Legal and Logical Reasoning PDF

LEGAL APTITUDE AND LOGICAL REASONING Lesson 1 Indian Constitution 189 2 Elements of General Laws 215 A. Indian Contract Act B. Law Relating to Torts 3. Elements of Company Secretaries Legislation 252 4. Elements of Company Law 262 5. Legal Reasoning 291 6. Logical Reasoning 306 7. Verbal Reasoning 362 8. Non-Verbal Reasoning 401 185 186 Legal Aptitude and Logical Reasoning 186 Legal Aptitude and Logical Reasoning CONTENT S. No. Lesson Topics Covered Part A - Legal Aptitude 1. Indian Constitution Preamble Citizenship Fundamental Rights and Fundamental Duties Directive Principles of State Policy State under Constitution President and Governors Council of Ministers and Prime Minister Lok Sabha, Rajya Sabha and Legislative Assembly, Legislative Council Supreme Court and High Courts Landmark Amendment in Constitution List of subjects-Centre, State and Concurrent 2 Elements of General Laws A. Law of Contract (Indian Contract Act and Law of Torts) Offer, Acceptance, Consideration and Competency to Contract. Agreement Types of Contract: Void, Voidable, Unenforceable Performance of Contract Frustration of Contract Quasi Contract Breach of Contract and Remedies B. Law of Torts Basics of Torts Specific Defenses Nuisance and Negligence Strict, Absolute and Vicarious Liability Trespass Legal Aptitude and Logical Reasoning 187 Legal Aptitude and Logical Reasoning 187 Malicious Prosecution 3 Elements of Company The Institute of Company Secretaries of India Secretaries Legislation Vision, Mission, Motto and Core Values of the Institute Company Secretary under Company Secretaries Act, 1980. Functions of Company Secretary under the Companies Act, 2013 Role of Company Secretary in Employment Role of Company Secretary in Practice 4 Elements of Company Law Meaning and Nature of Company Types of Companies Incorporation of a Company Types of capital Board of Directors - (Concept, Appointment and Removal of Directors) Board Meetings & Shareholders Meetings Corporate Social Responsibility Business Ethics Ethical Dilemma 5 Legal Reasoning Legal Fundamentals and Terms Legal Problems – Reading and understanding a case Legal Terminology and Maxims Legal Reasoning- (a) Reasoning by Analogy (b) Inductive and Deductive Reasoning Questions of Fact (or factual issues) Questions of Law (or legal issues) Landmark Judgments of Supreme Court and High Court Reading Comprehension 188 Legal Aptitude and Logical Reasoning 188 Legal Aptitude and Logical Reasoning Part B - Logical Reasoning 6 Logical Reasoning Calendars Cause and Effect Reasoning Clocks Coding and Decoding Deriving Conclusion from Passages Drawing Inference Number Test Sequence and Series Statement and Assumptions 7 Verbal Reasoning Alphabet Test Alpha Numeric Sequence Puzzle Analogy Assertion and Reason Blood Relations Decision Making Inserting Missing Characters Logical Sequence Test Logical Venn Diagram Number, Ranking and Time Sequence Test Syllogism Truth Tellers and Liars 8 Non-Verbal Reasoning Analytical Reasoning Classification Completion of Incomplete Pattern Figure Matrix Grouping of Identical Figures Mirror Image Rule Detection Numeric and Alphabet Series PART A LEGAL APTITUDE 189 190 Legal Aptitude and Logical Reasoning Lesson 1 INDIAN CONSTITUTION PREAMBLE WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into 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 Legal Aptitude and Logical Reasoning 191 INTRODUCTION The Constitution which lays down the basic structure of a nation's polity is built on the foundations of certain fundamental values. The vision of our founding fathers and the aim and objectives which they wanted to achieve through the Constitution are contained in the Preamble, the Fundamental Rights and the Directive Principles. These three may be described as the soul of the Constitution and the testament of founding fathers to the succeeding generations together with the later Part on Fundamental Duties. The vision of socio-economic change through the Constitution is reflected in its Preamble. The Preamble expresses the ideals and aspirations of a renascent India. At independence, emerging out of a long period of foreign domination and oppression under a feudal system, the people were grimly struggling to be reborn into a life of dignity and hope. The scheme of the Constitution for realisation of socio-economic agenda comprises of both the justiciable Fundamental Rights as well as the non-justiciable Directive Principles. The judicial contribution to the synthesis and the integration of Fundamental Rights and the Directive Principles in the process of "constitutionalising" social and economic rights has been crucial to the realisation of the Directive Principles not only as a means to effectuate Fundamental Rights but also as a source of laws for a welfare state. (Source: Report of the National Commission to Review the Working of the Constitution, 31st March, 2002) The Constitution places a pre-eminent emphasis on the values of liberty and justice, on treating all citizens as equal before law and on safeguarding the rights of minorities and the oppressed. The people of India derive their existence as a political community from the Constitution, which “we the people”, gave to ourselves and, in the process established the Republic of India. It is because the country is Republic, and not a mere democracy, that the people are enjoined to nurture and indeed celebrate, their linguistic, ethnic, cultural and religious diversity and to ensure that the citizens do not suffer from want and indignity. Though the Indian tapestry of traditional multiculturism nourished by many centuries of assimilative forces has been subjected to occasional fissures, the most diverse nation on earth has been able to overcome those crises and use the innate strength of Indian Republic to uphold the dignity and integrity of India. Broad Framework of the Constitution The Constitution of India came into force on January 26, 1950. It is a comprehensive document. Apart from dealing with the structure of Government, the Constitution makes detailed provisions for the rights of citizens and other persons in a number of entrenched provisions and for the principles to be followed by the State in the governance of the country, labelled as “Directive Principles of State Policy”. All public authorities – legislative, administrative and judicial derive their powers directly or indirectly from the Constitution which in turn derive its authority from the people. The preamble to the Constitution sets out the aims and aspirations of the people of India. It is a part of the Constitution. The preamble declares India to be a Sovereign, Socialist, Secular, Democratic Republic and secures to all its citizens Justice, Liberty, Equality and Fraternity. It is declared that the Constitution has been given by the people to themselves, thereby affirming the republican character of the polity and the sovereignty of the people. The polity assured to the people of India by the Constitution is described in the preamble as a Sovereign, Socialist, Secular, and Democratic Republic. The expression “Sovereign” signifies that the Republic is externally and internally sovereign. Sovereignty in the strict and narrowest sense of the term implies independence all round, within and without the borders of the country. As discussed above, legal sovereignty is vested in the people of India and political sovereignty is distributed between the Union and the States. The democratic character of the Indian polity is illustrated by the provisions conferring on the adult 192 Legal Aptitude and Logical Reasoning citizens the right to vote and by the provisions for elected representatives and responsibility of the executive to the legislature. The word “Socialist”, added by the 42nd Amendment, aims to secure to its people “justice—social, economic and political”. The Directive Principles of State Policy, contained in Part IV of the Constitution are designed for the achievement of the socialistic goal envisaged in the preamble. The expression “Democratic Republic” signifies that our government is of the people, by the people and for the people. Federal or Unitary Constitution of India is basically federal but with certain unitary features. The majority of the Supreme Court judges in Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, were of the view that the federal features form the basic structure of Indian Constitution. However, there are discussions as to whether the Indian Constitution establishes a federal system or it stipulates a unitary form of Government with some basic federal features. Thus, to decide whether Constitution is federal, unitary or quasi federal, it would be better to have a look at the contents of the Constitution. The essential features of a Federal Polity or System are—dual Government, Distribution of Powers, Supremacy of the Constitution, Independence of Judiciary, Written Constitution, and a rigid procedure for the amendment of the Constitution. The political system introduced by our Constitution possesses all the aforesaid essentials of a federal polity as both the Union and the State Governments and their respective organs derive their authority from the Constitution and it is not competent for the States to secede from the Union. There is a division of legislative and executive powers between the Union and the State Governments. The Supreme Court stands at the head of our judiciary to guard against the violation of the constitutional provisions. The Supreme Court decides disputes between the Union and the States, or the States inter se and interprets finally the provisions of the Constitution. The question as to whether the Indian Constitution has a federal form of Government or a unitary