Natural Law theory and its influence in Indian laws relating to

Fundamental rights { Article 14,19 and 21} and case laws relating to it

By Upankar Chutia

Abstract
Natural law is known as higher law or the law of nature which has been continually
dominating the entire basis of politics, law, religion and social philosophy. Natural law is said
to be those sets of unwritten laws which contains the principles of ought as revealed by the
nature of man or reason or derived from god. It is the understanding of a moral law that is
either given with nature and known through reason or given with moral reason independently
of nature. Natural law is universal and common to all humanity. It goes beyond the
differences in culture, religion, and various formulations of moral law. It is often understood
as the fundamental source of norms from which positively formulated moral norms must be
derived if morally justifiable.

1) Introduction:-
Natural law theory is one of the oldest theories
among all the theories. Thus these laws are popularly said to be god made laws. It is said to
be emanated from supreme source as observed by many jurist and philosophers. Legal
thinkers have expressed diverse views on behalf of natural law. Natural law philosophy
dominated the Greece during 5th century BC when it was believed it was eternal to man.
Sophist calls it as an order of things embodies reason.

Later philosophers such as St. Thomas Aquinas,

Thomas Hobbes, and John Locke built on the work of the Greeks in natural law theory
treatises of their own. Many of these philosophers used natural law as a framework for
criticizing and reforming positive laws, arguing that positive laws which are unjust under the

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principles of natural law are legally wanting. The entire history of natural law reveals an
attempt by the jurists to provide the concept and contents of natural law in human existence.

2)Development of natural law theory:-

A brief discussion on natural law theory shall be

presented in the historical order to give an idea of the various ideologies that it tried to
establish from time to time and its effect on law. Natural law theories may be broadly divided
into four classes:-

a) Ancient period
b) Medieval period
c) Period of renaissance
d) Modern period

a) Ancient Period:-
The concept of natural law theory was developed
by Greek philosophers around 4th century BC and laid down the essential features.
Heraclitus:-
Heraclitus was the first Greek Philosopher who
pointed three main characteristics of natural law namely, destiny, order and reason.
He stated that nature is not scattered heap of things but there is a definite relation
between things and a definite order and rhythm of events. According to him “reason”
is one of the essential elements of the natural law. The instability and frequent
changes in the early small states of Greece made legal philosophers to think that law
was meant to serve the interest of those who were in power and the people are
continually struggling for better life. This unstable political condition gave birth to
idea of natural law.

Socrates:-

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 Socrates said that like natural physical law there
is a natural law. Man possesses insight which reveals to him the goodness and
badness of things and makes him to know the absolute and eternal moral rules. This
human insight is the basis to judge the law. Socrates did not say if the positive law is
not in conformity with moral law it would be disobeyed. According to him it was
rather appeal of insight to obey it and perhaps that was why he preferred to drink
poison in obeyance to law than to run away from the prison. This theory was a plea
for security and stability which was one of the principle needs of the age. His people
Plato supported the same theory but it is in Aristotle that we find a proper elaboration
of the theory.

Plato:-
Socrates disciple plato carried further the natural
law theory further through his concept of ideal state which he termed as republic. He
contented that only intelligent and worthy person should be king. He argued that
justice lies in ordinating means life through reason and wisdom and motivating him to
control his passion and desires. In his republic Plato emphasize the need for perfect
division of labour and held that each men oath to do his work which he is called upon
by his capacities. According to plato law of states are a pale shadow of an absolute
idea of an perfect laws against which man made law may be measured.

Aristotle:-
According to him man is a part of nature in
two ways first he is the part of the creature of god and second he posses active reason
by which he can shape his will. By his reason men can discovered the eternal
principles of justice the men‟s region being the part of nature the law discovered by
reason is called natural justice. Aristotle defines natural justice as that which
everywhere has the same force and that not exist by the people thinking this or that.
So far as its relation which positive law or legal justice is concern, he said that legal
justice in that which is originally indifferent but when it has been laid down is not
indifferent.

