Electronic copy available at: http://ssrn.com/abstract=2485904

1

LAW AND JUSTICE IN THE GLOBALISING WORLD

THE EXPLORATIVE STUDY OF THE REALIST SCHOOL OF JURISPRUDENCE

IN INDIAN CONTEXT

SHIVAM GOEL

[LL.M., NUJS, Kolkata; LL.B., Faculty of Law, Delhi University; B.Com (H), Delhi

University]

Electronic copy available at: http://ssrn.com/abstract=2485904

2

INDEX

Page No.

Introduction 3

Chapter 1: Indian Judicial System and Legal Realism

10

Chapter 2: Legal Realism and the Failings of the Judicial Wing of

the State

18

Chapter 3: Criticism of the Realist School of Jurisprudence-

Evaluating the position in terms of India

23

Conclusion

26

Bibliography 30

3

Explorative study of the Realist School of Jurisprudence in Indian Context

Introduction:

Jurisprudence- as Laski observes- is the eye of the law, it gives the law its insight into the

environment of which it is the expression. It relates the law to the spirit of the time, and the

richer the jurisprudence of a given system in a given area, the nearer will be the law of that

system to the needs of its time.1

Of all the schools of jurisprudence, the Realist School of Jurisprudence regards law, primarily

as emanating from the judges. Scholars consider Legal Realism to be a movement which

should not be formalised into a separate school of jurisprudence, as it nothing but a branch of

the sociological approach. Legal realism as a movement in thought of law or a concept of

law, rejects the notion of natural law because it does not believe in immutable principles of

justice, it also rejects imperative models of the law because for the realists, the meaning of

legal terms does not come from the legislator but from an observation of law in action.

Realist School of Jurisprudence is often defined as the left wing of the functional school.

Realist School differs from the sociological school, as it is little concerned with the ends of

law. Roscoe Pound has defined realism as: Fidelity to nature, accurate reordering of things

as they are, as contrasted with things as they are imagined to be or wished to be or as one

feels they ought to be.

According to Llewellyn, realism is not a school but it can be called as a branch of

sociological school.2 It concentrates on the actual working and effects of law and is therefore,

called the realist school. The Realists avoid dogmatic formulations and concentrate on the

decisions given by the courts. These decisions are not just based on formal law, but also on

the human factor in the judge and the lawyer. For the realists, law is only an official action

and therefore, the forces which influence a judge in reaching a decision including bribery and

corruption are within the field of study.3

1 See: Avni Nagaria, Justice V.R. Krishna Iyer: Our Heritage, Universal Law Publishing Co., 2011 Edition, An

Address by Justice V.R. Krishna Iyer, p.109 2See: Llewellyn, Some Realism about Realism: Responding to Dean Pound, Harvard Law Review, Volume 44,

No.8, June 1931, p.1222-1264. 3 See: Garima Tiwari, Jurisprudence I, Lexis Nexis Publication, First Edition- 2013, Chapter 9: Legal Realism,

p.128

4

There are two main movements as to the realist school of jurisprudence i.e. the American and

the Scandinavian Legal Realism. The American Critical Legal Studies Movement, which

emerged in the 1970s, can be said to have arisen out of American Realism.

The Researcher will be focusing on American Realism and not on the Scandinavian Realism;

also he shall not be laying any focus on the American Critical Legal Studies Movement.4

According to Friedmann, the mental founders of the Realist movement in America were

Oliver Wendell Holmes, Gray, Cardozo, Karl Llewellyn and Jerome Frank who emphasised

the functional and realistic study of law not as contained in the statute or enactment but as

interpreted and laid down by the courts in their judicial pronouncements. The realists are

concerned with the study of law as it works which means- investigating the social factors that

makes a law on one hand and the social results on the other.5

Justice Oliver Wendell Holmes, Jr. often disagreed with scholars who defined law as a

system of reason; or a deduction from principles of ethics; or admitted axioms. As a

forerunner of the Realist School of Jurisprudence, he defined law as- a good reason of a bad

man; he was of the opinion that a bad man is not concerned about axioms or deductions, but

is interested only in knowing what the courts are likely to do in fact. Justice Holmes was of

the view that, the prophecies of what the courts will do in fact, and nothing more pretentious,

is what the law is i.e. the law remains uncertain until the court’s decision, for him the life of

law has not being logic but experience.6 Holmes definition of law and the scope of

4 American realism laid emphasis on how the law is actually made?, while the Scandinavian realism laid

emphasis on how the law changes behaviour?, that is they attempted to see what law was and how it worked

as a social fact divorced from value judgement and emotional attitudes. [Principal proponents of the

Scandinavian School of Jurisprudence were- Hagerstrom, Olivercrona, Alf Ross and Lundstedt.]

According to Bodenheimer- Scandinavian realism is more speculative in approach to legal problems and does

not give much attention to psychological behaviour of judges as American realists do. See: Bodenheimer,

Jurisprudence, Harvard University Press- 1962, p.120

5 See: Friedmann, Legal Theory, Fifth Edition, Stevens and Sons, London, 1967, p.293

6 As per Justice Oliver Wendell Holmes: The life of the law has not been logic; it has been experience. The felt

necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. See: Justice Oliver Wendell Holmes, The Common Law; Lecture 1: Early Forms of Liability, Digireads.com Publishing, 2005 Edition, p.3. Also see: B.N. Mani Tripathi, Jurisprudence (Legal Theory), Allahabad Law Agency, 2010, 18

th Edition, p. 56-57

5

jurisprudence led to future developments in constructing American Realism which focused

attention on empirical factors underlying legal system.

John Chipman Gray was of the view that the real relationship of jurisprudence to law depends

not upon how law is treated but how law is created. He emphasised that the personality and

personal view of a judge plays an important role in decisions. Gray stressed that the statutes

together with precedents, equity and custom are sources of law but the law itself is what the

persons acting as judicial organs of the state lay down as rules of conduct. Positive morality

also forms a source of law on which the courts rely. He believed that to determine rights and

duties, the judges settle what facts exist and also lay down rules according to which they

deduce legal consequences from facts. The law becomes concrete and positive only in the

pronouncements of the court; judge made law is the final and authoritative form of law.

Hence, Gray defined law as “what the judges declare”.7

Cardozo was a great jurist, although he did not belong to the realist school of jurisprudence,

he was driven by ethical idealism and was motivated by the sociological school of

jurisprudence. The Nature of Judicial Process (1921) is the book which compiles the series

of lectures delivered by Cardozo at the Yale University, this book in fact is a reflection of

Cardozo’s jurisprudential premise & treatise, stating that, judicial adjudication and judicial

decision making involves the element of judicial choice which the judges make, based on-

inherited instincts, traditional beliefs, acquired convictions and conceptions of social needs.

Cardozo emphasised the necessity of judicial alertness to social realities, because the judicial

process involves an element of creation and an element of discovery. Cardozo’s writings

reflect his opinion that the rule of adherence to precedent must be relaxed in situations when

it would clearly be inconsistent with the sense of justice or social welfare. Writings of

Cardozo brought the role of the judge or more specifically the personality of the judge into

sharp focus.8

Karl Llewellyn believed that there is no realist school as such, it is only a movement in

thought and work about law. He stressed that the focus of attention, for better understanding

of how the law is made and thereafter develops, should shift from the study of rules to the

observance of the real behaviour of the lawmen i.e. the judges in particular. Llewellyn’s

7 Seen Generally: J.C. Gray, The Nature and Sources of Law, Macmillan, Second Edition (1921)

8 Seen Generally: Benjamin N. Cardozo, Growth of the Law, Universal Law Publishing Co. Pvt. Ltd., Indian

Economy Reprint 2002, Chapter III: The Growth of law, and the Methods of Judging, p.56-80

6

approach is often termed as the behavioural approach. Llewellyn found defining law solely in

terms of legal rules as absurd, as there are many other influences which affect the decision of

the court. He emphasised on sustained and programmatic evaluation and examination of law

through judicial process in terms of changing circumstances.9

The main works of Jerome Frank include- Law and the Modern Mind (1930), If Men were

