UNIT-I

Salmond states that “Jurisprudence is the name given to the certain type of investigation
into law, an investigation of an abstract, general and theoretical nature which seeks to lay
bare the essential principles of law and legal system”. Explain the nature and utility of
Jurisprudence in the light of abovementioned definition. Do you think it is the most
appropriate definition of Jurisprudence?

Different meaning has been assigned by various jurists and philosophers of the word
‘Jurisprudence’. The word is derived from the Latin word ‘Jurisprudentia’ which again can be
bifurcated into two words ‘Juris’ means legal and ‘Prudentia’ means knowledge. Many facets of
jurisprudence have been described by many philosophers and jurists. Salmond defines
jurisprudence as the science of the first principles of the civil law. According to Salmond,
jurisprudence in the specific sense includes theoretical jurisprudence; therefore, it deals not with
concrete details but with its fundamental principles and conceptions.

Salmond pointed out that jurisprudence has its own intrinsic like any other subject of serious
scholarship just as a mathematician investigates the number theory not with the aim of seeing his
findings put to practical use but by reason of the fascination which it holds for him, likewise the
writer on jurisprudence may be impelled to his subject by its intrinsic interest. The legal
researches on jurisprudence may well have their effect on contemporary sociopolitical though
and at the same time may themselves be influenced by these ideologies. Jurisprudence also has
its practical applicability. It seeks to rationalize the concepts of law which enable us to solve the
different problem involving intricacies of law. In other words, it serves to render the
complexities of law more manageable and rationale and in this way this can help to improve
practice in the field of law. That apart, jurisprudence also has great educational value. The
logical analysis of legal concepts widens the outlook of lawyers and sharpens their logical
technique. It helps them in shedding aside their rigidity and formalism and trains them to
concentrate on social realities and the functional aspects of law. It is not the form of law but the
social function of law which has relevance in modern jurisprudence. Law has to take note of the
needs of society and also of the advances in the related and relevant disciplines such as
sociology, Economic, philosophy, psychiatry etc. for instance, a proper economic theory of law
of contract may perhaps require some knowledge of economic and economic theory or a proper
grasp of criminal law may need some knowledge of criminology and psychiatry and perhaps also
of sociology.

UNIT-II
Critically examine the Natural Law Theory. Is this theory relevant today?

The natural law theory postulates that along with the system of positive, man-made law there
exists a system of law which emanates from God or reason or morals or some other such sources.
In the words of Blackstone, “those law must be obeyed which are accordant with nature; the
others are null in fact, and instead of obeying them they ought to be resisted. Humans laws must
not be permitted to contradict natural law; if a human law commands a thing forbidden by the
natural or divine law, we are bound to transgress that human law.” Natural law theory is one of
the oldest theories among all the theories. Thus, these laws are popularly said to be god made
laws. It is said to be emanated from supreme source as observed by many jurist and philosophers.
Legal thinkers have expressed diverse views on behalf of natural law. Natural law philosophy
dominated the Greece during 5th century BC when it was believed it was eternal to man. Sophist
calls it as an order of things embodies reason.

Law is a natural thing. Natural law is something that is inherent in all human beings and it is
common to all societies. It is not essential that inherent law is written officially or not. For
example, people are born with the ability to distinguish. A person can make a distinction
between good and bad no matter to which part of the globe he/she belongs to. Natural law has
been given many terms like moral law and divine law. The exponents of natural law believe that
it is above any treaty, legislation or convention.

Development of natural law theory:

Natural law theories may be broadly divided into four classes:

(a) Ancient period

(b) Medieval period
(c) Renaissance period
(d) Modern period

Ancient Period
Socrates: Socrates said that like Natural Physical Law there is a Natural Law. ‘Human Insight’
that a man has the capacity to distinguish between good and bad and is able to appreciate the
moral values. According to him it was rather appeal of insight to obey it and perhaps that was
why he preferred to drink poison in obeyance to law than to run away from the prison. This
theory was a plea for security and stability which was one of the principles needs of the age.

Aristotle:

According to him man is a part of nature in two ways first he is the part of the creature of god
and second he possess active reason by which he can shape his will. By his reason men can
discovered the eternal principles of justice the men‟s region being the part of nature the law
discovered by reason is called natural justice. Aristotle defines natural justice as that which
everywhere has the same force and that not exist by the people thinking this or that. So far as its
relation which positive law or legal justice is concern, he said that legal justice in that which is
originally indifferent but when it has been laid down is not indifferent.

