INFANCY AS GENERAL DEFENCE - Section 82 AND 83 IPC
COURSES FOR UPSC LAW OPTIONAL MAINS COURSES FOR JUDICIAL SERVICE - STATE SPECIFIC
COURSES FOR UPSC LAW OPTIONAL MAINS COURSES FOR JUDICIAL SERVICE - STATE SPECIFIC
CONSIDERATION – IMPORTANCE + PREVIOUS YEAR QUESTION DISCUSSED IMPORTANCE OF THE TOPIC UNDER UPSC PERSPECTIVE 4 questions has been asked and the same has been discussed belowDo not skip this topic – read 10 pages Lx notes- if you have no time read at least Lx revision notes 5 pages to be at safer sideCategory : Not very important – better to know PREVIOUS YEAR QUESTION 1999 | PAPER II | Question 5 b (ii) | 10 MARKS A owes B Rs.1,000 but the debt is time barred, C signs a written promise to pay B Rs. 500 on account of the above barred debt. Is B entitled to enforce the promise against C ? Answer line : Introduction – How consideration mandatory for valid contract – exception – time barred debt – what is time barred debt. Body – Explain section 25 ICA – conditions on contract to pay time barred debt – explain the term “by the person to be charged therewith, or by his agent” – narrow interpretation – Bombay HC – Pestonji Manekji Mody Vs Bai Meher Bai – 3rd party cannot contract to pay time barred debt- B not entitled to sue C – Wider meaning – Madras HC – Paliyath Govinda Nair Vs Parekalalhil Achutan Nair – person to be charged include voluntary liability by 3rd party – B can sue C. Conclusion – which meaning would be better for today’s scenario – your analysis. Introduction : The above question is about time barred debt – time barred debt is one that is barred by limitation act thereby the creditor is barred from suing on it. Generally consideration is mandatory for a contract to be valid but a contract to pay time barred debt it an exception as per sec: 25 of Indian Contract Act (ICA ) Section 25 explained ! To be a valid contract to fall under sec : 25 – the promise to pay time barred debt Condition 1 : Must be writing Condition 2 : It must be signed by person to be charged with or his authorized agent Relaxation : The promise can be made to pay the debt wholly or in part. Discussion : Is B entitled to enforce the promise against C ? · Condition 1 is satisfied as the agreement to pay B by C was written one · C agreed only to pay part of the debt – part payment is valid again as per sec: 25 Now the controversial part in on 2nd condition – “signed by person to be charged with” – whether C is person to be charged with ? Narrow view : In the case of Pestonji Manekji mody Vs. Hai Meher Bai – it was held that the term cannot be interpreted to include 3rd party – a promise made by a person who is under no obligation to pay the debt of another does not fall under the clause” Thus any 3rdparty to the debt cannot enter into a contract to pay such debt when time barred and it is not validated under sec: 25. Therefore ! contract signed by C to repay B is not valid and B cannot sue C based on it. Wider view : On the other hand in the case of Paliyath Govinda Vs Parekalahil Achutan Nair it was stated that the words – by the person to be charged therewith are wide enough to include the case of a person who agrees to become liable for the payment of a debt due by another and need not be limited to person who was indebted from the beginning . By this view C’s contract to pay B would be valid and thus B can sue C. Conclusion :Analyze which view is apt give reasons CLICK HERE : UPSC Law Optional Mains Expert Course - Crisp Notes + 25 test + mentor support etc PREVIOUS YEAR UPSC LAW QUESTION | YEAR 2013 | PAPER II | QUESTION 5 b | 10 MARKS Privity of contract is no longer a rule but only an exception – Explain in the context of modern transactions Answer line – what is privity of contract – concept + reason for such rule – statement explain - Exceptions + concept + example( modern examples) / case – need for exceptions on modern era. Privity of Contract: The general rule is that only the person entitled to the benefits or bound by the obligations of a contract are entitled to sue or be used upon it. Thus, a stranger to contract, cannot file a suit to enforce any of the rights arising out of the contract. EXAMPLE :Therefore, if A for good consideration agrees with B that he will not sue for C’s negligence, the latter will not be able to set up the promisee of A to be as defense. EXCEPTIONS TO THE DOCTRINE OF PRIVITY OF CONTRACT- Due to modern era transactions exceptions cropped up (a) Beneficiaries in the case of trust: A beneficiary under an agreement to create a trust can sue upon the agreement, though he was not a party to the contract between the settler and the trustees. LX EXPLAINS: A creates a trust for the benefit of B, and appoints X, Y and Z as trustees. B can sue for benefits available to him under the trust though he is not a party to the contract. (b) In case of provision in marriage settlement of minors: A child in a contract of marriage is treated as a party who has given consideration, and he is entitled to enforce any contract to settle property, which a marriage settlement may contain. (c) In case provision is made for the marriage or maintenance of a female member of the family on the partition of Hindu Undivided family: The female members though not parties to the contract, possess an actual beneficial right which places them in the position of beneficiaries under the contract, and can, therefore, enforce the promise. (d) Assignee of a contract: An assignee under an assignment made by the parties, or by the operation of law, e.g., in case of death or insolvency, can sue upon the contract for the enforcement of his rights and interests. (e) Where a charge is created on certain specific immovable property in favor of certain person: Such charge is enforceable at the instance of the beneficiary entitled, though he may be a stranger to the document creating the charge. (f) Estoppel: Where one party has by his words or conduct made to the other a promise or assurance which was intended to affect the legal relations between them, then once the other party has taken him on his words and acted upon them, the party who gave the promise shall be estopped from denying his liability arising from the promise. (g) Contracts which are entered into through an agent, can be enforced by the principal. CONCLUSION – give importance of such excepts on present day scenario. 75 Days Strategy to clear 2020 UPSC Prelims : Click here PREVIOUS YEAR UPSC LAW OPTIONAL QUESTION| YEAR 2006 | PAPER II | QUESTION 5 a | 20 MARKS Insufficiency of consideration is immaterial but an agreement without consideration is void- comment Answer line – Define consideration – sec: 2 (c) – as per sec: 10 consideration is mandatory for a valid contract. Sec 2(C ) and 10 only talks about existence of consideration – adequacy not demanded – explain + example + case + reason for such rule. Section 2 (c) defines consideration as some act, abstinence or promise done at the desire of promisor . Section 10 mandates that a lawful consideration is necessary for a valid contract. As per sec : 25 explanation 2 consideration must have some value in the eyes of Law though it need not be adequate Inadequacy of consideration will not invalidate a contract. It is open to the parties to fix their own price. EXAMPLE : If A voluntarily agreed to sell his car for Rs. 500/- to B, it will be a valid contract despite the inadequacy of the consideration. It is to be noted here that though inadequacy of consideration will not invalidate a contract but may be taken into account by the court in determining the question whether the consent of the promisor was freely given. ADEQUACY OF CONSIDERATION: Consideration need not necessarily be of the same value as of the promise for which it is exchanged. But it must be something which can be inadequate as well. Inadequate consideration would not invalidate an agreement but such inadequate consideration could be taken into account by the court in deciding whether the consent of the promisor was freely given. In Chijjitumal Vs. Rampal Singh AIR, 1968, the Supreme Court reiterated that consideration need not be material and may be even absent. In the said case, the father had died leaving his house to two sons. They had agreed to partition the house which did not admit the division in exactly equal parts and one of the sons had agreed not to construct a door at a certain place in his portion of the house. In a dispute, the agreement was challenged on the ground