“RIGHTS S TRICTO S ENSU : A CHANGING DOMAIN OF L AW ”

Submitted by:

Samar Pratap Singh, B.A. L.L.B (Hons.)(1368)

Submitted to:

Dr. Manoranjan Kumar,

Faculty of Jurisprudence

(This final draft is submitted in the partial fulfilment in Jurisprudence for the
completion of B.A. L.L.B course.)

April, 2018

Chanakya National Law University, Patna

 R IGHTS S TRICTO S ENSU : A C HANGING D OMAIN O F L AW

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................................ 2

DECLARATION BY THE CANDIDATE ...................................................................................... 3

ACKNOWLEDGEMENT ............................................................................................................ 4

I. RIGHTS STRICTO SENSU: A CHANGING DOMAIN OF LAW .......................................... 5

AIMS AND OBJECTIVE ................................................................................................... 7

RESEARCH QUESTIONS .................................................................................................. 7

RESEARCH METHODOLOGY ........................................................................................... 7

II. RIGHTS: DIFFERENT LENSES ................................................................................... 8

III. FUNDAMENTAL RIGHTS : WHETHER RIGHTS STRICTO SENSU ............................... 10

IV. CONCLUSION ......................................................................................................... 13

BIBLIOGRAPHY .................................................................................................................... 14

ONLINE JOURNAL......................................................................................................... 14

BOOKS : ....................................................................................................................... 14

BARE ACTS .................................................................................................................. 14

CASES .......................................................................................................................... 14

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DECLARATION BY THE CANDIDATE

I, hereby, declare that the work reported in the B.A. L.L.B (Hons.) Project Report titled
“RIGHTS STRICTO SENSU: A CHANGING DOMAIN OF LAW ” submitted at
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA is an authentic record of my
work carried out under the supervision of Dr. Manoranjan Kumar. I have not submitted
this work elsewhere for any other degree or diploma. I am fully responsible for the contents
of my Project Report.

(Signature of the Candidate)

Samar Pratap Singh (1368)

B.A. L.L.B., 3rd year

SEMESTER -6th

CNLU, Patna

Dated :

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 R IGHTS S TRICTO S ENSU : A C HANGING D OMAIN O F L AW

ACKNOWLEDGEMENT
I would like to show my gratitude towards my guide Dr. Manoranjan Kumar, Faculty of
Jurisprudence, under whose guidance, I structured my project.

I owe the present accomplishment of my project to our CNLU librarians, who helped me
immensely with materials throughout the project and without whom I couldn’t have
completed it in the present way.

I would also like to extend my gratitude to my friends and all those unseen hands that helped
me out at every stage of my project.

THANK YOU,

SAMAR PRATAP SINGH

SEMESTER -6th

CNLU, PATNA

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I. RIGHTS STRICTO SENSU: A CHANGING DOMAIN OF LAW

Starting with the meaning of the expression “RIGHTS STRICTO SENSU”, we will try to
understand the concept in its true sense. There is a commentary by Salmond1 on rights where
he talks about the rights in its strict sense.

Further, A classification of rights and their interrelationship with other jurisprudential

concepts can be found in Hohfeld's analysis, according to which rights are grouped under
four categories as shown below:2
Opposites Right Privilege Power Immunity
No-right Duty Disability Liability
Correlatives Right Privilege Power Immunity
Duty No-right Liability Disability

In a sense, the above analysis can be considered as a maiden attempt to unfold the true
meaning of 'right', and the starting point for a deeper analysis. According to Feinberg, a right
is something, which a man can stand on, something that can be demanded or insisted upon
without embarrassment or shame.3 Salmond observes that, to ascribe a right to one person
is to imply that some other person is under a corresponding duty. The master has a right
against his servant, the parent against the child and so on. The term 'right' is also used in a
wider sense. To say that a man has a right to something is roughly to say that it is right for
him to obtain it. This may entail that others ought not to prevent him from getting it. Rights
are either moral or legal. A moral or natural right is an interest recognised and protected by
a rule of morality--an interest, the violation of which would be a moral wrong and, the
respect for which is a moral duty. A legal right, on the other hand, is an interest recognised
and protected by a rule of law--an interest, the violation of which would be a legal wrong
done to him whose interest it is, and respect for which is a legal duty.4 Professor Hart
explains 'legal right'.

