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FOR INDIAN lawyers, jurists and political scientists the realist jurisprude-
nce is no longer a study for personal enlightenment of the philosophy of
law discussed by Holmes, Cardozo, Jerome Frank or Pound. Legal realism has
now vigorously entered into the life stream of Indian constitutional system.
The judgments of the Supreme Court on the power of Parliament to amend
the Constitution as well as on the interpretation of Consititution to decide
the validity of the exercise of power by different organs of government
firmly establish the position of judiciary in India on the pattern of early
twentieth century American legal realism. In fact the erstwhile highly acti-
vated confrontation like relationship between Parliament and the Supreme
Court has been in jurisprudential terms a conflict between American legal
realism and Austinian analytical positivism in the context of our Constitution.
'The law (or the Constitution) is what the courts say it is' is the working
principle of realist jurisprudence.1 It develops naturally when there is a
multiplicity of jurisdictions,2 and the Constitution or laws, whether enacted or
common law, leave 'open texture'3 to be resolved by the courts. The constitu-
tional system of the United States is highly dependant on judicial interpretative
process for achieving any finality or certainty in the Constitution or laws. On
the other hand, in the United Kingdom the concept of sovereignty had led to
the legal positivism which regards the sovereign, Parliament in modern times,
as the ultimate source of positivity in law. The Constitution of India partakes
of both, the United States and the British Constitutions. We have Parliament
and cabinet systems of government from England and federalism with its
characteristic system for distribution of legislative functions and judicial
powers of review from the United States Constitution. Since realist jurispru-
dence and analytical positivism draw heavily from the respective constitutional
systems of the United States and the United Kingdom, it is natural that the

* Reader, Faculty of Law, University of Allahabad.

1. "We are under the Constitution, but the Constitution is what the Judges say it
is," a dictum of Chief Justice Hughes quoted in Abraham, The Judicial Process 326 (2nd
ed. 1968); Hart, The Concept of Law 138 et seq. (1961).
2. Allen, Law in the Making 41 (7th ed., 1964).
3. Hart, supra note 1 at 121 et seq. 'Open texture' refers to ideas, words or phra-
ses left undefined in the Constitution or enactments, such as, 'due process of law', 'liber-
ty' or the 'commerce clause' in the U.S. Constitution; or, 'personal liberty', 'reasonable
restrictions* or 'matters of religion' in the Indian Constitution, © The Indian Law Institute


two theories of law and jurisprudence may make an impact on each other
continuously or intermittently in the working of the Indian Constitution.
Observing a rather doctrinaire judicial behaviour during the first few
years after the Constitution of India came into force, Mcwhinney4 had re-
The high-water mark of legal positivism on the part of the Indian
Supreme Court was attained in one of that Court's first opinions,
Gopalan v. State of Madras5 ......"
But, as we shall presently examine in detail, the Supreme Court
of India made its preference for the working dictum of legal realism, "the
Constitution is what the courts say it is', abundantly resounding. In the
Kesavananda Bharati case6 it has gone much beyond the 'high-water mark'
reached by American legal realism so far and our Supreme Court has declared
a part of the amended Constitution not to be Constitution being void for rea-
sons given in the judgment. This is rather the ultimate in legal realism be-
cause in the United States judges have confined the maxim 'the Constitution is
what the courts say it is' to the interpretation of the Constitution and consti-
tutionality of laws only and not for avoiding any part of the Constitution it-
self. The doctrine of severability has not been applied in order to cut out
any poition of the Constitution in the United States so far.
The purpose of this paper is to make a study of the methods and extent
of the American legal realism in the context of the role being played by our
Supreme Court in interpreting the Constitution of India. This is done first by
examining the jurisprudential base of legal realism, thereafter by investigating
the constitutional sine qua nons for its development, and lastly, by examining
the pattern or direction in which legal realism is taking shape under the Cons-
titution of India.
Jurisprudential principles of legal realism
Legal realism emphasises that law can be properly understood or defined
in terms of judicial process only. The law on paper and the law in action are
distinct from one another.7 After the law has been laid down by the legis-
lature, it is nothing but 'a prophesy of what the courts will do in fact'8 and so
long as the courts have not given their final pronouncement on it, the law re-
mains uncertain, a child's world.9 To define law on a subject, to know what
'the law' is in a question the lawyer, the administrator or the affected person
may look into the prescribed law (designated as 'command' by the positivists)
but ultimately they have to find how the courts have already defined it and
how they are likely to define the same when the matter again goes before them.

4. McWhinney, Judicial Review 130 (4th ed. 1965).

5. (1950) S.C.J. 174: A.I.R. 1950 S.C 27.
6. Kesavananda Bharati and others V. State of Kerala, A.I.R. 1973 S.C. 1461*
7. Llewellyn, Jurisprudence 23 et seq. (1962).
8. Holmes, Collected Papers 173; Paton, Jurisprudence 68 (2nd ed. 1951)i
9. Jerome Frank, Law and The Modern Mind 35 (1930)* © The Indian Law Institute

Jerome Frank gives an interesting account of how intelligent lawyers combine

both (a) actual law, i.e., a specific past decision and (b) probable law, i.e., a
guess as to a specific future decision, while advising 'the average man of our
times when he consults his lawyers'.10 Cardozo has said that law, enacted or
otherwise, is a basis for prediction as to how it will be enforced by the courts
once its authority is challenged.11 Only after a rule can be known with cer-
tainty of prediction that it can be called a principle of law. Therefore, accord-
ing to realist jurisprudence, law on any subject is never in the form of clear
cut commands of the state; 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. The disbelief in the finality or
infallibility of law is the jurisprudential base of realist jurisprudence.12
On the other hand, to the analytical positivism of Austin a definition of
law in terms of command of the sovereign, which is useful in separating
positive law from positive morality, appears to provide clear dimensions to
law. In England, Parliment is both constituent and law making body. By
simple legislative process it can redefine the Constitution and law if these
develop in undesirable directions. The common law part of constitutional and
legal system of England had also a discernable element of certainty provided
by stare decisis since in 'common law jurisprudence the law is the decision
itself'.13 In European countries, the Roman civil code system has been
known rather for certainty tending towards rigidity and formalism which
lead to unwelcome results. u The cry in the Continental legal system is for a
free law, the individualisation of cases based on 'merits by practical sense
and true comprehension of the facts instead of the correct legal deduction
by the help of scholastic subtleties'.15 Reliance on courts is made in Conti-
nental systems for removing the hardship which general principles may
involve with reference to particular cases. 16

In modern times 'policy-decision making' is advocated for breaking the

rigidity of the Constitution and laws when their acquired meanings fail to
achieve the socio-economic ideals of a socialist or welfare state.17 In
developing countries law is desired to be dynamic. It should change with
the changing needs of society in time and space; in that ,way law becomes an

10. Id. at 42-47.

11. Cardozo, The Growth of the Law 52 (1924).
12. Hart, supra note 1 at 138 at seq.
13. P.K. Tripathi, Foreign Precedents and Constitutional LaW 57 Columbia L
Rev. 319 (1957).
14. Allen, supra note 2 at 170-176; Paton, supra note 8 at 166.
\5. Science of Legal Method 101 (Modern Legal Philosophy Series).
16. Friedmann, Legal Theory 533-39 (5th ed. 1967).
17. McWhinney, Comparative Federalism, ch. Ill (1962). © The Indian Law Institute


instrument for social engineeririg.i8 Its fMction becomes highly spebialisdd,

that is, to harmonise and to even out of the frictions generated by compe-
ting or conflicting interests within the society. Iri modern* twentieth cen-
tury states the law has ceased to be a relationship between the ruldr and hfe
subjects. Continental jurist Duguit has visualised law td be a social fact, a
means for social solidarity and a basis for co-operatibn. 19 Indian juristic
thinking recognises 'the dynamic character of the role of law' 20 Ex-Chief
Justice Gajendragadkar while advocating the attitude of social engiiieeririg
for law, has observed:

Considered in this dynamic aspect, law seeks to achieve the objective

set before itself by a welfare state. Wherever social inequality exists or
economic injustice is found, a democratic state enters the arena, &nd,
with the aid of law, establishes social equality and removes economic
injustice. This is a continuous process and this process enters upon an
ever-widening horizon of airri and objectives Which inspire the welfare
state's onward march towards the establishment of an egalitarian so-
ciety. Naturally, the Content of the rule of law cannot be determined for
all time and all circumstance*1

However, it should not be forgotten that the changing character of

socio-economic requirements in modern develbping states should not make
the Constitution or rule of law uncertain. Certainty in law is an element
which is sought both by the state and the people. It is conducive to justice
both in the sphere of public law and private law since it diminishes the 'scope
of arbitrary caprice and personal factor a2 particularly in circumstances when
the administration is given wide powers and descretions in a Welfare stkte.
Certainty in law is also desired for mutual trust and convenience of people
in developed and in the developing countries equally, e.g., in mercantile trans-
actions, transfer of property, bills of exchange, or rules of road.

