NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN

LAW, RANCHI

RESEARCH PAPER

JURISPRUDENCE

NATURAL LAW AND INDIAN CONSTITUTION

SUBMITTED BY:

SUBMITTED TO:

MANISH CHOUDHARY

Mr. NIMESH DAS GURU

SEM VIII | ROLL NO. 222

FACULTY IN CHARGE

N.U.S.R.L.

JURISPRUDENCE
1

Table of Contents
INTRODUCTION.....................................................................................................................3
1.1 Heraclitus.............................................................................................................................3
1.2 Socrates................................................................................................................................3
1.3 Aristotle................................................................................................................................4
1.4 Natural Law in India............................................................................................................4
GROWTH AND DECLINE OF NATURAL LAW.................................................................4
2.1 The Period of Renaissance...................................................................................................4
2.2 Modern Period 19th Century Hostility towards Natural Law.............................................6
NATURAL LAW PHILOSOPHY IN INDIAN CONTEXT...................................................6
3.1 Dharma.................................................................................................................................6
3.2 Shrutis...................................................................................................................................6
3.3 Smritis..................................................................................................................................7
3.4 Contemporary India.............................................................................................................7
NATURAL LAW AND INDIAN CONSTITUTION.............................................................7
4.1 Fundamental Rights..............................................................................................................8
4.2 Due Process of Law & Procedure Established by Law.......................................................9
4.3 Separation of Powers..........................................................................................................10
4.4 Democracy.........................................................................................................................11
CONCLUSION........................................................................................................................12

INTRODUCTION
Natural law is a moral law that philosophers and theologians have taught is inherent in human
nature, commanding what is right and forbidding what is wrong. According to Natural law
thinkers, an individuals notion of what is wrong and what is right may differ but there are
certain laws that are valid at places and in all circumstances. Examples are treating one's
neighbours fairly and honouring one's parents. The commands of natural law arise out of the
nature of man and can be discovered by reason or are presented by man's conscience.
Natural law is largely unwritten and based on the principle of ought as revealed by nature
or reason derived from God etc.1 These are labelled as morality, justice, ethic, right reason,
good conduct, equality, liberty, freedom, social justice, democracy etc. Natural law as such is
not a body of actual enacted or interpreted law enforced by courts. It is, a way of looking at
things-a spirit of human interpretation in the mind of judge and jurist.
1. History
1.1 Heraclitus
The concept of Natural Law was developed by Greek philosophers around 4th century B.C.
Heraclitus was the first Greek philosopher who pointed at the three main characteristic
features of Law of Nature namely,
(i) destiny,
(ii) order and
(iii) reason.
According to him, nature does not have a haphazard way of but rather involves a definite
order and rhythm of events. According to him, reason is one of the essential elements of
Natural Law.2
1.2 Socrates

1Bodenheimer, Edgar, Jurisprudence the Philosophy and Method of the Law, Universal Law Publishing, New
Delhi (2006).

2N.V. Paranjape, Studies in Jurisprudence and & Legal Theory, Central Law Agency, Allahabad, 2008
3

Socrates said that like Natural Physical Law there is a Natural or Moral Law. Human beings
are moral because they have Human Insight, the inherent capacity to differentiate between
good and bad and consequently see the moral values in the good. This human insight is the
basis to judge the law. Socrates did not deny the authority of the Positive Law. He placed
Natural law as the necessary ingredient for security and stability of the country, which is one
of the principal needs of the age. His pupil Plato supported the same theory. But it is in
Aristotle that we find a proper and logical elaboration of the theory.
1.3 Aristotle
Aristotle divided mans role in nature in two parts: firstly, he is the part of the creatures of the
God, and secondly, he possesses insight and reason by which he can shape his will. By his
reason man can discover the eternal principle of justice. A mans reason being the part of the
nature, the law discovered by reason is called natural justice.
According to Aristotle, Positive Law should incorporate in itself the rules of Natural Law
but it should be obeyed even if it is devoid of the standard principle of Natural Law. So,
Aristotle does not deny the validity of Positive Law but goes on to state that it should not be
devoid of Natural Law. Aristotle suggested that the ideals of Natural Law have emanated
from the human conscience and not from human mind and, therefore, they are far more
valuable than the Positive Law which is an outcome of the human mind.
1.4 Natural Law in India
Hindu legal system is perhaps the most ancient legal system of the world. They developed a
very logical and comprehensive body of law at very early times. A sense of Justice
pervades the whole body of law. Whether there was any conception of Natural Law or not,
and if there was any, what was its authority and its relation with Positive Law are the
questions which cannot be answered with great certainty. However, some principles and
provisions can be pointed out in this respect. According to the Hindu view, Law has divine
dervation. Law is given in Shruti and Smritis.
GROWTH AND DECLINE OF NATURAL LAW
2.1 The Period of Renaissance

