I like to add a dimension to Right to Shelter.
A Nation which is Sovereign has some very few Sovereign Function/Obligations/Prerogatives and they are-
1) Abatement of Internal & External Aggression thereby ensuring security to every Person of his Life and Property;
2) Administration Of Justice including Punishing Offenders of Law ;
3) Imposition of Taxes.
These are called the Primary duties of any and all Sovereign Nations.
The manifest threat to life and Property of People living on the streets can safely be assumed.
The moot question may occasion, " Do Sovereign Indian Govt can take refuge in paucity of money as defense in their inability to perform this Sovereign duty."
The Answer is Big NO.
In this regard, the Observation and Judgment by Legendary Hon.Justice Krishna Iyer in Ratlam Municipality case is, though unfortunately not trend setting, nevertheless is inspiring.
The Hon Court, taking Judicial notice of magnitude of Corruption in State Administration, Said,
"The Criminal Prcocedure Code(as in the instant case) operates against Statutory bodies and Others regardless of the Cash in their coffers even as human rights under part Three of the Constitution have to be respected by the State regardless of Budgetary provisions.
Likewise, Sec 133 of the said Act has no saving clause when the Municipal council is penniless.
Otherwise a profligate Statutory body or pachydermic Govt.Agency may legally defy duties under the Law by urging in self defence a self created bankrupcy or perverted expenditure budget.That cannot be." [AIR 1980 SC]
Prof. Hohfeld Matrix
Certain
legal concepts such as right, duty, liberty, privilege, immunity, and liability
are the foundation of any litigation and so they must be duly understood.
Prof. Wesley Newcomb Hohfeld, an American jurist, of the 20th Century, the
author of the seminal Fundamental Legal Conceptions as Applied in Judicial
Reasoning and Other Legal Essays (1919), devised a matrix in order to
illuminate understanding of aforesaid legal concepts.
Prof. Hohfeld sought to understand the meanings of terms such as rights and
duties as a jural relationship.
Prof. Hohfeld conceived two kinds of jural relationships -jural correlatives
and jural opposites. In particular, jural correlatives indicate concepts that are
logically consistent and where one necessarily implies the other. On the
contrary, jural opposites, also known as jural negations, denote concepts where
the presence of a concept implies the absence of its opposite.
The following chart would amplify.
Right / Claim Liberty / Privilege
↕ Χ ↕
Duty No
Right / No Claim
The vertical
arrow between ‘right/claim’ and ‘duty’ indicates that they are jural
correlatives.
Since right/claim are jural correlatives, as per Hohfeld’s framework, the
presence of right/ claim in X necessarily implies the presence of duty in Y.
Further, the vertical arrow between ‘liberty/privilege’ and ‘no-right/no-claim’
indicates that they are jural correlatives and in accordance with Hohfeld’s
framework, the presence of ‘liberty/privilege’ in X necessarily implies the
presence of ‘no-right/no-claim’ in Y.
The diagonal arrows indicate that ‘right/ claim’ and ‘no-right/no-claim’ are
jural opposites. Accordingly, as per Hohfeld’s matrix, the presence of ‘right/claim’
in X necessarily implies the absence of ‘no-right/ No-right/No-claim no-claim’
in himself. The presence of ‘liberty/ privilege’ in X implies the absence of
‘duty’ in himself.
Illustration:
In the case of S.R. Batra v. Smt. Taruna Batra, [AIR 2007 SC 1118], the
daughter in- law, Smt. Taruna Batra, petitioned the Supreme Court to declare
the house where she was living after marriage as the ‘matrimonial home’. The
house in question was owned by the mother-in-law, and not Smt. Taruna Batra’s
husband. The bench of Justice S. B. Sinha and Justice Markendeya Katju held
that the rights of Smt. Taruna Batra available under any Indian law could be
enforced only against her husband, and not against her father-in-law or
mother-in law.
