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.

Natural Law and Indian Constitution

Lock and Rousseau – Social Contract theory – right to life, liberty and property are inherent
rights of human beings.

Kelsen and Duguit- positive law – couldn’t ignore natural law.

The pure positivist approach failed to solve the problems created by the changed social conditions.

In regards to the contemporary position of natural law, it can be inferred that now natural law is
relative and not abstract and unchangeable. For example, the fundamental rights in India are
considered to be the basic doctrine of the Constitution. The new approach is concerned with practical
problems and not with abstract ideas.

Gradual change of natural law to natural right….it is an offshoot to natural law.

French Declaration of the Rights of Man, U.S. Declaration of Independence, even in the principal
United Nations Human Rights documents.
AMERICA

UNIVERSAL DECLARATION OF HUMAN RIGHTS- It laid the foundation for the human

rights protections that we have in the UK today.

BILL OF RIGHTS - The Bill of Rights is the first 10 Amendments to the Constitution. It

spells out Americans' rights in relation to their government. 

The DECLARATION OF INDEPENDENCE was the first formal statement by a nation's people

asserting their right to choose their own government.

USA

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)”- 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.

In the 20th century, these principles were further expounded and enshrined in the U.S
constitution and Bill of Rights.

SHOULD BE MOTIVATED BY MORALITY

Natural law theorists contend that laws created by the government should be motivated by
morality. In asking the government to enact laws, the people strived to enforce their
collective concept of what is right and wrong.
Example: The Civil Rights Act of 1964 was enacted to right what the people considered to
be a moral wrong—racial discrimination.
Similarly, peoples’ view of enslavement as being a denial of human rights led to
ratification of the Fourteenth Amendment in 1868 in American constitution.

Natural Law in Practice: Hobby Lobby v Obamacare

natural law theory often influences actual legal cases involving religion.
First landmark case - the Supreme Court had recognized the natural law claim of protection
based on a religious belief.
The Patient Protection and Affordable Care Act of 2010, known as “Obamacare, requires
employer-provided group health care plans to cover certain types of preventative care,
including FDA-approved contraceptive methods.
Since it was against the religious beliefs of owners Hobby Lobby stores where they desired to
operate the business according to Biblical doctrine, including the belief that any use of
contraception is immoral.
U.S SUPREME COURT : ruled that for-profit companies are not legally obligated to
provide employee health care insurance that covers expenses for services that go against their
religious beliefs.
the Affordable Care Act placed an unconstitutionally “substantial burden” on those
companies

INTRODUCTION
The natural law philosophy occupies an important place in the realm of politics, law, religion and
ethics from the earliest times. This school of jurisprudence believes that there are innate laws that are
common to all societies, whether or not they are written down or officially enacted. Natural law exists
regardless of what laws are enacted.

Natural law is based on the premise that there is a higher law which is unamendable and is thus
above the whims of the sovereign.

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.

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.

Talking about the contemporary position of natural law, it can be inferred that “now natural law is
relative and not abstract and unchangeable

For example, the fundamental rights in India are considered to be the basic doctrine of the
Constitution. The new approach is concerned with practical problems and not with abstract ideas.

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. and
is itself an offshoot of the doctrine of natural law.
Its principle are reflected in the French Declaration of the Rights of Man, in the U.S. Declaration of
Independence, constitutions of many liberated from colonialism and even in the principal United
Nations Human Rights documents.
INDIAN JUDICIARY

NATURAL JUSTICE
Indian Constitution is based on the pillars of Natural Justice, which is a revised version of natural law.
Not specifically talk about it but the principal, but provisions are embodied. The principles of equity,
justice and good conscience and natural justice occupy an important place in the Indian Law.

PREAMBLE: Preamble, the words ‘justice’ inclusive of social, economic and political and equality
of status etc. prove that natural law principles are there in the Indian Constitution.
With the decision in Maneka Gandhi v Union Of India1- the scope of natural justice principles now
extend even to purely administrative actions and not only confined to judicial and quasi-judicial law.

SC stated that the aim of both the enquiries is to arrive at a just decision and if a rule of
natural justice is calculated to secure justice.

The provision of Art. 311 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.

The judicial control of administrative tribunals, recognition of foreign judgments, and application of
foreign law in case of conflict of laws are founded on the principle of natural justice.

The framers of the Constitution sought to create institutions and procedures that would afford respect
and protection to those basic rights that people possess, not as privileges or opportunities
granted by the state, but as principles of natural law.
The provisions relating to Preamble, FR’s and DPSP.
Article 14 ensures equality before the law to all the citizens without any discrimination.
Article 19- Freedom of Speech and Expression
Article 21 which guarantee Right to Life and Liberty.
Article 20(2) and 20(3)- prosecuted for same offence and compelled to be a witness.

The wide implication of natural law principal in the Article 14, 19 and 21, a golden triangle
of constitution can be seen in Indian judiciary.

1
1978 AIR 597 1978 SCR (2) 621 197
RUDOLF STAMMLER – A modern law jurist, who mentioned about the two fundamental
principles of just law (which harmonizes the purpose in the society) – PRINCIPAL OF
RESPECT AND COMMUNITY PARTICIPATION.
RESPECT- “where he mentioned that the Content Of The PersonS Volition Must Not
Be Against The Arbitrary Will Of Another.

CASES
1) 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 the regulations were arbitrary and
unconstitutional under Article 14 of the Indian constitution.

2) popular Habeas Corpus case ADM Jabalpur V/S Shivakant Shukla:

one of the important cases when it comes to rule of law. whether there was any rule of law in
India apart from article 21. In context of suspension of enforcement of Art. 14, 21 and 22
during the proclamation of emergency.
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

3) In the case, Indian Express Newspaper V/S Union of India

His natural law theory is confined to freedom of speech and expression and equality of
individual will. which is also been conferred upon under Article 19 of Indian constitution,
where it was considered as the basic right of a human being
According to Rousseau, the social contract theory propounded by lock and hobbes is a
hypothetical conception where people preserve to unite their freedom and rights of
individuals by not giving up their rights to single individual i.e. sovereign but to the
community as a whole i.e. general will. The government, laws and society needs to follow
this general will.

4) LOCKE: (1632-1704) Locke in his book, “Second Treatise Of Government

(1690)”- 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.
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.

BASIC STRUCTURE DOCTRINE

Element of natural law is present in Indian constitution in the basic structure doctrine.

Contains much more than the fundamental rights; it contains the basic essence of natural law in the
form of democratic institution, rule of law, etc

Believers of Natural law have laid down that natural law IS SUPREME AND CANNOT BE AMENDED
but every constitution which recognizes natural law has been amended over the course of time.

On analysis, CERTAIN PROVISIONS REMAIN CONSTANT, like the Basic Structure In The Indian
Constitution which remain UNAMENDABLE and it is from where the basis of law is derived and this
provision is the natural law element in the constitution.

LINK BETWEEN THE BASIC STRUCTURE DOCTRINE, THE HUMAN AND THE
FUNDAMENTAL RIGHTS. All of these three are subsets of natural law
INTRO/ CONCLUSION:
The use and applicability of natural law principles varies from country to country and these
principles have evolved from time to time according to the advancements and changing needs
of the.
Hence, in the Indian constitution, there has been natural rights recognized that cannot be
removed.