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Jurisprudence 2 - Lecture notes 4

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REFLECTION OF JURISPRUDENCE THEORIES & INDIAN

CONSTITUTIONAL LAW IN THE LOKMANYA TILAK’S IDEOLOGY
OF ‘SWARAJYA’ (COMPLETE JUSTICE)
[IN THE CONTEXT OF NATURAL LAW & LEGAL POSITIVISM]

Shubham Gajanan Kawalkar

Asst. Prof. Of Law At TMV’s Lokmanya Tilak Law College, Pune

Keywords / Track : Swaraj & Geetarahasya.

INTRODUCTION :

Researcher in this research paper categorized his research in three parts :

I ] German Transcedental Idealism & Geeta Rahasya

II ] Jurisprudence, Concept Of Justice & Swarajya.

III ] A. Natural Law Theory

B. Legal Positivism

C. Traces Of Natural Law Theory & Legal Positivism In Tilak’s ‘Swarajya’

OBJECTIVE OF RESEARCH :

Researcher by categorizing and studying this, trying to assert that ‘How Tilak’s Ideology of
‘Swarajya’ has multidimensional approach in the context of Jurisprudential Theories and
Indian Constitutional Law’.

RESEARCH METHODOLOGY :

Doctrinal research methodology is adopted. Research is conducted on the basis of various reference
books, articles, online resources.

Primary Sources : Case laws, statutory rules and regulation.

Secondary Sources : Textbooks, Reference books, encyclopedia, online resources.

RESEARCH MODELS :

Historical Model : In this model of research historical background of natural law and positivist jurist
carried out along with B.G.Tilak’s biography.

Descriptive Model : In this model of research description of various theories regarding natural law
and positivism as well as justice has been carried out.

Analytical Model : In this model of research analytical study of natural law and positivist jurist as
well as the term ‘Swarajya’ and ‘Justice’ has been carried out.

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Comparative Model : In this model of research comparative study of both natural law and positivism
& concept of ‘Swaraj’ and ‘Justice’ has been carried out.

AIMS & OBJECTIVE :

1. To study the Idea of ‘Swarajya’ laid down by B.G. Tilak.

2. To study the philosophical aspect of the term ‘Swaraj.
3. To study Natural Law Theory and Legal Positivism.
4. To study the concept / Idea of ‘Justice’.
5. To critically analyze relevancy of the term ‘Swarajya’ ‘Justice’ with Jurisprudence Theories
& Constitutional Provision.

RESEARCH QUESTION:

Whether ‘Complete Justice’ can be achieved in the contemporary era with the philosophy or
idea of ‘Swarajya’ laid down by Lokmanya Balgangadhar Tilak?

LITERATURE REVIEW:

For the purpose, the researcher went through library material, report, internet facility which will help
in data collection and data interpretation. Following are some of the list of books researcher has used:

1. Natural Law & Natural Rights By Prof. John Finnis.

2. The Problems Of Jurisprudence By Richard A. Posner.
3. The Indian Constitution Cornerstone Of A Nation By Granville Austin.
4. Geeta Rahasya written by Balgangadhar Tilak.
5. The Arctic Home Of Vedas written by Balgangadhar Tilak.

Article On ‘Courts and its endeavour to do ‘Complete Justice’ by Dr.Justice B.S. Chauhan, Judge
Supreme Court Of India.

Article On ‘Justice vs Judiciary’ By Sudhanshu Ranjan.

RESEARCH PAPER IN BRIEF :

“There is not a doctrine in the world which has not its opponent.”

Lokmanya Tilak

Law could not be a mere skeleton but also a living organism contains values, morality and certain
objective.

I.] GERMAN TRANSCEDENTAL IDEALISM & GEETARAHASYA :

Transcedental Idealism is a doctrine founded by German philosopher Immanuel Kant in the 18th
century. Kant’s doctrine is commonly presented as the notion that time, space, and casuality are not
independently existing entities, but constitute the necessary, mental preconditions of experiencing the
world.

