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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 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.

“I EXPRESS MY GRATITUDE TO THE FACULTY,


„JURISPRUDENCE‟ FOR THE CONCEPTS GIVEN BY HIM IN THE
SUBJECT WHICH HAS BEEN THE BASE FOR THIS SMALL PIECE
OF WORK.”

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.

Aims and Objectives:

„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.

Scope and Limitations:

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:

The Method of writing followed in the course of research paper is primarily


analytical.

Mode Of Citation:-

This Researcher has followed a uniform mode of citation throughout this course of
this research paper .
CONCEPT OF RIGHTS

INTRODUCTION

Law is a set of rules to regulate human conduct. Human conduct is regulated by


conferring rights and imposing duties. This regulation takes place by enforcing
legal machinery. As far as concept of rights is concerned, it evolved in classical
era. Ancient Indian society was duty based society. Duty based towards God, duty
towards parents.

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 Pollock, “Wrong is in morals the contrary of rights”.

According to Salmond: „ A wrong is simply a wrong act an act contrary to the rules
of right and justice.

Wrongs is of two types-

(a.) Moral wrong

(b.) Legal wrong.

 Moral Wrong:- Right action is that which moral rules prescribe or


commend, wrong action is that which they forbid. Any act which is contrary
to morality or natural justice is moral wrong.
 Legal wrong:- Any act which is contrary to law is the legal wrong. There is
a legal wrong done whenever a legal duty is broken. Sphere of legal wrong
changes with change in time.
 Legal wrong which is a moral wrong also:

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.

 Legal wrongs which is not a moral wrong

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

According to Salmond, “A duty is an obligatory act”. This is to say, it is an act


opposite of which would be a wrong. The duties and the wrongs are not strictly
identical. Duties and wrongs are correlatives. The commission of wrong is the
breach of duty and performance of a duty is the avoidance of wrong.
Yet not all the acts which a man ought to do constitutes duties 1. When the law
recognizes an act as a duty, it commonly enforces the performance of it, or
punishes the disregard of it, or punishes the disregard of it. But this sanction of
legal force is in exceptional cases absent. A duty is legal because it is legally
recognized, not necessarily because is legally enforced or sanctioned. There are
legal duties of imperfect obligation, as they are called, which will be considered by
us at a later stage of inquiry.
 Duty in the Strict sense: An act which one ought to be done in respect of the other
person and correspondingly other person has a right against former one.
 Duty can be divided into four classes:-
(i) Legal and moral duty.
(ii) Positive and negative duty.
(iii) Primary and secondary duty
(iv) Absolute and relative duty.

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.

Every right has two elements i.e.

(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.

 Definitions of Right Basing on Formal Elements (Will Theory):

Austin: According to Austin, right is “faculty which resides in a determinate party


or parties by virtue of a given law and which avails against a party or parties (or
answer to a duty lying on party or parties) other than the party or parties in whom it
resides.” According to him, a person can be said to have a right only when another
or others are bound or obliged by law to do something or forbear in regard to him.
It means that a right has always a corresponding duty. This definition is not quite
satisfactory as every right implies a corresponding duty, but every duty does not
imply a corresponding 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‟.

 Definition of Right basing on Material Element (Interest Theory):

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.

Ihering: Ihering defines rights as „legally protected interests‟. The protection of


human interests is the chief purpose of social organization. The law, however, does
not protect all such interest. The interests of men conflict with one another and
law, being the rule of justice, appraises such interests and selects only some for
protection. He regards as legal rights such of these interests as have obtained legal
protection.

Salmond: He says “A right is an interest recognized and protected by rules of


right, that is by legal rules. It is an interest respect for which is a duty, and
disregard of which is a wrong.”4

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.

CHARACTERISTICS (OR ELEMENTS OR INGREDIENTS)


OF LEGAL RIGHTS

According to John Salmond, Legal rights involve five essential elements:-


(1) Subject: Right is vested in a person who may be the owner of the right,
the subject of it, the person entitled, or the person of inheritance.
(2) Object: A legal right operates against some person who is under a duty
or obligation to obey or respect that right. He may be distinguished as
the person bound, or as the subject of the duty, or as the person of
incidence.
(3) Content: There is some content or substance of a legal right i.e. the act
or forbearance by which the person in obligation is bound.
(4) Acts: There is the act or omission relates to something, which may be
termed as the object or subject matter of the right.
(5) Title: Every legal right has a title, that is to say, certain facts or events
by reason of which the right has become vested in its owner.

