Concept of Right

Introduction
Incidence of Right and Wrong:

Right is defined to be an interest, respect for which is a duty and disregard of

which is a wrong. It is an advantage, conferred upon a person by a rule of law and
which is protected by law and in case of violation by another, can be enforced
through a court of law. Every right has a remedy to maintain it. There is no right
without a remedy. This is expressed in the Latin term “Ubi jus ibi remedium”. A
wrong presupposes an existence of right of another person. A wrongful act means
an act which is contrary to law i.e. which violates some legal right vested in
another person. In this sense, in order to hold an act to be wrongful, such act must
be known to law as a legal wrong and only then one will have a remedy. Reference
may be made of the maxims of “Damnum sine injuria” and “Injuria sine damno”.
There are cases where a person has received actual injury but the law does not
count such an injury to be an actionable wrong as the same is not a legal injury.
Causing of damage however substantial to another is not actionable in law, unless
there is also a violation of a legal right of another. This is well illustrated in an old
celebrated case called Gloucester Grammar School case in England. The
Gloucester Grammar School started earning a handsome amount of income due to
opening of the grammar school, which attracted innumerable learners. Having
known about the profits that have been earned by the Gloucester Grammar School,
another similar school sprung up in the near vicinity thereby the Grammar School
had to reduce the amount of fees charged from the scholars. The result is that the
Gloucester Grammar School ran a heavy loss and reduced its earning solely
attributable to the school subsequently established. In an action by the Gloucester
Grammar School against the subsequent school, the court refused to grant any
injunction against the subsequent school. The reason of refusal was that, the
Gloucester School has no right to act monopoly in operating the school. In other
words, the injury which the Grammar School sustained actually due to the
competitive functioning of the subsequent school is one which the law does not
count, even though there was actual injury. This is a case of Damnum sine injuria.
The maxim was applied by the Andhra Pradesh High Court in India in P.
Seetharamayya Vs Mahalakshmamna AIR 1958 A.P. 103. In that case, four
defendants tried to ward off the flow of water into their plot from a stream by
digging a trench as well as putting up a bund on their land. The fifth defendant
also, acting independently, put up bunds on her land to prevent the flow of water,
to her land. As a result of which, the rain water started flowing to the plaintiff’s
land causing damage. The plaintiff applied for a mandatory injunction to direct the
defendants to demolish the bunds and fill-up the trench on the defendants’ lands
and for a permanent injunction to prevent them from making bunds and making
trenches and also claimed damages, for the loss caused due to the flow of water to
their land.

The High Court held that the owner of and on and near a river, has a right to
build fence upon their own ground to prevent damage to his ground by the
overflow of river, even though as a result of same, the overflowing water was
diverted to the neighbour’s land and caused damage. This is a clear case of
damnum sine injuria. The defendants act would not be counted as a legal wrong
and the plaintiffs have no right as against the defendants.

There may be cases where a person has not suffered any injury actually, but
the law considers that to be a legal injury which may result in case of infringement
of a right that has been conferred to a person, by a law. In another old but
celebrated case Ashby Vs White Holt C.J. held that “every injury imports a damage
even though it does not cost him a farthing”. A right is meaningless without a
remedy to maintain it. In that case, a Returning officer in a Parliamentary election
has prevented an elector from casting his vote. A suit was filed against the
Returning officer, for damages. Actually the person, for whom the elector desired
to vote, has won in the election irrespective of his vote. Therefore, the elector has
not suffered any loss but, the court held that right to vote is a guaranteed right by
law and violation of the same is actionable and as such awarded damages against
the Returning officer for violation of the right of an elector to cast vote. After
passing of the Representation of People Act, 1949 in England, such act is no more
a civil wrong. The legal recognition of such an act as a wrong involves punishment
by the physical force of the state, when such an act is done.