German Transcedental Idealist Immanual Kant (1724-1804) was an influential Prussian German
Philosopher in the age of enlightenment.
Kant derive famous maxim about ‘how to act’ called as ‘Categorical imperative’ meaning the

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maxim of your action can be made the maxim of an universal law (general action). Exactly the
same traces found in the sacred book of hinduism ‘Shrimad Bhagavadgita’ ; Chapter 3 Shlok 21
defined as “ yadyad aacharati shreshthas tattadevetaro janah; Sa yat pramaanam kurute lokas tad
anuvartate” meaning Whatsoever a great man does, that other men also do whatever he sets up as the
standard that the world follows.

The same thing was explained by Lokmanya Balgangadhar Tilak in his book called ‘Geeta
Rahasya’ with the multifacets dimension. By these he himself make an example with his unique
personality and fought against British Imperialism until last breath of his life.

Object of the Kant theory is establishment of peace in the world. Therefore, he is called as
‘World Governer’. Also, Lokmanya Tilak’s ‘Swarajya’ concept focuses on ‘Self Rule’ which
ultimate results into ‘Justice’ and ‘Peace’ in the society.

Morality is the base of Kant ideology.

Kant deduced their legal philosophy from certain fundamental principles, which discover through an
inquiry into human mind. Studying the human mind they start from one fundamental Aristotelian
Principle that ‘Man is a rational free willing being distinct from nature’. Man is subject to physical
laws of nature but also being endowed with reason . Kant pointed out that there are three functions
of human mind. i)Thinking which is nothing but a perception of ideal. ii) Volition which is nothing
but morality (free will). iii)Feeling is a power of judgement which associated with aesthetics.
Human conduct cannot be ethical one unless and until freedom is available. A slave was treated as
a animal could we expect moral conduct from them (Bonded Labour).

II.] JURISPRUDENCE, CONCEPT OF ‘JUSTICE’ & ‘SWARAJYA’ :

JURISPRUDENCE :

Jurisprudence means the most fundamental, general and theoretical plane of analysis of the social -
phenomenon called ‘law’.

Jurisprudence is considered to be ‘knowledge of law’.

“Jurisprudence is the eye of law giving an insight into the environment of which it is the expression. It
relates the law to the spirit of the time and makes it richer.”

K.Ramaswamy, J. In ESI Corpn. V. Francis De. Costa, 1993 Supp (4) SCC 100 para 41.

JUSTICE :
.
Yato dharmostute jayah – Where there is righteousness there is a victory (jayah). . .
Supreme Court Of India, Slogan.

The law is not the private property of lawyers, nor is justice the exclusive province of judges and
juries. In the final analysis, true justice is not a matter of courts and law books, but of a commitment
in each of us to liberty and mutual respect. .
th
Jimmy Carter 39 U.S.President
The literal meaning of the term justice is quality of being just; righteousness, equitableness, or
moral rightness. Jurisprudence addresses the questions about law that an intelligent lay-person of
speculative bent – not a lawyer – might think particularly interesting.
Fiat justitia, ruat caelum. – Let justice be done, though the heavens may fall. .
Justice has been the central theme of all the civilisations in the world. It was the central theme of the
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American Declaration of Independence when the colonies resolved to throw out a long standing
government when it failed to protect the dues of a man. What is justice , asked Plato. Justice a
proper, harmonious relationship between the warring parts of the person or city. According to the
Hobbes and Rousseau’s Model of Sovereignty, Justice is a process of giving and protecting the
rights and liberties of a person. .

Justice is the act by which the society/Court/Tribunal gives to a man what he is entitled to, as
opposed to protecting against injury or wrong. Therefore, while tempering the justice with mercy, the
court has to be very conscious that it has to do justice in exact conformity to some obligatory law for
the reason that human actions are found to be just or unjust as they are in conformity or in opposition
to the law. .

