Odisha Judicial Service (Prelims) Exam 2006

The statement “There is no distinction between public and private law” is attributed to Duguit.

Holland defined Jurisprudence as the formal science of those relations of mankind which are generally recognised as having legal consequences and as such as the formal science of positive law. 

Kelsen’s theory of law is called pure theory of law because Kelsen defined law in accordance with morality and purity. Kelsen's strict separation of law and morals was an integral part of his presentation of the pure theory of law.

According to Savigny, law is not a consciously created phenomenon but is the gradual distillation of the volksgeist (the spirit of the people). Law is found, not made.

Positive law may be characterized as "law actually and specifically enacted or adopted by proper authority for the government of an organized jural society."

The realist theory of corporate personality is associated with opposition to the concession theory of incorporation.

"All theories on the subject of punishment have more or less broken down," observed Sir Henry Maine in 1864 in a speech before the Council of the Governor General of India.

According to Roscoe Pound, “Law is social engineering which means a balance between the competing interests in society,” in which applied sciences are used for resolving individual and social problems. 

“Fear is an emotion that plays a paramount part in every human being’s life. If a man knows that violation of laws will render him to suffer, he by instinct fears to commit it.” The above statement supports the retributive theory of punishment. This theory underlines the idea of vengeance and revenge rather than that of social welfare and security.

1. Imperative theory of law - 1832
2. Volksgeist - 1842
3. Social solidarity - 1893
4. Social engineering - 1894

Statement 1. The central notion of natural law is the existence of objective moral principle as the point of moral principles is to give ethical structure to the pursuit of these basic goods. 
Statement 3. These principles are discovered as the essential nature of man. Moral principles enable us to select among competing goods and to define what a human being can permissibly do in pursuit of basic goods.

Victor Hugo has said, "To open a school is to close a prison." Reformative theory of punishment follows this dictum.

According to Jurists of Analytical School, custom becomes law after its recognition by the sovereign.

It is defined by Paul Vino Gradoff.

Right to mere occupancy is not an attribute of ownership.

The statement “Precedents are the past decisions which are used as guide in the moulding of future decisions”, is attributed to Dias. 

Bentham referring to the concept of vengeance wrote, "The pleasure of vengeance calls in my mind sermon’s riddle. It is sweet carrying out of terrible, it is the honey dropping from the lion's mouth."

The chief advantages of legisla­tion over precedent are the following:

1. Legislation is both constitutive and ab­rogative whereas precedent merely possesses constitutive efficacy.
2. Justice demands that laws should be known before they are applied and enforced by the law courts.
3. Legislation can make rules in anticipation for cases that have not as yet arisen, whereas precedent must wait for the occurrence of some dispute before the court can create any definite rule of law.
4. Legislation is superior in form; brief, clear, easily accessible and understandable.

Austin says that a "relative duty" corresponds to a right. It is a duty to be fulfilled towards a determinate person; while on the other side, there are duties to which there are no corresponding rights. He named such duties as "absolute duties" and he said that there are four kinds of such absolute duties, viz.
(i)    Self-regarding duties
(ii)   Duties owed to persons indefinitely
(iii)  Duties not regarding persons, i.e. the duties owed to God and lower animals
(iv)  Duties owed to the sovereign

The Indian constitution provides for dual system of government consisting of a federal or union government and a number of state governments, and distributes powers between both the governments.
On the other hand, the Indian constitution also incorporates many features of a unitary state.
The Indian constitution is neither purely federal nor purely unitary but is a combination of both.
Thus, the nature of Indian constitution is known as quasi-federal.

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY, this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

The 42^nd Amendment changed the description of India from a "sovereign democratic republic" to a "sovereign socialist secular democratic republic", and also changed the words "unity of the nation" to "unity and integrity of the nation".

The President shall hold office for a term of five years from the date on which he enters upon his office.

In the case of Salomon V. Salomon & Co. Ltd, the court applied the doctrine of “lifting the veil” to determine distinct personality of a corporation. 

According to article 39 (c) of the Indian Constitution, the economy of the state will be administered in such a manner so that wealth may not yet be concentrated in a few hands and the means of production may not be used against the public interest

Article 323 of the Indian Constitution is related to the Reports of Public Service Commissions.

According to this Act, the Government has decided to continue the existing policy of reservation in promotion for the Scheduled Castes and Scheduled Tribes.