The period of renaissance in the history of development of Natural Law may also be called
the modern classical era which is marked by rationalism and emergence of new ideas in
different fields of knowledge.
2.1.1 Hugo Grotius
Grotius built his legal theory on social contract. Grotius primary argument was
based on the fact that it is the duty of the State to safeguard the citizens on the basis of
the social contract that it has entered into with its people. The sovereign is bound by
Natural Law in its dealing with its subjects. His argument was different from St.
Thomas Aquinas concept of Natural Law as he focused not on reason but on right
reason, i.e. self-supporting reason of man. Although there is apparent
inconsistency in the Natural Law propounded by Grotius because on the one hand, he
says that the ruler is bound by the Natural Law, and, on the other hand, he contends
that in no case the ruler should be disobeyed, but it appears that Grotiuss main
concern was stability of political order and maintenance of international peace which
was the need of the time.3
2.1.2 Thomas Hobbes
According to Hobbes, prior to social contract, man lived in chaotic situation. The
life in the state of nature was solitary, poor, nasty, brutish and short. Therefore, in
order to secure self-protection, man entered into contract and surrendered their
freedom to authority that could protect their lives and property. Thus Hobbes similarly
advocated Grotiuss theory.
2.1.3 John Locke
According to Locke, the state of nature was a golden age, only the property was
insecure. It was for the purpose of protection of property that men entered into the
social contract. According to Locke, Man did not surrender all his rights but only a
part of them, namely, to maintain order and to enforce the law of nature. Man retained
certain rights like the right to property, life and liberty with himself. The purpose of
government and law is to uphold and protect the Natural Rights. So long as the
government fulfils this purpose, the laws given by it are valid and binding but when it
3N.V. Paranjape, Studies in Jurisprudence and & Legal Theory, Central Law Agency, Allahabad, 2008
5

ceases to do that, its laws have no validity and the government may be overthrown.
Unlike Hobbes who supported State authority, Locke pleaded for the individual
liberty.
2.1.4 Jean Rousseau
Unlike others as cited above, Rousseau pointed out that prior to social contract the
life was happy and there was equality among men. People surrendered their rights not
to a single individual, i.e. sovereign, but to the community as a whole which Rousseau
named as general will.4 Therefore, it is the duty of every individual to obey the
general will because in doing so he directly obeys his own will. The existence of the
State is for the protection of freedom and equality. The Sate and the laws made by it
both are subject to general will and if the government and laws do not conform to it,
they would be discarded. Peoples sovereignty was favoured over states sovereignty
by Rousseau.
2.2 Modern Period 19th Century Hostility towards Natural Law
19th century critics like Bentham and Austin rejected the Natural Law theory on the ground
that it was ambiguous and misleading. The basic crux of their argument was based on the
premise that morality has nothing to do with the law. Reason or rationalism was the spirit
of the 18th century thought. Earlier methods as applied by renaissance thinkers were rejected
by scientific methodology and regarded Social Contract theory as a myth. All this led to a
new way of thinking in the field of law making natural law theory difficult to survive.
NATURAL LAW PHILOSOPHY IN INDIAN CONTEXT
Hindu law is a set of personal laws governing the social conditions of Hindus (such as
marriage and divorce, adoption, inheritance, minority and guardianship, family matters, etc.).
It is not Hindus alone who must follow Hindu law but there are several other communities
and religious denominations that are subject to its dominion such as Jains, Buddhists, Sikhs,
Brahmo-Samaj .etc.
3.1 Dharma

