1. A perfect right is one which corresponds to a perfect duty. A perfect duty is one which is not merely recognised by the law but enforced by it.
2. A perfect right is thus, that which is recognised, enforced and for which there is a remedy available. For example, Fundamental Rights
3. An imperfect right is one which is recognised, unenforceable and may or may not have a remedy. For example, time barred debts, international law, DPSP’s etc. These are cases which are an exception to the maxim ‘ubi jus ibi remedium’ meaning where there is right there is a remedy.
4. An imperfect right is unenforceable because some rule of rule declares them so.
5. Imperfect rights may become perfect rights by virtue of there being a remedy or being enforced by the court of law when in any judgment a court interprets such imperfect rights under any other perfect right. For example, when international law is taken into consideration and thus included in the municipal law while giving a judgment or if the legislature creates a new legislation on international law or DPSP’s.
6. Rights against the state are considered to be imperfect rights as they may receive recognition but cannot be enforced. They cannot be enforced because the strength of law is technically the strength of the state and thus cannot be used against the state whose strength it is. However, they are considered to legal rights because of popular and legal usage.
1. Positive rights are those which correspond to a positive duty. Thus the person of inherence can compel the person of incidence to do a positive act. The person of inherence is entitled to receive more than he has already acquired i.e. active assistance. It has to be positively benefitted.
2. Negative rights on the other hand are those rights which correspond to a negative duty. It is a right to refrain a person from doing a particular act. It is a right to maintain the status quo. It requires passive acquiescence and not active assistance. It is a right not to be harmed.
3. Examples of positive right include A. 44 Uniform Civil Code, A. 21 A- right to education which states that the State shall provide free education for all between the ages of 5 to 14 years. In all such cases the state has a positive duty.
4. Examples of negative right include A. 14 which states that no person shall be discriminated against on the grounds of caste, creed, sex, etc; A. 20 a person shall not be prosecuted against if there was no law at the time of commission of offence; A. 20 Double jeopardy: A. 20 right against self incrimination. In all these case, citizens have a negative right arising out of a negative duty of the state.
Rights in rem and Rights in personam
1. A right in rem is a real right which corresponds to a duty imposed on persons in general. It is available against the world at large. It is generally negative in nature. For example, a right to assign chattel.
2. A right in personam sometimes called a personal right is one which corresponds to a duty imposed upon determinate individuals. It is a right which is available against only such determinate persons. It can be either negative or positive in nature. For example, a right by way of contract.
Proprietary and Personal Rights
1. The aggregate of a man’s proprietary rights include his estate, his assets or his property. This includes land, goodwill, shares of a company etc.
2. The sum total of a man’s personal rights includes his status pr personal condition. This includes right to reputation, freedom of speech and expression, freedom to marry etc.
3. Proprietary rights are valuable and are worth some money whereas personal rights are not.
4. Proprietary rights are elements of a man’s wealth and are economic whereas personal rights are elements of a man’s well-being and are juridical.
Rights in Re Propria and Right in Re Aliena
1. Right in Re Propria is the right over one’s own property. For example, the rights of a landlord.
2. Right in Re Aliena are rights over the property of someone else and includes encumbrances. It reduces or derogates a right that belongs to someone else in the same subject matter. For example, the rights of a tenant.
3. A right subject to any encumbrance is called servient and the owner of such a right is called servient owner whereas, an encumbrance which derogates from it is called dominant and the owner of such a right is called dominant owner.
4. Dominant and servient rights are necessarily concurrent.
5. A right in Re Aliena reduces the right in Re Propria.
Principal and Accessory Rights
1. A principal right is a main or primary right in a particular subject matter whereas an accessory right is a subordinate or additional right in the principal right.
2. It is necessary for a primary right to exist for an accessory right to arise from it but a primary right can exist without a subordinate right originating from it.
3. Accessorium sequitor: means that the accessory right follows the principal right.
4. For example, in case of the right to file a suit (a primary right) the accessory right will be the right to appoint a lawyer OR in case of the right to debt (the principal right) the right to interest will be the accessory right.
Primary and Sanctioning Rights
1. Sanctioning rights originate from some wrong or violation of principal or primary rights. For example, right in damages.
2. Primary rights can either be rights in rem or rights in personam but sanctioning rights are always right in personam.
Legal and Equitable Rights
1. In England, those rights which are recognised by Courts of Common law are legal rights and those which are recognised by Chancery Courts are equitable rights.
