SPECIAL ASSIGNMENT

Submitted to

Ms. Vinita Tripathi

Assistant Professor, Jurisprudence II

By

Prashant Kerketta
B. A. LL. B. (Hons.) Student
Section – B , Roll No. 119
Admission ID – 013/2013/0812

Hidayatullah National Law University

Uparwara Post, Atal Nagar – 492002 (C.G.)

I
 ESSAY- I

QUESTION STATEMENT-

1. ‘The river flows from the mountain to the sea. I am the river, the river is me.’ With
reference to famous saying of whanganui , do you think Rivers have same legal rights
as Human? Comment on rivers as legal entity.

ANSWER

“The great River flows from the mountains to the sea. I am the River , the River is me.”
These are the words of the Maori tribes of the Whanganui, New Zealand who proclaim that they
have a inseparable connection with their ancestral river. In the recent times the world has
recognized three important new legal persons which are the Whanganui river in New Zealand, the
Ganga and Yamuna rivers in India which were later on put on stay by the honourable apex court.1
In New Zealand the Whanganui river gained its recognition through the legislation passed the
government. The recognition emerged through the treaty of Waitsnhi which formally
acknowledged the sacred relationship which the locals of Maori tribe share with the River.
In India the Uttarakhand High Court held that the two rivers namely the Ganga and the Yamuna
which were also considered as sacred in the Hindu religion shall have the same legal rights as of a
person.

Rivers did not had any illegal entity or can say legal personhood status till 5th August 2014, When
the New Zealand government and the representatives of Whanganui Iwi signed Ruruku
Whakatupua, which granted the same legal rights similar to a person to the Whanganui river. The
act of granting legal status to the river seeks to compensate the Whanganui Iwi against private
interests.

1
https://www.nationalgeographic.com/culture/2019/04/maori-river-in-new-zealand-is-a-legal-person/- visited on
1/09/2020

2
LEGAL PERSON- A CONCEPTUAL ANALYSIS

Persons are those who are recognized by law as who are being capable of holding legal rights and
are bound by certain legal duties.
Legal persons are those who are other than the natural persons or can say who are the creations of
law.
Example the Company, Corporations and Trade unions Etc.

The issues pertaining to the juristic personality (also moral or juridical personality) is arduous and
unsolved problems in the science of law. The importance of this issue is not only relevant from the
perspective of academic research, but also has relevance in solving the problems when the rights
or liability is in relation to non-human being entity arises. This problem of juristic personality has
appeared in every branch of laws viz. civil law, criminal law, administrative law, international law,
corporate law, constitutional law, etc. However, there has not been any consensus among the
scholars regarding the criteria is defining ‘juristic’ personality. These personalities in question
such as rivers can be classified into three types viz. real entity, juridical entity, and neither juridical
nor real.2
The scholarly writings on the topic of jurisprudence are based on the fact that the person is the
centre for the legal system and legal theory. However, despite some agreements among the scholars
on the content of jurisprudence, there has not been any agreement among the scholars as to this
‘centre’ (also called ‘person’ or ‘juristic person’).3 Therefore, it is very vital to dissect the concepts
about juristic person. The notion of person in legal science is a dynamic concept, and not static.
Earlier it was only the human beings who were recognized as ‘person’ under the law, which means
that it is the human being only on whom the liability or punishment can be imposed. It was
observed that this principle was used by the corporations to commit wrongs to the society, and
escape liability. However, with the time and complexities in this globalized world, the
corporations, companies, idols, etc were also included under the ambit of person.4 But, certain

2
Leonidas Pitamic, Analysis of the Notion of Juristic Personality, 10 NOTRE DAME LAW. 235 (1935).- visited on
1/09/2020
3
4
George F. Deiser, Juristic Person, 57 U. PA. L. REV. 131-142 (1908).- visited on 1/09/2020

3
crucial questions such as they can be the beneficial owner of the property remained unanswered,
and hence it is crucial to delve into the legal nature of these types of persons.
There have been multiple theories of the legal person in western legal system. The pertinent
question here is whether such western theories can be applied in the determination of the legal
entity of the river.
This project aims at finding the exact legal position of ‘Rivers’ as a legal entity under the law. This
interface is not so easy to determine and hence solve, therefore it is filled with lots of uncertainty.
It is important to find the position of the rivers in this modern legal system.

