MEANING AND NATURE OF RIGHT
INTRODUCTION :
What do the term right denotes, is within the scope of the study of
jurisprudence which aims to define what is law, not the law of one country, but the
general notion of law itself. We find numerous laws and the constitutions create
positive and negative rights putting liabilities and imposing duties. There is also
much talked about different species of right like the right to life and personal
liberty; the right of the consumers; women’s right; right of the workmen and
artisans, right of children, right to education, right of the backward classes of
citizens; right to information of the citizens, right of the tillers of the soil so on and
so forth. But, it is at the root of the problem to ascertain the
meaning and nature of right. It is just like giving a picture of a
flower. There are different species of flowers like the rose,
freesia, daisy, sunflower etc. They are all the species of
flower. But that is not the answer to the question “give a
picture of flower”, meaning thereby that what are the
qualities, components and nature that are required in giving a
picture of flower of which rose is only a specie. Likewise, the
question is what are the requirements to define what a right is,
of which right to life is only an example. The Constitution of
India, 1950 enacted at Article 13 that laws inconsistent with
or in derogation of the fundamental rights, are void. Law is The Constitution of India
defined to include any ordinance, order, bye-law, rules,
regulation, notification, custom or usage. Any such law, if it is inconsistent with
any of the fundament rights, is void. The constitution does not define what a right
is but, it merely provided that a law that is passed in derogation of any of the
fundamental rights, shall be void.
The Protection of Human Rights Act, 1993 in India, defined the meaning
of Human Right which covers some of the rights relating to life, liberty, equality,
dignity of individuals guaranteed by the Constitution of India or that are embodied
in the International covenant on Civil and Political Rights and International
covenant on Economic social and cultural Rights which are adopted by the General
Assembly of the United Nations on the 16th December, 1966 and enforceable by
the Courts in India.
A jurisprudential inquiry would reveal that the term right is an advantage
conferred by law for exercise, observance and enjoyment by the human beings. It
may be defined as an interest, respect for which is a duty and disregard of which is
a wrong. The term right could be employed in four distinct senses viz.; claim,
liberty, power and immunity. A claim is a right that is conferred and created in
between two persons that is created by means of a contract and the right is
applicable in between them with a correlative duty as to how the other side ought
or ought not to behave to the former. A liberty is also called privilege which covers
those areas of human where I may do for myself without interference by anybody.
The term power is also a right which extends to the area where I can do in relation
to others and by exercise of it; I can change the legal relation of others. Immunity
is the area of exemption from the operation of the ordinary law and expressed as,
you cannot.
All the species of rights are conferred by law in the form of certain
advantages, dos don’ts, actions or omissions and those are backed by ensuing
consequences for commissions and omissions. Therefore, it is imperative to
ascertain the meaning and nature of rights, in the legal theory.
Origin of Right: The Juristic views :
Individuals are the social units and pre-existed both laws and society. The
oldest known acts of human beings are observance of duties, because there was no
necessity of conferment of some rights. Referring to the views of
jurists and philosophers, we find the absence of any conferment
of right. According to the natural law philosophers like John
Locke, men lived in a state of nature which, is a state of
complete liberty. They had all the rights which a human being is
supposed to possess. The only difficulty was that their life,
liberty and estate were in jeopardy as there was no law to protect
them, there was no judge to administer justice and there was no
authority to guarantee their enjoyment of property. And
consequently the desire of the human beings to seek a society John Locke (1639-1704)
became manifested and men surrendered all their rights except
their life, liberty and estate, to a sovereign who ruled over them by the mandate of
natural law. Thus, regulation and conferment of right, took place in pursuance of a
social contract and the state of liberty has been taken over by a politically
organised society.
