Right to freedom of speech - Important features and Restrictions | Constitution of India

Q. Which different freedoms are included in right to freedom of speech? What restrictions are imposed on them? Discuss in detail with decided cases. [20 marks - 2022]

Right to Freedom of Speech and Expression

The Constitution of India vide its Article  19(1)(a) provides Freedom of Speech and Expression to the citizens of India. The Article states that all the citizens of India have a right to freedom of speech and expression. This article is a reflection of the Preamble of the Constitution of India- ‘where a solemn resolve is made to secure to all its citizen, their liberty of thought and expression’. This is not an absolute right. Article 19(2) of the Constitution of India put a few restrictions on the excercise of this right.

Main elements of freedom of Speech and Expression

1. This right is available to a citizen of India only.

2. The freedom of speech under Article 19(1)(a) includes the right to express one’s views and opinions on any issue. This can be done by words of mouth, by writing, by printing, through pictures or through a movie.

3. This is not an absolute right. The Government of India is allowed to frame laws which can impose reasonable restrictions in the cases which are involved with the sovereignty and integrity of India or the security of the state, or friendly relations with foreign nations, even public order, decency and morality and contempt of court, defamation and incitement to an offence.

Restrictions on the right to freedom of speech and expression

The clause (2) of Article 19 of the Constitution of India imposes certain restrictions on free speech under the following grounds:

• Security of the State: Reasonable restrictions can be imposed on freedom of speech where security of the nation is concerned. Case reference: People’s Union for Civil Liberties v. Union of India (AIR 1997 SC 568)
• Friendly relations with foreign States: The Government of India is authorised to curb the freedom of speech in the interest of maintaining friendly relation with foreign states. This  was added by the Constitution (First Amendment) Act of 1951. 
• Public order: This ground for the restriction was also added by the Constitution (First Amendment) Act, 1951 this was done in order to meet the situation arising from the Supreme Court’s decision in the case of  Romesh Thapar v. The State of Madras (AIR 1950 SC 124). According to the Supreme court of India, public order is very much different from law and order and security of the state.
• Decency and Morality: These are defined under the Sections 292 to 294 of the Indian Penal Code 1860 provides for the instances of restrictions on the freedom of speech and expression on the grounds of decency and morality, it then prohibits the sale or distribution or exhibition of obscene words.
• Contempt of court: The right to freedom of speech in no way allows a person to contempt the courts. The expression Contempt of Court has been defined under Section 2 of the Contempt of Courts Act, 1971. The term ‘contempt of court’ relates to civil contempt or criminal contempt under the Act.
• Defamation: The clause (2) of Article 19 of the Constitution of India prevents any individual from making any statement that injures the reputation of another in the eyes of society.
• Incitement to an offence: This is another ground which was also added by the Constitution (First Amendment) Act of 1951. The Constitution also prohibits an individual from making any statement which incites or encourages other people to commit an offence.
• Sovereignty and integrity of India: This ground was added subsequently by the Constitution (Sixteenth Amendment) Act of 1963. This is only aimed to prohibit or restrict anyone from making statements that directly challenge the integrity and sovereignty of the country.

Right to Equality before Law | Constitution of India

Q. Discuss with illustrations the right of equality before law. [20 marks - 2022]

Right to Equality

Equality before the law (Article 14)

Article 14 treats all people the same in the eyes of the law. This Article states and commands the State not to deny to any person ‘equality before the law’ and ‘equal protection of the laws’.

This provision states that all citizens will be treated equally before the law and avoids any kind of discrimination. 

The law of the country protects everybody equally.

Under the same circumstances, the law will treat people in the same manner.

Prohibition of discrimination (Article 15)

This article prohibits discrimination in any manner. This article secures the citizens from every sort of discrimination by the State, on the grounds of religion, race, caste, sex or place of birth or of them. 

No citizen shall, on grounds only of race, religion, caste, place of birth, sex or any of them, be subject to any liability, disability, restriction or condition with respect to:

Access to public places

Use of tanks, wells, ghats, etc. that are maintained by the State or that are meant for the general public

The article also mentions that special provisions can be made for women, children and the backward classes notwithstanding this article.

Equality of opportunity in matters of public employment (Article 16)

Article 16 provides equal employment opportunities in State service for all citizens.

No citizen shall be discriminated against in matters of public employment or appointment on the grounds of race, religion, caste, sex, place of birth, descent or residence.

Exceptions to this can be made for providing special provisions for the backward classes.

Abolition of untouchability (Article 17)

Article 17 prohibits the practice of untouchability.

Untouchability is abolished in all forms.

Any disability arising out of untouchability is made an offence.

Abolition of titles (Article 18)

Article 18 abolishes titles.

