Name-Sanket Jamuar

Id no-018/2018/1949

Semester-V

Sub- Jurisprudence

1. In order to address this issue, it is first important for the concepts of law and ethics to be set
out in the current sense for the sake of this essay. To that end, I describe the law as 'a regulatory
framework whose infringement calls for penalties of some kind by a regulatory authority, do
Note that this concept varies from the Austinian viewpoint, because it will not impose on the
sovereign the role of an origin where the law finds it to be a source. Rules and regulations would
or would not the command of Sovereign, might or might not originate from a universal source as
the School of Natural Law states, or might or might not be focused on current conditions such as
a realistic school of law states. The popular concept that extends through the entire school of
philosophy is that the breach of the law calls for retribution in the form of penalty or in some
other form.

In contrary, morality is described as 'a collection of standards that differentiate right from wrong,
virtue from sin or good from evil,' or 'a way of achieving greater attainable good.' These morality
may occur in the personal aspect of life, including when people make deliberate choices based on
moral principles that determine the essence or course of their lives. But at the other hand, it may
also occur in the public domain, where a country or indeed an area promotes its common identity
by identifying certain ideals and concepts that are inherent to its life.

The distinction between these two, which is evident as from studies of the meanings alluded to
above, would be that the infringement of the law will always call for penalties from the
regulatory authority while any deviation from the moral standards of social order might or might
n0t have an effect in the form of a punishment, or even if it does, the penalty should not always
come from the regulatory authority but instead from society in form of backlash , criticism etc.

There are two appr0aches that the jurists have elaborated while dealing with the inter-relati0nship
between law and morals. There are those which argue that c0llective judgment of a society
should
guide enforcement of laws in both public and private life of an individual. On the other hand,
there are others who have a pragmatic approach to the role of law in society and argue that law
should not be based 0nly 0n p0pular m0ral consensus. These two approaches will be discussed
briefly bef0re making a conclusi0n ab0ut their relevance in c0ntemporary times.

Idealistic Approach

As per the Idealist View, the origin of the law is the ethical understanding of the society. Law is
simply a way of securing the ultimate goal It also implies, by definition, that the legitimacy of a
specific law is subjected to the ethical understanding of society. Conformity to the law resides on
a lower plane than those of impersonal and all spiritual development is a rise from it to
the liberation of the soul1.

The main characteristics of the idealistic approach can be summarised as follows –

(i)There seems to be an abstract vision of the higher end that the society strives to attain

(ii) Law is simply a tool to achieve this goal, and its legitimacy is thus subjected to the moral
understanding of society.

(iii) Adherence to the law resides on a lower level than adherence to morality.

The idealistic approach is that the common decision of society directs the application of laws in
society. The most noticeable situations in which this approach has been illustrated are cases of
indecency. In order to decide if the work of literary and artistic production is immoral, the United
States supreme court States set out the Community Standards Test in Miller v. California2. It's
got three parts.

1. If, with regard to the implementation of prevailing norms, the average person feels that work,
taken as a whole, calls to the salacious interest

1
N.C. Mukherji, Idealism and the Conception of Morals, International Journal of Ethics, Vol.24, No. 3 (Apr., 1914
2
413 U.S. 15 (1973)
2. If the work depicts sexual activity in a manifestly objectionable manner

3. If there is a lack of significant creative, artistic, political or scientific merit in the work overall

The first standards set down in this quiz are that the determination of obscenity is based on what
the common conscious the society calls obscenity. What could be deemed obscene in one
community and society cannot be deemed obscene in another. Furthermore, given that society
and culture are complex and continually evolving over time, what could be obscene at one period
in history may not be viewed as such at another point in time.

Pragmatic Approach

In contrast to the idealistic approach, pragmatists oppose the notion that the law should be
founded on the moral general opinion of society. Pragmatists see words and ideas as a means to
resolve issues and respond to questions, and so they see law as a tool that helps society
'run.' As per pragmatists, the crucial purpose of law is to maintain peace in society. The law
should indeed be such as to ensure the stability and longevity of society.

The characteristics of the Prague Approach to the Function of Law are –

the law is not centered on certain values or beliefs or on the prevailing moral common
understanding of society;

the role of the law is to ensure the durability and balance of society, so that the law can leaves
the rest of the issues to other social agencies

Legislation should not serve as an instrument of social change.

The obvious example of a progressive approach in democratic nations is to guarantee freedom of

expression and religious freedom for its people. For example, the 1st amendment to the United
states constitution specifies that Congress shall not pass any law respecting the establishment of a
religion or preventing its free exercise and ought not violate freedom of speech and of the press3.

