Legal Rights: A Reality Check

A right is any action of an individual which law permits. Hence legal rights and moral or natural rights are not the same. Legal rights are recognized and protected by law, whereas moral or natural rights might or might not be recognized and protected by law.

Salmond’s definition- According to him a right is supposed to be an interest which is recognized and protected by a rule of right. Hence it is any interest or respect for which is a duty and the disregard of which is not correct.

Positive right

A positive right relates itself to a positive duty or positive obligation. Positive rights are those which require the action of others. Accordingly the right of the owner is entitled to have something done for him without the performance of the action of which his enjoyment of the rights is imperfect and incomplete. Example: If A buys vegetables from B, a vegetable vendor. Then B has a positive right to get the cost of the vegetables from A.

Negative right

A negative right is the one that forbids an action. Negative rights have negative duties in relation to them and the enjoyment completes when interference takes place. Example: A person has a Right to life, so nobody has the right to kill him. Hence not to be killed by others is a negative right.

Real right

They are Right in rem. It is usually negative. A real right is available against the entire world. Anybody’s right to the passion and use of money is a real right. A real right is basically against everyone to not be deprived of any liberty or reputation.. There are a number of rights in rem. Example: An individual has the right of not to get defamed and assaulted.

Personal right

They are Right in personam. It is usually positive. It is available only against determined persons. Example: Right to receive compensation for false imprisonment & a person has a right to get back the debt from the person who owes him the money. Rights of parties are also involved in a contract.

Primary rights

These rights can also be considered sanctioned, enjoyment rights or antecedent. Primary rights are basically independent of a wrong being committed. They are hence independent and exist for their own sake. Examples of such rights are the rights of reputation, right of the owner of a guardian.

Secondary rights

Secondary rights are also called sanctioning restitute or remedial right. These rights are a part of the machinery given by the state for the redressal of injury or harm to primary rights. They are in the form of remedial rights.

Perfect rights

These rights correspond to perfect duty which are not only recognised by law but also enforced by law. The courts therefore enforce such perfect rights if necessary with the help of physical force of the state. The right of a creditor to recover his dues from his debtor can be considered as an example for perfect right. This is a delivery of possession in favour of the plaintiff’s right. It can be said that all fundamental rights are perfect rights.

Imperfect rights

These rights are recognised by law not are not enforced by law. Imperfect rights will not have legal proceedings. Barred by lapse of time claims legal action which is not enforceable on account of absence of some strict legal prerequisite like non registration of a document when it is compulsory to do so and so on. Hence in the case of time barred debt, the creditor cannot retrieve or recover his dues back because the law of limitation bars the remedy. Imperfect rights act as an exception to the maxim “Ubi jus ibi remedium” which literally means that where there is a right there is a definite remedy.

To have a better understanding of perfect and imperfect rights certain situations are elaborated below

If a person is defamed in a public forum he/she has the right to claim for damages. Similarly if a person has been injured due to the negligence of another party the injured party has the right to claim for damages. Under the Consumer Protection Act, consumers who have been aggrieved due to unfair trade practices of traders can claim for various reliefs.

With reference to breach of contract and personal injury the aggrieved party has the right to seek relief. In the case of assault, voyeurism, usage of criminal force against any woman, stalking, insulting the modesty of a woman, sexual harassment, honor killing and many such serious crimes, the aggrieved party or the victim has the right to seek justice. With reference to Motor Vehicle Act 1988, the aggrieved party is entitled to recover the money or suitable relief for the damage he has incurred. In the case of nuisance the disturbed party has the right to seek redressal which is a perfect right be it public or private nuisance subjected to certain restrictions.

Trespass to property is considered as an offence and the victim has the right to redressal in such cases irrespective of whether property is being damaged or not which is again subjected to certain restrictions. All the above mentioned rights are called perfect rights.

In the case of imperfect rights, as mentioned above, the creditor cannot claim back his dues on a time barred debt. Similarly, when a person is injured due to the negligence of another party he /she has to file a suit within a time period of 3 years from the date of the incident. With reference to filling a case for consumers, the limitation period is 2 years after which even though the case is valid it will not be enforceable.

For breach of contract the limitation period is 6 years and for personal injury it is 3 years. For cases involving assault, voyeurism, stalking, using criminal force against women and insulting the modesty of any woman the limitation period is 3 years for filling a suit from the date of incident. In the case of sexual harassment at workplace the limitation period is 3 months within which the victim needs to report to the internal or local committee of the organization and with regard to rape the limitation period is not specified since it is an exception to the above mentioned wrongs and is considered as a heinous crime. With respect to the above mentioned wrongs, if the aggrieved party files suit after the limitation period comes to an end such cases will not be enforceable in the court of law.

Therefore the limitation period acts as a disadvantage or as a hindrance if the aggrieved party was genuinely unable to file a suit due to various reasons such as lack of knowledge or exposure to such limitation period, afraid of filing or unable to recover from the trauma leads to delay in filing the suit which often becomes time barred (sexual harassment cases). To elaborate on sexual harassment related cases, most of the victims need time to come out of the trauma to file a report or report it to the committee which might extend over 90 days because the mental strength of victims cannot be generalized and that the strength varies from one person to another.

Some might even require counselling or external help to come out and report the harassment while some do not require such help. Therefore the limitation period acts as a major hindrance. In the case of nuisance, it is specified that if just a single plaintiff files a suit whereas others belonging to the same surrounding where the nuisance has taken place has not affected them the suit cannot be carried on based on just a single plaintiff’s complaint. This is not justified because not everyone’s tolerance level is the same and it cannot be generalized based on the majority. Such cases need to be verified and given judgment based on an individual’s complaint and not based on what the majority say provided the victim’s acquisition is genuine.

Here the right for the plaintiff to seek justice is denied based on something which cannot be generalized and also if the plaintiff files a suit after 6 months from the first breach of warning. These reasons often act as loopholes for the legal rights given by the constitution to its citizens and many take advantage of such loopholes to escape from being punished while the victims are unable to seek the justice that they are entitled to. Hopefully the law makers take into consideration the above mentioned loopholes and bring out constructive changes such as increasing the time period for filing cases with respect to sexual harassment at workplace from ninety days to a period of two years which is followed by Canada.

Even for cases relating to nuisance, negligence and many such wrongs the limitation period and the prerequisites for filing such cases also need to be amended such that everyone has equal access to justice and no partiality or bias prevails in the country.

To conclude, limitation period is beneficial in some of the cases while it proves to be disadvantageous in certain cases. Hence government should look for such loopholes which make limitation period and other prerequisites for filing a case unjust and resolve them as early as possible to ensure every single person has equal access to seeking justice.

The article has been contributed by R.Rethiga & Sai Shreya, students at  School of Law, Vellore Institute of Technology, Chennai.