LEGAL
LANGUAGE
ANSWER
IN ONE OR TWO SENTENCE – 2 MARKS
Q1 What
do you mean by the term 'Complaint' under Consumer Protection Act 1986?
‘Complaint’ means any allegation in writing
made by a complainant.
Q2. Was any blood found on the clothes of Walter Graham Rowland?
No, there was no blood found on the clothes
of Walter Graham Rowland.
Q3. How
did Mahatma Gandhi plead in response to the charges framed against him?
He pleaded ‘Guilty on Each Count'.
Q4. What
are the names of newspapers, which were published by Lokmanya Tilak?
Kesari In Marathi and Maratha In English.
Q5. In
which part of Indian Constitution the Fundamental Rights are incorporated?
Part III.
Q6. What does Article 14 of the Indian Constitution guarantees?
Equality before Law (In Part III- Fundamental
Rights)
Q7. Why
did Mr. Blackburn meet the representatives of the Commissioner of the Police of
the Metropolis?
Mr.
Blackburn met the representatives of the Commissioner of the Police of the
Metropolis to tell him that Illegal gaming was taking place virtually in all
London Casinos.
Q8. What is the task of the Judges and Lawyers in interpreting the
Statutes?
The
task of the Judges and Lawyers in Interpreting the Statutes is to find out the
intention of Parliament.
Q9. What is the charge of conviction of Walter Rowland in December
1946?
He
was convicted of murdering Olive Balchin on a bombed site in Manchester by
hitting her on the head with a hammer.
Q10. What does the word ‘Locus Standi' means?
Locus
Standi means:
A place of standing, a right of appearance In
a Court of Justice It signifies:
1. a
right to bring an action and to be heard.
2. Right
to move the court.
3. Right
of a party
Q11. What do you mean by Secularism?
Secularism
means full opportunity to all persons to profess, practice and propagate
religion of their choice.
Q12. What are the four pillars of preamble to the Constitution of
India?
The
four pillars of preamble to the Constitution of India are Justice, Liberty,
Equality and Fraternity.
Q13. What do you mean by Public Interest Litigation?
Public
Interest Litigation means some litigations conduct for the benefit of the
public or for removal of some public grievances.
Q14. Why
did David John Ware confess to have committed murder of Olive Balchin?
David
was suffering from Manic Depression Psychosis. He felt that If he confess to
the crime he will be hang to death and thus he would get rid of his miserable
life.
Q15. What is the object behind the Section 125 of Criminal Procedure
Code?
The
Section 125 of Criminal Procedure Code deals with the Provisions of Maintenance
Irrespective of the religion or personal law of Parties.
Q16. Member
of Medical profession subject to provisions of Consumer Protection Act 1986?
Yes,
a member of medical profession is subject to provisions of Consumer Protection
Act 1986.
Q17. What is objective of Preamble of Constitution of India?
The
objective specified in the Preamble contains the basic structure of our Constitution,
which cannot be amended in exercise 'of the Article 368 of the Constitution.
Q18. Who
moved No confidence motion against P.V. Narsimha Rao's Government?
(P.V. Narsimha Rao vs. State) Ajay
Mukhopadhyaya
Q19. What is the meaning of ‘sedition'?
The
word ‘sedition’ occurring in Section 124A of the Code means a crime against
society nearly allied to that of treason (The crime of betraying one's
country).
Q20. Who was the unhappiest man in the trial of Mahatma Gandhi?
Judge R.S.BroomfieId.
Q21. Which four articles did Mahatma Gandhi publish?
The four articles published by Mahatma Gandhi
were:
1) Disaffection
- A virtue- 15th June, 1921
2) Tempering
with Loyalty – 29th September, 1921
3) A
Puzzle and its Solutions – 15th December, 1921
4) Shaking
the Manes - 23rd February, 1922
Q22. The word Mandamus means :
The
word Mandamus' means “We Command". It is a Judicial order issued in form
of command to any Constitutional, Statutory or Non-Statutory authority asking
to carry out a public duty imposed by law or to refrain from doing a particular
act, which the authority is not entitled to do under the law. It is popularly
known as the “Writ of Justice".
Q23. What is civil wrong?
Civil
wrong may be defined as ‘private wrong’. Private wrong cause’s Injury to an
individual or groups of individuals and the injured or aggrieved can approach
the Civil Court for the relief or redressal, for example- public nuisance.
Q24. Who can move PIL?
Any
public-spirited person can file a case (PIL) on behalf of a person or a group
of persons, whose rights are affected. It is not necessary, that the person
filing a case should have a direct interest in this PIL.
Q25. What is the distinction between a civil and criminal wrong?
Civil
wrong is ‘private wrong’ where the affected persons are individual or
individuals and the injured or aggrieved can approach Civil Court, for e.g.
Private nuisance etc. Criminal wrong is ‘Public wrong' in which the injury is
caused to the society/community or public as whole and the aggrieved can approach
State. or its subordinate authorities viz. Police, Criminal Courts, Prison and
Disciplinary Authorities etc. for the justice. For e.g., murder, rape, theft,
robbery, forgery etc.
Q26. Give meaning of the legal term ‘Ultra vires’?
Beyond one's power
Q27. How
did Mahatma Gandhi plead in response to the charges framed against him?
Gandhi said, “I plead guilty on each count of
the charge".
Q28. In
Which part of Indian Constitution the Fundamental Duties are incorporated?
Part IV A.
Q29. Write
any one of the questions came up for consideration before the Supreme Court of
India in P V Narsimha Rao vs. State.
The
questions raised were:
1. Does Article 105, clauses 1 & 2 of
the Constitution confer any Immunity on a MP form being prosecuted in a
Criminal Court for an offence involving offer or acceptance of bribe in
relation to the parliamentary proceedings?
2. Is a MP excluded from the scope of the
1988 Act for the reason that he is not a person who can be regarded as a
‘public servant' as defined under Section 2 (c) of the 1988 Act, and he is not
a person comprehended in clauses (a), (b) and (c) of sub-section (1) of Section
19 and there is no authority competent to grant sanction for his prosecution
under the 1988, Prevention of Corruption Act?
November
2008
Q29. What is the concept of Uniform Civil Code?
The
concept of Uniform Civil Code is right of uniformity In certain personal laws
of different regions. The legislature is within its rights to supersede or
supplement this personal law by a UCC.