THEORIES OF THE LEGAL PERSONALTIES

There are various theories by the jurists they also believed that personality is the subjective
possibility of a rightful will. As the legal personality is the artificial creation of the law as the
entities created by the law are the parties to the legal relationship either they can be sued or sue
others in matter in relations to the corporations as the legal persons are the persons they are
created by the law and there are various theorist and theories supporting the artificial persons
and the legal persons.5

Fictional theory – this theory is supported by the Savigny, Salmond, Coke, Blackstone, and
Holland etc. according to the this theory the corporation have the different from that of its
members as the corporation is the exclusive creation of the law having no existence part of the
individual member or group of the members changes but there is no existential issues in matter
related to the corporation or legal personalities. With law it created the fictional character
actually as they are not living beings but they are created by the law as example corporation

erives its power from the law. Solomon vs Solomon & co. ltd5 there is the differences between the
members and corporations.6

Concession theory – this theory is concerned with the sovereignty of the state. As the state have
the power to declare anything’s which is generally the artificial and the fictious can declared as

5
https://www.nationalgeographic.com/culture/2019/04/maori-river-in-new-zealand-is-a-legal-person/
6
RIVER AS A LEGAL PERSON: EXTENDING INTERPRETATION FOR PROTECTION - https://ijlpp.com/river-
as-a-legal-person-extending-interpretation-for-protection/ accessed on 1/10/2020.

4
 the legal personality by the state recognized law and by the law. it focuses only on the source
(State) from which the legal power of the corporation is derived.

Realistic sociological theory – or also known as the group personality theory. As this theory
propounded by the Johannes Althusius and carried forward by Otto Van Gierke.6 This theory
believes that whether artificial person or not it must concern with the mere actual existence or
real existence as recognized by the state or not.

Kelson’s Theory of Legal Personality – He said that there is no difference between legal
personality of artificial persons and then of the individuals. As the matter lies that the artificial
person as legal sense have the complex norms and assign the complex rights and the duties.

CLASSIFICATION OF LEGAL/JURISTIC PERSONS

1. JURISTIC PERSON AS REAL ENTITY

The idea of a juristic person as a real entity is based on the organic theory. This case view that
even before the time when there was no law, such entities still existed.7 However, it is difficult to
appreciate the idea of tissue because it because of the lack of scientific evidence. This view is
based on the belief of the people living in the society.

2. JURISTIC PERSON AS JURIDICAL ENTITY

This view holds that juristic persons are not natural entities but have a legal juridical reality

3. JURISTIC PERSON AS NEITHER REAL NOR JURIDICAL ENTITY

In this category, such entities are neither real entity nor juridical entity, that is they have no legal
rights or duties legal rights and duties are applicable only to the living individuals and therefore
the rights of the arrested person belong to the human being. The rights of the corporation belong

7
supra note 1, 235-236

5
to its members and the right of the endowment belongs to those persons for whose benefit
endowment was created. In other words, the right which not belongs to human beings belongs to
nobody and therefore these rights are applicable only for certain purposes.8

The juristic entities can be divided into two types, first, institutions, and second, corporations.9 In
the case of corporations, it is the individual who brings corporations into existence and therefore
they are related to the corporations, However, in the case of an institution or a foundation the
individuals and others who are related to it are neither the participant in it nor govern its
administration and therefore the individuals are not related to that institution directly or indirectly.
For instance, in case of the corporations, there is a web of complex relationships between the
individual and therefore in order to get away with these complexities in the method of
determination of to whom these rights and duties belong, which actually a complex web of
relationship among individuals, the corporations are created and are attributed with such rights. In
the case of foundations or institutions, a particular or specific human person cannot be found. In
other words, the property in the issue is not owned by any human being, therefore, the human
being cannot be disposed with the property of such institution. In order to solve this issues, the
rules of those foundations become pertinent.10

RIVERS AS A LEGAL ENTITY

In the previous years, many waterbodies and environment have been given rights and legal
personality through the court decision or because of the legislation passed by the competent
authorities. Thus, the personification of nature is not a new case. Some of the main components of
the environment like the sun the moon the earth the ocean the rain the River and the Lake are
considered as gods and living entities by the human beings. In the present time, despite the various
treaties and laws are being adopted to protect the environment still the environment is degrading

8
Indian Court Recognizes Rivers as Legal Entities - http://www.iconnectblog.com/2017/06/indian-court-recognizes-
rivers-as-legal-entities/ accessed on 1/10/2020.
9
supra note 1, 238
10
Should rivers have legal rights? - https://www.orfonline.org/expert-speak/should-rivers-have-legal-rights-like-you-
me-67967/ accessed on 1/10/2020.

