1.  A Critical Analysis of the Proximity of Natural Law to the Indian Constitution[1]

This article basis its argument on the aspect that the natural rights are the rights which are inherent in the human beings and the same shall not be denied or refused to the individuals. The author notes the importance of the natural law and its contribution to the constitutional adjudication that is to mean that, whenever the cases of natural rights comes into picture, the natural law acts as tool and helps in determining the rights of the individuals. The author in the paper discusses the interface of the natural law and the Indian constitution. it is stated by the author that natural law helps to give effect to the constitutional principles that are exiting in the provisions of the Indian constitution. The author very importantly came up with an argument that there is a link between the Natural law and the basic structure of the Indian Constitution. it is stated that Natural law gave us the natural rights which in turn helped the judiciary to interpret the fundamental rights under part 3 as basic structure of the Constitution noting that such shall never be take away at any time. This is the point where the researcher inclines towards the argument of the author and this shall be the basis for the researcher to develop the research around the constitution and the interpretation of the constitution by the judiciary to ensure the natural law is upheld, which shall be discussed in the later part of this paper.

Statement of Problem

With the natural law principles been included in the constitution of India and even in the laws that are prevailing in the International arena, why are the issues relating to the rights of the individuals still not resolved? In spite of the presence of the rights that are natural been acquired, why are the issues still continuing? The author shall be looking into the relevance of natural law and how its standards help in resolving the disputes of society.

Indian Judiciary on Natural law:

The following are the case laws that are relating to the interpretation of the judiciary when keeping in mind the principle of the Natural law or in case of India, it is the Indian Constitution. The judiciary has interpreted in a way thereby ensuring that the individual’s rights are not affected and through the evolution of the society, the interpretation changes. For example, with the advent of the technology or with the rise in support from the side of the LGBTQ community, the judiciary has interpreted to ensure that these people get their constitutional rights and they are not denied by the laws of the country merely because of their identity. The higher law in this case to measure the situation was the Indian Constitution. The following are the case laws which gave effect to the natural law in India.

1.  Maneka Gandhi case

It is very essential, at this point to know that, this was the first case in the History of Indian judiciary which helped in the interpretation of article 21 to include the principle of natural law or in other words, the principles of natural justice. This is the first case which is still a precedent to measure the laws on the rules laid in this case. According to the facts and the circumstances of the case, Maneka Gandhi, who is the petitioner in this case was alleged by the passport authority and was later arrested by Delhi Passport office stating the reason that it was on the ground of public interest and there was no specific reason other than this while confiscating her passport. Aggrieved by this action, the petitioner had filed a writ petition on the ground that there was arbitrary exercise of power and she was arrested without any reasonable ground. It is obvious that articles 14, 19, and 21 will always take precedence over one another due to their relevance in the operation and administration of natural justice norms.

As previously stated, this judgement reversed a very restricted interpretation established in the famous Gopalan case of 1950. It was in this case, the definition of liberty was broadened which basically ensuring the following.

To begin, a valid law must be the there while arresting or as per that law, the detainment must be made and that law should have the procedure for such detainment. This is ensure that there is a procedure in place which ensures the fairness while exercising the sovereign powers such as arrest and this does not take away the rights of an individuals in an unreasonable manner. Article 14, as we know, has the feature of non-arbitrariness and the law shall be tested on this aspect of the Indian Constitution.

It has to be made clear that, after the Maneka Gandhi case only, there was new horizons that were added as part of article 21 of the Indian Constitution. Right to life shall also includes the right to livelihood, right to individual’s privacy as an unwritten constitutional right, right to clean environment etc. the following was observed by Justice Bog as part of his judgment (as reiterated below):

"The view I have taken above proceeds on the assumption that there are inherent or natural human rights of the individual recognised by and embodied in our Constitution.. If either the reason sanctioned by the law is absent, or the procedure followed in arriving at the conclusion that such a reason exists is unreasonable, the order having the effect of deprivation or restriction must be quashed.[6]"

2. National Legal Services Authority v. Union Of India & Ors7]

Facts of the case go like this. The National Legal Services Authority, together with several petitioners, instituted proceedings. They said that Indian law in most of the scenarios only recognized binary genders, male and female and not the third gender called the transgender. It is important to note that the transgender community is also subjected to unfairness, injustice and social discrimination. Because of all these reasons, it is considered or alleged by the petitioner that it violates constitutional rights such as the right to a decent existence, equality before the law, non-discrimination, and freedom of speech. All these rights are applicable to all the individuals including the non-citizens when it comes to the right to life and equality under the Indian Constitution. There were two main issues that were framed in this case by the Supreme Court of India. Firslty, whether the transgender in this case have the right under the constitution to be recognized as the transgender irrespective of whether they were born as male or female? And second issue was general in nature regarding whether the individual who fails or does not fall under the ambit of the two genders be generally be called as the Third gender in India or not.

