JURISPRUDENCE Law is the highest reason, implanted in nature, which commands what ought to be

done and forbids the opposite. True law is right reason in agreement with nature. To curtail this law is unholy, to amend it illicit, to repeal it impossible……Cicero.

Arvind Nath tripathi dsnlu

Inherent powers of the Supreme Court under the ConstitutionArticle 142 is one such provision in our

Constitution which empowers the Supreme Court to pass such "decree or order as may be necessary for doing complete justice between the parties".

K. Ramaswamy, J. in Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201, p. 250, para 60.

"The phrase 'complete justice' engrafted in Article 142(1) is the word of width couched with elasticity to meet myriad situations created by human ingenuity or cause or result of operation of statute law or law declared under Articles 32, 136 and 141 of the Constitution and cannot be cribbed or cabined within any limitations or phraseology."

S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595, p. 618, para 18

Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way." This wide definition of "justice" ensures that the Court can exercise its powers under Article 142 to do "complete justice" in a range of cases each decided by the Court based on its facts and circumstances. Article 142 also lays down no limitations regarding causes or the circumstances in which the power is to be exercised. The exercise of such power is left completely to the discretion of the highest court.

Sanchalakshri v. Vijayakumar Raghuvirprasad Mehta, (1998) 8 SCC 245 (para 8)Moreover, such power of passing any

order or decree in the interest of justice has been conferred upon the Supreme Court only vide Article 142 and in the absence of analogous provisions, the High Courts or the tribunals do not have similar powers.

Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406, SCC at p. 463, para 51No enactment made by the legislature

can limit or restrict the constitutional power of the Supreme Court under Article 142, though the Court generally take into consideration the statutory provisions regulating the matter in dispute.

Courts and its endeavor to do Complete JusticeArticle 142 can override any statutory

provision. But, in practice, the Court does not use its powers under Article 142 in direct confrontation with any express statutory provisions applicable to the case at hand. This is a self-imposed restriction but the Court can bypass the same if equitable considerations demand.

Courts and its endeavor to do Complete JusticeArticle 142 was introduced in our

Constitution to serve the interests of justice. The Supreme Court is the highest court from which no appeal lies. Its decisions are final and binding. Thus this article was included in our Constitution with a view to ensure that the interests of justice are paramount and in doing so the Supreme Court can disregard any provision which prevents the court from performing its constitutional obligations.

S. P. Gupta v. President of India( AIR 1982 SC 149)In S. P. Gupta v. President of India the

court observed"...law does not operate in a vacuum. It is therefore intended to serve a social purpose and it cannot be interpreted without taking into account the social, economic and political setting in which it is intended to operate. It is here that the Judge is called upon to perform a creative function.”

Vishaka and others V. State of Rajasthanand others.(AIR 1997 SUPREME COURT 3011)

“the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, we lay down the guidelines and norms specified hereinafter for due observance at all work places or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Art.32 of the Constitution for enforcement of the fundamental rights and it is further emphasized that this would be treated as the law declared by this Court under Art. 141 of the”.

Dr. Virendra SinghRespondent :- Banaras Hindu University, Varanasi And 3 Others WRIT - A No. - 35877 of 2015

“rules of 'natural justice' cannot remain the same under all conditions and that girls, in cases of sexual harassment, may not give evidence if a regular enquiry is held. Under since circumstance, the Committee of teachers that is constituted can record statements and no opportunity of cross-examination is required to be given nor a copy of the enquiry report is required to be supplied. The dispensation of a regular enquiry, therefore, under such circumstance does not result in violation of the principles of natural justice”.

The Dilemma of the Child Let’s suppose that a fair-haired child returns from school

one day and says to his father Child: Mr. Smith (the head master of the school) has made a new rule. No children with fair hair are to get arithmetic lessons. They are to do extra woodwork instead. I think it’s stupid, Father: Wow Child: After all, we’re at school to learn aren’t we? How can I do what I’m there for if I get arithmetic? Father: Well, it seems unfortunate, I agree. But Mr. Smith is the head master. He makes the rules. What he says goes. Child: But surely, he can’t make a rule like that? I mean, it goes against what the school is for. The school governors wouldn’t allow it. It can’t really be a rule at all, can it? Father: Um! Child: Well, I don’t think it is a rule. It can’t be. Father: And do you intend to disobey it? Child: Um!

The Rise of Legal Positivism in GermanyThe nineteenth century saw a series of

significant events such as the French revolution and the scientific and industrial developments, Technological, economic and scientific progress saw a human endeavour to pursue enlightenment through a scientific, objective approach.