constitution with some federal features came up in various cases before the Supreme Court and the High Courts. But in most cases, the observations have been made in a particular context and have to be understood accordingly. The question rests mostly on value judgement i.e. on one’s own philosophy. FUNDAMENTAL RIGHTS The Constitution seeks to secure to the people “liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and fraternity assuring the dignity of the individual”. With this object, the fundamental rights are envisaged in Part III of the Constitution. Part III of the Indian Constitution guarantees six categories of fundamental rights. These are: — Right to Equality — Articles 14 to 18; — Right to Freedom — Articles 19 to 22; — Right against Exploitation — Articles 23 and 24; — Right to Freedom of Religion — Articles 25 to 28; — Cultural and Educational Rights — Articles 29 and 30; — Right to Constitutional Remedies — Articles 32. Previously the right to property under Article 31 was also guaranteed as a Fundamental Right which has been removed by the 44th Constitutional Amendment Act, 1978. Now right to property is not a fundamental right, it is now only a legal right. Legal Aptitude and Logical Reasoning 193 Right to Equality Right Right to to Constitutional Freedom Remedies FUNDAMENTAL RIGHTS Cultural and Right Educational against Rights Exploitation Right to Freedom of Religion Apart from this, Articles 12 and 13 deal with definition of ‘State’ and ‘Law’ respectively. Articles 33 to 35 deal with the general provisions relating to Fundamental Rights. No fundamental right in India is absolute and reasonable restrictions can be imposed in the interest of the state by valid legislation and in such case the Court normally would respect the legislative policy behind the same.( People’s Union for Civil Liberties v. Union of India, (2004) 2 SCC 476). From the point of view of persons to whom the rights are available, the fundamental rights may be classified as follows: (a) Articles 15, 16, 19 and 30 are guaranteed only to citizens. (b) Articles 14, 20, 21, 22, 23, 25, 27 and 28 are available to any person on the soil of India—citizen or foreigner. (c) The rights guaranteed by Articles 15, 17, 18, 20, 24 are absolute limitations upon the legislative power. State With a few exceptions, all the fundamental rights are available against the State. Under Article 12, unless the context otherwise requires, “the State” includes— 194 Legal Aptitude and Logical Reasoning (a) the Government and Parliament of India; (b) the Government and the Legislature of each of the States; and (c) all local or other authorities: (i) within the territory of India; or (ii) under the control of the Government of India. The expression ‘local authorities’ refers to authorities like Municipalities, District Boards, Panchayats, Improvement Trusts, Port Trusts and Mining Settlement Boards. In Ajay Hasia v. Khalid Mujib, AIR 1981 SC 481, the Supreme Court has enunciated the following test for determining whether an entity is an instrumentality or agency of the State: (1) If the entire share capital of the Corporation is held by the Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of the Government. (2) Where the financial assistance of the State is so much as to meet almost the entire expenditure of the corporation it would afford some indication of the corporation being impregnated with government character. (3) Whether the corporation enjoys a monopoly status which is conferred or protected by the State. (4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or an instrumentality. (5) If the functions of the corporation are of public importance and closely related to government functions, it would be a relevant factor in classifying a corporation as an instrumentality or agency of government. (6) If a department of government is transferred to a corporation, it would be a strong factor supporting an inference of the corporation being an instrumentality or agency of government. Example : An act is passed by the parliament. The subject matter of the Act was to grant certain pay related benefits to all employees of the State. Are only states of India(eg. State of Maharashtra or Uttar Pradesh) are required to comply with law? According to Article 12 of the constitution the word state includes not only States of India but also certain other authorities/ Organisations. Justifiability of Fundamental Rights Article 13 gives teeth to the fundamental rights. It lays down the rules of interpretation in regard to laws inconsistent with or in derogation of the Fundamental Rights. Existing Laws : Article 13(1) relates to the laws already existing in force, i.e. laws which were in force before the commencement of the Constitution. A declaration by the Court of their invalidity, however, will be necessary before they can be disregarded and declares that pre-constitution laws are void to the extent to which they are inconsistent with the fundamental rights. Future Laws : Article 13(2) relates to future laws, i.e., laws made after the commencement of the Constitution. After the Constitution comes into force the State shall not make any law which takes away or abridges the rights conferred by Part III and if such a law is made, it shall be void to the extent to which it curtails any such right. Legal Aptitude and Logical Reasoning 195 The word ‘law’ according to the definition given in Article 13 itself includes— “... any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India, the force of law.” By the Constitution (Twenty-Fourth Amendment) Act, 1971 a new clause has been added to Article 13 which provides that— “Nothing in this Article shall apply to any amendment of this Constitution made under Article 368” Article 13 came up for judicial review in a number of cases and the Courts have evolved doctrines like doctrine of eclipse, severability, prospective overruling, acquiescence etc. for interpreting the provisions of Article 13. Example: There was a Law in force before 26th January, 1950 which was against the Fundamental Rights. It was contended that it can still be in force as the constitution does not make it void. Is the contention correct? According to Article 13(1) of the Constitution of India, all the laws that are inconsistent with Fundamental Rights are void. Right of Equality Equality before Law Prohibition of Abolition Discrimination of on Grounds of Titles Religion, Race, Caste, Sex or RIGHT Place of Birth TO EQUALITY Equality Abolition of of Opportunity in Untouchability Matters of Public Employment 196 Legal Aptitude and Logical Reasoning Articles 14 to 18 of the Constitution deal with equality and its various facets. The general principle finds expression in Article 14. Particular applications of this right are dealt with in Articles 15 and 16. Still more specialised applications of equality are found in Articles 17 and 18. Equality before the law and equal protection of the laws Article 14 of the Constitution says that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. As is evident, Article 14 guarantees to every person the right to equality before the law or the equal protection of the laws. The expression ‘equality before the law’ which is barrowed from English Common Law is a declaration of equality of all persons within the territory of India, implying thereby the absence of any special privilege in favour of any individual. Every person, whatever be his rank or position is subject to the jurisdiction of the ordinary courts. The second expression “the equal protection of the laws” which is based on the last clause of the first section of the Fourteenth Amendment to the American Constitution directs that equal protection shall be secured to all persons within the territorial jurisdiction of the Union in the enjoyment of their rights and privileges without favouritism or discrimination. Article 14 applies to all persons and is not limited to citizens. A corporation, which is a juristic person, is also entitled to the benefit of this Article (Chiranjit Lal Chowdhurary v. Union of India, AIR 1951 SC 41). The right to equality is also recognised as one of the basic features of the Constitution (Indra Sawhney v. Union of India, AIR 2000 SC 498). Example: A law has been passed for grant of financial assistance to women below the Age of 14 years for education. It was contented that there shall be equality before the law. Can it be passed? Yes, it can be passed if the Legislation is based on reasonable classification and intelligible differentia. Prohibition of discrimination on grounds of religion etc. Article 15(1) prohibits the State from discriminating against any citizen on grounds only of: (a) Religion (b) Race (c) Caste (d) Sex (e) Place of birth or (f) Any of them Article 15(2) lays down that no citizen shall be subjected to any disability, restriction or condition with regard to— (a) Access to shops, public restaurants, hotels and places of public entertainment; or (b) The use of wells, tanks, bathing ghats, roads and places of public resort, maintained wholly or partially out of State funds or dedicated to the use of the general public. Article 15(3) and 15(4) and 15(5) and 15(6) create certain exceptions to the right guaranteed by Article 15(1) and 15(2). Under Article 15(3) the State can make special provision for women and children. It is under this provision that courts have upheld the validity of legislation or executive orders discriminating in favour of women (Union of India v. Prabhakaran, (1997) 2 SCC 633). Legal Aptitude and Logical Reasoning 197 Article 15(4) permits the State to make special provision for the advancement of— (a) Socially and educationally backward classes of citizens; (b) Scheduled Castes; and (c) Scheduled tribes. Article 15(5) inserted in the Constitution of India by the Constitution (Ninety-third Amendment) Act, 2005, permits the State to make special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30. Further, Article 15(6) inserted in the Constitution of India by the Constitution (One Hundred and Third Amendment) Act, 2019, provides that nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,— (a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and (b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category. Explanation.