CHAPTER 1

RESEARCH METHODOLOGY

RELEVANCE OF THE TOPIC

The theory of legal positivism separates law and morality. This theory is quite relevant in the
contemporary society but its roots are continuously fading because the reason that a law is just,
wise, efficient, or prudent doesn't give an ample justification for considering it to be the actual
law. There are certain provisions and laws in the Constitution which include the principles of
positivism.

OBJECTIVE OF THE STUDY

The objective of the study is to focus on the relevance of positivism in the modern society that is
the contemporary world. There are certain provisions in the constitution which are related to
positivism. Thus this research focuses on how these provisions are the same as the principles of
positivism and how are these fading away.

RESEARCH QUESTION

How is positivism relevant in the modern society?

LIMITATIONS OF RESEARCH

The research is based on secondary data and thus lacks originality.

Certain facts and theories in the research can be contradictory.

This topic has a very wide scope and thus due to page limit, the research cannot include much
case laws.

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 CHAPTER 2

INTRODUCTION

1. ORIGIN

The oldest form of legal positivism in India can be traced back to the Ancient Period. But the
analytical positivism of the English legal system when examined in the light of the ancient
Indian jurisprudence would bring to fore certain interesting contradiction. In the Austininan
positivism, sovereign being the lawmaker is considered superior to law.

On the contrary1, in ancient Indian Legal System, law is given the highest place by which
subjects as well as the ruler were equally bound.

"Since law is the King of Kings, far more powerful and rigid that nothing can be mightier than
law by whose aid... even the weak may prevail over strong"2

DHARMA AS SOVEREIGN

Dharma was considered as the sovereign i.e. the supreme power. Thus the law namely, Dharma
occupied a prime place in the Indian Legal System and the King or the Ruler was to rule
according to Dharma. The dharma consisted in observance of truth, non-violence, and rightful
code of moral conduct, which holds or sustains men together in harmony and establishes social
solidarity.

DANDA AS SANCTION

The element of 'Sanction' found expression in the ancient Indian legal system by way of Danda
which meant 'punishment'. It is the fear of Danda, which makes people to follow Dharma3.

RELEVANCE IN MODERN SOCIETY -

1
2
Sen Priyanath: General Principles of Hindu Jurisprudence
3
Manu (Ancient law-giver)

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In the modern society, the principle of Dharma as sovereign is not largely applicable.
Sovereignty in contemporary position is diffused in community as a whole. However the
principle of Danda is evidently prevalent. Danda is practiced in the form of fines, imprisonment,
mutilation, banishment, confiscation of property and even death.

EVOLUTION -

The medieval period saw the invasion of Moghuals. The Indian Legal System fell into oblivion
and was gradually substituted by the Muslim Law of Shariah as laid down by Holy Quran.
Sharisa has ascribed to itself, the attributes of positive law as follows -

GOD AS SOVEREIGN

Shariah is the law of God (Allah). Thus, Allah is the sovereign and is also referred as the un-
commanded commander. It is written in Quran that there is no change in the word's of Allah.

COMMAN AS ALLAH'S COMMAND

Allah commands justice, the doing of good, and giving to the kith and kin and He forbids all
indecent deeds, and evil and rebellion: He instructs that ye may receive admonition.

RELEVANCE IN MODERN SOCIETY

Shariah is still applicable in the contemporary world. It says that Law has decreed various legal
provisions in the Quran, which is in one of the two major sources of Sharia. In fact, majority of
Islamic Jurists concur that out of six thousand verses in the Quran there are five hundred verses
with legal pronouncements in Quran which have become immutable and foreclosed to any
modification.

British Rule -

The advent of British rule in India brought a considerable changes in the Indian Legal System.
Lord Macauly gradually introduced the notions of British Juristic concepts through equity, jusice
and good conscience and brought about codification of laws.

These codified laws were akin to Autinian's concept of positive law having the element of
certainty, definiteness, effective enforcement and sanction.

