Appearances and Art of Advocacy – Drafting, Pleadings and Appearances Important Questions
Question 1.
Summarize standards applicable to preparation of an opinion. Mention the common purposes for which legal opinion are sought.
OR
Write a note on the following; Need for legal opinion.
Answer:
Following are the standards to preparation of an opinion:
1. Generally: A lawyer is expected to be well informed and to exercise such skill, prudence and diligence while writing legal opinion.
2. Customary Practice: An attorney does not ordinarily guarantee the soundness of his opinions and, accordingly, is not liable for every mistake he may make in his practice. He is expected, however, to possess knowledge of those plain and elementary principles of law and shall be able to discover those additional rules of law which, although not commonly known, may readily be found by standard research techniques.
3. Fraudulent or Misleading Opinions: An opinion giver may be liable for an opinion that constitutes fraudulent misrepresentation. Regardless of compliance with other standards, and even if an opinion is technically correct, a lawyer should not render an opinion that the lawyer recognizes would be misleading to the opinion recipient.
4. Ethical Issues Relating to the Provision of Opinions to Non-clients:
A lawyer delivering an opinion letter to a non-client should also consider ethical principles. For example, rendering an opinion to a non-client may conflict with the opinion giver’s ethical obligations.
Common purposes/need for which legal opinion are sought
Following are the most common purposes in a commercial world for which legal opinions of experts are sought:
1. Lawfulness of an action: When one wants to know if an action is lawful.
2. Legal consequences: Sometimes a party entering into a transaction obtains legal opinion to ascertain if the action will lead to desired legal consequences.
3. Answer questions: When client wants professional guidance in an area.
4. Regulatory requirements: Sometimes legal opinion has to be sought because it is mandated by law.
5. Compliance: It can be sought to meet the compliance requirement.
6. Protective shield: Clients sometimes desire the protection of an expert’s legal opinion.
7. Designed to mislead: Sometimes promoters of unscrupulous schemes obtain as many opinions from different experts as is possible and use the one which is favourable to their scheme of things.
8. To satisfy contractual requirements: Sometimes a clause in com-mercial contracts require the opinion of an expert.
9. Due Diligence: Lawyers and clients often cite due diligence as the principal reason for requesting.
Question 2.
Examine the following statements; A legal opinion should be structured.
Answer:
Drafting a legal opinion should always split into three processes:
The mental attitude: It involves four fundamental principles dealing with a legal situation, facts are more fundamental than the law, the law is a means to the end and answer the question.
The thinking process: Read and digest the instructions, answers the primary questions, understand and organize the facts, consult the legal framework, look at the case as a whole and consider the advice.
The writing process: It needs to be structural, divided into paragraphs and consistent.
Question 3.
Comment on the following statements; Formulation of a legal opinion needs certain precautionary measure.
Answer:
A querist makes a request for a legal opinion in a written form. Such a request will usually include documents if any in the case.
The request for a legal opinion will include at least one and usually a number of questions which the legal advisor is being asked to address. The overarching question will be asked ie.:
“Does the client have a good and viable case.”
Formulation of a legal opinion:
Following measures must be taken while drafting a legal opinion:
- If the client’s case is not viable they must be advised about this during the course of legal opinion.
- If there is something that can be done to improve the client’s prospects of success, a good legal opinion will spell out this very precisely.
- Numbered action points are one way of achieving clarity in this regard. Above all, it is vital to remember that if being asked to draft a legal opinion it implies that you are being asked to advise.
- Sitting on the fence is not an option. Lay out the pros and cons of a particular course of action, but always come down on one side or the other.
- Giving a percentage chance of success at the beginning of a legal opinion is one way of being clear about what you think the client’s prospects are.
- Drafting a legal opinion can and should always be split into three processes:
- The mental attitude
- The thinking process
- The writing process
Question 4.
Name and explain various types of Writs allowed by Constitution of India.
OR
Explain the following; Writ of Mandamus.
OR
Explain the following; Writ of Habeas Corpus.
OR
Write notes on the following; Prohibition and Certiorari.
Answer:
“Writs” are issued for enforcement of Fundamental Rights as conferred on the citizens of India and others under the Constitution of India. Writs are governed by:
Article 32 of the Constitution of India confers on the Supreme Court of India the power to issue writs for the enforcement of any of the rights conferred by Part III (Fundamental Rights).
