Students must start practicing the questions from CBSE Sample Papers for Class 12 Legal Studies with Solutions Set 3 are designed as per the revised syllabus.
CBSE Sample Papers for Class 12 Legal Studies Set 3 with Solutions.
Time Allowed: 3 Hours
Maximum Marks: 80
General Instructions:
- This question paper contains 4 sections- A, B, C, and D
(a) Section A- Multiple choice questions
(b) Section B- 2 marks
(c) Section C- 3 marks
(d) Section D- 5 marks - Internal choice is given in the paper, there is no overall choice.
Section – A (20 Marks)
Question 1.
Amy, a legal student, consists of a four-year undergraduate degree completed following completion of secondary school and passage of the university entrance exam. She will then take the first examination, a comprehensive set of exams that emphasizes academic knowledge of the law. She belongs to the legal system of which country?[1] .
(a) UK
(b) Europe
(c) Russia
(d) Germany
Answer:
(d) Germany
Question 2.
Michael Browne has an undergraduate degree in Anthropology and aspires to become a lawyer in the UK. Which of the following will enable her to do so? [1] .
(a) Pupillage
(b) Common Professional Examination
(c) Bar Vocational Course
(d) Legal Practice Course
Answer:
(d) Legal Practice Course.
Question 3.
In this system, the parties in a legal proceeding develop their own theory of the case and gather evidence to support their claims.[1].
(a) Adversarial system
(b) Inquisitorial system
(c) Both (a) and (b)
(d) Legal system
Answer:
(a) Adversarial system
Question 4.
In this case, the Supreme Court held that India had ratified conventions regarding the protection of children and thus placed an obligation on the State Government to implement these principles. Identify the case highlighted here. [1].
(a) Sheela Barse v. Secretary Children’s Aid Society
(b) Magan Bhai Patel v. Union of India
(c) Keshavananda Bharati Case
(d) Maneka Gandhi Case
Answer:
(a) Sheela Barse v. Secretary Children’s Aid Society
Question 5.
A suburban homeowner wants the right way to deal with his neighbor’s overly bright driveway lights that shine in his bedroom window. Which of the following modes of dispute resolution is best suited in this case? [1].
(a) Arbitration
(b) Mediation
(c) Conciliation
(d) None of these
Answer:
(b) Mediation
Question 6.
Assertion (A) The judiciary in India derives its powers and functions from the Constitution. Reason (R) The Constitution, to date, remains the fundamental legal text for the functioning of Indian democracy. [1].
Alternatives
(a) Both Assertion (A) and Reason (R) are true and Reason (R) is the correct explanation of Assertion (A)
(b) Both Assertion (A) and Reason (R) are true, but Reason (R) is not the correct explanation of Assertion (A)
(c) Assertion (A) is true, but Reason (R) is false
(d) Assertion (A) is false, but Reason (R) is true
Answer:
(a) Both Assertion (A) and Reason (R) are true and Reason (R) is the correct explanation of Assertion (A)
Question 7.
The situation I A intentionally causes Z’s death, partly by illegally omitting to give Z food, and partly by beating Z. A has committed murder.
Situation II A intentionally beats B with a stick. Which of the following statements best describes the two situations? [1].
(a) In both situations there is actus reus though men’s rea is missing
(b) There is actus reus and men’s rea in both situations.
(c) Situation I shows moral omission, whereas Situation II shows illegal omission.
(d) The act of not doing anything does not accrue any criminal liability as actus rea is not there.
Answer:
(b) There is actus reus and men’s rea in both situations.
Question 8.
The Bar Council of India has suspended Shikha, an advocate, due to a breach of its rules. Which of the following situations may have led to her suspension? [1].
(a) She has charged a contingency fee from her client in a land dispute.
(b) She had negotiated with the opposite party through the opposing advocate.
(c) She refused to represent the client who insisted on adopting unfair means.
(d) She refused to appear in a matter where she was the witness.
Answer:
(a) The Bar Council of India imposes certain restrictions on advocates wherein they are barred from charging a contingency fee.
Question 9.
