INTRODUCTION

DEVELOPMENT OF LAW THROUGH POPULAR CONSCIOUSNESS 1

Savigny was one of the most respected and influential German jurists in the 19thcentury and
known as the pioneer of the Historical school of law through his concept of Volksgeist (Spirit of
people). Volksgeist is the concept of law propounded by the Savigny. The term Volksgeist is
made by the two words Volks means people and geist means their common will. It means
Volksgeist means the law is a common will of the people (spirit of the people). In a simple
sense, Volksgeist is a general and common perception of the people or the spirit of the people.
Savigny is regarded as a father of the Historical school. He argued that the coherent nature of the
legal system is the usually due to the failure to understand its history and origin. According to
him, the law is “a product of times the germ of which like the germ of State, exists in the nature
of men as being made for society and which develops from this germ various forms, according to
the environing the influences which play upon it.”

Theory of Savigny can be explained in the following heads: 2 (same citations for all points except
the 3rd)

1.Law prevails basically in society: According to the Savigny, the law is the product of the
people’s life living in a particular society and it is the outcome of a culture of a society. It
embodies the whole history of a nation’s culture and reflecting inner convictions that are rooted
in society’s common experience. The Volksgeist gradually drives the law to develop over the
course of history. Thus, according to Savigny, a thorough understanding of the history of
people/society is necessary for studying the law accurately.

2. Development of Law is like a Language- Savigny pointed that law has a national character
and its development is the same as language and it binds people into one whole nation because of
their mutual faiths, beliefs and opinions. He stated that law grows with the nation and develops
when the nation develops and dies when the nation loses its nationality. Law, language, customs
and government are inseparable from the society which follows all of them. In the words of
Savigny- “… the law grows with the nation, increases with it and dies at its dissolution and is a

1
The Contributions of Savigny to the Theory of Legislation Karl A. Mollnau The American Journal of Comparative
Law Vol. 37, No. 1 (Winter, 1989), pp. 81-93 (13 pages) Published By: Oxford University Press
2
https://www.lawnotes4u.in/savignys-theory-of-volksgeist-historical-school/
characteristic of it.” His opinion was that law has not universality like language and it changes
with people and ages.3

3.Law is a continuous and regular process: Law is a continuous and unbreakable process bound
by the common culture and beliefs of society, not the product of the day. It develops by the
regular and continuous process of society. Customs and usages in society are given common
consent to be followed by the society in the beginning and the people follow them without any
hesitation, insured willingly, and those not follow become solitude in the society and finally, all
have to become common and this the thing takes the shape of law on the society.

4.Savigny’s opinion for codification of law: Savigny was against the codification of the law. He
thinks that the development of the law should be on the basis of historical knowledge and not by
the arbitral legislation.

5.The initial development of law is natural and later on, it is developed by jurists: He stated that
in the early stages law develops naturally/spontaneously according to the internal needs of the
people but after people reached a certain level of civilization, different kind of national activity
developing the law accordingly.

POPULAR CONSCIOUSNESS AND INDIAN JUDICIARY

It is on the issue of social policy that the relationship between the judiciary and public opinion
(Popular consciousness).. In the recent past, the courts have made important interventions to
decriminalize homosexuality, remove adultery as a criminal offence, ban unilateral instant
triple talaq  divorces among Muslims and permit women’s access to shrines such as Haji Ali in
Mumbai and Sabarimala in Kerala. Most of these judgments have not been greeted with
significant opposition in the court of public opinion, although there have been some murmurings
that changes to the Indian Penal Code should have been left to Parliament to work out. There was
also some fleeting unease over a misconception that by removing homosexuality as a criminal
offence the judges were also endorsing same-sex relationships. 4 Examples that law is developing
through popular consciousness.

3
https://www.lawcolumn.in/savignys-theory-of-volksgeist-an-important-element-of-historical-
school/#Theory_of_Volksgeist-_An_Important_Source_of_Law
4
https://www.telegraphindia.com/opinion/sabarimala-the-judiciary-and-public-opinion-one-size-doesn-t-fit-
all/cid/1673297
To Savigny, “law like language stands in organic connection with nature or character of the
people and evolves with the people.” Therefore, according to him, the true basis of positive law
is its existence, its reality, in the common consciousness of the people. Custom therefore is the
badge and not the ground of origin of positive law.

