Professional Documents
Culture Documents
The present project on the topic “Rights & Duties : A Critical Legal analysis has
been able to gets its final shape with the support and help of the people from
various quarters. My Sincere thanks go to all the members without whom the study
could not have been made and would not have come to being presented.
First and foremost I would like to extend my sincere regards and thanks to Dr.
Manoranjan Kumar for the help, support and guidance he has provided me
during the course of making the project. Without his kind supervision and
directions this project would never have seen the light of the day.
Next, I would like to thank the library staff for being extremely supportive during
the entire endeavor and helping me direct to the books which have been referred to
during the making of the project. In the same context I would also thank the CNLU
authorities for providing us with such an informative library.
I would also like to mention my friends and classmates who helped me whenever I
needed their support. Among them I would like to specially mention My Friends
who have been for me throughout.
Last but not the least; I would pay my regards to my parents and family who have
been the guiding factor for me all my life. It is them who have me made me what I
am today and during the making of this project have provided me with all the help
they could, monetary and otherwise.
In all this, not to forget the Lord Almighty without whose guidance none of this
would have been possible.
Rajeev Ranjan
Roll no.-781
5th semester(3rd Year)
Contents Page NO
1. Research Methodology…………………………..…………………………….………4
2. Acknowledgement…………………………………………………………………….….5
3. Concept of Rights…………………………………………………………………………. 6
4. Introduction………………………………………………………………………………… 6
5. Wrongs……………………………………………………………………………….……… 6
6. Duties……………………………………………………………………………….…………. 7
7. Legal Right……………………………………………………………………………….…… 9
8. Definition of Rights based on Formal Element (Will Theory)…………. 9
9. Definition of Rights based on Material Element(Interest Theory) …10
10. Characteristics of Legal right………………………………………………………. 11
11. Hohfeldian Analysis of Legal Rights……………………………………………..12
12. Jural Relation……………………………………………………………………………. 12
13. Jural Correlatives……………………………………………………………………….. 13
14. Jural Opposites…………………………………………………………………………. 16
15. Jural Contradictory...................................................................... 17
16. Claim Duty Relationship………………………………………………………… 18
17. Liberty No-Claim Relationship………………………………………………… 19
18. Power-Liability Relationship……………………………………………………..20
19. Immunity and Disability…………………………………………………………...22
20. Classification of Rights……………………………………………………………..23
21. Perfect and Imperfect Rights…………………………………………………….23
22. Positive and Negative rights……………………………………………………..24
23. Real and Personal Rights…………………………………………………………….25
24. Proprietary and Personal Rights………………………………………………….26
25. Rights In re Propria And re Aliena……………………………………………….26
26. Principal and Accessory Rights…………………………………………………… 28
27. Primary and Secondary Rights……………………………………………………. 28
28. Legal and Equitable Rights…………………………………………………………. 28
29. Vested and Contingent Rights…………………………………………………….. 29
30. Public and Private Rights…………………………………………………………….. 31
31. Analysis of Fundamental Rights…………………………………………………….34
32. Conclusion……………………………………………………………………………………35
33. Bibliography…………………………………………………………………………………36
ACKNOWLEDGEMENT
The present project on the topic “RIGHTS & DUTIES : A Critical Legal analysis
has been able to gets its final shape with the support and help of the people from
various quarters. My Sincere thanks go to all the members without whom the study
could not have been made and would not have come to being presented.
First and foremost I would like to extend my sincere regards and thanks to Dr.
Manoranjan Kumar for the help, support and guidance he has provided me during
the course of making the project. Without his kind supervision and directions this
project would never have seen the light of the day.
Next, I would like to thank the library staff for being extremely supportive during
the entire endeavor and helping me direct to the books which have been referred to
during the making of the project. In the same context I would also thank the CNLU
authorities for providing us with such an informative library.
I would also like to mention my friends and classmates who helped me whenever I
needed their support. Among them I would like to specially mention to My Friends
who have been for me throughout.
Last but not the least; I would pay my regards to my parents and family who have
been the guiding factor for me all my life. It is them who have me made me what I
am today and during the making of this project have provided me with all the help
they could, monetary and otherwise.
YOURS SINCERELY
RAJEEV RANJAN
ROLL NO. 781
RESEARCH METHODOLOGY
The project work on ‘RIGHTS & DUTIES’ is based on doctrinal method of
research. I have considered various articles and write ups. Secondary sources have
been used i.e. books, articles, commentaries and internet.
The writing style is both descriptive and analytical. The project is a result of
extensive research work.
