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LL.B. V Term

LB-5032 – Jurisprudence-II

Course materials Selected and Edited By

Kamala Sankaran

Meena Panicker

Sujith Koonan

FACULTY OF LAW

UNIVERSITY OF DELHI, DELHI- 110007

July, 2020

For private use only in the course of instruction

LL. B. V Term

Paper - LB – 5032 – Jurisprudence – II

TOPIC 1:

The Concept of Rights and Duties: Jurisprudential Analysis

(a) R.W.M. Dias, “ Jural Relations ” , Jurisprudence , pp. 23-43 (1994). 1

(b) Chhatrapati Singh, "The Inadequacy of Hohfeld's Scheme: Towards more Fun-

damental Analysis of Jural Relations" , 27 JILI. 117 (1985).

(c) Upendra Baxi, “Laches and the Rights to constitutional Remedies: Quis

Custodiet Ipsos Custodes?” , Alice Jacob (ed.), Constitutional Developments since

Independence (1975).

(d) Hart, H.L.A., “Bentham on Legal Rights” , in A.W.B. Simpson (ed.), Oxford Es-

says in Jurisprudence, Second Series, Oxford: Clarendon Press, (1973).

(e) Ronald Dworkin, Taking Rights Seriously, Chapter 7, pp. 184-205. 19

TOPIC 2:

The Concept of Rights and Duties: Philosophical Analysis

(a) Bhiku Parekh, “The Modern Conception of Right and Marxist Critique” in

Upendra Baxi (ed.), The Right to be Human, pp. 1-22 (1987). 35

(b) Allen Buchanan, “What is so Special about Rights,” Social Policy & Philosophy,

pp. 61-75 (1984). 47

(c) Amartya Sen, “Culture and Human Rights”, in Development as Freedom, Chap-

ter 10, pp. 227-48 (2000). 62

TOPIC 3: LIABILITY

ophy, 2012. 163

(c) John Locke, Of Property, Chapter 1 in C. B. Macpherson (ed.) Property: Main-

stream and Critical Positions , University of Toronto Press, pp. 15-29 (1978).

(d) O. Kahn-Fruend, Introduction, Chapter 1 in Karl Renner, The Institutions of Pri-

vate Law and Their Social Functions, Agnes Schwarzschild (Trans.) (Routledge

(e) Law Commission of India, Seventieth Report on the Transfer of Property Act, 1882 ,

pp 1-10 (1977).

TOPIC 6: POSSESSION AND OWNERSHIP

(a) P.J. Fitzgerald, Possession in Salmond on Jurisprudence, pp. 265-295 (1966). 182

(b) A.M. Honore, “Ownership” in A.G. Guest (ed.) Oxford Essays in Jurisprudence ,

Oxford University Press, (1961). 201

(c) Lallanji Gopal, “Ownership of Agricultural Land in Ancient India” Journal of

the Economic and Social History of the Orient, Vol. 4, No. 3 (Dec., 1961), pp. 240-

Cases:

1. Mohd. Noor vs. Mohd. Ibrahim, AIR 1995 SC 398.

2.. Rame Gowda vs. M. Varadappa Naidu , AIR 2004 SC 4609.

JURAL RELATIONS^1

Claims, liberties, powers and immunities are subsumed under the term ‘rights’ in ordinary speech, but for the sake of clarity and precision it is essential to appreciate that this word has undergone four shifts in meaning. They connote four different ideas concerning the activity, or potential activity, of one person with reference to another.

(1) Y’s duty with regard to X would be expressed by X as ‘you ought (must)’ (X is then said to have a claim or right, stricto sensu ). (2) X’s freedom to do something in relation to Y would be expressed by X as ‘I may”: (X has a liberty or privilege). (3) X’s ability to alter Y’s legal position would be expressed by X as ‘I can’: (X has a power). (4) Y’s inability to alter X’s legal position would be expressed by X as ‘you cannot’: (X has an immunity) The use of the homonym ‘right’ to denote these separate ideas obscures the distinctions and leads to confusion sooner or later. It would be helpful, therefore, to make the distinctions as obvious as possible by allotting to each a term of its own.

An important preliminary point is that a jural relation between two parties should be considered only between them, even though the conduct of one may create another jural relation between him and someone else. In Chapman v. Honig [(1963) 2 Q. B.502] the defendant’s action in terminating the plaintiff’s tenancy was lawful (i.e. he had a liberty) as between them, although it was at the same time unlawful (i.e. breach of duty) as between defendant and the court (contempt).

