Students must start practicing the questions from CBSE Sample Papers for Class 12 Legal Studies with Solutions Set 6 are designed as per the revised syllabus.
CBSE Sample Papers for Class 12 Legal Studies Set 6 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.
ASupremeabridgedconstitutionalrightsCourt conferredofamendmentIndia invalidatedSectionin Part was passed III the of the Asiad by Indian the amendment Indian Constitution. Parliament by using the power of. [1].
(a) Locus standi.
(b) Judicial review.
(c) Public Interest Litigation.
(d) Writs.
Answer:
(b) Judicial review.
Question 2.
Mr. Nikhil aged 32 years, was appointed as Assistant Professor in Law at Central Government University. He completed his LLB from Delhi University in the year 2012 and his LLM (Master in Law) from MDU University in the year 2014. Presently, he is pursuing a Ph.D. in Law from Delhi University. [1].
The eligibility criteria as laid down by the University for the post of Assistant Professor in law was Candidate must be 30 – 35 years old Should have passed LLB/LLM.from a recognized Indian University Should have cleared the UGC NET (Law) exam or have completed Ph.D. in Law from a recognized Indian University Another Candidate, Mr. Rupesh who appeared for an interview conducted for the said post challenged the above-said appointment of Mr. Nikhil and moved the High Court and invoked the writ jurisdiction.
Which writ would be applicable in the above situation?
(a) Writ of habeas corpus
(b) Writ of mandamus
(c) Writ of quo warranto
(d) Writ of certiorari
Answer:
(c) Writ of quo warranto.
Question 3.
Under Article 253 6$ the Indian Constitution implements treaties. [1].
(a) President and Parliament of India
(b) Union Government and State Government
(c) Parliament and Union Government
(d) State Government and President of India have the power to.
Answer:
(a) President and Parliament of India.
Question 4.
The situation I Tristan is a citizen of the United Kingdom. He has completed BA in Psychology from a recognized University in the United Kingdom. Situation II Silva D’Souza has an undergraduate degree in Economics and aspires to become a lawyer in the UK. [1].
(a) In Situation I, Tristan needs to pursue a Graduate Diploma in Law Course while in Situation II, Silva needs to pursue the Legal Practice Course.
(b) They cannot become lawyers in either of the two situations.
(c) In both situations they need to become lawyers after passing the bar exam.
(d) None of the above
Answer:
(a) In Situation I, Tristan needs to pursue a Graduate Diploma in Law Course while in Situation II, Silva needs to pursue the Legal Practice Course.
Question 5.
Rakesh plans a get-together with friends at his home. Ravi, one of his friends, promised to make a special dish for the guests. On the day of get together, Ravi did not come nor did he arrange for the dish. Since it was the only starter planned on the menu, Rakesh had to face embarrassment. He sues Ravi for the breach of contract. Will Rakesh succeed in his action? [1].
(a) Rakesh will succeed because Ravi failed to keep his promise.
(b) Rakesh will succeed because his reputation was affected due to the negligent
behavior of Ravi.
(c) Rakesh will not succeed because there is no consideration for Ravi to keep his promise.
(d) Rakesh will not succeed because the Court doesn’t entertain such petty issues.
Answer:
(c) Rakesh will not succeed because there is no consideration for Ravi to keep his promise.
Question 6.
In the year 1940, Naveen passed a BA course from a recognized University. He wanted to become a Pleader in India. He was required to pass the P leadership Examination which was held prior to the enactment of the Advocates Act, of 1961. [1].
(a) Mayor’s Court
(b) High Court
(c) Supreme Court
(d) Mofussil Court
Answer:
(b) High Court.
Question 7.
Vikas, a 16-year-old, offers to sell his plot in NOIDA to Arshad (aged 24) for? 10 lakh. Vikas took an advance of X 1 lakh from Arshad. Vikas’s father was annoyed with him at the transaction and did not allow the transfer. Arshad brought a suit for a specific performance against Vikas. Will he succeed? [1].
(a) Arshad will succeed as Vikas entered into the contract of his own free will.
(b) Arshad will succeed as there is a consideration and it is valid.
(c) Arshad will not succeed as Vikas’s father did not approve the transfer.
(d) Arshad will not succeed as Vikas does have the capacity to contract.
Answer:
(d) Arshad will not succeed as Vikas does have the capacity to contract.
Question 8.
