BLS LLB 5 Years Sem 5 Legal Language 2024-25 - ATKT Set 2 60/40 Question Paper with Solutions

Heena won't mind if I use her book, will she?

We must eat to live.

(Equally acceptable: Without eating we cannot live.)

A power of attorney is a formal instrument by which one person, the principal or donor, authorises another, the agent or attorney, 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. It may be general, conferring authority in all matters or in all matters of a class, or special, conferring authority for a single transaction.

Alibi is Latin for "elsewhere". As a plea in a criminal trial it means the defence that at the time the offence was committed the accused was somewhere else, and so far away that it was physically impossible for him to have been at the scene, so that he could not have committed it.

It is not one of the general exceptions to criminal liability; it is a plea of fact, and it operates through Section 11 of the Indian Evidence Act, 1872, now the Bharatiya Sakshya Adhiniyam, 2023, under which facts not otherwise relevant become relevant if they are inconsistent with any fact in issue.

He asked how they would get there.

(Equally: She asked how they would get there, or, if a listener is named, He asked me how they would get there.)

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 prefers the public good.

It is habitually paired with necessitas publica major est quam privata, "public necessity is greater than private necessity". Together they are the classical foundation of the state's power to interfere with private right for a public purpose.

Where it operates:

1. Eminent domain, the compulsory acquisition of private property for a public purpose on payment of compensation, now under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
2. The police power of the state: public health, sanitation, town planning, drug control, licensing and the regulation of dangerous or offensive trades.

A plaint is the written statement of claim by which a civil suit is instituted. It is the plaintiff's pleading, governed by Order VII of the Code of Civil Procedure, 1908, and it sets out the facts constituting the cause of action and the relief claimed.

A complaint is an allegation made orally or in writing to a Magistrate, with a view to his taking action against a person who has committed an offence. It belongs to criminal procedure, and by definition it does not include a police report.

2. Merchantable quality, where the goods are bought by description from a seller who deals in goods of that description. The proviso is that if the buyer has examined the goods, there is no condition as to defects which the examination ought to have revealed.
3. Sale by description: the goods must correspond with the description.
4. Sale by sample: the bulk must correspond with the sample, the buyer must have a reasonable opportunity of comparing them, and the goods must be free from any defect rendering them unmerchantable which would not be apparent on reasonable examination.
5. Sale by sample as well as by description: the goods must correspond with both.
6. Title: an implied condition that the seller has the right to sell.
7. Usage of trade, which may annex an implied condition or warranty.
8. Consent obtained by fraud, or where the seller conceals a defect which could not be discovered on a reasonable examination. Concealment takes the case out of the maxim altogether.

Audi alteram partem means "hear the other side", and it is one of the two classical rules of natural justice. It requires that no person shall be condemned unheard: before an order is made affecting a person's rights, interests or legitimate expectations, he must be given notice of the case against him and a fair opportunity to answer it.

Its content, which is where the marks are:

1. Notice. The person must be told what is alleged, in terms specific enough to allow an answer, and in time to prepare one. A vague or belated notice is no notice.
2. An opportunity to be heard, in writing or orally, according to what the matter requires.
3. Disclosure of the material relied on. A decision may not rest on evidence, reports or representations the affected person has not seen.
4. Cross-examination, where the case against him rests on the evidence of witnesses.
5. Legal representation, where the issues are complex or the other side is represented.

Step 3. Collect the leading cases.

• Blyth v. Birmingham Waterworks Co. (1856): the classical definition, that negligence is the omission to do something a reasonable man would do, or doing something a prudent and reasonable man would not do.
• Donoghue v. Stevenson (1932): the neighbour principle, establishing that a duty of care may exist independently of contract.
• Caparo Industries plc v. Dickman (1990): the modern three-fold test, foreseeability, proximity, and whether it is fair, just and reasonable to impose a duty.
• Municipal Corporation of Delhi v. Subhagwanti (1966): negligence of a public authority, and res ipsa loquitur applied to the collapse of the Clock Tower.
• Jacob Mathew v. State of Punjab (2005) and Kusum Sharma v. Batra Hospital (2010): the standard of care in medical negligence.
• Indian Medical Association v. V. P. Shantha (1995): medical services are a "service" under the consumer legislation, which opened a second and faster forum.

