BLS LLB 5 Years Sem 5 Legal Language 2024-25 - ATKT 60/40 Question Paper with Solutions

A gourmet meal was prepared by the chef.

The sentence as printed compares nothing, and a degree of comparison presupposes things being compared. Say that, then supply the class:

Milk is the most nourishing of all foods.

For completeness, the three degrees of the sentence once a class is supplied:

She exclaimed that it was a very beautiful sunset.

(Equally acceptable: She exclaimed with delight that the sunset was very beautiful.)

(1) All India Reporter (AIR). Founded at Nagpur in 1914 by V. V. Chitaley, the oldest continuously published general law report in India. It reports the Supreme Court, all the High Courts and, historically, the Federal Court and the Privy Council, in separate court-wise volumes, and also prints Central and State legislation. Its citation style puts the year first, without brackets: AIR 1997 SC 610. It is a private publication.

(2) Supreme Court Cases (SCC). Published by the Eastern Book Company, Lucknow, since 1969, reporting the decisions of the Supreme Court of India exclusively, and generally regarded as the most complete and accurate text of the Court's judgments. Its citation style puts the year in brackets, then the volume, then the page: (1997) 6 SCC 241. It too is private.

An affidavit is a written statement of facts, made voluntarily by a person and sworn or affirmed before an officer authorised by law to administer an oath, such as a court, a magistrate, a notary or an oath commissioner.

Section 3(3) of the General Clauses Act, 1897, provides that "affidavit" includes affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing. Affidavits in civil proceedings are governed by Order XIX of the Code of Civil Procedure, 1908.

The leading case is Ashby v. White (1703). A qualified voter was wrongfully prevented by a returning officer from casting his vote; the candidate he supported was elected in any event, so he suffered no loss whatever. Chief Justice Holt held that he had an action nonetheless, saying that if the plaintiff has a right he must of necessity have a means to vindicate it, and that want of a remedy is want of a right. This is the classic authority for the proposition that injury to a legal right is actionable without proof of damage.

The two maxims that must be read with it:

• Injuria sine damno, injury without damage: the violation of a legal right without actual loss. This is actionable, and Ashby v. White is the illustration. Torts actionable per se, trespass, libel, assault, fall here.
• Damnum sine injuria, damage without injury: actual loss without the violation of any legal right. This is not actionable. In the Gloucester Grammar School case a schoolmaster set up a rival school and the plaintiff's fees fell from 40 pence to 12; no action lay, because lawful competition violates no legal right. Mogul Steamship Co. v. McGregor, Gow & Co. is the modern statement of the same rule.

Law journals and periodicals are publications issued at regular intervals which carry articles, case comments, notes and book reviews on the law, written by academics, judges and practitioners. They are to be distinguished from law reports, which print judgments, and from law magazines, which summarise the law for a general readership.

The three kinds, and why the distinction matters:

• The law reviews of the National Law Universities, such as the National Law School of India Review and the NUJS Law Review, which are student-edited on the American model.
• Specialist periodicals on taxation, company law, labour law and intellectual property.

English and American journals frequently cited in Indian courts include the Law Quarterly Review, the Modern Law Review, the Cambridge Law Journal and the Harvard Law Review.

Their value:

1. They criticise the law, which reports cannot do. A judgment states what the law is; an article says whether it is coherent and what it will produce.
2. They are cited by courts. Indian courts refer to academic writing regularly, and though it is persuasive and not binding, a well-argued article has changed the law more than once.
3. They feed law reform. The Law Commission of India draws on academic writing, and much statutory reform begins as a journal article.

A power of attorney is a formal instrument by which one person, the principal or donor, authorises another, the agent, attorney or donee, to act on his behalf, so that the acts of the attorney within the authority conferred bind the principal as if he had done them himself.

It is governed by the Powers of Attorney Act, 1882, and, as a species of agency, by Sections 182 to 238 of the Indian Contract Act, 1872.

Kinds:

1. General power of attorney (GPA), conferring authority to act in all matters, or in all matters of a class: to manage property, operate bank accounts, appear in proceedings, execute documents.
2. Special or specific power of attorney, conferring authority for one particular transaction or purpose, for example to execute a single sale deed or to appear in a single suit.
3. Durable and irrevocable powers, on which see below.

Formalities.

Revocation. A power of attorney may be revoked by the principal at any time before the authority has been exercised, and it is terminated automatically by the death, insanity or insolvency of the principal, by the completion of the business, or by the expiry of the time fixed. It is irrevocable where the authority is coupled with an interest: Section 202 of the Indian Contract Act provides that where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of that interest.

Construction. A power of attorney is construed strictly. The attorney has only the authority expressly conferred and what is necessarily incidental to it, and general words following a recital of particular powers are read as limited to what is needed to carry out those powers. A power to manage does not include a power to sell, and a power to sell does not include a power to mortgage.

