Name: Sanchayeeta Karmakar

UID: SF0120049

Subject: Jurispudence (206)

Faculty: Mr. Saheb Choudhury

National Law University and Judicial Academy, Assam

APPLICATION OF NATURAL LAW IN

JUDGEMENTS OF SUPREME COURT OF INDIA

Natural Law- Definition and Meaning:

Natural law is a theory in ethics and philosophy that says human beings

possess intrinsic values that govern our reasoning and behavior. Natural
law maintains that these rules of right and wrong are inherent in people and
are not created by society or court judges.1

In jurisprudence the term ‘Natural Law’ means those rules and principles
which are supposed to have originated from some supreme source other
than any political or worldly authority.

Here are some judgments of the Supreme Court of India, where the theory
of natural law was applied:

 Navtej Singh Johar v. Union of India, September 6, 2018

Gender identity/ Sexual orientation, LGBTQIA, Privacy

Case Summary and Outcome:

The Supreme Court of India unanimously held that Section 377 of the
Indian Penal Code, 1860, which criminalized ‘carnal intercourse against the
order of nature’, was unconstitutional in so far as it criminalized consensual
sexual conduct between adults of the same sex. The petition, filed by
dancer Navtej Singh Johar, challenged Section 377 of the Penal Code on
the ground that it violated the constitutional rights to privacy, freedom of
expression, equality, human dignity and protection from discrimination. The
Court reasoned that discrimination on the basis of sexual orientation was
violative of the right to equality, that criminalizing consensual sex between
adults in private was violative of the right to privacy, that sexual orientation
forms an inherent part of self-identity and denying the same would be
violative of the right to life, and that fundamental rights cannot be denied on
the ground that they only affect a minuscule section of the population. 2

Judgment Review:

The five-judge bench of the Indian Supreme Court unanimously held that
Section 377 of the Indian Penal Code, 1860 (Section 377), insofar as it
applied to consensual sexual conduct between adults in private, was
unconstitutional. With this, the Court overruled its decision in Suresh

1
https://www.investopedia.com/terms/n/natural-law.asp
2
https://globalfreedomofexpression.columbia.edu/cases/navtej-singh-johar-v-union-india/
Koushal v. Naz Foundation ( Suresh Koushal v. Naz Foundation, (2014)
that had upheld the constitutionality of Section 377.

Chief Justice Misra (on behalf of himself and J. Khanwilkar) relied on the
principles of transformative constitutionalism and progressive realization of
rights to hold that the constitution must guide the society’s transformation
from an archaic to a pragmatic society where fundamental rights are
fiercely guarded. He further stated, “constitutional morality would prevail
over social morality” to ensure that human rights of LGBT individuals are
protected, regardless of whether such rights have the approval of a
majoritarian government.

J. Nariman in his opinion analyzed the legislative history of Section 377 to

conclude that since the rationale for Section 377, namely Victorian morality,
“has long gone” there was no reason for the continuance of the law. He
concluded his opinion by imposing an obligation on the Union of India to
take all measures to publicize the judgment so as to eliminate the stigma
faced by the LGBT community in society. He also directed government and
police officials to be sensitized to the plight of the community so as to
ensure favorable treatment for them.

J. Chandrachud in his opinion recognized that though Section 377 was

facially neutral, its “effect was to efface identities” of the LGBT community.
He stated that, if Section 377 continues to prevail, the LGBT community will
be marginalized from health services and the “prevalence of HIV will
exacerbate”. He stated that not only must the law not discriminate against
same-sex relationships, it must take positive steps to achieve equal
protection and to grant the community “equal citizenship in all its
manifestations”

J. Malhotra affirmed that homosexuality is “not an aberration but a variation

of sexuality” She stated that the right to privacy does not only include the
right to be left alone but also extends to “spatial and decisional privacy”
She concluded her opinion by stating that history owes an apology to
members of the LGBT community and their families for the delay in
providing redress for the ignominy and ostracism that they have suffered
through the centuries.

 Singh v. State of Uttar Pradesh, December 18, 1962

Privacy

Case Summary and Outcome:

The Supreme Court of India declared the relevant provisions that allowed
police to make domiciliary visits to ‘habitual criminals’ or individuals likely to
become habitual criminals as unconstitutional. The police would visit
Kharak Singh’s house at odd hours, often waking him up from his sleep.
The Court reasoned that the visits infringed the petitioner’s right to life,
which can only be restricted by law and not executive orders such as the
Uttar Pradesh Police Regulations. However, the Court rejected the
petitioner’s claim that the shadowing of habitual criminals infringed his right
to privacy because this right was not recognized as a fundamental right
under India’s Constitution.3

Judgment Review:

The six-judge bench of the Supreme Court gave concurring opinions,

striking down the relevant provisions of the Uttar Pradesh Police
Regulations as unconstitutional.

Chief Justice Sinha and Justices Imam and Mudholkar joined in Justice
Ayyangar’s opinion. He observed that the regulations provided for several
surveillance powers, including secret picketing of the house; domiciliary
visits; and inquiring into and shadowing so-called “history-sheeters” in order
to keep records of their movements and the persons they contact.