„RIGHTS & DUTIES’ The aim of the project is to present a detailed study of the
Legal Rights , Duties & Justice. and also its present and past status in our country.
The five point on which special emphasis has been given in this research are:
Sources of Data:
The following secondary sources of data have been used in the project-
1.Articles
2.Books
3.Websites
Method of Writing:
Mode Of Citation:-
This Researcher has followed a uniform mode of citation throughout this course of
this research paper .
CONCEPT OF RIGHTS
INTRODUCTION
But, today concept of right has become quite important. According to common
men, rights mean anything which is permitted. In ordinary parlance, right is
standard of permitted behavior in a certain sphere and anything against that would
be wrong. Example: Moral rights, rights according to religion. As far as legal
rights are concerned it is the standard of permitted behavior according to law. The
term „wrong and „duty‟ are closely connected to rights; so it is important to discuss
them before discussing legal rights.
WRONG
According to Salmond: „ A wrong is simply a wrong act an act contrary to the rules
of right and justice.
There are many legal wrongs which are morally also wrong. For example:
Food adulteration act, prevention of corruption act, foreign exchange act,
prevention of atrocities against Schedule caste and schedule tribes. It is true
adulteration of food is a statutory.
There are many legal wrongs which are legally wrong but not morally. In case of
strict liability, Master has adulterated the goods and servant is asked to sell it.
Servant is not aware about this adulteration. He is convicted and punished. It is
true, he has committed legal wrong but not the moral wrong. Morally, it speaks; a
person should not be punished without intention or knowledge.
DUTIES
1
(1964) 73 Mind 374
(I) Legal Duty:- It is an act recognized as a duty by law and treated as such
for the administration of justice. A legal duty is an act and the opposite of
which is a legal wrong.
(II) Moral Duty:- An act which ought to be done according to the dictates of
morality. It can also be defined as an act the opposite of which is a moral
or natural wrong.
Example:- If a person is in problem at the time of swimming then the
person stands nearby, has a moral duty to rescue him if he knows
swimming.
(III) Positive Duty:- When the law obliges us to do an act, the duty is called
positive duty.
(IV) Negative duty:- When the law obliges us to forbear from doing an act,
the duty is negative.
LEGAL RIGHTS
Legal rights are those rights which are recognized and protected by law.
Rights are concerned with interest. Interests are something to the advantage of a
person. Interest has been defined as interests protected by rules of rules of right,
which is by moral and legal rule. Yet rights and interest are not identical.
For Example:- A man has an interest in his freedom or his reputation. His rights
to these, if he has such rights, protect the interest, which accordingly form the
subject of his rights but are different from them. To say he has an interest in his
2
reputation means that it is to his advantage to enjoy a good name, to say he has a
right to this imply that others ought to take from him3.
RIGHT:- One cannot impose his right without the assent of the state.
MIGHT:- One can impose his/her right without the assent of the state.
(i) the „material element‟ of interest like reputation, property, money, etc. and
(ii) the „formal elements‟ like capacity, power to realize the interest, etc. The
definitions of right given by different jurists are mostly based on either one or the
other elements of right.
Holland: Holland defines legal right as the “capacity residing in one man of
controlling, with the assent and assistance of the state the action of others.” He
2
3
(1954) 70 L.Q.R. 37
followed the definition given by Austin. The only thing is in place of „faculty‟ he
used the term „capacity‟. This definition involves the following results.
Gray: Gray defines a legal right as “that power which a man has to make a person
or persons do or refrain from doing a certain act or certain acts, so far as the power
arises from society imposing a legal duty upon a person or persons”. He points out
that “the right is not the interest itself; it is the means by which the enjoyment of
the interest is secured. If it is my interest to receive a watch from X and if by the
law X is bound to give it to me, I have a legally protected interest and I have a
legal right. The legal right, however, is not the giving of the watch. It consists in
my power to get the watch from „X‟.
The above definitions of Austin, Holland, Gray etc. stressed the „formal element‟
like capacity, interest etc. Another group of writers defines right in terms of
„material element‟. Ihering and Salmond belong to this class of writers.
44
Karl Marx, Critique of the Gotha Program, ed. C.P. Dutt (New York, 1966) p. 10
Reconciliation between the will and Interest theory :
Allen tries to bring about such reconciliation. According to him, the essence of a
legal right seems to be legally guaranteed power by itself nor legally protected
interest by itself, but the legally guaranteed power to realize an interest. Thus, we
can conclude, right is the exercise of will power directed towards the enforcement
of interest or protection and recognition of interest.