Justice is an illusion as the meaning and definition of ‘justice’ varies from person to person and
party to party. Party feels having got justice only and only if it succeeds before the court, though it
may not even have a justifiable claim. There are times when a party continue with adversarial
litigation just to satisfy his ego that justice is when he wins the case, without realizing that at times,
even if he wins, he may got to enjoy the fruits of the litigation for they would have dried and died
long back. It is in these situations that the court has to play a role of a mediator rather than a
conventional adjudicator and ensure that complete justice is done.
. The Fathers of the constitution, cognizant of realities of life, wisely engrafted rights,
duties and practical procedures in the nation’s Constitution for a democratic way of life. While
chapters dealing with the rights and liabilities have been included, the drafting committee also
engrained chapters on their enforceability by including institutions of Union and State judiciary within
the Constitution itself. Articles 32, 136, 142, 226, etc of the Constitution strengthen the desires of
imparting complete justice. These provisions are part of discretionary jurisdiction of the courts and
have often been invoked in matters requiring the court to intervene and ensure that rights and
entitlements of persons are duly protected. The Supreme Court has been given wide discretionary
power to do complete justice between the parties under Article 142 of the Constitution. It can pass
any order which deems fit in the facts and circumstances of the case. However an order which the
court passes in order to do complete justice between the parties must not only be consistent with the
substantive provisions of the relevant statute. In other words, this court cannot altogether ignore the
substantive provisions of a statute. This court should be slow in exercising this discretionary power
and it should not pass any order which would amount to supplanting the substantive law.
“Justice should be the end of all law. But then what is justice? Is it merely creating situations for the
realisation of one’s just expectations or is it adjustment of the rights and expectations of many in the
administration with sense of justice within the machinery administering justice in accordance with the
rules designed to attract talents? Independence, experience and knowledge must be the aim and
purpose of these Rules intended to regulate their conditions and if these Rules are not clear, these
should be so interpreted, where the courts are not fettered or bound by precedents, to ensure that
justice flows, such justice is essential for society to survive. It is important because it enables the
individuals in the administration of justice to serve justice and to identify themselves with the process.
But by rules, we cannot make justice certain in this uncertain age but all we can ensure is, attempt to
prevent injustice. Most of the problems as are apparent in working out these types of schemes and
rules have been due to the failure to see the reailty and the desire to proceed on ad hocism.
Sabyasachi Mukharji, J. In O.P. Singla v. Union Of India, (1984) 4 SCC 450, para 61.

SWARAJYA :

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Bhartiya Sanskruti Kosha – Swarajya – Vedic Concept, Originated from word ‘Swarata’ means
‘Swayam Raja’ (Self Rule)

Swarajya also having spiritual meaning – Self purification, self control, work without hopes for
returns.
Diamond Samajik Kosha – Swarajya – Self Rule – Free From External, Foreign Control.
Theodore L. Shy – Swarajya – derived from Rigveda.

In the famous article in ‘Kesari Newspaper’ – ‘Swarajya Ani Surajya’ Bal Gangadhar Tilak affirms
that Swarajya cannot be replaced by Surajya.
Swarajya – State works according to the will and interests of the people.
British Rule – For self interest.
Swarajya (self rule) cannot be replaced by Surajya (good rule).
Tilak’s strongly believe that Social and political reforms possible only in Swarajya.

DEMOCRATIC UNDERCURRENT IN LOKMANYA TILAK’S CONCEPT OF SWARAJYA

:

Mrs. Shanta Sathe in her famous book has divided the concept of swarajya in three types – 1st
Type : Rulers native – does not work in the interest of the people eg. Czar regime in Russia.
2nd Type : Rulers native – They work for nation – lack peoples participation in descision making.
3rd Type of Swarajya : According to the ‘will of the people and run by the people.’

According to Tilak amongst the three the 3rd type is the best type.
He says Swarajya is ‘Peoples Rule’ instead of ‘Bureaucracy’.

III.]

A. Natural Law Theory :

Basic aim of natural law theory provides ‘moral justification’ to the social, legal, political &
economical system. Natural Law is nothing but a Morality. Essence of natural law lies in the constant
assertion that there are certain objective, moral assertion/principles which deduced from rule of
nature. Morality is nothing but a certain accepted norms in society. Moral is what individual
believes it is reasonable rational. Principle Of Morality is unwritten. Natural Rights Theory
influenced by natural rights theory and vice versa. It is inseparable from each other. History of natural
law is the history of mankind and search for absolute justice, right from beginning human species in
the world. With the passage of time history of natural law theory underwent changes with changing
time. However, two principles of natural law theory remain unchanged :

1. Universal order governing all men. 2. Inalienable rights of individual.

Doctrine Of Equality

is the basic essence of natural law theory. They cannot be revoked / waived.
Reflection of this found in Art.14 of the Indian Constitution Equality before law – The state shall not
deny to any person equality before law or equal protection of the laws within the territory of India.
Natural law theory developed in three stages; 1. Natural law as divine origin. 2. Natural law as human
reason. 3. Natural law with changing content / Revival of natural law.

