• brillopedia


Author: Aashi Jain, I year of B.A.,LL.B.(Hons.) from National Law University and Judicial Academy, Assam


This article talks about the Natural Law school and the Supreme Court of India, how the Indian Judiciary has played a tremendous role in successfully applying the principles of Natural Law Theory. Though it is not explicitly mentioned in the Indian Constitution about the Natural Law theory however, the same can be understood by analyzing the same, many articles in the Constitution of India are based on the principles of this theory be it the Fundamental Rights or the other rights as incorporated in the Indian Constitution. The understanding of various philosophers has been taken into account so as to understand the different aspects of Natural Law in its entirety.


What is Natural Law?

These are the types of law that are found in the nature around us, or are derived from the nature of humans. It is all about moral objectivism and not moral realism, it is independent of human will, conventions, customs and traditions, it will remain the same or uniform at any point of time, be it being followed in India, the USA, Nepal etc.so, it can be said that natural law is not dependent on the will of the sovereign or of a community.

Some thinkers say that these laws comes from eternal cosmic order (teological approach), higher authority i.e. god or by practical reasoning (because of which common good can be achieved). According to the story of Antigone, she believed that she is bound by a higher law (that is given by god) that supersedes all other human laws and hence has no obligation to follow these inferior laws.

According to Greek philosophers like Socrates, Plato, Aristotle, they said that natural laws have been derived from the nature itself, i.e. from the cosmic order from the harmony that is present in the nature, which is a just law. Though they believed in natural law, but still they had high regard for Greek city state laws, even Socrates was sentenced to death and he died by consuming hemlock, though he had the option of leaving Athens, but he felt of following the city law.

According to theological thinkers like saint Augustine and saint Aquinas, Saint Augustine conceptualized god as someone who knew everything, he is the rational creator and said that following the earthly laws, can help in taking the individual closest to the god, but later his thinking changed and said that earthly laws can only help in achieving earthly peace because man has fallen from the grace of law, because of which civil associations are required and hence laws of polis are required, but according to Saint Aquinas (an Italian philosopher), he said that laws of polis or the state are not an punishment but are something that are natural and will help in achieving unity, but he also said that unjust laws made by the state shouldn’t be followed and you have a right to speak against them.

Is Natural Law Natural?

According to the philosophical idea of natural law, people are born with a certain set of moral principles, rights, and obligations. Natural law theory is predicated on the notion that natural laws are abstract ideas that are independent of culture or habit. However, that is how society naturally and inherently behaves as humans.

It is claimed that the natural law notion has always existed, not even depending on human comprehension or any type of governmental structure or legislation. And was not created by society or court judges. To be elaborated further, natural law talks about the idea that humans understand the difference between what is “right” and “wrong” inherently[i]. Also, it says that human beings are not taught the natural law; they understand the same by making good and right decisions or through pain and pleasure which helps in the same as said by Bentham. Consequently, it is referred to as being discoverable through the use of reason and hence can’t be said that these are backed by scientific evidence like the laws of nature.

These are not factual and hence are applicable only to the human beings and not to animals as only human beings have the reasoning capacity and free will (or the freedom of choice), these are the types of laws that has choice encapsulated in them, which can be understood with an example, according to the 10 commandments, one commandment says, “Thou shall not murder”, so this is a statement which will be followed by a human being according to his free will, either he will murder or not will depend upon his choice, but in case of laws of nature, these laws are not based on free will, so a pen will fall if thrown, according to laws of gravity, there will be cold in winter and will be hot in summer, according to the different seasons.

Hence it can be said that natural law is inherent in the behavior of human beings that is learned by them or by experience when two people have a child, they are designated as the child's parents and primary caregivers. Given that humans already possess this and that any human-made law, or lex Humana, would not be necessary for humans, the natural law will explain this as being natural which means there is no need to make them understand how they need to act as the natural caregivers of their child. Due to this reason homosexuality is an unnatural act for the philosophers as they can’t reproduce and hence can’t fulfill a natural law duty of reproducing.

