ARE THERE ANY NATURAL RIGHTS? - H.L.A.

HART

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2 propositions:

I. ‘A’ has a RIGHT to stop ‘B’ from smoking.

1. When B has promised to A that she shall not smoke.
(a) It’s a deliberate surrender of freedom.
(b) A gets temporary authority over B.
(c) Only A can stop B and no one else.
2. When B has consented to A that he may stop her when she smokes.
(a) It’s a deliberates surrender of freedom.
(b) A gets temporary authority over B.
(c) Only A can stop B and no one else.
3. When A and B are the members of a group that co-operates and mutually benefits by quitting
smoking.
(a) All the members shall have a right over all others.
(b) Mutual benefit makes it a moral right.
(c) Questions like ‘do we have an obligation to obey law’ arise from this premise.
(d) ‘Utilitarian rights’ also arise from this premise.
4. When there exists a special natural relationship between A and B.
(a) E.g. if A is the mother of B.

A’s right in all the above circumstances is a SPECIAL right.

When no such special right exists,

II. ‘B’ has a RIGHT not to be stopped by ‘A’ from smoking.

This is a GENERAL RIGHT of B.

Special right and General right arise from the principle that all men have equal right to be free.

‘Equal right to be free’ is the NATURAL RIGHT of everyone.

It is liberty which is natural to us and thus this idea is close to Nozick’s idea.
 POSSESSION AND OWNERSHIP

Importance of the Idea of Possession

 It is prima facie proof of ownership.

 It allows possessory remedies, even in case of invalid or unlawful possession, for instance under the
Rent Control Act. [compensation, right not to be dispossessed, etc.] Section 378 of IPC: Theft It is
all about the possession of the property; for establishing theft all you have to prove is that you were
in possession of the property.
 It creates possessory liabilities. There is a distinction created between possession and ownership.
There are separate rights and liabilities associated with possessory right. In case of law of torts, the
liability associated with negligent use of the property will be of the possessor. Another example is
that of possession of illegal objects; here again the liability is based upon possession.
 It creates ownership. Continuous possession can create ownership.
 Thus the concept of possession is very important. It has a direct nexus with criminal law and tort law.

Progression of the Theory of Possession

Stage 1-
Corpus Possessionis + Animus Domini
Problem: How to deal with Pledge like cases?

 Savigni was the first person to theorize possession. According to him, to constitute possession 2
elements are required to be present simultaneously
1. Corpus Possessionis Physical proximity or relationship in such a way that you have the ability
to reproduce that thing; you need not carry the things with you.
2. Animus Domini [Mental relationship]  It refers to the intention to hold the thing as an owner.
Even if you are not physically holding the things, in your mind you consider yourself as the
owner of the thing.
 When clothes are given to the laundryman, both you and the laundryman will have corpus
possessionis but only you will have animus domini and thus you will the real possessor.
 Problem of pledge When you deposit gold ornaments with a bank in exchange for loan, only the
bank will have the corpus possessionis because of the effective control. You will not have corpus
possessionis. Animus Domini will still be with you. In such a case, the 2 elements are split. When
Savigni’s idea is applied, no one will have the possession.
 Thus arose the need for modifying the theory.
 Another set of scholars modified the theory.
 Thus came up the second stage.
Stage 2-
Corpus Possessionis +Animus Possedendi
Problem: How to deal with a ‘misplaced thing’ like case?

 Animus Possedendi: Intention to exclude others and you are not thinking that you own the thing as is
in the case of Animus Domini.
 In the above example of bank, bank can exclude other from possessing the gold. Even the owner can
be excluded if he has not repaid the loan. If the owner dispossesses the bank of the gold, he will be
committing theft.
 Problem Example: Whitewashing in house; Whenever this happens, certain things are displaced.
While rearranging you may find that you have lost certain things. You find that your gold ring is
missing. You know that you have kept it somewhere but you cannot recall where you kept it. Thus
the thing is lost in your own house. After one year you completely stop looking for it. If a servant
discovers that ring in your house and puts it in his pocket, will that amount to theft. In this case, you
had Animus Possedendi but you don’t have Corpus Possessionis because of the lack of effective
control and thus we cannot say that the servant has committed theft. This is problematic
 Thus arises the third stage.

Stage 3-
Only intelligent awareness for the continuation of possession, after Stage 2 is satisfied.
Problem: How to explain cases in which law imposes strict liability?

