Laws are classified into three types:
Jus naturalis, Jus gentium,
and Jus civile.
Jus naturalis is the
natural law, Jus Gentium is the international law applied in disputes between
the nations, and Jus civile are the laws applied to the citizens of
a country. Among all the three types of laws, natural law is called the 'higher
law'. As it is given by a higher, non human entity. The rest two laws- jus
gentium and jus civile are created by human beings.
Natural law, which is the 'higher law
' acts as a measuring rod for the
other two types of laws created by humans. If a human-made law goes against the
natural law then it is said to be unjust. Philosophers like Thomas Acquianus
believed that natural laws are given by God and the laws created by humans must
be in consonance with the natural laws. The aim of natural law is to maintain
the higher order.
Other philosophers who applied a teleological approach said that natural law is
derived from the nature of the world around us. They also called it 'higher
laws' given by God. Philosopher John Locke proclaimed the natural laws are
so manifest and certain that nothing can be plainer than it. It is such that
you can say when it is natural and when it is not. But the definition does not
clearly tell us what natural law is.
Some basic tenets of natural law are:
- Natural laws are universal in nature; it is the same irrespective of any
country you visit on earth
- It does not change with change in time.
- It is not derived from one's opinions. Because opinions are biased.
- It is also not derived from traditions followed in a state. Because
traditions can also be discriminatory, like the way it was in Nazi Germany.
- It is independent of human will.
- It aims for the common good of people.
If a law created by human beings are not in consonance with the natural law then
it is called an unjust law. It does not fulfil towards maintenance of the higher
order and peace among the people and therefore it is said that human beings do
not owe any obedience to the unjust laws created by fellow human beings.
Although the Constitution of India does not specifically talk about the
principles of natural law but the different parts of it reflect that it is
drafted in consonance with the natural law. The Preamble, for instance, has the
words justice inclusive of social, economic and political and equality of
status and thought- which reflect the natural law principles. It aims towards
promoting the fulfillment of the higher order and peace among the masses.
Through various judgments the judiciary has also applied the natural laws in
order to impart justice and good conscience. In this article we will explore
such judgment give by the Hon'ble Supreme Court of India which are in consonance
with the natural law.
The first case is National Legal Services Authority vs Union Of India &
. The case was filed by National Legal Services Authority along
with some petitioners. They argued that only binary genders, male and
female, were recognized under Indian law and the transgender community. The
transgender community also faces bias, and social discrimination. This is the
violation of the constitutional rights including the rights to a dignified life,
equality before the law, non-discrimination and freedom of expression (Article
14,15,16 and 21 of the constitution of India). A gross violation of their
It eventually brought up two main issues in front of the court:
- whether the individual has a right to get categorized with the gender
specific features, though he or she was born with a different gender.
- And whether an individual with no gender can be categorized as the third
The judgement granted the transgender community a third gender identity and also
the liberty to get self-identification. It was held that discrimination towards
the transgenders is against the natural law because natural law treats people
with distinctive features equally and believes in respecting every individual's
The Supreme Court judgement also quoted:
More than 225 years ago, Immanuel Kant propounded the doctrine of free will,
namely the free willing individual as a natural law ideal. Without going into
the detail analysis of his aforesaid theory of justice, what we want to point
out is his emphasis on the freedom of human volition.
The concepts of volition and freedom are pure
, that is not drawn from
experience. They are independent of any particular body of moral or legal rules.
They are presuppositions of all such rules, valid and necessary for all of them.
The second is the landmark judgment of the Supreme Court in Women officer's
permanent commission in the Armed Forces (2020). Earlier women were commissioned
for a period of 10 years, and it was extendable only up to 14 years, unlike
their male counterparts. Also there roles were restricted to streams specified —
which excluded combat arms such as infantry and armoured corps.
The SC held that it violated equality under law. It rejected the arguments
brought up by the centre, saying they are:
Based on sex stereotypes premised on
assumptions about socially ascribed roles of gender which discriminate against
It has also said that it only shows the need:
To emphasize the need for
change in mindsets to bring about true equality in the Army.
We know that the natural law is against the arbitrary discrimination created
among the people. The judgement holds the very tenet of the natural law. Here
the Supreme Court recognized how there was unreasonable discrimination on the
basis of their sex and how women were not given equal opportunity in the work
space. The judgement holds natural law and greater goodwill of the people.
In the case of Air India v/s Nargiz Mirza
, similar decision was taken by
the Hon'ble Supreme Court. Here the airline company was putting an arbitrary
restriction on women employees with regards to service as an air hostess.
The Regulations 46 and 47 of the Air India Employees Service Regulations were
challenged in the Hon'ble Court as it created a substantial degree of disparity
among male Air Flight Pursers and female Air Hostesses and within the pedigree
of Air Hostesses on several grounds such as promotional avenues, differential
retirement ages, conditions about the termination of the Air hostesses services
in cases of pregnancy or marriage (retirement age for them was 35 years as
opposed to 58 for their male counterparts – according to Regulation 46).
Furthermore, a more impending question was regarding the discretionary powers of
the Managing Director who under Regulation 47 could increase the age of
retirement as per his own interest. The petitioner contended that such a power
bestowed is arbitrary.
The Hon'ble court held that the clauses regarding retirement and pregnancy are
unconstitutional and declared it void with immediate effect along with the
Regulation 47. The judgement made by the Hon'ble 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.
When the laws tend to break the higher order, human beings are not bound to
adhere to the same, since the harmony among people sanctity of the higher order
is the superior priority. The laws are meant for human welfare and not to
disrupt the natural order. The Supreme Court has also through various judgments
has substantiated the very spirit of natural law.
- National Legal Service Authority v. UOI. Casemine. 15 April
- Sushant Singh, "Explained: What Supreme Court said on women in Army"
Indian express explained, February 18, 2020 https://indianexpress.com/article/explained/women-in-army-what-supreme-court-said-6273177/
- Surya J N, "Case Analysis Air India V Nargesh Mirza" Legal News,
Lawsisto , 06 Dec 2020, https://lawsisto.com/legalnewsread/ODk5Ng==/Case-Analysis-Air-India-v-Nargesh-Mirza