Human Rights Model Paper - Answer Key
Human Rights Model Paper - Answer Key
UNIT – I
UNIT – II
Q.2(a) — Universal Declaration of Human Rights, 1948
Q.2(a) OR — Civil and Political Rights under ICCPR, 1966
Q.2(b) — Human Rights Council / Committee
Q.2(b) OR — Human Rights Provisions under the UN Charter, 1945
UNIT – III
UNIT – IV
Q.4(a) — National/State Human Rights Commission
Q.4(a) OR — Human Rights under the Indian Constitution
Q.4(b) — Protection of Human Rights Act, 1993
Q.4(b) OR — Problem: Poor Accused Without Legal Representation
UNIT – V
Q.5(a) — Rights of Women under CEDAW, 1979
Q.5(a) OR — Rights of the Child under the Convention on the Rights of the Child
Q.5(b) — Rights of Aged Persons
Q.5(b) OR — Rights of Minorities
IV Semester 3 Year LL.B. / VIII Semester 5 Year [Link].B. (Maj.-Min. System) / [Link].B. / [Link].B.
UNIT – I
Human rights are those basic rights and freedoms inherent to every human being, regardless of nationality, sex, ethnicity,
religion, or any other status. Their development can be traced through several phases:
Ancient Period: Concepts of justice, fairness, and human dignity find roots in ancient civilizations — the Code of Hammurabi, the
teachings of Buddhism and Confucianism, and Roman “jus naturale” (natural law) all recognized certain inherent entitlements of
individuals.
Religious and Philosophical Influence: Religions like Christianity, Islam, and Hinduism emphasized human dignity and
compassion. Natural law philosophers such as Grotius, Locke, and Rousseau argued that certain rights (life, liberty, property)
exist independent of government and cannot be taken away.
Constitutional Developments: The Magna Carta (1215) limited the arbitrary power of the King and is regarded as the first
written document recognizing individual rights. This was followed by the English Bill of Rights (1689), the American Declaration
of Independence (1776), and the French Declaration of the Rights of Man and Citizen (1789) — each expanding civil and political
liberties.
Post-World War Developments: The atrocities of World War II, particularly the Holocaust, exposed the need for an international
framework to protect human dignity. This led to the establishment of the United Nations in 1945, followed by the adoption of the
Universal Declaration of Human Rights (UDHR) in 1948 — widely regarded as the foundation of modern international human
rights law.
Modern Era: Since 1948, human rights have been elaborated through binding treaties such as the ICCPR and ICESCR (1966),
regional conventions (European, American, African), and specialized conventions (CEDAW, CRC, CAT, etc.), reflecting a
continuously evolving and expanding understanding of human dignity.
Several theories attempt to explain the philosophical basis and justification for human rights:
1. Natural Law/Natural Rights Theory: Propounded by thinkers like Locke and Grotius, this theory holds that human rights
are inherent and universal — they exist by virtue of being human, independent of any government or legal system. Rights such
as life, liberty, and property are “natural” and inalienable.
2. Positivist Theory: This view holds that rights exist only when they are recognized and enforced by the state through law.
Rights are creations of the legal system, not pre-existing entitlements.
3. Marxist Theory: Emphasizes economic and social rights over civil-political rights, arguing that true freedom requires the
elimination of class-based exploitation and equitable distribution of resources.
4. Theory Based on Equality and Respect (Dworkin): Human rights stem from the fundamental principle that every
individual deserves equal concern and respect from the state and society.
5. Social Welfare/Utilitarian Theory: Rights are justified on the ground that they promote the greatest good for the greatest
number, and the state must ensure welfare-oriented rights (health, education, work) for collective well-being.
6. Historical Theory: Rights evolve through the historical struggles and traditions of a particular society, rather than being
universal or natural.
Each theory contributes a different lens — natural law emphasizes inherent dignity, positivism emphasizes enforceability, and
welfare theories emphasize socio-economic justice.
1. First Generation Rights (Civil and Political Rights): These include the right to life, liberty, equality before law, freedom of
speech and expression, freedom of religion, and the right to a fair trial. They are largely “negative” rights, requiring the state
to refrain from interference. Recognized in the ICCPR, 1966.
