CONCEPT OF LEGAL RIGHTS

By | April 14, 2017

CONCEPT OF LEGAL RIGHTS

Meaning, Definition and Concept of Right

  1. In English law, right means that which is straight and not crooked. It is an opposition from the wrong which is twisted from the straight.
  2. Right has been derived from the Latin word, rectus which means to rectify or correct or from jus, which means just or justice.
  3. Holland defined it as, “Capacity residing in one person of controlling, with the assent or assistance of the state, the action of others” (Will Theory)
  4. Salmond, “A right or an interest recognised and protected by a rule of right. It is a right, respect for which is a duty and disregard of which is a wrong.” (Interest Theory). Recognised here means that those which are recognised by the state. Those which are recognised by the state are legal rights and those which exist but are not given any recognition are moral rights. Thus the rights as stated in Part III of the Constitution are an example of legal rights in India. Recognition and protection must both exist, simultaneously. If only of them is prevalent, then it will not be a right. Thus, according to Salmond, rights and duties are correlated and must co-exist.
  5. Ihering defined rights as legally protected interests. (Interest Theory)
  6. J. Mathew in Keshavanada Bharti case (1973) held, “The word right has to be reserved for those claims (against somebody) and privileges which are recognised and protected by law.”
  7. Professor Feinberg, “Right is an indispensable, invaluable possession.”
  8. There are some rights which are so considered but are not actually enforceable for example, rights which are stated in international law, EU directives, Directive Principles of State Policy, etc.
  9. As in the case of time bar debt where the claims continue to exist but the protection of the same may be lost.
  10. Dean Roscoe Pound stated the following, “As a noun, the word right in the legal sense has 5 analogous meanings:
  • Firstly, a right is an interest which is secured and protected by law.
  • Secondly, a right is a recognised claim to act or in forbearance by another or by all in order to make that interest effective. (For example, torts, contracts).
  • A third use is the capacity to designate (assign) a capacity of creating, divesting or altering rights (power). For example the powers of a municipal corporation.
  • A fourth use is that rights are liberties/privileges to designate certain or general special non-interference with natural faculties of action (Gian Kaurs).
  • Right is used as an adjective to mean that which accords with justice, that which is recognised and gives effect to moral rights or jus rights (Kharak Singh v. State of UP)”   

Though natural law keeps on changing, 2 principles have remained unchanged. They are: universal order governing all people and inalienable rights.

  1. Doctrine of Waiver

This doctrine states that any right can be waived off at the discretion of a person. This doctrine is not applicable to the provisions of law enshrined in Part III of the constitution. It was held by the Supreme Court in Muthiah v. IT Commissioner, (1956), it is not open to a citizen to waive off any of the fundamental rights as conferred in Part III. These rights find mention in the Constitution not merely for the benefit of the individual but as a matter of public policy for the benefit of the general public. It is an obligation imposed on the state and the state cannot be relieved of such obligation as most people are economically poor and educationally backward.

Various Schools of Thought
  1. Positivist School: people do not have rights, they only have duties.
  2. Sociological School: As stated by Roscoe Pound, right is an interest recognised, protected and enforced by the law. The main function of the law is to balance the conflicting interests of the individual, society and state with minimum waste and friction.

