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“Justice is Blind” versus “Legal Realism”

“Justice is Blind” versus “Legal Realism”


There are two types of judicial orders. One is based on the principle that “justice is blind”, an ancient phrase attributed to the Greek goddess Themis, the goddess of divine order, fairness, and law. In simple language, justice is supposed to be impartial and objective, without looking at the parties to the litigation to maintain equality before the law, uninfluenced by bias, favouritism, or prejudice. To maintain this impartiality and objectivity, the justice system should remain “blind” to the status and power of the parties to the litigation. Everyone receives the same treatment and consideration under the law.

“Justice is blind” has been essential to many legal traditions for centuries. It reinforces the principle that laws should be applied without bias and ensures that the legal system maintains public trust and credibility.

Article 14 of the Indian Constitution is based on this principle of impartiality and objectivity: “The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” (The term “state” here encompasses all three organs: legislative, executive and judiciary.)

“Equality before the law” means that all individuals, irrespective of their status in society, are subject to the same rules and treated equally by the state. The “equal protection of laws” (a concept borrowed from the US Constitution) means that all individuals in similar situations should be treated equally. Interpreting the scope of the Article, the Supreme Court has held that while Article 14 forbids class legislation, it does not prohibit reasonable classification, provided it is based on intelligible differentia that have a rational relation to the object to be achieved.

The other type – “legal realism’ – originated in the 20th century in the USA. Some eminent American legal scholars of the 20th century argued that human judges cannot remain aloof from the ecosystem in which they work; the ground reality is that judicial decisions are bound to be influenced by social, political, and personal factors.

The credit for this revolutionary idea goes to Oliver Wendell Holmes Jr. (March 8, 1841– March 6, 1935), an American scholar and jurist, associate Justice of the US Supreme Court (December 8, 1902– January 12, 1932) and one of the most widely cited Supreme Court judges. He called himself a “legal realist” because, in his opinion, “the life of law has not been logic; it has been experience.” He rejected various kinds of formalism, i.e. studying a text without considering external influences such as culture, social context, authorship or content. Formalism became a dominant concept in academic literary study in the 1970s. His lectures and articles were published in a controversial book, The Common Law (1881).

What Holmes meant to say is that justice is no longer impartial. Subsequently, at least three American legal luminaries propagated the concept of “legal realism.” They argued that law cannot be separated from politics and that judicial decisions are influenced by social, political, and personal factors; judicial verdicts often bear the stamp of political considerations.

Jerome Frank (Sept 10, 1889 – Jan 13, 1957), who considered Holmes his hero, was an influential American legal theorist, a judge of the US Supreme Court, and a prominent supporter of the “legal realism” movement. According to him, judicial decisions are influenced by various factors beyond legal rules, including judges’ personal biases, social context, and psychological factors. In his book “Law and the Modern Mind” (1930), a highly critical of the American judicial system, he asserted that “legal realism” posits that judgments are influenced by personal experience and psychology. In the opinion of Judge Charles E. Clark (Dec 9, 1889 – Dec 13, 1963), the Dean of Yale Law School and a circuit judge of the US Court,  Frank’s book fell like a “bomb on the legal world.” The book argues that psychological factors influence judicial decisions more than objective legal premises; the decisions made by the judge and jury are determined to an enormous extent by powerful, concealed, and highly distinctive psychological prejudices that these decision-makers bring to the court-room. However, Frank had no answer to how transparency could be ensured when the judges are influenced by their political and personal views.

In another book, Courts on Trial: Myth and Reality in American Justice (1949), again critical of the American judicial system, Frank writes that judgements undermine public confidence in the legal system. In this book too, he has no answer to the question of how transparency can be ensured.

Karl Llewellyn [May 22, 1893- Feb 13, 1962] was another leading figure in the “legal realism” movement. Like his predecessors, he claimed that factors beyond the written law, such as personal biases, public policy considerations, and societal norms, often influenced judges’ decisions. His book The Bramble Bush (1930) critiques traditional legal thought and emphasises the importance of understanding the practical aspects of law. He believed that formal rules often needed to capture the complexities of actual legal practice. His ideas profoundly impacted legal education, encouraging a more practical and interdisciplinary approach to studying law. He left a lasting impact on theory and practice.