The State shall not confer any titles except those which are academic or military titles.

The article also prohibits citizens of India from accepting any titles from a foreign State.

The article abolishes the titles that were awarded by the British Empire such as Rai Bahadur, Khan Bahadur, etc.

Doctrine of Severability | Constitution of India

The Doctrine of Severability

The Doctrine of Severability means that when some particular provision of a statute is violative of fundamental rights, but that provision is severable from the rest of the statute, only that provision will be declared void by the Court and not the entire statute. The doctrine of severability is also called doctrine of separability.

Article 13 of Constitution of India states:

All laws enforce in India, before the commencement of Constitution of India, in so far as they are inconsistent with the provisions of fundamental rights shall to the extent of that inconsistency be void.

When a particular part of a statute try to curb the fundamental rights of the Constitution of India, the very part of the statute/Act would be declared void provided that, the unconstitutional part of the statute/law is separable. But, if the unconstitutional part of the statute is inseparable, then the entire statue would be held void. Hence, severability finds its significant place while invalidating an unconstitutional portion of a statute.

Landmark Judgments

R.M.D.C. Vs. Union of India, the Supreme Court observed that:

If a part of a statute turns out to be void, that should not affect the validity of the rest of it. It is the true nature of the subject-matter of the legislation that is the determining factor, and while a classification made in the statute might go far to support a conclusion in favour of severability, the absence of it does not necessarily preclude it.

In A.K. Gopalan Vs. State of Madras, the Petitioner- a communist leader was detained under the Preventive Detention Act, 1950 and he challenged the preventive detention made on the ground that is infringement of his fundamental rights under Article 19 & 21 of Indian Constitution of India. The Supreme Court held that only the unconstitutional provision of the challenged Act will be void according the Doctrine of Severability. 

State of Bombay & Anr. Vs. F. N. Balsar, the unconstitutional portions of the Bombay Prohibition Act were declared void by the Supreme Court as the portion of invalid was separable from the rest of the act.

 

Minerva Mills & Ors. Vs. Union of India & Ors., The Supreme Court struck down the Section 4 & 55 of the 42nd Amendment Act (1976) as it was found ultra vires beyond the amending power of the Parliament. It declares the rest of the Act as valid.

Article 21 and Environment protection | Constitution of India

Q. "Environment protection structure is the result of extended interpretation of Article 21." Discuss. [20 marks - 2022]

Article 21 and Environment protection

Article 21 of the Constitution of India grants right to life and personal liberty to every citizen of the country. This includes: 

• A decent standard of living
• A pollution-free environment
• The right to live with dignity
• The right to a good environment
• The right to livelihood

Article 21 further states that no person shall be deprived of their life or personal liberty except according to procedures established by law. The right to a clean and healthy environment is a fundamental right under Article 21. The right to a pollution-free environment is inherent in the right to life. 

The Supreme Court of India has held that pollution caused by polluting industries adversely affects the health and safety of people and should be closed down or moved out as being violative of Article 21. 

If there is any move that endangers or impairs the quality of life in derogation of laws, an action is maintainable by the affected person or persons or an interest group by way of public interest litigation under Articles 226 or 32

Uniform Civil Code : The Constitution of India

Uniform Civil Code for the Citizens of India

The Constitution of India in its Article 44 in the Directive Principle to State Policy, states that “the State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”. This lays the seed for a uniform civil code for the citizens of the entire nation. The Uniform Civil Code aims to establish a uniform legal framework for all citizens, regardless of their religion. 

Doctrine of Eclipse | Constitution of India

Doctrine of Eclipse

The doctrine of eclipse states that any law that violates fundamental rights is not invalid or void ab-initio. It is only eclipsed and hence non-enforceable by the law. 

It may come out of the shadow whenever the fundamental right which was violated by the law is struck down, the law becomes active again. 

Elements of Doctrine of Eclipse

• It should be Pre-constitutional law
• Must be in conflict with fundamental right
• the law doesn't become a dead letter but only inoperative
• if there is an amendment to the Fundamental Right in future it will automatically make the impugned law operative.

Bhikaji v State of MP AIR 1955:

The MP Government passed an Act in the year 1950 for nationalizing the motor transport and the Act was passed before the commencement of the constitution. The statute was challenged by the petitioner under Article 19(1)(g) of the constitution. The Central Government amended the Act that enabling the state to nationalize the motor transport. The apex court held that the statute of Madhya Pradesh State of nationalizing the motor transport was cured by the 4th Amendment Act 1955 and therefore the Doctrine of Eclipse has been applied and such Act is valid.