Recognition, Protection and Enforcement are the main ingredients of rights

Evolution of the Concept of Rights
  1. All documents such as the Magna Carta (1214); the Bill of Rights (1689) and the French Declaration of Rights recognised the concept of rights.
  2. Following these documents, the Americans included the Bill of Rights in the Constitution and were the first to give these rights constitutional status.
  3. The inclusion of Fundamental Rights in the Constitution of India is in accordance with the trend of modern democracies, though the idea being to preserve that as an indispensable condition of a free society.
  4. UDHR, ICCPR, ICECSR are the international documents which deal with rights and are not binding but have found mention in most constitutions thus making them enforceable within a state.
THE STATE AND RIGHTS
  1. There exists a correlation between the state and rights. It is the state which affords recognition to these rights thus giving it protection.
  2. We can understand this better by understanding the relation between state and the theories of origin of state as there is a direct correlation between rights and origin of the state.
  3. Social Contract Theory: there existed a state of nature, wherein there was chaos, conflict, anarchy. Thus a contract was brought about which established a state for the protection of rights in an anarchy.
  • Hobbes: established a monarchy where absolute and unlimited power was given to the King. Herein, people had surrendered all their rights and thus could not claim such rights against the State. This changed when King James I signed the Magna Carta.
  • Locke: created two contracts, political (which created the government) and social (which created society). He established a Limited Rights Thesis- where people surrendered only certain rights to the State for the protection of their other rights- right to property, right to life and security. The King acted as a trustee and could be dethroned. This was a form of Limited or Constitutional Governance. For example, Fundamental Rights are not surrendered by the people, but the State interferes only in certain cases.
  • Rousseau: He gave the doctrine of popular sovereignty where the general will of the people was sovereign and not the King. When the general will prevails, the majority view prevails and not the minority. For example, The Indian Constitution which clearly states in the Preamble, “We the people give to ourselves…” It is a contract and represents a democracy. But it is important to note that the general will does not prevail over the Constitution.
Theory of Divine Origin
  1. The state is a divine institution which is created for the common welfare of the people.
  2. The king is the representative of God and thus he is responsible to God and not to the people at large.
  3. No rights are available against the King. To disobey the King is an offence as well as a sin.
  4. Example, In Hinduism, the concept of Dharma of the King. There are no rights created but a duty of the King and the people. The King ought to do his duty else the people have the option not to follow the King. But there was no formal way of resistance.
  5. Another example is that given in the Manusmriti which states that the King is God in the shape of man. It is God that created the state for the protection of the people from anarchy.
Force Theory
  1. Propounded by Jenks, Oppenheim and Bernhardi.
  2. Force is generally used by the strong over the weak.
  3. The consequent subjugation of the weak resulted in the origination and development of the State.
  4. Though, here people could not claim any rights from the state.
Historical Theory or Patriarchal/Matriarchal Theory
  1. State originated due to the historical evolution of society.
  2. There were small families that merged into a group and then many groups came together to form a State.
  3. The head had a duty towards the welfare of the people and only some rights could be claimed against the state.

1.1: ELEMENTS OF RIGHTS

  1. There must be a person of inherence or subject of right. There must be an owner of the right without which it may not exist. The owner of a right may not be a fixed or determinate person. It may be:
  • A fixed person as in the case of Fundamental rights or contractual rights.
  • Society at large i.e. of a country or the world at large
  • An uncertain person as in the case of an unborn child.
  • Indeterminate body like a Municipal Corporation.
  1. There must be a person of incidence.  A legal right will always operate against some person and in such case he will be bound by a certain duty as rights and duties are correlated.
  2. There must be some obligation to do or not to do something. This is because the content of a legal right maybe an act or omission in favour of the person entitled.
  3. There must be an object of legal rights. The subject matter of a right can either be tangible as in the case of property or intangible as in the case of reputation, intellectual property etc.
  4. Every legal right has a title. There are various modes by way of which one can acquire title of a legal right. (i) Citizenship, (ii) Purchase, (iii) Inheritance,  (iv) Gift, (v) Mortgage, (vi) Trove.

 

NATURE AND SCOPE OF RIGHTS

  1. Rights are natural and fundamental in nature without which no one can survive as they are required for development of self and society.
  2. Doctrine of Jus Nature (Locke and Wolfe)
  • Every FR is inherent in man. In fact, it existed prior to the origin of the state and the state is not competent to violate it.
  • It is the duty of the state to recognise and protect these rights.
  1. Blackstone lays down two principles with respect to the concept of right:
  • Rights are the absolute rights of individuals.
  • The principle aim of society is to protect individual’s enjoyment of these rights which are vested in them as immutable. For example, rights of an unborn child under TOPA.

