BLS LLB 5 Years Sem 5 Legal Language 2017-18 Question Paper with Solutions

The sentence as printed is already in the active voice, so the transformation intended is into the passive:

I shall be obliged by circumstances to go.

(Equally acceptable: I shall be obliged to go by circumstances.)

The sentence is in the comparative degree. In the positive degree:

To be in this state is not so good as to die.

That is not the way a gentleman should behave.

One India One People is an English-language monthly magazine published from Mumbai by the One India One People Foundation, started in 1997 by the industrialist Sadanand A. Shetty. Any two of the following are features of it:

1. It is a national-integration magazine. Its declared purpose is to promote unity in diversity, to make readers conscious of themselves as Indians before anything else, and to hold up the rights and, in particular, the duties of the citizen under the Constitution.
2. Every issue is built around a single theme. The cover story of a given month takes up one national question, education, water, the girl child, the judiciary, defence, and the articles inside are commissioned around that theme rather than gathered at random.

1. D.M.C. = Divorce and Matrimonial Cases, the Indian law report series devoted to decisions on divorce, maintenance, custody, restitution of conjugal rights and other matrimonial matters.
2. S.C.C. = Supreme Court Cases, the law report of the decisions of the Supreme Court of India, published by the Eastern Book Company, Lucknow, since 1969.

Read as a whole: the case of Pravinlal Mehta against Umakant Shah, decided by the Supreme Court and reported at page 1283 of the 2003 volume of the All India Reporter.

The maxim means: "An act does not make a person guilty unless the mind is also guilty." It is the foundation of criminal liability in the common law and states that every crime is made up of two elements, both of which the prosecution must prove:

1. Actus reus, the guilty act: the physical element, that is, a voluntary act or an illegal omission, together with the circumstances and the consequences the definition of the offence requires.
2. Mens rea, the guilty mind: the mental element, that is, intention, knowledge, recklessness or negligence, in the degree the definition of the offence requires.

Neither alone is punishable. An evil intention that produces no act is not a crime, because the law does not punish thought; and an act done without a guilty mind, by an infant, a lunatic, or a person acting under a mistake of fact in good faith, is not a crime either.

The maxim, from Cicero's De Legibus, means "the welfare (or safety) of the people is the supreme law." It expresses the principle that the interest of the community prevails over the interest of the individual, and that where the two conflict the law will prefer the public good.

It is habitually paired with a second maxim, necessitas publica major est quam privata, "public necessity is greater than private necessity", and the two together are the classical foundation of the state's power to interfere with private rights for a public purpose.

Where it operates:

1. Eminent domain. The state may compulsorily acquire private property for a public purpose on payment of compensation. The Indian expression of this is the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, which replaced the Land Acquisition Act, 1894.
2. The police power of the state: public health, sanitation, town planning, drug control, licensing, and the regulation of trades that are dangerous or offensive.

The maxim means "the King can do no wrong." It is the foundation of the doctrine of sovereign immunity: that the Crown, and therefore the state, could not be sued in its own courts for a wrong, and could not be held liable for the torts of its servants.

Two ideas are contained in it, and the note should separate them. First, the King is personally immune from suit and prosecution. Second, and more sweepingly, the King is incapable in law of authorising a wrong, so that a servant who commits a tort cannot plead the King's command as a defence, and the Crown itself is not vicariously liable for it.

In England the doctrine was abolished for most purposes by the Crown Proceedings Act, 1947, which made the Crown liable in tort broadly as a private person of full age and capacity.

In India:

• Article 300(1) of the Constitution says the Union and the States may sue and be sued, and continues the position that obtained before the Constitution, that is, the liability of the East India Company and later of the Secretary of State for India.

• N. Nagendra Rao & Co. v. State of Andhra Pradesh (1994) confined Kasturi Lal narrowly, holding that in a modern welfare state very few functions are so exclusively sovereign as to attract immunity, and that no civilised system can permit the state to play with the citizen and then claim it is not answerable.
• In the constitutional jurisdiction the immunity is simply gone. In Nilabati Behera v. State of Orissa (1993) the Supreme Court held that compensation for violation of a fundamental right is a public law remedy under Articles 32 and 226, and that sovereign immunity is no defence to it.