St.Thomas Acquinas : (1226-1274)

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Narural law divine origin was first developed by St.Thomas Acquinas. According to him, the theory
of natural law is derived from God, which provides common good made by him who has care of
community & promulgated. Since the world is ruled by the divine providence the whole community of
the universe is governed by divine reason. Divine law is supreme. But the whole divine law is not
accessible to all whatever the part of its accessible the natural law has to be based upon that part of
divine law.

St.Thomas Acquinas establishes a category which seems to stand in a similar relation in human law
as eternal law does to natural law. This is the lex-divina – the positive law enacted by God himself
in the form of scripture. Eternal law 
Natural law  Divine law  Human law  Lex Divina Impact of
lex-divina can be seen in uproar by Muslims in the India after the decisions of Shah Bano Case.

Mohammad Ahmed Khan vs. Shah Bano AIR1980

In this case sacredness of shariat act, make parliament to enact a separate law on ‘Muslim Women
Protection Of Rights On Divorce Act, 1986’.

Khatoon Nisa vs. State Of U.P. AIR 1993

In this case Allahabad High Court held that triple talaq as invalid but supreme court reversed the
decision under the pretext of lex-divina.
According to St.Thomas Acquinas state is an institution. It has born out of natural phenomenon and
out of needs as such. State is a natural institution born from elementary social needs of men. St.
Thomas Acquinas maintains that the use of things must be not by man for his own benefit but also for
the common good.

Art. 39(c) speaks about distribution of material resources for public purpose.

While studying natural law as a human reason;

Separation between church & state resulted in spiritual emancipaton in individual from spiritual order
and they become free, independent and they realized that what there rights are? People were free from
religious or spiritual order which leads to think in their individualistic approach towards life, people
who wanted to exercise or enjoy their rights formed a political elite class. This newly formed political
elite class wanted to established there own authority. So some sort of struggle started between
individuals and political elite class.

Alongwith this, the commercial class wanted to exercise their economic power over economic
interest. This third front also joined into battlefield and there was a triangle formed which leads to
chaos in primitive society. This gives rise to chaos and disorder in given situation or in primitive
society. To overcome this problem they realized that if it is continued they will perish and for
securing their life and interest, they have to form an institution through which they could get
satisfaction.

The principle of social contract was found in Plato’s REPUBLIC not in exact wording but in
contextual text. The use of social contract as a definite concept in a political & legal controversy can
be traced backed to the Italian jurist Marsilius Padua who fought against the supremacy of the
church. He first developed idea that the people are the source of all political power and government is
by mandate of people and with their consent.

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Even the ruler is therefore under an obligation to people to observe the law and can be punish if he
violates that law because of this sometimes this theory called as ‘consent theory’.

The theory of social contract considered being forerunner or parallel to the theory of democracy. The
principle aspect of the social contract theory is well represented by Hugo Grotious, Thomas Hobbes,
John Locke, Jean Jacque Rousseau.

Hugo Grotious : (1583-1645)

Hugo Grotious uses the construction of social contract for two fold puroses i) internally for the
justification of the absolute duty of obedience of the people to the government. ii)internationally to
create a basis for legally binding and stable relations among the states. The second purpose indicate
the internationally recognized principle Pacta Sunt Servanda means a treaty should prevail obeyed.
This principle is also known as ‘principle of morality’. Indian Constitution is itself will of the
people. (Preamble)

According to Grotius convention of social contract is giving some object to the Constitution. An
observation that preamble is not a part of the constitution is a case of Re Berubari Union (1960)
which overruled in Keshvananda Bharati vs. State Of Kerala (1973). Hugo Grotious proposition is
opposite to Marsilius Padua’s theory in which he gives absolute power to people and Grotius theory
sovereign is absolute.