3
The Constitution | The White House, available at https://www.whitehouse.gov/about-the-white-house/the-
constitution/
Article 19 of the Indian Constitution guarantees freedom of expression in , while Article
25 guarantee religious freedom and conscience.

Contradictory to what could appear enticing to suggest that fundamental rights represent
an idealistic approach to the role of law I assert that, instead of an idealistic approach, the
existence of such rights actually represents a pragmatic approach to the role of law in society.
That's because the existence of such rights implies an implicit presumption that there will
be opinions and concerns within culture that do not adhere to the common consensus.
Fundamental rights guarantee that the State will not take any such step that will deny an
individual right to their own view points or to define their own morality in opposition to the
popular morality. Pragmatic approach thus, protects personal liberty of the individuals. However,
pragmatists would say that this protection to personal liberty of the individuals does not arise out
of some divine respect to the individual liberty but to the realization that the state cannot afford
to destabilize sovereignty by snatching away people’s rights. Pragmatists place stability on a
higher pedestal when it comes to enumerating what the functions of law are.

Relevance of the above approaches in contemporary era.

In effort to determine the right approach to be followed in the current period it is important which
we realize what renders the current period different from the previous periods in the sense of the
administration of law.

One of most impressive aspects of today's era is the convergence of citizens from different
regions who ignore the limits of territorial sovereignty. Although plurality of thought and belief
thrives under these circumstances, unity and cohesion are also important to the protection and
dignity of societies. As noted above, pragmatism promotes and sustains plurality, while the
idealistic approach is far more sustainable for harmony and unity.
At the current time, the legislation must be versatile enough to accept the plurality of individuals
while, at the very same time, it will strive to maintain the solidarity and harmony of people who
are having their own separate identities To this end, I propose that the idea of 'how much we can
manage to do' should direct the implementation of any particular strategy. For example, while
maintaining shared national identification is vital to the stability and dignity of a nation, we can’t
afford to impose laws at national scale that apply to each person and call for penalties if
the individual fails to comply with them.

We have neither the necessary frameworks nor the capacity to implement laws that represent a
large scale idealistic approach. The maintenance of morals and values on a broad level
must therefore be entrusted to the agents of society and not to the law.

At the micro stage, however, the Government can tend to follow an idealistic strategy in order to
advance the common interests of society. Legislation and mechanisms for the prosecution
of elected officials for violations of their vow of office could be quoted as an example As far as
the representatives of the State are concerned, an obedience to the Constitution and the principles
of the nation is required, hence, those officials are not permitted to defend themselves in the
name of freedom of speech.

Similarly, under Article 25 and 26 of the Constitution of India, the State is allowed to act as a
trustee of temples for the Hindu deities. The peculiar nature of this transaction requires that the
laws be made that examines the religious credentials of the persons appointed to the Board of
Trustees.

Conclusion – On Macro level, the pragmatic approach should guide the enforcement of laws
while to the specific situations where the preservation of collective identity and conscience is
necessary, the idealist approach should be adopted.

Comparative analysis of the School of Natural Law and Analytical Law focused on their
definition of morality
In 'Morality of Law,' the relationship between law and morality has been clarified from the point
of view of natural law. According to, it the statute or the legal framework is not to be treated as a
data or a natural reality. Rather, it is an operation that is the 'result of constant effort.' As per
Fuller, there are two facets to the morality of law – external and internal. External morality is the
"morality of ambition." Fuller claims that 'substantive natural law' can be extracted from external
morality. Internal morality, by contrast, does not adhere to external norms. It's the morality that
makes the conduct of humans by rules possible.

There are eight prerequisites of the internal morality of the law which the legal systems should
conform with if they are to succeed as a law. These are: (1) Generality, (2) Promulgation, (3)
Prospectivity, (4) Intelligibility, (5) Constant-in-self, (6) Possibility of obedience, (7) Constancy
over time, (8) Congruence between official actions and declared rules.

As per Fuller, this inner morality isn't something that emblazoned on the power of law, but rather
a crucial situation of that power itself4.

Unlike the School of Natural Law, the School of Analytical Law doesn't seem to see morality as
a basis of law. That is the sovereign body or the regulatory authority from which the rule emerges
and decides its legitimacy. Unlike morals, according to Bentham, the value of the rule is worth
questioning Accordingly, similar to him, the law must strive to the greatest good of the greatest
number.