  • Saint Aquinas says that we need divine law which is a part of natural law as it will help the less capable individuals to find the correct path so as to know what is right and wrong for them, so as to achieve higher existence, also since we humans are prone to error so following scriptures will help in attaining perfect reasoning. The state will fulfill its duty by framing the laws but it can only frame laws related to external aspects about the interior motives or aspects the sate won’t be able to justify its act of framing laws. Also it has to be considered to take acknowledge of the fact that human laws won’t be able to punish or forbid all evil without hurting common good, example of the same can be taken, if a trader sells a product at a rate higher than what he bought for, so as to earn profit, then the state cant punish him for the same, because if the state punishes him for the same then he won’t be willing to sell products further, which will indeed hurt the common good.

Hence it can be concluded that the state can’t strictly follow the divine law it is for the individuals to follow, divine law wants the individuals to avoid all kinds of sins, but the state can’t prescribe the same or else common good won’t be achieved and hence natural law is needed.

Principles of Natural Justice and the Indian Constitution

The courts in India, in a move to watch the arbitrary actions of the administration, which means the protection of people’s rights, affected by the decisions of the administration, a right must be given to them which is the “right of being heard” before the administration body passes a decision against the person. This decision of the court was made so as to minimize the chance of arbitrary dictates being pronounced against the persons. Hence, the Supreme Court has drawn Article 14 from this concept, though not explicitly mentioned but it is an important part of the administrative process.

The Indian Supreme Court has made a point of making a point to use the liberal interpretation of Article 21 demonstrates the significance of "Fair Trial," which included various protections for accused parties so as to defend his case. This decision has led to the protection of the accused and the society, and has also helped in protecting the innocent, the concept of innocent until proven guilty is the cornerstone of the democracy, and the conviction on the basis of justice has been upheld by the Court by this decision, and the conviction from an unfair trial is against the principles of justice.

By recommending that the State offer poor inmates facing a jail sentence free legal help, the Supreme Court has also made a significant improvement in the arbitrary control of the criminal court system as held in the case of Khatri & Ors v. State of Bihar[ii]. This shows that an accused who has been sentenced by the court be given an opportunity to get legal aid, if the accused don’t have money to legal help must be provided to the person if they cannot afford a lawyer. The court has emphasized the importance of legal aid as an important aspect of the legal aid, because a person seeks his help to get liberation from the court.

The courts has been determined on their point when they say that when a person has been arrested the grounds of his arrest must be communicated to the person, because after knowing the accused will be in a position to move to the authorities so as to seek bail. The courts have said that Article 22 (1) provides a rule that is regarded as being vital and fundamental for protecting the liberty of the persons in all legal systems where they seek justice. Information on the grounds of arrest provides a reasonable opportunity to the accused to know his case, the ground on which he is being arrested must be clear and unambiguous, if any point the accused is not informed the clear reasons for his arrest then it results in the denial of a fair trial, which is a breach of natural justice.

Also, the court has prohibited bonded labour, where a person under debt works under another person so as to pay off its debts for years and years, this sort of act is considered prohibited and the state regards it as an act of slavery where one person is chained under another person. In the case of Bandhua Mukti Morcha v. Union of India[iii], in this case, some laborers were made to work under unhygienic conditions, without proper drinking facilities, sanitation and required working equipment, the court held that the workers should be freed up, and the state should make proper facilities regarding the same. Hence it can be concluded that as the Stoics did prohibit slavery, in the same manner the Judiciary in India has also disregarded the same.

Also, in the case of State of Gujarat v. Honorable High Court of Gujarat, it was held that the prisoners are to be made to do hard labour, because of the crime they commit, but it should not be forgotten that the same are also human beings, and the act of being a prisoner doesn’t take away their rights of being a human and hence the work they are made to do must be compensated it shouldn’t be unpaid, hence again deriving the principle from stoic philosophy.

So it can be concluded that the Supreme Court has stressed the significance of natural law in the extractions of various articles and sections.

Natural law and the Supreme Court of India

The many elements of the Indian constitution show that it was constructed in conformity with natural law, even though it does not explicitly discuss the concepts of natural law. The terms "justice," which includes social, economic, and political fairness as well as equality of status and ideas, are included in the Preamble and reflect the principles of natural law. The development of a higher order and world peace is what it tries to achieve. The judiciary has implemented the ideas of natural law in its many rulings in an effort to instill fairness and a sense of legal responsibility among the populace[iv].

An example to understand the same can be understood through a case law i.e. National Legal Services Authority vs. Union of India & Ors (2014)[v], “in this case, the petitioner argued that the transgender community also faces bias, and social discrimination”. This was in fact the violation of the constitutional rights including the “rights to a dignified life, equality before the law, non-discrimination and freedom of expression”. A gross violation of their fundamental rights, also the transgenders should be given the status of third gender. These were the facts of the case.