• The bar against double jeopardy attaches: Article 20(2) of the Constitution and Section 300 of the Code protect a person once acquitted from being tried again for the same offence on the same facts.
• The State may appeal against the acquittal, but only with leave in the cases the Code specifies, and an appellate court will not disturb an acquittal merely because another view is possible.

(ii) Conviction. A conviction is the judicial finding that the accused is guilty of the offence charged, entered when the prosecution has proved every ingredient of the offence beyond reasonable doubt. It was provided for by Sections 235(2) and 248(2) of the Code, now carried into the Sanhita.

Consequences of a conviction:

• The court must then hear the accused on the question of sentence and pass sentence, which may be imprisonment, fine, forfeiture, or in the gravest cases death.
• Conviction and sentence are two distinct stages. A person may be convicted and yet released on probation under the Probation of Offenders Act, 1958, or after admonition, without any sentence of imprisonment.

A legal right is an interest recognised and protected by law, the violation of which is a legal wrong. Jurists classify rights in several ways; two of the most important are these.

(1) Right in rem and right in personam.

• A right in rem is a right available against the whole world. It corresponds to a duty imposed on persons generally. The owner of a house has a right in rem: everybody is under a duty not to trespass on it, not to damage it and not to interfere with his possession. Rights of ownership, of personal liberty, of reputation and of bodily security are all rights in rem.
• A right in personam is a right available against a determinate individual or individuals. It corresponds to a duty imposed on a specific person. A creditor's right to be paid by his debtor, a buyer's right to delivery from his seller, and a tenant's rights against his landlord under the lease are rights in personam.

The importance of an imperfect right is that it is not a nullity. A time-barred debt can still be validly paid, and payment cannot be recovered back as a mistake; it can support a fresh promise under Section 25(3) of the Indian Contract Act, 1872, which makes a written and signed promise to pay a time-barred debt enforceable without fresh consideration; and a creditor holding security may still realise it.

Step 3. Find the leading case. Search the subject index or digest under "Contract, minor's agreement". The decision is Mohori Bibee v. Dharmodas Ghose (1903), a decision of the Privy Council on appeal from Calcutta, reported at (1903) 30 IA 114 and ILR 30 Cal 539. It holds that a minor's agreement is absolutely void, void ab initio, and not merely voidable.

Step 4. Read the facts and the ratio, not the headnote alone. Dharmodas Ghose, a minor, mortgaged his house to a moneylender whose agent knew of his minority. He sued to have the mortgage set aside. The Privy Council held the mortgage void; refused to order him to repay the money under Section 64 or 65 of the Contract Act, since those sections presuppose a contract; and held that estoppel did not apply against him where the lender knew the truth.

Step 5. Bring the search forward in time. Use a digest, a citator or an online database, SCC Online, Manupatra, or the free Indian Kanoon, to see whether the case has been followed, distinguished or overruled, and to pick up the qualifications that later decisions have added:

• a minor may be a beneficiary and may enforce a contract made for his benefit;

Demonetization is the act of a government stripping a currency unit of its status as legal tender, so that it can no longer be used to discharge a debt. It is normally done to withdraw a denomination from circulation, to replace a currency, or to attack the holding of unaccounted wealth in cash.

The Indian demonetization of 2016. On the evening of 8 November 2016 the Prime Minister announced that currency notes of ₹500 and ₹1000 would cease to be legal tender from midnight. The notes affected amounted to about 86 per cent of the value of the currency in circulation. Holders were given a window, until 30 December 2016, to deposit the old notes in bank accounts or exchange limited amounts, and new ₹2000 and redesigned ₹500 notes were issued. The legal power was Section 26(2) of the Reserve Bank of India Act, 1934, under which the Central Government, on the recommendation of the Central Board of the Bank, may declare by notification that any series of bank notes shall cease to be legal tender.

Arguments against. The Reserve Bank's Annual Report for 2017-18 disclosed that about 99.3 per cent of the demonetized notes had been returned to the banking system, which suggested that very little unaccounted wealth was in fact held in the withdrawn notes, most of it being in property, gold and foreign accounts. The cost of printing new notes and of recalibrating the country's ATMs was substantial. The burden of the queues fell hardest on daily-wage earners, farmers, small traders and the informal sector, which is where India's employment is concentrated, and which runs on cash. The frequent changes of rule during the exchange window were criticised as showing that the measure had not been fully worked out.