2. There must be compulsion. A statement made voluntarily is outside the protection; a person may always waive his own privilege.
3. The compulsion must be to be a witness against himself. In State of Bombay v. Kathi Kalu Oghad (1961), an eleven-judge Bench held that "to be a witness" means imparting personal knowledge, so that giving thumb impressions, specimen signatures, handwriting samples, fingerprints or blood samples is not being a witness against oneself; these are identifying features and not communications of knowledge.

Statutory reinforcement. Under the criminal procedure code, a person examined by the police is not bound to answer questions the answers to which would have a tendency to expose him to a criminal charge, and an accused does not render himself liable to punishment by refusing to answer at his examination by the court. A confession to a police officer is inadmissible under the law of evidence, now the Bharatiya Sakshya Adhiniyam, 2023, and a confession obtained by inducement, threat or promise is irrelevant.

is void to that extent. Clause (b) was inserted by amendment with effect from 1997, to close a gap: before it, a clause that did not bar the remedy but extinguished the right itself after a stated period escaped the section, and insurance policies were drafted to take advantage of that.

Note the exceptions in the section itself, because a complete answer must:

1. Exception 1: a contract by which the parties agree to refer future disputes to arbitration, and that only the amount awarded shall be recoverable, is not illegal.
2. Exception 2: a contract to refer a question already arisen to arbitration is likewise saved.
3. Exception 3, added later, saves certain guarantees given to banks and financial institutions.

Step 3. Find the case law through a digest or an online database, under "Contract, Section 28, restraint of legal proceedings", and collect the propositions the courts have added:

Step 5. Bring the search forward and verify. Use a citator, SCC Online, Manupatra or Indian Kanoon to confirm that the authorities are still good law and to pick up the recent applications, particularly to arbitration clauses, which are now also governed by the Arbitration and Conciliation Act, 1996.

Step 6. Read the judgment, not the headnote, and record the citation with the court, because the court fixes the authority.

The conflict. Privacy is the right of a person to be let alone and to control what is known about him. National security is the duty of the State to protect the country and its people from attack, terrorism, espionage and organised crime. The conflict is real and not manufactured: the State cannot detect a conspiracy without collecting information, and information collected about conspirators is collected about everybody else at the same time.

The Indian constitutional position.

Privacy is a fundamental right. In Justice K. S. Puttaswamy (Retd.) v. Union of India (2017), a Bench of nine judges held unanimously that the right to privacy is intrinsic to the right to life and personal liberty under Article 21 and to the freedoms in Part III, overruling M. P. Sharma (1954) and Kharak Singh (1962) to the extent they held otherwise. It is not absolute.

The test for any State invasion is proportionality, laid down in Puttaswamy in four limbs:

1. Legality: there must exist a law;

The safeguards the courts have built. PUCL v. Union of India (1997), the telephone-tapping case, held that a telephone conversation is protected by Article 21, that interception requires an order by a designated senior officer, that orders are of limited duration and must be reviewed by a committee, and that records must be destroyed. Those directions were incorporated in Rule 419A of the Telegraph Rules.

The Pegasus proceedings. In Manohar Lal Sharma v. Union of India (2021) the Supreme Court, on allegations that spyware had been used against journalists, lawyers and politicians, appointed an expert committee to investigate, holding that the mere invocation of national security does not render the court a mute spectator, and that the State must justify its claim rather than merely assert it. That sentence is the single most useful thing to quote in this essay.

The case for security. Intelligence prevents attacks that cannot be prosecuted after the event; secrecy is inherent in it, because a target who knows he is watched changes his behaviour; and the courts are not equipped to second-guess an operational assessment. Article 19(2) expressly permits reasonable restrictions in the interests of the sovereignty and integrity of India and the security of the State.

4. Targeting rather than bulk collection, and minimisation, that is, retaining no more than is needed and destroying the rest.
5. Independent oversight by a body with real powers, and periodic reporting to Parliament in aggregate form.
6. Notification after the event, where the investigation is over and notice will not defeat it, so that a person wrongly targeted can seek a remedy.
7. An effective remedy, which under the Indian Constitution means Article 32 and Article 226, and compensation where a right has been violated.

Conclusion. Privacy and national security are not opposites; they are both interests of the same public. The question is never whether the State may collect information, which it plainly may, but who decides, on what standard, subject to what check, and with what remedy if the decision is wrong. India has the right, in Puttaswamy, and the test, in proportionality; what it does not yet have is the machinery, because interception is still authorised by the executive to the executive. Until that changes, the balance is struck by the same authority on both sides of the scale.