Medieval Period: This period starts from 12th century to mid -4th century in the European
history. This period was dominated by Ecclesiastical doctrines which the Christian fathers
propagated for establishment of church over the states. The Christian saints especially Ambrose,
St. Augustine and Gregory propagated a view that divine law was superior to all other laws.
According to them all laws are either divine or human.

St. Thomas Aquinas defined the law as “an ordinance of reason for the common good made by
him who has the care of the community and promulgated through reason” he classified law as:- i)
Law of God or external law, ii) Natural law revealed through reason, iii) Divine law or law of
scriptures, iv) Human laws which we now called Positive law.

The Period of Renaissance: The period of renaissance in the history of development of Natural
Law may also be called the modern classical era which is marked by rationalism and emergence
of new ideas in different fields of knowledge.

Hugo Grotious: Grotius built his legal theory on ‘social contract’. His view is that political
society rests on a ‘social contract’. It is the duty of the sovereign to safeguard the citizens
because the former was given power only for that purpose. The sovereign is bound by ‘natural
law’.
Rousseau: Social contract is not a historical fact but hypothetical construction of reason. The
essence of Rousseau theory of general will was that while the individual parts with his natural
rights, in return he gets civil liberties such as freedom of speech equality, assembly etc. His
natural law theory is confined to the freedom and liberty of the individual. For him, state, law,
sovereignty, general will etc are interchangeable terms. His theory is considered to be the
forerunner of the modern jurisprudential thought and legal theory.

John Locke: According to Locke, the state of nature was a golden age, only the property was
insecure. It was for the purpose of protection of property that men entered into the ‘social
contract’. He propounded the theory of functional natural law and formulated the principles of
international law which were equally applicable to all states both during war and peace and he is
considered as the founder of modern international law. He therefore treated “Natural Law as
immutable which cannot be changed by god himself”.

Natural Law theory and its influence in Indian laws:

In Indian laws especially in Indian constitution there has been a largely impact of natural law
theory. The articles like Article 14,19and 21 has been widen widely interpreted in the Indian
scenario especially by the Indian judiciary. This could be found through the case laws.

In the case of Air India V/S Nargis Mirza, the Supreme Court had struck down the Air India
and Indian Airlines regulations on the retirement and pregnancy bar on the services of airhostess
as unconstitutional on the ground that the regulations were arbitrary and unconstitutional under
Article 14 of the Indian constitution.

In the case of Maneka Gandhi V/S Union of India, the meaning and content life and personal
liberty under article 21 of Indian constitution came up for consideration and the supreme court
held that the law established by the state should be just fair and reasonable. If one analyses the
judgement one would find reference of LOCKE’s theory whereby the natural rights of man such
as right to life, liberity and property remained with him. So, in Maneka Gandhi case also the
natural law theory principles could be evolved.

CONCLUSION:
Natural law, consisting of both existential and normative assumptions, can either be postulated,
explicitly formulated and stated, or remain postulated and unlabelled-existing as assumptions
embedded in our thought, but in the background of our attention. There are several instances and
examples which can prove the existence of natural law and its principles in contemporary times.
Principle of natural justice is incorporated in Article 31(2). Fundamental rights are protected
under Part III of the Constitution. Any law should be based on the mixture of natural law
principles of morality and justice and the positivistic principle of some fixed preposition, which
is the law as it is and even a use can be taken from the sociological or historical school.
 UNIT-III

Write short notes on:

(a) Hans Kelsen’s Pure Theory of Law.

(b) Discuss Austin’s definition of law as “trilogy of sovereign, command and sanction.”

(A) Hans Kelsen’s Pure Theory of Law:

Kelsen’s “pure theory of law” is a positivist theory that has been extremely influential in the
world of jurisprudence. Kelsen’s goal in developing the pure theory was to make possible a
value-free jurisprudence or a “science of law”. According to Kelsen, laws are scattered in the
society which creates ambiguity in the source of the law. There is a whole variety of laws and
regulations. The laws have scattered which have created the inequality of the class. There is a
kind chaos in the legal system. Therefore, Kelsen went to develop his pure principle of law to
achieve uniformity. Kelsen’s positivism is epistemic, consisting in the belief that law forms an
autonomous domain of knowledge that ought to be studied as a special legal science. Kelsen in
his work ‘Pure Theory of Law’ explained:

“The Pure Theory of Law is a theory of positive law. It is a theory of positive law in
general, not of a specific legal order. It is a general theory of law, not an interpretation of
specific national or international legal norms; but it offers a theory of interpretation. As a
theory, its exclusive purpose is to know and to describe its object. The theory attempts to
answer the question what and how the law is, not how it ought to be. It is a science of law
(jurisprudence), not legal politics. It is called a ‘pure’ theory of law, because it only
describes the law and attempts to eliminate from the object of this description everything
that is not strictly law: Its aim is to free the science of law from alien elements. This is the
methodological basis of the theory.”