2. The maxim ‘Qui Prior est Tempore Potior est Jure’ means that where there are equal equities the law will prevail, legal rights will prevail only in the case of conflict.
3. Such rights are not recognised in India.
Vested and Contingent Rights
1. Rights vest in someone if all the facts have occurred which must occur by law is called vested right.
2. If some but not all vestitive facts have occurred they are called contingent rights. It is a right that is incomplete.
1. Duty is an obligation to do or not to do something whereas rights are interests which are recognised and protected.
2. Correlation means mutual, corresponding, and reciprocal or occurs simultaneously.
3. There are 2 schools of thought bring about the relation between rights and duties.
4. Salmond: He states that duties and rights are correlative. Duty is an obligatory act, the opposite of which is a wrong. He says that just like there cannot be wife without husband, father without child, there cannot be a right without a corresponding duty.
5. Austin (supported by C.K. Allen): He states that rights and duties need not necessarily be correlative. According to Austin there are two kinds of duties; Absolute Duties and Relative Duties.
6. When there is a relative duty there is a right and when there is an absolute duty there is no right.
7. Examples of absolute duties are: duty of a judge to punish a culprit; duties owed to the sovereign etc.
8. Austin’s view was criticised on 2 grounds:
- According to Austin, the sovereign is supreme having an absolute monarchy. However there are certain things like the basic structure of the Indian constitution that cannot be changed even by the sovereign.
- Salmond criticises Austin’s view saying that if duties in rem are violated independent persons will always have a right against us.
The Literal Rule
1. A term applied to collect the intention of a deed, contract, statute etc from the words used only.
2. It is based on litera legis which means letter of the law. The courts are to interpret the law in its ordinary meaning and not go into the purpose or spirit of the law.
3. Words of an enactment are to be given their ordinary meaning and not to be construed in any other way whatever may be the consequences.
4. It is the court’s duty to interpret the intent of the law but first of all it must be in the words and language employed.
5. Examples: A.K. Gopalan v. State of Madras; procedure established by law
Golden Rule or Modified Rule
1. If literal interpretation leads to absurdity or repugnancy or inconvenience the court must modify the law to such an extent to prevent the abovementioned consequences.
2. It aims to solve all problems while interpreting the law and hence is called the golden rule.
3. For example, Keshavananda Bharti (1973) wherein the court read into certain matters and finally laid out the contents of the basic structure of the Constitution and that such could not be amended in any situation.
The Mischief Rule
1. Mischief here means any problem or difficulty.
2. It is also called Heydon’s Rule. The interpretation is done in such a way so as to suppress the mischief intended to be remedied by a statute.
3. Four things taken into consideration: what was the common law before the Act, what was the mischief done and the common law which did not provide an adequate remedy for, what is the remedy that the parliament provided for in the act, what was the reason behind the remedy that was provided.
4. For example, Vishaka v. State of Rajasthan, wherein rules of international law were brought so as to remedy the acts of a person which was not provided for in the state law.
Rule of Ejusdem Generis
1. Ejusdem generis means of the same kind.
2. The words in a statute have to be understood in reference to context. Meanings of other authorities are to be taken into consideration.
3. University of Madras v. Santa Bai, “Other authorities could only indicate authorities of a like nature. Thus, authorities exercising sovereign or governmental functions cannot include within it universities unless maintained by the state.”
4. Ujjammbai v. State of UP – it was held that there is no common generis.
Rule of Noscitor a Sociis
1. Noscere means to know, sociis means association. Thus the captioned maxim means, to know from the association.
2. Some rules take their colour from each other or are presumed to have taken colour from each other as words are known by the company they keep.
3. State of Karnataka v. Union of India, “The word power has been used in the company or privileges and immunities, thus power means power of house as necessary for conduct of business and not legislative powers.”
Rule of Strict Construction
1. Here, the court is expected to construe the words of an act or statute strictly so as to mean the liability as created by the statute.
2. Punishment to a person can be meted out only if the plain words of a statute involving a penal provision are able to bring that person under the purview of the provision.
1. When two or more provisions are repugnant the court shall if possible give effect to both provisions.
Judicial Contribution to the Evolution of Rights in India
1. Rights in India have developed and been interpreted in various ways. This has been done by the power of the judiciary to review any right as stated in Part III of the Constitution.
2. This can be seen by the judiciary reviewing an expanding the various fundamental rights provided for in our Constitution.
3. For example, A. 21 right to life includes, right to live with dignity, clean air, livelihood, etc. Article 14 and 19.