Module I- Rights

Meaning and Nature

- Rights : A key element of law, politics, ethics and society
- Rights are claims, also entitlements
- Right ‘to’ do/have something, Right ‘not to’ do/have something
- Several categories of rights : interconnect, overlap, conflict
- Assertion and realisation of rights, subjectivity of rights.
- Form and functions of Rights- Description of internal structure of rights (The form) and
the Description of what rights do for those who possess them (The function)
- Thoroughly understanding a particular right is important- how that right is constructed
and developed
 Rights as
Positive and
-
Negative
Positive duties : freedom to do
- Freedom from something
- Duty to do nothing, not to
something
interfere
- Duty to act in a certain way - Not interfering with others right,
- Respecting the due entitlement
freedom from
- Eg- free schooling, equal pay for
violence/exploitation
equal work
 How Rights are Asserted- Some Examples
1) Parvati Satyagraha

- 1929, Pune
- Movement for entry of untouchables to the temple
- Trustees stated that the temple was not a public temple. “We recognise Asprushyas as
Hindus but they can not enter the temple”
- Satyagrahis entered hailing Shivaji and Chokhamela
- They were attacked and bruised
- The movement failed/ Temple was opened only after 1947
- Government’s action in specific issues - whether the government is guaranteeing
the right or not.
- Will of the state - positive and negative rights
- Guidelines by the World Organisations- ILO, UN, WHO, UNESCO
- Distinctions - ambiguous, blurred boundaries, overlapping.
Rights may require both positive and negative actions
 The Case of Sabarimala
- “The assumption by the court of the authority to determine whether a practice is or is not essential to religion has led to
our jurisprudence bypassing what should in fact be the central issue for debate... whether the Constitution ascribes to
religion and to religious denominations the authority to enforce practices which exclude a group of citizens. The
exclusion may relate to ...worship, but may extend to matters which bear upon the liberty and dignity of the individual”

- “...Yet the basic question is whether the recognition of rights inhering in religious denominations can impact upon the
fundamental values of dignity, liberty and equality which animate the soul of the Constitution.” “ The right of a
(religious) denomination must be balanced with the individual rights of each of its members.”

- “It would be impossible to conceive of the preservation of liberal constitutional values while at the same time allowing
group rights to defy those values by practising exclusion and through customs which are derogatory to dignity.”

Justice D Y Chandrachud
- “ Judges should not impose their personal views, morality or rationality with respect to the form of
worship of a deity.”

- “A pluralistic society and secular polity would reflect that the followers of various sects have the
freedom to practise their faith in accordance with the tenets of their religion. It is irrelevant whether
the practice is rational or logical. Notions of rationality cannot be invoked in matters of religion by
courts,”

- “ The manifestation is in the form of a Naishtik Brahmachari. The belief in a deity, and the form in
which he has manifested himself is a fundamental right protected by Article 25(1) of the Constitution”

- “India is a country comprising diverse religions, creeds, sects each of which have their faiths, beliefs
and distinctive practices. Constitutional morality in a secular polity would comprehend the freedom of
every individual, group, sect, or denomination to practise their religion in accordance with their
beliefs and practices,”
 Categorization of Rights

- Government’s action in specific issues - whether the government is guaranteeing the

right or not.
- Will of the state - positive and negative rights
- Guidelines by the World Organisations- ILO, UN, WHO, UNESCO
- Distinctions - ambiguous, blurred boundaries, overlapping.
Rights may require both positive and negative actions
 Some Issues-

1. Tussle between western values and non-western values : secularism, democracy,

freedom, equality etc.
2. Tussle between ‘mainland’ and ‘peripheral’ values : Women, Dalits, Adivasis
3. Tussle between ‘Developed’ and ‘Developing’ world : Difference between legal
systems, resources, capital
4. Individual v/s Group rights
Hohfeld’s fourfold classification of rights-
- Hohfeld divides rights into four types, which he terms: liberties, claims, immunities and powers.