According to Kelsen, a theory of law should be uniform. for example, it should be applicable at
all times and in all places. Law is a normative science and it is not a natural science based on
cause and effect like law of gravitation. A norm of law has a distinct feature. They are different
from science norm. for Kelsen law is the knowledge of hierarchy of normative relations. He does
not want to include in his theory what ought to be but for him, law is a theory of analysis that is
free from all ethical and political judgement of value.

Key Features of Kelsen’s Pure Theory of Law:

 As a Positive Law: In the first paragraph of Pure Theory of Law, Kelsen introduces his
theory as being a theory of positive law. This theory of positive law is then presented by
Kelsen as forming a hierarchy of laws which starts from a Basic Norm, i.e. ‘Grundnorm’
where all other norms are related to each other by either being inferior norms.
 Law Contains set of Rules: Kelsen emphasize that the Law contains mass of rules, and a
theory should organize them in an ordered pattern.
 Law and Morality: Kelsen’s strict separation of law and morality, is an integral part of
his presentation of the Pure Theory of Law. The application of the law, in order to be
protected from moral influence or political influence, needed to be safeguarded by its
separation from the sphere of conventional moral influence or political influence. Kelsen
did not deny that moral discussion was still possible and even to be encouraged in the
sociological domain of inter-subjective activity. However, the Pure Theory of Law was
not be subject to such influences.
 Dynamic State of Law: Kelsen discussed the dynamic theory of law. In the dynamic
theory of law, the static theory of law comes into direct contact with the governmental
administration of the state which must recognize the function of the legislature in the
writing of new law. At the same time there is also the understanding of law as being
affected by the accumulated standing law which represents the decisions of the courts
which in principle become part of the hierarchical representation of the pure theory of
law. Importantly, Kelsen allows for the legislative process to recognize the law as the
product of political and ethical debate which is the product of the activity of the
legislature before it becomes part of the domain of the static theory of law.

The Grundnorm: Core of Kelsen’s Theory

Pure theory emphasized that Law should be self-organized, tracing its validity from hierarchical
order. This part of Kelsen’s theory is not dissimilar from H.LA. Hart’s theory of secondary rules
which validate the primary rules. In Kelsen’s argument, in order to interpret an action as one of
creating or modifying the law, it is necessary to show that the relevant legal significance of the
act/event is conferred on it by some other legal norm. Central to the Pure Theory of Law is the
notion of a “basic norm”- the Grundnorm- a hypothetical norm, presupposed by the jurist, from
which in a hierarchy all ‘lower’ norms in a legal system, beginning with constitutional law, are
understood to derive authority or ‘bindingness’.

Discuss Austin’s definition of law as “trilogy of sovereign, command and sanction.”

John Austin is the founder of the analytical school. He is considered to be the ‘father of the
English Jurisprudence’. John Austin (1790-1859) was a nineteenth century British legal
philosopher who formulated the first systematic alternative to both natural law theories of law
and utilitarian approaches to law. His famous theory of law which highlighted the trilogy of
sovereign command and sanction was widely appreciated. During the starting of his career he
found the work of jurisprudence full of confusion so he decided to confine jurisprudence to a
study of law as it is, leaving the study of ideal forms of law to the science of legislation or
philosophic jurisprudence. According to Austin Jurisprudence is the philosophy of positive law
which means the law is something which is laid down by a political superior for commanding
political inferior.

For Austin, the matter of jurisprudence is ‘positive law’ law simply and strictly so called or law
set by politically superiors to political inferiors. He believed that law as a rule laid down for the
guidance of an intelligent being by an intelligent being having power over him. To him, law is
the command of sovereign requiring his subjects to do or forbear from doing something. There is
an implied treat of sanction if command is not obeyed. Law properly so called must have three
elements:-

1. Command

2. Sanction

3. Sovereign.
Austin Concept of Sovereignty:

Austin places the notion of sovereignty at the basis of his theory of law. Austin borrowed from
European experience he had. The sudden break-up of the roman empire after thousand of year of
peace full rule made people realize that peace can be maintained only through a single unified
authority with infinite power of command at its disposal.