The recent debate on various customs and practices prevailing in the society looks upon the Law
as an instrument of social change. In the above cases, it can be clearly observed that the judiciary
has given precedence to laws and not customs that are unjust or not fit for the society today.5
Customs which are in accordance with the law has always found a place in legislation but the
customs which serve as a barrier in the deliverance of justice have been carefully dealt with.
Hence, even in the above cases, the courts have not adopted an extreme approach by blatantly
imposing a ban on the entire practice but have adopted a carefully crafted mean path to take
down only that part of the custom which acted as a hindrance in imparting justice.6

ANALYSIS OF SABRIMALA JUDGMENT

The modern, democratic state today has an institutionalized justice system wherein courts uphold
the rule of law and sometimes fill the policy lacunae involuntarily left unaddressed by the
legislature or are creatures born out of vicissitudes. However, the fact that judges of
constitutional courts adjudicate on matters of faith has always been a bone of contention in a
society as intensely drawn to religious beliefs as India. In the Indian context, such legal issues
entail a complex interplay between Articles 14, 25 and 26 of the Constitution. When these
Articles are juxtaposed, the prolonged debate that ensues contemplating the tenets of
constitutional integrity overwhelms us. The constitutional trinity of ‘liberty’, ‘equality’ and
‘dignity’ runs deeper than it appears; it is an unwritten moral code that transcends the theoretical
restrictions of codified law. Indian Young Lawyers Association vs. State of Kerala (popularly

5
T. W. Bennett and T. Vermeulen, 1980. Codification of Customary Law, Journal of African Law, Vo1.24, No.2,
p.213.
6
Bodenheimer, Edgar, Jurisprudence: The Philosophy and the Method of Law, First Indian Reprint (1996), Harvard
University Press, U.S.A., at p. 300.
known as the Sabarimala case)7 is one such contentious case, adorned with the development of
progressive feminist jurisprudence.8

The ban on ‘menstruating women’ was enforced under Rule 3(b) of the Kerala Hindu Places
of Public Worship (Authorisation of Entry) Rules 1965, which states that “Women who are
not by custom and usage allowed to enter a place of public worship shall not be entitled to
enter or offer worship in any place of public worship”. It is as distressing an irony as any that
these rules were made under a legislation, Kerala Hindu Places of Public Worship
(Authorisation of Entry) Act 1965, meant to attack discrimination and facilitate temple entry. 9

The Sabarimala verdict, pronounced over a year ago, is now subject to a batch of several
voluminous review petitions and has been referred to a seven-judge Constitution Bench by the
Supreme Court by way of a recent decision in Kantaru Rajeevaru vs. Indian Young Lawyers
Association & Ors10.11

(The tone of this paragraph is to emphasize on the fact that the popular consciousness of the
people in the 21st century was the basis of allowing women into the temple) Notions of ‘purity
and pollution’, which stigmatize individuals, have no place in our present constitutional order.”
Justice Indu Malhotra said.12
The changing circumstances of the socio-political fabric of a modern, democratic and secular
nation require an intellectually liberal approach towards constitutional interpretation. The same
ought not to be limited solely to the ‘legislative intent’ argument and at the same time, must not
transgress the core ideals of constitutional value. The contemporary approach towards
interpretation of the Constitution is that of the ‘living tree’, with judges shouldering the
responsibility of updating the Constitution so that it keeps pace with changing times. The
Sabarimala judgment is a watershed moment in the history of affirmative action as it has greased
the wheels of social integration and breathed life into feminist jurisprudence. The judicial
attitude reflected through this verdict has reviewed the status of the vertical relationship between