—For the purposes of Article 15 and Article 16, "economically weaker sections" shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage. Example: Fundamental Right have been given to the citizens but they are not without any restrictions. Certain exceptions are also provided with the Fundamental rights. Equality of opportunity in matters of public employment Article 16(1) guarantees to all citizens equality of opportunity in matters relating to employment or appointment of office under the State. Article 16(2) prohibits discrimination against a citizen on the grounds of religion, race, caste, sex descent, place of birth or residence. However, there are certain exceptions provided in Article 16(3), 16(4) and 16(5). These are as under: (1) Parliament can make a law that in regard to a class or classes of employment or appointment to an office under the Government of a State or a Union Territory, under any local or other authority within the State or Union Territory, residence within that State or Union Territory prior to such employment or appointment shall be an essential qualification. [Article 16(3)] (2) A provision can be made for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State. [Article 16(4)] (3) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under 198 Legal Aptitude and Logical Reasoning the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. [Article 16(4A)] (4) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year. [Article 16(4B)] (5) A law shall not be invalid if it provides that the incumbent of an office in connection with the affair of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination. [Article 16(5)] (6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category. [Article 16(6)] Abolition of untouchability Article 17 says that “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law. Untouchability does not include an instigation to social boycott (Davarajiah v. Padamanna, AIR 1961 Mad. 35, 39). Punishment for violation of Article 17 is to be provided by Parliament under Article 35(a) (ii). Abolition of titles Article 18 is more a prohibition rather than a fundamental right. British Government used to confer titles upon persons who showed special allegiance to them. Many persons were made Sir, Raj Bahadur, Rai Saheb, Knight, etc. These titles had the effect of creating a class of certain persons which was regarded superior to others and thus had the effect of perpetuating inequality. To do away with that practice, Article 18 provides as under: (i) No title, not being a military or academic distinction, shall be conferred by the State. (ii) No citizen of India shall accept any title from any foreign State. (iii) No person, who is not a citizen of India shall, while he holds any office or trust under the State, accept without the consent of the President, any title from any foreign State. (iv) No person, holding any office of profit or trust under State shall without the consent of the President, accept any present, emolument or office of any kind from or under a foreign State. Rights Relating to Freedom Articles 19-22 guarantee certain fundamental freedoms. The Six Freedoms of Citizens Article 19(1), of the Constitution, guarantees to the citizens of India six freedoms, namely: (a) Freedom of speech and expression; (b) Assemble peaceably and without arms; Legal Aptitude and Logical Reasoning 199 (c) Form associations or unions or co-operative societies (d) Move freely, throughout the territory of India; (e) Reside and settle in any part of the territory of India; (f) Sub-clause (f) is omitted by section 2 of the Constitution (Forty-fourth Amendment) Act, 1978; (g) practise any profession, or to carry on any occupation, trade or business. These freedoms are those great and basic rights which are recognized as the natural rights inherent in the status of a citizen. At the same time, none of these freedoms is absolute but subject to reasonable restrictions specified under clauses (2) to (6) of the Article 19. The Constitution under Articles 19(2) to 19(6) permits the imposition of restrictions on these freedoms subject to the following conditions: (a) The restriction can be imposed by law and not by a purely executive order issued under a statute; (b) The restriction must be reasonable; (c) The restriction must be imposed for achieving one or more of the objects specified in the respective clauses of Article 19. Article 19(2) specifies the limits upto which the freedom of speech and expression may be restricted. It enables the Legislature to impose by law reasonable restrictions on the freedom of speech and expression under the following heads: Permissible Restrictions (1) Sovereignty and integrity of India (2) Security of the State (3) Friendly relations with foreign States (4) Public Order (5) Decency or morality (6) Contempt of court (7) Defamation (8) Incitement to an offence Reasonable restrictions under these heads can be imposed only by a duly enacted law and not by the executive action [Express News Papers Pvt. Ltd. v. Union of India, (1986) 1 SCC 133]. Example: A certain class of persons were denied to form co-operative societies. They contended that it is their fundamental right to form co-operative societies. Is the contention correct? Yes, it is the fundamental right of citizen to form co-operatives socities. Protection of Life and Personal Liberty Article 21 confers on every person the fundamental right to life and personal liberty. It says that, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The right to life includes those things which make life meaningful. The right to life enshrined in Article 21 guarantees right to live with human dignity. Right to live in freedom from noise pollution is a fundamental 200 Legal Aptitude and Logical Reasoning Sovereignty and integrity of India Security of the State Friendly relations with foreign States PERMISSIBLE RESTRICTIONS Public ON Order FREEDOM OF Decency SPEECH or & morality EXPRESSION Contempt of court Defamation Incitement to an offence Legal Aptitude and Logical Reasoning 201 right protected by Article 21 and noise pollution beyond permissible limits is an inroad into that right. (Noise Pollution (v), in re, (2005) 5 SCC 733). In Satwant Singh Sawhney v. A.P.O., New Delhi, AIR 1967 S.C. 1836, it was held that right to travel is included within the expression ‘personal liberty’ and, therefore, no person can be deprived of his right to travel, except according to the procedure established by law. Since a passport is essential for the enjoyment of that right, the denial of a passport amounts to deprivation of personal liberty. In the absence of any procedure pescribed by the law of land sustaining the refusal of a passport to a person, it’s refusal amounts to an unauthorised deprivation of personal liberty guaranteed by Article 21. Procedure established by law : The expression ‘procedure established by law’ means procedure laid down by statute or procedure prescribed by the law of the State. Accordingly, first, there must be a law justifying interference with the person’s life or personal liberty, and secondly, the law should be a valid law, and thirdly, the procedure laid down by the law should have been strictly followed.The procedure must be fair, just and reasonable. It must not be arbitrary, fanciful or oppressive. Right to Education According to Article 21A of the Constitution of India, the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. Protection against arrest and detention in certain cases According to Article 22 of the Constitution of India no arrested person shall be detained in custody without being informed, 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 choice. RIGHT Further, every arrested person and who is detained in custody shall be produced before the nearest magistrate within a period AGAINST of twenty-four hours of such arrest excluding the time necessary EXPLOITATION for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. However, the protection is not available to an enemy alien and a person arrested or detained under any law providing for preventive detention. Right against Exploitation Prohibition of traffic in human beings and According to, Article 23 of Constitution of India traffic in human forced labour beings and begar and other similar forms of forced labour are prohibited and any contravention of Article 23 shall be an offence punishable in accordance with law. Further, as per Article 24 of Constitution of India, no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Prohibition of employment of children in factories, etc. 202 Legal Aptitude and Logical Reasoning Right to Freedom of Religion Articles 25, 26, 27 and 28 of Constitution of India deals with right to Freedom of Religion. Right to Constitutional Remedies RIGHT TO FREEDOM OF RELIGION Freedom of conscience Freedom Freedom as to Freedom as to and free profession, to payment of taxes for attendance at religious practice and manage religious promotion of any instruction or religious propagation of religion affairs particular religion worship in certain educational institutions Article 32 guarantees the enforcement of Fundamental Rights. It is remedial and not substantive in nature. The rest of the