2. Second Generation Rights (Economic, Social and Cultural Rights): These include the right to work, education, health,
social security, and an adequate standard of living. They are “positive” rights requiring active state intervention and resource
allocation. Recognized in the ICESCR, 1966.
3. Third Generation Rights (Collective/Solidarity Rights): These include the right to development, right to a clean
environment, right to peace, and right to self-determination. These are group or community rights rather than purely
individual ones.
Human rights can also be classified as individual rights (personal to a person) and collective rights (belonging to a group,
community, or people), or as justiciable (enforceable in court) and non-justiciable (aspirational/directive) rights.
The sources of international human rights law can be identified in line with Article 38 of the Statute of the International Court of
Justice:
1. International Conventions/Treaties: Binding agreements such as the UDHR (though technically a declaration), ICCPR,
ICESCR, CEDAW, CRC, and CAT form the primary source, creating obligations for ratifying states.
2. International Custom: State practices followed out of a sense of legal obligation (opinio juris) — such as the prohibition of
torture and slavery — form customary international law binding even on non-signatory states.
3. General Principles of Law: Principles recognized by civilized nations, such as natural justice, equality, and fairness, are
applied where treaty or customary law is silent.
4. Judicial Decisions: Decisions of international and regional courts (ICJ, European Court of Human Rights, Inter-American
Court of Human Rights) serve as subsidiary sources, clarifying and developing human rights norms.
5. Juristic Writings: The writings of eminent international law scholars serve as persuasive, subsidiary sources for interpreting
human rights obligations.
6. UN Resolutions and Declarations: Though not strictly binding, resolutions of the UN General Assembly (like the UDHR)
carry significant moral and political weight and often crystallize into customary law over time.
UNIT – II
The UDHR was adopted by the UN General Assembly on 10th December 1948, following the atrocities of World War II. It consists
of a Preamble and 30 Articles, laying down a common standard of achievement for all peoples and nations.
Importance:
It is the first international document to comprehensively articulate the rights and freedoms to which all human beings are
entitled.
Though not legally binding in itself (being a General Assembly resolution), many of its provisions have attained the status of
customary international law and are binding on all states.
It has inspired over 90 international human rights treaties and served as the model for numerous national constitutions,
including India’s Fundamental Rights.
Contents:
The UDHR forms the foundation of the “International Bill of Human Rights,” along with the ICCPR and ICESCR.
The International Covenant on Civil and Political Rights, adopted in 1966 and entered into force in 1976, is a legally binding treaty
that elaborates upon the civil-political rights enumerated in the UDHR.
Implementation Mechanism: The Covenant establishes the Human Rights Committee, composed of 18 independent experts,
which monitors compliance through:
The Committee issues “views” (not strictly binding judgments) and General Comments interpreting Covenant provisions.
Human Rights Council: Established by the UN General Assembly in 2006 (replacing the earlier Commission on Human Rights),
the Human Rights Council is an inter-governmental body of 47 member states responsible for promoting and protecting human
rights globally.
Functions:
Conducts the Universal Periodic Review (UPR), examining the human rights record of every UN member state periodically.
Addresses human rights violations, including gross and systematic violations, and makes recommendations.
Appoints Special Rapporteurs and Independent Experts to investigate specific issues (torture, freedom of expression, etc.)
or country situations.
Can convene special sessions to address urgent human rights situations.
Works with UN human rights treaty bodies and civil society organizations.
Human Rights Committee: As distinguished from the Council, the Committee is the treaty-monitoring body specifically for the
ICCPR (see above), consisting of 18 independent experts who review state reports and individual complaints.
The UN Charter, though not a human rights treaty per se, laid the constitutional foundation for the international protection of
human rights.
Key provisions:
Preamble: Reaffirms faith in fundamental human rights, dignity and worth of the human person, and equal rights of men and
women.
Article 1(3): States that one of the purposes of the UN is to achieve international cooperation in promoting and encouraging
respect for human rights and fundamental freedoms for all, without distinction as to race, sex, language, or religion.