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.

Hohfeldian Analysis of Legal Rights


Historical Background:
The concept of legal right has undergone change in last century. Thomas Hobbes
discussed two terms right in strict sense and liberty. After several jurist, Bentham,
Austin and Salmond further explained various terms for the word „right‟ i.e. right
in strict sense, liberty and power. In 1913, Professor Hohfeld, an American jurist,
rearranged and completed Salmond‟s scheme by adding a fourth term immunity
and worked out a table of jural relations. According to modern jurist, term right is
like a homo name which includes within its sweep.5

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

A Legal Duty is an act the opposite of which is a legal wrong. It is an act


recognized as a duty by law and treated as such for the administration of justice. A
moral or natural duty is an act the opposite of which is a moral or natural wrong. A
duty may be moral but not legal, or legal but not moral, or both at once. In the case
of England, there is a legal duty not to sell or have for sale adulterated milk
knowingly. There is no Legal Duty in England to refrain from offensive curiosity
about one‟s neighbors even if it‟s satisfaction does them harm. There is a moral
duty but not a legal duty. There is both legal & moral duty not to steal.6

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 Salmond, If a law recognizes an act as a duty, It generally enforces


its performance and punishes these who disregard the same.

According to keeton, a duty is an act or forbearance compelled by the state in


respect of a right vested in another and the breach of which is wrong.

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.

The views of Austin is criticized by Gray,Pollock & Salmond. According to


salmond :there can be no duty without a right any more than there can be a
husband without a wife or parent without a child.” The result is that rights and
duties are always correlated and there is absolutely no scope for absolute duties.
The views of Pollack is that „‟ there seems to be no valid reason against ascribing
rights to the state in all cases where its officers are enjoined or authorized to take
steps for causing the law to be observd and breakers of the law to be punished”.7

7
Hohfeld‟s scheme of jural relations
RELATION BETWEEN RIGHTS & DUTIES:-

It is debatable question whether rights & Duties are necessarily correlative.


According to one view, every right has a corresponding duly. Therefor, there can
be no duty unless there is someone to whom it is due. There can be no right
without a corresponding right, just as there cannot be a husband without a wife, or
a father without child . Every Duty is a duty towards some person or persons in
whom a corresponding right is vested. Likewise, every right is a right against some
person or persons upon who a correlative duty is imposed. Every right or duty
involves a vinculum juris or a bond of legal obligation by which two or more
persons are bound together. There can be no duty unless there is someone to whom
it is due. Likewise, there can be no right unless there is someone from whom it is
claimed.
According to Holland, Every Right implies the active or passive forbearance by
others of the wishes of the party having the right. The forbearance on the parts of
others is called a duty. A moral duty is that which is demanded by the public
opinion of society and legal duty is that which is enforced by the power of the state
.
According to keeton:, A duty is an act of forbearance which is enforced by the
state in respect of a right vested in another and the breach of which is wrong. Every
right implies a co-relative and vice versa.
The views of salmond is that rights and duties are co-relative . If there are duties
towards the public, there are rights as well. There can be no duty unless there is
some person to whom that duty is due. Every right or duty involves a bond of
obligation.8

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.

CLAIM LIBERTY POWER IMMUNITY

DUTY NO-CLAIM LIABLITY DISABILITY9

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.

(ii) Liberty and No-Right/No- claim (I May)-

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.

(iii) Power and liability (I Can):-

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‟.

Example: Police power to arrest. If X, a policeman has power to arrest and Y


commits an offence. „X‟ can arrest „Y‟ and „Y‟ is under the liability to be arrested.

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.

Example: Power to make a will or power to make a gift.

Public Power- Pubic power which are vested in a person as an agent of the state.
Public power is also called authority.

Example: Police Power to arrest, judicial authority to remind power of legislature


to make laws.

(iv.) Immunity and Disability (You Cannot):-

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

Jural opposite signify that which is diametrically different in character and


tendency. In other words, no pair of opposite can co-exist in the same person.

CLAIM (X) LIBERTY(Y)

DUTY(Y) NO-CLAIM(X)

POWER (X) IMMUNITY(Y)

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‟.