Realist jurisprudence has a non-doctrinare ot politically neutral £tpprb

ach to the content of law or the Constitution. It focusses attention on the:
judicial process through which Constitution and law in practice operate.
The law is made by the legislature but it is enforced through the agency df*
courts. As such, whatever may be the doctrinaire content of the Constitution

18. G.S. Sharma, Horizons of Indian Legal Philosophy, 2 Jaipur L.J. 180 (1962);
Pound, Interpretations of Legal History, ch. VII; Friedmann, supra note 16* ch. 19:
Lord Macmillan, Law and Other Things 11.
19. Friedmann, supra note 16 at 229-31.
20. Gajendragadkar, The Indian Parliament and Fundamental Rights 190 (Tagoffc
Law Lectures, Uriiv. of Calcutta, 1972).
21. Id. at 191 (emphasis added)
22. Paton, supra note 3 at 171. © The Indian Law Institute


or law, it is a paper rule only.23 The real shape of any provision of law
comes into existence after it has passed through judicial scepticism. Till
that stage is reached, as already noted, the law is only a basis for prediction
of judicial mind. Legal realism recognises that the knowledge of personality
of the judge is an integral factor in accurately predicting law and the Cons-
titution. All the considerations which are likely to influence the judge who
may be called upon to decide a matter, such as, his personal and professio-
nal background, his social, cultural or economic likes and dislikes are worthy
of study for making accurate prediction because these will be reflected in
his decision making. This emphasis of legal realism is very much recognised
by former Chief Justice Hidayatullah. He stated :

Every judge...has a distinct stream of tendency in him. Since he sees

things with his own eyes, there work on his mind all those imponderable
influences built round himself in life's experience. He may not be aware
of the influences but they are there. For example, one may have a
rooted antipathy to certain crimes, another may chafe at the controls
put upon the individual, a third may have great regard for law and its
observance and so it goes on from individual to individual. The ten-
dencies of judges are as varied as the colours of an artist. There are also
various approaches and methods for viewing legal problems. One judge
may be influenced by one approach more than another.24

As such, it will be observed that legal realism makes a basic assertion that
law on paper is not real law. At the same time, the latter is quite uncertain
since very often it is in the form of a 'series of erratic' judicial pronounce-
ments. Sometimes a simple provision of Constitution or law receives confli-
cting interpretations so much so that even a lawyer's intellect fails to under-
stand it definitively. There is much truth in this emphasis of the realist juris-
prudence. In the United States, the Supreme Court decisions have built intri-
cate legal webs around 'commerce clause', 'the due process of law' and 'liberty'
in the Fifth and the Fourteenth Amendments, 'equal protection' and 'civil
rights' of the people. Two centuries of constitutionalism in the United States
has not settled these and definitive changes still take place with them. With us,
the lawyers' Constitution of India is much more extensive* intricate and at the
same time increasingly confusing or uncertain than the Constitution which
had emerged out of the Constituent Assembly. To give a few examples, the
'right to equality' guaranteed by article14 is simple in form and words, but the
Supreme Court has recognised25 that it permits the making of classifications

23, "A Constitution on paper and one in section may redically differ. Its effective
Implementation depends...upon those who operate it...," : Former Chief Justice K, Subba
Rao, Some Constitutional Problems 1 (Setalvad Law Lectures. Univ. of Bombay 1970).
24, M. Hidayatullah, A Judge's Miscellany 67 (1972).
25, State of West Bengal v. Anwar Ali Sarkar, A.I.R. 1952 S.C. 15. © The Indian Law Institute

1975J LEGAL kEAltSM 217

by the legislatures provided the classifications are reasonable which in their

turn depend on judicial scepticism. Also, if a discretionary power granted
to the executive is unguided, arbitrariness can result which will offend the
right to equality. A vast and comprehensive legal literature on these scores
under the 'right to equality' has developed. In spite of this and expert legal
advice available to the government, in the Bank Nationalisation case26 in
1970 the Supreme Court held that the government had erred when it indulged
in class legislation which article 14 does not permit. Similarly, in the matter
of exercise of constitutional powers for effecting preventive detention, clause(3)
to (7) of article 22 have been extensively interpreted to provide a code for the
legislatures and the executive officers.27 Any law providing for preventive de-
tention which offend the judge-made constitutional requirements will be void.
Although preventive detention is a much worked provision of the Constitution
yet it could not claim finality and in S.N. Sarkar v.State of West Bengal^ the
Supreme Court gave a different interpretation to the requirement of preven-
tive detention law under article 22(7) with the result that thousands of persons
detained under the Maintenance of Internal Security Act had to be released
by the government. In both instances referred to above uncertainty of cons-
titutional interpretation persisted in spite of the past history. This uncer-
tainty depended on the changed valuations in judicial thinking in time scale.
'Constitution or law is what the courts say it is', but is any interpretation
given to a constitutional provision or law by the courts an achievement of
certainty or finality ? On the basis of the practice in different legal disciplines
realist jurisprudence will have no hesitation in saying that the achievement of
any certainty or finality in the Constitution or law is impossible because no
judgment is infallible. In common law system, though the lower courts are
bound by the judgment of the superior courts yet the latter are not bound by
their own judgments. In England, the Privy Council was never bound by its
decisions and since 1966, the House of Lords has given up its rigid adherence
to precedents.29 In the Continental code system the past decisions have had
only persuasive value.30 In the United States, the Supreme Court freely over-
rules its past decisions and so is also the situation in India. 31 Even the most
settled interpretations of the Constitution can be departed from. There will be
no surprise to a legal realist, if there is a shift in the pattern of legal thinking
in the Supreme Court and if it overrules the Anwar Ali Sarkar case32 and the
Bank Nationolisation case33 and hold that legislature of competent jurisdiction

26. R C Cooper v. Union of India, (1970) 3 S.C.R. 530; A I.R. 1970 S.C. 564.
27. M.P. Jain, Indian Constitutional Law 594, 598-695 (2nd ed. 1970); U.N. Gupta,
Constitutional Protection of Personal Liberty in India, ch. v.
28. A.I.R. 1973 S.C. 1425.
29. "Practice Statement (Judicial Precedents), (1966) 1 W.L.R. 1234.
30. Allen, supra note 2 at 170-176*
31. Seervai, Constitutional Law of India 59 (1967),
32. Supra note 25.
33. Supra note 26. © The Indian Law Institute


is the final authority in making of classification under article 14, and that the
remedy against improper classification is political—get the law changed by
force of public opinion against the party responsible for the legislation, that is,
the court will not sit in judgment over legislative functions. Or, the Supreme
Court may some day conveniently distinguish the Kesavanda Bharati case34 and
hold that the Sajjan Singh case35 was rightly decided on the powers of Parlia-
ment to amend the Constitution, thereby shelving the concept of non-amenda-
bility of 'basic features' of the Constitution.

Is legal realism indispensable ?