that it was without adequate consideration. The Supreme Court came to the conclusion that the motive for the said agreement at the time when it was made, was to avoid any dispute in future, and held that it was sufficient consideration. The above view is in tune with explanation 2 to section 25 of the Act, which provides that an agreement to which the consent of the promisor is freely given is not void merely because the consideration is inadequate. Where there is valuable consideration, Court will not interfere and inquire into the adequacy of it but leave the matter to the parties to make their own bargain. But inadequate consideration might raise suspicion about the free will of the promisor. Promisor could be treated as victim of some imposition but this would not render the agreement void. Conclusion – Own analysis and need for such rule. PREVIOUS YEAR UPSC LAW OPTIONAL QUESTION | YEAR 2001 | PAPER II|QUESTION: 5b | Marks 20 An act done at the promisor’s desire furnishes a good consideration for his promise even though it is of no significance or personal benefit to him - Discuss Answer line : Introduction – On how a consideration should be only act desired by promisor and no other person – explain + example + This statement was given in the famous case of Kedar Nath V. Gorie Mohamed. Body – Promisor shall not necessarily be the ultimate beneficiary – explain + cases – donations to charitable institutions on desire of promisor + promise contemplated on such faith of promisee + cases Conclusion – Transactions shall not strictly be confined with 2 parties alone – an obligation can be created to benefit 3rd party also to suit the needs to practical life – examples – importance of such need etc. INTRODUCTION : Consideration = Promise / Performance that parties exchange with each other. As per definition given under 2 (c) consideration is doing or not doing something, which the promisor desires to be done or not done. Consideration must be at the desire of the promisor. Consideration may move from one person to any other person Consideration may be past, present or future Statement explained ! - An act done at the promisor’s desire furnishes a good consideration for his promise even though it is of no significance or personal benefit to him. This statement was given in the famous case of Kedar Nath V. Gorie Mohamed. The most important condition for consideration is that it should be demanded by the promisor – any voluntary service or act requested by other persons can never be a valid consideration. Further even if such act does not benefit the promisor it becomes a valid consideration, thus finally he may not be the ultimate benefiter of his demanded act still it constitutes valid consideration for him. CASE LAW EXPLAINED : KEDAR NATH V. GORIE MOHAMED The Commissioners of Howrah municipality planned to obtain necessary funds by public subscription. The defendant was a subscriber to this fund for Rs. 100. On the faith of the promised subscription, the plaintiff entered into a contract with a contractor for the purpose of building the hall. But the defendant failed to pay the amount . HELD : Reasons : The act of the plaintiff in entering into contract with the contractor was done at the desire of the defendant (the promisor) so as to constitute consideration within the meaning of Section 2(d) and it would not be invalid for simply it does not benefit him. This includes donations to charitable institutions etc. On faith of such donations if such charitable institutions take up any obligation then the promisee would be bound by the same even if the promise to pay such institution does not benefit the promisor ultimately but the prime condition that the payment must be at the desire of promisor. RATIONALE : A third party beneficiary is allowed in contracts just to satisfy the needs of complex transactions. Contract cannot be restricted between two parties alone ( privity of contract ) at this present era of global transactions. Example :Company B ( promise ) spending its relief fund for Cancer Institute of India would constitute valid consideration if Company A ( promisor ) desire for the same. Conclusion –Kindly give your own classic conclusion. ADMISSION FOR NEW BATCHES : NEW BATCH FOR 2020 UPSC LAW OPTIONAL NOTES & TEST SERIES http://bit.ly/2SA4KAM UPSC 2020 - LAW OPTIONAL TEST SERIES - 25 TESTS - http://bit.ly/2oVCquA 15 TESTS - http://bit.ly/2UlKBhh About Lawxpertsmv India : Records : 25+ Selections in UPSC Mains 2017 & 2018 including AIR 14 Neha Jain (2017 Batch)Consistent prediction of questions around 78% of UPSC Mains Law Optional 2016,2017, 2018 & 2019.Impeccable Record in UPSC MAINS 2018:25+ Students cleared in UPSC MAINS Law Optional 2018. 0866136 VIPUL PANDEY 0856384 - MAYANK SHARMA 1047758 TAWAREJ KSHITIJ KISHOR 0813872 RISHABH JAIN 58 9484 SHAHID AHMED 6613415 BANKAR RUJUTA DINESH 5900420 HIMANSHU KUMAR VERMA 0504546 MANOJ KUMAR 0808746 UTKARSH SINGH VATS 0848832 VISHAKHA SINGH DESHWAL 0832331 NITIN YADAV 0806404 SRISHTI GUPTA & Many more counting
NEUTRALITY OF SPEAKER BEING COMPROMISED UNDER CONSTITUTION OF INDIA UPSC 1991 : In the exercise of powers conferred on him under paragraph of the 10th Schedule to the Constitution, the Speaker of Lok Sabha gives his decision on questions as to disqualification of some members on ground of defection. The aggrieved members file a writ petition against the decision of the speaker in the Supreme Court notwithstanding a Bar to jurisdiction of all courts under paragraph 7 of the said schedule. Decide. SPEAKER DECISION AND JUDICIAL REVIEW : 1. Even if an issue is not justiciable, if the circumstances relied upon by the executive authority are absolutely extraneous and irrelevant, the Courts have the undoubted power to scrutinise such an exercise of the executive power. Such a judicial scrutiny is one which comes into operation when the exercise of the executive power is colourable or mala fide and based on extraneous or irrelevant considerations. 2.The Speaker, while adjudicating a disqualification petition, acts as a quasi-judicial authority and the validity of the orders thus passed can be questioned before the Supreme Court under Article 32 of the Constitution. However, ordinarily, the party challenging the disqualification is required to first approach the High Court as the same would be appropriate, effective and expeditious. 3.In the earlier Constitution Bench judgment of Kihoto Hollohan, the order of the Speaker under Tenth Schedule can be subject to judicial review on four grounds: mala fide, perversity, violation of the constitutional mandate and order passed in violation of natural justice. POWER OF THE SPEAKER TO ACCEPT/REJECT THE RESIGNATION OF MEMBERS : KEY TAKEAWAY FROM THIS CASE : 1. The Speaker’s scope of inquiry with respect to acceptance or rejection of a resignation tendered by a member of the legislature is limited to examine whether such a resignation was tendered voluntarily or genuinely. 2. Once it is demonstrated that a member is willing to resign out of his free will, the speaker has no option but to accept the resignation. It is constitutionally impermissible for the Speaker to take into account any extraneous factors while considering the resignation. The satisfaction of the Speaker is subject to judicial review. NEUTRALITY UNDER THREAT : “If Speaker is not able to disassociate from his political party and behaves contrary to the spirit of the neutrality and independence, such person does not deserve to be reposed with public trust and confidence,” Justice Ramana wrote. The Supreme Court, through its back-to-back decisions while resolving the political crises in Maharashtra and Karnataka, has sent a strong message to high constitutional authorities who shed their neutrality to favour party politics in States.The court has highlighted the need for authorities like the Speaker and the Governor to be faithful to constitutional morality and not vacillate under “prevailing political pressures”.There is a growing trend of the Speaker acting against the constitutional duty of being neutral. Thereby the citizens are denied stable governments. In these circumstances, there is need to consider strengthening certain aspects, so that such undemocratic practices are discouraged and checked. The court has made it clear that as “the sentinel on the qui vive of the Constitution, it is under obligation to see that the democracy prevails and not gets hollowed by individuals”. ADMISSION FOR NEW BATCHES : NEW BATCH FOR 2020 UPSC LAW OPTIONAL NOTES & TEST SERIES http://bit.ly/2SA4KAM UPSC 2020 - LAW OPTIONAL TEST SERIES - 25 TESTS - http://bit.ly/2oVCquA 15 TESTS - http://bit.ly/2UlKBhh About Lawxpertsmv India : Records : 25+ Selections in UPSC Mains 2017 & 2018 including AIR 14 Neha Jain (2017 Batch). Consistent prediction of questions around 78% of UPSC Mains Law Optional 2016,2017, 2018 & 2019. Impeccable Record in UPSC MAINS 2018: 25+ Students cleared in UPSC MAINS Law Optional 2018. 0866136 VIPUL PANDEY 0856384 - MAYANK SHARMA 1047758 TAWAREJ KSHITIJ KISHOR 0813872 RISHABH JAIN 5809484 SHAHID AHMED 6613415 BANKAR RUJUTA DINESH 5900420 HIMANSHU KUMAR VERMA 0504546 MANOJ KUMAR 0808746 UTKARSH SINGH VATS 0848832 VISHAKHA SINGH DESHWAL 0832331 NITIN YADAV 0806404 SRISHTI GUPTA & Many more counting