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British King in the Parliament was the supreme Sovereign authority to make laws for the
governance of India and they were above law enacted for India. The Indian legislature had no
authority to change law. The subjects were bound to obey these laws.

Thus, all the characteristics of positive law, namely, command, duty, sanction, sovereign etc.
were present in the legal system introduced by the British rulers in India. It is in this sense that
analytical positivism found place in the Indian Legal System during the British Colonial Rule.

CONTEMPORARY POSITION -

The post independence era in India necessitated a fresh approach to the existing laws which were
hardly suited to the changed socio economic and political conditions of the country. Therefore,
the Constitution of India was drafted and come into force on 26th January, 1950. It can be
termed as Grundnorm in the Kelsonite sense because all the statutes and legislative enactments
derive their validity from the Constitution of India whose validity lies in its wholehearted
acceptance by the Indian Community without any exception. In fact it is pre-supposed to be
valid.

The post independence India law can be differentiated from the Austininan's concept of
analytical positivism because the former includes the element of justice or morality from the law,
while there is no place for these elements in the latter. This blend of morality and positivism can
be observed in the following landmark case -

Kesavnanda Bharti vs. State of Kerala4

Facts -

In February 1970 Swami HH Sri Kesavananda Bharati, Senior Pontiff and head of "Edneer
Mutt" - a Hindu Mutt situated in Edneer, a village in Kasaragod District of Kerala, challenged
the Kerala government's attempts, under two state land reform acts, to impose restrictions on the
management of its property. Although the state invoked its authority under Article 31, a noted
Indian jurist, Nanabhoy Palkhivala, convinced the Swami into filing his petition under Article
26(Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any
section thereof shall have the right(a) to establish and maintain institutions for religious and charitable purposes;(b) to
manage its own affairs in matters of religion;(c) to own and acquire movable and immovable property; and(d) to administer
such property in accordance with law) (not Article 29){ 29. Protection of interests of minorities}, concerning the

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right to manage religiously owned property without government interference. Even though the
hearings consumed five months, the outcome would profoundly affect India's democratic
processes.

Judgment -

The Supreme Court reviewed the decision in Golaknath v. State of Punjab, and considered the
validity of the 24th, 25th, 26th and 29th Amendments. The case was heard by the largest ever
Constitutional Bench of 13 Judges. The Bench gave eleven judgments, which agreed on some
points and differed on others. Nani Palkhivala, presented the case against the government in
both cases.

Upholding the validity of clause (4) of article 13{13. Laws inconsistent with or in derogation of the
fundamental rights 4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368

Right of Equality} and a corresponding provision in article 368(3), inserted by the 24th Amendment,
the Court settled in favour of the view that Parliament has the power to amend the Fundamental
Rights also. However, the Court affirmed another proposition also asserted in the Golaknath
case, by ruling that the expression "amendment" of this Constitution in article 368 means any
addition or change in any of the provisions of the Constitution within the broad contours of the
Preamble and the Constitution to carry out the objectives in the Preamble and the Directive
Principles. Applied to Fundamental Rights, it would be that while Fundamental Rights cannot be
abrogated, reasonable abridgement of Fundamental Rights could be effected in the public
interest. The true position is that every provision of the Constitution can be amended provided
the basic foundation and structure of the Constitution remains the same. The ruling thus
established the principle that the basic structure cannot be amended on the grounds that a power
to amend is not a power to destroy.

Thus, we see that there was a mixture of morality and positivism in the previously mentioned
case.

But there has been instances in which strict and rigid positivistic approach was followed. Eg -

Tilkayat Shri Govindlaji Maharaja vs. State of Rajasthan5

FACTS -

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The matter was regarding the idols in the temple. The Governor of Rajasthan made and
promulgated the Nathdwara ordinance on the 6th of February 1959, which declared the idols to
be public property. Tilkayat filed Writ Petition on the 28th February 1959 challenging the
provisions of this ordinance. He said that since he set up the idols, it was his property and not a
public property. In that petition, he covered the entire history and claimed that the entire
property was his own private property.

