Analytical School of Jurisprudence The Analytical School of Jurisprudence focuses on the structure and content of law as it is, rather than how it ought to be. This school views law as a set of commands issued by a sovereign authority and emphasizes the logical analysis of legal concepts, principles, and statutes. It is also known as the Positive School of Jurisprudence since it studies law in its positive form — meaning the law that is actually enforced. The basic idea of analytical school of jurisprudence is to deal with law, existing in its present form. It is also called Austinian school as its methodology was set up by John Austin. Analytical school believes that law is the direction of the Sovereign. That is why Analytical school is also termed as imperative school. Analytical school is also termed as positive school of jurisprudence because it is based on positivism. It is a step away from a priori approach. Analytical school gained prominence in the nineteenth century. It says morals are not objective; law needs to be objective, if we add morals to the definition of law, and law won’t be objective anymore. Austin is known as the father of the Analytical school of jurisprudence. Background Upto the beginning of the eighteenth century the the natural law school predominated the juristic thought. In the opinion of few writers, the principles of natural law were held to be supreme and they could override man made laws. Natural law was derived from justice, reason, utility, nature, supernatural source. The analytical school was basically the reaction against the assumptions of natural law. Exponents of analytical school The famous exponents of analytical school of jurisprudence are  bentham, austin, salmond, grey, kelsen, hart, hoffield and holland. Bentham(1748-1832) Jeremy is known as the founder of analytical school of jurisprudence. He wrote a book a called ‘The Limits of Jurisprudence Defined’ in 1782 which got published in 1985.he was against the judges made law. The making of law should not be in the hands of judges. The law should only be made by the legislature and the legislature should possess the absolute power of making the laws. The law should be based on pain and pleasure. When the state makes laws it must consider the happiness of the citizens i.e. the law should provide the happiness to the citizens and alleviate their pain. The goal of the law should be that whether that law contains equality, security, subsistence and it is abundant or not i.e. the aim of the law should the above four principles. Jeremy bentham basically supports the codification of laws. He rejected the natural laws. The law which is being made by the state or the rights provided by the state has value natural laws doesn’t exist according to Jeremy bentham. Austin (1790-1859)-The exisetence of law is one thing, its merit or demerit the other He is considered as the father of English jurisprudence. He was an army officer and a professor too. He wrote the book called ‘Province of Jurisprudence Determined’ in 1832.He also published a book called ‘A plea for Constitution’. He divided the law in two parts positive law and positive morality. He called positive laws as ‘laws properly so called’ .He called positive morality as ‘laws improperly so called’. The main approach of our law is from positive law i.e. the law which we have made for ourselves. Any law is a positive law when it consists of three elements sanction, command and duty. For example a law made by a parliament has a sanction ,command and its your duty to follow it. Custom is not laws according to Austin. It doesn’t matter what your custom, tradition and morals says as according to Austin these are not laws. People only follow the laws because it carries the punishment with it, if you don’t follow the laws. Hart(1907-1992) Hart unlike his predecessors did tilt towards morality as being not an integral part of law but at the same time he believed that morality had an influence on law and he called this ‘the minimum content of natural law’. His famous works include ‘The Concept of law’, ‘The Causation of law’ and ‘Law Liberty and Morality’. Hart agrees in his book that law is an obligation, law makes certain human conduct non optional or non obligatory. But he disagrees with law being just a command as per Austin’s theory. Kelsen Hans Kelsen was a professor of law at university of Vienna. He propounded theory of law in his essay. He was the most famous positivist of 20th century. His theory represents developments in two directions. 