,Child Labour (prohibition & Regulation) Act 1986,etc.
[55] The welfare of parents and senior citizen act,2007
[56] Article 41
[57] infra
[58] Paranjapee,Dr. N. V. .”Studies In Jurisprudence And Legal Theory”. 6 th Edition 2011. Pg 61
[59] S.P. Gupta v. Union of India, AIR 1982 SC 49
[60] AIR 1993 SC 443
[61] AIR 1994 SC 1918
[62] Freedom of conscience and free profession, practice and propagation of religion
[63] Mohd. Ahmad Khan v. Shah Bano & ors, AIR 1985 SC 945
[64] It states that “ Order for maintenance of wives, children and parents. (1) If any person leaving sufficient means neglects or refuses to maintain-(a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself”
[65] AIR 1997 SC 3280
[66] Shankari Prasad v. Union of India, AIR 1951 SC 455
[67] Laws inconsistent with or in derogation of the fundamental rights.
[68] It contains fundamentals rights given by the constitution.
[69] It contains DPSP.
[70] Power of High Courts to issue certain writs.
[71] Power of superintendence over all courts by the High Court
[72] Special leave to appeal by the Supreme Court
[73] Remedies for enforcement of rights conferred by this Part.
[74] Benjamin Cardose
[75] AIR 1954 SC 119
[76] AIR 1965 SC 1616
[77] AIR 1971 SC 1643
[78] Luckmann: The Social Contruction of Reality, (1966) p 92.
Comments