RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW

Rights in India
Hohfeldian Analysis of Indian Fundamental
Rights
Under the guidance of
S.Matilal

Blessan M
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11/30/2016
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Introduction

All men are created equal, that they are endowed by their Creator with certain unalienable

Rights that among these are Life, Liberty and the Pursuit of Happiness. Indian constitution

also recognizes similar rights for its citizens under the fundamental rights chapter. Hohfeld is

an American legal theorist who analysed how a law gives rights and corresponding duties to a

person. This paper analyses the Fundamental rights enshrined by the constitution to its

citizens based on Hohfeldian theory.

Hohfeldian theory of rights

Hohfeld distinguishes four elements or incidents with incident being a right on its own.

Claims

Privileges

powers

Immunities.

Ram holds a claim-right against Rahim to wash Rams scarf if and only if Rahim has a duty

to Ram to wash Rams scarf. Rahim owes this duty to Ram, in particular. His duty is

directed toward him. In this case Ram, himself, will presumably benefit, but that need not

be the case. If Ram holds a claim-right against Rahim to wash Rams sisters scarf, then

Rahim still owes this duty to Ram, not to Rams sister. He owes this duty to Ram even if

Ram hates both her sister and the scarf, although Ram probably has the power to waive her

claim-right. A claim-right always has one or more correlative duties. It can be a duty to act,

as in Rahims case, or to refrain from action: John holds a claim-right against peter to keep

off his grass if and only if john has a duty to peter to keep off his grass. The absence of a duty
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is a privilege. Sita has a privilege-right to sing Priya if and only if Sita has no duty not to

sing Priya. A license to practice medicine gives one a legal privilege-right to do so. Claims

and privileges define all the actions that are forbidden, permitted, or required. The two

remaining incidents (powers and immunities) are second-order incidents: they specify rights

and duties regarding the creation, destruction, and modification of other incidents. Rahul has

a power-right under a set of rules if and only if those rules give him the ability to alter

someones Hohfeldian incidents (his own or someone elses). If Rahul is a police officer

directing traffic, then the legal rules give him a power-right to alter, by means of a hand

gesture, a drivers privilege-right to cross the intersection. If Ramya promises to cook Priya

dinner, then Ramya exercises her power-right (under the moral rules of promising) to grant

Priya a claim-right against Ramya to cook dinner. The opposite of a power is immunity. If

Narendra lacks the ability to alter one of Sunnys Hohfeldian incidents under a set of rules,

then Sunny has immunity against Narendra with respect to that incident. Imagine that Sunny

is a teenaged minor child and Narendra is his father. Narendra orders Sunny to mow the lawn

every summer, which gives Sunny a duty to mow the lawn. When Sunny reaches legal

adulthood, he acquires immunity against Narendras orders: Narendra loses the legal power

to impose such duties on Sunny by means of orders. Hohfeld depicts the relationships

between the incidents with two charts, which include some terminology that Hohfeld

invented for the sake of logical completeness:

Opposites

If someone has a claim, then she lacks a nonclaim.

If someone has a privilege, then she lacks a duty.

If someone has a power, then she lacks a disability.

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If someone has immunity, then she lacks a liability.

Correlatives

If someone has a claim, then someone else has a duty.

If someone has a privilege, then someone else has a nonclaim.

If someone has a power, then someone else has a liability.

If someone has immunity, then someone else has a disability.

Fundamental Rights in India compared with Hohfeldian Incidents

The incidents can combine into various complex rights, such as Fundamental rights provided

by the Indian Constitution. Rameshs Fundamental rights Consists of the following,

Ramesh has a privilege to form association or unions. He has no duty not to form association

or unions.

Ramesh has a claim right to form associations or unions. The state has a duty not to

infringe upon this claim right.

Ramesh has various powers over these claim-rights.

i) If he is a railway coolie he can use this right and form an association along with

his friend Danny.

ii) He has every right to renounce this membership of association with friend Danny

whenever he wants

iii) He can transfer his rights of membership to any other citizens.

If the state prohibits Ramesh from forming association without his consent then it is

infringing his right. If the state is not justified in doing so, then philosophers would say that it
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does not just infringe his right, but the state violates them. If violation of rights is for special

reasons, like in the interest of security of state, then it would be called justified infringement.