One more important name is that of legal philosopher Duncan Kennedy (born 1942), who asserts that law is inherently political and deeply intertwined with socio-political power structures. He is one of the founders of the critical legal studies (CLS) movement that challenges the notion that the jury is neutral, objective and apolitical. His book Legal Education and the Reproduction of Hierarchy (1983) is an influential critique of legal education in the USA, arguing that it perpetuates social hierarchies and power imbalances by shaping students’ perspectives and roles in the legal profession. In his book A Critique of Adjudication (1997), he argues that judicial decisions are often influenced by political and social factors rather than purely based on legal reasoning.

Three case studies from India

India has not produced Holmes, Frank, Llewellyn, or Duncan Kennedy nor has there been an open debate on “justice is blind” versus “legal realism.” However, there is a reasonable amount of criticism of judicial decisions in the mainstream and social media.

Here, we examine three case studies to determine whether the judgements were based on the old principle of “justice is blind” or on “legal realism.”

Arvind Kejriwal case

The first case is that of Delhi Chief Minister Arvind Kejriwal. Between November 2, 2023, and March 21, 2024, the enforcement directorate (ED) issued nine summons under the Prevention of Money Laundering Act to examine him in a money laundering case linked to a liquor scam. He refused to comply and argued that the summons were politically motivated and illegal. After his refusal to comply with the ninth summon, ED brought him from his residence and put him behind the bar.

Kejriwal challenged his arrest before the trial court and then in the Delhi High Court. Having failed to get relief, he approached the Supreme Court. After hearing both parties but without going into the legality of the arrest, a bench of two judges decided to grant him interim bail on May 10 for the election campaign without functioning as chief minister. He was directed to surrender to the authorities on June 2, 2024, which he did.

Solicitor General Tushar Mehta and Additional Solicitor General S V RajuI strongly argued against interim bail. They cautioned the court against setting a precedent for politicians being released on bail to conduct campaign activities. Mehta argued that politicians could not be favoured compared to other litigants. He argued that such an order could have more significant implications, mentioning the case of Khalistani Amrit Pal Singh who was contesting elections despite being imprisoned. He, too, was seeking bail. (Despite the denial of bail, he was elected a member of the Lok Sabha.)

The apex court did not agree, though. Justice Sanjiv Khanna said, “While granting interim bail, we examine whether there will be any misuse or if the person is a hardened criminal. That is not the case here.” The court noted, “Arvind Kejriwal is the Chief Minister of Delhi and a leader of one of the national parties.”

Hemant Soren case

The ED had issued eight summons under the Prevention of Money Laundering Act to examine Jharkhand Chief Minister Hemant Soren for any connection with the Ranchi land scam case. In response to the last summon, he appeared on January 31 and was arrested on the same day. Before his arrest, he had resigned from the post of chief minister. After his arrest, he applied for bail to campaign for election. After the lower court and High Court rejected his bail, he approached the Supreme Court. The apex court rejected his bail petition on May 22, 2024

The legal question is, was the Supreme Court justified in granting interim bail to Arvind Kejriwal for campaigning in the election but denying the same to Soren, who also wanted to campaign? Prima facie, both were on the same footing. Article 14 of the Indian Constitution grants all persons the right to equality before the law, though the Supreme Court permits reasonable classification.

Is there a basis for keeping Arvind Kejriwal and Hemant Soren in two different classes? If “justice is blind,” there is hardly any difference between the two cases. Both were arrested on the money laundering charge, where bail is difficult. Both wanted an interim bill for an election campaign. However, the two Hon’ble judges treated two political leaders differently.

The only difference between the two cases is that Kejriwal was chief minister before his arrest and continues to hold the post and is the head of a national party, Soren resigned before his arrest and is. The Supreme Court considered Kejriewal’s status as the chief minister and chief of a national political party.  

 There is no law that a chief minister who also happens to be head of a National Party is entitled to bail for campaigning in an election while an ordinary MLA in jail is not.

The “judge-made law” in the Kejriwal case is based on the principle of “legal realism” discussed earlier rather than on “justice is blind. “Legal realism goes far beyond the law of the land and encompasses the judges’ political and social views, biases, and prejudices.

“Legal realism” rewarded Kejriwal for not resigning before arrest and punished Soren for resigning before arrest.