Fundamental Rights | Constitution of India

Q. Can fundamental rights be amended? Answer with the help of decided cases. [4 marks - 2019]

Q. Supreme Court is a watchful sentinel of the fundamental rights'. Explain this statement. [10 marks - 2018]

Fundamental Rights

Fundamental rights are the basic human rights enshrined in the Constitution of India which are guaranteed to all citizens. These right are available to all citizens irrespective of race, religion, gender, etc. These rights are enforceable by the law.

The Constitution of India ensures the below six fundamental rights through Article 12 to 35:.

(i) Right to Equality (Article 14-18)

(ii) Right to Freedom (Article 19-22)

(iii) Right against Exploitation (Article 23-24)

(iv) Right to Freedom of Religion (Article 25-28)

(v) Cultural and Educational Rights (Article 29-30)

(vi) Right to Constitutional Remedies (Article 32)

Amendment of Fundamental Rights

Fundamental rights can be amended by a constitutional amendment act passed by two third majority (special majority) of the Parliament of India. The amendment act should ensure that it is not violating Article 13(2) by taking away the rights.

The question is whether the fundamental rights are amendable has come up to the Supreme Court from time to time and the court had different views on the subject.

In the Sajjan Singh case of 1965, the Supreme Court held that the Parliament can amend any part of the Constitution including fundamental rights.

But in 1967, the SC reversed its stance taken earlier when in the verdict of the Golaknath case, it said that the fundamental rights cannot be amended.

In Keshavananda Bharati case of 1973, a landmark judgement the SC held that although no part of the Constitution, including Fundamental Rights, was beyond the Parliament’s amending power, the “basic structure of the Constitution could not be abrogated even by a constitutional amendment.”

Cooperative Federalism | Constitution of India

Q. Short note on Cooperative Federalism [4 marks - 2019]

Cooperative Federalism

The Constitution of India provides for an arrangement of governance where there is a combination of cooperation and interdependence between the Centre and the States to ensure smooth governance of the country. This arrangement is called Cooperative Federalism.

The constitution gives independence to the states on the matters of the State. The union government has no rights to interfere in those matters. Similarly the matters in which the Parliament is given power are binding on the state. There are common matters where the state and the center take common decision.

Judicial Review | Constitution of India

Q. Short note on Judicial Review [4 marks - 2018]

Judicial Review in India

Judicial review is the power of the Judiciary to review the actions of legislative and executive branches and ensure constitutional supremacy. In a setup of separation of power it is essential to maintain checks and balances.

The Constitution of India explicitly provides for judicial review through Articles 13, 32, 131 through 136, 143, 226 and 246. 

Basic Structure Doctrine | Constitution of India

Q. Doctrine of Basic structure. [4 marks - 2018]

Basic Structure Doctrine

The doctrine of Basic Structure emerged on 24th April 1973 in the Keshavananda Bharati case. By this doctrine the Judiciary restricts the amending powers of the Parliament so that the ‘Basic Structure of the Constitution’ is not modified in the exercise of its ‘constituent power’ under Article 368 of the Indian constitution. 

The doctrine states that certain features of the constitution of India, amendment of which will change the basic structure of the constitution cannot be amended by the Parliament. The word "Basic Structure" is not mentioned in the constitution but was recognized for the first time in the Kesavananda Bharati case of 1973.

Article 25: Restriction on Religious Freedom

Q. What restrictions have been placed upon individual religious freedom? [4 marks - 2021]

Restrictions on Religious Freedom

Article 25 provides religious freedom along with the following restrictions.

1. These rights are subject to public order, morality, health and other provisions relating to fundamental rights.

2. The State is permitted to regulate or restrict any economic, financial, political or other secular activity associated with religious practice.

Ex Post Facto Laws | Constitution of India

Q. Short note on Ex post facto laws. [4 marks -  2019, 2018]

Ex Post Fact Laws

The Latin term ex post facto means “from a thing done afterward.” In a legal context, ex post facto is most typically used to refer to a criminal statute that punishes actions retroactively, thereby criminalizing conduct that was legal when originally performed.

Article 20 clause (1) of the Constitution of India, states that a person can neither be punished for any offence which was at the time of commission not charged as an offence nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. Hence termed as  Ex-Post facto Law.

Double Jeopardy | Constitution of India

Q. What is the doctrine of double jeopardy? Explain. [10 marks - 2022]

Q. What do you mean by the doctrine of 'Double Jeopardy'? [4 marks - 2021]

Q. Write short note on 'Double Jeopardy'? [4 marks - 2018]

Double Jeopardy

Double jeopardy is a protection against multiple forms of prosecution. It aims at protecting a person to be tried twice for the same offence based on the same conduct.

The doctrine of double jeopardy is a rule that states that no one should be put twice in peril for the same offence.  The Constitution of India in article 20(2) states “No individual shall be arrested and punished for the same offence more than once”. The doctrine evolved from the United States Constitution. 

