RIGHTS AND DUTIES

The Latin term for right is „Rectus‟ which means „correct‟. Rights are the
essential conditions for social life that lead to overall development.
In its wider sense, it has to be understood as any advantage or benefit conferred
upon a person by rule of law.
Action of a person which is permitted by law is known as his legal right. Legal
rights exist under the rules of the legal system. They are essential claims
recognized and protected by the state. The existence of right presupposes the
existence of a remedy for its breach.
In the case of State of Rajasthan vs Union of India, the Supreme Court stated
that
“Legal rights are defined as the interests - which the law protects
by imposing duties on other persons”.
The High Court of Madras in Daniel v State explained the
Legal right as a claim which is enforceable by courts and justice
administration agencies.

THEORIES RELATED TO THE LEGAL RIGHT

I. INTEREST THEORY
1) Developed by: Rudolf Von Jhering. He stated that Legal right is the
„legally protected interest‟.
2) He gave importance to the interest of the people rather than the will of the
people.
3) The main objective of the state is to protect the interests of the people and
to avoid the conflict between the individual interest.
4) Their interest is not created by any statute.
 5) The interest theory is supported on the ground that there are cases where
a person may have „rights‟ without having any will – infants, lunatics and
corporations have legal rights but they do not have any will.
6) Salmond supported this theory but he stated that it is essential that interest
should be protected and recognized by the state.

WILL THEORY
1) According to his theory - purpose of the law is to permit the expression of
free will.
2) The right emerges from the human will/ self-expression/ self-assertion.
The mental attitude of the claim or demand is the basis of right
3) Austin and Holland lay down that „will‟ is the main element of a right.
4) Duguit does not agree with this theory and criticizes it by suggesting that
will is not an essential element of a legal right or law. The real basis of
law is social solidarity.

It can be said that both the theories are not contradictory to each other but
the combination of both the theories give a clear picture. Both “will” and
“interest” are essential ingredients of a legal right.
The human will is always directed towards certain ends. These ends are
known as interest. Law protects certain wills by following certain interest as
rights.

ELEMENTS OF A LEGAL RIGHT (by Salmond)

There are few elements or characteristics of a legal right. These are :
I. Person Of Inherence Or Subject Of Right - This is the person who owns
the right. For Example:-Y purchase a van for Rs 20,000. Here Y is the
subject of the right.
 A legal right is always vested in a person. There cannot be any legal right
without the subject or owner. Even if the property is given to the unborn child,
the unborn child still owns the property.

II. THE PERSON OF INCIDENCE / SUBJECT OF THE DUTY -

A legal right occurs against another person who is under a corresponding duty
to respect that right. He is under the obligation/ duty to obey or respect that
right.
For example, where A has a particular right against B, A is the person of
inherence and B is the subject of the duty.

III. THE CONTENT OR SUBJECT MATTER OF THE LEGAL RIGHT:

These are certain positive or negative acts. A person is required to do or not to
do certain acts in favour of the person who is entitled to the right.. It may also
be known as the substance of the right.
For Example: Y purchased a Van of 20,000 rupees. Here, Y is the subject
of the right and he can exclude others.

IV. OBJECTS OF LEGAL RIGHTS - Objects of rights are things or objects

over which legal rights are exercised. For Example: Y purchased a Van of
20,000 rupees here van is an object.

V. TITLE OF THE RIGHT – That is to say, certain facts or events by reason

of which the right has become vested in its owner. Title is a process, by
which the right is vested/conferred. For Example: Purchase, gift, WILL etc
confers title on person

Salmond gives an illustration to explain these essential elements of legal

rights. If A buys a piece of land from B,
  A is the subject or owner of the right.
 The person bound by the duty is a person in general, for the right avails
against the world at large.
 The content of the right consists of non-interference with the purchaser‟s
exclusive use of the land.
 The object of the right is the land
 And the title of the right is the conveyance by which land was acquired by A
from B.

CLASSIFICATION OF RIGHTS

I. RIGHT IN REM AND RIGHT IN PERSONA

The Right In Rem is the right available against society at large. For Example: a
crime committed under I.P.C because it is a crime committed against the state.
Right In Persona refers to the rights that individuals can use. For Example: If
a breach of contract occurs, the party initiating the lawsuit will bring a lawsuit
against the party concerned.
 Right in rem is permanent. Rights in persona are temporary and can become
right in rem.
For Example: the right of a person after signing a contract for a purchase of a
property is a right in personam against the seller. The seller should transfer
the property in favour of buyer. After the execution of the sale deed, the right
of the person who purchased the land becomes right in rem, as available
against the whole world that nobody shall interfere with his ownership in
that land.
 Generally most of the rights in personam, are positive right and rights in rem
are mostly negative rights.
 II. POSITIVE RIGHTS AND NEGATIVE RIGHTS
In case of Positive Right the person having the right can compel another person
upon whom the correlative duty is imposed - to do some positive act. Example:
Rights to receive damages or recovering money from the debtor.
Negative Rights are the right to prevent you from taking certain actions. That
is, you are not allowed to perform certain acts. Right to life under article 21 of
the Indian constitution is a negative right because it prevents a person to kill
another person
 The basis of distinguishing right as positive or negative is the nature of
correlative duty it carries with it.

