Law is a set of rules and regulations that make up order in a nation. The Indian Justice System revolves around these laws and their interpretations. Every person has their own perspective about different issues. It largely depends upon their education, their upbringing and environment and the people around them as one is influenced by people around him who may or may not have the same perceptions as them. A judge, although taught through teachings to not be biased or have a narrowed perception about things, his personal bias and teachings can always cloud his judgement. Here, the project specifically talks about judges but this can happen to anyone. Joseph Raz wrote ‘Between Authority and Interpretation’ and in that he explained that the correct interpretation of laws by judges is quintessential as that decides the verdict of a case. He says judges should not limit themselves to old, archaic ideas and rather embrace the new laws and their new interpretations along with the ever-changing society. Every judge may hail from different schools of law. But two main schools of laws are the Analytical School of Law and Natural School of Law. These are briefly explained:
Analytical School of Law
Analytical or Positivist School of Law defines law as the command. The law may be just or unjust, but if it is coming from a higher authority, it has to be followed regardless of the justness factor attached to it. It is law ‘as it is’. It comes directly from the sovereign. It considers legislation as the only source of law and to be paramount. This school of law is very stringent in making clear that morals and laws do not go hand in hand. They should be two entirely different concepts. Austin and Salmond are some philosophers and flag bearers of the analytical school of law. According to Austin, Jurisprudence is the philosophy of positive law. His thoughts upon the same were:
“The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it varies from the text, by which we regulate our approbation and disapprobation.”
Individuals hailing from this school of law believe that there is no other law than the law of the sovereign and it should be followed whether it may be right or wrong.
Natural School of Law
It is what law ‘ought to be’. It is called a divine law or the law of nature. It exists before mankind and is eternal. It is considered to be the law given by ‘god’ himself. It is largely influenced by religion and a ‘higher power’. This school of law focuses on morality and ethics. It does not do away with them rather it embraces it. There is an interplay between legality and morality. Natural Law also encapsulates Legal Theory within itself. Legal theory and jurisprudence were thought to be the same concepts but W. Friedman cleared up the two concepts. He said that legal theory is a part of jurisprudence; that part which captures the philosophical end of jurisprudence. Law based on philosophy is legal theory as law in itself is based on abstract principles. Legal theory teaches the philosophical aspect of law whereas jurisprudence teaches every aspect of law. He also believed that law and morality are entirely legal theory as it is more on the philosophical side. The belief that law and morality were legal theory led thinkers to believe that legal theory was related to the natural school of law. Judges from this school of law will give equal weightage to law and morals. There will not be a law which goes against morality. Socrates and Aristotle belong to this school of law.
Some other schools of law are as follows:
Historical School of Law
The name itself suggests that this school relies wholly on customs, traditions and practices that are prevalent in the society since time immemorial. Jurists from this school of law belief that customs are laws. Anything being followed for a long time is a law. This can be refuted by an example- Sati was prevalent in the society up until 1829 when the Bengal Sati Regulation was passed and Sati was banned. It was once a custom and was legal but it does not make it right. Its customs like these which makes one think of all the wrong customs still prevalent in our society. However, Savigny coined the word Volksgeist which means the will of the people and justifies that it is the will of the people that have kept customs alive and active and if people did not want customs to be alive then they would not follow it. But other jurists have argued that sometimes people are forced into following customs and traditions so this is not a robust argument.
Sociological School of Law
This school of law states that law is society. It is based on the ever-changing society and the people inhabiting these societies. The sociological school relies on Social Engineering to make or amend laws. Social Engineering is when there is research carried out which brings out the problem in every society and according to that laws are changed. These are largely done through cases and judgements. This can be explained through an example- In 19th or 20th Century, it would have been blasphemous to make homosexuality legal due to the conditions and thinking of that society which was quite narrow. People could not have adjusted with the idea that a person can be attracted to another person of same-sex. However, in Navtej Singh Johar vs Union of India, the Hon’ble Supreme Court made Section 377 of the Indian Penal Code unconstitutional and made homosexuality legal. As society changed, these ancient laws changed. Society got tolerant and broad-minded to many issues and hence, this brought about change in laws.
Realist School of Law
The realist school of law focuses on and limits itself to the ‘four walls of court’. This means the judgements and the precedents of the courts are given more value than any other school. This school says that the law is not certain and uncertainties are a part of the legal system. This gives an apt definition of how the law works. This school says that every judge has a different thinking parameter and it depends upon his beliefs. This is naturally true. But the jurists of this school went ahead and said that judges make the laws. This received criticism and it was made lucid that judges interpret the law but do not make the laws. Only the legislature can make the laws and if what the jurists of this school of law contest about judges making the law, then there will be no distinction between legislature and judiciary and the whole system will be in shambles.