The doctrine existed even before the Constitution came into being, in the General Clauses Act of 1897, Sections 300 and 26 of the Criminal Procedure Code of 1973.

Fundamental Duties | Constitution of India

Q. Write a short note on 'Fundamental Duties'. [10 marks - 2022]

Q. Write a short note on 'Fundamental Duties of the Citizen'. [4 marks - 2018]

Fundamental Duties of the Citizens of India

The Fundamental Duties were inserted in the Constitution of India by the 42nd amendment. These are mentioned under Part 4(a) and Article 51(a) of the Constitution.

1. Abide by the Constitution and respect national flag & National Anthem

2. Follow ideals of the freedom struggle

3. Protect sovereignty & integrity of India

4. Defend the country and render national services when called upon

5. Developing the spirit of common brotherhood

6. Preserve composite culture of the country

7. Preserve natural environment

8. Develop scientific temper and humanity

9. Safeguard public property and avoid violence

10. Strive for excellence in all spheres of life.

11. Duty of all parents/guardians to send their children in the age group of 6-14 years to school.

Preamble to the Constitution of India

Q. "Preamble gives direction and purpose to the constitution." Describe. [10 marks - 2022]

The PREAMBLE of the Constitution of India

The ‘Preamble’ of the Constitution of India gives a brief introduction that sets out the guiding purpose and principles of the document. It gives direction and purpose to the constitution.

The preamble contains the following information:

(i) Source of the Constitution: It is indicated by the Preamble that the source of authority of the Constitution lies with the people of India.

(ii) Nature of Indian State: Preamble declares India to be a sovereign, socialist, secular and democratic republic.

(iii) Statement of its objectives: The objectives stated by the Preamble are to secure justice, liberty, equality to all citizens and promote fraternity to maintain unity and integrity of the nation.

(iv) Date of its adoption: The date is mentioned in the preamble when it was adopted i.e. November 26, 1949.

Preamble is an integral part of the Constitution

From time to time, the question has arisen whether the Preamble is part of the constitution or not. Supreme Court of India, in the Kesavananda Bharati vs. State of Kerala case, ruled that the preamble may be used to interpret ambiguous areas of the constitution where differing interpretations present themselves. 

In Union Government Vs LIC of India, 1995, the Supreme Court has once again held that Preamble is an integral part of the Constitution.

Right to Property | Constitution of India

Q. Write short note on Right to Property. [4 marks - 2022]

Right to Property

Until the 44th amendment of the constitution in 1978, the right to property, in India, was a fundamental right. Article 19 (1) (f) and Article 31 both, maintained that the right to property was a basic right.

In 44th amendment both Article 19 (1) (f) and Article 31 were abolished and Article 300-A (right to property act) was added to the Constitution. It states that “no person shall be deprived of his property except by authority of law”.

It gives authority to the government to acquire private property, if needed. The article gives the government the authority to seize someone else’s property for the benefit of the general welfare. 

Secularism and Secular State

Q. Write short note on Secular State.[4 marks - 2022]

Q. What do you mean by the term Secularism? [4 marks - 2021]

Secularism

Secularism is a principle of treating the subjects of the state equally irrespective of their religion. Secularism is most commonly thought of as the separation of religion from civil affairs of the state.

Secular State

A secular state is a state which officially does not adopt any religion. So effectively there is no state religion for a secular state. Secular state claims to treat all its citizens equally regardless of religion.

Parliamentary Form of Government | Constitution of India

Q. Parliamentary form of Government [4 marks - 2022]

Parliamentary form of Government

In a democratic setup, Parliamentary government is formed by the political party that obtains the peoples mandate. In this form of government the Parliament has all the authority. The majority party in the parliament, elects the Prime Minister. The party under the guidance of the Prime Minister selects the cabinet ministers and other ministers.

There are three distinct bodies of the Parliamentary system of Government:

1. The Legislative

The Legislative is the law-making body of the government. It frames laws and policies.

2. The Executive

The Executive body of the government implements the laws and regulations framed by the legislative body.

3. The Judiciary.

The Judiciary ensures justice to the citizens of India based on the framed laws of the country’s Constitution.

There is a distinct division of power among these three organs of the government. No organ can interfere in the working of the other organs.

Federal Constitution | The Constitution of India

Q. Federal Constitution [4 marks - 2022]

In a federal constitution, powers are divided between the center and the states. There is a clear distribution of legislative, executive, and financial powers. 

The Constitution of India establishes a federal system of government as it contains all the usual features of a federation, viz., dual administration, division of powers, written Constitution, supremacy of Constitution, rigidity of Constitution, independent judiciary and bicameralism.