Angels (1942) & Court on Trial (1949). In his work, Law and the Modern Mind, Frank

exploded the myth that law is continuous, uniform, certain and invariable and asserted that

Judges do not make law, instead, they discover it.10

Frank believed that law is what the Court

has decided in respect of any particular set of facts, however prior to such a decision, the

opinion of the lawyers is only a guess as to what the courts will decide and this cannot be

treated as law unless the court so decides by its judicial pronouncement.11

The individual

decision of the judge is law par excellence. The temperament of the judge has an important

bearing on the mechanism of law. For Frank, ‘fact-finding’ was the central theme of his

realism, as he asserted that, the lawyers and judges should evaluate facts of every individual

case under the changing social conditions. Frank believed that law as a mere collection of

abstract rules, when is pitted against facts of a particular case, may produce legal un-

certainty; according to him mere technical analysis is not enough understanding as to how

law works is something that is required.12

Frank was of the opinion that- No one knows the

law about any case or with respect to any given situation, transaction or event, until there

has been a specific decision (judgement, order or decision) with regards there to, however

this uncertainty is not to be deplored, but is of immense social value. A wise and creative

judge, unfettered by paragraphs in the code and precedents, will find justice through a clear

and cool perception and valuation of social issues at stake. Frank compared such a judge to

the Philosopher- King of Plato’s Republic.

It is necessary to note that Frank’s jurisprudential premise is based on: rule scepticism and

fact scepticism. By rule scepticism, Frank meant that there are no settled rules and that the

rules are always uncertain. By fact scepticism, Frank meant that in a court trial, there may be

perjured witness, coached witnesses, biased witnesses, witnesses mistaken in their

9 See: R.W.M. Dias, Jurisprudence, Preface, Butterworth Indian Reprint, Fifth Edition- 1994, p.455

10

Supra 3 at p.131 11

See: Jerome Frank, Law and the Modern Mind, Transaction Publishers- 1930, p.46 12

See: B.N. Mani Tripathi, Jurisprudence (Legal Theory), Allahabad Law Agency, 2010, 18th

Edition, p. 56-57

7

observations, missing or dead witnesses, missing or destroyed documents, crooked lawyers,

stupid lawyers, stupid jurors, prejudiced jurors, un-attentive jurors, trial judges who are stupid

or bigoted and biased or ‘fixed’ or in-attentive to the testimony. Hence, as a result- the judge

has virtually un-controlled and un-controllable fact discretion. Whatever reforms we may

introduce in the trial process, Frank believed that there will still remain a large element of

irrationality, chance and guess work in judicial fact finding, making predictability of the

outcome of lawsuits impossible.

Legal Realism in Indian Context-

Positivism regards law as the expression of the will of the State through the medium of the

legislature. Theories of legal realism too, like positivism, look on law as the expression of the

will of the State, but they see this through the medium of the courts. Like Austin, the realists

look on law as the command of the sovereign, but there sovereign is not Parliament but the

judges; for the realists the sovereign is the court.13

The law during the British colonial rule in India was coercive and counter-productive to

social needs of the Indian people. In strict Austinian sense sanctions were imposed on Indians

in the name of “justice is according to law”.14

The British residents in India enjoyed many

exemptions and special privileges under the then existing laws. Thus there was one law for

the ruler and other for the ruled.

With the wave of nationalism and awakening of intellectuals, demand for civil liberty and

basic human rights were persistently made but the same was given no recognition,

suppression, oppression & exploitation of the people continued unabated under the British

Colonial Rule. The lawyers and judges interpreted and applied law mechanically without

considering the felt needs or necessities of the people. There was rigid adherence to the

Doctrine of Precedent.

With the end of the British rule in India, the era of Indian Constitutionalism began with the

constitution of the Constituent Assembly, headed by Dr. Ambedkar to frame the fundamental

law of the land for India. In the Constituent Assembly, during the constituent assembly

13

See: P.J. Fitzgerald (Ed.), Salmond on Jurisprudence, Universal Law Publishing Co. Pvt. Ltd., 12th

Edition, (1966), p.35 14

By ‘Austinian sense’, we mean the basic premise of legal positivism which says: Where there is State; there is no anarchy. State is the necessary evil.

8

debates, Dr. Ambedkar had repeatedly warned that British authority having ended in India,

we could no longer plead the alibi of foreign rule for future failures.15

With the Constitution of India coming into force on 26th

January, 1950, a separate chapter on

Fundamental rights including individual rights and freedoms and a chapter on Directive

Principles on State Policy comprising social rights was incorporated.16

Since the initial years in the post-Independent India, Constitution of India has been viewed as

Grundnorm in the Kelsonite sense because all statutes and enactments have drawn their

validity from Constitution of India and the validity of Constitution lies in the whole hearted

acceptance of the same by the Indian community without any exception.17

It is pertinent to note that the post-independent Indian positivism differs from Austinian

positivism in the sense that the former seeks to establish harmonious relationship between is

and ought. This can be seen in the harmonious construction adopted by the Supreme Court in

deciding cases involving conflict between fundamental rights and directive principles of state

policy where we find a fusion of justice and morality.18

In some cases the SC has adopted a

rigid positivistic approach. In the case of Re Kerala Education Bill the Apex Court declined

to look beyond the letter of the fundamental rights and did not think it necessary to consider

sociological imperatives which impelled the legislature to pass such a law.19

Similarly, in

Tilkayat Shri Govindlalji Maharaja v. State of Rajasthan, the court ruled that the farman of

a ruler is law by which the subjects are bound legally without exception. In the Habeas

Corpus Case20

, in which fundamental rights during emergency were suspended by the State

and the Apex Court upheld the arbitrary powers of the State during emergency and

disregarded the imperatives of social justice in the Preamble, Fundamental Rights and

Directive Principles of State Policy, influence of Austinian Positivism can be seen. But this

15

See: Justice V.R. Krishna Iyer, The Indian Law: Dynamic Dimensions of the Abstract, Universal Law Publishing Co., Chapter 2: Law in India- A Silver Jubilee Critique of a Story without Plot, p.5 16

Part III of the Constitution of India relates to the Fundamental Rights and Part IV embodies the Directive Principles of State Policy. 17

See: David Washbrook, Law, State and Agrarian Society in Colonial India, Modern Asian Studies 15(3) (1981), 654. Also see: Keshavanand Bharti v. State of Kerala [AIR 1973 SC 1461] 18

See: Minerva Mills v. UOI [AIR 1980 SC 1789], Waman Rao v. UOI [AIR 1981 SC 271] 19

See: Re Kerala Education Bill [AIR 1958 SC 956] 20

See: A.D.M. Jabalpur v. Shivkant Shukla [AIR 1976 SC 1207]

9

influence of Austinian Positivism is now receding gradually and law is now being seen as an

instrument of social change for the welfare of society in India.

The philosophy enshrined in the preamble of the Constitution of India and the chapters on

fundamental rights, directive principles, fundamental duties, provisions relating to the powers

and functions of judiciary and amendment of the Constitution amply demonstrate that the

entire focus of post independence Indian jurisprudence is on welfare of the Indian masses and

making law responsive to the social needs.

There is an increasing trend of judicial activism and public interest litigation that can be

witnessed in India lately. The developing trends as to and in regards to public interest

litigation has opened new vistas for interpreting law in the context of social settings. Law has

been used as a tool of social transformation for creating a new social order with primacy to

social justice. In Indira Sawhney v. UOI, Justice P.B. Sawant observed: The Constitution of

India being essentially a political document has to be interpreted to meet the felt necessities

of time.21

There are many welfare legislations enacted post-independence and from time to time it has

been asserted by the SC that in case of social welfare legislations, it is the facts of a particular

case that form the law. Thus, the realist school of jurisprudence as the left wing of the

functional school has clearly found its place in India post-independence.

Supreme Court is seen as the custodian of the Constitution of India, although Judiciary is

considered as the weakest organ of the State. For democracy to prevail and to remain wedded

with the rule of law, it is necessary that Judges as wife of Caesar remain above suspicion; for

as it was observed in the case of Krishna Swamy v. UOI22

that, the Judge is the living oracle

working in the dry light of realism pouring life or force into the dry bones of law to articulate

the felt necessities of the time. Hence what is needed as of necessity is healthy judicial

accountability. Also, in the wake of Judicial Activism in India, incidents have been witnessed

whereby the line of difference as between judicial activism and judicial over-reach or judicial

adventurism is blurring which is not a very healthy sign.