The definitions in the books are unchanged and still being taught and practised.

1
Fitzgerald, P.J., Salmond on Jurisprudence, ed. 12 th, chapter 2, Universal Law Pub Co.P.Ltd.-Delhi, Pg. 88.
2
Wn Hohfeld, Fundamental Legal Conceptions as Applied In Judicial Reasoning, Cook (Ed), Yale University
Press, 1923, Chapter 1 (Cited In Lloyd's Introduction To Jurisprudence, Mda Freeman (Ed), Sixth Edn, Sweet
& Maxwell, P 494).
3
G Feinberg, 'Duties, Rights And Claims', American Philisophical Quarterly, 1966, No 3, P 37. (Cited In E M
Rao: Industrial Jurisprudence - A Critical Commentary, 2nd Ed., 2015,Chapter 4, Rights, General Classification
Of Rights).
4
Salmond On Jurisprudence, Pj Fitzgerald (Ed), Twelfth Edn, Tripathi, 1988, Pp 217-8.

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But and a big “but” still remains. Does jurisprudential definition of Rights is sufficient
without seeking and analysing its application to modern world scenario. Whether it is a
subject only for elite scholars and jurists deliberation and thinking? Whether the schools of
jurisprudence have limited and became static in concept? Whether all the dimensions of
jurisprudence have been discovered and no further work is required on it?

After conducting a thorough research on this point, it is totally visible that the jurisprudence
of Rights is always changing. From the beginning of society and social sciences, there
existed various jurisprudential views relating to rights in different forms. The rights have
been understood in many sense in order to protect other rights by bringing them in to the
ambit of rights but we need to understand it in strict sense and our subject matter is Rights
In Strict Sense And Not In Wider Sense.

If we go by Salmond, he said that a perfect right is one which corresponds to a perfect duty
and a perfect duty is one which is not merely recognized by law but also enforced by law.
In a fully developed legal system, there are rights and duties which though recognized by
law are not perfect in nature. The rights and duties are important but no action is taken for
enforcing these rights and duties. The rights form a good ground for defence but duties do
not form a good ground for action. However, in some cases, an imperfect right is sufficient
to enforce equity.5

The works of Salmond were criticised by the whole jurist community on limiting the scope
of rights.6 There is no unanimous opinion regarding the definition of Rights. Different
authorities attribute diverse meanings and differing premises to law and that causes
differences of opinions with respect to the exact limits of the field covered by rights. Right
has been defined as to cover moral as well as religious precepts and that has created
confusion. It was said that the right was limited to the rights conferred by law and protected
interest and everything else fall outside the province of rights. But it has one more face which
is unexplored. Consequently, the dimension of right is not limited to interest protected by
law only but which interests it wants to protect too. It means the majority of the jurists and
the thinkers at all point of time were concentrating upon the point —interest protected by
law and something else is also the part of domain of rights and no one saw that there is one
more component to decide the domain of rights — intention of regime to protect which right.

5
Ibid.
6
Supra note 2 at p 504.

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Now, the question arises then what is the ground for saying so. The research work is aimed
at finding the answer to the question mentioned and many other questions.

AIMS AND OBJECTIVE

The researcher wants to find out:

1. The exact nature of Rights in strict sense.

2. The new determining factor for deciding the domain of rights in strict sense.
3. The nature of interest which are protected by rights changes due to which factors.

RESEARCH QUESTIONS
1. What is the meaning of rights in strict sense?
2. What are the determining factors of domain of rights in strict sense?
3. What is the reason for the altering of the domain of rights stricto sensu?

RESEARCH METHODOLOGY
The research work is totally doctrinal method. It includes both primary as well as secondary
sources. The researcher referred to the original texts of the writers as well as the commentary
prepared by subsequent scholars as well as the criticism written by jurists.