Nevertheless, Austin took a drastic position when he described the law as a rule of sovereignty
backed by sanctions. Second, it completely overestimates the value of morality as a basis of law.
Next, he suggests that rather than some morality, it is the fear and threat of sanctions that induce
people to demonstrate obedience to law.

CONCLUSION

4
S.R. Myneni, Jurisprudence, Asia Law House 404 (2nd ed. 2017).
The School of Natural Law puts a great deal of emphasis on morality since, according to it, the
law is eternal and unalterable and is similar to the principles of morality, whereas the
enforcement authority is simply a tool for the application of those principles, while the School of
Analytical Law, by granting the enforcement authority the position of a source of law,
renders morality completely congruent on the caprice of sovereign.
2. Before tracing the method adopted by the Supreme Court in the Ayodhya Verdict, it is
important to take a quick glance at the historical and sociological approaches to the law.

According to the Historical Approach, past practises, norms and customs have influenced
the current reality of the law and the legal system. Historical Jurisprudence thus sees law as a
remnant of the past. That link law with past practices and beliefs of a society and describe,
recognise and reveal it as a manifestation of its innate sense of inner solidarity and
collective conscience expressed in traditional sentiments, thoughts, values and practices.

Sociological Approach, but at the other hand, describes law in view of its purpose As per him, the
law is not an abstract body, but instead represents social circumstances situations and
experiences. Sociological jurists consider the law as empirical science using functional
techniques of inquiry and study to solve personal and social system issues on the grounds of
knowledge gained from collateral social sciences5. In simplistic words, law is a reaction
and a product of social circumstances.

That having, said we are now following the verdict in Ayodhya, M Siddiq (D) Thr Lrs v Mahant
Suresh Das & Ors.6

The verdict of Ayodhya

The concise details that resulted to this judgement are as follows: Before 6 December 1992, there
had been a Mosque on the contested location claimed to be constructed by the 1st Mughal
emperor, Babar. Hindus claimed that the place housed a temple that was Lord Rama Birthplace,
the ninth
avatar of Vishnu, destroyed by the intruder. Throughout the British era, lawsuits for the

5
S.R. Myneni, Jurisprudence, Asia Law House 404 (2nd ed. 2017).
6
Civil Appeal Nos. 10866-10867 of 2010.
reconstruction of the temple, and the cycle kept going even after independence. But, on
December
6, 1992, a mob of thousands of people pillaged the Mosque to the ground.

Following this, the Central Government enacted a legislation in Parliament to acquire the
contested location and the land surrounding it, with a view to preserving the status quo
before ultimate adjudication The case went to the Allahabad High Court, which handed down its
judgement in October 2010, splitting the contested location into three parts, each of which was
allocated to a different group. After that all parties appeal to the Supreme Court against the
judgement of the Allahabad High Court. The Supreme Court decided in favour of the
Hindus and directed the formation of a trust by the Central Government to administer the
establishment of the temple at the contested site. On the other hand, it also stipulated that five
acres of land near the contested site would be granted to the Muslim party as compensation for
the incidents of December 1992.

In order to determine the method taken by the Supreme Court while ruling on the above, it is
important to examine the basis of the judgement.

GROUNDS:

The mere glance of the judgement shows that, although the Supreme Court recognised
the existence of a Hindu architecture even before Masjid was constructed over it
.It also acknowledged, nevertheless, that the contested structure goes all the way back to
the twelfth century, and that there was a gap of 4 century, of that there was little proof as to what
resulted therein.

It thus gave its decision on the basis of certain legal principles relating to possessive title and the
principles of adverse ownership.

The Court depended on the ' historical documents, which suggested that –
In the history of the Hindus, the contested site had always been regarded the birthplace of Shri
Rama.

That the tradition of parikrama across the contested site was pre-emptive.

In spite of the presence of a mosque on the location, the location was still perceived to be the
Lord
Ram Birthplace..

It observed that, in fact, the British regarded the fencing wall around the building, separating the
site into two parts the inner courtyard that were allocated for the Muslims to offer Namaz,
whereas the outer courtyard was for the Hindus to offer their own prayers.

Hindu witnesses suggested that Hindus used to deliver prayer within the mosque well
before establishment of the colonial government while Muslim witnesses confirmed the
existence of Hindu signs and crest in the former structure before December 1992. The Supreme
Court observed that, on the basis of historical proof, Hindus had formed a simple case of
possessive title in the outer courtyard on the grounds of long, continuous and unhindered
devotion at the contested site.

