By Reena
This article is based on jurisprudential analysis of Gourav Jain v Union of India[1] through the lenses of positivists. It analyses the case from perspective of H.L.A Hart and Ronald Dworkin and tries to find how judge should decide in absence of concrete rule. In the present case the writ petition was filed by advocate Gourav Jain, mentioning that directions should be given to the respondents ‘to provide separate schools with vocational training, hostels along with the medical facilities in every State and Union territory for the children of the sex workers up to the age of sixteen years.’ The purpose of such claim is to rescue them from being prey of same immoral, infernal way of life by indulging in the vile profession of sex workers. The Supreme Court after considering and admitting arguments concluded that the act to provide separate school and hostel will segregate the children of sex workers and this would not be in interest of children as well as society. It would further enhance the discrimaination and the disparity. If segregated, these children would not be able to become part of society. The court said that accommodation in hostels and other reformatory homes are adequately available to segregate them from their mothers living in sex workers homes.
Hart being a positivist considers rule as law. He says that rules are binding and obligatory, if rules are there one has to follow it otherwise consequences will be there. At the same time he also agrees that law has open texture which always remains left to be developed either by court or by officials striking balance by weighing the competing interests from case to case. The certainties of laws get communicated by legislative actions whereas the precedents communicate the uncertainties. Hart argues that when there is uncertainty judges have absolute discretion to decide either way but when rule is there, judges are bound by that rule. In the present case, question arises whether judges made law or applied law by ordering states to set up juvenile homes for sex workers’ children instead of providing separate schools and hostels? The answer to this question depends on how we define law; whether law is only about rules or does it includes principles also? If we say that law only includes rules then it is hard core positivist approach. It means the idea of law is limited here and if we include principle as part of law then it would a soft approach. But Hart’s position is that principles are outside law and judges characteristically refer to them. He says that since principles are extra legal, they are not binding therefore judges have discretion to refer them or not while deciding. In the above case judges have referred to Article 14 provides for right to equality, Article 21 provides for right to life, Article 15 provides for right against discrimination and special protective protection in favor of women and children etc. From Hartian perspective the answer to the question could be that law was already existed in form of fundamental rights and judges have only applied law. But a critique to this approach of Hart would be that there is rule of equality, non-discrimination as well as rule of special protective favor could be granted for socially and educationally backward classes including women as well as children, then why court has not allowed for separate schools for sex workers’ children. These rules are clearly laid down by the Constitution. In Hartian term when there are rules, they ought to be followed because they are obligatory and non-optional. Then in present case court should have allowed them for segregation to prevent the discrimination that faced by children and their mothers in the society. While deciding other way round court could have justified its decision on basis of doctrine of classification under Article 14. Hart’s theory fails to answer that why court has preferred one rule over the other and why judges have not decided other way round. This lacuna could be answered in Dworkinian perspective. He argues against Hart by saying that principles are part of law and they are binding. He says it is true that principles do not determine result but one cannot be negligent of these while deciding. It means relevant consideration of principles must be taken in decision making. He criticizes Hart on a point that even while exercising discretion judges are bound by principles. Dworkin says that principles are binding even though they are not clearly stated because it is incumbent upon authority to consider these standards while deciding. The principle of “dignity”, “fraternity”, “reasonableness”, “non- arbitrariness”, “socio-economic justice” etc are embedded in preamble which is core of the Constitution. Dworkin would argue that these principles remain as scoring rule in background of every rule that is laid down by the Constitution. He says that principles do not determine result but they have characteristic of weight. He would argue that in Gourav Jain v UOI the judges were bound by the principles and they weighed them and preferred the one having more weight. He says that for a rule to exist one has to recognize some principles. Principle just exists and they do not have any particular source. They emerge from morality that prevails in society. For Dworkin, the Constitution is collection of morality that prevails in society. So, it can be argued that even fundamental rights are based on certain principles. Deciding only by rights would not always correct because sometime people’s rights are also based on principles. In the present case, the court could have decided other way round by allowing separate schools for such children but it decided not to, if court has done so it would be violation of principle of non-discrimination, equality, dignity etc. In Riggs v Plamer[2] rule was already there but judges have decided on the basis of weightier principle. Therefore, Dworkin argues that even when judges have discretion they are bound by these extra legal standards. They cannot act whimsically, irrationally and illogically. The decision taken should be reasonable and for better good, that’s why in the above case court has decided not to provide separate schools and hostels for these children so that they cannot be discriminated on the basis of their genesis. Judges have considered principles underlying behind these existing rules as scoring rule which though not visible but present all the time.
Hence it can be concluded that for Hart, law is only about rules therefore principles are extra legal standards and non-obligatory. But for Dworkin law also includes principles. Judges are bound by them even when there is certain rule.
The author of this article is Reena, a fourth-year law student at National Law University, Delhi.
[1] Gourav Jain v Union of India [1997] 8 SCC 114
[2] Riggs v Plamer [1889] 115 New York 506, 22 N.E. 188
This article contains the view of the author and the publisher in no way associates with the views or ideologies of the author. All the moral rights vests with the Author(s).
Comentários