1. Refined development in analytical positivism 2. Reaction against different approaches of 20th century. Basic idea of positivism was that law should be distinguished from morality, equity etc. At the end of 19th century , sociological school came into prominence. This theory’s literature   began to develop before 1918 when Kelsen examining Austrian Constitution. To understand this theory Kelsen propounded “Principle of elimination”: to understand law we should eliminate morality, equity, human nature and meta judicial idea. Holland Holland is also a supporter of analytical school. He is considered as the follower of Austin. He interprets positive law differently as compared to Austin. He defines laws as the rules of external human action which are enforced by sovereign political authority. Criticisms Jeremy Betham Friedman says if there is a contradiction between an individual’s pleasure and community’s pleasure which pleasure should be supported? Bentham fails to answer that. John Austin In today’s times custom plays a very big role so his views on   customs fail   in today’s world. He completely overlooked the customs. He says international law is not law it’s a morality because it has no sanction in current world his views on international law fails. Kelsen Many jurists have considered his idea of Grundnorm as vague. Comparison with Other Schools of Jurisprudence: Aspect Analytical School Historical School Sociological School Focus Law as it is (positive law) Law as it has evolved Law

Customs in Hindu Law Custom is one of the most significant sources of Hindu Law. It refers to traditional practices and usages followed by a community for a long time, and they have gained binding legal force. In Hindu law, customs hold a special place, as Hindu society is deeply rooted in age-old traditions. Sources of Hindu Law The sources of Hindu law can be classified under the following two heads: I. Ancient Sources Under this would come the following: Shruti Smriti Digests and Commentaries and Custom. II. Modern Sources Under this head would come: Justice, equity and good conscience Precedent, and Legislation. Ancient Sources Ancient Texts: Vedas, Smritis, and Dharmashastras The ancient texts of Hinduism form the primary source of Hindu law in India. These texts are revered as sacred scriptures and contain philosophical, ethical, and moral principles that guide the conduct of Hindus. The three main types of ancient texts that are considered as sources of Hindu law are: Vedas (Shrutis): The Vedas are the oldest and most sacred texts of Hinduism. They are believed to be of divine origin and are considered as the foundation of Hindu law. The Vedas are divided into four main texts: Rigveda, Yajurveda, Samaveda, and Atharvaveda.  They contain hymns, rituals, and prayers, and provide guidance on religious, social, and moral duties of individuals. Smritis: Smritis are the secondary scriptures of Hinduism that expound on the principles laid down in the Vedas. They are written by sages and scholars and provide detailed instructions on personal and social conduct.  The most famous Smritis are Manusmriti, Yajnavalkya Smriti, and Narada Smriti, which are considered as important sources of Hindu law. These texts cover a wide range of topics, including marriage, inheritance, property rights, and religious practices. Dharmashastras: Dharmashastras are treatises on dharma, which is the moral and ethical law governing the conduct of individuals.  They provide guidelines on social and moral duties, and are considered as important sources of Hindu law. Some of the well-known Dharmashastras include Manavadharmashastra, Parasharasmriti, and Brihaspatismriti. Digests and commentaries Digests and commentaries are also important sources of Hindu law in India. These are secondary sources that provide explanations, interpretations, and commentaries on the ancient texts, customs, and statutory laws related to Hindu personal law. Digests are compilations of legal principles and rules extracted from various ancient texts, customs, and judicial precedents. These compilations are often written by legal scholars and provide a systematic and organized overview of Hindu law. Commentaries, on the other hand, are explanatory writings that provide detailed analyses, interpretations, and insights into the legal principles and practices of Hindu law. Customs: Local and Regional Practices Customs are an important source of Hindu law, as they reflect the social, cultural, and religious practices followed by Hindus in different regions of India. Customary law is based on long-established practices that have been recognized and followed by the community for a considerable period