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 Rome:-
The theory expanded by Stoics had a great
influence on the contemporary roman legal system. The Romans did not confine their
study of natural law theory merely to theoretical discussion but carried it further to
give it a practical shape by transforming their rigid legal system into cosmopolitan
living law. The natural law philosophy found an expression in the roman legal system
through division of Roman law into three distinct division namely Jus Civile, Jus
Gentium and Jus Naturale.

b) Medieval Period:-
This period starts from 12th century to mid 14th
century in the European history. This period was dominated by Ecclesiastical
doctrines which the Christian fathers propagated for establishment of church over the
states. The Christian saints especially Ambrose, St. Augustine and Gregory
propagated a view that divine law was superior to all other laws. According to them
all laws are either divine or human.
St. Thomas Aquinas defined the law as “an
ordinance of reason for the common good made by him who has the care of the
community and promulgated through reason” he classified law as:- i) Law of God or
external law, ii) Natural law revealed through reason, iii) Divine law or law of
scriptures, iv) Human laws which we now called Positive law.

c) Period of Renaissance:-
This period in the history of development of
natural law may also be called the modern classical era which is marked by
rationalism and emergence of new ideas in different fields of knowledge. General
awakening among the masses coupled with new discoveries of science during the 14th
and 15th centuries shattered the foundation of the established values. The natural law
theory propounded by Hugo Grotious, Locke and Rousseau revolutionised the
existing institutions and held that social contract was the basis of the society.

Hugo Grotious:-
He propounded the theory of functional
natural law and formulated the principles of international law which were equally

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 applicable to all states both during war and peace and he is considered as the founder
of modern international law. He therefore treated “Natural Law as immutable which
cannot be changed by god himself”

Thomas Hobbes:-
Hobbes theory of natural law was based on
natural right of self preservation of person and property. He made use of natural law
to justify the absolute authority of the ruler by endowing him power to protect his
subject.

Rousseau:-
Social contract is not a historical fact but
hypothetical construction of reason. The essence of Rousseau theory of general will
was that while the individual parts with his natural rights, in return he gets civil
liberties such as freedom of speech equality, assembly etc. His natural law theory is
confined to the freedom and liberty of the individual. For him, state, law, sovereignty,
general will etc are interchangeable terms. His theory is considered to be the
forerunner of the modern jurisprudential thought and legal theory.

Locke:-
He put emphasis on right to life, liberty and
property which is inalienable rights and necessary for the well being of the individual.
He said that there should not be any law contravening the above rights.

d) Modern period:-

The natural law theory received a set back in

th
the wake of 19 century pragmatism. The profounder of analytical positivism, notably
Bentham and Austin rejected natural law on the ground that it was ambiguous and
misleading. Bentham called it a simple nonsense since absolute equality and absolute
liberty were repugnant to the existence of the state. The doctrines propagated by
Austin and Bentham completely divorced morality from law. All these developments
shattered the very foundation of the natural law theory in 19th century. Latter in the
21st century there was revival of natural law school where jurist like Stammler, Fuller
and Finnis had made their contribution towers the revival of this school.

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3) Natural Law theory and its influence in Indian laws relating to Fundamental
rights { Article 14,19 and 21} and case laws relating to it:-

In Indian laws especially in Indian constitution

there has been a largely impact of natural law theory. The articles like Article
14,19and 21 has been widen widely interpreted in the Indian scenario especially by
the Indian judiciary. This could be found through the case laws

In the case of Air India V/S Nargis Mirza the

Supreme Court had struck down the Air India and Indian Airlines regulations on the
retirement and pregnancy bar on the services of airhostess as unconstitutional on the
ground that the regulations were arbitrary and unconstitutional under Article 14 of the
Indian constitution.

Now if one analyzes Stammler‟s four point

principle with special reference to “principles of respect” : 1) the content of the
person‟s volition must not be against the arbitrary will of another. Thus in this case
the natural law theory has been applied by Indian Judiciary.

In the case of Maneka Gandhi V/S Union of

India the meaning and content life and personal liberty under article 21 of Indian
constitution came up for consideration and the supreme court held that the law
established by the state should be just fair and reasonable .

