BLS LLB 5 Years Sem 5 Legal Language 2022-23 Question Paper with Solutions

An appeal is an application to a higher court to set aside or vary the decision of a subordinate court, on the ground that it is wrong in law or in fact. It is a rehearing, and it lies only where a statute gives it: Sections 96 and 100 of the Code of Civil Procedure, 1908, in civil matters, and the appeal provisions of the criminal procedure code in criminal matters.

A review is an application to the same court which passed the decree or order, asking it to reconsider its own decision. It is governed by Section 114 and Order XLVII of the Code of Civil Procedure, 1908, and for the Supreme Court by Article 137 of the Constitution.

A law has retrospective effect when it operates on transactions, rights or events that are already past, that is, when it takes away or impairs a vested right acquired under existing law, or creates a new obligation, imposes a new duty or attaches a new disability in respect of something already done.

The general rule is a presumption against retrospective operation, expressed in the maxim nova constitutio futuris formam imponere debet, non praeteritis, "a new law ought to regulate what is to follow, not the past". A statute is therefore construed as prospective unless it says otherwise expressly or by necessary implication.

Ex parte is Latin for "from one side" or "on behalf of one party only". It describes a proceeding taken in the absence of, and without hearing, the other party.

Its two commonest uses are:

• An ex parte decree or order: one passed against a defendant who, having been duly served, fails to appear, so that the suit is heard in his absence. Under Order IX Rule 6 of the Code of Civil Procedure, 1908, the court may proceed ex parte, and under Order IX Rule 13 the defendant may apply to have the decree set aside on showing that the summons was not duly served or that he was prevented by sufficient cause from appearing.
• An ex parte injunction: an interim order granted on the application of one party alone, before notice to the other, where the object of granting the injunction would be defeated by delay. Order XXXIX Rule 3 requires the court to record its reasons for proceeding without notice and to require the applicant to deliver the papers to the other side at once.

1. Sexual harassment at the workplace violates fundamental rights: equality under Articles 14 and 15, the right to practise any profession or carry on any occupation under Article 19(1)(g), because a hostile environment drives women out of work, and life with dignity under Article 21.

3. The Court laid down the Vishaka Guidelines, binding under Article 141 until legislation was enacted. The principal ones are: the duty of every employer to prevent or deter sexual harassment and to provide a procedure for complaints; a definition of sexual harassment as unwelcome sexually determined behaviour, comprising physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography, and any other unwelcome physical, verbal or non-verbal conduct of a sexual nature; preventive steps, by notifying and circulating the prohibition and amending conduct rules and standing orders; criminal proceedings and disciplinary action where the conduct amounts to an offence or to misconduct; a complaint mechanism with time-bound treatment; a Complaints Committee headed by a woman, with not less than half its members women and a third party such as an NGO, reporting annually to the Government; the right of workers to raise the issue at meetings; awareness of the rights of female employees; and steps to assist where the offender is a third party.

Beneficial construction, also called liberal or benevolent construction, is the rule that a statute passed for the benefit of a particular class of persons should be construed liberally, so as to advance the benefit and suppress the mischief. Where two constructions of such a statute are reasonably possible, the one that favours the class the statute was enacted to protect is to be preferred.

Where it applies. To welfare and social legislation, which is enacted precisely to remedy an inequality of bargaining power. The standing Indian examples are:

• labour and industrial legislation: the Industrial Disputes Act, 1947, the Factories Act, 1948, the Payment of Wages Act, 1936, the Minimum Wages Act, 1948, the Employees' Compensation Act, 1923;
• the Maternity Benefit Act, 1961;
• the Consumer Protection Act, 2019;
• legislation for the protection of tenants, of Scheduled Castes and Scheduled Tribes, and of women and children.

Cases.

This is a question about legal research method: how the search is conducted, and what it yields.

Step 1. State the problem as a legal issue and fix the search terms. The issue is: is an agreement entered into by a person below the age of majority void ab initio, or merely voidable at his option? Search under minor, minority, majority, competency to contract, void ab initio, voidable, necessaries, estoppel, ratification.

