JURISPRUIDENCE

Name- SHRIYA SALINI ROUTRAY

Course- B.B.A.LL.B. Section- (B)

Roll no -2082089

Semester- 4TH

Batch- 2020-2025

Phone- 7008570393

Subject code-

SUBMITTED TO- MISS. MITUL DUTTA, ASST. FACULTY, KSOL.

TOPIC
HOW FAR IS IT JUSTIFIED TO SACRIFICE
INDIVIDUAL RIGHTS OVER SECURITY?

1
 ACKNOWLEDGEMENT
It is hereby acknowledged that the complete research paper has been prepared by Shriya Salini
Routray of B.B.A.LL.B. SECTION-B .This document is neither plagiarized nor copied. Mere
inferences have been drawn from the resource databases in completion of the same. The research
paper has been completed under the guidance of Ms.Mitul Dutta, Assistant professor, KIIT
School of Law and subject teacher. The Research paper is based on the internal assessment of the
school. The topic completely facts based case laws related.

2
 CONTENTS

SL.NO TITLE PAGE NO

1 ABSTRACT 4

2 INTRODUCTION 5
RESEARCH QUESTION 6
3
CHAPTER – 1 7
4
CHAPTER-2 11
5 CHAPTER-3 14

6 CONCLUSION 15

ABSTRACT
3
This article addresses how security should be viewed through the lens of human rights over
individual rights. It is said that human rights law, or traditional civil human rights, presupposes
four distinct security concepts: negative individual security in the face of international security
state; security as a rationale for restricting human rights; and state that is positive. Individuals
have a responsibility to protect themselves from other people. Individually, these notions are
explained, debated, and criticized. When used in tandem there are various reasons why some of
the notions do not adequately substantiate what security entails: not all concepts are equal.
Mutually reinforcing; in some situations, they may even be counterproductive. This means that
international human rights law fails to give a complete and balanced understanding of what
security means from a human perspective.

Key Words: Rights, Individuality, Security

4
 INTRODUCTION

Philosophies, theories, and their interpretations underpin every legal system in the world. The

rules that we have now in codified form were once nothing more than a notion or an idea, but

they have evolved with time. It is crucial to highlight that theories and concepts serve as a

foundation stone for the development of legal systems, and that a theory like grundnorm is

required, in our opinion, for the development of a legal system. 1 Following that, we will debate

the fundamental principles such as what is jurisprudence, then we will go on to the concept of

right, specifically what a right is, and we will also look at the construction of right and assess it

in light of our discussion. Then we'd move on to the meat of our assignment, which would be a

detailed discussion of the sacrifice of individual rights for group security, as well as instances of

this notion in the form of statutes and case law. We would also provide our point of view on the

issue as we wrap up our debate. This issue paper focuses on present and emerging concerns to

fundamental and human rights infringement as a result of arbitrary detention.

1
[Pure theory of law By Kelsen] [{Published By the Law book exchange Limited.}]

5
 RESEARCH QUESTION
 WHAT IS COLLECTIVE GOOD AND IT IS JUSTIFIED?
 WHAT ARE RIGHTS IN JURISPRUDENCE?
 IS IT APPROPRIATE TO SACRIFICE INDIVIDUAL RIGHT FOR
COMMON GOOD?

RESEARCH METHODOLOGY
Analytical Research: The researcher must take facts from previously collected information and
evaluate them in order to provide a critical assessment of the current material.

Case Study Method: Using the available case law, the researcher attempted to examine the
problem.

To the extent that is based on law-substantive as well as procedural, relevant article, reports,
working papers, and related books and journals are investigated, the researcher has also relied on
external desk-based research incorporating online desk research. The majority of the data was
gathered from secondary sources. Because some of the materials were obtained via the internet,
the study is based on secondary sources. Books by well-known authors serve as secondary
sources.

6
 CHAPTER-1
THE THEORY OF COLLECTIVE SECURITY AND ITS LIMITATIONS

What is the concept of collective security, balance of power and global government?