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II. RIGHTS: DIFFERENT LENSES

“A legal duty sometimes is defined as that which a person legally is
bound to accomplish and the sanction is spoken of as a distinct thing,-
the "enforcement" or "recognition" of the duty. The "that which" of
course must be a certain sort of con- duct, results, or events. Conduct,
results, or events considered abstractly and independently, however, do
not constitute a legal duty. The connotation of the sanction is essential to
the correct application of the term. Therefore, properly, we have not
legal duty and sanction but legal duty including as an essential element
the potentiality of the sanctioning governmental action. Furthermore,
although our comprehension of these elements is abstract, general, and
fragmentary, when they occur they will be concrete facts and we should
prepare ourselves in any given case to analyze the duty in all its relevant
details with definiteness and care, and not to be satisfied with cursory,
superficial generalities.
A legal right sometimes is defined as an interest recognized or protected
by the law or by a rule of law; or as a capacity in a person to produce
legal effects; or in some similarly vague manner. The trouble with such
definitions is that they do not define. They may suffice as figurative
relaxations in expression for one who has clearly in mind the external
facts and possibilities referred to by a technical use of our terms, but if
clearness of indication is demanded, we must have answers to the
questions:-What exactly is meant by an interest? What exactly is the
nature of the protection? How does the ephemeral rule of law work its
magic? What exactly is the nature of this mysterious capacity with which
a person may be endowed by the law? What is meant by legal effects in
this connection and how does the capacity produce them? When these
questions have been answered satisfactorily, we shall see that the
"definitions" are highly figurative and really are soporific and not
enlightening to enquiry,-in short that as definitions they are extremely
vague and useless. It is unfortunately characteristic of theoretical
jurisprudence that it frequently dodges difficulties by raising new and
barren ones of critical interpretation.”7
The writer Mr. Joseph while talking about the rights in strict sense as propounded by
Salmond talked and raised so pertinent questions after answering which all the aspects
will become clear and it remained absent in most of the writings so far. Those questions
are:
1. What exactly is meant by an interest?
2. What exactly is the nature of the protection?
3. How does the ephemeral rule of law work its magic?

7
Bingham, Joseph W. “The Nature of Legal Rights and Duties.” Michigan Law Review, vol. 12, no. 1, 1913,
pp. 1–26. JSTOR, Available at JSTOR, www.jstor.org/stable/1274761, Accessed on 19th April, 2018 at 7: 30
pm.

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4. What exactly is the nature of this mysterious capacity with which a person may be
endowed by the law?
5. What is meant by legal effects in this connection and how does the capacity produce
them?
Answering to these questions, the interest is the needs and demands of the society. Ihering
expounded the concept of Jurisprudence of interests quite opposed to jurisprudence of
conceptions the later had made law rigid, logical and purely formal without content. The
theory of jurisprudence of interests is based on functional study of man, and society to secure
and satisfy needs or demands of the community. Earlier to him Jeremy Bentham had tested
every institution or law on the matrix of utility. A supplementary theory of interests to that
of Inhering was further developed, by pound who in turn further borrowed this idea from
‘William james’, and ‘john dewey’. Pound like Bentham tested the justification of law with
reference to protection and enforcement of social and individual claims.8

In Pounds words 'An interest is a demand or desire which human beings either individually
or in groups seek to satisfy, of which, therefore, the ordering of human relations in civilised
society must take account. 'The law does not create interests. It classifies them and
recognises a larger or smaller number; it defines the extent to which it will give effect to
those which it recognises, in view of

(a) other interests,

(b) the possibilities of effectively securing them through law.9

According to AUSTIN, right is a "faculty which resides in a determinate party or parties

by virtue of a given law and which avails against a party or parties 'or answers to a duty
lying on a party or parties' other than the party or parties in whom it resides". According to
him, a person can be said to have a right only when another or others are bound or obliged
by law to do something or forbear in regard to him. It means that a right has always a
corresponding duty. This definition, as it appears on its very face, is imperfect because in
this definition there is no place for "imperfect rights".10

8
Lloyd's Introduction To Jurisprudence, MDA Freeman (Ed), Sixth Edn, Sweet & Maxwell, P 460.
9
Ibid.
10
Lockwood, Michael. “Rights.” Journal of Medical Ethics, vol. 7, no. 3, 1981, pp. 150–152. JSTOR, JSTOR,
Available at www.jstor.org/stable/27715977, accessed on 19th April, 2018 at 4:30 Pm.

