BLS LLB 5 Years Sem 5 Legal Language 2023-24 - ATKT 60/40 Question Paper with Solutions

The object of Section 125 of the Code of Criminal Procedure, 1973, now Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, is to provide a speedy, summary and inexpensive remedy against destitution and vagrancy, by compelling a person of sufficient means to maintain his wife, his legitimate or illegitimate minor children, and his father or mother who are unable to maintain themselves.

It is a measure of social justice, enacted under Articles 15(3) and 39 of the Constitution, and it is secular in operation: it applies to persons of every religion, irrespective of their personal law.

The task of the judge is to ascertain and give effect to the intention of the legislature as it is expressed in the words the legislature has used. He does this by applying the rules of construction, the literal rule first, then, where the words are ambiguous or would produce an absurdity, the golden rule, the mischief rule in Heydon's Case and the rule of harmonious construction, assisted by the internal aids within the Act and the external aids outside it. The judge declares the law; he does not legislate, and he may not supply a casus omissus.

The task of the lawyer is to assist the court to reach the correct construction. He must place the statute and the authorities before the court fairly, including those against his own client, argue the construction that supports his case, and never mislead the court on the law.

Bigamy is the offence of marrying again during the lifetime of one's husband or wife, where the earlier marriage is still subsisting, so that the second marriage is void by reason of the first.

• The offence was Section 494 of the Indian Penal Code, 1860, now carried into the Bharatiya Nyaya Sanhita, 2023, and is punishable with imprisonment which may extend to seven years and a fine. Concealing the earlier marriage from the second spouse is a graver offence.
• In Hindu law, monogamy is a condition of a valid marriage under Section 5(i) of the Hindu Marriage Act, 1955, a bigamous marriage is void under Section 11, and Section 17 makes it punishable under the penal law.

4. Certiorari, "to be certified": to an inferior court or tribunal, quashing an order already passed in excess of jurisdiction, in breach of natural justice, or vitiated by an error of law apparent on the record. Curative, issued after the order.
5. Quo warranto, "by what authority": to a person holding a public office, calling on him to show by what authority he holds it.

Under Section 2(1)(d) of the Consumer Protection Act, 1986, a "consumer" means any person who:

1. buys any goods for a consideration which has been paid or promised, or partly paid and partly promised, or under any system of deferred payment, and includes any user of such goods with the approval of the buyer, other than the person who obtains them for resale or for any commercial purpose; or
2. hires or avails of any services for a consideration paid or promised, and includes any beneficiary of such services availed with the approval of the person who hired them, other than a person who avails of them for any commercial purpose.

The Explanation provides that "commercial purpose" does not include use by a person of goods bought and used by him, or services availed by him, exclusively for the purpose of earning his livelihood by means of self-employment.

Citation. S. P. Gupta v. Union of India, AIR 1982 SC 149, 1981 Supp SCC 87, known as the Judges' Transfer case or the First Judges Case, decided by a Bench of seven judges, the leading judgment by Justice P. N. Bhagwati.

Facts. A group of petitions by advocates challenged, among other things, a circular of the Law Minister asking Chief Ministers to obtain consent from additional judges and from persons proposed for appointment to be posted outside their own States, the non-extension of the terms of certain additional judges, and the transfer of a Chief Justice. The petitioners also sought disclosure of the correspondence between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India.

What it decided, and why it matters.

What happened to it. The holding on "consultation" was overruled in Supreme Court Advocates-on-Record Association v. Union of India (1993), the Second Judges Case, which established the collegium and gave primacy to the judiciary, confirmed by the Third Judges Case (1998); and the attempt to replace the collegium by the National Judicial Appointments Commission was struck down in (2015). The locus standi holding, by contrast, has never been doubted and is the case's lasting contribution.

1. On the merits, the Court of Appeal discharged the injunction, holding that the Authority had considered the film and had not failed in its statutory duty, and that a court will not substitute its own judgment for that of a body Parliament has entrusted with the decision.
2. On standing, the case is famous for Lord Denning's proposition that where the Attorney General refuses consent to a relator action, or where his machinery is too slow, a private individual who is specially affected, and indeed any citizen, may come to the court himself to enforce a public right, because otherwise the law would be unenforceable and the wrong would go unremedied. His formulation was that the Attorney General's refusal cannot deprive the court of its jurisdiction.
3. Lawton and Cairns L.JJ. did not go so far, resting on the merits and on the applicant's particular interest.