6
and it is the responsibility of every human being to defend its existence not for themselves but for
their own survival. Just like the oppressed minorities who have suffered throughout the history
have become the right holders to defend their identity and nature are now being granted certain
rights.11

When it is said that a River is a person it means that the rivers have been recognized as legal
persons which are different from human persons. A legal person is of a juristic entity which is
being capable of holding rights and duties in law.

“Legal rights are not same as the Human rights”. Legal rights confers basically three type of
rights:-
• Legal personhood- The right to enter into any contract and enforce it.
• The right to own and deal any property in its name.
• Legal standing -The right to sue and to be sued in any court of law.

Several other rights may also be conferred in specific circumstances like the right to exist.
The main idea of granting legal status to River is the recognition. Recognition That every
River and Lake is a living hole an indivisible . Recognition of absolute connection between
the tribes and the rivers.

The granting of legal rights to Whanganui river in New Zealand took eight years of attentive
negotiation. The latest legislation which was introduced at a national level transfers the ownership
of the River from the Crown to the Te Awa Tupua ( Whanganui rivers settlement act) and also
assigned a guardian to look over the responsibilities and to represent the interest of Te Awa Tupua.
The Guardian shall consist of two people one who is appointed by the people of local maori and
the other by the New Zealand government. To maintain the Health and cleanliness of Whanganui
river a substantial amount of funds have been allotted.

11
Ariella D’Andrea- Coastal Fisheries and Aquaculture Legal Adviser, Pacific Community-SPC; International
Association for Water Law - visited on 1/09/2020

7
2 weeks later in March 2017, the High Court of Uttarakhand recognised the legal status of Ganga
and Yamuna rivers on the basis of religious and environmental grounds. The rivers were granted
the status of legal minor and the Uttarakhand chief secretary, and the Advocate General of the state
shall be appointed as the guardians of the rivers, by the Court.
The Advocate General would be representing at all the legal proceedings in order to protect the
interest of the rivers Ganga and Yamuna.
The court held that the River can Sue and can be sued by the appointed guardians on its behalf.
But ultimately the Apex court rejected and put a stay order on the decision of the Uttarakhand high
court on the basis on the implementation problems.
One of the major problem was that the River Ganga flows through the West Bengal before it enters
a Uttarakhand , so holding the Guardians responsible in Uttarakhand after the interest of the river
did not made sense because it can also be polluted by the upstream.12

RIGHTS OF A RIVER

Several jurisdictions in the world have considered the legal personality of rivers. Interestingly the
Whanganui river gained its recognition as a living entity by the way of legislation in new Zealand
around March 2017.13 Following which in March 2017 the high court of Uttarakhand also
Recognized the legal personality of the Ganga and Yamuna rivers in India.
The rights of the River should basically mean that the ecological conditions making up a natural
habitat all to be protected and to be respected.
The aquatic life and flora and fauna are dependent upon the rivers. Thus the rivers also supports
the whole of aquatic life inside it.14

12
River as a Legal Entity: An Analysis in the Light of Mohammed Salim vs. State of Uttarakhand-
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3382213#:~:text=In%20India%2C%20river%20Ganga%20is,o
n%20it%20for%20their%20livelihood.&text=This%20decision%20gained%20wide%20popularity,river%20as%20a
%20living%20entity. Accessed on 1/10/2020
13
http://www.emahumanrights.org/2019/01/16/the-legal-personality-of-rivers/ - visited on 1/09/2020
14
Lalit miglani bs state of Uttarakhand 2017- visited on 1/09/2020

8
The River has a right to exist right to maintain its identity and integrity which does not mean that
the human activities connected to the River like fishing and other activities are to be stopped but
rather than it encourages to have a healthy relationship which maintains it's basic conditions like
its flow, it’s aquatic plants ,fishes and other animals, its catchment and the rocks and soils and
other elements from which it flows.15

Construction of dams and other diversions, industrial waste and chemicals, urban pollutions,
domestic and rural sewage and fishing through the explosives are the certain activities which could
be challenging in the recognition of the legal right of the rivers.
By citing such right the citizens can challenge the private or government agencies which are
indulge in such activities harming the rivers and its natural habitat.