4
John Rawls, A theory of Justice (Cambridge, Mass. 1971) p 60.
Illustration:-
If „X‟ sells a piece of land to Y by sale deed than Y becomes the owner of the
property. Y has all the rights over that property. Y is the person of inheritance.
Thus, Y is the subject of the right. Now, X and all other persons have a duty not to
interfere with the possession or ownership or any other rights of „Y‟. Thus, the
object of right or subject of duty is in rem. „X‟ is obliged to give possession and
ownership of the property to „Y‟ after the sale and „X‟ is obliged not to interfere
with Y‟s possession. Thus, possession, ownership, non-interference are the
contents of the right. Piece of land is the subject-matter of the rights. Every right is
created by certain acts or omission. In this case, it is done by deed of conveyance,
so, it is the title of the right.
5
H.L.A. Hart, The concept of Law, (Oxford, 1961) pp 153-155
5
Supra 12.
5
Alf Ross, On law and justice, (Berkely, 1959),p 280
Legal Right in stricto senso means that there is a corresponding duty and are
defined as interests which the law protects by imposing corresponding duties on
others.
Legal rights in wider sense not necessarily include the corresponding duty. The
„right‟ in wider sense has been identified with powers, privilege and immunities.
Salmond says, In generic sense, a legal right may be defined as any advantage or
benefit conferred upon a person by a rule of law.
DUTY
According to Salmond:‟‟A duty is a obligatory act, that is to say ,It is an act
opposite of which would be a wrong. Duties and wrongs are correlatives. The
Commission of a wrong is the breach of the Duty and the performance of a duty is
the avoidance of wrong.‟‟
Duties are of two kinds:-
(1) Legal &
(2) Moral
6
Duties may be Positive or Negative. When the
law obliges us to do an act, the duty is called Positive. When the law obliges us to
forbear from doing an act, the duty is negative. If R has a right to a land, there is a
corresponding duty on a person generally not to interfere with exclusive use of the
land. Such a duty is a negative duty. It is extinguished only if the right itself is
extinguished. If S owes a sum of money to Y, the latter is under a duty to pay the
amount to due. This is a positive duty. In the case of Positive duties, the
performance of the duty extinguishes both duty & right but a negative duty can
never be extinguished by fulfillment.
Duties can also be primary & secondary. Primary duties are those which exits per
se and independently of any other duty. An example of a Primary duty is to forbear
from causing Personal Injury to another. A Secondary duty is that which has no
independent existence but exists only for the enforcement of other duties. An
example of a secondary duty is the duty to pay a man damages for the injury
already done to his person. It is also called a remedial, restitutory or sanctioning
duty.
According to Hibbert, Duties are imposed on persons and require acts and
forbearances which are their object. Hibbert refers to absolute and relative duties.
Absolute duties are owed only to the state. The breach of an absolute duty is
generally a crime and remedy is the punishment of the offender and not the
payment of any compensation to the injured party. Relative duties are owed to a
person other than the one imposing them. The breach of a relative duty is called a
civil injury and its remedy is compensation or restitution to the injured party .
According to Austin, some duties are absolute. Those duties do not have a
corresponding right. Examples of absolute duties are self-regarding duties such as
a duty not to commit suicide or become intoxicated, a duty to intermediate persons
or the Public such as a duty not to commit a nuisance, a duty to one not a human
being such as a duty towards God or animals and a duty to sovereign or state.
If we examine these four classes of duties critically, they are reduced to one
category and that is the duties to the state. A duty not to commit suicide or
nuisance is enforced by the state and can be included in the categories of duties to
the state. The result is that the corresponding right vests in the state. However the
view of Austin is that „‟A sovereign government in its collegiate or sovereign
capacity has no legal rights against its own subjects “and there for the duties
towards the state are absolute duties.
7
Hohfeld‟s scheme of jural relations
RELATION BETWEEN RIGHTS & DUTIES:-
8
(1980) 3 scc 625
In Minerva Mills Ltd. V. Union of India, the Supreme Court observed: There may
be a rule which imposes an obligation on an individual or authority, and yet it may
not be enforceable in a court of law, and therefore not give rise to a corresponding
enforceable right in another person. But, it would still be a legal rule because it
prescribes a norm of conduct to be followed by such individual or such authority.
The law may provide a mechanism for enforcement of this obligation, but the
existence of obligation does not depend upon the creation of such mechanism. The
obligation exists prior to and independent of, the mechanism of enforcement. A
rule imposing an obligation would not there for cease to be a rule of law because
there is no regular Judicial or Quasi-Judicial machinery to enforce its command.