String of overruled cases and condemned judgements
There have been different issues over the years which have been debated upon for a period of time and there have been different cases with different judgements which overruled the last one. Referring to Joseph Raz again, he also says how if the constitution of any country is an old one, it connotes the ideas of founding fathers of the constitution at that time when the constitution was being drafted. As society is changing these thoughts become obsolete. He also says that laws should be stricken off or amended according to the change in society and behaviour of people. So, taking J. Raz’s idea, laws cannot be stagnant for a considerable amount of time. This is not only true for the constitution but for any statue that was formed years before. In Chapter III and Chapter IV, the project will strive to analyze the reasoning behind judgements and various loopholes of law and different interpretation of the law.
Right to Die?
There were a lot of cases in lieu of the issue of Article 21 which states-
“No person shall be deprived of his life or personal liberty except according to the procedure established by law”
Here, it was contested that if Article 21 entails Right to Life it must also, by the power of interpretation, contain Right to Die. This was done through a series of judgement which did not clearly define if the right to die can be interpreted by Article 21.
The first case was of Aruna Ramchandra Shanbaug vs Union of India, where Aruna Shanbaug was a nurse in a hospital and was raped by a ward boy in the hospital in 1973; she was sodomized She, after the assault, entered a vegetative state due to no oxygen supply as the ward boy had strangled her with a dog chain. She was in a vegetative state for a long time before Pinki Virani, an advocate, in 2011 filed a petition to withdraw the victim from life support. The Supreme Court recognized passive euthanasia in this case but they did not recognize Pinki Virani as the ‘next friend’ and recognized the KEM hospital, where Shanbaug was kept on life support, was recognized as the ‘next friend’ as they took care of her. The ‘next friend’ was someone who could decide if passive euthanasia could be administered or not. The hospital did not want to withdraw Ms Shanbaug from life support and the petition of the advocate failed. But this case brought about a major change as this legalized passive euthanasia. Passive Euthanasia is a method of withdrawing life support and depriving the patient of any vital nutrients in order to let them die. This is done for patients in a vegetative state.
In P. Rathinam vs Union of India, in 1994, the petitioner tried to take his life and failed. According to Section 308 of the Indian Penal Code, attempt to suicide is a crime. P. Rathinam contested that Article 21 contains both the positive and negative perspective and interpretation of life. If Article 21 awards an individual a right to live then it also means that it awards that person a right to die. Thus, suicide for a short period of time was made permissible under law. This presents a rather Libertarianism view of the court. In this view people often contest that no state interference is absolutely appreciated. Their body is their personal choice. So, in P. Rathinam, the right to die gives an idea of libertarianism as one’s own body is one’s own choice.
In Gian Kaur vs State of Punjab, the question was if assisted suicide was a crime. Gian Kaur and her husband assisted and abetted in the suicide of their daughter-in-law. The Supreme Court overturned its decision in P. Rathinam vs Union of India. It was held that assisted suicide would be considered a crime but suicide would not be considered a crime as suicide is a personal choice and this issue was not touched upon in the P. Rathinam case. This is a clear case of Section 306 of the Indian Penal Code, 1860. It was also observed that through the power of legislature law-making, euthanasia could be made legal. Right to Die was not considered as a part of Article 21.
The last and latest judgement in the Right to Die question was Common Cause vs Union of India. In this case, right to die and right to die with dignity was debated upon and it was held that right to die with dignity was an integral part of Article 21 and this legalized Living Will and Passive Euthanasia in India. Living Will is a person’s consent for the future in terms of medical treatment. This consent is taken before in case that person is for some reason unable to give their consent when needed due to illness or entering a vegetative state. It is quite safe to say that after introducing the Mental Healthcare Act, 2017, the government gave a feeble attempt to nullify Section 309 of the IPC; it is however still not removed from the IPC. These laws create confusion and moreover, fail to understand the psychology behind what a mental health patient goes through. These cases have overruled each other where the latest verdict becomes so hazy and hard to follow. This is due to different opinions of judges and their different way of interpretation of the laws.
The Question on Basic Structure
In the 1950s-1970s there was an uproar regarding the amendment issues and clarification in the constitution. There were a string of cases through which the court came to a final decision. The question was whether the legislature had absolute power in amending the constitution.
When the Indira Gandhi government made the first amendment, in Shankari Prasad vs Union of India, the case questioned whether the parliament can make amendments and has absolute constitution amending powers. The court held that this was indeed true; the legislature had the power to make amendments irrespective of if they cast a shadow over Fundamental Rights. The same verdict was given in Sajjan Singh vs State of Rajasthan.
The Supreme Court in Golaknath vs State of Punjab overturned its decision. The court held that Fundamental Rights are untouchable and Article 368 gives the power to amend the constitution but no absolute power to do the same. The next thing that the 1971 government did was to introduce the 24th Amendment Act, which gave parliament immense and absolute power to amend the Constitution. It also narrowed the powers of the President of India as he had to consent to any Constitutional Amendment Bill and sign it.
