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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

Ram holds a claim-right against Rahim to wash Ram’s scarf if and only if Rahim has a duty to Ram to wash Ram’s 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 Ram’s sister’s scarf, then Rahim still owes this duty to Ram, not to Ram’s 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 Rahim’s 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 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 someone’s Hohfeldian incidents (his own or someone else’s). 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 driver’s 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 Sunny’s 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 Narendra’s 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.
  • 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. Ramesh’s 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.
    1. If he is a railway coolie he can use this right and form an association along with his friend Danny.
    2. He has every right to renounce this membership of association with friend Danny whenever he wants
  • 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 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.

 

 

 

 

 

 

 

 

 

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In politics, many people believe they have different choices to select from, but in reality, they are left with political parties having same ideologies with similar styles of functioning. The political parties in India go to a great extent in creating the perception that they are different from each other, but a careful analysis will reveal that they have a similar style of functioning. For example, in the state of Tamilnadu the two major parties AIADMK and DMK works in similar fashion in all the criteria of governing like Leading the party ,strategizing during elections, and handling important issues affecting the state.

 

First in terms of leadership, both parties have similar styles of functioning. During the elections, for the post of party presidency members of both the parties select their leader unanimously. In the last 3 decades, both DMK and AIADMK have selected the same incumbent leader of their respective parties without anybody opposing them, thereby, proving that there is little party democracy left within them. The leaders themselves, in turn, give the most important positions to those who are close and loyal towards them. For example, In DMK, next to party president most of the other important positions are held by the family and close friends of the party president. Similarly, in AIADMK, it is no wonder that most of the decisions are taken by the close friend of its leader .Furthermore, both leaders have shown very immature animosity towards each other like arresting the opposition leaders by registering various cases against them and also, scrapping their welfare schemes .Thus,in terms of leadership style, there is little difference between the party leaders.

 

Next, they adopt similar strategies when facing elections. From candidate selection to party manifesto, these two parties follow very similar approach which in a way has brought immense success to them. During the recent elections, both parties selected candidates based on caste, money and loyalty. The manifesto of both the parties contained various free riders and appeasement towards the section of the population that they think will vote for them. During the vote canvassing both parties fielded various celebrities like film stars, cricketers, used the social media and news channels for advertising and illegal form of paid news. Last but not the least both distributed cash to voters as a means to lure them.

 

When it comes down to ideology and other important issues affecting the state, the parties act in no different manner. Both parties adopted a similar stand on the Srilankan Tamil’s issue by calling for an immediate ceasefire of the war and giving Tamils complete autonomy in their area, and advocated the central government to withdraw logistical support to the Srilankan army. In the similar fashion, the kudankulam issue saw both parties openly supporting the villagers and requesting the central government to stop using the nuclear reactor for power generation. In all other issues like liquor prohibition, river water management, agriculture, they take the same stand as one another.

 

In conclusion, the people of Tamilnadu are left with little choice to choose from the elections. The major parties in the fray DMK and AIADMK have the same ideology and are no different to each other. Their leaders work in a very similar fashion. Their stand on various issues of Tamilnadu polity is similar as well. Hence, what may seem as two parties with major difference is a myth, and in essence they are same in ideologies, leadership and functioning.

 

 

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