Students must start practicing the questions from CBSE Sample Papers for Class 12 Legal Studies with Solutions Set 8 are designed as per the revised syllabus.
CBSE Sample Papers for Class 12 Legal Studies Set 8 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.
A constitutional amendment was passed by the Indian Parliament which curtailed the concept of ‘Federalism’ enshrined in the Indian Constitution. This amendment was held to be invalid by the Supreme Court of India. Here, by virtue of which theory/doctrine, the Supreme Court of India has invalidated the said constitutional amendment? [1].
(a) Principle of Natural Justice.
(b) Theory of Separation of Powers.
(c) Doctrine of Basic Structure.
(d) Principle of Legitimate Expectation.
Answer:
(c) Doctrine of Basic Structure.
Question 2.
The residents of PV Colony have been paying for civic facilities to the Municipal Department for the last three years. During monsoons, the roads developed cracks and pits holes. The residents requested the repair of the roads. However, the Municipal Department, which has the responsibility to provide for this, ignored all requests of the residents in spite of continuous reminders. What immediate remedy is available to the residents of PV Colony under Article 32/226 of the Indian Constitution?[1].
(a) Writ of Habeas Corpus.
(b) Writ of Quo-Warranto.
(c) Writ of Mandamus.
(d) Writ of Certiorari.
Answer:
(c) Writ of Mandamus.
Question 3.
Which of the following statements does not hold good for Conflict of Laws? [1].
(a) It is a set of rules and principles that governs interstate relations.
(b) Its primary objective is to provide a framework of rules and regulations which help in fostering international relations.
(c) It is a body constituted of conventions, model laws, and domestic laws of the state.
(d) It involves issues like the application of Jurisdiction in a particular case.
Answer:
(b) Its primary objective is to provide a framework of rules and regulations which help in fostering international relations.
Question 4.
Taluk Legal Services Committee (TLSC) consists of [1].
(a) Judge of the Supreme Court as the Chairman, and the other members prescribed by the President of India and nominated by the Prime Minister of India.
(b) Senior civil judge as ex official chairman and other members prescribed by the State Government in consultation with the Chief Justice of the High Court.
(c) Senior most judicial officer as ex officio chairman and other members prescribed by Chief Justice of High Court in consultation with the State Government.
(d) Judge of the High Court as the Chairman, and other members prescribed by the Chief Justice of the High Court and nominated by the State Government.
Answer:
(b) Senior civil judge as ex officio chairman and other members prescribed by the State Government in consultation with the Chief Justice of the High Court.
Question 5.
Smith is a citizen of the United Kingdom. He had completed his LLB from a recognized University in the United Kingdom. He wants to practice as a ‘Barrister’ here. In order to practice as a ‘Barrister’, Smith is required to complete which of the following courses? [1].
(a) Legal Practice Course (LPC).
(b) Legal Professional Training Course.
(c) Bar Professional Training Course (BPTC).
(d) Bar Professional Course (BPC).
Answer:
(a) Legal Practice Course (LPC).
Question 6.
Rashi wants to pursue a 5 year integrated BA LLB program at National Law School University, Delhi. Which entrance exam will she have to take? [1].
(a) MAT.
(b) CLAT.
(c) LSAT.
(d) AILET.
Answer:
(d) AILET
Question 7.
A acquires a pistol to kill his arch-business rival B. A keeps the pistol loaded in his pocket but does nothing more than that to kill B. Identify the correct option. [1].
(a) A is guilty of a criminal act as he kept the gun loaded in his pocket.
(b) A is guilty of a criminal act as he acquired the pistol.
(c) A is not guilty as he has made no attempt to kill B.
(d) A is guilty because he had the kill B. intention to.
Answer:
(c) A is not guilty as he has made no attempt to kill B.
Question 8.
Amit approached Permanent Lok Adalat for the resolution of his dispute with the Electricity Board on the issue of an inflated electricity bill. Permanent Lok Adalat is set up under. [1].
(a) Legal Services Authorities (Amendment) Act, 2002.
(b) Legal Services Authorities Act, 1987.
(c) Article 39A of the Constitution of India.
(d) Article 14 of the Constitution of India.
Answer:
(a) Legal Services Authorities (Amendment) Act, 2002.
Question 9.