7
8
https://www.theleaflet.in/sabarimala-verdict-a-watershed-moment-in-the-history-of-affirmative-action/
9
https://thewire.in/law/sabrimala-temple-case-constitutional-watershed
10
11
https://www.theleaflet.in/sabarimala-verdict-a-watershed-moment-in-the-history-of-affirmative-action/
12
https://economictimes.indiatimes.com/news/politics-and-nation/supreme-court-allows-women-to-enter-sabarimala-
temple/articleshow/65989807.cms
the State and its subjects. Thereby, it asserts the opinion that rights under Part III are recognised
by the Constitution, but are not created by it. These rights are inherent, sacrosanct and
characteristic of constitutional integrity.13

ANALYSIS OF HONOUR KILLING CASES

Human Rights Watch defines "honour killings" also called a customary killing, as the acts of
violence, usually murder, committed by male family members against female family members,
who are held to have brought dishonour upon the family. A woman can be targeted by (individuals
within) her family for a variety of reasons, including: refusing to enter into an arranged marriage,
being the victim of a sexual assault, seeking a divorce—even from an abusive husband—or
(allegedly) committing adultery. The mere perception that a woman has behaved in a way that
"dishonours" her family is sufficient to trigger an attack on her life. 14

(I have mentioned many cases for understanding of the background. Citations 17 and 19 are very
important. Others are just to understand judiciary’s take on this, can be easily ignored, no
worries 😉)
Normally the cases of ‘honour killings’ were admitted inside the courts in India, in the forms of
homicide or manslaughter. But after seeing the nature and the facts of the killings, courts were
also used to follow the flimsy, so-called “honour” of the family in the name of which the heinous
crime was done and the perpetrators usually were rescued. This we can observe from the
judgement of Supreme Court, in which Justice VS Sirpurkar and Justice Deepak Verma said it
wasn’t a rarest of rare case. “The murders were the outcome of a social issue like a marriage with
a person of so-called lower caste. Such killings do not fall in the category of the rare of the
rarest as the family of the girl has to face lot of taunts and humiliation in the society for the
acts of the girl. However, time has come when we have to consider these social issues relevant
while considering death sentence in such circumstances,” they said. In other words, the court
classified the shameful caste-based ‘honour killings’ as different from other homicides in which
the maximum punishment of death can be awarded. In this case the brother of the girl, who
belonged to Uttar Pradesh, had killed five members including his brother-in-law who was a
Scheduled Caste.15

13
Id.
14 2
See, ‘Violence against women and Honour Crime’ at <http://www.hrw.org/press/2001/04/un oral12 0405.htm> as
accessed on 3rd December 2010.
 Also, on August, 2010 the Supreme Court in a case of State of U.P. v. Krishna master & Ors16
awarded life sentence to three persons who caused the death of six persons of a family in a case of
‘honour’ killing at a village in Uttar Pradesh in 1991. A Bench of Justices H.S. Bedi and J.M.
Panchal reversed the order of acquittal passed by the Allahabad High Court after the trial court
handed them the death sentence.

In a landmark judgment, in March 2010, the Karnal District Court ordered the execution of the
five perpetrators in an ‘honour killing’ case of Manoj & Babli, while giving a life sentence to the
khap (local caste-based council) head who ordered the killings of Manoj Banwala (23) and Babli
(19), two members of the same clan who eloped and married in June 2007 and later their mutilated
bodies were found a week later from an irrigation canal. In her verdict, district judge Vani Gopal
Sharma stated, "This court has gone through sleepless nights and tried to put itself in the shoes of
the offenders. Khap panchayats have functioned contrary to the constitution, ridiculed it and have
become a law unto themselves”. The case was both the first court judgement convicting khap
panchayats and the first capital punishment verdict in an honour killing case in India. The
Indian media and legal experts hailed it as a "landmark judgement". Also, few honour killing cases
go to court, and this is the first case in which the groom's family in an honour killing filed the
case.17

Also on August, 2010 the Supreme Court in a case of State of U.P. v. Krishna master &
Ors18awarded life sentence to three persons who caused the death of six persons of a family in a
case of ‘honour’ killing at a village in Uttar Pradesh in 1991.

15 7
See, ‘SC’s conflicting judgement on honour’ at

<http://news.webindia123.com/news/articles/India/20100613/1525659.html> as accessed on 8th December 2010.