Identify the correct pair. [1].
| Column I | Column II |
| A. Maneka Gandhi v. Union of India | (i) The right to life or liberty could be violated only by a fair, just, and reasonable procedure. |
| B. MH Hoskot v. State of Maharashtra | (ii) Representative suits, election disputes, criminal offenses, and cases against specific classes of persons (minors, mentally challenged) have been excluded from the scope of mediation. |
| C. Konkan Railways Corp. Ltd. v. Mehul Construction Co, (2000) 7 SCC 201). | (iii) The Arbitration and Conciliation Act, of 1996 should be interpreted and applied, keeping the commercial sense of the dispute in mind. |
| D. Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., | (iv) Judicial justice, with procedural and critical examination of evidence, leans upon professional expertise; a failure of equal justice under the law is on the cards where such supportive skills are absent on one side. intricacies, and legal submissions. |
(a)A-(i)
(b) B-(ii)
(d) D-(iv)
(c) C-(iii)
Answer:
(a) A-(i)
Question 9.
Article 39A of the Constitution inserted by the 42nd Amendment Act 1976 provided for. [1].
(a) Free legal aid
(b) Dispute resolution through the Administrative Tribunal.
(c) Permanent Lok adalats for disputes regarding Public Utility Services
(d) Establishment of National Legal Services Authority
Answer:
(a) Free legal aid.
Question 10.
Assertion (A) The Constitution of India begins with the Preamble affirming its aims, objectives, and guiding principles.
Reason (R) The principles laid out in the Preamble are used for interpreting provisions of the Constitution that are vague and ambiguous. [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 11.
A crime involves the following stages. [1].
(i) Commission.
(ii) Intention.
(iii) Preparation.
(iv) Attempt.
Which of the following shows the correct sequencing?
(a) (i) (ii) (iii) (iv) .
(b) (iv) (iii) (ii) (i).
(c) (iii) (ii) (iv) (i) .
(d) (iii) (ii) (i) (iv).
Answer:
(c) (iii) (ii) (iv) (i)
Question 12.
In response to a PIL filed by AK Balaji, the Madras High Court allowed foreign lawyers to practice in India and held that.[1].
(a) Foreign lawyers are not allowed to practice in India.
(b) Foreign lawyers are allowed to practice in India by setting up offices.
(c) Foreign lawyers are not allowed to set up liaison offices in India.
(d) Foreign lawyers can practice in India on a fly-in, fly-out basis.
Answer:
(d) Foreign lawyers can practice in India on a fly-in, fly-out basis.
Question 13.
Statement I Josh entered into an agreement with Kevin for the sale of Josh’s ‘car’. At the time of entering into the agreement, Josh believed that he was agreeing to sell his white car while Kevin believed that he was agreeing to buy a blue car owned by Josh. The agreement is voided Statement II Ms. X and Ms. Y entered into a contract of sale of an article while reeling under the erroneous belief that the sale of the article, which was the subject matter of the agreement, was permitted by the law in force in India. A mistake of law is no excuse. [1].
Alternatives
(a) Both statements are true.
(b) Both statements are false.
(c) Statement 1 is. true and Statement I is false.
(d) Statement I is false and Statement II is true.
Answer:
(a) Both statements are true.
Question 14.
Rahul is facilitating an alternative dispute resolution in which parties appoint a neutral third party who facilitates the parties in achieving an acceptable, voluntary agreement, which is more formal than negotiation. What is Rahul facilitating? [1].
(a) Arbitration.
(b) Mediation.
(c) Conciliation.
(d) Administrative Tribunal.
Answer:
(a) Arbitration.
Question 15.
Assertion (A) The Arbitration and Conciliation Act of 1996 is the relevant legislation that governs the process of arbitration in India.
Reason (R) The statute provides for an elaborate codified recognition of the concept of arbitration, which has largely been influenced by significant movements of judicial reforms and conflict management across the world. [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.
Direction Read the excerpt given below Principle 1 Acceptance of the proposal must be the exact mirror image of the proposal. Principle 2 An agreement with a boy below the age of eighteen years is not enforceable by law. Principle 3 Sale of liquor is illegal. All agreements relating to prohibited items do not exist in the eyes of law. Principle 4 The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made. Principle 5 An agreement may be entered into orally, in writing, or by conduct. On the basis of the aforesaid principles, answer questions 16 to 20.