• Article 19(2) permits reasonable restrictions on eight grounds only: the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation and incitement to an offence. The list is exhaustive, so a restriction that does not fall within one of the eight is unconstitutional however desirable it seems.
• Shreya Singhal v. Union of India (2015) is the governing decision. It struck down Section 66A of the Information Technology Act, 2000, which penalised sending "grossly offensive" or "menacing" messages, as vague and overbroad; and it drew the line that governs the field: discussion and advocacy, however unpopular, are protected, and only INCITEMENT may be punished.

The statutory machinery of moderation and blocking.

1. Section 79 of the IT Act, 2000, the safe harbour: an intermediary is not liable for third-party content provided it observes due diligence and does not initiate, select or modify the transmission. Shreya Singhal read down Section 79(3)(b) so that a platform must remove content only on a court order or a government direction, not on the complaint of any private person, since otherwise a platform faced with a demand would simply take the content down rather than risk liability.

The arguments for moderation. Platforms carry material that is genuinely harmful, incitement to violence, child sexual abuse material, coordinated disinformation, targeted harassment; there is no editor, and scale means that harm propagates faster than any legal process can respond; and a platform that carried everything would be unusable.

The arguments against, and they are of two different kinds.

Against State censorship: the grounds are broad and applied by the executive; blocking orders are frequently secret, so the person whose content is removed may not know why or by whom; there is no hearing for the originator in practice; and India's record of internet shutdowns is among the highest in the world.

Against private moderation: the platforms are not accountable to anyone. Their rules are written by them, applied at scale by algorithms and low-paid reviewers, and enforced without a hearing or an appeal that means anything; they are inconsistent, treating similar content differently in different countries and languages; and, in India as elsewhere, a handful of foreign companies now make decisions about the boundaries of public debate with none of the constitutional constraints that bind a State.

Conclusion. The debate is usually framed as free speech against harmful content, and that framing is wrong. The real question is procedural: who decides what may be said, on what stated grounds, with what notice to the speaker, and with what appeal. A State that blocks in secret and a company that removes without reasons fail that test in the same way, for the same reason. Free expression in the age of the platform will be protected, if at all, by due process rather than by absolutism.

A writ petition under Article 32 was then filed by Vishaka, a women's rights group, with other social activists and non-governmental organisations, as a class action, not to reopen the criminal case but to obtain a general remedy: a declaration that sexual harassment at the workplace violates fundamental rights, and directions to protect working women. The petitioners' point was that Bhanwari Devi was assaulted because of her work, and that the State, as her employer, had failed to protect her.

Issues.

1. Whether sexual harassment at the workplace violates Articles 14, 15, 19(1)(g) and 21 of the Constitution.
2. Whether, in the absence of any enacted law, the Supreme Court may lay down binding guidelines to fill the vacuum.
3. Whether international conventions, in particular CEDAW, ratified by India in 1993, may be read into the fundamental rights.

The decision.

2. Definition: sexual harassment means unwelcome sexually determined behaviour, whether direct or by implication, 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.
3. Preventive steps: express prohibition notified, published and circulated; conduct rules of government servants to include prohibition and penalties; standing orders in private employment amended accordingly; working conditions not hostile to women.
4. Criminal proceedings: where the conduct amounts to an offence, the employer must complain to the appropriate authority, and must ensure that victims and witnesses are not victimised, with the option of the transfer of the victim or the offender.
5. Disciplinary action where the conduct amounts to misconduct under the service rules.
6. Complaint mechanism in the employer's organisation, providing for time-bound treatment.
7. Complaints Committee headed by a woman, with not less than half its members women, and involving a third party such as a non-governmental organisation to prevent undue pressure from senior levels; annual report to the Government.

Citation. D. K. Basu v. State of West Bengal, reported as 1997 AIR SCW 233 in the All India Reporter's weekly service, and as AIR 1997 SC 610 and (1997) 1 SCC 416 in the bound reports. 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, wrote a letter to the Chief Justice of India in 1986, drawing attention to newspaper reports of deaths in police lock-ups and in custody, and asking that it be treated as a writ petition under the Court's epistolary jurisdiction. It was so treated. A second letter, from Ashok K. Johri about a custodial death at Aligarh, was heard with it. The Court issued notice to every State Government and to the Law Commission, and over the following decade received affidavits 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.

2. The arresting officer shall prepare a memo of arrest at the time of arrest, attested by at least one witness, 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 is entitled to have one friend, relative or other person known to him informed, as soon as practicable, of the arrest and of the place of detention.
4. Where that person lives outside the district, the time and place of arrest and the 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.
5. The person arrested must be made aware of this right as soon as he is arrested or detained.
6. An entry must be made in the diary at the place of detention recording the arrest, the person informed and the particulars of the police officials having custody.
7. The arrestee shall, on request, be examined at the time of arrest and any injuries recorded; the "Inspection Memo" must be signed by the arrestee and the arresting officer, and a copy given to the arrestee.