of time. Customary law is recognized as a valid source of Hindu law and is applied in cases where there is no specific provision in the scriptures or legislation. Customs vary from region to region in India, and they are influenced by factors such as geography, climate, caste, and religious beliefs. For example, the customs followed in a rural village in North India may differ from those followed in a cosmopolitan city in South India. Some of the common customs that are recognised as sources of Hindu law include customs related to marriage, succession, adoption, and religious practices. Modern Sources Justice, Equity and Good Conscience Another significant source of Hindu law in India is the principle of justice, equity, and good conscience. This principle is based on the concept of natural justice and is often invoked by courts in cases where there is no specific provision in the ancient texts, customs, or statutory laws to address a particular issue. The principle of justice, equity, and good conscience allows courts to exercise their discretion and interpret and apply Hindu law in a fair and just manner, taking into account the facts and circumstances of each case. This principle is particularly relevant in cases where existing laws may not adequately address modern social, economic, or cultural changes. For example, in cases where there is no clear guidance on matters such as maintenance for divorced wives, property rights of illegitimate children, or the adoption of a child born out of wedlock, courts have relied on the principle of justice, equity, and good conscience to arrive at decisions that are fair and just. It is important to note that the principle of justice, equity, and good conscience is not a standalone source of Hindu law, but rather a guiding principle that complements and supplements the other sources mentioned earlier. It is often used as a fallback option when other sources are silent or inadequate in addressing a particular legal issue. Judicial Precedents: Case Laws and Judicial Interpretation Judicial precedents, also known as case laws, are another important source of Hindu law in India. Judicial precedents are the decisions of courts in cases involving Hindu law, which are considered as authoritative interpretations of the law. The decisions of higher courts, such as the Supreme Court of India, have a binding effect on lower courts, and they are considered as precedents that are to be followed in similar cases. Judicial precedents play a significant role in the development and evolution of Hindu law, as they provide interpretations and clarifications on legal principles and practices. Over the years, the Indian judiciary has delivered numerous landmark judgments on various aspects of Hindu law, including marriage, divorce, property rights, inheritance, adoption, and religious practices.  These judgments are considered as important sources of Hindu law and have shaped the legal framework for Hindus in India.  For example, the Supreme Court of India clarified the rights of a Hindu woman as a coparcener in a joint Hindu family property. Another example can be, in the case of Mohd. Ahmed Khan v. Shah Bano Begum the court established the rights of Muslim women to

Article 44 of the Indian Constitution – Uniform Civil Code (UCC) Article 44 of the Indian Constitution is part of the Directive Principles of State Policy (DPSP). It directs the State to strive towards implementing a Uniform Civil Code (UCC) across the country. This means having one common set of laws governing personal matters like marriage, divorce, inheritance, and adoption, applicable to all citizens, regardless of their religion or community. Origin of Uniform Civil Code The Uniform Civil Code (UCC) traces its origins to colonial India, with initial discussions dating back to 1835. The British government, in its report emphasised the need for uniformity in the codification of Indian laws related to crimes, evidence, and contracts. However, it notably recommended that the personal laws of Hindus and Muslims should be excluded from this codification process, reflecting the sensitivity surrounding religious customs and practices. As British rule progressed, the growing number of legislations addressing personal issues led to increased pressure for reform. The British government formed the B.N. Rau Committee by the year 1947 to examine and codify Hindu law. The Hindu Law Committee, tasked with investigating the necessity of common laws for Hindus, reviewed the Hindu Women’s Right to Property Act of 1937. The committee proposed a codified Hindu law that would ensure