Q30. What is the applicability of Hindu Adoption and Maintenance Act,
1956?
This
Act applies-
To
any person, who is a Hindu by religion in any of its forms or developments,
including a Vlrashaiva, a Lingayat or a follower of the Brahmo, Prarthana of
Arya Samaj, to any person who is a Buddhist, Jalna or Sikh by religion and to
any other person who is not a Muslim, Christian, Parsi or Jew by religion,
unless it is proved that any such person would not have been governed by the
Hindu law or by any custom or usage as part of the law in respect any of the
matters dealt with herein if this Act had not been passed.
Q31. What does Article 15 of the Constitution of India guarantee?
Article
15 guarantees prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth.
Q32. What do you mean by ‘Locus Standi' in a PIL?
Locus
Standi means:
1. A
place of standing, a right of appearance in a Court of Justice.
2. It
signifies a right to bring an action and to be heard.
3. Right
to move the court.
4. Right
of a party
Q34. What is ‘Defect' under the Consumer Protection Act, 1986?
‘Defect'
means any fault, imperfection or shortcoming in the quality, quantity, `potency,
purity or standard which is required to be maintained by or under any law for
the time being in force or under any contract, express or implied, or as is
claimed by the trader in any manner whatsoever In relation to any goods.
Q35. What is writ of ‘Habeas Corpus’?
Habeas
Corpus means ‘to have a body'. By issuing such a writ the court can require
that a person who is a prisoner to be brought before it, to obtain knowledge of
the reason why he has been detained and to set him free if there is no lawful justification
for his detention.
Q36. What
are the privileges of the members of the House of People as per Article 105 of
the Constitution of India?
The
privileges of the members of Parliament as per Article 105 of the Constitution
of India are there shall be freedom of speech in Parliament, no member of
Parliament shall be liable to any proceedings in any court in respect of anything
said or any vote given by him in Parliament.
Q37. What are the issues in the Shah Bano Begum Case?
The issues in the Shah Bano Begum Case were-
Whether
section 125 of the CrPC which provides maintenance to a wife (expression
includes a divorced wife who has not re-married) applies to Muslim? Under
section 127 of the CrPC if a divorced women has received the whole amount
payable to her on divorce (under any customary or personal law), the
maintenance order may be cancelled by the Court. Now can it be said that under Mohammedan
Law, Mahr (or dower) is an amount payable “on dower", which would,
therefore, absolve a Muslim husband from payment of maintenance under section
127 of the CrPC.
Q38. What is the status of the Women's Reservation Bill?
The
long wait for introducing the 33 percent reservation bill for women in the
Parliament and State Legislature was finally over as the Congress led UPA
government introduced the bill in Rajya Sabha on 7"‘ March, 2010.
Q39. What
were the names of the Articles published in Young India newspaper for which
Mahatma Gandhi was arrested?
The
four articles published by Mahatma Gandhi were:
1. Disaffection
- A virtue- 15th June, 1921,
2. Tempering
with Loyalty - 29th September, 1921,
3. A
Puzzle and its Solutions - 15th December, 1921,
4. Shaking
the Manes - 23rd February, 1922
November
2009
Q40. What is the applicability of the Special marriage Act 1954?
The
main reason behind the enactment of the Special Marriage Act was to provide a
special form of marriage for the people of India and all Indians residing in
foreign countries, irrespective of the religion or faith followed by either
party, to perform the intended the marriage. According to the Act, the bride
and the groom shall observe any ceremonies for the solemnization of their
marriage, provided they complete certain formalities this are prescribed for
the marriage by the Act.
Q41. What is the object of Article 44 of the Constitution of India?
Article
44 of the Constitution of India directs, in order to cut across religion, caste
and tribe and to build up a homogeneous nation that the State shall Endeavour
to secure for the citizens, a Uniform Civil Code throughout the territory of
India. The expression UCC literally means common code for all citizens irrespective
of their religion.
Q42. What was the decision of the Supreme Court
in ‘The MandaI Case'?
The
Constitution Bench of Judges held that the decision of the Government to
reserve 27% jobs for backward classes, provided socially advanced persons, creamy
layer among them are eliminated is constitutionally valid. The reservation
shall confine to initial appointments and not to promotions and the total
reservation shall not exceed 50%.
Q43. What is ‘Services' under the Consumer Protection Act, 1986?
The
word “service” has been defined the service of any description which is made
available to potential users and includes the provision of facilities in
connection with banking, financing, insurance, transport, processing, supply of
electrical or other energy, boarding or lodging or both, housing construction,
entertainment, amusement or the purveying of news or other Information.
Q44. Under
which sections of the Indian Penal Code was Bal Gangadhar Tilak tried?
Tilak
was prosecuted u/s 124A in respect of his article entitled ‘The Country's
Misfortune' and u/s 153A because of his article ‘These remedies are not enough’
both published in the Kesari. Two separate criminal cases were filed against
him.
Q45. What is writ of ‘Mandamus'?
The
word ‘Mandamus means "the order", The writ of mandamus is thus an
order by a superior Court commanding a person or a public authority (including
the government and Corporation) to do or forbear to do something in the nature
of public duty or in certain cases of a statutory duty.
Q46. What
are the provisions for Reservation in Education as per the Constitution of
India?
Reservation
in Indian law provides for a quota system all public and private educational
institutions, except in the religion linguistic minority educational
institutions, in order to mitigate backwardness of the socially and
educationally backward communities and the Scheduled Castes and Tribes who do
not have adequate representation in educational institutions. The Central
Government of India reserves 27% of higher education and individual states may
legislate further reservation Reservation cannot be exceeded 50%, as per the
rulings give by the Supreme Court.
Q47. What
are the provisions for Reservation of Seats for S.C. and S.T. in the House of
People?
The
number of seats reserved in any State [or Union territory for the Scheduled
Castes or the Scheduled Tribes under clause (1) shall bear, as nearly as may
be, the. same proportion to the total number of seats allotted to that State
[or Union territory ln the House of People as the population of the Schedule Castes
in the State [or Union territory] or of the Schedule Tribes in the State [or
Union territory] or part of the State (Union territory), as the case may be, ln
respect or which seats are so reserved, bears to the total population of the
State (Union territory).