This can be easily understood through Hohfeld’s matrix. The Supreme Court has
clearly characterized Smt. Taruna Batra’s presence in the house owned by her
mother in- law as a ‘liberty/privilege’. The vertical arrow between
‘liberty/privilege’ and ‘no right/ no-claim’ indicates that they are jural
correlatives and in accordance with Hohfeld’s framework, the presence of
‘liberty/privilege’ in mother-in-law implies the presence of ‘no right/
no-claim’ in the daugher-in-law Smt. Taruna Batra. Similarly,
‘liberty/privilege’ is the jural opposite of ‘duty’ owing to the diagonal
relationship in the above figure. The presence of ‘liberty/privilege’ in
mother-in law’ necessarily implies the absence of ‘duty’ on behalf of the
mother-in-law.
However,
very recently, the principle laid down in the above ruling have been reversed by
Hon’ble Supreme Court. The Hon’ble Court whilst interpreting Section 2(s) of
the domestic violence Act, 2005, that defines “shared property”, dwelled upon
the issue as to whether Shared property would “include” property not belonging
to the husband. The Hon’ble Court recognized rights of women to reside in the
‘shared household’ even if her husband had no legal right to the house and if
the same was owned by the father-in-law or mother-in-law. The Hohfeld Matrix
punctuated the reasoning in 2006 verdict, whilst, expansive interpretation of
“includes” and harmonious interpretation of statutes, punctuated the reasoning
in 2020 verdict. [AIR 2020 SC 5397]
Prof. Hohfeld interpreted other concepts such
as power, liability, immunity and disability in a similar fashion. The
following chart would amplify.
Power Immunity
↕ Χ ↕
Liability Disability
The
vertical arrow between ‘power’ and ‘liability’ indicates that they are jural
correlatives. Since ‘power’ and ‘liability’ are jural correlatives, as per
Hohfeld.s framework, the presence of power in X necessarily implies the
presence of liability in Y. Further, the vertical arrow between ‘immunity’ and
‘disability’ indicates that they are jural correlatives and in accordance with
Hohfeld’s framework, the presence of ‘immunity’ in X necessarily implies the
presence of ‘disability’ in Y.
The diagonal arrows indicate that ‘power’ and ‘disability’ are jural opposites.
Accordingly, as per Hohfeld’s matrix, the presence of ‘power’ in X necessarily
implies the absence of ‘disability’ in himself. Further, ‘immunity’ and
‘liability’ are jural opposites. The presence of ‘immunity’ in X implies the
absence of ‘liability’ in himself.
Illustration:
In the case of P. V. Narasimha Rao v. State (CBI/SPE), famously known as the
JMM bribery case, the question was whether the Members of Parliament could claim
immunity from charges of cash-for-vote under Article 105 of the Constitution of
India.
A Constitution Bench of the Supreme Court consisting of Justices S. C. Agarwal,
G. N. Ray, A. S. Anand, S. P. Bharucha, and Rajendra Babu, by majority, held
that a Member of Parliament enjoys immunity under Aa.105(2) or 105(3) of the
Constitution from being prosecuted for allegations of bribery for the purpose
of speaking or giving his vote in Parliament or in any committee thereof. [AIR
1998 SC 2120]
While the above Supreme Court judgment has been severely criticized for the
effect of letting off bribe-takers merely because they were Members of
Parliament, the reasoning in the judgment can be easily understood through
Hohfeld’s matrix. The Supreme Court has clearly endorsed and upheld the
‘immunity’ of the Members of Parliament. The vertical arrow between ‘immunity’
and ‘disability’ indicates that they are jural correlatives and in accordance
with Hohfeld’s framework, the presence of ‘immunity’ in Member of Parliament
implies the presence of ‘disability’ in the court of law of to prosecute for an
offence of bribery. Similarly, ‘liability’ is the jural opposite of ‘immunity’
owing to diagonal relationship in the above figure. The presence of ‘immunity’ in the
Member of Parliament necessarily implies the absence of ‘liability’ in himself.
Sandeep Jalan
Advocate
Sandeep Jalan,
Mumbai.
Law
Referencer:
Comments
I am immensely benefited from it for my knowledge.
Thanks