equal rights for women, particularly in the areas of marriage and succession, laying the foundation for a broader discussion on a civil code that would apply uniformly across communities. Interpretation of Article 44 of the Indian Constitution Article 44 of the Constitution of India states that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.The article reflects the constitutional aspiration for legal uniformity in matters of personal laws, ensuring that all citizens are governed by a common set of laws regardless of religion. It seeks to promote national integration by eliminating legal divisions based on religion while aligning the personal laws with the Constitution’s commitment to secularism and gender equality. Judicial Pronouncements on Article 44 of the Indian Constitution Mohammad Ahmed Khan vs Shah Bano Begum, 1985 Mohammad Ahmed Khan vs Shah Bano Begum is also popularly known as Shah Bnao Case. In this case, Shah Bano claimed maintenance from her husband under Section 125 of the Code of Criminal Procedure after she was given triple talaq by her husband. The Government overturned the Shah Bano case decision by way of introducing Muslim Women (Right to Protection on Divorce) Act, 1986 which infringed the right of a Muslim woman for maintenance under Section 125 of the Criminal Procedure Code, 1973. The Supreme Court in Shayara Bano case in 2017 had declared the practice of Triple Talaq i.e., talaq -e-bidat as unconstitutional. In order to give effect to the decision of the Supreme Court, the Central Government introduced the triple talaq bill in the Parliament. This Act made the pronouncement of talaq by a Muslim husband in spoken, written or electronic form punishable under the law. Sarla Mudgal Case vs Union of India, AIR 1995 In this case, the question was whether a Hindu husband married under the Hindu law, by converting into Islam can solemnise the subsequent marriage? The Supreme Court held that embracing Islam for a subsequent marriage is the maltreatment of Personal laws. It also opined that Hindu marriage can be disintegrated under Hindu Marriage Act, 1955 i.e. simply by converting itself into Islam and marrying again does not disintegrate the marriage under Hindu Marriage Law and subsequently will be an offence under Section 494 of the Indian Penal Code. Danial Latifi & Anr v. Union of India (2001) The validity of the Muslim Women (Protection of Rights on Divorce) Act 1986 was questioned before the Supreme Court. The Supreme Court in this case maintained a balance between the personal laws and the gender rights and reiterated the validity of the Shah Bano decision. The Court concluded that the Act does not preclude maintenance for divorced Muslim women and that Muslim men must pay maintenance until such time as the divorced wife remarries. However, the Court held that if the provisions of the act are in conflict with Section 125 of Criminal Procedure Code then it will be unconstitutional. John Vallamattom v. Union of India, 2003 In this case, John Vallamatton, a priest from Kerala filed a writ petition expressing that Section 118 of the Indian Succession Act was against Christians as it forces unreasonable limitations on their donation of property for the religious or charitable purpose by will. The Bench comprising Chief Justice of India V.V. Khare, Justice S.B Sinha and Justice A.R. Lakshmanan struck down the Section and held it as unconstitutional. It was opined that the Article 44 provides that the State shall endeavour to secure for all citizens a Uniform Civil Code throughout the territory of India. Lily Thomas v. Union of India, 2013 In this case, the Supreme Court held that this Court has no power to give directions for the enforcement of the Directive Principles of the State Policy as provided in Chapter IV of the Constitution which includes Article 44. This Court has time and again reiterated the position that Directives as given in Part IV of the Constitution are not enforceable in Courts as they do not create any justiciable rights in favour of any person. Recent Developments on UCC Law Commission Reports In 2018, the Law Commission of India stated that UCC is neither necessary nor desirable at this stage. However, it recommended reforming personal laws to ensure gender justice. Government’s Stance The current government has shown interest in implementing UCC, especially in BJP-ruled states like Uttarakhand, which recently announced a committee to draft UCC. Public Debates There is ongoing debate among various religious groups, political parties, and legal experts about the feasibility and impact of implementing UCC.

