Before the International Court of Human Rights

In the case of
Audrey Terrang……… Appellant

V.
State of Colonia……….. Respondent

In the present case, there are many issues to the woman Mrs. Audrey Terrang, an indigenous
woman, where she says no legal system in country, the act violates Fundamental Right, there
is no obligation to follow the law.
Argument: Doctrine of Eclipse and Article 13 of Constitution
The appellant side is arguing that the law implemented by the Republic of Colonia, is violating
her Fundamental Rights under Article 13 of the Constitution. The appellant blatantly criticizes
the Supreme Court of Colonia on the grounds of violating her fundamental rights. Appellant
argues that there is no law recognized in the state.
Considering her first argument, I would like to introduce the principle of Doctrine of Eclipse,
which, mainly deals with the issues of Article 13 of the Constitution. Doctrine of Eclipse is a
principle which deals with the retrospectivity of Fundamental Rights in the Constitution. As
the Constitution of Colonia is identical to that f Constitution of India, it can be assumed that
Constitution draftsmen have considered it exclusively to not do prejudice to Fundamental
Rights under Article 13 of the Constitution. As mentioned in the facts Article 13 of Colonian
Constitution provides that any law inconsistent with the fundamental rights were invalid,
including constitutional amendments. For this the principle pf Doctrine of Eclipse was
established by which its primary purpose is to establish a fact that Fundamental Rights under
constitution are prospective in nature. When this principle comes in implementation it is
considered that though any law which is inconsistent with the establishment of Fundamental
Rights in Constitution becomes inoperative and can’t be relied upon, but it doesn’t become
wholly abolished. Comparing it with implementation of principle in India, many cases have
been reported for such violation of Fundamental Rights. Considering the fact that
Fundamental Rights are retrospective in nature, then it is believed that all pre-constitutional
laws which were inconsistent with the Fundamental Rights in Constitution stands void ab
initio i.e. they don’t have any effect on post constitutional laws. Here in this case, the law
was passed i.e. The Regulation of Harmful Indigenous Sexual and Marital Practices Act, which
bans the practice of SwayamNika in indigenous population. The practice was considered
immoral and for the same the act was implemented by the Federal Republic of Colonia. As
this was violating Fundamental Rights under article 13, and parliament made it inconsistent
with the Fundamental Rights, can be considered under Doctrine of Eclipse, and court hasn’t
made it dead altogether. The practice of Swayamnika can be restarted by the constitutional
amendment and it will be operative again. Hence, I contend that It be considered under
Doctrine of Eclipse.
Theory of Hart Devlin and Hart Fuller Debate along with Social Coercion Theory
The second argument is about the law being invalid on the grounds of immorality and for
which I contend with the theories of Hart Devlin Debate, Hart Fuller Debate, and also Social
Coercion Theory.
Social Coercion Theory is in which certain acts or laws are persuaded to be followed by the
people by the means of threat or force. Here, the government can force the citizens to follow
the rights. Other evidence in response to my contention is the Report of Departmental
Committee of Homosexual Offences, more commonly known as Wolfenden Report, which
basically was a report on homosexuality and prostitution. Devlin and Hart took part in the
debate where I lay down the opinion of Devlin in this argument over homosexuality.
Homosexuality is not a morality and should be banned as it is against the practices. The act is
basically banning these practices and also banning the polygamy and polyandry in indigenous
population which may fabricate the morality in the society. Devlin argues that there should
be morality in law and the law which doesn’t have morality will destroy the freedom of
conscience i.e. basically the moral senses of people what’s moral and what’s not, and it would
lead to the way towards the tyranny which would then again force government authorities to
use coercion to follow the acts. Moral fabrication is necessary as it holds the society’s
morality and if criminal law doesn’t follow and respect the moral factor while following or
unfollowing the laws, it would obviously lead to disintegration of the society as a whole and
there would be no reputation as a whole. This poses a threat to social cohesion and anything
that poses threat to it can be governed by moral laws and values. The primary purpose of
these laws is to maintain the integrity of society and to have some morality in citizens. Devlin
also believes that Law should be minimum, but it doesn’t mean there should be no
governance and law should only interfere where there is certain need i.e. when the acts
affects society’s integrity.

In addition to this, the next theory which I would apply is of Hart’s Fuller Debate where I will
rely on the principles of Lon Fuller, where he argues that Law which has no moral value is no
law in his sense. He on the next stand argues that there must be certain moral values in the
law, basically inner morality should be a characteristic of a law, which according to him are
the principles of legality.
Comparing the practice in Republic of Colonia to that of practice which used to be followed
in India was Sati Savitri where widow used to be burned on the ashes of her husband. This
can be said as a forceful act by family or in some cases woman use to do it with intention and
her own will. This was a custom followed in Hindus from a long time back. Sati didn’t commit
suicide but burnt herself in fire in protest against his father who was not giving respect to his
husband, that he deserved and later she was reburned as Parvati. Many rulers like Mughals
during early 1800s tried to ban this practice of custom was finally banned by Britishers along
with reformist raja Ram Mohan Roy, in1829. This was banned by Britishers enforcing it on
woman to not perform such practices which can be considered as banned by sovereign that
time. This was an immoral practice which according to Fuller can’t be construed as Law. Even
in the present case, the custom practiced by indigenous people was considered as an immoral
practice in the society of Ashanti. Hence, law made against it stands valid for the social unity.