1. By a 'liberty' is meant a right whose exercise does not imply that other people are under a duty to
secure the ends for which the permitted action is undertaken. The usual examples of liberties in this
sense are rights involving people engaged in competitive actions with one another.
2. 'Claim' rights, by contrast, do impose a correlative duty to help secure the action or condition protected
by the right. For example, the right to be free from assault is a claim-right
3. Powers' and 'immunities' - both concern the ability of persons or institutions to determine the rights
and duties of others. Immunities constitute the counterpart to powers: they are the right to be free from
the exercise of someone's powers.

What about Freedom of Speech and Expression? How would you categorize it?
Three Generations of Rights
 Civil Rights
- Civil rights v/s Social rights
- Includes basic rights that are social and political- right to vote, right to fair trial, right
to government services, right to public education, right to use public facilities, right
to health etc.
- Essential components of democracy
- Relation between civil society and the state
- Civil rights - to be guaranteed by the state
- Might change with the time, culture, evolving values and worldview
- Both civil and social rights - claims based on natural, moral and human rights
- Physical freedom, intellectual freedom, Contractual freedom, right to social equality
 Political Rights

- Early liberalism- stressed upon rights of individuals and advocated limited government.
Locke : Limited representative government
Bentham : Utilitarian principle
- Laissez Faire- Non-interference of the state in individual’s affairs
- Political rights- Rights of individual as a citizen
- Evolutionary
- Can be declined for some of the groups- eg. Right to vote
 William Blackstone- English Jurist (18th Cen.)

- Distinguishes between absolute and natural rights, and social and contractual rights

- Dual role to be played by the state

- Treated political rights as negative rights

- State should not interfere

“ What the state shouldn't do”

 Ernest Barker-

- Political rights : Right to constitute and control the government

- Right to vote, right to contest elections, right to get elected, right to occupy
public offices
- Right to oppose constitutionally and peacefully, right to petition, right to form
union and association etc.

“ What an individual must do ”

 Civil and Political Rights

- American Civil Rights movement : Securing equal citizenship in a liberal democratic

state
- Civil- political distinction : Not possible every time
- Merely guaranteeing civil rights is not enough : They need to become broader to
include other categories of rights
 Social Rights

- Emerge from the idea of ‘welfare state’

- Became prominent in the post-war period : when the western world struggled to
reconstruct their economies
- Creation of democratic social contract : that would not expose/unravel the face of
economic depression and instability
- Providing social security : goes beyond just making laws
- Globalisation : Impacted civil and social rights
- right to healthcare (right to health), right to housing, right to food, right to education, right to social security, and right to work.
 Economic Rights

- Rights that relate to a person as a worker and his/her engagement in gainful

employment.
- French declaration, UDHR
- Economic rights - Employees and workers
Owners and managers
- Do unemployed people have economic rights - Yes, as the rights are not pertaining
only to the economic sector- they go beyond
- 1890- Strike of Indian workers for a weekly off.
 Issues and challenges-

- High rate of unemployment and underemployment

- Equal pay for equal work - Gender, unorganised sectors,
temporary/contractual employment
- Public v/s Private
- Formal v/s Informal sector
- Bonded labourers, contract workers
Cultural Rights

UNESCO declaration on Cultural Diversity

Culture means- A set of distinctive spiritual, material, intellectual, emotional features of

society

It includes- Art, literature, lifestyles, value systems, ways of living together, belief systems

Individual has a right to participate in cultural life

Both individual and group right

- United Nations Committee on Economic, Social and cultural Rights
(CESCR)
- Detailed guidelines for exercising cultural rights-
- 5 A’s- Accessibility, Availability, Acceptability, Adaptability, Appropriateness
 The Case of Jallikattu