One morning Sandeep and his friends, Varan and Blair, were hanging out at McLaren’s coffee shop. Blair pointed out a very beautiful girl to Sandeep. The girl was sitting alone at the bar. Sandeep, with the intention of befriending her, went up to her to introduce himself.
Before he could say anything, the girl threw her hot drink in his face as she was suffering from heartbreak and did not want to talk to him. Sandeep decides to sue the girl for the battery. [1].
(a) The girl cannot be blamed as she was suffering from heartbreak. Sandeep got what he deserved.
(b) The girl realized that Sandeep was flirting with her and her behavior can be justified on the grounds of self-defense.
(c) The girl had a justification to throw the drink in his face. The use of force was completely lawful and hence battery has not been committed.
(d) The girl has committed battery as she used unlawful force to ward off Sandeep. Moreover, her act was intentional.
Answer:
(d) The girl has committed battery as she used unlawful force to ward off Sandeep. Moreover, her act was intentional.
Question 10.
Nitin, aged 15 years, agreed to sell his cottage for ₹ 10,00,000 to Mayank, aged 20 years. However, the market value of the cottage at the time of sale was ₹ 20,00,000. Nitin afterward avoided the agreement of sale by saying that he is a minor and a case was also pending before the court regarding the title of the cottage, at the time of sale. They both appointed Ms. Kriti (a mediator) for the settlement of their dispute.
In this context, which one of the following is correct? [1].
(a) The above dispute can be referred to a mediator, as contractual disputes are most suited for mediation.
(b) The above dispute cannot be referred to for mediation as the case against specific classes of persons (minors, mentally challenged) who have been excluded from the scope of mediation.
(c) The above dispute cannot be referred for mediation as the consideration was not adequate and hence contract is void ab initio.
(d) The above dispute can be referred to as mediation, as property disputes are most suited for mediation.
Answer:
(b) The above dispute cannot be referred to for mediation as the case against specific classes of persons (minors, mentally challenged) who have been excluded from the scope of mediation.
Question 11.
Assertion (A) International Commercial Arbitration has been defined specifically under Section 2(1)(f) of the Arbitration and Conciliation Act, 1996. Reason (R) The decision rendered by a mediator is known as an award. [1].
Alternatives
(a) Both Assertion (A) and Reason (R) are true and 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 A.
(c) Assertion (A) is true, but Reason (R) is false.
(d) Assertion (A) is false, but Reason (R) is true.
Answer:
(c) The decision rendered by an arbitrator is known as an arbitral award. Mediators do not offer an award like an arbitrator.
Question 12.
Match the following provisions of the Universal Declaration of Human Rights. [1].
| Column I | Column II | ||
| A. | Article 3 | (i) | Liberty of a person |
| B. | Article 7 | (ii) | Equality before law |
| C. | Article 5 | (iii) | Prohibitions on torture |
| D. | Article 23 | (iv) | Socio-economic rights such as the right to work and equal pay |
Codes
| A | B | C | D | |
| (a) | (ii) | (i) | (iv) | (iii) |
| (b) | (i) | (ii) | (iii) | (iv) |
| (c) | (iii) | (ii) | (iv) | (i) |
| (d) | (ii) | (iv) | (i) | (iii) |
Aswer:
(b) (i) (ii) (iii) (iv)
Question 13.
Assertion (A) Article 51 A of the Constitution prescribes the fundamental duties of every citizen. Reason (R) The Courts might raise the status of these duties to that of Fundamental Rights in the future.[1].
Alternatives.
(a) Both Assertion (A) and Reason (R) are true and 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:
(b) Both Assertion (R) and Reason (R) are true, but Reason (R) is not the correct explanation of Assertion (A).
Question 14.
The situation I The state wanted to prohibit Ajit from making a speech because Ajit wanted to mobilize people to commit riots. Situation II Smita was an author who published a book on the independence struggle of our country. A few people were not happy with the content of the book and thus the state restricted the sale of this book. [1].
(a) The State can prohibit someone from making inciting speeches that may provoke others to commit violence in the situation I while the state cannot restrict the sale of the book because of a few unruly protestors.
(b) The state cannot prohibit in either of the two situations
(c) The State cannot prohibit in the situation I but can prohibit in situation II.
(d) The state can prohibit in both situations.
Answer:
(a) The State can prohibit someone from making inciting speeches that may provoke others to commit violence in the situation I while the state cannot restrict the sale of the book because of a few unruly protestors.