The decision gave the transgender population the freedom to self-identify and a third gender identity. Natural law, according to John Locke, "was held to treat people with distinguishing traits equally and believe in honoring every individual's diversity, and it was held that discrimination towards the transgenders is against the natural law."

Humans are not required to abide by rules that have a tendency to violate the higher order since the harmony among people and the sanctity of the higher order take precedence. The purpose of the law is to promote human wellbeing, not to upend the natural order. The Supreme Court has also contributed to proving the very spirit of natural law through a number of its rulings.

Also the case of Air India V Nargesh Mirza[vi], shows the implementation of natural law by the supreme court of India, the case brought a challenge to regulations 46 and 47 of the Air India Employees Service Regulations because they created disparities in the promotional opportunities available to male and female flight attendants, different retirement ages, and provisions regarding the termination of the air hostesses' services in cases of pregnancy or marriage (Regulation 46 stated that their retirement age was 35 years, whereas their "male counterparts" had a retirement age of 58).

Also regulation 47, gave certain exclusive powers to the Managing Director, who could on his own discretion increase the retirement age as per his interest, which was considered an arbitrary order.

“The Honorable court held that the clauses regarding retirement and pregnancy are unconstitutional and declared it void with immediate effect along with the Regulation 47. The judgment made by the Honorable court was in line with the natural law principles. The basic tenet of natural law is that it does not create arbitrary distinctions and by dissolving the regulations, the court acted in accordance with the natural law. Because all the human made laws are meant to serve the higher purpose”.

Both the cases shows us that, the Supreme Court has time and again emphasized the importance of natural law in its various judgments, and is also striving to make appoint that natural law in fact promotes justice.

Why is there a need to protect the natural rights of human beings by the government or by the Supreme Court?

John Locke was the philosopher who theorized that men are equal and free by nature they are equal because god has made everyone equally with equal rights, also humans are free (i.e. free will) while forming their decisions because of the presence of pleasure and pain which makes the humans think before they take their decisions but it shouldn’t also be forgotten that an individual’s action, whatever he does should be in consonance with the command of the sovereign and that is god, we need to follow the commands of the god because we are the creation of god, and this was theorized by him, in the “Two Treatises of Government”[vii]. He maintained his position that people have rights, such as the “right to life, liberty, and property”, these rights are absolute and hence the government has a duty to protect these rights, because the people have chosen the government, the government who they want to be ruled by for which the laws of the rulers are to be obeyed. Governments who do not comply with this can be overthrown and replaced with new ones.

He also says that natural law can be acquired by the human beings by the application of reasoning on the material provided by the senses due to which sensory perception also becomes necessary to know the natural law. “Locke believed that the most basic human law of nature is the preservation of mankind”, he said that "individuals have both a right and a duty to safeguard their own lives" in order to achieve that goal. Murderers, however, forfeit their right to life since they behave in an illogical manner and outside the bounds of the law of reason to the material as visualized by their senses.

Locke also claimed that people should have the freedom to live their life as they see fit, as long as they do not infringe on the rights of others, and if this sort of dilemma happens then there must be someone so as to protect the rights and liberties of people, this authority who has this power is the authorized Judge, who must be a neutral third party and has no interests in the other two parties, by promulgating this he is advocating that the rights of all persons is equal and hence must be protected. For this reason of protecting the natural rights of citizens, Locke also proposed the establishment of civil laws, which are the types of laws that shouldn’t be formed in violation of natural law and these will indeed help in protecting the rights as these laws will take away the life, liberty or property of the person who violates such laws.

“And that all men may be restrained from invading other's rights, and from hurt to one another, and the Law of Nature be observed, which willeth the peace and preservation of all mankind, the execution of the law of Nature 1s in that state put into every man's hands, whereby he has the right to punish the transgressors of that law to such a degree as may hinder its Violation”[viii]. This was the extent Locke had his views about Natural Rights.

Locke was fairly correct in realizing that there is a need for sanction of law. Because if no one was present in the natural state who was unable to carry out the law, defend the innocent, and prevent offenders from committing a wrong, all laws of nature and all other laws pertaining to mankind in this world would be ineffective.