A contract OF service is a contract of employment: it creates the relationship of master and servant, in which the employer has the right to direct not only what work is to be done but how it is to be done.

A contract FOR service is a contract with an independent contractor: the person engaged undertakes to produce a result, and is free to decide the manner and method of doing it.

2. The integration or organisation test: is the work done as an integral part of the business, or merely accessory to it? This was devised to cure the defect in the control test.
3. The multiple or economic reality test, now generally preferred: the court looks at the whole picture, including the power to select and dismiss, the payment of wages, who provides the tools and premises, who bears the financial risk, the degree of control, and whether the person is in business on his own account.

1. He described Section 124A as "the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen", and observed that "affection cannot be manufactured or regulated by law."
2. "Non-violence is the first article of my faith. It is also the last article of my creed." He accepted full and complete responsibility for the violence at Chauri Chaura and Bombay, and said that he had played with fire.
3. He explained how he had moved from being a staunch loyalist and co-operator to an uncompromising disaffectionist, and said that a system which had made India politically and economically helpless deserved no affection.
4. He invited the maximum sentence. He told the judge that the only course open to him was either to resign his office and dissociate himself from evil if he felt that the law he was called upon to administer was evil, or to inflict on me the severest penalty if he believed the system was good for the people.

2. The object of reservation is to compensate for the social disabilities and discrimination suffered from birth. A person who has enjoyed the advantages of an upper-caste upbringing, education and social standing has not suffered those disabilities, and to admit her would take a reserved seat from a person who has.
3. To hold otherwise would open the door to abuse, by making marriage a route into a quota.

Two consequences follow, and both should be stated:

• The rule works the other way as well, but not symmetrically. A woman born into a Scheduled Caste does not lose her Scheduled Caste status by marrying a forward-caste man, because her birth, and the disabilities attached to it, do not change.
• Sita is not without a remedy of a different kind. Her marriage to Akshay would be an inter-caste marriage, which the State encourages, and the couple may be eligible for incentive schemes and for protection; and the children of the marriage will have their status determined on the facts of their upbringing, not automatically by the father's caste.

(b) The decided case.

b) State any similar case study?

(a) The proceeding and the writ.

A writ petition under Article 226 of the Constitution before the High Court of Bombay, by way of a public interest litigation, and the writ sought would be:

1. A writ of MANDAMUS, as the principal relief, commanding the Municipal Corporation and the Tree Authority to perform their statutory duties: to obtain the permission the law requires before felling, to hear objections, to give reasons, and to comply with the conditions of any forest or environmental clearance. Mandamus is the correct writ because what is complained of is a failure to discharge a public duty.

The substantive grounds to be pleaded: the right to a healthy environment under Article 21; Article 48A and Article 51A(g); the precautionary principle and sustainable development, recognised as part of Indian law in Vellore Citizens' Welfare Forum v. Union of India (1996); the public trust doctrine from M. C. Mehta v. Kamal Nath (1997), under which forests are held by the State as trustee for the public and cannot be dealt with as though privately owned; and, where the land is forest, the Forest (Conservation) Act, 1980.

(b) A similar case.

The Aarey Colony litigation, Mumbai (2019). The Mumbai Metropolitan Region Development Authority proposed a Metro car shed at Aarey Colony, requiring the felling of a large number of trees. The Tree Authority granted permission, the Bombay High Court declined to interfere, and felling began at night. The Supreme Court took suo motu cognisance on 7 October 2019, treating a letter from law students as a petition, and stayed all further felling. The case is the closest possible parallel to the facts in this question: a Mumbai Metro project, a municipal tree authority, and trees in a forested area.

Two further authorities worth naming:

b) What is the Terri tonal jurisdiction of the District forum?

(a) Yes, Ramesh can file a complaint.

Every element of a maintainable complaint is present:

1. He is a "consumer". He bought goods for a consideration of Rs. 65,000, and he bought them for his own use, not for resale or for a commercial purpose.
2. A laptop is "goods", being movable property.

1. the opposite party, or each of them where there are more than one, actually and voluntarily resides, carries on business, or has a branch office, or personally works for gain; or
2. any of the opposite parties so resides or carries on business, provided the others acquiesce or the Forum gives leave; or
3. the cause of action, wholly or in part, arises.

Applied to these facts: Ramesh may sue at Bangalore, where the dealer carries on business; and he may also sue at Mumbai, because part of the cause of action arose there, the laptop having been delivered at Mumbai and the defect having been discovered there. He is not compelled to travel to Bangalore.