Articles 33 to 35 relate to supplementary matters and do not create or guarantee any right. Therefore, we shall discuss Article 32 first and then rest of the Articles i.e. 33-35 briefly. Remedies for Enforcement of Fundamental Rights It is a cardinal principle of jurisprudence that where there is a right there is a remedy (ubi jus ibi remedium) and if rights are given without there being a remedy for their enforcement, they are of no use. While remedies are available in the Constitution and under the ordinary laws, Article 32 makes it a fundamental right that a person whose fundamental right is violated has the right to move the Supreme Court by appropriate proceedings for the enforcement of his fundamental right. It is really a far reaching provision in the sense that a person need not first exhaust the other remedies and then go to the Supreme Court. On the other hand, he can directly raise the matter before highest Court of the land and the Supreme Court is empowered to issue directions or orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate for the enforcement of the right, the violation of which has been alleged. This power of the Supreme Court to issue directions, etc., may also be assigned to other Courts by Parliament without affecting the powers of the Supreme Court. The right to move the Supreme Court is itself a guarantee right and the significance of this has been assessed by Gajendragadkar, J. in the following words: “The fundamental right to move this Court can therefore be appropriately described as the cornerstone of the democratic edifice raised by the Constitution. That is why it is natural that this Court should, in the words of Patanjali Sastri, J., regard itself ‘as the protector and guarantor of fundamental rights’, and should declare that “it cannot, consistently with the responsibility laid upon it, refuse to entertain applications seeking protection against infringements of such rights. In discharging the duties assigned to it, this Court has to play the role of ‘sentinel on the qui vive’ (State of Madras v. V.G. Row, AIR 1952 SC 196) Legal Aptitude and Logical Reasoning 203 and it must always regard it as its solemn duty to protect the said fundamental rights ‘zealously and vigilantly’ (Daryao v. State of U.P., AIR 1961 SC 1457). DIRECTIVE PRINCIPLES OF STATE POLICY The Sub-committee on Fundamental Rights constituted by the Constituent Assembly suggested two types of Fundamental Rights — one which can be enforced in the Courts of law and the other which because of their different nature cannot be enforced in the law Courts. Later on however, the former were put under the head ‘Fundamental Rights’ as Part III which we have already discussed and the latter were put separately in Part IV of the Constitution under the heading ‘Directive Principles of State Policy’ which are discussed in the following pages. The Articles included in Part IV of the Constitution (Articles 36 to 51) contain certain Directives which are the guidelines for the Government to lead the country. Article 37 provides that the ‘provisions contained in this part (i) shall not be enforceable by any Court, but the principles therein laid down are neverthless (ii) fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws. The Directives, however, differ from the fundamental rights contained in Part- III of the Constitution or the ordinary laws of the land in the following respects: (i) The Directives are not enforceable in the courts and do not create any justiciable rights in favour of individuals. (ii) The Directives require to be implemented by legislation and so long as there is no law carrying out the policy laid down in a Directive, neither the state nor an individual can violate any existing law. (iii) The Directives per-se do not confer upon or take away any legislative power from the appropriate legislature. (iv) The courts cannot declare any law as void on the ground that it contravenes any of the Directive Principles. (v) The courts are not competent to compel the Government to carry out any Directives or to make any law for that purpose. (vi) Though it is the duty of the state to implement the Directives, it can do so only subject to the limitations imposed by the different provisions of the Constitution upon the exercise of the legislative and executive power by the state. Important Directive Principles To be specific, the important Directive Principles are enumerated below: (a) State to secure a social order for the promotion of welfare of the people: (1) The State must strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political should inform all the institutions of the national life. (2) The State shall, in particular, strive to minimise the inequalities in income and endeavour to eliminate inequalities in status, facilities, and opportunities, not only amongst individuals but also among groups of people residing in different areas or engaged in different vocations. (Article 38). (b) Certain principles of policy to be followed by the State. The State, particularly, must direct its policy towards securing: 204 Legal Aptitude and Logical Reasoning (i) that the citizens, men and women equally, have the right to an adequate means of livelihood; (ii) that the ownership and control of the material resources of the community are so distributed as best to subserve the common goods; (iii) that the operation of the economic systems does not result in the concentration of wealth and means of production to the common detriment; (iv) equal pay for equal work for both men and women; (v) that the health and strength of workers and children is not abused and citizens are not forced by the economic necessity to enter avocation unsuited to their age or strength; (vi) that childhood, and youth are protected against exploitation and against moral and material abandonment (Article 39). (bb)The State shall secure that the operation of legal system promotes justice on a basis of equal opportunity, and shall, in particular provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities (Article 39A). (c) The State must take steps to organise the Village Panchayats and enable them to function as units of self-government (Article 40). (d) Within the limits of economic capacity and development the State must make effective provision for securing the right to work, to education and to public assistance in case of unemployment, old age, etc. (Article 41). (e) Provision must be made for just and humane conditions of work and for maternity relief (Article 42). (f) The State must endeavour to secure living wage and good standard of life to all types of workers and must endeavour to promote cottage industries on an individual of co-operative basis in rural areas (Article 43). (ff) The State take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organisations engaged in any industry (Article 43A). (g) The State must endeavour to provide a uniform civil code for all Indian citizens (Article 44). (h) Provision for free and compulsory education for all children upto the age of fourteen years (Article 45). (i) The State must promote the educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections (Article 46). (j) The State must regard it one of its primary duties to raise the level of nutritional and the standard of living and to improve public health and in particular it must endeavour to bring about prohibition of the consumption, except for medicinal purposes, in intoxicating drinks and of drugs which are injurious to health (Article 47). (k) The State must organise agriculture and animal husbandry on modern and scientific lines and improve the breeds and prohibit the slaughter of cows and calves and other milch and draught cattle (Article 48). (kk) The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country (Article 48A). Legal Aptitude and Logical Reasoning 205 (l) Protection of monuments and places and objects of national importance is obligatory upon the State (Article 49). (m) The State must separate executive from judiciary in the public services of the State (Article 50). (n) In international matters the State must endeavour to promote peace and security, maintain just and honourable relations in respect of international law between nations, treaty obligations and encourage settlement of international disputes by arbitration (Article 51). FUNDAMENTAL DUTIES Article 51A imposes the fundamental duties on every citizen of India. These Fundamental Duties are: (a) to abide by the constitution and respect its ideals and institutions, the National Flag and the National Anthem; (b) To cherish and follow the noble ideals which inspired our national struggle for freedom; (c) to uphold and protect the sovereignty, unity and integrity of India; (d) to defend the country and render national service when called upon to do so; (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women; (f) to value and preserve the rich heritage of our composite culture; (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures; (h) to develop the scientific temper, humanism and the spirit of inquiry and reform; (i) to safeguard public property and to abjure violene; (j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. (k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years. Since the duties are imposed upon the citizens and not upon the States, legislation is necessary for their implementation. Fundamental duties can’t be enforced by writs (Surya Narain v. Union of India, AIR 1982 Raj 1). CITIZENSHIP "The State is a compound made of citizens; and this compels us to consider who should properly be called a citizen and what a citizen really is. The nature of Citizenship like that of the State, is a question which is often disputed; there is no general