Answer:
(a) Both Assertion (A) and Reason (R) are true and Reason (R) is the correct explanation of Assertion (A)
Question 16.
‘Pi made a proposal to ‘B’ to sell a chair for ₹ 500. ‘B‘ is desirous of buying the said chair for ₹ 400. [1].
(a) B has accepted the proposal of A.
(b) B has not accepted the proposal of A.
(c) It is not clear if B has accepted the proposal of A.
(d) It is not clear whether A made a proposal to B.
Answer:
(b) B has not accepted the proposal of A.
Question 17.
A man entered into an agreement with a girl of seventeen years of age. [1].
(a) The agreement is enforceable by law.
(b) The agreement is not enforceable by law.
(c) The agreement is enforceable by the girl.
(d) No inference can be drawn.
Answer:
(b) The agreement is not enforceable by law.
Question 18.
‘A’ entered into an agreement with ‘B’ for the sale of liquor. ‘A’ failed to supply the agreed quantity of liquor to B. [1].
(a) B can bring legal action against A.
(b) B cannot bring any legal action against A.
(c) A can bring legal action against B.
(d) A and B can initiate appropriate legal proceedings against each other.
Answer:
(b) B cannot bring any legal action against A.
Question 19.
‘K sent a letter making a proposal to ‘B’ to purchase the house of B. [1].
(a) The communication of a proposal is complete when A sent the letter.
(b) The communication of the proposal is complete when B’s wife received it.
(c) The communication of the proposal is complete when B’s wife hands over the letter to B.
(d)The communication of the proposal is complete when B reads the letter.
Answer:
(d) The communication of the proposal is complete when B reads the letter.
Question 20.
A went to the shop of B and picked up a toothbrush and gave a cheque of ₹ 20 to B and left the shop. [1].
(a) A entered into an agreement with B.
(b) A did not enter into an agreement with B.
(c) Payment of toothbrush cannot be made through a cheque.
(d) A should have carried a currency note of Rupees twenty to make the payment.
Answer:
(a) A entered into an agreement with B.
Section-B (16 Marks)
Question 21.
A public authority was given the duty to construct a community center for the public in Uddeshyanagar and the land was also allotted for this purpose. But instead of constructing a community center, the public authorities started constructing shops on that allotted land. What remedy is available to the citizens ofUddeshyanagar under the Indian Constitution? [2].
Answer:
Enforcement of fundamental rights under the Section 32 refers to making the public authority analyze their mistakes and misleading towards
another plan instead of the plan that is eventually stated through legal aids. Thus, the citizens can approach the Supreme Court under Article 32 of the Constitution.
Question 22.
A boy is sinking in the swimming pool of a resort. A man who is beside the pool does not make any attempt to save this boy. Will the man be criminally liable? If yes why; if no why not? [2].
Answer:
No, he is not criminally liable. This is a moral omission of not saving someone’s life and mere moral omissions of not doing something would not complete the requirement of actus reus. Thus, the man will not be criminally liable.
Question 23.
‘Prevention is better than cure’. In light of the said statement, explains the two pre-litigation legal services provided to the accused. [2].
Answer:
Pre-litigation services are more beneficial than post-litigation services because they reduce the burden on the judiciary.
These services include
(i) Legal Education
(ii) Legal advice
Question 24.
For the adoption of domestic treaties in International Law, UK and India follow different practices in accordance with their legal provisions
(i) State the practices followed in UK and India.
(ii) With reference to Maganbhai Patel v. Union of India, explain how the Supreme Court of India implemented this practice. [2].
Answer:
(i) In the UK, the doctrine of transformation states that before any international agreement can be considered applicable domestically, it must be transformed into municipal law. This means that the provisions of the treaty need to be transformed into local law passing domestic legislation with concurrent provisions as international obligations.
India has dealt with international law in accordance with the changes in time. India generally follows that merely affirming a treaty by way of ratifying it by the assent of the executive unless the treaty requires ratification by way of an act of the legislature.
(ii) There has been an evolution of the philosophy of the role of international treaties to which India is a party in relation to the Indian Constitution. In the case of Magan Bhai Patel v. Union of India, the court held that if a treaty or international agreement restricts the rights of the citizens or modifies the laws of the state, it would be required to have a legislative measure
Question 25.
A statutory body was created consisting of an eminent judicial member of impeccable integrity as its chairman and 8 other members, out of which 4 were judicial members.