Step 2. Go to the statute first, because it fixes the vocabulary. Section 10 of the Indian Contract Act, 1872, requires the parties to be competent to contract; Section 11 provides that a person is competent if he is of the age of majority according to the law to which he is subject, of sound mind and not disqualified; the Indian Majority Act, 1875, fixes majority at eighteen years. Note the gap: the sections say who is competent and are silent on what happens if an incompetent person contracts. That gap is why case law was needed.

• a minor may enforce a contract made for his benefit; the disability is a shield and not a sword;
• his estate is liable for necessaries supplied to him suited to his condition in life, under Section 68 of the Contract Act, which is a quasi-contractual liability;
• there is no estoppel against a minor who misrepresents his age, though a court may apply the equitable doctrine of restitution and order him to restore property still traceable;
• a minor may act as an agent, and may be admitted to the benefits of a partnership under Section 30 of the Indian Partnership Act, 1932.

Step 7. Verify that the authority still stands, and record the citation correctly, noting the court: a Privy Council decision of 1903 continues to bind Indian courts unless overruled by the Supreme Court.

3. Necessity as a defence in tort: damage done to private property to avert a greater public harm, the classic case being the pulling down of a house to stop a fire spreading, is not actionable.
4. Public nuisance, where the use of one's own land is restrained because it injures the public at large.
5. Emergency powers and preventive detention, where personal liberty yields to the security of the state.
6. The reasonable restrictions permitted on the freedoms in Article 19(2) to (6), and the Directive Principles, which direct the State to secure a social order for the welfare of the people.

As a rule of interpretation, which is what this paper is about, the maxim underlies beneficial construction and the mischief rule: where a statute is passed for the public good, it is construed so as to advance that good and suppress the mischief, rather than narrowly.

What rules of interpretation would generally be used to interpret statutes of such nature.

(a) The aids available to ascertain the meaning of "plant".

When a statute uses a word it has not defined, the court resorts to aids to construction, which fall into two classes.

Internal aids, found within the Act itself:

1. The long title and the short title. The long title here would state the purpose, the prevention of the growing of narcotic or psychotropic plants, which at once suggests that "plant" means a living botanical organism capable of being grown, and not, for example, a factory or machinery.
2. The preamble, if there is one, which states the reason for the enactment.

3. Parliamentary history: the Statement of Objects and Reasons, the reports of committees and commissions, and, since S. R. Bommai and later cases, parliamentary debates, used with caution.
4. Contemporanea expositio, the meaning given to the word by those who administered the Act from the beginning, and long usage.
5. Textbooks, commentaries and foreign decisions on similar statutes, as persuasive material.
6. Historical facts and surrounding circumstances, that is, the mischief the Act was passed to remedy.

The rules of language would also be applied: noscitur a sociis, a word is known by the company it keeps; ejusdem generis, general words following an enumeration of specific things are confined to the same genus; and expressio unius est exclusio alterius, the express mention of one thing excludes another.

(b) The rules for a penal statute.

1. Strict construction. A penal statute is construed strictly, and nothing is to be implied or added to create an offence or to increase a punishment. If an act is not clearly within the language, it is outside the statute.

5. The rule against a casus omissus. A court may not supply an omission in a penal statute; if the legislature has left a gap, the gap must be filled by the legislature.
6. Strict construction yields to plain language and to purpose. Where the words are clear, they must be given effect even against the accused, and modern authority holds that a penal statute meant to suppress a grave social evil is not to be so narrowly read as to defeat its object.

• The mandatory portion is "and shall be so held if either party so desires". The word "shall", coupled with the condition that a party so desires, imposes a duty. Once either party asks for it, the court has no discretion at all: the proceedings must be held in camera.

Two further points on the same words:

• The section confers a right on the party and a discretion on the court, and the two are deliberately different. Note the word "either": the request of one party is enough, and the objection of the other is irrelevant.
• The opening words, "In every suit or proceeding to which this Act applies", are themselves mandatory as to scope: the provision applies to all such proceedings without exception.