Characteristics of Legal Right: In order that an interest

should become the subject of a legal right, it must obtain not
merely legal protection, but also legal recognition. The interests
of the beasts are protected by law under The Wildlife Protection
Act, 1972. The Prevention of cruelty to Animals Act, 1960 made
cruelty to the animals, to be a punishable act. But beasts are not
for this reason possessed of legal rights. The duty of humanity so enforced is not
conceived by law, as a duty towards beasts but as an absolute duty. He who ill-
treats a pupil in a school violates a duty imposed upon him by the Right of the
Children to (free and compulsory) Education Act, 2009.
He has violated a right vested in the pupil. But he who ill-
treats a dog breaks no vinculum juries between him and
the dog for there is no legal bond or legal obligation
between them. A man’s interest may obtain legal protection against himself as
drunkenness or attempt to suicide is a crime under the Indian Penal Code, 1860,
but he has not for this reason a legal right against himself. The duty to refrain from
drunkenness is not conceived by law as a duty owing by a man to himself but, as
one owing by him to the community.

According to Salmond, every right has five characteristics –

1. It is vested in a person who may be distinguished as the owner of the right
i.e. the subject of it;
2. It is availed against a person upon whom lies the correlative duty. He may be
distinguished as the person bound;
3. It obliges the person bound to an act or omission, in favour of the person
entitled;
4. The act or omission relates to something which may be termed as the object;
and
5. Every right has a title, that a to say, certain facts or events by reason of
which, the right becomes vested in its owner.

Thus, if A buys a piece of land from B, A is the owner of the right so

acquired. The persons bound by the correlative duty are the persons in general as a
right of this kind is available against the whole world. The content of the right
consists in non-interference with the purchaser’s exclusive use of the land. The
subject matter of the right is the land. Finally, the title of the right is the
conveyance by which it was acquired from the former owner.

Having a right to one person is to imply that some other person is under a
corresponding duty to do or forbear from doing something. Therefore, right and
duty are correlative. Where there is a right of someone, there is a correlative duty
upon another. But, the reverse is not always correct. In every duty upon someone,
there may not be a corresponding right upon another, e.g. the Constitution of India
has cast duties upon every citizen to have compassion for living creatures under
Article 51-A. This duty is not in observance of a corresponding right of the living
creatures.

Every right therefore involves a threefold relation in which the owner of it

stands.

1. It is a right against some persons;

2. It is right to some act or omission of such person or persons; and
3. It is a right over or to something to which that act or omission relates.

The possible objects of right are many and various. A person may have a
right over material things. He may have his rights in respect of his own person i.e.
the right not to be physically injured or assaulted, in other words the right to safety.
He has a right of reputation i.e. a right not to be defamed. He has rights in respect
of domestic relations like the right of restitution of conjugal rights as against his
wife who has withdrawn from his society. One may have right over intangible
things e.g. patent-rights, copy rights, trade mark and commercial goodwill. There
may be rights which are created by contracts between a consumer and service
provider, physician and patient master and servant. Under Roman law, slavery was
in vogue and men themselves may be bought and sold and that a right can be
acquired over a slave just like over a chattel. In the present civilized legal systems,
the only right that can be acquired over human beings is a limited and temporary
right acquired by virtue of a contract of service.

Rights in wider sense of the term:

The rights mentioned above are legal rights in strict sense in which they
constitute the correlative of legal duties. These may be expressed as claims
effective between inter parties akin to the principle of privity of contract. But in the
wider use of the term, rights do not necessarily correspond with duties. In this
generic sense, a legal right may be defined as any advantage or benefit conferred
upon a person by a rule of law that could be illustrated in four distinct senses. They
are –

1. Duties prescribing as to how people ought or ought not to behave with

regard to others who are said to have correlative claim of rights;

2. Liberties or freedoms to act or not to act;

3. Powers to alter existing legal situations;
4. Immunities from having legal situations altered.

Ys duty with regard to X, is expressed by X as “you ought” (must) therefore,

X is then said to have a claim or right in strict sense. Xs freedom to do something
in relation to Y would be expressed by X as “I may” i.e. what I do for myself and
X has a liberty or privilege. Xs ability to alter Ys legal position would be expressed
by X as “I can” i.e. what I may do in relation to others and X is said to have a
power. Ys inability to alter the legal position of X is expressed by X as “You
cannot in other words, X has an immunity.