It is liable to be misused. Tomorrow, a chairman or a managing director of a company arrested for a crime may demand bail on the ground that his being in jail has affected his company’s business; its share price has gone down, and many small investors have become poorer and demand bail to make suitable arrangements so the company runs smoothly and the small investors recover their losses.

Hardcore criminals may also demand bail for the election campaigns, as Amrit Pal Singh did, unsuccessfully though.

Nupur Sharma case

The case of Nupur Sharma, who happened to be a spokesperson of the BJP, is yet another example of the existence of “legal realism” in our judicial system.

Let us briefly look at the sequence of events.

On May 26, 2022, a TV channel, Times Now, hosted a debate on the Gyanvapi Mosque which Hindus claim was originally a Shiva temple. During the discussion, a Muslim participant made some derogatory remarks against the Hindu God Shiva. This was not the first debate on this topic on any TV channel, nor was the first time derogatory remark against Lord Shiva. On that particular day,  BJP spokesperson Nupur Sharma lost her patience and told the Muslim participant about Prophet Mohammed’s marriage to a six-year-old girl and the consummation of marriage when the girl was only nine years old. What she said was not her imagination. She was merely quoting from the Hadith, an authentic account of the life and views of Prophet Mohammed.

Nothing happened for a couple of days. However, in a tweet on June 1, 2022, BJP leader Naveen Kumar Jindal not only repeated what Nupur Sharma had said but added a derogatory interpretation of the marriage’s consummation.

A day later or on the same day, Mohammed Zubair, the co-founder of Alt News (claimed to be a fact-checking website), circulated a video clip of Nupur Sharma’s comments. No one bothered to listen to Nupur Sharma’s protests that the video clip being circulated was “heavily edited and selected”. She claimed that after the circulation of the video clip, she had been receiving rape and death threats.

Although Naveen Jindal deleted his tweet and Nupur Sharma apologised for her comments, the damage had been done. Several FIRs were filed against her in different parts of the country. Delhi police filed a case against her and Naveen Jindal on June 9, 2022. The BJP expelled Jindal from the party and suspended Nupur Sharma.

Protests erupted against Nupur Sharma in different parts of the country. On June 11, 2022, there were protests in 14 states. In Karnataka, the protesters hanged Nupur Sharma’s mannequin, with her photo pasted on it, by a lamp post. They were demanding that nothing less than capital punishment for Nupur Sharma was acceptable to them. In Ludhiana, Punjab, protesters were shouting, “गुस्ताख ए नबी की एक ही सजा, सर तन से जुदा”, meaning,  ‘there is only one punishment for the insult of the Prophet; the head should be separated from the body’. In Habra, West Bengal, protesters attacked police with hand grenades.

Official protests also came from several Muslim countries against insult to the Prophet.

The worst happened in Udaipur on June 28, 2022; two radical Muslims brutally beheaded a tailor who had tweeted in support of Nupur Sharma. A video of the murder was widely circulated on the Internet.

Nupur Sharma filed a petition in the Supreme Court to direct the High Courts to transfer all cases against her to Delhi. The demand was not unusual; the Supreme Court has done this on several occasions in the past.

Nupur Sharma’s plea was heard on July 1, 2022. The two judges of the Supreme Court, Justice Surya Kant and Justice Jamshed Burjor Pardiwala, before whom the case was put up, were very angry with her for her remarks on Prophet Mohammed and for everything that had happened thereafter. They lost their cool and fired her left and right while refusing to entertain her plea; they remarked:

“She actually has a loose tongue and has made all kinds of irresponsible statements on TV and set the entire country on fire….. She should have immediately apologised for her comments to the whole country…. she has threatened the security of the nation”.

The court also said that her remarks against Prophet Muhammad were made either for “cheap publicity, a political agenda or for some nefarious activities”.

“She has a threat, or she has become a security threat? She has ignited emotions across the country. This lady is single-handedly responsible for what is happening in the country,”

“What is the business of the TV channel to discuss the matter which is sub-judice, except to promote an agenda?” 

“These remarks are very disturbing and smack of arrogance. What is her business to make such remarks? These remarks have led to unfortunate incidents in the country…These people are not religious. They do not have respect for other religions. These remarks were made for cheap publicity or for political agenda or some other nefarious activities”,

Referring to the beheading of the tailor by two Muslims, Justice Pardiwala remarked,  “This statement by Nupur Sharma is responsible for the unfortunate killing in Udaipur,” 

The bench said, “She should have gone to the TV and apologised to the nation.” “She was too late to withdraw…and that too she withdrew it conditionally, saying if sentiments hurt”,

The judges ordered her to withdraw the petition saying that “the conscience of this court is not satisfied”.

