CASE STUDY ON LEGAL POSITIVISM :

A.K. GOPALAN V/S STATE OF MADRAS

BY

1] MADHAV.G.KALKATTE
2] D.P. RANE
3] MANISHA ADVANI
4] JANET PATIL
 CONCLUSION

 India’s Theory of Legal Positivism :-

 For time immemorial India’s Judiciary system has based

its rulings and landmark decisions following the Legal
Positivism. The Judges have interpreted the laws and the
guidelines have been laid down by the legislatures. Few
instances can be observed in the following cases which
clearly evidenced the influence of Positivist school of law:
In the landmark judgement of A.K. Gopalan v. State of Madras:-

The petitioner was detained under the Preventive Detention Act. The petitioner
challenged the constitutionality of the Preventive Detention Act. His contention was
that the act had infringed Article 19 and Article 21 of the Constitution of India. The 
Petitioner argued that law does not only mean a body of rules ‘lex’ but also ‘jus’ which
means fair. Therefore, the law is not only restricted to what has been written by the
legislature but it must also encompass justice and fairness. The Supreme Court here,
ruled that the Preventive Detention Act is valid even though the law is ‘lex’ and not
‘jus’. Therefore, what the legislature has noted, must be regarded as the law of the
land even though it did not necessarily render justice.

In the above cases, we can observe how despite the laws not fulfilling the
requisites of a fair law, nevertheless gave its decision considering what the law states.
The Legal Positivism was incorporated in the decision making and played a
substantial role in the previous judgements.
Analysing the above points, it can be said that
Austin’s Theory is quite incompatible to the Indian
Democratic Structure. The theory undermines the
needs of India’s legal, political and economic
environment, which is essential for maintaining
integrity, prosperity and unity. His views can be
criticised on the following grounds:
•It presumes habitual obedience i.e.; public will abide by everything they are instructed and will voluntarily obey their sovereign
figure, with a constant fear of punishment as evil consequence. They will consequently protest in resistance and cause disturbance
in society.

•It also presumes that people are perfectly politically educated

.
•It provides on room for existence of sources of law like precedents and are against the very idea of democracy and federal
structure.

•The rigidity and short-sightedness, undermine the needs of a dynamic society.

•It grants unrestricted and absolute power to the sovereign figure which ultimately leads to lawlessness, instability and chaos.

•It overlooks the international laws and policies.

THANK YOU