If one analyses the judgement one would find

reference of LOCKE‟S theory whereby the natural rights of man such as right to life,
liberity and property remained with him. So in Meneka Gandhi case also the natural
law theory principles could be evolved.

In case of Indian Express Newspaper V/S Union

of India the theory of Rousseau in which he mentioned of freedom and liberity
(freedom of speech and expression) has been applied, the Rousseau‟s theory of
freedom of speech and expression was said to be natural right of every citizen by the
Supreme court which is also been conferred upon under Article 19 of Indian
constitution, wherein the freedom of speech and expression is said to be among the
basic right of a human being to live in a society with dignity.

To guarantee and promote fundamental rights and

freedoms of the citizens and the respect for the principles of the democratic state
based on rule of law. The popular Habeas Corpus case ADM Jabalpur V/S
Shivakant Shukla is one of the important cases when it comes to rule of law. In this
case the question was whether there was any rule of law in india apart from article 21.
This was in context of suspension of enforcement of Art. 14, 21 and 22 during the

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proclamation of emergency. The answer is even in absence of article 21 of
constitution the right to life and liberty of a person could not be deprived without
authority of law. Without such sanity of life and liberty the distinction between
lawless society and one governed by laws would cease to have meaning.

Thus in this case Stammler‟s four point principle

with special reference to “principles of respect” : 1) the content of the person‟s
volition must not be against the arbitrary will of another. Thus in this case the natural
law theory has been applied by Indian Judiciary.

Moreover the fundamental rights conferred under

Indian constitution have a large base in natural law theory. Almost all the fundamental
rights conferred under Indian constitution relates to natural law as all the fundamental
right are the basic rights of a human being which the natural law theory tries to confer
upon the society since age of Greeks. All the thinking of those theorists under natural
law theory have influenced Indian laws to a large extent, not only fundamental right
but even many more provisions under Indian constitution are influenced by the natural
law theory.

4) Criticisms of natural law:-

The natural law is based on reason, law could

not be based only on reason but instead legislature and other source should also be
considered. The tradition, customs moral values, judge made laws, society also
should be taken into account which is not emphasised in natural law theory.

During the Medieval Period wherein church

was the absolute to make rules or law whereby they said that Law is divine and made
by God himself is not acceptable to many theorists according to medieval period
theorist the church made laws are supreme and laws are Law of God or external law
divine law or law of scriptures is not justified as those era Church tried dominating
the whole of Europe saying the supremacy of law rather it is made by the Church
fathers and it may be called as law made by fathers. Although law may be of a divine
origin but all laws in the society could not be made by divine, even society makes law
by its customs and traditions. As Thomas Aquinas said that law is a law of God or
eternal law but we see the legal implications in modern world the God made laws
although playing an important role in legal system but it is not extensive as he have
failed to give light on the scope of modern scenario where the Judge made law,
customary laws, king made laws has its own role to play.
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 Thomas Hobbes natural law theory of self-
preservation of person and property and his saying of endowing the rights to absolute
authority is not justified as we had seen in the past events that endowing the absolute
power to authority leaves peoples in tyranny or monarchy where the absolute power
had spoiled many societies in the history and if it is implied in the present day the
same situation may replay. The monarch may exploit the society for his selfish needs.
Thus Thomas Aquinas saying of giving absolute power is not much applicable in the
modern society. As modern society needs everyone to be equal wherein giving
absolute power to some authority may create chaos in the society. It may also lead to
revolution as we have seen that after any vesting of absolute power to any authority
the authority tries to exploit the subjects thus the revolution starts among the subjects
to being down the absoluteness of power vested in the authority.
For eg:- In India the theory was applied in the old age wherein the poor farmers took
shelter for protection under the Jamindars to escape from being killed or exploited by
others. The Jamindars as time passed became very powerful and they became the
absolute power authority as the absolute rights of the famers are being vested in them.
Jaminders had started to exploit the poor farmers and took away land and amenities
leaving nothing to them but to get more exploited in hands of those Jaminders. Thus
then the revolution against the Jaminders had started wherein all the poor farmers
being exhausted of all the atrocities by those Jamindars came along. They tried to take
back their rights which were endowed to the Jaminders for their protection.
Thus it is evident from the history that giving
absolute power to an authority results in being exploited by that authority. So we can
say that Thomas Hobbes is not justified in saying of endowing absolute power to an
authority which may lead to abuse of power by that authority.
Indian constitution provides for emergency
provisions wherein Fundamental rights are being curtailed. Fundamental rights being
the natural rights or the most essential rights for human existence like freedom of
speech and expression and many other rights being curtailed. Thus sometimes the
theory of natural law is being denied as for the wellbeing of the society. Other than
the above rights even right to life is being the most essential right as natural law is
infringed by way of Special power for armed forces(Special power)Act 1958.
Which depicts that natural law theories are not excusive but some act should be done
against it for the welfare of the society.

