There could be certain rights in which the State is not authorized to interfere with individual. They consist of what remains after taking into account all the legal restraints that impinge upon an individual. Rights, which arise due to authorities not interfering, are negative rights. In other words, an individual has rights because public authorities are not authorized to interfere without statutory authority. These could be civil, cultural, religious or social rights. For example, the individual’s right to freedom of expression and thought, right to religious belief, freedom of assembly and association, freedom of contract, etc. are negative rights.
Certain rights may require the state to take up positive actions for guaranteeing and securing rights of individuals or groups. For example, right to work, right to universal education, right to housing, right to legal aid, etc. They are positive rights, as these require the state to provide positive conditions for securing these rights.
Under Article 19 of the Constitution of India, the rights provided are in the nature of negative rights, as they are available against State action for the protections of freedom mentioned therein. Austin says, ‘the Fundamental Rights of the Constitution are, in general, those rights of citizens, or those negative obligations of the state not to encroach on individual liberty, that have become well-known since the late eighteenth century and since the drafting of the Bill of Rights of the American Constitution…’8 For example, right to freedom of speech and expression, peaceful assembly, association/union, free movement, residence and settlement, practise any profession, occupation, trade or business, etc, are due to absence of interference. There are reasonable restrictions that the State can impose in favour of certain rights.
Right to know, which flows from the requirement of freedom of speech (you cannot speak relevantly if do not know and are informed), may fall under positive rights, as it requires positive action from the State. On the other hand, interpretation of Article 21 of the Constitution of India relating to ‘protection of life and personal liberty, has led many courts to include right to shelter9 (1987), legal aid (1979, 1986), livelihood (1994) in this category. These are positive rights, as they require certain action on the part of the State.
The Indian Constitution contains both negative as well as positive rights. Negative rights are in the nature of securing civil liberties through non-interference by the State in the conduct and action of the individuals. Positive rights are in the nature of state’s positive obligations.10 Rights contained specifically under Article 19 relating to freedom of speech, etc. and Article 25 relating to freedom of conscience, religion, etc. are in the nature of negative rights. Given the specific condition of the Indian society, the rights provided under ‘prohibition of discrimination on grounds of religion, race, caste, sex or place of birth’, ‘equality of opportunity in matters of public employment’ including provision for positive discrimination, ‘abolition of untouchability’, ‘protection of life and liberty’ have been judicially constructed to include livelihood, shelter, legal aid, and ‘prohibition of employment of children in factories’. These are examples of positive rights. However, many positive rights relating to welfare of the people, living wages, free legal aid, right to work, right to education have been assigned to Directive Principles of State Policy, which are not fundamental.
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