4Dr. S.R. Myneni, Jurisprudence (Legal Theory), Asia Law House, Hyderabad, 2010
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The term dharma is derived from the root dhri which means to sustain, uphold, hold together
corresponding its predecessors the Vedic concept of Rita.
3.2 Shrutis
Shrutis are the books of authority for Hindus. The word - shruti literally means 'that which is
heard'. It is so called because these scriptures were passed on by word of mouth. They are
said to contain spiritual knowledge acquired through deep meditation. The main set of texts is
called the 'Vedas'. The portions of the Vedas that contain the philosophy of Hinduism are
called the 'Upanishads'.
'Bhagvat- Gita' is another text that is considered to be a book of authority. Even though this
text is not part of the Vedas, most Hindus consider this to be a text of great importance. It is
the spiritual dialogue between Arjun and Sri Krishna from the epic Mahabharata.
3.3 Smritis
Smriti, that class of Hindu sacred literature based on human memory, as distinct from the
Vedas, which are considered to be Shruti, or the product of divine revelation. Smriti literature
elaborates, interprets, and codifies Vedic thought but, being derivative, is considered less
authoritative than the Vedic Shruti. Most modern Hindus, however, have a greater familiarity
with Smriti scriptures. The texts include the Puranas; and the two great epics of India, the
Ramayana and the Mahabharata. The latter contains within it probably the single most
influential text in Hinduism, the Bhagavad-Gita. In time the term Smriti came to refer
particularly to the texts relating to law and social conduct, such as, the Manu-smriti.
3.4 Contemporary India
Indian Constitution consist many of Natural law features, such as:

Reasonableness
Natural Justice
Fundamental Rights
Directive Principles of State Policy
Fundamental Duties

NATURAL LAW AND INDIAN CONSTITUTION

Principles of natural law enshrined in the English law found place in the Indian law which is
broadly modelled on the British laws. The principles of natural justice, doctrine against bias,
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judicial review, reasoned decisions and many other precepts of administration law are based
on principles of natural law finding a prominent place in the Constitution of India.
4.1 Fundamental Rights
Article 14 provides that the state shall not deny to any person equality before the law or
equal protection of the laws within the territory of India. The expression equality before the
law is a declaration of equality of all persons within the territory of India. Every person is
subject to the jurisdiction of the ordinary courts whatever may be his rank or position. Article
14 applies to not only limited number to citizens but all people.5
Indian constitution has provided every citizen certain rights, known as the Fundamental
Rights of a citizen, and the constitution guarantees every citizen of those. According to the
Indian Fundamental Rights, every people are entitled to live freely and happily in a
democratic set up. The concept of higher law is clearly mentioned in the constitution so far
the human dignity, liberty and equality is concerned. Articles 19, 21 and 22 guarantee
personal freedoms and civil liberties which are the very soul of the democracy and of a free
society.
In A.K. Gopalan v. State of Madras6, the court held that if a person was deprived of his life or
personal liberty by law enacted by the legislature, however, drastic and unreasonable the law,
he would be rightly deprived of his life and liberty. There would be no infringement of
personal liberty or freedom in such case.
But in Maneka Gandhi v. Union of India7, the Supreme Court corrected its error in the
judgment of Gopalans case. In this case held that the procedure of law should be just, fair
and reasonable. It further held that the petitioner was not given the opportunity of being heard
which was one of the concepts of natural law. This case enriched and enlarged the concept of
personal liberty given under Article 21 of the Indian Constitution.8

5Retrieved from http://www.lawyersclubindia.com/articles/Fundamental-Rights-in-Indian-Constitution3770.asp#.UH50YMXfJrU

6AIR 1950 SC 27.