agreement on a single definition; the man who is a citizen in democracy is often not one in an oligarchy." Aristotle National citizenship remains an essential and enduring feature of modern life in terms of politics and elections, welfare state benefits, all round integration etc. Articles 5 to 9 of the Constitution determine who are the Indian citizens at the commencement of the Constitution. Article 10 provides for their continuance as such citizens subject to the provisions of any law that may be made by Parliament. Article 206 Legal Aptitude and Logical Reasoning 11 entrust the Parliament with powers to regulate the right of citizenship. In other words, the Constitution under Article 11 expressly left acquisition and termination of citizenship and all other matters relating thereto to the Parliament by way of legislation. The legislation related to this matter is the Citizenship Act, 1955. Article 5: Citizenship at the commencement of the Constitution Article 5 provides that at the commencement of the Constitution, every person who has his domicile in the territory of India and— (a) Who was born in the territory of India; or (b) Either of whose parents was born in the territory of India; or (c) Who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India. PARLIAMENT There shall be a Parliament for the Union which shall consist of the President and two Houses to be known respectively as the Council of States and President the House of the People. President The President shall be elected by the members of an electoral college consisting of— (a) the elected members PARLIAMENT of both Houses of Parliament; and (b) the elected members of the Legislative Assemblies of the States. House Council of the of Powers of the President People States Article 53 the Constitution lays down that the executive power of the union shall be vested in the President. The President of India shall, thus, be the head of the ‘executive power’ of the union. The executive power may be defined as the power of “carrying on the business of Government” or “the administration of the affairs of the state” excepting functions which are vested in any other authority by the Constitution. Various powers that are included within the comprehensive expression ‘executive power’ in a modern state have been classified under following heads : (i) Administrative power, i.e., the execution of the laws and the administration of the departments of Government. (ii) Military power, i.e., the command of the armed forces and the conduct of war. (iii) Legislative power, i.e., the summoning prorogation, etc. of the legislature. (iv) Judicial power, i.e., granting of pardons, reprieves etc. to persons convicted of crime. These powers vest in the President under each of these heads, subject to the limitations made under the Constitution. Legal Aptitude and Logical Reasoning 207 Power to Promulgate Ordinance The most important legislative power conferred on the President is to promulgate Ordinances. Article 123 of the Constitution provides that the President shall have the power to legislate by Ordinances at any time when it is not possible to have a parliamentary enactment on the subject, immediately. This is a special feature of the Constitution of India. The ambit of this Ordinance-making power of the President is co-extensive with the legislative powers of Parliament, that is to say it may relate to any subject in respect of which Parliament has the right to legislate and is subject to the same constitutional limitations as legislation by Parliament. Rajya Sabha (Council of States) The Council of States shall consists of twelve members to be nominated by the President and not more than two hundred and thirty-eight representatives of the States and of the Union territories. The allocation of seats in the Council of States to be filled by representatives of the States and of the Union territories shall be in accordance with the provisions in that behalf contained in the Fourth Schedule of the Constitution. The members to be nominated by the President shall consist of persons having special knowledge or practical experience in respect of literature, science, art and social service. The representatives of each State in the Council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote. The representatives of the Union territories in the Council of States shall be chosen in such manner as Parliament may by law prescribe. Lok Sabha (House of the People) Lok Sabha is composed of representatives of the people chosen by direct election on the basis of the adult suffrage. The maximum strength of the House envisaged by the Constitution is 552, which is made up by election of upto 530 members to represent the States, upto 20 members to represent the Union Territories and not more than two members of the Anglo-Indian Community to be nominated by the Hon'ble President, if, in his/her opinion, that community is not adequately represented in the House. The total elective membership is distributed among the States in such a way that the ratio between the number of seats allotted to each State and the population of the State is, so far as practicable, the same for all States. COUNCIL OF MINISTERS There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice. The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister. The total number of Ministers, including the Prime Minister, in the Council of Ministers shall not exceed fifteen per cent. of the total number of members of the House of the People. The Ministers shall continuation office at the pleasure of the President. The Council of Ministers shall be collectively responsible to the House of the People. Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy. The salaries and allowances of Ministers shall be such as Parliament may from time to time by law determine and, until Parliament so determines, shall be as specified in the Second Schedule. The total number of Ministers, including the Prime Minister, in the Council of Ministers shall not exceed fifteen per cent of the total number of members of the House of the People. 208 Legal Aptitude and Logical Reasoning CONSTITUTION OF LEGISLATURES IN STATES For every State there shall be a Legislature which shall consist of the Governor, and (i) in the States of Andhra Pradesh, Bihar, Madhya Pradesh, Maharashtra, Karnataka, Tamil Nadu, STATES HAVING LEGISLATIVE Telangana and Uttar COUNCIL Pradesh having two Houses (ii) in other States, one House. Where there are two Houses of the Andhra Pradesh Legislature of a State, one shall be known as the Legislative Council and the other as the Legislative Assembly, and where there is only one House, it shall be known as the Bihar Legislative Assembly. The Legislative Assembly of each State shall consist of not more than Madhya Pradesh five hundred, and not less than sixty, members chosen by direct election from territorial constituencies in the State. The total number of members in the Legislative Council of a State Maharashtra having such a Council shall not exceed one third of the total number of members in the Legislative Assembly of that State. The total number of members in the Karnataka Legislative Council of a State shall in no case be less than forty. Legislative Assembly of every State, unless sooner dissolved, shall Tamil Nadu continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the Assembly. The Uttar Pradesh Legislative Council of a State shall not be subject to dissolution, but as nearly as possible one third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law. GOVERNOR The executive power of the State is vested in the Governor and all executive action of the State has to be taken in the name of the Governor. Normally there shall be a Governor for each State but the same person Legal Aptitude and Logical Reasoning 209 can be appointed as Governor for two or more states. The Governor of a State is not elected but is appointed by the President and holds his office at the pleasure of the President. The head of the executive power to a State is the Governor just as the President for the Union. The Governor possesses executive, legislation and judicial powers as the Presidents except that he has no diplomate or military powers like the President. The Governor’s power to make Ordinances as given under Article 213 is similar to the Ordinance making power of the President and have the force of an Act of the State Legislature. He can make Ordinance only when the state Legislature or either of the two Houses (where it is bicameral) is not in session. He must be satisfied that circumstances exist which render it necessary to take immediate action. While exercising this power, the Governor must act with the aid and advise of the Council of Ministers. But in following cases, the Governor cannot promulgate any Ordinance without instructions from the President: (a) if a Bill containing the same provisions would under this constitution have required the previous sanction of the President. (b) he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President. (c) an Act of the state legislature containing the same provisions would under this constitution have been invalid under having been reserved for the consideration of the President, it had received the assent of the President. The Ordinance must be laid before the state legislature (when it re-assembles) and shall automatically cease to have effect at the expiration of six weeks from the date of the re-assembly unless disapproved earlier by that legislature. THE JUDICIARY The Supreme Court The Courts in the Indian legal system, broadly SUPREME speaking, consist of (i) the COURT OF Supreme Court, (ii) the High INDIA Courts, and (iii) the Subordinate Courts. The Supreme Court, which is the highest Court