Question 15.
Equal pay for equal work for both men and women is a. [1].
(a) Fundamental right.
(b)DPSP.
(c) Fundamental duty.
(d) None of the above.
Answer:
(b) DPSP.
Direction Read the following principles on criminal law and answer questions 16 to 20 Principle 1 Nothing is an offense that is done in the exercise of the right of private defense. Nothing is an offense that is done in madness. Principle 2 A man is guilty not only for what he actually does but also for the consequences of his doing.
Principle 3 Mere silence as to facts likely to affect the decision of a person to enter into a contract is not a fraud. Principle 4 Whoever attempts to commit the offense of cheating, commits an offense. Principle 5 An employer is liable for an injury caused to an employee in the course of the employment.
Question 16.
A, under the influence of madness, attempts to kill B. B to save his life kills A. [1].
(a) A has committed the offense of attempting to murder
(b) A has committed an offense of being mad
(c) B has committed an offense
(d) B has not committed an offense
Answer:
(d) B has not committed an offense.
Question 17.
A wanted to kill the animal of B. He saw B standing with his animal and fired a gunshot at the animal. The gunshot killed B. [1].
(a) A is guilty of killing B.
(b) A is not guilty of killing B.
(c) B is guilty of standing with the animal.
(d) A did not know that the gunshot would kill B.
Answer:
(a) A is guilty of killing B.
Question 18.
A sells to B (A’s daughter who is a minor) a horse that A knows to be unsound. A says nothing to B about the unsoundness of the horse. [1].
(a) A has committed fraud.
(b) A has committed no fraud.
(c) There cannot be a contract between a father and daughter.
(d) The daughter did not ask therefore the father did not tell, hence any fraud.
Answer:
(b) A has committed no fraud.
Question 19.
A with an intention to defraud B obtains from him an amount of ₹ 500. [1].
(a) A has committed no offense.
(b) A has committed the offense of cheating.
(c) A has attempted to commit the offense of cheating.
(d) A has attempted to commit and has committed the offense of cheating.
Answer:
(b) A has committed the offense of cheating.
Question 20.
A and B were working in a factory as unskilled laborers. A was carrying a basket of stones on his head. B was sitting on the ground. When A crossed B, all of a sudden, a stone fell down from the basket and hit B on his head. B died instantaneously. [1].
(a) The employer will be liable.
(b) The employer will not be liable.
(c) A will be liable.
(d) Both employer and A will be liable.
Answer:
(a) The employer will be liable.
Section-B (16 Marks)
Question 21.
Neither is it possible nor is it proper to isolate the right to legal aid from the range of human rights. Comment. [2].
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.
Question 22.
These two sister institutions were started in order to aid the economies of various nations which had suffered immense losses subsequent to the Second World War. [2].
(i) Which two sister institutions are being discussed in the above excerpt?
(ii) Evaluate their role in today’s time.
Answer:
(i) The World Bank, instituted as the International Bank for Reconstruction and Development (IBRD-the World Bank) and the IMF (International Monetary Fund) are being discussed in the above excerpt.
(ii) In the present times, they aid member states by providing loans to them for the purpose of development and raising funds by way of the world’s financial markets.
Question 23.
(i) How was the ICC set up? [2].
(ii) State the cases over which it can exercise its jurisdiction.
Or
Why can municipal law not be considered to be a defense against a breach of international law?
Answer:
(i) The International Criminal Court (ICC) is a tribunal set up through the Rome Statute in 2002 with the purpose of prosecuting criminals for four major crimes
(a) Crimes against Humanity
(b) Genocide
(c) War Crimes
(d) Crime of Aggression
(ii) The ICC may prosecute criminals for crimes committed in a country that accepts the jurisdiction of the court. Thus, only if countries agree to submit to the jurisdiction can the ICC take up certain cases in which the person who has committed the crime is a national of the country or if it was committed in the territory of that country. The cases may be referred by the country directly to the ICJ or through the Prosecutor of the ICC, who is the person appointed to try cases on behalf of the ICC.
Or
Municipal law cannot serve as a defense to a breach of international law, i.e. one cannot use domestic law to justify the breach of an international one. Neither can one say that their consent to a treaty has been invalidated by way of a change of its municipal law?
Question 24.
