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Authored by: Ekta Agarwal (Student, National Law University & Judicial Academy, Assam).


Natural law is a set of ideologies which is universal and not humanly created. It exists independent of human will. Natural law theory stands on the belief that there are universal laws which are governed by morals that are not opposed by human laws without compromising their legal force. Human laws are those which are codified in nature, which means they have legal backing to them. If a person goes against them, he can face a trial in a court of law. Natural laws, on the other hand, are not codified in nature. According to some theorists, natural law is dictated by the indispensable conditions of human life while other theorists believe natural law is derived from self-evident rules and practical reasons. Natural laws, according to some theorists, are higher than human laws in the sense that if human laws violate natural laws, it is not morally or legally binding. Natural law theories vary in aims and content but they share one central idea: that there is a kind of higher (non-human) ‘law’, based on morality, against which the moral or legal validity of human law can be measured [1]. Natural law traces its sources from eternal cosmic order i.e., teleology, eternal law of God i.e., theology, natural requirements of life and self-evident values. Natural law theories try to strike a chord between moral natural law and positive human law. Natural law theory in its most uncompromising form proclaims Saint Augustine’s doctrine that unjust law is not law – lex injusta non est lex. The legal maxim “lex injusta non est lex” says that “an unjust law is no at all”, which was made famous by Thomas Aquinas’ recollection of an old saying by Augustine about the unimportance of obedience to unjust laws.

The natural school of law has been classified into four major parts namely, first, Ancient or Classical period, second, Medieval period, third, Renaissance period and fourth, modern period. The main theorists of the ancient period were Heraclites, Socrates, Plato and Aristotle. The medieval period explored the theories of Augustine and Thomas Aquinas, while the renaissance period saw theorists like Hugo Grotius, John Locke, Thomas Hobbes, Rousseau, Immanuel Kant and finally, the modern period had theorists like Rudolf Stammler, Kohler, and Hart. Although natural law is not very famous or explicitly used in deciding the cases very often, there are certain cases in which natural law has been applicable decided by the Hon’ble Supreme Court.



Maneka Gandhi v. Union Of India is a very well-known case when it comes to the application of natural law theories in the Supreme Court judgements. In this case, the whole context of life and personal liberty under Article 21 of the Indian Constitution was scrutinized and it was contended whether a law would be chosen and be given upper hand just because it is codified in nature and it is to be obeyed or whether it should primarily be subjected to normal equity. The Hon’ble Supreme Court of India in its judgement clearly specified that every law that is established by the State should be just, fair, and reasonable for the citizenry as the laws are established to serve the society. The judgement upheld the right to travel as a part of right to personal liberty which is implied in the Article 21 of the Indian Constitution.

Coming to the application of natural law school of jurisprudence in the concerned case, by analyzing the judgement thoroughly, one may easily dig out John Locke’s theory of natural law being applied in the case. Looking carefully into Locke’s theory, one can observe the concept of ‘natural equality’ which according to Locke includes every human being regardless of rational capacity, each possessing rights to life, liberty and property. Also, in the case it has been seen that the highest court of law, i.e., The Supreme Court of India upheld the right to move freely which is a part of the right to personal liberty enshrined in Locke’s theory of natural law. Hence, in the above-mentioned case, natural law school theory could be evolved through necessary analysis.


In the Indian Express Newspaper v. Union Of India case, the problem at hand was that the government increased the import duty due to which the cost of newspaper increased which led to decrease in the distribution of newspaper due to reduction in number of customers and the newspaper companies and employees argued that the action of the government curbs their freedom of speech and expression as a result of drop in circulation. The judges held that while it is undisputed that the newspaper industry, like the rest of the community, should bear its fair share of the overall tax burden, any tax imposed specifically on the newspaper industry, should be able to be justified as a reasonable levy in court if its validity is challenged.

While analyzing the case at hand, one can easily find the elements of Jean Rousseau’s theory of natural law. According to Jean Rousseau, people are entitled to secure their right of freedom and equality and for this purpose they surrendered their rights not to a single individual, i.e., sovereign, but to the community, which Rousseau referred to as ‘general will.’ Therefore, it is the duty of every individual to obey the ‘general will’ because in doing so he obeys his own will. The purpose of the State is to safeguard liberty and equality. The State and the laws made by it are subject to ‘general will’ and if the government and laws do not conform to this, they would be discarded. Rousseau favored people’s sovereignty. His theory is confined to the freedom and equality of the individual. For him, State, law, sovereignty, general will etc. are interchangeable terms. Rousseau’s theory of freedom and liberty was highlighted in the case where right to freedom was said to be the natural right of every citizen by the Supreme Court which also conferred upon Article 19 of the Indian Constitution.


ADM Jabalpur v. Shivakant Shukla is famously known as the ‘Habeas Corpus’ case. In this case, the argument revolved around whether an individual’s right to life and personal liberty could be compromised in cases of emergency or equivalent situations. This was in the context of suspension of Article 21 of the Indian Constitution during the proclamation of emergency in the country. In the case, it was observed that Article 21 cannot be considered to be the sole repository of right to life and personal liberty. It unequivocally states that even in the absence of Article 21, the State has got no right to deprive a person of his life and personal liberty without the authority of law.

On analyzing this particular case, one can easily find reference to Stammler’s theory of natural law theory of jurisprudence. Stammler stood up to the point of four principles, two being ‘principle of respect’ and two being ‘principle of maxims’. The two ‘principle of respect’ has special reference in the case in the sense that as per this principle, any legal demand must be such a nature that the addressee may be his own neighbor, and no one’s volition must be subjected to the arbitrary desire of the other person. The ‘principle of maxims’ states that no member of a legal community may be arbitrarily excluded, and that a legal power can only be exclusive only if the excluded person can still be his own neighbor. Here also, we come across the use of natural law theory in the judgement of the Supreme Court of India cases. Stammler’s theory of natural law was very well linked to the reasoning of the judgement that was passed in the case as both the theory and the reasoning relies on the fact that one should not arbitrarily take away the rights of any person whatsoever.


Progressing towards the end of the article, it must be noted that although the natural law school theories have not been explicitly used or mentioned in the judgements, one can still trace the elements of natural law theory in numerous areas by analyzing those. Natural laws are those unwritten laws which are the basis of the human laws because human laws are in place to serve the humans, to serve justice and equality and the natural laws as well stands for the natural rights and justice of a person. Natural law and human law somewhat coincide with each other in the sense that human laws are often made based on natural law and its elements. And, most importantly as already mentioned in the former part of the article, natural law is the higher law, derived from nature, God, morals and reason, because of which it takes and wins over the human laws as seen in the cases discussed above.

Author(s) Name: Ekta Agarwal (Student, National Law University & Judicial Academy, Assam)


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