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REVIEW OF THE ARTICLE LEGAL REALISM AND INDIAN CONSTITUTIONAL
INTERPRETATIONS BY U.N. GUPTA

The present chapter is an article written by U.N. Gupta, this article tries to define the limits of
defining or interpreting the constitutional or statutory provisions. The Article goes on in a
contextual flow and tries to render a whole debate on the matter. The judgment like A.K.
Gopalan v. State of Madras, Kesavananda Bharti case and Sajjan Singh Case has explicitly
explains the importance of legal realism.

The importance of legal realism in the interpretations of the constitutional provisions has
been highly emphasised in this article. The author has very cleverly shown the relationships
between judicial pronouncements and constitutional changes and has established through
illustrations that a judicial interpretation when done of the case law will provide the meaning
that the judges may seem to find the most relevant. Thus it forces the parliament to narrow
the scope of interpretation while law making.

The author starts with the sense of legal realism, its impact in British common law systems.
Then he further goes on to explain the reason that the legal realism ends up mattering in the
cases where both the parties get to present a different interpretation of the provision, the
judge can create or support any interpretation based on what kind of life he has lived, what
his personal experiences are and what is the mental thinking pattern of the judge. This is
realism effecting judicial interpretations. The judge might prefer the definition of one party
over another because they end up preferring that interpretation than that provided by the
opposing counsel.

The law has to pass through legal scepticism and that is done when it is questioned in a court
of law. It has to have the integration of all factors that make up the personality of the judge.
This is what legal realism believes in. Without having the consideration for the interpretation
by the judiciary all law may end up being rejected as too narrow or not having appropriate
coverage because interpretation of the provisions is what expands and grows the law.

The author tries to understand the whole judicial process by starting to understand law. The
best interpretation which seems to provide the dimensions of the law was that of analytical
positivism and this was done by John Austin. Austinian positivists believed that the law being
the command of the sovereign should be under the control of law making body and the
personality of the law making body would be able to reflect the personalities of the laws
made.

The Author then tries to pin point the Indian constitution and says that the interpretation of
the constitution done by the courts should be able to define it in such a way that is demarcates
the limits of the other organs of the government. The judiciary should be able to change the
constitution and its verdict is to be binding on the other organs then that will be the true
application of legal realism.

The author has expressed some views on the political legal scenarios of the country taking
illustrations to try to support the judicial claim to amending the constitution at their whims
and fancies. So that the judgements dont become arbitrary in Nature it has to be ensured that
judiciary is kept independent and free from any kind of pressure or compulsion from any
organ of the government.

The whole article in its very gist is trying to understand the growth of constitutional
provisions interpretation in India through the ages. When the country had gained
independence the judiciary was trying to stay at level with the parliament by trying to support
its laws and not being too interfering in the political process. But as we progressed the
judiciary started realizing that the government had taken it for granted. The independence
envisioned by the framers of the constitution was not being brought to life any time soon.
This made the judiciary interpret the constitution a bit more independent of the political
affiliations. This gave rise to judgements such as Ak Gopalan, Keshvananda Bharthi, and SC
Advocates on record Association case, Meneka Gandhi case these all have been such
interpretations of the constitution which were never done or read that way before, and these
have proved to be a landmark and in some cases the turning point of the legal scenario of this
country. Thus the Author is trying to Imply that the major changes that been brought about in
this country have not come by legislations but by judicial interpretation of the provisions.
Thus showing that the realist dictum 'the Constitution is what courts say it is' has been highly
effective in India in shaping the details of 'the Constitution in action' in the first period
outlined above.

Thus we can see the applicability of legal realism in India and in the various ways it has
presented itself to change the course of the history of the country. The author finally tries to
conclude with the desirability of the application of legal realism and compares the scenario
with the judicial activism which is being professed by the courts. The scenario where the
courts are taking up issues against the government, tying to challenge the political system that
has been declared to be a failure by many, seems intentional locking of horns. The judiciary
might have to look below to check if it has overstepped its boundaries. The constitution is
open to interpretation but the judiciary cannot abrogate the role of other constitutional organs
of the government just to ensure that the work is done properly. This abrogation is what the
judiciary has to avoid. It should try to interpret the constitution to create a balance of power
and not collect all there is for itself.

When we try to demarcate the source of the power of these authorities we find that
constitution serves as the Grundnorm and there is no sanction above the grundnorm, and at
the top of the food chain it is a game of politics only. And no one body can always keep
winning this game. Packing of court is a recognised mild anti-reaction when politicians sense
considerations other than law in the judgments being provided. When interpretations go
soaring above the levels of the constitutional possibility and the fabric of the constitution is
stretched beyond its limits and unprecedented change in the interpretation takes place and
that becomes unconstitutional at some level as the checks and balances seem to have bcome
lost with time.