New problems created by new changes and developments necessitated a

pragmatic approach. The advancement in contemporary science induced the

legal thinkers to reject metaphysical quests in favour of fact observations or
experiences on the nature and functions of law. Jeremy Bentham heralded a new
era in the history of legal thought. John Austin, an influential jurist, is
considered as the typical representative of analytical positivism. The major
thrust in Austinian positive law was on separation of law from morals.
Although, Bentham and Austin are considered to be the forerunners of positivist
school in England yet, the school later received encouragement in the United
States and in the European continent from a number of jurists. Hans Kelsen, an
Austrian jurist and legal philosopher, has the credit of reviving the original
analytical legal thought in the 20th century. His “Pure Theory of Law” was with
substantial analytical refinement of theories propounded by his precursors
namely, John Austin. Kelsen, indeed, attempted to device a logically consistent
theory which could be uniformly acceptable to any legal system.

Issue: Freedom of Speech and Hate Speech Laws in India

Why it's Contemporary:

 There have been ongoing debates and legal cases concerning the balance
between freedom of speech and the need to curb hate speech in India.

 Social media has become a major platform for both free expression and
the spread of hateful content.

Connecting to Kelsen's Pure Theory:

 Hierarchy of Norms & Balancing Rights: Kelsen's theory emphasizes a

hierarchy of norms. In this case, both freedom of speech and the right to
live free from discrimination are fundamental rights enshrined in the
Indian Constitution. The challenge lies in establishing a legal framework
that balances these rights within the existing legal hierarchy.

 Limits of Law: Kelsen acknowledged the limitations of a purely legal

approach to social issues. Freedom of speech can be misused, and hate
speech can have real-world consequences. Finding the right balance
might require not just legal interpretation but also social discourse and
evolving societal norms.

Considerations and Criticisms:

  Vague Definitions: Defining "hate speech" can be challenging. What
constitutes legitimate criticism and what crosses the line into hateful
incitement? This vagueness can make it difficult to enforce laws
effectively.

 Chilling Effect: Overly broad hate speech laws could have a chilling
effect on free speech, discouraging people from expressing critical or
unpopular opinions.

Conclusion:

Kelsen's Pure Theory offers a framework to analyze the tension between

freedom of speech and hate speech laws. It highlights the importance of
balancing fundamental rights within a legal hierarchy. However, addressing this
complex issue requires considering the limitations of law and the need for
ongoing social dialogue.

The relationship between the law on hate speech in India and Kelsen's
Grundnorm theory can be understood through the lens of legal hierarchy and the
validity of legal norms. Let's break it down:

1. Grundnorm Theory: Kelsen's Grundnorm theory posits that within a

legal system, there exists a foundational norm, or Grundnorm, from
which all other legal norms derive their validity. This Grundnorm serves
as the ultimate source of authority within the legal system.

2. Hierarchy of Legal Norms: Kelsen argues that legal norms are

organized hierarchically, with lower norms deriving their validity from
higher norms. This hierarchy establishes the legal framework within
which laws are created and interpreted.

3. Constitutional Norms: In India, the Constitution serves as the

Grundnorm, providing the foundational legal framework upon which all
other laws are based. The Constitution establishes principles such as
freedom of speech and expression, as well as equality before the law.

4. Laws on Hate Speech: Hate speech laws in India, such as those outlined
in the Indian Penal Code (IPC) and other statutes, are derived from the
constitutional framework. These laws aim to regulate speech that incites
violence or promotes enmity between different groups based on factors
such as religion, race, ethnicity, or language.
 5. Validity of Hate Speech Laws: According to Kelsen's theory, the
validity of hate speech laws in India depends on their conformity with the
Grundnorm, which is the Constitution. If hate speech laws are consistent
with constitutional principles, they are considered valid within the legal
hierarchy.

6. Judicial Interpretation: The Indian judiciary plays a crucial role in

interpreting and upholding hate speech laws. Judicial decisions, including
those by the Supreme Court of India, serve to clarify the scope and
application of these laws in accordance with constitutional principles.

7. Legal Positivism: Hate speech laws in India also illustrate key principles
of legal positivism, which emphasizes the autonomy of legal norms from
moral or ethical considerations. From a positivist perspective, the validity
of hate speech laws is determined by their enactment through legitimate
legal processes, rather than their moral or ethical content.

By applying Kelsen's Grundnorm theory to the law on hate speech in India, we

can analyze the hierarchical structure of legal norms, the relationship between
constitutional principles and specific laws, and the role of the judiciary in
interpreting and enforcing these laws within the broader legal framework. This
perspective provides insights into the legal foundations of hate speech
regulation and the principles underlying its validity within the Indian legal
system.

The word ‘grundnorm’ is a German word meaning fundamental norm. He has

defined it as ‘the postulated ultimate rule according to which the norms of this
order are established and annulled, receive or lose their validity’. It is the
grundnorm which determines the content and validates to other norms derived
from it

In the case of Squadron Leader H. S. Kulshrestha v Union of India, the court

held that ‘According to the theory of the eminent jurist Kelson, in every country
there is a hierarchy of laws, and the highest law is known as the grundnorm of
law. In our country the grundnorm is the Constitution.’

In yet another case of Abdur Sukur & Another v State of West Bengal &
others, ‘…enshrined in the Constitution of India, which is the grundnorm of all
Indian statutes.’
In another case of Om Prakash Gupta v Hindustan Petroleum Corporation
Ltd. & Anr., it was again held that ‘Since the limits have been defined by the
Constitution, they are, in jurisprudential term, ‘the grundnorm’.’

In another case of Sunil v State of M. P. & Another, it was again mentioned

that, ‘The Constitution of India is the grundnorm – the paramount law of the
country. All other laws derive their origin and are supplementary and incidental
to the principles laid down in the Constitution.’

In the case of Government of Andhra Pradesh & Ors vs Smt. P. Laxmi

Devi the Supreme Court observed, ‘According to Kelson, in every country there
is a hierarchy of legal norms, headed by what he calls as the ‘Grundnorm’. If a
legal norm in a higher layer of this hierarchy conflicts with a legal norm in a
lower layer the former will prevail. In India the Grundnorm is the Indian
Constitution.’

Criticism of Kelsen’s Pure Theory of Law

Lord Lloyd has appreciated that Kelsen has avoided some of the complex
theories of Austin’s analytical positivism but he criticised Kelsen’s theory over
uncertain nature of Grundnorm. He says “Grundnorm is vague and confusing,
we are not clear what sort of norm it is, where we can find it, and what it
does.”[37] Lloyd mentions basic norm as the most troublesome feature of
Kelsen’s theory. Lloyd concludes that Kelsen’s theory can only be found useful
to legal scientists, and will not be useful for judges for its practical application.
Prof. Godhart found it difficult to trust an analysis of such a theory which did
not explain existence of the basic norm around which the whole legal system
revolved.[38]

Julius Stone focused on non-existence of any basic norm in international law.

He doubts the contribution of Kelsen’s Pure Theory of Law to legal system,
which it assumes as law and which is derived from a basic norm but its
existence is not confirmed.[39] Stone describes Kelsen’s theory to be most
impure.[40]

Prof. Dias says that legal order is not sum total of law [41], but it includes many
doctrines, principles and standards, that do not derive its validity from
Grundnorm but still they are accepted to be legal. [42] Dias mentions this as a
grave weakness of Pure theory of law. [43] Other criticisms includes, Kelsen’s
ignorance towards customs1 andtraditions of a society also Kelsen’s exclusion
of natural2 law and morality from his3 theory.