Article 316 of the Indian Constitution states that the Chairman and other members of a Public Service Commission shall be appointed, in the case of the Union Commission or a Joint Commission by the President and in the case of a State Commission by the Governor of the State. 

An amendment of the Constitution can be initiated only by the introduction of a Bill in either House of Parliament.

Article 355 of the Constitution of India provides that it shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution.

Article 22 (1) of the Indian Constitution provides that no person who is arrested shall be detained in custody without being informed, as soon as may be of the grounds for such arrest nor shall he be denied the right to consult and to be defended by a legal practitioner of his own choice. 

When a President is to be impeached for violation of the Constitution, the charge shall be preferred by either House of Parliament.

The salary of a sitting judge of the Supreme Court of India may be reduced if a proclamation of financial emergency is in operation.

 In Air India V. Nargesh Meerza (1981) 4SCC 335, the termination of air hostesses on the ground of pregnancy within four years was held to be violative of the Constitution in being unreasonable and arbitrary as it compelled the air hostesses not to have any children. It was held stating that it is settled law that article 14 strikes at arbitrariness in state action and that the principle of reasonableness "pervades" article 14 like a brooding omnipresence.

 It was held in this case of Keshavanand Bharti V. State of Kerala that the Preamble to the Constitution of India is a part of the Constitution.

The fundamental duties are defined as the moral obligations of all citizens to help promote a spirit of patriotism and to uphold the unity of India.

The chairman or a member of the UPSC can be removed from office by the president only in the manner and on the grounds mentioned in the Constitution. However, in this case, the president has to refer the matter to the Supreme Court for an inquiry. If the Supreme Court after the inquiry, upholds the cause of removal and advises so, the president can remove the chairman or a member.

Austin concluded that international law is not true law but ‘international positive morality’ only analogous to the rules binding a club or society.

 International Law is a body of rules and principles of action which are binding upon civilised states in their relations with one another.

Article 163 (2) of the Indian Constitution provides that if any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion. 

India follows the "dualist‟ school of law in respect of implementation of international law at domestic level. 

Every Judge of the Supreme Court shall hold office until he attains the age of sixty-five years. It is provided under article 124 of the Indian Constitution.

 Decisions or determinations of the organs of International Institutions as a source of International Law does not find mention in Article 38 of the Statute of International Court of Justice.

International law is that law which is applied in relation of the states and to other subjects of international law.
National or state law which is called municipal law is applied within state to the individuals and corporate entities which are the bearers of rights and duties.

The 44^th Constitutional Amendment Act, 1978 provides that during emergency, the right to move to the Court for the enforcement of fundamental rights except articles 20 and 21 is suspended of the Constitution.

Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations are subsidiary means for the determination of rules of law.

This distinction is based on the view that a government is an instrument in the service of the state, which is an entity composed of a territory, a population and a public authority.

Article 38(1)(b) of the Statute of the International Court of Justice accepts "international custom" as a source of law, but only where this custom is

1. evidence of a general practice, (the objective component)
   (2) accepted as law. (the opinio juris or subjective component)

Article 1(2) of the UN Charter provides for developing friendly relations among nations based on respect for the principle of equal rights and self-determination of people, and to take other appropriate measures to strengthen universal peace. 

An unrecognised state cannot sue in the courts of the non-recognising state.

Article 38 of the International Court of Justice provides that 

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
   a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
   b. international customs, as evidence of a general practice accepted as law;
   c. the general principles of law recognized by civilized nations;
   d. subject to the provisions of Article 5 - judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 

Both the Civil and Criminal Laws of the former state continue until changed by the successor state.

The principle of ‘continuity of state’ means the new government will succeed only to the debt obligations of the predecessor state.

In order to ensure prompt and effective action by the United Nations, its members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility, the Security Council acts on their behalf.

In general, resolutions adopted by the Security Council acting under Chapter VII of the Charter, are considered binding, in accordance with Article 25 of the Charter.

Whereas human-made law regards law from the position of its origins (i.e. who it was that posited it), positive law regards law from the position of its legitimacy. Thus, the existence of Human Rights is not independent of positive law.

Right of people to self-determination as Human Right is not expressly provided for in the UDHR, 1948. 

An essential component of tort is breach of duty. Tort is breach of some duty independent of contract which has caused damage to the plaintiff giving rise to civil cause of action and for which remedy is available.