Customs, precedents and legislation are three normal sources of law.36 In
practical application customs and precedents have common ground. Customs
where recognised as a source of law have the force of law only to the extent
recognised by the courts. Once judicially recognised a custom is regulated
as precedent. In India, personal laws have customary origin but at present
they exist on the authority and binding force of judicial decisions. The comm-
on law is the basis of the major portion of the Constitution of England, and
of the law relating to mutual rights and obligations of the people in England,
the United States,37 India 38 and other Commonwealth countries. For common
law 'the doctrine of stare decisis is a philosophic necessity and in common law
jurisprudence the law is the decision (of the court) itself'.39 The dependence
of customary law and common law on courts brings in legal realism in natural
course. It has been observed :

The development and direction of English law, as it is essentially case

law, has been largely shaped by the ingenuity (or pedantry) and the com-
monsense (or aberrations) of Her Majesty's Judges.40

Both United States and India have inherited much of common law41 and
so there is nothing surprising if judicial qualities njentioned by the English
jurist have also been inherited in India along with legal realism and the doct-
rine of stare decisis.
Where legislation, the modern source of law, is concerned it will be obser-
ved that inherent uncertainty reigns there also which leads to dependence on
judiciary. There is hardly any enactment which escapes legal realism. The
reasons can be analysed.

34. Supra note 6.

35. A.LR. 1965 S.C 845.
36. U.N. Gupta, The Sources of Law, A.I.R. 1956 Jour* 100; Allen, supra note 2
at 64-66; Paton, supra note 8 at 140.
37. C G . Post, An Introduction to the Law ch. V (1963).
38. Setaivad, The Common Law in India (Hamlyn Lectures, 1960).
39. P.K. Tripathi, supra note 13 at 319.
40. F. Reynold, The Judge as Law Maker 1 (brackets are part of dictum).
41* See supra notes 37 and 38. © The Indian Law Institute

1975] LEGAL kEALlSM lib

A law is expressed in general terms and is general in application. The

principle of equality, which is part of the conception of rule of law, requires
that the law should not single out a person 42 while imposing obligations or
granting privileges. When the law is expressed in general terms, there must
be some legal process by which the law is to particularize with reference to
a fact-situation concerning an individual. "It is impossible to provide by rule
for the correction of the breach of every rule" and establishment "of an au-
thority to make final authoritative application of rules is indispensable." 43
Thus, the judicial function of defining law in a fact-situation arises in the nor-
mal process of application of law. While the application of law in a fact-
situation is generally done by the lower courts, the appellate or the higher
courts do the work of making authoritative pronouncements from the poirit
of view of the dispute, on constitutional powers, interpretation of the statutes
and on the respective legal rights of the parties. Even the worst autocracies
of past or present have not been able to dispense with courts in order to work
out the fact-situations according to law.
Secondly, law is always made with a purpose. Its task is to convert
ideals or politically approved policies or programmes of socio-economic deve-
lopment into working rules.44 But in the modern democratic constitutions
the government has to achieve its programmes within the circumscribing limits
of the higher law, which is generally the Constitution itself. Many a time
the means adopted, methodology evolved for achievement of the purposes, or
powers conferred under the law may be imperfect because these conflict with
the Constitution. Such uncertainty has to be removed by some agency—by
courts in common law countries or constitutional councils in France, and
other Continental countries.46 Here the uncertainty is due to imperfect direc-
tion of the executive or legislative process. From our own constitutional ex-
perience we have popular cases46 in which the motives were laudable but the
exercise of power was imperfect and the verdict of the court went against the
legislation or the orders. Realist jurisprudence believes that every legislation
and executive order having the force of law has inherent uncertainty which can
be removed only after the courts have finally pronounced on the matter.
Thirdly, every legislation is expressed in words and phrases. These have
to be interpreted to make their meanings precise and also to fix the inner or

42. Under the Indian Constitution any law which singles out an individual will
offend article 14 unless the person can be justified as a class by himself; P.K. Tripathi*
Some Insights into Fundamental Rights, ch. V (1972).
4 1 Hart, supra note 1 at 139.
44. Pound, An Introduction to the Philosophy of Law, ch* 2 (1954); Lord Macmil*
lari, supra note 18 at 11; Friedmann, Law in a Changing Society, ch. 2 (2nd ed. 1972),
45. U.N. Gupta, 'Constitutional Paramountcy of Fuudamental Rights : Methods
foi* Enforcement' (1969) I S.C.J. 43.
46. 'Newsprint case' : Bennett Coleman and Cot Ltd. v. Union of India, A.I.R*
1973 S.C 106; 'Privy Purse case' : Madhava Rao Scindia v. Unkn of India, A.I.R. 1971 S.C
530; 'Bank nationalisation Case'; R.C. Cooper v. Union of India, supra note 26. © The Indian Law Institute


outer limits of the law laid down. Such process is inevitable because with
written law a "fundamental weakness lies in the inadequacy of human langu-
age to convey thought and intentions with perfect accuracy".47 Sometimest he
law contains vague or general terminology because the legislature visualises
that these bring the desired flexibility in that law and will serve the purpose
better. At times, the words originally used by the drafters of law acq-
uire different meanings in the course of two or three decades and are under-
stood differently by the future generations. Hart terms the uncertainty
caused by the use of general words or of those which admit of more than
one meaning as resulting from 'open texture' left in the law. It is that part
of a law which leaves scope for interpretation.48 The judges give full play
to their scepticism in this field and have the final say. Our Constitution pro-
vides ample 'open texture' to the judicial scepticism. For example, the Cons-
titution does not define 'personal liberty',49 or 'minorities',50 or, 'matters of
religion',51 or 'estate',53 or how much fundamental are fundamental rignts,53
and by now a lively legal literature has developed around such 'open texture'.
Recently, in interpreting the term 'amendment' the Supreme Court brought
forth another item of 'open texture' from the Constitution in the form of
'basic features' which, it held, cannot be amended by any process.51
Coming Lack to the question whether legal realism is indispensable, it is
observed that when the courts are faced with a dispute in which the two par-
ties give different interpretations to the Constitution or any law, the legal rea-
lism comes into play in form of the choice from different methods or princi-
ples of interpretation. The same text can acquire different connotations and
scope when interpreted by different methods. The choice from the methods of
interpretation depends on the personal likes, dislikes or sense of justice arou-
sed in the mind of the judge with reference to the facts and law involved in
the case.
The judge may read the particular text of law as providing a general prin-
ciple and may liberally apply the 'equity of the statute'.56 The Supreme

47. Allen, supra note 2 at 486.

48. Hart, supra note 1 at 121.
49. U.N, Gupta, supra note 27, ch. II.
50. Setalvad, My Life, Law and Other Tffygs 357 (1957); In re Kerala Education
Bdl, 1957,(1959jS.C.R. 995,
51. Setalvad, supra note 50 at 216, 460; P.K. Tripathi, 'Secularism : Constitutional
Provision and Judicial Review, 8 J.LL.L 1 (1966).
52. Seervai, supra note 31 at 44-46, 569-571.
53. Golaknath v State of Punjab, A.I R. 1967 S.C. 1643; Gajendragadkar, supra
note 20, ch. 1.
54. P*K. Tripathi, Kesavananda Bharati v. The State of Kerala, Who Wins, (1974)
1 S.CC. 3 at 32-36.
55. AlUn, supra note 2 at 45L © The Indian Law Institute