16
See, CRIMINAL APPEAL NO. 1180 OF 2004, at < http://judis.nic.in/supremecourt/helddis3.aspx> as accessed on 6th
December, 2010
17
See, <http://ibnlive.in.com/news/5-get-death-penalty-in-honour-killing-case/112360-3.html?from=tn> as accessed on
7 December, 2010. See also, < http://news.bbc.co.uk/2/hi/south_asia/8595168.stm .> as accessed on 7th December,
th

2010.

18
See, CRIMINAL APPEAL NO. 1180 OF 2004, at < http://judis.nic.in/supremecourt/helddis3.aspx> as accessed on 6th
December, 2010
 Recently on June 22, 2010 the Supreme Court had issued notice to the Central
Government and nine states in the face of rising ‘Honour Killings’ across the country on
the Public Interest Litigation filed by Shakti Vahini. The court wants to know what steps
are being taken to curb such violence.19

(here starts the analysis part)

Thus we can see that in lack of any specific law on ‘Honour killing’ the judgements of the cases
are normally conflicting. But now after the landmark judgements of Supreme Court cited above
we can normally presume that where there is ‘rule of law’, law does not rescue any person to kill
anyone in the name of honour of his family or clan. 20 However, with the increase in cases of
honour killing, need arose for development of laws against it. The National Commission for
Women set up a statutory body in order to address the issues of honour killings among some
ethnic groups in North India. This body reviewed constitutional, legal and other provisions as well
as challenges women face. The NCW’s activism has contributed significantly towards the
reduction of honour killings in rural areas of North India. 21

Currently, the persons engaged in honour killing are punished within the already existing legal
framework. IPC- sections 299-304, 307, 308, 120A,B, 107-116, 34-35 apply. Violates FR of
women under art 14, 15(1), 19, 21.

The Center, which had established a coalition of Honour Killing, ministers had
previously suggested making honour killings a separate offence under the IPC
to make law enforcement agencies aware. Another idea was to amend the
Indian Evidence Act to put the burden of proof on the accused, ensuring that
khap panchayats and members of the family who committed killings would
have to prove innocence. A provision was also devised for the murderer and
perpetrator’s shared responsibility. Another amendment to the Special

19
See, ‘Honour killings and the need for new legislation’ at

<http://indialawyers.wordpress.com/2010/07/03/honour-killings-and-the-need-for-new-legislation/> as accessed on 2nd

December, 2010.

20
HONOUR KILLINGS: THE LAW IT IS AND THE LAW IT OUGHT TO BE, ANAND MISHRA*, at
http://www.manupatra.com/roundup/337/Articles/Honour%20Killing.pdf
21
See, <http://www.jeywin.com/blog/the-evil-of-honour-killing-in-india/ > as accessed on 12th of December, 2010.
 Marriages Act was introduced to shorten the time of cooling off before
marriage is licensed. The current period is one month. 22

As we all know that we don’t have any codified law on ‘honour killing.’ But alarmed by
the rise of honour killings, the Government is planning to bring a bill in the session of
Parliament (2010) to provide for deterrent punishment for ‘honour’ killings.23

the drafters of the proposed bill intend to add a clause to Section 300 of the Indian Penal
Code, 1862. Section 300 deals with the crime of murder, the maximum punishment for
which is death and/or a fine. It also wants to amend the Indian Evidence Act and the
Special Marriages Act, 1954, which would do away with the provision for the mandatory
30 days notice period for marriages intended to be solemnized under this Act. The
amendment in Special Marriage Act, 1954 is necessary because the present procedure of
getting a marriage registered is a long process. The complete process takes about 45 days.
During this period a couple may be vulnerable and incidence of killing in name of
‘honour’ may happen.

Main thing is that earlier we had no laws regarding honour killing, now with the
increase In number of such cases and with the rising consciousness of people, steps
are taken to make it an explicit offence. Altho there is still a long way to go.