Article 55: The UN shall promote universal respect for, and observance of, human rights and fundamental freedoms.
Article 56: Member states pledge to take joint and separate action in cooperation with the UN to achieve the purposes set out
in Article 55.
Article 68: Empowers the Economic and Social Council (ECOSOC) to set up commissions for the promotion of human rights —
leading to the creation of the (former) Commission on Human Rights.
While the Charter does not enumerate specific rights, it established human rights as a legitimate concern of international law
(rather than purely domestic jurisdiction) and provided the institutional basis from which the UDHR, ICCPR, and ICESCR later
emerged.
UNIT – III
The European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, adopted by the Council of
Europe, is one of the most effective regional human rights instruments.
Distinctive feature: The Convention created the European Court of Human Rights (ECtHR), based in Strasbourg, which
allows individuals to directly petition against violations by member states — making it one of the most robust enforcement
mechanisms among regional systems. Its judgments are binding on member states, and the Committee of Ministers of the Council
of Europe supervises execution of judgments.
Established under the American Convention on Human Rights, 1969 (“Pact of San José”), these two bodies form the enforcement
machinery of the Inter-American human rights system under the Organization of American States (OAS).
A judicial body composed of seven judges, based in San José, Costa Rica.
Functions: exercises contentious jurisdiction — adjudicates cases referred by the Commission or member states, delivering
binding judgments; exercises advisory jurisdiction — provides interpretations of the Convention at the request of OAS
member states or organs; can order provisional measures to prevent irreparable harm during pending proceedings; awards
reparations, including compensation, to victims of human rights violations.
Together, the Commission acts as an investigatory/mediating body while the Court delivers final, binding adjudication — a two-tier
structure similar in spirit to the European system.
The African Charter on Human and People’s Rights, 1981 (also called the “Banjul Charter”), adopted under the Organization of
African Unity (now African Union), provides three main procedures for implementation:
1. State Reporting Procedure: Under Article 62, member states are required to submit periodic reports (every two years) to
the African Commission on Human and People’s Rights detailing legislative and other measures taken to give effect to the
rights and freedoms recognized in the Charter.
Inter-state communications (Articles 47–49) — where one state party alleges violations by another.
Other communications (Article 55) — allowing individuals, groups, and NGOs to bring complaints regarding human
rights violations, even without requiring the exhaustion of the state-reporting mechanism first, though local remedies
generally must be exhausted.
3. Promotional and Investigative Activities: The Commission undertakes fact-finding missions, conducts studies, collects
documentation, and disseminates information on African human rights issues; it can also refer serious or massive violations to
the African Union Assembly.
Additionally, the African Court on Human and People’s Rights (established under a 1998 Protocol) provides a judicial
mechanism, delivering binding judgments in cases referred by the Commission, state parties, or (where a state has made a special
declaration) individuals and NGOs directly.
Facts: “X” is detained by the government on charges of terrorist activity and kept in prison for several months without trial,
alleging violation of Articles 5 and 6 of the ECHR.
Applicable Law:
Article 5 guarantees the right to liberty and security of person and provides that no one shall be deprived of liberty except in
accordance with a procedure prescribed by law. It further requires that anyone arrested be informed promptly of the charges
against them and be brought promptly before a judge, and entitled to trial within a reasonable time or release pending trial.
Article 6 guarantees the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal.
Analysis: This fact pattern mirrors the well-known Lawless v. Ireland case, where the European Court of Human Rights held
that while states may derogate from certain Convention rights (under Article 15) during a genuine public emergency threatening
the life of the nation — such as terrorism — such derogation must be strictly necessary and proportionate, and subject to judicial
oversight. Prolonged detention without any trial, judicial review, or independent oversight, if not justified by a properly and
formally declared derogation under Article 15, would amount to a violation of Articles 5 and 6.
Decision: If the state has not validly invoked Article 15 derogation, or if the detention exceeds what is strictly required by the
emergency and lacks judicial safeguards, “X”’s detention would be held to violate Articles 5 and 6 of the ECHR, and “X” would be
entitled to release and/or compensation.