Fundamental Law | The Constitution of India

Q. What do you understand by fundamental law? [4 marks - 2022]

Fundamental Law

Fundamental Laws are the laws that provide the basis upon which the state defines all other acts and laws. These are fundamental because the bodies defines the acts cannot touch upon the fundamental laws and change the at their whims.

In India, the Constitution of India is the fundamental law of the land. All other laws are defined and implemented following the provisions of the Constitution. Any law that does not confirms with the provisions of the constitution can be invalidated by the Supreme Court.

Jurisprudence: 'Formal science of positive law'

Q. Jurisprudence may be defined as 'Formal science of positive law'. Discuss. [20 marks - 2021]

Holland's definition of Jurisprudence

An English Jurist Sir Thomas Erskine Holland defines, Jurisprudence as, " Jurisprudence is the formal science of positive law'"  According to him jurisprudence should only concern itself with the basic principles of concepts underlying in any natural system of law. 

A "formal science" is an area of study that uses formal systems to generate knowledge such as in Mathematics and Computer Science. Similarly there is a formal science of law, material manifestations of whose fundamental principles are found in various systems of actual legal rules. 

Criticism: 

Many eminent jurists have criticised the definition of Holland that jurisprudence is the formal science of positive law. It is not free from defects. The question arises what is a formal science?   Holland himself explains that by the term 'formal' he means that jurisprudence concerns itself with human relations which are governed by the rules of law rather than the material rules themselves, for the latter are the subject of legal exposition, criticism or compilation rather than jurisprudence.

Jurisprudence is the science of civil laws

Q. 'Jurisprudence is the science of civil laws'. Comment. [10 marks - 2021]

Prominent jurists have defined jurisprudence as the science of civil laws.

Austin calls jurisprudence the "philosophy of positive laws". By positive law or positivism, he means the law made by a political superior to control the behavior of those who are under his authority. Therefore, the "positive law" used by Austin is identical to "civil law".

Salmond defines jurisprudence as the science of the first principles of civil law. He therefore emphasizes that jurisprudence deals with a particular type of law, for example. civil law or state law. Civil law is made up of rules applied by the courts in the administration of justice. 

Jurisprudence is concerned with law as it is

Q.  'Jurisprudence is concerned with law as it is' comment. [2021 - 4 marks]

Jurisprudence is the philosophy and theory of law. It is concerned primarily with what the law is and what it ought to be. This includes questions of how individual and social relations are understood in legal terms, and of the values in and of law. Work that is counted as jurisprudence is mostly philosophical, but it includes work that also belongs to other disciplines, such as sociology, history, politics and economics.

Relation between Jurisprudence and Political Science

 Q. Relation between Jurisprudence and Political Science [2019 - 4 marks]

Jurisprudence and Political Science

Political science and jurisprudence have a close relationship. Laws are made by the legislators for the people. And the people elect the legislators. 

The Jurisprudence and Political Science often overlap as they both study the organization and functioning of society and the state. The state is a political entity responsible for creating and enforcing laws, maintaining order, protecting individual rights, and providing public goods and services. Jurisprudence concentrates on law and legal systems, while political science examines the political system and government. Overall, both fields work towards the betterment of society and the well-being of its people through governance and regulation.

Law and Morality : Distinctions and Relations - a comparative study

Q. Discuss the distinction and relation between Law and Morality. [20 marks - 2021]

Q. Law is not all morality. Comment. [4 marks - 2019]

Law and Morality

Law is an effective instrument of social ordering. Law is not all morality. Morality has a wider scope. Morality includes rules, standards, principles or norms by which men regulate, guide and control their relationships with themselves and with others.

Both Law and Morality has a common origin. During the initial days, both had common features and scope. But with passage of time and changes in the social ordering, a distinction is drawn between law and morality. In short, it can be said that morality encompasses and is the basis of law.

Distinction between Law and Morality

(1) The morals lays down rules for building individual character. Law focuses on the society. It lays down rules concerning the relationships among individuals and with the state.

(2) Morals are value based. Laws action based.

(3) The morals are an end in themselves. Law is for the purpose of convenience and expediency, and its chief aim is to help a smooth running of the society.

(4) The observance of morals is a matter of individual conscience. Law is enforced by the state.

(5) The morals are generally universally true. Law differs society to society. 

Relation Between Law and Morality

Relation between law and morality can be listed under the following three heads:

(1) Morality or moral code of conduct are the basis of law:

Laws are drawn out of morality. Anything that is immoral and causes social disorder is often codified in the books of law and are made illegal.

(2) The positive law is often tested against morality:

It has been contended by a number of jurists, since very early times, that law must conform to morals. This view was supported by the Greeks and the Romans. In Rome, law to some extent, was made to conform to ‘natural law’ which was based on certain moral principles and as a result ‘jus civil’ was transformed into ‘jus gentium’.