Austin’s discussed the concept of sovereignty in his work ‘Province of Jurisprudence

Determined’ in words:

“the matter of the jurisprudence is positive law, law simply and strictly so called or laws
set by political superiors to political inferiors. A law, in the most general acceptance in
which the term is employed may be said to be a rule laid down for the guidance of an
intelligent being by an intelligent being having power over him. Of the laws set by men
to men, some are set by political superiors, sovereign; by persons exercising supreme
government, in independent political societies.”

According to Austin the purpose for which the sovereign exists is the greatest possible
advancement of human happiness, of the people of the community which the deity has
commanded it to rule.

Characteristics of Sovereign:

(i) Source of Laws: Sovereign is the source of law. Every law is set, by a sovereign persons or
body of persons.

(ii) Source of Power: Prof. Laski says that there are three implications of the definition of
sovereignty given by Austin. The state is a legal order in which there is a determinate authority
acting as the ultimate source of power.
(iii) Indivisible Power: The power of sovereign is indivisible. It cannot be divided. According to
Austin, there can only be one sovereign in the state. The totality of sovereign is vested in one
person or a body of persons.

(iv) Habitual obedient by People: The chief characteristic of sovereign lies in the power to exact
habitual obedience from the bulk of the member of the society.

Command and sanction:

Austin held that command is an expression of desire by a political superior (e.g. king, parliament
etc.) to a political inferior (e.g. subjects, citizens). The political inferior shall commit or omit an
act, under an obligation to obey the command and if, the command is disobeyed, then, the
political inferior is liable for punishment. Commands are prescribed modes of conduct by the
'sovereign'. Moreover, according to Austin, a law is a command of the sovereign backed by a
sanction and the fear or sanction supplying the motive for obedience. This idea of command and
punishment for disobeying the command is the most prominent and distinctive character of
'positive law'. It differentiates positive law from the 'principles of morality, the view of Austin is
that it is the sanction alone which induces men to obey law. His critics argued that he has ignored
the arbitrariness of command and the evilness of sanction.
 UNIT-IV

Do you agree with the view that the current trend in the Indian Supreme Court is to rely
more on the sociological school of jurisprudence and less on the positivist school? Examine
the statement in the context of Roscoe Pond’s Theory of Social Engineering?

Comte was the first writer to use the term sociology which he described as a positive science of
social facts. Subsequently, writers and jurists tried to find a link between sociology and law. The
sociological school considers law as a social phenomenon and examines the law in relation to
society. The supporters of sociological jurisprudence linked law with other social science
disciplines and treated it as a synthesis of psychology, philosophy, economics, political science,
sociology, etc. Law was an applied science employing functional methods of investigation and
analysis for solving the social and individual problem.
Bentham, who was an analytical positivist, had, by expounding the principle of utility, provided
indirect support to the sociological formulation of law. In the nineteenth and twentieth century,
the sociological approach was developed and elaborated by the jurists like Duguit, Ihering,
Ehrlich, Roscoe Pound and many others.

Roscoe Pound is regarded as one of the most noted American Sociological jurists of the
twentieth century. Kohler’s approach, in fact, inspired Roscoe Pound the most for propounding
the theory of social engineering and the balancing of social interests. Pound conceived law as a
“social engineering” its main task being to accelerate the process of social ordering by making
all possible efforts to avoid conflicts to interest of individuals in the society. Thus courts,
legislators, administrators and jurists must work with a plan and make an effort to maintain a
balance between the competing interest in the society.

Theory of Social Engineering:

Roscoe pound conceived law as a ‘social Engineering’ its main task being to accelerates the process of
social ordering by making all possible efforts to avoid conflicts of interest of individuals in the society.
Thus courts, legislators, administrators and jurists must work with a plan and make an effort to maintain a
balance between the competing interests in society. The Indian Supreme Court has adopted the view that
law should not merely be used for creating social order but rather be used to solve the problems that are
and make a better society. Former Chief Justice, K.G. Balakrishnan had once said that the role of the
judiciary has become 'more meaningful than ever' in 'social engineering' concerning the common man and
the community. pound suggested that judicial application of law should take into account the following
factors:

(a) The factual study of social effects of the administration of law.