Match the following using the codes given below.
| Column I | Column II |
| A. National Commission for Minorities Act | (i) 1990 |
| B. National Commission for Women Act | (ii) 1961 |
| C. Dowry Prohibition Act | (iii) 1860 |
| D. Indian Penal Code | (iv) 1992 |
Codes
| A | B | C | D | |
| (a) | (iv) | (i) | (ii) | (iii) |
| (b) | (i) | (ii) | (iii) | (iv) |
| (c) | (iii) | (i) | (ii) | (iv) |
| (d) | (ii) | (i) | (iii) | (iv) |
Answer:
(a) (iv) (i) (ii) (iii)
Question 10.
It was set up post the First World War as a part of the Treaty of Versailles, in 1919 to achieve social justice. It was aimed at improving the conditions of labor in various countries in the world to help achieve humane conditions for such laborers by providing for various regulations and agreements on the conditions of laborers. Which organization is being referred to? [1] .
(a) UNESCO
(b) UNICEF
(c) ILO
(d) ICJ
Answer:
(c) ILO
Question 11.
Statement The intentional tort of false imprisonment is satisfied whenever there is intent to unlawfully confine or restrain the claimant in a bounded area. Statement The tort of trespass to land occurs when the defendant has the intent to physically invade the real property of the claimant. [1] .
Alternatives
(a) Both Statement II are true
(b) Both Statement II is false
(c) statement I is true and Statement II is false.
(d) Statement I is false and Statement II is true.
Answer:
(a) Both .statements are true.
Question 12.
An explicit provision for legal services is incorporated into the. [1] .
(a) UNHRC
(b) ILO
(c) ICCPR
(d) None of the above
Answer:
(c) ICCPR
Question 13.
A sells his house for ₹ 8 lakh to B. This is called. [1] .
(a) Mortgage
(b) Sale
(c) Hypothecation
(d) Pledge
Answer:
(b) Sale
Question 14.
Assertion (A) Tort law ensures that the defendant compensates the victim for a wrongful act.
Reason (R) This deters one from injuring others as it encourages defendants to be mindful and careful. [1].
Alternatives
(a) Both Assertion (A) and Reason (R) are true and Reason (R) is the correct explanation of Assertion (A)
(b) Both Assertion (A) and Reason (R) are true and Reason (R) is not the correct explanation of Assertion (A)
(c) Assertion (A) is true but Reason (R) is false
(d) Assertion (A) is false but Reason (R) is true
Answer:
(a) Both Assertion (A) and Reason -(R) are true and Reason (R) is the correct explanation of Assertion (A)
Question 15.
Arrange the following in chronological order on the basis of their enactment year. [1] .
(i) National Commission for Minorities Act
(ii) National Commission for Women Act
(iii) Protection of Civil Rights Act
(iv) Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act.
(a) (i) (ii) (iii) (iv) (b) (iii) (iv) (i) (ii)
(b) (iii) (iv) (i) (ii)
(c) (iii) (ii) (i) (iv) (d) (i) (iv) (iii) (ii)
(d) (i) (iv) (iii) (ii)
Answer:
(b) (iii) (iv) (i) (ii)
Direction Read the excerpt from the decided case of Durga Prasad v. Baldeo and answer questions 16 to 20 The plaintiff constructed some shops at the request of the District Collector in a town. The constructed shops were given for rent for doing business with the defendant.
The defendant, apart from the rent, promised to give a 5% commission to the plaintiff on all articles sold through the shop in consideration of the huge amount spent by the plaintiff in the construction of the building. The defendant failed to pay the commission and the plaintiff initiated action to recover the commission.
Question 16.
On what ground was the action of the plaintiff rejected by the Court? [1] .
(a) Construction of the shop was done at the desire of the District Collector and not at the desire of the defendant.
(b) Construction was done at the desire of the defendant and not the District Collector.
(c) Court did not have the jurisdiction to try the case.
(d) Defendant had reasonable grounds to not pay commission.
Answer:
(a) Construction of the shop was done at the desire of the District Collector and not at the desire of the defendant.
Question 17.
Consideration can be for. [1] .
(a) Present only
(b) Past only
(c) Future only
(d) Any of these
Answer:
(d) Any of these
Question 18.
A contract without consideration is. [1] .
(a) valid
(b) not valid
(c) void ab initio
(d) None of the above
Answer:
(b) not valid
Question 19.
Which of the following is the first step in the formation of a contract? [1] .
(a) Doctrine of Restitution
(b) Doctrine of Retribution
(c) Doctrine of Election
(d) Doctrine of Lis Pendens
Answer:
(a) Doctrine of Restitution
Question 20.