Thomas Hobbes : (1588-1679)

Thomas Hobbes in many way improved the social contract theory and made it an essential part of
system of extraordinary logical power. According to him, natural law no longer constitutes an ethical
principles but rather law of human conduct based upon observations of human nature.
Hobbes rejected the notion of morality as basis of law.
According to Hobbes, natural law no longer contain precepts but laws of human conduct based upon
observation and appreciation of human nature. He not only talked about human nature but also about
‘state of nature’. According to him, state of nature was a ‘poor, nasty, short and brutish’. Because of
this the chaos was there in which rule of survival of fidest only applies. So according to him basic
aim of natural law theory is preservation of inalienable rights, preservation of existent human being
ie. self preservation.

Similar perspective seen in Indian Constitution whereby a contract we the people of India entered
into an agreement with sovereign government according to preamble.

John Locke : (1632-1704)

John Locke essentially the great opponent of Hobbes, to whose theory of absolutism he opposed with
theory of individuals inalienable rights.

Again, he created morality is a basis of law.

According to him, basic aim of natural law theory is to provide Right to Life, Liberty & Estate.
His theory centres around – individual rights.
Government holds those rights and exercises its power in trust. It is the duty of the government to
preserve individual rights. Therefore, object of social contract is preservation of rights alongwith all
other rights ie. Right to property. Hobbes theory revolves around self – preservation while Locke’s
theory preservation of inalienable rights of individuals.
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Jean Jacque Rousseau : (1712-1788)

Rousseau described as champion of inalienable individual rights as well as of the absolute supremacy
of the community.

According to him, each individual is not subject to any other individuals but to the general will and
to obey this is to obey him.

According to him, in social contract, the government and laws of government shall be subject to
general will of the people. They shall reflect the collective will of the people.

We can say that, Part III of the Indian Constitution is a example of Locke’s proposition while Part IV
shows Rousseau’s proposition of welfare of society or state.

German Philosopher Prof. Rudolf Stammler : (1856-1938)

He also called as Neo-Kantian because he borrowed something from Kant and developed his theory
different from Kant.

According to him, morality should not be the basis of law. Law is nothing but a volition.

According to him, law shall be pure. It should not contaminated with history, pol.sci., economics,
sociology or psychology.
Law being the product of ‘will of the people’. He laid down two principles – i) Principle of respect. ii)
Maxim of participation.

i) Principle of respect – No one’s dignity could be subject to arbitrary desire of others.

ii) Maxim of participation – No one can be arbitrarily excluded from participating into the
affairs of society.

Relationship between means and ends is correlates to relation between Fundamental Rights &
Directive Principles.

Minerva Mills vs. Union Of India AIR 1980

In this case Supreme Court held that neither Fundamental Right are superior to Directive Principle nor
Directive Principle are superior to Fundamental Rights but both are complementary and
supplementary to each other.

Natural Law With Changing Content Or Revival Of Natural Law :

Legal Philosopher Prof. Lon Luvois Fuller : (1902-1978)

Morality is the basic foundation of natural law theory.

Fuller develops his theory called as Fuller’s theory of natural law and morality. There is only one
central aim which is applicable to all which is common to all ie. discovery of certain principle of
social order which enable a man to attempt satisfactory life in common way. Basic aim of his
theory is attainment of satisfactory life.

According to Prof. Fuller, the relationship between law and morality is an essential element of law.
Law as to be a law must have morality in it, there is no option or choice or freedom to law without
morality.

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Indira Nehru Gandhi vs. Raj Narain AIR 1978

Supreme Court struck down 39th Constitutional Amendment Act, 1975 as the benefit of the said
Constitutionl Amendment was only for Mrs. Indira Gandhi which lack general applicability.

Australian Philosopher Prof. John Finnis : (1940)

John Finnis rejected morality as the basis of law. According to him, natural law dosen’t necessitate a
belief in morality or comprising observance of rational principle of human behaviour.
According to him, Natural law is a set of practical reasonableness requiring ordering of human life
and human behaviour. It is not a morality but a set of principle of practical reasonableness for
ordering human life.