CONCLUSION

Legal rights are not same as the human rights which means it is not important that a legal person
should be a human being. For example the Companies and Corporations are also considered as
legal persons which have certain legal rights and have distinct character apart from its shareholders
managers and directors.
Giving legal rights to nature means the recognition of nature as a legal person and thus these rights
can then be enforced. Legal rights of the nature means the ability of the nature to sue and to be
sued which also enables the nature to move to the court for the protection of its rights.
Legal personhood also includes the right to enter and enforce contracts and they also acquire the
ability to hold any property.16
The human rights are rights which are inherent to all human beings and occupy centre and speech
which deals with human conflict loss of natural resources which threatens human survival.
It is important for us to understand that the fundamental of human rights on which human survival
depends are the basic nature rights or can say natural rights.

15
Creating legal rights for rivers: lessons from Australia, New Zealand, and India-
https://www.jstor.org/stable/26799037?seq=1#metadata_info_tab_contents accessed on 1/10/2020.
16
https://www.downtoearth.org.in/news/water/three-rivers-are-now-legally-people-but-that-s-just-the-start-of-
looking-after-them-57448 - visited on 1/09/2020

9
The ancient law provided absolute protection to all valuable natural resources which maybe forest,
rivers and lakes on the belief that the nature's law imposes a certain condition on every human
conduct in its relationship with the nature.The lakes and rivers have also inherent rights to not to
get polluted. The damaging and polluting the forest, lakes ,air, rivers, water bodies, and glaciers
are equivalent to harming and hurting and causing injury to any human being.
The rivers also have a right to exist, sustain and regenerate its own vital ecological system. Rivers
are not just water bodies but are a habitat to many aquatic plants and animals which are
scientifically and biologically sustaining on it. The integrity of the oceans , glacier and rivers and
needed to be maintained. In order to conserve and preserve them it important to declare all the
rivers, glaciers, water bodies ,forests, lakes, jungles waterfalls as the legal entity or legal persons
having the status of a legal person, with all the rights, liabilities and duties of a living person.17

17
Lalit miglani vs state of Uttarakhand SCC 2017

10
 ESSAY-II

QUESTION STATEMENT-

1. Professor Hohfeld identified eight atomic particles by splitting the atom of legal
discourse which he called “the lowest common denominators of the law”, these eight
particles are divided into pairs which cannot exist together and which must exist
together. Write an essay on the relevance of these mentioned particles with special
reference to the Indian legal discourse
ANSWER-

INTRODUCTION

Hohfled’s analysis on jural relations was initially published in 1913. Since its publication a lot of
effort has been emphasised on its analysis. Today even after a century from its publication still
there are dissenting opinions in the field of jurisprudence related to his theory. Hohfeld’s
propositions are and have been relevant in understanding the conceptual relations.

Professor Wesley Hohfeld was an American jurist born on the 8th of August in Oakland,
California. He had Graduated from the university of California, Berkeley in 1901. Professor
Hohfeld had also taught at the Stanford law school from the 1905 to 1913. As he had also moved
to the yale university where he taught until his death in 1918. He had written a few articles before
his premature death in 1918. His famous article some fundamental legal conceptions as applied
in judicial reasoning becoming a canonical land mark.

The legal relations which were identified by Hohfeld are the obligations of right duty and power
liability relation. In a right duty relation, A has a duty to be performed over B i.e. A is required to
perform an act or refrain from doing it in a certain way which benefits B and also at the same time
B has a correlative right of the performance of the duty. 18

18
A Review of Hohfeld's Fundamental Legal Concepts -
https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=2997&context=clevstlrev. Accessed on
1/10/2020

11
For example: According to contract, A have a duty to provide a service to B. In a power-liability
relation by acting in prescribed way for the exercise of the power, B can alter A’s legal actions.
B’s power is correlated with a liability on the part of A to the alteration of A’s legal relations.
This distinction between a right duty relation and a power liability relation is a formal distinction,
and a legal relation can be identified as one or the other without considering the basis in principle
or policy.19