The view of Karl Marx (1818-1883) and Friedrich
Engels (1820-1895) indicated that the primitive tribal society was
a state of perfect equality. The society contained no antithesis
within itself as long as there was equal distribution of
commodities. There was no necessity of passing laws to regulate
the lives of the people as the people lived under a system and
principles of “From each according to his ability, to each
Karl Marx (1818-1883)
according to his needs”. But, due to selfishness or greed, distribution became
unequal and the society is split into two classes as capital and labour. Gradually,
the primitive tribal society is taken over by a state that came into existence.
There was unequal distribution of commodities and class distribution developed.
Law came into existence to keep the mass in subjugation and to
protect selfish interest. In the proletarian dictatorship, law will
continued to be used as the instrument by which working class
people who are the majority can crush and eliminate the
capitalist minority.
Therefore, the question of creation of right came into
being at a certain time of a community, when the necessity to
regulate the lives of the people became indispensable due to
necessity. Friedrich Engels
(1820-1895)
The importance of ascertaining the meaning of right is
felt in defining a person in legal theory. A person is defined to be any body capable
of rights and duties. No body not so capable is a person, even though a human
being. Under Roman law slaves are not treated as a person solely on the
consideration that they do not own any right to exercise and have only duties.
Leon Duguit stated that what are commonly called rights are
only incidental to the relation with other people which arise in
the course of performing one’s social duty.
Ihering asserted that there are numerous conflicting interests
which exist in the life of the community itself and the state
only chooses out of them such of the interests as it will protect
Leon Duguit (1859-1928) by means of legislation.
Justice Holmes defines right to be a permission to exercise
natural powers and upon certain conditions to obtain protection,
restitution or compensation, by aid of public force.
From the above views, it may be deduced that enforceability by
legal process is said to be a necessary condition of a right.
Rights are certain advantages which are enforceable in a forum,
in case such right is infringed by another’s
action. This is also expressed in the maxim
ubi jus ibiremedium i.e. there is no right
Rudolf Von Ihering(1818-
1892)
without a remedy. That was well illustrated
in a very old and celebrated case entitled. Ashby vs. White in
which Holt Chief Justice held that, every legal injury imports a
JusticeJohn Holmes (1841-
1935)
damage ,even though it does not cost him a farthing. A right is meaningless
without a remedy to maintain it.
Although enforceability by legal process, is said to be a necessary
condition of right, yet there are some qualifications to it as law always does not
enforce the invaded right in every case. To cite some examples are ―
Some cases of non-enforceable Right:
In a case of breach of a contract of marriage between a man and woman,
enforcement of the contract to make specific performance of the contract may not
be granted by the Court to enforce the right created by the contract. The Court
cannot enforce such a contract as enforcement would be in opposition to the law,
for the Court cannot cause a second marriage by enforcement of the contract which
will amount to beginning as the man has celebrated a marriage with another
woman. Compensation may be granted for breach of contract but not a specific
performance of the contract.
In numerous cases of causing of death there may occur violation of right
of life guaranteed by the constitution. The Court cannot enforce the right by giving
life to the victims. In such cases awarding compensation will be an alternative
remedy but not to enforce right to life. Some illustrative cases decided by the
Courts in India may be cited.
Case No. I : In Sebastian Hongray vs. Union of India, AIR 1984 SC
1026, the army raided in the locality of Ukhrul District of Manipur and all the
male persons of the locality were made to stand on the ground. Out of the
gathering, two persons were singled out and were taken to Phungrei camp and
thereafter they have not returned home. A Writ Petition of
Habeas Corpus was filed before the Supreme Court on their
behalf for deprivation of their right to life not in accordance to
the procedure established by law. The Respondent could not
produce them by saying that they were released after doing
some interrogation. The Supreme Court held that it was a case
of causing unnatural death and deprivation of right to life and as
the Court cannot give their life, compensation was awarded of
Rupees One Lakh each to their wives as an alternative remedy The Supreme Court
for violation of right.
