Rights and Duties

The Power Point deals with the legal concept of Rights and Duties. An attempt has been made on the part of the author to explain the depth of the topic in lucid terms with the help of flowcharts and examples.

1. R IGHTS A ND D UTIES S HIVAM J AISWAL LLM. 3 RD S EMESTER D EPARTMENT OF L AW U NIVERSITY OF N ORTH B ENGAL

2. R IGHTS A ND D UTIES A RE L EGAL C ONCEPTS Legal concepts are basically those tools of a judge which helps her/him in acknowledgement of rights and duties of the parties and consequentially forming a reasoned decision while adjudication of any dispute. Legal concepts include rights and duties, ownership and possession, liability, privileges, immunity, etc … For example- Just like a carpenter who requires certain tools like handsaw, nail, drill, pencil, etc.. to make a strong furniture; in the same manner a Judge also requires the existence of legal concepts to make a decision.

3. RIGHTS RIGHTS MORAL RIGHTS (de facto interests) (Not Enforceable by law) LEGAL RIGHTS (de jure interests) (Enforceable by law) RIGHT: There is no universally accepted definition of the term ‘Right’. However, ‘Right’ can be understood as a remedy which is available for any wrong or against any corresponding duty . ‘Ubi jus ibi remedium ’ (i.e., where there is right, there is a remedy) is a well-founded legal maxim in this respect. MORAL RIGHT: A moral right can be understood as an interest of an individual which is protected and recognized only by the principles of morality. The violation of moral right is only considered as moral wrong and not legal wrong as such right is not given the protection of law. For Example : It is moral right of Parent to command respect from their children, but if children violate it, it is only a moral wrong, as there is no legal sanction for not respecting parent’s orders.

4. LEGAL RIGHT: A legal right is an interest of an individual which is recognized and protected by rule of law and violation of which will be considered as a legal wrong. For Example: It is the legal right of old-aged parents u/s 125 of Cr.P.C . 1973 to claim maintenance from their major child who despite having sufficient means has failed to maintain his parents. The violation of such right is considered as a legal wrong. when recognized and protected by Legislature becomes MORAL RIGHTS LEGAL RIGHTS Sir John Salmond : Right is an interest recognized and protected by a rule or justice. It is an interest in respect of which there is a duty and disregard of which is wrong . (Rights and Duties are co-related and inseparable) John Austin : A Party has a right when another or others are bound or obliged by law to do (act) or forbear (omission) towards or in regard of him. (Every right has its corresponding duty enforced by law) Rudolph Von Ihering : Right is a legally protected interests . ( Right means an interest protected by law )

5. The hon’ble Supreme Court of India explained concept of legal right in the case of  State of Rajasthan v. Union of India, AIR 1977 SC 1361 : “ L egal rights are correlatives of legal duties and are defined as interests which the law protects by imposing corresponding duties on others. But in a generic sense, the word ‘right’ is used to mean an immunity from the legal power of another, immunity is exemption from the power of another in the same way as liberty is exemption from the right of another, immunity, in short, is no subjection.”

6. Essential Elements of Legal Right SUBJECT OF RIGHT The person in whom the right resides or the person who is legally entitled to such right is considered as the subject of right. For e.g. Ram purchased house of Rs. 50, 000. Ram is Subject of Right . OBJECT The thing over which the right is exercised is called ‘ object of right ’. For e.g. Ram purchased house of Rs. 50, 000. House is Object of Right . CONTENT The content of right means the extent to which the subject (owner) of right can exercise his right over the thing. For e.g. Ram has an absolute right to dispose his house through any means. SUBJECT OF DUTY The person against whom the subject (owner) of right can exercise his/her rights. For e.g. Ram purchased house from Shyam . Shyam is Subject of Duty whose duty is to give posession of house to Ram. TITLE Title is the process by which the right is vested or conferred. Purchase, gift, Lease, etc confers title on a person. For e.g. Ram transferred the possession of his house to Shyam under the title of Lessor.

7. T HEORIES O F L EGAL R IGHTS Will Theory of Legal Rights: According to this theory, a right is an inherent attribute of the human will . The theory suggests that it is through a right that a man is able to express his will over an object. Jurists who support this theory are Hegel, Kant, Hume and other German historical jurists . According to Puchta (an eminent jurist), a legal right is a power over an object which by means of his right can be subjected to the will of the person enjoying the right . ( e.g. It is only through right to vote that one can express his political will). Interest Theory of Legal Rights: This theory was been propounded by German Jurist, Rudolph Von Ihering , according to whom a legal right is a legally protected interest. According to Ihering , basis of legal right is ‘interest ’ and not ‘human will’, as the purpose of law is to protect the human interests and to reach a balance between the conflicting interests . Interests may be categorized into Individual, Public and Social interests and in case of conflict between these, the task of the Courts and Legislators is to strike a balance between the conflicting interests and provide legal protection to each of the interests . (Balance between Right to Religion and Right to Equality)