A review was called in the above Amendment Act. In the final case of this issue, Kesavananda Bharati vs State of Kerala, in 1973, it was recorded that the Parliament has amendment powers but they cannot abrogate or amend the basic structure of the constitution. This was one of the cases with a large constitutional bench. It was decided by a bench comprising thirteen judges. The court did not elaborate on the basic structure but it was understood that the integral principles on which our founding fathers founded and drafted the Indian Constitution was the basic structure of the constitution. The number of cases overruled to reach a final verdict was huge.
Some judgements given by the court were criticized heavily as scholars, lawyers and people of India thought these verdicts were wrongly given at that time.
A.K. Gopalan vs State of Madras
A.K. Gopalan was a political leader and was detained in Madras Jail. He was detained under the Preventive Detention Act, 1950. He filed a petition which said that this detention is violative of his Fundamental Rights under Article 19, Article 21 and Article 22. At the time, the court followed ‘Procedure established by law’ and looked at all the articles in isolation and followed the law to the letter which was not supposed to happen. The court held that the detention was not violating any fundamental right and it was well within its rights. In Maneka Gandhi vs Union of India, the court changed its stance and introduced ‘due process of law’ which meant checking if the law is not violating any fundamental right.
Suresh Kumar Koushal vs Naz Foundation
In the case, Naz Foundation vs Government of Delhi (NCT), Section 377 was decriminalized and it was said that as long as there is sexual intercourse between two consenting adults, it is not a business of anyone to interfere in that as it was found to be violative of Article 14, 15 and 21. However, in this case, the Supreme Court overruled the decision of the high court and criminalized Section 377 again. Homosexuality was discredited by a division bench of the Supreme Court and they said that the act of two male or female engaging in sexual activity was unnatural. The judges said that this was created before the Constitution of India and if the makers of the constitution would have found something wrong with this provision, it would have been repealed a long time back.
It is cases and judgements like these which renders an individual to think and reflect on what and how judges interpret law. As law is highly subjective, it cannot be looked at with objectivity. The proof that judges are not objective while giving judgements is rooted in judgements like these itself. There are many more cases and strings of cases that are overruled to provide evidence that every judge and their judgement gain their bias and thought process from somewhere. There is no true objectivity and unbiased opinions.
Objectivity is a paramount concept to achieve and especially while giving judgements. There are various judgements which do stick to the parameters of the law and do not experience the ambit outside the law and other interpretations that may come out of that law. But there are some judgments which seem to be more out of touch of law and more in a touch of the personal perception of the judge. This is in no way wrong until it is an onus upon the people if the judgement is not parallel to the evolution of society. This can create problems which lead to overruling of cases and results in a string of cases.
This cannot be avoided as the perception will cloud anyone’s need to be impartial; this is quite involuntary. The cases mentioned above are proof of that. These are some cases which were highly criticized by people; there are more cases where judgement is not desirable under law. This is where objectivity is called into question. The point to be contested is that there cannot be total objectivity in these judgements but there can be a large interpretation of the law and judgement given under these laws after careful scrutiny. Schools of Law were established in the second chapter to give a broader picture of how judges belonging to different schools of law may have different opinions on everything. In P. Rathinam vs Union of India, the idea was inclined towards libertarianism. In the case of Sajjan Singh vs the State of Rajasthan, it can be a possibility that the judgement delivered was a Realistic School of Law related as it followed the precedent given in Shankari Prasad vs Union of India. These are some examples of how judges and their judgements can be influenced by different schools of law and the reason behind why and how there are many overruled cases or judgements that are not lauded.
This does have an impact on laws and their interpretation as it changes from perception to perception. For example- in a recent case of K.S. Puttaswamy vs Union of India, Article 21 was interpreted and it was found that Right to Privacy is the ‘silences’ of ‘sounding and silences’ of Article 21. These articles are interpreted by judges and vary highly. The rebuttal to the former point would be that as society is constantly changing, so law constantly changes. But any law interpreted in bad faith can cause harm and would be a gross miscarriage of justice.
 Jefferey Goldsworthy, “Raz on Constitutional Interpretation” 22 JSTOR 167 (2003).
 Legal Positivism, Stanford Encyclopedia of Philosophy, available at: https://plato.stanford.edu/entries/legal-positivism/ (last visited on December 10, 2020).
 (2016) 7 SCC 485.
 Indian Penal Code, 1860 (Act 45 of 1860), s.377.
 Supra note 1.
 The Constitution of India, art. 21.
 (2011) 4 SCC 454.
 (1994) SCC 3 394.
 (1996) SCC 2 648.
 Indian Penal Code, 1860 (Act 45 of 2000), s. 306.
 (2014) SCC 5 338.
 Mental Healthcare Act, 2017 (Act 10 of 2017).
 AIR 1951 S.C. 458.
 (1965) SCR (1) 933.
 (1967) SCR 2 762.
 AIR 1962 SC 933.
 AIR 1950 SC 27.
 (1978) SCR 2 621.
 (2014) 1 SCC 1.
 Supra note 2, art. 14.
 Id., art. 15.
 Supra note 2, art. 21.
 (2017) 10 SCC 1.
BY MANASVITA TEJSI | RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PATIALA