He rejected the argument that the psychological effect of the picketing

curtailed freedom of movement under Article 19(1)(d), finding that the
concerned person or persons visiting the house would not be aware of the
picketing.
3
https://globalfreedomofexpression.columbia.edu/cases/singh-v-uttar-pradesh/
Next, he considered the question of domiciliary visits. He held that this
impacted on the right to life, protected under Article 21 of the Constitution,
which implied the right to life with human dignity – and not mere animal
existence. He considered that the power to enter someone’s house in the
middle of the night to confirm their presence ran contrary to this right. This
plainly violated Article 21 since the right to life could only be restricted by
‘law’; and the executive regulations of the Uttar Pradesh Police did not fall
within the definition of ‘law’.

Finally, he considered that shadowing of the “history-sheeters” did not

cause any hindrance to their movement, and that any effect on privacy was
irrelevant as the right to privacy was not a fundamental right. He therefore
held that the regulations should be struck down only with respect to
domiciliary visits.

Justice Shah joined in with Justice Subba Rao’s opinion. They agreed with
the majority in so far as the provision for domiciliary visits was
unconstitutional. However, Justice Subba Rao considered that the
Regulations in their entirety violated the right to freedom of movement and
the right to life and were therefore unconstitutional. Justice Subba Rao held
that the right to life and personal liberties under Article 21 provided
protection against any encroachments on personal liberties, whether direct
or indirect. He considered that the right to privacy was to be considered a
fundamental right under Article 21, even though the Constitution did not
expressly provide for it. He argued further that the supervision of one’s
private life as provided in the regulations clearly violated this right. Since
the regulations could not be considered to be “law”, it followed that they
violated Article 21.

Furthermore, Justice Subba Rao considered that the infringement of the

right to privacy prevented a person from expressing his or her innermost
thoughts. He found, therefore, that the regulations also violated the right to
freedom of expression, as protected under Article 19(1)(a) of the
Constitution. Furthermore, Justice Subba Rao held that the right to freedom
of movement, protected under Article 19(1)(d), had been violated as this
right included not just freedom from physical obstructions to movement but
also the right to move freely, without undue restrictions. He considered that
shadowing by the police constituted a restriction on this freedom of
movement. Justice Subba Rao therefore considered that the regulations in
their entirety violated fundamental rights and were unconstitutional.

 R.K. Jain v. Union of India & Another, April 16, 2013

Personal information, Right to information

Case Summary and Outcome:

The Supreme Court of India held that annual confidential reports (ACR) of
a public officer constituted ‘personal information’ and were therefore
exempt from mandatory disclosure to a third person under the Right to
Information Act, 2005. The appellant, Mr. R.K. Jain, had sought information
on a Tribunal Member relating to adverse entries in her ACR and the ‘follow
up action’ taken on the question of integrity. Relying strongly on its own
precedent in Girish Ramchandra Deshpande vs Cen.Information Commr.&
Ors, the Court reasoned that information relating to charges, penalties or
sanctions imposed on an employee and records containing information of
such nature or incidental to it were necessarily a matter between employee
and employer the disclosure of which had no relationship to any public
activity or public interest and would cause an unwarranted invasion of
privacy. The Court also reiterated that it was the prerogative of the
competent authority to decide if such information could be disclosed in the
greater public interest but that the petitioner cannot claim those details as a
matter of right.4

Judgment Review:

The Supreme Court considered two questions: firstly, whether ACR of an

officer constituted personal information because, if they were, then
disclosure of such information to a third party would constitute an exception
under the RTI Act: and, secondly, whether there was a public interest in

4
https://globalfreedomofexpression.columbia.edu/cases/r-k-jain-v-union-india-anr/
dissemination of the information in question that would outweigh the
privacy of the person on whom the information was sought.

After referring to the handful of judicial precedents of High Courts of

different States cited by the opposing parties, the Supreme Court preferred
instead to rely on its own judgment in Girish Ramchandra Deshpande v.
Central Information Commissioner and ors. In that case the Court had held
that information relating to charges, penalties or sanctions imposed on an
employee and records containing information of such nature or incidental to
it were necessarily a matter between employee and employer the
disclosure of which has no relationship to any public activity or public
interest and would cause an unwarranted invasion of privacy. The Court in
that case had also reiterated that if, in a given case, the Information Officer
or and appellate authority is satisfied that the larger public interest justifies
the disclosure of such information, appropriate orders could be passed but
that the petitioner cannot claim those details as a matter of right. 

The Supreme Court in the present case reiterated its precedent, dismissed
the appeal and reaffirmed the findings of the Division Bench.  

Conclusion:

The idea of natural law and natural justice has influenced its law in several

respects. The origin and development of equity in England owed much
to natural law. It also served as the basis for the recognition or rejection of
a custom. It was looked to for support in the struggle for supremacy which
took place between the judges and Parliament in the seventeenth century.
The concept of natural law and natural rights influenced the drafting of the
Constitution of the United States of America and many of the amendments
made thereto as also the Constitutions of its various States. Above all, it
has enriched positive law by introducing into it the principles of natural
justice, divested of all their philosophical metaphysical and theological
trappings and disassociated from their identification with, or supposed
derivation from, natural law.