(i) Identify the body (ii) State its scope [2].
Or
Bypassing which legislation, was the right to free legal aid under Article 39A made available to the citizens? Name the judges associated with the movement of legal aid by the State in India.
Answer:
(i) The body referred to here is the Lokpal.
(ii) The powers of the Lokpal are extensive and equivalent to the superintendence, inquiry, and investigative powers of police and the Central Vigilance Commission. The Lokpal shall consist of an inquiry and prosecution wing to take necessary steps in the prosecution of public servants in relation to offenses committed under the Prevention of Corruption Act, 1988. Further, Lokpal can even recommend the government create special courts to decide cases arising from the Prevention of Corruption Act, 1988.
Or
The National Legal Services Authority (NALSA) has been constituted under the Legal Services Authorities Act, 1987 to provide free Legal Services to the weaker sections of society and to organize Lok Adalats for amicable settlement of disputes. Justice PN Bhagwati is the judge associated with the movement of legal aid by the State in India.
Question 26.
Mr. Nakul wanted to sell his property at Cochin worth ₹ 30 lakh to Ms. Sheetal and by the same instrument another property in Delhi for ₹ 50 lakh. As Ms. Sheetal can stay at only one place among the two, she wants to retain the property at Cochin and reject the property in Delhi. Can she do it? Explain.[2].
Or
A sells his dog to B for ₹ 4,000. Unfortunately, the dog died after a few hours. Discuss the rights and liabilities of A and B
(i) if the dog died before the transaction took place.
(ii) if the dog was seriously ill during the transaction and died subsequently after the transaction.
Answer:
No, Ms. Sheetal cannot do so due to the operation of the Doctrine of Election. According to the principle of 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.
If a party to the transfer gets two selections a benefit and a burden then he has to accept both the benefit and the burden or none. He cannot accept the benefit and reject the burden in a single transaction. In Cooper v. Cooper 1874, LR 7 HL 53 the Court held that the doctrine of election applied to every instrument and all types of property.
Or
(i) If the dog died before the transaction took place, B has the right to cancel the transaction altogether.
(ii) In this case, A would be liable to disclose to B about the illness of the dog so that he is aware of the transaction that he is entering into.
Question 27.
In a country called Jingpa to give effect to a treaty, it was put before the legislature for a vote of the majority. Identify the form of consent and the purpose behind such a form of consent. [2].
Answer:
The form of consent applicable here is consent by ratification. This was initiated as a measure to ensure that the representative who signed a treaty had due authority, by seeing whether the state agrees to ‘ratify’ the same.
Question 28.
Which of the following can be a reasonable restriction? Give reasons for your answer.
(i) Restrictions on the sale of a book because of protests by a group of people.
(ii) Prohibition on making inciting speeches that may provoke others to commit violence. [2].
Answer:
(i) Article 19 also provides ‘reasonable restrictions’ on these freedoms, which means that these rights are conditional. The State can ‘reasonably’ limit or take away the right to ‘freedom of speech and expression’ when there is a threat to (any two)
(a) the sovereignty and integrity of India, or
(b) the security of the State, or
(c) friendly relations with foreign States, or
(d) public order, decency or morality, or
(e) in relation to contempt of court. Since restrictions on the sale of a book due to protests by a group of people do not fall within the purview of any of the options given above, it will not classify as a reasonable restriction.
(ii) ‘Reasonable restrictions’ are provided in Article 19 on these freedoms, which means that these rights are conditional. The State can ‘reasonably’ limit or take away the right to ‘freedom of speech and expression’ when there is a threat to (any two)
(a) or defamation, or
(b) incitement (provocation to commit) to an offense, or
(c) the sovereignty and integrity of India, or
(d) friendly relations with foreign States, or
(e) in relation to contempt of court.
Since inciting speeches may provoke others to commit violence, it will classify as a reasonable restriction.
Section -C (24 Marks)
Question 29.
“In 2009, Section 377 of the Indian Penal Code, 1860 was declared invalid and unconstitutional by the Delhi High Court to protect rights to privacy, non-discrimination, and liberty of lesbian, gay, bisexual, and transgender people. But in 2013, the Supreme Court reversed the High Court’s decision.” Apoorva and Kiran were convicted under Section 377 in the year 2011. Stating the relevant Constitutional provision, explain if the conviction can be upheld in law. [3].