These four terms i.e. claim, liberty, power and immunity

concern legal relationship between persons and are termed
jural relation. They are all the species of rights. The use of the
term right to denote these separate species, will lead to
confusion, therefore it would be proper to appreciate the
distinctions of each terms. Sir Edward Coke
(1881-1968)
These distinctions are arrived at gradually. Hobbes criticised Sir
Edward Coke for failing to see the distinction between being
bound i.e. claim duty relation and being free i.e. liberty. In 1862
Windschid distinguished between claim and power. Thereafter
Thon in 1878 and Beirling in 1883 distinguished between claim,
liberty and power. In 1902, Salmond also distinguished between
these three and the corresponding ideas of duty, disability and Bernhard windschid
(1817-1892)
liability. Finally in 1913, Hohfeld and American Jurist,
rearranged and completed the scheme of Salmond by adding the fourth term,
immunity, and worked out a table of jural relations logically.

Hohfeldian Scheme of JuralRelations :

Hohfeld has set out his table of jural relation as follows:

Claim-duty relation:

A claim is simply a sign that same person ought to behave in a certain way.
Every claim implies the existence of a correlative duty since it has no content apart
from the duty. Whether every duty implies a correlative claim, it may not always
be. Austin observed that some duties have no correlative claim which he called
absolute duty. Duties in criminal law are imposed with reference to and for the
benefit of members of the society, none of whom has a correlative claim to these
duties.

Liberty – no-claim relation:

Salmond has stated that just as my legal rights (the

strict sense) are the benefits which derive from legal duties
imposed upon other persons, so my legal liberties are of
benefits which I derive from the absence of legal duties
imposed upon myself. Liberty is the sphere of the activities
of a person where the law is content to leave him alone. The

term right is often used in a wide sense to include such Sir John Salmond
(1881-1968)
liberty i.e. what I may do for myself. The interest of
unrestricted activity which is allowed by the law, constitute a class of legal right,
clearly distinguishable from the other class. A legal liberty is a legal right not be
interfered with by other persons in exercise of his activities.

A correlative of A’s liberty to do a thing is B’s no-

right that it shall be done. No-right is a manufactured
word invented by Hohfeld indicating the absence of right
against another in some particular aspect. A has a liberty
against B is simply another way of saying that A is not

under a duty towards B. All cases of Damnum sine Wesley Newcomb Hohfeld
(1879-1918)
injuria, are cases of no-right.
Power-liability relation:

Power is what a person can do in relation to others and expresses as “I can”.

Examples are right to make a will, to alienate property, the power of sale vested in
a mortgage, landlord’s right of re-entry and various other powers vested to judges
and other officials, for the due fulfilment of their functions.

The correlative of power is liability. It is the position of the person whose

legal rights may be altered by exercise of a power e.g. the liability of a tenant to
have his lease determined by re-entry. Another example is an accused being
sentenced to imprisonment by a magistrate after conviction. The term liability is
always used when some hardships occur upon a person when a person has been
exercised upon him. But, in the sense as discussed here, liability may occur to have
an advantageous position. Thus a person has a power to make a gift of his property,
hence the other person being the donee has a liability to have it when a power of
making a gift is exercised upon him. This liability is beneficial and not detrimental.

Immunity-disability relation:

A power is ability to change the legal relation of another, and immunity is an

exemption from having a given legal relation changed by another. Immunity is thus
exemption from the power of another. Immunity in short is no-liability.

The correlative of immunity is disability or no-power, Disability is simply

the absence of power.

These four classes of rights may well be distinguished. A right in the narrow
sense is that which other persons ought to do on my behalf. A liberty is that which
I may do innocently. A power is what I can do effectively. An immunity is that
which other persons cannot do effectively in respect of me. Holhfeld sets out his
table of jural relations in two sets i.e. jural correlatives and jural opposites. Jural
correlative implies that the presence in one person is the presence in other person
of the correlatives. In the jural opposites, presence of the same in one person
implies the absence of its opposite.