in the country HIGH COURT (both for matters of ordinary law and for interpreting the Constitution) is an institution created by the Constitution. Immediately before independence, the District and Sub- Privy Council was the ordinate Courts highest appellate authority for British India, for matters arising under ordinary law. But appeals from High Courts in constitutional matters lay to the Federal Civil Courts Criminal Courts Court (created under the 210 Legal Aptitude and Logical Reasoning Government of India Act, 1935) and thence to the Privy Council. The Supreme Court of India, in this sense, has inherited the jurisdiction of both the Privy Council and the Federal Court. However, the jurisdiction of the Supreme Court under the present Constitution is much more extensive than that of its two predecessors mentioned above. The Supreme Court, entertains appeals (in civil and criminal and other cases) from High Courts and certain Tribunals. It has also writ jurisdiction for enforcing Fundamental Rights. It can advise the President on a reference made by the President on questions of fact and law. It has a variety of other special jurisdictions. High Courts The High Courts that function under the Constitution were not created for the first time by the Constitution. Some High Courts existed before the Constitution, although some new High Courts have been created after 1950. The High Courts in (British) India were established first under the Indian High Courts Act, 1861 (an Act of the U.K. Parliament). The remaining High Courts were established or continued under the Constitution or under special Acts. High Courts for each State (or Group of States) have appellate, civil and criminal jurisdiction over lower Courts. High Courts have writ jurisdiction to enforce fundamental rights and for certain other purposes. Some High Courts (notably) Bombay, Calcutta and Delhi, have ordinary original civil jurisdiction (i.e. jurisdiction to try regular civil suits) for their respective cities. High Courts can also hear references made by the Income Tax Appellate Tribunal under the Income Tax Act and other tribunals. It should be added, that the "writ" jurisdiction vested at present in all High Courts by the Constitution was (before the Constitution came into force) vested only in the High Courts of Bombay, Calcutta and Madras (i.e. the three Presidency towns). Subordinate Courts Finally, there are various subordinate civil and criminal courts (original and appellate), functioning under ordinary law. Although their nomenclature and powers have undergone change from time to time, the basic pattern remains the same. These have been created, not under the Constitution, but under laws of the competent legislature. Civil Courts are created mostly under the Civil Courts Act of each State. Criminal courts are created mainly under the Code of Criminal Procedure. Civil Courts In each district, there is a District Court presided over by the District Judge, with a number of Additional District Judges attached to the court. Below that Court are Courts of Judges (sometimes called subordinate Judges) and in, some States, Munsiffs. These Courts are created under State Laws. Criminal Courts Criminal courts in India primarily consist of the Magistrate and the Courts of Session. Magistrates themselves have been divided by the Code of Criminal Procedure into 'Judicial' and 'Executive' Magistrates. Executive Magistrate The Executive Magistrate do not try criminal prosecutions, and their jurisdiction is confined to certain miscellaneous cases, which are of importance for public tranquillity and the like. Their proceedings do not end in conviction or acquittal, but in certain other types of restrictive orders. In some States, by local amendments, Executive Magistrates have been vested with powers to try certain offences. Judicial Magistrate Judicial Magistrates, are of two classes: Second Class and First Class. Judicial Magistrates are subject to Legal Aptitude and Logical Reasoning 211 the control of the Court of Session, which also in itself a Court of original jurisdiction. The powers of Magistrates of the two classes, vary according to their grade. The Court of Session can try all offences, and has power to award any sentence, prescribed by law for the offence, but a sentence of death requires confirmation by the High Court. In some big cities (including the three Presidency towns and Ahmedabad and Delhi), the Magistrates are called Metropolitan Magistrates. There is no gradation inter se. Further, in some big cities (including the three Presidency towns and Ahmedabad and Hyderabad), the Sessions Court is called the "City Sessions Court", its powers being the same as those of the Courts of Session in the districts. Special Tribunals Besides these Courts, which form part of the general judicial set up, there are hosts of specialised Tribunals dealing with Direct Taxes, Labour, Customs, Claims for accidents caused by motor vehicles, Copyright and Environment, Anti- Competitive Agreement etc. WRIT JURISDICTION OF HIGH COURTS AND SUPREME COURT Under the Constitution by virtue of Article 226, every High Court has the power to issue directions or orders or writs including writs in the nature of Habeas corpus, Mandamus, Prohibition, Quo warranto and Certiorari or any of them for the enforcement of fundamental rights stipulated in Part III of the Constitution or for any other purpose. This power is exercisable by each High Court throughout the territory in relation to which it exercises jurisdiction. A person can also approach the Supreme Court by appropriate proceedings for the issue of directions or orders or writs, as referred to under Article 226 for the enforcement of the rights guaranteed by Part III of the Constitution. Article 32 itself being a fundamental right, the Constitutional remedy of writ is available to anyone whose fundamental rights are infringed by state action. Types of Writs A brief description of the various types of writs is given below: 1. Habeas Corpus Habeas Corpus The writ of Habeas corpus - an effective bulwark of personal liberty – is a remedy available to a person who is confined without legal justification. The words ‘Habeas Corpus’ literally Quo Warranto Mandamus mean “to have the body”. WRITS When a prima facie case for the issue of writ has been made then the Court issues a rule nisi upon the relevant authority to show cause why the writ should not be issued. Certiorari Prohibition This is in national order to let the Court know on what grounds he has been confined and to set him free if there is no justification for his 212 Legal Aptitude and Logical Reasoning detention. This writ has to be obeyed by the detaining authority by producing the person before the Court. Under Articles 32 and 226 any person can move for this writ to the Supreme Court and High Court respectively. The applicant may be the prisoner or any person acting on his behalf to safeguard his liberty for the issuance of the writ of Habeas Corpus as no man can be punished or deprived of his personal liberty except for violation of law and in the ordinary legal manner. An appeal to the Supreme Court of India may lie against an order granting or rejecting the application (Articles 132, 134 or 136). The disobedience to this writ is met with by punishment for contempt of Court under the Contempt of Courts Act. 2. Mandamus The word ‘Mandamus’ literally means we command. The writ of mandamus is, a command issued to direct any person, corporation, inferior court, or Government requiring him or it do a particular thing specified therein which pertains to his or its office and is further in the nature of a public duty. This writ is used when the inferior tribunal has declined to exercise jurisdiction while resort to certiorari and prohibition arises when the tribunal has wrongly exercised jurisdiction or exceeded its jurisdiction and are available only against judicial and quasi-judicial bodies. Mandamus can be issued against any public authority. It commands activity. The writ is used for securing judicial enforcement of public duties. In a fit case, Court can direct executives to carry out Directive Principles of the Constitution through this writ (State of Maharashtra v. MP Vashi, 1995 (4) SCALE). The applicant must have a legal right to the performance of a legal duty by the person against whom the writ is prayed for. It is not issued if the authority has a discretion. The Constitution of India by Articles 226 and 32 enables mandamus to be issued by the High Courts and the Supreme Court to all authorities. 3. Prohibition A writ of prohibition is issued to an Inferior Court preventing the latter from usurping jurisdiction which is not legally vested in it. When a tribunal acts without or in excess of jurisdiction, or in violation of rules or law, a writ of prohibition can be asked for. It is generally issued before the trial of the case. While mandamus commands activity, prohibition commands inactivity, it is available only against judicial or quasi-judicial authorities and is not available against a public officer who is not vested with judicial functions. If abuse of power is apparent this writ may be of right and not a matter of discretion. 4. Certiorari It is available to any person, wherever anybody of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially in excess of their legal authority” (See The King v. Electricity Commissioners, (1924) I.K.B. 171, P. 204-5). The writ removes the proceedings from such body to the High Court, to quash a decision that goes beyond its jurisdiction. Under the Constitution of India, all High Courts can issue the writ of certiorari throughout their territorial jurisdiction when the subordinate judicial authority acts (i) without or in excess of jurisdiction or (ii) in contravention of the rules of natural justice or (iii) commits an error apparent on the face of the record. The jurisdiction of the Supreme Court to issue such writs arises under Article 32. Although the object of both the writs of prohibition and of certiorari is the same, prohibition is available at an earlier stage whereas certiorari is available at a later stage but on similar grounds i.e. Certiorari is issued after authority has exercised its powers. 