Answer:
Article 20 provides that no person can be convicted for the commission or 3 omissions of an act that does not amount to an offense by any law in force at the time of such action. As in the year 2009, Section 377 was declared unconstitutional by the Delhi High Court, the conviction of Apoorva and Kiran cannot be upheld in law.
Question 30.
Answer the following with respect to the liberalization of the legal profession in India.
(i) Under which agreement and treaty are India expected to liberalize the legal profession?
(ii) “There have been contrary positions taken by High courts when it comes to the liberalization of the legal profession in India.” Explain. [3].
Answer:
(i) India signed the WTO Treaty leading to economic liberalization. It is also expected to liberalize the legal services sector under the GATS (General Agreement on Trade and Services).
(ii) In 2011, in a judgment delivered by the Bombay High Court on a Public Interest Litigation (PIL) filed by Lawyer’s Collective, the High Court held that foreign law firms could not be permitted to set up liaison offices in India. The Madras High Court, in response to a PIL filed by AK Balaji, permitted foreign lawyers to practice in India on a ‘fly in and fly out basis.
Question 31.
There was a treaty between two neighboring countries ‘Sodoland’ and ‘Norway’, to stop the killing of Olive Ridley Turtle. A dispute arose between them regarding the fulfillment of certain terms and conditions of this treaty obligation. Bodoland became a member of the United Nations in the year 1946 whereas Norway is not a member of the United Nations. Bodoland refused to fulfill its treaty obligations. Aggrieved by this, Norway approached the International Court of Justice to resolve this dispute. [3].
(i) Can Norway approach the International Court of Justice? If yes, under which provision of the United Nations charter?
(ii) Explain the jurisdiction of the International Court of Justice.
Answer:
(i) Yes, Norway can approach the International Court of Justice even though it is not a member of the UN. Under Article 93 of the UN Charter, all members of the UN are party to this statute, by default owing to Article 93 of United Nations Charter, and non-members may also become parties under this Article.
(ii) The court may have jurisdiction to decide cases in which the parties agree to appear before the court, on their own behest, and agree to be bound by the decision of the ICJ. The court may also be a forum if provided for in a treaty between parties and in certain cases, it is compulsory to refer to the court with regard to certain disputes.
Question 32.
With regards to the responsibility of the State Government to provide legal aid services [3].
(i) What is the composition of state authority?
(ii) State any four functions of the state authority.
Answer:
(i) The State Authority shall constitute a High Court Legal Services Committee for every High Court for the purpose of exercising such powers and performing such functions as may be determined by regulations made by the State Authority. The Committee shall consist of a sitting judge of the High Court as a Chairman; and such number of other members as may be determined by regulations made by the State Authority to be nominated by the Chief Justice of the High Court.
(ii) The State Authority shall perform all or any of the following functions, namely
(a) Give legal service to persons who satisfy the criteria laid down under this Act.
(b) Conduct Lok Adalats, including Lok Adalats for High Court cases,
(c) Undertake preventive and strategic legal aid programs; and
(d) Perform such other functions as the State Authority may in consultation with the Central Authority, fixed by regulations.
Question 33.
Babulal was arrested and detained by police authorities on 26th November 2015 at 1:00 pm under the preventive detention law MACOCA (Maharashtra Control of Organised Crime Act, 1999). He was produced before the magistrate on 28th November 2015 at 1:00 p.m. He was not allowed to consult his lawyer during the period of detention in police custody. Babulal applied for a writ under Article 226 of the Indian Constitution on the ground that his fundamental right under Article 22 has been violated. [3].
(i) State the provisions of Article 22 of the Indian Constitution.
(ii) Are the authorities (police) justified in their action? Give reasons for your answer.
(iii) State any one value communicated by the provisions of Article 22.
Answer:
(i) Article 22 provides safeguards against arrest and detention in the following ways
(a) No one can be detained in custody without providing grounds for arrest.
(b) The arrested and detained person has a right to consult and to be defended by a legal practitioner of his or her choice.
(c) A person who is arrested and detained in custody should be produced before the nearest magistrate within a period of 24 hours. The travel time is not counted towards the 24 hours time frame.
(d) No such person can be detained in custody beyond twenty-four hours without the authority of a magistrate.
(ii) The police authorities are justified in their action in this case as these safeguards are not applicable in case the accused is detained under preventive detention laws.