Locke went even further to explain his proposition. Additionally, he granted the victim party the ability to request restitution. "He who has suffered any harm has a special right to demand restitution from him who has caused it." Locke was only following his own logic when he accorded each individual man the right of execution and the right of restitution. But he was unable to reach the correct, logical conclusion. Superiority is the foundation of jurisdiction in its entirety. One equal exercising authority over another equal would go against his notion of what justice should be. As a result, in order for one person to have jurisdiction over another, he must be that person's superior, either by virtue of his position or by law. In the state of nature, all men were equal, according to Locke. Therefore, Locke was compelled to acknowledge a contradiction as a result, namely, that equals had jurisdiction over one another. Locke was willing to accept that this was a rather weird concept.

Given his strong individualism, Locke's admission of such a philosophy makes sense. When Locke looked at the government of his day, he observed that it had the authority to punish criminals and demand restitution. Locke came to the conclusion that every man in the state of nature must have executive power because, as he saw it, the government was merely a social contract of individuals and had no more power than what each individual relinquished to it when he entered governmental Society. Locke erred in a key distinction. The man or group of men who will serve as the law's executor may be chosen by the men who form a civil society. However, one man cannot carry out the law. Although Locke recognizes the need for a sanction for natural law, he undoubtedly makes a mistake in calculating how to get this sanction. When discussing conquest, in one spot. Locke does mention the eventual restoration of the divinely sanctioned scale of justice, demonstrating that he had some understanding of the ordination of law. Hence it can be confirmed that John Locke firmly believed that sanctions will only lead to the following of laws and hence the protection of the natural rights of the individuals. Hence it can also be said that he was the one who propounded about the natural rights of human beings.

John Locke went further to explain the property theory of law, he says that if a person steals your property or attacks you, then you have a right to kill that person and if the government does not protect your life, liberty or property than you can revolt against such form of government. Thomas Hobbes on the other hand believes in the safety and security than natural rights he says that there must be a sovereign so as to protect the rights and liberties of the people or else the people will cut each other’s throat because people in the state of nature live a very “solitary, poor, nasty, brutish and short”, hence you enter into a society to protect your rights and this form of expression is the democracy.

Hence it can be concluded from the understanding and the discussions discussed above, we can rightly conclude that natural rights are the inalienable part of the human’s life, and the government and the Supreme Court must make such rules and regulations where an individual’s rights are not curtailed and he enjoys his liberty, property and life according to his free will.

Is the Indian Judiciary a delegated authority of the Sovereign?

Legal positivists such as Bentham, Austin have different takes on the natural Law Philosophy and the idea of the sovereign, according to Bentham, he says that the law is the expressed will of the sovereign, it is not something that is created or found anywhere or social constructed, however for him the laws should be codified that is it must have a basis of being written somewhere otherwise according to him he says the people won’t know which law are they guarded by, only the lawyers and the judges will know the same, however, he didn’t consider a fact that the world where we live in is dynamic, i.e. constantly changing and hence there are constant changes developments that are taking place and hence the codified laws won’t play a major role regarding the same, and the future is uncertain so one can’t know the future contingencies.

Also he disregarded the divine laws and the common law, because for him common law doesn’t has a superior authority, and for him, there must be an authority.

For Austin God laws were important along with common law unlike Bentham, he says that in case of common law these are laws properly so called because these are judge made laws and judges are the delegation of the sovereign, and for him, he defines law as the command of the sovereign. However, he calls the customary, international and the constitutional laws as laws improperly so called, because these are not the delegation of the authority, in case of international laws, these are laws of positive morality, it is the law of opinion and not of authority, in case of constitutional laws these are the laws which will depend on the will of the sovereign whether they will apply the same or not, hence the laws that are not given by a sovereign.

Hence, according to both the philosophers, they both didn’t consider the customary laws as law properly so called, however, they did believe that the judiciary is indeed a delegation of the sovereign, this can be inferred from the lines such as, Bentham – if someone goes to the court for justice the person should know the law, hence he regards the fact that the person will go to the court for justice, whereas Austin says that common law are laws properly so called because they are judge made laws, hence even he regards the fact that judge made laws are true and applicable. Also they said that if the laws are not followed then sanctions will be applied on the offender.