It is necessary to distinguish collective security from two closely related phrases, namely balance
of power and global government, in order to comprehend the underlying logic of collective
security. The concept of decentralization underpins a state-to-state power balance. States operate
as independent entities, delegating their autonomy and sovereignty to no single authority in
charge of power relations. As a result, "States endeavour to influence the pattern of power
distribution and to decide their own locations within that pattern, either individually or in
combinations reflecting the coincidence of interests."2 States may establish defensive alliances,
such as the North Atlantic Treaty Organization (NATO), in response to actual or perceived
external attacks under this theory. Periodic alignment shifts are possible with these types of
flexible coalitions. The promise of order is based on the assumption that competing claims to
authority will balance and cancel each other out, resulting in "deterrence through equilibration."
Global government, on the other hand, advocates for the establishment of a centralised
institutional framework that is superior to individual states, with a monopoly on power and the
use of force comparable to that of a well-ordered national state. In an attempt to address the
problem of power relations, the concept of collective security sits awkwardly between and
combines characteristics of both of these elements (balance of power and global governance),
serving as a dialectical notion of "order without government"3. "Superimposing a scheme of
partially centralized management upon a state" is one way for states to communicate with one
another. The hybrid system involves a centralization of authority over the use of force to the
point where states are stripped of their legal right to use force at their own discretion and agree to
follow objective rules governing the threat and use of force. It necessitates an international
organization with the authority not only to determine when the use of force is illegitimate, but
also to require states to collaborate under its direction in suppressing such use of force. This
system of communal security stops short of establishing a centralized monopoly of force in the
2
Vol.15 [I. L. Claude, Jr]., [“The Management of Power in the Changing United Nations”, International
Organization ] (Spring 1961), pp. 219 - 221
3
[Vol.90]I. L. Claude, Jr. [An Autopsy of Collective Security”, Political Science Quarterly] (Winter 1975-6), p. 715

7
sense that world government implies. As a result, the power possessed by a hybrid collective
security system can only go as far as the sovereign will of its members.4

Subjective and objective requirements

 Collective security is contingent on a large number of governments expressing a positive

commitment to the value of world peace. The idea of "indivisibility of peace" must be
thoroughly embedded in the minds of governments and peoples. It is based on the notion
that the web of human society has grown so tightly knit and woven that a rupture
somewhere risks dissolution everywhere, and that governments and peoples can be
trusted to understand and act on that truth. Aggression that is unchecked in one direction
encourages and empowers its offenders to penetrate in other directions. Alternatively,
successful use of lawless action in one context undermines respect for the rule of law in
all situations.
 Collective security, by needing assurance of peace's indivisibility, necessitates a factual
accord, and then it imposes an ideal necessity, namely, allegiance to the international
community. That the system will function if the peoples of the globe align their own
interests so closely with the common good of mankind that they go beyond simply
acknowledging interdependence among states to a sense of shared responsibility among
all nations. The responsibilities of participation in a global security system are far too
great for any nation to bear alone, let alone individuals motivated by real sympathy for all
victims of aggression and a commitment to the values of a worldwide system of law and
order. The operation of a collective security system must always be insecure unless there
is widespread belief that what is good for world peace is also good for the nation, and this
belief is deeply rooted in governments and peoples.
 Another criterion for collective security is that all states agree to entrust their fates to it28.
This means that trust is a prerequisite for a collective security system's success, and that
governments must be willing to rely on its effectiveness and impartiality. To put it
another way, if people accept the condition that they "entrust their destinies" to collective

4
P. G. Danchin, “Things Fall Apart: The Concept of Collective Security in International Law” P. G. Danchin and H.
Fisher (eds.) United Nations Reform and the New Collective Security, (Cambridge: Cambridge University Press,
2009)University of Maryland School of Law Legal Studies Research Paper Series (2009), p. 41

8
 security, they are more likely to act in ways that increase the likelihood that their trust is
justified.
 It is also contingent on a number of basic external conditions being met. The power,
legal, and organizational situations all fall under the external sphere. 29. As a result, the
optimal environment for a collective security system is, first and foremost, a world with
significant power distribution.
 The proposal that non-military measures will be sufficient to curb aggression is central to
collective security. Military commitments are acceptable only because they will be used,
but economic penalties are particularly reliant on universal application to achieve their
desired outcomes.
 It prefers to have the majority (superiority) of power at the international community's
disposal rather than in the hands of a single state for aggressive reasons. As a result,
collective security aims to develop a portable majority capable of defending any victim of
aggression and rendering that victim superior to its adversary.

How did the scholars reacted to the concept of collective security?

