The Law or Constitution is what the Courts say it is. This whole article looks into the extent of judicial realism in India. In United Kingdom, after the legislative supremacy of the Parliament, there is a dominance of legal positivism, while on the other hand the constitution of U.S.A is dependent on judicial interpretation. The working of Indian Constitution is influenced by both, as we have taken the parliament and cabinet system of government from England and federalism, separation of function with judicial review from U.S.A.

Thus, the Working of Indian Constitution is betwixt the two theories i.e. analytical positivism and judicial realism. This could be easily seen from the comparison of two landmark cases of India. From the positivist approach in, A.K. Gopalan v. State of Madras, to the crossing of high water mark of American realism (emphasis applied) in the Keshavnanda Bharti Case, as the Courts in America have confined themselves to law (constitution) is what the courts say in interpreting the constitution, but in this case the Supreme Court of India went to the extent of avoiding a part of the constitution.


As per the realist, only courts can make the laws as the law laid down by the parliament stays in paper and it’s only the courts that enforce these laws by interpreting it, as per the Socioeconomic view of the judge, once the authority of the law is challenged in the courts. Jerome Frank once said, “Law laid down by the parliament is nothing but a prophecy of what the Courts will do in fact. Cardazo said the same thing, “law enacted or otherwise is a basis for prediction as to how it will be enforced by the courts. Both the jurists used equivalent words to define laws made by the legislature and it is clear that they are subtly referring to the power of judicial review as any rule made by the parliament which wrongly predicted by  the would only be a rule and cannot be called a PRINCIPLE OF LAW. Thus, infallibility of law is the jurisprudential basis of realist jurisprudence.

On the other hand analytical positivism of Austin, defines law in terms of command of the sovereign and distinguishes positive law from positive morality in order to achieve SocioEconomic ideals of a Socialist or welfare state. One of the ideal example of this legislative hegemony could be England, where parliament is both constituent and lawmaking body. Thus, certainty of law is the jurisprudential basis of positivism. The realist belief is that every judge has a different perspective of how he sees an issue. His personal, professional background & his cultural or economic likes or dislikes form influencing parameters in his decision making that is why the present constitution is more labyrinthine and extensive than the one by the constituent assembly. For e.g. The Supreme court has recognized the classifications by the legislature under article 14 of the Indian constitution, but in the case of R.C.Cooper v. UOI3 (Bank
Nationalistaion case), the S.C. held that the government had erred in class legislation which is not permitted by article 14. In the case of preventive detention, the S.C said if any law defeats the judge made constitutional requirements of clause (3) to (7) of Article 22 of the Indian Constitution, it will be declared void, but in 1973 in the S.N Sarkar v. State of West Bengal, it gave a different interpretation of Article 22(7). This shows even the judgments are infallible. That’s why in U.K., U.S.A. & India, the highest courts are not bound by their past decisions.


In India legal realism is not indispensible as no enactment can escape legal realism. The reason for the same is as follows

Law is expressed in general terms and in application and the task of specification of law to different cases is done by the court i.e. law is applied to a fact situation by the Court.

 Every law has an intent or purpose behind it. Mostly, this intent is for the socio-economic development, but the government has to curb itself under the highest law i.e. the constitution of India and it is the Supreme court which checks whether a particular legislation is ultra vires the Constitution, even if the intent behind it was laudable and bonafide.

 Open Texture – The words and phrases used in every legislation are flexible in nature in order to meet various situations. The purpose of the written law is to make it precise and accurate, which is an impossible task to achieve because of the inadequacy of human language to convey the thought and intention. Hart said, “the open texture in law leaves scope for interpretation which is given full play by the judges to their skepticism” For e.g. Obscenity is not defined in the Indian penal code, but punishment for obscene acts is available under section 292 and section 294 of the IPC. So, here the courts themselves defined whether the act of accused amounted to obscenity based on their perspective.


Legal realism is not just because of lacunae in the legislation, but also because of judicial review. The influence of legal realism in U.K., U.S.A is another major factor. Lord Edward Coke is considered the parent of doctrine of judicial review. In, India the doctrine of judicial review was adopted in Gopalan Case by referring to judgment of Marbury v. Madison. Again, in Kharak Singh v. State of UP the Court held the rule making power of the executive unconstitutional.


Judicial independence is one of the main grounds for legal realism for example, in England, Coke J. made the King’s prerogative power subject to the law or in U.S.A. the Supreme Court continued its activism against federal laws in favour of private property even after the great depression.
But in both these countries, the legislative hegemony suppressed the legal realism. In USA, President Roosevelt packed the Court in 1937 by appointing 9 new judges in the Supreme Court. This led to the overruling of many cases. In England the supremacy of the Parliament suppressed the legal realism.
India’s legal realism is divided into two parts:

1. Pre-1966:

In the first phase the conflict was not much up to 1964, in Nehru regime, because of the
existence of such Parliamentarians who drafted the Constitution as they represented both the
Parliament and the people. It was considered that people who drafted the Constitution shall be
the first priority in its interpretation. But the Supreme Court did not have institutional conflict
with the parliament as during the time of Gajendragadkar J. and the Supreme Court extended
the legal realism without any hindrance.

2. Post-1966:

In post 1966 came the reign of Subba Rao J. and Hidayatullah J. in the absence of the
Parliamentarians who drafted the Constitution. This was the time when the legal realism
flourished even more as unlike in US and UK the packing of Courts would have had no effect
on the Supreme Court of India as there was no scarcity of talent. But the Supreme Court used
this influence and entered into a totally different field of political power which could be seen in
the judgment of Sankari Prasad v. Union of India where the Court held that it can take up any matter exercised by any Constitutional authority. The same was clear by the statement made
by Hidayatullah J. “Politicians are able to keep the ship afloat but they are unable to steer it to
the destination”. If this statement is seen in the light of judgment given in Golakhnath and
Kesavananda Bharati case the Supreme Court had made itself the sentinel over the legislature
rather than just the interpreter of the Constitution. Thus, the Indian legal realism has crossed
the watermark of English and American realism.


Amarnath Gupta, LLM NUSRL