Q48. What is Judicial Activism?
It
is a tradition of law, that a judge either allows a case dismisses it,
depending upon the merits of, the case. But, he never travels beyond the domain
of the case. He exercises a limited jurisdiction. But in the recent years the
Supreme Court as well as all the High Court’s has adopted a creative approach Judges
have travelled beyond the domain of the case. They have exercised an
unconventional jurisdiction. Such a creative and unconventional exercise of
‘jurisdiction is nowadays popularly called as ‘Judicial Activism'
Q49. What Fundamental Right is guaranteed under Article 21?
Article
21 of the Constitution says that ‘No person shall be deprived of his life or
personal liberty except according to procedure established by law’.
Q50. What do you mean by Caveat Emptor?
Caveat
Emptor is a Latin expression ‘which means ‘buyers beware' or ‘buyer takes
care'. In other words, it is duty of buyer to take every possible care to
satisfy him about the quality and fitness of goods.
Q51. What
do you mean by the term ‘Complain’ under Consumer Protection Act, 1986?
‘Complaint’ means any allegation in writing
made by a complainant.
Q52. Write two issues raised in P.V. Narshimha Rao case.
The
question raised were –
1. Does
Article 105, clause 1 & 2of the constitution confer any immunity on a MP
from being prosecuted in a Criminal Court for an offence involving offer or acceptance
of bribe in relation to the parliamentary proceeding?
2. is a
MP excluded from the scope of the 1988 Act for the reason that he is not a
person who can be regarded as a 'Public servant
as defined under Section 2(c) of the 1988 Act, and he is not a person
comprehended in clauses (a) (b) and (c) of sub-section (1) of Section 19 and
there is no authority competent to grant sanction for his prosecution under the
1988 Prevention of Corruption Act?
Q53. Why the trial of Tilak was transferred from Pune to Bombay?
Demonstrations
the venue of trial was transferred from Pune to Bombay Write two differences
between Civil and Criminal Courts The civil court decides civil cases and criminal
courts decide criminal courts The High Courts of all states and Supreme Court
has authority over both civil and criminal courts. Below the High Court the
hierarchy of criminal and civil courts is differentiated The hierarchy of
criminal courts is Session Courts Additional Sessions Courts, Chief Judicial
Magistrate and Magistrates whereas hierarchy of civil courts is District Courts
Civil Judge Senior Division, Civil Judge Junior Division Chief Metropolitan
magistrate.
Q54. Name the two newspapers which published Tilak's articles.
Keseri in Marathi and Maratha in English.
Q55. What is judicial precedent?
A
precedent Is a statement of law, found in the decision of a superior court,
which decision has to be followed by that court , and by courts inferior to it.
Q56. What is a fundamental right?
The
rights available under Articles 12 to 35 are called fundamental rights as they
are most essential for the attachment by the individual of his full
intellectual, moral and spiritual status. Fundamental rights were deemed
essential to protect the right and liberty of people against the encroachment
of the power delegated by them to their government.
Q57. What is a trial?
Trial
is judicial examination of issues between the parties, whether they are of law
or fact. When charge has been read and explained to the accused and he pleads to
it the Inquiry becomes a trial.
Q58. What is appropriate laboratory?
Appropriate laboratory -means a laboratory or
organization -
Recognized
by the Central Government; Recognized by a State Government, subject to such Guidelines
as may be prescribed by the Central Government in this behalf; or Any such
laboratory or organization established by or under Any law for the time being
in force, which is maintained, financed or aided by the Central Government or a
State Government for carrying out analysis or test of any goods with a view to
determining whether such goods suffer from any defect.
Q59. What is deficiency in service?
Deficiency
in service means any fault, imperfection, shortcoming or inadequacy in the
quality, nature and manner of performance which is required to be maintained by
a person in pursuance of a contact or otherwise in relation to any service.
Write
Short Notes on the following – 6 marks
1.
Mandal
Commission Report.
The ' Constitution of India (Part XVI)
mentions “special provisions relating to certain classes". Apart from
listing special provisions' for the scheduled Castes, Scheduled Tribes and Anglo-Indian
community (which took the form of reservations in Lok Sabha, Legislative
Assemblies of states, in services and Posts and Education and Grams etc.),it
also (vide Article 340 of the constitution) makes a provision for appointment
of a commission to investigate the conditions of socially and educationally
backward classes, popularly known as Other Backward Classes(O.B.C) within the
territory of India.
A commission popularly known as the Mandal
Commission was appointed to look into grievances of the Backward Classes. The chairman
of this Commission was Mr. B.P. Mandal. The Mandal Commission submitted Its
report in August, 198O.The report supported the system of caste-based
reservations, identified over 450 backward classes, comprising 52% of the
country’s population and further recommended reservation of 27% of the seats in
academic institutions and jobs in Government addition to the existing 22.5%
jobs quota reserved for SC and ST, In 1990, Mr. V P Singh, the Prime Minister
of India of the National Front Government, accepted the recommendations of the
Mandal Commission and committed his Government to its implementation. ‘He announced
that 27% of the jobs In the Central Government and Public Sector Undertakings
will be reserved for the socially and educationally backward classes popularly
known as the OBC.
In the first phase, the benefit of
reservation has been extended to the castes and communities which are common to
the lists of the Mandal Commission Report as well as the State Government
Lists.
2.
Complainant'
under the Consumer Protection Act, 1986.
According to Section 2 (b) of Consumer
Protection Act, 1986 "Complainant" means -
1. A
consumer; or,
2. Any
voluntary consumer association registered under the Companies Act, 1956 (1 of
1956), or under any other law for the time being in force; or
3. Central Government or any State Government,
who or which makes a complaint;
4. One
or more consumers where there are numerous consumers having the same interest;
3.
Discuss
Minerva Mill's Case.
Minerva
Mills Ltd. Vs. Union of India, AIR 1980 SC 1789:
Instant case refers to power of the
Parliament to amend the Constitution under Article 368 of the Constitution. It
was Laid down in this case that harmony (balance) between Fundamental Rights
(Part III) and Directive Principles of State
Policy
(Part IV) forms part of the basic features of the Constitution.