JUDGMENT -

Judgment was made in favour of Tilkayat. The court averred that they at any rate are the private
and personal deities of the Tilkayat and properties of the petitioner as distinct from the deity of
Shrinathji and the property allocated to seva of Shrinathji or otherwise connected in any manner
with the aforesaid high shrine. It is said that the public has no right to these two deities.

Thus we see that no consideration was given to morality and religion and strict positivistic
approach was taken.

The attitude of the Court however, has, changed over the years and now there is a tendency on
the part of the judiciary to restrain and restrict the executive from the usurping power and
exceeding its permissible limits.

The influence of Austinian Positivism which was infused in the Indian Legal System by the
British Colonial Rulers is now receding gradually and the law is being looked as an effective
instrument of social change for the welfare of the society.

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 CHAPTER 3

JURIPRUDENTIAL STUDY

ANALYSIS IN JURISPRUDENTIAL CONTEXT

The major premise of positivistic school of jurisprudence is to deal with the law, as it exists in
the present form. It seeks to analyse the first principles of law, as they actually exist in given
legal system.

The exponents of positivism consider that most important aspect of law is its relation to the state.
They treat law as a command emanating from the sovereign, namely, the State. This school is
therefore called the imperative school. The advocates of this school are neither concerned with
the past of the law nor the future of it, but they confine themselves to the study of law as it
actually exists i.e. positus.

VIEWS OF JURISTS

JEREMY BENTHAM

According to Bentham law is an assemblage of signs, declarations of volition conceived or

adopted by the Sovereign in a State. He believed that the source of law is the will of the
sovereign, Subjects may be active or passive and law regulates Objects (act, situation or
forbearance). He distinguished expository jurisprudence (i.e. what law is) from censorial
jurisprudence (i.e. what law ought to be).

JOHN AUSTIN

Austin described positive law as 'the aggregate of rules set by man as politically superior to men
as politically inferior subjects. He attributes (1) command, (2) sanction, (3) duty, and (4)
sovereignty as the four essential attributes of positive law. He treated jurisprudence as a science
of law concerned with analysis of legal concepts-their exposition, examination in a scientific
manner in order to determine their scope. His major thrust was on nothing but separation of law
from morals and ethics.

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ERSKINE HOLLAND

He characterised jurisprudence as the formal science of positive law which are recognised as
having legal consequences. He pointed out that jurisprudence is not a science of legal relations,
that they have been followed, but it is the law which has been actually imposed by the state as a
positive law.

SIR JOHN SALMOND

Salmond defined jurisprudence with reference to a particular positive legal system. According to
him, jurisprudence is the science of first principle of civil law. He agreed with both Austin and
Holland that jurisprudence is a science which involves systematic study of essential elements of
national legal system.

HLA HART

He rejected Austin's theory of positivism and expounded his legal theory based on relationship
between law and society. He favoured analytical approach to law for better understanding of it.
Thus Hart's notion of law is all together different from his predecessors because he believed that
law, coercion and morality are related social phenomena having sociological implications.

THEORIES

BENTHAM'S UTILITARIANISM

This theory says that the proper end of every law is the promotion of the greatest happiness of
the greatest number. Bentham defined 'utility' as 'the property or tendency of a thing to prevent
some evil or procure some good.' According to him, the consequences of good and evil are
respectively 'pleasure' and 'pain'.

According to this theory, the task of government was to promote happiness of society by
furthering enjoyment of pleasure and affording security against pain.

The main goals of this theory were to achieve (a) subsistence, (b) abundance, (c) equality, and
(d) security for the citizens.

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AUSTIN'S IMPERATIVE THEORY OF LAW

This theory says that there are three kinds of laws which, though not commands, may be
included within the purview of law by way of exception. They are -

1.) Declaratory or Explanatory laws - These are not commands because they are already in
existence and are passed only to explain the law which is already in force.

