LLM Group 4 Human Rights Law Protection and Enforcements of Human Rights 2025-26 - Set 2 Question Paper with Solutions

For full marks, cover: two things are asked and they are not equally weighted. The DISTINCTION is worth about a third and should be set out on five axes, source, enforceability, scope, the person bound and derogability, with the Indian statutory definition in section 2(1)(d) of the Protection of Human Rights Act, 1993 as the pivot, because that section is where Indian law itself draws the line. The larger part is the HISTORY, and it must be an Indian history with dates and documents: the Constitution of India Bill of 1895, the Nehru Report of 1928, the Karachi Resolution of 1931, the Sapru Committee of 1945, the Constituent Assembly's Advisory Committee, and then the Act of 1993. Close by showing where the two categories meet, which is Article 21, and where they do not.

Who is bound. A fundamental right in most constitutions binds the State alone. The Indian Constitution is unusual in binding private persons as well, through Article 15(2) on access to shops, hotels and wells, Article 17 on untouchability, Article 23 on traffic in human beings and forced labour and Article 24 on child labour.

Derogability. A fundamental right can be suspended. Article 359 permits suspension of the right to move a court for enforcement during an emergency, and the Constitution (Forty-fourth Amendment) Act, 1978 removed Articles 20 and 21 from that power after what happened in ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521, where the majority held that no person had locus standi to move a High Court for habeas corpus while Article 21 stood suspended. Khanna J. dissented, and Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1, expressly overruled the majority.

The NEHRU REPORT of 1928, produced by a committee chaired by Motilal Nehru in answer to the challenge that Indians could not agree a constitution, contained nineteen fundamental rights including personal liberty, freedom of conscience, free expression, equality before the law, non discrimination in access to public places, and the right to free elementary education. It is the direct ancestor of Part III.

The KARACHI RESOLUTION of the Indian National Congress of March 1931, drafted by Nehru and moved by Sardar Patel, is the more remarkable document, because it joined civil liberties to economic ones. It promised free speech, free association, free profession of religion, equality before the law irrespective of caste, creed or sex, free primary education, a living wage, limited hours, protection against the economic consequences of old age, sickness and unemployment, and the abolition of serfdom. The division of the Indian Constitution into Part III and Part IV is the Karachi list split in two.

The SAPRU COMMITTEE report of 1945, of the Non-Party Conference under Tej Bahadur Sapru, made the proposal that decided the structure: fundamental rights should be divided into JUSTICIABLE and NON JUSTICIABLE rights, the first enforceable by courts and the second a standard for the State. That is precisely what the Constituent Assembly adopted.

After 1950. The development divides into three phases. In the FIRST, to 1973, the Court read the rights literally and separately, as in A.K. Gopalan v. State of Madras, AIR 1950 SC 27, where a preventive detention challenge failed because Articles 19, 21 and 22 were read as mutually exclusive compartments. In the SECOND, from 1978, Maneka Gandhi v. Union of India, (1978) 1 SCC 248, held that the procedure contemplated by Article 21 must be right, just and fair and not arbitrary, fanciful or oppressive, and that Articles 14, 19 and 21 form a single scheme, which converted Part III from a list into a system. In the THIRD, from 1993, India built statutory human rights machinery alongside the constitutional rights: the Protection of Human Rights Act, 1993, the National Commission for Women Act, 1990, the National Commission for Protection of Child Rights under the Act of 2005, and the Rights of Persons with Disabilities Act, 2016 implementing the Convention of 2006.

Where the two meet

The meeting point is Article 21, and the mechanism is construction. Vishaka v. State of Rajasthan, (1997) 6 SCC 241, held that in the absence of domestic law occupying the field, international conventions and norms are to be READ INTO the fundamental rights to enlarge their meaning and content, and used the Convention on the Elimination of All Forms of Discrimination against Women, 1979 to lay down binding guidelines on sexual harassment at the workplace which governed until the Act of 2013. Chairman, Railway Board v. Chandrima Das, (2000) 2 SCC 465, treated the Universal Declaration as a model code with which the fundamental rights are in consonance, held that Article 21 protects any PERSON and not only a citizen, and upheld rupees ten lakh for a Bangladeshi national gang raped by railway employees at Howrah.

A.K. Gopalan v. State of Madras, AIR 1950 SC 27, is the starting point. A communist leader detained under the Preventive Detention Act, 1950 argued that the Act violated Articles 19, 21 and 22. A six judge Bench, with Fazl Ali J. dissenting, held that Article 21 requires only a procedure ESTABLISHED BY LAW, meaning a procedure prescribed by a validly enacted statute, and that the American concept of due process had been deliberately rejected by the framers. It further held that Articles 19, 21 and 22 operate in separate compartments, so that a law of preventive detention had to satisfy Article 22 alone. The result was that a fundamental right existed in the text and delivered almost nothing, which is exactly the criticism made of merely declared human rights.

Common Cause (A Registered Society) v. Union of India, (2018) 5 SCC 1, shows how far the technique now reaches. A Constitution Bench held that the right to die with DIGNITY is a facet of the right to life under Article 21, recognised passive euthanasia, the withdrawal or withholding of life sustaining treatment from a terminally ill patient or one in a permanent vegetative state, and gave legal effect to the advance directive or living will, laying down a procedure for its execution and for its implementation by medical boards. A further Constitution Bench order of 24 January 2023 simplified that procedure, removing the requirement of execution before a Judicial Magistrate and permitting attestation before a notary or a gazetted officer in the presence of two witnesses. A claim that exists nowhere in the constitutional text, and in no treaty India has ratified, is now an enforceable fundamental right with a form to fill in. That is the strongest available illustration of what separates an Indian fundamental right from a human right at large: not the content, but the fact that a court will enforce it and a hospital must comply.