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Realism And Its Relevance In Indian Law

Realism or the Realist Theory of Law is a natural way of analysing law. In this reference, natural way refers to actualities. A Realist looks at the meaning of law from the eyes of the society and how it is implemented. According to a Realist, law cannot be understood in isolation. It needs to blended with the societal implementation so as to understand its essence in entirety. Realism is a concept which focuses on the practical application and implementation of law instead of simply focusing on the moral illusions.

Realist school of Law considers law to be emerging from judicial decisions. Judgments or judicial decisions are where the actual social relations are dealt with in the court and a solution is arrived at. In the Realist school of jurisprudence, the law is studied in its real workings, rejecting the usual concept that it is a collection of rules or principles.[1]

Oliver Wendell Holmes is considered as the Father of Realist School of Law. Justice Holmes considered law as a means to protect and promote the collective group interests.[2]

Realist School of Jurisprudence is further classified into American and Scandinavian Realism. American Realism is where the realists based their meaning of law based on judgments as well as personal experiences whereas in Scandinavian Realism, the scholars focus only on personal experiences. John Gray is considered as the most noted realist of the American Realism school.

Generally, laws are framed by the legislature and Courts act as mere agents in implementing these laws. However, as per the Realist School of Jurisprudence, the Courts perform a role much greater than a mere agent. The Courts act as the deciding factors in certain cases which form the basis for future decisions and with this the Courts can frame laws distinct from the legislature.

Realism has been a breakthrough in the Indian Judiciary through several remarkable judicial decisions. Judicial Independence is an important factor in order to determine that the realists thought exists in Indian Judiciary and hence, encourages the formation of new laws on the basis of judicial decisions. the Supreme Court used the influence from US and UK courts and entered into a totally different field of political power which could be seen in the judgment of Shankari Prasad v. Union of India[3] where the Court held that it can take up any matter exercised by any Constitutional authority.[4]

The effect of Realism was seen here as the need for having a "Basic Structure Doctrine" based on sociological requirements. The Basic Structure Doctrine has not been defined anywhere in the legislature. It is the independence of judiciary which allowed the Courts to establish this doctrine which came out to be one of the most remarkable findings of the Indian judiciary.

Hidayatullah, J., in his book "A Judge's Miscellany" had stated as follows:
"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 tendencies 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."[5]

The above observation made by Hidayatullah, J. brings out a very important concept about Realism into picture. The several distinct approached or methods of looking into a particular legal problem also add to the solution-finding process which further help in developing the judicial decision from a sociological point of view.

Another remarkable example of the application of Realism in Indian Judicial decision is the case of Navtej Singh Johar v. Union of India[6]. In this landmark case, the primary issue was whether Section 377 of the Indian Penal Code, 1860 was constitutionally validity with regards to the consensual sexual conduct of adults of the same sex in private.

Although Section 377 of the Indian Penal Code considered it to be unnatural and termed it as an offence, the judicial decision changed it and held Section 377 to be unconstitutional. Such was done on the basis of giving preference to Right to Privacy over Section 377 taking the needs of the society into consideration.

When we talk about Right to Privacy, it is necessary to understand that even this right is not inscribed in literal terms in any legislature. It was made a fundamental right in the case of Justice K.S. Puttaswamy v. Union of India[7] and hence depriving the LGBTQ community from availing this right would have amounted in gross violation of their fundamental rights and would also have amounted to an unconstitutional act.

It is the effect and the prevalence of the Realist School of Jurisprudence that encouraged the Judiciary to frame new laws considering the needs of the society. It is also the effect of Realism that encouraged the Apex Court to frame the "Doctrine of Golden Triangle" in the case of Maneka Gandhi v. Union of India[8]. The combined reading of Articles 14, 19 and 21 of the Indian Constitution was held as The Golden Triangle. It was because of this interpretation that Right to Travel was made a part of Article 21.

The court while delivering this landmark judgment changed the landscape of the Constitution by holding that though the phrase used in Article 21 is "procedure established by law" instead of "due process of law" however, the procedure must be free from arbitrariness and irrationality.[9]

Hence, it is depicted through such series of judicial decisions and statements made by judges that the Realist School of Jurisprudence has proven to be pretty effective in Indian Judiciary. If we were to strictly go by the codified law without allowing any form of inventiveness or judicial activism, the law framework in India would have remained stagnant and rigid leaving no space for amendments. This is how the pre-defined concepts of Jurisprudence still manage to play an extremely important role for the law enforcement agencies.

  2. A.K. Jain, Jurisprudence
  3. AIR 1951 SC 458
  5. U.N. Gupta, Legal Realism and Indian Constitutional Interpretations, Journal of Indian Law Institute [1975]
  6. WP (Crl.) No. 76/2016, order dated 12-07-2018
  7. (2017) 10 SCC 1
  8. 1978 AIR 597

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