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 The natural law theory saying „ought to be‟ may
not always confirm to the needs of the society. For instance it is natural to beget
children as it is natural but there is some restrictions in those natural right as to the
number of children in conformity with Indian laws such as family planning measures
etc. So the natural right may not be superior always.
The concept of morality in natural law theory is of
great importance but this theory is not applicable as such it may happen in Indian laws
as according to Muslim law marring 3 wife is moral but in Indian law it is immoral.
Thus the theory of morality as said in natural law theory is not applicable in all times
or in all aspects.

5) Conclusion:-
Apart from its criticism the use of natural law has been prevalent
since ages, even in the present legal system the natural law is used extensively. The
modern judicial system have been founded on the British Pattern the fine principles of
equality, justice and good conscience and natural justice occupy an importance in
Indian law. The higher values of universal validity, righteousness, duty, service to
mankind, sacrifice, non-violence etc were already incorporated in ancient legal system
. The principles of natural law are embodied in dharma referred to duties of man
towards gods, sages, man and lower animals and creatures. It has been characterised
as a belief in conservation of moral values. During the medieval period and British
period in India natural law found its expression in religious preaching of Ramanuja,
Sankara, nanak, swami Ramakrishna etc. During the Mughal period there was a
temporary clash between the philosophies but after British invasion of India they tried
to imply their laws over here, they started codification of laws denying the
supremacy of old Indian laws.
As due to long rule of British in india and
incorporation of their rules in here certain principles of English Natural law found its
place in Indian laws. The principle of natural justice, the doctrine of bias, judicial

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review, reasoned decision and many other precepts of administrative laws are based
on natural law.
It is also finds a prominent place in Directive
principles of state policy and the fundamental right under Indian constitution in which
various rights and duties are put up by the framers. The principles against double
jeopardy and prohibition against self-incrimination embodies the principles if natural
law theory.
In various landmark judgement delivered by
Supreme Court of India the Supreme Court sleeked the help of Natural Law theory.
The principle of natural justice was earlier confined to only judicial and quasi-judicial
enquires and did not extent to administrative actions. But with the decision in Meneka
Gandhi‟s case the scope of natural justice extends to administrative actions. It is for
the attainment of justice with regard to administrative functions.
The legal Administrative Tribunals, Family Courts,
Consumer Redressal, Lok adalats, Human right commission, women‟s commission
etc. Has been introduced by Indian legal system to provide social justice and speedy
relief to aggrieved persons against injustices. The Supreme court contribution to
human right jurisprudence though judicial activism and public interest litigation.
These new developments is evident of the fact that principles of natural law and
justice embody higher values of life, liberty, equality and justice have gained
increasing importance in Indian legal system.
Thus we can say that although the theory of natural law
is said to be vague and sometimes irrational but in Indian legal system the implication
of Natural law theory has a great role to play.

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Bibliography:-
1) Jurisprudence, Fifth Edition, By RWM Dias.
2) The constitutional law of india, By Dr. JN Pandey
3) Jurisprudence Legal Theory By Mani Tripathi
4) The constitution of India, By MP Jain
5) Jurisprudence and legal theory By S R Myneni

Webliography:-

1) Indiankanoon.com
2) legalservicesindia.com

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