The remarks of the judges were not well received. A group of 15 retired judges, 77 retired bureaucrats and 25 armed forces veterans wrote an open letter to the Chief Justice of India against the remarks of two judges. They wrote, “We, as concerned citizens, believe that democracy of any country will remain till all the institutions perform their duties as per the Constitution. Recent comments by the two judges of the Hon’ble Supreme Court have surpassed the Laxman Rekha and compelled us to issue an open statement.”

 The judges were criticised on social media too. There was a growing demand for the judges to withdraw the statements made in open court, even though none made it to the order finally passed by the bench.

At the Justice HR Khanna Memorial National Symposium on July 3, 2022, Justice Pardiwala replied to the public reaction. He said, “I firmly believe that it is for the highest court of the country to decide things keeping only one thing in mind that is the rule of law…. The judicial verdicts cannot be the reflection of the influence of public opinion….” He further said that “I believe in a democracy, we have systemic agreements to live by court decisions. It does not mean that court decisions are always right and free of all other considerations. We simply agree to live by those. In a democracy, law is more important.”

He also said digital and social media need to be mandatorily regulated in the country to preserve the rule of law under the Constitution, as it is “dangerous” on their part to cross the Lakshman Rekha and undertake personalised, agenda-driven attacks on judges.

Thus, while 117 responsible citizens had accused Justice Surya Kant and Justice Pardiwala of crossing the Lakshman Rekha, Justice Pardiwala accused the media of crossing the Lakshman Rekha.

It was not the first occasion when Justice Pardiwala faced criticism for his views. In 2015, when he was a judge of the Gujarat High Court while deciding a petition filed by Hardik Patel, leader of the Patel agitation for reservations, he had written in his order that “If anyone asks me to name two things, which have destroyed this country or rather, has not allowed the country to progress in the right direction, then the same age reservation and corruption.”  In December 2015, 58 members of the Rajya Sabha submitted a petition to the chairman of the House seeking to move an impeachment motion against justice Pardiwala. To avoid impeachment, he deleted the remarks from his judgement, saying that they were not “relevant and necessary”.

On August 10, 2022, a Supreme Court bench comprising Justice M. R. Shah and Justice Krishna Murari passed an order transferring all cases filed against Nupur Sharma across the country to the Delhi police. The bench also ordered that any FIR or complaint that may be registered against her in the future regarding her comments on Prophet Muhammad during the debate on a TV channel shall also be transferred to the Delhi police.

See the contrast between the order passed by the bench comprising Justice Surya Kant and Justice Pardiwala and the order passed by the bench comprising Justice M. R. Shah and Justice Krishna Murari on the same issue.

Guided by their prejudices, Justice Surya Kant and Justice Pardiwala blamed Nupur Sharma for all the protests, riots and murder for saying something that is in public knowledge but did not blame either Naveen Kumar Jindal who had made derogatory remarks against Prophet Mohammed nor did they say a word against the fundamentalists who shouted slogan”गुस्ताख ए नबी की एक ही सजा, सर तन से जुदा”, demanded capital punishment for Nupur Sharma and murdered a tailor. After squarely blaming “this lady” (Nupur Sharma), they dismissed her plea, saying that “the conscience of this court is not satisfied”. Undoubtedly, this order falls in the category of “legal realism”.

On the other hand, Justice Shah and Justice Krishna Murari followed the rulebook and granted the petition to transfer all cases to the Delhi police. This order falls in the category of “justice is blind”, not considering the personal status or views of the person involved.


When you are fighting a legal battle, you should know that the order depends on whether the judge follows the principle of “justice is blind” or is influenced by “legal realism” i.e. social, political, and personal factors.

While Arvind Kejriwal was the beneficiary of “legal realism”, Hemant Soren and Nupur  Sharma (in her first attempt) were its victims.This is not a healthy development.


Readers are requested to comment on the issue raised in this Article.

 Devendra Narain

Devendra Narain

Hello, my name is Devendra Narain. I live in Gurugram, Haryana, India. I write serious blogs as well as satires on challenges before us.

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