UNIT – IV
The National Human Rights Commission (NHRC) was established under Section 3 of the Protection of Human Rights Act,
1993, as a statutory, quasi-judicial body for the promotion and protection of human rights in India.
Composition:
Inquires, suo motu or on petition, into complaints of violation of human rights or negligence in prevention of such violation by
a public servant.
Can visit jails and detention centres to study living conditions.
Reviews safeguards under the Constitution and other laws for protection of human rights and recommends measures for
effective implementation.
Reviews factors, including terrorism, that inhibit the enjoyment of human rights, and recommends remedial measures.
Studies treaties and international instruments on human rights and makes recommendations for effective implementation.
Undertakes and promotes research, spreads human rights literacy, and encourages NGOs working in this field.
Has powers of a civil court while inquiring into complaints — summoning witnesses, requiring production of documents, etc.
Limitations: The NHRC’s recommendations are not binding on the government; it can only recommend action and cannot
directly award compensation or prosecute — this is often cited as a significant weakness in its efficacy.
The Indian Constitution incorporates human rights principally through Part III (Fundamental Rights) and Part IV (Directive
Principles of State Policy).
Right to Equality (Articles 14–18) — equality before law, prohibition of discrimination, abolition of untouchability and titles.
Right to Freedom (Articles 19–22) — freedom of speech, assembly, association, movement, residence, and profession;
protection in respect of conviction of offences; protection of life and personal liberty (Article 21); protection against arrest and
detention in certain cases.
Right against Exploitation (Articles 23–24) — prohibition of trafficking, forced labour, and child labour in hazardous
employment.
Right to Freedom of Religion (Articles 25–28).
Cultural and Educational Rights (Articles 29–30) — protection of minority interests.
Right to Constitutional Remedies (Article 32) — enables direct access to the Supreme Court for enforcement of
Fundamental Rights, including through writs.
Directive Principles (Articles 36–51): Though non-justiciable, these embody economic and social rights — right to work,
education, public health, and adequate means of livelihood — reflecting the ICESCR framework.
Judicial Expansion: The Indian judiciary, particularly through Article 21, has expanded “right to life” to include the right to
livelihood, health, clean environment, privacy, speedy trial, and legal aid, effectively incorporating many international human
rights standards into domestic constitutional law.
This Act was enacted to provide for the constitution of a National Human Rights Commission, State Human Rights Commissions,
and Human Rights Courts, for better protection of human rights.
Important provisions:
Section 2: Defines “human rights” as rights relating to life, liberty, equality and dignity of the individual guaranteed by the
Constitution or embodied in international covenants and enforceable by Indian courts.
Sections 3–11: Provide for constitution, composition, and tenure of the NHRC.
Sections 21–29: Provide for constitution of State Human Rights Commissions with similar composition and powers at the
state level.
Section 30: Provides for the establishment of Human Rights Courts in each district for speedy trial of offences arising out of
violation of human rights.
Section 12: Enumerates the functions of the NHRC (inquiry into complaints, review of safeguards, visits to jails, research, and
awareness).
Section 18: Empowers the Commission to recommend to the government the initiation of proceedings for prosecution, grant
of interim relief, and approach to courts for necessary directions.
The Act represented a significant step in institutionalizing human rights protection domestically, though its recommendatory (non-
binding) nature has been a subject of criticism.
Facts: A poor person is accused of an offence and produced before the court but has no money to engage a lawyer.
Applicable Law: Article 21 of the Constitution guarantees the right to life and personal liberty, which the Supreme Court has
interpreted to include the right to free legal aid as an essential ingredient of a fair trial. Article 39A (Directive Principle)
obligates the State to ensure that the operation of the legal system promotes justice on the basis of equal opportunity and to
provide free legal aid to ensure no citizen is denied justice due to economic disability.
Relevant precedent principle: In Hussainara Khatoon v. State of Bihar and M.H. Hoskot v. State of Maharashtra, the Supreme
Court held that free legal aid at state expense is a fundamental right implicit in Article 21, and failure to provide it vitiates the
trial as unfair.