Compensation. Monetary compensation is an appropriate and effective remedy in public law for an established infringement of Article 21; it is distinct from a private law claim in tort; it rests on strict liability, to which sovereign immunity is no defence; and the State may recover the amount from the officer responsible. This followed Nilabati Behera v. State of Orissa (1993) and, before it, Rudul Sah v. State of Bihar (1983).

Aftermath. The guidelines were substantially enacted into the Code of Criminal Procedure, 1973 by the amendment of 2008, inserting Sections 41B, 41D, 50A and 55A. The Code has since been replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023, which carries these safeguards forward. In 2015 the Court directed the installation of CCTV cameras in police stations, taken further in Paramvir Singh Saini v. Baljit Singh (2020).

1. Pecuniary bias. Any financial interest in the outcome, however small, disqualifies automatically, and it is not necessary to show that the decision was in fact affected. In Dimes v. Grand Junction Canal (1852) decrees made by the Lord Chancellor were set aside because he held shares in the company, although nobody suggested he had been influenced. This is the strictest branch of the rule, and it exists because a financial interest is objective and easy to prove, so no inquiry into the decider's mind is needed.

2. Personal bias, arising from relationship, friendship, hostility, or a professional or business connection with a party. Manak Lal v. Dr Prem Chand (1957), where the chairman of a disciplinary tribunal had earlier appeared as counsel for the complainant, and the proceedings were quashed although no actual bias was alleged.

3. Subject-matter bias, a direct interest in the issue itself, or in a related matter, as where the decider has previously expressed a concluded view on the very question.

THE TEST. The question is not whether the decision-maker was in fact biased, which would require a court to examine his mind and would be almost impossible to prove. It is whether there was a "real likelihood of bias", or, on the wider formulation, a "reasonable apprehension of bias in the mind of a reasonable person". The classic statement is Lord Hewart C.J. in R v. Sussex Justices, ex parte McCarthy (1924): "it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."

EFFECT OF A BREACH. An order made in violation of the rule is liable to be quashed by certiorari, or set aside in appeal or writ proceedings, and the aggrieved person need not show that a different decision would have been reached. The vice is in the process, not in the result.

THE EXCEPTIONS.

1. The doctrine of necessity. Where the person alleged to be biased is the only authority competent to act, the rule yields, because otherwise there would be no decision at all. A tribunal of one member cannot be paralysed by an objection to that member if no substitute exists, and the alternative would be to defeat the statute.

Over the past few decades, human activities such as burning fossil fuels, deforestation, and industrial agriculture have led to a rapid increase in greenhouse gases in the atmosphere. These gases, particularly carbon dioxide, trap heat and cause the Earth's temperature to rise, resulting in various environmental consequences such as melting ice caps, rising sea levels, and more frequent and severe weather events like hurricanes, droughts, and wildfires.

International cooperation, as seen in the Paris Agreement, is vital to ensuring that all countries contribute to the global effort to limit global warming. At the individual level, individuals can mitigate their carbon footprint by embracing more sustainable and environmentally responsible lifestyles.

This encompasses the use of energy-efficient appliances, minimizing waste generation, reducing meat consumption, utilizing public transportation, and endorsing enterprises that prioritize ecological sustainability. Furthermore, individuals have the potential to advocate for comprehensive climate action by fostering awareness, championing the adoption of robust environmental policies, and actively promoting sustainable practices within their local communities.

The passage names four: melting ice caps; rising sea levels; more frequent and severe weather events such as hurricanes, droughts and wildfires; and effects which are widespread and affect ecosystems, biodiversity and human societies. It adds that rising temperatures threaten food and water security.

(c) How does climate change affect vulnerable populations?

The passage says that climate change disproportionately impacts vulnerable populations, and identifies two groups: low-income communities, and those living in regions prone to extreme weather events. The mechanisms it gives are that rising temperatures threaten food and water security, displace communities, and exacerbate poverty and inequality. The point being made is that the harm is not distributed evenly: those least responsible for the emissions and least able to protect themselves bear the most.

(d) What role do governments play in addressing climate change?

The passage gives governments two roles.

(f) What does the phrase "there is still hope to calm the tempest and steer toward a future where both the earth and its inhabitants can thrive for generations to come" mean?

The phrase is a metaphor, drawn from seafaring, and it works in two parts.

"To calm the tempest" compares climate change to a storm: violent, dangerous and already under way. To calm it means to bring the crisis under control, by reducing emissions so that the warming and the extreme weather described earlier in the passage are contained.

"Steer toward a future" continues the same image, of a ship being navigated rather than driven before the wind. It means that the outcome is a matter of deliberate choice and direction, not of fate.

Taken together, the sentence means that the damage is serious but is not yet irreversible, and that if humanity acts swiftly and with a sense of shared duty, the crisis can be brought under control and a sustainable future secured in which both the planet and the people living on it can flourish for a long time to come.