According to him, there are certain basic common good of which value or necessity cannot be
judged.These goods are pre-moral ie. social.

Reflection : Those are the feature of Indian Constitution.

He pointed out those goods in seven numbers. The list is not exhaustive and rigid. It is open for
addition to them. It is merely illustrative one.

Those common good are :-

i) Life
ii) Knowledge
iii) Play
iv) Aesthetic Experience
v) Sociability & Friendship
vi) Practical Reasonableness
vii) Religion

Along with these common goods Prof. Finnis talked about three methodological
requirement:
i) Need ii) Capacity iii) Function
Those seven goods and three methodological requirements collectively form a core of natural law.
By formulating link between them justice can be done.

Seven Common Goods + Three Methodological Requirements = JUSTICE

Keshvananda Bharati vs. State Of Kerala AIR 1973
The ‘basic structure’ of constitution should not altered by any constitutional amendment. Just like
these common goods represents compulsion or essentiality, such law which are contrary to these
common good. Legal system shall not curtailed or work against these ‘common goods’.
The basic aim of this theory is to ordering or to facilitate the human life along with freedom to all.
Asiad Worker Case – Concept of minimum wages, food, shelter and clothing are basic request.

British Legal Philosopher Prof. Herbert Lionel Adolphus Hart As A Natural Law Jurist : (1907-
1992)

According to him, basic object of this theory Survival Of All Not Survival Of Fidest Only. He was
recognized as founder of ‘Contemporary Jurisprudence’.

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He stressed coming togetherness of natural law of positivism he himself restored natural law from
semi-sociological natural law jurist.

According to him, ‘survival’ is prime concern for human being so it should be made most concern
for any legal system. Society is not the suicide club where everyone is intends to lead his or her life as
society is not society where survival is absent. So, Survival and security should be form as a basis of
any legal system. Because everybody runs towards security and for that survival becomes main goal
of legal system.

Main theme of Hart’s natural law is minimum content of morality which follows as natural necessity
(Person, Property & Promise). He did not laid down those ‘rules’ but then also his attempt is
recognized as to bridge a gap between positivism and natural law. Because of these he called as
‘Bridge Builder’.

Once a law comes to an existence, we don’t have authority to question the legality of that law. It
shows “Law as it is” and “not law ought to be”. To Prove the existence of any law the only question is
to answer Whether that law is enacted by sovereign legislative authority or not?
There are some characteristics of Analytical school of law 

i) Certainty and predictability of law

ii) Science of law
iii) Source of law and verifiable
iv) Sanction and essential element
v) Bindingness and authoritativeness of law.

B. LEGAL POSITIVISM :

In Natural Law Theory the source of law was ambiguous and vague which becomes a main defects of
natural law.

Theory of Positivism is emerged as a reaction against natural law.

It opposes the natural law which indicates opposition to morality.

The main profounder of positivism are :

Bentham - Utility
Austin – Command of sovereign
Kelson – Grundnorm
H.L.A. Hart – Combination of rules
Core of positivism is “law is law & is nothing to do with morality”. It means it opposed to relation
between law and morality.

Austin in his book of “Province Of Jurisprudence” says existence of law is one thing and its merits
and demerits is another thing. The law which actually existed through may happen dislike it.

English Legal Philosopher Prof. John Austin Theory Of Analytical Positivism (1790-
1859) :

It is also called as ‘Command Theory’.

According to Austin, Law is the command of sovereign. Sovereign command is not a request it is not
a will or expression of desire, it means that which is to be obeyed compulsorily and essentially.
Command indicates power and authority.
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Laws are rules set by determinate authority. Authority is a kind of concrete and specific one. Because
of this one could know the source of law.

Rules are for general application. Law could not be made for single individual only. [Indira Nehru
Gandhi vs Raj Narain AIR 1978

Hindu Jurisprudence :

In various Ved and Upnishadas, the concept of “Dharma” is taken to be a basic foundation which is
considered as supreme. Every sovereign is also bound by Dharma which is nothing but a law. Dharma
was considered as bounded duty of a sovereign. So it turned as Rajdharma. According to “Gemini”,
Dharma is that which is indicated by Vedas in conducive to the highest good. It shows relationship
of Dharma as ‘Common Good’ described by John Finnis.