When operating the scheme the following formulae will be helpful.

Jural Correlatives (vertical arrows and read both ways):… in one person, X, implies the presence of its correlative …, in another person, Y’. Thus, claim in X implies the presence of duty in Y (but in so far as duties may exist without correlative claims, the converse proposition is not always true). Again, liberty in X implies the presence of no-claim in Y, and vice versa.

Jural Opposites, including what one might here call jural negations (diagonal arrows and read both ways) : … in one person, X, implies the absence of its opposite, …, in himself’. Thus, claim in X implies the absence of liberty in himself, and vice versa.

The merit of Professor Williams’s presentation is that it is possible to discern at a glance a third set of jural relations not mentioned by Hohfeld. These may be called

Jural Contradictories (horizontal arrows and read both ways): … in one person, X, implies the absence of its contradictory, …, in another person, Y’. Thus, claim in X implies the absence of liberty in Y, and vice versa. In the case of duties with correlative claims, a duty in

• R.W.M. Dias, Jurisprudence , Chapter 2, “ Legal Material”, pp. 23-40 (5th Ed., 1985).

3 Jural Relations that the claim was not in him. The further question as to why the defendant’s consent to the plaintiffs’ course of action did not debar him from exercising his claim to damages was answered by the Court on the ground that consent, or volenti non fit injuria, is no defence to a breach of this kind of statutory obligation [ Cf. Carr v. Broaderick & Co. Ltd. (1942) 2 KB 275].

Conduct is regulated by the imposition of duties. Claims may assist in achieving this end, but if it can be otherwise achieved, there is no reason why the mere fact that Y is under a duty with regard to X should confer upon X, or anyone else for that matter, a corresponding claim (Kelson, General Theory of Law and State 85). There is nothing to prevent it being the law that every breach of duty, of whatsoever sort, shall be dealt with by the machinery of the state. Such a state of affairs, though possible, would be inconvenient, for it would stretch state machinery to breaking point. Where duties are of private concern, the remedies are best left to individuals to pursue in the event of their breach. Above all, it is expedient to give aggrieved persons some satisfaction, usually by way of compensation. Every system of law has to decide which breaches of duties shall be taken up by the public authorities on their own motion, and which shall be left to private persons to take up or not as they please. The distinction between ‘public’ and ‘private’ law is quite arbitrary. It would seem, therefore, that there is no intrinsic reason why claims should be a necessary concomitant of duties (Radin, 'A Restatement of Hohfeld' (1938) 51 Harv LR. 1149-1150, says that X's claim and Y's ;duty are the same thing. On the argument above, his statement is unacceptable). Indeed, some modern writers, for different reasons, reject the whole idea of claim as redundant. If non-correlative duties are accepted, they do not fit snughly into the Hohfeldian scheme.

LIBERTY-NO-CLAIM RELATION (‘I MAY’)

Hohfeld distinguished the freedom which a person has to do or not do something from claim, and called it ‘privilege’ ; but the term liberty will be preferred. X’s so-called ‘right’ to wear a bowler hat consists, on Hohfeld’s analysis, of liberty to wear the hat and another liberty not to wear it. The relationship between claim, duty, liberty and no-claim can be explained in the following way.

(I) Duty and liberty are jurally ‘opposite’. If, for example, X were under a duty to wear a bowler hat, this would imply the absence in him of any liberty not to wear it, i.e. the Hohfeldian opposite of duty means that there is no liberty to do whatever is opposite to the content of the duty. Similarly, if X were under a duty not to wear the hat, this would be the opposite of a liberty to wear it, i.e. there would be no liberty to do so. The jural opposition between duty and liberty does not mean simply that the one cancels out the other, but that they will only have that effect when the content of one is irreconcilable with the content of the other. For example, X normally has the liberty of wearing his hat. If he puts himself under a duty to wear it, his liberty and duty of wearing the hat are harmonious and co-exist. It is only when he puts himself under a duty not to wear it that his liberty to wear it and his duty conflict and are jurally opposite.