21

See: Indira Sawhney v. Union of India [AIR 1993 SC 447 (634)] 22

AIR 1993 SC 1407

10

Chapter 1: Indian Judicial System and Legal Realism

R.W.M Dias, in a thought that will arrest Indian Jurists, says23

:

In a country like Britain, which has remained comparatively stable, it has been easy to

preserve the philosophy of analytical positivism in which the science of law is abstracted

from social, moral and other value- considerations. But when tensions begin to convulse the

very surface of national life, Jurists, let alone judges, are compelled to make conscious

decisions as to which way to steer if shipwreck is to be avoided.

The doctrine of separation of power is the fundamental requirement for the subsistence of

democracy, as it ensures that no absolute and unlimited power is vested in any authority.24

It

is for this reason that in democratic countries powers are divided amongst various organs

responsible to perform different functions concerning governance. The three most essential

powers to govern the State are- the legislative, the executive and the judicial power. If all

three powers are vested in one authority, there is always a risk of despotism.

The legislative organ of the State is responsible for making laws; the executive for the

implementation of laws and the judiciary for the enforcement of laws. It is necessary to

ensure that these organs do not interfere with each other so far as their functioning is

concerned. The existence of the doctrine of separation of power in the Indian Constitution is

to be inferred from its provisions and there is no specific reference to it under the

Constitution. However, the Constitution of India establishes the SC of India as a watching

tower above all the big structures of the other limbs of the State from which it keeps a watch

like a sentinel on the functions of the other limbs of the State as to whether they are working

in accordance with law and the Constitution, the Constitution being the supreme.25

23

Supra 15, p.82; Also see: R.W.M. Dias, Cambridge Law Journal, 1972 B Jubilee Volume, p.293 24

The doctrine of the separation of powers dates back to John Locke. Writing in 1690, he recognised that if the same person has the power to make laws and to execute them, they may exempt themselves from the laws they make and use the law to their own private advantage. He therefore argued that there should be a separate legislature and executive. Montesquieu (1689-1755) developed the doctrine further by recognising the dangers of overlapping legislative and executive functions, he warned of the dangers of failing properly to separate the judicial functions from the others. See: Prof. Madabhushi Sridhar- NALSAR, Will Impeachment Arrest Judicial Corruption?; Judicial Accountability and Lokpal, 4

th National Convention- 2011, p.60

25

The powers of the SC of India can be enlisted as follows- the power to enforce fundamental rights (Article 32), the power to commit a person for its contempt (Article 129), the original jurisdiction to decide the inter-governmental disputes (Article 131), the appellate jurisdiction to hear appeals in all civil and criminal matters (Article 132 to 134), the extra-ordinary appellate jurisdiction to hear appeals in all matters and from any court

11

The advent of legal realism in India can be seen from the kaleidoscope of the rich position the

SC of India (as the custodian of the Constitution of India) has earned for itself over time,

amidst the failure of the two other wings of the State i.e. the legislature and the executive. It

is pertinent over here to take note of the view expressed by S.B. Sinha, J. in the case of State

of U.P. v. Jeet S. Bisht26

:

“Each organ of the State in terms of the constitutional scheme performs one or the

other functions which have been assigned to the other organ. Although drafting of

legislation and its implementation by and large are functions of the legislature and the

executive respectively, it is too late in the day to say that the constitutional court’s

role in that behalf is non-existent. The judge- made law is now well recognised

throughout the world. If one is to put the doctrine of separation of powers to such a

rigidity it would not have been possible for any superior court of any country, whether

developed or developing, to create new rights through interpretative process.”

India is a democratic state having a written constitution. For to say that, democracy is a

government of the people, for the people and by the people, equally true is the premise that,

for a democratic country having a written constitution, it is the written constitution which is

supreme and not the Parliament. As for in case of India, the Constitution of India expresses

the will of the people of the country, it is the people of the country who have given to

themselves the Constitution of India as the fundamental law of the land.27

It may be argued that, whether it is the will of the people forming the government in a

democratic state having a written constitution is supreme, because the Parliament comprises

of the elected representatives of the people of the country and Parliament can amend the

written constitution of the country, or whether it is the will of the people enshrined in the

written constitution of a democratic state which is supreme? So far as India is concerned

with all due justification, it is the latter which is supreme, because in India we have a written

constitution with the safety valve of the basic structure doctrine, which places a restriction to

or tribunal (Article 136), the power to review its own decision (Article 137), the advisory jurisdiction to advice the Government in different matters (Article 143). 26

Citation: (2007) 6 SCC 586, Para 77 27

The Preamble of the Constitution of India begins with the words- “We the people of India” and ends with the words- “hereby adopt, enact and give to ourselves this Constitution”.

12

the amending power of the Parliament, stating that power to amend is not the power to

destroy.

For a democratic state wedded to the rule of law it is necessary that Judiciary as the third

wing of the State should not only be independent but be activist and robust too, because, as in

case of India, the SC is accounted for as the custodian of the Constitution of India and the

Constitution as the fundamental law of the land is a living document- propounding law which

is organic, dynamic and ever-changing & not strait jacketed. Hence, the SC is bestowed with

a task of being progressive yet rational, pragmatic yet wisdom-full, so as to take note of the

felt necessities of the time and to interpret laws with a futuristic approach but within the

boundaries or limits or the safety valves set by the Constitution of India.

Rise of legal Realism in India in the form of Judicial Activism and Judicial Creativity is to be

witnessed in the light of the fact that the Constitution of India is a living document and the

Judiciary at all times must protect the Constitution of India, not only in matter but also in

spirit.

It has being rightly acknowledged by S.H. Kapadia, J. in the case of M.Nagaraj v. Union of

India28

that: “The Constitution is not an ephemeral legal document embodying a set of legal

rules for the passing hour. It sets out principles for an expanding future and is intended to

endure for ages to come and consequently to be adapted to the various crises of human

affairs. Therefore, a purposive rather than a strict literal approach to the interpretation

should be adopted. A constitutional provision must be construed not in a narrow and

constricted sense but in a wide and liberal manner so as to anticipate and take account of

changing conditions and purposes so that a constitutional provision does not get fossilised

but remains flexible enough to meet the newly emerging problems and challenges.

The notion that the judiciary, because it is not elected, is not the voice of the people, is a

misconception. The Constitution is the fundamental law of the land which establishes the

judiciary and empowers it to eliminate acts of legislatures and actions of the executive as

unconstitutional if they infringe the guaranteed rights of citizens. The Courts are the

guardians of the Constitution; they act in the name of the people and for the people.

28

Citation: (2006) 8 SCC 212, Para 19

13

Chief Justice Marshall’s momentous decision in Marbury v. Madison29

, laid the foundation

for judicial review by holding that the SC had the power and the duty to refuse to enforce

statutes violating the Constitution; but even before the American assertion of judicial power,

in England, the sovereign was checked by the judiciary as in the reign of James I, it was

solemnly adjudged that the King cannot take any cause, whether civil or criminal, out of any

of his Courts, and give judgement upon it himself; but it must be determined and adjudged in

some Court of Justice according to the law and custom of England.30

It is true that judges are expected to be circumspect and self-disciplined in the discharge of

their judicial functions. They cannot possibly govern the country or enact the laws. To the

extent that judicial activism is making the legislative and executive branches perform

properly in accordance with the rule of law the Court’s functioning is unexceptionable. And

there’s no reason to believe that activism could degenerate into autocracy, but one must

remember that the sole check on judicial power is in the hands of the judges themselves.31

Being so powerful, it must be respectfully assumed that judges are not unmindful of Lord

Acton’s dictum- All power tends to corrupt and absolute power corrupts absolutely.32

Amidst all political corruption and bureaucratic nepotism prevalent in India, the only panacea

that can by far be seen is in the form of judicial activism exercised by the apex court of the

country. But it is no less significant to mention that a clear line of difference must be drawn

between judicial activism and over-reach or adventurism.