WESLEY N. HOHFELD tried to split the atom of legal discourse and to identify its elementary
particles. He identified eight atomic particles which he called "the lowest common denominators
of the law." All legal concepts, he thought, can be completely analysed, even defined, in terms of
these eight fundamental legal conceptions:

§ Right
§ No-Right
§ Power
§ Disability
§ Duty
§ Privilege
§ Liability
§ Immunity

Hohfled had in mind very specific meanings for these eight terms; so it is not the words
themselves, but rather the meanings he had in mind, that tell Hohfeld's story. The first thing
that needs clarifying is what kind of rights, duties, etc., Hohfeld was talking about. Where do
they come from? How do you know one when you see it. In general, Hohfeld's rights, duties,
powers, etc., all come from the rules of positive law.

19
Understanding Hohfeld and Formalizing Legal Rights: The Hohfeldian Conceptions and Their Conditional
Consequences -
file:///Users/prashantkerketta/Downloads/Markovich2020_Article_UnderstandingHohfeldAndFormali.pdf

12
PURPOSE OF LAW

Law is viewed as an instrument made out of human conscious. It doesn't show up all alone and
isn't enforced all alone. Positive law is usually established as a conscious and product of human
will operating in the society.
The purpose and goal of any law might be shifted now and again and furthermore are contradictory.
The purpose of the law is unavoidably associated with the subjectivities related with the general
public in which law should be authorized. There is no uniform or ideal reason towards which the
substance of various legitimate frameworks is arranged. The essence of a legitimate framework
lies in its ability and capacity to be curious to the necessities, prerequisites or wishes of the specific
network which is to be represented by it and information on the individuals who are authorizing
the laws. However, there is always an underlying purpose behind the enactment of a law where it
operates as an instrument for the attainment of the said purpose.

LEGAL RELATIONS
The methodology with which law looks to make sure about its common goals is generally over the
assortment of social and legitimate frameworks in which law works. Law makes sure about its
objectives, principally through the creation, termination, guideline and implementation of Jural or
Legal relations.
The most straight forward approach to clarify a legitimate connection would describe it as a
connection between two people or set of people controlled by a standard of rule of law. For
instance, let’s consider a target and afterward the legitimate connection through which law has
sought to accomplish the said objective. The prelude to the Constitution of India gives that fairness
of chance as an acknowledged guideline of the established plan. Subsequently, the Preamble,
which fills in as the vision articulation of the composers of the constitution, sets up uniformity of
chance as a target which must be accomplished through the constitution.
According to Article 16 (2) of the Constitution of India, provides, “No citizen shall, on grounds
only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for,
or discriminated against in respect of, any employment or office under the State.”
Article 16 (2) thus creates a legal connection between the citizens seeking an employment under
the state on one hand and the appointing authority of the state on the other hand. The legal relation

13
thus created by vesting the citizens with an immunity against such discrimination and imposing on
the appointing authority a disability to discriminate.
Here ‘immunity’ and ‘disability’ are two constituents creating a legal relation which achieves the
fundamental objective of the law to secure equality of opportunity to all its citizens. Once the legal
relation has been created, if the terms of the legal relation are violated, the aggrieved party would
have the recourse of the court to ensure that the terms so violated are honoured. Thus, if a citizen
is discriminated on the grounds of his religion, such act of discrimination shall be stripped off its
legal validity by the order of the courts.
Thus, law operates through such constituents to create legal relations which are enforceable in a
court of law and the terms of the legal relations so created reflect the value orientation and policy
of the law in terms of its objectives. Though ‘right’ and ‘duty’ are the most popular conceptions
used to describe legal relations, it must be understood that they do not constitute the entire gamut
of legal relations.20

HOHFELD’S SCHEME OF JURAL RELATIONS

The primary constituents through which law manages the multitude of legal relations are universal
at a gross level, though the exact connotation and nomenclature of such constituents might be
different. The most seminal depiction of these constituents was made by Hohfeld wherein he
provided a total of eight constituents ordered in a set of co-relation with each other. Though, there
were other jurists prior to Hohfeld who had dealt with the concepts of one or many of these
constituents, Hohfeld presents by far the most categorical deliberation on the issue.
The essential constituents through which law deals with the large number of lawful relations are
generally at a gross level. However, the specific meaning and terminology of such constituents
may be unique. The most fundamental portrayal of these constituents was made by Hohfeld
wherein he gave an aggregate of eight constituents arranged in a set of co-connection with one
another. However, there were different law specialists before Hohfeld who had managed the ideas
of one or a large number of these constituents, but Hohfeld presents by a wide margin the most
clear cut consideration on the issue.