Kelsen’s Pure Theory of Law

Another argument related to the order of Supreme Court of Colonia making the act
constitutionally valid, is based on the Kelsen’s “Pure Theory of Law”, i.e. on Grundnorm.
(Kelsen, Pure Theory of Law, I).

Kelsen established the pure theory of law, where he talks about the Grundnorm. He is
basically known for the positivist theory of law, which basically keeps out the analysis of any
sort of political, ethical or historical considerations, and lays down the black letter law in the
essence of legal order. According to him, a legal system is based on the Grundnorm, which
basically validates the other inferior laws or other law statements in the legal system.
Kelsen says, Norm is basically an what ‘ought to be’ rather than what actually ‘is’. Kelsen
developed the concept of Grundnorm from Hegelian philosophy, where Hegel want to
collaborate all cultures at a single overarching philosophy by the means of Principle of
Freedom, and so as Kelsen was concerned as he wants to define a basic set of principles which
will consist of all legal system.
Kelsen talks about the most important part of the law that balances its own creation. Basically,
it means that establishment of one legal norm is authorized by the other legal norms. I
contend the argument where Supreme Court makes the law constitutionally valid where it is
considered that A judge who creates a norm which would govern the particular circumstance
to which the decision relates, is binding by the norms which will define the court’s jurisdiction.
These norms can even be expressed in statute, where its enactment would be authorized by
the other, and more the fundamental norms, more will the proper legislation. Therefore,
higher norms validate the existence of lower norms where it expresses who can indicate them
in what circumstances and what are its limits.
In the present case, the Constitution of Colonia is assumed or considered as the Grundnorm
on the basis of availability or the possibility. It is mentioned in the facts that Supreme Court
has validated this particular law on the par of Constitution which basically means that Courts
deriving the validity of the law through the interpretation of the Grundnorm which the
Constitution, in this case. Therefore, the appellant’s argument of the enacted law is not valid,
should be quashed off on the basis of the Grundnorm and its power of validating the lower
norms of the particular state.

American legal Realism

The next argument is of American Legal Realist theory where I will contend my argument on
basis of Oliver Wendell Holmes (Bix, American Legal Realism, Chapter 17).
According to Holmes, law basically is more of the experience in addition to logic. He says that
Law nothing more than what court interprets and how do they interpret. It is basically a
prediction about what will court do or will not do. He in terms of Judiciary says that the
highest arbiter or the final arbiter in the countries with common law, is the highest appellate
court where in this present case it would be the Supreme Court of Colonia, which ruled that
the law is constitutionally valid, and judiciary is more effective than that of legislature. As the
law passed by Parliament was challenged, and the Judiciary validated the law proves that
judiciary more powerful than legislation.

John Austin’s Command Theory

The next argument upon which I would rely is that of the Analytical School where I would talk
about the John Austin’s view, who is one the founding father of Analytical School (Suri
Ratnapala, Jurisprudence, Pg 36-47). Austin, in 1832, published his book, The province of
Jurisprudence. He considered that law is a sovereign command. He considers that Law derived
from authority is the positive law which is basically the authority of Political Superior. He says
that Sovereign is the system where rules of law are made in Judicial Manner. Austin’s positive
law has basically three elements which he determines as: Political Sovereign, Command, and
Sanction. He says that Society must have a sovereign, and if it doesn’t have one, then it will
be a positive morality. He wrote: -
‘If a determinate human superior, not in a habit of obedience to a like superior, receive
habitual obedience from the bulk of a given society that determinate superior is sovereign in
that society, and that society is a political and independent society. ‘
Considering the Austin’s positive law or command theory to the present case, here sovereign
would be the Parliament, as parliament enacted the law, and commanding the indigenous
people which includes sanction of imprisonment of 5 to 10 years if command or law not
followed. Hence, now talking about the appellant’s argument that there is no legal system
present in the State of Colonia, is not maintainable on the ground of Austin’s command
theory. As there is a sovereign and command and sanction in the law, I contend that there is
a well-established legal system in Colonia, and citizens follow it voluntarily.

Hence, the appeal of the appellant is not maintainable in the eye of jurisprudence and be
quashed immediately. I on the behalf of respondent prays the hon’ble judge to quash the
proceedings in the case and upheld the decision of the Supreme Court of Colonia.