Article 226 of the Constitution of India confers on the High Courts of India the power to issue writs for the enforcement of any of the rights conferred by Part III (Fundamental Rights) and for any other purpose.
Powers of High Courts vs. Powers of Supreme Court:
The bare reading of Article 32 and Article 226 makes it clear that the power of High Courts under Article 226 is wider than the power of the Supreme Court under Article 32 as Article 32 is invoked for the enforcement of Fundamental Rights whereas Article 226 is invoked for enforcement of fundamental right as well as other legal rights too.
Types of writs
Following are the types of writs provided under the Constitution of India:
1. Habeas Corpus
The writ of “habeas corpus” is a remedy available to a person who is confined without legal justification. The words “Habeas Corpus” means “to have a body”.
This is an order to let the Court know on what ground he has been confined and to set him free if there is no legal justification for his detention.
Direction to a detaining authority:
This writ has to be obeyed by the detaining authority by production of the person before the Court.
Application of Writ Petition:
Any person may move the Supreme Court and the High Court of competent jurisdiction respectively, for the issue of this writ.
The applicant may be the prisoner himself moving the Court or any other person may move the Court on his behalf to secure his liberty praying for the issue of the writ of habeas corpus.
No person can be punished or deprived of his personal liberty except for violation of any law and in accordance with the due process of law.
Disobedience to the writ of habeas corpus attracts punishment for contempt of Court under the Contempt of Courts Act, 1971.
2. Mandamus
The writ of mandamus is a command issued to direct any person to do a particular thing therein specified which pertains to his office and is further in the nature of a public duty. The expression “mandamus” means a command.
Direction to all authorities:
Mandamus can be issued by the Supreme Court and all the High Courts to direct any person, corporation, inferior Court or Government authority. This writ is used when the inferior tribunal has declined to exercise jurisdiction. Mandamus can be issued against any public authority.
Does not lie against:
- The President of India or the Governor of a State for the exercise 0 of their duties and powers (Article 360).
- A private individual or body except where the State is in collusion with such private party in the matter of contravention of any provision of the Constitution or of a Statute.
- It is a discretionary remedy and the Court may refuse if alternative remedy exists except in case of infringement of Fundamental Rights.
3. Prohibitions
The writ of prohibition is issued by the Supreme Court or any High Court to an inferior Court preventing the latter from usurping jurisdiction which is not legally vested in it. It compels courts to act within their jurisdiction when a tribunal/court acts without or in excess of jurisdiction or in violation of rules or law.
Directions to judicial or quasi-judicial authorities:
The writ of prohibition is available only against judicial or quasi-judicial authorities and is not available against a public officer who is not vested with judicial functions.
If abuse of power is apparent this writ may be prayed for as a matter of right and not a matter of discretion. This writ is available during the pendency of the proceedings and before the order is made.
4. Certiorari
The writ of certiorari is available to any person whenever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, acts in excess of its legal authority.
The writ removes the proceedings from such body to the High Court in order to quash a decision that goes beyond the jurisdiction of the deciding authority.
5. Quo warranto
The fundamental basis of the proceedings of quo warranto is that the public has an interest to see that no unauthorised person usurps a public office. The holder of the office has to show to the Court under what authority he holds the office.
This writ is issued when:
- The office is of a public and of a substantive nature.
- The office is created by a Statute or by the Constitution itself.
- The respondent must have asserted his claim to the office. It can issue even though he has not assumed charge of the office.
It is a discretionary remedy which the Court may grant or refuse. This writ is intended to safeguard against the usurpation of public offices.
Question 5.
Distinguish between the following; Habeas corpus and Quo warranto.