The Indian Judiciary may be greatly appraised for its judicial activism that it has showed

overtime from time to time as and when the needs as to it arose. The proponents of judicial

activism think that a powerful judiciary is essentially necessary to protect the rights, interests

and entitlements of weaker sections of the society as well as public interest at the hands of

those who may be motivated by folly or injustice.

29

5 U.S. 137 (1803) 30

See: V.A. Bobde, The Rise of Judicial Power, Law & Justice: An Anthology, Edited by- Soli J. Sorabjee, Universal Law Publishing Co. Ltd., 2003 Edition, p.370-371; Also see:Brooms Legal Maxims, 68(10

th Edition)

31

The SC of India has fortified the independence of the superior judiciary by holding that it will have the last word in the matter of appointments to the High Courts and the Supreme Court. Similarly, appointments to the subordinate judiciary require the concurrence of the High Courts. Impeachment, the only constitutional mode for removal of judges, is a power vested in Parliament but even there the Court, by judicial review, has required observance of the principles of natural justice. 32

Ibid 30 at p.374

14

Judicial Activism is often termed as an expansion of the doctrine of Judicial Review. The

source of all judicial power that the SC in India enjoys is the Constitution itself. So far as the

power of judicial review is concerned, Article 13(2) of the Constitution of India (as the

primary source of judicial review in India) vests power in the Court to declare a law enacted

by the legislative organs as void if is against the provisions of the Indian Constitution. There

are other constitutional provisions like Article 32, Article 131- 136, Article 143, Article 146

and Article 226 which on different grounds and in different situations can be used to declare

actions of the State as un-constitutional and void. These provisions empower the SC of India

to declare any State action, whether-legislative, executive or administration in nature as void

on the basis of un-constitutionality.

Over the last decade there has been a widespread criticism of the expansion of the scope of

the Supreme Court’s power of judicial review. The broad interpretation of fundamental rights

together with the relaxation of rules of standing in constitutional writ litigation has allowed

the court to expand its jurisdiction considerably and adjudicate on a wider range of issues

than previously thought appropriate. Further, by arming itself with a wide array of remedies

the court has sought to continually supervise the implementation of its orders and constitute

committees for regulating diverse fields of activity. The scope of its constitutional judicial

review power has extended far beyond the domain of rights33

to include the scrutiny of

constitutional amendments34

, executive proclamations of national and state emergencies35

,

33

It is the Judicial Activism of the SC of India that has turned Article 21 of the Constitution of India into an Omnibus Article (largely by way of PILs), thereby creating a new set of rights altogether. The researcher enlists these rights as follows: Right to Food [People’s Union for Civil Liberties v. UOI, 2000 (5) SCALE (30)]; Right to Shelter [Chameli Singh v. State of U.P., (1996) 2 SCC 549]; Right to livelihood [Olega Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545]; Right to Education [Mohini Jain v. State of Karnataka, AIR 1992 SC 1858; Unni Krishnan v. State of A.P., AIR 1993 SC 2178]; Right to Travel Abroad [Maneka Gandhi v. UOI, (1978) 1 SCC 248]; Right to live with Human Dignity [Maneka Gandhi v. UOI, (1978) 1 SCC 248]; Right against Bonded Labour [Bandhu Mukti Morcha v. UOI, (1984) 3 SCC 161]; Right to marriage [Lata Singh v. State of U.P., 2006 (6) SCALE 583]; Right to Clean Environment [M.C. Mehta v. UOI, 1987 SCC (1) 395]; Right to Privacy [Govind v. State of M.P., 1975 SCR (3) 946]; Right against bar fetters [Charles Sobhraj v. Suptd., Central Jail, AIR 1978 SC 1514]; Right against solitary confinement [Sunil Batra v. Delhi Administration, AIR 1978 SC 1675]; Right against handcuffing [Prem Shankar Shukla v. Delhi Administration, AIR 1980 SC 1535]; Right against custodial violence [Sheela Barse v. State of Maharashtra, AIR 1983 SC 378]. 34

As for example in the case of Waman Rao v.UOI [AIR 1981 SC 271], the SC held that the first and the fourth amendment to the Constitution of India in 1951 and 1955 do not damage basic structure of the Constitution and is also valid. Also, in the case of P.Sambamurthy v. State of A.P. [AIR 1987 SC 663], thirty-second amendment to the Constitution of India was held to be un-constitutional. 35

Judicial Review of Proclamation of Emergency under Article 356 of the Constitution of India: It was held in Rameshwar Prasad v. UOI [AIR 2006 SC 980] that proclamation under Article 356 is open to judicial review only when the power is exercised mala fide or is based on wholly extraneous or irrelevant grounds. Also, in S.R. Bommai v. UOI [AIR 1994 SC 1918], the SC laid down the following propositions in regards to Article 356-

15

executive policy framing processes36

, and legislative inaction affecting core interests of

citizens37

.

Academic and political criticism of judicial activism exercised by the SC has been wide

ranging. The court is accused of widening the scope of judicial review beyond constitutional

boundaries38

, usurping the powers of the executive and legislature39

, and employing

techniques of adjudication and prescribing remedies considered inappropriate for courts40

.41

(a). President Proclamation dissolving a State Legislative Assembly is subject to judicial review; (b). Burden lies on the Government of India to prove that relevant material existed (to justify the issue of Proclamation); (c). Courts would not go into the correctness of the material; (d). If the court strikes down the proclamation it has power to restore the dismissed State Government to office; (e). A State Government pursuing anti-secular politics is liable to action under Article 356. 36

As for example, in the case of Champakam Dorairajan (1951), an executive order, which fixed the proportion of students that could be admitted from each community into public medical and engineering colleges in the State of Madras, was challenged. The SC struck down the order, declaring that it denied admission to the Petitioner solely on the ground of his caste and consequently violated Article 29(2) of the Constitution of India. Champakam Dorairajan (1951) thereby led to the First Amendment to the Constitution of India and there-after Article 15(4) was inserted into the Constitution of India. 37

Legislative inaction, overtime, has been compensated by the Judicial-Law-Making in India, with a view endorsed by the SC of India from time to time, that legislative inaction cannot be permitted for rule of law to prevail, as lack of legal remedies available at hand can lure the affected parties to seek measures/remedies which are illegal. This role of the SC, as Judicial Legislator is however not free from criticism. Role of the SC as Judicial Legislator can be seen in the following cases: (a). Vishakha v. State of Rajasthan [AIR 1997 SC 3011], as there was no law for protection of women from sexual harassment at work places, SC assuming the role of the Judicial Legislator, laid down guidelines in this connection, and said that these guidelines will be the law until Parliament makes a law on the subject. (b). L.K. Pandey v. UOI [AIR 1986 SC 272],detailed guidelines were issued by the SC for inter-country adoptions, which were to be read as the law prevailing till the time no specific legislation was put in place in regards to govern the same. 38

In the case of: Vineet Narain v. UOI [1998 Cri. L.J. 1208], the SC invented a new writ called continuing mandamus where it wanted to monitor the investigating agencies which were guilty of inaction to proceed against persons holding high offices in the executive who committed offences. Furthermore, the court created by its judicial order a body called the Central Vigilance Commission, which was not contemplated by the statute (the Delhi Special Police Establishment Act, 1946), for supervising the functioning of a statutory body, the Central Bureau of Investigation. The court also laid down a number of guidelines for the appointments of chiefs of investigating agencies like CBI, CVC and the Enforcement Directorate; apart from the Chiefs of the State Police. These guidelines, apart from being in relation to appointment, were also with regard to their status, transfer and tenure. [To the limited legal knowledge of the Researcher, this does not seem to be a legitimate exercise of judicial power.] 39

As for example, in the case of M.C. Mehta v. UOI [(1997) 8 SCC 770], the SC directed that the maximum speed limit of heavy vehicles in Delhi can be 40 km/p/h, but fixing speed limit of heavy vehicles is the task of the State Government or its nominee vide Section 112 of the Motor Vehicles Act, 1988. This decision has overtime being criticised for SC acting over-activist. 40

As for example: The Shirur Mutt (1954) decision of the SC saw a challenge to the Madras Hindu Religious and Charitable Endowments Act, 1951, on the ground that it violated Article 26 of the Constitution of India, which empowers religious denominations to ‘manage its own affairs in matters of religion’. In assessing its validity,

16

With law as a process of creating new rules to deal with new situations, realist school of

jurisprudence can clearly be seen shaping up in India. Courts in their activist form in India

can be seen as putting life into the dead words of the statute. Legal Realism shaping up in

India can be seen with respect to the ever-growing Article 21 jurisprudence and the trend of

social-action-litigation in the nature of PILs that is fast changing the orthodox ground

realities that the task of the judicial wing of the State is to interpret the law in the sense that,

Justice must be in accordance of Law and not the other way round.

