Realist school of jurisprudence and its analysis (Part 1)

Realism talks about the whole idea of reality. It talks about law as it is and not what it ought to be.  They mentions the importance of legal institution and it is the first school which has talked about the judiciary and their role in law making and its application further by the judiciary. It is a break from traditional approach to the definition of law and to understand what law is it is necessary to understand the operation of courts and to investigate what lawyers actually do. Realism deals with decision making process and the factors affecting these decision making processes .The factors are-

1.The personality of the judge.

2.The politics of the judge.

3.The social problems in a particular case.

4.The possibility of corruption in each interfaces of law making.

The school has distinguished between paper rules and real rules. It says that it is only the perception that courts are making the decisions out of the precedents, legislations, and other other rules and principles but if you really want to know the jurisprudence or reality behind the decision making then you have to look into the procedures of the court like how the lawyers presented the case, whether they were experienced one or not , corruption involved in judiciary, etc. This is called predictive analysis. It is the prediction done of future decisions which varies according to evolution in the society .Judgement depends on various external factors more than law written. Law needs to be redefined according to reality and taking politics into consideration. It prefers judge made laws rather than written laws.

CASE- Maneka Gandhi v. Union of India 1978 AIR 597, 1978 SCR (2) 621

This case is about a woman who is a journalist, who was about to go to other country for some official work. So, she applied for the passport under Indian passport act, 1967 and her passport was issued on 1st June, 1976. On the 4th of July 1977, Maneka received a letter from the regional passport officer intimating to her that it was decided by the government of India to impound her passport under sec. 10(3)(c) of the act “in public interest” . The petitioner was required to surrender her passport within 7 days from the receipt of that letter .Maneka Gandhi  immediately addressed a letter to the regional passport officer requesting a copy of a statement about the reason for making the order as provided in sec.10(5) .A reply was sent by the government of India ,ministry of external affairs on 6th July, 1977 stating that the government decided “in the interest of general public” not to furnish her a copy of statement of reasons for making the order as provided in sec.10(5) .Maneka Gandhi now filled a writ petition under Article 32 of constitution of India challenging the action of government in impounding her passport and declining to give reason for doing so .She challenges sec.10(3)(c) unconstitutional because it’s a violation of fundamental right under article 14, 19(1) .

This case was decided by seven judge bench .Section 10(3)(c) of Passport Act 1967 is not violative of neither Article 21 nor Article 19(1)(a) or 19 (1)(g) of Constitution of India. The court further held that the said sec 10(3)(c) Passport Act ,1967 provision also not in contradiction of Article 14. Since the said provision provides for an opportunity to be heard. The court rejected the contention of petitioner that the phrase “in the interests of the general public” is not vague .Right to travel abroad was held to be under Article 21 of constitution of India .This was considered as a landmark judgement as it overruled A.K. Gopalan and stated that there is a unique relationship between article 14 ,19 and 21. The court while delivering this landmark judgment changed the landscape of the Constitution by holding that though the phrase used in Article 21 is “procedure established by law” instead of “due process of law” however, the procedure must be free from arbitrariness and irrationality.

Aishwarya Says:

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