Facts of the Case:
The petitioners in the instant case are the
shareholders and creditors of the Minerva Mills Ltd. In pursuance of “the Sick Textile
Undertakings (Nationalization) Act, 1974 passed by the Central Government,
Minerva Mills Ltd., was nationalized. The petitioners challenged the validity
of the impugned Act as it violated Articles 14, 19(1) (f) & (g) and 31(2)
of the Constitution. The petitioners also challenged the constitutional validity
of the Constitution (39th) Amendment Act, 1975 and Sections 4 and
Section 5 of the Constitution (42nd Amendment) Act, 1976 on the
ground that the Amendments would destroy the basic features of the
Constitution. It was contended that Article 31-C, which was inserted by the
Constitution (25th Amendment)
Act, 1971 as amended by Section 41 of the 42nd Amendment would destroy basic features of the
Constitution.
Judgment:
The Supreme Court by 4:1 majority struck down
Article 31 C as amended by Section 4 of the 42nd Amendment, as unconstitutional
on the ground that it' destroys the “basic features" of the Constitution.
The Court held that Section 4 of the 42nd Amendment was beyond the amending
power of the Parliament and was void since it destroyed 'the basic features of the
Constitution by a total exclusion of challenge to any law on the ground that it
was inconsistent with or took away or abridged any of the rights conferred by
Article 14 or 19 of the Constitution. The majority observed that the
Constitution Is founded on the bedrock of the balance between Part III and Part
IV. To give absolute primacy to one over the other is to disturb the harmony of
the Constitution, which is essential feature of the basic structure. The Court
held that the unamended Article 31 C is valid, as it does not destroy any of the
basic features of the Constitution. The unamended Article 31 C gives protection
to defined and limited categories of laws, i.e. specified in Articles 39(b) and
(c).
Principles:
The
principles involved in the instant case are:
1. Section 4 of the 42nd Amendment Act is
beyond the amending power of the Parliament and is void since it damages the
basic or essential features of the Constitution, and takes away or abridges any
of the rights conferred by Article 14 or 19 of the Constitution.
2. Section 55 of the 42nd Amendment Act is
beyond the amending power of the Parliament and is void since it removes all limitations
on the power of the Parliament to amend the Constitution.
3. The validity of Clause (2) to (6) of
Article 19 will be gravely imperiled because those clauses will also then be
Liable to be struck down as abrogating the rights conferred by Article 19(1), which
are an essential feature of the Constitution.
4.
Write
a note on Public Interest Litigation (PIL).
It is also known as ‘Social Interest
Litigation, The concept of ‘Public Interest Litigation’ was initiated in Akhil
Bhartiya Soshit Karamchari Sangh (Railway) vs. Union of India, (AIR 1981 SC 298)
by V.R. Krishna Iyer, J., wherein an unregistered
association
of workers was permitted to institute a writ petition under Article 32 of the
Constitution for the redressal of common grievance. In simple words, public
interest litigation means any public-spirited citizen can move/approach the
Court for the public cause (in the interests ofthe public or public welfare) by
filing a petition:
A. In
Supreme Court under Article 32 of the Constitution;
B. In
High Court under Art. 226 of the Constitution; and
C. Under
Sec. 133 Cr.P. C. before the Court of Magistrate.
Public
interest litigation or social interest litigation today has great significance
and drew the attention of all concerned. The traditional rule of ‘Locus Standi’
that a person, whose right is infringed alone can file a petition, has been
considerably relaxed by the Supreme Court in its recent decisions. Now, the court
permits public interest litigation at the instance of public- spirited citizens
for the enforcement of constitutional or legal rights. '
Justice
Krishna Iyer in Fertilizer Corporation Kanigar Union vs. Union of India (1981)
enumerated the following reasons for liberalization of the rule of Locus
Standi:
1. Unrelated
interference with individual’s rights.
2. Social
justice warrants liberal judicial review of administrative action.
3. Restrictive rules of standing are
antithesis to a healthy system of administrative law.
5.
Write
a short note on Appointment of Judges?
Article 124 of the Constitution provides for
a Supreme Court of India, consisting of a Chief Justice of India and Twenty
Five (recently Increased to 30) other Judges, who are appointed by the
President. Parliament however, has the power to increase the number of Judges.
Every Judge of the Supreme Court shall be appointed by the President by warrant
under his hand and seal after consultation with such of the Judges of the
Supreme Court and of the High Courts in the States as the President may deem
necessary for the purpose. The Judges of the Supreme
Court
hold office until the age of 65. A Judge may, by writing under his hand
addressed to the President, resign his office. It. has also been provided that
the age of a Judge of Supreme Court, is to be determined by such authority and
in such manner as Parliament by law provide.
Qualifications: A
person shall not be qualified for appointment
as
a Judge of the Supreme Court unless he is a citizen of India and -
a. has been
for at least five years a Judge of a High Court or of two or more such Courts
in succession; or
b. has
been for at least ten years an advocate of a High Court or of two or more
such courts in succession;
or
c. is, in the opinion of the President , a
distinguished jurist, Every High Court Judge is to be appointed by the
President by warrant under hand and seal after consultation with the Chief Justice
of India, the Governor of the State and the Chief Justice of the High Court,
and holds office until he attains the age of sixty two years. He may, by
writing under his hand addressed to the President, resign his office. If any
question arises to the age of a Judge of a High Court, the question is to be
addressed by the President, after consultation with the Chief Justice of India,
and the decision of the President
is final.
6.
Writs.
Writ
:
An individual has the right to move the Supreme Court (under Article 32 of
Constitution of India) directly in case of any violation of a Fundamental Right
and the High Court (under Article 226 of Constitution of India) and, the
Supreme Court and High Courts issue appropriate writs to enforce such rights.
In law a writ is a formal written order issued by government entity in the name
of the sovereign power, In most cases, this government entity is a Court. There
are two kinds of writs-
Warrants
and Prerogative writs.
Prerogative
Writs : In English Law, the prerogative writs are a class of
writs originally available to the crown, but which were later made available to
the King’s subjects through the courts. The prerogative writs are a means by
which the crown, acting through its courts, affects control over Inferior
courts or public authorities throughout the kingdom. The writs are issued in
the name of the crown, which is the nominal plaintiff on behalf of the
applicant. .