Some scholars argue that judiciary as the custodian of the Constitution can enter into the

domain of the executive or legislature because these organs are not functioning properly, but

it can be counter-argued that, with the judiciary too is not functioning properly, as there is

great delay in deciding cases & corruption prevalent in the judicial wing of the State, should

then the legislature or the executive take over the judiciary’s function, as these two wings of

the State- the legislature and the executive, in a democratic form of government come to life

in the shape of the representation of the will of the people when the people of the country

elect their respective representatives who shall be governing them by way of the adult

franchise.

Legal Realism from the Indian standpoint can be seen through the eye of the power of

Judicial Review vested in the SC of India by the Constitution of India. But, it is

necessary to carve out the distinction between judicial activism (that is the power of

judicial review in practice) and judicial over-activism (which is sometimes called as

the SC developed the ‘essential practices’ doctrine, a test under which the constitutional protection for religious freedom was taken to mean a protection of those practices essential to a religion. During the 1960s, this doctrine was developed and the Court held that it, rather than the religious group would determine the essentialness of a religious practice. Moreover, merely superstitious beliefs would fall outside the constitutional protection for religious freedom. This ‘essential practices’ doctrine has survived, meaning that the Indian Judiciary has acquired the authority to evaluate the essential and non-essential ingredients of a religion, as well as construe what claims may be true to that religion as compared with mere superstitious bunk. Hence, what is fascinating about this is that the power to interpret religion by the SC, has brought with it the power to rationalize it. The Courtrooms overtime have become a site for the cleaning and reformation of religion. Therefore, the pity is that the petitioners lose cases not because their right to religious freedom has limits, but because they themselves have misunderstood their very own religion. See: Madhav Khosla, The Indian Constitution, Oxford University Press, Edition 2012, Chapter 3: Rights and Goals, p.134 41

See: Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine, Oxford University Press; Introduction: The Basic Structure Doctrine in Indian Constitutional Adjudication, p. xv - xvi

17

judicial adventurism or over-reach).42

Task of judiciary is to uphold the supreme

excellence of the Constitution of India, the same calls for exercise of judicial restraint or

judicial balancing as and when necessary for maintenance of right balance between the three

wings of the State- the legislature, the executive and the judiciary.43

Judiciary as the

custodian of the Constitution is not expected to over-ride the powers conferred to the

legislative and the executive wing of the State (except when the actions of the same are not in

line with the constitutional scheme) as the same can lead to derogation of the constitutional

spirit, thus demeaning the Suprema Lex.

Thus judicial activism is not an aberration, but an essential aspect of a Constitutional Court.

It is important that in the spirit of realism Courts do not mix up judicial activism with

judicial populism and judicial excessivism. Judicial activism and PIL jurisdiction must be

exercised only within the institutional limitations and keeping in mind the ground realities

and manageable limits- lest it becomes counter-productive resulting into loss of effectiveness,

respectability and credibility of the Court. It is true that in a society like India that comprises

enormous diversity, rich and poor divide, caste cleavages and feudal past, Court in dealing

with issues of social and economic justice and human rights should place generous

interpretation avoiding what has been called the austerity of tabulated legalism44

,

remembering that the letter killeth, but the spirit giveth life45

.46

42

In the case of State of U.P. v. Jeet S. Bisht [(2007) 6 SCC 586, Para 30 and 31], Markandey Katju, J. held: The Supreme Court is subordinate to the law and not above the law. When it is said, ‘Be you howsoever so high, the law is above you’, this dictum applies even to the Supreme Court, since the law is above the Supreme Court and the Supreme Court is not above the law. The Judges of the Supreme Court and the High Courts should have the modesty and humility to realise this. 43

Judicial Balancing is drawing a balance between Judicial Activism and Judicial Restraint. In the case of S.R. Bommai v. UOI [(1994) 3 SCC 1], the SC held that there are certain situations where the political element dominates and no judicial review is possible. The exercise of power under Article 356 was a political question and therefore the judiciary should not interfere. Ahmadi J. said that it was difficult to evolve judicially manageable norms to scrutinize the political decisions and if the courts do it then it would be entering the political thicket and questioning political wisdom, which the court must avoid. One of the examples of judicial restraint is the case of State of Rajasthan v. UOI [AIR 1977 SC 1361], also called the Rajasthan Assembly Dissolution Case, in this case the court rejected the petition on the ground that it involved a political question and therefore the court was not obliged to go into the matter. 44

See: Minister of Home Affairs v. Fisher [(1980) AC 319] 45

See: People (D.P.P) v. O’Shea [(1982) IR 384] 46

See: Moolchand Sharma, Constitutional Democracy and Access to Justice, Constitutionalism Human Rights & the Rule of Law- Essays in honour of Soli J. Sorabjee, Edited by: Prof. Mool Chand Sharma & Raju Ramachandran, Universal Law Publishing Co., 2005 Edition, p.281-282

18

Chapter 2: Legal Realism and the Failings of the Judicial Wing of the State

The Realist approach reflects the influence of pragmatic philosophy which had its origin in

America.47

Pragmatism was said to be a new name for some old ways of thinking and the

thinkers denied to accept law as an abstract conception and tried to base it on actual facts and

actions.48

The jurists, in the realist sense, are inspired to concentrate more upon what

the courts may do rather than abstract logical deductions from general rules and on the

inarticulate ideological premises underlying a legal system. But words of caution as

facilitated by Cardozo must necessarily be taken note of-

“The Judge, even when he is free, is still not wholly free. He is not to innovate at

pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of

beauty or of goodness. He is to draw his inspiration from consecrated principles. He is

not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to

exercise a discretion informed by tradition, methodized by analogy, disciplined by

system, and subordinated to the primordial necessity of order in the social life. Wide

enough in all conscience is the field of discretion that remains.”49

Legal Realism is very close to the positivist philosophy of the law, as it also examines the law

“as it is” and not “as it should be”. Like Austin, the Realists look on law as the command of

the sovereign, but Austin’s sovereign was Parliament and for the Realists the sovereign is the

Court.

In India in the realist sense judicial creativity can take encouraging forms but within the

limits set by the Constitution of India, the Supreme Court acting as the guardian of the

Constitution of India. Hence, in India, legal realism comes to life in a very pseudo sense as

the courts have no un-limited discretion. The law of the land is the Constitution of India and

it has to be adhered to at all times for it expresses the will of the people which is at the root of

47

See: The case of Riggs v. Palmer [115 N.Y. 506 (1889)] was an example of the judiciary using the ‘social purpose’ rule to statutory construction. The case of Riggs v. Palmer, examined whether a grandson who had killed his grandfather should be allowed to inherit the grandfather's estate. In October of 1889, the Court of Appeals of New York ruled that: The Laws of New York relating to the probate of wills and the distribution of estates will not be construed so as to secure the benefit of a will to a legatee who has killed the testator in order to prevent the revocation of the will. 48

See: James William, Pragmatism in Focus, Edited by Doris Olin, Routledge (1992),p.51 49

See: V.Lakshmanan, Justice V.R. Krishna Iyer: A Stroke of Genius, C.Sitaraman & Co. Pvt. Ltd., First Edition- 2008, Chapter 3: Justice Iyer, The Jurist, p.109

19

the democratic principle of governance. Therefore, Courts are free to act as realist in India,

provided they respect the Constitutional spirit, for it is thought to be necessary for the courts

to act with enthusiasm, because legal progressivism depends upon the wisdom and clarity of

thought, along with the conviction of the higher echelons of the Judiciary.