Such a rule would exist despite any problem relating to its enforcement.”
The other school is represented by Austin. According to him, Duties are of two
kinds :- (1) Absolute Duties &
Relative duties.
Relative duty corresponds to a right. It is a duty to be fulfilled towards a
determinate superior. All absolute duties are enforced criminally. They don‟t
correspond with rights in the sovereign. There is an absolute duty in certain cases.
Those are duties not regarding persons e.g. Those owed to god and lower animals,
duties owed to persons indefinitely e.g. towards the community, self-regarding
duties and duties owed to the sovereign. In case of an absolute duty, it is
commanded that an act shall be done or forbidden towards or in respect of the
party to whom the command is directed.
Duties towards the public at large or towards intermediate portions of the public
have no co-relative rights. The duty to refrain from committing a public nuisance
has no co-relative rights. Where trustees held property on trust for religious
purposes, even though there is no ascertained beneficiary, the trustees are under a
duty not to use the property for a purpose pother then religious purpose. The
question is to whom the duty is due.
JURAL RELATIONS
Legal right in a strict sense constitutes the correlatives of legal duties. From a
wider sense the term legal rights include concept of (strict sense), liberty, power
and immunity. Hohfeld arranged the four incidents in tables of „correlatives‟ and
„opposites‟ to display the logical structure of his system. Further it was Professor
G.L. Williams, who presented the four incidents in two tables with the help of
which, another jurist were able to find out other relations- Jural Contradictions.
JURAL CORRELATIVES
Jural correlatives signify something which is mutual, complementary reciprocal or
corresponding.
Jural correlatives signify two things that occur together.
The jural correlatives are showed by vertical arrows. There are types of rights and
co relatives:
(i) Claim and Duty.
(ii) Liberty and No-claim.
99
Edgar Bodenheimer, Jurisprudence The Philosophy and Method of Law, 2004, pg. 196
9
Plato, The Republic, transl. A.D. Lindsay (Everman‟s Library ed., 1950).
9
Aristotle, The politics, Transl. E. Baker (Oxford 1946)
(iii) Power and Liberty.
(iv) Immunity and Disability.
(I) (Right) Claim and Duty relationship (You ought):-
CLAIM
DUTY
If X has a claim against Y and Y has a duty towards X than X will use the term-
You ought/ you shall/ you must.
Example- A contract between employer (X) and employee (Y) confers on the
employee (X) a right to be paid his wages. This right is a claim. The employee has
a claim. The employee has a claim that the employer pays him his wages and the
employer is under the strict duty to pay him the wages.
If under article 14 of the constitution, state is under the duty to maintain equality, it
means citizens have a claim not to be discriminated.
LIBERTY
NO-CLAIM
Example:- Y is running a bookstore for many years and later X opens another
bookstore across the strict then definitely due to the cut throat competition the
profits of Y may drop. Y cannot prevent X from continuing his business because Y
has no-claim to prevent X doing business, which is X‟s liberty (right).
Freedom of speech and expression. „X‟ has freedom of speech and expression. „X‟
may/mayn‟t speak.
POWER
LIABLITY
Power denotes ability in a person to alter the existing legal condition of the other
person for the better or worse. When the legal status is altered by volition act, it is
power. When legal condition is altered by non-volition act, it is subjection. Power
is ability on the part of a person to produce a change in a given relation by doing or
10
not doing a given act. The correlative of a power is liability. These Hohfeldian
incidents define what Hart called “Secondary rules”. The Hohfeldian power is the
incident that explains how agents can alter primary rules.
If X has a power to alter the legal condition of „Y‟ than „X‟ will expressed it as- „ I
Can‟.
10
Mahajan, V.D., Jurisprudence and Legal theory, EBC. 256
Power is also of two types:-
Private Power- Private Power is those which are vested in a person and are to be
exercised by him for his own purpose. Private power is called capacity.
Public Power- Pubic power which are vested in a person as an agent of the state.
Public power is also called authority.
IMMUNITY
DISABILITY
Immunity connotes exemption from the legal power of some other person. It is an
exemption enjoyed from having a given relation changed by another.
For Example:- If „X‟ is immuned w.r.t to Y than „X‟ will say- You cannot.
Under the constitution, The President of India can‟t be sued for certain civil or
criminal wrongs. This is immunity from prosecution. It means prosecuting
authorities are disable to prosecute the President.11
11
Pound r jurisprudenece west publishing co.1959
JURAL OPPOSITES
DUTY(Y) NO-CLAIM(X)
12
LIABLITY(Y) DISABILITY(X)
(Jural opposites are presented by diagonal arrows and read both ways.)
