Realism practiced in the Indian Supreme Court- A critique


Three students are expelled from a school because they refused to sing the national anthem along with other students in the school assembly. There was a government circular stating that all students must sing the national anthem together in the school assembly. Justifying their refusal to sing the national anthem along with other students the expelled students said that they belonged to a particular religious sect which prohibited the singing of any song in praise of anyone except God. Their parents had also told them that it would be contrary to their religious faith if they join the singing of the national anthem. The students challenged the validity of their expulsion from school on the ground that the freedom to profess and practice religion is a Fundamental Right guaranteed to them by the Constitution of India. The government, however, argued that loyalty to the nation is of paramount importance and Fundamental Rights are not absolute rights. It was also pointed out that there was a Fundamental Duty in the Constitution to respect the national anthem.[1] The question which arises above is what is the law to be applied in the aforesaid situation? Can a rule be cited, using which the validity of the expulsion order could be determined? The reality is that until the courts decides the matter, no one in certain about the rule. JURISPRUDENTIAL BASE OF LEGAL REALISM ‘The law is what the courts say it is’ is the working principle of the realist jurisprudence.[2] According to Cardozo, law is a basis of prediction as to how it will be enforced by the courts once its authority is challenged.[3] Once laws are laid down by the legislature, it is up to the courts now to interpret or, in other words, it is nothing but ‘a prophesy of what the courts will

do in fact’[4]. It is because of which realist theorists argues that unless the courts have not given their final pronouncement on it, the law remains uncertain.[5] It is because of which the legal jurists believe that law on any subject is never in the form of clear cut commands of the state but it is in the form of a process which includes both the principles already evolved by the judiciary and what it may do in future when the subject matter again comes before it.[6]

COMPARATIVE THEORY OF REALISM It’s a well-known fact that the laws have to be interpreted with the changing dynamics in the society.[7] Laws should change with the changing needs of society and in that way, it becomes an instrument of social engineering. If we see the Legal history of the United States, the constitution system of United States is highly dependent on judicial interpretation for achieving any finality or certainty in the Constitution or laws. In India, we have parliament and cabinet systems of government from England and federalism with its characteristics system from the United States Constitution. The constitutional history of England, the United States and also of India shows that whenever judges have taken legal realism too seriously and the executive or legislature have felt afflicted, affront has been made on the independence of judiciary. In England, the executive power of the government including the prerogative power of the King was brought under the judicial powers of review by Justice Coke which limited king’s power and Parliament alone could make or alter the law.[8] The then king, Stuart Kings in seventeenth century often felt piqued by the attitude of judiciary in their political struggle against Parliament[9]. After the Glorious Revolution, Parliament obtained upper hand over the Kingship, by reserving to itself the exclusive powers of legislation.[10]

In the United States, there was no institutional conflict by such emergence of the Supreme Court. The court continued its activism against federal laws and in favour of private property interests and negative such measures through a series of judgments.[11] Exasperated President Franklin D. Roosevelt confronted the Supreme Court with his ‘Court Packing Bill ’ of 1937.[12]By this measure, for the old unbending judges beyond the age of seventy who did not voluntarily retire, additional judges up to a maximum number of fifteen were to be appointed in order to save the "National Constitution from the hardening of the judicial arteries".[13] However, the Bill was defeated in Senate but subsequent deaths and resignations created nine vacancies which were filled up by President Roosevelt with judges having new philosophy of law.[14] The Supreme Court of India held to the same effect as of England, in its advisory opinion in Inre Delhi Laws Act[15]that by articles 245 and 246 " the Constitution has assigned the law-makingpower exclusively to Parliament and State Legislatures" and that the function of the executive is the enforcement of law The Indian Constitution, since it is eclectic, started to function with all those powers for judiciary which were obtained by way of political struggle in England or the United States. The constitution expressly confers wide powers of judicial review under Article 13 of the Indian Constitution. While deciding the extent of this power in India, the nature and fundamental characteristics of the Indian Constitution must be taken into consideration. In the early period i.e. post enactment of the Constitution, the Supreme Court played a highly functional role of giving definitive judgements on constitutional interpretations. Firstly, by protecting the freedom of individual, the Supreme Court made significant inroads in legislative or executive activity in favour of its own powers of judicial activism, with reference to particular provisions of the Constitution. For example, if we look Article 14 of the Indian Constitution, Apex court has held that making of classification is not opposed to the right to equality under article 14 provided that they are reasonable. However, it is the courts themselves to decide whether an act is reasonable or not.[16] Another example judicial activism can also be found in Apex Court’s interpretation of limits of reservation in Article 15(4) and Article 16(4)

of the Constitution.[17] It can be said that provisions of the constitution were interpreted to literal meaning of the words and none of the external factors like social, economic and political developments were taken into consideration.[18] But as the time went on, Literal attitude was substituted by liberal attitude and Constitutionalism gained importance.[19] Apex court tried to change its position from declaring the law to creator of law by reading into the provisions of the Constitution.[20]