The opposition may be illustrated by Mills v. Colchester Corpn [(1867) LR 2 CP 476. A liberty must be limited by circumstances which may create a duty to grant a licence: David v. Abdul Cader (1963) 3 All ER 579. The owners of an oyster fishery had, since the days of

4 Jural Relations Queen Elizabeth I, granted licences to fish to persons who satisfied certain conditions. The plaintiff, who satisfied them but was refused a licence, brought an action alleging a customary claim correlative to a duty in the defendants to grant him one. The Court held otherwise on the basis that the defendants had always exercised a discretion in the matter. This implied not only a liberty to grant licences, but also a liberty not to grant licences, which implied the absence of a duty to do so. If, then, they were under no duty to grant licences, the plaintiff could have no claim.

Sometimes it is held for reasons of policy that the liberty of doing a particular thing cannot be erased by a contrary duty. Osborne v. Amalgamated Society of Railway Servants (1910) AC 87 lays down that the liberty of a member of Parliament to vote in any way he chooses on a given issue cannot be overridden by a contractual duty to vote in a certain way. Similarly in Redbridge London Borough v. Jacques (1971) 1 All ER 260, the respondent had for several years stationed his vehicle on a service road in the afternoons of early closing days and had operated a fruit and vegetable stall from the back of it. The local authority was aware of this practice and had raised no objection. It then charged him with obstructing the highway. The justices dismissed the charge on the ground that the local authority had, in effect, given him a licence (liberty). The decision was reversed on the ground that where there is a public duty, created by statute, this prevents the conferment of liberty to do what the duty forbids.

(2) If Y has a claim, there must be a duty in X. A duty in X implies the absence of a liberty in X. Therefore, a claim in Y implies the absence of a liberty in X, i.e. claim and liberty are ‘Jural contradictories’. (3) Conversely, the presence of liberty in X implies the absence of a claim in Y. Hohfeld calls this condition ‘no-claim’. Therefore, a liberty in X implies the presence of ‘no-claim’ in Y, i.e., liberty and no-claim are ‘jural correlatives’. On the opposition between claim and no-claim are ‘jural correlatives’. On the opposition between claim and no-claim there is this to be said. The opposition here is different from that between duty and liberty. No question of content arises. No-claim is simply not having a claim, and having a claim is not being in the condition on no-claim is simply not having a claim, and having a claim is not being in the condition on no- claim, just as having a wife is not being in a state of bachelordom (no-wife). If it is thought necessary to distinguish between the opposition of duty and liberty on the one hand, and no-claim and claim on the other, the latter might by styled ‘jural negation’ instead.

Distinction between claim and liberty

A claim implies a correlative duty, but a liberty does not. X’s liberty to wear a bowler hat is not correlative to a duty in anyone. There is indeed a duty in Y not to interfere, but Y’s duty not to interfere is correlative to X’s claim against Y that he shall not interfere. X’s liberty to wear the bowler hat and his claim not to be prevented from so doing are two different ideas. Thus, X may enter into a valid contract with Y where X gives Y permission to prevent him from wearing the hat, but X says he will nevertheless try to wear it. If X succeeds in evading Y and leaves the scene wearing the hat, he has exercised his liberty to wear it and Y has no

6 Jural Relations The claim not to be interfered with in trade corresponds to a duty not to interfere. There is indeed a duty not to interfere, e.g. by smashing up the plaintiff’s shop; but no duty not to interfere by underselling him. So the question how far a duty not to interfere extends, i.e. how far the liberty of another person to interfere is allowed, is a delicate decision of policy. This is the real issue, which is thrown into relief when these situations are seen to involve conflicting liberties, but which is masked by the language of duties and claims.

The exposure of faulty reasoning also helps in assessing the effect and worth of decided cases. In Thomas v. Sawkins (1935) 2 KB 249 for example, the very demonstration that the conclusion was illogical when stated in terms of ‘rights’ and duties shows that the way to reconcile it with the established law is by saying that it has, in effect, created a new rule of law for policemen.