5. Quo Warranto The writ of quo warranto enables enquiry into the legality of the claim which a person asserts, to Legal Aptitude and Logical Reasoning 213 an office or franchise and to oust him from such position if he is an usurper. The holder of the office has to show to the court under what authority he holds the office. It is issued when: (i) the office is of public and of a substantive nature, (ii) created by statute or by the Constitution itself, and (iii) the respondent has asserted his claim to the office. It can be issued even though he has not assumed the charge of the office. The fundamental basis of the proceeding of Quo warranto is that the public has an interest to see that a lawful claimant does not usurp a public office. It is a discretionary remedy which the court may grant or refuse. MAJOR CONSTITUTIONAL AMENDMENTS 1951 - 2022 The Constitution (First Amendment) Act, 1951 — Added Ninth Schedule to protect the land reform and other laws included in it from the judicial review. — Added three more grounds of restrictions on freedom of speech and expression, viz., public order, friendly relations with foreign states and incitement to an offence. Also, made the restrictions ‘reasonable’ and thus, justiciable in nature. — Empowered the state to make special provisions for the advancement of socially and economically backward classes. The Constitution (Second Amendment) Act, 1952 The scale of representation in the Lok Sabha by providing that one member could represent even more than 7, 50,000 persons. Constitution (Forty – Second Amendment) Act, 1976 — It is also known as Mini-Constitution. It was enacted to give effect to the recommendations of Swaran Singh Committee). — Added three new words (i.e., socialist, secular and integrity) in the Preamble. — Added Fundamental Duties by the citizens (new Part IV A). — Made the president bound by the advice of the cabinet. — Added three new Directive Principles viz., equal justice and free legal aid, participation of workers in the management of industries. — Shifted five subjects from the state list to the concurrent list, viz, education, forests, protection of wild animals and birds, weights and measures and administration of justice, constitution and organisation of all courts except the Supreme Court and the high courts. — Empowered the Centre to deploy its armed forces in any state to deal with a grave situation of law and order. Constitution (Fifty – Second Amendment) Act, 1985 — This amendment popularly known as Anti-Defection Law — Provided for disqualification of members of Parliament and state legislatures on the ground of defection and added a new Tenth Schedule containing the details in this regard. 214 Legal Aptitude and Logical Reasoning Constitution (Sixty – First Amendment) Act, 1989 Reduced the voting age from 21 years to 18 years for the Lok Sabha and state legislative assembly elections. Constitution (Sixty – Ninth Amendment) Act, 1991 Accorded a special status to the Union Territory of Delhi by designing it as the National Capital Territory of Delhi. Constitution (Seventieth Amendment) Act, 1989 Provided for the inclusion of the members of the Legislative Assemblies of National Capital Territory of Delhi and the Union Territory of Puducherry in the Electoral College for the election of the president. Constitution (Eighty-Fourth Amendment) Act, 2001 The number of seats in the Lok Sabha and the assemblies are to remain same till 2026. Constitution (Eighty-Sixth Amendment) Act, 2002 — Made elementary education a fundamental right. Added Article 21-A which declares that “the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may determine”. — Changed the subject matter of Article 45 in Directive Principles. It now reads—“The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years”. — Added a new fundamental duty under Article 51-A which reads—“It shall be the duty of every citizen of India who is a parent or guardian to provide opportunities for education to his child or ward between the age of six and fourteen years”. Constitution (Ninety-First Amendment) Act, 2003 — The total number of ministers, including the Prime Minister, in the Central Council of Ministers shall not exceed 15% of the total strength of the Lok Sabha [Article 75(1A)]. — The total number of ministers, including the Chief Minister, in the Council of Ministers in a state shall not exceed 15% of the total strength of the legislative Assembly of that state. But, the number of ministers, including the Chief Minister, in a state shall not be less than 12 [Article 164(1A)]. — The provision of the Tenth Schedule (anti-defection law) pertaining to exemption from disqualification in case of split by one-third members of legislature party has been deleted. It means that the defectors have no more protection on grounds of splits. Constitution (One Hundred-One Amendment) Act, 2016 — Goods and Services Tax (GST) has commenced with the enactment of the 101st Constitution Amendment Act, 2016. — Articles 246A, 269A and 279A were added in the constitution. The amendment made changes in the 7th schedule of the constitution. Constitution (One Hundred-Second Amendment) Act, 2018 — Constitutional status to the National Commission for Backward Classes. — Inserted a new Article 342-A which empowers President to notify the list of socially and educationally backward classes of that state/union territory. Constitution (One Hundred-Third Amendment) Act, 2019 It changed two fundamental rights, Article 15 and 16. It provides for the advancement of the economically weaker sections of society. Ten (10%) of all government jobs and college seats will be reserved for people outside the high-income bracket. *** Legal Aptitude and Logical Reasoning 215 Lesson 2 ELEMENTS OF GENERAL LAWS 215 216 Legal Aptitude and Logical Reasoning A. INDIAN CONTRACT ACT INTRODUCTION A contract is an agreement enforceable at law, made between two or more persons, by which rights are acquired by one or more to acts or forbearances on the part of the other or others. A contract is an agreement creating and defining obligations between the parties. The Indian Contract Act, 1872 lays down general principles relating to formation and enforceability of contracts; rules governing the provisions of an agreement and offer; the various types of contracts including those of indemnity and guarantee, bailment and pledge and agency. It also contains provisions pertaining to breach of a contract. The Law of Contract constitutes the most important branch of Mercantile or Commercial Law. It affects everybody, more so, trade, commerce and industry. It may be said that the contract is the foundation of the civilized world. The Indian Contract Act, 1872 came into force on the first day of September, 1872. The preamble to the Act says that it is an Act “to define and amend certain parts of the law relating to contract”. The Act is by no means exhaustive on the law of contract. It does not deal with all the branches of the law of contract. Thus, contracts relating to partnership, sale of goods, negotiable instruments, insurance etc. are dealt with by separate Acts. The Indian Contract Act majorly deals with the general principles and rules governing contracts. The Act is divisible into two parts: — The first part (Section 1-75) deals with the general principles of the law of contract, and therefore applies to all contracts irrespective of their nature. — The second part (Sections 124-238) deals with certain special kinds of contracts, namely contracts of Indemnity and Guarantee, Bailment, Pledge, and Agency. CONTRACT The Indian Contract Act has defined “Contract” in Section 2(h) as “an agreement enforceable by law”. This definition indicate that a contract essentially consists of two distinct parts. First, there must be an agreement. Secondly, such an agreement must be enforceable by law. To be enforceable, an agreement must be coupled with an obligation. A contract therefore, is a combination of the two elements: — An agreement, and — An obligation. AGREEMENT An agreement gives birth to a contract. As per Section 2(e) of the Indian Contract Act every promise and every set of promises, forming the consideration for each other, is an agreement. It is evident from the definition given above that an agreement is based on a promise. What is a promise? According to Section 2(b) of the Indian Contract Act “when the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise. An agreement, therefore, comes into existence when one party makes a proposal or offer to the other party and that other party signifies his assent thereto. In a nutshell, an agreement is the sum total of offer and acceptance.” Example: A orally agreed to supply 50 Kg Rice of a certain brand and quality to Mr. B and to receive payment against it. Is it an agreement? Yes, it is an agreement. Legal Aptitude and Logical Reasoning 217 An analysis of the definition given above reveals the following characteristics of an agreement: Agreement Plurality of Consensus ad persons idem The meeting of the minds is called There must be two or more couseusus-ad-idem. It means persons to make an agreement both the parties to an agreement because one person cannot enter must agree about the subject into an agreement with himself matter