 To constitute possession, you have to satisfy the conditions of Corpus Possessionis and Animus
Possedendi only once. Thus the loss of a thing will not be considered as loss of possession. In the
example of lost ring, when you bought the ring you had satisfied the 2 conditions. Now if you
misplace the thing and you lose corpus possessionis, you will not lose possession because of the
intelligent awareness regarding the continuation of possession.
 Problem Example: Cocaine found in your bag by the custom authorities at an airport. The cocaine
was placed by someone else. In such a case you will still be liable for possession even if there is
absence of above 2 conditions.
 Thus arose the fourth stage.

Stage 4-
Possession is attributed as per the policy of the State. No theory can explain the concept.

There are certain practical questions regarding de facto possession, de jure possession and constructive
possession. Situations have become too numerous to be put under one single umbrella and thus possession is
a matter of policy of the State.
Classification of Possession

1. Corporeal/ Incorporeal [corporeal: possession of a thing; incorporeal: possession of a right]; For

example: when you live in your house, it amounts to corporeal possession but when the house is
given on rent, the corporeal possession is with the paying guest and the right that you possess
amounts to incorporeal possession. Right to sell is transferred if you ask a mercantile agent to find a
suitable buyer to sell it and you have given right to use, right to possess, etc. to others. Do you still
have ownership? After transferring all the rights, we have to see whether one particular right still
remains with you, that is the right to reversion (when all other rights get exhausted, the person to
whom the right will revert back will have the right to reversion)]
2. De facto/ De jure
3. Actual/ Constructive

In constructive possession holder holds the property:

a) Exclusive of the other

b) Jointly with the other
c) Prior to the other

Adverse Possession

Uninterrupted and uncontested actual possession of a property (for statutorily specified period) hostile to the
rights and interests of the true owner creates ownership in the possessor by adverse possession.

Requirements:

1. Should be actual: amounting to some alternation to the state of the property, considering the nature
of the property. (Putting your material on another’s land may not be enough. Inclosing another’s land
may not be enough. Putting up and locking the gates may not be enough. Fencing the area may not
be enough. Cutting and removal of turf may not be enough. Against the trespasser slightest evidence
is enough to show the continuation of possession of the original owner.)
2. Should be open: Such that a notice should go to a reasonable man. (Stealthily entering and using the
land so that nobody observes cannot be enough.)
3. Hostile to the true owner: Such that the owner is excluded from the property. (Concurrent use cannot
create adverse possession.)
4. Absence of violence: Such that the owner should not have objected to the possession of the trespasser
or squatter. It has a broader meaning, it does not refer only to physical violence.
5. Absence of permission: Such that there is no consent of the true owner. After renting out the
property, the owner stops taking care of the property and after the statutory time period the paying
guest cannot claim adverse possession because the right from the beginning has to be adverse.
 6. Time: 12 years for private property or 30 years for government property. (Article 65, Schedule I r/w
Section 27 of the Limitation Act)
7. Continuity

Justification of Adverse Possession

The justification goes back to the time when the land was mainly used for agricultural purposes. If the real
owner is not using the land, then somebody else should be allowed to use it. The land should not remain
idle. It should be put to use.

1. Title to land should not be in abeyance for very long.

2. The society will be benefitted by the use of the and by someone rather than it being lying idle.
3. Sleeping litigant has no remedy.
4. Possession is nine points of law. (Ownership is easier to maintain if one has possession.)

Criticism of Adverse Possession

1. Legalised land theft

2. Unjust enrichment
3. Uncertainty due to subjectivity in the meaning of open, continuous, hostile, exclusive and actual.

PERSON

History of the idea [RWM Dias- Jurisprudence]

 The idea of person was associated with mask, which a theatre artist used to wear while performing.
The mask was called a person.
 Later a shift took place and the word person started to get associated with the character being played.
 The word person then got attached to the artist himself. Thus human beings were being called
persons.

An entity capable of having rights and duties is a person. (Natural Person)

An entity to which rights and duties are attached or ascribed is a person. (Legal Person- not just human
beings but all other entities)

The concept of person is always a matter of policy.

Theories on Personality

 Purpose theory: An entity is considered a person for some purpose. To prevent concentration of
wealth, the State will ensure re-distribution of wealth. This becomes the purpose. Only biological
existence does not make an entity a person. Personality is a label attached to entities for some legal
 purpose by the legal system. For example, for the purposes of taxation, some entities may be termed
as person.
 Bracket theory: There exists a bundle of rights and duties associated with various entities. What you
obtain by taking one bundle together is the person.
 Fiction theory: Person is not a biological term. It is a fiction – a creation of the law.
 Hohfeld’s idea: In any transaction, a multitude of jural relationships emerge. To simplify this
complex set of jural relationships, law gives the term ‘person’ to various entities.
 Concession theory: State is the ultimate entity and the people are the small components of the State.
No entity has any claim over the state to be treated as a person. The state gives a concession by
recognising various entities as persons. Thus, the source of legal power to recognise an entity as a
person lies in the state. This is a communist conception of personality.

