By Justice Markandey Katju
There are several schools of jurisprudence, and it seems that the Indian judiciary is presently following the American realist school of sociological jurisprudence.
The positivist school of jurisprudence of Bentham, Austin, Hart, Kelsen, etc held that law is the command of the sovereign, and it placed statutory law at the centre of gravity of the legal system.
In contrast, the subsequent sociological school shifted the centre of gravity of the legal system from statute to judge made law. The realist school is the extreme sub school of the school of sociological jurisprudence.
Since the positivist school laid great emphasis on statutory law, judges were expected to be passive and not activist. In other words, according to the positivist school, they were not supposed to create law, as that was the job of the legislature, or exercise executive functions, as that was the job of the executive. There is broad separation of powers between the three organs of the state, and each organ should remain within its own domain, and not tresspass into that of another organ.
Further the judges were required to strictly follow the letter of the law, by giving a literal interpretation to a statutory provision, instead of a purposive interpretation
In contrast, the realist school of jurisprudence says that law is what the judges say it is. In other words, judges had free discretion to decide cases as they wished, regardless of the statute
As Gray, one of the founders of the realist school says, the statute is not law, but only one of the raw materials which a judge uses to make law ( see Gray's 'Nature and Sources of the Law'. Gray also says '' It has sometimes been said that law is composed of two parts, legislative law and judge made law, but in truth all law is judge made law ''.
Frank, another leading figure of the realist school, regards judicial decisions as 'actual law', while statutes, customs, etc are only 'probable law' (see Frank's 'Law and the Modern Mind').
Realism rejects both legislative acts and judicial precedents, as it regards them stationary forms, when modern society is dynamic and in constant flux. Hence according to the realist school, law must not be conceived of as a set of rules for general application (as the positivists contend), but as a series of empirical judicial decisions.
The Indian Supreme Court seems to be following the view of the realist school.
It has often displayed scant regard for the statute, or even the Constitution. Let us consider some cases decided by it:
1. In the second and third Judges cases it has created a Collegium system for appointing judges of the higher judiciary, though Article 124 of the Constitution nowhere mentions such a system, and Lord Cooke called the decisions a 'sleight of hand'.
2. The Constitution makers, while drafting Article 21 of the Constitution, which provides for the right to life and liberty, deliberately avoided using the 'due process clause', on the advice of Justice Frankfurter of the US Supreme Court, who said that this provision in the 5th and 14th Amendment to the US Constitution had created a lot of problems in USA.
Yet, in Maneka Gandhi vs Union of India, 1978, the Indian Supreme Court practically introduced the due process clause into the Constitution, by holding that the procedure to be followed before a person could be deprived of his life or liberty must be 'fair, reasonable and just', words which are so vague that they can mean anything.
Also, the Supreme Court interpreted the word 'life' in Article 21 to mean a 'life of dignity', which can mean anything.
3. In the Ayodhya verdict the Supreme Court held that demolition of the Babri Masjid was a crime, but by a strange feat of logic handed over the site of the demolished masjid to the criminals
4. The Places of Worship Act, 1991 states that the religious character of a place of worship as it existed on 15.8.1947 will not be changed. Hence the suits in Varanasi and Mathura were clearly not maintainable, because even if the mosques there had been built after demolishing the Hindu temples on the order of Moghul Emperor Aurangzeb, this had been done long before 15.8.47.
The Supreme Court and High Court should therefore have dismissed the suits on this ground under Order 7 Rule 11 CPC, and if they had done so a quietus would have been placed on numerous similar controversies which are inflaming communal tensions in many parts of the country.
However, it has shied away from doing so, for reasons best known to itself.
5. The Supreme Court has imported vague concepts like 'Constitutional morality' and 'spirit of the Constitution' into the Constitution, which can mean anything ( or nothing), vide Navtej Singh Gohar vs Union of India, NCT of Delhi vs Union of India, 2018, Manoj Narula vs Union of India, Naz Foundation vs NCT of Delhi, etc, They are thus capable of creating legal chaos and anarchy.
In a judgment I gave in the Supreme Court ( see paras 17 onwards ) I tried to check this tendency, but to no avail. Our judges seem to have no desire to be fettered by the restrictions placed by the positivist school of jurisprudence, and prefer a free hand.
(Justice Katju is a retired judge of the Supreme Court of India. These are his personal views.)