Finally, it may be observed that Hohfeld’s analysis of claim, duty, liberty and no-claim is useful in many general ways. It may be used for drawing distinctions for purposes of legal argument or decision. It was held, for instance, in Byrne v. Deane (1937) 2 All ER 204. See also Berry v. Irish Times Ltd****. (1973) IR 368 that to call a person an ‘informer is a person who gives information of crime; there is in law a duty to do so, and Byrne’s case decides that it is not defamatory to say that a man has performed a legal duty. There is only a liberty to be a ‘conscientious objector’, and Byrne’s case is thus no authority for saying that it cannot be defamatory to allege that a person has exercised this liberty [Hamson, ‘A Moot Case in Defamation’ (1948) CLJ 46]. Again, the analysis is useful in considering the relation between common law and equity; in particular, it helps to demonstrate the precise extent to which there was conflict. Thus, the life-tenant had at law the liberty to cut ornamental trees, in equity he was under a duty not to do so. The liberty and duty are jural opposites and the latter cancels out the former. At common law a party had a claim to payment under a document obtained by fraud, in equity he had no-claim to payment under a document obtained by fraud, in equity he had no- claim. Further, such a person had at law the liberty of resorting to a common law court on such a document, where as equity imposed on him a duty not to do so (common injunction) [Hohfeld Fundamental Legal Conceptions 133].

Liberty as ‘law’

It has been shown that liberty begins where duty ends. Some have maintained that freedom is outside the law. Thus, Pound declared that liberty is ‘without independent jural significance’, [‘Legal Rights’ (1916) 26 International Journal of Ethics 92 at 97] and Kelsen said, ‘Freedom is an extra-legal phenomenon’. As to this, it is as well to remember that liberty may result (a) from the fact that legislators and judges have not yet pronounced on a matter, and represents the residue left untouched by encroaching duties, e.g. invasion of privacy; or (b) it may result from a deliberate decision not to interfere, as in Bradford Corpn. v. Pickles [(1895) AC 587 (c) from the deliberate abolition of a pre-existing duty, e.g. the statutory abolition of the duty forbidding homosexuality between consenting adults, or an Act of Indemnity absolving a person from a penal duty. There is some plausibility in saying with Pound and Kelsen that liberty in sense (a) lies outside law; but it seems odd to say that the liberty pronounced by a court in (b) and the statutory provisions in (c) are ‘without

7 Jural Relations independent jural significance’ and ‘extra-legal’. Analytically, the resulting position in all three cases is the same, namely, no duty not to do the act.

Kinds of liberties

Some liberties are recognised by the law generally, e.g. liberty to follow a lawful calling. So, too, are ‘Parliamentary privilege’ in debate and ‘judicial privilege’, which are liberties in the Hohfeldian sense in that both connote the absence of a duty not to utter defamatory statements. An infant’s position (sometimes called in non-Hohfeldian language an immunity) in contracts for things other than necessaries is more complicated. In some cases it amounts to a power to repudiate the contract; in others it is not clear whether an infant has a liberty not to perform the contract, ie no primary duty to perform Coults & Co****. v. Browne-lecky (1947) KB 104, (1946) 2 All ER 207, or whether there is a sanctionless duty, i.e. a primary duty which he ought to fulfil, but no sanctioning duty to pay damages and instead an immunity from the power of judgment.

Other liberties are recognised by law on special occasions, that is to say, the normal duty not to do something is replaced in the circumstances by the liberty to do it, e.g. self-help, self- defence, the defences of fair comment and qualified privilege. Lastly, liberty may be created by the parties themselves, e.g. consent, or volenti non fit injuria , one effect of which is that it absolves a defendant from his duty.

Limit of liberties

Some liberties are unlimited, even if exercised maliciously, e.g., ‘Parliamentary’ or ‘Judicial privilege’. Non omne quod licet honestum est. In other cases, the exercise of liberties may be limited by the law of ‘blackmail’, by public policy.

POWER-LIABILITY RELATION (‘I CAN’)

Power denotes ability in a person to alter the existing legal condition, whether of oneself or of another, for better or for worse. Liability, the correlative of power, denotes the position of a person whose legal condition can be so altered. This use of ‘liability’ is contrary to accepted usage, but when operating the Hohfeldian table words have to be divorced from their usual connotations. X has a power to make a gift to Y, and correlatively Y has a liability to have his legal position improved in this way. A further point is that a person’s legal condition may be changed by events not under anyone’s control, e.g. an accumulation of snow on his roof. A distinction accordingly needs to be drawn between liability, which is correlative to power, i.e. the jural relation; and what for present purposes may be termed ‘subjection’, namely, the position of a person which is liable to be altered by non-volitional events. This is not a jural relation.