Dead Human Beings

1. Ashray Adhikar Abhiyan vs. UoI (2002) – Even a homeless dead person has a right to a decent
burial.
2. Section 297 IPC: It is an offence if indignity is shown towards a human corpse.

Lower Animals

1. Prevention of Cruelty to Animals Act 1960: A fine or simple imprisonment may be imposed in case
of violations.

Slaves

1. They were not related as persons.

2. Their testimony was not admissible in court of law.
3. Were treated as property.
4. Run-away slaves were required to be returned to the owner, following the concept of “finder of
goods”.

Unborn Child

1. Section 13 of TPA- property may be transferred for the benefit of an unborn person.
2. Is entitled to a share at the time of partition under Hindu Law.
3. Muslim law does not allow a gift to an unborn person.

Guru Granth Saheb

1. Shiromani Gurudwara Prabandhak Committee vs. Som Nath Das (2000) – Guru Granth Saheb is a
juristic person.
2. Not every Guru Granth Saheb is a juristic person; the one which is consecrated becomes a juristic
person.
 3. Once property is gifted to it, it cannot be taken back.

Gurudwara is not a person.

Hindu Idol

1. Hindu idol is a juristic person if it is consecrated in the temple. The necessary pran-peratishtha needs
to be done. [Sri Adi Vishweshwara vs. State of UP (1997); Ram Jankijee Deities vs. State of Bihar
(1999)]
2. There is a distinction between the spiritual side and the material side of the idol. The material idol is
not a person. Therefore, if idol is broken, it will not amount of death of the person. If it is stolen, it
will not amount to abduction or kidnapping of this person.
3. Hindu idol is considered a perpetual minor, which mean it will never become a major. Minority is a
disability under Limitation Law, and the suit can be filed after the disability is overcome. [O. 32,
CPC r/w Section 6, Limitation Act]

(In Ram Janmabhumi Case, Allahabad High Court dismissed Sunni Wakf Board’s case in 1961 as time
barred. However, in 1989, it admitted Ram Lalla’s suit. Hindu idol or Ram Lalla was considered a minor
and therefore Limitation Law does not apply on him)

4. Hindu idol is a taxable entity.

5. It can hold property in its own name.
6. It can sue in its own name.

Hindu Temple is not a person.

Mosque is not a juristic person.

Hindu Undivided Family is a person.

Rivers

1. River Ganga and Yamuna are persons. [Md. Salim vs. State of Uttarakhand (2017)]
2. The judgement has been stayed for the time being by the Supreme Court by an unspeaking order.

Pure Business Entities

 Companies
 Partnership firms
 Limited Liability Partnerships

Companies

 How does a company come into existence?  By incorporation

  The requirement of incorporation
 Types of Companies
 Legal personality of a Company

Company is a person but not a citizen.

 Section 3(42) of the General Clauses Act- Expression person includes a company
 Section 2(f) of the Citizenship Act, 1955. Does not include
 Section 11 of IPC- includes

Company can have liability under general criminal law and also under special laws

 Section 38, NDPS Act

 Section 21, the Transplantation of Human Organs Act 1994
 Section 66, Food and Safety Standard Act, 2006.

Prosecution of the companies is maintainable even for those offences for which there is mandatory jail
sentence. Since a company cannot be sent to jail even for the offences that impose mandatory jail
term, a fine may be imposed on them in lieu of the imprisonment.

 Lex non cognito ad impossibilia: law does not contemplate something that is impossible. It can be
assumed that the legislators intend to exclude any impossible proposition. Keeping this maxim in
mind, the SC in 2003 held that a company cannot be prosecuted for any offence which involves a
question of mens rea or a mandatory jail term (Assistant Commissioner Assessment – II, Bangalore
v. Veliappa Textiles).
 This position changed in 2005. Companies can now be prosecuted even for offences involving a
question of mens rea and where a mandatory jail is required. In such cases, the jail term is translated
into a fine. (Standard Chartered Bank v. Directorate of Enforcement).
 Companies can have fundamental rights.
 DCM v. Union of India.
 Company has Corporate Social Responsibility
 S.135 r/w Schedule VII, Companies Act. This provision is similar to Article 51A. Thus, a company
is not considered simply as a profit-making machine, but an entity having certain duties as well.
 In the final appreciation, a company is not only a legal person, it has a near complete personality
within the Indian legal system, akin to any natural person. Partnership firms and LLPs, on the other
hand, have very limited personality, with the latter having a greater character of personality than the
former.