Primary versus Secondary Rights

A new phone comes with a warranty card. While the phone works, the card sits in a drawer; what you enjoy is the phone itself. The day the screen fails, the card comes to life and gives you a new claim: repair or replacement. Rights work the same way. Your right to your land, your good name or the performance of a contract is a primary right, enjoyed daily without any thought of a court. Only when someone breaks it does a secondary right spring up: the right to have the wrong put right. This note explains the pair, its several names, the Indian sources of secondary rights, and why it must never be confused with Hart's primary and secondary rules. The general classification of rights is in Note 28.

1. The Distinction Stated

A legal system declares rights, telling people what they may claim of one another in ordinary life, and protects them, telling people what happens when a declared right is broken. The first are primary rights; the second, secondary rights. The test is the source: a primary right has a source other than a wrong (birth, contract, purchase, statute), while a secondary right has a wrong as its source. The owner's right that no one enter his field is primary; his right to damages from the trespasser is secondary. The buyer's right to delivery is primary; his right to compensation for non-delivery is secondary.

2. One Pair, Several Names

The commonest error is to list 'primary, sanctioning and remedial rights' as three kinds. There are only two: remedial is Holland's name for sanctioning, and antecedent his name for primary. Note 26 takes the same position. The division also runs through duties (Note 28) and obligations (Note 35): the trespasser's duty to pay damages is a secondary duty correlative to the owner's secondary right, and a delictal obligation is secondary by its nature.

3. How a Secondary Right Arises

First, a secondary right is triggered by violation: before the wrong there is no claim to damages at all. The qualification is preventive relief. Section 38 of the Specific Relief Act, 1963 allows a perpetual injunction to prevent the breach of an obligation existing in the plaintiff's favour, so an injunction may answer a threatened breach; but even then the secondary right answers to an actual or imminent violation, never to the primary right alone.

Second, a secondary right is always in personam. The owner's right to his land is a right in rem, good against the world (Note 76); his right to damages is a right against that trespasser alone. A right in rem, once violated, yields a right in personam. Third, the secondary right is a substitute or supplement: where the law can still give the very thing owed, it does; where it cannot, it gives something in its place, usually money.

4. The Kinds of Secondary Rights

Salmond added a refinement (Note 26). Civil justice enforces rights specifically or sanctionally. In specific enforcement the court compels the defendant to do the very thing he was bound to do: pay the debt, deliver the land, perform the contract. Strictly, what is enforced there is the primary right itself. In sanctional enforcement the primary right can no longer be fulfilled, so the law enforces a new sanctioning right in its place: to restitution of a benefit wrongly gained, or to penal redress, compensation for loss caused. In broader textbook usage, every right to a remedy that arises only upon a wrong, including an injunction or specific performance, is a secondary or remedial right.

The right to have a penalty imposed is also secondary, arising from a crime, but it belongs to the State: Austin distinguished civil injuries, pursued at the injured party's discretion, from crimes, pursued at the sovereign's (Note 84).

5. Ubi Jus Ibi Remedium

The maxim ubi jus ibi remedium, where there is a right there is a remedy, expresses the link between the two kinds. A primary right with no secondary right to protect it would be a mere hope.

The maxim has limits. Loss without violation of a right, damnum sine injuria, gives no remedy: in the Gloucester Grammar School case (1410) schoolmasters whose fees fell when a rival opened a school had no action. And a primary right may outlive its secondary right: a time-barred debt remains a debt though Section 3 of the Limitation Act, 1963 bars the suit. That is Salmond's imperfect right, the clearest proof that the two kinds of right are distinct (Note 28).

6. The Constitution: A Remedial Right Made Fundamental

The Indian Constitution lists a secondary right among the fundamental rights. Article 32(1) guarantees the right to move the Supreme Court for the enforcement of the rights in Part III, and Art. 32(2) empowers the Court to issue directions, orders or writs, including habeas corpus, mandamus, prohibition, quo warranto and certiorari. Dr. B.R. Ambedkar called it 'the very soul of the Constitution and the very heart of it'. The High Courts' power under Art. 226 reaches legal rights as well, but it is not itself a fundamental right. Under Art. 32(4) the right may not be suspended except as the Constitution provides, and L. Chandra Kumar v Union of India (1997) held judicial review under Arts. 32 and 226 to be part of the basic structure.

7. Constitutional Tort: A Public Law Secondary Right

The Supreme Court has used Art. 32 to create a further secondary right: monetary compensation from the State for violating fundamental rights, distinct from damages in tort.

8. Rights, Rules and Norms: Keep Them Apart

Three pairs use 'primary' and 'secondary' in unrelated ways. Austin's, Holland's and Salmond's pair classifies rights by whether they arise from a wrong. Hart's pair classifies rules by function: primary rules impose duties; secondary rules are rules about rules, namely recognition, change and adjudication (Note 91). Kelsen's pair classifies norms: his primary norm is the sanction norm addressed to officials (Note 63). Kelsen, interestingly, gives priority to the sanctioning side, treating a right in the technical sense as the power to set the sanction in motion (Note 28).

9. The Two Compared

Evaluation. The distinction is simple but organises the whole law of remedies. Its Indian value lies in Art. 32, which refuses to leave the protection of primary rights to ordinary law, and in constitutional tort, where the courts created a new secondary right when the old ones proved inadequate. Its edges blur: a quia timet injunction acts before any wrong, and specific enforcement is the primary right itself enforced.

10. Frequently Asked Questions

Q. Are primary, sanctioning and remedial three different kinds of rights?
A. No. There are two. Primary rights exist independently of any wrong; sanctioning rights arise from their violation. Holland calls the same pair antecedent and remedial rights, so remedial is simply another name for sanctioning.

Q. Is the right to specific performance a primary or a secondary right?
A. In ordinary usage it is secondary, because it arises only on breach. Salmond was more exact: in specific enforcement the court compels performance of the primary right itself, whereas in sanctional enforcement a new sanctioning right, to restitution or compensation, takes its place.

Q. How do primary and secondary rights differ from Hart's primary and secondary rules?
A. The rights are classified by whether they arise from a wrong. Hart's rules are classified by function: primary rules impose duties, and secondary rules (recognition, change and adjudication) are rules about the primary rules. The two classifications cut across each other entirely.

See also: Note 26 (administration of justice), Note 28 (rights and duties), Note 35 (obligation), Note 91 (primary versus secondary rules), Note 76 (rights in rem versus rights in personam), Note 84 (civil versus criminal liability).