Court in a habeas corpus case56 recently held 'food adulteration activity* to be

an obstruction to the 'maintenance of supplies and services essential to the life
of the society' for which a person can be held in preventive detention under
section 3 of the Maintenance of Internal Security Act. This is interesting be-
cause normally penal statutes57 and detention laws58 are very strictly construed.
In the present case the judges took a liberal view by recognising that food
adulteration on an organised and large scale was rampant in the country; it
was not only a social evil but was an obstacle to the socio-economic demands
of the country, and that large scale adulteration carried on in a big way could
throw 'out of gear the even tempo of life'.59
The judge may not give a liberal interpretation to the law but may apply
it to the matters with which it directly deals and within such limit may give a
broad or limiting interpretation to the words to suit the ends of justice. 60 In
the very first case on fundamental rights, Gopalan v. State of Madras*1, the lim-
its of the rights under article 21 and under article 19 were distinguished from
one another on the principle of directness of consequence of law by Chief
Justice Kania. 62 The principle of harmonious construction frequently used to
distinguish two constitutional provisions by the Supreme Court 63 is based on
this method of interpretation. The doctrine of 'pith and substance' is also an
off-shoot of this method of interpretation. 64
Else, the judge may give a strict, narrow and rigid interpretation to the
words and phrases used in expressing a law by confining to the literal mean-
ing of the words, or by avoiding inferences ejusdem generis. The confining
of the term 'estate' in article 31A to agrarian reform or slum clearance by the
Supreme Court in the Kochuni case,65 or strict interpretation of penal and pre-
ventive detention statutes,66 are illustrations of adoption of this method of in-
terpretation by the Supreme Court.
In modern times, policy-decision making by the judiciary is in demand
though it adds to the uncertainty of law or the Constitution, because common
standards for this purpose are impossible to be evolved or achieved.67 The

56. Bank at Lai v. State of Rajasthan, judgment of Bhagwati and Sarkaria, JJ.,
P.T.L report in N.I. Patrika, Oct. 18, 1974.
57. U.N. Gupta, supra note 27 at 66.
58. Id, at 185; Ram Manohar Lohia v. State of Bihar, A.I.R. 1966 S.C. 740 at 746;
Shibban Lai Saksena v. The State of UP. (1954) S.C.R. 418.
59. Supra note 56.
60. Paton, supra note 8 at 187-188.
61. (1950) S.C.R. 88 : A.I.R. 1950 S.C. 27.
62. A.I.R. 1950 S.C. 27 at 34-35.
63. Seervai, supra note 31 at 29; M.P. Jain, supra note 27 at 768; M.S.M. Sharma v.
Sri Krishna, A.I.R. 1959 S.C 395; Atiabari Tea Co. Ltd. v. State of Assam, A.I.R. 1961 S.C.
64. M.P. Jain, supra note 27 at 786-787.
65. A.I.R. 1960 S.C. 1080.
66. U.N. Gupta, supra note 27.
67. Ibid. © The Indian Law Institute


policy-decision making gives to the judicial activism a constructive role (which

many times proves to be rather destructive) in the form of interpreting exist-
ing laws in the changed background of socio-economic ideals of the so-
ciety. It is advocated that the judge should study the sociological purpose for
which the law is meant and interpret it accordingly. This way, it is believed,
the judiciary will be playing a constructive rather than a conservative or obs-
tructive role in the onward march of the nation.68 The Supreme Court of
India has been rather reluctant in adopting policy-considerations as part of
the process for reaching a decision,69 but has in some cases70 looked into the
socio-economic aspects involved in the enactments impugned. But, a trend
of judicial policy-decisions for providing protection against socialistic mea-
sures to private property interests is also discerned71 through a series of de-
cisions on article 31(2) and on related constitutional amendments. In this
sphere, the judicial activism and governmental policies have been on cross-
roads in India and much uncertainty and confusion have been prevailing dur-
ing the last decade or so, as asserted even by Prime Minister Indira Gandhi.73
The above discussion on jurisprudential aspects of legal realism reveals
that it exists and thrives on the inherent imperfections of legislation and com-
mon law. At the same time the role of a judge though conducive to finality
in the application of law to a particular case dpes not eventually make law or
the Constitution certain. The written text of £he Constitution or law always
remains a basis for prophesy 6f what the judge may decide. The decision of
the court depends on the choice of methods of interpretation which in turn
rests on the cultural and professional attainments as wdl as on the political
and socio-economic views of the judge as an individual living in society. These
considerations lead to the jurisprudential conclusion that ultimately 'the law
(or the Constitution) is what the courts say it is'.
Legal realism: its constitutional sine qua nons
Not less important than the uncertainty inherent in law which gives occa-
sion to oi provides jurisprudential basis for legal realism is the constitutional
set-up which sustains realist jurisprudence. The realist theory of law has not
evolved solely by way of assertions for a particular status by the judges, it is
also a product of certain constitutional mechanism. The Continental legal
systems do not provide such incentive or lattitude to judges that the Constitu-
tion or law may be nothing but their pronouncements. It is a fact that legal

68. M.P. Jain, supra note 27 at 762-763.

69. Ibid. \ State of Bombay v. Bombay Education Society, A I R . 1954 S.C. 561;
Cooper v. Union of India, supra note 46.
70. Express Newspapers v. Union of India, (1959) S.C R. 12; Mohd Hanif Quareshi
v. State of Bihar, A.I.R. 1958 S C. 731.
71. M.P. Jain, supra note 27 at 764.
72. Kuldip Nayar, Supersession of Judges, letter of Prime Minister Indira Gandhi to
Shri LP. Narayan, 73-74. © The Indian Law Institute


realism is a consequence of the doctrine of judicial review of powers which

the polity and constitutionalism, of England including Dominion^73 and the
United States have developed. As has been the case with making of the Con-
stitution of India itself, the judges of Indian courts have inherited much of
legal realism through their continuity with pre-independence judicial system.74
The Indian courts have also acquired eclectically the traditions of American
judicial scepticism while abjudicating on the vires of exercise of constitutional
powers or on the fundamental liberties of people which are protected under
tfie Indian Constitution much in the same manner as in the U.S. Constitution.
Legal realism through judicial powers of review
The first indispensable constitutional requirement for tjie existence of a rea-
list philosophy of law is the capacity of courts to define the Constitution,
that is, the limits within which the different organs of government can legi-
timately exercise constitutional powers. Th,e verdict of the judiciary in this
regard should be recognised as binding by the other organs.
In England and also in the United States, Chief Justice Coke is accepted75
to be progenitor of the doctrines which comprise power of judicial review of
legislative and executive functions. Before we analyse his contributions in
building the doctrine of judicial review it may be observed that his arguments
have considerable echo in the present day realist philosophy of law. The
higher law76 invoked by Coke in the first decade of seventeenth century, to
limit the exercise of legislative or executive power, as Friedmann observes
"has its parallel, although with very different results, in the struggle between
the American legislature and the Supreme Court'*.77 The same has also been
the sequence leading to the recent institutional confrontation between the
Indian Parliament and the Supreme Court.
In the Bonham case,78 Coke declared that an Act of Parliament by which
exclusively those physicians who were granted licence by the London College
of Physicians could practice medicine in London, was void because it violated
the common law. He observed : "And it appears that when an act of Parlia-
ment is against common right and reason or repugnant or impossible to be
performed, the common law will control it and adjudge such act to be void'\78a
By the Bill of Rights of 1690, after the Qlorious Revolution 'the supremacy

73. In England, the Privy Council examines the vires of Colonial legislation,'though
the British cpurts examine the vires of executive aqtions only and not of parliamentary
74. The position was the same under the Government of India Act, 1935.
75. Corwin, The Constitution and What It Means Today 173 j(13th ed., 1973);
Abraham, supra note 1 at 303.
76. 'Common right or reason' and common law.
77. Supra note 16 at 133.
78. (1610) 8 Co. C. P. 114a.
78a. Ibid. © The Indian Law Institute


6f law and supremacy of Parliament had merged'79 and the competence of

Parliament became beyond the scope of judicial review. But,

the concept of judicial review subsequently found its way across the At-
lantic Ocean to the British Colonies, there to be nurtured by several colo-
nial courts. In eight or nine separate early judgments these courts re-
fused to enforce legislative enactments that they deemed to be against
"the laws of nature"... or "the laws of natural equity". 80