REALIST SCHOOL OF JURISPRUDENCE AND ITS RELEVANCE IN INDIA

The main idea of the American school of Realism that applies to the Indian Scenario as well, is
the argument that the laws are made by judges by interpreting existing rules based on present
conditions.24 The legal philosophy of realistic school has not been accepted in sub-continent for
obvious reason that the texture of Indian social life is different from that of the American life-
style, cant be equated with Indian judicial activism. Nonetheless, the principles of realism apply

22
https://blog.ipleaders.in/honour-killings-india-need-urgent-reforms-new-
laws/#Penalties_under_IPC_Indian_Penal_Code
23
See, <http://www.jeywin.com/blog/the-evil-of-honour-killing-in-india/> as accessed on 12th of December, 2010.

24
Vd Mahajan, 5th edition, jurisprudence and legal theory, pg 563,
to the Indian legal system as it is. The recent trends in the public interest litigation which
Professor Upendra Baxi prefers to call as social action litigation’ have however, widened the
scope of judicial activism to a great extent but the judges have to formulate their decision within
the limit of constitutional frame of the law by using their interpretative skills. This in other
words, means that the judges in India cannot ignore the existing legislative statutes and
enactment. They have to confine their judicial activism within the limit of statutory law; Besides,
the doctrine of precedent which has no place in the realist philosophy, plays a significant role in
Indian judicial system in as much as precedents provide guidance to the presiding judge about
the existing position of the law in question. They are however, free to overrule the previous
decision of law in question. They are, however, free overrule the previous decision on the ground
of inconsistency, incompatibility, vagueness, change of condition, etc. Assigning reasons for
their deviation from earlier ruling. Thus the Indian legal system in India.25

The constitution of India itself provides ample scope for the judges to take into consideration the
hard realities of socioeconomic and culture life of the Indian people while dispensing social and
economic justice to them. In short, it might be repeated that however Indian law portion not
officially buy in to the pragmatist's legitimate way of thinking, it does lay incredible weight on
the useful part of the law and relates law to the real factors of public activity26.

(the mail conclusion and tone of the paragraph) realism has always been present in india but
within the constitutional framework.

Some cases in india where realism is reflected:

1. Hussainara Khatoon vs State of Bihar27

Hussainara Khatoon & Ors. is a landmark case, decided on 9th March 1979, which
provided a wider interpretation for Article 21 and held that speedy trial is the
fundamental right of every citizen. The Court directed that these under-trial detainees
whose names and were given in the list recorded by Mrs Hingorani ought to be released

25
LEGAL REALISM AND INDIAN CONSTITUTIONAL INTERPRETATIONS Author(s): U.N. GUPTA Source:
Journal of the Indian Law Institute , April-June 1975, Vol. 17, No. 2 (AprilJune 1975), pp. 212-236 Published by:
Indian Law Institute Stable URL: https://www.jstor.org/stable/43950481
26
INTERNATIONAL JOURNAL OF LEGAL SCIENCE AND INNOVATION [ISSN 2581-9453] Volume 3 |
Issue 3 2020, Overview of Legal Realism and Realist School of Jurisprudence in India SHALINI DEY AND
DEYASINI DAS
27
 as further detainment of those human beings was considered illegal and disregarding their
fundamental right under Article 21 of the Constitution since they have been in prison for
a span surpassing the greatest term that they ought to have been indicted for.28
2. M.C. Mehta v. Union of India (Shriram Industries Case)

M.C Mehta filed a PIL under Articles 21 and 32 of the Constitution and sought closure
and relocation of the Shriram Caustic Chlorine and Sulphuric Acid Plant which was
located in a thickly populated area of Delhi.

Factories were closed down immediately as Inspector of Factories and Commissioner

(Factories) issued separate orders dated December 8 and 24, 1985 . This incident took
place only a few months before Environment (Protection) Act came into force, thus
became a guiding force for having an effective law like this.

Chief Justice Bhagwati showed his deep concern for the safety of the people of the Delhi
from the leakage of hazardous substances like the one here – oleum gas. He was of the
opinion that we cannot adopt the policy to do away with chemical or hazardous industries
as they also help to improve the quality of life, a sin this case this factory, was supplying
chlorine to Delhi Water Supply Undertaking which is used to maintain the
wholesomeness of drinking water. Thus industries even if hazardous have to be set up
since they are essential for economic development and advancement of well being of the
people.. The court also suggested that a national policy will have to be evolved by the
Government for the location of toxic or hazardous industries and a decision will have to
be taken in regard of relocation of such industries with a view to eliminate risk to the
community.