Judiciary is seen as the protector of the Constitution and the advancer of the Constitutional

thought and in this sense we see judiciary in India as pseudo realist, but what if there are

failings in the judicial organ of the State itself, that is the onlooker of the legislative and the

executive arms of the State is seen defying the constitutional scheme by indulging in

favouritism, nepotism and corruption.50

Judiciary is the bedrock and handmaid of democracy. If people lose faith in justice

parted by a Court of Law, the entire democratic set-up would crumble down.51

In

regards to India, progressive judicial activism, as against regressive judicial passivism, found

its finest hour when during the post-emergency era, the Court swung into action giving wider

access to justice innovating more affirmative procedures, and moulding dynamic remedies so

that till-starred, alienated and disabled masses could move the court directly or by NGO

proxy, thus seeking relief for a whole group of affected people, aggrieved not as injured

individuals but as persons with concern.52

It is said that judges like Caesar’s Wife must be above all suspicion. In All India Judges

Association v. Union of India53

, the SC said, “The conduct of every judicial officer should

be above reproach. He should be conscientious, studious, thorough, courteous, patient,

punctual, just, impartial, fearless of public clamour, regardless of public praise, and

50

In UOI v. Sheth [1977 (4) SCC 193] referred to in K.Veeraswami v. UOI [1991 (3) SCC 655, Para 31], it was held: “To keep the stream of justice clean and pure, the judge must be endowed with strong character, impeccable integrity and upright behaviour. Erosion thereof would undermine the efficacy of rule of law and the working of the Constitution itself. The judges of the higher echelons, therefore, should not be mere men of clay with all the frailties and foibles, human failings and weak character which may be found in those in other walks of life. They should be men of fighting faith with tough fibre not susceptible to any pressure, economic, political or of any sort. The actual and apparent independence of judiciary would be transparent only when the office-holders endow those qualities which would operate as impregnable fortress against surreptitious attempts to undermine the independence of judiciary. In short, the behaviour of the judge is the bastion for the people to reap the fruits of democracy, liberty and justice and the anti-thesis rocks the bottom of the rule of law.” 51

Dr. Arijit Pasayat, J. in the case of Haridas Das v. Usha Rani Banik [(2007) 14 SCC 1, Para 28] 52

See: Justice V.R. Krishna Iyer, Legally Speaking, Universal Law Publishing Co. Pvt. Ltd., 2003 Edition, p.254 53

Manu/SC/0039/1992, Para 71

20

indifferent to private, political or partisan influences; he should administer justice according

to law, and deal with his appointment as a public trust; he should not allow other affairs or his

private interests to interfere with the prompt and proper performance of his judicial duties,

nor should he administer the office for the purpose of advancing his personal ambitions or

increasing his popularity.” Corruption in the Judicial Wing of the State is a means

enough to deride the country of its Constitutional spirit, which is focussed towards

establishment of egalitarian society and welfare state.

The corrupt conduct of judges may be categorised as under54

:

1. Corrupt or malicious judgement, verdict or order being an offence under Section 219

of the IPC, where a judge may also be separately prosecuted for corruption as he is

within the meaning of “public servant” under Section 2(c)(iv) of the Prevention of

Corruption Act, 1988 and under Section 21 of the IPC55

.

2. Misbehaviour, which is prejudicial to the effective and expeditious administration of

the business of the courts.

3. Incapacity in terms of mental or physical disability.

A judge may be removed by the process of impeachment for his proved misbehaviour or

incapacity under Article 124(4) of the Constitution of India.56

What, Parliament is for the Positivists, Courts are for the Realists. Cases of corruption

in judiciary are very demeaning for a country like India where the other two arms of

the State are already witnessed to have been working against the interest of the society

54

See: Mukesh, Corruption in Judiciary and Judicial Accountability, Journal of Law Teachers of India, Volume II, Issue 1-2, 2011, Law Centre I, University of Delhi, p.152 55

Judges of SC and HCs are “public servants” within the meaning under Section 21 (Third) of IPC, 1860 as held in K.Veeraswami v. UOI [Manu/SC/0610/1991] 56

In regards to our discussion it is necessary to take note of the following instances: Justice Soumitra Sen aborted the impeachment motion due to his resignation on 01-09-2011 after defeat in Rajya Sabha voting on 18-08-2011. He was found guilty by the Inquiry Committee for misappropriating sale proceeds to the tune of 24 lakhs in a case in 1984 where he was appointed as receiver by the Calcutta High Court. He was an advocate at that time. Justice P.D. Dinakaran also aborted the impeachment motion due to his resignation on 30-07-2011. Earlier in Justice P.D. Dinakaran v. Judges Inquiry Committee [Manu/SC/0983/2011], he lost his attempt to quash all 16 charges levelled against him on 24-04-2011 by the Judges Inquiry Committee of Rajya Sabha. Some of the charges included dishonest judicial orders, unlawfully sanctioning five House Board plots, benami transactions, encroachment of government and public properties to deprive dalits and poor, destruction of evidence etc.

21

as a whole by exercise of powers which are in nature of abuse of their respective public

offices for private gains.57

Realism in India is exercised by the Courts not to establish their respective supremacy

but to establish the supremacy of the Constitution of India for the promotion of the

constitutional thoughts.

The constitutional scheme of the Indian Constitution suggests that the legislature, the

executive and the judiciary are the three pillars of the State, which are to lend each other

support in case any of them suffers from any crises moral or fundamental, what-so-ever.

Questioning, “Who will judge the judges?”- Justice V.R. Krishna Iyer, appealed to the

Parliamentarians to implement glasnost and perestroika in the judiciary. In the name of

independence there cannot be judicial absolutism and tyranny. The so called Collegiums are a

judicial creation and the syndrome of the personality cult being beyond accountability such

arbitrary power will corrupt even the best of persons absolutely. This is a democracy, not a

robed dictatorship with papal-like infallibility vested in the SC for the purely

administrative functions of government. Corrupt anti-socialist ‘brethren’ judges are

dangerous without accountability. Comparing the three organs he says, the executive is

57

In Vishwanath v. E.S. Venkataramiah [1990 Cri LJ 2179 Bom.], the retiring Chief Justice of India E.S. Venkataramiah, on 17.12.1987 created a furor with the candid revelation that he had in his possession the names of 90 sitting judges who were “entertained” by members of the Bar. In C. Ravichandran Iyer v. Justice A.M. Bhattacharjee [Manu/SC/0627/1996], Chief Justice A.M. Bhattacharjee of Bombay HC resigned on 01-04-1995 in the wake of resolutions by three Associations of Bombay High Court following the controversy over a payment of $80,000 received by him for the overseas publishing rights of his book, “Muslim Law and the Constitution”. The Supreme Court has also noticed circumstances of corruption and misconduct committed by the Senior Judges and has commented there upon as follows:

1. “We are not giving the certificate that no judge is corrupt. Black sheep are everywhere. It’s only a question of degree”; “The rot has set in”; “The time has come because people have started categorizing some judges as very honest despite it being the foremost qualification of any judge. It is the system. We have to find the mechanism to stem the rot”; “Has the existing mechanism become outdated? Should with some minor modification, the mechanism could still be effective?” on 09-09-2008 by the Supreme Court Bench, Justice Arijit Pasayat, Justice V.S. Sirpurkar and Justice G.S. Singhvi, in a case relating to PF scam in Ghaziabad.

2. “Something is rotten in the Allahabad High Court, some judges (of the High Court) have their kith and kin practicing in the same court, and within a few years of starting practice, sons and relatives of judges become multi-millionaires, have huge bank balances, luxurious cars, huge houses and are enjoying a luxurious life. This is a far cry from the days when sons and relatives of judges could derive no benefit from their relationship and had to struggle at the Bar like any other lawyer. We are sorry to say but a lot of complaints are coming against certain judges of Allahabad HC relating to their integrity”, Supreme Court Justices Markandey Katju and Gyan Sudha Misra said so on 26-11-2010 as they expressed distress over rampant nepotism and corruption in the HC.