John Austin (1790-1859)John Austin was born in 1790. In 1818 ,he

practiced law for seven year but without success. In 1819, he married Sarah Taylor a women of great intelligence and energy. When the university of London was founded, Austin was appointed as professor of jurisprudence and he spent the two years in preparing his lectures.

His publications had a profound influence on English jurisprudence. They include The Province of Jurisprudence Determined (1832), and Lectures on Jurisprudence.

The Command Theory: John Austin’s PositivismThe word positivism is related to the

English word ‘posit’ which means put something firmly, or imposing something on somebody. The idea is that since positivists believe that law is made by an authority and imposed on the people for obedience, the name positivism stems from this root word. Positivism is also known in two other names: Imperative, and Analytical Jurisprudence.

Definition – Austin Austin’s definition of law: a “rule laid down

for the guidance of an intelligent being by an intelligent being having power over him.”

Austin, then, defends two ideas:i) the command theory of law, andii) the separation thesis. (“The existence

of law is one thing; its merit or demerit is another.”)

Definition - AustinLaw is a command of the sovereign

enforced by sanction.. Austin.According to Austin positive law has 3

elementsSovereigntyCommand Sanction

The Separation Thesis The existence of law is one thing, its

merit or demerit is another... AustinThe determination of what the law is. ‘Is’

and ‘Ought’ must be kept separate.

Sovereignty

Sovereign may be a king or a parliament;Society must obey the sovereign;Obedience only to Sovereign;Sovereign obeys no one else;Supreme in power

Sovereignty

According to Salmond,Austin’s theory of sovereignty may be reduced to the following 3 fundamental propositions.

Sovereign power is essential in every state

Sovereign power is indivisibleSovereign power is unlimited

Command

According to Austin, law is a command given by a determinate common superior to whom the bulk of a society is in the habit of obedience and who is not in the habit of obedience to a determinate human superior, enforced by sanction. It is the element of command that is crucial to Austin's thinking, and the concept of law expressed by Austin is described as ‘the command theory’ or ‘the imperative theory’ of law.

Command

However all the command are not laws, it is only the general command which obliges to a course of conduct is law. Austin provides some exceptions which though are not commands are still in the province of jurisprudence.

Declaratory or explanatory laws Laws to repeal lawLaws of imperfect obligation

Sanction

Sanctions are essential for the existence of commands, they are, for Austin, essential to the existence of laws. There must be, he said, ‘a power to inflict an evil to the party’ in case of non compliance. A sanction can also be a further legal obligation. Thus, breach of one law (say, a traffic offence) might lead to a further obligation (to appear in court to answer charges). A chain of legal obligation is possible.

Sanction

Prof. Dias point out that distinction drawn by Austin was entirely arbitrary. He adds that the case of sanction is not the sole or even the principle motive for obedience. There are many objections to the association of duty with sanctions.

Supreme in power

The power of the sovereign is incapable of legal limitation. Austin says: ‘Supreme power limited by positive law is a flat contradiction in terms.’ One may ask what about his position in relation to the constitution? May a body be sovereign yet subject to the constitutional law? Austin answers, no. A sovereign is subject to no legal limitation. He explains that whenever there is a conflict between the principles of the constitution and the act of the sovereign, the latter must thwart the former.

Species of law ‘in the strict sense:

According to Austin laws are two kinds-Law of GodHuman lawsA class of prescriptions and proscriptions “closely

analogous” above but“improperly termed laws”: these are “rules set and enforced by mere opinion, that is, by the opinions and sentiments held or felt by an indeterminate body of men in regard to human conduct” . Examples: “the law of honor”; “the law set by fashion”; “much of what is usually termed ‘International Law”.

Criticism against Austin’s theoryRelation of law and morals overlooked;Sanction is not the only means to induce

obedience;Customs ignored;Law conferring privileges;Judge- made Law;International Law;

BenthamBentham’s legal philosophy is called

“Utilitarian Individualism”.According to him, the end of legislation

is the “greatest happiness of the greatest number”.

Utility as the “property or tendency of a thing to prevent some evil or to produce some good”.

The purpose of law is to bring pleasure and avoid pain. Pleasure and pain are the ultimate standards on which a law should be judged.

Bentham‘Expositorial’ jurisprudence-(what the

law is).‘Censorial’ jurisprudence-(what law

ought to be).An Introduction to the Principles of

Morals and Legislation-book