(b) The difference between mandatory and directory provisions.

A mandatory provision is one that must be obeyed exactly, and non-compliance makes the act done invalid. A directory provision is one that ought to be obeyed, but substantial compliance is enough, and non-compliance does not by itself invalidate the act, though it may attract other consequences.

3. Whether the provision confers a right or a mere procedure. Provisions conferring rights, and provisions affecting jurisdiction, are usually mandatory; provisions regulating the manner of performance of a public duty are often directory, so that the public should not suffer for the default of an official;
4. Whether serious general inconvenience or injustice would follow from holding it mandatory.

2. The Act provides for commencement by notification: it commences on the date the Government appoints in the Official Gazette, and until the notification issues the Act is law but is not in operation, creating no rights and no offences.
3. The Act says nothing: Section 5 of the General Clauses Act supplies the answer, and it commences on assent.

Note also that an Act may be brought into force in parts, for different provisions, different areas or different classes of establishment, on different dates, as the Maternity Benefit Act in Q.3(3) of this very paper illustrates.

(b) The presumption as to the validity of statutes.

There is a presumption of constitutionality: a statute enacted by a competent legislature is presumed to be valid, and the burden of showing that it is unconstitutional lies on the person who challenges it. Its content is as follows:

1. The court leans in favour of validity. Where two constructions are possible, the court adopts the one that keeps the statute within the powers of the legislature. This is the rule of "reading down".

5. Severability. If part of a statute is invalid and the valid part can stand independently, only the offending part is struck down. R. M. D. Chamarbaugwalla v. Union of India (1957).
6. The presumption is weaker in some fields. It has been said that the presumption does not apply with the same force where a statute on its face restricts a fundamental right, and in such a case the burden may lie on the State to justify the restriction as reasonable under Article 19(2) to (6).

A statute is a formal document with a settled architecture, and each of its parts has a recognised weight when a court comes to construe it. The parts found within the Act are internal aids to construction.

1. The short title. The name by which the Act is cited, "This Act may be called the Maternity Benefit Act, 1961". Function in interpretation: none. It is a label for convenience, and it cannot control the meaning of any section.

2. The official citation. The number of the Act in the year of enactment, "Act No. 53 of 1961". Again a means of identification, with no interpretative value, but the number is what makes the Act unique when names are confusable.

6. Marginal notes. The short headings against each section. Function: contested. The old English rule was that they are not part of the Act, being inserted by the draftsman and not voted on. Indian courts take a more relaxed view and will look at a marginal note as an aid where the section is ambiguous, while holding that it can never prevail over the plain words of the section.

7. Headings and chapter titles. Function: they may be referred to in construing the sections grouped under them, on the footing that they are a preamble to that group; but they cannot restrict the plain meaning of a section.

8. The definition or interpretation clause. Usually Section 2. Function: decisive. A definition governs the whole Act "unless the context otherwise requires", and those words are important: a defined meaning yields where the context in a particular section demands otherwise. Note the drafting signals, "means" introduces an exhaustive definition, "includes" an extending and inclusive one, and "means and includes" an exhaustive one framed widely.

9. Provisos. Clauses beginning "Provided that". Function: a proviso carves an exception out of the main provision to which it is attached, and its normal office is to except something that would otherwise fall within it. It must be read with the main clause and cannot be construed as enlarging the section.

15. The non obstante clause. "Notwithstanding anything contained in ...". Function: to give the provision overriding effect over whatever it names, and it is the standard device for resolving a conflict in advance.

16. The repeal and savings section, usually the last, which repeals earlier law and preserves what was done under it, read with Section 6 of the General Clauses Act, 1897.

Illustration. Motipur Zamindary Co. v. State of Bihar: the question was whether sugarcane fell within "green vegetables" so as to be exempt from sales tax. The court applied the ordinary popular meaning: a vegetable is what is grown in a kitchen garden and used for the table, and sugarcane is not, so no exemption. A word in a taxing statute is understood in its popular commercial sense, not its botanical one.