TOPIC 2 : PAPER I : INTERNATIONAL LAW : ICC The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé decided by ICC (January 2019) FACTS : 1. Koudou Laurent Gbagbois an Ivorian politician who was the President of Côte d'Ivoire from 2000 until his arrest in April 2011. 2. In the 2010 presidential election, Alassane Ouattara defeated Gbagbo, and was recognized as the winner by election observers, the international community, the African Union (AU), and the Economic Community of West African States. However, Gbagbo refused to step down, despite mounting international pressure. 3.In December 2010, both Gbagbo and Ouattara assumed the presidency, triggering a short period of civil conflict in which about 3,000 people were killed. 4. Gbagbo was arrested the following year by pro-Ouattara forces, who were supported by French troops. 5. Gbagbo was extradited to The Hague in November 2011, where he was charged with four counts of crimes against humanity in the International Criminal Court in connection with the post-election violence. DECISION OF ICC : • ICC noted that the Prosecutor had “failed to submit sufficient evidence” showing how both men had committed crimes against civilians, “pursuant to or in furtherance of a State or organizational policy”, nor the existence of “patterns of violence” indicative of a “policy to attack a civilian population”. • The ICC statement also explained that the Prosecutor had been unable to show that speeches by each man “constituted ordering, soliciting or inducing the alleged crimes…accordingly, there is no need for the defence to submit further evidence”. IMPORTANCE OF THIS JUDGMENT : Topic of International Criminal court under Paper I of International law becomes relevant now. Issues surrounding the working of ICC are always on the radar. Prepare well for this topic for UPSC law optional 2020 and 2021. ABOUT INTERNATIONAL CRIMINAL COURT : 1. WHAT IS ICC ? The International Criminal Court (ICC) is an intergovernmental organization and international tribunal that sits in The Hague in the Netherlands. 2. WHAT DOES IT DO ? The ICC has the jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes, and crimes of aggression. 3.NEED FOR ICC ? The ICC is intended to complement existing national judicial systems and it may therefore exercise its jurisdiction only when certain conditions are met, such as when national courts are unwilling or unable to prosecute criminals or when the United Nations Security Council or individual states refer situations to the Court. 4.LEGAL TEXTS : The ICC began functioning on 1 July 2002, the date that the Rome Statute entered into force. The Rome Statute is a multilateral treaty which serves as the ICC's foundational and governing document. 5.MEMBERS : States which become party to the Rome Statute, for example by ratifying it, become member states of the ICC. As of March 2019, there are 124 ICC member states. TOPIC 1 : PAPER I : INDIAN PENAL CODE : Sukumaran V. State rep. by Inspector of Police : Supreme Court of India (March 2019) RPD : The right to self-defence extends not only to one’s own body but to protecting the person and property of another, the SC has interpreted the provisions of the Indian Penal Code (IPC). FACTS : Tamil Nadu forest ranger who shot dead a sandalwood “smuggler” in the Dharmapuri forest area in 1988. • The trial court sentenced ranger Sukumaran to life in prison for murder. • The Madras High Court reduced the term to five years. . In appeal, the Supreme court concluded that Sukumaran had shot the “smuggler” Basha under threat to his own life and that of his driver, Chinnakolandai. In its verdict delivered on March 7, 2019, a Bench of Justices A.M. Sapre and R. Subhash Reddy deals with the right to private defence, enumerated in Sections 96 to 106 of the IPC. PROSECUTION VERSION : The prosecution version was that Sukumaran shot Basha in the back. The ranger and his driver were in a jeep in the early hours, doing the rounds of the forest, when they saw a truck. They gave chase. The truck stopped and four men, including Basha, got out. Sukumaran took out his gun and fired at Basha, killing him. Sukumaran then planted a gun in the truck and loaded it with 276 kg of sandalwood to frame Basha as a smuggler, the prosecution said. SUPREME COURT DISAGREED : But the apex court completely disbelieved the prosecution version and rather went with what Sukumaran said. • The Supreme Court concluded that there was no reason for Basha and his companions to “roam” the forest area in the wee hours. Sandalwood was an expensive commodity. Sukumaran was only trying to protect his life and that of his driver. He was doing his duty. Besides, four of the prosecution witnesses turned hostile and the testimonies of the rest has no connection to the manner in which the incident occurred in 1988. • “The prosecution was not able to prove the manner in which the incident occurred as alleged by them in their charge sheet. In this view of the matter, the appellant [Sukumaran] is entitled to be acquitted from the charges for want of any evidence against him,” Justice Sapre wrote. CONCLUSION : • The court observed that the right of private defence extends not only to “the defence of one’s own body against any offence affecting the human body but also to defend the body of any other person. The right also embraces the protection of property, whether one’s own or another person’s, against certain specified offences, namely, theft, robbery, mischief and criminal trespass”. • The court explained that the right does not arise if there is time to have recourse to the protection of the public authorities. Nor does it extend to the infliction of more harm than is necessary. • When death is caused, the person exercising the right of self-defence must be under “reasonable apprehension of death, or grievous hurt, to himself or to those whom he is protecting”, the court explained. IMPORTANCE OF THIS JUDGMENT : Right to private defence is very important topic under the Indian Penal code. It had been repeatedly asked in UPSC many times including 1997,1998, 2002,2004,2008,2010,2015,2018. Just make sure that you quote this judgment to enhance your answer. TOPIC 4 : PAPER II : CONTEMPORARY LEGAL DEVELOPMENTS : IPR Monsanto Technology LLC. V. Nuziveedu Seeds FACTS OF THE CASE : Monsanto gave 10-year sub-licence agreement to Nuziveedu - to develop & sell ‘GM Hybrid cotton Planting Seeds’ . In 2015, Monsanto terminated its agreement, but Nuziveedu continued to sell GM seeds. DELHI HC : 2015 : Monsanto filed case against Nuziveedu Seeds for selling Bt cotton seeds using its patented technology. CONTENTION OF NUZIVEEDU : Bt. Trait in Cotton Hybrid varietal plants is an essential biological process. Section 3(j) - Plants and animals, other than microorganisms, including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals are not inventions. Therefore they are not patentable. VERDICT OF HC : TWO ORDERS ORDER 1 : During the pendency of the case, both parties would have to abide by obligations under their agreement. ORDER 2 : Justice S Ravindra Bhat and Justice Yogesh Khanna of the Delhi HC recorded one of their conclusions thus – “the subject patent falls within the exclusion spelt out by Section 3 (j) of the Patents Act; the subject patent and the claims covered by it are consequently held to be unpatentable”. It had held that plant varieties and seeds cannot be patented under Indian law. SUPREME COURT OF INDIA : Supreme Court overturned the Division Bench judgement which pronounced the patent and its claims unpatentable, the patent of Monsanto can be assumed to be restored. TO BE DECIDED BY TRIAL COURT : The Supreme court ruled that the meat of the matter — the validity of the patent — will have to be decided by the trial court, and returned it to the Delhi High Court. The trial court will decide the metes and bounds of section 3(j), a statutory provision that excludes plants and plant parts from patent eligibility. IMPORTANCE OF THIS JUDGMENT : Questions about criteria for an invention to be patentable ; Inventions which are non-patentable - holds importance for UPSC Law Optional 2020 and 2021. ADMISSION FOR NEW BATCHES : NEW BATCH FOR 2021 UPSC LAW OPTIONAL NOTES & TEST SERIES http://bit.ly/38Tt84k NEW BATCH FOR 2020 UPSC LAW OPTIONAL NOTES & TEST SERIES http://bit.ly/2SA4KAM UPSC 2020 - LAW OPTIONAL TEST SERIES - 25 TESTS - http://bit.ly/2oVCquA 15 TESTS - http://bit.ly/2UlKBhh About Lawxpertsmv India : Records : 25+ Selections in UPSC Mains 2017 & 2018 including AIR 14 Neha Jain (2017 Batch).Consistent prediction of questions around 78% of UPSC Mains Law Optional 2016,2017, 2018 & 2019. Impeccable Record in UPSC MAINS 2018: 25+ Students cleared in UPSC MAINS Law Optional 2018. 