(b) Social investigations as preliminaries to legislation.
(c) The means by which the law can be made more effective should be devised.
(d) A study of legal and philosophical aspect of judicial method.
(e) Sociological study of Legal History.
(f) Possibilities of jurisprudence of interests and reasonable solution of the individual case.

Current trend in the Indian Supreme Court is to rely more on the sociological school of
jurisprudence:

Currently Supreme Court of India is more relying on the sociological school of jurisprudence.
The sociological school shifts the centre of gravity of legal system from the statute to laws made
by judges, thus, providing the judges with discretionary powers to make laws. The positivist
school, however, encourages the distinction of law from morality and religion. The traditional
role of the Judge has been envisaged as that of an impartial arbiter who hears the forensic debate
before him and renders judgment without ever stepping into the arena of debate. Lately,
however, it has become fashionable for Judges to jump into the fray and actively participate in
the debate by supporting one side or the other and this process masquerades under the felicitous
name “judicial activism”. In the name of judicial activism, modern day Judges in India have
abandoned the traditional role of a neutral referee and have increasingly resorted to tipping the
scales of justice in the name of “distributive justice”. The legitimacy of such actions needs
critical appraisement at the hands of the legal fraternity, even at the risk of unpopularity by
swimming against the tide.

The term “judicial activism” came into currency sometime in the twentieth century to describe
the act of judicial legislation i.e. Judges making positive law. The usage of sociological
jurisprudence can be justified in very rare cases, such as the striking down of section 377 of the
Indian Penal Code by the Supreme court.
Positivist school of jurisprudence encourages the practice of judicial restraint and prevents a
situation from arising where the judges get a free handle to make laws. However, sociological
school of law promotes Judicial Activism and encourages judges to formulate laws by
understanding the situation of the society. One of the criticisms of judicial restraint is that it is
“pro-government”, “pro-rich” and “anti-social justice” and hence a “rightist” ideology. It is a
misconception to think that judicial activism arises from “left” or “right” oriented philosophies,
two terms with hazy meanings at best. Judicial activism is nothing but jumping the fence. The
fact that it is done from the “right” or “left” is hardly of significance because to an activist Judge
what he considers to be the correct philosophy matters, “leftist” or “rightist” being sheer
coincidence. In fact, as we have seen earlier, the “New Deal” cases, the Habeas
Corpus judgment, the “Hindutva” judgments and the pro-slavery judgment are instances of
activist Judges with a so-called “rightist” ideology.

Dr. Subhash Kashinath Mahajan v. The State Of Maharashtra 1: In the name of protecting
innocent non-SC persons from being 22 victimized by false complaints under the SC/ST Act, the
Supreme Court laid down three guidelines that nullify key provisions of this law: it removed the
bar on grant of anticipatory bail; even though the Mahajan case only concerns public servants, it
ruled that where the accused is a non-public servant, the police may make an arrest only after
approval by a senior superintendent of police; and it held that before registering a FIR, the police
may conduct a preliminary inquiry to ascertain the veracity of the complaint.

CONCLUSION:

The interpretation of law is in the hands of the judiciary. Recently, we notice that the judiciary
has moved away from mere literal interpretation of laws and rather focused itself on actually
solving the problems and conciliating conflicting interest. The Supreme Court of India has
gradually changed its practice from judicial restraint to judicial activism and thus, contributed to
the progress of society and social change. Roscoe Pound gives the theory of Social Engineering
in which he compared lawyers with engineers. Social Engineering is balancing the conflicting
interests of individual and the state with the help of law. In a caste and gender sensitive society,
the role of the judiciary has become ‘more meaningful than ever’ in ‘social engineering’

1
AIR 2018 SC 1498.
concerning the common man and the community. Enlarging the ambit of fundamental rights and
encouraging public interest litigation have been the hallmark of the Indian judicial system.

UNIT-V

Critically examine the concept of Justice. What is implication of John Rawls’ theory of
justice for developing countries like India?

Justice is the most important and most discussed objective of the State, and Society. It is the
basis of orderly human living. Justice demands the regulation of selfish actions of people for
securing a fair distribution, equal treatment of equals, and proportionate and just rewards for all.
It stands foe harmony between individual interests and the of society.