Jural opposites are:-
(i.) Claim and no-claim.
(ii.) Liberty and duty, Cannot exist in the
same person.
12
Ashok H. Desai and S. Muralidhar, Public Interest Litigation: Potential and Problems‟ in B.N. Kirpal et. al. (eds.), Supreme but
not Infallible – Essays in Honour of the Supreme Court of India (OUP, 2000) at p. 159-192; Also see K.G. Balakrishnan,
„Growth of Public Interest Litigation in India‟, Fifteenth Annual Lecture, Singapore Academy of Law (October 8, 2008), Text
available from <www.sal.org>
(iii.) Power and disability.
(iv.) Immunity and liability.
(i.) Claim and no-claim:
Presence of claim in X means absence of No-claim in X.
(ii.) Liberty and duty:
Presence of liberty in Y means absence of duty in Y.
(iii.) Power and disability:
Presence of power in X means absence of disability in X.
(iv.) Immunity and disability:
Presence of immunity in Y means absence of liability in Y.
JURAL CONTRADICTORY
It was Professor G.L. William who presented the four terms in two tables with the
help of which another jurist were able to find out another relation- „Jural
Contradictory‟.
DUTY(Y) NO-CLAIM(X)
LIABLITY(Y) DISABILITY(X)
Jural contradictions are presented by horizontal arrows and read both ways.
(i.) Claim and Liberty.
(ii.) Duty and No-claim.
(iii.) Power and Immunity.
(iv.) Liability and Disability.
(i) Claim and Liberty
Presence of claim in X means Presence of duty in Y.
Presence of claim duty in Y means absence of liberty in Y.
Presence of duty in Y means absence of liberty in Y.13
The breach of an absolute duty is generally a crime. Austin argues such duty does
not have a corresponding claim. It is true, state seems to have the claim but it is not
true. State is the enforcing agency of such duty. If police officer arrest any person
who has committed murder. What is the claim of police officer in such
circumstances? Answer is nothing. They arrest because they have been given the
authority to arrest such offenders. In such absolute duty, there is no corresponding
claim. Interestingly we find that, such absolute duties are discharged without
having any corresponding claim. In public laws- irrespective of the claim, all
persons are under a duty for an act or forbearance.
Austin agrees that relative duties have corresponding right. Relative duties
are owned to a person other than the one imposing them. The breach of a relative
duty is called civil injury.
For example:- In case of debt, the debtor owes a duty towards the creditor has the
right to take back the money from the debtor. In private laws, the person who is
going to be benefited brings an action. In case of debt, if creditor brings an action
after the limitation period than creditor has no legal claim. After limitation period,
claim lies only in equity. The person may bring the action or may not. So on the
content of „bringing action‟ he has the liberty. On the content of „money or debt he
has the claim.
But, According to Salmond there can be no right without a
corresponding duty, or duty without a corresponding right, any more than there can
be a husband without a wife and a father without a child. According to this view,
every duty must be a duty towards some person or persons, in whom, therefore a
correlative right is vested. And conversely every right must be a right against some
persons, upon whom, therefore, a correlative duty is imposed.
Salmond says, “just as my legal rights (in the strict sense) are benefits
which I derive from legal duties imposed upon other persons, so my liberties (also
called licenses or privilege) are the benefits which I derive from the absence of
legal duties imposed upon myself.
According to this correlative – If X has a freedom to certain thing w.r.t. Y, it will
be expressed by X as- I may/ may not.14
14
Ross A. Directives & Norms 1968
On law & justice stevens&sons 1959
(III) POWER AND LIBERTY (I CAN):
Power is quite important terns in the second table as duty is in the first table. Power
can give rise to claim, liberty, duty and immunity. For example: Right to make a
will is the power of a person. It is power because it can alter the legal condition of
persons specified in the will.
This power can be dissected into liberty to make a will. That person may make a
will or may not. That person has a claim also against other people not to be
prevented from making the will. He has immunities against being deprived of will
making capacity. Here we find, power to make a will gives rise to claim, liberty
and immunity but content is different.
Sometimes, a power may be coupled with a liberty to exercise it and a liberty not
to exercise it. Example: Power to make will, power of the President to pardon the
accused. This is a rightful exercise of power.
Example: Power of judges to give justice, power of the police officer to arrest.
This is also a rightful exercise of the power.
Thus, this power and liability is one of the important correlatives which give
rise to different terms of Hofeldian table.