(3) Morality is the end of law

Morals have often been considered to be the end of law. A number of eminent jurists have defined law in terms of, ‘justice’. They say that the aim of ‘law’ is to secure justice. Justice in its popular sense is very much based upon morals.

Kelson's Theory of Hierarchy of Law: Jurisprudence

Q. Discuss Kelson's theory of 'Hierarchy of Law'. [2021 - 10 marks]

Q. "Law is the Hierarchy of norms". Comment. [2019 - 10 marks]

Hans Kelson

Hans Kelson, a law professor at Vienna University, served as a judge in Austria’s Supreme Constitutional Court from 1920 to 1930. Kelson is known for his pure theory of law which is normative in character and free of the influence of other knowledge of the world, particularly that of the social sciences. 

Hierarchy of Norms

Kelsen's pure theory of law presents law as a hierarchy of norms, with each norm either validating, or being validated by, the norm which succeeds or precedes it within the hierarchy. 2 The validity of the hierarchy as a whole depends on the basic norm or grundnorm.

A legal order, according to Kelson, is made up of norms arranged in a hierarchical sequence, with one norm positioned above another and each norm getting its validity from the norm above it. The legal order is symbolised by the hierarchy, which takes the shape of a pyramid.

The hierarchy of norms in decreasing order is as follows:

1. International treaties and conventions

2. The constitution

3. Federal law

4. Statutes

5. Decrees

6. Regulations

Marxist Theory of Law : Jurisprudence

Q. Marxist theory of law [2019 - 10 marks, 2018 - 4 marks]

Marxist Theory of Law

In the Marxist theory of law, there are three basic assumptions. 

1. Law is the product of economic forces. Marx said that the way you work will shape your law and other institutions. He believed in the ‘two level model’ in which ‘economy’ was the ‘base’ and law as well as other institutions were in the ‘super-structure’. 

2. Class character of law: The second assumption is the doctrine of the class character of law. According to

Marx and Engels, law is considered to be the tool of the ruling class to maintain its powers over the ruled classes. Law is characterized as an expression of class will and it is the law and the state, and the means of production which determine the character of the various classes in a society.

3. Withering away: The third assumption is known as the doctrine of withering away. There is some controversy about this doctrine. Engels anticipated that the society of the future would substitute (for the government) the administration of things and that state in such a society would wither away.

Theory of Living Law : Jurisprudence

Q. Theory of Living law [2019, 2018 - 4 marks]

Theory of Living Law

The living law as discussed by Ehrlich is the law that is practices in the society as opposed to the law enforced by the state. Living law is the law which dominates the life of the society even though it has not been put forward in legal prepositions. 

Ehrlich was concerned with the impact of laws on various aspects of the society. According to him the laws to be found in formal legal sources such as statutes and decided cases give only an inadequate picture of what really goes in a community. 

Realist School of Jurisprudence

Q. Write an essay on American Realist school of Jurisprudence. [2019 - 20 marks]

Q. Write a short note on 'Realist school of Jurisprudence'. [2018 - 10 marks]

Realist School of Jurisprudence

Realist school of jurisprudence is more concerned with the scientific observation of lawmaking and its functioning, rather than the ends of law. It combines Analytical Positivism and sociological ideologies.

According to the Realist school of jurisprudence

(i) Law is defined in terms of judicial decisions, not as a set of rules.

(ii) Law originates from judges, so the law is determined by what the courts do, not what they say.

American Realism

American Realism combines the influences of both the Analytical School and the Sociological School. It focuses on the decisions made by judges in court and the impact of judge-made laws on society.

Justice Oliver Holmes

Justice Oliver Holms is considered to be the founding father of Realist School of Jurisprudence. He was a renowned Realist and former judge of the American Supreme Court.

He proposed the “Bad Man Theory,” which suggests that only the “bad man” can predict the actual law accurately. According to Holmes, a judge’s concern is to deliver justice in the case before them, and if that requires a creative interpretation of existing rules, they should resort to it.

Justice Holmes believed that judges and lawyers are well acquainted with the historical, social, and economic aspects of law.

He favored a pragmatic approach to law, where judges and lawyers interpret the law as it is, without considering “what it ought to be.”

Sir Henry Maine's Theory of Law : Historical School of Jurisprudence

Q. "Movement of progressive societies has hitherto been a movement from status to contract." Comment. [2022 - 20 marks]

Q. Discuss Henry Mine's thought on Historical school of Jurisprudence. [2019 - 4 marks]

Q.  Contribution of Sir Henry Maine. [2018 - 20 marks]

Historical School of Jurisprudence

Historical School of Jurisprudence emerged after Natural Law. According to this theory, law is the result of past forces and past influencers which is built and grown on the general consciousness of people.