Giving the importance to the Natural law and the rights of this transgender community, the court of law has granted this community their right to be identified as the third gender. The court interpreted and noted that this falls within the purview of the liberty of these people and shall be brought under the ambit of article 21 of the Indian Constitution. The following para has been reiterated from the judgment copy where the court stressed on the natural law aspect. The court specifically said that discrimination against transgender individuals is against natural law since natural law regards people with distinguishing characteristics equally and believes in honoring every individual's variety.

Though there may not be any statutory regime recognizing ‘third gender’ for these TGs. However, we find enough justification to recognize this right of theirs in natural law sphere. Further, such a justification can be traced to the various provisions contained in Part III of the Constitution relating to ‘Fundamental Rights’[8].

Indian Constitution and Natural law theory:

Having known what does natural law theory talk about, it is very important for us to understand the Indian constitution and the influence of Natural law[9]. Natural law and its further theories formed as one of the main reasons for the framing of Indian Constitution. The development of the natural law and the concept of natural rights have led to the framing of the Indian Constitution. This is the main reason which helped the founders of the constitution of India to ensure that certain aspects of the Natural law are inserted as a feature in the Indian Constitution.

The following are some of the important articles in the Constitution, that possesses the element of natural law in it and has been serving a huge role in ensuring the social justice.

Article 13 of the Indian Constitution:

Article 13 clause 2 states as follows:

“The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void[10]”

As per Article 13 clause 2, the state has no authority to enact any law for the time being if such law has the tendency to take away the rights that are conferred by the Indian Constitution especially the ones vested under Part 3 of the Indian Constitution. If such law has been enacted by the parliament or by the Human institution (in case of natural law theory), then as per article 13, such enactment shall be considered to be void in nature and is declared as void ab initio. The law shall be held void to that extent to which it is inconsistent with the supreme law or the provisions of the Indian Constitution. If we look it from the point of Natural law, as per Natural law no law shall be made against the Jus Naturale or the natural law. In that case, the natural law has influenced in framing this particular provision because of the above mentioned facts.

It is essential to know that article 13 also provides a remedy when it comes to any enactment which is unconstitutional in nature. It provides for the doctrine of severability which is to mean that when any of the provisions of any enactment become unconstitutional in nature and becauase of such inconsistency, the enactment or the provisions of it shall be severed from the rest of the law itself. The court of law has the duty to direct the removal of the provision which is inconsistence with the supreme law (Natural law) – which is the Indian Constitution.

Article 14:

Article 14 of the Indian constitution read as follows:

“The state shall not deny to any person equality before the law or the equal protection of law or the equal protection of law within the territory of the state[11]”.

Article 14, without any doubt, serves as a tool to ensure the natural right of equality and justice. Impliedly, which was again been reiterated and decide by the courts of law that Article 14 has been serving as a tool to ensure the fairness and the just procedures in the decision making process which is to mean that there is a recognized principle that sets the stage for all other laws. This is to mean that ensuring the fairness and the just procedures equals in ensuring the principles in the Indian Constitution, thereby giving enough importance to this higher law. This article requires the parliament or the legislative body to fram the law in a manner which does not impugnes the doctrine of reasonability and fairness and mostly, equality. thus, article 14, acts as a safety valve for every Indian citizen. To be more specific, article 14 is applicable to all individuals irrespective whether the person is a citizen or not. The universality principle embodied in the theory of natural law is fulfilled by this particular aspect, where the right to equality shall be universal and this is the reason why the same has also been included as part of Universal Declaration of Human rights.

Article 15(1) is as follows,

‘The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them[12]’

This article has two controversial terms

1) ‘Discrimination’ and

2) ‘Only’.

The first denotes that any person should not be unfavorably distinguished from others, whereas the later provides a wide room that apart from these grounds the state can discriminate the citizen, which opened the interpretation by the judiciary or by the state, if necessary. Thus, any person can be positively discriminated by the state in his or her or for the society as a whole. This is evident from the later sub-sections of this article, which states that women, children and certain backward classes can be discriminated for the development of their lives. But, it does not provide for any discrimination of any citizen (as provided under Citizenship Act, 1955) on the basis of the religion, and if so ever he/she has been discriminated on the ground that they belong to a certain community by the action of the state, than the act should be held unconstitutional by the court. In India, victim of any form of racial discrimination can obtain relief from the highest court of Justice. If we comparatively look at the article 14 and article 15 with CAA, it becomes null and void, because of the failure to cope up with the reasoning and principles enshrined in the Constitution.

Article 21:

Article 21 is as follows:

“No person or an individual shall be deprived of life or personal liberty except according to procedure established by law[13]”

It is again derived from the Universal Declaration of Human rights and ensures that all people have right to life irrespective of whether they are citizen of certain nation or not. This is to mean that the natural law has ensured the right to life as a natural right and shall not be taken away by any positive law or in other words, by the laws made by the humans. This is the reason why the treaties or any conventions relating to the war are brought into picture in order to ensure that the issues are affecting the natural rights or the principles of the natural law. In this scenario, the international laws are the natural law and as per them the rights as provided under UDHR, etc shall not be taken away especially right to life.

