Indian Constitutional Morality from The Lenses of Positivism and Natural Law School

Ms.Nilam Prajapati
DOI:

Abstract

In this paper, the concept of constitutional morality as expounded by the Supreme Court of India in various landmark decisions like Manoj Narula v. Union of India, Navtej Singh Johar v. Union of India, Govt. of NCT, Delhi v. Union of India and many more, is looked and assessed through the prism of positivism and natural law school. The jurisprudential inquiry into the decisions rendered are evaluated through the theories propounded by jurists like HLA Hart, Hans Kelsen, Lon Fuller and Gustav Radbruch. In context of both the positivist Hart and Kelsen, it is found that their digression from their predecessors is infinitesimally inclined towards an internal assessment of law, whereas morality finds consonance and a place of pride in the theories of Fuller and Radbruch. Further, in its last section the paper investigates the fine contours of the seminal Hart and Fuller debate that has helped shape the modern understanding of the relationship at exits between law and morality. Appositely, this relationship is then explored within the Indian constitutional framework and in conclusion, the paper endeavours to provide a logical jurisprudential analysis to the concept of constitutional morality.

Keywords

Constitutional Morality, Separation of Law and Morals, Indian Constitution, Pure Theory of Law, Lawless Law