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Judicial Activism In India: A Boon To Natural Laws And The Social Contract Theory

School Of Natural Law
"An unjust law is a human law that is not rooted in eternal law and natural law."- Martin Luther King Jr.

The School of Natural Law deals with the divine laws that are believed to have an origin from the ultimate superpower, the creator of mankind and hence are universal and absolute. They are immutable as 'God' can never err. Morality is the key element to a law that comes under this school. According to philosophers under this school, all laws that lack morality are bad laws and hence invalid. Any law that does not relate to the original nature of man cannot be considered that of morality. Unlike the positivist point of view on law, where they believe law and morality are two different entities that do not contemplate each other or cannot exist hand-in-hand, natural law thinkers believe that to be the determining factor for the validity of law.

There are many natural thinkers that have contributed to the principles of natural law throughout history. Socrates, Plato, Aristotle, the Stoics and the Sophists and the various leaders of Rome like Cicero purported natural law during the ancient period. The baton was handed over to medieval thinkers like St. Thomas Aquinas, Hobbes, Locke and Rousseau and then to the thinkers like Finnis and Fuller who recovered the school of thought. This paper will specifically analyze the thoughts of the natural law philosophers, Aristotle and St. Thomas Aquinas and the Social Contract Theory as proposed by Jean Jacques Rousseau.

"The law is reason, free from passion."

The father of Natural Law believed that the whole material world that we live in today along with its creations is a product of nature[1] and therefore, us humans who are part of nature, owes to obey the laws that are created by it. The mere creation of man by nature bestows an obligation upon him to live according to the laws of nature by not hurting fellow creations and by preserving them. He also emphasizes on man being a rational creature with reason which makes him superior to the rest of nature's creations and make him responsible to take an upper hand in ensuring the proper implementation and practice of natural laws and thereby protecting nature.

St. Thomas Aquinas
"Law: an ordinance of reason for the common good made by him who has care of the community"

St. Aquinas reiterated what Aristotle put forward by further instilling an element of divinity to his ideas of Natural Law. His proposal was regarding all acts having means and ends. He established how the means, a modus operandi of any act, is connected to the end. This can be linked to the Indian concept of Karma- the life we live and the acts we do determine our destiny.

Similarly, St. Aquinas believed man had the ability to alter his ends by deciding how to live on earth and Natural Laws are man's means to attain a good ending, attain heaven. He defined law as "an ordinance of reason for the common good made by him who has the care of the community and promulgated"[2]. He believed God created laws for his creation, man, for his good as well as a collective good for all of mankind. He also proposed the Divine Command Theory of Law which established this.

Social Contract Theory
Social Contract, in political philosophy, an actual or hypothetical compact, or agreement, between the ruled or between the ruled and their rulers, defining the rights and duties of each. In primeval times, according to the theory, individuals were born into an anarchic state of nature, which was happy or unhappy according to the particular version of the theory. They then, by exercising natural reason, formed a society (and a government) by means of a social contract.[3]

Social Contract theories can be traced back to the Greek Sophists however, the idea is often attributed to the medieval thinkers, Hobbes, Locke and Rousseau. The distinction between the social contracts as proposed by the three thinkers are based on the degrees of political obligation of the state, the rights of the subjects and the relationship that existed between the rulers and the ruled.

The paper intends to analyze the Social Contract Theory as proposed by Jean Jacques Rousseau in his book, 'The Social Contract'.

Jean Jacques Rousseau
According to Rousseau, the original state of nature of man is a solitary but happy healthy and good being with freedom. But when man started settling down as families, a 'nascent society' was formed that created negativity and destructive passions and this resulted in social inequality and human vice.[4] Private property is one other factor that acted as a catalyst to this evolution of man.

Natural law that purports that the Earth belongs to none got violated through this and in turn necessitated the intervention of a government or state to ensure peace as well as protect the rights of all. Property was a luxury that was enjoyed by a very few categories of men in society. This added on to the spark of social inequality in the society. A rectification to this can be done, according to Rousseau, by a social contract between the state and the people where the state will provide a better liberty to their subjects in exchange of their independence.

 Rousseau described in Du Contrat social (1762; The Social Contract), such liberty is to be found in obedience to what Rousseau called the volont� g�n�rale ("general will")-a collectively held will that aims at the common good or the common interest.[5] All rights provided to men are subject to this will.

