Natural law does not have any precise definition, it is known as the law of
reasons or the ethical or the moral law. It is not made by man, it is only
discovered by him. It emanates from human reasoning and it appeals to it only,
it does not need any sort of compulsion to be implemented as the principles of
natural school or law are embodied in the human consciousness itself. It can be
regarded as a way of looking at things in the quest of ensuring justice.
Though it is said to be developed by Greek philosophers, but in actuality it was
there present in the nature itself from the time immemorial. The greatest
contribution of natural law theory to the legal system is its ideology of a
universal order governing all men and the inalienable right of individuals
The concept of natural law has greatly contributed to the development of many
laws in the contemporary scenario or it can be stated with profound surety that
any law which violate the principles of natural law does not stand much in a
democratic society. The concept of Rule of LawŁ in India and England and
the concept of due processŁ in the USA had been emanated from this School
But our concern here would be the Impact of Natural Law on the Indian
Penal Code. The validity of Natural Law school derives from its own inherent
values, differentiated by its living and organic properties from the law
promulgated in advance by the State itself or through its agencies furthermore
the greatest attribute of the natural law theory is its adaptability to meet new
challenges of the transient society.
IPC is nothing else than the codification of the Negative Human desires, which
are very natural in their origin but when manifested becomes a punishable
offence. Though there are many other provisions but in this short Article the
authors particularly emphasis on Mens-Rea, Right to Private Defence, Defence of
Necessity and Section 377.
For constituting any criminal offence or crime the two of its essentials are
Mens-rea and Actus-reas. Mens-rea is the mental element or the guilty
intention and actus-reus is the willful act done in cognizance of that intention
(mens-rea). The concept of Mens Rea as constituting the basic element of crime
has been recognized by the maxim Actus non facit reum nisi mens sit rea
means that the person cannot be guilty unless he has a guilty mind.
understanding the due importance given to intention is because of the fact that
human beings have the power of reason and somehow reasons do dictate the actions
of the people. It would be justified to punish a person whose mind is guilty and
he goes on to do an offence in furtherance of that guilty mind. But punishing
someone without taking his mental element into consideration would be wholly
unjustified. This whole thinking is nothing else than the impact of Natural law,
where due emphasis is given to equity, justice and good conscience and where the
reasons of the person has been taken into consideration. Natural law is the
criterion which permits to evaluate positive law and to measure its intrinsic
Right to Private Defence
The right to private defence has been embodied under section 96 to 106 of the
Indian Penal Code. In the case of Laxman v State of Orissa it was held
that right to private defence is available to every person when there is an
unlawful aggression against the life and property of the person. The reason for
this is none other than the basic principle of Natural law according to which
every person has a right to protect oneself and his own property in case of
danger; law does not want the person to behave like a coward.
He can take the
law into his hands and can go to the extent of causing death of the aggressor in
case if the imminent danger which is threatening his own life. The cardinal
principal and the whole idea of providing right to private defence as a General
Defence as which would be justified in the eyes of law and would not be a
punishable offence was the thinking based on the natural instinct of a man in
case of danger.
There is a practical ground also which justifies this right; the
primary duty of state is to protect its citizens but because of the paucity of resourses it is impossible for the state to provide security to each and every
human being, therefore the concept of natural and ingrained rights of defence
come into picture.
Defence of Necessity
The defence of Necessity has been embodied under section 81 of the Indian Penal
Code. It justifies the act of the person and exonerates his liability under
situations in which the act of the person was done because of necessity and in
order to prevent some greater harm and when the said act was done without any
criminal intention and in good faith.
Under grave and sudden circumstances which this defence of necessity harbingers;
the human nature is bound to act in a spontaneous fashion which would be without
any pre-mediation or pre-planning; meaning to say that which would signify the
naturality of the act done by the person.
The Act of the human being would
always be based on the natural and basic instinct of the human being which is to
act by the conscience and to do minimize the dangerous consequences of his act.
The following illustration would explain the relation which we are trying to
indicate; A in order to stop fire from spreading pulls down the houses in order
to save human life and property, if it is found that he did this in good faith
and without and criminal intention; and in order to prevent some greater harm
then he would be exonerated from the liability.
The defence of necessity is based on the premises of two Latin maxims: quod
necessitas non habit leegem (means: necessity knows no law) and necessitas
vincit legem (means: necessity overcomes the law. These two maxims justifies
the role of natural law in the codification of the defence of necessity as the
study of natural law tends to motivate the citizens to engage in activities that
express virtues and refrain from actions that express vices. Moreover in words
of AristotleŁ justice behest that a person should be guided by reason and
refrain from indulging in acts which are unjust, unlawful and unfair and defence
of necessity when proved neither falls within unjust, unlawful or unlawful
unfair category of acts.
This section was embodied in the IPC to make carnal intercourse punishable which
is against the order of nature, as the legislators at that time thought; for
example intercourse between man and man or between woman and woman or between
man and woman with any animal. This would amount to a punishable offence under
this section and the punishment would extent to 10 years imprisonment and fine.