In a similar case, A offers to sell his car to B for ₹ 50,000. B accepts the offer. In this case, what is the consideration for B? [1].
(a) Car
(b) ₹ 50,000
(c) Both car and money
(d) None of the above
Answer:
(a) Car
Section-B (16 Marks)
Question 21.
An industrial workman wants to file a suit against his employer for nonpayment of his daily wages. However, due to a lack of money, he wants to avail free legal aid. Can he be allowed to do so? [2].
Answer:
As per the Legal Services Authorities Act, of 1987, an industrial workman is allowed to avail of free legal aid services. In 1987, the Legal Services Authorities Act was enacted by the Parliament to establish a nationwide uniform network for providing free and competent legal services to the weaker sections of society.
Question 22.
State the hierarchy followed in the Indian Judiciary.
Or
Discuss the role of judicial review. [2].
Answer:
Indian judiciary comprises of
(i) the Supreme Court,
(ii) High Court,
(iii) Subordinate Courts and
(iv) other Tribunals.
Or
Judicial review is a principle or a legal doctrine or a practice whereby a court can examine or review an executive or a legislative act, such as a law or some other governmental or administrative decision, and determine if the act is incompatible with the constitution.
Question 23.
There was a violent clash between the security forces of Assam and Bengal over a border dispute, which claimed the lives of ten Assam police personnel and injured dozens of others. The government informed the Parliament that there were a total of seven inter-state border disputes at present in the country. [2].
(i) Which institution has the authority to resolve such disputes?
(ii)Mention the constitutional provision under which it can intervene.
Answer:
(i) The Supreme Court of India has the authority to resolve such disputes.
(ii) The Supreme Court has original jurisdiction under Article 1 31 of the Constitution to intervene in inter-state disputes since it falls under its original jurisdiction.
Question 24.
A sells his jeep to B for a consideration of ₹ 7,000 whereas the price of the jeep is ₹ 10,000. [2].
(i) Is there a valid consideration in this case?
(ii) Is an agreement without consideration valid?
Or
Write a short note on exchange.
Answer:
(i) In the given case, the consideration given is valid because the law does not require the consideration to be adequate.
(ii) Generally, an agreement without consideration is void and not enforceable by law because in such cases, one party is getting something from the other without giving anything to the other.
Or
Section 11 8 of the Transfer of Property Act defines exchange. When there is a transfer of ownership of one thing for the ownership of another between two persons, it is called an exchange. Transfer of property by exchange can be made only” by way of sale. The rights and liabilities of the parties to exchange are similar to that of the rights and liabilities of the buyer to the extent of receiving and that of the seller to the extent of giving.
Question 25.
Sunil was arrested on the suspicion of having murdered his friend. He was produced before the Magistrate within 24 hours of his arrest. No concrete evidence could be presented by the police against Sunil. After being brought back from the court he was taken into custody to make him confess his crime. Are the police justified in its action? Which provision of Article 22 of the Constitution of India is being violated by the police? [2].
Answer:
In the given situation, the police have violated Article 22(2) of the Constitution which provides that no person can be detained in custody beyond the period of 24 hours without the authority of the Magistrate. Thus, the police are not justified in its action.
Question 26.
This doctrine is based on principles of equity. Under any instrument, if two rights are conferred on a person in such a manner that one right is in lieu of the other, he is bound to elect only one of them. Explain this doctrine. [2].
Answer:
According to the principle of the Doctrine of Election (Section 35 of the TPA), a party to the transfer cannot accept as well as reject a single
transaction. In other words, while claiming advantage of an instrument, the burden of the instrument should also be accepted.
Question 27.
Dubbed the ‘Bretton Woods Twins’, these two organizations were formed to aid the economies of various countries. [2].
(i) Identify the two organizations mentioned above.
(ii) State their main functions
Answer:
(i) The two organizations mentioned above are IMF and World Bank.
(ii) The World Bank aids member states by. providing loans to member states for the purpose of development and raising its funds by way of the world’s financial markets. The IMF helps in creating a stable climate for international trade by harmonizing its member’s monetary financial assistance to countries that encounter difficulties with their balance of payments.
Question 28.
Critically assess the situations given below in the light of ‘Cultural and Educational Rights’ [2].
(i) A government-aided school in West Bengal denied admission to Rachitbecause his mother tongue was Punjabi and he does not understand Bengali.
