B.A. LL.B. (Five Years) Sem 8 Human Rights Law and Practice 2011 Jun Question Paper with Solutions

For full marks, cover: a definition (the general meaning and section 2(1)(d) of the Protection of Human Rights Act 1993); the ancient roots (natural law, Greece, Rome, the Indian idea of dharma); the English documents (Magna Carta 1215, Petition of Right 1628, Habeas Corpus Act 1679, Bill of Rights 1689); the revolutions (1776, 1789, 1791); the nineteenth century (the positivist attack, the abolition of slavery, the first Geneva Convention, the claim for social rights); the early international steps (the minorities treaties and the ILO); the United Nations era (Charter 1945, UDHR 1948, Covenants 1966, Vienna 1993); how the concept widened after 1948 (three generations, development, indivisibility, new groups, Toonen v. Australia); the Indian story (Part III, I.C. Golak Nath v. State of Punjab, Maneka Gandhi, ADM Jabalpur and Puttaswamy, the 1993 Act); a table of the shifts in the concept; an evaluation with the relativist challenge.

Meaning of human rights

Human rights are the rights a person has simply because he or she is a human being. They do not depend on nationality, sex, caste, religion or wealth. They protect life, liberty, equality and dignity.

4. Medieval Europe. Thomas Aquinas held that a human law which departs from natural law is not law but a corruption of law.
5. India. The idea of dharma placed the king under a duty to protect his subjects. Ashoka's edicts preached tolerance and humane treatment. These were duties of rulers, not enforceable rights of subjects.

Stage 2: the English documents

England turned the idea into legal machinery.

1. Magna Carta (15 June 1215). Chapter 39 said no free man shall be imprisoned or destroyed except by lawful judgment or the law of the land. The king was placed under the law.
2. Petition of Right 1628. It protested against taxation without Parliament and imprisonment without cause shown.
3. Habeas Corpus Act 1679. It gave a speedy remedy against unlawful detention.
4. Bill of Rights 1689. It limited the Crown and protected free elections and free speech in Parliament.

1. The positivist attack. Jeremy Bentham called natural rights "nonsense upon stilts". For the positivists, a right exists only where the law of the State creates it. This made rights depend on the will of the sovereign.
2. The abolition of slavery. Britain abolished the slave trade in 1807 and slavery in its colonies by the Slavery Abolition Act 1833. The idea that no person can be property became part of law.
3. Humanitarian law. The first Geneva Convention of 1864 protected wounded soldiers in war. It showed that States could bind themselves by treaty to protect human beings.
4. Social rights. The industrial revolution produced long hours, child labour and poverty. The labour movement and socialist writers argued that liberty means little without work, wages and education. The concept of rights grew from freedom from the State to claims on the State.

Stage 4: the first international steps

Before 1945, a State's treatment of its own people was its own business. There were narrow exceptions:

1. the movement to abolish the slave trade;

Regional systems also grew: the European Convention (1950), the American Convention (1969) and the African Charter (1981). Specialised treaties followed for women (CEDAW 1979) and children (CRC 1989).

Stage 5A: how the concept widened after 1948

1. Three generations. In 1977 Karel Vasak described three generations of rights. They follow the French slogan: liberty (civil and political rights), equality (economic and social rights) and fraternity (solidarity rights of peoples).
2. Development. The Declaration on the Right to Development was adopted by General Assembly resolution 41/128 on 4 December 1986. It treats development as a human right of every person and of all peoples.

3. The natural rights link. In I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643, land owners challenged land reform laws placed in the Ninth Schedule. Subba Rao C.J. said that "fundamental rights" are the modern name for what were traditionally known as "natural rights". By six to five the Court held that Parliament could not abridge them by amendment. Kesavananda Bharati later replaced this with the basic structure doctrine, but the link between the two ideas remained.
4. The courts widened these rights. In Maneka Gandhi v. Union of India, AIR 1978 SC 597 (decided 25 January 1978), the petitioner's passport was impounded without reasons or a hearing. The Supreme Court held that the procedure under Article 21 must be right, just and fair, not arbitrary. Article 21 then grew to include speedy trial, legal aid, livelihood and a clean environment.

Evaluation

The development shows a clear movement. Rights began as moral claims against rulers. They became national legal rights after 1689, 1776 and 1789. After 1945 they became international law. The gap that remains is enforcement, because many international bodies can only recommend.

The relativist challenge. Some States argue that human rights are a Western idea. The Bangkok Declaration of 1993 by Asian States asked that national and regional particularities be kept in mind. The Vienna Declaration answered that such particularities must be borne in mind, but States must still protect all human rights. The concept is now accepted as universal, though its application differs from society to society.

Criticism. Early declarations spoke of the rights of "men" while slavery continued and women could not vote. The concept grew only as excluded groups claimed it.