This section was criticized on the grounds that it makes consensual sexual
intercourse between two consenting adults a punishable offence; and this is
tantamount to the violation of their life, privacy, dignity, identity and their
liberty to have their own sexual orientation of their choice; and ultimately
because of the violation of so many Natural rights of the person this section
was ultimately decriminalized by the Supreme Court in 2018; as the court came to
the conclusion that sexual orientation embodies into the natural personality of
the person and punishing the same would tantamount to the violation of his or
her natural right.
Brief journey of the section which ultimately led to its unconstitutionality:
Petitions for checking the validity of the section was filed in the Delhi High
court in 2009.
In Naz foundation v NCT Delhi The Hon'ble High Court of Delhi held that
section 377 is unconstitutional as it criminalizes consensual sexual intercourse
between two adults in their privacy and which is a violation of Article 14, 15
and 21. This judgement of the high court never saw the light of the day as it
was stayed by the Supreme Court.
But ultimately after the judgement of NALSA v Union of India
Puttaswamy case the background for its unconstitutionality was ready. Also
in Navtej Singh Johar v Union of India
 the 5 judge's constitutional bench
of the Supreme Court declared section 377 as partially unconstitutional; as far
as it criminalizes consensual sexual intercourse between two adults. The court
applied the Natural school of jurisprudence for striking down the section
The Right of Privacy of the person is of supreme importance and the
right to choose one's is very fundamental to the right to life; and the court
further emphasized that the sex of the person also includes his or her sexual
Natural law school cannot be regarded as a body of actual
enacted or interpreted law enforced by courts but it is much far beyond this
whereas it is a way of looking at things and a humanistic approach of judges and
jurists. Within itself it embodies a host of conceptions such as justice,
reason, good conduct, freedom, equality, liberty, ethics, morality, and so on.
This was the reasoning of the court; by giving due importance to the natural
ingrained right to life, liberty and choice the court partially struck down the
provision of the IPC which was not in consonance with the Natural Law; so deep
is the impact of Natural Jurisprudence on IPC.
In short it can be stated that the impact of natural law is immense not only on
the IPC but also on any codified law of a democratic nation. Natural law
embodies in itself justice, equity, good conscience. It is a law which deals
with morality and reasons of the person; and any Law would lose its sanctity if
it is not accepted by the people; and anything contradictory to the general
people's consciousness, morality and reason would never be accepted.
while making any law it is very important to take into consideration the natural
school of jurisprudence. Natural Law theory reflects a perpetual quest for
absolute justice; it is basically a priori method different from empirical
method as it accepts things or conclusions in relation to subject as they are
without any need or enquiry while empirical approach tries to find out the
causes and reasons in relation to the subject- matter.
The essence of Criminal
Law is IPC which is based on priori method whereas empirical method in Criminal
law for ensuring justice is CrPC and evidence. Hence it could be rightly said
that Natural Law has played a concrete role in framing our penal laws. The
eternal lasting value of Natural law can be seen in IPC also as there are many
other laws which are completely being repealed but the basic core element of an
offence in the IPC is mens rea which can never be repealed; as IPC is nothing
but a codification of the negative desire of the Human beings; and desires are
the natural characteristic of a human, so to codify the criminality one has to
look deep down into the fold of the naturality of our behavior and this cannot
be done without the help of Natural School of Jurisprudence.
- Syed Monis Husain Kazmi - 3rd Year Law Student of Aligarh Muslim
University, Aligarh &
- Syed Zainul Hasan Rizvi - 4th Year Law student of Unity P. G.and Law
- Bodenheimer Edgar : Jurisprudence (1963), p. 430
- http://www.legalservicesindia.com/article/519/Natural-Law.html. Last
- Friedmann : Legal Theory, pp. 43-45
- Dias R.W.M. : Jurisprudence, p.65.
- Professor S.N. Mishra Indian Penal CodeŁ 9 (21st edition, Central
Law Publication, Allahabad, 2018).
- Giorgio Del Vecchio Philosophy of Law, Eighth Edition, 1952.
- The Indian Penal Code, 1860 (Act 45 of 1860), s.96 to 106.
- 1988 Cri. L.J. 188 S.C.
- Huda, S., The Principles of Law of Crimes, 382.
- The Indian Penal Code, 1860 (Act 45 of 1860), s.81
- P S A Pillai Criminal lawŁ 95 (13th edition, LexisNexis).
- 160 Delhi Law Times 277.
- Suresh Kumar Koushal vs. Naz Foundation (2013).
- AIR 2014 SC 1863.
- Justice K.S. Puttaswamy v/s. Union Of India (2017) 10 SCC 1.
- AIR 2018 SC 4321.
- Cohen &Cohen : Reading in Jurisprudence and Legal Philosophy (1951), p