2. The golden rule.

The rule: the literal meaning may be departed from where it would lead to absurdity, repugnance or inconsistency with the rest of the statute, and the words may then be modified so far as is necessary, but no further. Lord Wensleydale in Grey v. Pearson (1857): the grammatical and ordinary sense of the words is to be adhered to unless it leads to some absurdity or inconsistency, in which case it may be modified so as to avoid that absurdity, "but no farther".

and then the office of the judge is "to make such construction as shall suppress the mischief and advance the remedy", suppressing subtle inventions and evasions for the continuance of the mischief.

Illustration. Bengal Immunity Co. v. State of Bihar (1955): the Supreme Court applied Heydon's Case to Article 286 of the Constitution, identifying the mischief of multiple taxation of the same inter-State sale by several States, and construing the Article so as to suppress it.

Illustration. Commissioner of Income Tax v. Sodra Devi (1957): the word "individual" in a section of the Income Tax Act was construed by reference to the mischief the provision was enacted to remedy, namely the evasion of tax by transferring assets to a wife or minor child.

4. The rule of harmonious construction.

The rule: where two provisions of the same statute, or two statutes, appear to conflict, the court must construe them so as to give effect to both, and a construction which reduces one of them to a dead letter is to be avoided. It is only where the conflict is irreconcilable that one must yield, and then the later or the special provision ordinarily prevails.

(The paper prints "1987". The statute is the General Clauses Act, 1897, Act No. 10 of 1897, and the answer is written on that footing.)

The objective. The General Clauses Act is an interpretation Act: a statute about statutes. Its objects, as stated when it was enacted, are four:

1. To shorten the language of Central Acts, by providing once and for all definitions and rules of construction which would otherwise have to be repeated in every enactment.
2. To provide uniformity of expression, so that the same word bears the same meaning throughout the Central statute book unless a particular Act says otherwise.

• Section 6: the effect of repeal. Unless a different intention appears, a repeal does not revive anything not in force, does not affect the previous operation of the repealed enactment, does not affect any right, privilege, obligation or liability acquired or incurred under it, does not affect any penalty or punishment incurred, and does not affect any investigation, legal proceeding or remedy in respect of them. This is one of the most frequently litigated sections in the Act.
• Section 6A: repeal of an Act making a textual amendment does not undo the amendment.
• Section 7: revival of repealed enactments requires express words.
• Section 8: a reference to a repealed and re-enacted enactment is construed as a reference to the new one.
• Section 9: commencement and termination of time: the word "from" excludes the first day and the word "to" includes the last.
• Section 10: computation of time: where an act is required to be done within a period and the court or office is closed on the last day, it may be done on the next day it is open.
• Section 13: gender and number: words importing the masculine gender include females, and words in the singular include the plural and vice versa.

2. In construing subordinate legislation made under a Central Act, that is rules, regulations, notifications and bye-laws.
3. To supply what an Act has left unsaid, for example the date of commencement under Section 5, the effect of a repeal under Section 6, or the computation of a period under Sections 9 and 10.
4. As a guide even where it does not strictly apply. Courts have used its definitions as an aid in construing State Acts and other instruments, not as binding law but as an indication of the ordinary meaning of an expression.

When the Act CANNOT be used:

1. Where the particular Act defines the expression differently. A special definition in the Act being construed prevails over the general definition in Section 3. The General Clauses Act supplies a default, not a command.
2. Where "there is anything repugnant in the subject or context." Section 3 opens with those words, and they are a genuine limitation: if the context of the section being construed shows that the defined meaning does not fit, the defined meaning yields.

The words are Nelson Mandela's: "Education is the most powerful weapon which you can use to change the world." Coming from a man who spent twenty-seven years in prison and studied for a law degree in it, the sentence is not a piece of rhetoric but a statement of what he had found to be true.

The metaphor is the argument. A weapon is something that gives an ordinarily powerless person the ability to alter a situation he did not create. Education is called a weapon because it redistributes power, and it is worth noticing what makes it a strange kind of weapon: it destroys nothing, it cannot be confiscated, it is not exhausted by use, and it is the only possession that increases when it is given away.