• Databases and networks. CCTNS, the Crime and Criminal Tracking Network and Systems, links police stations across the country; NAFIS is the national automated fingerprint identification system; and the Interoperable Criminal Justice System connects the police, the courts, the prosecution, prisons and forensic laboratories, so that a record made at one point is visible at the others.
• Surveillance technology: closed-circuit television, automatic number-plate recognition, drones, and facial recognition.
• Cyber forensics, since a very large proportion of crime now leaves an electronic trail even where the offence itself is not electronic.

2. Organisation and accountability.

• CCTV in police stations. In Paramvir Singh Saini v. Baljit Singh (2020) the Supreme Court directed that every police station be fitted with cameras with night vision and audio, covering the lock-up, the corridors and the entrance, with recordings preserved. This is technology used against the police rather than by them, and it is the direct descendant of D. K. Basu: the eleven guidelines tried to create a paper trail, and the cameras create a better one.

4. The effect on the law of evidence. This is where a law student can say something no general essay can. Electronic records are admissible only on compliance with the certificate requirement for electronic evidence. In Anvar P. V. v. P. K. Basheer (2014) the Supreme Court held the certificate mandatory; Shafhi Mohammad relaxed it; and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) settled the question by holding it mandatory again, while providing for the position where the certificate cannot be obtained. The Bharatiya Sakshya Adhiniyam, 2023, carries the requirement forward. The practical lesson is that technology does not prove itself: a video, a call record or a message is worthless in court unless its authenticity and chain of custody are established.

5. The limits the courts have set.

• Selvi v. State of Karnataka (2010): narco-analysis, polygraph and brain mapping conducted without consent violate Articles 20(3) and 21. Technology does not create a power to compel.

4. The illusion of certainty. A machine's output looks conclusive, and a court that treats it as conclusive has abdicated.
5. Capacity. Forensic laboratories in India are understaffed and backlogged, so a statute that requires forensic examination in every serious case has created an obligation the system may not be able to meet.

Conclusion. Technology has made policing far better at finding out what happened, and it has not, by itself, made it fairer. Its greatest contribution to fairness is the least glamorous one: the camera in the lock-up and the recorded search, which are not tools of detection at all but tools of accountability. The right test for any new policing technology is the one in Puttaswamy: is there a law, is the aim legitimate, is this the least restrictive means, and what happens when it goes wrong? A technology that cannot answer the fourth question should not be deployed on the strength of the first three.

3. Scientific. The great majority of scientific papers are published in English, so a scientist who cannot read it is cut off from the field.
4. Cultural and technological reach: cinema, popular music, and the internet, which began as an American network.

Add its role in international institutions, in civil aviation, where ICAO requires English for radio communication, and in maritime communication.

English in India, which is the part of the essay a law examiner can reward.

• Article 343 made Hindi in Devanagari the official language of the Union, with English to continue for fifteen years; the Official Languages Act, 1963, provided for English to continue indefinitely as an associate official language, which is where matters still stand.
• Article 351 directs the Union to promote the spread of Hindi; the Eighth Schedule lists twenty-two languages.

1. Linguistic imperialism. Robert Phillipson's Linguistic Imperialism (1992) argues that the spread of English is not neutral but reproduces inequality between nations and within them.
2. Language death. The dominance of a few global languages is part of the reason a large proportion of the world's languages will not survive the century.
3. Inequality within India. The gap between the English-medium and the vernacular-medium school is one of the sharpest lines of advantage in Indian life, and it is inherited.
4. Access to justice, which is the point a law student should make and almost nobody does. The courts whose judgments decide Indian lives are constitutionally required to work in a language most Indian litigants do not speak. A litigant in a High Court may sit through his own case without understanding a word of it. That is why the Supreme Court has begun translating its judgments into the scheduled languages through the SUVAS software, and why the simplification of legal language is a live reform question rather than an aesthetic one.