See: Mukesh, Corruption in Judiciary and Judicial Accountability, Journal of Law Teachers of India, Volume II, Issue 1-2, 2011, Law Centre I, University of Delhi, p.151

22

weak and tends to treat this country as a dollar colony. The judiciary is British-oriented and

precedent- board. Therefore, Parliament at least must be supreme, activist, sovereign,

democratic, socialist and secular. If the Parliament fails, India dies. It is the voice of swaraj,

the victory of do-or-die struggle. Its Constituency is the People of India. Accordingly,

Justice Krishna Iyer is of the opinion that Parliamentary intervention can many times

become a necessity as against- judicial absolutism, corruption and tyranny.58

Judges are expected to be circumspect and self-disciplined in the discharge of their judicial

functions. It is an onerous duty cast on the judiciary to see that either inadvertently or

overzealously; they do not allow the instrumentality of the courts to be polluted thereby

eroding public trust and confidence in the Institution.

The legislature, the executive and the judiciary are three co-ordinate organs of the State. All

the three are bound by the Constitution. The ministers representing the executive, the

elected candidates as Members of Parliament representing the legislature and the

judges of the Supreme Court and the High-Courts representing the judiciary have all to

take oaths prescribed by the Third Schedule of the Constitution. All of them swear to

bear true faith and allegiance to the Constitution. When it is said, therefore, that the

judiciary is the guardian of the Constitution, it is not implied that the legislature and the

executive are not equally to guard the Constitution. For the progress of the nation, however, it

is imperative that all the three wings of the state function in complete harmony.59

58

Supra 54 at p.164 59

See: Justice Dr. A.S. Anand, Judicial Review-Judicial Activism- Need for Caution, Constitutionalism Human Rights & the Rule of Law- Essays in honour of Soli J. Sorabjee, Edited by: Prof. Mool Chand Sharma & Raju Ramachandran, Universal Law Publishing Co., 2005 Edition, p.377-387

23

Chapter 3: Criticism of the Realist School of Jurisprudence- Evaluating the position in

terms of India

Legal positivism owes a large debt to American realism that is rarely acknowledged.

American realism jolted legal positivism out of its complacency by questioning widely held

assumptions about the nature of rules. It should be remembered that Holmes exposed the

weaknesses of the command theory of law long before Hart. Realism prompted legal

positivists like Hart and Raz to rethink about legal positivism as a treatise and subsequently

forced them to distance themselves from ‘formalism’ to reconsider the nature of legal

language and judicial discretion. It may even be true to say that Holmes made Hart possible.60

However, the realist school of jurisprudence is not free from criticism, overtime it has been

criticised as follows:

1. The definition of the term ‘court’ itself is not settled. There are quasi-judicial bodies

like administrative tribunals which may or may not fall within the definition of Court

depending on the context in which they are mentioned.

2. A statute becomes the law as soon as it is passed; it does not have to wait for the

recognition by the courts before becoming entitled to be called law. A statute is

recognised by courts as the law; they are not law simply by virtue of judicial

recognition.

3. It is only a fraction of law that goes to the judge for interpretation. It cannot be

said that the law on which interpretation is never invited is not law.

4. In a totalitarian state where courts are not at liberty to interpret law given by the

ruler, law enunciated by the realists cannot exist.

5. The theory of legal realism is an outcome of confusion as between- what has been

said in legislation as such in black and white, and how the legislation is to be

interpreted as such by the Court of law. The function of judges is limited to

interpretation of a statute or a statutory provision where a statute or a statutory

provision is open to more than one interpretation. Judges are to adopt an interpretation

which truly represents the intention of the legislature.

So far as India is concerned, the Indian Jurisprudence does not subscribe to the realist

philosophy in the real sense of the term as it lays more emphasis on the functional aspect of

60

See: Suri Ratnapala, Jurisprudence, Chapter 4: Realism in Legal Theory, Cambridge University Press, 2009 Edition, p.108

24

law and relates the same to the realities of social life of the people of India- as the

Constitution of India gives scope to the judges to take into consideration the socio-economic

and cultural life of people, while adjudicating upon the cases.61

Also scholars have been of

the opinion that the Indian approach to social justice is based on the ‘Conditional Social

Rights Model’, which in turn is a model of adjudication in which the court does not

focus on the character of measures undertaken by the State but in-fact only investigates

their implementation, because there is no judicial review on the former question, the

right in question becomes conditional upon State action.62

In India judges have extensive judicial discretion, but they are not omnipotent in the matter of

formulation of laws. The statutes, precedents and the rule of justice-equity-&-good

conscience are indispensable part of Indian Judicial System. Though, Indian Jurisprudence

refuses to accept that judge-made law is the only real law, it however does accept the

important role of judges and lawyers in the formulation of laws. The power of judicial review

and doctrine of overruling has enabled the Supreme Court to effectuate socio-economic

contents of Constitutional mandate.63

Also, the doctrine of precedent which has no place in

the realist school plays an important role in the Indian judicial system.

61

There have been cases whereby adjudication has been done by the Supreme Court of India, strictly based on facts of the case, such as in the case of Darshan Gupta v. Radhika Gupta [C.A. Nos. 6332-6333 of 2009; Decided on 01-07-2013 (SC) by P.Sathasivam and Jagdish Singh Khehar, JJ.], in this case the SC held that the party seeking divorce has to be innocent of blame. In this case, the wife admittedly suffered brain damage after her caesarean operation. The wife had remained un-conscious for sometime after having delivered the baby. The husband initially extended full financial support by seeking consultation of specialists in fields where in the wife needed assistance. But subsequently, the husband refrained from extending emotional or moral support to her. He filed a divorce petition on the ground of cruelty but failed to establish that her behaviour was erratic, aggressive or abnormal, or that he was subject to cruelty on account of such behaviour. The wife had suffered brain damage leading to cognitive deficiencies, yet despite the said deficiencies, her working memory has returned to ‘near normal’ after treatment. The husband offered to pay compensation to wife for seeking divorce but the wife did not consent to the severance of matrimonial ties. The SC held that the issue in hand should be adjudged by asking whether the husband would have accepted such a plea of acceptance of compensation if the wife had filed the divorce petition that her husband had suffered brain damage. The court held that on a reversal of roles, the husband, without any fault of his own, would have never accepted as just, the dissolution of matrimonial ties. Also, in Santram v. Rajinder Lal [1979 SC (1) RCJ 13: 1979 SCR (1) 900], Justice V.R. Krishna Iyer held that in social welfare legislations (such as the rent control legislations), it is the facts and the circumstances of the case that form the law. Regards to social justice enshrined in our Constitution must be read into all our legislations enacted by the Parliament and interpreted by the Judiciary. 62

See: Madhav Khosla, The Indian Constitution, Oxford University Press, Edition 2012, Chapter 3: Rights and Goals, p.128 63

Supra 3 at p.149; Also the SC in Bengal Immunity Case [AIR 1955 SC 661] over-ruled its earlier decision in Dwarkadas v. Sholapur Spinning and Weaving Co. [AIR 1954 SC 119] and observed that, “the Court is bound to

25

Judicial institutions in India have a sacrosanct role to play not only for resolving inter se

disputes but also to act as a balancing mechanism between the conflicting pulls and pressures

operating in a society. Courts of law are products of the Constitution and the instrumentalities

for fulfilling the ideals of the State enshrined therein. Their function is to administer justice

according to the law and in doing so, they have to respond to the hopes and aspirations of the

people because the people of this country, in no uncertain terms have committed themselves

to secure justice- social, economic and political- besides equality and dignity to all.

