Concept of Rights and Duties

A legal right is an interest or claim that the law recognises and protects, and the violation of which is a legal wrong, while the respect for which is a legal duty. Unlike a mere moral claim, a legal right can be enforced by the courts.

• Will (choice) theory: a right is a protected sphere of individual will or choice, such that the right-holder has control over the corresponding duty (for example, to waive or enforce it). Associated with Kant, Hegel, Savigny, Puchta, Windscheid; in modern times H.L.A. Hart (choice theory). Criticism: it cannot explain the rights of infants, mentally ill persons, and unborn children, or inalienable rights.

• Interest (benefit) theory: a right is a legally protected interest. Associated with Ihering, Bentham, Salmond, Austin (partly) and Joseph Raz ('X has a right if X's well-being is a sufficient reason for holding another to be under a duty'; Raz in The Morality of Freedom). Criticism: third-party beneficiaries have interests but not rights; trust beneficiaries.

• Hybrid theories: MacCormick and others combine will and interest.

• Rights as trumps (Dworkin): individual rights override collective goals.

• Social function theory (Duguit): rights are replaced by social functions and duties.

• Kelsen: a right is a reflex of a duty; the 'right' is the legal duty seen from the standpoint of the person entitled.

1. The subject or owner of the right (the person who has the benefit).

2. The person of incidence, or the person against whom the right is available (the person bound by the duty).

3. The content of the right, or the act or forbearance which the person bound must do or abstain from doing.

4. The object of the right, the thing or subject matter over which the right is exercised.

5. The title of the right, the facts or events by which the right is vested in the owner (for example, a contract or purchase).

Wesley Newcomb Hohfeld (American jurist, 1879 to 1918) published Fundamental Legal Conceptions as Applied in Judicial Reasoning (articles of 1913 and 1917, published as a book in 1919). He argued that the term 'right' is used loosely and in at least four different senses. He identified eight jural conceptions in two sets of four: jural opposites and jural correlatives.

Definitions:

• Right (claim, right in the strict sense): a claim that another must do or not do something. Correlative: duty. (If A has a right that B not trespass on his land, B has a duty not to trespass.)

• Privilege (liberty): the freedom of the holder to do something without being under a duty not to. Correlative: no-right (others cannot claim that he should not do it). Opposite: duty.

• Power: the ability of a person, by his own act, to change legal relations (his own or another's). Examples: the power to make a will or contract, or to sell property. Correlative: liability. Opposite: disability.

• Immunity: freedom from the power of another to change one's legal position. Correlative: disability (in the other). Opposite: liability. (Example: the immunity of diplomats from jurisdiction; judges' immunity.)

• Liability: the position of being subject to another's power to change one's legal relations (for example, a debtor's liability to be sued; a mortgagor's liability to a power of sale).

• Disability: the absence of a power (for example, a minor's incapacity to make a binding contract).

• Duty: being legally bound to act or forbear. No-right: the absence of a claim.

Key exam trap: correlatives are two sides of the same relation and exist in different persons (right in A is duty in B); opposites are the negation of a conception in the same person (a person who has a right does not have a no-right). Hohfeld called the four conceptions of right, privilege, power and immunity the 'advantages', and the other four the 'disadvantages'.

• Perfect and imperfect rights: a perfect right is one that is both recognised and enforceable (for example, the right to recover a debt); an imperfect right is recognised but not enforceable (for example, a time-barred debt).

• Positive and negative rights: a positive right corresponds to a duty to do something (to pay a debt); a negative right corresponds to a duty to forbear (not to trespass).

• Real rights (in rem) and personal rights (in personam): a right in rem is available against the world at large (the right of ownership, the right to reputation); a right in personam is available against a determinate person or persons (contractual rights). Salmond notes that rights in rem are generally negative and rights in personam generally positive, but there are exceptions.

• Proprietary and personal rights: proprietary rights relate to a person's estate or property and are valuable (ownership, debts, shares), whereas personal rights relate to a person's status or condition (right to liberty, reputation, family rights).

• Rights in re propria and rights in re aliena: the right of ownership over one's own property, or jura in re propria, and encumbrances on the property of another, jura in re aliena. The four categories of encumbrances are leases, servitudes (easements), securities (mortgages, pledges and liens) and trusts.

• Principal and accessory rights: an accessory right is subordinate to a principal one (for example, a mortgage securing a debt).

• Vested and contingent rights: a vested right is fully acquired, while a contingent right depends on a future event.

• Primary (antecedent) and secondary (sanctioning or remedial) rights: a primary right exists independently of any wrong (the right to bodily integrity); a secondary right arises from a violation (the right to damages).

• Legal and equitable rights; public and private rights; municipal and international rights; rights against the State.