Professor William’s Scheme of Jural contradictions:

Professor G.L. Williams also presented the possibility to set out a third set of
jural relations not mentioned by Hohfeld i.e. jural contradictories. Below is the said
table:

Horizontal arrows read both the ways. A claim in X implies the absence of
liberty in Y and vice versa. Thus a duty in X implies the absence of no-claim in Y
and vice versa.

DIFFERENT KINDS OF LEGAL RIGHTS :

Salmond has pointed out different kinds of legal rights such as prefect and
imperfect right; positive and negative right; Right in rem and right in personam;
proprietary and personal rights; Right in repropria and right in re alina; Principal
and accessary right; Primary and Sanctioning right; Legal and Equitable rights; and
vested and contingent right. These distinguishing features in each kind of right are
discussed as hereunder:
 1. Perfect and imperfect rights – A perfect right is the one which
corresponds to a perfect duty. A perfect duty is the one which is not merely
recognised by law but can be enforced. A duty is enforceable when an action will
lie for breach of it. As for an example in India, if a citizen has been given a right
with a corresponding duty upon an official, such duty may be enforced by a writ of
Mandamus that can be issued by a High Court.

As regards an imperfect right, a glaring example is claims barred by the law

of limitation. In such a case, duties and correlative rights are imperfect. The law of
limitation does not say that the right to enforce a debt when becomes barred
becomes extinct, but the only thing is, no action shall lie for its recovery.

2. Positive and negative rights – A positive right corresponds to a positive

duty and is a right that on whom the duty lies, shall do some positive act, on behalf
of the person entitled. A negative right corresponds to a negative duty and is a right
that the person bound shall refrain from some act which would operate to the
prejudice of the person entitled. The former is a right to be positively benefited but
the later is merely a right not be harmed.

3. Rights in rem and rights in personam – A right in rem corresponds to a

duty imposed upon persons generally, a right in personam corresponds to a duty
imposed upon determinate individuals. A right in rem is available against the
whole world at large and a right in personam is available against particular
persons. The right of a person in respect of peaceable enjoyment of his homestead
land is right in rem as for all the world is under a duty towards him not to interfere
with it. But, if the person grants a lease of his homestead land, his right to receive
rent from the tenant is a right in personam for it avails against the tenant and to no
others.
4. Proprietary and Personal Rights – Proprietary rights are the rights of a
person like owning lands, chattels, share in a company and like which could be
counted for value. A man’s personal rights are those which do not weigh in terms
of money like the status of a wife or a husband or a father or a mother, the rights
which pertains to status. Salmond has given the example like the duty of fulfilling
a contract for the purchase of goods is proprietary but the duty to fulfilling a
contract to marry is personal.

5. Rights in re propria and right in re aliena – The rights in re aliena can be

termed as encumbrances. An encumbrance is one which limits or derogates from
some more general right belonging to some other person in respect of the same
subject matter. All others are right in re propria. Thus, the right of a landowner
may be subject to and limited by, that of a tenant to temporary use of the property.
A right subject to an encumbrance may be conveniently designated as servant,
while the encumbrance which derogates from it may be contrasted as dominant.
Within a framework of law that permits sub-lease by a tenant, a tenant may grant a
lease of his lease upon a sub lessee which is another right of the same quality. The
right of a tenant in such a case is dominant with regard to that of the land owner,
but servant with regard to that of the sub lessee.

6. Principal and accessory Rights – Every right is capable of being affected

to any extent by the existence of other rights and the influence thus exercised by
one upon another is either adverse of beneficial. It is adverse when one right is
limited or qualified by another, vested in a different owner. The rent and covenants
of a lease is accessory to the landlord’s ownership of the property.
7. Primary and Sanctioning Rights - A sanctioning right is the one which
arises out of the violation of another right, all others are primary. Thus, the right of
a person not to be defamed or assaulted is primary, but the right of that person to
obtain pecuniary compensation from one who has defamed him, is sanctioning
right. The right of fulfilment of a contract made with someone is primary but the
right to damages for breach of it is sanctioning.