Citation. Vishaka v. State of Rajasthan, AIR 1997 SC 3011, (1997) 6 SCC 241, decided by Chief Justice J. S. Verma, Justice Sujata V. Manohar and Justice B. N. Kirpal.

The background. Bhanwari Devi was a saathin, a village-level social worker in the Government of Rajasthan's Women's Development Programme. She tried to prevent the child marriage of an infant girl in a village family, and in 1992, in revenge, she was gang-raped by men of that family. The trial court acquitted the accused in 1995. A writ petition under Article 32 was then filed by Vishaka, a women's rights group, with other organisations, as a class action, not to reopen the criminal case but to obtain protection for working women generally, on the footing that she had been attacked because of her work and that the State, as her employer, had failed to protect her.

The holdings on which the guidelines rest.

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; the conduct rules of government servants to include prohibition and penalties; standing orders in private employment amended accordingly; and working conditions not hostile to women.
4. Criminal proceedings. Where the conduct amounts to an offence, the employer must initiate action by complaining to the appropriate authority, and must ensure that victims and witnesses are not victimised, with the option of the transfer of the victim or of the offender.
5. Disciplinary action where the conduct amounts to misconduct under the service rules.
6. Complaint mechanism within the employer's organisation, providing for the time-bound treatment of complaints.

What followed. Applied and strengthened in Apparel Export Promotion Council v. A. K. Chopra (1999) and Medha Kotwal Lele v. Union of India (2013). Sixteen years after the judgment Parliament enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, in force from 9 December 2013, requiring an Internal Complaints Committee in every workplace with ten or more employees and a Local Committee in each district for the unorganised sector, and prescribing the inquiry procedure, time limits, interim reliefs and penalties. The guidelines are therefore no longer the source of the obligation, though the case remains the constitutional foundation on which the Act rests.

2. Whether a private corporation carrying on such an activity is "other authority" within Article 12, so that a writ under Article 32 lies against it.
3. Whether the Supreme Court may award compensation in its writ jurisdiction.
4. On what basis the quantum of compensation should be fixed.

The decision and the guidelines.

1. The rule of absolute liability, which is the heart of the case and should be given in something close to the Court's own words: 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.

The three reasons the Court gave:

• The rule in Rylands v. Fletcher was evolved in 1868 in a very different society, and India is not bound to adhere to a nineteenth-century English rule.

5. Directions on the plant itself. By an earlier order the Court permitted the caustic chlorine plant to restart subject to stringent conditions recommended by expert committees: inspection by an expert committee, an operator on site, a safety siren, a bank guarantee of Rs 20 lakh against future escapes, and undertakings from the management carrying personal liability.

6. A specialised forum. The Court observed that such cases raise questions of scientific and technical fact and suggested the setting up of environment courts with professional judges assisted by experts. That suggestion was realised much later in the National Green Tribunal Act, 2010.

Significance. Absolute liability is the largest single Indian contribution to the law of torts. It was applied in Indian Council for Enviro-Legal Action v. Union of India (1996) to make a polluter pay the cost of restoring the environment, and it is reflected in the no-fault liability created by the Public Liability Insurance Act, 1991. The principal criticism is that in the Bhopal settlement the Court did not in the end apply the measure of damages it had proposed here.

3. They secure equality before the law. If decisions were unreported, similar cases would be decided differently and nobody would know, and Article 14 would be an aspiration.
4. They are a principal source of law. In a common law system judge-made law is real law, and the reports are where it is stated. Almost the whole of Indian tort law exists only in the reports.
5. They make the judiciary accountable. A published judgment can be criticised by the bar, by academics and by the press, and a judge writes knowing that it will be.
6. They are the material of legal education and research. Every case on this paper is known to you because it was reported.

Two law reports, with their features.

(1) All India Reporter (AIR).

• Founded at Nagpur in 1914 by V. V. Chitaley; the oldest continuously published general law report in India and the most widely cited.
• Coverage: the Supreme Court, all the High Courts and, historically, the Federal Court and the Privy Council, in separate court-wise volumes; it also prints Central and State legislation.