(ii) In the annual budget for education, the state government allocated ₹ 36.5 crores for government and state-funded schools and ₹ 16.5 crores for schools run by religious minorities.
Answer:
(i) Article 29 provides minority sections of citizens who have distinct languages, scripts, or cultures the right to conserve the same. It also prohibits educational institutions, maintained by the State or receiving aid out of State funds, from denying admission to any citizen on grounds of religion, race, Caste, or language. Thus, this constitutes a violation.
(ii) Article 30 provides all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice. It also prohibits the State from discriminating against educational institutions, while granting them aid, on grounds of religion or language.
Section -C (24 Marks)
Question 29.
In the 1987 case ofMC Mehta v. Shri Ram Foods and Fertilizer Industries, Justice PN Bhagwati, developed the principle of absolute liability. [3].
(i) Which principle helped the evolution of absolute liability?
(ii) Explain the principle of absolute liability.
(iii) What are the essentials of absolute liability?
Answer:
(i) Absolute liability evolved from the principle of strict liability.
(ii) It is a kind of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant. It is basically a legal doctrine that holds a party (defendant) responsible for its actions, without the plaintiff having to prove negligence or fault. part of the defendant.
When any person is involved in ultra-hazardous activities such as keeping wild animals, using explosives, or making defective products, then he/she may be held liable if any other person is injured because of that activity, even if the defendant took necessary precautions and followed safety requirements.
(iii) The following are the essentials of absolute liability.
(a) Dangerous thing
(b) Escape
(c) Non-natural use of land
Question 30.
How can foreign lawyers take the bar exam without earning a degree locally? State the procedure. [3].
Answer:
Some states may allow some foreign-educated lawyers to take the bar examination without earning their degree locally. In such a case, however, foreign-educated lawyers must begin the process by getting their law degree reviewed and analyzed by the American Bar Association (ABA). Once reviewed, the application is either accepted or deferred. If accepted, foreign lawyers are allowed to sit for that state’s bar exam in much the same way a domestic applicant would.
In New York, one of the jurisdictions most open to foreign lawyers, this would allow foreign lawyers to sit for the bar without being required to complete any further law school study, in the US. Even if deferred, applicants may be asked to complete coursework at an ABA-approved college before sitting for the bar exam. This coursework usually takes the form of a one-year LL.M program at an ABA-accredited school.
Question 31.
Comment with reasons on the type of ADR that can be most effective in resolving the following situations. [3].
(i) A dispute arose between Steelcon Construction Company and A-T Architectural Design Company with respect to some technical issues relating to engineering design. They want to resolve their dispute but also want to keep matters confidential and their business secrets protected.
(ii) Sudha buys an air conditioner and realizes it isn’t cooling as it is defective. She tries to return it or have the company fix it, but doesn’t succeed. She talks with the salesperson, speaks with the manager, and writes emails to the company, and still, she is not satisfied with the company’s response. The disputing parties agree to refer the dispute to a neutral third party, Mr.Ranganathan, who evaluates their case and directs them toward settlement.
Answer:
(i) The method suggested here is Arbitration. Arbitration is a term derived from the nomenclature of Roman law. Arbitration is a private arrangement of taking disputes to a less adversarial, less formal, and more flexible forum and abiding by the judgment of a selected person, instead of carrying it to the established courts of justice.
(ii) The ADR method suitable here is mediation. Mediation is a method of ADR in which parties appoint a neutral third party. This neutral third party facilitates the mediation process in order to assist the parties in achieving an acceptable, voluntary agreement. Mediation is premised (based) on the voluntary will of the parties and is a flexible and informal technique of dispute resolution.
Question 32.
With regard to the provisions of ‘Fundamental Rights’ enshrined in Part III of the Indian Constitution, consider the following situations and answer the questions that follow. [3].
(i) State Government gave reservations to Scheduled Castes, and Scheduled Tribes in public employment, who have not been adequately represented in the services under the State.
(ii) Dipender is a rickshaw puller and was not allowed to enter a public restaurant because he belonged to a backward class.
Answer:
(i) Article 16 is also based on the equality principle of Article 14. It provides for equality of opportunity in matters of public or State employment and bars any discrimination against any citizen on grounds of religion, race, caste, sex, descent, place of birth, or residence. However, this article allows the State to provide reservation or affirmative (positive) action programs for government jobs to backward classes like Schedule Castes and Scheduled Tribes who because of historical and continued disadvantages based on caste status and otherwise, have not been adequately represented in the services under the State.