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Prof. Paton also agrees that one of the essential conditions of a legal right is that it should
be enforceable by the legal process of the state.11

Chief Justice Duglus Holmes of the (Supreme Court of USA) holds the view that right is an
inherent attribute of human will. Therefore, right is,

"nothing but a permission to exercise certain natural powers and upon certain
conditions to obtain protection, restitution or compensation by the aid of public
force”.

According to him legal right is the power of enforcing legal limitation on conduct.12

Prof. Gray says,

"a legal right is that power which a man has to make a person or persons do or
refrain from doing a certain act or certain acts, so far as the power arises from
society imposing a legal duty upon a person or persons"13

Each of these jurists have expressed the rights in terms of interest and legal rights which
forms the narrower sense or the strict sense. The other sense is wider sense which
includes the moral rights, natural rights or other rights. Although the rights might not be
absolute but the limit set on the claim of rights may be altered according to the policy of
the government.

III. FUNDAMENTAL RIGHTS : WHETHER RIGHTS STRICTO SENSU

With time there has evolved various domains of rights. From the last chapter, we can say
that Rights which was understood as the rights protected by law reached to the natural, moral
and even the religious rights. But the meaning of the right has been understood in general
sense as the legally protected and interests only which can be enforced. Let’s see what the
newly discovered old criteria which decided the domain of the rights in the strict sense.

Fundamental rights are the rights conferred upon the citizens of India which are inalienable
rights based on the bill of rights of US constitution derived from the natural rights principle.
It is the duty of the government to provide the citizens such rights and not infringe upon

11
Supra note 8.
12
Ibid.
13
Ibid.

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them. Along with these fundamental rights there are also certain rights which come in the
ambit of rights in the strict sense like – Marriage, livelihood and approach to the court etc.

All these rights are protected by law and enforceable too. But these rights are being protected
and enforced by the state until and unless the state wants to protect them. There is a no. of
illustrations which prove that the rights in strict sense also depends upon the policy and
motive of the government what it wants to do. The illustrations are:

1. The right to property was a fundamental right which was the duty of the state to see
that it does not get violated. After the 44th amendment of the constitution of India,
the property was removed from the fundamental rights at Article 19 (f) to Article
300 A.14 This was done in order to promote the intention of the government to
distribute the land among the people equitably. Afterwards, it is upon the government
to when and where it wants to acquire the land and people have to give the land to
the government.
2. Similarly, the constitution of India provides under emergency provisions which
grant such a wide power that whenever the emergency is announced, the fundamental
rights will automatically seize.15
3. The Article 24 bans beggar but it gives power to government to force people to do
beggar in the cases of exigency or natural disaster. In Article 19, clauses 2 to 6 are
giving conditions when these fundamental rights can be restricted.
4. Right to marriage, livelihood or trade (although not absolute), approach the court and
procreation are protected but it is upon the government until when it wants to protect
such rights or interests.16
5. The Right to life is available to every person in India but in several parts of the
country special Acts are applicable like – AFSPA as well as the Army Act does not
provide Fundamental rights to the soldiers.

Analysing all these conditions, it is confirmed that it is the regime of the country or the
place which decides the interests it wants to protect. The day such interest goes different
from its objective even fundamental rights which are absolute can be taken away.

14
Constitution of India, 1950.
15
Article 352, article 356; constitution of India, 1950.
16
Contract Act, 1872; sec 27.

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If we compare the world scenario, the German Nazi regime denied any kind of
fundamental rights or Right to the Jews. The Indira Government cut short the list of the
fundamental rights to satisfy its objectives. The Chinese regime for past decade regulated
family planning.

These shows that it is the regime of the place which decide the menu of the Rights in the
strict sense. The selection of rights or interests to be protected will be criteria like which
is given in Article 19(2) –(6), and put restriction their enforcement. There are various
tools for doing so when the regime17 wants.

The constitution gives right for putting restriction or reservation on the ground of place of
residence. In the case of D. P. Joshi vs The State Of Madhya Bharat 18 , the government put
capitation fee for non-resident of the state. Although, the court interfered and corrected it
according to the constitutional principles. But the point is it is upon the regime which right
it wants to protect.