20
Legal Theory Lexicon 034: Hohfeld-
https://lsolum.typepad.com/legal_theory_lexicon/2004/05/legal_theory_le_4.html accessed on 1/10/2020

14
He arranged/classified the entire scheme of legal relations in the following manner:
§ Jural Opposites- Right-No Right, Privilege-Duty, Power-Disability, Immunity-Liability
§ Jural Correlatives- Right-Duty, Privilege-No Right, Power-Liability, Immunity-
Disability
Jural Correlatives refers to the situation where presence of any one constituent in a person A
implies the presence of its correlative in another person B.
For example, a right with person A to collect payment of Lease of the property from B necessarily
imposes a duty on B to pay such rent. The fundamental proposition of jural correlatives is that they
are related to each other in such a manner that the presence of one in person A inevitably means
that the other is present in person B. The presence of such a privilege in A to express his thoughts
means B has No-Right to stop A from expressing his thoughts.

RIGHT PRIVILEGE

DUTY NO RIGHT

Jural opposites refer to the situation where the presence of any one constituent in a particular
factual context in A necessarily means the jural opposite of such constituent to not reside in B at
the same time in relation to the same factual context.
For example, if A has a power to make a will, he cannot at the same time have the disability to
make a will. It is possible that the element of disability is present in him in relation to another
factual context.

POWER IMMUNITY

LIABILITY DISABILITY

15
For Example: When the Constitution of India empowers the Parliament of India to make laws
regarding “Duties of customs including export duties”, it cannot at the same time be said that the
Parliament does not have the power to make laws regarding “Duties of customs including export
duties”. At the same time the Parliament does not have the power to make laws regarding taxes on
agricultural income.21

DISTINGUISHING POWER-LIABILITY FROM RIGHT-DUTY

Power is essentially not quite the same as a privilege as there is no comparing obligation which is
made in someone else as an outcome of one individual being vested with power. Power relates to
an obligation, which in addition to other things may include the chance of an obligation being
made, however it isn't equivalent to of having an obligation. No such obligation is made except if
the force is worked out. Before the power is worked out, an obligation at risk is to be made for a
chance which will never develop if the force holder ceases from the activity of intensity.22
Hohfeld declares that this arrangement just makes an obligation to have an obligation made which
would emerge just if the litigants and court officers in exercise of their forces have done the needful
so a particular obligation upon an individual to act as a legal person has been made. For example,
the Parliament of India has the ability to make laws with respect to Duties of extract on tobacco
and different products fabricated or delivered in India. However as long the Parliament in exercise
of its capacity has not made a law by which extract obligation is forced on tobacco producers, there
is no obligation on anyone to pay any duty. However, all tobacco producers have a risk to have an
obligation made wherein they should pay a duty.

21
Hohfeld’s Analysis of Rights: An Essential Approach to a Conceptual and Practical Understanding of the Nature of
Rights - http://classic.austlii.edu.au/au/journals/MurUEJL/2005/9.html accessed on 1/10/2020.
22
Hohfelf theory of legal rights - http://www.legalservicesindia.com/article/520/Legal-Rights.html accessed on
1/10/2020.