(ii) The given situation is a violation of Article 1 5 of the Constitution. Article 15 is based on the equality principle. It prohibits the State from discriminating against anyone based on grounds of religion, race, caste, sex, or place of birth. Also, it prohibits anyone and the State from using these grounds to restrict (restrain) any citizen from entering shops, public restaurants, hotels, and places of public entertainment; or the use of wells, tanks, bathing ghats, roads, and places of public resort.
Question 33.
Evaluate the role of any two international bodies which have been working towards harmonizing private laws of different countries. [3].
Answer:
(i) World Health Organisation WHO has been a core agency for setting up norms and standards to be followed with regard to human health and research regarding the containment of diseases as well as assessing worldwide health trends. It coordinates with various agencies in different countries to facilitate greater knowledge and awareness of health issues in various countries.
(ii) UNESCO Formed in 1945, UNESCO was set up to promote coordination between members keeping in mind the fact that mere economic and political arrangements are not enough to ensure growth and stability in member states. By promoting culture, preserving the heritage, and sharing knowledge and understanding that are beneficial for the whole of mankind, UNESCO aims to aid sustainable development and foster greater cooperation between nations.
Question 34.
A convention is organized by the WHO to bolster the coordination of international health workers to combat the ‘Monkeypox’ virus. Participating countries agree to strengthen health services and take emergency measures through the signing of a treaty. In this context
(i) Define treaty.
(ii) State any two features of a treaty. [3].
Answer:
(i) A Treaty/International Convention/Charter refers to a legally binding, written agreement in which states agree to act in a particular manner as specified in the agreement.
(ii) Two features of a treaty are
(a) It must be ratified before it can take effect.
(b) It must be approved by all parties to a treaty.
Question 35.
Neither is it possible nor is it proper to isolate the right to legal aid from the range of human rights. Comment.
Or
What are the primary functions of the State Authority? [3].
Answer:
There are millions of people who are denied human rights only because they cannot afford the cost required for the enforcement of their rights. Merely talking about human rights from an elitist platform is not sufficient. In order to do social justice for them and to make human rights meaningful, legal aid becomes essential. Human Rights which cannot be enforced due to poverty are meaningless and worthless.
A right to access to justice is sine-qua-non for social justice. Access to justice itself is one of the most basic human rights, and without it, the realization of many other human rights may become difficult. Indeed, the right to access justice or Legal Aid is evolved by judicial creativity for the benevolence (benefit) of poor persons. Thus, neither is it possible nor is it proper to isolate the right to legal aid from the range of human rights.
Or
The State Authority shall perform all or any of the following functions, namely.
(i) Give legal service to persons who satisfy the criteria laid down under this Act,
(ii) Conduct Lok Adalats, including Lok Adalats for High Court cases,
(iii) Undertake preventive and strategic legal aid programs; and
(iv) Perform such other functions as the State Authority may in consultation with the Central Authority, fix by regulations.
Question 36.
Mr. Naidu is a qualified Lawyer practicing since 1990 in the High Court of Delhi and in the Supreme Court of India. He has special knowledge and expertise in the field of Civil and Criminal Laws. While appearing in a courtroom, he usually dresses in black and white, wears a white band around his neck, and a black gown j’s having flaps on the shoulders.
On 1 8th November 2015, Mr. Mehta directly approached and appointed Mr. Naidu as his advocate, to file an appeal in the Delhi High Court against the decision of the District Court. Mr. Naidu accepted ₹ 1 lakh in cash as his consultation charges. On 19th November 2015 i.e. on the very next day, without wasting any time, Mr. Naidu started drafting pleadings as 29th November 2015 was the last day to file the appeal.
(i) Mr. Naidu comes under which category of a legal practitioner as recognized by the Advocates Act, 1961?
(ii) Giving reason, state whether the conduct of Mr. Naidu is justified as per the provisions of the Advocates Act, 1961 ? Naidu 1961?[3].
Answer:
(i) Mr. Naidu comes under the category of Senior Advocate.
(ii) The conduct of Mr. Naidu is not justified as per the provisions of the Advocates’ Act, 1961 because a Senior Advocate cannot file a vakalatnama, appear in the Court without another advocate or advocate-on record, cannot directly accept an engagement to appear in a case or draft pleadings.
