1. In English law, right means that which is straight and not crooked. It is an opposition from the wrong which is twisted from the straight.
2. Right has been derived from the Latin word, rectus which means to rectify or correct or from jus, which means just or justice.
3. Holland defined it as, “Capacity residing in one person of controlling, with the assent or assistance of the state, the action of others” (Will Theory).
4. Salmond, “A right or an interest recognised and protected by a rule of right. It is a right, respect for which is a duty and disregard of which is a wrong” (Interest Theory). Recognised here means that those which are recognised by the state.
Those which are recognised by the state are legal rights and those which exist but are not given any recognition are moral rights. Thus the rights as stated in Part III of the Constitution are an example of legal rights in India.
Recognition and protection must both exist, simultaneously. If only of them is prevalent, then it will not be a right. Thus, according to Salmond, rights and duties are correlated and must co-exist.
5. Ihering defined rights as legally protected interests. (Interest Theory)
6. J. Mathew in Keshavanada Bharti case (1973) held, “The word right has to be reserved for those claims (against somebody) and privileges which are recognised and protected by law.”
7. Professor Feinberg, “Right is an indispensable, invaluable possession.”
8. There are some rights which are so considered but are not actually enforceable for example, rights which are stated in international law, EU directives, Directive Principles of State Policy, etc.
9. As in the case of time bar debt where the claims continue to exist but the protection of the same may be lost.
10. Dean Roscoe Pound stated the following, “As a noun, the word right in the legal sense has 5 analogous meanings:
- Firstly, a right is an interest which is secured and protected by law.
- Secondly, a right is a recognised claim to act or in forbearance by another or by all in order to make that interest effective. (For example, torts, contracts).
- A third use is the capacity to designate (assign) a capacity of creating, divesting or altering rights (power). For example the powers of a municipal corporation.
- A fourth use is that rights are liberties/privileges to designate certain or general special non-interference with natural faculties of action (Gian Kaurs).
- Right is used as an adjective to mean that which accords with justice, that which is recognised and gives effect to moral rights or jus rights (Kharak Singh v. State of UP)”
Though natural law keeps on changing, 2 principles have remained unchanged. They are: universal order governing all people and inalienable rights.
1. Doctrine of Waiver
This doctrine states that any right can be waived off at the discretion of a person. This doctrine is not applicable to the provisions of law enshrined in Part III of the constitution.
It was held by the Supreme Court in Muthiah v. IT Commissioner, (1956), it is not open to a citizen to waive off any of the fundamental rights as conferred in Part III. These rights find mention in the Constitution not merely for the benefit of the individual but as a matter of public policy for the benefit of the general public.
It is an obligation imposed on the state and the state cannot be relieved of such obligation as most people are economically poor and educationally backward.
Various Schools of Thought
1. Positivist School: people do not have rights, they only have duties.
2. Sociological School: As stated by Roscoe Pound, right is an interest recognised, protected and enforced by the law. The main function of the law is to balance the conflicting interests of the individual, society and state with minimum waste and friction.
Recognition, Protection and Enforcement are the main ingredients of rights
Evolution of the Concept of Rights
1. All documents such as the Magna Carta (1214); the Bill of Rights (1689) and the French Declaration of Rights recognised the concept of rights.
2. Following these documents, the Americans included the Bill of Rights in the Constitution and were the first to give these rights constitutional status.
3. The inclusion of Fundamental Rights in the Constitution of India is in accordance with the trend of modern democracies, though the idea being to preserve that as an indispensable condition of a free society.
4. UDHR, ICCPR, ICECSR are the international documents which deal with rights and are not binding but have found mention in most constitutions thus making them enforceable within a state.
THE STATE AND RIGHTS
1. There exists a correlation between the state and rights. It is the state which affords recognition to these rights thus giving it protection.
2. We can understand this better by understanding the relation between state and the theories of origin of state as there is a direct correlation between rights and origin of the state.
3. Social Contract Theory: there existed a state of nature, wherein there was chaos, conflict, anarchy. Thus a contract was brought about which established a state for the protection of rights in an anarchy.
Hobbes: established a monarchy where absolute and unlimited power was given to the King. Herein, people had surrendered all their rights and thus could not claim such rights against the State. This changed when King James I signed the Magna Carta.