0866136 VIPUL PANDEY 0856384 - MAYANK SHARMA 1047758 TAWAREJ KSHITIJ KISHOR 0813872 RISHABH JAIN 5809484 SHAHID AHMED 6613415 BANKAR RUJUTA DINESH 5900420 HIMANSHU KUMAR VERMA 0504546 MANOJ KUMAR 0808746 UTKARSH SINGH VATS 0848832 VISHAKHA SINGH DESHWAL 0832331 NITIN YADAV 0806404 SRISHTI GUPTA & Many more counting
UPSC Law Optional Mains Simulation ! Exercise Dear Aspirants - We have posted a previous year UPSC Law Optional question with model answer. Mere reading the answer will help you little, because in Law Optional Mains, UPSC tends to ask similar question line. Thus try to get a simulation exercise before reading the actual answer. This will help you to develop answer framing skill which is a major scoring factor in UPSC Mains. What To do ? 1. Read The question asked 2. Understand the question 3. Break the question into parts if it is a complex question / Identify the core area of the question 4. Plan your answer line - what you would concentrate on etc. Do all of the above within 2 minutes - UPSC Mains is all about how you write within stipulated time. LET'S DO IT !!!!! QUESTION: 4 |PY UPSC QUESTION | YEAR 2002 | PAPER II| QUESTION 5 a | Marks 20 Law relating to coercion and undue influence has a feature in each which is uncommon to the legal system as a whole. Explain with illustrations Answer line : Meaning/ definition of coercion and undue influence – section 15 and 16 respectively.Law relating to coercion that is uncommon to our legal system – Any act forbidden by IPC is coercion even if it is committed at a place where IPC does not apply. Example + Case – Rationale for such devianceLaw relating to undue influence that is uncommon to our legal system –Unlike regular burden of proof in undue influence the person against whom undue influence claim was raised has burden of proof – Explain – Example/ Case – Rationale for such deviance INTRODUCTION : Concept of coercion : Coercion is defined under sec: 15 and It is committing, or threatening to commit, any act forbidden by the Indian Penal Code , or the unlawful detaining or threatening to detain, any property to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. Concept of undue influence : Section 16 defines undue influence as- A contract is said to be induced by “undue influence” where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. Both are factor that vitiate free consent as per section 14 of the ICA. However these both concepts have each feature that is uncommon to our legal system as whole and they are : Feature in coercion that is uncommon to our legal system : Section : 15 has an explanation which says that Explanation : It is immaterial whether the Indian Penal Code (XL V of 1860) is or is not in force in the place where coercion is employed. THUS ! It is not necessary that the Indian Penal Code is in force at the place where Coercion is employed. EXAMPLE : A on a ship on the high sea threatens to murder B, if he (B) does not write a pro note in his (A’s) favour A’s act amounts to Coercion, although Indian Penal Code does not apply on the high seas. RATIONALE : The above rule was given because the person coercing shall not take advantage of non-application of IPC. Further even if coercion has taken place in area where IPC does not apply its effect is seen in parties on whom ICA apply thus this explanation was given. Feature in undue influence that is uncommon to our legal system : As per clause 3 of section 16 The burden of proving that the contract was not induced by undue influence is to be upon the person who was in a position to dominate the will of the other. Once that fact is established, then the unconscionable nature of the bargain and the burden of proof on the issue of undue influence come into operation. RATIONALE : The reason for the deviance is that the weaker party will not be able to prove undue influence as already he is being abused and weak. ILLUSTRATION : Give simple illustration CONCLUSION : Own points ADMISSION FOR NEW BATCHES : NEW BATCH FOR 2021 UPSC LAW OPTIONAL NOTES & TEST SERIES http://bit.ly/38Tt84k NEW BATCH FOR 2020 UPSC LAW OPTIONAL NOTES & TEST SERIES http://bit.ly/2SA4KAM UPSC 2020 - LAW OPTIONAL TEST SERIES - 25 TESTS - http://bit.ly/2oVCquA 15 TESTS - http://bit.ly/2UlKBhh About Lawxpertsmv India : Records : 25+ Selections in UPSC Mains 2017 & 2018 including AIR 14 Neha Jain (2017 Batch). Consistent prediction of questions around 78% of UPSC Mains Law Optional 2016,2017, 2018 & 2019. Impeccable Record in UPSC MAINS 2018: 25+ Students cleared in UPSC MAINS Law Optional 2018. 0866136 VIPUL PANDEY 0856384 - MAYANK SHARMA 1047758 TAWAREJ KSHITIJ KISHOR 0813872 RISHABH JAIN 5809484 SHAHID AHMED 6613415 BANKAR RUJUTA DINESH 5900420 HIMANSHU KUMAR VERMA 0504546 MANOJ KUMAR 0808746 UTKARSH SINGH VATS 0848832 VISHAKHA SINGH DESHWAL 0832331 NITIN YADAV 0806404 SRISHTI GUPTA & Many more counting
SEXUAL HARASSMENT ALLEGATIONS AGAINST CHIEF JUSTICE OF INDIA - RANJAN GOGOI WHAT HAPPENED ? On April 19 former junior Court Officer (complainant) sent affidavits to the judges of the Supreme Court accusing Justice Gogoi of sexual harassment. The complaint is specific, detailed and supported by documentary and other forms of evidence. REACTION TO THE COMPLAINT : 1ST REACTION : Secretary General of the Supreme Court of India quickly discarding the complaint as one by “mischievous forces”. 2ND REACTION : The CJI himself constituted an extraordinary hearing in the Supreme Court, along with two other judges, on a non-working day in a case titled “Matter of great public importance touching upon the independence of the judiciary”. The complainant, in her absence, was defamed and her motives questioned. 3RD REACTION : The constitution of an “in-house” panel comprising three judges of the Supreme Court. PRESENCE OF BIAS : How can judges inquire into allegations against a colleague, no less the CJI, who is the ‘master of roster’ assigning cases to fellow judges? The so-called ‘In-House’ inquiry by three judges of the Supreme Court was in complete derogation of laws and norms on sexual harassment emanating from Vishakha and the POSH Act. FINALLY : • The finding of the panel that the allegations are baseless is the final blow in a process that has violated all principles of fairness, due process and impartiality. • “The findings of the `In-House Committee’ seriously and grievously wounds one of the primary constructs of the rule of law, that justice should not only be done, `but seen to be done’. • The committee had not provided any justification for not supplying a copy of the report to the complainant, which is a basic tenet of natural justice. WAY FORWARD : The Chief Justice of India is not above the law. The judges of the Supreme Court must not reduce the institution to a private club where certain interests are safeguarded at the cost of judicial integrity. Demands made by the complainant, such as a lawyer for representation and a committee under the provisions of the sexual harassment law, are bare necessity . In fact, they are a least minimum to uphold the promise of equality before law in the Constitution.The manner in which the court dealt with the complaint on the administrative side has been less than fair. It is true that the in-house procedure devised in 1999 envisages only a committee of three judges to deal with allegations against serving Supreme