There are six types of
writs:
Habeas Corpus:
which means ‘to have a body’. By issuing such a writ the court can require that
a person who is a prisoner to be brought before It, to obtain, knowledge of the
reason why he has been detained and to set him free if there is no lawful
justification for his detention. If a person is detained unlawfully, he or his
relatives or friends can move the court by filling an application under Article
226 in High Court or under Article 32 in Supreme Court for the writ of Habeas
Corpus.
Mandamus:
means ‘We command'. It is a Judicial Order issued in form of command, which can
be issued to any inferior court or to any public or quasi-public authority,
which has refused to perform its legal duty. It is a high prerogative writ of a
most extensive remedial measure. It is popularly known as the ‘Writ of
Justice’.
Certiorari: is
a writ or order issued from a superior court calling upon the record of a
proceeding in an inferior court for review or commanding it to certify the
cause, pending before it, to the end that justice may be done. This writ
confers power on the
Supreme
Court and High Courts, over the lower courts to correct illegality of their
decisions. If it is found illegal, the decision is quashed. But nothing is
substituted to such decision quashed.
Quo Warranto:
means “By What Authority'. It is judicial order asking a person, who occupies
public office, to show by what authority he holds the office. If it is found
that the holder of the office has no valid title, then the writ of Quo Warranto
is issued to him to vacate the office.
Prohibition:
is an order issued by a higher court forbidding a lower court from a proceeding
in a suit deemed to be beyond its jurisdiction. It is a remedy against the
encroachment of jurisdiction.
Precedendo: is
a writ that sends a case from an appellate court to a lower court with an order
to proceed to judgment. “The .writ of procedendo is merely an order from a
court of superior Jurisdiction to one of inferior jurisdiction to proceed to judgment.
It does not in any case attempt to control the inferior court as to what that
judgment should be".
7.
Principles
of Natural Justice.
In modern times the
Importance of natural justice has increased tremendously. The basic meaning of
natural justice is evenness fairness and justice. It ensures fair
administrative procedure and protection of interests of the individuals. Since the
administration has acquired vast powers to affect private rights and there is
lack of adequate substantive safeguards, some protection to people’s rights may
be expected by making the bureaucracy follow due procedures in discharging its functions.
These rules of procedural fairness have now become Integral part 06
administrative process and the expectations of good decisions have brightened.
The
principles of Natural Justice consist of:
1. The
‘Audi Alteram Partem’ rule that is, right of hearing or nobody should be
condemned unheard. Justice will become meaningless lf person, against whom
justice has been invoked, has no opportunity to state his case.
2. The
other principle of natural justice is that no men can be a judge in his own
case. No tribunal can be a judge in his own cause and any person, who sits in
judgment over the rights of others, should be free from any kind of bias and
must be able to bear an impartial and objective mind to the question in Controversy.
The Supreme Court has applied these
principles in a large number of Constitutional cases and has held that lf the
State warns to punish any citizen, it must give him a. notice and must hear
him. The application of principle of justice to particular circumstances
depends on what naturally seems to be just and right as contrasted with the
application to those circumstances of a rule of law which may seem unfair.
8.
Ratio
decidendi as mentioned in Black Burn v/s Attorney General (1971) 1 WLR 1037.
Ratio Decidendi of a case can be defined as
the material facts of the case plus the decision there on. The legal principle
which has been formulated and applied for deciding a point of controversy in a
case is called ratio decidendi. It literally means reason of the decision. It
Is a source of law only in the sense that It lays down the law finally in
regard to a specific matter In issue. The underlying principle of a decision
which forms its authoritative element is its ratio decidendi. Mr. Blackburn was
at one time a Member of Parliament. He always concern for the matter of public
and has come before the Court of appeal on many occasions and always ln person.
Nearly always his Interventions proved to be useful. In this case the question
was that whether a person concerned about public matters have a Locus Standi or
not. In this case he raised a matter of great constitutional significance. When
the Government was about to join the Common Market, he brought an action in the
Courts challenging the Governments right to do it. He sought a declaration
that, by Signing the Treaty of Rome, the Government would be surrendering in
part the sovereignty of the Crown in Parliament; and that it had no right to do
so. The Court heard that argument and rejected it. But in this case he do have
a Locus Standi but here he was not ruled out on the ground that he has no
standing; but was ruled out on the ground that these Courts will not impugn the
treaty making power of Her Majesty.
9.
Service
under ‘Consumer Protection Act’.
“Service” as under Section 2(1)(o) of the
Consumer Protection Act, 1986 means service of any description which is made available
to potential (users and includes, but not limited to, the provision of)
facilities in connection with banking, financing, insurance, transport,
processing, supply of electrical or other energy, boarding or lodging or both,
(housing construction), entertainment, amusement or the purveying of news or
other information, but does not include the rendering of any service free of
charge or under a contract of personal service. Repudiation of claim in
insurance contract whether deficiency in service:
United India Insurance Co. Ltd. Vs. Pushpalaya
Printers (2003) 4 S.C.C.694.
The relationship of teacher and student of an
educational institution is not a service on hire because student is not such a consumer
which is linked any way with the buyer of any economic goods and hire has not
been linked with education, teacher and student (N. Taneja vs. Calcutta
District Forum AIR 1992 Cal. 95.)
Grant of overall facility by bank to its
customer, being not without consideration, amounts to providing of
“service"
(Vima/Chandra Grover vs. Bank of India AIR
2000 SC 2181).
Institution of suit or other proceedings in a
civil Court after payment of “Court fee" cannot be said to be equal to
“hiring” or “availing of" service of a Court after paying consideration
and, thus, complaint is not maintainable before consumer forum on ground that
there were deficiencies In set up of the civil judicial administration (Akhil
Bhartiya Grahak Panchayat vs, State of Gujarat(1994) 1 CPJ 114 (Nc)).
The services rendered by the Government
servant under the Central Government Health Scheme are not covered by the term
“service" as defined in the Act (Additional Director, CGH5 vs. RVL Bhutani
(1996) 1 CPJ 255 (NC)).
An employee, who is a member of Employee's
Provident Fund Scheme, Is a consumer and duties performed by Regional Provident
Fund Commissioner under such scheme is “service” and, thus, in case of delay in
release of provident fund, complaint for deficiency/ service, is maintainable
(Regional Provident Fund Commissioner vs. Shiv Kumar Joshi AIR 2000 SC 331).