7AIR 1978 SC 597
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Article 20(2) of the Indian constitution provides constitutional protection against double
jeopardy. According to this Article, no person shall be prosecuted and punished for the same
offence more than once. For example, if a person commits the crime of theft for two or three
times, he will not be prosecuted and punished two or three times for the same crime under the
provisions of Indian Penal Code.
Article 20(3) of the constitution says that no person accused of any offence shall be
compelled to be a witness against himself. It means that if a person who has committed
anything wrong, he cannot be compelled by anyone to become a witness against himself.
Both these provisions of the constitution embodies in themselves the principles of natural law
theory. Further, safeguard against arbitrary arrest and detention provided under Article 22 of
the constitution also contain the element of natural law theory. This provision guarantees the
person who has been arrested under any ordinary law 4 rights, which are:
(a) the right to be informed as soon as may be the ground of arrest,
(b) the right to consult and to be represented by a lawyer of his own choice,
(c) the right to be produced before the Magistrate within 24 hours of his arrest, and
(d) the freedom of detention beyond the said period except by an order of the Magistrate.9
4.2 Due Process of Law & Procedure Established by Law:
The first solicitor general of India, C K Daphtary, said: "A republic without a pub is a relic!"
by which he means that without public or the support of masses a Republic is like a dead
body. Due Process is a basic constitutional promise that emanates from the principle of
natural justice. Without this basic principle of constitution the enforcement of right to life,
liberty or property cannot be guaranteed to a person. Thus it is the cornerstone of any
workable constitution.
The concept of Due Process has its history in the era of Magna Carta in 1214 AD. The Magna
Carta declared that No free man shall be deprived of his life, liberty or property except by
the lawful judgment of his peers or by the law of land.10 It required that the sovereign will
obey the law of the land. It also required limiting the power of lawmaking that was arbitrary
8S.N. Dhyani, Fundamentals of Jurisprudence: The Indian Approach, Central Law Agency, Allahabad, 2004,
pp.121-122.

9N.V. Paranjape, Studies in Jurisprudence and & Legal Theory, Central Law Agency, Allahabad, 2008, pp. 113.
9

and unfair. In this way it became a part of the law of the land in England. The Constitution
of United States provides due process clause in its Fifth Amendment and Fourteenth
Amendment that not only restrains the executive and judicial organs, but it also restrains the
legislative branch of the government. In the context of United States, Due Process is applied
to all persons, citizens or aliens, as well as to corporations, the procedural due process
guarantees an individuals right to be satisfactorily notified of charges or proceedings, and
provide an opportunity to be heard at these proceedings fairly.11
The application of constitutional due process is traditionally divided into the two categories
of Substantive Due Process and Procedural Due Process. The doctrine of Substantive Due
Process holds that the Due Process Clause not only requires due process, that is, basic
procedural rights, but that it also protects basic substantive rights. 12 Substantive rights are
those general rights that reserve to the individual the power to possess or to do certain things,
despite the governments desire to the contrary. Fair Procedure includes four elements:
notice, opportunity to be heard, impartial tribunal and orderly procedure.13
4.3 Separation of Powers
John Locke advocated the principle of separation of powers between the legislature, the
executive and the legislature.14 The same concept of separation of powers is vested in the
constitution of India. The makers of the constitution have incorporated this principle as many
other democratic countries have incorporated in their constitution. There is express mention
in Indian constitution that the executive power of the Union and state shall be vested in the
President of India (Art.53-1) and the Governor of States (154-1). Although there is no
specific provision in the constitution providing judicial and legislative powers in any
particular body but still judiciary is independent in its field and neither the executive nor the
10Retrieved from http://www.manupatra.com/roundup/323/Articles/due%20process%20of%20law.pdf
11G.V. Mahesh Nath, Due Process Legal Dynamics, The Icfai University Press, Hyderabad, 2008, pg no I-III
12Retrieved from http://articles.timesofindia.indiatimes.com/2010-01-23/india/28127376_1_ninth-scheduledue-process-shifts

13Retrieved from http://www.stanford.edu/group/psylawseminar/Substantive%20%Due%20Process.html

14Edger Bodenheimer, Jurisprudence: The Philosophy and Method of the Law, Universal Law Publishing Co.
Pvt. Ltd, Delhi, 2006, pp. 45-46.

