This article is written by Puneet Chhabra, here he discusses the concept of rights and duties.
What is Right?
In India, privilege has been given to every citizen to live with liberty. But these rights are enforceable only when another person has some act which he does want to do. Also, the citizens have the duty to protect the rights of another person living in society. Therefore, duty and rights go hand in hand with each other. When there is a breach of duty from one person, there is a breach of the right of another person. In this article, I would like to discuss the jurisprudence of rights and duty and their relationship with each other.
To understand the concept of rights let us understand what are the different definitions of rights that have been given by prominent jurists-
- John Austin – According to Austin, “A party has a right when another or others are bound or obliged by law to do or forbear towards or in regard to him”. Rudolf Von Jhering – Jhering defined rights as “legally protected interests”. The law does not protect all such interests. The interests of men conflict with one another and the law is the rule of justice and protects only certain interests.
- John Salmond – Salmond defines right as- an interest and it is protected by the law. To be interesting, it should not be merely recognized but it should be accepted by law.
- Holland – Legal rights were defined by Holland as the “capacity residing in one man of controlling, with the assent and assistance of the state and the actions of others.” He followed Austin’s definition
Supreme Court of India also interprets the definition of right in case of State of Rajasthan V Union of India[AIR (1977) SC 1361] as: “In the strict sense, legal rights are correlatives of legal duties and are defined as interests whom the law protects by imposing corresponding duties on others. But in a generic sense, the word ‘right’ is used to mean immunity from the legal power of another, immunity is an exemption from the power of another in the same way as liberty is an exemption from the right of another, Immunity, in short, is no subjection.”
Elements of a Legal Rights
According to Sir John Salmond, each legal right has 5 essential elements –
The Person of Inherence – Person of Inherence means the subject matter . in simple terms it means who the right is vested. There can be no right without a subject. The person of inherence not only includes an individual but also society at large.
The Person of Incidence – the person of Incidence is a person who is under a duty to obey the rights of another person. In general, it means if the person has committed the breach of his duty then the other has the right against him.
- Contents of the Right – Contents of Rights include that the person is under obligation to perform an act.
- The subject matter of Right – It is something to which the act or omission relates, that is the thing over which a right is exercised. This may be called the object or subject-matter of the right. Some writers, although argue that there are certain rights which have no objects.
- Title of the Right – Salmond has given the fifth element also, that is, “title”. He says that “every legal right has a title, that is to say, certain facts or events by us by which it was acquired from its former owner”
Kinds of Legal Rights
Rights guaranteed by the Indian Constitution
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. 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. Following rights are guaranteed by the Court.
- Right to Equality (Article 14)
- Right to freedom (Article 19)
- Right against Exploitation (Article 23 and 24)
- Right to Freedom of Religion(Article 25)
- Right to Life (Article 21)
- Right to Constitutional Remedies (Article 32)
Enforcement of Legal Rights
A legal right may be enforced through a Court of Law that has been established by the State. A legal right is generally enforced by awarding damages in civil cases. IF damages don’t suffice, the object itself may be restored. Specific performances may also be ordered by the court. Alternatively, the court may grant an injunction for the enforcement of a legal right. The law of injunction is mentioned in the Specific Relief Act, 1963. It is a prohibitive writ which restrains a party from doing an act that affects the plaintiff from enjoying his legal right
A duty is an obligatory act a person has to perform in favour of another person. If the person has breached his duty and infringed anyone right then he has to suffer consequences arisen from the breaching the right many prominent jurists also defined duty in the following manner
- Keaton – A duty is an act which should be enforced by the state in preserving the rights given to the people and also in order to protect the interest of the people.
- Salmond – A duty is an act which every citizen have obliged to perform, in furtherance of protecting the rights of the other people.
A duty is of two kinds – 1. Moral and 2. Legal
Classification of Duties
Duties are classified under the following categories –
Primary and Secondary Duties – A primary duty which is independent of any other duty and does not have to depend upon other duties. On the other hand secondary duty which is also known as a remedial duty which depends on other duties.
Positive and Negative Duties – Duties which is prescribed by Law is Positive Duty and which is prohibited by the Law is called the Negative duty.
Absolute and Relative Duties – Austin has classified duties into absolute and relative. Relative duties are that duty which is related to some right and absolute rights are those which does not relate with any right. Austin also given classify absolute rights –
- Self-regarding duties such as a duty not to commit suicide or not to consume drugs or liquor, etc.
- Duties towards society e.g. a duty not to commit a nuisance.
- Duties towards other than human beings such as duty towards God or animals, birds, etc.
- Duty towards the sovereign or the state.
Duties enriched under Indian Constitution
Article 51A 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”
- To respect the provisions of Constitution and respect the National Flag and National Anthem;
- To safeguard the sovereignty and integrity of India;
- To follow the noble ideals of national struggle
- To defend the country and contribute to national service when called
- To preserve the national heritage of the country ;
- To promote and maintain the harmony of brotherhood amongst people of India.
- To protect the dignity of women
- To protect the natural habitat and including forests, lakes, rivers, and wildlife;
- To protect public property and to avoid violence;
- To contribute to the development of the nation in all spheres.
A comparative study between Fundamental duties and Fundamental rights
Fundamental Rights and Fundamental Duties both emanate from the Constitution and the difference therein lies between the connotation of the terms ‘Rights’ and ‘Duties’
- A Fundamental right is guaranteed to all citizens and is enforceable by the law if any of the Fundamental rights of an individual is violated then the person has the right to move in the court. Therefore, an individual right to free speech, education, shelter et al are your fundamental rights – impregnable, untouchable and unfettered (subject to reasonable restraints in the interest of national security, public order, decency, morality, etc). Therefore, in the concept of rights, it can be said that they are legally recognizable.
- Fundamental duties, on the other hand, are not legally enforceable. It the duty of the states and individuals to perform their part of duty for the welfare of the society. So the duty to preserve your heritage, to respect national symbols, to keep your surroundings clean et al is a duty which one cannot have redress against in the Courts but in good faith is expected to follow to ensure a well-functioning society. Therefore, it can be said that the duty is moral in nature, they are no sanction if one does not perform their duty but if the rights are violated then the there are legal sanction of infringing one right of enjoying.
From the article, it has now clear that without right there is no duty and vice-versa. Though rights and duties are a totally different and independent concept. They are dependent on each other in some way or another.