JURISPRUDENCE AND LEGAL THEORY –

FIRST INTERNAL

SUBMITTED TO:

PROF. ASHUTOSH PANCHBHAI

SUBMITTED BY:

ISHITA AGARWAL

2nd yr. LLB

19010122096
Q. In light of modern legal systems, do you think that age old wisdom of
natural law philosophy still holds good? From Indian Constitutional law
context, do you find mirroring of any natural law philosophy? Justify in
your own words.

Ans.

Natural law theory is a philosophy of law that centres on the laws of nature. It is considered
as the supreme law of nature which has been continually dominating the entire basis of
politics, law, religion and social philosophy. It is said to be the sets of unwritten laws which
contains the principle of ought as revealed by the nature of man or reason or derived from
God.

It shall not be misconceived to have a mere theoretical significance. Its practical value is a
historical fact as it generated a wave of liberalism and individual freedom. The law of nations
derives it force and authority from the natural law. It’s greatest contribution to the legal
system is its ideology of a universal order governing all men and the alienable rights of the
individual.

This theory has existed since the dawn of written philosophy and had dominated the Greece
during 5th Century. Aristotle is typically considered the father of the idea. The theory has no
unanimity about its exact meaning as it has been interpreted differently in different periods
depending on the needs of the developing legal system in the society. i.e., Ancient period,
medieval period, the period of renaissance, decline of this theory due to 19th century
positivism and again it’s revival in the 20th century.

For instance, in the ancient societies, natural law was believed to have a divine origin. During
the medieval period it had a religious super-natural basis but in modern times it has a strong
political and legal mooring. It acts in the form of socio-economic justice and acts as a catalyst
to boost social transformation thus saving the society from stagnation. This can be viewed in
Lord Lloyd theory where “natural law has been devised as a mere law of self-preservation or
a law restraining people to a certain behaviour.”
Talking about the contemporary position of natural law, it can be inferred that “now natural
law is relative and not abstract and unchangeable. The new approach is concerned with
practical problems and not with abstract ideas. It attempts to harmonize the ‘natural law’ with
the variability of human ideals and takes into account the new legal theories putting emphasis
on society. An effort to distinguish this ‘natural law’ from the old theories was made by the
jurist, Rudolf Stammler, where the former has been called ‘natural law with a variable
content’. 1

From natural law there has been a gradual transition to natural rights which has been inherent
in every human being by virtue of his personality and is inalienable and imprescriptible. The
idea of natural rights has its origin in the natural law and the doctrine is itself an offshoot of
the doctrine of natural law. The jurist, Cicero used the law implying rights and universal and
unchangeable law implies natural rights.

In England, where there is unwritten Constitution, the natural rights are called by different
nomenclature as civil rights civil liberties, freedoms or individual liberties. When natural
rights are guaranteed and entrenched by a written constitution, they become fundamental
right because they are guaranteed by the fundamental law as seen in the Indian Constitution
and basic structure doctrine is also the light bearer of natural law in Indian constitution.2
(discussed later in the paper).

Natural Right Theory

Natural law theory led to natural right theory, a theory most closely associated with modern
human rights. Human rights, in contrast, are rights endowed by society, such as the right to
live in safe dwellings in safe communities, the right to healthy food and water, and the right
to receive healthcare. In many modern countries, citizens believe the government should help
provide these basic needs to people who have difficulty obtaining them on their own. In

1
Chaitali Sadayet, Perspective of Natural Law in Today’s Globalized Scenario.
http://ijlljs.in/wp-content/uploads/2015/08/17-Chaitali-Sadayet.pdf
2
Aishwarya Deb & Prithvi Roysh Chowdhary, Acritical Analysis of Proximity of Natural to Indian Constituion,
(Aug 2015)
http://www.iosrjournals.org/iosr-jhss/papers/Vol20-issue8/Version-4/D020842429.pdf
mainly socialist societies, citizens believe the government should provide such needs to all
people, regardless of their ability to obtain them.3

Universal Declaration of Human Right

The principles of Universal Declaration of Human Rights (UDHR) are the perfect example to
show the reason why natural law is important, and it exists today. The United Nations
General Assembly adopted UDHR on 10th December 1948. In the 19th century, the positive
law became prominent but after a short time, it was felt that natural law was equally
important. When the world war was going on, they adopted some of the basic human rights
like freedom of religion, speech, etc. The charter of UDHR committed all member states to
promote universal respect for one and all without any distinction of race, sex, language or
religion.4

Natural Law Theory in American Constitution.

The founding fathers of united states of America adopted John Locke’s principle in the
Declaration of Independence (1776) which endowed the people with certain inalienable
rights, such as, life, liberty and pursuit of happiness from governments consent. Locke in his
book, “Second Treatise Of Government (1690)” explained the philosophy of classic
liberalism where, prior to the society, it emphasised the individuals interests and that a person
possessed a set of natural rights including the right to life, liberty and property.

3
Robert Longlev, Natural Law: Definition and Application, (Nov 23, 2019)
https://www.thoughtco.com/natural-law-definition-4776056
4
Sylvine, Natural Law and it’s Revival, July 22, 2016
https://blog.ipleaders.in/11052-2/
5
http://www.globalization101.org/human-rights-vs-natural-rights/
PROXIMITY OF NATURAL LAW THEORY WITH INDIAN
CONSTITUION

As a result of long British rule in India, certain principles of natural law enshrined in the
English law, automatically found place in the Indian law which was broadly modified on the
British laws. The principles of natural justice, doctrine against bias, judicial review, reasoned
decisions and many other precepts of administrative law are based on principles of natural
law.