On the eve of American Declaration of Independence, the Cokian doct-

rine was politically invoked against the infamous Stamp Act, that it violated
"Magna Charta and the natural rights of Englishmen and, therefore, accord-
ing to Lord Coke (it was) null and void". 81 In Mar bury v. Madison*2 the
Supreme Court assumed the power of examining the constitutionality of
exercise of legislative power as an inherent judicial power. 83 It was declared
that the Supreme Court has the pbwer to examine if the executive or the
legislature have acted conformably to the Constitution or not. In India, the
powers of judicial review as obtainable in the United States were consciously
adopted by the Supreme Court in its judgment in the Goplan case and in its
advisory opinion in In re Delhi Laws Act, 191284 by referring to the Mar bury
case. In view of the specific provisions of articles 245 and 246 the Supreme
Court could also claim the power of examining the vires of the legislative

In England, the executive power of the government including the prero-

gative power of the King was also brought under the judicial powers of review
by Justice Coke. This part of judicial review is maintained in England and
has been inherited by the United States as well as by the British Dominions
including India. In the case of Prohibitions del Roy85 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. 86 This is resounded in modern legal realism: 'The law (or the Constitu-
tion) is what the courts say it is'. The main executive function, that is

79. Holdsworth, iv, History of English Law, 186-87 (3rd ed. 19.6).
80. Abraham, supra note 1 at 304.
81. Corwin, supra note 75 at 173-74; even after the U.S. Constitution came into
force the Cokian doctrine was invoked by the Supreme Court till 1873 : Loan Association v.
Topek, 20 Wall. 655, 662.
82. 1 Cranch 137.
83. Art. VI of the U.S Constitution declares the Constitution and laws made
under it as 'supreme law of the land', and art. II extends judicial power *to all cases in law
and equity arising under the Constitution'.
84. A I.R. 1951 S.C 332.
85. (1610)12 Co. Rep. 63.
86. Diecy, Law of the Cnstooitutin 18 (10th ed. 1965). © The Indian Law Institute


enforcement of laws, was fixed by Coke in yet another case, the case of Pro-
clamationsP Through this case, as Anson describes, the royal or executive
functions were limited to the enforcement of existing laws, the prerogative of
the King was not to be independent but subject to the law, and Parliament
alone could make or alter the law. In India, the Supreme Court held to the
same effect in its advisory opinion in In re Delhi Laws Act that by articles
245 and 246 "the Constitution has assigned the law-making power exclu-
sively to Parliament and State Legislatures" and that the function of the
executive is the enforcement of law. In Kharak Singh v. State of U.P.88 any
exercise of independent rule-making power by the executive was held to be
unconstitutional though the rules framed may be reasonable and good.

It will be thus observed that the three judgments of Chief Justice Coke
delivered within five years in the first decade of seventeenth century provide
all the necessary powers through which the judicial hegemony required for
realist jurisprudence thrives. 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 judges of the
Indian Supreme Court are highly conscious and prize their function of defin-
ing the Constitution and law as the final constitutional authority. The back-
ground for legal realism is thus stated by ex-Chief Justice Gajendragadkar in
the context of constitutional powers in India:

When the legislature enacts laws it purports to act within the jurisdiction
conferred on it by the Constitution. When the executive purports to
execute legislative or executive policies it also purports to act within the
jurisdiction conferred on it by the Constitution. Similarly, when the
judges examine the validity or the constitutionality of legislative or execu-
tive actions they are also discharging the function prescribed for them
by the Constitution and are exercising jurisdiction conferred on them in
that behalf. If the legislative enactment or the executive action has ex-
ceeded the jurisdiction prescribed by the Constitution, or attempts to in-
vade the citizen's fundamental rights in a manner not justified by the
relevant provisions of the Constitution the judiciary is required to step in
and protect the citizen's fundamental rights and call upon the legislature
or the executive to act within its sphere according to the provisions of the
Constitution. 89

Legal realism depends upon judicial independence

Another essential condition along with judicial powers of review for legal
realism is independence of judiciary. Broadly, it involves two inter-related

87. (1610)12 Co. Rep. 74.

88. A.I.R. 1963 S.C. 1295.
89. Gajendragadkar, Law, Liberty and Social Justice 10 (1965) (emphasis added). © The Indian Law Institute

requirements. First, freedom from political intimidation or pressure from

other organs of the government, and secondly, establishment of talented or
non-packed court.
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 Stuart Kings in seventeenth cen-
tury often felt piqued by the attitude of judiciary in their political struggle
against Parliament. Chief Justice Coke was dismissed by James I after he
refused to cooperate with the wishes of the King in the case of Commen-
dum.Q0 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 suspen-
ding powers of the King.91 The issues which led to such affront to the judici-
ary were consitutional and centred around the relative powers of the King
and Parliament. After the Glorious Revolution, Parliament obtained upper
hand over the Kingship, by reserving to itself the exclusive powers of legis-
lation.92 The Act of Settlement of 1701 reduced the Kingship to almost a
titular status and rewarded the judiciary by constitutionally providing for
its independence. Since then the English judiciary has not examined the
limits of law making power of Parliament or merits of enactments, though
in all other matters it adheres to the realist working principle, 'the law (or
the Constitution) is what the courts say it is'. A conflict between the judiciary
and Parliament in England is also ruled out by the constitutional position of
Parliament by which it is both supreme constituent and law making autho-
rity at the same time and performs the two functions by enacting laws by
simple majority. Therefore, the Cokian doctrine or 'due process' proposition
cannot be effective against Parliament of England. Further, the Constitu-
tion of England being unitary, "there is no possibility of the judges being
called upon to decide the disputes between the central Parliament and other
bodies within the state".93
In the United States, the independence of judiciary was not achieved by
any evolutionary process but as an inheritance from the past legal system,
and it is part of the Constitution from the beginning. There could be no
conflict as such between the Supreme Court and the Congress or President
for about a century because laissez-faire was accepted by all Americans as a
political philosophy. Moreover, in this period, legislative hegemony remained

90. (1616) Hobart 140; Trevelyan, England under Stuarts at 99-100 After this the
judges became subservient to the wishes of the King for a time.
91. U.N. Gupta, supra note 27; M.P. Jain, supra note 27 at 49.
92. Holdworth, supra note 79.104.
93. C F . Strong, MjJsrn Political Constitutions 260 (3rd ed. 1952). © The Indian Law Institute


an accepted feature.94 However, in the decade after the Civil War, the Sup-
reme Court began to protect the states against supposed interference by the
federal government in racial or civil rights matters, social and anti-mono-
polistic measures undertaken either under the 'commerce clause' or the Four-
teenth Amendment. The legal realism had successfully converted the Sup-
reme Court into a 'super legislature' by the end of nineteenth century in the
course of about thirty years.95
However, there was no institutional conflict by such emergence of the
Supreme Court. As the present century advanced the retrogressive legal
realism was often derided by Justice Holmes in his dissents.96 But, the
economic recession followed by the failure of stock exchange in 1929 made
it imperative for the government to adopt measures by regulating employ-
ment, and industries, etc., to save economic collapse. Howevfer, the court con-
tinued its activism against federal laws and in favour of private property inte-
rests and negatived such measures through a series of judgments. 97 Exaspe-
rated President Franklin D. Roosevelt confronted the Supreme Court with
his 'Court Packing Bill' of 1937.98 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 arte-
ries". 99 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.100 The 'new' trans-
formed court brought about a constitutional revolution by ignoring legal
realism of the past101 and it loosened the 'judicial censorship in economic
realm'. Beginningi n 1937 "In the next 18 years, twenty constitutional
decisions were overruled. And in the great majority of those instances, the
cases overruled had been decided within previous twenty years." 102 Now,