Sir Henry Maine (1822 - 1888)

Sir Henry Maine was a British comparative jurist and historian. He was one of the pioneers of the History School of Law. He is famous for postulating the theory "Movement of progressive societies has hitherto been a movement from status to contract" in his legendary work "Ancient Law".

Stages of Development of law

1. Law made by the ruler under divine inspiration

The rules, who were believed to be the representative of the God, used to command laws which were bound to every citizen under his rule.

2. Customary Law

In the second stage, these commands transformed into customs.

3. Knowledge of law in the hands of Priests

In the third stage the priests became the custodian of the law. They became the repositories of the legal proceedings.

4. Codification

The fourth and the final stage of development of law was codification of the law. In this stage the memory of the priests were replaced with written codified law. The jurists advocated that codification of law made it accessible to everyone and easy to comprehend. 

Types of Societies

According to Henry Maine societies are two types; Progressive Societies and Static Societies.

Static Societies

According to Maine, when the primitive law has been embodied in a code, there is an end to its spontaneous development and such communities or societies which do not modify or go beyond the fourth stage are called static societies.

Progressive Societies

According to Henry Maine, the societies which continuously work toward development of their laws and legal system are progressive in nature. Progressive societies develop their laws by three methods : legal fiction, equity and legislation. Legal fictions change the law according to the changing needs of the society. Equity consists of those principles, which are considered to be higher than those of the positive law. It is used to modify the rigors of law. Legislation comes in the last which is the most direct and systematic method of law making.

Growth of the idea of contract

Gradually the general populace moves towards more and more freedom and now rights and obligations depend on contract or free negotiations of the individuals. After tracing the course of development Maine propounds his important thesis : ‘The movement of progressive societies has hitherto been a movement from status to contract.’

Criticism of Maine's Theory

• Maine’s thesis true in his time
• Theory no longer holds good : Individual freedom of contract curtailed
• Charges in the concept and functions of the State

Economic Approach of Law : Jurisprudence

Economic approach of law is the analysis of law from economic perspective. Economic approach of law and legal approach of economics are interrelated concepts. 

1. Law Facilitates Economic Efficiency

Law and economics are generally used as tools for encouraging economically efficient social relations.

The most central assumption in economics is that human beings are rational maximizers of their individual satisfactions, and, in turn, respond to incentives. A rational maximizer of personal satisfaction adjusts means to ends in the most efficient way possible.

Law helps and devices ways to help prevent situations that lead to market failure. For example, law can be used as a tool to ensure that monopoly situations are hard to bring about and maintain.

2. Current Developments

The economic analysis of law has given impetus to a number of further tools that are helpful in understanding legal institutions. Three of the most important of these are the results of behavioral economics, game theory and public choice theory.

a. Behavioral Economics and Law

Practitioners of behavioral law and economics examine human limits to means-end rationality. One of the outcomes of behavioral economics is the concept of bounded rationality. 

b. Game Theory

Game theory adds to economic modeling the phenomenon of strategic action. Strategic actions are those adopted because of the competitive nature of many social transactions. They are adopted due to how one individual expects another to act in response. 

c. Public Choice Theory

Public choice theory is centered upon how the nature of the legislative process and collective decision making influence the nature of law. It is the application of economic models of decision-making and their results to the issues that traditionally occupy political science, for example Arrow’s Theorem. 

Natural Law Theories: Jurisprudence

Natural Law

Definition

Natural law is the law of nature. It is the law which originated from the Supreme divine source. It is the Physical Law of Nature based on moral ideals having universal applicability. It has often been used either to defend a change or to maintain status quo according to needs and requirement of the time.

Features of Natural Law

Natural Law is eternal and unalterable, as having existed from the commencement of the world, uncreated and immutable.

• Natural Law is not made by man; it is only discovered by him.
• Natural Law is not enforced by any external agency.
• Natural Law is an outcome of preaching of philosophers, prophets, saints etc.
• Natural Law has no formal written Code.
• Natural Law has an eternal lasting value which is immutable.
• Natural Law is also termed as Divine Law, Law of Nature, Law of God, etc. Divine Law means the command of God imposed upon men.

Divisions of Natural Law Theories

(1) Theories of Ancient Period

(2) Theories of Medieval Period

(3) Theories of Renaissance Period

(4) Theories of Modern period

Ancient Period Theories

Theories of Natural Law were first developed by Greek philosophers. They propagated three main features of Law of Nature. These are destiny, order and reason.