The word “justice” is derived from the Latin words jungere (to bind, to tie together) and jus (a
bond or tie). As a bonding or joining idea, justice serves to organise people together into a right
or fair order of relationships by distributing to each person his or her due share of rights and
duties, rewards and punishments. Justice is a means as well as an end in the legal ordering of
human society and civilization and has been theorized from the day the law, legal system and
legal methods were conceived. Justice for a legal system is a ‘purposeful enterprise’ and may
have some ideological content depending upon the nature of a political state. Chief Justice Coke
said that ‘wisdom of law and justice is wiser than man’s wisdom.’

John Rawls, a great philosopher, published several books and many articles. He is primarily
known for his book A Theory of Justice, an effort to define social justice. The work has greatly
influenced modern thought. Rawls’ theory of justice as fairness encompasses a central contention
that principles of justice is essential to the structure of a constitutional democracy. Rawls stated
that he will take the social contract idea to a higher level of abstraction. According to Rawls,
justice is what free and equal persons would agree to as basic term of social cooperation in
conditions that are gaur for this purpose. This idea he called “Justice as fairness”. The central
argument of Rawls that the principles of justice essential to the structure of constitutional
democracy must be comprehensive moral, philosophical and religious doctrine on which
agreement is not possible within the pluralism of modernity, and that the concept of justice is not
its being true to an antecedent moral order, but its congruency with our self-understanding within
history and traditions embedded in our public life. Rawls sets forth to determine the essential
principles of justice on which a good society may be based. He explains the importance of
principles of justice for two keys purposes: first, to “provide a way of assigning rights and duties
in the basic institution of society”; and secondly, to “define the appropriate distribution of the
benefits and burdens” of society. He observes that, by his definition, well-ordered societies are
due to the fact that “what is just and unjust is usually in dispute.” He further notes that a well-
ordered and perfectly just society must be formulated in a way the addresses the problems of
“efficiency. Coordination and stability.”

(a) Social Justice: Social democrats and modern liberal thinkers define social justice as the
attempt to reconstruct the social order in accordance with moral principles. Attempts are to
be continuously made to rectify social injustice. According to Barker, “Social justice is
another name for equal social rights. Social Justice aims to provide equal opportunities to
every individual to develop his inherent qualities.” In the Indian Constitution several
provisions have been provided with a view to secure social economic and political justice.
Untouchability has been constitutionally abolished.
(b) Economic Justice: Economic Justice is indeed closely related to social justice because
economic system is always an integral part of the social system. Economic rights and
opportunities available to an individual are always a part of the entire social system.
(c) Political Justice: political justice means giving equal rights and opportunities to all
citizens to take part in the administration of the country. Citizens should have the right to
vote without any discrimination on the basis of religion, colour, caste, creed, sex, birth or
status. Every citizen should have an equal right to vote and to contest elections.

Implication of John Rawls’ theory of justice in India:

The Indian Constitution was framed much before the coming of the book ‘The Theory of Justice’
but it seems as if there is some co-relation between the two. In fact, the very two principles of
justice as preferred by Rawls got influenced by the Indian Constitution but the way in which
various Fundamental Rights have been interpreted by the Supreme Court of India in later stages
seems to reflect the ideas of Rawls. Interpretation of Article 14. 15. 16 and 21 shows the
influence of Rawlsian approach. The influence of Rawls’ theory can be seen in the interpretation
of Article 14 by the Judiciary. un the case of In Re Special Courts Bill,
 “The underlining principle of the guarantee of Article 14 that all persons similarly
circumstanced should be treated alike both in privileges conferred and liabilities
imposed.”

In E.P.Royappa v. State of Tamil Nadu, the Supreme Court challenged the traditional concept
of equality which was based on reasonable classification and has laid down a new concept of
equality. Bhagwati, J., delivering the judgment on behalf of himself, Chandachur and Krishna
Iyer, JJ. Propounded the new concept of equality in the following words,

“Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed,
cabined and confined’ with traditional and doctrinaire limits. From a positivistic point of view,
equality is antithesis to arbitrariness. In fact, equality and arbitrariness are sworn enemies, one
belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute
Monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political
logic and constitutional law and therefore violative of Art.14.”

CONCLUSION:

The Theory of Justice as propounded by John Rawls has played a significant role in defining the
justice of justice which was almost impossible to define. Rawls focuses on a system which
benefits all sections of the society; equally and therefore, he propounded the theory of justice. In
Indian context the best example which suits the Rawls’ theory of Justice is the affirmative
actions as they plays an extensive role in the notion of a distributive justice.