15
Elements of lw oxford 1905 markby
Power exercised give rise to new power:
Example: Power to appoint an agent. When agent is appointed, he also gets certain
new powers.
Example: Power of the President to call majority to make the government. This
gives power to the government.
Example: If X is a thief steals any movable object. He is under a duty not to sell it
but he has a power to sell a bonafide purchaser (caveat emptor). Because, it is the
duty of the purchaser to see who is the real owner of that property. 16
Immunity is defined as a freedom on the part of one person against having a given
legal relation altered by a given act or omission on the part of another person. In
simple words, immunity is freedom from power of any other person. Disability
signifies the inability of a person to alter the legal condition of another person
(who is immune). Disability simply means- absence of power, i.e. no-power.
16
Markby,W Element of law, Oxford 1905
Olivecorna,K.Law as Fact ,1962
Example: A diplomatic envoys are immune from the power of action or other
legal process. Persons involved in legal process are disable to do so w.r.t. such
diplomatic envoys.
Example: Once, Bal Thackerey was stopped from casting his vote for the 6 years
due to speech. He was stopped from enjoying such right by the President.
For example:- If ambassadors, drive and met with an accident. Police officers
come and arrest him. Though, he is immuned from being arrested but can‟t claim
against the officer. He can‟t sue the police officers. Here, Police officer are disable
but under no duty to pay compensation.17
For example: If X is immuned from taxation, the revenue inspector automatic has
no power to place him under a duty to pay. A demand for payment is ineffectual
but X has no remedy against them for having made the demand because X has no
such claim.
17
Ross a. Directive and norms 1968
Pound R. Jurisprudence West Publishing Co. 1959
CLASSIFICATION/ KINDS OF LEGAL RIGHT
Legal rights have been classified by various jurists in different ways. Rights may
generally be classified under the following heads :-
(3) A positive right entitles the owner of it to an alteration of the present position
to his advantage whereas a negative right seeks to maintain the present position of
things.
(4) A positive right aims at some positive benefit but a negative right aims at not
to be harmed.
(5) A positive right requires an active involvement of others but a negative right
requires only passive acquiescence of other persons.
(6) A positive right receives something more than what one already has whereas a
negative right seeks to retain what one already has.
(7) A positive right has a mediate and indirect relation to the object while a
negative right is immediately related to the object.
(8) Right to the money in one's debtor's pocket is an illustration of a positive right
while the money in one's own pocket is an example of a negative right.
These are also called rights in rem and rights in personam. The distinction between
real and personal rights is closely connected but not identical with that between
negative and positive duties. It is based on the difference in the incidence of co-
relative duties. A real right (right in rem) corresponds to a duty imposed upon
persons in general whereas a personal right (right in personam) corresponds to a
duty imposed upon determinate individuals. In other word s, a real right is
available against the world at large while a personal right is available a against a
particular person or persons. The distinction between real and personal right is well
illustrated by an example. My right to the peaceable occupation and use of my land
is a right in rem because all the world is under a duty towards me not to interfere
with it. But if I grant a lease of the land to a tenant, my right to receive rent from
him is a right in personam19, for it is available exclusively against the tenant and
none else.
It is significant to note that almost all real rights are negative and most of the
personal rights are positive though in a few exceptional cases a personal right may
also be negative. For instance, if I have purchased the goodwill of a business from
a trader, he is restrained from competing with me although all other traders can
compete with me. My right of exemption from competition from that particular
trade whose goodwill I have purchased under an agreement is my personal right
which is negative in nature.
These terms are derived from Roman law and called jus in rem and jus in personam. The former means right against or in respect of a thing
whereas the latter means right against or in respect of a person.
(1) Proprietary rights relate to estate of a person which includes all his assets and
property in any form. The personal rights, on the other hand, pertain to the status20
of a person.
(2) Proprietary rights are elements of a person's wealth whereas personal rights are
elements of his well-being.
(3) Proprietary rights are alienable while the personal rights are not alienable. The
former are inheritable whereas the latter are not heritable.
(4) Proprietary rights are more static as compared with the personal rights.
Literally speaking, right in re propria means right over one's own property and
right in re aliena means right over the property of someone else. The latter may
also be called as encumbrances using1he term in its widest sense.
The most absolute power which the law gives over a thing is called the right of
dominium. This is a real right in a thing which is one's own, and is called right in
re propria. But a man may have rights in property less than full ownership, the
dominium being, in fact, vested in another. Such rights are called rights in aliena.