(iii) This provision extends certain procedural safeguards for individuals in case of an arrest. The idea behind this right is to prevent arbitrary arrests and detention
Question 34.
Gaurav opened an account with Sapna Bank. One day while operating the ATM, his card did not function. However, the money was deducted from his account. To add to his agony, he found that his passbook showed multiple deductions for service charges also. He approached the Bank but the Bank refused to address his problem. [3].
(i) Identify the agency that he can approach for the redressal of his grievances.
(ii) State its functions.
(iii) Provide the advantages and disadvantages of this agency.
Answer:
(i) Chief Vigilance Commission can be approached by Gaurav in this case.
(ii) CVC has been conceived to be the apex vigilance institution, free of control from any executive authority, monitoring all vigilance activity under the Central Government and advising various authorities in Central Government organizations in planning, executing, reviewing, and reforming their vigilance work.
(iii) The major advantage of an ombudsman is that he or she examines complaints from outside the offending state institution, thus avoiding the conflicts of interest inherent in self-policing. However, the ombudsman system relies heavily on the selection of an appropriate individual for the office, and on the cooperation of at least some effective official from within the apparatus of the state.
Question 35.
A dispute arose between Kerry & Claire Co., a Netherland-based Cosmetic Co., and Star Heaven Co, an Indian cosmetic company regarding money transactions. The parties to the dispute appointed Mr. Harry, a neutral third party, for the settlement of their dispute. Mr. Harry acted as a guardian of the dispute resolution process and was focused on helping the parties to find a solution to their dispute but failed to bring the parties to the settlement.
The disputing parties then approached an institution named Roger’s Organisation for the settlement of their dispute.
Roger’s Organisation appointed Mr. Jeff (Financial Transactions expert) to resolve the said dispute. State the two types of Alternate Dispute Resolution Mechanisms in the above situation. [3].
Answer:
Two types of ADR that are involved in the situation given are
(i) Arbitration It 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) Mediation It is a method of ADR in which parties appoint a neutral third party who facilitates the mediation process in order to assist the parties in achieving an acceptable, voluntary agreement. Mediation is premised on the voluntary will of the parties and is a flexible and informal technique of dispute resolution.
Question 36.
Give any three functions of the National Human Rights Commission.
Or
Give three examples of international human rights treaties along with their objectives. [3].
Answer:
The Commission shall perform the following functions, namely (any three).
(i) Inquire, on its own initiative or on a petition presented to it by a victim or any person on his behalf, into a complaint of
(a) violation of human rights or abetment or
(b) negligence in the prevention of such violation, by a public servant;
(ii) intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of the such court;
(iii) visit, under intimation to the State Government, any jail or any other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation, or protection to study the living condition of the inmates and make recommendations thereon ;
(iv) review the safeguards by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation.
Or
Three examples of international human rights treaties along with their objectives are
| International Covenant on. Civil and Political Rights, 1976 | Based on the ideals of free human beings enjoying civil and political freedom and freedom from fear and want, e.g. freedom of speech, assembly, conscience, and religion; right to life, liberty, and security of person; right to equality; freedom from all forms of discriminations including based on gender and race; and so on. |
| International Covenant on Economic, Social and Cultural Rights, 1976 | e.g. right to education; right to livelihood and a decent standard of living; right to health, right to shelter, and so on. |
| Convention on the Rights of the Child, 1990 | The child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection. |
Section-D (20 Marks)
Question 37.
The two broad models of legal systems differ in their techniques of adjudication and justice delivery mechanism. Elaborate. [5].
Or
(i) Analyse the reasons that paved the way for alternate dispute resolution techniques in the Indian judicial system.
(ii) “The success of ADR techniques is attributed to the role played by the instrumentalities in the process of dispute resolution.” Justify explaining the role of an arbitrator, mediator, and conciliator.
Answer:
Courts in India follow the adversarial system of adjudication as opposed to the inquisitorial model followed in several civil law countries. In an adversarial model, the role of lawyers representing the party becomes vital. Lawyers of the opposing parties present their cases before a neutral judge who in turn provides a decision based on the merits of the case, as presented by the lawyers.
In the inquisitorial system of law, on the other hand, judges are more proactive in adjudicating the matter. Rather than acting as neutral judges, they have the right to inquire and probe into the matter, much like the police.