16
CONCURRENT INTERPLAY OF POWER WITH PRIVILEGE AND DUTY

The Jural relations recognized by Hohfeld are not really disengaged from one another as far as
exacting compartmentalisation. Rather, the essential originations set forth by Hohfeld can be found
in transaction of conjunctions and outcomes. At the point when an individual is qualified for a
demonstration which will influence lawful relations of either himself or that of others, he is said
to have power, in the lawful sense of the term. This power refers to a limit in the individual to
affect the assortment of legitimate relations secured by the power. Along these lines comparable
to a power vested in an individual, the individual may have extra settings of benefits and
obligations qualifying the activity of the said power. Hohfeld clarifies this in the accompanying
words:23
If, for example, we consider the ordinary property owner's power of alienation, it is necessary to
distinguish carefully between the legal power, the physical power to do the things necessary for
the "exercise" of the legal power, and, finally, the privilege of doing these things-that is, if such
privilege does really exist. It may or may not. Thus, if A, a landowner, has contracted with B that
the former will not alienate to C, the acts of A necessary to exercise the power of alienating to C
are privileged as between A and every party other than B, but, obviously, as between A and B, the
former has no privilege of doing the necessary acts or conversely, he is under a duty to B not to do
what is necessary to exercise the power.
Thus, a power may be either attached with a privilege or a duty in terms of its exercise or non-
exercise. Article 15(3), enables the state to make special provisions for women and children
presents a clear example of a power coupled with the privilege to exercise it. In the following
provision, the state has been given the power to affect legal relations by making special provisions.
It is an enabling provision where the state has the privilege to exercise the said power and cannot
be prevented to exercise if it chooses to do so.

23
A Review of Hohfeld's Fundamental Legal Concepts -
https://engagedscholarship.csuohio.edu/clevstlrev/vol16/iss3/19/ . accessed on 1/10/2020

17
UNDERSTANDING IMMUNITY-DISABILITY
Disability refers to the absence in a person of the ability to affect legal relations and consequently,
as a correlative of disability, immunity refers to the freedom from one’s legal relations being
affected by the power of another. Power is the control one has over a particular legal relation and
immunity is the state where one’s legal relation is not under such control.
Inability refers to the nonattendance in an individual of the capacity to influence lawful relations
and subsequently, as a correlative of disability, immunity refers to the opportunity from one's
legitimate relations being influenced by the intensity of another. Power is the control one has over
a specific legitimate connection and resistance is where one's lawful connection isn't under such
control.
For example, Article 15(1) of the Constitution of India bars the state from discriminating against
any citizen on the grounds of religion, race, sex or place of birth. This provision of the constitution
divests the state of any power to discriminate on the ground of the prohibited markers. This means
that the citizen is immune from being discriminated on such prohibited markers. Though, it appears
similar to a right-duty relation, it is different in one important aspect.
Immunity on one person(A) does not create a duty in another person(B) so as to prevent B from
attempting to exercise power on A. Such attempt will not be valid and shall produce no legally
sustainable result but B is not placed under any kind of duty to refrain from exercising his power.
If it were a right in the same sense of a correlative duty, then B would have been under a duty not
to try and affect the legal relations of A.

CONCLUSIONS
Hohfeld explains exactly how several conceptions are mistaken as rights and duties. with his theory
of jural relations, he has provided legal professionals with a powerful tool to help understand
complex legal problems and device effective solutions. The widespread tendency to confuse rights
with liberties can lead a jurist to make conceptual errors and faulty interpretations. For example,
if one believes that the right to free speech is a right in strict sense, but in fact it is only a Liberty,
then one will wrongly believe that others have duties of non-interference which are correlated to
this right. the concepts of rights, privileges, powers, immunities seem to be the legal benefits
granted to an individual while the four correlated terms like the duty, no right, liability and
disability are the corresponding legal burdens.

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 References/ Bibliography

Websites Referred:

1. https://www.lawnn.com/legal-personality/
2. https://www.tandfonline.com/doi/abs/10.1080/19472498.2019.1609265
3. https://indiankanoon.org/search/?formInput=mosque%20is%20a%20juristic%20person
4. https://www.researchgate.net/publication/333057938_The_mosque_as_juristic_person_l
aw_public_order_and_inter-religious_disputes_in_India
5. https://fastforwardjustice.com/legal-status-animals-dead-men-and-unborn-person/
6. https://www.toppr.com/guides/legal-aptitude/jurisprudence/legal-personality-of-non-
human-
beings/#:~:text=While%20courts%20have%20held%20that,and%20thus%20cannot%20
be%20sued.
7. https://shodhganga.inflibnet.ac.in/bitstream/10603/71969/4/04_chapter%202.pdf

Artticles and Journals referred:-

1. https://www.lawnotes4u.in/2019/05/law-of-status-legal-personality-jurisprudence.html
2. http://www.legalserviceindia.com/legal/article-1904-legal-personality-in-the-light-of-
jurisprudence.html
3. https://engagedscholarship.csuohio.edu/clevstlrev/vol16/iss3/19/

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