The proposition. The right to a clean and healthy environment is not written in the Constitution as a fundamental right. It has been read into Article 21 by the Supreme Court, on the reasoning that the right to life means more than animal existence, and that a life lived in polluted air and water is not a life with dignity.

The constitutional material.

• Article 21: no person shall be deprived of his life or personal liberty except according to procedure established by law. This is the source of the right.
• Article 48A, a Directive Principle inserted by the Forty-second Amendment, 1976: the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.

• Vellore Citizens' Welfare Forum v. Union of India (1996), in which the Court held that sustainable development, the precautionary principle and the polluter pays principle are part of the law of India, the precautionary principle placing the onus on the developer to show that his activity is benign.
• Indian Council for Enviro-Legal Action v. Union of India (1996), the Bichhri case, applying absolute liability and the polluter pays principle to make the polluter bear the cost of restoring the damaged environment.
• M. C. Mehta v. Kamal Nath (1997), which brought the public trust doctrine into Indian law: rivers, forests, air and the sea are held by the State as trustee for the public, and cannot be converted into private ownership.
• M. K. Ranjitsinh v. Union of India (2024), in which the Supreme Court recognised a right against the adverse effects of climate change, drawn from Articles 21 and 14.

Conclusion. The right is now firmly established in Indian law, and India's judicial contribution to environmental jurisprudence is acknowledged internationally. The weakness lies not in the law but in its enforcement: pollution control boards are under-resourced, orders are complied with slowly, and the air quality of Indian cities has continued to deteriorate through the whole period in which this jurisprudence has been developed. A right that is repeatedly declared and inconsistently enforced is the real subject of this essay.

1. Whether an enterprise carrying on a hazardous or inherently dangerous activity is liable on the rule in Rylands v. Fletcher with its recognised exceptions, or on some stricter principle.
2. Whether a private corporation performing an activity affecting the public falls within "other authorities" in Article 12, so that a writ under Article 32 lies against it.
3. Whether the Supreme Court, in its writ jurisdiction under Article 32, has the power to award compensation for the infringement of a fundamental right, or whether the victims must be left to a civil suit.
4. On what basis the quantum of such compensation should be measured.

The decision and the guidelines.

1. The rule of absolute liability. This is the heart of the case and must be stated in the Court's own terms. Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of that activity, the enterprise is strictly and absolutely liable to compensate all those affected, and the liability is not subject to any of the exceptions which operate against the tortious principle of strict liability under Rylands v. Fletcher.

3. Article 32 and compensation. The Court held that its power under Article 32 is not merely injunctive but remedial, and that it may forge new remedies and fashion new strategies to enforce fundamental rights, including an award of compensation, at least where the infringement is gross and affects persons in a disadvantaged position.

4. Article 12. The Court noted the argument that Shriram, being licensed and regulated and engaged in an activity with the potential to affect the life and health of the people, might fall within Article 12, but expressly declined to decide the point, since the applications could be disposed of without it. Say this; candidates routinely and wrongly assert that the Court held a private company to be "State".

5. Directions on the plant itself. In its earlier order of 17 February 1986 the Court permitted the caustic chlorine plant to restart subject to stringent conditions on the recommendation of expert committees, appointed an expert committee to inspect, required an operator to be present at the site, a safety siren, a Rs 20 lakh bank guarantee against future escapes, and undertakings from the management with personal liability.

Citation. D. K. Basu v. State of West Bengal, AIR 1997 SC 610, (1997) 1 SCC 416, decided by Justice Kuldip Singh and Justice A. S. Anand.

Facts. D. K. Basu, Executive Chairman of Legal Aid Services, West Bengal, a non-political organisation, addressed a letter to the Chief Justice of India in 1986 drawing attention to news reports of deaths in police lock-ups and in custody, and asking that the letter be treated as a writ petition under the epistolary jurisdiction of the Court. It was so treated. A second letter, from Ashok K. Johri concerning a death in police custody at Aligarh, was heard with it. The Court issued notice to all the State Governments and to the Law Commission, and over the following decade received affidavits from the States showing that custodial deaths were continuing.

Issues.