8. CLASSIFICATION OF LEGAL RIGHTS 1. PERFECT AND IMPERFECT RIGHTS 2. POSITIVE AND NEGATIVE RIGHTS 3. RIGHTS IN REM AND RIGHTS IN PERSONAM 4. RIGHTS IN RE PROPRIA AND RIGHTS IN RE ALIENA 5. PROPRIETARY AND PERSONAL RIGHTS 6. LEGAL AND EQUITABLE RIGHTS 7. VESTED AND CONTINGENT RIGHTS 8. PUBLIC AND PRIVATE RIGHTS 9. PRINCIPAL AND ACCESSORY RIGHTS

9. D UTIES The idea of duty is rooted in the idea of obligation to give something in return. It is commitment to someone (duty towards person) or something (duty towards property) . In a laymen’s view, duty refers to an obligation ‘ to do something ’ or ‘ abstain from doing something ’. DUTY Moral Duty Legal Duty Breach of moral duty is called moral wrong which is not backed by sanction (punishment) Breach of legal duty is called legal wrong which is backed by sanction (punishment) Not respecting elders is a moral wrong for which there is no sanction (punishment). Not respecting law of the land is a legal wrong for which there is sanction (punishment).

10. D UTY AS E XPLAINED BY J URISTS Sir John Salmond : A duty is an act which one ought to do , an act the opposite of which would be wrong . (Duty has been defined by Salmond in a positive manner. Salmond has failed to throw light on forbearance (or Omission ) as well as the difference which lies between moral and legal duty.) Keeton : A duty is a forbearance which is enforced by a State in respect of a right vested in another and breach of which is wrong. The concept of ‘ Dharma ’ as made out in Hindu Jurisprudence is promulgated in form of ‘Positive duties’ (Vidhi) and ‘ Negative duties ’ ( Nishedh ). (for e.g.: Indian Penal Code, 1860 which provides for the offences and as well as punishment for those offences indirectly imposes legal duty not to engage oneself in commission of any offence. If any individual does not abide by this legal duty, he is said to have committed a legal wrong).

11. C LASSIFICATION OF L EGAL D UTIES UNIVERSAL, GENERAL AND PARTICULAR DUTIES (Given by Edward Jenks): According to Jenks Universal duties are those, which are binding on all normal citizens of the community. (Duty to obey traffic rules; Duty to get vaccinated; Duty not to commit any legal wrong; Duty not to harm environment). General duties are those, which are binding on specific classes of normal persons. (for e.g. Public Servant within the meaning of Section 21 of I.P.C.). Particular duties are those, which are binding between the persons who have voluntarily undertaken them. (for e.g. Parties to the contract are particularly obliged towards the terms and conditions of the contract which they have voluntarily entered into with free consent and consensus ad idem).

12. PRIMARY AND SECONDARY DUTIES Primary Duty: A primary duty is one which exists ‘per se’ and is independent of any other duty. (For e.g.: To forbear or abstain from committing injury to another is a primary legal duty) Secondary Duty (or Remedial Duty): A secondary duty is one which has no independent existence and but is ancilliary and exists for the enforcement of some other duty. A secondary duty is also called sanctioning or remedial duty. (For e.g.: A duty to pay damages/compensation to another person for the injury or loss caused to him is a secondary duty or remedial duty). POSITIVE AND NEGATIVE DUTIES Positive Duty: When law obliges a person to do an act, it is called positive duty. For e.g. Ram lends Rs. 10,000 to Shyam . Shyam , therefore has duty to repay Rs. 10,000 to Ram. Shyam’s duty out here is a Positive duty. Negative Duty: When law obliges a person not to do or abstain from doing an act, it is called negative duty. For e.g. It is the duty of Ram not to enter into private land of Shyam without his consent, otherwise it will lead to trespass to land . Ram’s duty out here is a Negative duty.

13. 4. ABSOLUTE AND RELATIVE DUTIES (GIVEN BY JOHN AUSTIN): According to John Austin, rights and duties are interdependent . He has classified duties into absolute and relative. CLASSIFICATION OF DUTIES BY AUSTIN ABSOLUTE DUTIES RELATIVE DUTIES Absolute duties are those that do not have any corresponding rights. According to Austin there are four absolute duties against which there are no corresponding rights . These are: Duty towards those who are not humans Duty towards public at large. Self-regarding duties Duties towards the Sovereign or State. Relative duties are those for which there is a corresponding right . For e.g. Sita (purchaser) enters into an agreement with Gita (seller) to purchase Gita’s house. Gita’s duty (relative duty) to sell her house to Sita emerges from her corresponding right to demand monetary consideration from Sita in exchange of house.

14. Self-Regarding Duties : A duty not to commit suicide; Duty not to consume Liquor or Drugs. Duties owed to persons indefinitely: A duty not to commit public nuisance. Duty towards those who are not humans: Duty towards animals, birds, almighty, etc... Duty towards Sovereign or the State: Duty to respect secular character of our Country .

15. Jural Correlatives Jural Correlatives Jural Correlatives Jural Correlatives Claim (Right) Liberty (No Duty) No Claim (No Right) Duty Disability Liability Power Immunity H OHFIELD’S I NTER -R ELATIONSHIP OF J URAL C ONCEPTS The vertical arrows in the below specified tables connect jural correlatives (i.e., correlative of right is duty; and correlative of liberty is no claim (or no right). Likewise, the correlative power is liability; and correlative of immunity is disability).