How education changes the world.

3. It is the strongest lever on the condition of women. The evidence here is not contested: the education of girls is associated with later marriage, lower maternal and infant mortality, smaller and healthier families, higher household income and, decisively, the education of the next generation. Savitribai Phule and Jyotirao Phule opened a school for girls in Poona in 1848 against the whole weight of local opinion, and the argument they were making then is the one still being made.

4. It is the condition of economic development. No country has become prosperous with an uneducated population, and the Indian sectors that have grown fastest, software, pharmaceuticals, services, are precisely those that run on trained people rather than on natural endowments.

5. It changes what a society is willing to tolerate. Reform movements against untouchability, child marriage, sati and dowry were led by the educated and were resisted by custom. Law follows opinion more often than it leads it, and opinion is formed in classrooms.

6. It is a defence against manipulation. An educated person can check a claim, notice a fallacy and ask for evidence. In an age in which falsehood travels faster and cheaper than it ever has, the ability to evaluate a source is not an academic refinement but a civic necessity.

The qualifications, which an honest essay must make.

Conclusion. The metaphor holds because it is exact. Education arms the individual against the accident of his birth, and it arms a society against being governed badly. But a weapon is only as good as the hand that holds it and the aim it is given. The sentence is therefore not a celebration of schooling; it is an instruction about what schooling is for, and the test of any educational system is whether the people who leave it can read a difficult text honestly, weigh evidence and say what they think is true.

Let's take a quick look at each. Recycling is the process of turning waste into new materials.

For example, used paper can be turned into paperboard, which can be used to make book covers. Recycling can reduce pollution, save materials, and lower energy use.

Yet, some argue that recycling wastes energy. They believe that collecting, processing, and converting waste uses more energy than it saves.

Still, most people agree that recycling is better for the planet than trashing. Landfilling is the oldest method of managing waste.

In its simplest form, landfilling is when people bury garbage in a hole. Over time the practice of landfilling has advanced.

Garbage is compacted before it is thrown into the hole. In this way more garbage can fit in each landfill.

Large liners are placed in the bottom of landfills so that toxic garbage juice doesn't get into the ground water. Sadly, these liners don't always work.

The heat from the incineration process can boil water, which can power steam generators. Unfortunately, burning garbage pollutes the air.

Also, some critics worry that incinerators destroy valuable resources that could be recycled. Usually, the community in which you live manages waste.

Once you put your garbage in that can, what happens to it is beyond your control. But you can make choices while it is still in your possession.

You can choose to recycle, you can choose to compost, or you can choose to let someone else deal with it. The choice is yours.

(a) Why does the author state that "Garbage cans are not magical portals"?

Two criticisms are made in the passage. First, burning garbage pollutes the air. Second, some critics worry that incinerators destroy valuable resources that could be recycled.

(d) For inorganic waste, which method of disposal would be preferred, composting or recycling?

Recycling. The passage says that composting is for organic matter, such as food waste, which is piled up and allowed to decompose, and that plastic and other inorganic materials must be removed from the compost pile or they will pollute the soil. Inorganic waste therefore cannot be composted, and the passage's other suitable method is recycling, which it describes as turning waste into new materials, giving the example of used paper turned into paperboard for book covers.

(e) Explain the meaning of the terms 'harvest' and 'compacted'.

'Harvest', as used in the passage, means to obtain, gather or extract a usable product from something. The passage speaks of creating or harvesting a fuel from the waste, such as methane gas, that is, collecting a gas that the waste itself produces so that it can be burned. The word is borrowed from agriculture, where it means gathering a crop, and is applied here to gathering a resource from rubbish.

The purpose behind the explanation is stated in the last three sentences, and it is the point of the whole passage. The author says that once the garbage is in the can what happens to it is beyond your control, but that you can make choices while it is still in your possession: you can choose to recycle, you can choose to compost, or you can choose to let someone else deal with it. "The choice is yours." The essay is therefore not merely informative; it is an argument for individual responsibility in waste management, and the description of the four methods exists to show the reader why the choice matters.