There was a dispute between Ms. Udita and Mr. Bhavesh regarding the title and possession of the immovable property. The parties to the dispute, out of their own free will appointed Mr. Mohan, a neutral third party to resolve their dispute. Mr. Mohan acted not only as an interventionist but also suggested potential solutions to the parties, in order to resolve their claims and disputes. State the role of Mr. Mohan as an Alternative Dispute Resolution (ADR) in the above situation. [2].
Or
A utility company digs up a section of the lawns of Mr. Sanjeev Kumar to repair the telephone lines. Soon, his neighbor, Mr. Walia starts to grow tomatoes in the dug-up patch. Mr. Sanjeev requested Mr. Walia to shift the plants to his kitchen garden but he refused to do so. Identify and explain the alternative dispute resolution technique that is best for the resolution of the dispute that ensues.
Answer:
Mr. Mohan played the role of a mediator. Mr. Mohan will facilitate the mediation process in order to assist the parties in achieving an acceptable, voluntary agreement.
Or
The method followed 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 on the voluntary will of the parties and is a flexible and informal technique of dispute resolution.
Question 25.
Answer the following.
(i) Write a short note on negligence.
(ii) X litters the property of Y. What can hebe liable for? [2].
Answer:
(i) The term ‘negligence’ denotes carelessness. 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,
(ii) X, by littering the property of Y, causes an unlawful interference with Y’s land. Thus, he can be held liable for trespass to land
Question 26.
Answer the following [2].
(i) The purpose of Article 39A inserted by the 42nd Amendment Act, 1 976 was to provide for free legal aid.
(ii) One value instilled in the justice system by the introduction of free legal aid was the delivery of justice to all sections of society.
Answer:
(i) The purpose of Article 39A inserted by the 42nd Amendment Act, 1 976 was to provide for free legal aid.
(ii) One value instilled in the justice system by the introduction of free legal aid was the delivery of justice to all sections of the society
Question 27.
Mohan’s house is located on the roadside which is also having a street on the back of the house. He has a lawn at the back of his house. To prevent the intruders from entering his house, he got the fence charged with a high-voltage live electric wire. Anshul was passing through the street in the backyard of their house of Mohan and sat down to take a rest near the fence. While getting up, his hands came in contact with the fence which was connected to a high-voltage electric wire causing his death. Has Mohan committed an offense of causing death by rash and negligent acts?[2].
Answer:
Yes, Mohan will be liable because death was caused by his negligence in causing death by high voltage electric wire.
Question 28.
How does Article 27 protect the freedom of payment of taxes for the promotion of any religion? [2].
Answer:
Article 27 prohibits forcing anyone to pay any taxes on revenues that are used in payment of expenses for the promotion or maintenance of any religion or section. For example, donations in temples that are .used for the upkeep of the temple cannot be taxed.
Section -C (24 Marks)
Question 29.
Vaibhav was arrested and detained by police authorities on 13th November 2021 at 4:00 pm, under the preventive detention law MACOCA (Maharashtra Control of Organised Crime Act, 1999). He was produced before the magistrate on 15th November 2021 at 3:00 pm.
He was not allowed to consult his lawyer during the period of detention in police custody. Vaibhav 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) According to Article 22, Any person who is in custody has to inform us as to why he has been arrested. Further, he cannot be denied the right to consult an advocate.
(ii) The police officers are not justified in their action because Article 22 is a fundamental right and the police officers were required to tell him of the grounds of his arrest and the basis of his detention.
(iii) Article 22 of the Constitution seeks to protect against arbitrary arrest and detention.
Question 30.
Anuj along with his four friends was arrested by the Police on the charges of kidnapping and abduction of a girl. A conversation between Anuj and his friends was overheard by a ragpicker while they were discussing the further course of action in a junkyard. The ragpicker informed the police and the three were arrested. During the investigation, one of Anuj’s friends told the Inspector that if taken to Kodaikanal, he would show the spot where the girl was kept. [3].
(i) Analyse the nature of the evidence presented in the given situation. Can this evidence form the basis of conviction?
(ii) What is the position of Anuj’s friend’s statement in Evidence Law?
(iii) If the statement by Anuj’s friends was made before a Magistrate instead of the Inspector, would it have the same impact as evidence? Explain.
Answer:
(i) Yes this evidence will form the basis of conviction as Anuj’s friend’s statement amounts to confession and the ragpicker’s statement is oral evidence.