III. PERSONAL AND PROPRIETARY RIGHTS

Personal rights are related to personal status or well-being of the owner (of the
right). Example - the right to live with dignity, the right to freedom of speech
and expression.
Proprietary right are rights which have some monetary value or economic
value and constitute the estate of the person. Example-patent rights, right to
land, debt etc.
 Proprietary right is valuable; personal rights are not valuable. Second, that
 Proprietary rights are transferable, personal rights are not transferable.
 Proprietary rights are more static as compare to personal rights.

IV. PERFECT AND IMPERFECT RIGHT

Perfect rights are protected and recognized by law and the suit can be instituted
in the court against the wrongdoer for the breach of it. Example: A has taken the
loan from B. B has the duty to pay the loan. A has the perfect right to claim the
loan amount. If B fails to pay then, A has the right to file the suit in the court for
the recovery of loan amount.
 An imperfect right is that right which, although, recognized by law, is not
enforceable. For example the claims barred by time, claims unenforceable on
account of some technical defect in the matter of proof such as want of stamp in
non-registration
 Imperfect rights are good for defence, though not good as a ground for
action.
 An imperfect right may be converted into a perfect right.
For example, When a bond is unstamped, it creates an imperfect right
which is unenforceable by the law. But on payment of the prescribed
penalty, it becomes a perfect right.

V. PRINCIPAL AND ACCESSORY RIGHTS

The principal right is the most important rights. They are the basic right that is
vested on an individual. For example - Right to alienate property
The accessory right is the are indirect rights or security rights. They are
attached to the principal right For example - right to maintenance from
husband‟s property

VI. RIGHT IN RE-ALIENS AND RIGHT IN RE-PROPRIA

Right in Re-aliena is the right available against the property of another person.
Example- Right of way over the neighbor‟s field.
Right in Re-Propria is the right available in respect of one‟s own property. It
results in absolute ownership. He can use, dispose of, destroy, modify or
exclude others from his property.

VII. CORPOREAL AND INCORPOREAL RIGHT

Corporeal rights are having the rights over the material objects which can be
seen, touch or perceived. Example: I purchase the watch. The watch has
physical existence so I have a corporeal right over it.
 The incorporeal right is the right over the object which cannot be seen or
touched. Example right to reputation.

VIII. LEGAL AND EQUITABLE RIGHT

The rights recognized and enforced by the common law courts were known as
legal rights. Common law depends on habit and custom
Equitable rights are protected by the equity court. The basic principle is
natural justice, equity, justice and good conscience.
 The Indian Law, does not recognize the distinction between equity and
the law as there are neither separate laws nor separate courts regarding
them in India.

IX. PRIMARY AND SECONDARY RIGHTS

The Primary Right (or Antecedent Right) is important and is a very basic
right. These rights are independent in nature. It has a binding force. A legal
remedy is available against such right in the form of compensation or imposing
a penalty or imprisonment in Tort or in Crime
Secondary rights (or Remedial Rights) are resultant rights. They are
supporting rights to primary rights. They are in a form of remedy. It arises when
there is an infringement of primary rights. For example – if anyone defames A,
A has a right to receive damages from him.

X. PUBLIC AND PRIVATE RIGHTS

The public right is the right that is exercised by the State. Example- right to
vote, right to use road etc.
The private right is exercised by an individual for his personal benefit.
Example:- right to sleep, right to clean water Or a contract entered into by two
people gives rise to private rights to them.
XI. VESTED AND CONTINGENT RIGHTS
A vested right is a right which is vested on the person from the very beginning.
No events are required to take place.
Contingent rights are rights which are conferred on the happening or non-
happening of certain acts. This right depends upon future acts. If the act which
is prescribed takes place, then only the right will be conferred on the person.

XII. INHERITABLE & UNINHERITABLE RIGHTS

Inheritable rights can be passed from one generation to another. Example: A
son is a legal heir to the property of his father after his death.
Uninheritable rights die with the death of its owner. Example: All personal
rights are uninheritable rights.
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DUTIES

Duty is a service to others. If the duty is not properly performed, it will

constitute an offence under the law.
Every right implies a co-relative duty and vice-versa. Salmond believed that
every right or duty involves a bond of a legal obligation by which two or more
persons are bound together.

CLASSIFICATION OF DUTIES

According to Austin, Duties can be divided into two types:

I. Relative Duty – There is a corresponding right to such duties.
II. Absolute Duty – There is no corresponding right as such.

