Negative and Positive Rights

In one line

A negative right tells the State to stop; a positive right tells it to do something, and the second costs money.

In the wording a student can write in an exam: a negative right imposes a duty of non-interference on the State, while a positive right imposes a duty to provide or to protect; the American Bill of Rights is drafted almost entirely in the first form, the Indian Constitution states some rights in the first form and places positive claims in Part IV as unenforceable directives, and Indian judicial development has converted several of the second into the first by reading them into article 21.

The drafting

The American form. Congress shall make no law. No person shall be deprived. Nor shall any State deprive. The grammar is prohibitory throughout, and the historical reason is that the Bill of Rights was a set of restraints demanded by those who feared the new federal government.

The Indian form is mixed. Article 19 is a list of freedoms, and article 21 is prohibitory: no person shall be deprived of his life or personal liberty except according to procedure established by law. But article 17 abolishes untouchability and forbids its practice in any form, which requires the State to act; article 21A requires the State to provide free and compulsory education to children of six to fourteen; and article 15(3) and article 15(4) are enabling.

Part IV is positive and unenforceable. Article 37 states that the provisions of Part IV shall not be enforceable by any court, but that the principles are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply them in making laws. Article 39 directs an adequate means of livelihood and equal pay; article 41 the right to work, education and public assistance in certain cases; article 47 the raising of the level of nutrition and the standard of living and the improvement of public health.

Why the distinction is unstable

Every right costs money. A right against arbitrary detention requires courts, judges, prisons that comply with law and a legal aid system. The idea that negative rights are free is an accounting error.

Non-interference often requires protection. A right to speak is worthless if a mob may prevent it, so the State must police the meeting, which is a positive duty derived from a negative right.

Positive rights can be stated as negative ones. A right not to be deprived of the means of livelihood is the negative statement of a right to a livelihood.

That last move is exactly what Indian law did.

The Indian conversion

Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, is the pivot. Pavement dwellers whose dwellings were to be demolished argued that eviction would deprive them of their livelihood and so of life under article 21.