Aparna Mp has posted Kaushal Kishor v. State of Uttar Pradesh (2023): An Analysis through H. L. A. Hart’s Legal Positivism (Indian Journal of Law and Legal Research, Volume VII Issue VI) on SSRN. Here is the abstract:
The Supreme Court of India’s decision in Kaushal Kishor v. State of Uttar Pradesh (2023) reexamines the constitutional relationship between law, morality, and judicial function. The central propositions of H. L. A. Hart’s legal positivism are embodied in the judgment which affirms moral lapses in a minister’s private speech does not always attract constitutional liability. This paper analyses the reasoning of the Court through Hart’s theoretical framework: the rule of recognition, the separation of law and morality, and judicial discretion in hard cases. It also contrasts the natural-law and Dworkinian approaches that view morality as integral to legal interpretation with Court’s positivist restraint. The analysis exhibits that Kaushal Kishor portrays a persistent positivist adherence to constitutional text and institutional authority within India’s expanding rights jurisprudence.