Distinction between claim and power

On the face of it the distinction is obvious: a claim is always a sign that some other person is required to conform to a pattern of conduct, a power is the ability to produce a certain result. The ‘right’, for example, to make a will can be dissected into a liberty to make a will (there is another liberty not to make one), claims against other people not to be prevented from making one, powers in the sense of the ability to alter the legal conditions of persons specified in the will, and immunities against being deprived of will-making capacity.

9 Jural Relations had no ‘right’ to sell certain articles because a third party could have restrained the sale for infringement of a trade mark. This is confusion between power and liberty. For, the fact that the defendants had power to pass title is independent of whether or not they had a duty not to exercise it (i.e. no liberty to do so).

Distinction between duty and liability

If X deposits or lends a thing to Y, there is no duty in Y to restore it until X makes a demand. Before such demand is made Y is under a liability to be placed under the duty. The demand itself is the exercise of a power. The distinction is important, for instance, in connection with the limitation of actions. Thus, in Re Tidd, Tidd v. Overell (1893)3 Cj 154., where money was entrusted to person for safe-keeping, it was held that the period of limitation only commenced from the time that a demand for restoration had been made. Again, a deposit of money with a bank amounts to a loan, and there is no duty to repay until a demand has been made. Joachimson v. Swiss Bank Corpn****. (36)3 KB 110 shows that time only runs from demand and not from the time of the original deposit. A sum of money can be attached under a garnishee order if there is a duty to pay, even though the actual time for payment may be postponed. In Seabrook Estate Co. Ltd****. v. Ford (37) (1949) 2 All ER 94, a debenture holder appointed a receiver, who was to realize the assets and then pay off any preferential claims and the principal and interest to the debenture holders, and having done that, to pay the residue to the company. The judgment creditors of the company sought to attach a certain sum of money in the hands of the receiver before he had paid these other debts and which was estimated to be the residue that would be left in his hands. It was held that this could not be done as there was as yet no duty owing to the company from this kind of situation must be distinguished those where there is a duty owing, but the performance of which is postponed. Such a debt can properly be the subject of attachment.

Distinction between duty and ‘subjection’

If X promises Y under seal, or for consideration, that he will pay Y £5 on the following day should it rain, there is clearly no duty in x unless and until that event occurs. In the meantime X’s position is simply that he is ‘subject’ to be placed under a duty. The distinction need not be elaborated further and may be dismissed with the comment that this is not liability to a power, but to a non-volitional event and, as such, forms the basis of much of the law of insurance.

An analytical problem arises with such a rule as Rylands v. Fletcher, 38 (1868) LR 3 HL

330. (under which an occupier has to pay for damage caused by the escape of a substance likely to do mischief) and the rule concerning animals (under which the ‘keeper’ has to pay for damage done by dangerous animals and trespassing cattle), both of which do not involve fault. There seems to be a distinction between these cases, which are sometimes called ‘strict duties’. A duty prescribes a pattern of conduct, and by ‘strict duty’ (e.g. duty to fence dangerous machinery) is meant one to which the actor may not be able to conform no matter how reasonably he behaves in the circumstances. With Rylands v. Fletcher and animals, the policy of the law is not to prevent people from keeping mischievous substances or animals, i.e. there is no duty not to keep them. It could be argued, perhaps, that there are duties to prevent escape, in which case they would be correlative to claims; but this is not how the

10 Jural Relations rules are framed. What they say, in effect, is that one keeps these things at one’s peril, i.e. liability attaches in the even of escape, which makes the position analogous to X having to pay £5 tomorrow if it rains. If so, there is no way of accommodating cases of ‘subjection’ within the Hohfeldian scheme, except to say that they are not jural relations and therefore are not entitled to a place therein.

Distinction between liberty and power

Buckland disputes the need for any distinction. All rights [liberties] are rights to act or abstain, not to produce legal effects. To say that he has a right that his act shall produce that effect is to imply that if he liked it would not have that effect, and this is not true. The act will produce the legal effect whether he wishes it or not. If I own a jug of water I have a right to upset it, but it is absurd to say that I have a right that the water shall fall out. [Buckland, Some Reflections on Jurisprudence 96]. It would appear that Buckland misunderstood the nature of the Hohfeldian power. It is not a ‘right’ that certain effects shall ensue. Acts that have certain effects are called powers; those that do not are not called powers. That is distinct from the liberty to perform or not to perform such an act. The distinction may be put as follows: the liberty to perform or not applies to all types of conduct, but considered with reference to their effects, it can be seen that some actions result in an alteration of existing legal relations, while other do not.