Section-D (20 Marks)
Question 37.
‘Ambulance chasing’ is commonplace in the USA but it is not representative of professional practice in India. Justify the statement and explain the norms of advertising by advocates in India.
Or
Discuss any five opportunities available to law graduates in India. [5].
Answer:
Personal injury ads are commonplace in the USA. Often known as ‘ambulance chasers’, these personal injury lawyers are robust in their advertising on billboards, newspapers, flyers, and even distasteful ads on television However, ambulance chasing is not representative of professional practice in India since these classes of lawyers are the sort who solicit business by lurking around hospitals or by ads in newspapers and in Yellow Pages with toll-free numbers and “free” consultations.
The issue of allowing advertising and solicitation by lawyers requires balancing the interest of the public which includes getting information on legal rights and services through advertisements and enhancement of access to justice and the legal profession on one hand and the possible misuse of advertising techniques. lawyers which may lead to a loss of credibility in the profession as a whole.
Accordingly, only five pieces of information can be put up on the internet as per the Bar Council of India (BCI), i.e.
(i) the name of the advocate or the firm,
(ii) the contact details,
(iii) details of enrolment with the Bar,
(iv) his professional and academic qualifications, and
(v) the areas of practice.
Or
Some of the opportunities available to law graduates are
(i) Litigation Graduates may practice as an advocate in a court of law. This can be achieved by working under experienced advocates or being attached to litigation departments of law firms or companies in order to practice in the Courts of India.
(ii) Law Firm Practice Law firms vary in size and practice areas. Law firms may range from boutique law firms specializing in specific areas of law, to mid-sized law firms as-well as large law firms which are full-service law firms with different practice groups.
(iii) Corporate Sector Large corporations often have an in-house legal practice. In House, counsels are responsible for ensuring that the business of the company is being run in compliance with applicable laws and when required will bring in external lawyers.
(iv) Public Policy Lawyers have an important role in formulating and advising on public policy. Several organizations employ law graduates for policymaking and have institutionalized fellowships where law graduates can be Research Assistants.
(v) Legal Research and Academia Graduates may attach themselves to research centers and think tanks. Law graduates may take up teaching and research as a profession. At least a postgraduate degree in law or related disciplines is expected to build a career in academics. Universities employ postgraduates in law as Lecturers/Assistant Professors at the beginning of their careers. Short-term positions and opportunities as Visiting Professors/Adjuncts. Professors are also available in academia. . ‘
Question 38.
‘‘The decision in the landmark 1973 Supreme Court case of Kesavananda Bharati v. The State of Kerala was an answer to the 24th Amendment Act to the Constitution affecting Article 1 3 and Article 368.” Explain.
Or
What features of fundamental rights give them a high pedestal in the Constitutional framework? [5].
Answer:
The Supreme Court has extended the practice of judicial review to matters concerning constitutional amendments by developing the doctrine of the basic structure of the Constitution. Article 368 confers power to the Parliament to amend the Constitution. This Article in its wording does not provide any limitation on the power of the Parliament to amend the Constitution.
Further, Article 13(2) states that “the State shall not make any law which takes away or abridges the rights conferred by this Part (Part III – Fundamental Rights).” Article 13(2) limits Parliament’s amending authority in matters of fundamental rights. In order to overcome this restriction, in 1971, the Parliament adopted the 24th Amendment to the Constitution altering Articles 13 and 368 in a way that allowed itself unlimited powers of amendments including the authority to amend the fundamental rights provisions.
The landmark 1973 Supreme Court case of Keshavanda Bharati v. State of Kerela discussed the question about the unlimited constitutional amendment powers of the Parliament and established the doctrine of the basic structure or feature of the constitution. This doctrine invalidates any constitutional amendments that destroy or harm a basic or essential feature of the Constitution, like secularism, democracy, and federalism.
The Supreme Court has also held judicial review to be the basic structure or feature of the Constitution; as a result, it can nullify any constitutional amendment that abolishes or disregards judicial review in issues concerning the fundamental rights of citizens.
Or
Fundamental Rights are those basic rights that are essential for the development of individuals in a country. To ensure that any wrongdoing in this regard is punished, Fundamental Rights have been made enforceable in the High Courts and the Supreme Courts. It is for the same reason that the power of Judicial review has been applied for the protection and enforcement of fundamental rights provided in the Constitution.