1) According to Morgenthau: The concept of collective security is flawless as long as it can be

made to work within the current international circumstances. Three assumptions must be met
for collective security to function as a mechanism for preventing conflict.
 To begin with, the collective system must be capable of mustering such
overwhelming strength against any possible aggressor or coalition of aggressors at all
times that the latter would never dare to undermine the collective system's guarded
order.
 Second those countries whose combined might would meet must have the same
vision of security that they are expected to defend.
 Third, those countries must be willing to put their competing political interests aside
in the name of the common good, which is defined as the collective defence of all
member states. In practice, none of these three prerequisites have ever been met,
making communal security idealistic.
2) Another scholar Mearscheimer: flawed because it does not adequately explain how states
overcome their worries and learn to trust one another. To put it another way, it's far too ideal.

9
 He also claims that it presume too simply that an extremely complicated network of needs
would be met. Mearscheimer, on the other hand, contends that nations have good cause to
doubt collective security when aggression appears likely. States that disregard the balance of
power will perform poorly. The historical record does not support the notion of collective
security. Peacekeeping has no role to play in disputes between major countries, and it is
powerless since it cannot use coercion. Concerts, according to him, are frequently held in the
wake of major events.
3) Point outlined by Claude Jr.: Collective security cannot function unless nations' policies are
motivated by trust in the system, which necessitates a rare act of political faith. Without prior
proof that communal security works, the system will be implemented. Theoretically, states
are urged to apply the concept of self-fulfilling prophecy, in which if something happens, it
will happen again. They act as though the collective security system will function or fail if it
does not.

In an ideal world, a collective security system would avoid all wars or turn every aggressor's
defeat into a simple police operation using overwhelming forces. The world, on the other hand,
would prefer localization of confrontations to a strategy that risks aggravating and spreading
conflict.

10
 CHAPTER-2
SACRIFICING RIGHTS OVER NATIONAL SECURITY

Basing on jurisprudence, it is difficult for us to give a uniform definition of a right. The concept
of legal rights is crucial in current legal theory because humans cannot function without legal
rights that are recognized and implemented. Various legal scholars have attempted to define legal
rights. According to salmond, ‘right’ is defined as "a legitimate interest recognised and
safeguarded by the rule of law."5 According to Salmond, whenever there is a right, there is also a
responsibility that is imposed by law, and deviating from that duty is immoral. According to
Salmond, both rights and responsibilities are intertwined. According to Pollock "Right is
freedom allowed and power conferred by law". 6 According to Austin, law is a sovereign
command backed by a penalty, and the person who benefits from that command is said to be
entrusted with a right.7

The notion of collective security deals directly with the question of how to bring about
peace8 .As a result, it follows that Can we sacrifice individual liberties in the name of societal
peace and order? We take, for example, Bentham's principle of greatest happiness, which states
that the government will develop laws based on the maximization of happiness principle.
According to the guidelines, the greatest amount of happiness for the most individuals. The
principle of Bentham can be extended in light of a topic, such as if there is happiness, peace, and
security for a large group of people, we can overlook minorities' objections and grievances. As a
result, we've extended Bentham's principle. Moving forward, we'll look at some other key
notions in this regard, such as if national security is more essential than civil rights, and so on.
Before we get into the concepts of the common good vs. individualism and collectivism vs.
individualism, it's vital to understand what a security state is, and then we'll go into the concept
of national security vs. civil rights .A security state is one that can break international law or any
other legislation in the sake of national security. The United States is an example of this. As a

5
P.J.Fitzgerald, Salmond [On Jurisprudence] Page Number 217, Published By London Sweet and Maxwell 1966
6
V.D.Mahajan Jurisprudence , Page Number 288, Published By Mansoor Book House Lahore
7
V.D.Mahajan Jurisprudence , Page Number 288, Published By Mansoor Book House Lahore
8
[Organizations Lawrence Mwagwabi] [The theory of collective security and its limitations in explaining
international organizations ]

11
result, a security state can break any rule or exercise any privilege granted in exchange for the
rationale of threat or security. It is crucial to emphasise that both sides have valid arguments, as
we will examine in the forthcoming discussion whether national security is more vital than civil
rights. Those in favour of this approach argue that saving the lives of a large number of people is
more important than saving the lives of a single person. Those who support this idea argue that
preserving the lives of a large number of people is more essential. On the second point, argue
that a secure government is essential to protect civil liberties, and that this can only be achieved
if the government's only priority is on homeland security. Moving on, proponents of homeland
security argue that civil liberties cannot be exercised if citizens are threatened by security
breaches, so in order to provide those rights and liberties, a state must first secure itself, with
civil liberties being restored after the state is secure, but lives lost as a result of insecurity cannot
be replaced. Today, we live in a culture where people are willing to make small sacrifices for the
greater good, but we also witness communities where people are more concerned with pursuing
and protecting their personal interests than with the greater good 9. However, before delving
farther into the discussion, it's crucial that we understand what constitutes the common good.
The concept of the common good may be found in the writings of Plato and others dating back
over two thousand years, while it can also be found in Rowels' writings. Rowels defines common
good as a set of circumstances that benefit everyone equally ; yet, the catholic religious tradition
also recognizes common good. Individualism may pose a threat to the promotion of the common
good. Individual freedom is highly valued in our historical conventional beliefs, and because a
diverse society is made up of unique, independent individuals who are free to pursue their own
interests, it is difficult, if not impossible, for people to give up some of their freedom for the
greater good. Individualism, in this view, is detrimental to a society's prosperity.