Court judges. The fact that a special law to deal with sexual harassment at the workplace is in force since 2013 appears to have made no difference. The court could not bring itself, even in the interest of appearing fair, to adopt a formal procedure or allow the complainant to have legal representation. DEBATING ON THE OTHER SIDE : The procedure that was being followed cannot be criticised as being either illegal or otherwise arbitrary. A procedure had to be devised as the circumstances were unique, without any precedent. • The only guidance available was a ‘Report of the committee on in-house procedure (in brief “procedure”), drawn up by a meeting of the full court of the Supreme Court on December 15, 1999. • The procedure specifically states that even in the case of an inquiry into a complaint received against a judge of the Supreme Court, the committee shall hold an inquiry on the same pattern as the committee constituted to examine a complaint against a judge of the High Court. Thus, the procedure does not contemplate the participation of a legal practitioner because it would not be a formal judicial inquiry involving the examination and cross-examination of witnesses by lawyers. It has to be remembered that the committee was bound by the rules under which it has come into being, and though as per the report it is entitled to devise its own procedure (where certain parameters have been laid down in the in-house procedure), the same cannot be deviated from. REPORT CANNOT BE REVEALED : A claim for a copy of the inquiry report will have to be turned down going by the law laid down by the Supreme Court in Indira Jaising v. Supreme Court of India & Anr [(2003) 5 SCC 494]. The report in the said case was made to the CJI and the report was confidential and discreet, only for the purpose of his information and not for disclosure to any other person. NO DEVIATION IN PROCEDURE ESTABLISHED BY LAW : The procedure laid down in the in-house procedure has been adhered to in the present case. The law in Indira Jaising has also been adhered to. The complainant does have remedies in law. The principles of natural justice which are alleged to have been violated in the present case, by the refusal on part of the committee to afford the complainant a right of legal representation and the decision not to publish the report of the committee, do not and cannot have a straightjacketed approach. What has been done by the committee is in accordance with the procedure that is laid down. CONCLUSION : The members of the committee are Supreme Court judges, comprising the seniormost judge of the Supreme Court and two women judges. Is not the fact that two of the members of the committee are women, one which would serve to make the complainant give her version in a more relaxed atmosphere? Is it right on our part to be sceptical about the propriety and correctness of the procedure followed by three Supreme Court judges, persons with unblemished reputations, in their character, conduct and integrity? A trust deficit would be counterproductive in these circumstances. JUDGMENT 2 : INTERNATIONAL LAW : PAPER I : ICJ ADVISORY OPINION FACT : The Sovereignty of Chagos Archipelago - disputed between UK & Mauritius. TIMELINE OF THE EVENTS : 1965 – UK separated the archipelago from Mauritian territory & exercised its control. 1968 - Mauritius gained its independence from Britain & asked for the Chagos archipelago as well. 1968- 1973- UK & US – used the archipelago as a military base & entire population of chagossian was forcibly removed. 2015 – Permanent court of Arbitration unanimously held that the marine protected area (MPA) created by United Kingdom in Chagos Archipelago is violation of international law. 2017 - United Nations General Assembly sought ICJ’s Advisory opinion on this issue. 2019 – ICJ held that U.K. should relinquish the archipelago. On 25 February 2019, the International Court of Justice (ICJ) ruled in Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 that the United Kingdom should relinquish the archipelago. ICJ JUDGEMENT – KEY TAKEAWAYS : The Court concluded that “the process of decolonization of Mauritius was not lawfully completed when that country acceded to independence” and that “the United Kingdom is under an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible”. Moreover, the Court noted that “the adoption of resolution 1514 (XV) represents a defining moment in the consolidation of State practice on decolonization” and that “[b]oth State practice and opinio juris at the relevant time confirm the customary law character of the right to territorial integrity of a non-self-governing territory as a corollary of the right to self-determination”. The Court concluded that, “as a result of the Chagos Archipelago’s unlawful detachment and its incorporation into a new colony, known as the [British Indian Ocean Territory] BIOT, the process of decolonization of Mauritius was not lawfully completed when Mauritius acceded to independence in 1968”. STANCE OF INDIA : MAY 23 2019 : India was among 116 nations to vote in favour of a UN General Assembly resolution that demanded the UK withdraw its “colonial administration” from the Chagos Archipelago unconditionally within six months, supporting Mauritius in its quest for the restoration of sovereignty over the island chain in the Indian Ocean. BACKGROUND ON ICJ ADVISORY JURISDICTION : WHO CAN SEEK FOR ADVISORY JURISDICTION ? It can be invoked by U.N. organs and specialized agencies under Art.65(1) of ICJ Statute. IT IS MANDATORY FOR ICJ TO GIVE ADVISORY OPINIONS WHENEVER IT HAS BEEN SOUGHT? No. It is discretion of the ICJ. Article 65(1) stipulates that the Court ‘may give an advisory opinion … at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations’, leaving to the Court’s discretion the decision of whether to comply with the request or not. RATIONALE OF THE DISCRETION : The discretion whether or not to respond to a request for an advisory opinion exists so as to protect the integrity of the Court’s judicial function as the principal judicial organ of the United Nations. EXERCISE OF THE DISCRETION : ICJ has so far exercised this discretionary power carefully. It has refused to give opinions if a request has ‘compelling reasons’ not to give advisory opinions. The determination of what may constitute a ‘compelling reason’ is left to the careful evaluation of the judges on a case-by-case basis. BINDING NATURE OF THE ADVISORY OPINIONS : It is non-binding in nature. It also depends on the internal rules of the requesting institution. It has juridical value. Advisory opinions are relied upon and cited as legal authority even in contentious cases. UPSC POSSIBLE-QUESTIONS : 1. Discuss the summary of recent ICJ Judgement Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965. 2. Explain the Advisory Opinion of ICJ along with recent opinions tendered by ICJ. PAPER II : INDIAN PENAL CODE : TEMPORARY ‘REMOVAL’ OR TAKING PHOTOCOPIES OF ORIGINAL DOCUMENTS AMOUNTS TO THEFT - INDIAN PENAL CODE. BIRLA CORPORATION LTD. VS. ADVENTZ INVESTMENTS AND HOLDINGS LTD. & OTHERS : MAY 2019 JUDGEMENT : HELD : The Supreme Court held that “………To commit theft, one need not take movable property permanently out of the possession of another with the intention not to return it to him. It would satisfy the definition if he took any movable property out of the possession of another person though he intended to return it later on……..”