Stridhan Somen’s Absolute Wealth The term “Stridhan” is a Sanskrit word that translates to “woman’s property” or “woman’s wealth”. It refers to the wealth a woman receives before, during, or after her marriage. According to Hindu law, Stridhan is a woman’s absolute property, and she has complete rights over it during her lifetime. She can use, gift, sell, or bequeath it to anyone as she wishes. Sources of Stridhan Stridhan encompasses various forms of property that a woman may acquire through different means. These include: Gifts from relatives: During her life, a woman may receive gifts from her parents, husband, or other relatives. These gifts, which can include movable property such as jewellery, ornaments, clothes, and money, are considered Stridhan. Gifts from strangers: In addition to relatives, gifts from strangers, particularly at the time of marriage, also form a part of Stridhan. Under classical Hindu law, these gifts were often categorised based on whether they were received during maidenhood or widowhood. Self-acquired property: Property acquired by a woman through her own efforts, labour, employment, or artistic skills is considered Stridhan. This could include money earned through professional work or business ventures. Property purchased with Stridhan: If a woman uses her Stridhan to purchase other property, that newly acquired property is also classified as Stridhan. The revenue or profits generated from Stridhan assets likewise fall under Stridhan. Property obtained through compromise or settlement: When a woman relinquishes her rights to certain property in exchange for a settlement, the property acquired through such a settlement is considered Stridhan, provided that the terms of the agreement indicate so. Property acquired through adverse possession: If a woman acquires property through adverse possession, such property is considered Stridhan. Property received in lieu of maintenance: In cases where property is given to a woman as part of a maintenance agreement, such as a settlement from her in-laws or husband, the property is treated as Stridhan under Hindu law. Characteristics of Stridhan Absolute Ownership: One of the key characteristics of Stridhan is that it grants the woman absolute ownership. She can exercise full control over the property, including the right to sell, gift, mortgage, or lease it without needing anyone’s consent. Transferability: A woman has the right to transfer her Stridhan through any legal means, including gift or sale. This transferability sets Stridhan apart from Woman’s Estate, where the woman’s power to alienate the property may be restricted. Succession and inheritance: Upon a woman’s death, her Stridhan is passed down to her legal heirs, as laid out in Section 15 and 16 of the Hindu Succession Act, 1956. These sections provide a clear roadmap for succession, ensuring that Stridhan remains within the family of the woman, whether her parents’ family or her marital family. Independence from marital status: While gifts received during marriage (dowry) are part of Stridhan, a woman retains her right to Stridhan regardless of her marital status, be it unmarried, married, or widowed. Legal Reforms on Stridhan With the enactment of the Hindu Succession Act, 1956, the concept of Stridhan received legal recognition, and women were granted absolute rights over their property. Section 14 of the Hindu Succession Act was pivotal in transforming all properties that women held into absolute ownership, doing away with the limited ownership that existed under earlier Hindu law. This section converted the property that a woman had before the commencement of the Act, which may have been classified as Woman’s Estate, into Stridhan, granting her full rights over it. The landmark case of Pratibha Rani v. Suraj Kumar (1985) further emphasised the importance of Stridhan by reaffirming that a woman has full control over it and that even her husband cannot claim ownership of her Stridhan. The case underscored that if a husband or in-laws refuse to return a woman’s Stridhan, it would amount to a criminal breach of trust under Section 405 of the Indian Penal Code (IPC). Woman’s Estate: Definition and Characteristics In contrast to Stridhan, Woman’s Estate refers to property that a woman holds as a limited owner. This concept was prevalent before the enactment of the Hindu Succession Act, 1956, and mainly applied to properties that a woman inherited or received through marriage. Sources of Woman’s Estate The sources of Woman’s Estate primarily included: Property inherited from her husband: In the case of a widow, the property inherited from her husband was considered Woman’s Estate, and she held it as a limited owner. Property inherited from her father: Similarly, property inherited from her father or other male relatives was classified as Woman’s Estate, with the woman having limited rights over its disposal. Characteristics of Woman’s Estate Limited ownership: A woman who holds property as Woman’s Estate is a limited owner, meaning she does not have full rights to alienate or dispose of the property as she wishes. Her ownership rights are restricted in several ways, particularly regarding the ability to sell or gift the property. Alienation restrictions: A woman holding a Woman’s Estate could only alienate the property under exceptional circumstances, such as legal necessity or religious obligations. For example, she could alienate property for the benefit of her estate or to discharge religious duties such as the marriage of her daughter or the funeral rites of her husband. Reversionary rights: Upon the woman’s death, the property held as Woman’s Estate would revert to the heirs of the last full owner (usually her husband’s heirs or her father’s heirs). This meant that the woman could not pass on the property to her own heirs, and it would return to the male lineage of the original owner. Surrender and relinquishment: A woman holding a Woman’s Estate could surrender her rights to the property during her lifetime, which would effectively end her limited ownership. In such cases, the property would devolve upon the next heir in line, often referred to as the reversioners. Comparison with the Karta of Joint Family Property: In certain respects, a woman holding a Woman’s Estate had powers similar to the Karta (head) of a Joint Hindu Family. While she did not have full ownership, she was responsible for managing

