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An estimated 3-minute read

A Question of Right

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Right, said Salmond, is any interest, respect for which is a duty, and the disregard of which is a wrong. Disregard means neglect or indifference and does not require an actual violation. Seen in this sense many of our rights have been wronged. If the state declares certain rights but does little to make it enforceable, does it not amount to a wrong? When certain rights are declared inalienable but there is absolute disregard for even letting people know of its existence, how is such a right helpful?

The point is that the exercise of declaring rights without a resolute attempt to make the right accessible defeats the right itself. It cannot be seen merely as the problem of implementation as the very existence of a right is based upon its enforceability. If an individual cannot access his/her right due to the state’s failure to either inform of its existence or ensure its enforcement, the right ceases to exist. Hence when little effort is made to make a right available to a person for whom it is made, the state has committed a wrong by the disregard of a right.

The question regarding the accessibility of the rights is an issue which has to be seriously contemplated in India today. We are a nation which has no dearth of rights. The Constitution of India ensures certain fundamental rights which the state cannot deny its citizens. The courts by creative interpretation have added other rights as necessary constituents of the fundamental rights to life, freedom and equality. Hence many of the human rights, social and economic rights and civil and political rights are sought to be protected by the Constitution.

Recently the government has also been seen to play a pro-active role in its efforts to legislate rights. The Right to Information, Right to Education, Right to Employment (NREGA) and Right to Food (Food Security Bill) are some of the initiatives. These legislations, perhaps due to its roots in popular movements, also have specific provisions for its enforcement with sanctions. Despite this, these rights are so frequently unattainable. 

One of the most important but ignored of the rights which has a constitutional basis is the Right to Free Legal Aid. The right to life under Article 21 has been interpreted by the Supreme Court to also include the right to free legal aid. As such a right is unknown to the vast majority, people still pay hefty fees to lawyers out of their meager incomes. In Khatri v. State of Bihar the Supreme Court held that the state cannot expect the poor and illiterate to know whether they had the right to free legal aid or not, and hence it was the duty of the state to provide legal aid, whether asked by the accused or not.

The Legal Services Authorities Act was passed in 1987 to provide legal aid to the people who are socially and economically backward by setting up centres at the district, state and national level. Most of the law schools of this country have a legal aid cell which seek to perform the same task- provide legal aid to weaker sections. While independent efforts have to be cheered, one wonders if this is the right way to enforce rights. 

How can we (lawyers/law students) ensure that everyone has access to the rights declared by the state- by providing piecemeal services to a few individuals ourselves or by pressurizing the authority responsible for ensuring rights to perform its duty? While the former may offer some temporary relief, to have a wider and long-standing impact, efforts must be made to ensure that the state fulfills its obligation. Increasing the awareness of rights, creating public pressure on the authorities for performing its responsibilities and filing cases for non-performance could be ways by which we can make any right a reality.    


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