MODELS OF RIGHTS

  1. But rights can be subordinated in case of public interest.
  2. Fundamental rights are aviable as a sheath against the arbitrary action of the state.
  3.  Rights can be subordinate to goals. For example, in case of emergence all FR’s other than A. 20 and 21 are suspended in the national interest.
  4. In Kameshwar Singh v. State of Bihar, Directive Principles of State Policy prevailed over Fundamental Rights.
  5. In Re Kerala Education Bill, it was stated that rights and duties are supplementary and complimentary to one another.
  6. John Rawl observed, Rights have lexical priority.
  7. Rights are observed over all other considerations.
  8. They shall prevail over all other considerations. For example, A. 13(2) of the Constitution of India.
  9. Absolutist model by Ronald Dwarkin, which states, “Right is triumph over other justifications or considerations.”
  10. Speech and expression includes right to publish. Government can restrict this right in order to promote public good.
  11. According to Dwarkin, such restriction cannot be tolerated and is wrong on part of the state.
  • This theory is inapplicable as no right can be absolute and all rights need to be bound by reasonable restrictions. Dwarkin went on to say that interference in an individual’s liberty can be justified only on reasonable grounds.
CLASSIFICATION AND KINDS OF RIGHTS
Perfect and Imperfect Rights
  1. A perfect right is one which corresponds to a perfect duty. A perfect duty is one which is not merely recognised by the law but enforced by it.
  2. A perfect right is thus, that which is recognised, enforced and for which there is a remedy available. For example, Fundamental Rights
  3. An imperfect right is one which is recognised, unenforceable and may or may not have a remedy. For example, time barred debts, international law, DPSP’s etc. These are cases which are an exception to the maxim ‘ubi jus ibi remedium’ meaning where there is right there is a remedy.
  4. An imperfect right is unenforceable because some rule of rule declares them so.
  5. Imperfect rights may become perfect rights by virtue of there being a remedy or being enforced by the court of law when in any judgment a court interprets such imperfect rights under any other perfect right. For example, when international law is taken into consideration and thus included in the municipal law while giving a judgment or if the legislature creates a new legislation on international law or DPSP’s.
  6. Rights against the state are considered to be imperfect rights as they may receive recognition but cannot be enforced. They cannot be enforced because the strength of law is technically the strength of the state and thus cannot be used against the state whose strength it is. However, they are considered to legal rights because of popular and legal usage.
Positive and Negative Rights
  1. Positive rights are those which correspond to a positive duty. Thus the person of inherence can compel the person of incidence to do a positive act. The person of inherence is entitled to receive more than he has already acquired i.e. active assistance. It has to be positively benefitted.
  2. Negative rights on the other hand are those rights which correspond to a negative duty. It is a right to refrain a person from doing a particular act. It is a right to maintain status quo. It requires passive acquiescence and not active assistance. It is a right not to be harmed.
  3. Examples of positive right include A. 44 Uniform Civil Code, A. 21A- right to education which states that the State shall provide free education for all between the ages of 5 to 14 years. In all such cases the state has a positive duty.
  4. Examples of negative right include A. 14 which states that no person shall be discriminated against on the grounds of caste, creed, sex, etc; A. 20(1) a person shall not be prosecuted against if there was no law at the time of commission of offence; A. 20 (2) Double jeopardy: A. 20(3) right against self incrimination. In all these case, citizens have a negative right arising out of a negative duty of the state.
Rights in rem and Rights in personam
  1. A right in rem is a real right which corresponds to a duty imposed on persons in general. It is available against the world at large. It is generally negative in nature. For example, a right to assign chattel.
  2. A right in personam sometimes called a personal right is one which corresponds to a duty imposed upon determinate individuals. It is a right which is available against only such determinate persons. It can be either negative or positive in nature. For example, a right by way of contract.
Proprietary and Personal Rights
  1. The aggregate of a man’s proprietary rights include his estate, his assets or his property. This includes land, goodwill, shares of a company etc.
  2. The sum total of a man’s personal rights includes his status pr personal condition. This includes right to reputation, freedom of speech and expression, freedom to marry etc.
  3. Proprietary rights are valuable and are worth some money whereas personal rights are not.
  4. Proprietary rights are elements of a man’s wealth and are economic whereas personal rights are elements of a man’s well-being and are juridical.
Rights in Re Propria and Right in Re Aliena
  1. Right in re Propria is the right over one’s own property. For example, the rights of a landlord
  2. Right in re Aliena are rights over the property of someone else and includes encumbrances. It reduces or derogates a right that belongs to someone else in the same subject matter. For example, the rights of a tenant.
  3. A right subject to any encumbrance is called servient and the owner of such a right is called servient owner whereas, an encumbrance which derogates from it is called dominant and the owner of such a right is called dominant owner.
  4. Dominant and servient rights are necessarily concurrent.
  5. A right in re Aliena reduces the right in re Propria.
 Principal and Accessory Rights
  1. A principal right is a main or primary right in a particular subject matter whereas an accessory right is a subordinate or additional right in the principal right.
  2. It is necessary for a primary right to exist for an accessory right to arise from it but a primary right can exist without a subordinate right originating from it.
  3. Accessorium sequitor: means that the accessory right follows the principal right.