Austrian Jurist, Legal & Political Philosopher Hans Kelson’s Pure Theory Of Law : (1881-1973)

Positivism was reshaped and redefined by the pure theory of kelson and is part and proof of analytical
positivism.

According to Kelson, “Law shall stand on its own”. Law is nothing but a norm.
According to him, laws are scattered in society that create ambiguity in the source of law. There is a
total heterogeneity of laws and rules. There is a kind of chaos in a legal order. Object of this theory :-
To bring homogeneity of laws and legal order because laws are scattered and becomes difficult to
trace the real source of law. Every norm derive its existence and validity
from its superior norm. The higher norm in this legal system is called as GRUNDNORM.

GRUNDNORM Constitution
Parent Act
Delegation
Sub-Delegation
Hierarchy Of Norms

Reflection : Kelson further said that basic norm a grundnorm could be constitution of parliament. In
India Constitution is a basic norm while in United Kingdom Parliament is the basis.
In the case of Jaylalitha vs. Union Of India AIR 1994
SC held that ‘Constitution’ is supreme rather than mandate of public.
Doctrine of basic structure is nothing but a grundnorm on which Constitutional law amendment is to
be tested.

British Legal Philosopher Prof. Herbert Lionel Adolphus Hart As A Postivist : (1907-
1992)

He modified the theory of Austin & Kelson. He defined the legal system as such in his book ‘Concept
Of Law’.

According to Hart, Legal System is a system of rules which are social in nature because firstly, they
regulate the conduct of a member of society and secondly, they derive from human social practices.
His definition gives an idea that in a legal system not only legal rules but also non-legal rules are also

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exists. Eg., morality, customary practices, ethics and values etc.

According to Hart, those moral rules impose certain obligation upon member of a society. Therefore
they are established in legal system.

Reflection : Art. 13(3)(a) of Indian Constitution defines law - law includes any ordinance, order, bye-
laws, rule, regulations, notifications, custom or values having in the territory of India the force of law.

C. TRACES OF NATURAL LAW & LEGAL POSITIVISM IN ‘SWARAJYA’ :

Right to life and Right to freedom are Natural Rights.

Cannotbe taken away by the state.

Tilak’s Argument : Swarajya is the natural right of Indians. To run the Political System according to
the will of the people is natural right.

Tilak’s supported natural rights, natural law theory having morality in it, swarajya ie. self rule must be
according to ‘will of the people’ as stated by Rousseau in Social Contract Theory and to the some
extent he supported legal positivism and rejected morality in it and taken practical reasonable
approach as laid down by Prof. John Finnis.

CONCLUSION :

Researcher by doing critical and analytical study of these came to the conclusion that
“Lokmanya Tilak’s Ideology can be trace by jurisprudence theories like natural law theory and legal
positivism and reflection can be found in Indian Constitution’.
It shows the depthness of thought, rational and visionary thinking of Lokmanya Tilak.

1. Swarajya concept deep rooted to natural birth right, having morality in it. (Natural Law
Theory)
2. Swarajya concept is as practical and whenever needed reject morality also and follow the
Balancing Of Interest Theory. (Legal Positivism & Semi-Sociological Theory)
3. Swarajya assert the ‘self rule’(rule by people) & follow the democratic principle as enshrined
in Preamble of Indian Constitution. As Jean Jacque Rousseau in Social Contract Theory also
emphasized on ‘General Will’ & ‘Freedom’.
4. Swarajya concept includes ‘Complete Justice’. Preamble itself suggest Justice : Social,
Economic & Political. {Art. 131,136,142,32 &226 These article itself means Supreme Court
power t give Justice.}
5. Swarajya concept also follow the ‘Utilitarianistic’ approach given by Jeremy Benthem as it
includes Right To Equality (Art.14).
6. Tilak’s ‘Swarajya’ concept talk about ‘Gender Equality’, In short, Prohibition of
discrimination on grounds of religion, race, caste, sex, place of birth or any of them (Art.15),
7. Tilak’s idea of ‘Swarajya’ by utilising Press as a weapon (Kesari Newspaper) exercise right
of Freedom Of Press, Freedom of speech and expression under [Art.19(a)].
8. Tilak’s contribution to ‘To Promote Educational awareness’ in the freedom struggle always
unforgettable & can be found in Art.21A] Right To Education.
9. Tilak’s talk about discipline in jail which relates to the Art. 22] Protection against arrest and
detention in certain cases.
10. Tilak’s talk about ‘Aatma/Soul’, he called it as a ‘living soul of nation’. These found in the
Part.IV (A) Art. 51 (A) of the Indian Constitution in the form of ‘Fundamental Duties’.