According to Salmond, "a right in re aliena is one which limits or derogates from
some more general right belonging to some other person in respect of same
subject-matter. All oth~r rights which are not thus limited are juria in re prorpiya
For instance, if a person mortgaged_his house, he has created an encumberance by
dividing his proprietary right in the house. The mortgager is temporarily the owner
of the house. The mortgagor has the right to redeem the mortgager. This right
20
'Status' may be defined as an aggregate of rights and duties which law attaches to a person, as one of a class, which are incapable of
being changed at the desire of persons affected by them.
which is now completely detached and separated from the mortgagor's complete
ownership is the right in re aliena because mortgagor's complete ownership is
encumbered due to mortgage.
Salmond refers to four kinds of encumbrances, namely : (i) lease, (ii) servitude,
(iii) security and (iv) trust :-
1. A lease is an encumbrance of property vested in one person by a right to the
possession and use of it vested in another person.
21
Hearn the theory of legal duties & rights 1883
6. PRINCIPAL AND ACCESSORY RIGHT;
The existence of principal rights is independent of any other rights but accessory
rights are ancillary to principal rights and have a beneficial effect on the principal
right. For example, if a debt is secured by a mortgage, the recovery of debt is the
principal right while security is the accessory right. Likewise, if an owner of a
piece of land has a right of way on the adjoining land, the ownership of the land is
his principal right and right of way in the adjoining land is accessory right. The
rent and covenants of a lease are accessory to the landlord's ownership of the
property. 22
22
Jurisprudence & legal essay pp 37-38
8. LEGAL AND EQUITABLE RIGHT;
The distinction between legal and equitable right originates form
the distinction between law and equity. Prior to the passing of
Judicature Act, 1873, there were two distinct co-ordinate systems of
law in England which were called the Common Law and the Equity Law. At
that time, legal rights were recognised by the Common Law Courts whereas the
equitable rights were recognised by the Court of Chancery which was a Court of
Equity. This distinction was, however, abolished by the fusion of the two courts by
the Judicature Act, 1873 but the existence of Common Law and equity as two
distinct branches of law still persists in England. The methods of their creation and
disposition are, however, different. For example, a legal mortgage must be created
by a deed but an equitable mortgage may be created by a mere written agreement
or by the deposit of title deeds.
The general principle regarding equitable rights is that when there are two
inconsistent equitable rights claimed by different persons over the same thing, the
first in time shall prevail. But where there is a conflict between a legal right and an
equitable right, the legal right shall take precedence over equitable right even if it
is subsequent to the equitable right in origin,. but the owner of the legal right must
have acquired it for value and without notice of the prior equity. This principle
finds expression in the maxim, 'where there are equal equities, the law shall
prevail.'
The Indian law, however, does not recognise the distinction between law and
equity since there is neither separate equity law nor separate equity courts in India.
But the principles of equity have found expression in various statutory enactments
in India. In other words, where there is no specific law or usage on a subject, the
case shall be decided by applying the principle of 'justice, equity and good
conscience' which implies application of English law, so far as it is applicable to
Indian conditions and circumstances.
The Privy Council, in Chatra Kumari Devi v/s Mohan Bikram23. observed that the
Indian law does not recognise legal and equitable estates. Therefore, there can be
only one owner and where the property is vested in a trustee, the owner must be
trustee.
9. VESTED AND CONTINGENT:
A vested right accrues when all the facts have occurred which must by law occur
in order that a person in question would have the right. In case of contingent right,
only some of the events necessary to vest the right in the contingent owner have
happened.
A vested right creates an immediate interest. It is transferable and heritable. A
contingent right does not create an immediate interest and it can be defeated when
the required facts have not occurred.
Paton has commented that when all the investitive facts which ,are necessary to
create the right have occurred, the right is vested; when part of the investitive facts
have occurred, the right is contingent until the happening of all the facts on which
the title depends24.
The distinction between vested and contingent rights may be illustrated thus- If a
transfer of certain property is acquired by a valid deed of transfer, the transferee
acquires vested right in the property. However, if a property is transferred to a
person upon a condition that he shall be entitled to possession thereof when he
attains the age of 21, the right so acquired is a contingent right. This contingent
right shall be converted into vested right as soon as the transferee attains the age of
23
(1931) 581.A. 279; see also Tagore v. Tagore, (1872) I.A. Suppl. Vol. 57
24
Paton G.W.: JUrisprudence, (3rd ed., 1964),269-270
21. A right to share of an unborn child in a partition suit is a contingent right which
shall covert into a vested right on his being born alive.