It has become the recognized principle in both civil and criminal
jurisprudence to make answerable any person or authority who infringes the right
of other individual. A visible phenomena is, numerous cases on the part of the
government to invade the guaranteed right of the citizens, in the guise of
maintaining law and order or prevention of crime etc. Article 9(5) of the
International Covenant on Civil and Political Rights, 1966 laid down that “anyone
who has been the victim of unlawful arrest or detention, shall have an enforceable
right of compensation”. Keeping in tune with the provision an illustrative case may
be cited.
Case No. II : In Potsangbam Ningol Thockchom Vs. G.O.C., Imphal
AIR 1997 SC 3534, the army personnel acting in aid of civil power operating at
Imphal city, arrested two young persons and took them to their camp. They have
not returned home since then. On an action on behalf of them by their mothers, the
Supreme Court of India held that, that was a case of causing unnatural death in
violation of the procedure established by law. A compensation of Rs. 1.5 lakh each
to the two mothers were granted for causing deprivation of the lives of their sons
without due process of law. The Court declared that award of compensation in a
proceeding of writ, is a public law remedy based on the concept of strict liability
for invasion of fundamental rights.
The High Courts in India also entertained cases of similar nature which
illustrated that in case a right which is invaded is such that it cannot be enforced,
granting of compensation was resorted to as an alternating remedy. This is well
illustrated in the case decided by the Gauhati High Court, Imphal Bench in
Aheibam Ongbi Leihao Devi Vs.State of Manipur AIR 1999 Gauhati 9. In the case
a Taxi Driver in course of his professional duty, was caused death by the 5th Bn.
Manipur Rifle posted at a place called Iroisemba. The answer given on behalf of
the Respondent was that the Taxi Driver did not stop at the command of halt, by
the armed personnel. The armed personnel fired 31 rounds of .303 Rifle and 52
rounds of .0303 CTN during the incident, altogether 83 rounds of .303
ammunitions had been fired indiscriminately. The court held that it is shocking
incident to the right thinking members of the society. The court held that it is not
killing simplicitor but amounted to violation of human right. It is the only
practicable mode of redress available for the contravention of right made by the
State forces, in purported exercise of their powers depriving the life of the citizen,
that award of monetary compensation, is justified. A sum of 1.5 lakh has been
granted as compensation to the widow, by holding that no treasure on earth would
be a suitable substitute for life and awarding compensation is the only alternative
means of redressal.
These are some of the cases that arose in the state of Manipur in India
which illustrate that in case a right cannot be enforced which is deprived and the
law cannot give life, granting of compensation is a proper remedy. Therefore, the
element of enforceability is a necessary element of right; law does not enforce in
certain cases and grant alternative remedy of compensation.
Cases of right granted but non-enforceable:
Under certain systems like India, guaranteed rights may still remain
intact but, its enforcement part is suspended during a proclamation of emergency,
the freedoms guaranteed to the citizens known as six freedoms are automatically
suspended. Further, the President may by order suspend the right to move any
court for enforcement of such of the rights conferred as the fundamental rights. A
decided case will illustrate the position. The case is a celebrated one known as
ADM Jabalpur Vs. S. Sukla, AIR 1976 SC 1207. The Supreme Court held that
any claim to writ of habeaus corpus to challenge detention on any ground,
amounts to enforcement of the right of personal liberty under the constitution, the
enforcement of which has been suspended by the Presidential order of 1975. It has
been emphasized that the suspension of the right to life and personal liberty did not
affect the general rule that the executive could not detain a person otherwise them
under a law, but nevertheless it is maintained that the Presidential order barred the
right to move the Court for enforcement of right to life, so long as the ban is not
lifted.
Non- enforceable Rights:
There are certain imperfect rights like a debt which is time bared. Such
rights are recognized only partially and cannot be realized through the machinery
of the courts. In India, the example of Section 3 of the Limitation Act, 1963, may
be cited. The Section mandates that every suit instituted, appeal preferred, and
application made after the prescribed period shall be dismissed. A time bared debt
with reference to the Law of Limitation is that, limitation bars remedy, but does
not destroy the right. Since the right exists, if the debtor pays the debt to the
creditor which has already become time barred, to the creditor, the later gets a
good title to retain the money and the debtor cannot claim back the amount which
he paid, on the ground that the debt is time barred.