(ii) Anuj’s friend’s statement is an extra-judicial confession as it is made to a person other than the Magistrate. Extra-judicial confession can be accepted and can be the basis of a conviction only if it passes the tests of credibility as laid down in the procedural laws (laws that establish the procedure, eg CrPC).
(iii) If the statement had been made before a Magistrate instead of the Inspector, it would have amounted to a judicial confession and not an extrajudicial confession. Judicial confessions are always valid.
Question 31.
For the adoption of International Treaties into domestic law, UK and India follow different practices in accordance with their legal provisions. [3].
(i) State the practices followed in the UK and India.
(ii) With reference to Maganbhai Patel v. Union of India, explain how the Supreme Court of India implemented this practice.
Answer:
(i) In the United Kingdom, there is a doctrine of transformation that 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 the interplay of international law as fits the need of the day.
While any restriction of rights requires the need for an amendment by the legislature, enhancing or broadening the scope of such rights is allowed as long as there is nothing to the contrary or similar in domestic law. India generally follows that merely affirming a treaty by way of ratifying it with the assent of the executive is sufficient, 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 Supreme Court held that if a treaty or international agreement restricts the rights of the citizens or modifies the laws of the state, it would require to have a legislative measure, e.g. if India is a party to an international agreement to stop the killing of a species of turtle, it restricts the right to trade off certain fishermen by prohibiting the killing of the turtle.
If this treaty is to be enforced in India, the Indian Parliament needs to pass domestic legislation regarding the prohibition of the killing of such turtle species. If no such right is restricted then it does not need to have a legislative measure to enact it or give rise to some weight in domestic law in the treaty.
Question 32.
(i) Differentiate between arbitration and mediation process. [3].
(ii) State any two values communicated by these two forms of ADR.
Answer:
(i) The difference between mediation and arbitration lies in the nature of the judgment taken by the experts. While the decision taken by the arbitrator is binding on the parties, the mediator does not make the judgment but helps the parties in arriving at an agreement.
ii) The two values communicated by the two forms of ADR are
(a) The ADR methods are speedier, informal, and cheaper modes of dispensing justice when compared to the conventional judicial procedure.
(b) ADR provides a more convenient forum to the parties who can choose the time, place, and procedure for conducting the preferred dispute redressal process.
Question 33.
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 low-class laborer 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 15 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 34.
What are the conditions required to satisfy the tort of false imprisonment? State its exception as well. [3].
Or
What is the principle of absolute liability? What did Justice PN Bhagwati hold in the famous 1987 case of MC Mehta v. Shri Ram Foods and Fertilisers Industries regarding this principle?
Answer:
The intentional tort of false imprisonment is satisfied whenever there is intent to unlawfully confine or restrain the claimant in a bounded area. When this actually causes the claimant to be knowingly confined or restrained in a bounded area unlawfully. Even if the claimant is unaware that he is trapped but suffers an injury, the tort of false imprisonment is satisfied. The exception to the Tort of False Imprisonment The claimant should not be trapped willingly and consensually.
Or
An enterprise, which is engaged in a hazardous or inherently dangerous industry, which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous activity. Justice PN Bhagwati in the famous 1987 case of MC Mehta v. Shri Ram Foods and Fertilisers Industries held that
(i) hazardous or inherently dangerous activity in which an enterprise is engaged must be conducted with the highest standards of safety.
(ii) if any harm is done on account of such activity, the enterprise must be absolutely liable to compensate for such harm.
(iii) there should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part.
Question 35.
Vanya completed their LLB in the year 2012 in India. In 2014, she went to the USA and now wants to practice law there. Advise her on the requirements she needs to fulfill before she can practice Law in the USA. [3].
Answer:
Vanya has to complete certain requirements to practice law in the USA. New York and California are the most mainstream states for foreign lawyers to give the Bar Examination attributable to the nearness of an enormous number of universal law firms including transnational work, for which a global lawyer’s mastery is valuable.
These are likewise two of the most troublesome bar examination to clear. Foreign Lawyers may likewise take up fill-in as a Foreign Legal Consultant (FLC). As an FLC, it is conceivable to exhort home nation law and global law yet not to show up in court.
Question 36.