94. Pound, The Formative Era of American Law 39-40 (1938).

95. Ibid. See also Douglas, Studies in American and Indian Constitutional Law 338.
96. Eg., Lochner v. New York, 198 U.S. 45 (1905).
97. Kumaramangalam, Judicial Appointments; Choice of Judges in Democracies,
:h V, p. 51: Within six months, in ten major cases, eight Acts were invalidated.
98. Ibid. Corwin, supra note 75.
99. Roosevelt's Message, Senate Reports, 75th Congress.
100. Douglas, supra note 95.
101. In one of the major decisions given one year before the 'New Deal', United States
r. Butlery 297 U.S. 1(1935), Justice Roberts for the majority of six, while striking down the
Agricultural Adjustment Act, pronounced that:
When an Act of Congress is appropriately challenged in the Courts as not conform-
ing to the constitutional mandate the judicial branch of the Government has only one
duty—to lay the article of the Constitution which is invoked beside the statute which
is challenged and to decide whether the latter squares with the former.
For the ensuing controversies, see Alsop aad Catledge, The 168 Days,
102. Douglas, supra note 95 at 334. © The Indian Law Institute


again the legislative power overshadows the other branches of the govern-
ment including the judiciary.103
In India, the parliamentary government felt piqued by the legal realism
after the judgment in the Golak Nath10i case decided in 1966. "As a result
of the judgment in Golak Nath's case, the power of Parliament to amend
the Constitution itself was effectively stalled and, naturally, this democratic
process received a serious jolt".105 After an eventful period of about six
years for legal realism in India in which three or four major decisions
against the government's policy implementation orders or enactments were
given by the Supreme Court, came the judgment in Kesavananda BharatVs
case. Without hiding its displeasure, the government superseded three judges
in the appointment of the next Chief Justice on the retirement of Chief
Justice Sikri. The three superseded judges resigned and the controversy
which shook the nation ultimately cooled down to a non-personal and non-
constitutional academic question—how much is the rule of seniority in the
appointment of a judge of the Supreme Court as Chief Justice conducive to
the independence of the judiciary? It is interesting to note that the appoint-
ment of Chief Justice Ray was defended by Law Minister Gokhale by attack-
ing the legal realism of the three superseded judges:

They say that there are some basic features; this is a limitation not
written in the Constitution but introduced in the Constitution by judicial
say-so. That is exactly what we will not allow to happen. We do not
want that to happen in this country. We will be failing in our duty if
we do not take steps in this vital matter to see that we appoint indepen-
dent and strong Judges who will uphold the Constitution and not sit
over it, who will decide matters not in accordance with their political
outlook but in accordance with the outlook and the philosophy as envi-
saged in the Constitution itself, in accordance with the views accepted
by the community at large, by the country at large...106

Now, in India also, as at the time of 'New Deal' in the United States, the
moot question is—which duty is primary under the Constitution, the legal
realism of the judiciary or achievement of an egalitarian society by the present
parliamentary government ? In the United States, the ultimate packing of
the court settled the similar constitutional problem in favour of legislative
supremacy. The threads of inquiry in this regard are again pursued in the
next section of this paper.

103. Id. at 338.

104. (1967)2 S.C.R. 762.
105. Gajendragadkar, supra note 20 at 184.
106. Statement in Lok Sabha, 4th May 1974; also, Nayar, Supersession of Judges 11
(1973) (emphasis added). © The Indian Law Institute


Pattern of legal realism at work in India

When we find that legal realism is inherent in or is a part of the Indian
constitutional system the next question comes with regard to the pattern of
legal realism at work in India. Is it just confined to the solution of axiomatic
problems of a case, or is it much more than that, working in any particular
The inquiry may be prefaced by alluding to the acquired structural
dimensions and directions of legal realism in parallel legal systems.
In England, the courts have had a consistent policy of bringing preroga-
tive or executive powers within the control of law both in times of peace and
emergency.107 Judicial restraint has been perfectly exercised against the wisdom
of Parliament in the making of law. There is no attempt to examine the
'reasonableness' of any law made by Parliament. Though there is no con-
stitutional guarantee of personal freedoms of individual, yet the courts have
jealously protected them against executive action and even against parliament-
ary privileges exercised by a House singly.108 Of course, if a law is made on
parliamentary privileges by Parliament, it will not be examined by the courts
on the score that it violates established conventions or judge-made laws. At
the same time, the courts have maintained and both Parliament and the execu-
tive have recognised that enacted law or common law or constitutional law is
what the courts say it is. An undesirable interpretation of any of these by
the courts can be changed by an enactment or by a subsequent judgment
subject to stare decisis and the doctrine of precedent. With regard to the
changing socio-economic patterns in the society, the courts have been mind-
ful of their opportunities as well as responsibilities in the field of common law
which regulates a vital part of legal system in England. The judgments of
the courts, for example in the law of torts, 109 furnish a consistent shift from
laissez-faire base'of mid-nineteenth century to the protection of individual-in-
society. In fact, the logical plenitude aspect of common law110 has given
enough scope for satisfying the creative instincts of the judges. Without criti-
cising the wisdom of Parliament, the judges are able to give their own colour
to the interpretation of enacted or common law so much so that often juris-
prudential quest, if judges do make law, is an interesting subject in the United
In the United States, the problems of federal jurisdiction of civil rights
and interpretation of 'open texture' in the Constitution have afforded ample
groundwork for legal realism. It has been observed in the preceding section of
this paper that till about the seventies of the last century legislative supremacy
Was the accepted feature of American constitutionalism, thereafter till 1937

107. R. P.V. Heuston, Essays in Constitutional Law, Ch. 3.

108. Id, ch. 4.
109. UN. Gupta, 'Liability in Law of Toft', A.T.R. 1958 Jour. 6; P* Reynold, Tte
Judge as Lawmaker.
110. Paton, supra note 8 at 150, © The Indian Law Institute

legal realism protecting laissez-faire economy successfully flourished, and now

again a period of legislative hegemony has become established.111 The result
of this position is that the federal government is now in a position to control
industries, industrial relations and price-line for 1he benefit of working
class and the people. It is also in a position to legislate and implement social
security and welfare schemes. However, the judicial activism has gradually
extended the protections to the people in the field of personal liberty.112
In India, the span of twenty-five years or so of judicial activism shows
two distinguishable epochs. First, the period of first sixteen years ending
with the retirement of Chief Justice Gajendragadkar or Chief Justice Sarkar
in 1966, in which without entering into any apparent institutional conflict the
Supreme Court extended the legal realism, 'the Constitution is what the
Court says it is', to all conceivable corners of the Constitution. Secondly, the
period beginning with the term of Chief Justice Subba Rao in which legal rea-
lism engaged itself in institutional conflict with Parliament by asserting a share
in constituent power which is necessary for amending the Constitution.

In the first period, the Supreme Court had performed a highly functional
role of giving definitive judgments on constitutional interpretation. Almost
every part, nooks and corners so as to say, of the Constitution had come be-
fore the judiciary and it was trusted as the ultimate authority in this direction,
Some features are remarkable. First, while protecting the freedom of indivir
dual, the Supreme Court has made significant inroads in legislative or execu-
tive activity in favour of its own powers of judicial activism, with reference
to some particular provisions of the Constitution. Such interpretations could
have been avoided in the past and can also be avoided by the Supreme Court
in future by overruling past decisions. No doubt, the people have obtained
instant relief from such judgments of the Supreme Court but the baneful re-
sult of such interpretations is that people have not developed the habit of
seeking political remedy against bad laws by influencing the political or parlia-
mentary system.113 They run to the judiciary and public opinion is helpless
once the law is decided on legal grounds. Many examples of such situations
can be given. There is the simple case of article 14 of the Constitution. The
Supreme Court has held that the making of classifications is not opposed to
the right to equality under article 14 provided that they are reasonable. But the
courts are to be the final judge of the reasonableness over and above the legis-
latures.113'1 In article 31(2) the Supreme Court is continually intruding into the
legislative responsibility for adequacy of compensation. Examples of judicial