2.) Laws of Repeal - Austin does not treat such laws as commands because they are in fact the
revocation of a command.

3.) Laws of imperfect obligation - They are not treated as command because there is no sanction
attached to them. Austin holds that command to become law, must be accompanied by duty and
sanction for its enforcement.

H.L.A. HART'S RULE OF RECOGNOTION

This thoery says that -

1.) Law is to be accepted as a command as advocated by Bentham and his disciple Austin

2.) Analysis of legal conceptions is worth pursuing as distinguished from mere sociological and
historical inquiries.

3.) The judicial decisions were to be deduced from pre-determined rules without recourse to
social aims, objectives, policy or morality.

4.) Moral judgments cannot be defended by rational argument, evidence or proof.

KELSON'S THEORY OF GRUNDNORM

Kelson's pure law theory is based on a pyramidical structure of hierarchy of norms which derive
their validity from the basic norm which he termed as Grundnorm. Thus, Grundnorm or basic
norm determines the content and gives validity to other norms derived from it. Kelson, however,
considers Grundnorm as a fiction rather than a character.

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 CHAPTER - 4

ANALYSIS ON INDIAN LEGAL PROVISIONS

Study in light of Present Legal framework -

The glimpses of positivism are visible in various Indian Legal Provisions. These are as follows -

1. IPC- Section 303 - Punishment for murder by life convict

It says that - Whoever, being under sentence of (imprisonment for life), commits murder shall be
punished with death.

2. IPC - SECTION 309 - Attempt to commit suicide

Whoever attempts to commit suicide and does any act towards the commission of such offence,
shall be punished with simple imprisonment for a term which may extend to one year 1[or with
fine, or with both].

Thus, these two Sections of the Indian Penal Code can be compared by the principle of Sanction
in the positivistic approach.

3. Article 358, Chapter III of India

It provides that when the proclamation of Constitution emergency is made by the President
under Article 352, the freedoms guaranteed by Article 19 are automatically suspended and would
continue to be so for the period of emergency.

Any law, executive order made by the State during this period cannot be challenged on the
ground that they are inconsistent with the rights guaranteed by the Article 19.

Article 358 makes it clear that any act done or omitted to be done during emergency cannot be
challenged even after the emergency is over.

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4. Article 359 - Constitution of India

It empowers the president to suspend the right to move to any court for the enforcements of
rights conferred by Part III of the Constitution (except Art. 20 &21) during the continuance of
emergency.

These Articles establishes the principle of positivism that sovereign is not subordinate and thus
its power cannot be conferred or revoked by the law.{Prior to 44th amendment, 1978}

Professor H.L.A. Hart's positivistic theory said that laws are commands of human beings,

5. Article 14 - Constitution of India

It states that - The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India Prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth.

Thus, it fulfils Hart's conception that command shall be general and it shall be for all the
persons.

6. Article 53(1)

It says that the executive power of the Union shall be vested in the President and shall be
exercised by him directly or through officers subordinate to him in accordance with the
Constitution.

This goes with the Austin's positivistic belief that Sovereign's power is illimitable i.e. there are
no restrictions and checks to his power.

Austin's Principle of Command can be observed in various provisions of the Indian Penal Code.
IPC in general, lays down certain criteria to be followed by Individuals in day to day affairs. For
example -

7. Section 379 lays down punishment for the offence theft.

8. Section 378 defines what is theft.

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But in the modern society, the roots of positivism in Indian Legal
System are fading. They are no more fully applicable.

1. Section 5, Hindu Marriage Act

It says that marriage between near relations is prohibited since it is against the customs and
traditions of the Hindus.

We see that it is a custom and morality based law and thus the principle of positivism that law
and morals should be separated and there should not be any context of philosophy and history, is
not applicable to this Act. Since this ritual has become a custom and has been followed since
time immemorial.