10. Attorney General v/s. Independent
Broadcasting Authority (1973) QB 629
The case Attorney General vs Independent
Broadcasting Authority came to House of Lords under the Leadership of Long Denning.
It was a case of Locus Standi' One Mr. Ross McWhirter was a public spirited
citizen who was always concerned for public good. He came to court representing
that it was a matter of great urgency. The Independent Broadcasting Authority
were proposing that very evening to broadcast a television film which did not
comply with the statutory requirements laid down by Parliament He produced
evidence, in the shape of newspaper reports which showed that it contained
matter which offended against decency and was likely to be offensive to public
feeling He said that he had put that evidence before the Attorney General’s
office, but the Attorney General had declined to take action ex-officio. So he
had himself come to the courts to seek the injunction. He claimed that he. had
a sufficient interest. He was himself the owner of a television set; he had
paid licensees. When he switched it on, he was entitled to expect that the programme
would comply with the statutory requirements.
There were thousands like him sitting at home
watching. All were entitled to have their privacy respected. The first point
came was that does Mcwhirter had any locus standi to come to court at all. This
is a point of constitutional significance. It was a matter of principle that
the citizen who is aggrieved has a locus standi to come to the courts. He can
at least seek for declaration If he did not get injunction, The court states
that there was evidence from which it could be inferred that the Independent
Broadcasting Authority had not done their duty; that the Attorney General had
refused to take action himself ex-officio; and that there was no time to do all
things necessary for a realtor action. It was a case of last resort and court
hold that they are entitled to hear his and they did. It was a matter of
constitutional principle that if there is good ground for supposing that a
government department or public authority is transgressing the law, or is about
to transgress it, in a way which offends or injures thousands of people, then
in the last resort any one of those offended or injured can draw it to the
attention of the 'courts of law and seek to have the law enforced. But this is
only in the last resort when there is no other remedy reasonably available to
secure that the law is obeyed.
In the last resort, if the Attorney General
refuses leave in proper case, or improperly or unreasonably delays in giving leave,
or his machinery works too slowly, then a member of the public who has a sufficient
interest can himself apply to the court itself. He can apply for a declaration
and, in proper case, for an injunction, joining the Attorney General, if need
be, as defendant. In these days when government departments and public
authority have such great power and influence, this is a most important
safeguard for the ordinary citizens of the country; so that they can see that
those great powers and influence are exercised in accordance with law
11. What is the difference between ‘Contract
for Service' and ‘Contract of Service’ under the Consumer Protection Act?
Explain with the help of Judgments in
Indian Medical Association v/s V.P. Shanta?
There is a well-recognized distinction
between a "contract of service" and a "contract for
service". A "contract for services" implies a contract whereby
one party undertakes to render services e.g. professional/technical services,
to or for another in the performance of which he is not subject to detailed
direction and control but exercises professional/technical skill and uses his own
knowledge and discretion. A "contract of service" implies relationship
of master and servant and involves an obligation to obey orders In the work to
be performed and as to its mode and manner of performance. The expression
"contract of service" has been deliberately used in the exclusionary
part, because an employer cannot be regarded as a consumer in respect of the service
rendered by his employee in pursuance of a contract of employment services
rendered by his employee in pursuance of a contract of (1995) CPJ 1 (SC) - In this case, the Supreme
Court observed:
The definition of 'service' in Sec. 2(1)(o)
can be split up into three parts the main part, the inclusionary part and the
exclusionary part While the main part is explanatory in nature and defines service
to mean service of any description which is made available to the potential
users, the inclusionary part includes specific instances as mentioned in the
section. The exclusionary part excludes rendering of any service free of charge
or under a contract of personal service.
Indian
Medical Association vs. V.P. Shantha & Others
By affixing the adjective 'personal' to the
word 'service', the nature of the contract which are excluded is not altered. Though
the relationship between doctor and a patient carries with it a certain degree
of mutual confidence and trust and, therefore, service so rendered can be regarded as a
service of person nature but since there is no relationship of master and servant the contract cannot be treated as a
contract of personal service but is a contract for services, thus not covered
by the exclusionary part of Sec. 2(1)(o). The service rendered by medical
officer to his employer under the contract of employment would be covered by
the exclusionary part, as it is a contract service The Court further clarified
that a service rendered free
charge
cannot be treated as a service under Sec. 2(1)(o) for the reason that it has
been rendered by a medical officer in the hospital who receives salary for
employment in the hospital There is no direct nexus between the payment of
salary to the medical officer by the hospital administration and the person to whom
service is rendered. The court also noted that payment it charges by the insurer
or employer of the patient taking the treatment would not take the service out
of range of paid customer services
12. Difference between Common Law and
Equity.
Earlier, in England there were two kinds of
courts namely Equity Courts (Court of Chancery) and Common Law Courts Equity
Courts used to decide cases applying the principles of equity i.e., justice,
equality and good conscience. The most important branch of equity is the law of
trusts, but equitable remedies such as specific performance and injunction are
also used. Whereas the common law courts used to decide cases based on common
law i.e., the principles /rules evolved by the
judges
during judicial pronouncements. Hence, the common law is also known as
‘Judge-made' law. It is law that is not result of legislation but is created by
the custom of people and decision of judges. In case of conflict or variance
between the rules of common law and the rules of equity, equity comes to
prevail, This was by means of what was called a common injunction. Equity works
behind the scenes of the common law action; and in some cases the common law
principles were theoretically left intact, but by means of this intricate
mechanism they were superseded by equitable rules in all cases of conflict and
variance. The result justified the sarcasm of the critic who said that in England
one court was set up to do injustice and another to stop it. under common law
the laws are formal and legal whereas under equity the laws are informal which
are valid only in equity. For nearly all practical purposes these equitable
laws are as good as legal laws and they are habitually relied on, even though
they are void at law.
13. Locus Standi.
Locus
Standi: The expression ‘Locus Standi' means ‘Right to move the
Court’. Generally, a person whose legal right is infringed alone has a right to
move the Court. However, there are certain circumstances, In which any member
of the public can have a right to move the Court. Articles 32 and 226 of the Indian
Constitution do not prescribe specifically such persons or class of persons,
who have a right to move the Court. Thus, the matter of ‘Locus Standi' lies
within the discretion of courts (whether to adopt liberal or restrictive
attitude). Thus the Traditional Rule is, the person whose legal right is infringed
alone can move the court. This narrow view leads to certain problems as stated
below:
a. There may not be any one to challenge an
arbitrary administrative action. Such arbitrary actions can be happily continued
by the Administrative Authorities.
b. In a developing country like India, most
of the people cannot afford a right to move the Court due to poverty and
illiteracy. The narrow view, confining a particular person a right to move the
Court has been relaxed by the courts through ‘Public Interest Litigation'.
