INTERNAL ON JURISPRUDENCE

TOPIC: 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.

Submitted To:
Prof. Ashutosh Panchbhai

Submitted By:
Tonoya Trisha Das
19010122090
III SEM, 3 Year LL.B
2019-2022
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.
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.
In America the power of legislation is limited by the principles of natural justice.’ In the
Indian Constitution, Part III is devoted to fundamental rights and hence accounts for the
natural law element in the constitution.

AMERICAN CONSTITUION

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

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.

BASIC STRUCTURE DOCTRINE

The element of natural law is present in the Indian Constitution in the form the Basic
Structure Doctrine. The Basic structure 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. The believers of Natural law have laid down that natural law is supreme and cannot be

1
1978 AIR 597 1978 SCR (2) 621 197
amended but every constitution which recognizes natural law has been amended over the
course of time. However, a careful analysis of these amendments reveals that there would be
certain provisions which 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. The basic structure theory propounded by the
Supreme Court of India in

Kesawananda Bharti v. State of Kerala2, furnishes the best illustration of judiciary’s effort to
incorporate the principles of natural law in the India’s Constitutional Jurisprudence. This is of
particular importance in halting the legislature‘s ever extending arms of amending the
constitution under Article 368. A plain reading of this article suggests that the power of the
parliament is absolute and covers all parts of the constitution but the court put a stop on the
executive and legislative overzealousness which would alter the fundamental structure of the
Indian Constitution by this basic structure doctrine.

The Supreme Court affirmed the doctrine of basic structure in Minerva Mill Ltd. v. Union of
India. The Court held that Fundamental Rights enshrined in Part III and Directive Principle
of State Policy in Part IV of the Constitution taken together constitute the core of the
Constitution of India and form its conscience. This doctrine has given a new shape to the
Indian Constitutional Mechanism by postulating new ideals and values in order to strengthen
the cause of democracy. It has become a anchor of individual liberty and social justice.

The quest by the Indian judiciary for a principle of constancy in the constitution resulted in
the emergence of this basic structure doctrine, and one may find its spiritual inspiration in the
efforts of natural law jurists who empathize with Antigone when she proclaims that the
King‘s order or laws will not override the unwritten and unchanging laws of the Gods.
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.

UDHR

2
(1973) 4 SCC 225
There exists a link between the basic structure doctrine, the human and the fundamental
rights. All of these three are subsets of natural law. Human rights were positively transcribed
in Part III of the Constitution. However only certain human rights were guaranteed as
Fundamental Rights.

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 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. It was adopted on 10 th
December 1948 and committed all member states to promote universal respect for one and all
without any distinction of race, sex, language or religion.

In Basantibai Khetan v. State of Maharasthra3, the Bombay High Court held in 1983 that
the right to property was a natural right.

In NALSA v. Union of India4 a 2-judge bench of the Supreme Court held that Article 19(1)
guarantees those great basic rights which are recognized and guaranteed as the natural rights
inherent in the status of the citizen of a free country.

In Puttaswamy v. Union of India several judges on the 9-judge bench of the Supreme Court
—some selectively citing passages from Kesavananda Bharati—declared the right to privacy
to be an inherent, inalienable natural right.

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.

3
(1986) 2 SCC 516 : AIR 1986 SC 1466 : (1986) 1 SCR 707.

4
AIR 2014 SC 1863
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.

Dr. Friedmann has commented that the HISTORY OF NATURAL LAW IS A TALE OF
THE SEARCH OF MANKIND FOR ABSOLUTE JUSTICE AND ITS FAILURE.
Therefore, with the changes in social and political conditions, the notions about natural law
have also been changing. Natural law has brought about a transformation of the old
prevailing legal system. Upkeep of natural law principles is of great importance be it for
giving a judgment or for guiding the basic structures of the Constitution or for the benefit of a
society. No one should be deprived of his natural right that is provided to an individual by
nature. The use and applicability of natural law principles varies from country to country but
its principles are universally recognised.

In Golaknath v. State of Punjab5, the famous precursor to Kesavananda Bharati case, the
Supreme Court held by a majority in 1967 that fundamental rights in the Constitution were
unamendable. Justice Subbarao equated fundamental rights with natural rights. He also noted
that although the right to property counted as a natural right, the rights of disadvantaged
minorities against discrimination did not (although the more general right to equality did).
This is the problem with the natural rights discourse—it has traditionally had a libertarian
orientation which robustly protects the right to property and the right to life of a foetus, but
becomes faint-hearted when it comes to the enforcement of socially transformative rights like
the right against discrimination or the right to employment.

The resurgence of the natural rights jurisprudence is rooted in conservative Christian ethos
and this is unfortunate because of its traditionally regressive role. It promoted libertarian
values including hostility towards the right to abortion, homosexuality. John Finnis advocated
for the continuation of criminalisation of homosexual conduct. Apart from ITS
CONSERVATIVE ROOTS, the natural rights discourse IS TOO VAGUE TO BE
ENTIRELY SAFE IN THE HANDS OF THE COURTS. True, the basic structure
doctrine protects the natural rights but our constitutional text and history place limits on what
a court can find as part of the basic structure of our Constitution. The natural rights discourse
places no such limit—what is to prevent a court from saying that my interest in a copyright or
in hate speech is my natural right?

In the West, traditional natural law has been hostile to LGBTQ rights. LGBTQ activists
have long challenged ideas of ‘naturalness’, a notion that has typically reflected values and
mores of the powerful sections in a society. Ours is a transformative rather than an
acquiescent constitutional heritage. It is a tradition informed by voices from the margins of
5
1967 AIR 1643, 1967 SCR (2) 762
society, and not just its natural core. That is the tradition we need to invoke as we extend the
ethos of inclusiveness to a long-excluded minority, rather than rely on an at-best elusive, at-
worst reactionary, notion of natural rights.