  4. For example, in case of the right to file a suit (a primary right) the accessory right will be the right to appoint a lawyer OR in case of the right to debt (the principal right) the right to interest will be the accessory right.
Primary and Sanctioning Rights
  1. Sanctioning rights originate from some wrong or violation of principal or primary rights. For example, right in damages.
  2. Primary rights can either be rights in rem or rights in personam but sanctioning rights are always right in personam.
Legal and Equitable Rights
  1. In England, those rights which are recognised by Courts of Common law are legal rights and those which are recognised by Chancery Courts are equitable rights.
  2. The maxim ‘Qui Prior est Tempore Potior est Jure’ means that where there are equal equities the law will prevail, legal rights will prevail only in the case of conflict.
  3. Such rights are not recognised in India
Vested and Contingent Rights
  1. Rights vest in someone if all the facts have occurred which must occur by law is called vested right.
  2. If some but not all vestitive facts have occurred they are called contingent rights. It is a right that is incomplete.
Rights-Duty Correlation
  1. Duty is an obligation to do or not to do something whereas rights are interests which are recognised and protected.
  2. Correlation means mutual, corresponding, and reciprocal or occurs simultaneously.
  3. There are 2 schools of thought bring about the relation between rights and duties.
  4. Salmond: He states that duties and rights are correlative. Duty is an obligatory act, the opposite of which is a wrong.  He says that just like there cannot be wife without husband, father without child, there cannot be a right without a corresponding duty.
  5. Austin (supported by C.K. Allen): he states that rights and duties need not necessarily be correlative. According to Austin there are two kinds of duties; Absolute Duties and Relative Duties.
  6. When there is a relative duty there is a right and when there is an absolute duty there is no right.
  7. Examples of absolute duties are: duty of a judge to punish a culprit; duties owed to the sovereign etc.
  8. Austin’s view was criticised on 2 grounds:
  • According to Austin, the sovereign is supreme having an absolute monarchy. However there are certain things like the basic structure of the Indian constitution that cannot be changed even by the sovereign.
  • Salmond criticises Austin’s view saying that if duties in rem are violated independent persons will always have a right against us
Statutory Rules of Interpretation
The Literal Rule
  1. A term applied to collect the intention of a deed, contract, statute etc from the words used only.
  2. It is based on litera legis which means letter of the law. The courts are to interpret the law in its ordinary meaning and not go into the purpose or spirit of the law.
  3. Words of an enactment are to be given their ordinary meaning and not to be construed in any other way whatever may be the consequences.
  4. It is the court’s duty to interpret the intent of the law but first of all it must be in the words and language employed.
  5. Examples: A.K. Gopalan v. State of Madras; procedure established by law
Golden Rule or Modified Rule
  1. If literal interpretation leads to absurdity or repugnancy or inconvenience the court must modify the law to such an extent to prevent the abovementioned consequences.
  2. It aims to solve all problems while interpreting the law and hence is called the golden rule.
  3. For example, Keshavananda Bharti (1973) wherein the court read into certain matters and finally laid out the contents of the basic structure of the Constitution and that such could not be amended in any situation.
The Mischief Rule
  1. Mischief here means any problem or difficulty.
  2. It is also called Heydon’s Rule. The interpretation is done in such a way so as to suppress the mischief intended to be remedied by a statute.
  3. Four things taken into consideration: what was the common law before the Act, what was the mischief done and the common law which did not provide an adequate remedy for, what is the remedy that the parliament provided for in the act, what was the reason behind the remedy that was provided.
  4. For example, Vishaka v. State of Rajasthan, wherein rules of international law were brought so as to remedy the acts of a person which was not provided for in the state law.
Rule of Ejusdem Generis
  1. Ejusdem generis means of the same kind.
  2. The words in a statute have to be understood in reference to context. Meanings of other authorities are to be taken into consideration.
  3. University of Madras v. Santa Bai, “Other authorities could only indicate authorities of a like nature. Thus, authorities exercising sovereign or governmental functions cannot include within it universities unless maintained by the state.”
  4. Ujjammbai v. State of UP – it was held that there is no common generis.
Rule of Noscitor a Sociis
  1. Noscere means to know, sociis means association. Thus the captioned maxim means, to know from the association.
  2. Some rules take their colour from each other or are presumed to have taken colour from each other as words are known by the company they keep.
  3. State of Karnataka v. Union of India, “The word power has been used in the company or privileges and immunities, thus power means power of house as necessary for conduct of business and not legislative powers.”
Rule of Strict Construction
  1. Here, the court is expected to construe the words of an act or statute strictly so as to mean the liability as created by the statute.
  2. Punishment to a person can be meted out only if the plain words of a statute involving a penal provision are able to bring that person under the purview of the provision.
Harmonious Construction
  1. When two or more provisions are repugnant the court shall if possible give effect to both provisions.
Judicial Contribution to the Evolution of Rights in India
  1. Rights in India have developed and been interpreted in various ways. This has been done by the power of the judiciary to review any right as stated in Part III of the Constitution.
  2. This can be seen by the judiciary reviewing an expanding the various fundamental rights provided for in our Constitution.
  3. For example, A. 21 right to life includes, right to live with dignity, clean air, livelihood, etc. Article 14 and 19.

Submitted by 

Ankit

(Symbiosis Law School, Noida)

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