Rightful and wrongful powers

The significance of the distinction between the nature of the act and the liberty to do it may be demonstrated in this way. Sometimes a power may be coupled with a liberty to exercise it and a liberty not to exercise it, while at other times it may be coupled with a duty to exercise it. In both situations the exercise of the power may be said to be ‘rightful’. When a power is coupled with a duty not to exercise it, such exercise would then become ‘wrongful’

Where a power is coupled with a liberty, a party cannot be penalised for having exercised it, or for not having done so. Thus, X may for no consideration at all give Y permission to picnic on his land. He may then change his mind with impunity and order Y to depart, i.e. exercise a power revoking Y’s licence and imposing on him a duty to leave. If Y fails to do so within a reasonable time he commits a breach of that duty and becomes a trespasser. Chapman v. Honig (1963) 2 QB 502, Y had a liberty to be on X’s land. X Assigned his interest to A and Y assigned his interest to B and exercised his power to revoke B’s liberty. It was held that he could do so; since there was no contract between A and B, A was under no duty not to exercise his power, i.e. he had a liberty to do so. Wood v. Lead bitter (1845) 13 M & W 838. Little is left of this case since Hurst v. Picture Theatres Ltd****. (1915) 1 KB 1, but the principle is sound is not exactly in point, for the plaintiff’s liberty to be on the defendant’s premises was created by contract. The defendant ordered the plaintiff to leave and, after a reasonable time, expelled him with reasonable force. The plaintiff did not sue in contract, though there was undoubtedly a contractual duty not to exercise the power, but sued for assault instead. It was held that, since he had become a trespasser, he could be ejected with reasonable force. It was held in East Suffolk Rivers Catchment Board v. Kent (1941) AC 74 that the Board had a power and discretion (liberty) as to its exercise. In R. v. Board of

12 Jural Relations i.e. breaches of duty. Though Hohfeld purported to distinguish between uses of the word ‘right’, it is clear that not all powers, in the sense in which he used that term, can be called ‘right’. This is hardly a criticism. The power concept is unobjectionable as power; it cannot always be brought under the umbrella of ‘rights’; which only reinforces the case for the greater precision and scope of the Hohfeldian terminology.

Kinds of powers

Broadly, they may be divided into ‘public’ and ‘private’, but both involve ability to change legal relations. When a public power is coupled with a duty to exercise it, it is termed a ‘ministerial’ power; when it is coupled with a liberty, it is termed ‘discretionary’. Public powers, though numerous especially in a administrative law, cannot compete with the profusion of private powers. The appointment of an agent, for instance, is a power, for it confers on the agent further powers to alter the legal position of the principal and creates in the latter corresponding liabilities. A married woman has power to pledge her husband’s credit for necessaries, in contract there is a power to make an offer and a power to accept, and innumerable other in contract, property, procedure and, indeed, in every branch of the law. Private powers may also be coupled with duties to exercise them, e.g. certain powers of trustees, or they may be coupled with liberties.

IMMUNITY- DISABILITY RELATION (‘YOU CANNOT’)

Immunity denotes freedom from the power of another, which disability denotes the absence of power. In Hurst v. Picture Theatres Ltd****. (1915) 1 KB 1 it was held that where a liberty to be on premises is coupled with and ‘interest’, this confers an immunity along with the liberty, which cannot therefore the revoked. The relationship between power, liability, immunity and disability may be explained as follows:

(1) If X has a power, Y has a liability. They are therefore ‘jural correlatives’. A liability in Y means the absence of an immunity in him. Therefore, immunity and liability are ‘jural opposites’ (more strictly, ‘jural negations’, as previously explained). (2) Conversely, the presence of an immunity in Y implies the absence of a liability in him. The absence of a liability in Y implies the absence of a power in X. Therefore, an immunity in Y implies the absence of a power in X, i.e. power and immunity are ‘jural contradictories’, (3) The absence of power could have been styled ‘no-power’, in the same way as no- claim, but Hohfeld preferred to give it the term disability. Power and disability thus become ‘jural opposites’ (‘negations’). It follows from this that immunity in Y implies the presence of a disability in X, i.e. they are ‘jural correlatives’.