This all indicates that Supreme Court in its judgement emphasized that certain standard
qualities to be laid down by the government and further it should also make law on the
management and handling of hazardous substances including the procedure to set up and
to run industry with minimal risk to humans , animals etc.29

28
https://www.legalbites.in/case-analysis-hussainara-khatoon-1979/
29
https://www.latestlaws.com/articles/case-analysis-m-c-mehta-v-union-of-india-shriram-industries-case-by-roopali-
lamba
 3. MC Mehta vs. State of Tamil Nadu30
The Court dealt with this issue with a wider perspective by taking into account the
situation of Child Labour in other parts of the country and discussed how the constitution
mandates health, development and education of children through its provisions. The court
held that Child labour was not an issue in Sivakasi alone. Therefore, it should be treated
as a national issue. It observed that the rights of children were protected under Articles
24, 39(e) and 9(f), 41, and 47 of the Indian Constitution. These articles mainly provided
for the growth and development of a child by banning child labour, providing free and
compulsory education to children, providing a dignified standard of living to the children,
etc. Domestic laws such as the Apprentices Act, Beedi and Cigar Workers Conditions of
Employment Act, Child Labour (Prohibition and Regulation) Act also protected such
rights. It was also noted that India ratified the Convention on the Rights of the Child,
which not only protects the child’s civil and political right but also extends protection to
child’s economic, social, cultural and humanitarian rights
4. Mc Mehta vs Uoi31
Showing extreme concerns for the safety of the people of Delhi from the leakage of
hazardous chemicals, J. Bhagwati stated the proposal to eliminate toxic and hazardous
factories could not be followed because they still contribute to improving the quality of
life. Industries must, therefore, be established even if they are harmful as they are
necessary to economic and social development. He was of the view that the risk or danger
factor towards the public can only be hoped to be reduced by taking all the measures
required to position these industries in an environment where the public is least
vulnerable and the safety requirements are maximized in such industries. It was also
noted that permanent factory closure would result in the unemployment of 4,000 workers
in the caustic soda factory and which would add to the social poverty problem.
Consequently, the court ordered that the factory be opened temporarily under 11
conditions and appointed a committee of experts to control the activity of the
industry. The court held that all exceptions to the rule set out in Rylands v. Fletcher are
not applicable to hazardous industries. The Court adopted the principle of absolute
30
31
 responsibility. The exception available for this case was the act of a third party or natural
calamity but the court interpreted that as the leakage was caused due to human and
mechanical errors the possibility of an act of third party and natural calamity is out of
scope and hence the principle of absolute liability is applicable here. An industry that
engages in hazardous activities that pose a potential danger to the health and safety of
those who work and live nearby is obliged to ensure that there is no harm to anybody.
5. Vishakha vs State of Rajasthan32
In the case of Vishakha & others v/s the state of Rajasthan[5], the Supreme Court
specifically underlined the definition of Sexual Harassment[6],which conveys any
unwanted or uninvited physical touch or conduct or showing of pornography or any
definable sexual comments or texts will come under the ambit of Sexual Harassment.
According to me any such conduct done directly hampers the right of women to life and
it also affects there dignity to live. It also hinders the mental and physical health of
women. Sexual harassment shall be avoided and the equality between the genders shall
be established at workplace.

The Supreme Court held out guidelines that, the person-in-charge of the particular
institution, organisation or office whether be it private or public, will be responsible in
taking effective steps to prevent sexual harassment. Penalties shall be charged from the
accused people for conducting sexual harassment. It had became a very crucial topic to
act upon for the prevention of sexual harassment women at workplace. In case of private
companies the strict rules regarding the punishment of sexual harassment shall be
included. In case the sexual harassment is conducted by the outsiders, the person-in
charge of that institution must take strict action for the conduct of such crime.33

CONCLUSION

32
33
https://www.legalserviceindia.com/legal/article-374-case-analysis-vishaka-and-others-v-s-state-of-rajasthan.html