Traditionally only a person whose own right
was in jeopardy was entitled to seek remedy, when locus standi extended to public
actions, a person asserting a public right had to show that he suffered Injury
over and above other members of the
public had generally suffered. Thus lt was
very difficult to redress injures as some pollution such as air or water
pollution affect large community. But now locus standi has broadened, anybody
who is interested in the subject matter (in cause of action) also can file the
PIL. Close relative or any person interested in civil liberties and democratic
rights can file PIL on behalf of victims. A tax-payer for example, may compel
municipal authorities to perform their public duty although the tax-payer had
suffered no individual harm.
Case Law: Mr. K. Ramdas Shenoy vs. Chief Officers.
Town Municipal Councils, Udipi AIR 1974 SC 2177, a tax payer's right to
challenge an illegal sanction for convert a building into a cinema hall was
upheld by the Supreme Court. The standing which permits the poor and oppressed
to be represented by volunteers may be described as representative standing
(Order 1, Rule 8, CPC 1908). In a report on ‘National Judicature - Equal
Justice -Social Justice', Justice Krishna Iyer says PIL as a channel by which
the poor and oppressed could gain access to the Courts and judge fashioned
remedies. The narrow view, confining a particular person a right to move the
Court has been relaxed by the courts through ‘Public Interest Litigation'.
14. FRIVOLAUS
COMPLAINT (VEXATIOUS):
A
frivolous complaint is one without any foundation and is made without any
reasonable or probable cause solely with a view to annoy, oppressing, waxing,
and harassing the respondent.
If a
complaint filed before a consumer court is found to be frivolous it may be
dismissed for reason to be recorded in writing. In such cases the complainant
is disorder to pay to the opposite party, such case as may be specified in the
order not however exceeding Rs. 10,000.
15. RES IPSA
LOQUITOR (THINGS SPEAKS FOR ITSELF):
In
case where maxim res ipsa loquitor (things speaks for itself) applies as when a
sponge or a forceps is lift behind in the abdomen during the surgery the surger
would be liable for negligence and compensation would be awarded to the patient
or to his / her hires.
Solicitors and lawyers
Daivathan V/s M. Bhalachandra.
ANSWER
IN BRIEF – 12 MARKS
UNIFORM CIVIL CODE (UCC)
Article
44 of constitution of India lays down on important directive principle of state
policy namely, that the state shall endeavor to secure for its citizen, a uniform
civil code throughout the territory of India.
Today
citizen of India are governed by different personal Laws. Base on their
religion & community. A UCC ensure that all citizen of India are governed
by the same set of secular civil laws in matters of Marriage, Divorce,
Maintenance, Adoption, etc. under the present law Hindus are bound by the law
to practice Monogamy as Bigamy (having more than one wife) is an offence,
whereas Muslims are allowed by, thus personal law to have 4 wives at a time.
Similarly, whereas Hindus have a comprehensive enactment on adoption, this
concept is not recognizing by the personal laws of Christians & Parsis, if
UCC is enacted all citizen of India would be governed by the same law in all
such matters.
The
objective underline a UCC is to enhance National Integration by eliminating
contradiction based on religious ideologies; all communities in India would
then stand on a common platform on civil matters like Marriage & Divorce
which are currently governed by Divorce personal laws. The question arise is if
the same law of contract and fact applies to a Hindu and Muslim, why not a same
law of Marriage and Divorce?
As
observed by Supreme Court in Sarla Mudgals case the implementation of UCC is
imperative for the protection of oppressed as well as the promotion of National
Integrity and unity. It is based on the concept that there is no logical
connection between religion and personal law in a civilized society. Marriage,
Divorce, Adoption, Succession and the like are matters of secular nature and
can therefore be regulated by law applicable to all people in a country.
Time
and again the judiciary has given a loud and clear call for the implementation
of UCC in India. In 1985, in Mohammed Ahmed Khan V/s Shah Bano Begum Popularly
known as Shahbanu’s case, the Supreme Court reminded the parliament in very
strong terms of frame UCC. In that case, poverty stuck Muslim woman who was
given a triple divorce by her Muslim husband, claimed maintenance from her
husband u/s 125 of CrPc. The Supreme Court held that she did not have such
right and observed that even the Quran impairs on obligation on a Muslim
husband to make a provision for his Divorce wife.
UCC IN GOA:
While
the entire country swings in uncertainty over the implementation of UCC, the
tiny state of Goa has shown the right path to the rest of the country. While a
wide civil code is still being debated, a positive step in this direction has
already been taken several years ago, by the state which has enacted a set of
family laws which applies to all family in Goa. There is no discrimination in
this code between Hindus or Muslim or Christians or any other community. Based
on Portuguese civil code 1876 it governs personal matters like Marriage,
Divorce, Succession, guardianship, etc. and embraces the concept of general
equality.
Under
this code every birth, death and marriage is compulsory registrable. The code
provide equal decision of property between husband and wife and also between
children, irrespective of children it enacts the rule of Monogamy and Muslims
and whose marriage are registered in Goa can neither take a second wife nor
divorce the existing one by pronouncement of Talak.
With
regards to distribution of property at the time of divorce each spouse is
entitled in case of divorce to half a share in property. As far as succession
is concerned in case of death of spouse, it is provided that ownership of half
the poverty is to be retained by the serving spouse and other half is equally
divided among the children, irrespective of whether they are male or female,
and whether they are unmarried or have got married and left the house. This
provision has disable parents from totally disinheriting their children,
because the children fall in the category of what was known as mandatory heir.
CONSUMER
PROTECTION COUNCIL AND RIGHTS OF CONSUMERS:
Under
section 4 of the act a council known as central consumer protection council
(Central Council) is to be establish by the central government by a
notification published in the official gazette.
The
main objects of central council lead down in section 6 of the act are to
promote and protect the rights of consumers.
I.