Locke: created two contracts, political (which created the government) and social (which created society). He established a Limited Rights Thesis- where people surrendered only certain rights to the State for the protection of their other rights- right to property, right to life and security. The King acted as a trustee and could be dethroned. This was a form of Limited or Constitutional Governance. For example, Fundamental Rights are not surrendered by the people, but the State interferes only in certain cases.
Rousseau: He gave the doctrine of popular sovereignty where the general will of the people was sovereign and not the King. When the general will prevails, the majority view prevails and not the minority. For example, The Indian Constitution which clearly states in the Preamble, “We the people give to ourselves…” It is a contract and represents a democracy. But it is important to note that the general will does not prevail over the Constitution.
1. The state is a divine institution which is created for the common welfare of the people.
2. The king is the representative of God and thus he is responsible to God and not to the people at large.
3. No rights are available against the King. To disobey the King is an offence as well as a sin.
4. Example, In Hinduism, the concept of Dharma of the King. There are no rights created but a duty of the King and the people. The King ought to do his duty else the people have the option not to follow the King. But there was no formal way of resistance.
5. Another example is that given in the Manusmriti which states that the King is God in the shape of man. It is God that created the state for the protection of the people from anarchy.
1. Propounded by Jenks, Oppenheim and Bernhardi.
2. Force is generally used by the strong over the weak.
3. The consequent subjugation of the weak resulted in the origination and development of the State.
4. Though, here people could not claim any rights from the state.
Historical Theory or Patriarchal/Matriarchal Theory
1. State originated due to the historical evolution of society.
2. There were small families that merged into a group and then many groups came together to form a State.
3. The head had a duty towards the welfare of the people and only some rights could be claimed against the state.
1. There must be a person of inherence or subject of right. There must be an owner of the right without which it may not exist. The owner of a right may not be a fixed or determinate person. It may be:
- A fixed person as in the case of Fundamental rights or contractual rights.
- Society at large i.e. of a country or the world at large.
- An uncertain person as in the case of an unborn child.
- Indeterminate body like a Municipal Corporation.
1. There must be a person of incidence. A legal right will always operate against some person and in such case he will be bound by a certain duty as rights and duties are correlated.
2. There must be some obligation to do or not to do something. This is because the content of a legal right maybe an act or omission in favour of the person entitled.
3. There must be an object of legal rights. The subject matter of a right can either be tangible as in the case of property or intangible as in the case of reputation, intellectual property etc.
4. Every legal right has a title. There are various modes by way of which one can acquire title of a legal right. (i) Citizenship, (ii) Purchase, (iii) Inheritance, (iv) Gift, (v) Mortgage, (vi) Trove.
NATURE AND SCOPE OF RIGHTS
1. Rights are natural and fundamental in nature without which no one can survive as they are required for the development of self and society.
2. Doctrine of Jus Nature (Locke and Wolfe)
- Every FR is inherent in man. In fact, it existed prior to the origin of the state and the state is not competent to violate it.
- It is the duty of the state to recognise and protect these rights.
1. Blackstone lays down two principles with respect to the concept of right:
- Rights are the absolute rights of individuals.
- The principle aim of society is to protect individual’s enjoyment of these rights which are vested in them as immutable. For example, rights of an unborn child under TOPA.
MODELS OF RIGHTS
1. But rights can be subordinated in case of public interest.
2. Fundamental rights are available as a sheath against the arbitrary action of the state.
3. Rights can be subordinate to goals. For example, in case of emergence all FR’s other than A. 20 and 21 are suspended in the national interest.
4. In Kameshwar Singh v. State of Bihar, Directive Principles of State Policy prevailed over Fundamental Rights.
5. In Re Kerala Education Bill, it was stated that rights and duties are supplementary and complimentary to one another.
6. John Rawl observed, Rights have lexical priority.
7. Rights are observed over all other considerations.
8. They shall prevail over all other considerations. For example, A. 13 of the Constitution of India.
9. Absolutist model by Ronald Dwarkin, which states, “Right is triumph over other justifications or considerations.”
10. Speech and expression includes right to publish. Government can restrict this right in order to promote public good.
11. According to Dwarkin, such restriction cannot be tolerated and is wrong on part of the state.
- This theory is inapplicable as no right can be absolute and all rights need to be bound by reasonable restrictions. Dwarkin went on to say that interference in an individual’s liberty can be justified only on reasonable grounds.