Collectivism is defined as a philosophy or a group that forms a collective rather than an

individual primary unit of political, social, and economic concern. Individualism, on the other
hand, maintains that a human being should evaluate and think independently, respecting nothing
more than the sovereignty of his intellect; it is ultimately tied to the concept of autonomy, and
individualism upholds the primacy of individual rights. According to Ayn Rand, a majority has
no authority to vote away minorities' rights. Collectivism refers to a person's subjection to a
group, whether it's a race, a class, or a state. Individual rights, on the other hand, according to
9
[Claire Andre and Manuel Valsequaz ][The Common good ] Published By Santa Clara University

12
Rand, imply subordinating society to the moral law, which provides us with freedom rather than
subjugation. Collectivism necessitates self-sacrifice and putting one's own interests second, but
true individualism entails not only having a right to one's own life and happiness, but also
banding together with other citizens to preserve and defend the institutions that safeguard that
right. We are already aware with the concepts of individualism and collectivism, so let us take a
closer look at them. As we've seen in the preceding debate, collectivism and individuality are
diametrically opposed, with individualism focusing on an individual's liberty within a society.
Individualism strengthens an individual in a society, whereas collectivism focuses on the
enslavement of a person to a group, a race, or whatever. On the other hand, collectivism does not
believe an individual to be the primary mover of society, but rather institutions, organisations,
and so on. Both of these notions were brought up in our debate because collectivism emphasises
the importance of the nation over the individual, whereas individuality emphasises the rights
afforded to an individual. Both of these notions were brought up in our debate because
collectivism emphasizes the importance of the nation over the individual, whilst individuality
emphasizes the liberties afforded.

13
 CHAPTER-3

CASE LAWS

Sinclair versus HM Advocate 2005 UK

In this case, the court of law decided that a fair trial is a fundamental right of the accused, and
that there should be an equal arm of the adversarial system, meaning that the prosecution and
defence should be treated equally. The prosecution is required to present evidence that could
jeopardise their case, and such evidence could be used as significant evidence.

Taylor Vs Kentucky 436 US 478

In this instance, the honourable court of law convened a hearing and examined the right to a fair
trial as well as the accused's innocence. The presumption of innocence in favour of the accused
was declared in this instance to be an indisputable law axiomatic and elementary, and its
enforcement is at the heart of the administration of our criminal law. This event took place.
Because it was also affected by another decision.

So, regardless of the circumstances, individual rights must exist, and no one has the authority to
take them away, because the rights that are granted to an individual are the elements and the
basis of the law, or the foundations upon which the law stands.

14
 CONCLUSION
We believe it is critical that we conclude our discussion by emphasizing our point of view.
Individual rights, in my opinion, should never be surrendered in the name of group security.
Democracy could not thrive in such conditions since democratic governments had previously
been overthrown by military dictators in the guise of national security, although democracy is of
the people and for the people. Civil liberties are also harsh protections against the government,
such as freedom of speech, which allows one to criticise government policies while exercising it.
So that a person's right to a fair trial can be exercised. According to the Naturalist, a law that
violates the principles of Natural Justice is a defective law, and its goal can never be attained. As
a result, such laws, in our opinion, will become nothing more than a pointless law, because
citizens of a state often do not have access to information about security threats, allowing the
government to overreact in the absence of individual rights such as the right to information in
order to achieve its own objectives.

15
 BIBLIOGRAPHY
Sites Reffered:

https://www.casemine.com/judgement/in/5779fc40e561096c93131a6f

https://www.casemine.com/judgement/in/5779fc40e561096c93131a6f

https://www.jstor.org/stable/1092186

https://news.cornell.edu/stories/2016/12/evangelista-tackles-individual-rights-vs-
national-security

For articles:

SCC online

Shodh Ganga thesis

Common Good jurisprudence

16