111. Pound, supra note 94; Douglas, supra note 95.

112. U.N. Gupta, supra note 27 at 50-52; Gideon v. Wainwright, ill U.S. 335 (1963);
Escdbedo v. Illinois, 378 U.S. 478 (1964); Apthekar V. Secretary of State, 378 U.S. 500 (1964).
113* This weakens the democratic process in India: U.N, Gupta, Constitutional
Paramountcy of Fundamental Rights; Methods of Enforcement', (1969) I S.C.J. 43 at 47-48.
113a. See supra note 25* © The Indian Law Institute


occupation of legislative-cum-executive mandate can also be found in its inter-

pretation of limits of reservation in article 15 (4) and article 16 (4),1U and,
the doctrine of pleasure under articles 310 and 311 with reference to the 'right
to continue in service'.115 In all these circumstances, the judicial activism is
just there ostensibly basing itself on immaturity of politics in India and abse-
nce of organised political opposition. But the bright side of the thing is that
the individual felt better protected by the judicial activism.
Secondly, in this first period, the judiciary has performed with equanimity
the delicate task of harmonizing the exercise of powers and functions by diffe-
rent constitutional authorities, that is exercise of jurisdictions by Parliament
and state legislatures,116 or by legislature and the executive117 or by one House
of legislature and the judiciary,118 or even by different wings of the execu-
tive.119 The balancing of power among different organs of the government
done by the judiciary through its powers of review has been a highly construc-
tive role on its part.
Thirdly, the judiciary has been relied upon by the framers of the Consti-
tution for protection and enforcement of the fundamental rights and other
constitutional rights of the individuals.120 In this sphere, defining the scope
of fundamental rights with reference to the powers of the government has not
been a very pleasant task though the Supreme Court rightly takes pride in
performing this duty. For example, the courts had to deal with the cases of
detention of political leaders many of whom had been well known members
of legislatures and leading political leaders. Besides, courting arrest by defying
prohibitory laws has been a political weapon inherent in Indian politics,121
and otherwise also, the government had arrested such persons under preven-
tive detention laws.122 In two cases dealing with the detention of the late
Ram Manohar Lohia, the Socialist leader, the government was found to be in

114. The Supreme Court emperically held that reservations up to fifth per cent in
favour of backward classes will be considered as justifiable; M.R. Bataji v. State of Mysore^
A.I.R. 1963 S.C. 649.
115. Moti Ram v. N.E. Frontier Rly., A.I.R. 1964 S.C. 600; P. K. Tripathi observes;
"In fact, the enunciation in Moti Ram of the'right to continue in service', though con-
trary to the entire body and trend of precedents and without support from the relevant
constitutional provisions . ..." Mr. Justice Gajendragadkar and Constitutional Interpreta*
tion, 8 JA.L.I. 479 at 519 (1966 emphasis added;.
116. State of West Bengal v. Union of India, A.I.R 1963 S.C. 1241.
117. K. Subba Rao, Some Constitutional Problems 61-62.
118. In re Keshav Singh, A.I.R. i965 S.C, 745.
119. S.N. Jain, 'Legality of Administrative Directions, 8 JJ.L.I. 349 at 351 (\966\
120. Gajendragadkar, supra note 89 at 9.
121. The judgment of Desai C.J. of the Allahabad High Court in Ram Manohar
Lohia v. The Supdt. Central Prison, A.I.R. 1955 All. 193 affirmed by the Supreme Court*
A.I.R. 1960 S.C. 633.
122. Gopalan\. Madras, supra note 61; Shtbban Lai Saksena v. The State of U.P.*
supra note 58; Ram Manohar Lohia v. State of Bihar, supra note 58; Ananda Nambiar v*
Qoyt. of Madras, AJ.R. 1966 S.C 657, © The Indian Law Institute


the wrong and the laws as well as the manner of exercise of power suffered
severe criticism from the courts.123 In the matter of protecting the property
rights of the people, judicial activism has been on the side of the individuals
being deprived of their property,124 so much so that the judiciary has been
regarded to be an obstacle in the socio-economic development of the country.125
The government amended the fundamental rights dealing with property three
times in the first period leading to pronounced animosity between Parliament
and the court.126
Fourthly, in the first period, the Supreme Court has rarely denied its own
power of review. In the United States, the Supreme Court does not entertain
generalities or 'political questions'. The Indian Supreme Court has not refused
to consider any matter on such principles. On the other hand it has been
of the view127 that if power is exercised by any constitutional authority, what-
ever may be its nature, the court can examine its vires or scope. The result
is that the legal realism reaches every part of the Constitution. In Sankari
Prasad v. Union of India,128 the Supreme Court could have developed a doc-
trine that it would not adjudge political questions and to examine the consti-
tutionality of the Constitution is an ultra-constitutional or a political question
which transcends its function or that! it should be decided by the peoples'
verdict. The Constitution and more so its amendments129 are political docu-
ments first. The Supreme Court can interpret the Constitution but cannot
enagage itself to judge the choice which politicians make. By the judgment in
the Sankari Prasad case the Supreme Court has entered into a highly sensi-
tive field of power politics, a sort of bulls arena, in which other countries
have witnessed bloodshed, revolutions and counter-revolutions. As we
know, this judicial power of examining the constitutionality of amended
portions of the Constitution paved the way to subsequent judicial activism
in this direction130 and the supersession of the judges. In some constitutional
matters, the Supreme Court has no doubt refused to review the exercise
of powers. It made an adjustment between its own powers under
article 32(2) in the matter of enforcement of fundamental rights and the
exercise of powers by the President under article 359 during emergency.131
Similarly, it adjusted with the High Courts by refusing to grant relief

123. See, supra notes 121 and 122.

124. The notable cases in this context are: State of W.B. v. Bela Banerji, (1964)
S.C.R. 558; State of W.B. v. Subodh Gopal Bose, (1954) S.C.R. 587; Saghir Ahmed v. Union
of India, (1955) I S.C.R, 707; Kochuni v. State of Madras, supra note 65; Karimbil\. State of
Kerala, A.I.R. 1962 S.C. 723.
, 125. U.N, Gupta, supra note 13.
126. Seervai, supra note 31 at 1106-1107.
127. See the Privy Purse case, supra note 46.
128. (1952)S,C.R. 89.
129* On 'Amendment of the Constitution and the Constitution4; see P.K, Tripathi,
supra note 42 at 20, the para : "The learned chief. the amendment.
130. That, is, the Sajjan Singh case, the Golakhath case and the Kesavananda Bharati
131. Makhan Singh v. State of Punjab, A,I,R. 1964 S.C 381, © The Indian Law Institute


under article 32 when the petitioner failed on the same issues under article
226 and the proper remedy in the latter circumstance was held to be an appeal
against the High Court judgment. 133
From the point of view of the realist jurisprudence the above discussion
is directed towards showing that the realist dictum 'the Constitution is what
courts say it is' has been highly effective in India in shaping the details of 'the
Constitution in action' in the first period outlined above. It is true that the
Supreme Court began133 with the typical positivist approach inherited from
Britsh jurisprudence and could not be a constructive partner in social enginee-
ring as jurists might have desired.134 But, in the first decade, the judgments
of the Supreme Court do show that it had performed the balancing of confli-
cting and overlapping constitutional powers or public and private interests in
a socialist economy. It should be remembered, however, that attitudes of so-
cial engineering, or of positivism or of libertinarianism are additional consi-
derations with which legal realism of a judge interprets the Constitution or
law. What is emphasised here is that the legal realism of the judges in the
first period conglomerated in one pattern, that is, to build an extensive consti-
tutional jurisdiction for the court.
The second period of legal realism, beginning with the term of Chief
Justice Subba Rao in 1966, clearly depicts it advancing into an institutional
conflict between the judiciary and Parliament. The twofold reasons for this
are not difficult to understand. First, the judiciary had made itself strong
and far-reaching as already discussed, and the judicial activism was respected
in Indian polity. The other reason, examined now, was that there was no
dearth of talent in the Supreme Court and packing if done at all had not been
effective135 but the political life in India and in Parliament had reached a lim-
ping stage after the demise of Nehru and Shastri.138 This gave a distinct edge
to the judkiary over Parliament and led to the judicial confidence by which
the Supreme Court negatived many measures regarded as vital by the govern-
It may be mentioned that most of the Indian political leaders in the early
post independence era had been eminent leading lawyers. They had achieved
independence for the country, had framed the Constitution and were the mem-
bers of the first Parliament. Certainly they had a feeling that they were "better