It is true that the Constitution provides for Judgement delivered by higher courts enjoys a status of law in India because of which itself shows the realism was always there.[21] Present attitude of the judiciary has actually restrained the other two pillars of democracy from exercising excessive powers but at the same time judiciary should also refrain from carrying this attitude to the extreme limits and maintain the separation of powers. I would conclude my words by quoting the comment made by former Chief Justice of India, ‘When a question is posed before the court, the court must find out what is the content of the question. If the content is political and if the content is such where there is no legal standard available before the court to apply and decide the matter, then the doctrine of deference should be applied and it should be left to the executive or the legislature as the case may be.[22]

This article is written by Prakhar Harit, Student, of School of Law, Bennett University.

[1]Referred facts are taken from the famous case of Bijoe Emmanuel v State of Kerela (AIR 1987 SC 748) [2]Chief Justice Hughes quoted in Abraham, The Judicial Process 326 (2nd ed. 1968) [3]Cardozo, The Growth of the Law 52 (1954) [4]Holmes, Collected Papers 173; Paton, Jurisprudence 68 (2nd ed. 1951) [5]Jerome Frank, Law and The Modern Mind 35 (1930) [6]Hart, The Concept of Law 138 et seq. (1961) [7]Mc Whinney, Comparative Federalism, ch. III (1962) [8]In the case of Prohibitions del Roy87 Coke freed the judiciary from the directives, influence or ’ divine right ’ of the king. It was held by Coke that both the subjects and King are equally bound by law, and law can only be given out by men learned in law and customs of the realm, i.e., the judges [9]Chief Justice Coke was dismissed by James I after he refused to cooperate with the wishes of the King. Chief Justice Crew was dismissed by Charles I for not admitting the legality of forced loans. James II dismissed four judges, Chief Justice Jones, Chief Baron of Exchequer, Montague, and two puisne judges, Neville and Charlton, all of whom did not admit the legality of dispensing and suspending powers of the King [10]CF. Strong, Modern Political Constitutions 260 (3rd ed. 1952). [11]Kumaramangalam, Judicial Appointments; Choice of Judges in Democracies, :h V, p. 51 [12]Leuchtenburg, William E. "The Origins of Franklin D. Roosevelt's "Court-Packing" Plan." The Supreme CourtReview 1966 (1966): 347-400. http://www.jstor.org/stable/3108746. [13]Roosevelt ’ s Message, Senate Reports, 75th Congress. [14]CF . Strong, Modern Political Constitutions 260 (3rd ed. 1952) [15]In Re the Delhi Laws Act, 1912 vs The Part C States (Laws) Act, 1950 1951 AIR 332 [16]State of West Bengal v Anwar Ali Sarkar(AIR 1952 SC 75) [18]The early judgment of the Apex Court in A.K.Gopalan v. State of Madras (AIR 1950 SC 27) stating the scope of right to life or the judgment in M.S.M Sharma v. Krishna Sinha (AIR 1959 SC 395) to decide the scope and extent of Parliamentary privileges, clearly depicts the restrictive and refraining approach of the Supreme Court in interpreting the Constitutional provisions [19]After facing severe criticism during the emergency era (See ADM Jabalpur v Shivkant Shukla (1976) 2 SCC 521) Apex Court’s shredded its role of declaring the law by reading into the provisions of the constitution. The Maneka Gandhi’s Case (AIR 1978 SC 597) changed the entire jurisprudence of Art. 21 of the Constitution. [20]Keshvananda Bharti’s case (Kesavananda Bharati Vs. State of Kerala AIR 1973 SC 1461) conclusively established judicial supremacy in the matters of Constitutional interpretationswhich allowed the Supreme Court of holding a decisive and creative role in evolving a new Constitutional Jurisprudence in the light of Social, Economic and Political dimensions. [21]For instance, See Article 142 of the Indian Constitution. [22]Hon’ble Justice S.H. Kapadia madethis comment at the 150thanniversary of Bombay High Court

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