The incidents of December 1992, that contributed to the destruction of Babri Masjid,
were described by the Supreme Court as a shocking occurrence and contrary to the
values of the constitution of India, which embodied secular ideals and guaranteed the security of
the rights of religious groups. Taking that into account, the Supreme Court directed that
land nearby the contested site of 5 acres be granted to the Sunni Waqf Board for the
construction of a Mosque.

In fact, these 2 distinct directions represent the two separate approaches followed by the Court
whilst rendering the judgement. Simply put, the historical approach is followed when the Court
relies on historical facts and documents indicating that Hindus have the title of possessor to the
contested site.

But, the Court 's decision to grant the Muslim option 5 acres of land shows its
sociological approach. It should be noticed that although though the Muslim groups were not
legally eligible to five acres of land, the Court obviously gave this guidance to maintain
communal peace and to reduce sectarian strife. As this is a reaction to such social circumstances
in the nation, it represents the sociological approach of the Court.
The lawmaking role of most democracies is mainly the responsibility of the legislature. Pursuant
to the Indian constitution, the law contains ordinance, order, bye law, laws, regulations, notices,
customs or having legal force7. It's doesn't contain decisions handed down or questions
addressed by the Judges. In fact, Article 141 of the Constitution provides-"The law
established by the Supreme Court should be effective on all courts inside the Indian territory."
The use of the term
'declared' suggests that the position of the judges or the Court in the creation of the law is solely
declaratory. The Courts do not lay down the rules, they do not exercise the role of the parliament
while delivering any judgement.

However, this is not to suggest that the Courts do not play any role in the evolution of law. The
Courts are competent to adjudicate and lay down legal principles and legal norms and
mechanisms in order to achieve certain goals.

One of the well established cases where the Supreme Court laid down an extra – constitutional
norm is with respect to the appointment of judges – the collegiums system.

As initially envisaged Article 124 of the Indian constitution provides that every Supreme court
judge and Article 217 of the Constitution stated that every High Court Judge is designated by the
President in coordination with the Chief Justice of India and other persons as may be necessary.
In the case of the Supreme Court AOR Assn. v Union of India8, the Court construed
these provisions as requiring a collegiate framework to ensure the judicial independence. The
procedure of nominating a judge is started by the Chief Justice via a collegiate body of 4 other
senior judges of the Supreme Court.

In Visakha v. State of Rajasthan9, the Supreme Court, when exercising its powers under Article
142 of the Constitution to lay down regulations on the prohibition of sexual abuse of women at
work, is by far the most clear example of the Court of Justice to interfere in the shoes of the
legislature. as mOver the years, these guidelines have eventually led to and have been substituted
by the Sexual Harassment of Women at Work (Prevention, Prohibition and Redressing) Act,
2013,
enacted by the Parliament of India.

7
Constitution of India, Art. 13
8
1993) 4 SCC 441
9
AIR 1997 SC 3011
Another proof of the same is in the case of Shayra Bano & Ors. V. Union of India, where the
Court, when implementing its authority under Article 142 of the Constitution, has ruled the
practise of triple talaq (talaq-e-biddat) unconstitutional and has expressly ordered the Union of
India to enact legislation prohibiting it. Till that time, the Court further issued an injunction to the
extent that, until the same time as bill is enacted, triple talaq cannot be pronounced and a breach
of the same will result in penalty. This judgement prompted the promulgation by the Indian
parliament of the Law on Muslim Women (Protection of Rights on Marriage) Act, 2019

Conclusion

This answer first noted that both the historical and the sociological approach had been followed
by the Supreme Court when delivering the Ayodhya verdict. Whereas the dependence on
historical practises, customs and documents illustrates the historical approach taken by the
title of the contested site in favour of the Hindus, the Court's view that 5 acres of land should be
granted to the Sunni Waqf Board illustrates the sociological approach. It is because the path did
not emerge as a result of a legal right or privilege, however as a result of the need to maintain
communal peace following the conclusion of the judgement.

This answer also traced out the instances where the direct intervention by the Supreme Court led
to the making and development of law. To this end, the answer discussed that there are
three specific manners in which the Supreme Court contributes in the development of law.
Firstly, the Supreme Court lays down mechanisms for carrying out the functions of the
Constitution, e.g. the Collegium system. Secondly, the Supreme Court in the absence of the
appropriate legislation may lay down norms and guidelines to deal with any particular issue.
Thirdly, the decisions given by the Supreme Court sometimes provoke actual legislation by the
Parliament of India.