B.A. LL.B. (Five Years) Sem 8 Human Rights Law and Practice 2022 Mar Question Paper with Solutions

For full marks, cover: what a theory of human rights explains (why we have rights and where they come from); the natural rights theory (Locke); the positivist theory (Austin, Kelsen, Hart); the utilitarian theory (Bentham, Mill); the idealist theory (Green); the Marxist or socialist theory; the social welfare theory (Pound, Laski); the modern theories of justice (Rawls), equal concern and respect (Dworkin) and human dignity (McDougal, Lasswell and Chen); Indian cases showing the theories at work; an evaluation.

What a theory of human rights explains

A theory of human rights answers two questions. Why does a person have rights at all? And where do they come from: from nature, from the State, or from society? Each theory gives a different answer. Each also explains a different part of modern human rights law.

1. The natural rights theory

Natural rights belong to every person by birth, as part of human nature. They exist before the State. No government can lawfully take them away.

2. Hans Kelsen said a legal norm is valid because a higher norm authorises it, up to the basic norm (grundnorm).
3. H. L. A. Hart said a rule is law when it satisfies the rule of recognition accepted by officials.

On this view, human rights become rights only when written into a constitution, a statute or a treaty. The theory explains why treaties and written bills of rights matter so much.

Criticism. It leaves the citizen without protection against a valid but unjust law. ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207 (decided 28 April 1976), shows the danger. During the 1975 Emergency, the President suspended the right to move courts to enforce Article 21. The majority held that detenus could not seek habeas corpus at all. Justice Khanna dissented. The positivist answer left no remedy even against an illegal detention.

3. The utilitarian theory

Jeremy Bentham judged every law by the greatest happiness of the greatest number. In Anarchical Fallacies (1796) he called natural rights "nonsense upon stilts". For him, a right is created by law because it is useful.

6. The social welfare theory

This theory treats law as a tool for social welfare. Roscoe Pound described law as social engineering: it balances individual, public and social interests. Harold Laski described rights as the conditions of social life without which a person cannot become his or her best self. Rights are therefore shaped by social need.

7. The modern theories

1. Theory of justice. John Rawls, in A Theory of Justice (1971), said people choosing behind a "veil of ignorance" would choose equal basic liberties for all. Inequalities would be allowed only if they benefit the least advantaged.
2. Equal concern and respect. Ronald Dworkin, in Taking Rights Seriously (1977), said the basic right is the right of every person to equal concern and respect from the government. Rights act as "trumps" over collective goals.
3. Human dignity. McDougal, Lasswell and Chen wrote Human Rights and World Public Order (1980). They built human rights on human dignity, protected through shared values such as respect, power, wealth, health and enlightenment.

Evaluation

No single theory explains everything. Natural rights explain why rights bind even a State that has not legislated. Positivism explains how rights are made enforceable. The socialist and welfare theories explain economic and social rights. The modern theories explain why every person counts equally.

Conclusion. The theories of human rights differ on where rights come from: nature, the State, general utility, society or human dignity. Modern human rights law combines them. Rights are treated as inherent in human dignity, as the Universal Declaration says. But they become effective only when written into law and enforced by courts. Indian courts have followed this mixed approach, most clearly in Maneka Gandhi and Puttaswamy.