Distinction between claim and immunity

An immunity is not necessarily protected by a duty in another person not to attempt an invasion of it. If X is immune from taxation, the revenue authorities have no power to place him under a duty to pay. A demand for payment is ineffectual, but X has no remedy against them for having made the demand. If immunity is the same as claim, there should be correlative duty not to make a demand. In Kavanagh v. Hiscock (1974) QB 600, it was held that the relevant section of the Industrial Relations act 1971 (since repealed) conferred on pickets an immunity

13 Jural Relations from prosecution or civil suit, but no liberty to stop vehicles on the highway and no claim not to be prevented from trying to stop vehicles. Secondly, there may be an immunity in X, which is protected by a duty in Y, but the claim correlative to that duty is not in X. Thus, diplomatic envoys are immune from the power of action or other legal process. As pointed out earlier, even if there are claims correlative to duties in criminal law, they are not in the persons for whose benefit the duties exist. Finally, an immunity in X may be protected by a duty in Y and the claim correlative to the duty may also be in X, as in the case of the malicious presentation of a petition in bankruptcy [ Chapman v. Pickersgill (1762) 2 Wils 145]. In 1936 the corporation conveyed to the company a plot of land for 99 years for use as an airfield, and the corporation undertook to maintain it for use by the company. In 1970 the corporation purported to revoke the company’s interest in the land. It was held that although the corporation was not entitled to override the company’s interest in the land, the latter’s only remedy lay in damages and not in an injunction. The effect of the 1936 conveyance would appear to have been to grant, inter alia , a liberty to the company; and if the corporation was unable to determine that interest, then that liberty seems to have been coupled with an immunity against revocation. The court refused an injunction on the ground that to issue one would amount to compelling the corporation to fulfil its obligation to maintain the airfield, i.e. be equivalent to an order for specific performance. It is here that the confusion lies. The ‘right’ of the company, which the court held could not overridden, was its liberty plus immunity; but the ‘right’ correlative to the duty to maintain the airfield was its contractual claim. Breach of this duty is remediable by damages, but the question whether an injunction could be issued to support the immunity ought not to have been related to compelling performance of the contractual duty.

Distinction between liberty and immunity

The position of a diplomatic envoy illustrates this. Such a person is treated as being capable of committing a breach of duty and is under a duty to pay damages, although immune from the power of action or other legal process to compel him to do so. In other words, he has no liberty to do the act, nor a liberty not to pay damages for it, but he has an immunity from process all the same. It was held in Dickinson v. Del Solar (1930) I KB 376 that the fact that an envoy was thus under a sanctionless duty to pay damages was sufficient to involve his insurance company in responsibility. If, on the other hand, he voluntarily pays the damages, he cannot recover them, since there is the duty to pay.

15 Laches and the Rights to Constitutional Remedies

case. If any person has the right to move the court, the court is under a corresponding duty to be so moved. Although the term 'move' can be interpreted restrictively so as to denote a most casual consideration of the petition or the mere act of receiving it, it is not controversial to say that the bare text of article 32(1) imposes an obligation upon the Supreme Court to take appropriate action if the case is proven. What then is the significance of the court's power to interpret the term 'appropriate proceedings'? It is submitted that, in strict Hohfeldian analysis, we have here a case of legal duty qualified by a privilege. The Hohfeldian co-relative of privilege is a 'no-right'. We would then have to say that if the court holds that a particular way of moving it for the enforcement of the fundamental rights is not in the nature of 'appropriate proceedings', no right of the individual is thereby violated. But surely this privilege - no-right relation occurs within the context of a right-duty relation. That is to say, the court is not free to say that it is under no legal duty to be moved. It is. It can only say that it has a privilege to hold that a particular manner of initiating proceedings before it is not 'appropriate'. The court has a similar privilege to define the term 'proceedings'. We now turn to article 32(2) which, as is well-known, empowers the court to issue "directions or orders, or writs...for the enforcement of any of the rights conferred by this Part". This language of article 32(2) is regarded by some scholars to mean that the court is enabled, in cases of proved violations of fundamental rights, to issue certain orders, directions and writs. The argument is that if article 32(2) is an enabling provision, an empowering one, the court has a discretion whether or not to use that power. The conclusion follows inescapably that article 32(1) guarantees a right ; 32(2) invests the court with power. There thus arises a dualism between the two provisions: one under which the court is under a legal obligation to be moved, another under which it has a power which it is under no legal obligation at all to exercise. The conclusion is manifestly wrong because the reasoning is entirely fallacious. The correct juristic analysis is that the constitutional obligation cast upon the court to be moved for enforcement of part III rights is coupled here with attendant powers to be so moved. The court cannot be moved to any worthwhile effect under article 32(1) if it did not have a power to issue 'directions, orders or writs'. Since the power is conferred in the aid of a constitutional obligation, the exercise of that power cannot at all be discretionary. Whenever an appropriate proceeding as determined by the court is before the court, the court must issue directions, or orders or a writ. And the 'direction, order or writ' must be for the enforcement of a fundamental right if the right is found to be in need of such enforcement. Only the Supreme Court (or a court empowered under article 32(3)) can decide whether right is violated or it needs to be enforced. The moot point here is: Can the Supreme Court itself say otherwise? That is, can the court say that even though the right is violated or needs enforcement, it will not exercise its article 32(2) power? The answer to this is that it may say so; but when the court so says its judgment is vitiated by unconstitutionality and, even on a strictly legal positivistic approach, the judgment is not entitled to obedience, it being void under article 13. A judgment or an order of the court is