Realisation that today is taking over the surface in India is that- the judges are under a duty to

exercise discretion as to their power of innovation to maintain the delicate balance as between

the laws so enacted by the Parliament & the State Legislatures and the spirit of constitutional

superiority, because the great generalities of the Constitution have content and significance

that vary from age to age. Also the task is to make India- a land of settled government, a land

of just and old renown, where freedom slowly broadens down from precedent to precedent.64

obey the Constitution rather than any decision of the Court, if the decision is shown to have been mistaken”. In Krishna Swamy v. UOI [(1992) 4 SCC 605] it was observed that, “the judge is the living oracle working in the dry light of realism pouring life or force into the dry bones of law to articulate the felt necessities of the time”. At present what India needs is more of Judicial Accountability rather than constant emphasis of Judicial Supremacy. 64

See: Justice V.R. Krishna Iyer, Off the Bench, M.C. Chagla- The Centenary of a Judicial Statesman, Universal Law Publishing Co. Pvt. Ltd., 2001 Edition, p.64

26

Conclusion:

When we talk about democracy, we not only talk about ‘free market place of ideas’ but also

the assertions in regards to the fact that there shall exist, no absolute freedoms, for all

freedoms shall be subject to reasonable restrictions of constitutional sentiments, public order,

morality and state security. In a democracy, what governs is the rule of law and hence all

three organs of the State (the legislature, the executive and the judiciary) are accountable

generally and particularly to the sentiments of ‘We, the People’.

Indian judiciary is the custodian of the Constitution of India. The late 1970’s and the entire

decade of 1980’s witnessed a change in the judicial attitude. The Keshvananda Bharti Case

[AIR 1973 SC 1461] conclusively established judicial supremacy in the matters of

constitutional interpretations, thus allowing it a decisive and creative role in evolving a new

constitutional jurisprudence in the light of changing social- economic and political

dimensions. Later, the Maneka Gandhi Case [AIR 1978 SC 597] changed the entire

jurisprudence of Article 21 of the Constitution of India. An important development in the

early 1980s was that of Public Interest Litigation, introduction of PIL was a move that

relaxed the requirements imposed by the doctrine of locus standi. Through cases like S.P.

Gupta (1982) and Bandhu Mukti Morcha (1984), the Supreme Court diluted the doctrine of

locus standi and moved away from conventional notions of standing. With the advent of the

public interest litigations in India, the SC assumed the epistolary jurisdiction. PIL doctrine

held that any member of the public could approach the court to challenge a law on behalf of a

person or class of persons who, because of their disadvantaged position, were unable to come

to Court directly. Consequently, the norms governing access to court were modified. Unlike

class action suits, in which a single person represents an entire class to which he belongs, PIL

set a low threshold for a person to be a satisfactory petitioner. He need not have any

relationship to the person or group he was representing, and sued in his capacity as a citizen

and member of the public. Over the period of time, there has been a realisation in the

Indian judicial mainstream that justice requires more than just laws; the process

whereby justice is attained must be a fair one. This entails, first, an impartial,

independent judicial system; second, there must be competent and independent legal

profession; third, procedural justice is a vital ingredient of a just legal system. This

necessitates, amongst other things, access to legal advice, assistance, and representation,

27

and the guarantee of a fair trial.65

Hence, India overtime has witnessed a change in judicial

attitude from the positivist approach to the realist approach, taking into account that the

Constitution of India is a living document.

Advent of Legal Realism in India can be best summarised in the words of S.B. Sinha, J. (in

the case of State of U.P. v. Jeet S. Bisht) as follows66

:

“With the advent of globalisation, we are witnessing a shift from formalism to value-laden

approach to law. In the contemporary scholarship, especially with the decimation of law as

purely an autonomous discipline (with the emergence of cross-cutting realms such as Law

and Economics, Law and Philosophy & Law and Society), we see that laws embody a

goal, which have its provenance in sciences other than law as well. It is no more the black

letter in the law which guides the interpretation but the goal which is embodied by the

particular body of law, which may be termed as the rationality of law. Law, in its value-laden

conception, is not entirely endogenous in its meaning and purpose, the construction thereof

also depends on the statement of purport and object. There is a spill-over of the

aforementioned shift in philosophy of law to statutory interpretation. Purposive interpretation,

of lately, has gained considerable currency, which is relevant for the sake of maximising the

efficiency in respect to the point behind the rule. There may be a situation when purposive

interpretation is required even in the context of deciphering the constitutional mandate by

invoking the notion of active liberty discovered by Justice Stephen Breyer67

of the American

Supreme Court.”

If our Republic is to live up to the promises, as laid down in the Constitution, the judges have

an important role to play. The justice system is the principal instrumentality in satisfying the

undertakings in the Constitution. Therefore, ‘We, the People of India’ must be ensured the

integrity and efficiency, the moral responsibility and reality of easy access to the court as well

as the early finality of dispute resolution. All these together constitute what we may regard as

65

See: Raymond Wacks, Law: A Very Short Introduction, Chapter 1: Law’s Roots, Oxford University Press, 2008 Edition, p.25 66

(2007) 6 SCC 586, Para 72 and 73 67

Justice Stephen Breyer was appointed by President Bill Clinton in 1994, and is known for his pragmatic approach to the Constitutional law. Breyer is noted for his use of six interpretative tools- text, history, tradition, precedent, purpose of a statute, and the consequences of competing interpretations.

28

the successful performance of the judicature assuming that judges have been chosen rightly,

with one eye on the values of the Constitution and the other on the rights of the people.68

If there is one principle which runs through the entire fabric of the Constitution, it is the

principle of the rule of law and under the Constitution- it is the judiciary which is entrusted

with the task of keeping every organ of the State within the limits of the law and thereby

making the rule of law meaningful and effective. It is to aid the judiciary in this task that the

power of judicial review has been conferred upon the judiciary and it is by exercising this

power which constitutes one of the most potent weapons in the armoury of the law, that the

judiciary seeks to protect the citizens against violation of his constitutional or legal rights or

misuse or abuse of power by the State or its officers. Independence of judiciary has many

dimensions, namely fearlessness of power centres- economic and political, freedom from

prejudices acquired and nourished by the class to which the judges belong.69

A realisation that is rising in India is that no democracy is stable unless the court becomes an

integral part of the people’s process; the same can be witnessed in the realm of rise in the

public interest litigation culture in India and the ever-rising want for enactment of the Judicial

Accountability Bill, because there are no absolute powers in a democracy as each wing of the

State is accountable to the sentiments of ‘We, the people’.

Realism in India finds its surface in a pseudo or a quasi sense as the role of a judge has been

best defined in Indian context in the case of C. Ravichandran Iyer v. Justice A.S.

Bhattacharjee70

as follows:

“The Judge cannot retain his earlier passive judicial role when he administers the law

under the Constitution to give effect to the constitutional ideals. The extra-ordinary

complexity of modern litigation requires him not merely to declare the rights to the

citizens but also to mould the relief warranted under given facts and circumstances

and often command the executive and other agencies to enforce and give effect to the

order, writ or direction or prohibit them to do unconstitutional acts. In this ongoing

complex of adjudicatory process, the role of the judge is not merely to interpret the

68

See: Justice V.R. Krishna Iyer, The Majesty of the Judiciary, Chapter 2: Judges- Judicial Reform in the Indian Context, Universal Law Publishing Co., 2007 Edition, p.8-9. 69

See: S.P. Gupta v. UOI [AIR 1982 SC 149 at p.197-198] 70

1995 (5) SCC 457

29

law but also to lay new norms of law and to mould the law to suit the changing social

and economic scenario to make the ideals enshrined in the Constitution meaningful

and a reality.”

Hence, Indian Jurisprudence cannot be strait-jacketed within the strict brackets of Legal

Positivism or Legal Realism, what needs to be realised is that- all public power is a sacred

trust and must be subject to accountability and its process in a democracy is corrective &

constructive criticism. Judges cannot be treated as a priestly class answerable only to God.71

Also, judges are no monks or scientists, but participants in the living stream of national life,

steering the law between the dangers of rigidity on the one hand and of formlessness on the

other.72

System faces today no theoretical dilemma but a single continuous problem i.e. how

to apply to ever-changing conditions, the never changing principles of rule of law within the

permissible mandate of the sacred constitutional scheme.

71

Supra 52 at p.87 72

See: Justice V.R. Krishna Iyer, Off the Bench, M.C. Chagla- The Centenary of a Judicial Statesman, Universal Law Publishing Co. Pvt. Ltd., 2001 Edition, p.101

30

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6. The Madras Hindu Religious and Charitable Endowments Act, 1951

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8. The Delhi Special Police Establishment Act, 1946

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32

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