Article 2(7) of the UN Charter provides that nothing contained in the present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll. 

Right to economic and social development is considered as the third generation of Human Rights. 

M can be held vicariously liable for negligence committed by a person S, as if the owner was a principal and the S was his or her agent, if the S is using the car primarily for the purpose of performing a task for M.

Tortious liability arises from the breach of duty primarily affixed by law. The duty is towards persons in general and its breach is redressable by an action for unliquidated damages.

Article 14 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) provides protections for rural women and their special problems, ensuring the right of women to participate in development programs,
"to have access to adequate health care facilities,"
"to participate in all community activities,"
"to have access to agricultural credit," and
"to enjoy adequate living conditions."

Option 2 does not constitute course of employment.
The liability arises even though the servant acted against the express instruction and for no benefit of his master.

The neighbour principle is that one must take reasonable care to avoid acts or omissions that could reasonably be foreseen as likely to injure one's neighbour.

In the tort of defamation, someone is ridiculed.

In law of tort, a person should be called upon to pay for damage caused by his fault.

The criminal law often requires one of the conspirators to take an overt step to accomplish the illegal act to demonstrate the reality of their intention to break the law, whereas in a civil conspiracy, an overt act towards accomplishing the wrongful goal may not be required.

A plaintiff has no remedy under strict liability if the defendant is negligent.

Y’s act caused an explosion resulting in damage. Y alone is liable as his act caused the damage.

Persons are said to be joint tort-feasors when their separate shares in the commission of the tort are done in furtherance of a common design.

The municipality is liable because a known source of danger caused damage through unforseeable sequence of events.

In the law of tort, the legal elements necessary to establish a civil conspiracy are substantially the same as for establishing a criminal conspiracy, i.e. there is an agreement between two or more natural persons to break the law at some time in the future or to achieve a lawful aim by unlawful means.

Abatement is a remedy in an action for nuisance in tort. Abatement means the summary remedy or removal of a nuisance by the party injured without having recourse to legal proceedings.

An action lies in every case for a private nuisance. It also lies where the nuisance is public, provided that the plaintiff can prove that he has sustained some special injury.

1.     The matter commented on must be of public interest. 
   

2.     The comment must not be malicious. 
   

3.     The comment must be an expression of opinion.
   

B is liable for false imprisonment because he has caused total restraint to A. B is liable for wrongful confinement.

A is not liable because B’s forgetfulness was responsible for B remaining in the room. A is not liable for wrongful confinement.

Malicious prosecution is a common law intentional tort, and like the tort of abuse of process, its elements include
(1) intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action (civil or criminal) that is
(a) brought without probable cause and
(b) dismissed in favor of the victim of the malicious prosecution.

Mens rea is an element of criminal responsibility which means a guilty mind or a guilty or wrongful purpose or a criminal intent. 

Prosecution of the defendant by the plaintiff is not an essential element of the tort of malicious prosecution.
Prosecution of the plaintiff by the defendant is not an essential element of the tort of malicious prosecution.

Under section 494 of the Indian Penal Code, "whoever, having a husband or wife living, contracts a marriage during the life of the former husband or wife, that marriage is void." In the above case at the time of marriage, X is not living. So, the offence of bigamy under section 494 of the Indian Penal Code is not completed.

Mens rea in criminal law is viewed as one of the necessary elements of all crimes. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus reus non facit reum nisi mens sit rea, which means "the act is not culpable unless the mind is guilty".

Here, A is guilty of murder.

When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

Here, A is liable for attempt as he has intention to cause death and has done acts towards the commission of the crime which clearly indicate his intention.

Here, A will not be liable for any offence as he joined the gang under threat of being beaten.

A person abets the doing of a thing, who engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing.

An abettor can be held liable for abetment if the abetted person is not liable.

Here, A, B, C and D are jointly liable for murder on the basis of common intention under section 34. E is acquitted, so he cannot be liable.

Here, A, B and C are all liable for criminal conspiracy as no attempt was made by any of them in furtherance of criminal conspircay.

Section 120-A of the Indian Penal Code states that when two or more persons agree to do or cause to be done – (1) an illegal act or (2) an act which is not illegal by illegal means, such an agreement is designated as a criminal conspiracy. 

A speech is punishable as sedition if it is intended or has a tendency to create disorder or disturbance of public peace by resort to violence.