10. PUBLIC AND PRIVATE RIGHT:
A right vested in the State is called a public right. The State enforces such right as
a representative of the subjects in public interest. A public right is possessed by
every member of the public. A private right, on the other hand, is concerned with
only private individuals, that is, both the parties connected with it are private
persons.
As a corollary of public and private rights, there are public and private wrongs.
The former are a breach and violation of public rights and duties which affect the
community as a whole, namely, the State. They are called 'crimes'. The private
wrongs are an infringement of private of civil rights belonging to individuals. They
are called civil injuries or torts.
Salmond, however, pointed out that all public wrongs are not crime e.g., the
breach of a public trust is a public wrong but it is redressible like a civil injury or a
private wrong. 25
25
Criticism of the duty & rights of ownership
Markby‟s views
Legal & equitable
Analysis of Fundamental rights
Article 14: The state shall not deny to any person equality before law or the equal
protection of laws within the territory of India.
Reasonable classification: Though state is imposed with negative duty not to deny
to any person equality before law or the equal protection of laws but certain times,
the state can deny on the basis of reasonable classification. Certain times, state is
conferred with this power.
Article 15 (3): Nothing in this article shall prevent the state from making any
special provision for women and children.
But when this power coupled with liberty is used by the state it gives a rise
to claim –duty relationship. If special provisions enacted, women and
children have claim on that special laws.
CLAIM (X) (WOMEN) (+) LIBERTY(STATE) (-)
Power denotes ability in a person to alter the legal condition of the other person for
the better or worse. When legal status is altered by volition act, it is power. When
legal status is altered by non-volition act, it is subjection. Example: Making a will
(volition act), earthquake (non-volition act). It also alters the legal condition of a
person by destroying the property.
26
CONCLUSION
In generic sense, a legal right may be defined as any advantage or benefit conferred
upon a person by a rule of law. Legal rights & Duties are those rights & duties
which are recognized and protected by law. Legal Right in stricto senso or Claim
means that there is a corresponding duty and are defined as interests which the law
protects by imposing corresponding duties on others. Legal rights in wider sense
not necessarily have the corresponding duty. The „right‟ in wider sense has been
identified with powers, privilege and immunities. Right in wider sense includes
four different concepts i.e. Claim, Liberty, Power and Immunity. Out of these four
concepts, only claim is rights strict senso whereas others do not qualify to be right
in strict sense.
The study of concept of right is very essential part of the study of Jurisprudence as
it helps the law students, lawyers and even judges in understanding the true nature
of the various rights provided by the legal system. Various rights can have
different nature. Some rights can be claims and thus corresponding duties will be
imposed on some other persons whereas certain rights can be in the nature of
liberty which will be the advantages which accrues to someone due to lack of duty
on himself. There are certain rights in the nature of power also, which provide the
ability to the person to change the legal condition of others whereas certain rights
26 26
Raghunathrao, Ganpatrao v. Union of India AIR 1993 SC 1267 as quoted in Dr. Subhash C. Kashyap, Constitutional Law of
India, Vol.1, New Delhi, Universal Law Publishing Co. Pvt. Ltd., 2008, p. 311
26
Article 124[Appointment of Judges of the Supreme Court] and Article 217[Appointment of judges of the High Courts] of the
Constitution of India.
26
Dalmia Cement Bharat Ltd. v. UOI, (1996) 10 SCC 104 as quoted in Dr. Subhash C. Kashyap, Constitutional Law
of India, Vol.1, New Delhi, Universal Law Publishing Co. Pvt. Ltd., 2008, P.308.
are in the nature of immunity which takes the power of other to change one‟s legal
condition. Understanding this distinction between four different terms used for the
rights in wider senses and their distinction from claims, i.e. rights strict senso, will
help us to appreciate the importance and impact of the rights conferred by the legal
system. Placing a right on Hohfeld‟s table will clear all the doubts about that right.
We have already discussed the examples of several fundamental rights and their
respective position in Hohfeld‟s table.
Also, the study of right is incomplete without the discussion of wrong and duty and
thus in th beginning itself, we have discussed these two concepts and
understanding of the same is very essential for the appreciation of the concept of
right. One should also note the different kinds of rights and the essential
differences between them and not use them interchangeably and thus we have
discussed the same in length.
I will like to conclude by saying that the study of Jurisprudence or for that matter
the study of law is incomplete without the study of the concept of right.
BIBLIOGRAPHY
Books Referred:
1. Lecture in Jurisprudence, N.K.jayakumar, Lesix-Nesix, students review, and
second edition.