. Section 380 IPC - "Theft in dwelling house, etc.". In order to constitute theft, the following ingredients are essential:- i. Dishonest intention to take property; ii. The property must be moveable; iii. It should be taken out of the possession of another person; iv. It should be taken without the consent of that person; v. There must be some removal of the property in order to accomplish the taking of it. INTENTION : Intention is the gist of the offence. It is the intention of the taker which must determine whether taking or moving of a thing is theft. • The intention to take "dishonestly" exists when the taker intends to cause wrongful loss to any other which amounts to theft. • It is an essential ingredient of the offence of "theft" that the movable property should have been "moved" out of the possession of any person without his consent. PRECEDENT : CASE LAW 1 : In the light of the ratio laid down in Pyare Lal Bhargava vs State Of Rajasthan 1963 AIR 1094 , temporary removal of original documents for the purpose of replicating the information contained in them in some other medium would thus fulfill the requirement of “moving” of property which is the actus reus of the offence of theft as defined under Section 378 IPC. WHY? Information contained in a document, if replicated, can be the subject of theft and can result in wrongful loss, even though the original document was only temporarily removed from its lawful custody for the purpose of extracting the information contained therein. CASE LAW 2 : In the case of K.N. Mehra vs. State of Rajasthan AIR 1957 SC 369, this Court held that gain or loss contemplated need not be a total acquisition or a total deprivation but it is enough if it is a temporary retention of property by the person wrongfully gaining or a temporary keeping out of property from person legally entitled. The observations are part of a 68-page judgment on the appeal filed by Birla Corporation alleging the theft of 54 documents by Adventz Investments and Holdings. ADMISSION FOR NEW BATCHES : NEW BATCH FOR 2021 UPSC LAW OPTIONAL NOTES & TEST SERIES http://bit.ly/38Tt84k NEW BATCH FOR 2020 UPSC LAW OPTIONAL NOTES & TEST SERIES http://bit.ly/2SA4KAM UPSC 2020 - LAW OPTIONAL TEST SERIES - 25 TESTS (10000RS) - http://bit.ly/2oVCquA 15 TESTS (5000RS) - http://bit.ly/2UlKBhh About Lawxpertsmv India : Records : 25+ Selections in UPSC Mains 2017 & 2018 including AIR 14 Neha Jain (2017 Batch).Consistent prediction of questions around 78% of UPSC Mains Law Optional 2016,2017, 2018 & 2019.Impeccable Record in UPSC MAINS 2018: 25+ Students cleared in UPSC MAINS Law Optional 2018. 0866136 VIPUL PANDEY 0856384 - MAYANK SHARMA 1047758 TAWAREJ KSHITIJ KISHOR 0813872 RISHABH JAIN 5809484 SHAHID AHMED 6613415 BANKAR RUJUTA DINESH 5900420 HIMANSHU KUMAR VERMA 0504546 MANOJ KUMAR 0808746 UTKARSH SINGH VATS 0848832 VISHAKHA SINGH DESHWAL 0832331 NITIN YADAV 0806404 SRISHTI GUPTA & Many more counting
ICJ DECISION FOR ROHINGYA : Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) The unanimous ruling of the International Court of Justice (ICJ) on the prevention of alleged acts of genocide against Rohingya Muslims has finally pinned legal responsibility on Myanmar’s government for the military’s large-scale excesses of 2017. The International Court of Justice (ICJ) also ordered authorities to prevent the destruction of evidence related to genocide allegations. CASE FILED BY GAMBIA : The case against Myanmar was brought to the ICJ in November by The Gambia, on behalf of the Organization of Islamic Cooperation (OIC), arguing that the mainly-Muslim Rohingya had been subjected to crimes of genocide under the 1948 Genocide Convention. FACTS OF THE CASE : The Rohingya primarily reside in Rakhine state in northern Myanmar, a majority Buddhist country. More than 700,000 members fled to neighbouring Bangladesh following a reported military crackdown in August 2017 during which numerous alleged human rights abuses were committed. According to news reports, around 600,000 Rohingya remain inside the country, and remain extremely vulnerable to attacks and persecution, said the court. ORDER OF THE ICJ : In its ruling, the ICJ imposed “provisional measures” against Myanmar, ordering the country to comply with obligations under the Convention on the Prevention and Punishment of the Crime of Genocide. Myanmar is urged to “take all measures within its power” to prevent the killing of Rohingya, or causing bodily or mental harm to members of the group, including by the military or “any irregular armed units”.The country also has to submit a report to the ICJ within four months, with additional reports due every six months “until a final decision on the case is rendered by the Court.” TESTIMONY OF AUNG SAN SUU KYI : Last December, Myanmar’s de facto leader, Aung San Suu Kyi, testified at the start of court proceedings on behalf of her country and described the case as “an incomplete and misleading factual picture” of events in Rakhine state. She told the court military leaders would be put on trial if found guilty, stressing that “if war crimes have been committed, they will be prosecuted within our own military justice system.” This ruling amounts to a rejection of those arguments, and the ICJ’s orders are binding on Myanmar, despite being provisional. The court’s orders will be passed on for consideration by the UN Security Council, although a final court judgement in the case is expected to take years, according to news reports. IMPORTANCE OF THIS JUDGMENT : The ruling vindicates findings by the UN and human rights groups on the prevalence of hate speech, mass atrocities of rape and extra-judicial killings, and torching of villages in Myanmar’s Rakhine province, leading to the forced migration of thousands to Bangladesh.Arguing the defence in person during the three-day public hearings last month, Ms. Suu Kyi, who was elected in 2016 as defacto leader of Myanmar, insisted that the 2017 violence was proportionate to the threat of insurgency. She even questioned the Gambia’s standing to bring the suit, saying that there was no bilateral dispute. Rejecting the ICJ’s ruling, Myanmar’s Foreign Ministry has accused rights groups of presenting the Court with a distorted picture of the prevailing situation. In a statement, it defended the army’s action as a legitimate response to violations of the law by the insurgent Arakan Rohingya Salvation Army. However, the above claim is at odds with the findings this week of an Independent Commission of Enquiry established by the government The Commission acknowledged that war crimes had indeed been committed during the military campaign, when about 900 people were killed. But there was nothing to back the assertions of gang-rape, or evidence to presume any intent of genocide, it held. WAY FORWARD : Although it could take years before the court pronounces the final verdict in the genocide case, this injunction is an important victory for the refugees languishing in Bangladeshi camps. It empowers the UN Security Council to prevail upon Myanmar to take appropriate measures for the rehabilitation and repatriation of displaced communities. As the biggest regional player, China could play a constructive role to ensure a speedy return to normalcy in its neighbourhood. India has its own interests in an amicable resolution of Myanmar’s internal dispute. Above all, finding closure to the current dispute would mark the completion of Myanmar’s return to civilian rule. NEW BATCH FOR 2021 UPSC LAW OPTIONAL VIDEO LECTURES href="http://bit.ly/38Tt84k" target="_blank" rel="noopener" class="_2qJYG blog-link-hashtag-color _3Sq3W">http://bit.ly/38Tt84k NEW BATCH FOR 2020 UPSC LAW OPTIONAL NOTES & TEST SERIES - http://bit.ly/2SA4KAM UPSC 2020 - LAW OPTIONAL TEST SERIES - 25 TESTS (10000RS) - http://bit.ly/2oVCquA 15 TESTS (5000RS) - http://bit.ly/2UlKBhh
A.CONSTITUTION V. CONSTITUTIONALISM : Constitution is JUST a document - which has a set of rules or norms creating, structuring and defining the limits of, government power or authority. • Even the dictatorial govt has - Constitution but NOT constitutionalism. • Mere existence of a Constitution, by itself, does not ensure constitutionalism or a constitutional culture. It is the political maturity and traditions of a people that import meaning to a Constitution which otherwise merely embodies political hopes and ideals R.C. Poudyal And Anr. Etc. Etc vs Union Of India- 1993 AIR 1804. B.FUNCTIONS OF THE CONSTITUTION : The Constitution is a political structure, whether it is written or not and followed or not. They have several functions. a) Expression of Ideology: it reflects the ideology and philosophy of a nation state. b) Expression of Basic Law: Constitutions present basic laws which could be modified or replaced through a process called extra ordinary procedure of amendment. There is a special law also which usually focus upon the rights of the citizens, for instance, rights concerning language, speech, religion, assembly, the press, property and so on. c) Organizational frame work: It provides organizational framework for the governments. It defines the functions legislature, executive and judiciary, their inter-relationship, restrictions on their authority etc. d) Levels of Government: Constitution generally explains the levels of different organs of the Government. Whether it is federal, confederal or unitary will be described by the Constitution. They delineate the power levels of national