Austin stated 4 kinds of absolute duties:-

1. Duty towards God that is not towards human beings;
2. Duties towards the public at large, such as the duty not to commit a nuisance.
3. Self-regarding Duties, such as the duty not to commit suicide or duty not to
become intoxicated.
4. Duty towards State or sovereign

POSITIVE DUTY: A positive duty is some act on the person, on whom it is

imposed. If a person owes money to another, he is under a duty to pay the
money.
NEGATIVE DUTY: A negative duty implies not to do something. If a person
owns lands, others are under a duty not to make any interference with that
person's use of the land.

A PRIMARY DUTY is that duty which exists independent of any other duty.
The duty not to cause hurt.
A SECONDARY DUTY is that duty whose purpose is only to enforce some
other duty. It is the result of a violation of a duty. If a person causes injury to
another, he is under a duty to pay damages to the latter.

RIGHTS AND DUTIES

Rights and duties are the very important elements of law. The existence of the
one depends on the existence of the other as there can be no child without a
father and no father without a child. A right is always against someone upon
whom the correlative duty is imposed. In the same way a duty is always towards
someone in whom the correlative right vests.

Salmond said that legal right has 4 distinct kinds. And each of these has
its correlative.
 LEGAL RIGHT CORRELATIVE
Right (Claim) Duties
Privilege (Liberties) No rights.
Power Subjections (or Liabilities).
Immunities Disabilities.

This analysis of Salmond was carried further by HOHFELD. He analysed it

with greater accuracy.

I. RIGHT (CLAIM) AND DUTY – („you ought‟ or „Must‟) - Right

indicates what one can force another to do, or to refrain from doing. The
person who can so force is said to have a claim and the person who can be
made to act or forbear is said to have a duty.
Example – „X‟ has a claim that Y ought to pay him Rs. 10.
Y‟s duty with regard to „X‟ would be expressed by „X‟ as „you must‟ (X. has
a right in strict sense or claim)

II. PRIVILEGE (or LIBERTY)AND NO CLAIM – („I may‟) - Liberty

means that what one can do for himself without being prevented by the law.
In other words, he is free of the possibility of legal interference by others.
Example – if any person is entitled to vote at certain age, then it is
considered - not as a right but as a privilege because one may entertain this
 right or not. Similarly, if any person owns a garden – he can use it any way
he likes.
And other person has no claim in this.

III. POWER AND LIABILITY – („I can‟) - Power is generally defined as

an ability of a person to a change/ alter relations (rights or duties) by doing or
by not doing an act.
Example – The making of will or alienating property.
Power differs from right - as in there are no corresponding duties attached to
one‟s power. A‟s power to make a WILL corresponds to no duty in anyone
else.
Liability gives the sense of being affected by an act of a person who has
power' to do it.
 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.
 Private power is that power which is vested in a person as citizen for his
own interest.

IV. IMMUNITY AND DISABILITY – („You cannot‟) - Immunity denotes

freedom from the power of another i.e. having a given legal relation changed
by another. It is opposite of liability. Example – the president of India has
various immunities.
Whereas, the correlative of immunity is disability. Disability means the
absence of power.
That is if X has power and Y has immunity, it means Y has no liability. If Y
has no liability it means X has no power. Therefore an immunity in Y means
absence of Power in X.
 INDIAN LEGAL SYSTEM

The Constitution of India has guaranteed certain RIGHTS to the citizens of

India which are known as Fundamental Right which is considered to be the
most important rights. These rights act as a watchdog on the use of arbitrary
powers of the state.
If these rights get violated then the person has the right to move to the Supreme
Court of India or The High Court for enforcing rights under Articles 32 and
226.
Following rights are guaranteed by the Court:
I. Right to Equality (Article 14
II. Right to freedom (Article 19)
III. Right against Exploitation (Article 23 and 24)
IV. Right to Freedom of Religion (Article 25)
V. Right to Life (Article 21)
VI. Right to Constitutional Remedies (Article 32)

Article 51-A of the Constitution of India guarantees certain DUTIES to every

citizen of India. Article 51-A of the Indian constitution states that it shall be the
duty of every citizen of India
I. To respect the provisions of Constitution and respect the National Flag
and National Anthem:
II. To safeguard the sovereignty and integrity of India
III. To follow the noble ideals of national struggle
IV. To defend the country and contribute to national service when called
V. To preserve the national heritage of the country;
VI. To promote and maintain the harmony of brotherhood amongst people of
India.
VII. To protect the dignity of women
VIII. To protect the natural habitat and including forests, lakes, rivers, and
wildlife;
IX. To protect public property and to avoid violence;
X. To contribute to the development of the nation in all spheres.

CONCLUSION
The concept of rights and duties holds an important place in every legal system
of the world. Without the existence of rights and duties, the citizens have no
more than an animal existence. Legal protection is granted to ones rights and
duties to make them enforceable in the courts of law.

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