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.
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
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
 where the Court held that it can
take up any matter exercised by any Constitutional authority.
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."
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. 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
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.
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.
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.
- A.K. Jain, Jurisprudence
- AIR 1951 SC 458
- U.N. Gupta, Legal Realism and Indian Constitutional Interpretations,
Journal of Indian Law Institute 
- WP (Crl.) No. 76/2016, order dated 12-07-2018
- (2017) 10 SCC 1
- 1978 AIR 597