Legal Positivism and the need for judicial restraint

Mr. Ritwik Sharma


In this article, the author puts forward the argument which supports the positivist school of thought while exercising judicial restraint. The article seeks to advocate the importance of the positivist school of thought in maintaining the independence of judiciary and how this school differs from the sociological school of thought.


In August 2018, the Kerala High Court registered a sou-motu PIL on the basis of a letter written by a civilian claiming that the deadly floods which occurred in Kerala were the result of human actions. The registration of the PIL had once again raised the issue of the constant tussle between judicial restraint and judicial activism.

In the past few years, the courts have taken the path of judicial adventurism to exercise the functions which are meant to be performed by the legislature or the executive. In 2016, the Supreme Court made it mandatory for all cinema halls to play the National Anthem before the commencement of a film. Moreover, the Supreme Court, while entertaining a PIL, imposed a ban on the sale of liquor in retail outlets including hotels and restaurants situated within 500 metres of any national or state highway.

Therefore, it is pertinent to understand that there is a clear distinction between the functions performed by the three organs of the government. However, this distinction has been undermined by the courts which, while showing no signs of legal positivism, have shown little restraint in exercising its wide powers guaranteed under the Indian Constitution.

The Positivist School of Thought

The central premise of the positivist school of jurisprudence is to examine law as it exists in the present form. It seeks to evaluate the first principles of law as they actually exist in a given legal framework. The exponents of the positivist school of jurisprudence believe that the most fundamental aspect of the law is its relation to the State. John Austin, a positivist, treats law as a command of the sovereign i.e., the State. The advocates of this school are neither concerned with the past of the law nor with the future of it, but they limit themselves to the study of law as it actually exists i.e., positus. Moreover, positivism is strictly concerned with only two aspects of understanding the law. Firstly, the source from which the law emanates and secondly, the procedure behind the promulgation of the law. Jeremy Bentham and John Austin are considered prime exponents of this school of thought. The other exponents of this school include Holland, Salmond, Sheldon, Markby, Amos etc. The school received backing in the United States from eminent jurists like Gray, Hohfeld and Kocourck and from Kelson and Korkunov in Europe.

How have Indian Courts interpreted Positivism?

The courts have always been in a dilemma whether to show restraint towards legislative action or not. There have been instances where the courts have shown judicial restraint by upholding the parliamentary enactment but then again, there have been occasions when the courts have departed from this position to meet socio-political necessities.

In the case of A.K. Gopalan vs. State of Madras (1950), the Supreme Court, while showcasing positivist intent, relied on the robust principle of “procedure established by law” which rejected the stance that the word “law” under Article 21 of the Indian Constitution could be interpreted to include the principle of natural justice. However, this view was overruled by the court in the case of Maneka Gandhi vs. Union of India (1978).

The glimpses of positivism in the Indian law were again visible when the courts refused to strike down stringent parliamentary enactments like MISA, POTA, and TADA etc. which dealt with internal security and terrorism but had a serious impact on individual freedom. Moreover, the court in the case of ADM Jabalpur vs. Shivkant Shukla (1976) took a positivist approach by stating that the writ of Habeas Corpus is not maintainable during the Proclamation of Emergency.  In this case the Supreme Court held that fundamental rights remain suspended during the Proclamation of Emergency and, therefore, the court cannot go into the vires of mala fides of the detention order and the writ of Habeas Corpus is not maintainable as long as he right to life and personal liberty envisaged by Article 21 itself remains suspended.

Justice Markandey Katju, while supporting this positivist approach, in the case of State of U.P. vs. Jeet Singh Bisht (2007) warned the Indian Judiciary of the danger posed by judicial activism. He stated that the judiciary must show self-restraint and refrain from encroaching the domain of legislature and executive. Moreover, he also said that judicial restraint protects the independence of the judiciary.

Positivist or Sociological? A Constant Struggle 

While positivists are unconcerned with the social repercussions of the law, the exponents of the sociological school consider law as a social phenomenon and believe that the jurists should focus on the social purpose served by law. According to this thought, the pertinent feature of law should be to delineate the common communion of men in social groups, whether past or present, ancient or modern.

The emergence of Public Interest Litigation (PIL) in the late 1970s and early 1980s created new opportunities to interpret the law in the context of its social setting. The Supreme Court in instances like the Bhopal Gas Leak case, Maneka Gandhi case, Indira Sawhney case etc. had taken a broad view keeping in the mind the socio-political situation at that time.

In 2018, the Supreme Court in the landmark verdict of Sabarimala threw open the gates of a Hindu temple that allowed women undergoing menstrual cycle to visit the temple. Moreover, the Court struck down Section 377 and 497 of the Indian Penal Code which prohibited homosexuality and adultery respectively

Over the years, the judges (particularly the Supreme Court), while exercising the inherent powers granted to the Supreme Court under Article 142 of the Indian Constitution, have created numerous opportunities for the litigants to approach the court to seek remedy. However, this dangerous practice has resulted in a massive backlog of cases and there have been calls for exercising judicial restraint.


It would be wrong to say that the court should completely refrain from exercising judicial activism. However, this approach should be used only under exceptional circumstances for instance; the monetary remedy provided by the court to the Bhopal gas leak victims. Over the years, the courts have protected the fundamental rights of the citizens through unconventional method of judicial activism.

However, the courts must look into such matters with due care and diligence. There is no doubt that the Indian Judiciary is an institution par excellence but ultimately it is the function of the legislature to make the law and of the executive to implement it. The courts must realise that a democracy can only flourish if all the three institutions work separately and independently.

Mr. Ritwik Sharma is a graduate from Amity Law School, Delhi (Batch 2013-18) and is currently a practicing lawyer.




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