Positive law theory holds a lot of significance especially when it comes to human rights of marginalized groups. We can also see how our Indian constitution has kept the principles of positive law. As per article 15 (4), “Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes”.
According to this article, the state has the authority to move away from the principles of equality and make special provisions for socially and economically backward classes. Article 334 (a) of the constitution also guarantees the reservation of seats for the Scheduled Castes and the Scheduled Tribes in the House of the People and in the Legislative Assemblies of the States.95th amendment has extended the reservation in parliament to next 10 years. Articles such as article 17 have played a very important role in safeguarding these communities. As per this article 17, untouchability has been abolished and termed as a crime.
There has also been criticism on positive law, “The so-called positivist thesis that all law depends for its existence, validity and obligatoriness on its social-fact source(s) is often accompanied, as in Raz’s “exclusive legal positivism” (Raz 1980, 212–24; Raz 1985), by the thesis that judges, as the “primary law-applying institutions,” have a duty (moral, if not also legal) to decide certain sorts of case (e.g., cases where the existing legal rule would by work injustice) by applying moral principles or rules which warrant amending or even abandoning part of the existing law.”
““Inclusive” legal positivists temper this by holding that the judicial duty and authorization to depart from existing law by applying moral rules or principles is restricted to those classes of a case where an existing social-fact sourced legal rule directs the court do so; the effect of such a directive, it is said, is to include within the legal system the moral rules or principles (if any) thus pointed to.” The inclusive stand of theorists tends to go against the principles of natural law as well as positive law.
In these arguments what we can clearly observe is how positivism is divided into exclusive and inclusive categories. Both theories can be applied to the case Kamal Kant Prasad Sinha, Md. … vs Union Of India (Uoi) And Ors. on 2 April 2008. This case contains inclusive and exclusive arguments. In this case, the inclusive argument was that why the period of reservation has been increased when it was only meant for the first 10 years. Thus it violates the rights of people who are from unreserved categories. But the court has held that giving rights to certain communities does not violate the rights of another community.
They also cited in the judgment that is the moral duty of the state as well as the judiciary that the rights of the marginalized people are safeguarded. This the stand of the court was exclusive.
The views and opinions expressed by the writer are personal and do not necessarily reflect the official position of VOM.
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