• Human rights and fundamental rights: a human right is a claim recognised by international law and moral theory, and a fundamental right is a human right incorporated into the Constitution and enforceable under Articles 32 and 226.

Salmond's and Austin's views on 'rights without correlative duties': Austin said that there are absolute duties (those not correlative to any right), such as duties owed to oneself, to God, to the lower animals and to the public. Salmond argues that every right has a duty, but not every duty has a right (absolute duties exist but are rights of the State). Hohfeld says the correlative of right is duty, but privileges have no-right as correlatives.

Key maxims: ubi jus ibi remedium (where there is a right there is a remedy); damnum sine injuria (loss without legal injury is not actionable, Gloucester Grammar School case, 1410; Bradford Corporation v Pickles, 1895); injuria sine damno (violation of right without loss is actionable, Ashby v White, 1703; the right to vote).

Meaning: a duty is an act of forbearance that the law obliges a person to perform in the interest of another, and the neglect of which is a wrong. Salmond: duty is an obligatory act, the opposite of which is a wrong. Austin: the idea of duty is prior to the idea of right, and the duty is the basic concept (the right is only the other side). Kelsen: the right is a reflex of the duty. Duguit: only duties exist, as everyone has the duty to perform a social function.

Kinds of duties:

• Positive and negative duties.

• Primary (or antecedent) and secondary (or sanctioning) duties: the duty to pay compensation after a wrong is secondary.

• Absolute and relative duties: relative duties correspond to rights in a determinate person; absolute duties have no corresponding right in an individual (for example, duties towards the public or the State).

• Duties in rem and in personam.

• Legal and moral duties.

• Penal and remedial (civil) duties.

Fundamental duties in India (Part IV-A, Article 51A):

• Introduced by the Constitution (Forty-second Amendment) Act, 1976, on the recommendation of the Swaran Singh Committee, and inspired by the USSR Constitution.

• Originally ten duties; an eleventh (duty of a parent or guardian to provide opportunities for education to a child between the ages of six and fourteen) was added by the Eighty-sixth Amendment Act, 2002.

• They include respect for the Constitution, the national flag and anthem; cherishing the ideals of the freedom struggle; upholding sovereignty and integrity; defending the country; promoting harmony and renouncing practices derogatory to the dignity of women; preserving the composite culture; protecting the natural environment; developing the scientific temper and humanism; safeguarding public property and abjuring violence; and striving for excellence.

• Not directly enforceable by writ, but useful in interpreting laws and in determining the reasonableness of restrictions on rights. See Rural Litigation and Entitlement Kendra v State of UP (1985); AIIMS Students' Union v AIIMS (2002) (fundamental duties are not enforceable by writ but the court can use them to interpret); and Bijoe Emmanuel v State of Kerala (1986) (national anthem and the right not to sing).

Duties of the State (in the Constitution): the Directive Principles (Part IV) impose duties on the State, but are non-justiciable (Article 37). The Court has expanded fundamental rights to read in many directive principles (for example, Unni Krishnan v State of AP, 1993, on the right to education, which led to Article 21A by the 86th Amendment).

• Most theorists (Salmond, Holland, Hohfeld, Bentham) treat right and duty as correlatives: no right without a duty in someone else.

• Austin and Kelsen see duty as the primary notion.

• Duguit and the sociological school see duty (social function) as the basic concept.

• Hohfeld's contribution is to show that the word 'right' hides four different relations: claim, liberty, power and immunity.

• Kharak Singh v State of UP (1962) and Gobind v State of MP (1975): early recognition of privacy.

• Maneka Gandhi v Union of India (1978): the 'procedure established by law' in Article 21 must be just, fair and reasonable; the 'golden triangle' of Articles 14, 19 and 21.

• Olga Tellis v Bombay Municipal Corporation (1985): the right to livelihood is part of the right to life.

• Francis Coralie Mullin v Administrator, Delhi (1981): the right to live with human dignity.

• Vishaka v State of Rajasthan (1997): guidelines on sexual harassment at the workplace, drawing on international conventions (CEDAW).

• K.S. Puttaswamy v Union of India (2017): privacy; Puttaswamy (Aadhaar) (2018): limited validity of Aadhaar.

• Mohini Jain v State of Karnataka (1992) and Unni Krishnan (1993): the right to education; Right of Children to Free and Compulsory Education Act, 2009.

• Property: the right to property was removed from fundamental rights by the 44th Amendment (1978) and made a constitutional right under Article 300A.

• PUCL v Union of India (2001): the right to food (Article 21).

• Subhash Kumar v State of Bihar (1991) and M.C. Mehta cases: the right to a wholesome environment.