- In 2014, the Supreme Court banned the sport on a plea filed by the Animal Welfare Board of
India and People for the Ethical Treatment of Animals. The ban was lifted in 2017 with an
amendment to the law after protests across the state.
- The Tamil Nadu Assembly on January 23 unanimously passed the Prevention of Cruelty to
Animals (Tamil Nadu Amendment) Bill, 2017, that categorises bulls as performing animals and
exempts organisers of jallikattu events from penalties.
- TN government allowed Jallikattu to happen in 2021 with due restrictions of COVID-19
- “It has never been looked into whether a state can claim constitutional protection under Article
29 (1) for what it thinks is a cultural right.” - CJ Deepak Mishra
- “So far, nobody has plumbed the depths of Article 29 (1)”- Justice Fali Nariman
Art. 29 (1)- Any section of the citizens residing in the territory of India or any part thereof having a distinct language,
script or culture of its own shall have the right to conserve the same.
 Issues and Challenges-
- How to define culture
- How to avoid the practice of hazardous customs in the name of culture?
- Culture v/s Constitution
- Resistance to reform?
- Promotion of superstitions/ pseudo science?
- ‘US’ v/s ‘THEM’- preventing the access
- Freedom and Right to Choice
 Human Rights
- What every human being is ‘ought to have’
- By the virtue of being a human
- Universal in nature - applicable irrespective of caste, class, gender, religion, region
etc
- Not every category of humans will possess equal set of rights
- Can be situational/specific
- The problem of cultural relativism
- “Asian” perspective- challenges the idea that human rights are universal and can be
applied globally.
- Morally higher, resistant to being limited or overridden
 Some problems to be discussed
(Based on the chapter on Rights by Papia Sengupta Talukdar)

- What is the relation between rights and obligations?

- Interrelationship between rights-duties-responsibilities
- Typology of rights- civil, political, social- complexities and overlap
- Theory of natural rights- Hobbes and Locke- Critique by utilitarian thinkers
- John Rawls- theory of justice
- Robert Nozick’s libertarian view
 Theories of Rights

Natural Rights Theory-

- Origin- 17th/18th Century

- John Locke- Rejected the idea of natural hierarchy and notion of absolute hierarchy
- Rejection of Divine Rights theory
- Locke- Considered the state of equality as natural condition
- Morality of God’s law is reflected in natural rights such as life, liberty and property
- Humans enjoy equal rights, Government is engaged in maintenance and protection of
these rights, they define limits of authority of government
 Locke- cont

- Family life is based on natural laws of liberty and equality

- Men and women as equals
- Parents as trustees- total obedience from child is not expected
- Right to be respected, dignity, right to inheritance
- Natural rights as intrinsic - humans are “Born with these rights”
- Natural rights are- i) Inalienable, indefensible ii) Absolute and non-negotiable iii)
Pre-social
 Thomas Paine and Edmund Burke : ‘A great debate’

- On the source of the rights

- Burke- Rights are to be based on unique conditions- example of England
- Paine- Rights are derived from nature and universal rights

“Burke argued in his Reflections on the Revolution in France that that revolution had brought about an unprecedented destruction of
a nation’s social fabric and risked devolving into barbarism and tyranny. Paine countered in Rights of Man that the revolution was
the natural continuation of a markedly new era of human history, one in which men applied newly discovered Enlightenment values
to their systems of government.”

“Burke’s politics are about gradual improvement and preserving a great achievement, Paine’s politics
are about progress toward an ideal. And there you have the foundation of conservatism on the one hand
and progressivism on the other.”