Right to protected against the
marketing of goods and service which are hazardous to life and property (Right
to protected).
II.
Right to be informed about the
quality, quantity, potency, purity, standard and price of goods or services or
as the case may be so as to protect the consumer against UTP.
III.
Right to be assured, wherever
possible access to a variety of goods and services at competitive prices.
IV.
Right to be heard, and to assured
that consumer interest will receive due consideration at appropriate forum.
V.
Right to seek redressal against UTP
or restrictive trade practice or unscrupulous exploitation of consumers.
VI.
Right to consumer education.
AIMS AND
OBJECTIVES OF CONSUMER PROTECTION ACT –
In
the olden days the application of Latin maxim let the buyers be aware than
severally restricted the rights of the consumer and had put him the mercy of
the seller. However in the course of time several exceptions to the maxim were
recognized which had the effect of curtailing the impact of this rule on the
helpless buyers at the same time the need to protect the consumer was widely
felt as mere and mere unscrupulous traders and service providers, armed with
market knowledge and manipulation skills, exploited the gullible consumers.
In India the problem is that the
consumers is not only exploited by private enterprises but even by the
government enterprises it is well known that Indian consumers often preference
to suffering sickness rather than knock the door of justice. The Indian
consumer, tolerant as he is by nature, has always been hasistant to move the
courts of law for redressal office problem given conditions in which civil
court function he is not desire more time in court room than in his office or
place of business. In India at least defective goods, deficient service and
misleading advertisement have become a part of life.
The need was thus arise to the
protection of consumers and recognition of rights. The passing of consumers
protection act file this lacuna in 1986 and made it possible for the country to
reach the democratic good of “Justice within reach”
The main object and purpose of this
legislation is to rendour simple inexpensive and speedy justice through three
tires system of cousy judicial machinery, District, State, and National levels.
Objects
and purpose of consumer protection act as stated in problem is :
1. To provide better protection of interest of consumer
2. To make provision for establishment of consumer council and
activities for the settlement of consumer dispute.
3. The matter connected there with.
UN has recommended that all countries of the world should
develop strengthen policy keeping in mind the guidelines set out in this
respect the government enjoying the guidelines for all country for ensure.
1. Physical safety of the consumers
2. Protection of interest of consumers
3. Consumer access to information needed to make informed
choice
4. Measure enabling consumers to obtain readers
5. Distribution of essential goods and services.
6. Satisfactory production and performance standards
7. Adequate business practices and informative marketing
8. International consumers co-operation in the field of
consumers protection
To conclude it can be said that we have come the long way
from the
Doctrine of caveat emptor. Thanks
to the celable movement of consumerism where the consumer is said to be put on
pedestal, the maxim then seems to be more appropriate today is caveat venditor
(let the seller be aware).
Black Born Case
:
Albert Raymond black born was a British politician belonging
to labor
Party, who was also the member of
parliament he is remember today as a political activist who filled several writ
petition against public official in England.
The
black born case broadens the rule of locus standee in the case of writ file by
individual against public official. Under Black Born standard any person who is
adversely affected by the action of any government official in making a
mistaken policy decision can be given a hearing by the court. The activity was
involved in several cases. Some of the one given below:-
R
V/s Commissioner of police of metro police.
In this case the court of appeal allows Black Born to seek a
writ of Mandamus to compel the police commissioner to enforce the beating and
gambling law against gambling clubs.
Black
Born V/s Attorney of General.
In
this case the court of appeal held that Black Born did have Locus Standee to
challenge the decision of British Government to join the EU Common Market, on
the merit of the case Black Born did not succeed.
R
V/s Commissioner of police of metro police.
Here
the court of appeal allows the Black Born to seek a write of Mandamus to compel
police to enforce law against obscene publication.
In Black Born V/s Attorney General
case. Black Born brought an action against Attorney General in which he sought
declaration to the effect that by signing the treaty of Rome, Her majesty
Government would be surroundary a part of sovergnity of the crown. He contended
that in so doing the government would also be acting in breach of law.
Govriet Case
Govriet
V/s Union of post office workers.
Major John Govriet was retired British Army officer and a
Political Activist. He was the
founder of National Association for Freedom (NAFF) --- which later came to came
to be known a Freedom Association. He is remember today for pioneering the use
of legal action to oppose action of trade unions and other groups which in his
opinion were interfering with personal rights and liberty.
On
January 13, 1977 the general secretary of Union of Post Office workers (UPW)
announced on TV that his union executive committee had resolved to boycott all
telephone calls, mails, and telegrams to and fro South Africa in protest
against apartheid practiced in that country. If carried out this resolution
would be a violation of section 63 of Post Office Act, 1953. This TV news
annoyed the Major Govriet and on the following day i.e January 14, he appealed
to the Attorney General for letters permission to institute “Realtor
Proceeding” against UPW.
In
matter of public interest it is the Attorney General who files legal proceeding
however if for some reason he does not and other person may do so with the
permission of Attorney General this is known as “Realtor Proceeding” or
“Realtor Action”
Perhaps
for the first time in record, the Attorney General refused his consent to the
proposed realtor action by Govriet. Quit undeterred Govriet brought an action
in his own name and since time was running out he applied on the same day to
the Judge in chambers for an interim injunction to restrain the proposed
boycott. The Judge Stocker J dismiss this application because in his view Govriet
had no Locus Standee to file the action given the fact that the Attorney
General in his own wisdom has refused his permission.
Govriet
immediately file an appeal in the court of appeal where Lord Denning who was
the Judge, where Lord Denning heard the argument and granted a temporary
injunction. He summoned the Attorney General – Samuel Silkin and observed that
“ it was very doubtful whether Attorney General had directed himself properly”.
When
Silkin before the court he insisted that the court of appeal had no power to
examine his reason for refusing consent because this was the role of
parliament. After a FOUR day hearing Govriet succeeded that in establishing
that an individual could challenge the Attorney General refusal.
Lord
Denning declared “Be you ever so high the law is above you” Lord Denning ruling
was over turn by the house of lords in Govriet V/s Union of post office workers
also known as Govriet Case. It caught the imagination of Mrs. Margrate Thatcher
who was then the leader of opposition in the English Parliament when Margrate
Thatcher came to the power and become the Prime Minister she effectively
clipped the wings of several trade unions of Britain.
