Legal Realism in India Pdf
Legal realism is due not only to shortcomings in legislation, but also to judicial review. The influence of legal realism in Britain, in the United States is another important factor. Lord Edward Coke is considered the parent of the doctrine of judicial review. In India, the doctrine of judicial review was adopted in Gopalan in reference to Marbury v. Madison. In Kharak Singh v. State of UP, the Court declared the power of the executive branch unconstitutional. The law or the constitution is what the courts say. This article examines the extent of legal realism in India. In the United Kingdom, after the legislative dominance of Parliament, legal positivism dominates, while on the other hand, the Constitution of the United States depends on judicial interpretation. The functioning of the Indian constitution is influenced both by parliamentary and cabinet governments and by federalism, by the separation of functions with judicial control of the United States. This book has a dual character in relation to Pakistani law: first, constitutionalism is considered as a broad concept of public service for an analysis of the continuous development and gradual maturation of this phenomenon in Pakistan. This effort helps to place the thesis in a rich field of legal and legal literature that examines the development of postcolonial countries in relation to their constitutional struggle and associated developments.
It provides a more descriptive framework that is useful in itself as an orderly presentation of widely available knowledge, ideally with updates on recent significant developments that did not yet include important scientific contributions from earlier times. Second, this article explores the dilemma of legal activism, also known as public interest litigation. It seeks to assess the extent to which the Pakistani judiciary can act as an autonomous entity that can legitimately position itself as superior in one way or another. Thus, the work of the Indian constitution lies between the two theories, i.e. analytical positivism and legal realism. This could easily be seen from the comparison of two landmark cases from India. From the positivist approach in A.K. Gopalan v. Madras state, for exceeding the high threshold of American realism (emphasis added) in the Keshavnanda Bharti case, since the American courts limited themselves to the law (constitution), say the courts in the interpretation of the constitution, but in this case, the Supreme Court of India went so far as to avoid part of the constitution. In the first phase, the conflict did not last long until 1964, under Nehru`s regime, due to the existence of such parliamentarians who drafted the constitution, as they represented both the parliament and the people. It was felt that those drafting the Constitution should have absolute priority in its interpretation. But the Supreme Court did not have an institutional conflict with Parliament as it did in the days of Justice Gajendragadkar, and the Supreme Court expanded legal realism without hindrance.
After 1966 came the reign of judges Subba Rao and Hidayatullah. in the absence of the parliamentarians who drafted the constitution. This is the time when legal realism flourishes even more, because, unlike the United States and the United Kingdom, the occupation of the courts would have had no effect on the Supreme Court of India, because there was no shortage of talent. But the Supreme Court used that influence and entered a completely different field of political power, which was established in Sankari Prasad v. Union of India, where the Court has ruled that it may hear any case brought by a constitutional authority. Judge Hidayatullah`s statement made the same clear point: “Politicians are able to keep the ship afloat, but they are unable to steer it to its destination. Viewed this statement in light of the Golakhnath and Kesavananda Bharati judgments, the Supreme Court has been the guardian of legislative power, not merely the interpreter of the constitution. Thus, Indian legal realism crossed the waterline of English and American realism.
The independence of the judiciary is one of the main reasons for legal realism, for example, Justice Coke subjected the king`s prerogatives to law in England or the United States. The Supreme Court continued its activism against federal laws in favor of private property even after the Great Depression. But in both countries, legislative hegemony has suppressed legal realism. In the United States, President Roosevelt filled the court in 1937 by appointing 9 new Supreme Court justices. As a result, many cases were dismissed. In England, the dominance of Parliament suppressed legal realism. India`s legal realism is divided into two parts: In modern times, the honorable Supreme Court of India has emerged with ideas that seem alien to traditional Indian social perception and culture. The Supreme Court, it is pointed out that the Court is welcomed for its progressive position on divergent issues such as homosexuality, individual sexual orientation, gender equality, marriage rights, rights related to religious practices, etc. The fact that it is important in analyzing the judicial response to all of these questions reflects the fact that, although the Supreme Court has developed an unconventional approach, it has supported its position in light of constitutional morality, when in reality it appears to be more inspired by the morality and thought process of judicial judges. Constitutional morality is a refined idea that tends to guide and compel every stakeholder in constitutional governance, whether legislative, executive or judicial, to fulfill its part of the constitutional obligation in a form consistent with the ideology of the Founding Fathers, based in particular on the inherent psyche of Indians.