READ- [Link]
 Criticism :

- Rights cannot simply be ‘natural’- role of the state is important

- Role of society - can we have rights and duties in isolation?
- Can we enjoy the rights of ‘civil’ and ‘uncivil’ society together?
- Rights as the products of ‘unique struggles’ (Burke)
 Legal Rights Theory
- Bentham, Hegel, Austin
- Rights are granted by the state- the ‘claims’ that are granted and guaranteed by the
state
- Rights are defined by the state, state is the source of rights.
- State lays down legal framework
- Law sustains rights, when content of law change, substance of rights also changes.
Both the things are interdependent
- Bentham - “ There is no such thing as natural rights opposed to and in contradiction
to legal rights”
- Rights- something that human beings possess only within the framework of law
- Law leads the legal rights- Rights and legal duties are correlative
- Natural law can lead to anarchy, terror and insecurity
- Individual worth is to be realised- opposed to equality of rights
 Benefit theory of Rights-

- Rights : as legal expectation of performance of a legal duty- which ultimately

benefits the bearer of rights. “To have a right is to be the beneficiary of the
performance of a duty.”
- Here, the bearer is beneficiary-- of an obligation under the system of law
- Right is complementary to legal duty - benefits out of the performance o the
duty
 Will theory of Rights
- Right holder is someone who is in a position of to control the performance of
duty
- Through the exercise of power
- Acquiring the claim by the use of power
- Restrictive with regards to who can possess the rights.
 Criticism
- Difficulty in relying on the state as a sole source of law
- It can ‘create’ the rights, also can ‘take away’ the rights
- Fear of excessive state control
- Democracy, limited state?
- Enjoying only those rights that the state guarantees?
 Historical theory of Rights

- Character of rights is historical

- State- as a product of long historical process
- ‘Common consciousness’- that individuals develop eventually
- Every right is based on the force of long observance
- Rights grow from traditions and customs
- Denies both natural rights and legal rights

Debatable
> Do all rights have a historical origin?

> Do historical customs always constitute rights?

- Burke- The base of any rights is history of particular society

- David George Ritchie- “ Those rights which people think that they ought to have are
just those rights which they have been accustomed to have or which they have a
tradition (whether true or false) of having once possessed. Custom is primitive law.”
 Some considerations-

- Universal rights are to be replaced as historical rights ‘- of a particular community

- Rights are bound not by reason but by the historical process
- The individual has little or no responsibility of shaping them
- Reforms are virtually impossible - as rights are the result of historical process.
 Criticism -

- Too much importance to history and traditions

- “HOW” the history unfolds itself- whether legal corrective measures are required or
not
- How to differentiate between right and wrong custom
- Idea of reform ?- how to define it ?
 Social Welfare Theory

- Establishes correlation between rights and social welfare

- Bentham and Mill- exponents of social welfare theory
- Everyone has a right to prosper, not at the cost of many
- Rights- based on the consideration of common welfare
- Laski - Rights as “the conditions of social life without which no man can seek, in general, to
be himself at the best.”
“ Rights serve the end of the state”
- Rights as claims of an individual recognized by the society- they acquire meaning in a
societal spectrum
George Douglas Howard Cole-
- Human being as a social creature- “associative norms”
- Individual acts v/s social acts- separate yet interconnected. Both should be preserved in a society

“ whenever [individuals] form or connect themselves with any form of association for any active
purpose, [they] develop in relation to the association an attitude which looks to the general
benefit of the association rather than their own individual benefit. This is not to say that they
cease to think of their own individual advantage – only that there is, in their associative actions,
an element, which may be stronger or weaker, of seeking the advantage of the whole association,
or of all its members, as distinct from the element which seeks only personal advantage.”
 Marxist View-
- Criticizes natural rights and legal rights
- Rights- guaranteed and maintained to safeguard capitalist interests. Eg Right to
property
- Economic equality - “Freedom in absence of economic equality leads to enslavement
of masses and lack of human dignity”
Guaranteeing economic rights is important
- Other civil and social rights- originate from economic rights
- Individual rights- ignores the essence of human nature
STATE- A CLASS INSTITUTION- dominated by powerful bourgeoisie

Law- essentially a class law- favours capitalist system- and also those who protect it

They further their own interests

Socialist State- to further the interest of working class

Classless society - automatically protects people’s rights