and provincial governments. e) Amendment provision: As it would not be possible to foretell all possibilities in future with great degree of accuracy, there must be sufficient provisions for amendment of the Constitution. It should contain a set of directions for its own modifications. The system might collapse if it lacks in scope for modification. Inherent capacity to change according to changing times and needs help any system to survive and improve. Soviet Constitution was mostly an expression of ideology and was less an expression of organizational set up. The American Constitution is more an expression of governmental organization and a guideline for the power relationship of the regime than an expression of the philosophy of the regime. C. CONCEPT OF CONSTITUTIONALISM ? UPSC 2014 Constitutionalism means LIMITED GOVT ; it means that powers of executive & legislature are limited & not - uncontrolled or arbitrary. IS THIS CONCEPT APPLICABLE IN INDIA ? • Constitutionalism is the primary edifice on which the Indian democracy stands. • Modern constitutionalism, to which Germany is a major contributor too, especially in terms of the basic structure doctrine, specifies that powers vested in any organ of the State have to be exercised within the four corners of the Constitution, and further that organs created by a constitution cannot change the identity of the constitution itself. ; PARA 64 Ram Jethmalani v. Union of India, (2011) 8 SCC WHY NOT ABSOLUTE POWERS TO GOVT? The constitutionalism or constitutional system of Government abhors absolutism. Maru Ram v. Union of India & Ors. [(1981) 1 SCC 107]. • Power corrupts AND Absolute power corrupts absolutely. If it is vested; then it will turn into authoritarian, oppressive government. (DESPOTISM) • Jeopardise freedom of the people. • To preserve dignity & personality of the people. HOW THE CONSTITUTIONALISM CAN BE IMPLEMENTED? 1. A written constitution embeds constitutionalism. 2. Independent judiciary with powers of Judicial Review. 3. Doctrine of Separation of powers with check + balances. No organ of the state may arrogate to itself powers beyond what is specified in the Constitution. I.R.Coelho V. State of Tamil Nadu AIR 2007 SC 861 4. Doctrine of Rule of Law 5. Free and Fair Elections. 6. Fundamental Rights of the People. 7. Federalism. 8. Decentralisation of powers. 9. Rule of Law These principles, if inbuilt, in a constitution, then we can ensure the constitutionalism. D. CONSTITUTIONALISM AND CONSTITUTIONAL GOVERNANCE : In one word ‘Limited Governance’ is the Constitutionalism, which is supposed to reflect in the Constitutional Law of a democratic state. Constitution of India is the Constitutional Law incorporating the Constitutionalism. The listed fundamental rights and guaranteed remedies, creation of judiciary as an impartial arbiter with all independent powers besides broad based legislative check on the executive are the reflections of such constitutionalism. From these essential characters the doctrines of judicial review, rule of law, separation of powers, universal franchise, transparent executive, fundamental right to equality and quality of life emerged and consolidated. E. JUDICIAL ANALYSIS OF CONSTITUTIONALISM : 1. I.R.Coelho V. State of Tamil Nadu AIR 2007 SC 861 The principle of constitutionalism is now a legal principle which requires control over the exercise of Governmental power to ensure that it does not destroy the democratic principles upon which it is based. These democratic principles include the protection of fundamental rights. The principle of constitutionalism advocates a check and balance model of the separation of powers, it requires a diffusion of powers, necessitating different independent centers of decision making. The principle of constitutionalism underpins the principle of legality which requires the Courts to interpret legislation on the assumption that Parliament would not wish to legislate contrary to fundamental rights. The Legislature can restrict fundamental rights but it is impossible for laws protecting fundamental rights to be impliedly repealed by future statutes. 2. Maru Ram v. Union of India, (1981) 1 SCC 107. Constitutionalism or constitutional system of government abhors absolutism-it is premised on the rule of law in which subjective satisfaction is substituted by objectivity provided by the provisions of the Constitution itself. F. HOW IT CAN BE MISUSED BY CROOKED MINDS : When the Constitution of India was adopted on November 26, 1949 by the Constituent Assembly, its members were mindful of the challenges of governance. Speaking after the completion of his work, Dr. B.R. Ambedkar, Chairman of the Constitution Drafting Committee, said: “I feel that the Constitution is workable; it is flexible and it is strong enough to hold the country together both in peacetime and in wartime. Indeed, if I may say so, if things go wrong under the new Constitution the reason will not be that we had a bad Constitution. What we will have to say is that Man was vile.” The members also recognised that the mere adoption of a good Constitution would not culminate in the values of constitutionalism permeating the civil and political culture in the country, nor could it ensure good governance. G. CRITICISM OF THE CONSTITUTIONALISM : 1. Legal scholar Jeremy Waldron contends that constitutionalism is often undemocratic: “Constitutions are not just about retraining and limiting power; they are about the empowerment of ordinary people in a democracy and allowing them to control the sources of law and harness the apparatus of government to their aspirations” This view does not hold well with Indian Constitution. 2. Constitutionalism has also been the subject of criticism by Murray Rothbard, who attacked constitutionalism as incapable of restraining governments and does not protect the rights of citizens from their governments: [i]t is true that, in the United States, at least, we have a constitution that imposes strict limits on some powers of government. But, as we have discovered in the past century, no constitution can interpret or enforce itself; it must be interpreted by men. And if the ultimate power to interpret a constitution is given to the government's own Supreme Court, then the inevitable tendency is for the Court to continue to place its imprimatur on ever-broader powers for its own government. Furthermore, the highly touted "checks and balances" and "separation of powers" in the American government are flimsy indeed, since in the final analysis all of these divisions are part of the same government and are governed by the same set of rulers. This can be related to India with Judicial Overreach by India Judiciary in Certain cases
QUESTION:LAW OPTIONAL UPSC QUESTION |YEAR 1990|QUESTION 6(b) A takes on hire a fishing trawler from B for the purpose of deep sea fishing. The trawler was imported by B and was never used by him. Under the contract A was to get the necessary repairs done in the trawler to make it sea-worthy, for which B would pay. After it was certified seaworthy, A was to pay monthly rent, while the repairing was being done, A discovered that the refrigeration equipment of the trawler was not capable of bringing down the temperature to such a low level as is necessary to use the trawler for deep sea fishing. A sues for declaration that the contract is void and for recovery of the expenses incurred on repairs. There is no evidence that during the negotiation for contract there was any discussion about the quality of the refrigeration of the trawler, but the purpose of chartering of trawler was known to B. How will you decide? Answer line : This is a problem question – thus following subjects must be touched Relevant Legal Provision : Sec: 17 Indian Contracts Act – Fraud. Issue involved : Whether B has committed fraud ? Whether silence of B amounts to fraud ? Conclusion : Whether you decide B liable or not ? Case Law to refer : I.T.C. Limited vs George Joseph Fernandes & Anr on 6 February, 198 This is a problem based question thus following discussions given – The aspirants are expected to provide their own analysis and answer based on the below sketch. ISSUE 1 : Whether the contract is void ? ISSUE 2 : Whether B is liable for payment of repairs ? RELEVANT LEGAL PROVISION : sec: 17 Indian Contracts Act – This provision defines what is fraud – Explanation to sec: 17 is directly involved. ISSUE 1 : Whether the contract is void ? Contract