Why does the issue of allowing advertising and solicitation by lawyers require a balancing of interest? State the guidelines for advocates in India as given by the Bar Council of India for advertising. [3].
Answer:
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 by lawyers which may lead to a loss of credibility of the profession as a whole.
In India advertising by lawyers has been strictly restricted by the Bar Council of India. An advocate is prohibited from promoting himself through circulars, advertisements, touts, personal communications, interviews other than through personal relations, furnishing or inspiring newspaper comments, or producing his photographs to be published in connection with cases in which he has been engaged or concerned.
An amendment to this rule allows advocates to furnish certain information on their websites after intimating and taking approval from the Bar Council of India. however, only 5 pieces of information can be put up on the internet, that is first, the name of the advocate or the firm, second, the contact details, third details of enrollment with the Bar, fourth, his professional and academic qualifications and fifth the areas of practice.
Section-D (20 Marks)
Question 37.
(i) Briefly discuss the impeachment procedure as given under the Constitution. [5].
(ii) How has this law functioned in India?
(iii) Briefly discuss the method of appointing a Supreme Court judge.
Answer:
(i) The impeachment process in the Parliament is governed under Article 124(4) of the Constitution. Under this scheme, the motion of impeachment has to be passed by the two-thirds majority members present and voting must be done separately in each house of the Parliament. If the motion is passed then the formal announcement is done by the President of India. Therefore, the overall process of impeachment is lengthy and complex.
Question 38.
The reforms brought about by Napoleon in the French system of administration of justice had two objectives. [5].
(i) State the two objectives.
(ii) Explain the administrative and economic reforms brought about by Napoleon.
Or
The two broad models of legal systems differ in their techniques of adjudication and justice delivery mechanism. Elaborate.
Answer:
(ii) Consequently, in the history of the Indian judiciary, this process has been successful only once. Justice Soumitra Sen, the Chief Justice of Calcutta High Court was impeached in 2011 for misappropriation of funds. Previously in 1991, the impeachment process was initiated against Justice v. Ramaswamy, Chief Justice of Punjab and Haryana High Court but did not succeed in falling short of the two-thirds voting criteria.
(iii) The method of appointment of judges at the Supreme Court, High Court, and District Courts has enshrined in the Constitution of India. According to Article 124 of the Constitution,’ every judge of the Supreme Court shall be appointed by the President after consultation with such of the Judges of the Supreme Court and of the High Courts in the States, as the President may deem necessary. The Article also provides that in case of appointment of a judge other than the Chief Justice of India, the Chief Justice must be consulted.
The Article further provides for the qualifications required to become a judge at the Supreme Court, These qualifications include
(a) Citizenship of India, and
(b) Has been for at least five years a Judge of a High Court or of two or more High Courts in succession; or
(c) Has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
(d) Is a distinguished jurist in the opinion of the President
(i) The reforms brought about by Napoleon had two objectives, namely.
(a) to usher in as quickly as possible, socio-economic movements in the country and.
(b) in this process, if there is any dispute between an individual and the Government departments, it should be decided as quickly as possible.
(ii) Administrative Reforms
(a) Napoleon retained the administrative structure set during the time of the French revolution. However, he abolished the electoral system of local officials. On 17th February 1800, an act regarding local administration was passed.
(b) Under this Act, a Prefect was appointed in each province and Deputy Prefects were appointed in the districts. France was divided into 1 02 provinces during this period and a Mayor was appointed for each province. These officials were given adequate executive powers, appointed by the first advisor at the center, and were accountable to him.
Or
In an adversarial system, the parties in a legal proceeding develop their own theory of the case and gather evidence to support their claims. The parties are assisted by their lawyers who take a proactive role in delivering justice to the litigants. The lawyers gather evidence and even participate in cross-examination and scrutiny of evidence presented by the other disputing party.
The role of the judge/decision maker is rather passive as the judge decides the claims based solely on the evidence and arguments presented by the parties and their lawyers. In an inquisitorial system, the judge/decision-maker takes a centre stage in dispensing justice. The role of the judge/decision maker is active as he/she determines the facts and issues in dispute. The judge/decision-maker also decides the manner in which the evidence must be presented before the court.
Question 39.
The Bar Council of India maintains high ethical and moral standards for the advocates. On this line, it forbids the advocates from advertising but allows them to furnish certain information about them over the internet. How does it regulate high ethical standards for advocates? What information can be given by an advocate? What is the prerequisite to be complied with by the advocate for publishing such information?