Article 25 Right to Freedom of Religion The Constitution of India guarantees the right to freedom of religion to not only individuals but also religious groups in India. This is enshrined in Articles 25 to 28.  Article 25 (Freedom of conscience and free profession, practice, and propagation of religion) Article 25 guarantees the freedom of conscience, the freedom to profess, practice, and propagate religion to all citizens. The above-mentioned freedoms are subject to public order, health, and morality. This article also gives a provision that the State can make laws: That regulates and restricts any financial, economic, political, or other secular activity associated with any religious practice. That provides for the social welfare and reform or opening up of Hindu religious institutions of a public character to all sections and classes of Hindus. Under this provision, Hindus are construed as including the people professing the Sikh, Jain, or Buddhist religions, and Hindu institutions shall also be construed accordingly. People of the Sikh faith wearing & carrying the kirpan shall be considered included in the profession of the Sikh religion. Key Rights under Article 25: Freedom of Conscience – The right to hold personal beliefs about religion. Right to Profess – The right to openly declare one’s religion. Right to Practice – The right to perform religious rituals and customs. Right to Propagate – The right to spread one’s religion peacefully. Restrictions: The State can regulate secular activities related to religion (e.g., religious institutions’ financial matters). Practices that disturb public order, morality, or health can be restricted. Article 26 (Freedom to manage religious affairs) This Article provides that every religious denomination has the following rights, subject to morality, health, and public order. The right to form and maintain institutions for religious and charitable intents. The right to manage its own affairs in the matter of religion. The right to acquire the immovable and movable property. The right to administer such property according to the law. Key Rights under Article 26: Right to establish religious institutions. Right to manage religious property. Right to administer religious institutions. Right to carry out religious practices. Restrictions: The rights under Article 26 are subject to public order, morality, and health. Article 27 (Freedom as to payment of taxes for promotion of any particular religion) According to Article 27 of the Constitution, there can be no taxes, the proceeds of which are directly used for the promotion and/or maintenance of any particular religion/religious denomination. Significance of Article 27: The government cannot use taxpayer money to fund religious activities. It ensures that the State remains secular and does not favor any religion. Example:The government cannot impose a religious tax or use public funds to construct a religious temple, mosque, or church. Article 28 (Freedom as to attendance at religious instruction or religious worship in certain educational institutions) This article permits educational institutions that are maintained by religious groups to disseminate religious instruction. This provides that no religious instruction shall be provided in State-run educational institutions. Educational institutions administered by the State but that were established under any endowment or trust which requires that religious instruction shall be imparted in such institutions are exempt from the above clause (that no religious instruction shall be provided). Any person who attends any educational institution recognized by the State or receiving State aid shall not be required to participate in any religious instruction that may be imparted in such institution, or also attend any religious worship in such institutions unless he/she has given consent for the same. In the case of minors, the guardians should have given consent for the same. Key Provisions of Article 28: No religious instruction can be given in government-funded institutions. Institutions partially funded by the State may allow religious instruction with the consent of individuals. Private educational institutions are not restricted from providing religious instruction. Landmark Cases on the Right to Freedom of Religion Bijoe Emmanuel vs. State of Kerala (1986) Facts:Three students from the Jehovah’s Witnesses sect refused to sing the national anthem, citing their religious beliefs. They were expelled from school. Ruling:The Supreme Court ruled that forcing students to sing the national anthem violated their Right to Freedom of Religion under Article 25. Shirur Mutt Case (1954) Facts:The case dealt with the government’s interference in the management of the Shirur Mutt, a religious institution. Ruling:The Supreme Court introduced the Doctrine of Essential Religious Practices, stating that only essential religious practices are protected under Article 25.