The principles of natural law find a very prominent place in the constitution of India.

The provisions relating to preamble, Fundamental Rights (part III) and Directive Principles of
State Policy (part-iv) amply show that the framers of the Indian constitution were particularly
conscious about the inclusion of natural rights in the constitutional document. The right to
equal justice and free legal aid (Art.39A) and workers participation in management of
industries (Art.43A) have further been inserted in the constitution by the 42nd constitution
"amendment” Act, 1976 to ensure adequate protection to poor and indigent persons. The
provision of Art-31 of the constitution which provides adequate protection to civil servants
against arbitrary dismissal, removal or reduction in rank is also based on the principle of
natural justice.8

Emergence of Basic Structure Doctrine from Natural Law

The best illustration of judiciary’s zeal to incorporate the principles of natural law in the
constitutional jurisprudence can be viewed in the landmark case of Kesavananda Bharathi v
State of Kerala9 (April 1973). In this case, the quest by the Indian judiciary for the principle
of constancy in the constitution resulted in the emergence of basic structure doctrine. The
doctrine under Article 368, halts the legislatures and executives over extending arms of
altering the fundamental structure of Indian constitution. This may find its spiritual

8
https://shodhganga.inflibnet.ac.in/bitstream/10603/71969/14/14_chapter%2012.pdf
9
(1973) 4 SCC 225
inspiration in the efforts of natural law jurists who empathize with Antigone, who had to face
the Kings wrath, when she opposed the Kings order or laws of overriding the unwritten and
unchanging laws of gods, in consequence of which, her slain brother got buried.

Similarly, the Indian judiciary had to face the challenge of the executive, which was
constantly interfering with judicial machination and was undermining to a large extent, the
rights of the people in general. The Indian judiciary has consistently taken a high domain in
defining the spirit of amendment.

The Apex Court, in the said case, ruled that fundamental rights are not absolute and
immutable but they are relative in nature and changeable in order to build a "just” social
order. This is similar to Salmond’s views. According to him, a few of the basic rules of the
constitution, i.e. in the legislation can be amended but theses amendments are required to be
in consonance with the basic structure doctrine, from which the whole legal system has
derived.

Hence, there is an effort made to accommodate the periods of growth in the legal system and
shifts in the natural law premises as there is a necessity for extension of legal principles when
old system of natural law becomes sterile.

There exists a link between the basic structure doctrine, the human and the fundamental
rights. All of these three are subsets of natural law. From, natural law arose the doctrine of
human rights. The Stoics argued that all humans have reason within them and can therefore
know and obey its law.

In India, human rights were positively transcribed in Part III of the Constitution. However
only certain human rights were guaranteed as Fundamental Rights. It is argued that the
theorist Grotius gave a non-theistic approach to natural law and it were his views that were
transmuted into individual human rights theory.10

Indian Constitution and UDHR

A brief comparison of Indian constitution and UDHR for human rights can be made to
portray the importance for establishing a base of these rights for the element of natural law in

10
Aishwarya Deb & Prithvi Roysh Chowdhary, Acritical Analysis of Proximity of Natural to Indian
Constituion, (Aug 2015)
http://www.iosrjournals.org/iosr-jhss/papers/Vol20-issue8/Version-4/D020842429.pdf
the constitution. The Part III of the Indian constitution, i.e., the Right to life and liberty under
Article 3 and right to fair trial under article 10 of UDHR have been transformed into Article
21 and 22 of Indian Constitution, also right to property which is Article 17 of UDHR was
earlier Article 31 of Constitution has been replaced as a constitutional right under Article
300. Right to freedom of expression under Article 19 of UDHR is Article 19 in Constitution.
However there are many other human rights like the right to work (Article 23 UDHR), Right
to participate in governance of one‘s country (Article 21 UDHR), Right to Education (Article
26 UDHR), Right to adequate standards of living (Article 25 UDHR) which finds mention in
Indian constitution as Directive Principles of State Policy in Part IV a somewhat loose
guidelines given to the government to follow. Therefore, fundamental rights, a subset of
broader human rights has also been established.

Along with fundamental rights, Basic Structure also encompasses various other features that
contain the basic essence of natural law in the form of free and fair elections, the principle of
equality, rule of law, powers of the Supreme Court under Articles 32, 136, 141 and 142, etc.

The supreme court affirmed the doctrine of basic structure in Minerva Mills v. Union of
India,11 where court held the supremacy of Fundamental Rights and judicial review to be
protected as basic structure.

Natural Law in Indian Judiciary

The wide implication of natural law principal in the Article 14, 19 and 21 can be widely
interpreted in Indian scenario, especially by the Indian judiciary.

For instance, in the case, Air India V/S Nargis Mirza,12

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

11
1980 AIR 1789
12
1981 AIR 1829
that the regulations were arbitrary and unconstitutional under Article 14 of the Indian
constitution.

The popular Habeas Corpus case ADM Jabalpur V/S Shivakant Shukla,13

It 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 proclamation of emergency.

The SC declared that, 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.

In case of Indian Express Newspaper V/S Union of India,14

The theory of Rousseau, where he mentioned about freedom and liberty (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, where it was considered as
the basic right of a human being to live in a society with dignity.

In this case, 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.

13
1976 AIR 1207
14
AIR 1958 SC 578