Answer:
Following are the differences between writs of Habeas corpus and Quo warranto:
| Habeas Corpus | Quo Warranto |
| The writ of “habeas corpus” is a remedy available to a person who is confined without legal justification. The words “Habeas Corpus” literally means “to have a body”. | The fundamental basis of the proceedings of quo warranto is that the public has an interest to see that no unauthorised person usurps a public office. |
| This is an order to let the Court know on what ground he has been confined and to set him free if there is no legal justification for his detention. | The holder of the office has to show to the Court under what authority he holds the office. |
| Direction to a detaining authority This writ has to be obeyed by the detaining authority by production of the person before the Court. |
This writ is issued when:
i. The office is of a public and of a substantive nature. ii. The office is created by a Statute or by the Constitution itself. iii. The respondent must have asserted his claim to the office. It can issue even though he has not assumed charge of the office. |
| Application of Writ Petition Any person may move the Supreme Court and the High Court of competent jurisdiction respectively, for the issue of this writ. |
It is a discretionary remedy which the Court may grant or refuse. |
| The applicant may be the prisoner himself moving the Court or any other person may move the Court on his behalf to secure his liberty praying for the issue of the writ of habeas corpus. | This writ is intended to safeguard against the usurpation of public offices. |
| Disobedience to the writ of habeas corpus attracts punishment for contempt of Court under the Contempt of Courts Act, 1971. |
Question 6.
Distinguish between ‘Writ of certiorari’ and ‘writ of prohibition’
Answer:
Following are the differences between writs of Prohibition and Certiorari:
| Writ of Prohibition | Writ of Certiorari |
| The writ of prohibition is issued by the Supreme Court or any High Court to an inferior Court preventing the latter from usurping jurisdiction which is not legally vested in it. | The writ of certiorari is available to any person whenever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, acts in excess of its legal authority. |
| It compels courts to act within their jurisdiction when a tribunal acts without or in excess of jurisdiction or in violation of rules or law. | The writ removes the proceedings from such body to the High Court in order to quash a decision that goes beyond the jurisdiction of the deciding authority. |
| The writ of prohibition is available only against judicial or quasi-judicial authorities and is not available against a public officer who is not vested with judicial functions. | This writ is a cure. |
| If abuse of power is apparent this writ may be prayed for as a matter of right and not a matter of discretion. | |
| The Supreme Court may issue this writ only in case of Fundamental Rights being affected by reason of the jurisdictional defect in the proceedings. | |
| This writ is available during the pendency of the proceedings and before the order is made. | |
| This writ is in a form of precaution. |
Question 7.
Distinguish between the following ‘write of mandamus’ and a ‘write of certiorari’?
Answer:
The following are the difference between ‘write of mandamus’ and a ‘write of certiorari’
| The writ of mandamus is a command issued to direct any person, corporation, inferior Court or Government authority requiring him to do a particular thing therein specified which pertains to his or their office and is further in the nature of a public duty. | The writ of certiorari is available to any parson whenever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially acts in excess of its legal authority. |
| Mandamus can be issued against any public authority. | The writ removes the proceedings from such body to the High Court in order to quash a decision that goes beyond the jurisdiction of the deciding authority. |
| The applicant must have a legal right to the performance of a legal duty by the person against whom the writ is prayed. | |
| Mandamus is not issued if the public authority has discretion. | |
| It is a discretionary remedy and the Court may refuse if alternative remedy exists except in case of infringement of Fundamental Rights. |
Question 8.
Explain the power to grant Special Leave (SL) under Article 136 of the Constitution of India. Who can exercise this power? Are the provisions of this Article applicable on Defense Personal?
OR
Write notes on the following; Special Leave Petition (SLP).
OR
What are the provisions in the constitution regarding filing of SLP?
Answer:
Special Leave Petitions provides the aggrieved party a special permission to be heard in Apex Court in appeal against any judgment or order of any Court/tribunal in the territory of India.
It is a “residual power” in the hands of Supreme Court of India to be exercised only in cases when any substantial question of law is involved, or gross injustice has been done.
Article 136 of the Constitution of India confers upon the Supreme Court g power to grant special leave to appeal.
1. Not with standing anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
2. Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.
When a High Court refused to issue the required certificate under j Article 134A of the Constitution of India to enable an aggrieved party to appeal to the Supreme Court against the judgment, order or sentence j awarded by the High Court, the aggrieved party may petition to the Supreme Court for grant of special leave to appeal under Article 136 of the Constitution. Special leave may be granted or dismissed at the discretion of the Supreme Court.
Question 9.
Explain and comment on the following; Special Leave Petition under Article 134A and under Article 136 of the Constitution of India are similar in format and same in essence.