Certain rights are such that, they do exist, but the Courts of justice do not
have adequate means to enforce them e.g. the rights that are declared in
International Law which is not yet incorporated into the municipal law of a
country. An example is the right to basic needs. This right is one of the declared
rights of the consumers declared by the International Organisation of Consumer
Union. Even if the right has been declared for the consumers in general, a
consumer will find difficulty in enforcement of such right easily in case of invasion
as the courts of justice would require incorporation of such a right in a law made
by the legislature of the land defining the meaning, extent, scope and limitation of
such right.
Conclusion:
In appreciating the meaning and nature of right, the view of the Jurist like
Ihering may be quoted. He asserted that there are numerous conflicting interests
which exist in the life of the community itself and the state only chooses out of
them such interests as it will protect by means of legislation. A Constitution
becomes necessary when a country wants to have a fresh start. The constitution
must contain the most minimum and that minimum is Rule of Law. The contents of
the constitution differ from constitution to constitution depending upon the policy
that is adopted by the concerned country. For example, India is a sovereign,
socialist, secular democratic republic. Unlike capitalism, socialism is based on
public ownership of the means of production. In other words, all factories and
banks are owned by the nation as a whole and not by private citizens. Article 39 of
the Constitution contains the provisions of socialistic pattern of society directing
the states to direct its policy towards the following :
1. Citizen's adequate right to livelihood;
2. Ownership and material resources of the community to be distributed
to serve common good;
3. The operation of economic system not to result in concentration of
wealth;
4. There is equal pay for equal work for both men and women;
5. Health and strength of the workers and tender age of the children
are not abused and let them live free from the drudgery of forced
labour;
6. Children are given facilities to develop in a healthy manner and in
the conditions of freedom and dignity and childhood and youth are
protected against exploitation and against moral and material
abandonment.
The degree of progressiveness of a society can be judged by the position
of the women in it. In a socialist society, the equality of women is among the basic
human rights. The progressive democratic forces throughout the world are
increasingly recognising the necessity of bringing about changes in the social role
and living conditions of women and of studying and improving their position in
society. The first step in the direction is affirmation of women’s equality in
constitutions and legislations.
Referring to the Constitution of India, besides making fundamental rights
especially for women like no discrimination on the ground of sex and equality of
the opportunity in the matters of public opinion, there is thirty three percent
reservation in the farming local authorities and panchayats. There is another
aspects of giving maternity benefits. The states are not prevented from making
special provision for women and children. Since right and duties are correlative, it
is a fundamental duty of every citizen to renounce practices derogation to the
dignity of women.
The general notion of the term right in the jurisprudential sense is
employed in different areas of human life by the state in accordance with the
policy adopted by it. There exists conflicting interests in the life of the community
itself and the state only chooses out of them such interests as it will protect by
means of legislation.
During the time of Laissez faire era, laws were concerned with only
limited areas of human life like crime and police, defence, land revenue and
administration of justice. But gradually the society moves from individualism
towards collectivism and also adoption of welfare state policy, every footstep of
the human beings became regulated by law and the rights and interests to be
protected became multifarious covering numerous areas of human life like rights of
HIV – AIDS persons; indigenous peoples’ rights; humanitarian laws; right of the
child in armed conflict, right of the people in the disturbed areas, right to life of the
child in women, right of woman against domestic violence, right to medical
termination of pregnancy, right to education, right of consumer protection, right to
information so on and so forth.
Appreciation of the meaning and nature of right becomes all the more
relevant and important than ever before as the inquiry is not the extent and
limitation of right in a country but the general notion of the term right which is
explained as an interest, respect for which is a duty and disregard of which is a
wrong.
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