One point of currency, and it improves his position further. The 1986 Act has been repealed and replaced by the Consumer Protection Act, 2019, in force from 20 July 2020. Section 34(2) of the 2019 Act keeps the two older grounds and adds a third: the place where the complainant resides or personally works for gain. So under the present law Ramesh may file at Mumbai on that ground alone, without having to establish where the cause of action arose. This was the single most significant procedural reform of the 2019 Act, because under the old law a consumer often had to litigate in the seller's home town.

The present position. India has a partly unified civil law already. Contract, property, transfer of property, evidence, procedure, torts and the criminal law are uniform; only personal law is fragmented, into Hindu law (which by statute covers Hindus, Buddhists, Jains and Sikhs), Muslim law, Christian law, Parsi law, and the Special Marriage Act, 1954, which is an optional secular code available to anyone. Goa has had a common civil code since the Portuguese Civil Code of 1867. Uttarakhand became the first State to enact a Uniform Civil Code, passed in February 2024 and brought into force in January 2025.

The significance today, which is what the question asks.

1. Equality and non-discrimination. Personal laws contain provisions that treat men and women differently in marriage, divorce, guardianship and inheritance. A uniform code would apply Articles 14 and 15 to the area of life where inequality bites hardest.
2. The dignity of women, which has been the driving force of the judicial pressure for a code, from Shah Bano (1985) through Sarla Mudgal (1995) and John Vallamattom v. Union of India (2003), in which the Supreme Court expressed regret that Article 44 had not been given effect.

3. It is not only a Hindu-Muslim question. Tribal communities in the North-East, protected by the Sixth Schedule and by Article 371 provisions, have customary laws of marriage and inheritance that a national code would displace, and their objection is the one least often answered.
4. The 21st Law Commission, in its consultation paper of 2018, concluded that a Uniform Civil Code was "neither necessary nor desirable at this stage", and recommended instead the piecemeal reform of discriminatory provisions within each personal law. The 22nd Law Commission sought fresh views in 2023.

Suggestions for a model code. The question asks for these, and they are where an ordinary answer becomes a good one.

1. Reform first, unify afterwards. Remove the discriminatory provisions inside each personal law before attempting a common code. The objection is far weaker to a code that contains nothing any community has not already accepted.
2. Build on the Special Marriage Act, 1954, which already exists, already works and is already secular, rather than drafting from a blank sheet.

7. Consult widely, publish a draft, and legislate only after debate, through a Law Commission draft and a select committee, not by ordinance.
8. Make registration of every marriage compulsory, whatever law it is celebrated under. This alone would prevent most bigamy and most disputes about the fact of marriage, and it is uncontroversial.

Conclusion. The case for uniformity is a case about equality, and it is strong. The case against uniformity is a case about consent, and it is also strong. They can be reconciled, because what Article 44 requires the State to secure is a uniform code, not a hastily imposed one. A code arrived at by reforming each personal law until the differences no longer matter would satisfy Article 44 without any of the costs, and it is the route the Law Commission has recommended.

• Article 16(4): reservation of appointments in favour of any backward class not adequately represented in the services.
• Article 16(4A), inserted by the Seventy-seventh Amendment, 1995: reservation in promotion for the Scheduled Castes and Scheduled Tribes; Article 16(4B), by the Eighty-first Amendment, 2000, on carrying forward unfilled vacancies.
• Article 17: abolition of untouchability. Article 46: a Directive Principle requiring the State to promote the educational and economic interests of the weaker sections.
• Article 335: the claims of the Scheduled Castes and Scheduled Tribes shall be taken into consideration consistently with the maintenance of efficiency of administration.
• Articles 330 and 332: reservation of seats in the House of the People and in the State Assemblies. Articles 341 and 342: the Presidential Orders specifying the Scheduled Castes and Scheduled Tribes.

The significance, which is what the question asks.

• State of Madras v. Champakam Dorairajan (1951): a communal government order reserving seats in colleges was struck down as violating Article 15(1), and Parliament responded with the First Amendment, adding Article 15(4). The case is significant because it shows reservation in education rests on an express constitutional amendment.
• M. R. Balaji v. State of Mysore (1963): reservation of 68 per cent was struck down; the Court laid down that reservation should ordinarily not exceed 50 per cent, and that caste alone cannot be the test of backwardness.
• Indra Sawhney v. Union of India (1992), the Mandal case, a Bench of nine judges and the leading authority. It upheld 27 per cent reservation for other backward classes; confirmed the 50 per cent ceiling save in extraordinary situations; excluded the "creamy layer" from the benefit for other backward classes; held that reservation in promotion is not permissible under Article 16(4), which led to the Seventy-seventh Amendment; and held that backwardness must be social and educational, not economic alone.