Answer:
Question 10.
Draft a Special Leave Petition (SLP) before Supreme Court of India with assumed data.
Answer:
BEFORE THE SUPREME COURT OF INDIA
(CIVIL APPELLATE; JURISDICTION)
Civil Appeal No./2017
IN THE MATTER OF:
ABC Company Ltd.,
Through Chairman Mr. A
Having registered office at _______________
…………….. Petitioner
Versus
1. Mr.Y
S/o ……………..
R/o ……………..
2. Union of India
…Respondents
SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA,
May it please the Hon’ble Chief Justice of India and His Lordship’s Companion Judges of the Supreme Court.
MOST RESPECTFULLY SHOWETH:
1. That the petitioner is a company duly incorporated under the provi¬sions of the Companies Act, 2013 having its registered office at 1/26 Safdarjung, New Delhi.
2. That the petitioner is challenging by way of this Special Leave petition the judgment and order of the High Court of Delhi dated 6th July 2017 in proceeding under section 420 R/w Section 406 of IPC.
3. The petitioner is Real-Estate Company and the respondent had booked a flat with the petitioner.
4. That the property had to be constructed by the petitioner within 8 months from the date of execution of the Contract dated …. and the respondent had to make the payments in instalments as agreed in the contract and full and final payment before the construction was completed.
Question 11.
Elucidate types of Legal Opinion.
Answer:
Following are the types of Legal Opinion:
Advices on Transaction: An opinion letter may be one component of a party’s due diligence, but it is not normally a substitute for due diligence performed by the opinion recipient and its counsel.
Advices on Law: Sometimes the client would want to know how the law will apply to a given situation. Without in-depth knowledge of law and legal research one cannot give an opinion to the satisfaction of the client. The proper way is to start with the cases and work through to reach a deduction as to the principle of law that covers the situation.
Opinions on Facts: The third type of opinion is one which is pre-dominantly related to facts. One is given a series of statements and documents and asked whether on that material there are reasonable prospects of prosecuting or defending the claim.
Advices on Evidence: A special type of opinion is a brief to advice on evidence.
Question 12.
Elucidate elements of the Opinion Letter?
Answer:
There is no form for a legal opinion prescribed by law or rule, however a legal opinion may cover the following:
1. Introductory matters: Matter like title, heading of the opinion must be given. Date, addressee are covered in this part.
2. Introduction: The first paragraph should serve as an introduction to the legal opinion, laying out the salient facts and what the expert has been asked to advise about comprising of the questions on which the opinion is sought.
3. Definitions: It is advisable to define the principal terms used in the opinion. Whenever a term utilized in an opinion letter is derived from statutory law, the opinion customarily uses that term or provides an express definition.
4. Understanding facts of the case: The opinion giver must determine the factual and legal bases diligently. The first rule is always to commence the opinion by setting out the facts that have been given or have been presumed from the instructions given. It crystallizes those facts in one’s mind, visualises any gaps which need to take further instructions or make assumptions. Facts should state material facts for answering questions.
5. Research on Relevant Case Laws: After the facts comes the legal pro-visions applicable. There is no need to set out basic principles of law with which the opinion recipient will be familiar. The most authoritative case on the point of law being dealt with must always be cited. For example, there is no point citing a High Court judgment which has been overruled by a subsequent judgment of the Supreme Court.
6. Expression of the Opinion: The opinion can be in the form of summary statement of conclusions or, where a series of discrete questions have been asked, precise answers to the particular questions asked.
7. Qualifications: Some opinions may be qualified by assumptions or exceptions. Opinions also may be qualified as to scope, particularly when the opinion covers a specialized area of the law.
8. Special Matters: Foreign Law and Reliance on Local Counsel: Opinion giver for a party in a business transaction may give an opinion covering the laws of the state and also laws of some other country.
Reliance on Opinion of Special’ Counsel: A lawyer who has no expertise in a specialized matter should not render an opinion in the specialized area, and should refer the matter to a lawyer qualified in that field.
9. Signature: The procedure typically followed by most law firms is for the opinion letter to be manually signed in the name of the firm.
10. Usual disclaimers: Under the disclaimer, it is written that the opinions provided are based on the law as per the time of drafting the opinion.