of the agreement in the same sense and at the same time OBLIGATION An obligation is the legal duty to do or abstain from doing what one has promised to do or abstain from doing. A contractual obligation arises from a bargain between the parties to the agreement who are called the promisor and the promisee. Section 2(b) says that when the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted; and a proposal when accepted becomes a promise. In broad sense, therefore, a contract is an exchange of promises by two or more persons, resulting in an obligation to do or abstain from doing a particular act, where such obligation is recognised and enforced by law. Rights and Obligations Where parties have made a binding contract, they have created rights and obligations between themselves. The contractual rights and obligations are correlative, e.g., A agrees with B to sell his car for Rs.10, 00.000/ - to him. In this example, the following rights and obligations have been created: (i) A is under an obligation to deliver the car to B. B has a corresponding right to receive the car. (ii) B is under an obligation to pay Rs.10, 00,000/- to A. A has a correlative right to receive Rs.10, 00,000/-. Agreements which are not Contracts Agreements in which the idea of bargain is absent and there is no intention to create legal relations are not contracts. These are: (a) Agreements relating to social matters : An agreement between two persons to go together to the cinema, or for a walk, does not create a legal obligation on their part to abide by it. Similarly, if I promise to take you for dinner and break that promise, I do not expect to be liable to legal penalties. There cannot be any offer and acceptance to hospitality. 218 Legal Aptitude and Logical Reasoning (b) Domestic arrangements between husband and wife : In Balfour v. Balfour (1919) 2 KB 571, a husband working in Ceylone, had agreed in writing to pay a housekeeping allowance to his wife living in England. On receiving information that she was unfaithful to him, he stopped the allowance. He was held to be entitled to do so. This was a mere domestic arrangement with no intention to create legally binding relations. Therefore, there was no contract. Three consequences follow from the above discussion — To constitute a contract, the parties must intend to create legal relationship. — The law of contract is the law of those agreements which create obligations, and those obligations have their source in agreement. — Agreement is the genus of which contract is the specie and, therefore, all contracts are agreements but all agreements are not contracts. Essential Elements of a Valid Contract Section 10 of the Indian Contract Act, 1872 provides that “all agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void”. The essential elements of a valid contract are: (i) An offer or proposal by one party and acceptance of that offer by another party resulting in an Agreement — consensus-ad-idem. (ii) An intention to create legal relations or an intent to have legal consequences. (iii) The agreement is supported by a lawful consideration. (iv) The parties to the contract are legally capable of contracting. (v) Genuine consent between the parties. (vi) The object and consideration of the contract is legal and is not opposed to public policy. (vii) The terms of the contract are certain. (viii) The agreement is capable of being performed i.e., it is not impossible of being performed. Therefore, to form a valid contract there must be: — An agreement — Based on the genuine consent of the parties — Supported by a lawful consideration — Made for a lawful object, and — Between the competent parties. Example: There is an agreement with a term that A will provide 50 kg of Wheat on a price of more than Rs. Per 50 Kg? An agreement cannot be on ambiguous terms. Therefore, this agreement is not valid. Legal Aptitude and Logical Reasoning 219 Offer or Proposal and Acceptance One of the early steps in the formation of a contract lies in arriving at an agreement between the contracting parties by means of an offer and acceptance. Thus, when one party (the offeror) makes a definite proposal to another party (the offeree) and the offeree accepts it in its entirety and without any qualification, there is a meeting of the minds of the parties and a contract comes into being, assuming that all other elements are also present. A proposal is also termed as an offer. The word ‘proposal’ is synonymous with the English word “offer”. An offer is a proposal by one person, whereby he expresses his willingness to enter into a contractual obligation in return for a promise, act or forbearance. Section 2(a) of the Indian Contract Act defines proposal or offer as “when one person signifies to another his willingness to do or abstain from doing anything with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal”. The person making the proposal or offer is called the proposer or offeror and the person to whom the proposal is made is called the offeree. Rules Governing Offers A valid offer must comply with the following rules: (a) An offer must be clear, definite, complete and final. It must not be vague. For example, a promise to pay an increased price for a horse if it proves lucky to promisor, is too vague and is not binding. (b) An offer must be communicated to the offeree. An offer becomes effective only when it has been communicated to the offeree so as to give him an opportunity to accept or reject the same. (c) The communication of an offer may be made by express words-oral or written-or it may be implied by conduct. (d) The communication of the offer may be general or specific. Where an offer is made to a specific person it is called specific offer and it can be accepted only by that person. But when an offer is addressed to an uncertain body of individuals i.e. the world at large, it is a general offer and can be accepted by any member of the general public by fulfilling the condition laid down in the offer’. Lapse of Offer Section 6 deals with various modes of lapse of an offer. It states that an offer lapses if— (a) It is not accepted within the specified time (if any) or after a reasonable time, if none is specified. (b) It is not accepted in the mode prescribed or if no mode is prescribed in some usual and reasonable manner, e.g., by sending a letter by mail when early reply was requested; (c) The offeree rejects it by distinct refusal to accept it; (d) Either the offeror or the offeree dies before acceptance; (e) The acceptor fails to fulfil a condition precedent to an acceptance. (f) The offeree makes a counter offer, it amounts to rejection of the offer and an offer by the offeree may be accepted or rejected by the offeror. Revocation of Offer by the Offeror — An offer may be revoked by the offeror at any time before acceptance. — Revocation must be communicated to the offeree, as it does not take effect until it is actually 220 Legal Aptitude and Logical Reasoning communicated to the offeree. Before its actual communication, the offeree, may accept the offer and create a binding contract. The revocation must reach the offeree before he sends out the acceptance. — An offer to keep open for a specified time (option) is not binding unless it is supported by consideration. Acceptance A contract emerges from the acceptance of an offer. Acceptance is the act of assenting by the offeree to an offer. Under Section 2(b) of the Contract Act when a person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted becomes a promise. Rules Governing Acceptance (a) Acceptance may be express i.e. by words spoken or written or implied from the conduct of the parties. (b) If a particular method of acceptance is prescribed, the offer must be accepted in the prescribed manner. (c) Acceptance must be unqualified and absolute and must correspond with all the terms of the offer. (d) A counter offer or conditional acceptance operates as a rejection of the offer and causes it to lapse, e.g., where a horse is offered for Rs.1,000 and the offeree counter-offers Rs.990, the offer lapses by rejection. (e) Acceptance must be communicated to the offeror, for acceptance is complete the moment it is communicated. Where the offeree merely intended to accept but does not communicate his intention to the offeror, there is no contract. Mere mental acceptance is not enough. (f) Mere silence on the part of the offeree does not amount to acceptance. Ordinarily, the offeror cannot frame his offer in such a way as to make the silence or inaction of the offeree as an acceptance. In other words, the offeror can prescribe the mode of acceptance but not the mode of rejection. (g) If the offer is one which is to be accepted by being acted upon, no communication of acceptance to the offeror is necessary, unless communication is stipulated for in the offer itself. Thus, if a reward is offered for finding a lost dog, the offer is accepted by finding the dog after reading about the offer, and it is unnecessary before beginning to search for the dog to give notice of acceptance to the offeror. (h) Acceptance must be given within a reasonable time and before the offer lapses or is revoked. An offer becomes irrevocable by acceptance. An acceptance never precedes an offer. There can be no acceptance of an offer which is not communicated. Similarly, performance of conditions of an offer without the knowledge of the specific offer, is no acceptance. Contracts over the Telephone Contracts over the telephone are regarded the same in principle as those negotiated by the parties in the actual presence of each other. In both cases an oral offer is made and an oral acceptance is expected. It Legal Aptitude and Logical Reasoning

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