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11. Tilak’s concept of ‘Swarajya’ includes free trade which is found in Art.19](1)(g) To carry on
any occuopation, trade or business & Part XIII of Indian Constitution Art. 301-307 Trade,
Commerce & Intercourse Within The Territory Of India.
12. Tilak’s ‘Swarajya’ concept includes ‘Human Rights’ traces can be found in ‘Magna Carta
1215’, ‘Universal Declaration Of Human Rights 1948’ & now in contemporary the
commissions like National & State Human Rights Commissions are working for the
protection and enforcement of violation of human rights.

FINAL CONCLUDE :

 IN SHORT, INDIAN CONSTITUTION IS NOTHING BUT A REFLECTION OF

LOKMANYA BAL GANGADHAR TILAK’S ‘IDEA OF SWARAJYA’.

 THEREFORE, IN TRUE SENSE WIH PRACTICAL & LOGICAL WAY, WE CAN CALL
HIM ‘THE MAKER OF MODERN INDIA’

 TILAK’S IDEA OF SWARAJYA CAN BE TRACED BACK INTO THE

JURISPRUDENCE THEORIES MAINLY NATURAL LAW & LEGAL POSITIVISM.

 TO CONCLUDE, BY IDEA OF ‘SWARAJYA’ DEVELOPED BY LOKMANYA TILAK,

RESEARCHER STRONGLY BELIEVES THAT ‘COMPLETE JUSTICE’ CAN BE

ACHIEVED WITH THE HELP OF JURISPRUDENCE THORIES LIKE NATURAL LAW

& LEGAL POSITIVISM AND GUNDNORM ‘INDIAN CONSTITUTION’.

 BY DEVELOPING CONCEPT / IDEA OF ‘SWARAJYA’ TILAK ALWAYS WANTED

TO GIVE NOT ONLY JUSTICE BUT A ‘COMPLETE JUSTICE’ ( PURN SWARAJ ).

LIST OF CASES :

1. Mohammad Ahmed Khan vs. Shah Bano AIR 1985 SC 945

2. Khatoon Nisa vs. State Of U.P. AIR 1993
3. Sarla Mudgal vs. Union Of India AIR1995 SC 1995 SC 1531
4. Keshavananda Bharti vs. State Of Kerala AIR 1973 SC 1461
5. Minerva Mills vs. Union Of India AIR 1980 SC 1789
6. Saifuddin Sahib vs. State Of Bombay AIR 1962 SC 853
7. Indira Nehru Gandhi vs. Raj Narain AIR 1975 SC 2299
8. Vishakha vs. State Of Rajasthan AIR 1977 SC 241
9. People Union For Democratic Rights vs. Union Of India AIR 1982 SC 1473
10. Maneka Gandhi vs. Union Of India AIR 1978 SC 597.

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REFERENCES :

[1] The Constitution Of India Bare Act PROFESSIONAL’S Publication

[2] Indian Constitutional Law Eighth Edition M.P.Jain
[3] The Indian Constitution Cornerstone of a Nation Granville Austin
[4] The Problems Of Jurisprudence Richad A. Posner
[5] The Morality Of Law Revised Edition Lon L. Fuller
[6] Objectivity In Law And Morals Edited By Brian Leiter
[7] Rethinking Judicial Reforms Reflections On Indian Legal System Kaaleswaram Raj
[8] Justice vs Judiciary Sudhanshu Ranjan
[9] The Idea Of Justice Amartya Geeta Rahasya written by Bal Gangadhar Tilak
The Arctic Home Of Vedas written by Bal Gangadhar Tilak.

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