CLAIM (X) LIBERTY(Y)

DUTY(Y) NO-CLAIM(X)

POWER (X) IMMUNITY(Y)

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

(ii) Duty and No-claim


Presence of duty in Y means absence of liberty in Y.
Absence of liberty in Y means absence of No-claim in X.
Presence of duty in Y means absence of No-claim in X.

(iii) Power and Immunity


Presence of power in X means presence of liability in Y.
Presence of liability in Y means absence of immunity in Y.
Presence of power in X means absence of immunity in Y.

(iv) Liability and disability


Presence of liability in Y means absence of immunity in Y.
Absence of immunity in Y means absence of disability in X.
Presence of liability in Y means absence of disability in X.
13
Gray J.C The nature and sources of the law Macmillan Co. New York 1921
(I) CLAIM-DUTY RELATION (You Shall)-
Hohfeld suggested the term „claim‟ for the „rights‟ in strict sense. Claim signifies
same as „rights in strict sense signifies‟. Right in strict sense simply means having
a corresponding duty. Thus, A claim also means that same person ought to behave
in a certain way due to claim lies in a duty. Duty is the prescriptive pattern of
behavior. Duty is the prescriptive pattern of behavior. Thus, where there is a claim
there is a duty.
Does the converse always true? Does it always true where there is a duty,
there is a claim? It is a debatable question whether rights and duties are necessarily
correlative. According to Austin rights and duties are not correlative. He
distinguished duties into two categories- Absolute and Relative. Absolute duties
are owned only to the state.
For example: Duty not to commit suicide, duty not to commit murder.

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.

(II) LIBERTY AND NO-RIGHT/NO- CLAIM (I MAY) –

Hohfeld distinguished the freedom which a person has to do or not to do something


from claim (right) and called it privilege; but the term liberty is preferred. For
example: A‟s so called „right‟ to wear a hat consist, on Hohfeld‟s analysis, of a
liberty to wear the hat and another liberty not to wear it. Duty and liberty are
jurally opposite. According to Hohfeld privilege, thus, means the freedom which a
person has i.e. to do or not to something law cannot interfere in case of privilege.
Liberty is a legal freedom on the part of one person to do a given act or a legal
freedom not to do a given act. Another person has no no-claim with respect to first
person. Liberty cancels out duty when content is altogether different opposite.
Content of duty and content of liberty cannot reconcile.
For example: If X has a liberty to speak it means he is not under a duty not to
speak.(vice-versa).
Claim-Liberty Relationship:
A claim necessarily implies a corresponding duty but liberty doesn‟t imply duty.
Austin view is that “liberty and claim are synonymous”. According to him, the
liberty of acting according to one‟s will would be illusory if it were not protected
from obstruction. But, this view of him is not accepted. The reason is in liberty, the
prominent idea is the absence of restraint. Protection for the enjoyment of that
liberty is secondary idea. Claim denotes the protection and the absence of restraint.
After removing the restraint, if person wants to do, may do or may not. This is
liberty. Claim remove restraint but liberty gives freedom, further to do or not.
Example: Under article 19, state protects the intervention of anyone in the freedom
of speech and expression. It is the claim of a citizen to get protection from the state
it anyoneinterferes in his liberty. But, the citizen has a right to freedom of speech
and expression or not – it is liberty.

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 denotes ability in a person to alter the existing 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 of will (volition act), earthquake (non-volition act). It
also alters the legal condition of a person by destroying the property.

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.

Sometimes, a power is coupled with a duty to exercise it.

Example: Power of judges to give justice, power of the police officer to arrest.
This is also a rightful exercise of the power.

Sometimes, a power is coupled with a duty not to exercise it.


Example: Vicarious liability- when servant has power to do tort but does not have
duty to do so. Such exercise of power would be wrongful exercise.

Power may be divided into- „Public and „Private‟. Private


power is that power which is vested in person for his own interest. Public power is
that which vested in a person for his own interest. Public power is that which is
vested in a person as an agent of the state, as the judicial or executive power of the
officers. When a public power is coupled with a duty to exercise it is termed as
„ministerial power‟ and when coupled with liberty termed as „discretionary power‟.

Liability is the correlative of power. It denotes the position of a person


whose legal condition is altered. It is not the liability in general sense. It is not the
liability as in the sense of criminal liability. The Hofeldian‟s liability talks about
the position of a person whose legal condition can be altered. This liability has a
very specific meaning.