8. Legal and Equitable rights – In England, there

were formerly two systems of law administered in the
common law and was administered in the court of
chancery. Legal rights are those which are recognised
and administered by the courts of common law and
equitable rights are otherwise called equities, which The court of chancery

were recognised solely by the court of chancery. By the Judicature Act of 1973,
law and equity are merged, but the distinction exists even to-day. The old maxim
still holds good that “where there are equal equities, the law shall prevail”.

9. Vested and contingent rights – A right is vested when all facts have
occurred which must by law occur in order for the person in question to have the
right. A right is contingent when the same will vest with a person on the happening
or non-happening of an event. A vested right is a right complete, but a contingent
right is a right incomplete and will become complete only on the happening or
non-happening of an event.

The Hohfeldian analysis of legal rights is very useful in the analysis of rights
conferred by the laws as well as by the Constitution such as Fundamental rights,
Rights of Consumers, Right to Information, Women’s right, Prisoners’ rights,
Animals’ rights Worker’s right so on and so forth. All these rights are conferred by
laws passed by the lawmakers e.g. the six rights of the consumers conferred by the
Consumer Protection Act, 1986 in India. Those are the right to safety; the right of
choice, the right to be informed; the right to be heard, the right of redressal; and the
right of consumer education. These rights are conferred to the consumers and the
dealers and the service providers are under a duty to respect those rights and for
violation of which entail the consequence of payment of compensation to the
consumer for the loss caused due to their negligence. Another example may be
cited is the Right to Information Act, 2005 in India. Four rights have been
conferred on the citizens to secure information's which are lying in the Public
authorities which included the right to inspection of work, documents and records;
the right to take notes, extracts and certified copies of records and documents; the
right to take sample of materials; and obtaining copies in the form of diskettes,
floppies, tapes etc. of the information stored in electronic devices. The Public
Information Authorities are under a duty to furnish the information and violation of
the right of the citizen entails penal consequences as well as compensations.

Rights are conferred by the Constitution also. A Constitution is necessitated

when a country desires to have a fresh start and Constitution should contain a
minimum and minimum is rule of law. The Constitution of India guarantees a
bundle of basic rights in its part III called the chapter on fundamental rights. A
citizen and in appropriate cases a person can move directly to the Supreme Court
of India, in case of violation of any of the rights conferred there, by the state
action. A necessity to enact laws to confer rights upon individuals will arise in
order to regulate certain dos and don’ts in relation to one and another. A lone
inhabitant in an island like the story of Robinson Crusoe of Daniel Defoe will not
require any regulation of rights and duties as there is no necessity. He can do and
not do anything and everything he wishes. But, when there are any two individuals,
a law or rule will be necessary to lie down as to what one can do and what cannot
in relation to each other.

Conclusion:
Since the 17th century and if not earlier, people started thinking that man has
certain inviolable and basic right that the states are under a duty to protect and
recognise them. The Universal Declaration of Human Rights, 1948 declares that all
human beings are born free, equal with dignity and rights. Everyone has the right
to recognise as a person before law. The definition of person in legal theory,
reminds us that a person is anybody who is capable of rights and duties and nobody
not so capable is a person, even though a human being. In Roman law slaves are
not treated as a person, even though a human being because, they were not entitled
to exercise any right and had only to obey the command of their masters and
observe duties only. Those days are gone-by, as today the universal human right
has promulgated that all human beings are equal. The right to equality before law
and equal protection of laws within a territory carries with it the correlative
negative duty to the states not to deny the same to its subject. Observance of duties
is equally important just as conferment of right. In India, certain human duties are
expressed in different religious books and Dharma Shastras. Two years before the
coming into force of the Constitution of India, the Universal Declaration of Human
Rights was declared on the 10th of December 1948.

The Universal Declaration of Human Rights, is a code of human right,

but a specific provision has been enacted in Article 29 which is solely a mandate of
observance of duties. This exemplifies the jurisprudential maxim, “Rights and
duties are correlative”. It may also be appreciated that all guaranteed rights and
freedoms are to be exercised subject to such limitations and obligations which are
to be determined by enacted laws of the states concerned. As for India, it was only
by the 42nd Amendment of the Constitution in 1976 that a chapter on fundamental
duties has been inserted for observance by its citizens.

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