Two others in a line each. Supreme Court Reports (SCR), the official report published under the authority of the Supreme Court, which should be cited where a case appears in it; and Indian Law Reports (ILR), published by the State Governments under the Indian Law Reports Act, 1875, section 3 of which provides that no court is bound to hear cited, as a report of a High Court decision, any report other than the ILR where one exists.

What a properly reported case contains, and why: the court and judges, which fix the authority; the parties and date; catchwords and a headnote, written by the editor as a finding aid; the cases cited; the counsel; the facts and procedural history; the judgments verbatim, including any dissent; and the order with costs.

Deities have always played an important role in social engineering and we have to think about it carefully. In ancient tribes how did you bind people together?

Everybody had a different opinion, this could have led to tensions between members over resource allocation, job allocation. One of the ways in which the tribe was kept together was by establishing an impersonal deity, to whom all are beholden and this deity's wishes were expressed through the dreams of shamans and everybody submitted to this dream.

The shamans, by staying away from the main tribal settlement, declared they had no vested interests. By submitting to this deity's dreams members remained part of the tribe.

By rejecting the deity's dreams, you would be out of the tribe. Hence the deity or the God of the tribe played a key role in binding the tribe together, which is why every tribe had its own totemic god as the anchor of its identity.

An institution expresses its will through its board of directors and its management committee, in the same way a deity expresses its will through its management committees, the priests and trustees. In modern times, in temples like Siddhi Vinayak in Mumbai and Sai Baba Shirdi temple, there are trusts which comprise of politicians and priests, who manage the funds of these institutions.

In India, many people abhor the idea of giving taxes to the state but they have no problem in giving large amounts of money, even shares of their companies, to the deity because they feel they will receive karmic dividends. Thus, these temples are flush with funds which are then managed by the committees of the temple, which in a way embodies the will of the deity in a temple.

This has been happening since ancient times, only then the managing committee were just hereditary Brahmin families and the king. In Puri Odisha, the Gajapati kings are considered living embodiments of the divine.

It made the kingdom not the king's property but the king's responsibility. The king was merely a trustee who takes care of the deity's people.

But the quality of the deity's will like the quality of an institution's value is a function of the biases of the management committee, the male Brahmins in this case. It is time their 'divine' dreams moved out of medieval times and became more in line with the modern times.

(a) Why do Indian citizens donate large amounts of money to temples but not to the Government of India as income tax? (3 marks)

The passage says that many people in India abhor the idea of giving taxes to the state, but have no problem in giving large amounts of money, and even shares of their companies, to the deity, and it gives one reason: because they feel they will receive "karmic dividends".

In the temple, and in modern times, the deity's legal rights, desires and wishes are expressed through the hereditary priests who manage the temple, and, more broadly, through its management committees, the priests and the trustees. The passage draws an express analogy: just as an institution cannot speak and expresses its will through its board of directors and its management committee, so a deity expresses its will through its management committee. It gives as examples the trusts of the Siddhivinayak temple in Mumbai and the Sai Baba temple at Shirdi, which comprise politicians and priests.

(c) How were the tribes kept together? (3 marks)

The passage says that in ancient tribes everybody had a different opinion, which could have led to tensions between members over resource allocation and job allocation. One of the ways in which the tribe was kept together was by establishing an impersonal deity, to whom all were beholden. The deity's wishes were expressed through the dreams of the shamans, and everybody submitted to them.

The passage's answer to that assumption, which is its central argument: "life is never so simple as the gods cannot speak, just as an institution cannot speak." Because the deity cannot speak, its will is in fact expressed by the human beings who manage it, and therefore "the quality of the deity's will, like the quality of an institution's value, is a function of the biases of the management committee, the male Brahmins in this case."

Further assumptions that may be drawn from the passage as a whole: that deities functioned as an impersonal proto-institution that bound communities together and legitimised kingship, making the kingdom not the king's property but the king's responsibility, the king being merely a trustee who takes care of the deity's people; and that the arrangement had a cost, since the design of the temple cities placed the service-providers in the outlier space and they were deemed "untouchables", which the passage calls "Hinduism's darkest legacy". The author's own conclusion is that it is time these "divine" dreams moved out of medieval times and became more in line with modern times.