In our last post, we discussed legal positivism from the perspective of John Austin, who said that the conception of law can be understood as the command of a sovereign backed by sanction.There are primarily two kinds of authority in Austin’s theory: the authority of God and the authority of the political superior. The political superior is the direct source of law, which Austin termed as ‘positive law’.He says that jurisprudence is concerned not with what law ought to be but with the question of what law is.
Austin’s theory finds support in a case in the early 1950s, A.K. Gopalan v. State of Madras (AIR 1950 SC 27) where the petitioner was detained under the Preventive Detention Act, 1950. When the constitutionality of the Act was challenged, the Supreme Court upheld the validity of the Act and stated that law is ‘lex’ and not ‘jus’. Therefore, what is laid down by the legislature is to be regarded as the law of the land even if it is not just. This is in line with Austin’s philosophy that law is ‘what is’ and not ‘what ought to be’. An instance where Austin’s theory can be found to apply is the criminal justice system in India, where contravention of law results in punishment.
When applying Austin’s theory to the Indian legal system, we are faced with a number of questions. According to Austin, sovereign is the highest authority in a political system. In a democratic system like India, who is the highest authority? The people who elect the government, the legislature which frames the laws, the executive which implements the law or the judiciary which interprets the laws? Or is it the constitution which is the touchstone on which the entire legal system is built? There is no one right answer to this. Even when it comes to the laws without sanctions such as preambles, definition clauses, repealing sections, beneficial and welfare legislations, Austin’s theory is found lacking as these are laws without sanctions.
Another lacuna in Austin’s theory is that it is based on a command duty model and does not provide any justification for the legitimacy of law and ruler. He does not take into account the source of the power of sovereign, and power is the only justification for the validity of the rules. In India however, validity of a law is based on numerous criteria and the judiciary retains the power to strike down a law if it finds it invalid. Similarly, his concept of unlimited and indivisible sovereignty wouldn’t apply in the Indian legal system, as in India, the sovereign does not have the power to command everything it desires. It is as much bound by the limitations embodied in the Constitution, as any other member of the public.
Thus, we can conclude that the notion of law and sovereignty in India is not what was envisaged by Austin. The Indian legal system, protected by the three organs of government, is a reflection of the needs of the public and has as its foundation the supremacy of the Constitution, which is contrary to the theory proposed by Austin.
[This blog is authored by Sreelakshmi S., V year student at National Law University, Jodhpur under the guidance of Professor S.K. Kaushik]