Or
(i) ADR is encouraged amongst the disputants to reduce delays and high pendency of court cases. The rise of ADR is further supported, as the law courts are confronted with the following problems, such as
(a) The lack of a number of courts and judges creates an inadequacy within the justice delivery system.
(b) The increasing litigation in India due to increasing population, the complexity of laws, and obsolete continuation of some pre-existing legal statutes;
(c) The increasing cost of litigation in prosecuting or defending a case, increasing court fees, lawyer’s fees, and incidental expenses;
(d) Delay in disposal of cases resulting in huge pendency in all the courts.
(ii) Arbitration can be chosen by the parties either by way of an agreement (Arbitration Agreement). or through the reference of the Court. The parties in arbitration have the freedom to select a qualified expert known as an arbitrator. The process of dispute resolution through arbitration is confidential, unlike the court proceedings which are open to the public.
This feature of arbitration makes it popular especially for commercial disputes where business secrets revealed during the process of dispute resolution are protected and preserved. Similarly, companies can maintain their commercial reputation, as they can prevent the general public or their customers from discovering the details of their ongoing legal disputes.
Mediation is a method of ADR in which parties appoint a neutral third party who facilitates the mediation process in order to assist the parties in achieving an acceptable, voluntary agreement. Mediation is premised on the voluntary will of the parties and is a flexible and informal technique of dispute resolution. Mediation is more formal than negotiation but less formal than arbitration or litigation. Unlike litigation and similar to arbitration, mediation is relatively inexpensive, fast, and confidential.
Further, mediation and arbitration differ on the grounds of the nature of an award rendered. The outcome of mediation does not have similar binding as an arbitral award. However, though non-binding, these resolution agreements may be incorporated into a legally binding contract, which is binding on the parties who execute the contract. Conciliation is a process similar to mediation as parties out of their own free will appoint a neutral third party to resolve their disputes.
The key difference between mediation and conciliation lies in the role of the neutral third party. A mediator merely performs a facilitative role and provides a platform for the parties to reach a mutually agreeable solution. The role of a conciliator goes beyond that of a mediator. A conciliator may be interventionist in the sense that he/she may suggest potential solutions to the parties, in order to resolve their claims and disputes.
Question 38.
Anuj and Harish are brothers having a wholesale business of spices, working under a Joint Hindu Family business set-up. A dispute ensued between the two for the title of the property. Anuj has litigation in determining the title of the property with Harish. During the period of litigation, Anuj initiates a sale of the property in favor of Brijesh.
(i) Identify and explain the legal provision in the Transfer of Property Act that can help Harish to stay the transaction.
(ii) What are the conditions to be satisfied by Harish in order to invoke protection under this doctrine?
(iii) Can the doctrine be invoked if the property is not yet transferred, but only a contingent agreement for its transfer after the suit has been decided is made? [5].
Answer:
(i) The legal provision in the Transfer of Property Act that can help Harish stay the transaction is the doctrine of lis pendens. The Doctrine of lis pendens emerged from the Latin maxim ‘ut lite pendant nihil innoveteur’ meaning ‘nothing new should be introduced in a pending litigation’. When a suit or litigation is pending on an immovable property, then that immovable property cannot be transferred.
(ii) To constitute lis pendens, the following conditions should be satisfied
(a) A suit or proceeding involving the immovable property should be pending;
(b) The right to the immovable property must be in question in the suit or proceeding;
(c) The property in litigation should be transferred.
(d) The transferred property should affect the rights of the other person to the transfer.
(iii) Yes, the doctrine can be invoked if the property is not yet transferred, but only a contingent agreement for its transfer after the suit has been decided is made.
Question 39.
Priyansh, an advocate practicing in the Calcutta High Court, aspires to become the Chief Justice of the High Court someday. Identify the specific steps in the elevation to the said post in the collegium model.
Or
Compare the rules regarding Legal Education in India and The United Kingdom. [5].
Answer:
For High Courts, the collegium comprises the Chief Justice of the High Court and two senior judges of the High Court. The Chief Justice conveys his recommendations to the Chief Minister of the State and the Governor of the State, who in turn send their views directly to the Union Minster of Law and Justice.
The complete material is then forwarded to the Chief Justice of India, who in consultation with a collegium of two Judges of the Supreme Court, would send his recommendations to the Union Minister of Law and Justice. The Union Minister of Law and Justice then puts up the same to the Prime Minister who will advise the President on the matter of appointment.