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legislature can interfere in its functions. In the same way, neither the judiciary nor the
executive can interfere in the functioning of the legislatures. The main task of the legislatures
is to make laws according to the provisions specified in the constitution. But the President of
India has some powers in certain circumstances to issue an ordinance, formulation of law
while proclamation of emergency is in force, framing the rules and regulations pertaining to
Public Services matters. Also in the matters and functions of the executive no one can
interfere.15
4.4 Democracy
Rousseau gave his theory of General Will which meant the will of the community as a
whole. He contended that majority will is always right about the common good and common
interest. Government and law were dependent upon general will. If they did not work
according to the will of the majority, the people could revoke or overthrow them. The
constitution of India has adopted democracy. In the Preamble to the constitution, the words
Democratic Republic is mentioned which denotes that government in India will have a
democratic character. It is true that the President of India is the head of the State and is the
Executive. But the real powers of the executive are exercised by the Prime Minister of India
through the Council of Ministers. The members of the Council belong to the Parliament and
the members of the Parliament represent the people of India. Their process of election is
direct which means that they are directly elected by the people of India. They remain in
power till the time they retain the confidence in the House of Parliament. Once they lost it,
they are overthrown and a new government is established. Hence, we can see that the
Constitution of India retains the principles of natural law which came into light through the
concept of General Will of Rousseau.

15Retrieved From http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.html

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CONCLUSION
Law and morality are very closely related to each other. Laws are generally based on the
moral principles of society. Both influence each other to a great extent. Law and morality
regulate the conduct of all the individuals in society. Sometimes good laws serve to rouse the
moral conscience of individuals and they create and maintain such conditions which can
encourage the growth of morality. In ancient India, the term Dharma connoted both law and
morality. Law, it is pointed out, is not merely the command of the sovereign, it represents the
idea of right or wrong based on the prevalent morality of the people.16
Hart is a legal positivist, but he is a critical moral philosopher as well. Legal positivism
generally means that it is in no sense a necessary truth that laws reproduce or satisfy certain
demands of morality, though in fact they have often done so. It is worth noting that Hart does
not subscribe to all the theses commonly attributed to legal positivism. He does not assert that
laws are simply a product of sovereign command, or that moral judgments cannot be
established as statements of facts can, by rational argument, evidence or proof. He does not
maintain that a legal system is a closed logical system in which correct decisions can be
deduced from predetermined legal rules by logical means alone.17
Impartiality in rule application is a moral standard which, according to Hart, is necessary in a
legal system. Thus, any judge applying a particular legal rule is expected to do so
uninfluenced by, to use Hart's words, "prejudice, interest, or caprice." Once again, however,
the notion of impartiality will not take us too far down the road to morality. Hart himself
noted that "though most odious laws may be justly applied, we have, in the bare notion of
applying a general rule of law, the germ at least of justice. This is not the same as the formal
16Retrieved From http://www.preservearticles.com/201106248502/relation-between-law-and-morality-orethics.html

17N.V.Paranjape, Studies in Jurisprudence and & Legal Theory, Central Law Agency, Allahabad, 2008, pp.
113.

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principle of justice since the judge could show adherence to the principle of formal justice
and yet be influenced by "prejudice, interests or caprice."
Hart holds that law is an instrument of social control. This means that the rules of law must
satisfy certain conditions if they are to properly achieve this goal. For instance, citizens may
reasonably expect that the rules of law will not be retroactively applied. A principle of
fairness is involved here. Citizens should have both the ability and opportunity to obey the
law. So, the principle of formal justice, a principle of impartiality, and the principle of
fairness are all built into Hart's concept of law. This is a moral beginning, but only a
beginning. It is appropriate now to turn to a crucial concept in understanding Hart's legal
philosophy and its moral dimension.
Hart holds that one can look at a legal order from two different perspectives. First, there is the
external point of view. When one looks at a legal order from an external point of view, one
observes how members of a different society act with respect to its legal system. The'
observer is outside the legal system. So, when he or she observes that people in the system
regularly obey the law, observable regularities of behavior can be noted and recorded. The
observer is in the role of the social scientist, dutifully recording the behavioral patterns of the
individuals in society. It is important to recognize that the observer can explain what people
are doing within the system, but he or she cannot explain why they are doing it. The observer
can note that the citizen has obeyed the law, but can never ascertain whether the citizen
believes that he or she has a moral obligation to obey that law. It is as if the observer is
looking at the legal system through a one-way mirror.

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