Also, they didn’t believe that there was a necessary connection between law and morality they didn’t believe in the metaphysical world where a person can only agree a stance or reject the same, they wanted that, laws should be verifiable, codified and written, also they didn’t believe in natural law hence didn’t consider like John Locke that everyone is equal and also said that a law can be defined independent of moral enquiry, one needs to know what the law is and not what it ought to be, analyzing of legal concepts should be done and law is logical there is no need to look anywhere else.

According to John Locke he says that the people should be guarded by duly promulgated standing laws along with known authorized judges because they will be the one who will decide the matter, the laws should be in written form and it should not be the case that when a person goes to a court matters are decided according to the situation, otherwise it would be arbitrary. Also, he mentions a fact that the people have liberties and when one’s liberty comes in conflict with other’s liberty then should be a neutral third person so as to decide the matter and in this case it is the judge who will look towards the same.

Hence in its entirety, it can be said that the judiciary is indeed a delegated authority as provided by the sovereign to look into matters of justice.

Natural law in today’s world

Natural Law is defined differently by different people. The term "natural law" in law refers to those standards and precepts that are thought to have been established by a higher force than any governmental or extraterrestrial authority. The ideas of "Rule of Law" in England, India, and the United States, as well as "due process," are reflected in Natural Law. Since Natural Law was uncreated and unalterable from the beginning of time, it is eternal and immutable. According to John Locke, who claimed that Natural Law is simpler and easier for people to understand, man does not create Natural Law; rather, he merely discovers it. Natural Law is not enforced by a third party, because it was created via the teachings of philosophers, prophets, saints, and others rather than through legislation.

The concept of natural law, though not codified, written or legislated as required by legal philosophers, however, they do help in protecting the rights and liberties of individuals and through its application in the modern world, the Judiciary has made a point of protecting the individual’s rights and liberties.

Is there a need to apply natural law principles in judicial judgments?

The context in which natural law is used is to have a higher order so as to promote peace amongst the people, also it is believed that natural law helps individuals in realizing what is good and bad as reflected by Saint Aquinas in Lex Divina where he says that if a person is incapable of finding the correct path, he can follow the natural law principles so as to achieve higher existence.

Now the judiciary though doesn’t explicitly uses the natural law principles nor is it mentioned in any of the articles or sections in the Indian constitution about the natural law theory, but while analyzing the judgments of the judiciary we see that the principles of philosophers has actually been used while pronouncing the judgment.

When a party comes to a court seeking redressal in its case from the other party, the parties don’t understand who is correct and who is not, hence the judiciary be applying its conscience uses natural law so as to provide justice, because one of the ideas of natural law is to impart justice.

Hence, it becomes necessary to apply natural law principles or theory in the judicial decisions so as to impart justice and good conscience, so as to help individuals in knowing what the right decision is for them, and what was held wrong in their conscience. The Supreme Court has very meticulously in its various judgments, helped in substantiating the very spirit of natural law.


Even while the theories from the natural law school haven't been directly used or acknowledged in the judgements, one may nevertheless trace the components of that theory in many other places by looking at those. Because human laws are put in place to help humans, natural laws are those unwritten laws that serve as the foundation for human laws, and according to Saint Augustine, he says that following human laws helps in achieving earthly peace, and since humans have fallen from the grace of god, we require civil associations and laws of polis so as to agree between things as we live in a corrupted society.

Also the Supreme court of India has meticulously applied various principles of natural law in deciding different cases, hence providing justice to its citizens, though not impliedly stated but while analyzing, we realize that many articles such as article 14 (right to equality) as equivalent to the philosophy by John Locke, where he says that all humans are born equal, Article 21 (Right to Life and Liberty) have actually derived its essence from the natural law theory and some cases in this regard has already been discussed in this article.

[i] Natural Law, CFI Team, Corporate Finance Institute, 2022. [ii] Khatri & Ors v. State of Bihar, (1981) 1 SCC 627. [iii] Bandhua Mukti Morcha v. State of Bihar (1993) 3 SCC 19. [iv] Application of Natural Law in Judgments of Supreme Court of India, Legal Service India, Anuja Prakash. [v] National Legal Services Authority vs. Union of India & Ors (2014) [vi] Air India v Nargesh meerza, AIR 1981 SC 1829. [vii] Stanford Encyclopedia of Philosophy, Locke’s political philosophy. [viii] Mark Francis Hurtubise, Philosophy of Natural Rights according to John Locke, Loyola University Chicago, 1952.