would be void only when it was affected by fraud and the affected party wants to call it off. Thus sub issue are as follows : · Whether B has committed fraud ? · Whether B’s silence amounts to active concealment ? · Whether B had duty to speak ? · Whether A can reasonable find out the fault in refrigeration system on examination ? · Whether B is actually aware of the fault in refrigeration as he just imported it and did not use the same ? ISSUE 2 : Whether B is liable for payment of repair ? If contract is void then B is liable or else he is not. CASE TO REFER : I.T.C. Limited vs George Joseph Fernandes & Anr on 6 February, 198 – Similar facts – held to be mutual mistake of parties. Aspirants need not agree with the case . QUESTION: UPSC QUESTION | YEAR 2014 | QUESTION 6 (a) X and Co. in its prospectus represented that A, B and C would be the directors of the company. This was true and on the basis of this P and Q applied for shares. However, before the allotment took place, there were changes in directors. Is the allotment of P and Q subject to their choice or it stands cancelled due to change in directors? Discuss. Answer line : Mere silence is no fraud – sec: 17 – explanation – but fraud when there are change of circumstances. Discuss – case : Rajagopala Iyer V. South Indian Rubber works – similar facts – held : subject to the choice of the allotee the allotment could be avoided. If you differ state the same – and rationale for it. INTRODUCTION : Section 17 of ICA defines fraud and by the explanation to the section it was clearly held that mere silence is not fraud unless and until – Silence is equal to speech There is duty to speak Change of circumstances The above circumstance given in the question falls under change of circumstances. Sometimes a representation is true when made, but it may, on account of change of circumstances, become false when it is acted upon by the other party. In such circumstances, it is the duty of the person who made the representation to communicate the change of circumstances. SIMILAR CASE LAW : Rajagopala Iyer Vs South Indian Rubber Works. FACTS : A company’s prospectus represented that certain persons would be the directors of the company. This was true. But before the allotment took place, there were changes in the directorate, some directors having retired. HELD : This change without communication entitle the allotee to avoid the allotment. Give your own discussion with apt conclusion.
MEANING : Police brutality or police violence is legally defined as a civil rights violation where law enforcement officers exercise undue or excessive force against a subject. This includes, but is not limited to, bullying, physical or verbal harassment, physical or mental injury, property damage, and death. A democratic government is no guarantee that the police will act in a civilized manner. Given the powers vested in them to regulate this pandemic, the incidents of violence against common man is increasing including George Floyd incident in the U.S., the Sattankulam episode in Tamil Nadu. Constitutional Courts in India have been trying to stop police brutality, yet this issue has resurfaced due to death of duo in Thoothukudi allegedly due to police violence. DATA ON CUSTODIAL DEATHS : In past 3 years, National Human Rights Commission (NHRC), India has received nearly 5,300 complaints of custodial deaths (police and prison). There are chances that these numbers are under-reported. While government data recorded 1,727 deaths in police custody between 2000 and 2018, only 26 police officials were convicted. VIOLATION OF ARTICLE 21 : Custodial violence, including torture and death in the lock ups strikes a blow at the Rule of Law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law enforcing officers is a matter of deep concern in a free society. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law-breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchy. No civilized nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him ? Can the right to life of a citizen be put in abeyance on his arrest. ... The answer, indeed, has to be an emphatic 'No'. Police is, no doubt, under a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of an offence but it must be remembered that the law does not permit use of third degree methods or torture of accused in custody during interrogation and investigation with a view to solve the crime. End cannot justify the means. The interrogation and investigation into a crime should be in true sense purposeful to make the investigation effective. By torturing a person and using third degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid. No society can permit it. In cases where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, courts may award compensation in a proceeding under Article 32 or 226. GUIDELINES WOULD NOT HELP : The Supreme Court of India interventions in the 1990s passed various directions to try and ameliorate the problem of police violence through cases such as Joginder Kumar v. State of UP [AIR 1994 SC 1349] and D.K. Basu v. State of West Bengal [(1997) 1 SCC 416] , where guidelines were passed to try and secure two rights in the context of any state action — a right to life and a right to know. Guidelines of the top court would not be of value, unless the the local magistrate, who is the judicial actor wielding real power to realise substantial change in police practices. The reason is when a person is arrested, the local magistrate, before whom he should be produced within 24 hours, is the point of first contact for a citizen to ensure rule of law under the constitution of India. BURDEN OF PROOF : Despite a suggestion by the Law Commission of India that if a person dies in police custody the burden should be on the police to show that they are not responsible for it, the law still requires the prosecution to prove that the police caused the death. India’s political commitment to address torture is symbolised by its failure to ratify the UN Convention Against Torture, and thereby putting itself in the list of only 19 countries to have not adopted it. ISSUES WITH POLICE ADMINISTRATION : Most policemen are made to believe from their very training days that brutality is inherent in the very role to be performed by them, to instil a certain degree of fear in the citizens. This attitude is reinforced by training instructors, who abuse and even manhandle errant trainees. This would explain the behavior of police and their brutality. Large vacancies in police forces are also responsible for this state. Against the UN recommendations of 222 police personnel for a population of one lakh, most States in our country have around 100 personnel only. Proper planning in recruitment, training, in service courses and close supervision by senior officers can go a long way in reducing, if not eradicating, brutality by policemen. KIND OF IMPUNITY : A hardened criminal, Vikas Dubey, who had 62 cases against him before his gang allegedly shot dead eight policeme, was supposedly being transported without handcuffs; he snatched weapons from those escorting him, according to the police version of the incident. Indeed, this is no more than a self-indictment of the state police, whose conduct has raised far too many questions in the recent past. The brutal last episode of Dubey’s serial crimes should be no defence if the shooting turns out to be an extra-judicial killing. There is no question that crimes such as those Dubey was involved in must be met with exemplary punishment. The process of establishing guilt and executing punishment is not an incidental part of justice, but its integral soul. A fair and transparent trial cannot be dispensed with in order to satisfy cries for vengeance. Last year, when the Cyberabad police shot dead four people accused in a case of gang rape and murder, people celebrated in the streets. The courts and the National Human Rights Commission have also shown a lenient approach in such cases. Goading the police on to deliver instant justice, or even tolerating such behaviour, creates an atmosphere of impunity that could lead to murder of innocent people as happened with the custodial deaths in Tamil Nadu. Support for such killings by the police will not make a society more just. Mob justice is no justice at all. CONCLUSION : India cannot afford any more Sattankulams. We may not be able put a complete end to police violence, but we can reduce its incidence.