Socratic

Socratic opined that man using his insight can see and judge a thing as good or bad. According to him, it was rather the appeal of the ‘insight’ to obey it. He pleaded for the necessity of Natural Law for security and stability of the country, which was one of the principal needs of the age.

Aristotle 

Aristotle had a different view on Natural Law. He divided the life of human being in two parts:

(i) man is creation of the God, and

(ii) man possesses insight and reason by which he can shape his will.

It is this reason through which one can discover the principle of natural justice.

Medieval Period Theories

Aquinas

Catholic philosophers and theologians moved away from the orthodox interpretation of natural law and gave a more logical and systematic theory of natural law. Thomas Aquinas said that natural law is that part of law which reveals itself in natural reason. This is applied by human beings to govern their affairs and relations. According to Aquinas positive law must conform to natural law, positive law is valid only to the extent to which it is compatible with natural law.

Renaissance Period Theories

During the renaissance period prominent thinkers like Hugo, Hobbs Locke, Jean had advanced the Natural Theories of law further. 

Thomas Hobbes was a supporter of absolute power of the ruler and subjects had no rights against the sovereign. Though he suggested that the sovereign should be bound by ‘Natural Law’, it is not more than a moral obligation. 

John Locke, propagated the idea of natural rights. According to him, Natural Rights as the rights to life, liberty and property of the general populace were never surrendered to the sovereign. It always remaind with him.

Theory of General Will

According to Rousseau, it is the duty of an individual to obey the general will because in that way he is obeying his own will. The government and laws made must conform itself with the general will and if they are not able to so that they could be overthrown, in brief Rousseau stood for the interest of the community rather than the interest of the individual, his natural law theory stood for equality and freedom of men.

Modern Theories

Decline of Natural Law Theories in the Nineteenth Century

The 19th century saw the decline of natural law, the natural law theories reflected more or less the great economic and political changes which had taken place in Europe. The problems created by the new changes and developments demanded political and concrete solutions.  Many historians rejected the social contract theory by saying that it was a myth. All these factors gave a strong blow to natural law.

Revival of Natural law theories in Twentieth Century

Main factors that revived the Natural Law Theories during the 20th century: 

It emerged as a reaction against the legal theories which had exaggerated the importance of positive law.

It was realized that abstract thinking was not completely futile.

Positivist theories failed to solve the problems created by the changed social conditions.

During the two world wars, the world witnessed great destruction of human lives and property and principles of natural law were approached in order to attain peace.

Law grows with growth, strengthens with the strength of people and finally dies away as a nation loses its nationality

Savigny the main founder of German historical school, has given this famous statement. He said that law grows with the growth of people, strengthens with the strength of people and finally dies away as the nation loses its nationality.

According to Savigny, "Custom is essentially a product of natural forces associated with popular spirit of acceptance by the people. When people repeat the same action again and again, it assumes the form of 'habit' and when habit continues to be in practice for a long time, it becomes custom."

Does International law is law according to Austin?

John Austin, the giver of the Command Theory of Law, states that international law is not true law. According to him international law is not law as it has no sovereign. Austin stated that law is a subdivision of command. He characterized a command as:

an insinuation or articulation of a wish to do or stay away from accomplishing something, upheld by the ability to do damage to the actor on the off chance that he resists.

Manu - The Ancient Indian Hindu Law Maker

Manu

The legendary first man and lawgiver, Manu is an ancient Indian Hindu Hindu King. Through his elaborated work Manu-smriti, which means “Laws of Manu” or “The Remembered Tradition of Manu”.  Traditionally this is the most authoritative of the books of the Hindu code in India. 

The Manu-smriti prescribes to Hindus their dharma—i.e., that set of obligations incumbent on each as a member of one of the four social classes (varnas) and engaged in one of the four stages of life.

Justice Holms - Theory of Law

Justin Holms

Oliver Wendell Holmes (1984 - 1935), known as The Great Dissenter,, associate justice of the United States Supreme Court, U.S. legal historian and philosopher who advocated judicial restraint. He stated the concept of “clear and present danger” as the only basis for limiting the right of freedom of speech.

Justice Holmes theory

Holmes believed that the making of laws is the business of legislative bodies, not of courts, and that within constitutional bounds the people have a right to whatever laws they choose to make, good or bad, through their elected representatives.

In his rejection of natural law, Holmes laid the groundwork for the contemporary era of jurisprudence, where judges came to look to their visions of the future more than to documents and doctrines of the past, and thus to take on a new and far more active role in the constitutional order.

Sanction - Jurisprudence I

Sanction

The term “sanction” is derived from Roman law. Sanction was originally that part of the statute which established a penalty or made other provisions for its enforcement. In the ordinary sense, the term sanction means mere penalty It can also be some motivating force or encouragement for the purpose of better performance and execution of laws.