132. Res-judicata applies to such case; Daryao v. State of UP., (1962) 1 S.CR. 574*
133. McWhinney, supra note 4 at 130.
134. G.S, Sharma, Horizons of Indian Legal Phiiososhy, 2 Jaipur LJ. 180 (1962),
135. President Truman on his experiecne in the matter of packing of court obsef*
ved : ".. packing of the Supreme Court can't be done, bacause I have tried it and it won't
work.... Whenever you put a man on the Supreme Court he ceases to be your friend. I am
sure of that". Lecture at Columbia University, April 29, 1959; cited in Abraham, supra
note 1 at 76.
136. Prime Minister Nehru died in May 1964 and Prime Minister Shastri died in
early 1966 at Tashkant, © The Indian Law Institute


qualified than the judges to interpret what they said in the Constitution". 137
In the Constituent Assembly the judiciary had received a low-key recognition
Prime Minister Nehru thought of it as an interfering body but which could be
set right by packing whenever it may become necessary.138 Now, for fifteen
years (1950-1964) the par-excellence of Prime Minister Nehru had been over-
whelming for the politicians as well as for the judges in India. He represen-
ted both Parliament and the people. The basic judicial assertion in the majo-
rity judgment in the Golak Nath case that the peoples and not Parliament
were sovereign in India would have been a futile academic polemics in the
first period because in the ultimate analysis Prime Minister Nehru prevailed
both in Parliament and with the people. Any interpretation of the Con-
stitution not approved by the political leaders brought about prompt constitu-
tional amendments almost at the heels of the judgment and even before.139
It was only after the political leadership withered to a second rate proposition
that the judiciary cpuld think of doing more than glorifying legal realism.
That is, it was thought that the Supreme Court had to step in and give stabili-
ty to the Constitution which future Parliament might not be in a position to
provide. The main architects of this philosophy for the Supreme Court were
Chief Justices Subba Rao and Hidayatullah 140 .
At a Seminar on the 'Functioning of Democracy in India' in 1966 before
the Golak Nath case, Justice Hidayatullah, as he then was, observed that
politics was then as before, a 'business of second best men' with limited capa-
bilities. He obseived:
They are able to keep the ship of the State afloat but they are unable
to steer it straight to the destination. In their desire to appear revolu-
tionary and dynamic, they break with tradition, little thinking that
novel political and social theories are sucessful only if they work
with tradition and not against them141
Against this background he said "lawyers must come to the help of

137. P.K. Irani, The Courts and Legislatures in India, 14 IntU & Comp LQ 950
at 959-60(1965).
138. Constituent Assembly Debates 9 1195-96 (1949).
139. E.g , First Amendment with regard to art. 31 did not Wait for the Supreme
Court Judgment in State of Bdtar v. Kame&hwar Singh, A.I.R. 1952 S.C. 252.
140. Chief Justice Subba Rao delivered the majority judgments in Kochuni v.
State of Madras, supra note 65, Vajravelu v. Special Deputy Collector, A.I.R. 1965 S.C 1017
and the Golak Narh case. He also delivered dissenting opinions in favour of liberties of the
people in Ujjam Bai v. State of UP., A.I.R. 1962 S.C. 1621, Kharak Singh v. State of U.P.,
supra note 88 at 1306 and Makhan Singh y. State of Punjab, supra note 131.
In his lectures 'Some Constitutional Problems, supra note 23, he outlines the role of
law in Indian society (p. 197 etc.) and as such the function of the courts in this process (p.
205). The title of one of his lectures, The Judicial Salvage of Peoples Freedom*, shows
his conception of Parliament as continuously eroding the peoples liberties. In March
1968, Justice Hidayatullah became Chief Justice. He has dissented in the Sajjan Singh case
sided with the majority in the Golak Nath case and delivered the majority judgment in the
Privy Purse case.
141. Hidayatullah, supra note 24 at 45-46, © The Indian Law Institute

democracy before it fails". 142 H e also dwelt upon the economic philosophy
which the state should follow without sacrificing the rule of law, what "we
really need is a mixture of laissez-faire and welfare through a kind of cautious
empirical adjustment of our political institutions." 1 4 3 The new philosophy also
find place in the majority judgment of Chief Justice Subba R a o in the Goalk
Nath case. Analysing the modern progressive concept of law embodied in
the directive principles of state policy to bring about a social order in which
justice, social and economic shall reach all the institutions of national life,
and in which an egalitarian society shall be worked out for involving n o con-
centration of wealth but plenty with equal oppor tunity and social justice for
all, Chief Justice Subba R a o observed:

But, having regard to the past history of our country, it {the Consti-
tution) could not implicitly believe the representatives of the people,
for uncontrolled and unrestricted power might lead to an authorita-
rian State. It (the Constitution), therefore, preserves the natural
rights against the State encroachment and constitutes the higher
judiciary of the State as the sentinel of the said rights and the
balancing wheel between the rights, subject to social control. 1 4 4

A study of the thinking of the t w o Chief Justices reveals the Supreme

Court in a very wide perspective, as a 'sentinel' over legislatures rather than
as interpreter of laws and the Constitution. As a part of such new duty, in the
Golak Nath case the Supreme Court prohibited further amendments of the
fundamental rights which may curtail these, but if the Supreme Court was con-
vinced that the amendment was increasing the fundamental rights then only it
could be constitutional amendment of the Constitution. Thus a new restriction
on the powers of Parliament and a new power or role for judicial activism
was founded by renovating the interpretations of article 368 of the Constitu-
tion. 145

The above process has been carried far ahead in the Kesavananda Bharati
case. N o w judicial activism can deal with any amendment of the Constitution
on the score that the 'basic features' of the Constitution have been violated.
This innovated intrusion of the judiciary in article 368 is notwithstanding
the pronouncement in amended article 363 to the effect that Parliament
has constituent power and that the President can only give his assent
to the amendments of the Constitution. As mentioned in the beginning of this
paper 148 the decision puts legal realism much beyond the 'high-water mark'
reached by it in the United States.

142 Id. at 46.

143. Id. at 47.
144. Supta note 53 at 1655.
145. The Sajjan Singh case was overruled,
146. Supra p* 213. © The Indian Law Institute

While concluding it may be observed that legal realism is desirable so

long as it does not involve any conflict with political processes in the country.
The judiciary should examine, interpret and pronounce on any matter of law
or the Constitution. If the government does not approve of it, then with the
support of Parliament that interpretation of law or the Constitution should be
capable of change.147 But, now when judicial activism has chosen to partici-
pate as sentinel in the amending process, of the Constitution, in fact, there is
a claim by it for participation in the constituent power which has always been
a game of high politics. There is no sanction above the grundnorm, and at
the apex it is a game of politics only. And nobody can always keep winning
a game. Packing of court is a recognised mild anti-reaction when politician
senses considerations other than law in the judgments. After the judgment in
the Golak Nath case, both Setalved and Seervai could sense the consequences
of too much of legal realism. Setalvad observed:

It may be well be that Chief Justice Subba Rao and his majority col-
leagues, in trying to preserve unabridged the rights in part III for all
time by a political judgment, have paved the way for political moves
which may result in packing the Supreme Court, so as to alter its

Similalry, Seervai had commented:

Subba Rao, C J., may see no distinction between the erosion of

fundamental rights by constitutional amendments and a violent
revolution, and so far as those rights are concerned, there may be
something to be said for his view. But Pandit Jawahar Lai Nehru
and the eminent men who framed the Constitution did not contem-
plate a violent overthrow of it, for they had not forgotten the events
of 1947 when law and order broke down under the orgy of violence,
and they believed...that s the whole Constitution is a creature of
Parliament'. It would be a strange irony if judgments which seek to
preserve cherished human rights not only fail to do so, but lead to
the destruction of a cherished judicial system.149

147. Gajendragadkar, supra note 20 at 183*

148. Setalvad, supra note 50 at 588.
149. Seervai, supra note 31 at 1119, © The Indian Law Institute