Example: X executes will against Y. It alters the legal condition of Y. This


position is termed as liability. Will is operative after the death of X then Y gets the
claim against the executor.

Thus, this power and liability is one of the important correlatives which give
rise to different terms of Hofeldian table.

(IV) LIABILITY AND DUTY:

Duty is prescriptive pattern of behavior which a person ought to do.


Liability is something different. It is the position of a person whose legal status can
be altered.15

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 to vote. When person is elected. We gets certain power.

Example: Power of the President to call majority to make the government. This
gives power to the government.

Power not accompanied/occupied with duty: Wrongful exercise of power.

Example: Vicarious liability.

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

(V) IMMUNITY AND DISABILITY (YOU CANNOT)

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.

Example: President of India is immuned from civil and criminal proceedings. It


means persons having power to continue such proceedings are disable to do so
w.r.t President.

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.

Immunity, Claim, Duty:-

Example: An immunity is not necessarily protected by duty in another person not


to attempt an invasion of it. Or, a person having immunity need not have a claim
on that.

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.

Thus, immunity is one of the important types of right which is


included in the widest sense of the term of „right‟.

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 :-

1. PERFECT AND IMPERFECT RIGHT;

According to Salmond, a perfect right is one which corresponds to a perfect duty.


It is not only recognised by law but also enforced by it. An imperfect right, on the
other hand, is one which though recognised, is not enforceable by law. In other
words, a perfect right is one in respect of which an action can be successfully
brought in a court of law, and the decree of the court, if necessary, enforced
against the defaulting judgment-debtor. But an imperfect right is incapable of legal
enforcement18. A time-barred debt is a typical example of imperfect right. In
India, the, creditor or the holder of a promissory note can sue upon it within three
years from the date of debt becoming payable. After the expiry of this time, the
debt is barred by time. The limitation, however, does not extinguish the debt. That
is, for certain purposes creditor's rights are still recognised though the time-barred
debt cannot be recovered through a court of law. Firstly, if the debtor pays the
money after it has become time- barred, he cannot later sue to recover it saying
that it being barred by time, was without consideration. Secondly, a fresh promise
to pay the debt in writing, can be enforced and the time-barred debt is treated as a
valid consideration for such fresh promise. Thirdly, if the debtor has given some
security, he cannot take back the things given as security, without paying the debt
to the creditor. Thus in case of an imperfect right, though remedy in a court of law
is denied but the right itself does not come to an end. Likewise, part payment of a
time-barred debt converts the imperfect right into a perfect right.
18
Allen v/s water force co.(1935)1kb
The rights of the subjects against the State are also sometimes classified as
imperfect rights because of their unenforceability. It is, however, submitted that
this view seems to be against the accepted legal notions, the reason being that an
ordinary imperfect right is unenforceable because some rule of law declares it to
be so whereas rights against the State are unenforceable not in this legal sense, but
in the sense that the strength of the law is none other than the strength of the State
itself.
1. POSITIVE AND NEGATIVE RIGHT;
A right is distinguished as positive or negative according to the nature of the co-
relative duty it carries with it. In case of a positive right, the person subject to the
duty is bound to do something whereas in case of negative right, others are
restrained from doing something. The positive right is a right to be positively
benefited but a negative right is merely a right, not to be harmed. A right to
receive compensation or damages, or a creditor's right to recover money from the
debtors are examples of positive right. As against this, right of ownership is a
negative right for it imposes on others a negative duty of non-interference with
one's right ownership. A right to reputation is again a negative right in the sense
that it imposes a negative duty upon others not to interfere with it.
The distinction between positive and negative right can be summarised as follows
;(1) A positive right corresponds to a positive duty whereas a negative right
corresponds to a negative duty.
(2) A positive right involves a positive act while a negative right involves some
kind of forbearance or not doing.

(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.

2. REAL AND PERSONAL 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.

3. PROPRIETARY AND PERSONAL RIGHT.-


The aggregate of a man's proprietary rights constitutes his estate, his assets and his
property. They have some economic or monetary significance and are elements of
wealth. For instance, money in one's pocket or in bank, right to debt, land, houses
etc., are proprietary rights. The personal rights, on the other hand, are elements in
one's well-being. They have no monetary value whatsoever. Examples of personal
right are right of reputation, personal liberty, freedom from bodily harm, right of a
husband in respect of his wife or parent in respect of their children.
The distinction between proprietary and personal rights can be summarised as
follows :-

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.