Recently, In Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors19 Sc
declared Right to Privacy as a fundamental Right but same thing when discussed at the time
of M.P. Sharma & Others v. Satish Chandra & Others20and Kharak Singh v. State of U.P. &
Others,21 the legal position regarding the existence of the fundamental right to privacy is
doubtful. Hence, the interest which is protected by the state decided the rights in the strict
sense. The recent case where SC allowed the passive euthanasia brings a new chapter of
change which was denied to Arunashaunbaug.

17
The regime here means state including the judiciary.
18
1955 AIR 334, 1955 SCR (1)1215.
19
Writ Petition (Civil) No.494 of 2012.
20
AIR 1954 SC 300.
21
AIR 1963 SC 1295.

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IV. CONCLUSION
The researcher has studied a no. of materials and literatures available. He comes at a
conclusion that the hypothesis of the researcher proved to be correct. The domain of rights
in strict sense keeps on increasing, decreasing and changing with time. Earlier, jurists
discussed the rights and their definition. The rights in the most popular sense is the interest
which is protected and enforceable by law. But the other factor that is the motive or intention
of the state which decided which interest it will protect through law, was absent in such
study.

Legal enforceability and interest are now only a portion of domain of rights in the strict
sense. There might be other things which may form the part of it later on.

Now, answering the questions,

1. What is the meaning of rights in strict sense?

2. What are the determining factors of domain of law?
3. What is the reason for the increasing of the domain of jurisprudence?

The rights in strict sense means the rights or the interests which are protected by law and
can be enforced through legal machinery. One has claim to it and it is the duty of the others
to fulfil it and cannot be denied by state or against whom it is available.

The determining factor of the domain of the rights in strict sense is the interest which needs
to be protected. It may deal with a particular section, a group of persons or the whole
community. The other thing is the enforceability. It is so because only by recognising the
interest the role does not gets over rather method or manner of the enforceability needs to
be provided. The third thing which is the most important is the state and its policy which
decided which rights needs to be protected, precisely what interests need to be nurtured
which fulfils the policy are rights in strict sense as law provided the other two elements.

The reason for increasing of domain of rights is the way of looking at the subject or an event
related to a particular subject by the state. The cause of alteration is the possibility of various
perspectives for looking at an event or promoting a policy. It can be for achieving a particular
goal or satisfying the need of the hour or society. Hence, the perspective and policy of the
state is essential for deciding the menu of Rights stricto sensu.

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BIBLIOGRAPHY

ONLINE JOURNAL
1. Bingham, Joseph W. “The Nature of Legal Rights and Duties.” Michigan Law
Review, vol. 12, no. 1, 1913, JSTOR.
Available at JSTOR, www.jstor.org/stable/1274761.
2. Lockwood, Michael. “Rights.” Journal of Medical Ethics, vol. 7, no. 3, 1981,
JSTOR,
Available at www.jstor.org/stable/27715977.

BOOKS :

1. Fitzgerald, P.J., Salmond on Jurisprudence, ed. 12th, chapter 2, Universal Law Pub
Co.P.Ltd.-Delhi,
2. W. Hohfeld, Fundamental Legal Conceptions as Applied In Judicial Reasoning, Cook
(Ed), Yale University Press, 1923.
3. Freeman, M.D.A., Introduction To Jurisprudence, 8th, Sweet & Maxwell,2010, P.1.
4. Lloyd's Introduction To Jurisprudence, Mda Freeman (Ed), Sixth Edn, Sweet &
Maxwell.
5. G Feinberg, 'Duties, Rights And Claims', American Philisophical Quarterly, 1966, No
3.
6. E M Rao: Industrial Jurisprudence - A Critical Commentary, 2nd Ed., 2015,Chapter 4,
Rights, General Classification Of Rights.

BARE ACTS

1. Constitution of India, 1950.

2. Contract Act, 1872.

CASES

1. D. P. Joshi vs The State Of Madhya Bharat;1955 AIR 334, 1955 SCR (1)1215.
2. Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors; Writ Petition
(Civil) No.494 of 2012.
3. M.P. Sharma & Others v. Satish Chandra & Others; AIR 1954 SC 300.
4. Kharak Singh v. State of U.P. & Others; AIR 1963 SC 1295.

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