An offence of sedition requires bringing or attempting to bring into hatred or contempt or exciting or attempting to excite disaffection towards the Government of India.

The offence of theft has been committed by the six persons.

The act of the accused causing death amounts to murder if the act is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of that person. It is defined in clause second of section 300 of the Indian Penal Code.

The offence of extortion becomes robbery if the offender at the time of committing the extortion, in the presence of the person, puts in fear and commits the extortion by putting that person in fear of instant death or of instant hurt or of instant wrongful restraint to that person or to some other person and by so putting in fear, induces the person so put in fear then and there to deliver up the thing so extorted.

Section 300 specifies certain situations when the murder is considered as culpable homicide not amounting to murder. These are -
If the offender does an act that causes death because of grave and sudden provocation by the other.
If the offender causes death while exceeding the right to private defense in good faith.
If the offender is a public servant and does an act that he, in good faith, believes to be lawful.
If the act happens in a sudden fight in the heat of passion.
If the deceased is above 18 and the death is caused by his own consent.

A is guilty of criminal misappropriation if he purchases eatables with the money as he is hungry and has no money. It is punishable under section 403 of the Indian Penal Code.

The offence committed by the employer is criminal breach of trust. An employer is entrusted with the amount of provident fund by the employee which is criminally misappropriated by the employer. Thus, due to entrustment by the employee, the amount of criminal misappropriation is an offence of criminal breach of trust under section 405 of the Indian Penal Code. 

This contract can be avoided by the servant on the grounds of undue influence. A contract may be seen as undue influence when one party uses undue influence to persuade another party into entering into a contract or the transfer of property which is disadvantageous to the influenced party.

Where both the parties entering into an agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is void.

The English law does not recognize a past consideration. According to Anson, a past consideration is a mere sentiment of gratitude or honour prompting a return for benefits received.

When the damages cannot be assessed, the party may be awarded by the court nominal damages. Nominal damages are generally recoverable by a plaintiff who successfully establishes that he or she has suffered an injury caused by the wrongful conduct of a defendant, but cannot offer proof of a loss that can be compensated.

"V” does not succeed as the nature of damage is special. 

The articles supplied should be necessaries for making claim under “necessaries” supplied to a person incapable of contracting.

“B” accepts the proposal of “A” by posting a letter of acceptance to “A”. The above acceptance can be revoked by “B” before the letter of acceptance reaches “A”.

In case of conflict of jurisdiction of the courts, the incidence of a contract shall be governed by the law of the place where the contract is made.

An agreement to which the consent of the promisor is freely given is not void merely because the consideration is inadequate; but the inadequacy of the consideration may be taken into account by the Court in determining the question whether the consent of the promisor was freely given. 

The principle behind the doctrine of pan delicto is that where each party is equally at fault, the law favours him who is actually in possession, or that where both parties are equally culpable, the law will leave them where it finds them and will not engage itself to determine the rights as between them.

The plaintiff entered into an agreement to work for a periodical and as per the agreement, he was to receive a lumpsum amount on completion of his work. When the plaintiff had written part of the work, the defendant had already abandoned the project. The plaintiff was held entitled to sue for the work already done because the plaintiff’s claim was contractual.

A standard form of contract is the one in which the terms are fixed by one of the parties in advance and one open to acceptance by any one.

Uberrima fides is a Latin phrase meaning "utmost good faith". It is the name of a legal doctrine which governs insurance contracts.

 A contingent contract is a contract to do or not to do something, if some event, collateral to such contract, does or does not happen.“A” insures his factory against damage or destruction by fire. It is a contingent contract.

A quasi-contract is a legal agreement created by the courts between two parties who did not have a previous obligation to each other.
In above facts, the defendant's liability arises in quasi-contract.

X's mother proved that he was an idiot, incapable of understanding the transaction and that he mostly wandered about. The sale was held void. X's mother will succeed.

Picking up an article and approaching the cashier’s desk for payment constitues an offer in a self-service store.

Liquidated damages are essentially the payment of money stipulated as warning to the offending party.

The communication of acceptance through telephone is regarded as complete when acceptance comes to the knowledge of party proposing.

There is a legal maxim, non est factum, which means "not his deed" and a special defence in contract law to allow a person to avoid having to respect a contract that she or he signed because of certain reasons. The defence of “non est factum” is available to the contracting party who has committed mistake as to the nature of contract.