4. RIGHT IN RE PROPRIA AND RIGHT IN RE ALINEA;

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.

2. A servitude is a right to the limited use of a piece of land unaccompanied either


by the ownership or by possession of it. For example, a right of way or a right t()
the passage of light or water across adjoining land etc.
Salmond defines servitude as that form of encumbrance which consists in a right to
a limited use of a piece of land, without the possession of it, as contrasted with a
lease, which confers the right to possession. For example, an easement right or a
profit a prendre.

4. A security is an encumbrance vested in a creditor over the property of his debtor


for the purpose of securing the recovery of the debt e.g. a. mortgage.

5. A trust is an encumbrance in which the ownership of property is limited by an


equitable obligation to deal with it for the benefit of someone else. The owner
of the encumbered property is called the trustee and the owner of the
encumbrance is the beneficiary of the trust.21

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

6. PRIMARY AND SECONDARY RIGHT;


Primary rights are also called the antecedent or substantive rights. Similarly,
sanctioning rights are also called the remedial or adjectival rights. It may be
reiterated that sanctioning rights originate from some wrong i.e., from violation of
another's, right whereas primary rights have some source other than wrongs.
Salmond has pointed out that a primary right can either be a right in rem e.g. one's
right not to be assaulted or it may be a right in personam i.e., right of a promisee
that the promiser should perform his part of the contract. If the promiser commits a
breach of the contract, promisee shall have sanctioning right to claim damages.
Sanctioning rights are in personam because they result from violations by specific
persons. Aright to sue in a court of law, is an illustration of a sanctioning right or a
remedial right.-

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.

State shall not- Negative duty

CLAIM (X) (any person) (+) LIBERTY(state) (-)

DUTY(Y) (state) (+) NO-CLAIM (any person) (-)

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.

POWER (STATE)(+) LIBERTY(PERSONS) (-)

LABILITY (PERSONS) (+) DISABILITY (STATE) (-)

Article 15 (3): Nothing in this article shall prevent the state from making any
special provision for women and children.

POWER (STATE)(+) LIBERTY(WOMEN) (-)


LABILITY (WOMEN) (+) DISABILITY (STATE) (-)
But, this power to make special provision for women and children is coupled
with liberty. State is not under any duty to make special provision for
women and children. State may or may not be.

CLAIM (X) (WOMEN) (+) LIBERTY(STATE) (-)

DUTY(Y) (STATE) (+) NO-CLAIM (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) (-)

DUTY(Y) (STATE) (+) NO-CLAIM (WOMEN AND


CHILDREN) (-)

Similar analysis will be for Articles 15(4), 15(5), 16(4).


Concept of ‘Subjection’

Subjection is a stage prior to liability. Subjection depends upon the happening of


certain events. If certain conditions get fulfill then only subjection comes into
effect.

Example: Suppose, there is a conditional agreement between A and B. A promises


B to pay Rs. 100 if there is a snow fall in Shimla. Snow fall takes place. Just due to
falling of snow, A does not alter the legal condition of B. It means due to falling of
snow has no power or B is under no liability in the Hohfeldian‟s table. It does not
mean, no liability arises. There is some different type of liability that is
„Subjection‟. It means, after snow fall, A and B comes under Subjection. When B
approaches A for Rs. 100 than B comes under the liability because he is ready to
get his legal status altered by receiving Rs 100. A has power to alter his legal
condition by fulfilling the condition. Firstly, they come under subjection, after that
power-liability relation arises. If A refuses to pay him B has a claim and
correspondingly A is under a duty to give Rs. 100, after that power – liability
relation arises. If A refuses to pay Rs. 100 to B than B has a claim and
correspondingly A is under duty to give Rs. 100.

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.

2. A Text of Jurisprudence, G.W.Paton, Oxford Universities press, Fourth edition


first, Indian edition, 2004.

3. Jurisprudence & legal theory, V.D.Mahajan, eastern book company, fifth


edition, 2006.

4. An introduction to jurisprudence, Gokulesh Shsarma, fifth edition,2007.

5. Salmond on Jurisprudence, P J Fitzgerald, Twelfth edition, Indian Economy


Reprint, 2010.

6. PSA Pillai‟s Criminal Law, KI Vibhute, Tenth Edition, 2008.


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.