Or
Compare the rules regarding Legal Education in India and the USA.[5].
Answer:
An Advocate has a duty to act in a dignified manner, to respect the court, not to communicate with a judge in private and impair impartiality, not to act in an illegal manner towards the opposition, and to refuse to represent clients who insist on adopting unfair means. In addition, being an office of the Court, an Advocate is expected to uphold and maintain the values of the profession.
Furthermore, an Advocate’s duty towards the client includes being bound to accept briefs, not to withdraw from service, not to appear in matters where he/she is a witness, and not to suppress material or evidence. An Advocate also had to maintain client confidentiality and not instigate litigation or charge a contingency fee (fees depending on success or the favorable result of matters). There is a general duty to ensure that his/her duties do not conflict with the client’s interests.
An Advocate is also expected not to negotiate directly with the opposing party (only through the opposing advocate) and to carry out legitimate promises made. Breach of these rules and standards of conduct leads to disciplinary action against advocates which may result in suspension or debarment. The right of advocates to advertise their services or solicit clients has been a controversial issue in the field of legal ethics and professionalism. In India advertising by lawyers has been strictly restricted by the Bar Council of India.
An amendment to this rule allows advocates to furnish certain information on their websites after intimating and taking approval from the Bar Council of India. However, only 5 pieces of information can be put up on the internet, that is first, the name of the advocate or the firm, second, the contact details, third details of enrollment with the Bar, fourth, his professional and academic qualification and fifth the areas of practice.
Or
The legal profession in India, which includes both the practice of law as well as professional legal education, is regulated by the Advocates Act, of 1961. The Bar Council of India (BCI) is envisaged under the Advocates Act as a body for regulating the minimum standards to be maintained by institutions imparting legal education in India. India has the second largest population of lawyers in the world, second only to the United States.
The number of persons admitted to practice law in India has increased from about 70,000 at the time of Independence in 1947 to some 1.25 million in 2014. In the United States, students after completing a four-year undergraduate degree in any discipline, write the Law School A. mission Test (LSAT) exam. Thereafter, they can apply to a law school and enroll in a three-year JD (Juris Doctor) program.
The pedagogical (teaching) method adopted in law schools involves
(i) the case study method as well as
(ii) the Socratic Method.
Bar applicants must also satisfy the character and fitness requirements of the state. Most states also have mandatory or minimum Continuing Legal Education (CLE) requirements.
CLE is the professional education of lawyers that takes place after they are admitted to the Bar and entails minimum hourly commitments which lawyers must undertake in order to maintain their licenses. Nearly all states require candidates to pass the Multistate Bar Examination (MBE) and the Multistate Professional Responsibility Examination (MPRE). Some states also require the passing of the Multistate Essay Examination (MEE) and/or the Multistate Performance Test (MPT).
Question 40.
How does tort help in protecting against any bodily harm? Discuss with specific reference to assault and battery.[5].
Or
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 8 years old boy, who was playing there, stumbled over it and fell into the manhole, and sustained injuries.
Answer:
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.
Or
Negligence can be defined as the omission to do something which a reasonable man would do or doing something which a prudent or reasonable man would not do.
To constitute the tort of negligence, three important essentials must be fulfilled.
(i) The defendant owes a duty of care to the victim. It is one of the essential conditions of negligence in order to make the person liable. It means that every person owes, a duty of care, to another person while performing an act. Although this duty exists in all acts, in negligence, the duty is legal in nature and cannot be illegal or unlawful and also cannot be of moral, ethical, or religious nature.
(ii) There has been a breach of duty of care on part of the defendant. A duty arises when the law recognizes a relationship between the defendant and the plaintiff and requires the defendant to act in a certain manner toward the plaintiff. It is not sufficient that the defendant owed a duty of care towards the plaintiff but it must also be established which is usually determined by the judge.
(iii) The breach of the duty to care resulted in the harm suffered by the claimant. It’s not enough for a plaintiff to prove that the defendant owed him a duty of care he must also establish that the defendant breached his duty to the plaintiff. A defendant breaches such a duty by failing to exercise reasonable care in fulfilling the duty. Since Care Cell Telecom did owe a duty of care to Prince and there was a breach of that duty that caused harm to him, they will be held liable for the tort of negligence.