instances of infringement of fundamental rights discarding certain cardinal principles of administration of justice...."; see also Seervai, infra note 3.

16 Laches and the Rights to Constitutional Remedies

undoubtedly a law under article 13. It determines no doubt the legal relations inter partes. But decisions for the enforcement of part III rights also create law which is binding on all courts throughout the territory of India. If this answer is correct (and the author believes it is) then article 32(2) cannot at all be regarded as conferring a power merely; it must be appreciated as conferring the power to enable the court to perform its constitutional obligation. From this viewpoint, the decision by the Supreme Court to dismiss a petition in limine, or on the grounds of laches , res judicata (constructive or otherwise) presents massive problems. This is so because the court in these cases is not really saying that the allegedly infringed fundamental rights need no enforcement. Rather, the court is saying that it itself will not examine that issue at all. With great respect it is submitted, the court has no authority to so do, more so since the right to constitutional remedies is itself a fundamental right. Seervai argues, however, that no "fundamental right is conferred to obtain relief from the Supreme Court regardless of all considerations relevant to the administration of justice."^4 Such a statement standing alone cannot signify anything more than an elucidation of Seervai's personal preferences which, though entitled to some weight, cannot be regarded as more authoritative than the plain text of article 32. And Seervai is normally a champion of the rule that the clear text is compelling. Realising this, he argues as follows: ...Article 32(2)...confers a power to issue writs. This power is not expressly coupled with a duty, nor can a duty to exercise the power be implied because the writs there mentioned, except habeas corpus , were discretionary in England and in India.^5 The language of article 32(2) is, unfortunately for this view, even more clear than what Seervai allows. It is more clear because first the power is the power to issue 'directions, orders and writs'. Second , the writs are inclusive of five typical writs but not exhaustive. New writs could be evolved, which are unknown elsewhere. To say that this cannot happen is to impute disingenuity to Indian lawyers and judges. Third, and equally important, the powers to issue writs is the power to issue writs in the nature of five writs therein mentioned. So the fact of their being discretionary in England is not constitutionally conclusive in India. The expression writs 'in the nature of the five historic writs does not necessarily refer to the discretionary nature of the writs. The words 'in the nature of rather refer to the mode of proceedings and judicial order upon hearing and disposal of the same. By the same token, the argument that the Supreme Court has treated article 32(2) as discretionary as far as the issue of the writs is concerned is scarcely an argument for saying that it is necessarily right in so doing. Golak Nath showed that an approach to amending power employed by the court for nearly seventeen years may yet be declared wrong. Indeed, Seervai himself seems to disagree with his above-quoted views. In his treatise on constitutional law, he goes so far as to say that the judgments of the Supreme Court which suggest, or state, that the grant of an appropriate writ under Art. 32 is discretionary, are not

(^4) See H.M. Seervai, "The Supreme Court, Article 32 of the Constitution and Limitation," 73 Bombay

L.R. (Journal) 35-38 (1969) at p. 37 and V.G. Ramachandran, "Is Article 32 a Discretionary Remedy Subject to the Doctrine of Laches?'' 1969 (2) S.C.C. 21-34. (^5) Id. at 37-8.