2. 44th Amendment, 1978

It was averred that the law decided in the Habeas Corpus case was not a substantial and good
law. Hence, Articles 20 and 21 cannot be suspended during the proclamation of emergency.
Now, a person has the right to challenge the validity of his detention even during the operation of
emergency.

This amendment ruled out the Austin's principle of sovereign being the supreme power. This
amendment resulted in subordination of sovereign and its law could not be revoked in state of
emergency.

3. 42nd Amendment Act, 1976

After this amendment, the President has to work as per the advice of the Prime Minster ad the
Council of Ministers. The pendulum of the power shifted from one extreme to a number of
people i.e. from absolute power to no power.

Thus the President is no longer the sovereign and the concept of sovereignty has dissolved over
the period of time.

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Thus with the adoption of the Constitution in 1950, India became a democratic, secular and
socialist nation wedded to a new legal philosophy embodying within it the humanistic principles
of freedom, liberty, equality and justice. The positivist approach adopted in A.K. Gopalan vs.
State of Madras6 by the Supreme Court relying on the rigid principle of 'procedure established by
the law' which rejected the view that the word law used in Art 21 could be interpreted to include
within its principles of natural justice, was found incompatible with the developing trend of
Social Justice and was, therefore, finally departed in the historic case of Maenika Gandhi vs.
Union of India, wherein it was held that the procedure prescribed by the law has to be just,
reasonable and fair and not oppressive or arbitrary.

In other words, the Court ruled that the American Concept of 'due process' i.e. reasonablness and
fairness was implicit in the expression 'procedure established by law.'

The trend today is to interpret the right relating to life and liberty embodied in Article 21 in a
manner to fulfil the cherished goal of social justice and social change. It may be safely concluded
that the positivistic approach, which was a relic of colonial jurisprudence hardly, has any place in
the modern Indian Setting.

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 CHAPTER - 5

COMPARATIVE STUDY

COMPARISON BETWEEEN DIFFERENT SCHOOLS

1. Historical School Of Jurisprudence

The exponents of Historical school of jurisprudence take social institutions in their sequence
with primary to primitive legal institutions of the society. Thus the school does not attach
importance to relation of law to the State but gives primacy to the social institution in which the
law develops itself.

While the analytical school of jurisprudence pre-supposes the existence of a well developed legal
system, the historical school concentrates on the evolution of law from primitive legal
institutions of ancient communities.

2. Philosophical or Ethical School

According to the exponents of this school, legal philosophy must be based on ethical values so as
to motivate people for an up-right living. It is neither concerned with the historical past nor the
analytical present, but with the future law as it ought to be. According to this school, the purpose
of law is to maintain law and order in society and legal restrictions can be justified only if they
promote the freedom of individuals in society.

3. Sociological School

The exponents of this school considered law as a social phenomenon. They are mainly concerned
with the relationship of law to other contemporary social institutions. They insist that jurists
should focus their attention on social purposes and interest served by law rather than on
individuals and their abstract rights. According to this school the essential characteristics of law
should be to represent common interaction of men in social groups, whether past or present,
ancient or modern.

The main concern of sociological jurists is to study the effect of law and society on each other.

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United States of America

Positivism has been criticized for its harshness. Some critics of positivism have argued that not
every law enacted by a legislature should be accepted as legitimate and binding. For example,
laws depriving African Americans and Native Americans of various rights have been passed by
governments but later overturned as unjust or unconstitutional. Critics conclude that written law
ceases to be legitimate when it offends principles of fairness, justice, and morality. The
American colonists based their revolt against the tyranny of British law on this point.

However positivism still influences U.S. jurisprudence. Many judges continue to evaluate the
viability of legal claims by narrowly interpreting the law. If a right asserted by a litigant is not
expressly recognized by a statute, precedent, or constitutional provision, many judges will deny
recovery.

United Kingdom

The UK was the place where the theory of positivism originated. The main advocates of this
theory belong to UK. Thus it was a strong follower of positivistic approach. It truly believed in
the principles of positivism. King was the sovereign and he was superior to everyone i.e. he was
nobody's subordinate. The principle of sanction was also followed in the form of punishments
such as death penalties, imprisonment, fines etc.