1. Whether custodial death, torture and lock-up violence infringe Articles 21 and 22(1) of the Constitution.

1. Police personnel carrying out the arrest and handling the interrogation must bear accurate, visible and clear identification and name tags with their designations, and the particulars of all such personnel must be recorded in a register.
2. The officer carrying out the arrest shall prepare a memo of arrest at the time of arrest, attested by at least one witness, who may be a family member of the arrestee or a respectable person of the locality, and countersigned by the arrestee, bearing the date and time of arrest.
3. A person arrested or detained shall be entitled to have one friend, relative or other person known to him informed, as soon as practicable, that he has been arrested and where he is being detained.
4. Where the next friend or relative lives outside the district, the time, place of arrest and venue of custody must be notified through the Legal Aid Organisation of the district and the police station of the area, telegraphically, within 8 to 12 hours of the arrest.
5. The arrested person must be made aware of this right as soon as he is arrested or detained.

The Court directed that these requirements be followed in all cases, that failure to comply would render the official liable for departmental action and for contempt of court, and that the requirements are in addition to and not in derogation of other constitutional and statutory safeguards.

Compensation. The Court held that monetary compensation is an appropriate and effective remedy in public law for an established infringement of the right under Article 21, that this is distinct from a private-law claim in tort, that it is awarded on the principle of strict liability to which the defence of sovereign immunity does not apply, and that the State may recover the amount from the officer responsible. This followed and confirmed Nilabati Behera v. State of Orissa (1993).

Definition. A law report is a published record of a judicial decision which is considered to be of sufficient importance to be reported, setting out the material facts, the points of law argued, the judgment of the court and the order made, prepared and published so that the decision may be found, read and cited as a precedent in later cases.

A law report is not the same as the record of a case, which is the file of pleadings and evidence, nor the same as a transcript, which is a verbatim note. A law report is selective and edited: only a small proportion of decisions is reported, and the reporter adds apparatus that the judgment itself does not contain.

Why law reports exist. The doctrine of precedent requires that like cases be decided alike, and Article 141 of the Constitution makes the law declared by the Supreme Court binding on all courts in India. A binding decision is useless unless it can be found. Law reporting is therefore the machinery that makes the doctrine of precedent workable; without reports, stare decisis would be an aspiration.

(1) All India Reporter (AIR). Founded at Nagpur in 1914 by V. V. Chitaley, AIR is the oldest continuously published general law report in India and remains the most widely cited. It reports the Supreme Court, the High Courts, and historically the Privy Council and the Federal Court, in separate court-wise volumes, together with a section for Central and State legislation. Its citation form places the year first without brackets, then the report, then the court, then the page: AIR 2003 SC 1283. AIR also publishes the AIR Manual, a subject-arranged consolidation of Indian statutes with case annotations, which is the standard first stop in a legal search. It is a private publication.

(2) Supreme Court Cases (SCC). Published by the Eastern Book Company, Lucknow, since 1969, SCC reports the decisions of the Supreme Court of India exclusively and is generally regarded, with the official reports, as the most accurate and complete text of the Court's judgments; it is the report the Supreme Court and the High Courts most commonly cite today. Its citation form places the year in brackets, then the volume, then the report, then the page: (1997) 1 SCC 416, which is D. K. Basu. Its companion series include SCC (Cri) for criminal cases, SCC (L&S) for service law, and the online database SCC Online. It is likewise a private publication.

Two others worth naming in a line each:

the circular stone bases of several hundred huts, rock-lined water channels, and stone tools chipped from rock not normally found in the area. One of the attractions of Lake Condah long ago was its fish and the most startling evidence of aboriginal technology and engineering to be found there are the systems built to trap fish.

(a) Why is Lake Condah unusual and what picture does this site present?

Lake Condah, forty kilometres north-east of Portland, Victoria, is unusual because it preserves the remains of aboriginal settlements: the circular stone bases of several hundred huts, rock-lined water channels, and stone tools chipped from rock not normally found in the area, together with elaborate systems built to trap fish. The picture the site presents is of a semi-settled people, quite different from the stereotype of the nomadic hunter-gatherers of the desert.

(b) What is one of the main attractions of Lake Condah?

One of the attractions of Lake Condah long ago was its fish, and the most startling evidence of aboriginal technology and engineering to be found there are the systems built to trap fish.

(c) How and why are rocks piled at strategic spots?

How: at strategic spots the people piled rocks across the water courses. Why: in order to create weirs and to build funnels which channelled eels and fish into conical baskets, an eel-fishing technique which, the passage says, has hardly changed to the present day.

(d) What does the author say about stones and huts?