A Supreme Sleight Of Hand - The Evolution Of The Indian Judiciary And The Theories Of Law It Follows
- IJLLR Journal
- Jun 29
- 2 min read
Varna Srinivasan & Aditya A Rao, B.A. L.L.B. (Hons.), O.P. Jindal Global University
ABSTRACT
The Judiciary plays the role of a fall-back for the common man when they face disagreement with their elected government’s decisions. Historically and jurisprudentially however, the judiciary has often been a tool to enforce the sovereign’s will through the black letter of the Law. Post-colonial India saw this Austin’s command-based interpretation of the Law in its nascent stages. However, there was an apparent shift in the Judiciary’s approach, with a more nuanced and objective outlook of individual rights and morality.
This discernible shift, although, was not a gradual and seamless one. It required great judicial activism to firstly, take up the Dworkian method of forgetting precedents to cull out a different interpretation of the Law and moreover, interpret the muddled decision of the constitutional bench in Keshavananda Bharati to as Naturalist. This Paper attempts to delineate and show that this shift was a momentary period of activism by the Courts and not a linear transformation of the understanding of the Law in India. While in principle and on the prima facie language of the Courts, it appears that we have shifted to a rather naturalist and moralist understanding of the Law, the way judgments have factually and practically played out to those aggrieved reflects a tension and hesitation on the part of the Judiciary to in fact substantially enforce the naturalist rule of law.
It is thus argued and demonstrated that Hart’s inclusive positivism provides a more comprehensive and compelling framework to contextualise judicial decisions in India by viewing morality and legality as accommodating with one another rather than being exclusive vacuums.