But this theory in the contemporary UK is fading. The King is no longer the sovereign and the
powers are now distributed. Moreover the capital punishments, such as death penalty have been
abolished. Thus, sanction does exist, but the scope of sanction in the form of punishments has
narrowed.

Saudi Arabia

Saudi Arabia, since its formation, has been following the Islamic law that is Shariah. Shariah
includes various principles that are similar to positivistic theory. Allah is considered the
Sovereign. No one is superior to him and the law i.e. the Shariah is formulated by Allah. The
principle of sanction is followed there today also. They have strict punishments such as fine,
imprisonment, and even death penalties.

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 CHAPTER - 6

CONCLUSIONS

Thus we conclude that -

Ancient jurisprudence in India included the principles of positivism. Dharma was the
sovereign and Danda was Sanction.

The British brought the real positivism in India. Their codified laws were akin to
Autinian's concept of positive law having the element of certainty, definiteness, effective
enforcement and sanction. British King in the Parliament was the supreme Sovereign
authority

The post independence law that is the law in modern society is quite different from
Austin's approach of positivism as the former includes a pinch of morality, customs and
ethics.

There are various provisions in the Constitution of India which reflect the principles of
positivism, these are ,IPC- Section 303, IPC - SECTION 309, Article 358, Article 359,
Article 14 - Constitution of India, Article 53(1), Section 379, Section 378 etc.

The law does not necessary be outcome of sovereign's discretion. For example - laws for
abolition of Sati, Dowry etc are the repercussions of social outbursts and awareness.

Thus, it can be seen that law, morality and religion are co-existing concepts unlike
analytical positivism of Austin which completely divested the notions of morality and
justice from law.

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 CHAPTER - 7

SUGGESTIONS

The positivistic approach does not take into consideration the social facts and felt needs
of the society. Therefore, it must take a reasonable look upon these reasonable facts and
considerations.

The claim that ' law is a command of the sovereign ' should be supported by historical
evolution of law when customs played a significant role in regulating human conduct.

Moreover, it should take into considerations laws which are of permissive character and
confer privileges eg. the Bonus Act, or the Law of Wills etc.

It should also include the judge made laws.

II

21

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 CHAPTER - 8

BIBLIOGRAPHY

BOOKS REFERRED

Studies in Jurisprudence and Legal Theory (Dr. NV Paranjape)

A textbook of jurisprudence (Oxford, GW Paton)
Understanding jurisprudence (Oxford, Third Edition)

WEB LINKS

http://www.scribd.com/doc/51609617/4-Legal-Positivism

https://unilorin.edu.ng/publications/imamt/Shariah%20Between%20Positivism%20and%20Natur
alism%20Theories.pdf

http://www.legalcrystal.com/judgements/search/page:3/type:0/sortby:recent/year:1963/court:Sup
reme%20Court%20of%20India

http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199226474.001.0001/acprof-
9780199226474-chapter-6

http://en.wikipedia.org/wiki/Hindu_law#Dharma_and_law

http://en.wikipedia.org/wiki/Danda_(Hindu_Punishment)#Ancient_texts_vs._practice

http://en.wikipedia.org/wiki/Kesavananda_Bharati_v._State_of_Kerala

http://www.indiankanoon.org/docfragment/236490/?formInput=temple%20act%20%20doctypes
%3A%20rajasthan

http://www.indiankanoon.org/doc/147929/

http://en.wikipedia.org/wiki/List_of_amendments_of_the_Constitution_of_India

http://en.wikipedia.org/wiki/Prevention_of_Terrorism_Act,_2002#Impact_and_repeal

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http://www.legallyindia.com/Blogs/Entry/austins-concept-of-sovereignty-and-its-relevance-in-
indian-legal-system-and-in-indian-judiciary

http://legal-dictionary.thefreedictionary.com/Positivism

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