Judicial Activism
Judicial activism is an approach to the exercise of judicial review, or a description of a particular judicial decision, in which a judge is generally considered more willing to decide constitutional issues and to invalidate legislative or executive actions.[6] When the Judiciary, in specific, condemns the acts of the Executive, or puts forward suggestions or rectifies laws made by the legislature by means of Judicial review as delegated to the Supreme Court under Article 226 and 227 and to the High Courts under Article 32 and 136 of the Indian Constitution or by means of Public Interest Litigation or through constitutional interpretations, the concept is called Judicial Activism.

Olga Tellis v. Bombay Muncipal Corporation & Ors [1985 SCC (3) 545]
The case which started in 1981 dealt with the eviction and deportation of pavement and slum dwellers in Bombay city to places of their origin or to places outside the borders of the city. The questions raised in the case were regarding the Right to Life of the dwellers as well as about the prior approval for Anti-Encroachment. The court decided in the case that the dwellers were evicted using unreasonable force without a chance to explain and were treated as mere tresspassers.

This violated their right to life under Article 21 of the Indian Constitution. Even though the state argued on the grounds of estoppel, the court stated that no estoppel can stand against the constitution. It also held that the act of the state and the delegated authorities, done without any prior notice, violated the dwellers' right to livelihood.[7]

Analyzing the Court's approach in the case with Natural Laws and Social Contract Theory
India has a rich background in divine scriptures and laws and the influence of the principles put forward by them is reflected on many of the laws that are in place today. The Constitution of India declares India to be 'Sovereign, Socialist, Secular, Democratic, Republic' all of which reflect the ideas of Natural Laws. Article 311 of the supreme law in India upholds the principles of Natural Justice. Natural Laws intend to protect the creations of nature (Aristotle) and therefore God (St. Thomas Aquinas�).

In the aforementioned case, the dwellers are provided, under Article 21, a Right to life. This provision is vast and therefore can be interpreted in various ways, one of which is the extended reading of Right to Livelihood. One's livelihood aids one's means to subsistence, i.e. there is an unimpeachable nexus between one's life and their livelihood. To ensure absolute justice to an individual in terms of the right under Article 21, their livelihood must be protected.

This was upheld by the court. Right to life can also be read as Right to Live with dignity. The dwellers were considered to be lowly and of no value by the evictors as they lived in the filthy slums and pavements. This was reflected in the forceful eviction that was exercised. The court criticized this aspect.

The principle of natural justice puts forward the Right to be Heard to all its citizens. In this case, the dwellers were not given a chance to be heard or were not given any prior notice regarding the eviction. They were not asked to move out in a peaceful manner but were forcefully evicted, using unreasonable force. In spite of this, the dwellers were not provided with an alternative accommodation or relief to cover up for the losses they incurred.

The court directed for the covering up of damages. The ultimate purpose of the dwellers residing in the pavements were merely a means to earn a livelihood and was not to commit an offense or to intimidate or bother anyone. Even though residing at an unauthorized space amounts to intrusion, and is a crime, they should be given a chance to be heard as well as an opportunity to leave.

The Constitution of India and other statutes and legislations passed in the country places its citizens in a social contract with the government as they have given up their freedom to the state and have agreed to be part and subject to laws that are supreme. Therefore in exchange to this, the government has an obligation to protect the subjects.

In this case, violating the right to life by means of not providing a right to livelihood, not fulfilling the principles of natural justice etc. breaches the fundamental obligations of the state to its people. All this was criticized by the court in its exercise of judicial activism by directing the rectification of the executive's overpower.

The attempt of Judicial Activism in the case of Olga Tellis v. Bombay Muncipal Corporation & Ors, is an example of how the court interpreted and attempted to rectify the exercise of ultra vires powers by the executives over the pavement dwellers. This violated the universal natural laws that are enshrined upon them as well as breached the Social Contract by which the state is obliged to protect its citizens. Therefore, Judicial Activism is an efficient means to rectify the errors and re-establish the fulfillment of protecting citizen rights and the social contract.

  1. Shellens, M. S. (1959). Aristotle on Natural Law. The American Journal of Jurisprudence, 4(1), 72�100.
  2. BRIA 22 4 c St. Thomas Aquinas Natural Law and the Common Good. (2006). Constitutional Rights Foundation.
  4. id at 3
  5. id

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