Natural law and the existing International law:

It is important to note that Natural law theories have formed part of source of International law and in framing the laws of the nations such as conventions and treaties for the benefit of the countries and their relations between each other. The ultimate purpose is to serve the justice to the people across the world. In order to know when these natural law had its influence over the international law. It has been reported that[14] the international law has a deep-rooted connection with the concept of Natural law because of the fact that the practices and the writing of the defenders of natural law and their basis on the Higher law aspect have helped the resolution of the disputes between the nations that is to say that it worked in the International conflict resolution[15].

Even though the current Natural law that we use today are not similar to what has been exiting when it was proposed by the thinkers such as Plato, Grotius etc, there was a slow stage for the evolution of the natural law theory in the later 19th century. The revival, as per Raymond wacks in his book[16] stated that, was during the post-wars in the world and when the nations started the identification of the Human rights and when the same has been framed as international conventions on the Human rights, European convention on the Human rights etc in the late 1950s. Through this, it was recognized that Natural law has the feature of Higher authority. It is clear to note that such higher law has never been provided or considered as against the ordinary or the domestic constitutions of ever nations rather it is considered as an ideal position in the International platform to suggest what is right and natural in nature and what shall be considered to be the wrong when it comes to the war crimes. Once it is codified as a wrongs against the human society, this means that all countries shall consider such issue as universal issue and shall react either by enacting the laws or by ratification.

Thus, the natural law and the international law which has been derived from the former shall be used, as per the words of Raymond Wacks – “yardstick against which the positive laws shall be measured[17]”. For example, if the UDHR is taken as an example in the International arena, then such law shall be considered as the measuring scale or the ideal achievement stage for all other laws that are framed by the parliaments in every nation. If the laws of that nation form against the universal law, then there is no reciprocity with the Inter-nations and hence such country shall be tried or subjected to the laws of the international organizations[18]. The relevant instances as examples shall be dealt in the later part of this paper. It is clear that these concepts such as rights are based on the aspect of just or fair law or the higher law for that natter and it has been implicitly mentioned under the United Nations charter. Through these acts, we come to the conclusion that the works of the United Nations have also been heavily influenced by the tendency and the principles that have been provided under the natural law or they have great conformity with the natural rights/natural law. As mentioned earlier, the sole pledge that was taken was to ensure that there is no war across the countries and it is the reason why there was a concept of Human rights declaration – keepinnng faith in the fundamental rights of the human[19]. Looking from the perspective of the Article 1 of UDHR, which states that all human beings are free once born, and they have the right to be treated equally in their dignity and rights[20]. Some of the terms to denote that natural rights are part of the declarations are,

1. Charter to “establish the conditions for the justice and also to respect the obligation arising from the treaties and all the sources of the International law.”

2. To promote the social development and the better standard of living in across all nations in the world[21]."

From the above aspects, it is clear that the Universal declaration of Human rights is the law that has no force involved rather it is another form of an affirmation that all the individuals are living and shall have certain specific rights which, as mentioned previously, shall never be violated at all[22].

Natural law and the Recent Developments

In India, the concept of privacy remains a myth because of various political and technological problems. Because of these issues, the rights of the citizens which have been conferred by the constitution are at stake. With the advent of technology, these issues are rising and with increasing political and various technological companies. But, why is privacy being violated in cyberspace? There are motives behind the same and these motives are basically to restrict the voices of the public against the government and also due to some of the cyber attacks while we do any activities. This is to mean that natural law keeps on developing and shall be based on the importance of the human beings. Whichever is good for the societal justice, then such shall be considered to be valid and whichever is not then such shall not form part of natural law.

Constitutional Rights and Protection:

The Indian constitution has derived its source from UDHR. It is essential that the laws are not static in it, and they should make sure that all the acts and rules made for the purpose of protecting are in compliance with the grundnorm or the supreme law, which is the Indian Constitution. If the same is not in conformity with the said supreme law, then the same shall be considered inconsistent and it unconstitutional by the protector of the Constitution – The Supreme Court or the High Courts. Article 21 of the Indian Constitution confers an unwritten right called Right to privacy. Whenever there is an action which involves the intervention of privacy, then this is termed as violation and again the judiciary will come into picture to uphold the same. A few of the cases which dealt with these violations are as follows.

Let us look into one of the important and ever cited cases of R Rajagopal v. State of Tamil Nadu and ors. In this case, the Supreme Court observed that Article 21 includes the right to privacy within its ambit.[23] The court referred to it as the ‘right to be left alone’ and observed that all citizens have the right to protect the privacy of themselves, their families, marriage, procreation, motherhood etc. No one has the right to interfere in it or take cognizance over it by publishing the same in public. If any person does anything of such nature, then the same shall be a violation of the right to privacy. 

Secondly and most importantly, right to privacy was made as a constitutional right only after the judgment of Justice KS Puttaswamy case. It was in this case, the court declared that the right to privacy is an integral part of Part 3 of the constitution which contains fundamental rights of its citizens. It led to drafting of the Personal data protection bill.