2. The list has become politically unrevisable. Communities are added and almost never removed, and the demand for inclusion has become an ordinary form of political mobilisation.
3. The efficiency argument under Article 335, which the Court has repeatedly said must be balanced rather than used as a veto.
4. It addresses entry and not the conditions that produce inequality. Reservation in a college is of little use to a child who never reached a functioning school, and the honest criticism of Indian reservation policy is that it has been used as a substitute for primary education and land reform rather than as a complement to them.

Conclusion. Reservation is not an exception to equality but the means by which a formally equal Constitution was made to operate on a radically unequal society. Its constitutional foundation is secure and its record is real. What remains contested is not whether it is justified but how it should be targeted, which is precisely the question the creamy layer doctrine, the 50 per cent ceiling and the periodic re-examination of the lists exist to answer.

The confession. While Rowland was in the condemned cell, another man, David John Ware, then in prison, confessed in writing to the murder of Olive Balchin, giving an account of it. Rowland's appeal was dismissed, the Court of Criminal Appeal holding that it could not receive the confession as fresh evidence in the ordinary way.

The inquiry. The Home Secretary did not refer the case back to the court. Instead he appointed a private inquiry conducted by a King's Counsel, which heard Ware and others in private, without the accused being represented, without cross-examination, and without the safeguards of a trial, and reported that Ware's confession was untrue and that there was no ground to interfere with the conviction. Ware then retracted his confession.

The execution. Rowland was hanged at Strangeways Prison on 27 February 1947, protesting his innocence to the end and asking that the truth be established one day.

The sequel. In 1951 Ware attacked a woman in Bristol with a hammer and was charged with attempted murder. He said that he had an urge to kill women, and referred to having killed before. He was found guilty but insane and was committed to Broadmoor, where he took his own life in 1954.

Why the case is studied.

Citation. Minerva Mills Ltd v. Union of India, AIR 1980 SC 1789, (1980) 3 SCC 625, a Constitution Bench of five judges. The majority judgment was delivered by Chief Justice Y. V. Chandrachud; Justice P. N. Bhagwati dissented in part.

Facts. Minerva Mills, a textile undertaking at Bangalore, was nationalised under the Sick Textile Undertakings (Nationalisation) Act, 1974, after an inquiry under the Industries (Development and Regulation) Act, 1951. The petitioners challenged the nationalisation, and in doing so challenged the validity of Sections 4 and 55 of the Constitution (Forty-second Amendment) Act, 1976.

What the Forty-second Amendment had done.

1. Section 4 amended Article 31C so that no law giving effect to any of the Directive Principles in Part IV could be challenged as violating Articles 14, 19 or 31. Before the amendment, Article 31C had protected only laws giving effect to Articles 39(b) and (c).

2. Section 4, amending Article 31C, is void. The Court held that the balance between Fundamental Rights and Directive Principles is itself part of the basic structure. Parts III and IV together are the "conscience of the Constitution", and the goals set out in Part IV are to be achieved without abrogating the means provided by Part III. To give every Directive Principle primacy over Articles 14 and 19 would mean that any law which recited a Directive Principle would be immune from challenge, and "the Constitution would be robbed of its identity." Article 31C therefore stands as it was before 1976, protecting only laws giving effect to Articles 39(b) and (c).

The famous formulation. Chandrachud C.J. put the relationship in an image that is quoted in every textbook: the Indian Constitution is founded on the bedrock of the balance between Parts III and IV, and to give absolute primacy to one over the other is to disturb the harmony of the Constitution. He added that the Constitution is a precious heritage and therefore you cannot destroy its identity, and that "three Articles of our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power": Articles 14, 19 and 21.

4. It confirmed that a limited power cannot enlarge itself. This is the reasoning that gives the doctrine its logical foundation: the Constitution created Parliament, and the creature cannot rewrite the terms of its own creation.
5. It completed the correction of the Emergency-era amendments, together with the Forty-fourth Amendment of 1978, which had already removed the right to property from Part III and restored other safeguards.