To a lesser extent, judicial review has also been used in matters concerning legislative competence with regard to Centre-State relations. With respect to judicial review on matters of executive or administrative actions, courts have employed doctrines such as ‘proportionality’, ‘legitimate expectation’, ‘reasonableness’, and the ‘principles of natural justice.
Essentially, the scope of judicial review in courts in India has developed with respect to three issues
(i) Protection of fundamental rights as guaranteed in the Constitution;
(ii) Matters concerning the legislative competence between the center and states; and
(iii) fairness in executive acts.
Question 39.
Sanjay Shukla and Raghav Asawa are neighbors in an apartment complex. Large flowering pots kept on the balcony of Sanjay’s flat have caused seepage and weakened the ceiling above Raghav’s balcony. The latter demands that Sanjay Shukla removes the plants and a dispute ensues. [5].
(i) Identify and explain the alternative dispute resolution mechanism that is best suited to the given situation.
(ii) Also explain its process
Answer:
(i) Alternative Dispute Resolution (ADR) system refers to the use of non-adversarial techniques for adjudication of legal disputes. The method best suited in this situation is Mediation. Mediation is a method of ADR in which parties appoint a neutral third party.
This neutral third party facilitates the mediation process in order to assist the parties in achieving an acceptable, voluntary agreement. Mediation is premised (based) on the voluntary will of the parties and is a flexible and informal technique of dispute resolution.
(ii) Process of Mediation The neutral third party facilitating the process of mediation is known as a mediator. Mediation does not follow a uniform set of rules, though mediators typically set forth rules that the mediation will observe at the outset of the process.
Successful mediation often reflects not only the parties’ willingness to participate but also the mediator’s skill. There is no uniform set of rules for mediators to become licensed, and rules vary by state regarding requirements for mediator certification.
Broadly speaking, mediation may be triggered in three ways
(a) Parties may agree to resolve their claims through a pre-agreed mediation agreement without initiating formal judicial proceedings (pre-litigation mediation).
(b) Parties may agree to mediate, at the beginning of formal court proceedings (popularly known as court referrals).
(c) Mediation may be taken recourse of after formal court proceedings have started, or even post-trial, i.e. at the appellate stage.
Question 40.
(i) What Constitutes Tort of Negligence?
(ii) Explain with reasons whether the following act constitutes ‘negligence’. The employees of Care Cell Telecom opened a manhole in the street and in the evening left that manhole open. They covered it with canvas shelter but left it unattended. Prince, the the 8 years old boy, who was playing there, stumbled over it and fell into the manhole, and sustained injuries.
(iii) Give one example of negligence. [5].
Or
How does tort help in protecting against any bodily harm? Discuss with specific reference to assault and battery.
Answer:
(i) The basic understanding of negligence is that the wrong-doer or the defendant has been careless in a way that harms the interest of the victim or the claimant. For example, when the defendant carries out an act of constructing something on her premises, she owes a duty of care towards the claimant and the standard of duty of care depends on whether the claimant was on the site or in the neighborhood as well as whether the claimant was a lawful visitor or a trespasser.
(ii) To constitute the tort of negligence, three important essentials must be fulfilled
(a) the defendant owes a duty of care to the victim;
(b) there has been a breach of duty of care on part of the defendant; and
(c) The breach of the duty to care resulted in the harm suffered by the claimant. Since Care Cell Telecom did owe a duty of care to Prince and there was a breach of that duty which caused harm to him, they will be held liable for the tort of negligence.
(iii) Example of negligence is A, a surgeon, negligently leaves scissors in the ‘ intestine of the patient.
Or
Tort law protects the claimant against any harm to his/her interests of bodily integrity. The tort of battery and assault applies to any intentional harm caused to the body. Assault refers to any intentional act which causes another person to be fearful of immediate harm.
In other words, it should cause the plaintiff to. fear that the plaintiff is about to be physically attacked and can make him the victim of the assault. Battery refers to the intentional use of force against another without any lawful justification. In other words, if the physical contact apprehended in an assault actually takes place, it amounts to the tort of battery.
It is intentional or offensive physical contact with a person who had not given his consent to be touched. Further, Harm may also be caused by negligence as well as any breach of statutory duty like traffic laws, health laws, and so on. Mental distress is an element in bodily injury that raises any compensation to the victim.