Duty of the State: The State is under a constitutional obligation to provide the accused with a lawyer at state expense under the
Legal Services Authorities Act, 1987, which established Legal Services Authorities at the national, state, and district levels
precisely for this purpose. If free legal aid is not provided, and the accused is convicted, the conviction is liable to be set aside as
violative of Article 21.
Conclusion: The State must provide the poor accused with a lawyer through the Legal Aid mechanism; denial of this would
render the trial constitutionally infirm.
UNIT – V
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), adopted by the UN General Assembly
in 1979, is often described as an international bill of rights for women.
Key provisions:
Article 1: Defines “discrimination against women” broadly, covering any distinction, exclusion or restriction based on sex that
impairs enjoyment of rights.
Article 2: Obligates state parties to condemn discrimination and pursue policies to eliminate it, including through legislation.
Article 5: Requires states to modify social and cultural patterns based on stereotyped roles of men and women.
Article 7–8: Guarantees women’s right to vote, hold public office, and represent their government internationally on equal
terms with men.
Article 9: Equal rights with men to acquire, change, or retain nationality.
Article 10–13: Equal rights in education, employment, health care, and economic/social benefits.
Article 15–16: Equality before the law and in matters relating to marriage and family relations, including equal rights to enter
marriage, choose a spouse, and rights within marriage and its dissolution.
Implementation: Monitored by the Committee on the Elimination of Discrimination against Women (CEDAW
Committee), through state reporting and (under the Optional Protocol, 1999) individual communications and an inquiry
procedure for grave or systematic violations.
Q.5(a) OR — Rights of the Child under the Convention on the Rights of the Child
The Convention on the Rights of the Child (CRC), 1989, is the most widely ratified human rights treaty, recognizing children
(persons below 18) as rights-holders rather than mere objects of protection.
Guiding principles: Non-discrimination, best interests of the child as a primary consideration, right to survival and development,
and respect for the views of the child.
Implementation: Monitored by the Committee on the Rights of the Child, through periodic state reporting; strengthened by
three Optional Protocols (on armed conflict, sale of children/child prostitution/pornography, and a communications procedure).
Although there is no single binding international convention exclusively for the aged (unlike CEDAW or CRC), their rights are
addressed through several instruments and principles:
UN Principles for Older Persons, 1991: Adopted by the UN General Assembly, these establish 18 principles grouped under
five themes — Independence (access to food, water, shelter, income, and work opportunities), Participation (in policy-
making and community life), Care (access to healthcare and social/legal services), Self-fulfilment (pursuing development of
potential through education and cultural resources), and Dignity (freedom from exploitation, abuse, and discrimination, and
the right to be treated fairly regardless of age).
Madrid International Plan of Action on Ageing, 2002: Addresses older persons and development, health, and enabling
environments.
Domestic protection in India: The Maintenance and Welfare of Parents and Senior Citizens Act, 2007, provides for
maintenance of parents/senior citizens by their children, establishment of old age homes, and protection of life and property of
senior citizens.
The rights of aged persons remain a developing area of international human rights law, with increasing calls for a dedicated
binding convention on the rights of older persons.
International protection:
Article 27, ICCPR: Provides that persons belonging to ethnic, religious, or linguistic minorities shall not be denied the right,
in community with other members of their group, to enjoy their own culture, profess and practice their own religion, and use
their own language.
UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities,
1992: Elaborates minority rights to identity, non-discrimination, and effective participation in cultural, religious, social,
economic, and public life.
Protection in India:
Articles 29–30 of the Constitution: Protect the interests of minorities — the right to conserve a distinct language, script, or
culture (Article 29), and the right of minorities to establish and administer educational institutions of their choice (Article 30).
National Commission for Minorities Act, 1992: Establishes the National Commission for Minorities to safeguard the
interests of religious minorities, evaluate the progress of their development, and make recommendations for their effective
protection.
Minority rights aim to balance the principle of equality with the recognition of legitimate group-differentiated needs, preventing
assimilationist policies that erase distinct cultural identities.