Or
Legal education in India is regulated by the Bar Council of India. There are two ways to obtain a degree to practice law and enroll with the Bar Council
(i) a 3-year LLB program that requires a prior undergraduate degree and
(ii) a 5-year integrated BA, LLB/BBA, LL.B/BSc, LLB program which commences immediately after secondary school. Some universities offer both five-year and three-year degree programs. There are over 900 law colleges in India. However, not many match up to the standards required by a changing and increasingly competitive legal market.
Legal education in the UK consists of a three-year LLB, directly after secondary school. Graduates from fields other than law and non-graduates can become solicitors, but the LLB is the most straightforward path. Clinical education continues after the LLB, through the Legal Practice Course (LPC) and training contracts.
To become a Barrister, graduates are required to complete the Bar Vocational Course (BVC) instead of the LPC and then seek a “pupillage” instead of a training contract. Though there are a number of differences between barristers and solicitors, the most significant one is that barristers can appear in all courts while solicitors can only appear in higher courts if they qualify to become solicitor-advocates.
Question 40.
Examine the role of the Supreme Court as an adjudicator and interpreter. [5].
Or
Explain the three ways in which the scope of judicial review has evolved in the courts in India and has been practiced by the Supreme Court.
Answer:
The Supreme Court has been assigned a very significant role in the Indian political system and is the final interpreter of the constitution. Under the constitution of India, the Supreme Court is provided with the scope of judicial review. The judicial review allows the Supreme Court to safeguard fundamental rights and struck down legislation that is violative of Constitutional provisions. Under Articles 1 3, 32, 1 31 -1 36, 1 43, 226, and 246 the Supreme Court can review any law. Supreme Court, as the final interpreter of the Indian Constitution.
(i) Constitutional Values Supreme Court under judicial review can examine the constitutionality of legislation and executive orders of both the Central and state governments. On examination, if they are found to be violative of Constitutional values, they can be declared unconstitutional and invalid by the Supreme Court. In K. Gopalan v. State of Madras, the court upheld that it is the constitution that is supreme and statute law to be valid, must in all cases be in conformity with the constitutional requirements.
(ii) Protection of Fundamental Rights Article 13 declares that all laws that are inconsistent with or in derogation of the Fundamental Rights shall be null and void. Article 32 guarantees the right to move the Supreme Court for the enforcement of Fundamental Rights and empowers the Supreme Court to issue directions or orders or writs for that purpose, e.g., in the Navtej Singh Johar case, Supreme Court has upheld that section 377 of IPC is unconstitutional.
(iii) Check on Executive Action Every state action is to be tested on the ground of rule of law. Indian Constitution is federal in nature and it is the constitutional duty of the Supreme Court to interpret the constitution. Under its original jurisdiction, the Supreme Court keeps the government within its limits by judicial interpretations.
(iv) Check on Tyrannical Tendencies Supreme Court protects citizens against legislative excesses and executive arbitrariness. It protects our country from the tyranny of the executive and legislature through judicial review. In absence of judicial review and judicial activism, various legislation or executive actions might undermine the very spirit of democracy.
(v) Reviewing Own Decisions Article 137 of the constitution of India empowers the Supreme Court to review its own order or judgment.
This power of correction makes the judiciary correct its own mistakes. As per the change in circumstances and conditions and the coming existence of new facts and laws the Supreme Court and High Court overrule and set aside their own judgments and orders. Supreme Court has done this many times, for example in the Kesavananda Bharati case.
This case upheld the changes in the 24th amendment in Article 368 and Article 13 of the Indian Constitution by overruling the Golaknath Judgment of 1967. Judiciary has been playing a remarkable role by the way of judicial review for maintaining the supremacy of the constitution. The judiciary is the main aspect that safeguards democracy and ensures peace, justice, and good order. The constitution has provided the judiciary with independence and enough powers to keep the executive in check making the Supreme Court as the final judge of the constitution.
Or
Judicial review is one of the essential features of the Indian Constitution; it has helped preserve constitutional principles and values and constitutional supremacy. The power of judicial review is available to the Supreme Court and the High Courts in different states in matters of both legislative and administrative actions. Largely, this power 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 center-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.
Thus, these are the three ways in which the process of judicial review has been evolved and used by the Supreme Court.